STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: FLORIDA POWER AND LIGHT | ) | |||
COMPANY BOBWHITE-MANATEE 230KV | ) | |||
TRANSMISSION LINE PROJECT | ) | |||
TRANSMISSION LINE SITING | ) | Case | No. | 07-0105TL |
APPLICATION NO. TA07-14 | ) ) | |||
| ) |
RECOMMENDED ORDER
Pursuant to notice, the final hearing in this case was held on October 22 through 25 and October 29 through November 1,
2007, May 5 through 8 and May 12 through 15, 2008, in Sarasota, Manatee County, Florida, before Administrative Law Judge Bram D.
E. Canter of the Division of Administrative Hearings.
APPEARANCES
For Applicant, Florida Power & Light Company:
Carolyn S. Raepple, Esquire Virginia Daily, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526
Tallahassee, Florida 32314-6526 For the Department of Environmental Protection:
Toni Sturtevant, Esquire
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32333-3000
For Manatee County:
Sarah A. Schenk, Esquire Assistant County Attorney Manatee County Attorney’s Office
1112 Manatee Avenue West, Suite 969 Post Office Box 1000
Bradenton, Florida 34206-1000 For Sarasota County:
Stephen E. DeMarsh, Esquire David Pearce, Esquire
Office of the County Attorney
1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236
For the Southwest Florida Water Management District: Martha Moore, Esquire
Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34604-6899
LLC:
For the Department of Transportation
Leon M. Biegalski, Esquire Kimberly Menchion, Esquire Assistant General Counsel
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399
For Schroeder-Manatee Ranch, Inc., and Lake Club Investors,
W. Douglas Hall, Esquire
H. Ray Allen, II, Esquire Dianne Triplett, Esquire Carlton Fields, P.A.
Post Office Drawer 190 Tallahassee, Florida 32302
For Myakka Ranch Holdings, LLC; FC, LLC; Sarasota One, LLC; John Cannon Homes - Eastmoor, LLC; Schwartz Farms, Inc.; Michael and Jo Anne Schwartz:
Kevin S. Hennessy, Esquire
R. David Jackson, Esquire Lewis, Longman & Walker, P.A.
1001 Third Avenue West, Suite 670
Bradenton, Florida 34205
For Gum Slough Preservation Foundation; Kittie L. Chapman; East County Homeowners Organization, Inc.; and Hi Hat Ranch, LLP:
Robert S. Wright, Esquire Young van Assenderp, P.A.
225 South Adams Street, Suite 200 Tallahassee, Florida 32301
For ManaSota-88, Inc.:
Barbara G. Hines, Esquire
117 81st Street
Holmes Beach, Florida 34217 For John Falkner:
Roy W. Cohn, Esquire 2406 Watrous Avenue
Tampa, Florida 33629 For Pacific Land, Ltd.:
Maureen M. Daughton, Esquire Broad & Cassel
215 S. Monroe Street, Suite 400 Tallahassee, Florida 32301
For The Concession Land Development, LLC; and The Concession Golf Club, LLC:
Jon C. Moyle, Jr., Esquire Anchors Smith Grimsley
The Perkins House
118 North Gadsden Street Tallahassee, Florida 32301
For Michael, David, and Doanld Hunsader:
Paul F. Grondahl, Esquire Mackey Law Group, P.A.
1402 Third Avenue West Bradenton, Florida 34206
For Bridle Creek Home Owners Association, Inc.:
Keith Colabella, pro se
. c/o Miller Management 2848 Proctor Road
Sarasota, Florida 34231 For Taylor & Fulton, Inc.:
Joel E. Roberts, Esquire
V. Nicholas Dancaescu Gray Robinson, P.A.
301 East Pine Street, Suite 1400 Orlando, Florida 32801
STATEMENT OF THE ISSUES
This proceeding was conducted under the Florida Electrical Transmission Line Siting Act (TLSA), Sections 403.52 through 403.5365, Florida Statutes (2007)1, to determine whether any of the proposed transmission line corridors for the Bobwhite- Manatee 230-kV transmission line (BWM Line) comply with the criteria in Section 403.529(4), Florida Statutes, and, if more than one corridor complies with the criteria, to determine which corridor has the least adverse impact regarding the criteria, including costs. If any of the “corridors proper for certification,” as that term is defined in Section 403.522(10), Florida Statutes, is determined to have the least adverse impact, the Siting Board must determine whether the application
for the corridor should be approved in whole, with modifications or conditions, or denied. If the alternate corridor proposed by John Falkner (not a corridor proper for certification) is determined by the Siting Board to have the least adverse impact, certification shall be denied.
PRELIMINARY STATEMENT
FPL submitted a Petition to Determine Need for the Bobwhite-Manatee 230-kV Line to the Public Service Commission (PSC) on June 26, 2006. On August 28, 2006, the PSC issued its Final Order Determining the Need for an Electrical Transmission Line, in which the PSC determined that there is a need for the BWM Line.
