STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: )
) FLORIDA POWER CORPORATION )
DEBARY-WINTER SPRINGS ) CASE NO. 92-4019TL 230-kV TRANSMISSION LINE ) OGC NO. 92-1232 CORRIDOR CERTIFICATION )
APPLICATION NO. TA-92-09 )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on January 25 and 26, 1993, in Altamonte Springs, Florida, and a public hearing was held on January 26, 1993, in DeBary, Florida, and on January 27, 1993, in Altamonte Springs, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For the Applicant, Carolyn S. Raepple Florida Power Attorney at Law
Corporation: 123 South Calhoun Post Office Box 6526
Tallahassee, Florida 32314-6526
Pamela I. Smith Attorney at Law
Post Office Box 14042
St. Petersburg, Florida 33733-4042
For the Department Gary C. Smallridge,
of Environmental Assistant General Counsel
Regulation: Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
For the Department Lucky Osho
of Community Assistant General Counsel Affairs: Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
For the St. Johns Clare E. Gray
River Water Assistant General Counsel
Management Post Office Box 1429
District: Palatka, Florida 32078 STATEMENT OF THE ISSUE
The issue for determination in this proceeding is whether certification of the corridor for the DeBary-Winter Springs 230
transmission line), including the construction required for the conversion of the Lake Emma Substation from 115
approved with conditions, or denied under the Transmission Line Siting Act, Sections 403.52 - 403.5365, Florida Statutes (1991).
PRELIMINARY STATEMENT
The Applicant, Florida Power Corporation (FPC), presented six witnesses and FPC Exhibits 1-23, 25, 27, 30-32, 35, and 36 (late-filed) in support of the DWS transmission line Application for Corridor Certification (Application).
Testifying on behalf of FPC were Richard Zwolak, an expert in land use planning and land use compatibility analysis; Kenneth D. Simpson, an expert in transmission line engineering; S. Fay Baird, an expert in hydrology and water quality; David W. Hall, an expert in botany and wetlands delineation; James R. Newman, an expert in wildlife ecology; and Frederick M. Dietrich, an expert in transmission line electrical engineering.
The Department of Environmental Regulation (DER) presented the testimony of Joseph M. Norton, an expert in electric and magnetic field compliance with Chapter 17
environmental impacts to wetlands due to clearing, dredging and filling, wetlands ecology, and compliance with DER rules concerning wetlands; and Hamilton S. Oven, Administrator, DER Siting Coordination Office, testifying as spokesman for DER on its recommendations relative to certification. In addition, DER Exhibits 1 - 5 were admitted into evidence.
St. Johns River Water Management District (SJRWMD) presented two witnesses and introduced SJRWMD Exhibits 1 and 2 into evidence. Testifying on behalf of SJRWMD were Douglas Dycus, an expert in civil engineering with a specialty in surface water management systems; and Glenn C. Lowe, Jr., an expert in wetland ecology and the permitting of surface water management systems.
During the course of the certification hearing, two public hearings were held for the purpose of allowing members of the public an opportunity to present evidence and testimony regarding the certification of the DWS transmission line corridor. On January 26, 1993, a public hearing was held in DeBary, Florida, as requested by Volusia County. No member of the public presented any testimony or evidence at this public hearing. On January 27, 1993, a second public hearing was held in Altamonte Springs, Florida, as requested by Seminole County. No member of the public presented testimony or evidence at the second public hearing. However, Mary Raulerson, representing the Seminole County Expressway Authority, requested permission to ask questions of FPC regarding its plans between State Road (SR) 46 and County Road (CR) 46A. After off-the-record discussions with representatives of FPC, Ms. Raulerson chose not to offer any testimony or evidence at this public hearing. No other member of the public presented testimony at this public hearing.
The transcript of the proceedings was filed with the Division of Administrative Hearings on March 12, 1993. The parties filed a joint proposed recommended order on March 12, 1993. Because no other proposed findings of fact were filed, this paragraph shall constitute the only ruling made thereon.
Proposed findings of fact 1-60 are adopted in substance as modified in this Recommended Order.
The following abbreviations are used frequently in this Recommended Order:
Application - Florida Power Corporation DeBary-Winter Springs 230 Transmission Line Application for Corridor Certification.
DCA - Department of Community Affairs.
DER - Department of Environmental Regulation. DOT - Department of Transportation.
DWS transmission line - DeBary-Winter Springs 230
ECFRPC - East Central Florida Regional Planning Council. FPC - Florida Power Corporation.
GFWFC - Game and Fresh Water Fish Commission. PSC - Public Service Commission.
SJRWMD - St. Johns River Water Management District.
FINDINGS OF FACT
Procedural Matters.
Filing of the Application and Notices. FPC filed the DWS transmission line Application on July 2, 1992. The Notice of Receipt of Transmission Line Certification Application, the Notice of Certification Hearing on Proposed Transmission Line Corridor, and the Reminder Notice of Certification Hearing were published in newspapers of general circulation in Volusia and Seminole Counties, and in the Florida Administrative Weekly in accordance with the requirements of Section 403.527, Florida Statutes (1991), and Rule 17
Florida Administrative Code
Stipulations. DCA, GFWFC, ECFRPC, DOT, Volusia County, Seminole County, City of Lake Mary, and City of Sanford have entered into stipulations with FPC regarding the certification of the DWS transmission line. These state, regional, and local agencies have agreed that the location of the DWS transmission line corridor and the construction and maintenance of the transmission line as set forth in the Application will, under the provisions contained in the stipulations, comply with the nonprocedural standards of each agency and/or be consistent and in compliance with the local government comprehensive plans and land use regulations of the local governments. It was further agreed that the Siting Board should adopt Conditions of Certification substantially in compliance with those set forth in Attachment A to this Recommended Order.
No party filed an alternate corridor for consideration in this proceeding.
Summary of Need for DWS Transmission Line.
The Determination of Need for the DWS transmission line was issued by the PSC pursuant to Section 403.537, Florida Statutes, by Order No. 24993, dated August 29, 1991. The several reasons cited in the Determination of Need Order for why the DWS transmission line is needed in the Central Florida area are summarized below:
First, the DWS transmission line is needed to enable FPC to continue to meet its reliability criteria in the Greater Orlando area. Specifically, the DWS transmission line is needed to maintain reliability in case of a single contingency outage of either the Sanford-North Longwood 230
or the North Longwood-Winter Springs 230
Secondly, the DWS transmission line is needed for transmission of electrical power if additional generating units are added to the FPC DeBary power plant site or, in the absence of new generating units, to facilitate the flow of power from north of the DeBary power plant south to the Greater Orlando area.
Project Design.
The DWS transmission line will consist of a single overhead 230
circuit and will proceed from the FPC DeBary power plant site located in Volusia County south to the Winter Springs Substation in Seminole County. The total length of the DWS transmission line corridor is 19.1 miles. The transmission line corridor extensively follows existing transmission line rights-of-way, roadways, and other linear facilities. From the St. Johns River south to the Winter Springs Substation, the DWS transmission line will replace an existing transmission line or be located within an existing transmission line right-of- way. The transmission line corridor ranges in width from 350 feet to one mile.
