STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA POWER CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 91-2148
)
DEPARTMENT OF ENVIRONMENTAL )
REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on December 2 through 6, 1991, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Frank E. Matthews, Esquire Florida Power Michael P. Petrovich, Esquire Corporation Hopping Boyd Green & Sams
Post Office Box 6526 Tallahassee, Florida 32314
For Respondent: Douglas MacLaughlin, Esquire Department of Office of General Counsel Environmental Department of Environmental Regulation Regulation Twin Towers Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
On December 13, 1989, Florida Power Corporation (FPC) filed a wetland resource permit application with the Florida Department of Environmental Regulation (DER) for a project to construct, operate and maintain a 69 kilovolt (kV) electrical transmission line in Osceola County. The application described the placement of power line poles in jurisdictional wetlands.
On September 28, 1990, DER issued its notice of permit denial, DER File No.
49-173789-4.
The ultimate issue for determination is whether FPC is entitled to the permit. Ancillary issues include the scope of "cumulative impacts" to be considered; the scope of "secondary impacts"; whether alternative sites must be considered; whether FPC's clearing of the right of way constituted dredge and fill activity; and whether mitigation is required, and if so, whether the mitigation offered by the applicant is adequate.
PRELIMINARY STATEMENT
After DER issued its notice of permit denial regarding the proposed project, and after three extensions of time, the Applicant filed a petition with DER on March 22, 1991, requesting a formal administrative hearing. On June 10, 1991, both parties filed a joint motion for continuance due to the Applicant's pursuit of a declaratory judgment action in circuit court regarding DER's statutory authority to regulate clearing activity. The circuit court complaint was dismissed on July 26, 1991, for failure to exhaust administrative remedies.
On July 29, 1991, DER filed a motion to strike the taking claims contained in FPC's petition. After a timely response, an order striking those specific claims from the Applicant's petition was entered on August 16, 1991. On October 28, 1991, the Applicant filed a motion for leave to proffer evidence on the taking issues. Shortly thereafter, on November 15, 1991, the Applicant filed a motion in limine requesting the prohibition of any and all evidence regarding alternative transmission line corridor routes. DER filed responses to the Applicant's motions on November 25, 1990. Included with those responses was a motion to compel production of certain documents relating to FPC's route selection process. By order dated December 2, 1991, the Hearing Officer granted FPC's motion to proffer evidence on taking issues to the extent that such proffer be limited to a description by counsel of the evidence which FPC would have attempted to elicit from the witness were it permitted. In that same order, FPC's motion in limine was denied, and DER's motion to compel production of certain documents regarding FPC's route selection process was granted.
On November 25, 1991, both parties entered into a stipulation modifying the Applicant's permit application by removing the northern four miles of the proposed transmission line from consideration in this proceeding due to its noncontroversial nature. On November 26, 1991, both parties jointly filed a prehearing stipulation.
At the hearing, the Applicant called 14 witnesses: Eugene J. Rasponi, Jr. (accepted as an expert in electrical transmission line planning and design), Robert Klemans, W. Jeffrey Pardue, Charles Duncan, Dr. James C. Nicholas (accepted as an expert in economics, land use, and energy policy), Dr. W. Michael Dennis (accepted as an expert in botany, wetland ecology, and wetland permitting), J. Steve Godley (accepted as an expert in endangered and threatened species, wildlife ecology and wetland resource permitting), John T. Vogel (accepted as an expert in forestry and the impacts of clear cutting), Dr. Miles
Smart (accepted as an expert in water chemistry and limnology), Anthony N. Arcuri (accepted as an expert in wetland ecology and electrical transmission line impacts), Kevin L. Erwin (accepted as an expert in wetland ecology and wetland mitigation), Barry Lenz, (accepted as an expert in biology and wetland permitting), Steven Fox (accepted as an expert in wetland permitting), and Dale Twachtmann (accepted as an expert in wetland permitting). The Applicant also offered numerous exhibits into evidence, 60 of which were admitted.
DER called seven witnesses: Janet Llewellyn (accepted as an expert in wetlands permitting), Barbara Bess (accepted as an expert in wetlands permitting), Donald Medellin (accepted as an expert in dredge and fill permitting with a noted reservation by FPC counsel), Bradley Hartman (accepted as an expert in wildlife management); Stephen Lau (accepted as an expert in wildlife ecology), Dr. Francis Putz (accepted as an expert in forest ecology with a noted reservation by FPC counsel), and Dr. Herbert Kale (accepted as an expert in ornithology). DER also offered numerous exhibits into evidence,
eleven of which were admitted, with rulings on four of the eleven (DER Exhibits 12, 14, 15 and 16) taken under advisement.
Following the hearing, and concurrent with its Proposed Recommended Order, the Applicant filed two motions, one seeking exclusion of DER Exhibit Nos. 4, 12, 13, 14, 15, and 16, and a similar motion to exclude consideration of any and all evidence submitted at hearing regarding alternative routes. The issues raised in these motions are analyzed and are addressed in the conclusions of law.
The parties' proposed findings of fact and conclusions of law were timely filed on January 30, 1992. All proposed findings of fact, conclusions of law and supporting arguments have been considered. A separate appendix attached to this proposed order addresses specifically the findings of fact proposed by the parties.
FINDINGS OF FACT
FPC, whose headquarters are located at 3201 34th Street, South, St. Petersburg, Florida, 33733, is required by Florida Statutes and regulations promulgated by the Florida Public Service Commission (PSC) to provide electric utility service in the vicinity of the proposed transmission line.
DER, 2600 Blair Stone Road, Tallahassee, Florida 32399-2900 is an executive agency directly responsible for prevention of pollution of the air and waters of this State. Pursuant to that obligation, Sections 403.91-403.929, Florida Statutes, and Chapter 17-312, F.A.C., DER regulates proposed dredging and filling activities in waters of the State.
FPC, pursuant to its statutory and regulatory mandate, transmits electricity through 33 counties within the state, providing actual service to customers in 32 counties. FPC's electrical transmission lines range in voltage capacity from 69 kV (69,000 volts) to 500 kV (500,000 volts). Considering other utilities, there are approximately 7,000 miles of 69 kV electrical transmission lines within the state, over 1,855 miles of which are operated and maintained by FPC.
The Project
The electrical transmission line at issue in the instant proceeding will traverse approximately 10 miles. It intercepts two areas of jurisdictional wetlands; however, the main point of contention in the permitting proceeding is the six acres of wetland vegetation which have been cleared in the vicinity of where the transmission line corridor intersects the main crossing of Reedy Creek.
The original application for this project was 14 miles long; however, FPC and DER agreed to modify the application by separating the northern-most four miles of the project and submitting it as a separate application. The northern segment starts at the Intercession City substation and proceeds easterly along an existing transmission line corridor in the right of way of SR 17/92 to Old Tampa Road and then turns south terminating at the Poinciana Industrial Park. The proposed transmission line which is the subject of this proceeding starts from the Poinciana Industrial Park and proceeds south, then crosses Reedy Creek in a northeast to southwest direction and continues south, ultimately terminating at the Poinciana substation.
There are references in the application to a 72 kV line. 72,000 volts is the maximum operating voltage. 69,000 volts is the normal daily load.
Direct dredge and fill impacts associated with the proposed construction include 301 cubic yards of fill, which includes the wooden transmission poles as well as crushed rock backfill at the base of those poles. This fill material would be placed over .00846 acres. This fill amount equates to an area analogous to a 20 foot by 20 foot room.
Initial placement and continued maintenance of the poles and lines require clearing. This enables access by equipment and prevents vegetation from interfering with the lines. Clearing is essential for the safety and reliability of the electrical power distribution system.
The wood electrical transmission line poles will be spaced approximately 300 foot apart in an area of vegetation clearing 60 feet wide. The major jurisdictional area north and south of the Reedy Creek crossing is approximately 4,400 feet long.
The Applicant will, after construction, undertake corridor maintenance on a three to five year cycle. An area will be kept clear 50 foot square around each wooden pole structure along the proposed transmission line. Vegetation will be maintained at ground or water level for 17 feet on either side of the wooden utility poles. The outer 13 feet on each side will be allowed to regenerate except for fast growing trees and other vegetation with the potential to reach 30 feet prior to the next regularly scheduled maintenance period. Fast growing trees within the 13 foot outer area on either side of the corridor will be girdled or treated with herbicides by specific and selective application.
The only herbicides to be used will be those that are EPA approved for use in the State of Florida. All exotic or nuisance target species will be removed from the entire right of way as part of FPC's maintenance program.
The Application Process
FPC submitted a wetland resource permit application for this project on December 6, 1989, received by the DER Central Florida District on December 13, 1989. DER requested additional information on January 12, 1990, and the Applicant submitted responses by letter dated April 20, 1990. On May 18, 1990, DER submitted a second request for additional information, which was responded to by FPC at a meeting with DER Central District staff in Orlando on June 5, 1990, and by a follow-up letter dated June 20, 1990.
Neither of DER's requests for additional information required information relative to alternate routes for the proposed transmission line; however, a letter from DER to FPC dated June 20, 1990 states that mitigation would be required since an alternative route was not presented and impacts could not be reduced any further. The application was deemed complete on June 22, 1990. Subsequently, FPC proposed a preservation mitigation of 1:1 ratio by offering for preservation a 6-acre area of Reedy Creek Swamp near the Intercession City substation. FPC waived DER's 90 day statutory time clock in which it has to act on complete permit applications until October 1, 1990. The DER Central District Office issued a notice of permit denial regarding FPC's project on September 28, 1990.
The maintenance plan described in paragraph 6, above, includes a departure from FPC's past practices. The plan and specifics of the 13-foot border areas were provided to DER during the hearing on December 3, 1991.
Without objection by DER, the hearing proceeded on the application thus modified.
Reedy Creek Swamp and the Project Context
Reedy Creek Swamp is located in Orange, Osceola and Polk Counties. It is the only large mixed wetland forest system in Osceola County and is one of the largest systems in central Florida. It provides valuable forested wetland habitat for numerous plant and animal species.
The proposed dredging and filling activity which is the subject of this application occurs in the South Reedy Creek basin. It is part of the Reedy Creek and its associated floodplains and uplands that drain south-southeast of Interstate-4.
South Reedy Creek basin, as described in the instant proceeding, consists of over 92,000 acres of upland and wetland habitats. Approximately 31,448 acres of contiguous forested wetland are contained within that 92,000 acres. Based on the limited nature of the project's corridor, the six acre disturbance has been correctly characterized as de minimis.
Since the turn of the century the South Reedy Creek basin has been the subject of extensive logging and silviculture impacts through either clearcutting or selective timbering which continues to this day. The basin is also the subject of an ongoing effort by the South Florida Water Management District for land aquisition and management. Approximately 7,000 acres of the basin have been bought or are under plans to purchase for protection.
Commercial and environmental interests command the basin's resources.
Clearing the Way
FPC's clearing of the six acres of forested wetland was accomplished from March 12 through June 7, 1990. Clearing occurred during the processing of the dredge and fill application in order to take advantage of dry conditions and to facilitate bringing the electrical transmission line into service in accordance with FPC's established schedule. All vegetation in the wetland area was removed at ground or water level and the material was then either burned on site or removed to upland locations. Charles Duncan, FPC's chief inspector for transmission line construction, made regular spot investigations of all construction and assured that the hand clearing and low pressure rubber wheeled and tracked vehicles used by FPC did not result in significant soil disturbance.
It is unrefuted that between June and November 1990, well after FPC's clearing was completed, considerable silvicultural activity occurred immediately adjacent to the corridor, both east and west. John Vogel, an expert in forestry and the effects of clearcutting, provided photographic evidence of those silvicultural entities' use of the corridor and identified the adjacent property owner as the party actually responsible for that activity. These facts, and DER employee Don Medellin's tacit admission that what he saw on his June 7, 1990, site inspection clearly could have been accomplished by parties other than FPC, leads to the specific finding that no FPC-initiated dredging and filling has occurred within the corridor. Dredging and filling will occur when the poles are placed.
The evidence submitted by FPC, including rainfall and flow discharge information for the relevant time period, closely corroborate Mr. Duncan's eye
witness accounts that clearing was conducted during a period when the wetland areas were extremely dry. Mr. Duncan further noted that the dry conditions precluded the burning of all of the collected and stockpiled debris beyond the week of June 7, 1990, and those conditions account for some of Mr. Medellin's observations of stockpiled material during his visit to the site on June 7, 1990.
Considering the site conditions at the time of clearing and the absence of running water within Reedy Creek itself, there were effectively no water quality consequences to the creek from the clearing activity. Silt screens were constructed on the site on May 1, 1990, and according to Dr. Miles Smart, an expert in water chemistry and limnology, that precaution adequately safeguarded water quality within Reedy Creek during subsequent rain events. DER witness, Don Medellin, confirmed that the Department had no knowledge of any water quality violations having occurred during the FPC construction activity.
The Public Interest Criteria
Much, if not all, of the Department's opposition to the proposed project is based on the clearing of vegetation as opposed to pole placement and filling associated therewith. In this case the impacts of the clearing are already known. In the traditional dredge and fill case, the applicant provides evidence, testimony and test results predicting the impacts of the proposed construction activity, whereas in the instant case, the Applicant has the benefit of providing reasonable assurances by documenting the consequences of its acts. In the instant case, FPC provided a detailed analysis of biological and water quality ramifications from its clearing.
DER presented several witnesses who contested the positive or neutral effects that the proposed transmission line corridor would have on wildlife, citing nest parasitism, predation, fragmentation, and reduction in patch size as examples of adverse impacts that the proposed line could impose on wildlife. DER witness, Dr. Francis Putz, testified that the project could cause unraveling of the forested wetland and sunscalding of newly exposed trees along the edge of the corridor. However, no DER witness presented any quantitative data or analyses that would indicate that any of the possible adverse consequences mentioned above were, in fact, occurring or reasonably likely to occur in Reedy Creek as a result of FPC's project.
It is undisputed by either party that clearing of the proposed transmission line corridor resulted in a change to that specific six acre area from a forested wetland to a herbaceous/shrub wetland. Furthermore, it is undisputed that FPC's proposed maintenance practices will maintain that change over the expected 30-year operational life of the transmission line. However, different is not synonymous with adverse.
The structural change to the wetland has not had, and will not have, any deleterious consequences to water quality within Reedy Creek. Dr. Miles Smart, the only expert in water chemistry and limnology to testify, presented testimony, based on samples of water quality in Reedy Creek and available historical water quality data, that water quality approximately a year and a half after initial clearing was no different than the ranges observed over the ten year period for which historical information was available. In most cases, water quality was the same or extremely close for the sampled parameters which included water temperature, pH, dissolved oxygen, alkalinity, turbidity, concentrations of nitrogen, phosphorous, total kjeldahl nitrogen and orthophosphate nitrogen.
FPC's proposed maintenance practices which include the use of EPA approved herbicides for use in control of target species, will pose no problem to water quality. A study of twenty-two transmission line rights of way in the State of New York found virtually no water quality problems as a result of maintenance of those transmission lines. It was uncontroverted that FPC has never experienced water quality violations as a result of its management practices, nor has it been the focus of any enforcement or noncompliance action with respect to any previous clearing or construction activity it has undertaken.
The clearing created no impediment to flow or impounding. The continuing use of silt screens and hay bales by FPC during pole installation will reduce the likelihood of erosion or shoaling. Extensive ground cover currently present in the corridor and FPC's proposed preservation of this herbaceous/shrub vegetation will further minimize any possible shoaling and erosion.
Vegetative surveys conducted approximately a year and a half after the initial clearing show that the corridor has revegetated with 85 percent mean herbaceous plant cover in the corridor. Species composition of vegetation is similar in the corridor and no new species have been introduced nor have any been eliminated as a result of the clearing activity. Based on primary productivity and decomposition rate studies, FPC's clearing activity and the vegetative change that has resulted predictably should increase net primary productivity threefold over what exists in the adjacent forest, primary productivity being simply biomass accumulated over a period of time.
Several DER witnesses testified to the possible introduction of nuisance or invader species as a result of FPC's clearing activity and subsequent maintenance of the corridor. However, FPC's proposed maintenance practices will eliminate those target species which inhibit the growth of other species, resulting in a wetland community having similar shrub and herb strata to that of the adjacent forest. DER admitted that any proliferation of nuisance species can be controlled with proper management techniques and has required such control as mitigation for clearing associated with an electrical transmission line project by Florida Power and Light Company in Lee County.
Left to natural processes, the cleared corridor would eventually return to a forested area similar in species composition to the adjacent forest within several years. This rapid regeneration comports with experiences in other transmission line projects and in the silviculture industry. Qualitative analysis of other utility corridors in the Central Florida region confirm this natural process of succession. One of those projects, the Tampa Palms Corridor Improvement Project, constructed in a large forested wetland similar to the Reedy Creek Swamp, revealed that in 25 years after clearing, trees had regenerated to heights of 10 to 50 feet with corresponding diameters at breast height ranging from 2.7 to 30.5 centimeters.
John Vogel, an expert in forestry and the effects of clearcutting, provided unrefuted testimony and photographic evidence of a clear cut site in the South Reedy Creek basin where after a period of 8 years rapid revegetation and reforestation was occurring, resulting in a fully stocked pre-commercial stand of timber.
Several DER witnesses indicated that FPC's manner of cutting trees at ground or water height could have adverse effects on the ability of tree species
to regenerate. However, this was refuted by the evidence of tree coppicing ( sprouting within the cut-off stumps) within the corridor with some canopy species having coppices over six feet tall in the 18 month period since FPC's initial clearing.
DER employee, Donald Medellin, indicated at hearing that the clearing and proposed maintenance activity of FPC may impact a limited number of plant species listed as threatened. The Applicant's onsite analysis established that Tillandsia, a species listed in Chapter 581, Florida Statutes, as endangered, does exist in the adjacent forest in large numbers. No species referenced by Mr. Medellin appear on any federal endangered or threatened plant species list. Certain referenced plants appear on various state lists; however, none of these lists preclude the clearing of such vegetation with permission of the landowner. FPC's proposed maintenance activities for this project would not threaten the continuing existence of any of those species. The loss of some individual plants as a result of FPC's initial clearing was inconsequential, and continued maintenance of the corridor will not impact the species' continuing existence in the area.
