STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: FLORIDA POWER CORPORATION )
CENTRAL FLORIDA-TO-KATHLEEN ) CASE NO. 81-1713TL TRANSMISSION LINE CORRIDOR )
SITE CERTIFICATION APPLICATION ) FINDINGS OF FACT, CONCLUSIONS ) OF LAW AND RECOMMENDED ORDER )
)
RECOMMENDED ORDER
This proceeding was held pursuant to the Transmission Line Siting Act, Sections 403.52 - 403.536, Florida Statutes (1980 Supp.), and Chapter 17-17, Florida Administrative Code, to consider the application of Florida Power Corporation for site certification of a 500 kV transmission line running between Central Florida Substation in Sumter County and the proposed Kathleen Substation in Polk County. This line has been designated a Central Florida-to-Kathleen 500 kV transmission line. Pursuant to proper notice, this certification hearing was held on December 10 and 11, 1981, in Bushnell, Florida, for the purpose of receiving testimony and evidence concerning whether the location and maintenance of the proposed transmission line corridor, and the construction of the transmission lines, will produce minimal adverse effects on the environment and public health, safety, and welfare, and effect a reasonable balance between the need for the facility as a means of providing abundant, low-cost electrical energy, and the environmental impact.
APPEARANCES
The following parties entered appearances at the certification hearing:
Applicant, Florida Power Corporation (FPC);
Florida Department of Environmental Regulation (DER);
Florida Department of Natural Resources (DNR);
Florida Game and Fresh Water Fish Commission (GFWFC);
Florida Department of Veteran and Community Affairs (DVCA);
Florida Department of Transportation (DOT);
Florida Department of Agriculture and Consumer Services, Division of Forestry;
Southwest Florida Water Management District (SWFWMD); and
C. M. Overstreet and B. K. Overstreet, his wife.
Having considered all testimony and evidence properly admitted, having heard argument of counsel, and being otherwise fully apprised herein, the following Findings of Fact, Conclusions of Law, and Recommended Order are entered.
FINDINGS OF FACT
The proposed transmission line corridor is for the purpose of locating a
500 kV transmission line to provide dispersion of the additional power generated at the Crystal River Electric Power Plant when Unit 5 becomes operational in the fourth quarter of 1984. The northern terminus of the corridor is in Sumter County at the Central Florida Substation, located immediately south of State Road 44 in Section 24, Township 19 South, Range 23 East. The southern terminus of the corridor is in Polk County at the proposed Kathleen Substation, to be located north of U.S. Highway 98 in either Section 8 or 17, Township 26 South, Range 23 East. The length of the corridor is approximately 43 miles.
The purpose of the corridor is to provide a 190 foot wide right-of-way for a 500 kV transmission line constructed upon steel lattice guyed V structures and four-legged, self-supporting steel lattice tower structures, with an approximate span between the structures of 1,200 feet.
Pursuant to the requirements of Section 403.537, Florida Statutes (1980 Supp.), the Florida Public Service Commission, by order dated July 21, 1981, concluded that:
The construction of the proposed transmission line will enhance electric system reliability and integrity.
The proposed transmission line will improve the availability of low-cost electric energy within the State of Florida.
The Central Florida Substation and the proposed Kathleen Substation are the appropriate starting and ending points of the transmission line.
The Public Service Commission then determined that the proposed transmission line is needed.
Notice of the final certification hearing was published on October 9, 1981, in the Leesburg Commercial, a daily newspaper published at Leesburg in Lake County, Florida, and on October 11, 1981, in The Ledger, a daily newspaper published at Lakeland in Polk County, Florida.
For the purposes of this Recommended Order, the corridor for which FPC seeks certification will be broken down into three segments -- the North Corridor Segment, the Central Corridor Segment, and the South Corridor Segment. The entire corridor for which FPC seeks certification is depicted on Attachment
1 hereto. The segments are generally described as follows:
The North Corridor Segment begins at the Central Florida Substation and continues to the northeast corner of the Withlacoochee State Forest and is 2,600 feet wide;
The Central Corridor Segment begins at the northeast corner of the Withlacoochee
State Forest and goes to a point which is the southeast corner of Section 8, Township 25 South, Range 23 East, which is generally 2 miles east of State Road 471 and south of the Withlacoochee River; and
The South Corridor Segment begins at the termination of the Central Corridor Segment and continues to the proposed Kathleen Substation north of U.S. Highway 98.
The three segments are described in detail in the application (Applicant's Exhibit No. 22).
Parties to this proceeding agree that the North Corridor Segment and the South Corridor Segment, with certain Conditions of Certification about which the parties also agree, meet the requirements for site certification under the Transmission Line Site Certification Act. However, a dispute exists between the parties with regard to the certification of the Central Corridor Segment as proposed by FPC.
The Applicant, the Department of Agriculture and Consumer Services, Division of Forestry, the Department of Natural Resources, the Florida Department of Transportation and C. M. Overstreet, et ux., argue in favor of the Central Corridor Segment as proposed by FPC. The Department of Environmental Regulation has proposed an alternative alignment to the Central Corridor Segment for which FPC seeks site certification. For purposes of this Recommended Order, this proposal by DER shall be referred to as the "DER Proposed Corridor." The Florida Game and Fresh Water Fish Commission and the Florida Department of Veteran and Community Affairs argue in favor of the DER Proposed Corridor.
