TO WHOM IT MAY CONCERN: The Jacksonville District of the U.S. Army Corps of Engineers (Corps) has received an application for a Department of the Army permit pursuant to Section 404 of the Clean Water Act (33 U.S.C. §1344). The purpose of this public notice is to solicit comments from the public regarding the work described below:
If you are interested in receiving additional project drawings associated with this public notice, please send an e-mail to the project manager by electronic mail at nathanial.j.palmer@usace.army.mil
APPLICANT: Mike Hueniken
Pulte Home Company, LLC
24311 Walden Center Drive
Suite 300
Fort Myers, FL 34134
AGENT: Shane Johnson
Passarella & Associates, Inc
13620 Metropolis Avenue
Suite 200
Fort Myers, FL 33912
WATERWAY AND LOCATION: The project would affect waters of the United States associated with Shell Creek. The 1,885.11± acre project area is located just south of Desoto County on the west side of US 17, in 17 Section, 40 South Township, 24 East Range; at Latitude 27.01986 and Longitude -81.945552; in Peace River Shores, Charlotte County, Florida.
EXISTING CONDITIONS: Approximately 1,653.12± acres, or 87.7 percent, of the Project site consists of non-native land uses, including pasture lands, row crops, agricultural support operations, disturbed lands, spoil areas, berms, roads, drainage ditches, cow ponds, and electrical power transmission lines. The jurisdictional wetlands constitute a total of 296.43± acres or approximately 15.7 percent of the Project site. Additionally, jurisdictional Waters on the Project site total 44.02± acres or approximately 2.3 percent of the Project site. The native habitat on the Project consists of scattered upland and wetland vegetation communities with varying degrees of exotic vegetation, primarily Brazilian pepper (Schinus terebinthifolia), Peruvian primrosewillow (Ludwigia peruviana), limpograss (Hemarthria altissima), torpedograss (Panicum repens), West Indian marsh grass (Hymenachne amplexicaulis), cogongrass (Imperata cylindrica), and caesarweed (Urena lobata). In addition to the native vegetation associations, the Project site contains two historic tributaries of the Peace River located in the northern and southern portions of the site. The Project site is currently being used for cattle grazing, row crops, and sod production. The on-site wetland habitats have been disturbed by the ditching, cattle grazing and sod harvesting activities, and exotic vegetation infestation. The natural hydrologic regime in the region has been significantly altered by agricultural ditches, roads, berms, and past and present agricultural uses. This has adversely affected the hydrology of the on-site wetlands and tributaries on the property. The northern tributary is known as the Lee Branch, which connects to Hunter Creek prior to flowing into the Peace River. The southern tributary is unnamed and connects to Shell Creek prior to flowing into the Peace River.
PROJECT PURPOSE:
Basic: To construct a mixed-use development.
Overall: To construct a mixed-use development in Charlotte County that will meet local residential, commercial, and industrial development needs and provide opportunities to restore natural features within the site.
PROPOSED WORK: The applicant proposes to place 628,237 cubic yards of fill into 137.75+ acres of wetlands; 92,366 cubic yards of fill into 28.69+ acres of waters of the U.S.; Removing by dredging or excavating 444,699 CY of material from 22.96± acres of wetlands and 111,126 CY of material from 5.71± acres of waters of the U.S. to construct a mixed-use development in Charlotte County that will meet local residential, commercial, and industrial development needs and provide opportunities to restore natural features on the site. The Project will also include roadways, parking, amenities, preserve areas, surface water management system, and other associated infrastructure. Access to the site will be from multiple locations along Duncan Road to the west.
AVOIDANCE AND MINIMIZATION: The applicant has provided the following information in support of efforts to avoid and/or minimize impacts to the aquatic environment: A concept plan was developed in the initial design phase of the Project that resulted in 223.29± acres and 36.38± acres of wetland and Waters impacts, respectively. The current plan proposes to impact 160.71± acres of wetlands and 34.40± acres of Waters on the Project site. The proposed site plan has been modified from the original concept plan to preserve and enhance 135.71± acres of on-site jurisdictional wetlands and 9.62± acres of Waters in perpetuity. (145.33 acres total).