The change from forested to herbaceous wetland was demonstrated to have had no adverse effect on the conservation of fish and wildlife in the South Reedy Creek basin. An extensive quantitative analysis undertaken by J. Steven Godley established that aquatic organisms (i.e., fish, aquatic amphibians, and reptiles), invertebrates, mammals, and birds have not been negatively impacted by FPC's initial clearing of the transmission line corridor. It was uncontroverted that the project has occasioned a twofold increase in the number of aquatic organisms in the corridor as compared to the adjacent forest.
Even though wildlife surveys conducted over 1,000 manhours revealed no measurable impact to any species of wildlife, Mr. Godley constructed a theoretical listing of several species of vertebrates indigenous to the Reedy Creek Swamp system which were likely to use the swamp system in an average year or at least a part of their life cycle, in order to assess the possible impact of the corridor on those species. Mr. Godley's unrefuted analysis revealed that the vast majority of all species of the various groups (fish, amphibian, reptiles, mammals, birds) are expected to be either positively affected or not affected at all by FPC's proposed project.
DER witness, Dr. Herbert Kale, testified that some bird species such as red-eyed vireos, warblers, woodpeckers and thrushes could possibly be impacted due to the loss of forested canopy since they are cavity nesters, and because of nest parasitism by the brownheaded cowbird. Dr. Kale readily admitted, however, that the transmission line swath was small and was not fatal to any of those interior forest bird species. Moreover, his testimony regarding the nest parasitism was inherently contradictory, since the cowbirds breed in winter during a period when the other species are actually in Central and South America.
The wetland change occasioned by FPC's project will not adversely affect endangered or threatened wildlife species. The only reptile likely to occur in the Reedy Creek Swamp that is either threatened, endangered or a species of special concern is the indigo snake, which will likely be positively impacted by the corridor, as it feeds on aquatic organisms in the swamp. No listed mammals will be impacted by the corridor. Three species of wading birds, the wood stork, little blue heron and snowy egret, will be positively affected by the transmission line corridor as they, too, will be provided excellent feeding habitat. DER's witness, Dr. Kale, agreed that the change will provide
additional habitat for marsh wading birds. The only other possible endangered species that may occur in the swamp is the bald eagle. Since bald eagles prefer large water bodies, they are unlikely to occur. They would benefit, however, from the enhanced feeding habitat.
Existing literature regarding the ecological impacts of clearcutting and electrical transmission line corridors on wildlife is consistent with the quantitative evidence submitted by FPC. Existing scientific literature generally reflects that transmission line rights of way cause edge effect, defined as a transition between two or more diverse communities. This edge causes an increase in species number and diversity for wildlife in the corridors, as compared to the adjacent forest. This is particularly true of bird species. For small mammals there is either a nonsignificant difference in species numbers in the corridor as compared to the adjacent forest, or there is a larger small mammal diversity within the corridor as opposed to the adjacent forest. The same applies for larger mammals and game species. The applicant's witnesses touted edge effect as essentially positive, while DER's witnesses described the phenomenon as a negative impact, since any new species are already abundant in other habitats. No finding is made generally on this issue, but rather in this case it is concluded that edge effect is not so significant as to constitute a negative consequence of the project.
Based on the weight of empirical evidence and opinion testimony presented, wildlife species residing in the South Reedy Creek basin have been and will continue to be either positively affected or not affected at all by FPC's proposed project. Moreover, the overall productivity of the wetland from the standpoint of vegetation and wildlife, when balanced across all plant and animal species, has not and will not be negatively affected.
Although the opportunities for recreational activities are limited in South Reedy Creek basin due to the inaccessibility of the site, those activities such as hunting, fishing, and bird watching are unchanged or have improved as a result of the small localized change to a herbaceous/shrub wetland.
The need for the electrical transmission line was unrefuted. FPC must meet minimum service standards in its provision of electric power as set out by the PSC. In order to meet these service standards, FPC decided, through its internal system planning and modeling, that a new 69 kV electrical transmission line was required between its Intercession City and Poinciana substations to provide a more reliable source of power to the towns of Davenport and Haines City as well as the Parker-Poinciana 55,000 unit residential development, as these areas have experienced problems with low voltage. The demonstrated need for this facility and the public benefit which DER has admitted it will provide, when balanced with minimal changes to the forested wetland system, lead to the finding that this project is not contrary to the public interest.
Cumulative Impacts
DER failed to present any evidence disputing the hydrologic and biologic validity of the boundaries of the South Reedy Creek basin or the location of existing and proposed electrical transmission lines in that system. The only other projects suggested by DER for cumulative impact analysis were several projects consisting of construction of berms, roads and pipelines, as well as proposed developments of regional impact (DRI's). However, these projects were not shown to be similar in construction or amount of impact to FPC's proposed electrical transmission line, except for their linear nature. Unlike this project, roads, berms, pipelines and residential developments remove
wetlands. It was not established that all the project applications considered by DER for cumulative impacts were within the South Reedy Creek basin.
Instead, several DER witnesses alluded to the loss of forested wetlands allegedly occurring throughout the state. The evidence was anecdotal and unreliable. DER cited an analysis showing a three percent decline in forested wetlands, but the study combined both South Carolina and Florida acreages.
Of the existing and proposed transmission lines within a 10 year planning horizon, very few (only three) will directly cross any portion of the South Reedy Creek basin. Those proposed electrical transmission lines will be co-located along existing rights of way and will have little, if any, impact on the forested component of the South Reedy Creek basin. It was undisputed that as a general proposition, the construction and operation of electrical transmission lines vital to the provision of electrical service does not stimulate subsequent development in an area but, in fact, follows development where electrical services are projected to be needed. Logging has occurred extensively in this area in the past and there is no evidence that the 60 foot corridor has induced additional logging activity, as asserted by DER.
Consideration of Alternative Routes and Methods
Having identified the need for a new transmission line, FPC conducted an intensive route selection analysis taking into account environmental, property (real estate), economic, and construction considerations. In this case, FPC considered two routes to address the electrical needs of this area: the recommended route, which is the subject of this proceeding, and an alternate route to the east and along an existing roadway. The alternate route would still have crossed Reedy Creek and its contiguous wetlands at some point in order to connect to the Poinciana substation. Both of the proposed corridor routes are within FPC's service territory.
A consideration in choosing the recommended route was its proximity to existing and proposed substations. The alternate route would have necessitated more vegetative clearing in the future, as its location was not near proposed substations in this area. Moreover, the recommended route was aligned through the narrowest portion of the South Reedy Creek basin through what was an old tram railbed used by the logging industry. Major property owners in the area of the proposed line expressed their preference for the recommended route. The landowner for most of the proposed corridor south of the Reedy Creek crossing granted easements at no cost to FPC.
FPC fully participated in the give and take of the permit application process for this project with DER. It was unrefuted that FPC employee, W. Jeffrey Pardue, met with a DER employee prior to submittal of the application during which meeting the two routes were discussed. The only concern about the project expressed by DER at that meeting was construction of access roads. In response to this concern, and prior to application submittal, FPC's transmission line was redesigned to consist of only wooden pole structures requiring shorter span construction and allowing less right-of-way clearing, since the transmission line wires would not move as much due to wind or other weather conditions. Wood pole construction will also allow for the use of low pressure, high flotation, equipment for construction and maintenance of the transmission line, thereby obviating the need for access roads.
Mitigation: The policy applied
In order to appease DER's demand for mitigation, FPC entered into negotiations with DER and offered the preservation of six acres of existing wetlands located east of its Intercession City substation adjacent to State Road 17/92, an area vegetatively similar to the area affected.
Mitigation is the reduction or elimination of actual or anticipated adverse effects caused by a wetland project. Mitigation, as evolved in DER's permitting processes, can be the creation of new wetlands to replace those destroyed, the enhancement of an existing wetland, or preservation of an existing wetland other than that impacted by the project.
Because preservation as a mitigation measure does not replace lost wetlands, DER has consistently required a preservation ratio of more than 1:1, most often 10:1, and sometimes substantially more than 10:1. The requirement is based on a case by case analysis of the quality of the wetland impacted, the extent of the impact and the quality of the wetland offered for preservation by the applicant.
Clearing, without more, is not considered a dredge and fill activity and therefore has not, alone, required a DER permit. Clearing has not, therefore, been the subject of mitigation requirements in the past.
Until the recent past, DER has not applied its mitigation policy to clearing associated with construction and maintenance of electrical transmission lines. Most of those lines have been placed along roadways and other existing corridors with little additional impact to jurisdictional areas.
DER has required mitigation for other linear configured projects such as pipelines and the unique "Maglev" project, a high speed elevated train proposed to be constructed from the Orlando Airport to a tourist center in Orange County.
DER is presently requiring power companies in three power plant or transmission line siting cases to address the secondary impact of clearing. Until the review of impacts is complete, the DER staff cannot predict what and how much mitigation will be required in those cases.
Prior to the instant case, DER Chief of the Bureau of Wetland Resource Management, Janet Llewellyn, could identify only one instance of mitigation for clearing associated with an electrical transmission line: the Florida Power and Light Company line in Lee County addressed in paragraph 21, above. The "mitigation" required in that case is already proposed in FPC's maintenance plan.
DER in this case has adequately justified its policy of considering secondary impacts of clearing related to the construction and maintenance of electrical transmission lines. Those impacts are legitimately assessed when the need for mitigation is being considered. The nature and extent of secondary impacts from clearing are properly part of the discourse and review of the nature and extent to which mitigation will be required.
The need for mitigation, however, is not reached when no adverse impacts are found.
Here, the applicant has successfully demonstrated by the substantial weight of evidence that neither the clearing already completed, (albeit precipitately) nor the planned pole and line construction and future right of way maintenance will violate water quality standards or otherwise offend the public interest criteria of Section 403.918, F.S. The application of DER's mitigation policy is unnecessary in this case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.
As permit applicant, FPC has the burden of providing reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest as provided in Sections 403.918(1) and (2), F.S. Department of Transportation v. J.W.C., 396 So.2d 778 (Fla. 1st DCA 1981).
Direct and Secondary Impacts
Section 403.913(1), F.S. provides that "[n]o person shall dredge or fill in, on or over surface waters without a permit from the department, unless exempted by statute or department rule." The placement of poles in jurisdictional waters constitutes "dredging" and "filling" as those terms are defined in Sections 403.911(2) and (4), F.S.
In this case, it is uncontroverted that not only the very limited pole placement is activity in jurisdictional waters, but so also is the clearing which took place in preparation for the pole placement. Clearing alone does not constitute dredge and fill, and in this case the techniques employed by FPC were demonstrated to be simply clearing, and not the dredging and filling contended by DER.
The clearing, however, was a direct and necessary component of the power line construction and will continue to be a direct and necessary component of the maintenance of those lines. The clearing activity must thus be examined for secondary impacts to the wetland system in the area of the transmission line corridor.
Rationale for what seems virtually self-evident is found in DER's statutory mandate to develop and adopt a comprehensive program for the prevention, control and abatement of pollution of the waters of the state. Section 403.061(9) and (10), F.S.
The appellate courts have embraced the secondary impact doctrine and have extended it to activities substantially more remote than the clearing in this case. See, for example, del Campo v. State Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984) (construction of bridge to an island included consideration of prospective island development); Cape Cave Corp. v. State Department of Environmental Regulation, 498 So.2d 1309, 1312 (Fla. 1st DCA 1986) (DER can consider impact of septic tanks also regulated by DHRS); The Conservancy, Inc. v. A.Vernon Allen Builder, Inc., 580 So.2d 772 (Fla. 1st DCA 1991) (court required secondary impact analysis in permitting of sewage line to an undeveloped island where construction of 75 homes was proposed).
DER's policy of considering the secondary impact of clearing here is entirely consistent with its long-standing policy of considering secondary impacts in dredge and fill applications related to the construction of docks. In those cases, as here, the impact of placing pilings is often negligable. The more substantial impacts come from other related activity.
It has long been recognized in DER final orders and by the courts that DER can consider not only the impact of the placement of pilings in the water, but also the impacts of the docking facility, itself, and the impacts from its use; even if those environmental impacts are not directly subject to DER jurisdiction. See for example, Thomson v. DER, 493 So.2d 1032 (Fla. 1st DCA 1986) [reversed on other grounds in 511 So.2d 989 (Fla. 1987)] (DER considered shading impact of dock platform on seagrasses); Cullen v. Florida Audubon Society, et al., 16 FLW D1892 (Fla. 3rd DCA) (hearing officer properly considered water quality impacts from a marina facility); and Gilmour and Gray
v. Hires and Department of Environmental Regulation, 12 FALR 4771 (DER, November 9, 1990) (DER will consider prop dredging of shallow submerged bottoms by motorboats using the dock).
The Criteria
FPC has met its burden of proof. Section 403.918(1) and (2), F.S. provide:
403.918 Criteria for granting or denying permits.--
A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.
A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
In determining whether a project is not contrary to the public interest, or is
clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangerment or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The only expert evidence on water quality was presented by FPC. This credible, competent testimony established that water quality standards were not violated in the prior clearing process and will not be violated in the future.
The wetlands existing prior to the clearing still exist, and will continue to exist. The narrow corridor, approximately six acres within a vast swamp, now supports a herbaceous shrub habitat rather than forested habitat. It is changed, but not diminished, according to the weight of the evidence. The criteria in Section 403.918(2), F.S., speak to adverse affects on conservation of fish and wildlife and their habitats. The minimal changes in the subject six acres will not, as proven by the applicant, produce those adverse affects.
Cumulative Impacts
Cumulative impacts are distinguished from secondary impacts by DER and the distinction has been discussed in The Conservancy, Inc. case, supra. Cumulative impacts must be considered from similar projects that are existing, under construction or reasonably expected in the future. Section 403.919, F.S., Peebles v. State of Florida, Department of Environmental Regulation, 12 FALR 1961, 1967 (DER Final Order 4/11/90).
The cumulative impacts doctrine was judicially articulated in Caloosa Property Owners Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). The Caloosa decision defined the geographic scope of cumulative impact analysis by characterizing cumulative impacts as follows:
This doctrine requires DER to consider the precedential value of granting a permit under the assumption that similar future permits will be granted in the same locale, Rule
17-1.63, Florida Administrative Code. DER points out, however, that "cumulative impact" analysis is required only where there is a "reasonable likelihood of similar project application in the same geographic location in the future. Rossetter v. State of Florida, Department of Environmental Regulation, 5 FALR 1195-A, 1196-A (May 19, 1983), Id. at 526-527.
(Emphasis added.)
The Rossetter decision referenced by the court in Caloosa defined the cumulative impact doctrine as "the policy and practice of considering the cumulative impacts to a water body that would result from the permitting of similar projects." Id. at 1195-A.
The projects raised by DER were not similar to this transmission line project. (see finding of fact #33, above) This project is properly reviewed on its own merit.
Mitigation
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be called by the project....
Subsection 403.918(2)(b), F.S.
As addressed above, the applicant here has met the criteria, and mitigation is unnecessary. If it had been necessary, mitigation of adverse affects from clearing would appropriately be required.
As pointed out by FPC, "project" is defined in Rule 17-312.310(9), F.A.C., as "...that portion of a proposed dredging, filling, development, construction or mining activity, which is subject to the Department's dredge and fill permitting criteria and other applicable requirements."
Although clearing, alone, is not subject to the Department's permitting criteria. When, like here, it is considered a secondary impact, it is subject to the department's permitting criteria.
The past practices of DER in failing to require mitigation for clearing associated with power transmission lines do not preclude it from requiring such in appropriate cases now and in the future. Even novel applications of rules or past practice may be characterized as permissible acts of incipient agency policy. Mangrove Chapter of Izaak Walton League of Amenia, etc. v. Florida Game and Fresh Water Fish Commission, etc., 17 FLW D228 (Fla. 1st DCA opinion filed January 14, 1992).
Alternative Route
DER interprets the language of subsection 403.918(2)(b), F.S., above, "if an applicant is unable to otherwise meet the criteria...", to require that alternatives be explored prior to consideration of mitigation. Two rules, 17- 319.060(10), F.A.C. and 17-312.300(3), F.A.C. address the need to explore modifications when adverse impacts are found.
Again, adverse direct and indirect impacts are not found in the project as proposed by the applicant. Moreover, DER did not initially explore or suggest an alternative route. As found in findings of fact #36, above, the applicant did explore alternative routes prior to submittal of the application. It found the alternate not practical based on legitimate economic, environmental and service planning considerations. Its competent evidence was not rebutted by DER.
Pending Motions
FPC's motion to exclude from the record certain DER exhibits describing other projects alleged to be outside the scope of the cumulative impacts analysis is DENIED. The documents were considered and were determined to be outside the scope, and are therefore properly part of the record in this proceeding.
FPC's motion to exclude evidence of alternative sites is, likewise, DENIED. The motion raises no issues that were not previously addressed in an order denying a motion in limine. Both parties presented evidence regarding alternatives. FPC's evidence is credited as more convincing. The evidence is properly part of the record in this proceeding.
This is not meant to imply that the applicant is not ultimately responsible for the decision as to what route, what construction techniques, what content to include in its application. If, as part of the natural give and take in a permit review process, the applicant chooses to reject alternatives suggested by DER, the agency must approve or reject the application submitted in accordance with its statutory responsibility.
The failure of an applicant to accept alternatives proposed by DER should not preclude in every case, the opportunity to mitigate impacts, so long as that mitigation is found efficacious.
Based on the foregoing, it is, hereby RECOMMENDED:
That the agency enter its final order granting the application for permit #49-173789-4.
DONE and RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida.
MARY CLARK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1992.
APPENDIX TO RECOMMENDED ORDER
The following constitute specific rulings on the findings of fact proposed by the parties.
Petitioner's Proposed Findings
Adopted in paragraph 1.
Adopted in paragraph 2.
Adopted in paragraph 3.
Adopted in paragraph 4.
Adopted in paragraph 5.
Adopted in paragraph 6.
Adopted in paragraph 7.
Adopted in paragraph 11.