The DER Proposed Corridor begins at the northeast corner of the Withlacoochee State Forest and, proceeding in a westerly direction, the corridor parallels the northern boundary of the Withlacoochee State Forest and crosses North Grade Road. After approximately 6 miles (10 kilometers), the corridor crosses SR 471 and the Little Withlacoochee River, enters Hernando County, and turns due south, entering the Withlacoochee State Forest. Proceeding south on the west side of Route 471, the corridor crosses an unnamed dirt road in Section
1 (Hernando County), Richloam Clay Sink Road, and Center Grade Road, enters Pasco County 3 miles (4.8 kilometers) south of the Little Withlacoochee River crossing, and crosses unnamed roads in Section 25 (Pasco County), and exits the State Forest on the north side of Section 36, Township 23 South, Range 22 East. This alignment continues south along the west side of SR 471 to the west southern boundary of the State Forest and crosses SR 471 to the east side at the northwest corner of Section 7, Township 24 South, Range 23, East. It continues south along the east side of SR 471 to the southwest corner of Section 6, Township 25 South, Range 23 East, where it turns east southeasterly to go along the northeasterly side of a straight line connecting the southwest corner of Section 6, Township 25 South, Range 23 East and the northeast corner of Section 17, Township 25 South, Range 23 East where it joins the southern segment. This southeastern diagonal alignment crosses the Withlacoochee River in the vicinity of Trail Ford Bridge and enters Polk County. This corridor is 1,000 feet wide.
The Department of Environmental Regulation has also proposed, as a second alternative to the Central Corridor Segment, deflections of that Central Corridor Segment in the area of Bayroot Slough and Cross Creek Swamp. For the purposes of this Recommended Order this proposal will be referred to as the "DER Preferred Alternate Corridor." The DER Preferred Alternate Corridor is the same
as the Central Corridor Segment proposed by FPC except that the Central Corridor Segment is routed around Bayroot Slough and Cross Creek Swamp as follows:
The Bayroot Slough bypass begins at the northeastern corner of Section 12, Township
23 South, Range 23 East and parallels on the south of a line from that point to the southwest corner at the same section, hence it parallels on the east a line from that point to the northeast corner of Section 24. This bypass corridor is 190 feet wide.
The Cross Creek Swamp bypass begins at the northeast corner of the southeastern quarter of the southeastern quarter of Section 32, Township 24 South, Range 23 East and parallels on the northern side of a southwesterly line from that point to the northeast corner of the southwestern quarter of the southeastern quarter of Section 5, Township 25 South, Range 23 East; and then parallels on the west a due south line to
the northeast corner of the southwest quarter of the southeast quarter of said Section 5 and then parallels on the southern side of a southeasterly line to the southeast corner of Section 5 and joins the FPC preferred corridor. The bypass corridor is 190 feet wide.
The land uses in the North Corridor Segment consist primarily of agricultural uses, improved pasture, orange groves, row crops and some hardwood hammocks. The prevalent land uses in that part of the Central Florida Segment within the Withlacoochee State Forest are timber management and game management. The prevalent land uses within that part of the Central Florida Segment south of the Withlacoochee State Forest are private timber management and cattle operations.
The DER Proposed Corridor and the Central Corridor Segment, south of the Withlacoochee State Forest, are composed of approximately the same types and amounts of wet land and forested areas. The proposed corridor in the Central Corridor Segment crosses two large wetland systems, Cross Creek Swamp and Bayroot Slough.
The entire corridor proposed by the Applicant contains approximately 1,100 acres of cypress wetland. Altering the FPC corridor in the manner suggested by DER in the DER Proposed Corridor would increase the cypress wetland acreage encompassed by the corridor to 1,300 acres. A similar comparison of the two corridors with regard to fresh water marsh indicates that the DER Proposed Corridor would reduce the acreage of fresh water marsh encompassed by the corridor from 800 acres in the FPC corridor to 600 acres. Both corridors contain similar amounts of fresh water swamp.
There are three large wetland systems in the FPC Proposed Corridor. They are Bayroot Slough, Devils Creek Swamp, and Cross Creek Swamp. Bayroot Slough is approximately 3,600 acres in area, Devils Creek Swamp is 8,800 acres in area and Cross Creek Swamp, 1,145 acres in area. The Applicant proposes to build an access/maintenance road completely through Devils Creek Swamp on the eastern most 20 feet of its right-of-way. This access/maintenance road would be
used as a partial base for a levee proposed to be constructed in the area by the Southwest Florida Water Management District. This access/maintenance road would require the filling of approximately 9 acres, or one-tenth of one percent, of Devils Creek Swamp. In Bayroot Slough and Cross Creek Swamp, as well as all other major wetland areas, with the exception of Devils Creek Swamp, the Applicant proposes to use keyhold fills for the placement of its towers and to leave the span between towers open with no placement of fill. These construction techniques are designed to permit sheet flow to continue in a near natural state, thus minimizing adverse impact on those wetland areas. In Bayroot Slough, approximately six acres, or less than two-tenths of one percent, are proposed to be filled in connection with construction of the subject line.
In Cross Creek Swamp, approximately four acres, or less than four-tenths of one percent of the total swamp area, will be filled for the construction of an access/maintenance road.
The DER Proposed Corridor would require approximately four additional miles of transmission line than would the corridor proposed by FPC. That would increase the cost of construction of the transmission line from approximately
$23,174,000.00 to $25,824,000.00 Thus, the DER Proposed Corridor would cost
$2,650,000.00 more to construct than would the corridor proposed by the Applicant. The DER Preferred Alternate Corridor, which contains deflections around Bayroot Slough and Cross Creek Swamp, would require approximately .87 miles more transmission line than would the FPC Proposed Corridor and because of that additional length and the number of turning angles necessary,, would cost approximately $1,344,000.00 more to construct than would the corridor as proposed by FPC.
The wetland systems in the region which contain Bayroot Slough, Devils Creek Swamp and Cross Creek Swamp are interrelated with regard to wildlife.
This region is approximately 25,000 acres in size. Approximately 96 acres would be cleared and 19 acres filled with the construction of a transmission line along the corridor proposed by the Applicant.