On January 2, 2007, FPL filed its Application for Corridor Certification for the BWM Line with the Department of Environmental Protection (DEP). The Application requests certification of a new 230-kV overhead transmission line and related facilities connecting the existing Manatee substation at the Manatee Energy Center near Parrish in Manatee County to the proposed Bobwhite substation east of Interstate 75 and just north of Fruitville Road in Sarasota County. DEP determined that FPL’s Application was complete on March 15, 2007.
The various reviewing agencies submitted reports on the proposed BWM Line. On April 27, 2007, DEP issued its Written Analysis on the Project, incorporating the reports of the
reviewing agencies and proposing a set of Conditions of Certification.
Schroeder-Manatee Ranch, Inc., and Lake Club Investors, LLC (SMR), Taylor & Fulton, Inc., and John Falkner filed notices formally proposing alternate corridors. SMR proposed ten alternate corridors, Taylor & Fulton proposed two alternate corridors, and Falkner proposed one alternate corridor. FPL and DEP accepted all of the alternate corridors for consideration in this proceeding. SMR and Taylor & Fulton filed additional information in support of their alternate corridors. Because Falkner did not file data to support his alternate corridor, the corridor was deemed withdrawn.
Following DEP’s determination that the alternate corridor applications of SMR and Taylor & Fulton were incomplete, these applicants filed supplemental information. On July 26, 2007, DEP filed notice of its determination that the SMR and Taylor & Fulton alternate corridor filings were complete.
The various reviewing agencies submitted supplemental reports on the alternate corridors. On September 7, 2007, DEP issued its Supplemental Written Analysis on the Project, which also addressed the alternate corridors, and incorporated the supplemental reports of the reviewing agencies and proposed a comprehensive set of Conditions of Certification.
On October 9, 2007, SMR withdrew alternate corridors SMR #2 through SMR #9.
The certification hearing commenced October 22, 2007. On November 5, 2007, following eight days of hearing, several parties to the proceeding, including FPL, moved for a continuance to allow the submittal and consideration of new alternate corridors. The motion was granted and the certification hearing was continued to May 5, 2008.
In the interim, SMR proposed a new alternate corridor which was supported by FPL and 14 of the 17 non-government parties in the proceeding. Its proponents named this proposal the “Consensus Corridor.” The Concession Land Development, LLC, and The Concession Golf Club, LLC (“The Concession”) proposed the corridor originally submitted as SMR #1. Bridle Creek Homeowners Association (Bridle Creek) also proposed a new alternate corridor. On November 28, 2007, FPL and DEP accepted these three new alternate corridors.
Falkner proposed two new alternate corridors, Falkner A and Falkner B, which DEP accepted on November 28, 2007. However, FPL rejected both of Falkner’s alternate corridors. Therefore, pursuant to Sections 403.522(10) and 403.5271(4), Florida Statutes, Falkner’s alternate corridors are not “proper for certification.”
On February 11, 2008, DEP filed a notices of incompleteness concerning the supporting data for the three new alternate corridors filed by SMR, The Concession, and Bridle Creek. After these parties filed additional information, DEP determined that their filings were complete.
The various reviewing agencies submitted supplemental reports on the new alternate corridors. On April 14, 2008, DEP issued an Addendum to its Staff Analysis on the Project, incorporating the supplemental reports of the reviewing agencies and proposing a revised comprehensive set of Conditions of Certification.
Prior to the recommencement of the hearing, SMR withdrew its alternate corridor SMR #10, and Bridle Creek withdrew its alternate corridor. At the certification hearing, Taylor & Fulton withdrew its two alternate corridors and Falkner withdrew Falkner Alternate Corridor B. Because Falkner Alternate Corridor A is the only remaining corridor proposed by Falkner, it is referred to hereafter simply as the Falkner Corridor.
At the conclusion of the certification hearing, there remained three corridors proper for certification: the FPL Original Corridor, the Consensus Corridor, and The Concession Corridor. Although not proper for certification, the Falkner Corridor is also presented because, if shown to have the least adverse impacts of all the proposed corridors, the Siting Board
must deny certification or allow FPL to amend its application to include the Falkner Corridor.
At the final hearing, Joint Exhibits numbered 1 through 19, and 22 were received into evidence. FPL presented the testimony of Robert Hahn, an expert in electrical engineering with experience in transmission line siting, permitting, and engineering; Jack Hochheimer, P.E., an expert in electrical engineering with a specialization in transmission line engineering, siting, permitting, and reliability; Analee Mayes, AICP, an expert in land use planning with a specialization in transmission line siting and public participation; Philip Simpson, an expert in wildlife biology and terrestrial ecology with a specialization in transmission line impacts to terrestrial ecological resources; Rick Teigland, P.E., an expert in electrical distribution system planning; William Mulcay, Director of the Peace River Electric Cooperative; Carlos Candelaria, an expert in electric transmission system planning and reliability; Martha McNeal, an expert in landscape architecture; and Karen Windon, an expert in disaster response and recovery. FPL Exhibits 1, 2, 4, 5, 9 through 26, 28 through
37, 45, 47 through 53, 58 through 62, 69 through 76, 77B, 78,
79, 81, 82, 84 through 86, 89 through 93, 95, 96, 98A, 98B, and
105 through 110 were received into evidence.