As part of this certification, FPC is seeking approval for the conversion of the Lake Emma Substation located in the City of Lake Mary from 115-kV to 230
kV to 230
from the DWS transmission line. An entire detailed site plan review package for the Lake Emma Substation was included as Appendix C to the Application.
Location of the Preferred Corridor, Land Use, and Biophysical Environment.
DeBary Power Plant to St. Johns River
The proposed corridor begins in the vicinity of the FPC DeBary power plant in Volusia County and proceeds south to Konomac Lake, the cooling pond for the Florida Power & Light Company (FPL) Sanford power plant. The corridor is approximately 0.5 miles wide along this portion and follows the CSX Railroad and two existing transmission line rights-of-way in this area. At the southern end of Konomac Lake, the corridor expands to one mile wide to encompass several linear facilities, including U.S. Highway 17/92 and several existing transmission line rights-of-way. South of the FPL Sanford plant, the corridor follows the existing FPC Turner-North Longwood (TNL) transmission line right-of- way to the St. Johns River.
From the FPC DeBary power plant to the St. Johns River, the corridor crosses unincorporated portions of Volusia County. Predominant land uses in this portion of the corridor are characterized by utilities such as the FPC DeBary power plant, a wastewater treatment plant, and the FPL Sanford power plant.
This portion of the corridor also includes numerous linear facilities, including the CSX Railroad, U.S. Highway 17/92, and numerous transmission line rights-of- way. Low and medium-density residential housing, including a portion of the Orlandia Heights Subdivision, is also located along this portion of the corridor.
The types of natural land cover in the portion of the corridor from the DeBary power plant to the St. Johns River include areas of sand pine scrub, pine flatwoods, wet prairies, and improved pastures. Much of the natural land cover has been disturbed by development. Major waterbodies crossed by the corridor in this area include Konomac Lake, which is a manmade cooling pond, and the St. Johns River.
St. Johns River to the Winter Springs Substation.
After the corridor crosses the St. Johns River, it enters Seminole County. From the St. Johns River, the corridor proceeds south and crosses U.S. Interstate 4 (I
FPC TNL transmission line right-of-way along this portion of the corridor. Land uses in this portion of the corridor include undeveloped land, low-density residential development, transportation corridors, and utilities. Just south of the St. Johns River, the natural land cover is composed of cypress and cleared marsh and pasture. Where the corridor approaches the I
there are some areas of mixed wetland hardwood forest. The St. Johns River is the only major waterbody in this area of the corridor.
After the corridor crosses I
a portion of the City of Sanford. The corridor widens to 2,500 feet in this area to allow flexibility for siting around the proposed Seminole Mall and the I
corridor include undeveloped land, utility corridors (FPC DeBary-Altamonte Springs/DeBary-North Longwood (DA/DL) and TNL transmission line rights-of-way), transportation corridors (I
Pine/mesic oak, citrus groves, improved pasture, and xeric oak comprise the natural land cover in this portion of the corridor. No major waterbodies are crossed in this portion of the corridor.
The corridor enters the City of Lake Mary after it crosses 25th Street (CR 46A). Just south of 25th Street, the corridor narrows to 600 feet to avoid existing and proposed development and follows Rinehart Road south to Lake Mary Boulevard. The predominant land uses in this portion of the corridor are utilities (DA/DL and TNL transmission line rights-of-way and the Lake Emma Substation) and transportation (Rinehart Road). Other land uses include commercial, industrial, and institutional land uses. Natural land cover is comprised of improved pasture, longleaf pine/xeric oak, and xeric oak communities. The corridor crosses Lake Emma and some other small, unnamed waterbodies in this portion of the corridor.
South of Lake Mary Boulevard, the corridor enters unincorporated Seminole County. The corridor follows Rinehart Road, and then the FPC DA/DL and TNL transmission line rights-of-way south to the area of the FPC North Longwood Substation. In the vicinity of the North Longwood Substation, the corridor widens to 3,800 feet to allow flexibility in siting the DWS transmission line around the substation area. Land uses in this portion of the corridor include transmission line rights-of-way, commercial, industrial, and residential development. Remnants of a mixed hardwood forest make up the predominant natural land cover in this area. No major named waterbodies are crossed by the corridor in this area.
After exiting the FPC North Longwood Substation area, the corridor narrows to approximately 800 feet, turns southeast, and proceeds along the northern portion of the City of Longwood to U.S. Highway 17/92. Predominant
land uses along this portion of the corridor are the FPC North Longwood Substation, several transmission line rights-of-way, industrial development, undeveloped land, and some low-density residential development. Natural land cover is characterized primarily by small areas of wetland hardwood forest that are located on the edge of the Spring Hammock Conservation and Recreation Lands (CARL) property. No named waterbodies are crossed by the corridor in this area.
From U.S. Highway 17/92, the proposed corridor turns south and proceeds through portions of the Cities of Winter Springs and Casselberry, and then turns east and proceeds to the Winter Springs Substation, the termination point of the proposed corridor. The corridor ranges in width from 350 to 400 feet in this area and follows the North Longwood-Rio Pinar (NR) 230 transmission line. FPC intends to locate the proposed DWS transmission line on a structure with the NR transmission line along this portion of the corridor. Because the corridor is relatively narrow in this area, the existing NR transmission line is the predominant land use within this portion of the corridor. Other land uses adjacent to the existing transmission line include a wastewater disposal facility, medium and high-density residential development, and some industrial development. The types of natural land cover along this portion of the corridor include small areas of sand pine, improved pasture, disturbed pine flatwoods, and disturbed oak. Gee Creek is the only named waterbody crossed by the corridor in this area.
Exclusion Areas. Pursuant to Condition of Certification S
agreed to exclude certain areas within the proposed corridor from consideration when locating the DWS transmission line right-of-way. A map showing the general location of these "exclusion" areas is set forth in Appendix 5 to the Conditions of Certification. (See Attachment A to the Recommended Order.)
Proposed Design, Construction, and Maintenance of the DWS Transmission Line.
Structures. Four typical structures will be used for the DWS transmission line. Double-circuit, single-pole structures with conductors in a vertical configuration will be used where the transmission line will be collocated with another transmission line or be designed to have a double- circuit capability. A single-pole structure with conductors in a vertical configuration will be used where only a single-circuit structure is required for the DWS transmission line. A triple-circuit, single-pole structure with the upper transmission line conductors in a vertical configuration and the underbuilt transmission line conductors in a delta configuration will be used where the DWS transmission line will be located on the same structure with two other transmission line circuits. Typical span lengths between structures will range between 600 to 1,000 feet. Typical structure heights will range from 80 to 135 feet where the DWS transmission line is either located in a single- circuit configuration, designed to have a double-circuit configuration, or located in a double-circuit configuration with one other transmission line circuit. Where the DWS transmission line is located with two other transmission line circuits, structure heights will range from 160 to 170 feet.
Collocation of the DWS Transmission Line. From the DeBary power plant site to the southern portion of Konomac Lake, the DWS transmission line will be constructed within or immediately adjacent to an existing linear facility such as transmission line or railroad rights-of-way. From the southern portion of Konomac Lake to the St. Johns River, the DWS transmission line will be within or immediately adjacent to an existing linear facility right-of-way or will replace an existing transmission line which will be removed. From the St. Johns River
to the North Longwood Substation, the DWS transmission line will replace an existing transmission line which will be removed. From the North Longwood Substation to the Winter Springs Substation, the DWS transmission line will be located with one or more existing transmission line circuits on a single transmission line structure.