The right-of-way required for the proposed 500 kV transmission line will measure 190 feet in width. The transmission line will consist of one single circuit 500 kV line. The basic structure type selected for the proposed transmission line is a steel lattice guyed V. This structure will be used to support the conductors on straight portions of the line. At angles in the transmission line, the conductors will be supported by a four-legged, self- supporting steel lattice tower. These angle structures are significantly more expensive than the steel lattice guyed V structures. The structures will be constructed of steel angle sections and will be galvanized. The guy wires for the guyed V structure will be either aluminum coated steel cable or an aluminum cable with an approximate diameter of 1.0 to 2.0 inches. A four-legged self- supporting steel lattice structure may be used on some straight portions of the transmission line where required, due to soil conditions, clearances, or other engineering or environmental considerations. The structures will support a single three-phase alternating current, 500,000 volt circuit. Three conductors will be included in each phase, resulting in a total of nine conductors for the circuit. The structure also supports two overhead ground wires which protect the circuit from lightning strikes. The conductor will be supported in the structure by insulator and hardware assemblies. A typical foundation for the guyed V structure will be a cast-in-place reinforced concrete foundation. Guy wires will be attached. The angle structure will be supported on cast-in-place reinforced concrete cylinder foundations. The structures will be electrically grounded. The minimum conductor to ground clearance will be 37 feet at 120 degrees Fahrenheit. A typical span between structures is 1,200 feet. The
transmission line will be designed to meet or exceed the requirements of the National Electric Safety Code, 1973 and 1981 Editions.
Construction of the transmission line will be done in three phases. The first phase will consist of clearing the right-of-way and access/maintenance road construction. The second phase will consist of construction of the towers, and the third phase will consist of the actual stringing of the conductors.
Because of the very small amount of the total aquifer recharge area proposed to be filled by the Applicant, there will be no significant adverse impact to aquifer recharge capabilities because of the construction of the transmission line.
If constructed with an adequate amount of culverting, the access/maintenance roads proposed to be constructed by the Applicant will not significantly affect the surface regime in the areas within the FPC Proposed Corridor.
Outside of the 190 foot transmission line right-of-way there will be essentially no change in-existing vegetation. Within the 190 foot right-of-way, only the inside 150 feet will be cleared with the outer 20 feet on each side being cleared only of "danger" trees; that is, trees that might fall on to the line because they are diseased, dead or leaning toward the line.
Benthic organisms (microscopic, microinvertebrates, which are aquatic organisms on the lower levels of the food chain) could be adversely impacted if the wetland they inhabit is relatively small compared to the amount of fill required in that wetland for the construction activities associated with the transmission line. If the wetland is relatively large, however, there will be no discernible impact on the standing crop of benthic organisms because they can migrate to other portions of the wetland which are not filled. The DER Proposed Corridor has a greater number of relatively small wetland areas than does the FPC Proposed Corridor.
No evidence was presented to establish any adverse impact by construction of a transmission line to upland wildlife habitat or upland wildlife species with the exception of the American wood stork. Although the evidence did establish that construction of a transmission line through wetland wildlife habitat could adversely affect some wildlife species within that habitat, the evidence did not establish that the extent of such an impact on any species would be significant in either the FPC Proposed Corridor, the DER Proposed Corridor or the DER Preferred Alternate Corridor.
Witnesses for the Department of Environmental Regulation and the Florida Game and Fresh Water Fish Commission expressed a concern that placement of a transmission line in the FPC Proposed Corridor will allow increased human access to the large wetland areas within that corridor. The evidence considered overall, however, does not establish that placement of a transmission line in the FPC Proposed Corridor" will in fact result in any significant increased human access to the large wetland areas within that corridor or that such access per se would result in some significant adverse environmental impact.
In order to attenuate potential flood damage along the Withlacoochee River, the Southwest Florida Water Management District proposes the construction of a levee to capture and hold 25-year and greater storm events in head-water areas of the Withlacoochee River. This is an ongoing project of SWFWMD which, at best, is several years from construction. In the area of Devils Creek Swamp,
the Central Corridor Segment proposed by the Applicant would co-locate the transmission line with the SWFWMD proposed levee, thus minimizing the amount of fill to be placed in that area by the two projects and minimizing the adverse impact of the wetland system by the transmission line. Should such co-location occur, it would have the minimizing effect outlined above. However, because of the prospective nature of the SWFWMD project, the ultimate co-location of the transmission line and the SWFWMD levee is too speculative to assign much weight to its significance.
Should a transmission line be placed adjacent to Highway 471 as proposed as an alternative by the Department of Environmental Regulation, some of that transmission line would cross property which is intended for residential development by its owners.
The Florida Department of Agriculture and Consumer Affairs, Division of Forestry, has indicated its hope that the alignment of the transmission corridor as proposed by the Applicant in the area of the Withlacoochee State Forest would provide a fire break beneficial to the Division for forest management purposes.
There are three endangered species to which special attention should be paid with regard to the construction of a transmission line and associated faciliti es. These are the scrub jay, the red-cockaded woodpecker, and the wood stork.
The scrub jay is found in vegetation typically less than 25 feet tall so that except for tower placement, scrub jay habitat will be essentially unaffected. The Applicant has agreed to a Condition of Certification to further protect the scrub jay and its habitat by avoiding colonies where found or by leaving the oak scrub in place under the wires.
The red-cockaded woodpecker nests and roosts in mature and over-mature pines. Such trees may occur within the proposed corridor. To protect colonies that may exist, a survey needs to be performed prior to final right-of-way selection and if a colony is found, a right-of-way should be chosen to avoid that colony if at all possible. It could be very costly to divert the transmission line around such a colony by angles in the line.
None of the proposed corridors cross a known wood stork rookery. However, a former rookery exists at Clay Sink wading bird site and will probably again become a rookery in the future when favorable conditions again exist. The FPC Proposed Corridor is more than a mile from any known wood stork rookery which should eliminate any significant adverse impact on such a site.
A 500 kV transmission line is an extra high voltage line. The highest electrical field strength directly underneath the proposed Central Florida-to- Kathleen 500 kV transmission line at ground level will be less than 10,000 volts per meter, and the field strength will diminish with distance from the line.
The magnetic field associated with the proposed transmission line will be less than 0.5 gauss. Testimony and evidence establishes that the electric and magnetic field forces encountered in the vicinity of the transmission line at ground level will have essentially no biological effect and will be no stronger than similar forces encountered in the normal course of modern daily life.