DEP presented the testimony of Ann Seiler, DEP’s Siting Coordination Case Manager, and Michael Halpin, DEP’s Director of the Siting Coordination Office. DEP Exhibits 1, 2, and 8 were received into evidence.
SMR presented the testimony of Rex Jensen, Todd Pokrywa, Jay Taylor, and Jeff Pardue, an expert in biology with specialized knowledge in transmission line permitting. SMR Exhibits 1 through 5, 13, 18, 19, 22, 26, 30, 31, 32A, 32B, 33,
35, 37, 38, 43, 45, 47, 51, 55, 64, 74, 86, 89, 90, 97, 99, 111
through 113, 116, and 117 were received into evidence.
The Concession presented the testimony of Kevin Daves. The Concession Exhibits 1, 5, 6, 18, 20, 24, and 26B were received into evidence.
John Falkner testified on his own behalf and presented the testimony of Vicente Ordax, Robert Hahn, Mark Byers, David Lippincott, Jack Hochheimer, Billy Heller, and Mary Clark (by deposition). Falkner Exhibits 5, 6, 8A, 8B, 10, 12, 13, 19, 20,
21, 24, 25 29, 39, and 40 were received into evidence.
The Hunsaders presented the testimony of Michael Hunsader.
The Hunsaders’ Exhibit 1 was received into evidence.
Myakka Ranch Holdings, LLC, FC, LLC, John Cannon Homes- Eastmoor, LLC, Schwartz Farms, Inc., Michael D. and Joanne Schwartz, and Sarasota One, LLC, presented the testimony of Dale Weidemiller, Dickson Clements, and Mary Anne G. Bowie (by
deposition), an expert in land use planning. Myakka Ranch Holdings, et al., Exhibits 1, 18, 25, 27 through 34, 41 through
43, 64 were received into evidence.
Gum Slough Preservation Foundation (GSPF) and ManaSota-88, Inc., presented the testimony of Susan Schoettle-Gumm and Robert Hueter. GSPF and ManaSota-88 Exhibits 1 and 6 through 12 were received into evidence.
East County Homeowners Organization (ECHO), Kittie L. Chapman, and ManaSota-88 presented the testimony of Richard Drummond, an expert in land use and comprehensive planning; Richard Gumm; Steve Bond; and Raymond Raud. Their Exhibits 1, 2 and 4 were received into evidence.
Hi Hat Ranch, LLP, and ManaSota-88 presented the testimony of Jim Turner. Hi Hat Ranch Exhibits 1 through 4 were received into evidence.
Sarasota County presented the testimony of Amy Meese, the Director of Natural Resources Division of Sarasota County.
Sarasota County Exhibits 1 and 2 were received into evidence. Manatee County presented the testimony of Laurie Suess,
Director of Planning for Manatee County. Manatee County Exhibit
5 was received into evidence.
Pacific Land, Ltd. presented no witnesses, but Pacific Land Exhibits 4, 6, 9, 12, and 15 were received into evidence.
Public hearings were held during the evenings of
October 24, 2007, and May 7, 2008, for the purpose of allowing members of the public to present evidence and testimony.
Members of the public were placed under oath, testified, and were subject to cross-examination.2 Several documents, compiled as Public Exhibits 1 and 2, were received into the public hearing record.
FPL’s unopposed motion to protect the confidentiality of critical energy infrastructure information was granted.
SMR’s motion in limine, requesting the exclusion of FPL evidence which SMR claimed to be contrary to evidence presented to the PSC, was denied.
FPL’s motion to enforce certain pre-hearing stipulations, which John Falkner claimed were no longer binding on him, was granted.
FPL filed a motion in limine to preclude any party from offering evidence to refute the PSC’s determination that the location of the BWM Line on a right-of-way (ROW) that is geographically separate from the existing common transmission line ROW will enhance electric system reliability. However, FPL also requested that the Administrative Law Judge receive any evidence which a party wished to present to refute the PSC determination in order to avoid the need for another evidentiary hearing in the event of a successful appeal on this issue. The
Administrative Law Judge denied FPL’s motion in limine, because FPL did not want the evidence excluded, and required any party wishing to contest the determination to present their evidence at the final hearing.
The Concession presented a motion in limine requesting that participants at the final hearing be precluded from offering evidence relating to SMR’s proposed mitigation of environmental impacts, arguing that mitigation of environmental impacts cannot be considered in determining the best corridor. The motion was denied.