Phases of Construction. Construction of the DWS transmission line will take place in several phases: right-of-way clearing, access road and structure pad construction, dismantling of existing transmission lines (where applicable), foundation placement, structure erection, conductor and shield wire stringing, and clean-up.
Clearing. Very little clearing will be required for the DWS transmission line since the majority of the right-of-way will be within or adjacent to an existing transmission line or other linear facility rights-of- way. Where clearing is required, rotary mowers will be used in upland, non- scrub habitats. In upland scrub habitats and wetland areas, restrictive clearing will be used. Restrictive clearing will be done using hand-clearing tools or low-ground pressure machinery. Restrictive clearing includes the removal of vegetation from areas extending from the transmission line centerline to 15 feet on each side of the outer conductors and in work areas approximately
100 feet by 150 feet around structure sites. In addition, where access from an available adjacent road is required, a path approximately 20-25 feet wide may be cleared for such access.
Access Road and Structure Pad Construction. While access roads and structure pads are required for the construction and maintenance of the DWS transmission line, no new access roads are anticipated for the proposed transmission line. Access to the DWS transmission line will be from adjacent public roads or via existing access roads. Some of the existing access roads may need upgrading. In particular, the access road south of the St. Johns River will need to be upgraded. In some wetland areas, temporary construction matting in lieu of access road upgrade can be used. Design requirements for access roads and structure pads are described generally in the Application and Condition of Certification S
Dismantling Existing Transmission Lines. Where the DWS transmission line will replace an existing transmission line, dismantling of the existing transmission line will be required. Dismantling of the existing transmission line involves removing the conductors and shield wires, disassembling the insulator assemblies, and removing the existing transmission line structure.
Foundation Placement. Depending on the soil conditions at structure sites, three types of foundations are possible for the DWS transmission line structures. Direct embedded foundations are constructed by augering a shaft in the ground, placing the foundation in the ground, and backfilling around the foundation shaft with either crushed rock or concrete. Concrete-filled caisson foundations are constructed by augering a hole, placing reinforcing steel and anchoring bolts in the shaft, and filling the shaft with concrete. Vibratory- driven foundations are constructed by driving the foundation pole into the ground with a vibratory hammer. Any excavated material from foundation construction will be dispersed around the foundation site or, if in a wetland area, removed and disposed of in a suitable upland area.
Structure Erection. Transmission line structures will be assembled on the ground and then placed into the foundations using cranes and other support
vehicles. Once the structures have been raised, insulator assemblies and hardware components will be attached.
Conductor and Shield Wire Stringing. Standard wire pulling and tensioning equipment will be used to string the conductors and shield wires on the DWS transmission line structures.
Clean-up. Clean-up activities will take place through all phases of the construction process.
Duration of Construction. Along a typical mile of the DWS transmission line, each phase of construction is expected to last one to two weeks. The entire construction of the DWS transmission line should take approximately 18 months.
Transmission Line Load Design. The DWS transmission line is designed for a nominal operating voltage of 230,000 volts with a maximum operating voltage of 242,000 volts. The maximum current rating (MCR) for the DWS transmission line is 1,980 amperes.
Transmission Line and Right-of-Way Maintenance. Transmission lines typically require minimal maintenance. Annual inspections of the DWS transmission line will be made by air or ground to ensure the safe operation of the transmission line. Maintenance activities in the right-of- way will be consistent with the initial clearing, if any, of the right-of-way. Restrictive clearing practices will continue to be used to maintain the right-of-way in upland scrub and wetland areas. Herbicides approved by the U.S. Environmental Protection Agency will be used on targeted species and will be applied by a licensed applicator pursuant to Condition of Certification S
Compliance with Codes and Engineering Standards. Construction of the DWS transmission line will comply with applicable construction and material codes, including the National Electrical Safety Code (Ed. 1990), the DOT Utility Accommodation Guide (May 1990), and the electric and magnetic field standards of Chapter 17
line will also comply with applicable engineering and material standards issued by the American Society of Civil Engineers (ASCE), the Institute of Electrical and Electronic Engineers (IEEE), the American National Standards Institute (ANSI), American Society of Testing Material (ASTM), and the American Concrete Institute (ACI).
Construction of the Lake Emma Substation. The DWS transmission line will provide power to the existing Lake Emma Substation. This connection will require that the Lake Emma Substation be converted from 115
capacity. Conversion of the Lake Emma Substation will involve relocation of the boundary fence, followed by foundation construction and equipment installation. The site plan review package for the Lake Emma Substation conversion was included in the Application and approved by the City of Lake Mary and the SJRWMD, agencies with jurisdiction over the Lake Emma Substation site. The SJRWMD has agreed that the stormwater management system as proposed to serve the Lake Emma Substation conversion is consistent with the applicable nonprocedural standards of the District. Construction on the Lake Emma Substation conversion will last approximately nine months.
Stipulations Concerning the Design of the DWS Transmission Line. FPC entered into stipulations with DER, DCA, GFWFC, DOT, DNR, ECFRPC, Seminole County, Volusia County, the City of Casselberry, the City of Lake Mary, and the
City of Sanford regarding Conditions of Certification applicable to the location and construction of the proposed transmission line and Lake Emma Substation conversion. All of the Conditions of Certification regarding the design or location of the proposed transmission line and Lake Emma Substation construction are encompassed within the ranges of design and location proposed in the Application. Appropriate Conditions of Certification affecting the location and construction of the DWS transmission line and Lake Emma Substation are included in Attachment A to this Recommended Order.
Impacts of the DWS Transmission Line Upon the Public.
Impacts on Existing Land Uses.
The location, construction, and operation of the DWS transmission line in the proposed corridor will have minimal impact upon adjacent land uses.
South of the St. Johns River, the DWS transmission line will replace an existing transmission line or be located within existing transmission line rights-of-way. North of the St. Johns River, the DWS transmission line will be either within or adjacent to an existing linear facility right-of-way, or replace an existing transmission line. Collocation of the DWS transmission line will minimize the need for additional right-of-way and minimize disruption to existing land uses.
To further minimize the impact to adjacent land uses, FPC has agreed to exclude certain areas of the proposed transmission line corridor from consideration for right-of-way location and transmission line construction. These exclusion areas, which are set forth in Condition of Certification S include certain residential developments, community facilities, public lands, and environmentally sensitive areas.
There are no known significant archaeological sites within the corridor. To ensure that significant archaeological artifacts are not disturbed, a survey of archaeologically sensitive areas will be conducted prior to the construction of the DWS transmission line.
Construction Noise: Noise from the construction of the DWS transmission line will be that typically associated with trucks and other construction equipment. Construction activities will be scheduled to take place during daylight hours only.
Transmission Line Noise.
During fair weather, the DWS transmission line will not emit audible noise above ambient noise levels. During wet weather, including heavy fog, when water droplets may form on the DWS transmission line conductors, audible noise may be emitted from the transmission line. Where the DWS transmission line is located alone within a right-of-way, the maximum audible noise level at the edge of the right-of-way will be approximately 42.5 dBA. Where the DWS transmission line is located with one or more other transmission lines, the audible noise at the edge of the right-of-way will vary between 36.7 dBA to 47.3 dBA depending on the number of transmission lines and the width of the right-of-way.