Given the site plan modifications and strategic design to preserve and restore the Project’s tributaries, the Applicant has demonstrated the reduction and elimination of wetland impacts to the extent practicable.
COMPENSATORY MITIGATION: The applicant offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment: In order to offset the loss of wetland functions, the applicant would purchase 26.96 freshwater forested wetland credits from an approved regional mitigation bank that services the Project area to offset the functional loss associated with the proposed wetland impacts.
In addition, the applicant is proposing to conduct on-site permittee responsible mitigation through the enhancement and restoration 274.1 acres, including the removal of exotic vegetation, installation of native plantings, and re-establishment of hydrologic connectivity through the removal of agricultural berms and ditches and installation of culverts. This also includes re-establishing the natural hydrology of two tributaries in the northern and southern portions of the Project site that have been significantly altered by past agricultural activities. The Project’s site plan has been designed to provide a total of 274.81± acres of on-site preserve area. The 274.81± acre compensatory wetland mitigation area will be placed under conservation easement. This includes 135.71± acres of wetlands, 121.76± acres of uplands, 9.62± acres of Waters, and 7.72± acres of created buffer lakes.
CULTURAL RESOURCES: The Corps is evaluating the undertaking for effects to historic properties as required under Section 106 of the National Historic Preservation Act. This public notice serves to inform the public of the proposed undertaking and invites comments including those from local, State, and Federal government Agencies with respect to historic resources. Our final determination relative to historic resource impacts may be subject to additional coordination with the State Historic Preservation Officer, federally recognized tribes and other interested parties. The Applicant will request a cultural resource review from the Florida Department of State
Division of Historical Resources (DHR) once a Southwest Florida Water Management District (SWFWMD) application number has been assigned to the Project. Any response received from the DHR will be submitted to the Corps upon receipt.
The District Engineer’s final eligibility and effect determination will be based upon coordination with the SHPO and/or THPO, as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on historic properties within the Corps-identified permit area.
ENDANGERED SPECIES: The Corps has performed an initial review of the impacts the project may have on Federally listed species and/or any designated critical habitat. Based on this initial review, the Corps has made a preliminary determination that the proposed project may affect species and critical habitat listed below. No other ESA-listed species or critical habitat will be affected by the proposed action.
Wood Stork: The Corps has made the determination of may affect but is not likely to adversely affect (MANLAA) for the wood stork (Mycteria americana). The Corps has concurrence with this determination pursuant to U.S. Fish and Wildlife Service’s (USFWS) May 18, 2010, South Florida Programmatic Concurrence Letter (Wood Stork Key). Use of the Wood Stork Key resulted in the following sequential determination: A-B-C-E-NLAA. Although the project will directly impact potential wood stork foraging habitat, replacement compensation is proposed in accordance with Clean Water Act 404(b)(1) guidelines; the habitat compensation replaces foraging value consisting of wetland enhancement and restoration matching the hydroperiod of wetlands affected; and replacement compensation provides foraging value similar to, or higher than, that of impacted wetlands; therefore, Corps determined the project “may affect, but is not likely to adversely affect” (MANLAA), the wood stork and will request concurrence from the FWS, via a separate letter.
Florida Bonneted Bat: Florida bonneted bats (Eumops floridanus) have been documented on-site during an acoustic survey conducted by the applicant. The U.S. Fish and Wildlife Service’s October 2019 Florida Bonneted Bat Effect Determination Key was used to conduct a sequential effect determination. Use of the key resulted in the following determination for the Florida bonneted bat: 1a > 2a > 3b >6a>7a>8b “Likely to Adversely Affect (LAA).” The Corps will request formal consultation on this species from the US Fish and Wildlife Service via a separate letter.
Florida Panther: The Corps has completed an evaluation of the impacts the work may have on the Florida Panther (Puma concolor coryi). The Corps utilized The Corps of Engineers, Jacksonville District, U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office and State of Florida Panther Effect Determination Key, February 19, 2007 (Panther Key). Use of the Panther Key resulted in the following sequential determination: A-C-May Affect since the project is located within the Florida panther focus area and is greater than one acre. The Corps will request formal consultation on this species from the US Fish and Wildlife Service via a separate letter.