Falkner moved for a view of the proposed transmission line corridors, which was denied.
The Transcript of the October 2007 hearing was filed with the Division of Administrative Hearings on April 23, 2008, and the Transcript of the May 2008 hearing was filed on May 28, 2008. The complete Transcript of the certification hearing is in 38-volumes.
The proposed recommended orders that were filed in the case were carefully considered by the Administrative Law Judge in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
FPL is the electric utility that is applying for certification of the Bobwhite-Manatee 230kV Transmission Line.
DEP is the state agency with powers and duties to administer the TLSA, including the power and duty to process applications for certification and to act as a clearinghouse for agency comments on proposed corridors.
Sarasota County and Manatee County are political subdivisions of the State and the local governments with jurisdiction over the areas in which the BWM Line will be located.
Schroeder-Manatee Ranch, Inc. (SMR), is a Delaware corporation with its office in Bradenton, Florida. It owns real property in Manatee and Sarasota Counties, and is the developer of residential communities, including Lakewood Ranch.
Lake Club Investors, LLC (LCI), is a Florida limited liability company with its office in Winter Park, Florida. It owns property in Manatee County.
Gum Slough Preservation Foundation, Inc. (GSPF), is a Florida non-profit corporation with its office in Sarasota, Florida. GSPS was established with the primary objectives to protect and preserve the beauty and ecological values of Gum Slough.
Manasota-88, Inc., is a Florida not-for-profit corporation with its office in Nokomis, Florida. Manasota-88 was formed to protect and preserve the water quality and wildlife of Manatee and Sarasota Counties.
John Falkner is a resident of Myakka City, Florida, and the owner of real property in Manatee County.
Taylor & Fulton, Inc., is a Florida corporation with its office in Palmetto, Florida. It is the owner of real property in Manatee County.
Myakka Ranch Holdings, LLC, and FC, LLC, are Florida limited liability companies with separate offices in Bradenton, Florida. They own real property in Sarasota County.
The Concession Land Development, LLC, and The Concession Golf Club, LLC, are Florida limited liability companies with their office in Wichita, Kansas. They are the owners and managers, respectively, of The Concession residential development and The Concession Golf Club in Manatee County.
Kittie L. Chapman is a resident of Sarasota, Florida, and the owner of real property in Sarasota County.
John Cannon Homes-Eastmoor, LLC, is a Florida limited liability company with its office in Sarasota, Florida. It owns real property in Sarasota County.
Schwartz Farms, Inc., is a Florida corporation with its office in Sarasota, Florida. It owns real property in Sarasota County.
Michael D. and JoAnne Schwartz are residents and real property owners in Sarasota County.
Sarasota One, LLC, is a Florida limited liability company with its office in Bowie, Maryland. It owns real property in Sarasota County.
Pacific Land, Ltd, is a Florida limited liability company with its office in Palmetto, Florida. It owns real property in Manatee County.
East County Homeowners Organization, Inc., is a Florida non-profit corporation with its office in Sarasota, Florida. It was formed to protect the health, safety, and quality of life of the residents of eastern Sarasota County.
Hi Hat Ranch, LLP, is a Florida liability limited partnership with its office in Sarasota, Florida. It owns real property in Sarasota County.
Michael Hunsader, David Hunsader, and Donald Hunsader own real property in Manatee County.
Bridle Creek Home Owners Association, Inc. (BCHOA), is a Florida non-profit corporation with its office in Sarasota, Florida. BCHOA was formed to represent the owners of real property in the Bridle Creek residential community.
Manatee County, the Florida Department of Transportation, and the Southwest Florida Water Management District filed timely notices of their intent to be parties. Sarasota County filed a Notice of Appearance and participated as a party without objection.
The Need for the Bobwhite-Manatee Line
FPL is seeking certification of a transmission line to transmit electricity from the Manatee Energy Center, a generating facility near Parrish in Manatee County, to the proposed Bobwhite transmission substation near Fruitville Road in Sarasota County.
The service area for the proposed BWM Line is an area in Manatee County and Sarasota County that is south of the Manatee Energy Center, north of the planned Bobwhite substation, and east of I-75 and the existing 230kV transmission network.
The PSC determined that FPL had demonstrated the need for the BWM Line by December 2011 to:
provide additional transmission reinforcement to the existing 230kV transmission network between Manatee and Ringling Substations in a reliable manner consistent with the North American Electric Reliability Corporation (NERC), and the Florida Reliability Coordinating Council (FRCC) and other applicable standards; (b) serve the increasing load and customer base in the projected service area; and (c) provide for another electrical feed via a separate right-of-way (“ROW”) path, thereby reducing the impact of a loss of the existing transmission facilities on a common ROW.
The PSC recognized, however, that the “Siting Board will make the final determination concerning the exact length and route of the new line.”