The noise from the proposed DWS transmission line in foul weather will be similar to the sound of rain falling in a field. Therefore, transmission line noise may be masked by the rain during foul weather.
The audible noise from the DWS transmission line will comply with the noise ordinances of Seminole County, the City of Casselberry, and the City of Longwood. The City of Sanford has a unique noise standard which establishes individual noise standards at different octave bands. Audible noise from the DWS transmission line will, in foul weather, exceed the standard in the four highest octave bands set forth in the noise standard; however, the sound of rainfall during foul weather also will exceed the standard at those four frequency bands. Furthermore, there is no practical way for the proposed transmission line to comply with the City of Sanford noise standard. Therefore, FPC seeks and is entitled to a variance from this portion of the Sanford noise standard.
Radio and Television Interference.
The proposed DWS transmission line will not interfere with frequency- modulated (FM) radio reception or the audio portion of television, which is transmitted on FM frequency. Amplitude-modulated (AM) radio transmission and the video portion of television transmission may be susceptible to interference from the DWS transmission line. The amount of interference is dependent upon the strength of the signals from the radio station and television station transmitters and the strength of the interference from the transmission line.
During fair weather, radio transmission from over 90% of the Type A AM radio stations would be received without interference along the edge of the right-of-way. At a distance of 10 feet or more from the edge of the right-of- way, 100% of the transmissions from Type A stations would be received without interference. Sixty-three percent of the weaker Grade B AM radio stations would be received at a distance of 10 feet or greater from the edge of the right-of- way, and 97% of the Grade B stations would be received at a distance of 15 feet or more from the edge of the right-of-way. Natural radio interference from foul weather will mask any increase in interference from the transmission line during foul weather conditions.
Transmission line interference with the video portion of television reception is very rare. The proposed DWS transmission line will not interfere with the audio or video television reception from either Grade A or Grade B television transmissions at the edge of the right-of-way in either fair or foul weather.
Pursuant to Condition of Certification S
complaints of radio and television interference and will take appropriate corrective action for impacts to audio or television interference caused by the proposed transmission line.
Other Communications Equipment. The transmission line will not cause any interference with cable television, telephone, or cellular telephone reception.
Electric and Magnetic Fields.
The DWS transmission line, like all electrical equipment, will produce electric and magnetic fields. Electric fields from transmission lines are measured in kilovolts per meter (kV/m) and magnetic fields are measured in milligauss (mG). Standards for electric and magnetic fields produced by transmission lines are set forth in Chapter 17
Those standards limit the electric field for a 230
more than 8 kV/m within the right-of-way and 2 kV/m at the edge of the right-of- way, and the magnetic field to no more than 150 mG at the edge of the right-of- way.
Calculations to demonstrate compliance with the standards in Chapter
17
at the edge of the right-of-way and calculations for magnetic fields at the edge of the right-of-way are made using the Bonneville Power Administration (BPA) computer program. The electric and magnetic fields are calculated based on the design of the transmission line, the maximum operating voltage of the transmission line, the maximum current rating for the transmission line, and the minimum conductor-to-ground clearance.
The DWS transmission line will comply with the electric and magnetic field standards in Chapter 17
detailed design of the DWS transmission line will not be finalized until the right-of-way is identified following certification, electric and magnetic field calculations for 14 typical and other probable transmission line configurations were performed for the proposed DWS transmission line. These calculations are included in Appendix G to the Application. All of the transmission line configurations for which calculations are reflected in Appendix G of the Application will be below the electric and magnetic field limits established by Chapter 17
Condition of Certification S
developed during the final design of the DWS transmission line that is not included in Appendix G to the Application at least 90 days prior to the start of construction.
Impacts of the DWS Transmission Line Upon the Environment: Water Resources, Vegetation, and Wildlife.
Water Quality. The location, construction, and operation of the DWS transmission line in the proposed corridor will not have an adverse effect on the quality of the water within or adjacent to the proposed corridor. Location of the DWS transmission line adjacent to or within existing cleared rights-of- way minimizes construction and clearing activities which could contribute to erosion and turbidity. Water quality treatment is currently provided for some existing access roads by roadside swales. Additionally, where required, turbidity barriers and revegetation will be used to control erosion and turbidity from placement of poles and associated construction. Finally, pursuant to Condition of Certification S
water quality treatment methods if necessary to comply with state water quality standards.
Water Quantity. The location, construction, and operation of the DWS transmission line in the proposed corridor will not have an adverse impact on water quantity. No new access roads will be constructed using methods which could impact water quantity or water flow. Where existing access roads are upgraded, specifically south of the St. Johns River, culverts will be used to maintain or improve the existing flows, and compensating storage will be provided for any fill placed in the 10 or 100-year floodplain area.
Consumptive Use. No groundwater or surface water withdrawals are anticipated which exceed the SJRWMD's permitting thresholds for consumptive use of water. Should such groundwater withdrawals occur, they will comply with the consumptive use requirements of Chapter 40C
Navigation. Where the DWS transmission line crosses the St. Johns River, the height of the structures will ensure that there are no impacts to navigation since the conductor clearance will be consistent with that of the existing transmission line, which is being replaced in this area.
Management and Storage of Surface Waters. The management and storage of surface waters (MSSW) system proposed for the DWS transmission line consists primarily of culverts and roadside swales where access road construction will take place. The system contains appropriate components which have been determined to meet the criteria and standards set forth in Chapters 40C-4 and 40C-42, Florida Administrative Code. Therefore, the MSSW system will comply with the nonprocedural requirements of the SJRWMD. It will also operate effectively and not increase any potential for damage to offsite property nor endanger life, health, or property. Pursuant to Condition of Certification
S
professional engineer that it complies with the construction standards required by the Conditions of Certification for this transmission line.
Lake Emma Substation. The construction of the Lake Emma Substation conversion will not adversely impact water resources adjacent to the site. Stormwater runoff from the driveway and substation site will be conveyed by curb and gutter to two separate retention areas. Both retention areas exceed the retention volume and recovery time criteria as required by the nonprocedural regulations of SJRWMD. SJRWMD and the City of Lake Mary, the two agencies with regulatory jurisdiction over the Lake Emma Substation site, have reviewed the Lake Emma Substation Site Plan Review Package included as Appendix C to the Application and agree that the conversion construction of the Lake Emma Substation will meet all applicable nonprocedural requirements.
Vegetation. The location, construction, and operation of the DWS transmission line will have a minimal impact upon the vegetation within the proposed corridor. Because the proposed transmission line will be located adjacent to or within existing rights-of-way, little new clearing will be required. Additionally, no new access roads are planned, further minimizing impacts due to access road construction. Where scrub habitat is found, restrictive clearing practices will be utilized if clearing is necessary.
Wetlands. Impacts to wetlands from the location, construction, and operation of the DWS transmission line will also be minimal. No new access roads will be built which could result in loss of wetland areas. Furthermore, since existing rights-of- way will be utilized for the DWS transmission line, little, if any, clearing will be required. Where clearing is required in wetlands, restrictive clearing practices will be utilized.