Because of the size of the conductors to be used on the proposed transmission line, the ozone produced by that line will be negligible and will be well below the maximum ozone concentration level (0.12 ppm) recommended by the United States Environmental Protection Agency. During fair weather, the line will be virtually silent. During wet weather, when the conductors are wet, the noise level will be approximately 38 dBA at the edge of the right-of-way. This is a low noise level. At locations near the edge of the right-of-way, some interference with the reception of AM radio signals will experienced, particularly during wet conductor conditions. No interference to reception of FM radio broadcasts is expected from the proposed transmission line at any time. Television reception may be affected similarly-to that of AM radio signals. No hazardous induced currents are expected to occur in structures or vehicles beneath the line.
Except as otherwise noticed in the Findings of Fact herein, the testimony and evidence in this cause establishes that the proposed transmission line, if constructed along a right-of-way in the corridor as proposed by the Applicant, pursuant to the Conditions of Certification, would have no significant adverse effect on the environment, public health, safety or welfare. Similarly, neither the DER Proposed Corridor nor the DER preferred Alternate Corridor would have any significant adverse effect on the environment, public health safety or welfare. The evidence does not establish that the two alternative corridors proposed by DER would have an appreciably reduced effect on the environment, public health, safety or welfare. The evidence does establish, as set forth in Paragraph 13 above, that the two DER alternatives would be significantly more expensive to construct than would the FPC proposed corridor.
The corridor as proposed by FPC and depicted on Appendix 1 is 2,600 feet wide from its starting point at the existing Central Florida Substation to the northeast corner of Section 1, Township 23 South, Range 23 East, also the northeast corner of the Withlacoochee State Forest. At that point, the corridor narrows to 1,000 feet and continues to proceed southerly immediately west of the Sumter/Lake County line. At a point identified as the northeast corner of Section 1, Township 24 South, Range 23 East, the corridor narrows to 500 feet and proceeds in a southwesterly direction with 250 feet-on either side of a line running from the northeast corner of Section 1, Township 24 South, Range 23 East, to the southwest corner of Section 4, Township 24 South, Range 23 East.
At a point identified as the southwest corner of Section 4, Township 24 South, Range 23 East, the corridor turns due south, expands to 1,020 feet with the eastern 20 feet inside the SWFWMD west property line, and proceeds directly south paralleling the SWFWMD proposed levee for approximately one and one-half miles through "Devils Creek Swamp" to a point where the transmission line corridor end the SF4D proposed levee diverge. The corridor narrows to 1,000 feet and proceeds directly south immediately west of the SWFWMD west property line to the proposed Kathleen Substation site.
CONCLUSIONS OF LAW
This proceeding was held pursuant to the Transmission Line Siting Act, Sections 403.52 - 403.536, Florida Statutes (1980 Supp.), and Chapter 17-17, Florida Administrative Code.
Notice in accordance with Chapter 403 and Chapter 120, Florida Statutes, and Chapter 17-17, Florida Administrative Code, has been given to all persons and parties entitled thereto, as well as to the general public.
The purpose of this site certification hearing was to receive testimony and evidence concerning whether the location and maintenance of the transmission line corridor and the construction of the transmission lines with pertinent maintenance, will produce minimal adverse effects on the environment and public health, safety and welfare, and to fully balance the need for transmission lines with the broad interest of the public in order to effect a reasonable balance between the need for the facility as a means of providing abundant low-cost electrical energy, and the environmental impact resulting from the construction of the line and the location and maintenance of the corridor.
The record of this hearing consists of all pleadings and papers filed herein, including the site certification application as amended, the transcript of all hearings, all orders entered by the Hearing Officer, and all evidence and exhibits properly admitted to the record.
Section 403.526(6), Florida Statutes (1980 Supp.), requires the Florida Game and Fresh Water Fish Commission to prepare a report as to the impact of the proposed transmission line and corridor on fish and wildlife resources. That report was prepared and has been admitted into evidence in this proceeding.
Section 403.526(3), Florida Statutes (1980 Supp.), requires that the Florida Department of Natural Resources prepare a report as to the impact of each proposed transmission line or corridor on matters within its jurisdiction. Such a report was timely made, submitted and introduced into evidence. That report is included in the Department of Environmental Regulation's report.
The Southwest Florida Water Management District is required by Section 403.526(4), Florida Statutes (1980 Supp.), to submit a report with regard to the impact on water resources of the proposed corridor. That water management district has timely submitted such a report, and it is included in the Department of Environmental Regulation's report.
The report of the Department of Veteran and Community Affairs required by Section 403.526(5), Florida Statutes (1980 Supp.), as to the impact of the proposed transmission line or corridor on land use and other matters within its jurisdiction was timely made, submitted and introduced into evidence. That report is included in the Department of Environmental Regulation1s report.
The report of the Department of Environmental Regulation required by Section 403.526(2), Florida Statutes (1980 Supp.), as to the impact of the proposed transmission line or corridor as it relates to matters within the Department1s jurisdiction was timely made, submitted and introduced into evidence.
Need for the subject transmission line has been established by order of the public Service Commission pursuant to Section 403.537, Florida Statutes (1980 Supp.)
The Conditions of Certification proposed by the Department of Environmental Regulation and attached hereto as Attachment II have been agreed to by the Applicant with one exception. At the behest of the Florida Game and Fresh Water Fish Commission, a Condition of Certification with regard to red- cockaded woodpeckers has been proposed as follows:
Prior to ROW siting, all sandhills and
flat-woods in the corridor shall be surveyed
for the possible occurrence of red-cockaded woodpeckers and colony trees. If woodpeckers or such trees are found, the permittee shall notify the Florida Game and Fresh Water Fish Commission and the ROW shall be routed around the woodpecker colony.
Because of the significantly increased cost of constructing a transmission line that contains turning angles versus a straight line, it is concluded that such a Condition of Certification is not reasonable. Rather, it would be reasonable to include a Condition of Certification with regard to red- cockaded woodpeckers as follows:
Prior to right-of-way siting, all sandhills and flat woods in the corridor shall be surveyed for the possible occurrence of
red-cockaded woodpeckers and colony trees. If woodpeckers or such trees are found, the permittee shall notify the Florida Game and Fresh Water Fish Commission and in cooperation with that Commission attempt to site the right-of-way so that the identified red-cockaded woodpecker colony shall be avoided if such siting can occur without
the addition of otherwise unnecessary turning angles in the transmission line. In any event, construction of the transmission line will be conducted in such a manner as to preserve, if possible, red-cockaded woodpecker colony trees when such are identified within the
right-of-way selected.