The Proposed Corridors (Depicted in FPL Exhibit 77B) 1. The FPL Original Corridor
Selection Process
FPL established a multi-disciplinary team to identify and evaluate routing alternatives. The team comprised a transmission line engineer, a land use planner, and an ecologist. Because FPL wanted geographic separation from the existing transmission lines that are located in a common ROW that is generally parallel to I-75, the western boundary of the team’s study area began a mile east of this existing ROW.
The multi-disciplinary team gathered data on siting opportunities and constraints within the study area. The guidelines developed by the team to select route segments included maximizing collocation with existing or proposed roads, following property lines or section lines as much as possible, following disturbed paths through wetlands where practicable, and minimizing siting constraints such as airports, private airstrips, residential development, and the crossing of existing transmission lines. The team ultimately identified 62 route segments which could be assembled into 1,275 alternate routes for the BWM Line.
FPL engaged in an extensive public outreach program to gather public input regarding the BWM Line. The public outreach program was integrated with the corridor selection process so
that information was shared with the public and feedback from the public was used in evaluating alternate routes.
FPL’s multi-disciplinary team evaluated the 1,275 routes quantitatively, using factors such as the number of homes and schools in proximity; the length of wetlands crossed; the length through existing parks, recreation areas or other designated conservation lands; the number of parcels or lots crossed; and estimated costs. The quantitative analysis was used as a screening tool to limit the number of routes that would receive more detailed analysis.
The route that received the highest ranking from the quantitative analysis is the same as The Concession Corridor. The FPL Original Corridor follows the route that was ranked eleventh.
The routes that correspond with the subsequently-filed Consensus Corridor and Falkner Corridor were not ranked in the initial screening process because they were not among the 1,275 evaluated routes. The Consensus Corridor passes through a conservation area that FPL’s multi-disciplinary team assumed had to be avoided. The Falkner Corridor was not included because it is in FPL’s existing transmission line ROW, which the team also assumed was not an option.
The team then evaluated the highest ranked routes, using both quantitative and qualitative criteria. The
qualitative criteria included the functional value of wetlands; the orientation of landing strips to the route; plans for new roads, road extensions and road widenings; proposed developments; “buildability” issues; and the need for future distribution substations.
From the more detailed analysis, a preferred route was selected by FPL. This corridor, described in FPL’s application for certification, will be referred to as the FPL Original Corridor. The multi-disciplinary team then determined the varying widths of the FPL Original Corridor along its route that were needed to provide flexibility in locating the ROW within the corridor.
The Route of the FPL Original Corridor
The FPL Original Corridor exits the Manatee Energy Center north of State Road 62 (SR 62) and turns east for approximately one mile. The corridor then turns south along a section line for approximately five miles, in which area the corridor is approximately 3,000 feet wide. The corridor includes a lateral spur along an existing 50-foot-wide farm road, which is included in the corridor for the sole purpose of providing access to the transmission line from County Road 675 (CR 675). The corridor then intersects CR 675 and follows CR 675 to its intersection with SR 64, in which area the corridor is 400 feet wide and centered on the road. At the intersection
of SR 64, the corridor turns west and follows SR 64 for approximately three miles to its intersection with Dam Road. There, the corridor turns south and runs along section lines for approximately three miles, beginning with a width of 4,500 feet and narrowing to 3,000 feet, until it reaches University Parkway. At University Parkway, the corridor turns west and runs along the south side of the road to its intersection with Lorraine Road, in which area the corridor is at least 500 feet wide. At Lorraine Road, the corridor turns south along the road and is of varying width as it follows Lorraine Road to Dog Kennel Road and the proposed Bobwhite substation.
The Consensus Corridor
Selection Process
In November 2007, after eight days of hearing, FPL, SMR, and several other parties jointly requested a continuance of the certification hearing because their informal discussions indicated the possibility for agreement on corridor modifications that would resolve a number of disputes. The continuance was granted and the certification hearing was continued until May 2008.
In the interim, a number of parties reached agreement on a new corridor which they referred to as the Consensus Corridor. The areas of the Consensus Corridor that differed from the FPL Original Corridor were thoroughly studied and
inspected by consultants and experts hired by FPL and SMR. FPL re-initiated its public outreach program to inform the public about the new Consensus Corridor.
The Consensus Corridor is now the corridor preferred by FPL.
The Route of the Consensus Corridor
The Consensus Corridor is identical to the FPL Original Corridor from the Manatee Energy Center to SR 64. However, FPL and Pacific Land, Ltd, entered into an agreement wherein FPL agreed to locate the ROW “as close as reasonably practicable” to Pacific Land’s west property boundary line.