Wildlife Habitats. The location, construction, and operation of the proposed DWS transmission line in the proposed corridor will not adversely affect wildlife or the conservation of any fish or wildlife habitats. The use of existing rights-of-way, and in some cases existing structures, greatly reduces any potential impacts to wildlife habitats. If clearing is needed, sensitive wildlife habitats such as scrub and wetland habitats will be cleared using restrictive clearing techniques, pursuant to Condition of Certification S
Threatened and Endangered Species. The location, construction, and operation of the DWS transmission line will not result in harm or harassment to any threatened or endangered wildlife species. Other than the manatee habitat
in the St. Johns River, none of the wildlife habitats within the proposed corridor are essential for the survival of any threatened, endangered, or other listed species. Pursuant to Condition of Certification S
a survey for threatened and endangered species prior to the construction of the DWS transmission line. If any threatened or endangered species are determined to be present in the transmission line right-of-way and to be impacted by the construction of the transmission line, FPC will consult with DER, GFWFC, and the
U.S. Fish and Wildlife Service to determine the appropriate steps for minimizing, avoiding, or otherwise addressing those impacts.
Nonprocedural Requirements of Agencies.
Attachment A to the Recommended Order sets forth the Conditions of Certification agreed to by the parties to this proceeding. Appendix 4 to the Conditions Certification sets forth the list of nonprocedural requirements applicable to the certification of the DWS transmission line, including the conversion construction of the Lake Emma Substation. Copies of these regulations were introduced into evidence by FPC at the certification hearing. Agencies, including DER, DCA, DOT, GFWFC, SJRWMD, ECFRPC, Volusia County, Seminole County, City of Sanford, and the City of Lake Mary, either through written stipulation or testimony, have agreed that the DWS transmission line will conform to these nonprocedural requirements if located, constructed, and maintained as set forth in the Application and in conformance with the Conditions of Certification. Furthermore, the City of Lake Mary and SJRWMD, the two agencies with jurisdiction over the Lake Emma Substation site, have agreed that the conversion construction at the Lake Emma Substation will comply with the nonprocedural requirements applicable to that facility if constructed in conformance with the site plan review package set forth as Appendix C to the Application.
FPC and the agencies with regulatory jurisdiction over the DWS transmission line have identified certain variances, exceptions, exemptions, and other relief from the nonprocedural requirements that may be needed for the location, construction, and maintenance of the DWS transmission line in the proposed corridor. These variances, exceptions, exemptions, and other relief are identified in Appendix 4 to the Conditions of Certification. Evidence admitted at hearing, including the location of the proposed corridor and the design and construction of the proposed DWS transmission line, together with the Conditions of Certification attached as Attachment A to this Recommended Order, support the issuance of the necessary variances, exceptions, exemptions, and other relief. It is also the position of DER that these variances, exceptions, exemptions, and other relief are appropriate and should be granted by the Siting Board.
Compliance with Comprehensive Plans.
The applicable comprehensive plans for Volusia County, Seminole County, City of Sanford, City of Lake Mary, City of Longwood, City of Casselberry, and the City of Winter Springs were introduced at the certification hearing. The location of the DWS transmission line in the proposed corridor and the construction and maintenance of the transmission line are consistent with these local government comprehensive plans.
CONCLUSIONS OF LAW
Intent. This certification proceeding was held pursuant to the Transmission Line Siting Act, Sections 403.52-403.5365, Florida Statutes (1991),
and Chapter 17 permitting process is:
to fully balance the need for the transmission lines with the broad interests of the public in order to effect a reasonable balance between the need for the facility as a means of providing abundant low-cost electrical energy and the impact on the public and the environment resulting from the location of
the transmission line corridor and the construction and maintenance of the transmission lines.
Section 403.521, Florida Statutes (1991). To implement this intent, the legislature has set forth specific requirements for reports and studies from various agencies regarding matters within their jurisdiction, notice of the application and certification proceeding, the ability of third parties to offer alternate corridor routes for consideration, and criteria to be considered in determining whether an application should be approved in whole, approved with modification or conditions, or denied. Sections 403.526, 403.527, 403.5271,
403.529, Florida Statutes (1991).
Procedural Matters. The evidence in the record of this proceeding demonstrates compliance with the procedural requirements of the Transmission Line Siting Act, including the notice requirements for the certification hearing and public hearings.
Criteria to Evaluate the Preferred Corridor. In order to make a determination whether FPC's proposed transmission line corridor should be certified, the Siting Board must determine whether, and the extent to which, the location of the corridor and the construction and maintenance of the transmission line in the corridor will:
Ensure electric power system reliability and integrity;
Meet the electrical energy needs of the state in an orderly and timely fashion;
Comply with nonprocedural requirements of agencies;
Be consistent with applicable local government comprehensive plans; and
Effect a reasonable balance between the need for the transmission line as a means of providing abundant low-cost electrical energy and the impact upon the public and the environment resulting from the location of the transmission line corridor and the maintenance of the transmission lines.
Section 403.529(4), Florida Statutes (1991).
Compliance with Section 403.529(4)(a), Florida Statutes. The PSC determined the need for the DWS transmission line in Order No. 24993, issued on August 29, 1991. The PSC found that the "proposed project is needed for abundant, low-cost electrical energy to assure the economic well-being of the citizens of the state" and "the proposed project is designed to provide the
ability to reliably transfer more power from the electrical sources at DeBary and FPL's Sanford plant into the greater Orlando area."
This determination of the PSC is binding upon all parties to the certification hearing. Section 403.537(1)(c), Florida Statutes (1991).
Compliance with Section 403.529(4)(b), Florida Statutes. The PSC found in its order determining need for the DWS transmission line that the proposed transmission line needs to be in service by December, 1995, to maintain the single contingency reliability on FPC's transmission system. Evidence regarding the design of the transmission line, the construction phases for the transmission line, including the projected 18-month construction schedule, and the proposed location of the DWS transmission line adjacent to or within existing rights-of-way, demonstrate that the DWS transmission line will meet the electrical needs of the state in an orderly and timely fashion within the time frames established by the PSC.
Compliance with Section 403.529(4)(c), Florida Statutes. The nonprocedural requirements of the various agencies applicable to the DWS transmission line are set forth in Appendix 4 to the Conditions of Certification. The location of the DWS transmission line in the proposed corridor and the construction and maintenance of the DWS transmission line, as set forth in the Application, will comply appropriately with these nonprocedural requirements if done in accordance with the Conditions of Certification set forth in Attachment A to this Recommended Order. To the limited extent variances, exceptions, exemptions, and other relief from these nonprocedural requirements are necessary, the record demonstrates the grant of such relief is warranted.
Compliance with Section 403.529(4)(d), Florida Statutes. The location of the corridor and the construction and maintenance of the DWS transmission line are consistent with the comprehensive plans of Volusia County, Seminole County, City of Sanford, City of Lake Mary, City of Longwood, City of Casselberry, and City of Winter Springs.