Adopted in paragraph 12.
Adopted in paragraph 13.
Adopted in paragraph 9 and paragraph 10.
Adopted in paragraph 14.
Rejected as unnecessary.
Adopted in paragraph 15.
Rejected as unnecessary.
Adopted in paragraph 16.
Adopted in paragraph 17.
Adopted in paragraph 18.
Adopted in paragraph 19.
Adopted in substance in paragraph 20.
Adopted in substance in paragraph 21.
Adopted in substance in paragraph 22.
Adopted in substance in paragraph 23.
Adopted in substance in paragraph 24.
Adopted in substance in paragraph 25.
Adopted in substance in paragraph 26.
Adopted in substance in paragraph 27.
Adopted in paragraph 28.
Adopted in paragraph 29.
Adopted in paragraph 30.
Adopted in paragraph 31.
Adopted in paragraph 32.
Adopted in paragraph 33.
Adopted in part in paragraph 34, except for the proposed finding that forested wetlands are increasing, which finding is not supported by reliable, nonhearsay evidence.
Adopted in paragraph 35.
Adopted in paragraph 36.
Adopted in paragraph 37.
Adopted in paragraph 38.
Adopted in paragraph 39.
Rejected, except for the conclusory finding that mitigation is not necessary here because of no finding of adverse impacts. See paragraph 44. The proposed findings related to the error of the policy generally are rejected as contrary to the evidence.
Respondent's Proposed Findings
Adopted in paragraph 7. 2.-3. Adopted in paragraph 4.
4.-5. Adopted in part in paragraph 7.
Rejected as unnecessary.
Rejected as contrary to the evidence (as to any implication that dredging and filling was done by the applicant); otherwise adopted by implication in paragraph 11.
Adopted in substance in paragraph 11. 9.-10. Adopted in substance in paragraph 7.
Adopted in substance in paragraph 39.
Adopted in substance in paragraph 7.
Adopted in substance in paragraph 4.
Adopted in substance in paragraphs 6 and 7.
Adopted in substance in paragraph 5.
Adopted in substance in paragraph 6.
Adopted in substance in paragraph 5 and conclusions of law #3.
Rejected as contrary to the evidence. The clearing conducted by FPC did not constitute dredge and fill activity.
19.-22. Adopted in substance in paragraph 11.
23.-24. The conclusion that logging activity is a secondary impact of the FPC is rejected as wholly unsubstantiated by competent evidence.
Adopted in paragraph 8.
Adopted in part in paragraph 8, otherwise rejected as contrary to the weight of evidence.
Rejected as unnecessary.
Adopted in substance in paragraph 24.
Adopted in paragraph 10.
Adopted in paragraph 16.
Rejected as unsupported by competent, credible evidence. 31(a). Rejected as contrary to more substantial evidence and,
as to recreation mitigation, unnecessary.
32.-33. Rejected in substance as unsubstantiated by the weight of evidence.
Rejected as unnecessary.
Rejected as contrary to the weight of evidence.
36.-38. Rejected as unnecessary. FPC will remove the nuisance species as part of its maintenance plan.
39.-47. Rejected as contrary to the greater weight of evidence. 48.-50. Rejected as unsubstantiated by competent evidence.
51.-52. Rejected as contrary to the weight of evidence.
Adopted in paragraph 17.
Rejected as unnecessary. The construction activity could have, but did not cause water quality violations. See paragraph 13.
55.-58. Rejected as unnecessary.
59. Rejected as contrary to the evidence. The logging activity was occurring long before and during the relevant period and was not caused by the FPC project.
60.-76. Rejected as irrelevant or contrary to the weight of evidence.
Adopted in paragraph 32.
Adopted in paragraph 36. 80.-87. Rejected as irrelevant.
88. Adopted in part in paragraph 42. That mitigation is required is rejected as contrary to the evidence.
89.-90. Adopted in paragraph 39.
Rejected as unnecessary.
Adopted in part in paragraph 42, otherwise rejected as an enforcement issue and irrelevant here.
Adopted in paragraph 40.
Adopted in substance in paragraph 40. 95.-106. Rejected as unnecessary.
COPIES FURNISHED:
Frank E. Matthews, Esquire Michael P. Petrovich, Esquire Hopping, Boyd, Green & Sams
O. Box 6526 Tallahassee, FL 32314
Douglas MacLaughlin, Esquire Office of the General Counsel Dept. of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Carol Browner, Secretary
Dept. of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA POWER CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 91-2148
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
SUPPLEMENTAL RECOMMENDED ORDER
(Pursuant to Remand)
This Supplemental Recommended Order is issued in response to an order of remand dated April 1, 1992, for "proceedings as appropriate" and submittal of recommended findings of fact and conclusions of law on the following issues:
The cumulative and secondary impacts of the several projects and developments of regional impact (DRIs) noted in Finding of Fact No. 33 of the Recommended Order entered on February 19, 1992;
Whether Florida Power Corporation's (FPC) project is contrary to the public interest; and if so
Whether the proposed mitigation is adequate to make FPC's project permittable.
As stipulated by the parties, further evidentiary proceedings were unnecessary; rather, these supplemental recommended findings and conclusions are based on the record already made and on the parties' supplemental proposed findings of fact and conclusions of law. The attached appendix addresses each supplemental proposed finding of fact.
FINDINGS OF FACT
At hearing, DER presented the testimony of its employees, Donald Medellin and Barbara Bess, as well as limited documentary evidence concerning eight (8) existing and two (2) pending dredge and fill projects that are alleged to have impacted or will likely impact Reedy Creek Swamp (DER Exhibits 12, 14, 15, and 16). These witnesses also submitted the names of several developments of regional impact (DRIs) in the area surrounding Reedy Creek Swamp.
The existing dredge and fill projects in or near the Reedy Creek Swamp are as follows:
Continental Development, where 2.7 acres of wetlands associated with Reedy Creek Swamp were filled for berms and access roads. This applicant was required to preserve 71.8 acres of wetlands.
Paul Owens filled 2.43 acres of wetlands for a commercial development and access road and was required to preserve more than 35 acres of forested wetlands.
Osceola County received a wetland resource permit to construct a new bridge across Reedy Creek Swamp and Pleasant Hill Road, a few miles southeast of FPC's proposed project, where 4.9 acres of forested wetlands were preserved through a conservation easement. Additionally, creation of wetlands was required as mitigation.
Walt Disney World received a wetland resource permit for construction of an access road in Reedy Creek Swamp resulting in the loss of one acre of forested wetlands. Walt Disney World was required to create one acre and preserve 18 acres of wetlands for the impacts of this project.
In another project, Walt Disney World received a wetland resource permit for the placement of fill for additional parking at its MGM Studios tourist attraction. This project necessitated the loss of 25.92 acres of wetlands, and as a result Walt Disney World mitigated the adverse impacts of that project by creating 57 acres of forested wetlands, enhancing 225 acres of forested wetlands, and preserving 132 acres of nonjurisdictional forested wetlands.
The Reedy Creek Improvement District received a wetland resource permit to install a reuse pipeline and access road across a wetland associated with Reedy Creek. This project resulted in the loss of 2.3 acres of wetlands and 65.7 acres of forested wetlands were preserved as mitigation for the project.
The Reedy Creek Improvement District also received a wetland resource permit for the placement of pilings for a bridge and for some access roads which involved the filling of .96 acres of wetlands requiring the preservation of 7.9 acres of forested wetlands as mitigation.
Finally, in an enforcement case for the unauthorized impacts to
7.91 acres of forested wetlands for couch pads, roads, and water lines, Wilderness Joint Venture was required to preserve 209.64 acres in Reedy Creek Swamp.
In the Reedy Creek Swamp area there are two pending wetland resource permit applications, both submitted by Parker Poinciana, Inc. The first of these is a proposed project to construct a six lane 220 feet wide highway from
U.S. 17/92 south to the Cypress Parkway, which will result in the filling of
22.39 acres of jurisdictional wetlands, 22.23 acres of which are forested wetlands. The other proposed project by Parker Poinciana, Inc. is a planned residential community necessitating the construction of roadways, golf courses, and residential lots requiring the filling of 16.377 acres of wetlands.
Other projects (presumably future projects) were suggested by DER in its proposed Recommended Order as proper for cumulative impact review. (DER 68,
74 and record citations therein). These included a road presently platted to cross Reedy Creek Swamp to the south of the FPC project; an industrial park to the northeast of FPC's project, south of State Road 17/92; and a new high school to be built south of the industrial park.
At hearing, DER also submitted several DRIs purportedly in the vicinity of Reedy Creek Swamp. They are Johnson Island, a mixed-use development south
and east of FPC's project; Pleasant Hill Point, a residential development east and south of the proposed corridor; Oak Hills Estates, a residential development north and west of the proposed corridor; and Celebration Development which is being developed by Walt Disney World further north and west of the corridor.
DRIs to the northwest of the corridor include the Landings, Hexagon Center, and Osceola Point.
DER's primary concern regarding the FPC project is from a cumulative impact standpoint concerning fish and wildlife and their habitat. No specific competent evidence was produced as to the actual impacts of the above-described projects. However, there was ample evidence that destruction of wetlands adversely impacts fish and wildlife and their habitat generally.
Whatever the extent that wetlands were destroyed in the above-described projects, wetlands were not destroyed in the FPC project under review. As found in uncontroverted finding of fact #16 (R.O. p. 12), the wetland is changed, and even that change is not permanent. (See finding of fact #22, R.O. p. 12)
Of the seventeen projects submitted by DER, it would appear, based on USGS quadrangle maps in the record, that approximately half are located outside the boundaries of the South Reedy Creek basin and no more than five are within two miles of the FPC corridor which is the subject of this proceeding. Even so, collectively, all of the projects inventoried by DER do not diminish or refute the reasonable assurance provided by FPC that it's project has not and will not violate state water quality standards or that it is not contrary to the public interest. Expressed consideration of these additional projects does not change previous undisturbed findings of fact.
As found in findings of fact #24, 25, and 28, (R.O. pp. 15-17) the change has not and will not adversely effect threatened plant species, fish or wildlife. Those individual plants and individual habitats which were affected when the clearing took place will regenerate and will be reestablished. Whatever the impact on individual members of species or their habitats caused by the other projects described above, there is no negative impact from accumulation of the FPC
Consideration of the "edge effect", addressed in finding of fact #29 (R.O., p. 18) does not change this finding of no cumulative impact. The "edge effect" of the FPC project is at least neutral, and is generally positive. Whether any actual edge effects of the other projects are negative is irrelevant, since the FPC project does not exacerbate those impacts. DER's witnesses suggest that edge effect is negative because the species increased or added are not species with which they are concerned. This peculiarly cavalier conclusion was effectively disproven by competent evidence by FPC's witnesses as to positive impacts of edge effect.
Finding of Fact #32 (R.O., p. 19) provides that the need for the FPC project and admitted public benefit, when balanced with minimal changes to the forested wetland system, lead to the finding that this project is not contrary to the public interest. This finding is not disturbed by a consideration of cumulative impacts of the other projects described above. As found in Finding of Fact #35 (R.O. p. 20), the FPC project will not itself inspire or stimulate new development.
Since the project is not contrary to the public interest, even when considered with the cumulative impacts of the other projects described above, no mitigation is required. The other dredge and fill projects have been required
to provide their own mitigation, as found in paragraph 2, above. Assuming that mitigation is appropriate here, the maintenance program proposed by FPC is consistent with the type of mitigation required in the past for clearing associated with an electrical transmission line. (See finding of fact #42, R.O., p. 24) This form of mitigation is in addition to the 1:1 ratio of "preservation" mitigation proposed by the applicant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction, where as here, the agency head has rejected implied or explicit recommended conclusions of law and in so doing, has remanded for additional necessary findings of fact. See Section 120.57(1)(b)10., F.S.
The order of remand rejects the implied conclusion that a project's impact may not be sufficiently significant to require an analysis of cumulative impacts. It also rejects the conclusion that certain projects such as construction of berms, roads, pipelines and proposed DRI's were not sufficiently similar to the project in review or geographically situated to be properly included in the cumulative impact analysis. As found in the preceding proposed findings of fact, the FPC project does not negatively impact water quality or fish and wildlife and their habitats. The other projects described by DER, and now included in the factual cumulative analysis of impacts, do not, according to the evidence available, change that finding.
As permit applicant, FPC has the burden of providing reasonable assurance that water quality standards will not be violated and that the project is not: contrary to the public interest as provided in Sections 403.918(1) and (2), F.S. DOT v. J.W.C., 396 So.2d 778 (Fla. 1st DCA 1981).
FPC carried its burden of going forward with the evidence and met its ultimate burden of persuasion relative to the entitlement to a permit pursuant to Sections 403.918 and 403.919, F.S. In submitting a prima facie case, FPC defined the relevant watershed and presented its construction activity in the context of similar projects existing, under construction, or reasonably expected in the future. Peebles v. DER, 12 F.A.L.R. 1961, 1965-1966 (April 11, 1990), citing Caloosa Property Owner's Assoc. v. DER, 462 So.2d 523 (Fla. 1st DCA 1985). The applicant described the logging history of the basin, the electric lines existing and proposed, the ongoing public acquisition, and the magnitude of the ecological community in which similar development was occurring. Notwithstanding DER's submission of some evidence of other projects and activities alleged to be similar to or associated with or causally related to this project, DER presented no credible evidence that the addition of FPC's project to the prior, existing, and future impacts on the South Reedy Creek Basin has caused or will contribute to a cumulative or functional loss of forested wetlands in this area. DER failed to present "contrary evidence of equivalent quality" to that presented by FPC. DOT v. J.W.C. Co., 396 So.2d at 789. As a result, FPC successfully carried its ultimate secondary and cumulative impact burden.
FPC proved that the wetlands existing prior to the clearing still exist, and will continue to exist. The change and conversion of wetland type did not diminish the wetlands functions. A narrow corridor, approximately six acres within a vast swamp, now provides herbaceous habitat rather than forested habitat. Previous instances of clearing in this basin have resulted in no demonstrable functional loss. It is changed, but not diminished, according to the weight of the evidence. The criteria in Section 403.918(2), F.S., speak to
adverse effects on conservation of fish and wildlife and their habitats. The vegetative changes in the subject six acres will not, as proven by the applicant, produce those adverse effects.
After taking into full consideration the eight (8) existing and two pending dredge and fill projects and the several DRIs submitted by DER at hearing, FPC has met its ultimate burden of persuasion in establishing or providing reasonable assurance that the edge effect created by FPC's project adds wildlife diversity and abundance to the Reedy Creek Swamp system and does not contribute to any negative effect of the other projects, which negative effect is wholly speculative. A balancing of relevant statutory criteria factoring the cumulative consequences of all projects submitted favors issuance of the requested permit in this instance.
Subsection 403.918(2)(b), F.S. provides:
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project...
The applicant here has met the criteria, and mitigation is unnecessary. If the Department concludes that mitigation is necessary, the project's adverse affects are adequately offset by the proposed preservation of six acres of similar forested wetland habitat and the proposed maintenance program, both of which have been considered acceptable forms of mitigation by DER in other cases.
RECOMMENDATION
Based on the foregoing, it is hereby, RECOMMENDED:
That the agency enter its final order granting the application for permit No. 49-173789-4.
DONE AND RECOMMENDED this 30th day of June, 1992, in Tallahassee, Leon County, Florida.
MARY CLARK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30thday of June, 1992
APPENDIX
The following reflect specific rulings on the supplemental findings of fact proposed by the parties.
Petitioner's Proposed Findings of Fact
Adopted in substance in paragraph 1.
Adopted in substance in paragraph 7.
Adopted in paragraph 2.
Rejected as unnecessary argument.
Adopted in part in paragraph 3 and. in summary in paragraph 9.
Adopted in part in paragraph 4 and in summary in paragraph 9.
Adopted in part in paragraph 5; otherwise rejected as unnecessary argument.
Adopted in summary in paragraph 8.
Adopted in summary in paragraph 10.
Rejected as unnecessary.
11.-12. Adopted in substance in paragraph 10.
13. Adopted in paragraph 11.
14.-15. Rejected as unnecessary and redundant. Respondent' s Proposed Findings of Fact
This paragraph proposes adoption of previously submitted findings #60-66 and 68-70, addressed as follows:
#60 - rejected as unnecessary. #61 - adopted in paragraph 2.
#62 - rejected as contrary to the evidence. The projects involved permanent removal.
#63 - rejected as unnecessary.
#64 - rejected as unsubstantiated by competent evidence except very generally as provided in paragraph 6. Edge effect was not proven negative in and of itself.
#65-66 - adopted in paragraph 3.
#69 - rejected as contrary to the weight of evidence as related to the FPC project and unnecessary as to the other projects. "Can effect" is too broad to be useful.
Probable effect was not proven. #70 - adopted in paragraph 3.
Adopted in paragraph 6.
Rejected as unnecessary. The probability was not proven.
Rejected as contrary to the greater weight of evidence, except generally. See paragraph 6.
5.-16. Rejected as unnecessary, except as treated generally in paragraph 2.
Rejected as unnecessary as already provided in R.O., finding of fact #8.
Rejected as contrary to the weight of evidence. That wildlife managers seek to preserve large patches is immaterial.
Rejected as contrary to the weight of evidence, as to the cumulative effect of the FPC project.
19a. Rejected as unnecessary.
20.-26. Rejected as unsubstantiated by competent evidence and generally contrary to findings already made and undisturbed.
[It is unnecessary to rule again on proposed findings 88-91 and 93-95]
27. Rejected as contrary to the evidence and to plain reason (as to the reduction of mitigation necessary for the next permit applicant).
28.-29. Rejected as unnecessary. A more similar project is addressed in paragraph 12.
30. Rejected as contrary to the weight of evidence (as to inappropriate mitigation and the relatively pristine habitat. The area has been, and will continue to be logged, an activity unrelated to tie FPC project and not aided by the FPC project).
COPIES FURNISHED:
Frank E. Matthews, Esquire Michael P. Petrovich, Esquire
Box 6526 Tallahassee, FL 32314
Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg.