The Conditions of Certification proposed by the Department of Environmental Regulation and agreed to by the Applicant are reasonable.
The location and maintenance of the proposed transmission line corridor, and the construction of the subject transmission lines as described by the evidence admitted to the record, if made subject to the Conditions of Certification attached, will have minimal adverse effects on the environment and public health, safety and welfare.
It is noted that, pursuant to the requirements of Section 403.531(3), Florida Statutes (1980 Supp.) this certification proceeding does not preempt the jurisdiction of the Board of Trustees of the Internal Improvement Trust Fund or eliminate the need for any license, easement or other interest in State lands which would ordinarily be sought from the Trustees. Further, as provided by the above statute, it is proper to condition this certification upon the issuance by the Trustees of the appropriate interest in State land as may be required to effect construction of the proposed lines.
All proposed Findings of Fact and Conclusions Of Law not embodied herein have been considered by the Hearing Officer and rejected as either irrelevant, unsupported by competent substantial evidence, or otherwise not necessary to the determination of this cause.
RECOMMENDED ORDER
Having reviewed the record of this proceeding, and based upon the Findings of Fact and Conclusions of Law set forth herein, it is
RECOMMENDED that certification, pursuant to the Transmission Line Siting Act, Chapter 403, Florida Statutes (1980 Supp.), be GRANTED to the Florida Power Corporation for location of the transmission line corridor, the construction of the transmission lines, and the maintenance of the transmission line and right- of-way as proposed in the application as amended, and the evidence admitted to the record.
It it further RECOMMENDED that such certification be made subject to the Conditions of Certification attached hereto and the further condition pursuant to the requirement in Section 403.531(3), Florida Statutes (1980 Supp.), and the Florida Power Corporation shall be required to seek any necessary interests in State lands, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund, from the Board prior to engaging in any activity on or affecting such lands.
ENTERED this 15th day of June, 1982, in Tallahassee, Florida.
CHRIS H. BENTLEY, Director
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1982.
COPIES FURNISHED:
Russell Blain, Esquire Southwest Florida Water
Management District Post Office Box 399 Tampa, Florida 33601
John Williams, Esquire Department of Natural Resources 3300 Commonwealth Boulevard
Tallahassee, Florida 32303
C. Laurence Keesey, Esquire Department of Veteran and
Community Affairs
Room 530 Carlton Building Tallahassee, Florida 32301
Ken Gilleland, Esquire Game and Freshwater Fish
Commission Bryant Building
Tallahassee, Florida 32301
Paul Sexton, Esquire
Florida Public Service Commission Fletcher Building
101 East Gaines Street Tallahassee, Florida 32301
Robert Chastain, Esquire Department of Agriculture
and Consumer Services Mayo Building
Tallahassee, Florida 32301
Irwin Cowie
Post Office Box 60 Bartow, Florida 33830
Scott Knox, Esquire 4025 Moon Lake Road
New Port Richey, Florida 33552
Robert Bruce Snow, Esquire
112 Orange Street Brooksville, Florida 33512
Randall Thornton Post Office Box 58
Lake Panasoffkee, Florida 33538
Paul A. Straske, Esquire Suite 1005, Exchange National
Bank Building Tampa, Florida 33602
Louis F. Hubener, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road
Twin Towers Office Building Tallahassee, Florida 32301
Carlos Alvarez, Esquire
Hopping, Boyd, Green and Sams, P.A. Post Office Box 6526
Tallahassee, Florida 32301
ATTACHMENT I*
NOTE: ATTACHMENT I is Proposed Corridor Central Florida- Kathleen 500 KV Transmission Line Florida Power Corporation maps which are not a part of this ACCESS document but are available for review in the Division's Clerk's Office.
ATTACHMENT II GENERAL CONDITIONS OF CERTIFICATION
Definitions
The meaning of terms used herein shall be governed by the definitions contained in Chapters 403, 373 and 253, Florida Statutes, and any regulation adopted pursuant thereto and the statutes and regulations of any party. In the event of any dispute over the meaning of a term used in these general or special conditions which is not defined in such statutes or regulations, such dispute shall be resolved by reference to the most relevant definitions contained in any other state or federal statute or regulation or, in the alternative, by the use of the commonly accepted meaning as determined by law.
The term "keyhole fill" as used herein shall mean the leaving of a span no less than 1,150 feet between two towers without an access/maintenance road.
The term "ROW" means the transmission line right-of-way to be selected by the permittee within the corridor in accordance with the conditions of certification.
The term "DER" means the Florida Department of Environmental Regulation.
Performance Criteria
Certification, including conditions of certification, is predicated upon design and performance criteria indicated in the application. Thus, conformance to those criteria, unless specifically amended, modified, or as DER and the parties are otherwise notified, is binding upon the permittee in the preparation, construction and maintenance of the certified project. In those instances where a conflict occurs between the application's design criteria and the conditions of certification, the conditions shall prevail.
Property Rights
Except as otherwise provided herein and under the Transmission Line Siting Act and rules thereunder, the issuance of this certification does not convey any property rights in either real or personal property, tangible or intangible, nor any exclusive privileges, nor does it authorize any injury to public or private property or any invasion of personal rights nor any infringement of federal, state or local laws or regulations. The permittee must obtain title, lease or right of use from the State of Florida to any sovereign lands submerged or otherwise, occupied by the ROW for the transmission line and structures.
Adverse Impact
The permittee shall take all reasonable steps to minimize any adverse impact resulting from the construction, operation and maintenance of the transmission line in complying with any limitation specified in this certification.
Right of Entry
The permittee shall allow the Secretary of DER and/or authorized representatives, upon the presentation of credentials:
To enter upon the ROW where any construction or maintenance is being undertaken or upon the permittee's premises
in which records are required to be kept under the terms and conditions of this permit; and
To have access to and copy all records required to be kept under the conditions of this certification.