Compliance with Section 403.529(4)(e), Florida Statutes. The location of the DWS transmission line corridor and the construction and maintenance of the DWS transmission line provide a reasonable balance between the need for the transmission line and the impact of the transmission line upon the environment. The PSC determined that the DWS transmission line was needed to maintain the single-contingency reliability of the FPC transmission line system and provide flexibility in FPC's generation expansion plans. The impact upon the public and the environment will be greatly reduced by the DWS transmission line's use of existing linear facility rights-of-way. Furthermore, the impact from clearing activities, dredge and fill activities, construction and maintenance activities, and any other activities associated with the DWS transmission line will be insignificant when balanced with the electrical energy requirements that will be satisfied by the construction and operation of the DWS transmission line.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving FPC's
DeBary-Winter Springs 230
Certification subject to the Conditions of Certification set forth in Attachment A to this Recommended Order, and grant the variances, exceptions, exemptions,
and other relief identified in Appendix 4 to the Conditions of Certification that may be necessary for the location, construction, or maintenance of the DWS transmission line.
DONE AND ENTERED this 7th day of April, 1993, in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1993.
COPIES FURNISHED:
Pamela I. Smith, Attorney at Law Florida Power Corporation
Post Office Box 14042
St. Petersburg, FL 33733-4042 Representing Applicant
Richard W. Moore Carolyn S. Raepple Attorneys at Law
123 South Calhoun Post Office Box 6526
Tallahassee, FL 32314-6526 Representing Applicant
Richard Donelan Gary C. Smallridge
Assistant General Counsels Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400 Representing DER
Michael Palecki, Chief Bureau of Electric & Gas
Florida Public Service Commission
101 East Gaines Street Tallahassee, FL 32399-0850 Representing PSC
Lucky T. Osho Karen Brodeen
Assistant General Counsels Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100 Representing DCA
M. B. Adelson IV Assistant General Counsel
Department of Natural Resources 3900 Commonwealth Blvd. MS-35 Tallahassee, FL 32399-3000 Representing DNR
William H. Roberts Assistant General Counsel
Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, FL 32399-0458 Representing DOT
James V. Antista, General Counsel Florida Game and Fresh Water
Fish Commission
620 South Meridian Street Tallahassee, FL 32399-1600 Representing GFWFC
Clare E. Gray Kathryn Mennella
Assistant General Counsels
St. Johns River Water Management District
Post Office Box 1429 Palatka, FL 32078 Representing SJRWMD
Robert A. McMillan, County Attorney Lonnie A. Groot
Assistant County Attorney Seminole County Services Building 1101 East First Street
Sanford, FL 32771 Representing Seminole County
Douglas M. Weaver Assistant County Attorney
123 West Indiana Avenue Deland, FL 32117 Representing Volusia County
Gerald S. Livingston Attorney at Law
Kreuter & Livingston, P.A.
200 East Robinson Street Suite 1150
Orlando, FL 32801
Representing East Central Florida Regional Planning Council
Kenneth W. McIntosh, Attorney at Law Post Office Box 4848
Sanford, FL 32772-4848 Representing City of Casselberry
Ned N. Julian, Jr.
Attorney at Law
Post Office Box 4848 Sanford, FL 32772-4848
Representing City of Lake Mary
Gretchen R. H. Vose, City Attorney 2705 W. Fairbanks Avenue
Winter Park, FL 32789 Representing City of Longwood
William L. Colbert, Attorney at Law Post Office Box 4848
Sanford, FL 32772-4848 Representing City of Sanford
Frank C. Kruppenbacher, City Attorney Honigman, Miller, Schwartz
and Cohn
390 N. Orange Avenue, Suite 1300 Orlando, FL 32801
Representing City of Winter Springs
Honorable Lawton Chiles Governor
State of Florida The Capitol
Tallahassee, FL 32399
Honorable Robert A. Butterworth Attorney General
State of Florida The Capitol
Tallahassee, FL 32399-1050
Honorable Bob Crawford Commissioner of Agriculture State of Florida
The Capitol
Tallahassee, FL 32399-0810
Honorable Betty Castor Commissioner of Education State of Florida
The Capitol Tallahassee, FL 32399
Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02
Tallahassee, FL 32399-0250
Honorable Tom Gallagher Treasurer and Insurance
Commissioner State of Florida The Capitol
Tallahassee, FL 32399-0300
Honorable Gerald A. Lewis Comptroller
State of Florida
The Capitol, Plaza Level Tallahassee, FL 32399-0350
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
IN RE: | ) |
FLORIDA POWER CORPORATION | ) |
DEBARY-WINTER SPRINGS 230-kV | ) |
TRANSMISSION LINE CORRIDOR | ) CASE NO. 92-4019TL |
CERTIFICATION APPLICATION NO. | ) OGC NO. 92-1232 |
TA-92-09 | ) |
)
NOTICE OF CORRECTION
It has come to the attention of the undersigned that a scrivner's error exists on page 32 of the Recommended Order issued in the above matter on April 7, 1993. A corrected replacement of the page is attached.
DONE AND ORDERED this 14th of April, 1993, in Tallahassee, Florida.
DIANE K. KIESLING
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 14th day of April, 1993.
FPC's generation expansion plans. The impact upon the public and the environment will be greatly reduced by the DWS transmission line's use of existing linear facility rights-of- way. Furthermore, the impact from clearing activities, dredge and fill activities, construction and maintenance activities, and any other activities associated with the DWS transmission line will be insignificant when balanced with the electrical energy requirements that will be satisfied by the construction and operation of the DWS transmission line.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving FPC's
DeBary-Winter Springs 230-kV Transmission Line Application for Corridor Certification subject to the Conditions of Certification set forth in Attachment A to this Recommended Order, and grant the variances, exceptions, exemptions, and other relief identified in Appendix 4 to the Conditions of Certification that may be necessary for the location, construction, or maintenance of the DWS transmission line.
DONE AND ENTERED this 7th day of April, 1993, in Tallahassee, Florida.
DIANE K. KIESLING
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 7th day of April, 1993.
COPIES FURNISHED:
Pamela I. Smith, Attorney at Law Florida Power Corporation
Post Office Box 14042
St. Petersburg, Florida 33733-4042 Representing Applicant
Richard W. Moore Carolyn S. Raepple Attorneys at Law
123 South Calhoun Post Office Box 6526
Tallahassee, Florida 32314-6526 Representing Applicant
Richard Donelan Gary C. Smallridge
Assistant General Counsels Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER
Michael Palecki, Chief Bureau of Electric & Gas
Florida Public Service Commission
101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC
Lucky T. Osho Karen Brodeen
Assistant General Counsels Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100 Representing DCA
M. B. Adelson IV Assistant General Counsel
Department of Natural Resources 3900 Commonwealth Blvd. MS-35 Tallahassee, Florida 32399-3000 Representing DNR
William H. Roberts Assistant General Counsel
Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, Florida 32399-0458 Representing DOT
James V. Antista, General Counsel Florida Game and Fresh Water
Fish Commission
620 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC
Clare E. Gray Kathryn Mennella
Assistant General Counsels
St. Johns River Water Management District
Post Office Box 1429 Palatka, Florida 32078 Representing SJRWMD
Robert A. McMillan, County Attorney Lonnie A. Groot
Assistant County Attorney Seminole County Services Building 1101 East First Street
Sanford, Florida 32771 Representing Seminole County
Douglas M. Weaver Assistant County Attorney
123 West Indiana Avenue Deland, Florida 32117 Representing Volusia County
Gerald S. Livingston Attorney at Law
Kreuter & Livingston, P.A.