Easter Indigo Snake: The Project site includes 1,535.88± acres of pasturelands, row crops, palmetto prairie, xeric oak, live oak, cabbage palm, disturbed land, spoil area, berm, electrical power transmission line habitats, and other land uses that could potentially be used by the Eastern indigo snake. No Eastern indigo snakes were observed during the listed species survey or other fieldwork conducted on the Project site.
Twenty potentially occupied gopher tortoise burrows were documented on the Project site during the listed species survey. Eastern indigo snakes are often closely associated with gopher tortoises and gopher tortoise burrows. The Project will implement the USFWS’s Standard Protection Measures for the Eastern Indigo Snake (USFWS 2021) and will use the Eastern indigo snake protection and education plan developed by the USFWS for use in Florida. Using the USFWS’s South Florida Programmatic Effect Determination Key for the Eastern Indigo Snake (amended on August 1, 2017) results in the following sequential determination: A > B > C > “May Affect.”
This notice serves as request to the U.S. Fish and Wildlife Service for any additional information on whether any listed or proposed to be listed endangered or threatened species or critical habitat may be present in the area which would be affected by the proposed activity.
ESSENTIAL FISH HABITAT:
The Corps has determined the proposal would have no effect on any Essential Fish Habitat (EFH). Therefore, no consultation with the National Marine Fisheries Service on EFH as required by the Magnuson-Stevens Fishery Conservation and Management Act 1996 is required.
NAVIGATION: The proposed structure or activity is not located in the vicinity of a federal navigation channel.
SECTION 408: The applicant will not require permission under Section 14 of the Rivers and Harbors Act of 1899 (33 USC 408) because the activity, in whole or in part, would not alter, occupy, or use a Corps Civil Works project.
WATER QUALITY CERTIFICATION: Water Quality Certification (WQC) is required from the Florida Department of Environmental Protection (FDEP).
COASTAL ZONE MANAGEMENT CONSISTENCY: Coastal Zone Consistency Concurrence is required from FDEP. In Florida, the State approval constitutes compliance with the approved Coastal Zone Management Plan.
NOTE: This public notice is being issued based on information furnished by the applicant. This information has not been verified or evaluated to ensure compliance with laws and regulation governing the regulatory program. The geographic extent of aquatic resources within the proposed project area that either are, or are presumed to be, within the Corps jurisdiction has been verified by Corps personnel.
EVALUATION: The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefits, which reasonably may be expected to accrue from the proposal, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including cumulative impacts thereof; among these are conservation, economics, esthetics, general environmental concerns, wetlands, historical properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food, and fiber production, mineral needs, considerations of property ownership, and in general, the needs and welfare of the people. Evaluation of the impact of the activity on the public interest will also include application of the guidelines promulgated by the Administrator, EPA, under authority of Section 404(b) of the Clean Water Act or the criteria established under authority of Section 102(a) of the Marine Protection Research and Sanctuaries Act of 1972. A permit will be granted unless its issuance is found to be contrary to the public interest.
COMMENTS: The Corps is soliciting comments from the public; Federal, State, and local agencies and officials; Indian Tribes; and other Interested parties in order to consider and evaluate the impacts of this proposed activity. Any comments received will be considered by the Corps to determine whether to issue, modify, condition, or deny a permit for this proposal. To make this determination, comments are used to assess impacts to endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment (EA) and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act (NEPA). Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.
The Jacksonville District will receive written comments on the proposed work, as outlined above, until July 17, 2025. Comments should be submitted electronically via the Regulatory Request System (RRS) at https://rrs.usace.army.mil/rrs or to Nathanial Palmer at nathanial.j.palmer@usace.army.mil. Alternatively, you may submit comments in writing to the Commander, U.S. Army Corps of Engineers, Jacksonville District, Attention: Nathanial Palmer, 400 High Point Drive Suite 600 Cocoa, FL 32164. Please refer to the permit application number in your comments.
Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider the application. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing. Requests for a public hearing will be granted, unless the District Engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing.
Click here for public notice and graphics