The Consensus corridor follows SR 64 a shorter distance west than the FPL Original Corridor before it turns south, avoiding some of the frontage along Lake Manatee State Park. The Consensus Corridor is 500 feet wide as it turns south from SR 64 on property owned by Bradenton Motorsports, Inc., and continues south onto land owned by Taylor & Fulton, Inc. It then makes four 90-degree turns to form a “C” shape, or “notch,” to follow Taylor & Fulton’s eastern property boundary.3
When the Consensus corridor reaches Taylor & Fulton’s southern property boundary, it turns west and rejoins the FPL Original Corridor. Along Taylor & Fulton’s southern boundary, the corridor is located north of a drainage canal, and about 350 feet north of the Bridle Creek subdivision. In addition to this
setback from Bridle Creek, Taylor & Fulton has agreed to preserve the existing tree line between them.
Turning south from Taylor & Fulton’s property, the Consensus Corridor generally follows the FPL Original Corridor, but the Consensus Corridor is narrower, providing about 200 feet more separation from the residential developments of Panther Ridge and The Concession.4 Along Bourneside Boulevard, the Consensus Corridor is shifted west to align with the eastern edge of the existing road pavement,5 which avoids some wetlands crossed by the FPL Original Corridor and provides a greater setback from The Concession residential development.
South of University Parkway, the Consensus Corridor departs substantially from the FPL Original Corridor to avoid the latter’s impacts to SMR’s residential developments. Rather than moving west all the way to Lorraine Road and following Lorraine Road south, the Consensus Corridor turns south almost immediately after reaching University Parkway, and meanders generally southward through the Heritage Ranch Conservation Easement (HRCE). The HRCE is a 1,972-acre tract of land owned by SMR, which is subject to a conservation easement acquired by Sarasota County. The Consensus corridor is 1,000 feet wide as it moves through the HRCE along an irregular line that generally follows existing field roads or fire lanes. The corridor exits the HRCE going west onto SMR-owned land, rejoins the FPL
Original Corridor along Lorraine Road, and then runs south to the proposed Bobwhite substation.
The Concession Corridor
45. The Concession Corridor (formerly SMR #1) is identical to the FPL Original Corridor from the Manatee Energy Center to SR 64. At the intersection of SR 64 and CR 675, The Concession Corridor continues to follow CR 675 to the intersection with SR
70. The corridor then extends southeast on SR 70 to Verna Road, which the corridor follows south to Verna Road’s intersection with Fruitville Road. The Concession Corridor then follows Fruitville Road west to Dog Kennel Road, then north on Dog Kennel to the proposed site of the Bobwhite substation. From SR
64 to the Bobwhite substation, the corridor is 500 feet wide.
The Falkner Corridor
The Falkner Corridor stays in existing FPL transmission line ROW all the way from the Manatee Energy Center to the proposed Bobwhite substation. From the Manatee Energy Center, the Falkner Corridor heads west on the FPL ROW for approximately five miles. It then turns south and follows the ROW for approximately twenty miles, where it turns eastward and then southeastward for about five miles, until it reaches the area of the proposed Bobwhite substation. The Falkner Corridor is 400-to-500 feet wide.
Land Uses and Significant Natural Features 1. FPL Original Corridor
Manatee Energy Center to SR 64
All three of the corridors proper for certification incorporate this segment from the Manatee Energy Center to SR
The existing land uses in the area of the corridor are primarily agricultural. The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are Major Public/Semi Public (P/SP-1), Agricultural/Rural (AG-R), and Major Recreation/Open Space (R-OS)
The P/SP-1 land use category applies only to the Manatee Energy Center. The AG-R land use category designates areas with long-term agricultural or rural residential character. Potential uses in this category include farms, rural residential, small retail and office commercial, mining, low- intensity recreational facilities, and schools. The maximum gross residential density is one dwelling unit per five acres. The R-OS land use category applies to Lake Manatee State Park, and recognizes these existing recreation and permanent open space land uses.
The ecological communities between the Manatee Energy Center and CR 675 include pine flatwoods, mixed oak-pine uplands, freshwater marshes, wet prairies, forested swamps, and small tributaries such as Gamble Creek, Tyre Creek, and
Waterhole Creek. The vegetative habitats are dominated by agricultural crops. The tributaries are narrow and have existing road crossings.
From CR 675 to SR 64, the FPL Original Corridor follows SR 675. The existing land uses on both sides of the road are primarily agricultural. The corridor crosses the Manatee River system, which includes Boggy Creek and Gilley Creek. There are scattered trees, including some large oak trees along portions of CR 675.
SR 64 to University Parkway
Lake Manatee State Park is on the north side of SR 64.
On the south side are the DeSoto Speedway and Bradenton Motorsports Park, as well as a mix of other uses, including businesses, a nursery, a winery, and some residences. Between SR 64 and University Parkway, the existing land uses are primarily agricultural, except for the Panther Ridge and The Concession residential developments, which are just east of the FPL Original Corridor.