Civil and Criminal Liability
This certification does not relieve the permittee from civil or criminal responsibility or liability for noncompliance with any conditions of this certification, applicable rules or regulations in accordance with Chapter 403, F.S.
Severability
The provisions of this certification are severable, and if any provision of this certification or the application of any provision of this certification to any circumstances is held invalid, the application of such provision to other circumstances and the remainder of the certification shall not be affected thereby.
Revocation or Suspension
This certification may be suspended or revoked pursuant to Section 403.532,
F.S.
Compliance
Except as otherwise provided herein, construction and maintenance shall comply with the applicable nonprocedural rules and regulations of DER and those agencies specified in 17-17.54(2)(a) and (b), F.A.C., which would otherwise be applicable to the construction and maintenance of the transmission line, access roads and ROW.
Right-of-Way Delineation and Compliance Verification
Aerial photographs of at least 1:24000 scale shall be submitted to DER delineating the ROW route acquired. These photographs shall be submitted prior to commencement of construction on the various segments of the line; it is recommended that this information be submitted in segments rather than waiting until the entire ROW is acquired. DER and any other party which requests to do so shall have 30 days from receipt by DER to review the photographs and to call any apparent conflicts with the requirements of these conditions to the
permittee's attention. If DER or any party has reason to believe that the construction of the transmission line and access roads within the permittee's designated ROW cannot be accomplished in compliance with applicable statutes and rules of DER or of the party, the permittee shall be so-notified in writing.
Failure of such a notice to be served on permittee within 30 days from filing the various segments in the aerial photographs with DER constitutes approval for construction within the designated ROW or the various segments of ROW submitted for approval.
The acquisition of a particular ROW or the expenditure of funds toward acquisition of a particular ROW prior to DER's review will be at the permittee's risk, and DER or any other party is not estopped from disapproving the construction of the transmission line or access road within the ROW.
Other Construction Activities
Existing access roads shall be used wherever practicable rather than constructing new roads.
No borrow ponds shall be constructed in hardwood hammocks.
The outer 20 feet of the ROW shall not be clear-cut but rather selectively cleared of danger trees. Danger trees are tall dead or diseased trees, or trees leaning toward the line which would contact the line by falling.
Compliance with the most recent version of the National Electric Safety Code adopted by the Public Service Commission is required.
Open burning in connection with land clearing shall be in accordance with the applicable rules of the Department of Agriculture and Consumer Services.
Maintenance
If chemicals or herbicides are to be used for vegetation control, the name, type, proposed use, locations and manner of application shall be in accordance with state and federal regulations. None shall be applied to waters of the State.
When maintenance trimming is necessary
the outer 20 feet shall be selectively cleared of danger trees and not clear-cut.
Archaeological Sites
Any archaeological sites discovered during construction of the transmission lines shall be disturbed as little as possible and such discovery shall be communicated to the Department of State, Division of Archives, History and Record Management (DAHRM). Potentially affected areas crossed by the ROW deemed
likely to contain archaeological or historic sites as identified by DAHRM shall be investigated by pedestrian survey, and if a significant site is located, the site shall be protected and reported to DAHRM.
Road Crossings
For all locations where the transmission line will cross state highways, the permittee shall submit materials pursuant to the Department of Transportation's (DOT) "Utility Accommodation Guide" to DOT's district office within 30 days prior to starting construction for a particular crossing. The permittee shall comply with the criteria in the Utility Accommodation Guide and with all applicable regulations pertaining to roadway crossings by transmission lines, including these conditions of certification, unless the DOT and the permittee agree to change those requirements for good cause shown.
All crossings of state highways shall be as nearly away crossings by transmission lines.
Modifications of Conditions
Notwithstanding Section XV.B. herein, the DER Secretary is delegated the authority pursuant to 403.5315(1), F.S., to modify conditions of certification relating to:
A modification of the project that would not cause any significant adverse environmental impact.
Modifications necessary to meet licensing conditions or requirements imposed on the permittee by any federal regulatory agency. The permittee shall notify DER at least thirty
(30) days prior to the issuance of the federal license that would require such a modification.
A reconstruction of the ROW or transmission line necessary to avoid or mitigate an emergency involving the loss of human life or property resulting from any natural or man-made cause, including hurricane, tornado, fire, flood, explosion, wind storm or other calamitous accident when new right-of-way or access facilities are necessary.
Unless objected to by a party to these proceedings
20 days after notification by DER or the permittee, the DER Secretary is delegated the authority pursuant to 403.5315(1), F.S., to modify these conditions
of certification. To comply with applicable
non-procedural regulations of agencies, the permittee
may be required to use different construction or maintenance techniques other than those represented in the application.
Emergency Reporting
Emergency replacement of previously existing ROW or transmission lines shall not be considered a modification pursuant to 403.5315, F.S. A verbal report of the emergency shall be made to DER as soon as possible.
Within fourteen (14) calendar days after correction of
the emergency which would require the permittee to perform an activity not in accordance with the conditions
of certification, a report to DER shall be made outlining the details of the emergency and the steps taken for its temporary relief. The relief shall be a written description of all of the work performed and shall set forth any pollution control measures or mitigative measures which were utilized or are being utilized to prevent pollution of waters, harm to sensitive areas or alteration of archaeological or historical resources.
SPECIAL CONDITIONS OF CERTIFICATION
These special conditions are predicated upon the particular facts and issues in this transmission line corridor certification proceeding and as such are not expected to have applicability to future certifications.
Certified Corridor
The corridor for which certification is granted is depicted in Attachment
I.
Right-of-Way Route Selection
Prior to right-of-way siting, all sand hills and flat woods in the corridor shall be surveyed for the possible occurrence of red-cockaded woodpeckers and colony trees. If woodpeckers or such trees are found, the permittee shall notify the Florida Game and Fresh Water Fish Commission and in cooperation with that Commission attempt to site the flight way so that the identified red-cockaded woodpecker colony shall be avoided if such siting can occur without the addition of otherwise unnecessary turning angles in the transmission line. In any event, construction of the transmission line will be conducted in such a manner as to preserve, if possible, red cockaded woodpecker colony trees when such are identified within the right-of-way selected.