200 East Robinson Street Suite 1150
Orlando, Florida 32801
Representing East Central Florida Regional Planning Council
Kenneth W. McIntosh, Attorney at Law Post Office Box 4848
Sanford, Florida 32772-4848 Representing City of Casselberry
Ned N. Julian, Jr.
Attorney at Law
Post Office Box 4848 Sanford, Florida 32772-4848
Representing City of Lake Mary
Gretchen R. H. Vose, City Attorney 2705 W. Fairbanks Avenue
Winter Park, Florida 32789 Representing City of Longwood
William L. Colbert, Attorney at Law Post Office Box 4848
Sanford, Florida 32772-4848 Representing City of Sanford
Frank C. Kruppenbacher, City Attorney Honigman, Miller, Schwartz
and Cohn
390 N. Orange Avenue, Suite 1300 Orlando, Florida 32801 Representing City of Winter Springs
================================================================= DISTRICT COURT OPINION
=================================================================
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.
CASE NO. 92-2933
DOAH CASE NO. 92-4019TL
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 wet land 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 and 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 wetland 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 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 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 not contrary 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 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 be "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 wetland 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 benefited. 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 constriction 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 threefold 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 had 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 others, 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 wetland" 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 de 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 de 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 project, 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 no 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 mitigation 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, C.J. (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 far 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 a policy ruling, asserting that the hearing officer essentially dismissed the "cumulative impact analysis" in her recommended order and failed to adequately consider the impact of this project (involving approximately 6 acres according to the Department) and other unnamed and undescribed projects expected to be located in the future within this large geographical area known as the Reedy Creek Basin (consisting of over 92,000 acres of upland and wetland habitats, of which some 31,448 acres are characterized as forested wetland). Additionally, the Secretary disagreed with certain policy determinations made by the hearing officer in the recommended order. Affirming the Secretary's ruling, the majority opinion notes that, "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.'" [Emphasis added.] By characterizing this determination as one of policy rather than fact, the hearing officer's findings can be ignored. This is akin to designating the Secretary as the sole determinator of how land shall be used without regard to the statutory limitations in chapter 403.
In my view, determining whether the herbaceous wetlands involved in this case are environmentally equivalent to forested wetlands, and whether the reduction of forested wetlands results in adverse impacts on the environment, depends on factual 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 |
|---|---|
| Sep. 30, 1994 | Ltr. to K. Plante from AC forwarding case file sent out. |
| Dec. 28, 1993 | Notice of Substitution of Counsel for Department of Community Affairs filed. |
| Aug. 27, 1993 | Letter to K. Staples from A. Cole sent out (Re: Enclosed, Returned Appendices) |
| May 14, 1993 | Final Order Approving Certification filed. |
| Apr. 14, 1993 | Notice of Correction sent out. (a scrivener`s error exist on page 32 of the Recommended Order, issued on 4-7-93, a corrected replacement of page is attached) |
| Apr. 07, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 1/25-26/93. |
| Mar. 17, 1993 | (1) Box of Appendices w/cover ltr filed. (from Carolyn S. Raepple) |
| Mar. 15, 1993 | Signature Page for Proposed Recommended Order filed. (From Carolyn S. Raepple) |
| Mar. 12, 1993 | (2) Boxes of Exhibits filed. |
| Mar. 12, 1993 | Notice of Filing Transcript; Transcript (3 Vols); Florida Power Corporation, Department of Environmental Regulation, St. Johns River Water Management District, East Centeral Florida Regional Planning Council, Volusia County, The City of Lake Mary, and the |
| Feb. 16, 1993 | Late Filed Exhibit-36 filed. (From Carolyn S. Raepple) |
| Feb. 09, 1993 | Transcript (original & copy) filed. |
| Feb. 01, 1993 | Original Signature w/cover ltr filed. (From Carolyn S. Raepple) |
| Jan. 27, 1993 | CASE STATUS: Hearing Held. |
| Jan. 25, 1993 | Signature Page filed. |
| Jan. 22, 1993 | Letter to DKK from C. Raepple (& att'd CC: City of Casselberry's Executed Signature Page for the Prehearing stipulation) filed. |
| Jan. 21, 1993 | Notice of Filing Appendices to Proposed Conditions of Certification; Appendix 2 & 3; & Cover Letter to DKK from C. Raepple filed. |
| Jan. 21, 1993 | Stipulation Between Volusia County and Florida Power Corporation; 5 Maps filed. |
| Jan. 21, 1993 | Order sent out. (S/C specialist is dismissed as a party to this case) |
| Jan. 20, 1993 | (FPC DeBary-Winter Springs 230-KV Transmission Line) Prehearing Stipulation & Cover Letter to DKK from C. Raepple filed. |
| Jan. 20, 1993 | Stipulation Between the Game and Fresh Water Fish Commission and Florida Power Corporation filed. |
| Jan. 20, 1993 | Stipulation Between the Department of Community Affairs and Florida Power Corporation filed. |
| Jan. 19, 1993 | Stipulation Between The City of Sanford and Florida Power Corporation; CC Letter to Carolyn S. Raepple from Michael L. Gore (re: Negotiations) filed. |
| Jan. 15, 1993 | Amended Notice of Hearing sent out. (hearing set for 01/25/93;10:00am;Orlando-Altamonte Springs,;01/26;93;7:00pm;DeBary,01/27/93;7:00pm;Orlando) |
| Jan. 15, 1993 | The Department of Environmental Regulation`s Notice of Filing Written Direct Testimony w/Testimony of Joseph M. Norton; Stipulation Between the East Central Florida Regional Planning Council and Florida Power Corporation filed. |
| Jan. 14, 1993 | Stipulation Between the Department of Transportation and Florida Power Corporation w/Exhibit-1; Stipulation Between The City of Lake Mary and Florida Power Corporation filed. |
| Jan. 13, 1993 | (FPRC) Motion to Amend Notice of Hearing filed. |
| Jan. 12, 1993 | Order sent out. (Prehearing Schedule Is Modified) |
| Jan. 07, 1993 | The Department of Environmental Regulation`s Motion to Modify The Prehearing Schedule filed. |
| Jan. 05, 1993 | Order sent out. ( S/C Specialists, Inc. Petition to Intervene GRANTED) |
| Jan. 04, 1993 | Stipulation Between Seminole County and Florida Power Corporation filed. |