2600 Blair Stone Road Tallahassee, FL 32399-2400
Carol Browner, Secretary
DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson, General Counsel DER-Twin Towers Office Bldg.
2600 Blair Stone Road Tallahassee, FL 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
================================================================= STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
FLORIDA POWER CORPORATION,
Petitioner,
vs. OGC No. 90-1520
DOAH No. 91-2148
FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On February 19, 1992, a Hearing Officer from the Division of Administrative Hearings submitted her Recommended Order to the Department of Environmental Regulation ("Department") and all other parties to this action. A copy of the Recommended Order is included as an attachment to Exhibit "1" of this final order. The Hearing Officer recommended that the Department grant the application of Florida Power Corporation ("FPC") for a dredge and fill permit to clear a corridor 4,400 feet long and 60 feet wide through a forested wetlands and to place wooden power line transmission poles and associated 301 cubic yards of fill for construction of a 69 KV electrical transmission line in the South Reedy Creek basin in Osceola County. 1/ The transmission poles would be spaced approximately 300 feet apart, and fill and crushed rock backfill will be placed at the base of each pole. As a result of the project, six acres of valuable forested wetlands habitat were cleared and converted to herbaceous wetlands. 2/
The Department filed exceptions to the Recommended Order. FPC timely filed responses to the Department's exceptions as well as a proposed final order. The matter thereupon came before me as Secretary of the Department.
On April 1, 1992, I entered an Order of Remand for further proceedings as appropriate to make recommended findings of fact and conclusions of law concerning (1) the cumulative and secondary impacts of the several projects and developments of regional impact noted in Finding of Fact No. 33 of the initial recommended order, (2) whether the project is contrary to the public interest, and (3) the adequacy of the proposed mitigation. A copy of the Order of Remand is attached Exhibit "1."
On remand, the parties agreed that no further evidentiary hearing was required, and that the issues on remand could be determined from a review of the record. Accordingly, the Hearing Officer accepted supplemental proposed findings of fact and conclusions of law, and on June 30, 1992, submitted a Supplemental Recommended Order which once again recommended that the permit be granted. A copy of the supplemental Recommended Order is attached as Exhibit "2." No exceptions were filed and the matter thereupon came before me as Secretary of the Department for final agency action. 3/
RULINGS ON FINDINGS OF FACT 4/
The Hearing Officer's findings of fact in both the Recommended Order and the Supplemental Recommended Order are accepted except as otherwise noted in either this Final Order or the Order of Remand.
Six Acres of Valuable Forested Wetlands Habitat Permanently Lost
The Hearing Officer found that "wetlands" were not destroyed. (S.R.O.-
F.O.F. No. 7) 5/ Her finding is predicated on a belief that clearing of forested wetlands to herbaceous wetlands is not a destruction of wetlands. I reject any implication that forested wetlands were not destroyed as (1) not supported in the record by competent substantial evidence, (2) contrary to unrebutted competent substantial evidence, and (3) contrary to Findings of Fact Nos. 4, 8, 11 and 16 in the Recommended Order. The Hearing Officer found that six acres of forested wetlands were cleared for the project. (R.O.-F.O.F. No.
11) She also found that the forested wetland from which the six acres were cleared provides valuable forested wet land habitat for numerous plant and animal species. (R.O.-F.O.F. No. 8)
The Hearing Officer's finding that "wetlands were not destroyed . . . [only] changed [to herbaceous wetlands] . . ." (S.R.O.-F.O.F. No. 7) is infused with a policy determination that herbaceous wetlands are somehow environmentally equivalent to forested wetlands. I do not accept that policy determination. As noted above, the Hearing Officer's findings as well as the clear, undisputed facts of this case show that six acres of valuable forested wetlands habitat have been lost as a result of FPC's activities in connection with this permit application. To say that no loss occurred because another type of wet land now takes the place of the forested wetlands that once occupied the area in question is to pay semantic tribute to form while ignoring the substance of reality.
Forested wetlands are not environmentally equivalent to herbaceous wetlands. Each have their own unique environmental functions which are not interchangeable. Cf., Sarasota County v. DFR, 13 FALR 1727, 1739 n.5 (DER Final Order April 4, 1991) (estuarine ecosystem cannot be replaced with marine ecosystem). Therefore, the six acres of forested wetlands habitat is lost, i.e., destroyed, regardless of whether it is replaced by a different type of wetland system or by an asphalt parking lot. The remaining use and environmental value of this acreage after destruction of its forested wetlands is simply another factor to be considered and balanced when applying and balancing the public interest criteria of Section 403.918(2), Florida Statutes.
I also reject the Hearing Officer's finding that the loss of the six acres of forested wetlands is not permanent, and that the "habitats which were affected when the clearing took place will regenerate and will be re- established." (S.R.O.-F.O.F. No. 7, 9) This finding is unsupported in the record by competent substantial evidence, is contrary to unrebutted competent substantial evidence, and is contrary to the Hearing Officer's Finding of Facts Nos. 6 and 16 in the Recommended Order. The Hearing Officer found that vegetation in the corridor will be maintained at ground or water level for 17 feet on either side of the wooden utility poles. (R.O.-F.O.F. No. 6) (emphasis added) She also found that the outer 13 feet on each side will be allowed to regenerate except for fast growing trees and other vegetation with the potential to reach 30 feet prior to the next regularly scheduled maintenance period." (R.O.-F.O.F. No. 6) (emphasis added) She found that it is undisputed that the "change" will be maintained over the expected 30 year operational life of the transmission line. (R.O.-F.O.F. No. 16) It is clear that no trees will be
allowed to grow within 17 feet of the centerline of the corridor, and no mature trees (over 30 feet) will be allowed to re-establish themselves anywhere within the corridor. Therefore, the unrebutted and undisputed competent substantial evidence in the record shows that the forested wetland will not be allowed to re-establish itself for at least 30 years. 6/
I note that in general where a hearing officer's finding of fact is supported in the record by competent substantial evidence I am not permitted to reweigh the evidence or modify or reject the finding of fact. See, e.g., Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10, and 120.68(10), Florida Statutes. 7/ Therefore, in ruling on findings of fact I must look to the record to see if there is ban competent substantial evidence to support the Hearing Officer's finding of fact. If I find any such evidence I must generally accept the Hearing Officer's finding. But where a hearing officer's finding of fact is not supported in the record by any competent substantial evidence, I am free to reject it. Section 120.57(1)(b)10, Florida Statutes. See generally, Heifetz, 475 So.2d at 1281.
As noted above, the Hearing Officer's finding is not supported in the record by competent substantial evidence and is contrary to both unrebutted competent, substantial evidence and other findings of fact. Therefore, I reject the finding that six acres of forested wetlands have not been permanently destroyed.
Adverse Effect Of Conversion Of Six Acres Of Forested Wetlands To Herbaceous Wetlands
The Hearing Officer also found that "the change [from forested wetlands to herbaceous wetlands] has not and will not adversely effect threatened plant species, fish or wildlife," and that the "edge effect" of the 4,400 foot corridor through forested wetlands is "at least neutral, and is generally positive." (S.R.O.-F.O.F. Nos. 9 and 10) These findings are predicated on two conclusions: First, that the loss of six acres of forested wetlands in an area of approximately 31,448 acres of contiguous forested wetlands is de minimis (R.O.-F.O.F. No. 10) and second, that both the edge effect and the conversion of six acres of forested wetlands to herbaceous wetlands is "at least [environmentally] neutral, and is generally positive." (S.R.O.-F.O.F. No. 10)
Even under the facts of this case I cannot accept that the loss of six acres of valuable forested wetlands habitat is de minimis. Such a "finding of fact" is essentially a conclusion of law that there is a de minimis exception to the cumulative impact analysis. As I noted in my Order of Remand, were I to accept that proposition, it would completely undercut the purpose of the cumulative impact analysis required by Section 403.919, Florida Statutes. 8/
The purpose of considering cumulative impacts is to protect the environment from piecemeal degradation. The Legislature appropriately entitled Section 403.919 "Equitable distribution" which reflects the intent that the first person to take a bite of the wetlands apple does not get a free lunch at the expense of later permit applicants. Thus, even where a project affects only a small percentage of a wetland, equity to past and future applicants, as well as the need to prevent piecemeal degradation of the environment, requires that there be no de minimis exception to the cumulative impact analysis.
I also note that the larger the tract of undisturbed habitat, the greater the environmental value. Thus a piecemeal destruction of a large valuable forested wetlands habitat, as is the case here, is just as important, if not more important, than the piecemeal destruction of smaller tracts of wetlands.
Nor can I accept the Hearing Officer's finding that there is no adverse impact because the impact is "neutral" or "beneficial." (S.R.O.-F.O.F. No. 10; S.R.O.-C.O.L. No. 4) In my Order of Remand, I accepted the Hearing Officer's finding that the project will increase "edge effect" and will result in an increase in species number and diversity for wildlife in the corridors as compared to the natural forested state of the corridor before it was cleared. (O.R. at 10; R.O.-F.O.F. Nos. 28-29) However, I do not agree in this case that an increase in species diversity for wildlife in the corridor as compared to the diversity which existed in the undisturbed forested wet land before the corridor was cleared is either neutral or beneficial to the environment. An increase in species diversity, although often desirable, may be an adverse impact when the natural undisturbed ecosystem has a lower species diversity.
Thus, I reject the Hearing Officer's conclusion that there is no adverse environmental effect from the conversion of six acres of forested wetlands to herbaceous wetlands. As I noted above, I reject the contention that in general one type of wet land may be replaced with another with no adverse impact.
Sarasota County v. DER, supra. 9/
Although the degree and kinds of impacts from the conversion of forested wetlands to herbaceous wetlands may be findings of fact, whether such impacts are adverse environmental impacts and the weight accorded to them in the balancing of the public interest criteria are questions of law and policy over which I have final authority and responsibility. 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990). 10/ Based on the above noted findings and conclusions of law, I conclude as a matter of law that (1) the loss of six acres of valuable forested wetlands habitat is an adverse environmental impact regardless of whether it is converted to herbaceous wetlands, (2) the increase of species diversity over the naturally occurring species diversity in the undisturbed forested wetlands under the facts of this case is an adverse impact, and (3) the increase in edge effect in the forested wetlands is an adverse impact. 11/
Even if it is a question of fact rather than a conclusion of law as to whether an increase in edge effect, increase in species diversity, and loss of valuable forested wetlands habitat are adverse environmental impacts, such determinations are nevertheless issues infused with policy considerations within the special expertise of the Department. McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977) Furthermore, although the fact of whether an increase or decrease in species diversity has occurred relative to the natural undisturbed environmental state is a fact susceptible to ordinary methods of proof, the ultimate determination of whether such a change is an adverse or beneficial environmental impact is a policy consideration for which the Department has special insight and responsibility. Therefore, I may reject the Hearing Officer's findings and substitute my own if my substituted findings are supported in the record by competent substantial evidence. See generally, McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977); Tuveson v. Florida Governor's Council on Indian Affairs, 495 So.2d 790 (Fla. 1st DCA 1986), rev. den., 504 So.2d 767 (Fla. 1987); Forehand v. School Board of Washington City, 481-So.2d 953 (Fla. 1st DCA 1986); Johnston v. Dept. of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984); Westchester General Hospital v. Dept. of Health and Rehabilitative Services, 419 So.2d 705 (Fla. 1st DCA 1982).
The Hearing Officer found that the powerline corridor would eliminate a strip of forested wetlands 4,400 ft. by 60 ft., amounting to a total area of six
acres. (R.O.-F.O.F. Nos. 4-6) She also found that the corridor would result in a changed habitat, increase the edge effect, and result in an increase in species number and diversity within the corridor. (R.O.-F.O.F. Nos. 16, 20, 27- 29)
The record contains competent substantial evidence that the edge effect and increased species diversity have adverse environmental impacts. Dr. Herbert Kale, accepted as an expert in orthinology (Tr. at 752-55), testified about the impact of nest parasitism by the brown-headed cowbird on some bird species such as red-eyed vireos, prothonotary warblers, woodpeckers, and thrushes. He testified that such bird species could be adversely impacted due to the loss of forested canopy since they are cavity nesters, and because of nest parasitism by the brown-headed cowbird. (Tr. at 756-58, 760-63)
I also find competent substantial evidence in the record that the brown- headed cowbird is present and breeds in the area at the same time as red-eyed vireos and prothonotary warblers are present and breeding in the same area. Dr. Kale testified that the red-eyed vireo and prothonotary warbler are present in the Reedy Creek Swamp area in the breeding season. (Tr. at 762-764). He also testified that "the prothonotary warbler and other species of birds that nest in the woodlands are potential host species for the cowbirds." (Tr. at 761) Based on the foregoing competent substantial evidence, I find that the corridor will increase species diversity by providing habitat for brown-headed cowbird, and that as a result bird species such as red-eyed vireos, prothonotary warblers, woodpeckers and thrushes will be adversely effected by the corridor since they are cavity nesters and will be subject to increased nest parasitism by the brown-headed cowbird.
The record also contains competent substantial evidence that the forested wetlands at the site of the corridor provide valuable wildlife habitat (R.O.-
F.O.F. No. 8), and that there is a decline in forested wetlands in Florida and Central Florida. (Hartman, Tr. at 717-18, 729, 741-43; Lan, Tr. at 769-72, 776- 77; Putz, Tr. at 665-66, 701-702; Kale, Tr. at 752-55, 758).
I note that the clearing of the corridor may provide some benefit by providing increased habit for certain species such as the wood stork, little blue heron and snowy egret. (R.O.-F.O.F. No. 28) However, when I weigh the adverse and beneficial impacts I find that on balance the loss of six acres of forested wetlands is an adverse environmental impact decreasing the relative value of functions being performed by areas affected by the project and adversely affecting the conservation of wildlife and their habitats.
Cumulative Impacts
I previously remanded this case for the Hearing Officer to consider cumulative and secondary impacts of several projects and developments of regional impact noted in R.O.-F.O.F. No. 33. On remand, the Hearing Officer considered the impacts of eight existing and two pending dredge and fill projects. (S.R.O.-F.O.F. Nos. 1 and 2) She also considered the impacts of two pending wetland resource permit applications, several reasonably expected future projects, and several developments of regional impact. (S.R.O.-F.O.F. Nos. 3-5) The Hearing Officer found that even when the adverse effects of these additional projects were collectively considered, FPC had still provided reasonable assurance that the project will not violate water quality standards and is not contrary to the public interest. (S.R.O.-F.O.F. No. 8) This finding is based on her previous finding that the FPC project has no adverse impact on water quality
or wildlife habitat (S.R.O.-F.O.F. No. 9 and 10; S.R.O.-C.O.L. No. 2), a finding which I have rejected in part as noted above.
I will not disturb the Hearing Officer's findings as to the impact of each of the other projects considered, but because I have rejected her finding that the FPC corridor has no adverse impact on the environment, I must also reject her finding that there is no adverse impact when this project is considered cumulatively with the other projects.
Public Interest Test
The Hearing Officer found that because there is no adverse impact of the project, and because there was a public benefit and need for the project, 12/ the project was not contrary to the public interest. (S.R.O.-F.O.F. No. 11) Since I have rejected her finding that the project has no adverse impact, I must reconsider the balancing of the public interest criteria set forth in Section 403.918(2)(a)1.-7., Florida Statutes, which provides that: 13/
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational value or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and
archaeological resources under the provisions of s. 267.061; and
The current condition and relative value
of functions being performed by areas affected by the proposed activity.
I note that a showing of need or public benefit is not a necessary condition of obtaining a dredge and fill permit, but the existence of a public need or benefit may be taken into consideration. 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 957 (Fla. 1st DCA 1989),
rev. den, 562 So.2d 395 (Fla. 1990).
It is not disputed that there are no adverse impacts under criteria 1., 3., 4., and 6. I note that the project will last at least 30 years. As noted above, before the six acres of forested wetlands were cleared, they provided valuable forested wetlands habitat and the clearing adversely affected the value and functions being performed by the six acres affected by the project. The project also adversely affected the conservation of wildlife and its habitats.
When I balance these adverse effects against the benefit provided by the project, I find that the project is contrary to the public interest.
5. Mitigation
When a project is unable to meet the public interest test of Section 403.918(2), the Department, in deciding to grant or deny the permit, must consider measures proposed by or acceptable to the applicant to mitigate the adverse effects of the project. Section 403.918(2)(b), Florida Statutes. 14/ In this case, to mitigate for the loss of six acres of valuable forested wetlands habitat, FPC proposed to preserve six acres of forested wetlands in Reedy Creek Swamp. (R.O.-F.O.F. No. 39) The Hearing Officer also considered as mitigation the maintenance plan proposed by FPC to prevent the occurrence of nuisance plant species in the corridor. (S.R.O.-F.O.F. No. 12) 15/
When preservation of wetlands is offered as mitigation, the Department has generally required that the area of wetlands to be preserved be greater than the area to be destroyed. When one acre of preservation wetlands is offered for one acre of destroyed wetlands, there is a net loss of wetlands and no environmental gain to offset the adverse impacts of the project. Although there is no absolute "no net loss" standard for mitigation, Chipola Basin Protective Group
v. Department of Environmental Regulation, 11 FALR 467, 484-85 (DER Final Order, Dec. 29, 1998), the avoidance or minimization of net loss is an important guiding principle of mitigation. 16/
Since mitigation by preservation necessarily results in loss of jurisdictional wetlands, the Department generally accepts preservation mitigation only after on-site wetland creation and/or enhancement is shown to be not feasible or not sufficient to tip the public interest balancing test "scales" in favor of permit issuance. (FPC Exh. No. 27) 17/ When preservation mitigation is accepted, the loss of jurisdictional wetlands is offset by the high mitigation ratio, which assures that a relatively large amount of wetlands which may otherwise be subject to some development will be forever protected from any future development. 18/
Accordingly, in cases in the past when preservation was offered for mitigation, the Department has generally required mitigation ratios from 10:1 to 100:1 depending on the environmental quality of the land being offered for preservation. (Medellin, Tr. at 648-51, 653, 658; Llewellyn, Tr. at 827-29; FPC Exh. No. 27; R.O.-F.O.F. No. 39) See also, Young v. Cooley, 13 FALR 3061 (DER Corrected Final Order, July 1, 1991) (accepting 1.47 acres of onsite created wetlands, 29.2 acres of onsite preservation wetlands, and 46 acres of offsite preservation wetlands as mitigation for filling 2.14 acres of jurisdictional wetlands).