The ROW shall be located along the county line in the vicinity of SR 48 such that minimal disturbance is made to the R-l-M zoning area (Mobile Home Residential) and C-1 zoning area (Neighborhood Commercial) located thereabouts.
The ROW shall be located parallel and immediately contiguous to the west side of the existing Central Florida to Windernere transmission line in the area delineated in the map attached as Figure 1 in Appendix III.
The ROW shall be located along the county line south of SR 50 in Section 24, Township 225, Range 23E, to avoid the hardwood hammock.
Activities in Submerged and Transition Zones of Waters of the State
Swales shall not be used if possible. However, where swales are used, swale plugs shall be provided between low areas to prevent drainage.
Turbidity Control. Turbidity control measures, including but not limited to, hay bales, sodding, mulching and seeding, or turbidity screens, shall be employed as needed to prevent violation of water quality standards.
Vegetation Removal/Planting
Where the transmission line crosses water courses (rivers, creeks, sloughs, etc., in which water usually flows in a defined bed or channel), existing vegetation not in excess of 25 feet in height shall be left undisturbed within 100 feet of the ordinary high water mark of the bed or channel, but in any case it shall not exceed more than 150 feet from either side of the center line of the open water. If it is necessary to remove trees, the root mat shall be left undisturbed.
The slope of the maintenance/access roads built on new fill in waters of the State shall be seeded or planted immediately after construction with endemic or benign non-endemic species to prevent potential erosion and subsequent water quality degradation.
Site-Specific Dredge/Fill Information and Compliance Verification
For all construction activities in submerged and transition zones of waters of the State as defined in Subsection 17-4.02(17), F.A.C., the permittee shall file a copy of the Dredge/Fill Joint Application, Department of Army/Florida Department of Environmental Regulation for Activities in Waters of the State, SAJ Form 983 (July 21, 1977) with the DER, Bureau of Permitting, Power Plant Siting Section. The application form shall also be forwarded by DER to the Corps of Engineers, identifying that certification has already been granted by the State. Within 45 days of filing of complete information, DER shall determine whether or not a probable violation of the conditions of certification would occur if the plans were executed as filed. If it is determined that a probable violation would occur, the permittee shall be notified and the probable violation specified with particularity as well as possible corrective measures suggested. Failure to notify the permittee in writing within 45 days shall constitute a compliance verification. Since certification is the only form of permit required by the State, it is understood that the permittee and DER shall strive to resolve such matters by mutual agreement. If mutual agreement cannot be reached, then the matter shall be referred to the Division of Administrative Hearings (DOAH) for disposition in accordance with the provisions of Chapter 120, F.S. The hearing pursuant to Section 120.57, F.S., shall be held within 30 days after its referral to DOAH. The Hearing Officer shall issue the decision
15 days after termination of such hearing. Referral of an issue to DOAH pursuant to this condition shall neither affect other conditions, nor shall it operate as a stay on any other portion of the transmission line.
Water Quality Certifications
Any necessary water quality certification which must be provided to the Corps of Engineers and the permittee by DER shall be made at the time of a finding of compliance for specific work at specific locations.
Areas for Further Consideration
Those areas delineated in red on the Appendix III maps are areas where DER finds that construction in certain Dredge/Fill Jurisdiction Areas is acceptable, but only with conditions. More detailed review as provided by Special Condition
III.D. will be necessary before a final determination can be made. In general, however, it will be DER's policy, except in the Devils Creek Swamp area, to only approve keyhole fills rather than continuous access roads which bisect the areas delineated in red on the Appendix III maps. In the Devils Creek Swamp area the permittee will build a continuous access/maintenance road in the eastern most 20 feet of the ROW. If, prior to construction of the access/maintenance road, the SWFWMD Board votes to drop its plan to build a levee in the Devils Creek Swamp area, the permittee shall construct keyhole fills in Devils Creek Swamp.
Access/Maintenance Roads
Access/maintenance roads shall not be constructed in waters of the State where DER has dredge and fill jurisdiction pursuant to Chapter 17-4, F.A.C., except in the following circumstances:
Where the permittee would not have access to other portions of the ROW adjacent to such waters of the State, except by constructing roads or acquiring easements outside of the ROW; provided that the cost of constructing the access/maintenance roads in the waters of the State does not exceed the cost of obtaining any necessary easements and construction of roads outside of the permittee's ROW. An affidavit of the cost comparison shall be submitted with the dredge/fill informational filing required by Special Condition III.D. in these instances. OR
Where bypassing the waters of the State would require the permittee to travel a distance outside of its ROW in excess of three miles to return to the next tower structure. A map indicating the route to be traveled and the distance shall be submitted with the dredge/fill informational filing required by Special Condition III.D. in these instances. OR
Where more environmental harm would result from routing the access/maintenance road outside the waters of the State than in the waters of the State. Justification for this decision shall be submitted with the dredge/fill ,informational filing required by Special Condition III.D. in these instances. OR
Where the environmental benefits to be gained by not building the access/maintenance roads in waters of the State are outweighed by other land use factors. Justification for this decision shall be submitted with the dredge/ fill informational filing required by Special Condition III.D. in these instances.
Where access/maintenance roads are constructed in waters of the State, the permittee shall comply with the following conditions:
Access/maintenance roads shall be constructed and maintained to provide reasonable assurances of compliance with water quality standards; turbidity control measures, including but not limited to, hay bales, sodding, mulching and
seeding, shall be employed as necessary to prevent violations of water quality standards;
Access/maintenance roads shall be constructed and maintained to provide reasonable assurances for the passage of flood waters equal in volume to the l- in-25 year storm and that post-construction flow volumes will not vary significantly from pre-construction flow volumes;
The slope of access/maintenance roads constructed in waters of the State shall be planted with vegetation to prevent potential erosion and subsequent water quality degradation.