The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are AG-R, R-OS (described above), Urban Fringe (UF-3), and Estate Rural (ER). The UF-3 land use category applies to a half-mile strip on the south side of SR 64, west of Dam Road, is for low-density residential use, generally developed through the planned unit development
concept, and residential support uses. The ER land use category is for clustered, low-density suburban, residential use with large tracts of open space for agricultural activities, low- intensity recreational use, environmental protection or other compatible open space uses. The maximum gross residential density is one dwelling unit per five acres.
The ecological communities in this area include mixed oak-pine uplands, pine flatwoods, shrub and brush land, freshwater marshes, and forested swamps along tributaries of the Manatee River. Along SR 64, the vegetative habitats and waterbodies include scattered shrub and pasture. Lake Manatee State Park contains pine flatwoods and xeric pine communities, except close to SR 64, where a fire break is maintained.
The FPL Original Corridor crosses the Braden River which is a Class I water. As the corridor approaches University Parkway, there are scattered uplands, several small marshes, and pasture land. Near The Concession development, there are four herbaceous wetlands along the eastern boundary of the corridor. c. University Parkway to the Proposed Bobwhite Substation
The land in this area is largely undeveloped. Within the corridor, the land use is primarily agricultural. However, just north of the FPL Original Corridor is an SMR residential development under construction known as The Lake Club and a large-lot residential community to the west known as The Polo
Club. Closer to the Bobwhite substation site, there are large- lot residential developments east of the corridor.
University Parkway divides Manatee County and Sarasota County in this area. The small piece of the FPL Original Corridor that is north of University Parkway and in Manatee County is subject to AG-R (described above) and RES-1 future land use categories. RES-1 designates areas of low-density suburban residential environment, clustered low-density urban residential environment, and compatible agricultural facilities. The maximum gross residential density is one dwelling unit per acre.
The balance of future land uses in this segment of the FPL Original Corridor is subject to the Sarasota County Comprehensive Plan, and its Rural land use category. The primary function of the Rural category is to preserve agricultural lands and rural character, and residential development is limited to a maximum density of one dwelling unit per five acres. However, if elected by the developers, these lands can be subject to the Sarasota 2050 Resource Management Area (RMA) Supplement to the Future Land Use Element.
The Sarasota 2050 Plan creates several types of RMAs, which function as overlays that do not affect existing development rights of the underlying property owners. RMAs encourage the use of clustered development and the preservation
of open space and rural character. The FPL Original Corridor crosses three types of RMAs: Greenway, Village/Open Space, and Rural Heritage/Estate.
The Greenway RMA designates a network of riverine systems, floodplains, native habitats, storm surge areas and uplands as priority resources. Uses in Greenway RMAs are restricted to uses that are compatible with ecological functions and values. The Village/Open Space RMA provides for compact, mixed-use, pedestrian-friendly villages and hamlets within a system of large areas of permanent open space, designed to prevent urban sprawl. Villages have a maximum density within developed areas of five-to-six dwelling units per acre. The Rural Heritage/Estate RMA is intended to recognize and preserve the existing pattern of very low-density, large-lot estate developments, agriculture, and equestrian activities outside the urban service boundary.
The vegetative communities and habitats along University Parkway to Lorraine Road are dominated on the north side of the road by developing lands, and on the south side of the road by the HRCE and portions of Gum Slough. As the corridor proceeds westward, there are also scattered shrub and brush land, pine flatwoods, and scattered marshes and forested systems.
Along Lorraine Road, the vegetative communities and habitats include primarily shrub and brush land, various upland forested systems, some wetland forested systems, small marshes, and active mining east of Lorraine Road.
Land Uses and Significant Natural Features – The Consensus Corridor
a. Manatee Energy Center to SR 64
This segment of the Consensus Corridor is the same as the FPL Original Corridor and, therefore, has the same land uses and significant natural features as were previously described. b. SR 64 to University Parkway
The Consensus Corridor is east of the FPL Original Corridor in the north half of this segment. There are large- acre agricultural land uses in this area, but the corridor is closer to residential development to the east. The future land use is AG-R (Agriculture/Rural), described previously.
c. University Parkway to the Bobwhite Substation
The Consensus Corridor meanders through the HRCE for most of this segment. The existing uses are cattle grazing, sod farming, and recreational hunting. The HRCE has a future land use designation as Greenway. The HRCE contains a portion of the Gum Slough swamp system as well as uplands of open pine flatwoods and improved pasture which serve as a buffer for the swamp system.
Land Uses and Significant Natural Features – The Concession Corridor
a. Manatee Energy Center to SR 64
This segment of The Concession Corridor is the same as the FPL Original Corridor and, therefore, has the same land uses and significant natural features as were previously described. b. State Road 64 to Fruitville Road
The existing land uses in this area are a mix of large-lot residences and some agriculture. A large PUD, Panther Ridge, is just west of The Concession corridor. When The Concession Corridor turns south on Verna Road, it passes large wellfields owned by the City of Sarasota and through pastures and other agricultural uses on both sides of the road, with some residential development to the east.