In this case FPC offers to preserve only one acre of forested wetlands for each area of forested wetlands cleared and converted to herbaceous wetlands. 19/ The record contains competent substantial evidence that the proposed mitigation is not sufficient. (Medellin, Tr. at 653; Bess, Tr. at 790-91) I conclude as a matter of law that the offered mitigation is not legally sufficient. 20/ Since the project is contrary to the public interest under the criteria of Section 403.918(2), Florida Statutes, and since legally sufficient mitigation has not been offered by the applicant, I may not lawfully issue the permit. Section 403.918(2), Florida Statutes.
RULINGS ON CONCLUSIONS OF LAW
Conclusion of Law No. 2
For the reasons set forth in Part I above, I reject the Hearing Officer's conclusions of law that the project does not negatively impact wildlife and their habitat and that the cumulative analysis of impacts does not change that conclusion.
Conclusion of Law No. 4 (S.R.O. at Page 8) 21/
The applicant has a mandatory burden of proof of providing reasonable assurances that the project, when considered with the cumulative and secondary impacts, will not cause a violation of water quality standards and will not fail the public interest test. Dept. of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Conservancy Inc. v. A. Vernon Allen Builder, 580 So.2d 772 (Fla. 1st DCA 1991); Brown v. Department of Environmental Regulation, 9 FALR 1871 (DER Final Order, March 27, 1987), per curium aff'd, 531 So.2d 173 (Fla.
4th DCA 1988); Barringer v. E. Speer & Assoc., (DER Final Order July 27, 1992, OGC Case No. 19-0540)
The Hearing Officer suggests that an applicant, by virtue of submitting any amount of evidence in support of any theory as to what the relevant watershed should be for the consideration of cumulative and secondary impact analysis, can shift the burden to the Department to show why a particular project outside of the applicant's proposed watershed should be considered in the cumulative and secondary impact analysis. Were I to accept this conclusion of law it would allow an applicant to substantially avoid his burden of proof on cumulative and secondary impacts merely by putting on some evidence as to an inappropriately small watershed for consideration of cumulative and secondary impacts. Where an issue is identified by the Department in its intent to deny, pleadings, or prehearing stipulation, or where a factual basis for an issue is alleged by a petitioner challenging an intent to issue in his petition, pleadings, or prehearing stipulations, the applicant has the burden of proof on those issues. Dept. of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
Therefore, I conclude that where the Department in its intent to deny a permit, or a petitioner in its pleadings challenging an intent to issue a permit, identifies projects which it claims should be included in the cumulative or secondary impact analysis, the applicant has the initial and ultimate burden of showing that the cumulative effect of the applicant's project together with the identified projects is either not applicable or will not result in a violation of water quality standards or a failure to meet the public interest test. Id.
Conclusion of Law No. 4 (S.R.O. at Page 9)
For the reasons set forth in Part I above, I reject the Hearing Officer's conclusions of law that the forested wetlands existing prior to the clearing still exist, and that the clearing did not diminish the wetlands functions or adversely impact wildlife or its habitats.
Conclusion of Law No. 5
For the reasons set forth in Part I above, I reject the Hearing Officer's conclusions of law that reasonable assurances were provided that the project does not have any adverse impact and that the project is not contrary to the public interest.
Conclusion of Law No. 7 22/
For the reasons set forth in Parts I and II above, I reject the Hearing Officer's conclusions of law that (1) mitigation is unnecessary, and (2) that even if mitigation is necessary FPC has offered legally sufficient mitigation. I also reject the implied conclusion of law that FPC provided reasonable assurances that the project is not contrary to the public interest.
CONCLUSION
Under the facts of this case the clearing of six acres of forested wetlands resulted in an adverse environmental impact decreasing the relative value of functions being performed by areas affected by the project and adversely affecting the conservation of wildlife and their habitats. When the criteria of the public interest test are considered and balanced, it is determined that the project is contrary to the public interest. The mitigation offered by the FPC, i.e., the preservation of one acre of forested wetlands for each acre of forested wetlands cleared, is not sufficient to offset the adverse impacts of the project, and the permit must therefore be denied.
I note that this project would have been permittable if FPC had offered sufficient mitigation in its application or during the hearing. Of course, this denial does not preclude FPC from reapplying with legally sufficient mitigation or a modified project. See, e.g., Rudloe v. Dickerson Bayshore, Inc., 10 FALR 3427, 3448 (DER Final Order, June 9, 1988); Thomson v. Department of
Environmental Regulation, 511 So.2d 989 (Fla. 1987) ACCORDINGLY IT IS ORDERED THAT:
1. Except as is otherwise stated in this Final Order and the Order of Remand, the Hearing Officer's Recommended Order and Supplemental Recommended Order are adopted and incorporated herein by reference. 2. Florida Power Corporation's Permit Application No. 49-173789-4 is DENIED.
NOTICE OF RIGHTS
Any party to this Final Order has the right to seek judicial review of this Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 13th day of August, 1992, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CAROL M. BROWNER, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
FILING AND ACKNOWLEDGEMENT
FILED, on this date, pursuant to
s. 12O.52 Florda Statutes, with the designated Department Cerk, recept of which is hereby acknowledged.
Clerk
ENDNOTE
1/ The electrical transmission line will traverse approximately fourteen miles, but the issue in this proceeding concerns only the 4,400 foot long and 60 foot wide corridor through a jurisdictional forested wetlands in Osceola County, and the cumulative and secondary impacts of that corridor.
2/ As noted in my background comments in my Order of Remand, FPC cleared the corridor before final agency action on its permit application. See Order of Remand at 2 n.1, for my comment on FPC's conduct.
3/ Although the Department did not file exceptions to the Supplemental Recommended Order, the Department's exceptions to the Recommended Order raised the issues that I shall address in this Final Order regarding whether the project had an adverse impact, whether the project was contrary to the public interest, and whether sufficient mitigation was offered.
4/ The background to this case is set forth in my Order of Remand at 3-4. (See Exhibit 1)
5/ Findings of Fact in the Recommended Order shall be referred to as R.O.-
F.O.F. No. . Findings of Fact in the Supplemental Recommended Order shall be referred to as S.R.O.-F.O.F. No. . Conclusions of Law shall be referred to as R.O.- or S.R.O.-C.O.L. No. .
6/ There is nothing in the record to indicate that FPC intends to abandon the powerline corridor after 30 years.
7/ The exception to the general rule is where the issue of fact is infused with policy considerations within the expertise of the agency. In such cases, the agency head may reject the hearing officer's findings and substitute the agency's findings if the substituted findings are supported in the record by competent substantial evidence. See generally, McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977); Tuveson v. Florida Governor's Council on Indian Affairs, 495 So.2d 790 (Fla. 1st DCA 1986), rev. den., 504 So.2d 767 (Fla. 1987); Forehand v. School Board of Washington City, 481 So.2d 953 (Fla. 1st DCA 1986); Johnston v. Dept. of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984); Westchester General Hospital v. Dept. of Health and Rehabilitative Services, 419 So.2d 705 (Fla. 1st DCA 1982)
8/ See Order of Remand at 11-12.
9/ If I were to accept the Hearing Officer's view, then virtually all of Florida's wetlands could be converted to herbaceous wetlands with no adverse environmental impact.
10/ I am, of course, free to reject the Hearing Officer's conclusions of law. Section 120.57(1)(b)10., Florida Statutes; Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991), rev. den., 583 So.2d 1035 (Fla. 1991).
11/ As noted in my Order of Remand, the Department took exception to R.O.-
F.O.F. Nos. 16, 25, 29 and 30 to the extent that such findings assert that the project has no adverse impacts. Although I do not disturb any of these findings as to magnitude of the impact, as noted above, I reject the contained conclusions of law and policy that such impacts are not adverse.
12/ The fact that projects providing energy services generally promote the public interest is recognized by Rule 17-312.300(7) , F.A.C.
13/ The final determination of whether reasonable assurances have been provided and the outcome of the balancing of the public interest criteria are ultimately conclusions of law and policy for which I have the final authority and responsibility to decide. 1800 Atlantic Developers, supra.
14/ The legal sufficiency of proposed mitigation is exclusively a conclusion of law reserved for the Secretary of the Department. 1800 Atlantic Developers v.
Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990).
15/ A maintenance plan to prevent the occurrence of nuisance plant species is not mitigation; rather, it is a specific condition to reduce the adverse impacts of the project. To the extent that the adverse impacts of the project are reduced by the maintenance plan, the extent of mitigation required is also reduced.
16/ The purpose of mitigation is to offset the adverse impacts of a project which make it contrary to the public interest or not clearly in the public interest. Thus, the objective of mitigation is broader than just avoiding or minimizing net loss of wetlands. Section 403.918(2), Florida Statutes.
17/ The mitigation guideline ratios for created wetlands (2:1) and enhanced wetlands (greater than 2:1) are designed to assure no net loss of jurisdictional wetlands by creating new wetlands or restoring full function to partially degraded wetlands. See Rules 17-312.340(2) and (3), F.A.C.
18/ Preservation can also offset a net loss of jurisdictional wetlands by preserving wetlands over which the Department has no regulatory jurisdiction.
19/ The six acres of herbaceous wetlands created as a result of the clearing can not mitigate for the loss of the six acres of forested wetlands. The fact that the wetland was not filled but a herbaceous wetland was left goes to the degree of the adverse impact rather than to provide complete or partial mitigation.
20/ Were I to accept a one to one mitigation ratio for preservation, one-half of Florida's remaining forested wetlands could be converted to herbaceous wetlands with disastrous consequences for species requiring forested wetlands habitat.
21/ The S.R.O. has two conclusions of law numbered 4. 22/ The S.R.O. does not have any Conclusion of Law No. 6.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished to the following person on this 13th day of August, 1992:
BY HAND DELIVERY TO:
The Honorable Mary Clark Hearing Officer
Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Clerk, Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Douglas MacLaughlin Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
AND BY U.S. MAIL TO:
Frank E. Mathews Michael P. Petrovitch
Hopping Boyd Green & Sams
P.O. Box 6526 Tallahassee, FL 32314
Robert G. Gough
Assistant General Counsel State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 3299-2400 Florida Bar No. 410489 (904)488-9730
================================================================= DISTRICT COURT OPINION
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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
FLORIDA POWER CORPORATION, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
v. CASE NO. 92-2933
DOAH CASE NO. 91-2148
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Appellee.
/ Opinion filed May 13, 1994.
Appeal from an order of the Department of Environmental Regulation.
Frank E. Matthews and Michael P. Petrovich, of Hopping Boyd Green & Sams, Tallahassee, for appellant.
Douglas H. MacLaughlin, Assistant General Counsel, Tallahassee, for appellee.
BARFIELD, J.
Florida Power Corporation (FPC) appeals an order of the Department of Environmental Regulation (DER) denying its application for a wetland resource permit, contending that DER improperly rejected the hearing officer's determination that FPC's project would have no adverse impacts and was not contrary to the public interest. This controversy focuses on the distinction between forested wetlands and herbaceous wetlands. Here, forested wetlands were destroyed by clear cutting of the trees, leaving an herbaceous wetland. While this action expanded the habitat of plants and animals dependent on herbaceous wetlands, it also denied habitat to plants and animals dependent solely on forested wetlands. DER determined that the public interest in the extent of the impact on the environment from this destruction of the forest was a policy matter for its determination and not a question of fact to be resolved by the hearing officer. We agree and affirm the agency's final order.
FACTS
FPC owns an easement over property in Reedy Creek Swamp, a large mixed wetland forest system in Osceola County, on which it seeks to install an electrical transmission line between Intercession City and Poinciana (the ICP line), which is expected to last at least thirty years. The ICP line uses a corridor sixty feet wide and fourteen miles long, 1/ passing through three areas of forested wetlands under DER jurisdiction. The affected areas lie
within the South Reedy Creek Basin, which contains over 92,000 acres of upland and wetland habitats, including 31,448 acres of contiguous forested wetland.
In December 1989, FPC filed an application with DER for a wetland resource permit to place 353.1 cubic yards of fill to support the transmission poles.
The application stated that the fill would impact .0135 acres of jurisdictional wetlands. 2/ Prior to obtaining the permit, FPC undertook clearing activities during March-June 1990, cutting all vegetation within the sixty- foot transmission line corridor to the ground or water line. DER conducted a surveillance flight over the project site in June 1990 band visited the site in June and in August. The flight revealed the nearly completed clearing of the forested wetland, and the field appraisals indicated that some dredge and fill had occurred as a result of the land clearing activities. 3/ At an on-site meeting in late August 1990, the parties discussed mitigation. FPC eventually offered to preserve one acre of forested wetland, at a site east of the Intercession City substation near State Road 17/92, for each acre of forested wetland impacted.
In September 1990, DER issued a notice of intent to deny the permit request, finding that the proposed installation activities would actually impact approximately 6.01 acres, 5.997 acres of which were "secondary impacts" of the proposed construction (i.e., the clearing activities). It found that the wetland adjacent to State Road 17/92 "will be impacted by minor trimming of branches within the mature forested canopy and by removal of small subcanopy trees beneath the existing corridor," that the main crossing of the swamp "involves secondary impacts to a mature mixed forested wetland" (noting endangered and threatened orchids adjacent to the cleared corridor), and that the wet land south of the main crossing is a cypress community with saw grass as the primary understory. It found that the proposed alignment "has and will continue to result in disturbances to hydric soils and vegetation as a result of the tree cutting, installation and maintenance activities," that the power line "will result in a permanent change in the character of the wetland from a mature mixed forested canopy to a herbaceous wetland," and that this permanent change "is expected to diminish the overall productivity of the system and adversely affect wildlife utilization."
DER noted that FPC had not provided it with an alternative analysis for the power line on the initial application and found that it was therefore "not clear if another alternative would have further reduced the impacts of the project." It observed that one proposal which could have been submitted "uses the existing right-of-way adjacent to roadways which cross Reedy Creek (such as Pleasant Hill Road)." It found that FPC had not clearly explained how turbidity would be controlled during the installation of the poles, that degradation of water quality was expected, and that FPC "has not provided reasonable assurance that the immediate and long-term impacts of the project will not result in the violation of water quality standards" or that the project is not contrary to the public interest, citing Florida Administrative Code Rules 17-312.070 and 17- 312.340, and sections 403.918(2) and 403.919, Florida Statutes. It required FPC to address turbidity controls and "how the original, natural elevations will be returned to pre-construction condition," and to submit a mitigation proposal "which adequately offsets the secondary impacts of the project," noting that "the Secretary's policy memo concerning preservation-as-mitigation states that the minimum ratio accepted by the Department will be 10:1 (preservation:loss)" and that "[t]he current proposal of 1:1 ratio falls short of this policy." The title to chapter 84-79, Laws of Florida, which created the "Warren S. Henderson Wetlands Protection Act of 1984," Part VIII of chapter 403, Florida Statutes, now entitled "Permitting of Activities in Wetlands," reads as follows:
WHEREAS, Florida's wetlands are a major component of the essential characteristics that make this state an attractive place to live. They perform economic and recreational functions that would be costly to replace should their vital character be lost, and
WHEREAS, the economic, urban, and agricultural development of this state has necessitated the alteration, drainage, and development of wetlands. While state policy permitting the uncontrolled development of or threatened species, or their habitats; wetlands may have been appropriate in the past, the continued elimination or disturbance of wetlands in an uncontrolled manner will cause extensive damage to the economic and recreational values which Florida's remaining wetlands provide, and
WHEREAS, it is the policy of this state to establish reasonable regulatory programs which provide for the preservation and protection of Florida's remaining wetlands to the greatest extent practicable, consistent with private property rights and
the balancing of other vital state interests, and
WHEREAS, it is the policy of this state to consider the extent to which particular disturbances of wetlands are related to uses or projects which must be located within or in close proximity to the wetland and aquatic environment in order to perform their basic functions, and the extent to which particular disturbances of wetland benefit essential economic development, . . .
Section 403.918, Florida Statutes (1989), which establishes the criteria for granting or denying permits under the Act, provides in part (emphasis supplied):
A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the
following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project. . . .
Section 403.919, Florida Statutes (1989), entitled "Equitable distribution," codifies the "cumulative impact doctrine":
The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider:
The impact of the project for which the permit is sought.
The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.
The impact of projects which are under review, approved, or vested pursuant to
s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.
Rule 17-312.300 et seq. establish the criteria for evaluating mitigation proposals. DER must first explore "project modifications that would reduce or eliminate the adverse environmental impacts of the project" and suggest any such modifications, either in addition to or in lieu of mitigation. It may not require mitigation, but it must consider "any mitigation proposed by a permit applicant in accordance with this rule." Rule 17-312.300(7) provides:
The amount, type and location of mitigation, if any, required of electric utilities conducting dredge and fill activities for the purpose of providing energy service shall be determined in conjunction with the criteria in Section 403.918, F.S., in recognition of the fact that such activities generally promote the public interest.
Rule 17-312.340 sets the standards for evaluating mitigation proposals, noting that they must be considered "on a case by case basis" and that offsetting adverse impacts "will usually be best addressed through protection, enhancement or creation of the same type of waters as those being affected by the proposed project."
In March 1991, FPC filed a request for formal administrative hearing. In June 1991, it filed a complaint in the circuit court for a declaratory judgment and injunctive relief, together with a petition for a writ of mandamus, alleging that it would allow all trimmed vegetation to resume normal uninterrupted growth after the transmission line was in service except for limiting vegetation height to fourteen feet directly below the lines, asserting that this maintenance activity would be necessary to provide adequate clearance between vegetation and the transmission line to prevent possible fires and ensure safe working conditions for its maintenance staff. It contended that virtually no adverse environmental consequences would result from the work other than temporary displacement during actual pole installation and the need to trim and maintain surface vegetation in the vicinity of the poles and transmission line. It argued that of the 6.01 acres of alleged total impacts, approximately 5.997 acres were alleged to "secondary impacts" of the clearing already undertaken, and that DER was attempting to expand its permitting jurisdiction beyond its statutory mandate because FPC's clearing activity was not subject to DER's permitting jurisdiction.