Scrub Jay Habitat,
Prior to final ROW clearing, the scrub oak thickets near the intersection of SR 469 and SR 50 and those occurring within the broad area depicted as possible locations for the Kathleen Substation, with the exception of the substation itself, shall be located on the best available aerial photographs with the aid of soils maps which depict soils types which support scrub jay habitat. These scrub oak thickets shall be then surveyed for the occurrence of scrub jays. Where the scrub jays are found, the oak under story shorter than 25 feet in height beneath the transmission line shall be left intact with the exception of a 20-foot wide access/maintenance road pathway.
Activities Within Works of the Southwest Florida Water Management District
For all construction activity in works of the District, the permittee shall file, at least forty-five (45) days prior to commencement of construction in the works of the District with the Southwest Florida Water Management District (SWFWMD) in Brooksville, Florida, a copy of the Dredge/Fill Joint Application, Department of Army/Florida Department of Environmental Regulation, for Activities in the Waters of the State, SAJ Form 983 (July 21, 1977) or, at the permittee's option, the following information:
A center line profile of existing topographic features along proposed access road(s).
Preliminary design of proposed access road(s) with elevation marked.
Typical cross-section of access road(s).
Cross-section of each stream or creek at those points to be crossed by access road(s) or other facilities.
Specifications showing size and type of water control structure (pipe, culvert, etc.) to be placed within or on the works of the District, with proposed flow line elevation marked.
Specifications showing design capacity of all water control structures to be employed.
Specifications showing location and type of each transmission tower and access road(s) to be constructed within or on the works of the District.
If the permittee chooses to submit a DER/Corps dredge/fill form, the specific information detailed in this paragraph must be incorporated with the DER/Corps dredge/fill form. SWFWMD and the permittee may jointly agree to vary the informational requirements herein for good cause shown.
"Construction activities in works of the District" means the placement of a structure, e.g. access/maintenance roads, tower structures, culverts and fill materials in a works of the District. Construction activity shall not include any activity exempted from Chapter 40 D-6, F.A.C., by 40 D-6.051(3), F.A.C.
"Works of the District" means the following works of the SWFWMD to the ordinary high-water mark:
Devils Creek Swamp, III Sections 8 and 17, Township 24 South, Range 23 East, as shown on the U.S.G.S. Quadrangle Map-Clay Sink, Florida (1960)
Cross Creek Swamp in Section 5, Township 25 South, Range 23 East, and Section 32, Township 24 South, Range 23 East, as shown on U.S.G.S. Quadrangle Map-Branchborough, Florida (1960).
Cross Creek in Section 8, Township 25 South, Range 23 East, as shown on
U.S.G.S. Quadrangle Map-Branchborough, Florida (1960).
Withlacoochee River in Section 8, Township 25 South, Range 23 East, as shown on U.S.G.S. Quadrangle Map-Branchborough, Florida (1960)
Colt Creek in Sections 20 and 17, Township 25 South, Range 23 East, as shown on U.S.G.S. Quadrangle Map-Branchborough, Florida (1960)
Gator Creek in Section 32, Township 25 South, Range 23 East, as shown on U.S.G.S. Quadrangle Map-Branchborough, Florida (1960)
Within forty-five (45) days of filing all the information required herein, SWFWMD shall determine, and notify the permittee in writing, whether the permittee has provided reasonable assurances that the conditions of certification would not be violated by the proposed construction activity. If SWFWMD determines that reasonable assurances have not been given, SWFWMD shall notify the permittee in writing of the probable violation specified with particularity, as well as specify corrective measures. Failure to notify the permittee in writing within forty-five (45) days shall constitute compliance verification. Since certification is the only form of permit required by any agency, it is understood that the permittee and the SWFWMD shall strive to resolve such matters by mutual agreement. If mutual agreement cannot be reached, then the matter shall be immediately referred to the Division of Administrative Hearings (DOAH) for disposition in accordance with the provisions of Chapter 120, Florida Statutes. A hearing under 120.57, Florida Statutes, shall be held within thirty (30) days after its referral to DOAH. The Hearing Officer shall issue the decision fifteen (15) days after the termination of such hearing. All exceptions to the' Hearing Officer's order shall' be filed with the Governor and Cabinet within ten (10) days of the issuance of such order. The Governor and Cabinet shall issue a decision within thirty (30) days of the filing of the exception. Construction shall not commence in the works of the districts affected until final agency action. Referral of an issue to DOAH pursuant to this paragraph shall neither affect other conditions nor operate as a stay on any other portion of the transmission line certified.
Where the transmission line crosses the site of the proposed SWFWMD levee in Sections 4 and 5 of Township 24 South, Range 23 East, the permittee shall coordinate construction with SWFWMD. The term "coordinate" shall mean that the permittee will disclose to SWFWMD the construction specifications of the transmission line for the crossing of that part of the levee described above
prior to construction, and that the transmission line will be constructed so that the tower placement, height of the conductors, and other construction or placement of structures within the ROW, will not unreasonably interfere with the construction and operation of the SWFWMD levee. SWFWMD understands that the permittee will construct an overhead 500 kV transmission line over the SWFWMD levee in the area described in this paragraph, and that the term "coordinate" is limited to the placement of any structure within the ROW so A that such structure does not unreasonably interfere with the construction and operation of the SWFD levee. It is agreed that, for the purposes of this condition, the design. height of the SWFWMD levee will not be greater than 108 feet above the National Geodetic Vertical Datum (NGVD).
Other Construction Activities General Condition XI.C. shall not apply to those ROW areas where the ROW is immediately contiguous to the SWFWMD levee.
ATTACHMENT III*
NOTE: ATTACHMENT III contains maps which are not a part of this ACCESS document but are available for review in the Division's Clerk's Office.
| Issue Date | Proceedings |
|---|---|
| Jul. 30, 1982 | Final Order filed. |
| Jun. 15, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 15, 1982 | Agency Final Order | |
| Jun. 15, 1982 | Recommended Order | Recommend granting Petitioner's permit for power lines in at-risk area subject to reasonable conditions. |