| Dec. 31, 1992 | Seminole County's Final Witness, Exhibit and Issue List filed. |
| Dec. 23, 1992 | St Johns River Water Management District`s Final Witness, Exhibit and Issue List filed. |
| Dec. 21, 1992 | Petitioner`s Preliminary Statement of Issues and Final List of Witnesses and Exhibits filed. |
| Dec. 21, 1992 | The Department of Environmental Regulation's Final List of Issues, Witnesses and Exhibits filed. |
| Dec. 21, 1992 | County of Volusia`s Notice of Intent to be a Party filed. |
| Dec. 18, 1992 | (S/C Specialists, Inc.) Petition for Leave to Intervene filed. |
| Dec. 16, 1992 | Summary and Compilation of Agency Reports Plus Proposed Conditions of Certification for Florida Power Corporation`s DeBary-Winter Springs 230 KV Transmission Line Corridor prepared by DER filed. |
| Dec. 03, 1992 | Order sent out. (Rulings on Motion) |
| Dec. 02, 1992 | Department of Environmental Regulation and Florida Power Corporation`s Joint Motion to Alter Time for Filing of Department`s Written Analysis and Compilation of Agency Reports filed. |
| Dec. 01, 1992 | Department of Natural Resources Preliminary Statement of Issues, Witness and Exhibit Lists filed. |
| Nov. 30, 1992 | Seminole County`s Preliminary Witness, Exhibit and Issue List filed. |
| Nov. 25, 1992 | Notice of Appearance of Co-Counsel for Department of Community Affairs filed. |
| Nov. 23, 1992 | St. John River Water Management District's Preliminary Witness, Exhibit and Issue List filed. |
| Nov. 20, 1992 | (Respondent) Motion for Official Recognition w/Exhibits filed. |
| Nov. 19, 1992 | The Department of Environmental Regulation's Preliminary List of Issues, Witnesses and Exhibits filed. |
| Nov. 18, 1992 | Florida Game and Fresh Water Fish Commission's Preliminary Statement of Issues, Witness and Exhibit Lists filed. |
| Nov. 18, 1992 | Petitioner`s Preliminary List of Issues, Witnesses and Exhibits filed. |
| Nov. 18, 1992 | Seminole County`s Notice to All Parties filed. |
| Nov. 17, 1992 | Order sent out. (DNR is entitled to participate as party in these proceedings; Motion to adopt supplemental prehearing schedule & Discovery schedule is granted) |
| Nov. 16, 1992 | City of Sanford Notice of All Parties filed. |
| Nov. 16, 1992 | Florida Department of Natural Resources (DNR)`s Notice of Intent to Be a Party filed. |
| Nov. 09, 1992 | Notice of Appearance of Counsel for Department of Environmental Regulation filed. |
| Nov. 05, 1992 | Department of Environmental Regulation and Florida Power Corporation`s Motion to Adopt Supplemental Prehearing Schedule and Discovery Guidelines filed. |
| Oct. 29, 1992 | (SJRWMD) Notice of Appearance filed. |
| Oct. 28, 1992 | Notice to All Parties filed. (from C. Raepple) |
| Oct. 28, 1992 | Notice of Correct Mailing Address filed. (from N. Julian) |
| Oct. 27, 1992 | Letter to DKK from J. Norton (re: Dept. rendered application to be sufficient) filed. |
| Oct. 27, 1992 | Order sent out. (Motion for Extension of time is granted) |
| Oct. 27, 1992 | Letter to Joseph N. Norton from Don Sikorski (re: Volusia County Agency Report) filed. |
| Oct. 26, 1992 | Report (prepared by Council Staff) filed. |
| Oct. 23, 1992 | Letter to DKK from Joseph M. Norton (re: DER finds the application to be insufficient) filed. |
| Oct. 22, 1992 | Order sent out. (Lake Mary is entitled to participate as a party in this proceeding) |
| Oct. 21, 1992 | (DCA) Motion for Extension of Time for Filing Agency Report filed. |
| Oct. 20, 1992 | City of Lake Mary`s Notice of Intent to Be a Party filed. |
| Oct. 19, 1992 | (Seminole County Government) Resolution and Report on Florida Power Corporation`s DeBary-Winter Springs 230-KV Transmission Line filed. |
| Oct. 16, 1992 | Revised Processing Schedule filed. (From Joseph M. Norton) |
| Oct. 09, 1992 | Notice of Hearing sent out. (hearing set for 1-25-93; 10:00am; Altamonte Springs) |
| Oct. 06, 1992 | (Joint) Stipulation to Alter Time Limits filed. |
| Oct. 06, 1992 | Notice of Hearing (unsigned) w/cover ltr filed. (From Carolyn S. Raepple) |
| Oct. 05, 1992 | (DCA) Notice of Intent to be a Party filed. |
| Oct. 02, 1992 | Order sent out. (the City of Sanford is entitled to participate as a party in this proceeding) |
| Sep. 29, 1992 | Letter to DKK from Richard W. Moore (re: hearing location) filed. |
| Sep. 29, 1992 | City of Sanford Notice of Intent to Be A Party filed. |
| Sep. 24, 1992 | Order sent out. (Re: East Central Florida Regional Planning Council as party to case) |
| Sep. 23, 1992 | Report Containing the Additional Information Necessary to Render the DeBary-Winter Springs Application for Certification Sufficient w/cover ltr filed. (From Pamela I. Smith) |
| Sep. 22, 1992 | Notice of Appearance filed. (From Lucky Osho) |
| Sep. 21, 1992 | CC Letter to Joseph N. Norton from Don Silorski (re: Preliminary Statement of Issues) filed. |
| Sep. 15, 1992 | Volusia County`s Request for Hearing to Be Held Within The Boundaries of The County filed. |
| Sep. 15, 1992 | East Central Florida Regional Planning Council`s Notice of Intent to Be A Party filed. |
| Sep. 08, 1992 | Letter to DKK from J. Norton (re: DER determination application is insufficient; request for information) filed. |
| Sep. 01, 1992 | Order sent out. (Re: Seminole County as a party to case) |
| Aug. 28, 1992 | Seminole County`s Notice of Intent to Be A Party filed. |
| Aug. 21, 1992 | Order sent out. (Notices of Intent to be Parties) |
| Aug. 20, 1992 | Order sent out. (DCA is hereby a party pursuant to section 403.527(4)(b). |
| Aug. 17, 1992 | St. Johns River Water Management District`s Notice of Intent to Participate As A Party filed. |
| Aug. 17, 1992 | Florida Game and Fresh Water Fish Commission`s Notice of Intent to Be A Party filed. |
| Aug. 12, 1992 | Revised Figure 1.3-3 filed. (From Carolyn S. Raepple) |
| Aug. 11, 1992 | Florida Department of Community Affair`s Notice of Intent to Be A Party filed. |
| Aug. 10, 1992 | Order sent out. (DOT is hereby a party pursuant to section 403.527 (4)(b). |
| Aug. 07, 1992 | Amended Department of Transportation`s Notice of Intent to Be a Party filed. |
| Aug. 06, 1992 | Department of Transportation`s Notice of Intent to be a Party filed. |
| Jul. 30, 1992 | Seminole County`s Acknowledgment of Receipt of Application and Re-Notice of Local Government Request for Hearing to Be Held Within the Boundaries of the County filed. |
| Jul. 30, 1992 | CC: Processing Schedule; & Cover Letter to DKK from J. Norton filed. |
| Jul. 27, 1992 | Processing Schedule; cc: Cover Letter to C. Raepple from J. Norton filed. |
| Jul. 22, 1992 | Seminole County`s Notice of Local Government Request for Hearing to Be Held Within The Boundaries of the County filed. |
| Jul. 17, 1992 | Letter to DKK from Joseph M. Norton (re: application received July 2)w/attachment filed. |
| Jul. 15, 1992 | Notice of Assignment and Order sent out. |
| Jul. 10, 1992 | Application for Corridor Certification (Volumes 1&2) filed. |
| Jul. 09, 1992 | Agency Referral Letter; Request for Formal Administrative Hearing, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 13, 1994 | Opinion | |
| May 11, 1993 | Agency Final Order | |
| Apr. 07, 1993 | Recommended Order | Application for certification of transmission line should by granted with conditions. |