DER filed a motion to dismiss the complaint, noting that no final agency action had been taken with regard to the formal hearing FPC had requested and arguing that FPC had failed to exhaust its administrative remedies. After a hearing, the circuit court denied the petition for writ of mandamus and dismissed the complaint with prejudice, based on FPC's failure to properly exhaust its administrative remedies.
This court affirmed the circuit court's action in Florida Power Corp., Inc.
v. State, Dept. of Environmental Regulation, 605 So. 2d 149 (Fla. 1st DCA 1992), noting that we have previously recognized that DER may consider the "secondary impacts" which will result from a project if a permit necessary for its implementation is granted. We found that it could not be said that DER's claim of jurisdiction was "without colorable statutory authority," or that it had acted "clearly in excess of its delegated powers," so as to justify an exception to the judicially created doctrine of exhaustion of administrative remedies. We held that DER may consider the impact of the continuous maintenance activity that will take place in order to restrict surface vegetation in the fourteen- mile transmission line corridor, because this anticipated maintenance activity is causally related to the proposed dredging and filling necessary for installation of the transmission poles and because evidence of the effects of the maintenance activity is relevant in determining whether FPC has provided reasonable assurance that the project is not contrary to the public interest.
The application, as modified in November 1991 to exclude the corridor adjacent to State Road 17/92, reduced the amount of fill to 301.106 cubic yards, the length of the corridor to 10 miles, and the length over jurisdictional wetlands to 4,810 linear feet. FPC asserted that the modified project impacts
.0084 acres of wetlands, while DER asserted that the total impact of the modified project continues to be 6.01 acres, of which approximately six acres are affected by "secondary impacts."
The parties stipulated that the proposed project "benefits the public welfare by producing and providing for the reliable transmission of electricity to residents of the State" and that it will not adversely affect navigation or significant historical and archaeological resources. The five-day hearing centered on the relative condition of the area impacted and the impact of the clearing on the conservation of vegetation, fish and wildlife. FPC admitted that the canopy has been removed in a sixty-foot swath through the swamp and that maintenance activities will result in a change in the corridor from forested wetlands to herbaceous/shrubby wetlands, but it asserted that there has been "no adversity" resulting from the change in the character of the wetlands. DER argued that this was in effect "after-the-fact permitting," that six acres of forested wet land has been removed and will not be replaced, and that what is left is a disturbed herbaceous marsh that will, along with past, present, and future projects, have a cumulative negative effect on Reedy Creek Swamp as a whole.
Eugene Rasponi, FPC's employee, was presented as an expert in electrical transmission line planning and design. He testified that FPC had evaluated an alternate route which would have followed an existing roadway, but that this route would have been 2.5 miles longer and would have cost $700,000 more. He stated that the project was designed to minimize environmental impact by using wooden poles and shorter spans, requiring less corridor width and not requiring access roads, and by using low pressure high flotation equipment for the construction. He testified that corridor maintenance would be undertaken on a three-to-five-year cycle, that an area fifty feet square around each pole would be kept clear to the ground, and that vegetation would be cut to the ground or water level for seventeen feet on either side of the center line of the sixty- foot wide corridor. He stated that the remaining outer thirteen feet on each side would be allowed to regenerate, except for fast-growing trees expected to reach thirty feet or more in height, which would be girdled or treated with EPA approved herbicides by specific and selective application, and that all exotic or nuisance target species would be removed from the entire right-of-way.
FPC's Robert Klemans testified that FPC was shocked when DER raised the issue of mitigation for clearing, that FPC met with DER to discuss preservation mitigation ratios of 10:1 and 50:1 based on DER memos, and that FPC finally offered a six-acre preservation mitigation site. He stated that most of the easements were obtained without cost, that videos and aerial photographs indicated that "things have grown back very significantly," and that there is logging activity immediately adjacent to the ICP corridor.
FPC's Jeffrey Pardue testified that he researched dredge and fill permitting associated with twenty-three transmission lines involving wetlands since 1984, and that it was his understanding that no other electrical utility has been required to mitigate for clearing. He stated that the clearing of the ICP corridor was undertaken in the dry season to minimize adverse impacts, and that a silt screen was installed to prevent erosion during the installation of the poles. He testified that the selected route crossed Reedy Creek at the narrowest point in the swamp, but that he did not have notable environmental
concerns with either route, and that FPC did not anticipate a need for mitigation once it determined that access roads would not be necessary.
FPC's Charles Duncan testified that he had overseen the clearing activity and that there was no digging and no earth moved, that it was not wet at all, and that the silt screen was installed to prevent erosion once the rains began. He stated that when he returned in October, the site was covered in water and growth, that there were logging activities within 200-300 feet of the corridor, and that FPC's fence had been taken down.
Dr. James Nicholas, a professor of urban and regional planning at the University of Florida, testified as an expert in land use and energy public policy regarding the direct benefit of the proposed ICP line to consumers, to FPC employees and stockholders, and to the general public. He valued freshwater wetlands at $1,000-$2,500 per acre and estimated that mitigation at a preservation ration of 50:1 would cost $300,000-$750,000.
Dr. William Dennis of Breedlove, Dennis and Associates, was presented as an expert in botany, wetland ecology, and wetland permitting. He testified that there are no trees in the corridor, but that some trees are coppicing (sprouting from stumps), that the herbaceous and shrub plants are essentially the same, and that if there were no maintenance, the corridor would return to forest in 30-50 years. He stated that with maintenance, the shrub species will over time become more dominant, and that wetland functions (storage capacity, recharge potential, water quality, biomass, productivity, habitat) are not diminished, noting that some have probably increased.
Dr. Dennis stated that, as a general rule, herbaceous wetlands are more productive (productivity measured by the amount of plant material accumulated per unit area over time) than forested wetlands. He testified that, while the habitat was definitely changed, he was not aware of any study showing any species adversely affected, and that quite a number of species (for example, wading birds) would be benefitted. He stated that while there are certain interior woodland species that cannot live in open cleared area, these species still have enough habitat available in the Reedy Creek flood plain. He could not say categorically that one type of wetland is better than another, but he felt that the cleared area has not affected the value of the forested area, and he "just cannot believe that there is any impact to this overall system that would result from that small amount of wetland clearing." He stated that sixty feet is no wider than some of the channels in Reedy Creek, and that in this case, the impacts are minimis and no adverse impacts have been demonstrated. He testified that the mitigation site is very similar to the ICP site and should adequately offset any impacts associated with the clearing.
On cross-examination, Dr. Dennis testified that the opening of the corridor provides sunlight and the opportunity for numerous species to grow, including "nuisance" and exotic species (cattails, primrose willow, dog fennel, water hyacinth, Micania vine), and admitted that it was more difficult to replace freshwater forested wetland.
Steve Godley, with Biological Research Associates, testified as an expert in endangered and threatened species, wildlife ecology, and wetland resource permitting. He presented the results of an analysis of the impacted area, including evaluation of "edge effect" using on-site sampling and data collection to compare the biota in the corridor, on the edge, and in the forest. He also presented the results of a literature search of scientific studies on electrical
transmission line construction impacts, particularly in forested wetland areas, and a comparative assessment of eight other transmission lines.
Godley found that the mean "cover" was 85 percent in the corridor, higher than in the forest, and testified that a study showed that the net primary productivity of herbaceous wetlands is three times higher than in the adjacent flood plain forest, and that the decomposition rate is two or three times higher in the marsh. Using three "similarity indexes" and averaging all the comparisons, he found that in terms of species composition, the corridor and forest sampling sites were essentially identical, with a two or three-fold difference in the number of light-loving and light-intolerant plants. He cited studies on the effects of clearing utility corridors in forested wetlands which showed no long term effects on the shrubs. He testified that the similarity indexes for canopy were not applicable, since there are no longer any trees in the corridor.
Godley's amphibian, fish, and vertebrate sampling revealed a general pattern of the most number of species in the edge, closely matched by the corridor, with sightly fewer numbers of species in the "near" and "far" forest. He testified that every group in which there were significant differences was more abundant in the corridor or the edge, relative to the forest sites. He sampled birds for four days in July, the end of nesting season, and found 164 individuals (21 species) in the forest and 143 individuals (18 species) in the corridor. He found fifteen species in both locations, and nine species which were exclusive to one or the other location. He testified that, using the similarity indexes, he was not able to detect a significant difference in the number of species. He stated that mammals were sampled in October 1990 because of the very high water conditions, and that all quantitative information indicated no adverse effect on wildlife utilization.
Godley also did a summary of the potential effects of the clearing, using the quantitative data, literature surveys, and a qualitative evaluation of other corridors. He found that approximately 197 species of vertebrates (97 bird, 32 fish, 26 mammal, 25 reptile, 17 amphibian) are likely to use the swamp in an average year, and that they can be divided into two groups, wetlands-dependent (species which must spend some component of the life cycle in the swamp) and ubiquitous. Of the 97 bird species he found that 64 species are likely to breed in the swamp, and that 58 percent are permanent residents. He found 25 fish species positively affected, six fish species not affected, and two fish species (shiners) negatively affected. He found all the wetland-dependent amphibians positively affected, and none of the amphibians negatively affected. He found all the wetland- dependent reptiles positively affected, and three of the ubiquitous reptiles (two kinds of skink and the rat snake) negatively affected. He found most of the ubiquitous mammals positively affected, but three mammals (grey squirrel, flying squirrel, and wood rat) negatively affected. He found the "vast majority" of the wetland-dependent birds positively affected (because they eat reptiles and amphibians), but that twenty-one bird species would be negatively affected, including the wood duck, six woodpecker species, two vireo species, seven warbler species, four thrush species, and the northern panula.
He testified that-many of the negatively affected birds nest in cavities in trees, but that a study showed that all cavity shortages were in upland forests.
As to endangered or threatened species, Godley found that the only endangered reptile, the indigo snake, would be positively affected, that none of the fish or mammals were listed as endangered or threatened, and that of the endangered or threatened birds, three were positively affected (wood stork, little blue heron, snowy egret) because they eat fish, and that the bald eagle,
which prefers lakes, would be positively affected. Of the listed plants, he testified that ferns and epiphytes (orchids, bromelids) would be negatively affected. He noted a trend toward fewer listed plant species adjacent to the corridor, which he attributed to weedy conditions and high light and wind exposure. He discussed the various lists and opined that no truly endangered or threatened plants were affected by the clearing, and that if they were, they were lawfully taken with the landowner's permission.
Godley stated that the ICP corridor had caused a change in the system, but that the wildlife utilization in the whole system is balanced across all kinds of animals and does not appear to have been negatively affected. He testified that the majority of the animal species are likely to be positively affected, and that the species which were negatively affected are "almost at the point of a minimis effect." He testified that the corridor had not adversely affected recreation and had improved hunting. He did not believe there was a solid scientific basis to indicate that the corridor had fragmented wildlife in the swamp. He discussed nest parasitism (some bird species lay their eggs in other birds' nests) , and testified that the brownheaded cowbird likes open spaces and parasitizes warblers and vireos at the edge of the forest, within twenty-five meters, but he did not think the brownheaded cowbird, which is a problem in northeastern upland forests, would view the corridor as an upland habitat.
Godley stated that he did not think the corridor would adversely affect wetland functions, and that he felt FPC had put forth reasonable assurance that the project was not contrary to the public interest. He discussed cumulative impact analysis and concluded that there might be another mile of crossing in the next thirty years and that the weight of the evidence would suggest that the ICP line "is going to have a negligible or minimis effect on productivity and the wildlife utilization of the Reedy Creek Swamp system." Godley examined all the other transmission lines in central Florida with potential wetland crossings and concluded that the Reedy Creek system is not unique, but admitted that no other transmission line had the same maintenance plan as the ICP project.
John Vogel, of Natural Resources Planning Services, testified as an expert in forestry and the impacts of clear cutting. Noting silviculture is exempt from DER regulations, he found that since 1984, the regeneration from cypress logging near the corridor has been "rather dramatic" and opined that the corridor, if left alone, would do the same thing. He estimated that $700-$800 worth of timber had been removed from the corridor and testified that he found the clearing "very clean" with little disturbance, and that he didn't think the wetlands function had been interrupted.
Dr. Miles Smart, with Breedlove, Dennis and Associates, was presented as an expert in water chemistry and limnology. He testified that the water quality in Reedy Creek eighteen months after the clearing was within the ranges observed over the ten- year period for which historical data was available. He stated that he found no impediment to flow, and that he felt the project was not likely to cause erosion or shoaling.
Anthony Arcuri, with Environmental Consulting & Technology, testified as an expert in wetlands ecology and electric transmission line impacts. He compiled a bibliography of sixty- seven references on ecological impacts of transmission lines in forested wetlands. He also visited the corridor in October 1991, finding that it had revegetated except for the trees and that there appeared to be minimal disturbance to the area. He opined that in general, shifting of forested wetland to herbaceous wetland does not reduce function ascribed to wetland areas, and that some functions are unchanged, while primary productivity
increases in the corridor. He found no large-scale invasion of nuisance or exotic species. He stated that "edge effect" increases wildlife utilization, species numbers and diversity, and density of wildlife populations. He acknowledged that the project would cause a permanent shift in the wetland structure, but he stated that he did not feel it would cause a long term impact to the overall function or integrity of the wildlife system. He testified that he felt that the sixty-foot clearing "does not adversely affect Reedy Creek Swamp so as to warrant compensatory mitigation."
Kevin Erwin testified as an expert in wetland ecology and wetland mitigation. He calculated that the impacted area was 0.02 percent of the total forested flood plain, and found Godley's study "very thorough work" showing no negative effect on wildlife, water quality or other functions. He stated that he found no scientific validity to the 10:1 preservation ratio requirement in the 1988 mitigation memo, and that he felt mitigation should be based on functional evaluation. He testified that he could not think of any linear clearing projects that would be similar for purposes of cumulative impact analysis, and opined that these six acres "were not the straw that will break the camel's back," noting that this is a "very large, very diverse system."
Barry Lenz, with Dames & Moore, was presented as an expert in biology and wetland permitting. He testified that he was involved with the 1988 permitting of the Tampa Palms corridor through Cypress Creek Swamp, which is like Reedy Creek Swamp, and that no mitigation was required for that project. He admitted on cross-examination, however, that the Tampa Palms line was run in an existing corridor.
Steve Fox, with Dames & Moore, and Dale Twachtmann, with Law Environmental, were also presented as experts in wetland permitting. Fox testified that he had been a DER division director and that he did not recall ever requiring mitigation for clearing of a utility line. He stated that he had worked on getting permits for the Maglev train project and for the South Georgia Natural Gas pipeline, in both of which mitigation was required, but that he considered these projects factually distinguished from the ICP line. He stated that the 1988 Twachtmann memo "legitimized preservation mitigation," but that he found no scientific basis for the 10:1 preservation ratio. Twachtmann testified that he had been DER's Secretary from 1987 to 1991, that he bead prepared the DER mitigation rule, but that he had not intended the 1988 memo to be used for clearing by electrical utilities, since clearing does not involve dredge and fill. Twachtman stated that he did not think the Maglev and South Georgia Natural Gas projects were similar to the ICP line.
DER's Donald Medellin was presented as an expert in dredge and fill permitting. He testified that he was the primary permit processor for the ICP application, that he visited the project site six times, and that he found threatened species in the forest adjacent to the corridor (yellow star anise, several orchid species, shoestring fern, Tillandsia). He stated that the mitigation site is similar vegetatively to the ICP corridor, but there is much more human activity near the mitigation site. He recommended denial of the permit because of the loss of habitat, the change in the nature of the system, the effect on threatened and endangered species, and the possible water quality and erosion problems.
Medellin testified that he had assessed two roadway projects affecting Reedy Creek Swamp for cumulative impact analysis, and that Barbara Bass had searched the files for the last five years and had found that proposed power lines typically followed roadways or existing power lines, so as to minimize
wetland impacts. On cross-examination, he explained that "nuisance" plants outperform other species, that he found the similarity in the Reedy Creek Swamp road projects in the fact that they broke the canopy, that he found the orchid species adversely affected, and that there were similar impacts in the Maglev and South Georgia Natural Gas projects.
Dr. Francis Putz, associate professor of biology and forestry at the University of Florida, was presented as an expert in forest ecology. He testified that when he visited the site in November 1991, he found very few coppiced trees, and that the nuisance species were dominant. He noted that the corridor would be repeatedly disturbed by the maintenance activities, and stated that it would have a negative impact on the adjacent forest, "changing the balance." He explained the "edge effect" (the influence of one ecosystem on an adjacent ecosystem) of the corridor on the forest, noting the changes in temperature, humidity, wind speed and patterns of growth of the trees, the density of weeds, the heightened probability of tree mortality, and that bird nest predation effects would extend 500 meters into the forest.
Dr. Putz observed that similarity indexes can be misleading and testified that Godley's similarity indexes "did not reflect what he saw out there." He found Godley's animal tables satisfactory, but testified that "predatory birds and predatory mammals are favored" and will forage widely (part of the edge effect), and that squirrels and wood rats will suffer from the corridor clearing. He noted a fragmentation effect that interferes with the normal functioning of populations (for example, while there is no absolute barrier, flying squirrels "don't go to ground and don't swim well" and red-eyed vireos are unlikely to cross the corridor). He stated that it was important to distinguish between biomass and productivity, noting that an herbaceous community has a high productivity, but does not accumulate biomass. He testified that high productivity, though a goal in agriculture, is not an advantage in nature, explaining that a system in equilibrium has zero productivity because what is produced is exactly balanced by what dies, but "we have tipped the balance in this case."
Dr. Putz testified that forested wetlands in Florida are being lost faster than any other community type (15 percent between 1979 and 1987 according to one study of Florida and South Carolina wetlands). He stated that Arcuri's bibliography was good on power line rights-of-way, but lacking on effects of clear cutting, and that it contained "virtually nothing on forest canopy opening." He testified that he thought the literature and Godley's quantitative analysis were "directed attempts," but he acknowledged a study by Randy Kautz with the Florida Game and Freshwater Fish Commission which found that there was no loss of lowland forest.
Bradley Hartman, with the Florida Game and Freshwater Fish Commission, testified as an expert in wildlife management. He and Stephen Lau, also with the Commission, wrote a report for DER in which they found that the wildlife population would be affected by the change in habitat (i.e., replacement of wooded wetlands by open marsh). He stated that there would be an increase in the number of individuals and the number of species because of two habitats located next to each other, but that population of forest animals would be lost because of losses of hardwood mast (seeds and nuts) high canopy, cavities and snags. He testified that they were more interested in regional diversity than in local diversity, and that the corridor could actually reduce the number of species in the regional area. He stated that while there was some additional feeding for the little blue heron and the snowy egret (special concern species), these species do not need more feeding area. He explained the LANDSAT habitat
planning project which places emphasis on saving large tracts, more valuable because they buffer themselves. In his opinion, we are losing forested wetlands, resulting in a decline in forested species, some of which are the most rare.
On cross-examination, Hartman opined that the corridor did not pose an absolute barrier to any species of which he was aware. He stated that it was unlikely any bird species would be extirpated, but that several species would be adversely affected and "you don't wait for extirpation." He testified that while feeding availability is a limiting factor for wood storks in south Florida, this was not so in central and north Florida, and that while some animals would benefit from the corridor, "they are not the ones we are worried about." He testified that there are numerous projects in addition to power lines that have the same cumulative impact. He stated that he considered Randy Kautz a credible wildlife biologist.
Stephen Lau was presented as an expert in wildlife ecology. He testified that he visited the site in June 1991 and that he has looked at several projects in Reedy Creek Swamp, an extremely valuable wildlife habitat. He stated that he found a very high water level in the corridor, and nuisance species which "take over and lower plant diversity." He testified that the clearing will increase the habitat for "backyard" birds and wading birds, but will decrease the habitat for forested birds that need cavities in trees for nesting. He explained "edge effect" and stated that he thought the Biological Research study did not go far enough into the forest to sample. He testified that in his opinion, there has been a "dramatic loss" of forested wetlands in the thirteen years he has worked with the Commission.
Dr. Herbert Kale, with Florida Audubon Society, was presented as an expert in ornithology. He testified that he has been to Reedy Creek Swamp many times and that he visited the ICP site in November 1991. He stated that the permanent loss of forested wetland affects woodpeckers and interior forest birds (red-eyed vireo, prothonotory warbler, hermit thrush, ovenbird, northern water thrush), that the corridor brings in wading birds, and that there is an "edge effect"
100-200 meters into the forest. He testified that the corridor is large enough to attract brownheaded cowbirds, who are nest parasites, and that the shiny cowbird is also moving in from the Caribbean. On cross-examination, he stated that the sixty-foot swath is not fatal to any of the forest birds, but "every time you make a cut you're creating problems and reducing habitat."
DER's Barbara Bass, Medellin's supervisor, testified by telephone as an expert in wetlands permitting. She stated that she visited the site in November 1991, and that she is generally familiar with Reedy Creek Swamp, which she considers a good quality wetland habitat, especially the part south and east of State Road 17/92 which has been relatively undisturbed by human encroachment.
She testified that the primary concern was the effect of the ICP corridor on the wildlife habitat from a cumulative impact standpoint, and that this was not as big a concern in the northern part of the corridor because there was an existing right-of-way and the swamp was not as pristine a system there. She stated that DER did not take enforcement action when it discovered the clearing of the corridor because of manpower restraints, noting that the application was pending at the time. She stated that in her opinion, we are "slowly but surely losing our mature hardwood system" in central Florida.
Bass testified that DER would have been happy to consider other proposals, but that none were submitted by FPC, and that rerouting the line along a road is a reasonable alternative. She stated that the 1:1 mitigation proposed by FPC is
inadequate, that there should be at least a 10:1 ratio because of the quality of the swamp and its vulnerability to development, and that it would take sixty years to replace the mature system that was lost. She stated that other projects impact forested wetlands in Reedy Creek Swamp (Continental Development berms and roads, Owens commercial development and access road, Osceola County bridge, Wilderness Joint Venture enforcement case, Walt Disney access road, Walt Disney parking, Reedy Creek improvement District (RCID) reuse pipeline and access road, RCID bridge, Parker Poinciana DRI, Johnson Island DRI, Pleasant Hill Point DRI, Oak Hill Estates DRI, Celebration Project DRI). She testified that she would prefer to see future crossings of the swamp adjacent to existing corridors, where disturbance has already occurred.
DER's Janet Llewellyn, chief of the Bureau of Wetland Resource Management, testified by telephone as an expert in wetlands permitting. She stated that it is not unusual for DER to consider secondary impacts in a dredge and fill permit application, and that similar projects with secondary impacts include the South Georgia Natural Gas pipeline, the Maglev train project, and three power line projects. She stated that she was involved in drafting the 1988 memo, which is only a guidance, since mitigation has to be considered on a case-by-case basis. She stated that preservation is not always considered appropriate for mitigation, but that Twachtmann thought it was a valuable tool which could be used only under certain circumstances and would require a-much higher ratio than for creation or enhancement of wetlands. She testified that DER did a study of
119 creation mitigation sites which showed a 12 percent success rate.
On cross-examination, Llewellyn admitted that she had never been on the ICP site, but stated that she had flown over it in a helicopter inspection. She testified that she concurs that the project results in an impact contrary to the public interest, primarily because it "involves a loss of six acres of high Quality, mature, concurrently undisturbed forested swamp wetland that is associated with the power line, and the permanent conversion of that area to an herbaceous wetland." She testified that interior forest bird species will be the most impacted, but she was not aware of other animals. She stated that she did not think the project would adversely affect flood storage, water quality, public safety or welfare, the property of other, the flow of water, or fishing, or that it would cause harmful shoaling or erosion. She testified that she believes there is an adverse impact on primary productivity (food chain contribution) because a forested canopy produces leaf litter, which is very important to the food chain in these systems, while the biomass produced by an herbaceous system would not be the same. She stated that a 1990 permit in Lee County had required enhancement mitigation for clearing associated with a transmission line.
Steven Godley was recalled and testified by-telephone that his sampling was specifically designed to test the allegations in DER's notice of intent to deny the permit, but that he did not bias the study. He stated he saw no evidence of tree mortality as a result of the clearing, and rejected the article on which Dr. Putz based his estimate of 15 percent loss of forested wetlands.
RECOMMENDED ORDER
The hearing officer recommended that the application for the permit be granted without mitigation. She found, inter alia:
that Reedy Creek Swamp is the only large mixed wetland forest system in Osceola County and one of the largest systems in central Florida, and provides valuable forested wetland habitat for numerous plant and animal species;
that clearing the transmission line corridor "resulted in a change to that specific six acre area from a forested wetland to a herbaceous/shrub wet land" and that the proposed maintenance "will maintain that change over the expected 30-year operational life of the transmission line," but that "different is not synonymous with adverse";
that the South Reedy Creek basin contains 31,448 acres of contiguous forested wetland and "[b]ased on the limited nature of the project's corridor, the six acre disturbance has been correctly characterized as de minimis"
that "[t]he structural change to the wetland has not had, and will not have, any deleterious consequences to water quality within Reedy Creek";
that "[t]he change from forested to herbaceous wetland was demonstrated to have had no adverse effect on the conservation of fish and wildlife in the South Reedy Creek basin";
that "[t]he wetland change occasioned by FPC's project will not adversely affect endangered or threatened wildlife species";
that transmission line rights-of-way cause "edge effect" which results in an increase in species number and diversity for wildlife in the corridors, as compared to the adjacent forest, and that while FPC touts the effect as essentially positive and DER describes the impact as negative, "[n]o finding is made generally on this issue, but rather in this case it is concluded that edge effect is not so significant as to constitute a negative consequence of the project";
that "wildlife species residing in the South Reedy Creek basin have been and will continue to be either positively affected or not affected at all by FPC's proposed project" and "the overall productivity of the wetland from the standpoint of vegetation and wildlife, when balanced across all plant and animal species, has not and will not be negatively affected";
that "[t]he demonstrated need for this facility and the public benefit which DER has admitted it will provide, when balanced with minimal changes to the forested wetlands system, lead to the finding that this project is not contrary to the public interest";
that of the existing and proposed transmission lines within a ten-year planning horizon, only three will directly cross any portion of the South Reedy Creek basin, and they will be located along existing rights of way and will have little, if any, impact on the forested component of the basin; and
that the only other projects suggested by DER for cumulative impact analysis were projects involving construction of berms, roads and pipelines, and developments of regional impact, which "were not shown to be similar in construction or amount of impact to FPC's proposed electrical transmission line, except for their linear nature."
Based on these and other findings of fact, the hearing officer concluded that FPC had met its burden of proof under section 403.918, that "[t]he minimal changes in the subject six acres will not, as proven by the applicant, produce adverse affects," and that since FPC had met the criteria, "mitigation is unnecessary."
DER filed exceptions to the hearing officer's conclusion that the change in wet land would not result in any adverse impact to the public interest factors of section 403.918(2), to her failure to consider the cumulative impact of the projects it had suggested, to her findings of fact regarding nest parasitism by the brownheaded cowbird, to her rejection of its evidence that there is a decline in forested wetlands in Florida, and to her findings that the maintenance program will eliminate nuisance plant species, that loss of some individual plants of a threatened species is inconsequential, and that the edge effect is not significant enough to constitute a negative consequence of the project.
ORDER OF REMAND
DER's Secretary Carol Browner issued an order of remand rejecting DER's exceptions to the hearing officer's' findings of fact except for the last one regarding edge effect, which the Secretary characterized as mixing findings of fact with conclusions of law and policy, and erroneously implying that there is a minimis exception to cumulative impact analysis. She ruled that the hearing officer had construed the "similarity" requirement too narrowly and that the magnitude of a project's environmental impact goes to the weight given it in the cumulative impact analysis, not to whether the project is considered. She found that corridors for roads, pipelines, and power lines are sufficiently similar in their environmental impacts, "not the least of which is the loss of forested wetlands." She ruled that the impact of the DRIs should have been considered either in the cumulative impact analysis or in the secondary impact analysis, and that the burden of proof in both analyses is on the applicant rather than on DER (i.e., FPC had the burden of showing that the suggested projects are not within the basin). She remanded for a revised cumulative impact analysis in which the proposed ICP project would be analyzed in light of the projects referenced in the recommended order, and for additional findings of fact concerning the cumulative and secondary impacts, whether the project is contrary to the public interest, and the adequacy of the proposed mitigation.
SUPPLEMENTAL RECOMMENDED ORDER ON REMAND
The hearing officer considered the eight existing and two pending dredge and fill projects presented by Medellin and Bass, and issued a supplemental recommended order in which she found, inter alia:
that no specific competent evidence was presented as to the actual impacts of the other projects, only "that destruction of wetlands adversely impacts fish and wildlife and their habitat generally," but that "[w]hatever the extent that wetlands were destroyed in the above-described projects, wetlands were not destroyed in the FPC project under review";
that "collectively, all of the projects inventoried by DER do not diminish or refute the reasonable assurance provided by FPC that its project has not and will not violate state water quality standards or that it is not contrary to the public interest" and "expressed (sic) consideration of these additional projects does not change previous undisturbed findings of fact";
that "the change has not and will not adversely effect (sic) threatened plant species, fish or wildlife," that "[t]hose individual plants and individual habitats which were affected when the clearing took place will regenerate and will be reestablished," and that "[w]hatever the impact on individual members of species or their habitats caused by the other projects . . ., there is no negative impact from accumulation of the FPC project";
that the edge effect of the project "is at least neutral, and is generally positive" and whether the edge effects of other projects are negative "is irrelevant, since the FPC project does not exacerbate those impacts"; and
that since the project is not contrary to the public interest, no mitigation is required, but if mitigation were appropriate, FPC's maintenance program "is consistent with the type of mitigation required in the past for clearing associated with an electrical transmission line."
Her conclusions of law included the following:
that "the FPC project does not negatively impact water quality or fish and wildlife and their habitats";
that FPC proved "that the wetlands existing prior to the clearing still exist, and will continue to exist" and that "[t]he change and conversion of wetland type did not diminish the wetlands function," and DER "presented no credible evidence that the addition of FPC's project to the prior, existing, and future impacts on the South Reedy Creek Basin has caused or will contribute to a cumulative or functional loss of forested wetlands in this area";
that "the edge effect created by FPC's project adds wildlife diversity and abundance to the Reedy Creek Swamp system and does not contribute to any negative effect of the other projects, which negative effect is wholly speculative"; and
that mitigation is unnecessary, but if DER concludes otherwise, "the project's adverse effects are adequately offset by the proposed preservation of six acres of similar forested wetland habitat and the proposed maintenance program, both of which have been considered acceptable forms of mitigation by DER in other cases."
FINAL ORDER
On August 13, 1992, Secretary Browner issued a final order denying FPC's permit application. She accepted the findings of fact in both recommended orders with the following exceptions: that "wetlands" were not destroyed; that the loss of six acres of forested wetlands is not permanent and that the "habitats which were affected when the clearing took place will regenerate and will be reestablished"; that the change from forested wetlands to herbaceous wetlands has not and will not adversely affect threatened plant species, fish or wildlife and that the edge effect "is at least neutral, and is generally positive"; and that there is no adverse impact when the project is considered cumulatively.
As to the hearing officer's finding that "wetlands" were not destroyed, the Secretary ruled that the finding was infused by a policy determination "that herbaceous wetlands are somehow environmentally equivalent to forested wetlands" and rejected this policy determination. She explained: "Forested wetlands are not environmentally equivalent to herbaceous wetlands. Each have their (sic) own unique environmental functions which are not interchangeable" and "the six acres of forested wetlands habitat is lost, i.e., destroyed, regardless of whether it is replaced by a different type of wetland system or by an asphalt parking lot."
As to the finding that the loss of six acres of forested wetlands is not permanent and that the habitats which were affected when the clearing took place will regenerate and will be reestablished, the Secretary found that "the unrebutted and undisputed competent substantial evidence shows that the forested wetland will not be allowed to regenerate itself for at least 30 years." 4/
As to the finding that the change from forested wetlands to herbaceous wetlands has not and will not adversely affect threatened plant species, fish or wildlife and that the edge effect "is at least neutral, and is generally positive," the Secretary rejected the contention that in general one type of wetland may be replaced with another with no adverse impact, finding:
Although the degree and kinds of impacts from
the conversion of forested wetlands to herbaceous wetlands may be findings of fact, whether such impacts are adverse environmental impacts and the weight accorded to them in the balancing of the public interest criteria are questions of law and
policy over which i have final authority and responsibility.
Alternatively, she ruled that even if these are questions of fact, they are infused with policy considerations within the special expertise of DER.
The Secretary found that she could not accept even under the facts of this case, that the loss of six acres of forested wetlands in an area of 31,448 acres of contiguous forested wetlands is minimis. She determined that the hearing officer's finding was essentially a conclusion of law that there is a minimis exception, which she rejected because "it would completely undercut the purpose of the cumulative impact analysis required by Section 403.919." She observed that since the larger the tract of undisturbed habitat, the greater its environmental value, "a piecemeal destruction of a large valuable forested wetlands habitat, as is the case here, is just as important, if not more important than the piecemeal destruction of smaller tracts of wetlands."
The Secretary noted that an increase in species diversity for wildlife in the corridor as compared to the diversity which existed in the undisturbed forested wetland "may be an adverse impact when the natural undisturbed ecosystem has a lower species diversity" and that competent substantial evidence indicated an adverse effect in the loss of valuable forested wetlands habitat.
She concluded that while the clearing of the corridor may have provided some benefit to wading birds, "the increase of species diversity over the naturally occurring species diversity in the undisturbed forested wetlands under the facts of this case is an adverse impact." She ruled that "on balance, the loss of six acres of forested wetlands is an adverse environmental impact decreasing the relative value of functions being performed by areas affected by the project and adversely affecting the conservation of wildlife and their habitats."
She rejected the hearing officer's finding that there is no adverse impact when this project is considered cumulatively, because it was based upon the hearing officer's rejected finding of no adverse impact from this project alone.
The Secretary reconsidered the balancing of the public interest criteria in section 403.918(2) in light of the rejected finding of no adverse impact. She determined that while there are no adverse impacts under criteria 1, 3, 4, and 6, the project has resulted in adverse impacts under criteria 2, 5, and 7.
Balancing these adverse effects against the benefit provided, she found that the project is contrary to the public interest. She rejected several of the hearing
officer's conclusions of law, and concluded that the mitigation proposed by FPC was not sufficient to offset the adverse impacts of the project. She denied the permit, noting:
[T]his project would have been permitted if FPC had offered sufficient mitigation in its application or during the hearing. Of course, this denial does not preclude FPC from reapplying with legally sufficient mitigation or a modified project.
ANALYSIS
The parties do not dispute that providing energy service promotes the public interest, that the ICP line must cross the Reedy Creek Swamp, and that some dredge and fill is therefore necessary, requiring a permit from DER. The statute makes it clear that before DER may grant this permit, FPC must provide it with reasonable assurance that the ICP project is not contrary to the public interest, and that in determining whether the ICP project is contrary to the public interest, DER must consider and balance the criteria set out in section 403.918, of which only (2), (5), and (7) are at issue in this case. 5/
FPC admits that it cut down all vegetation to the ground in the ICP right- of-way, removing the forest canopy in a sixty-foot swath through the swamp, and that its proposed maintenance activities will result in a change in the corridor from forested wetlands to herbaceous/shrubby wetlands. FPC's expert witnesses testified that if the corridor were left undisturbed, the forested wetland would regenerate in 30-50 years (i.e., it is technically not "permanently" changed into open marsh). However, they also testified, and the hearing officer found, that FPC plans to maintain the herbaceous/shrubby wetland "over the expected 30- year operational life of the transmission line," by periodically cutting to the ground all vegetation in fifty-feet-wide (at the poles) and thirty-four-feet- wide (between the poles) sections at the center of the corridor, and killing off all trees which will grow higher than thirty feet (i.e., most of the indigenous species) within the sixty-foot corridor.
For purposes of considering and balancing the statutory criteria, there is little doubt that the ICP project will be more permanent than temporary (criterion 5). This leaves the other two criteria at issue: "whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats" and "the current condition and relative value of functions being performed by areas affected by the proposed activity."
As DER's attorney observed at the hearing, this is to some extent an after- the-fact permitting process. DER was therefore required to compare the condition of the remote, undisturbed forested wetlands as they existed prior to FPC's clearing of the corridor (and the value of the functions being performed by those forested wetlands) to the condition of the herbaceous/shrubby wetlands that have resulted from the clearing (and the value of the functions being performed by those open wetlands), and to consider also the "edge effect" of the open corridor on the adjacent forested wetlands. Almost no data was presented on the specific forested wetlands before the clearing, except for the ten-year water quality data considered by Dr. Smart. We can know about these forested wetlands only from general qualitative assessments from the experts on both sides that Reedy Creek Swamp is a high quality wetland area (i.e., the undisturbed forested wetlands where the corridor was cut were of high quality)
The parties do not dispute that there are significant differences between the condition of the site before FPC's clearing activities and the present condition of the site, the most notable being that all the large trees are gone, and that this difference will be maintained by FPC for at least the next thirty years if the permit is granted. The parties also do not generally dispute that, in addition to other wetland functions which remain relatively unchanged, the forested wetland which existed within the area at issue provided a habitat for various species of plants and animals which cannot live in the herbaceous/shrubby wetland resulting from FPC's clearing and maintenance activities, and that the clearing of the corridor affected many of the other plants and animals in the corridor and in the adjacent forest in various ways, some considered positive and some considered negative.
The issues to be resolved are first, the extent of the "adverse" effects on the plants and animals in the corridor and in the adjacent forest, and second, whether these adverse effects outweigh the public benefit which will result from the project, the provision of reliable electric power to the area south of the swamp. The first issue requires factual findings, while the second issue requires a balancing of the adverse effects which are found to exist against the public benefit, to determine whether the project is "contrary to the public interest." s. 403.918(2), Fla. Stat. (1989) In making the latter determination, however, DER must consider not only the impact of the ICP projects but also "the impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought" and "the impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations." s. 403.919, Fla. Stat. (1989).
The hearing officer essentially dismissed the "cumulative impact analysis" in her recommended order, and Secretary Browner ruled that she had construed the "similarity" requirement too narrowly. When the Secretary remanded for a revised cumulative impact analysis, the hearing officer considered the existing and pending dredge and fill projects, but concluded that because wetlands were not destroyed in the ICP project and FPC provided reasonable assurance that its project will not violate state water quality standards or is not contrary to the public interest, "consideration of these additional projects does not change previous undisturbed findings of fact" (i.e., that the ICP project does not exacerbate the impacts from the other projects).
Secretary Browner correctly rejected the finding that wetlands were not destroyed, on the ground that it was based on a policy determination which she also rejected, "that herbaceous wetlands are somehow environmentally equivalent to forested wetlands." She also properly rejected the finding that there is no adverse impact when this project is considered cumulatively, which was based upon the hearing officer's rejected finding that there was no adverse impact from this project alone. We find that Secretary Browner's rulings were within her discretion in implementing the wetlands protection statutes.
The hearing officer did not find that there were 112 adverse effects from FPC's clearing of the six acres of forested wetlands. Rather, she found that "[b]ased on the limited nature of the project's corridor, the six acre disturbance-has been correctly characterized as de minimis." The Secretary ruled that she could not accept, even under the facts of this case, that the loss of six acres of forested wetlands in an area of 31,448 acres of contiguous forested wetlands is minimis, and that the hearing officer's finding is
essentially a conclusion of law that there is a minimis exception which "would completely undercut the purpose of the cumulative impact analysis required by Section 403.919." The Secretary properly rejected the hearing officer's conclusion that mitigation was unnecessary because there were no adverse affects from the project. These rulings, and her finding that the mitigation proposed by FPC was not sufficient to offset the adverse impacts of the project, were also within her discretion.
If FPC undertook this extensive and expensive litigation for the purpose of establishing a principle of no litigation for power line clearing activities through forested wetlands, it has failed in its endeavor. It must now decide whether it will reroute the proposed ICP power line through Reedy Creek Swamp or whether it will offer to preserve an appropriate amount of forested wetlands in mitigation of the adverse effects resulting from its clearing of the proposed ICP corridor.
The final order is AFFIRMED. FPC's motion for appellate attorney fees is DENIED.
ERVIN, J., CONCURS. ZEHMER, C. J., DISSENTS, WITH WRITTEN OPINION. ZEHMER,
(Dissenting)
The lengthy recitation of the evidence in the majority opinion confirms my view that the findings of fact in the hearing officer's recommended orders are supported by competent, substantial evidence, and Secretary Browner was bound by these findings of fact. s. 120.57(1)(b)10., Fla. Stat. (1991); Heifitz v.
Department of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1984). It is clear from the final order that the Secretary disagreed with the hearing officer's findings of fact and therefore modified certain facts to support her conclusion that the activity for which Florida Power sought a dredge and fill permit would result in adverse impacts contrary to the public interest Yet, no authority permits the Secretary to make such changes in the facts when supported by competent, substantial evidence because of the provisions in subsection 120.57(1)(b)10.
Specifically, Secretary Browner's final order concluded that there is a major difference between forested wetlands and herbaceous wetlands, and that Florida Power had destroyed forested wetlands by clear cutting, thereby leaving instead herbaceous wetlands. This result, she opines, amounts to an adverse impact contrary to the public interest, irrespective of whether the hearing officer's recommended order found as a matter of fact, supported by competent, substantial evidence, that the altered conditions of the land did not factually result in adverse impacts. According to the majority opinion, the Secretary "determined that the public interest in the extent of the impact on the environment from this destruction of the forest was a policy matter for its determination and not a question of fact to be resolved by the hearing officer." Agreeing, the majority affirms the final order on this rationale.
I dissent because I do not agree that this determination is purely a matter of public policy reserved for exclusive decision by the Secretary; rather, the determination must be based on matters of fact determined by the hearing officer on the evidence presented in accordance with section 403.918.
Section 403.918 requires two separate steps in determining whether the project covered by a dredge and fill application is not contrary to the public interest. Subsection 403.918(2), Florida Statutes (1989) (quoted in the
majority opinion at p. 6, supra) provides that in determining whether the project for which the application has been filed is not contrary to the public interest, the Department shall "consider and balance" the following seven criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
In accomplishing this balancing task, the Department should first determine the underlying facts that establish each of the seven listed criteria. Second, if any of the criteria indicate factually that an adverse impact will result, the Department must balance these adverse impacts against the positive impacts shown by any other criteria and reach a conclusion as to whether the project as a whole "is not contrary to the public interest." It is the function of the hearing officer to make determinations of predicate facts underlying the statutory criteria, as these are matters of existing or projected facts susceptible to ordinary methods of proof. Based on the facts so found by the hearing officer, assuming they are supported by competent, substantial evidence, it is the function of the Department or the Secretary to weigh the statutory criteria established by the facts and conclude whether the project as a whole is against the public interest. Only the weighing of the criteria involves matters of policy left to the agency's expertise and discretion.
The Secretary's final order found adverse impacts under criteria 2, 5, and
7 based on policy reasons, thereby differing from the hearing officer's findings of fact as to each of those criteria. Criterion 2 involves "[w]hether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats." Criterion 5 involves "[w]hether the project will be of a temporary or permanent nature." Criterion 7 involves "[t]he current condition and relative value of functions being performed by areas affected by the proposed activity." Each of these criteria is governed by matters of fact on which the applicant and the Department generally present evidence in disputed dredge and fill permitting cases, usually in the form of proof of existing conditions, extensive scientific data, and relevant opinions by qualified experts at a formal subsection 120.57(1) hearing. As often as not, the experts are in disagreement, and it is the function of the
hearing officer to judge the credibility and weight of all the evidence, including the contradictory expert opinions, and resolve disputed factual matters, usually by choosing to accept certain expert testimony while rejecting other expert testimony.
In my view, that is precisely what the hearing officer did in the instant case. Yet, the Secretary has rejected the hearing officer's findings of fact, not because they were unsupported by competent, substantial evidence, as provided in subsection 120.57(1)(b)(10), but because as a matter of policy the Secretary disagreed with the facts found by the hearing officer. Hence, the Secretary changed the facts under the guise of determinations by the hearing officer based on proof of existing and projected conditions and relevant expert opinion testimony; it is not a matter of pure policy to be left to the unrestrained discretion of the Secretary. Yet, characterizing this determination as one of policy rather than fact is key to sustaining the Secretary's order in this case. Because I believe that the majority opinion has not given appropriate recognition to the differing functions of the hearing officer and the Secretary in this case and has approved the Secretary's misuse of her discretion as to policy, I respectfully dissent.
ENDNOTES
1/ The areas consist of a corridor along State Road 17/92, in which existing transmission poles will be replaced with larger poles, and two other wetlands south of State Road 17/92 in which new poles will be installed. The application was modified in November 1991 to exclude the area along State Road 17/92, and a separate permit was sought for the northern four miles of corridor.
2/ The modified application reduced this to 301.106 cubic yards.
3/ FPC denied any dredge and fill on its part, and at the hearing in December 1991 presented evidence that adjacent logging activities by the landowner had utilized the cleared corridor as a "skid trail" for removing timber.
4/ The hearing officer found that vegetation will be maintained at ground or water level for seventeen feet on either side of the poles while the outer thirteen feet will be allowed to regenerate except for fast growing trees, and that this change will be maintained for at least the expected thirty-year operational life of the line.
5/ We note that the Florida Legislature has very recently enacted chapter 93- 24, Laws of Florida, which creates a limited general permit for electric utilities. However, the parties agree that the ICP project, the main impact site of which exceeds six acres, does not qualify for the new general permit, which is limited to projects with no more than one impact site exceeding a half acre, that site not to exceed two acres.
| Issue Date | Proceedings |
|---|---|
| May 10, 1993 | Final Order Dismissing Petition for Relief From An Unlawful Employment Practice filed. |
| Aug. 14, 1992 | Final Order filed. |
| Jun. 30, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held December 2 through 6, 1991. |
| May 15, 1992 | DER Exhibits 11D & 11E filed. |
| May 11, 1992 | Department of Environmental Regulation's Supplemental Findings of Fact and Conclusions of Law filed. |
| May 11, 1992 | DER's Amended Supplement Findings of Fact and Conclusions of Law filed by D. MacLaughlin filed. |
| May 08, 1992 | Florida Power Corporation`s Response to Order of Remand and Supplemental Proposed Findings of Fact, Conclusions of Law and Recommended Order w/(TAGGED) computer disk (supplemental Recommended Order) filed. |
| Apr. 23, 1992 | Order Accepting Remand and Establishing Schedule For Submittal Of Supplemental Proposed Findings OF Fact And Conclusion of Law sent out. |
| Apr. 23, 1992 | Case reopened per Mary Clark per remand. |
| Apr. 15, 1992 | State of Florida Department of Environmental Regulation`s Response to Florida Power Corporation`s Motion to Establish Schedule and Procedure Regarding Order of Remand filed. |
| Apr. 10, 1992 | (Petitioner) Motion to Establish Schedule and Procedures Regarding Order |
| Apr. 03, 1992 | Order of Remand filed. |
| Feb. 19, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 12/02-06/91. |
| Jan. 30, 1992 | State of Florida Department of Environmental Regulation's Proposed Recommended Order filed. |
| Jan. 30, 1992 | Transcript (Vols 1-7) filed. |
| Jan. 30, 1992 | Florida Power Corporation`s Proposed Findings of Fact, Conclusions of Law, and Recommended Order filed. |
| Jan. 30, 1992 | (computer disk) Final Recommended Order; Motion to Exclude Evidence of Alternative Sites and Memorandum in Support Thereof; Motion to Exclude Evidence From the Record and Memorandum in Support Thereof; FloridaPower Corporation's P roposed Recommended Orde |
| Jan. 23, 1992 | (Petitioner) Motion for Leave to Exceed Page Limit filed. |
| Dec. 16, 1991 | Exhibits 21(a) & 21(b) ; & Cover Letter to MWC from D. MacLaughlin filed. |
| Dec. 03, 1991 | (Petitioner) Motion to Compel filed. |
| Dec. 03, 1991 | (Respondent) Notice and Certificate of Department of Environmental Regulation`s Responses to Florida Power Corporation`s Second Set of Interrogatories filed. |
| Dec. 02, 1991 | Final Hearing Held 12/2-6/91; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Dec. 02, 1991 | Order sent out. (rulings on telephone conference hearing motions; Petitioner`s Motion for leave to proffer evidence on taking issues granted; Respondent`s motion to compel production is granted, Petitioner`s Motion in Limine is denied) |
| Nov. 26, 1991 | Notice of Taking Deposition filed. |
| Nov. 26, 1991 | (Petitioner) Notice of Taking Deposition filed. |
| Nov. 26, 1991 | Joint Stipulation & cover Letter filed. |
| Nov. 26, 1991 | (Petitioner) Notice of Taking Deposition filed. |
| Nov. 25, 1991 | (Respondent) Response to Motion For Leave to Proffer Evidence and Response to Motion in Limine, and Motion to Compel Production of Documents w/Exhibits 1&2 filed. |
| Nov. 25, 1991 | (joint) Stipulation to Modification of Permit Application w/Exhibit-A filed. |
| Nov. 19, 1991 | Notice of Telephonic Hearing filed. (From Michael P. Petrovich) |
| Nov. 18, 1991 | Florida Power Corporation's Responses to DER'S First Request for Admissions; Florida Power Corporation's Response to Respondent's Request for Production of Documents filed. |
| Nov. 15, 1991 | Petitioner`s Motion in Limine filed. |
| Oct. 28, 1991 | (Petitioner) Motion For Leave to Proffer Evidence on Taking Issues filed. |
| Oct. 25, 1991 | (Petitioner) Notice of Service of Petitioner Florida Power Corporation's Second Set of Interrogatories filed. |
| Oct. 22, 1991 | Amended Notice of Taking Deposition filed. (From Frank E. Matthews) |
| Oct. 18, 1991 | Department of Regulation`s First Request for Admissions; Department of Environmental Regulation`s First Request for Production of Documents to Petitioner, Florida Power Corporation filed. (From Douglas MacLaughlin) |
| Oct. 16, 1991 | Amended Notice of Taking Deposition filed. (From Michael P. Petrovich) |
| Oct. 16, 1991 | Response to Amended Notice of Hearing filed. |
| Oct. 08, 1991 | (Fl Power Corp) Notice of Taking Depositions (2); Amended Notice of Taking Depositions filed. |
| Oct. 07, 1991 | Notice of Taking Deposition Duces Tecum filed. (From Douglas MacLaughlin) |
| Oct. 04, 1991 | Prehearing Order sent out. |
| Oct. 04, 1991 | Order and Amended Notice of Hearing sent out. (hearing set for Dec. 2-5, 1991; 9:00am; Tallahassee). |
| Oct. 02, 1991 | Notice of Taking Deposition filed. (From Michael E. Matthews) |
| Oct. 01, 1991 | (Petitioner) Status Report and Request for A Change in Location of the Final Hearing w/Exhibits A&B filed. |
| Aug. 16, 1991 | Order sent out. (DER`S motion to Strike the following paragraphs from FPC`S petition: 5(k), 6(i)(6), 6(i)(7), and 6(i)(8) granted). |
| Aug. 07, 1991 | (Petitioner) Response to Department of Environmental Regulation's Motion to Strike Taking Claims filed. (From Douglas H. Maclaughlin) |
| Jul. 29, 1991 | Department of Environmental Regulation's Motion to Strike Taking Claims filed. (From Douglas H. Maclaughlin) |
| Jul. 16, 1991 | (DER) Notice of Taking Deposition filed. |
| Jun. 25, 1991 | Notice of Service of Responses to Interrogatories; Petitioner Florida Power Corporation`s Responses to Respondent State of Florida, Department of Environmental Regulation`s Interrogatories filed. (From Michael P. Petrovich) |
| Jun. 24, 1991 | Department of Environmental Regulation's Response to Petitioner's First Set of Interrogatories; Department of Environmental Regulation's Response to Request for Admissions filed. (from Douglas H. Maclaughlin) |
| Jun. 11, 1991 | Order and Amended Notice of Hearing sent out. (Hearing rescheduled for Dec. 3-6, 1991; 9:00am; Orlando). |
| Jun. 10, 1991 | Joint Motion For Continuance w/exhibit-A filed. (From Michael P. Petrovich) |
| Jun. 05, 1991 | Amended Notice of Taking Deposition filed. (From Frank E. Matthews) |
| Jun. 03, 1991 | Petitioner Florida Power Corporation's Request for Production of Documents filed. (from Frank E. Matthews) |
| May 23, 1991 | Notice of Service of Petitioner, Florida Power Corporations First Set of Interrogatories; (2) Notice of Taking Depositions filed. |
| May 23, 1991 | cc: Petitioner Florida Power Corporations Request for Admissions filed. |
| May 23, 1991 | Notice and Certificate of Service of Interrogatories; Petitioner Florida Power Corporation's First Set of Interrogatories to Respondent, State of Florida, Department of Environmental Regulation filed. (From F.Mathews) |
| Apr. 26, 1991 | Prehearing Order sent out. (Prehearing Stipulation due by July 10, 1991). |
| Apr. 26, 1991 | Notice of Hearing sent out. (hearing set for July 16-19, 1991; 9:00am; Orlando). |
| Apr. 19, 1991 | Joint Response to Notice of Assignment filed. |
| Apr. 08, 1991 | Initial Order issued. |
| Apr. 04, 1991 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition for Formal Administrative Hearing; Notice of Permit Denial filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 13, 1994 | Opinion | |
| Aug. 13, 1992 | Agency Final Order | |
| Feb. 19, 1992 | Recommended Order | On remand from DER for consideration of cumulative impact of various other projects power line project still not contrary to public interest. |