The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are AG-R and R-OS, which were described above.
The ecological communities in this area include pine flatwoods, shrub and brush lands, and freshwater marshes. Just south of SR 64, The Concession Corridor crosses Corbett Branch, which is a Class I tributary of the Manatee River. Along CR 675 and SR 70, are primarily developed lands or farmsteads. There are scattered trees and wetlands along SR 675. The corridor
along SR 70 crosses a slough. Along Verna Road, there are no significant natural features.
c. Fruitville Road to the Proposed Bobwhite Substation
In this area of The Concession Corridor, there are some existing residential and agricultural uses, as well as vacant land that is proposed for residential development. Fruitville Road (and The Concession Corridor) runs just north of the large Gum Slough System.
The future land uses in this area are subject to the Sarasota County Comprehensive Plan. The primary future land uses are Rural, which may be subject to the Sarasota 2050 RMA Supplement, as explained above; Major Government Uses (MGU), which applies to the existing city wellfield; and Greenway, which covers the Gum Slough system. There are also publicly owned lands south of Fruitville Road that are protected for environmental functions and values.
The ecological communities in this area are pine flatwoods, oak and pine uplands, shrub and brush lands, freshwater marshes, wet prairies, and forested swamps. On the western end of Fruitville Road, there are scattered wetlands and tributaries across the roadway, including Cow Pen Slough and Gum Slough.
Land Uses and Significant Natural Features – The Falkner Corridor
Falkner did not present a detailed description of the existing and future land uses or the significant environmental features in the areas through which the Falkner Corridor passes. In the ROW itself, of course, the existing use is electrical transmission lines. Along the corridor, however, there are areas of existing and future residential development. The corridor also passes over the Manatee River and its floodplain. D. Transmission Line Design and Construction
FPL will ultimately construct the BWM Line within a ROW more narrow than the approved corridor. The width of the ROW will range from 10 feet to 75 feet. Pursuant to Section 403.522(10), Florida Statutes, after all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the width of the ROW.
The proposed design for the BWM Line will be a single- pole un-guyed concrete structure, 65-to-100 feet above grade, with the phase conductors framed in a vertical or triangular configuration.
Each of the BWM Line’s 3 phases is anticipated to utilize bundled 954-thousand circular mils, aluminum conductors (2 conductors per phase), with a steel reinforced alumoweld core. There will also be a smaller overhead ground wire to
provide shielding and lightning protection for the conductors. The maximum current rating for the BWM Line will be 2,990 amperes.
The span length between structures will vary between
250 feet and 700 feet, depending on site-specific ROW widths and other design considerations. Both pole height and span length will vary due to natural or man-made constraints such as wetlands, water bodies, property boundaries, existing utility poles, utility lines, and roadways. Shorter structures might be required in proximity to an airstrip, to comply with applicable clear zones, or to accommodate the wishes of underlying property owners.
The transmission line poles can accommodate the placement of electric distribution lines or communication cables beneath the transmission line’s conductors, referred to as “underbuilding.” For poles shorter than 85 feet, however, it is difficult to underbuild. Use of shorter poles also requires a wider ROW to comply with the electric and magnetic fields (EMF) requirements established in Florida Administrative Code Chapter 62-814.
Surveying the ROW to facilitate acquisition of the necessary property interests is a first step toward construction. Concurrently with surveying, FPL will work with the underlying landowners to determine the most appropriate
boundaries of the ROW and the location of poles within the ROW. Another early task is to determine where access roads or structure pads are needed.
After the ROW is established, the initial phase of construction involves clearing the ROW. Clearing the ROW will consist mainly of tree trimming in compliance with American National Standards Institute (ANSI) standards. Generally, trees that cannot be avoided and which exceed or are capable of exceeding 14 feet in height will have to be removed to ensure adequate clearance is maintained around the conductors, both vertically and horizontally.
In wetlands, trees capable of exceeding 14 feet will be removed by hand. Lower wetland vegetation will not be cleared.
After the ROW is cleared, any necessary access roads and structure pads will be constructed. To the greatest extent practicable, existing roads will be used. Improvements might be made to existing roads, depending on their condition. Where soil conditions will not support large construction and maintenance vehicles, usually in wet areas and areas with soft soil, FPL will probably construct new access roads and structure pads. Where new access roads are constructed, they will typically be 14 feet wide and at least six feet above seasonal high water.
Structure pads will typically extend about 20 feet around the pole, but, on at least one side, must extend at least
30 feet to accommodate the outriggers on the construction and maintenance equipment. Access roads and structure pads will not be paved. They will have culverts installed beneath them, when needed, to maintain preconstruction water flows in the area.
The next phase of construction involves the augering of holes, erection of poles, and backfilling of the holes. Poles are typically embedded 18-to-25 feet into the ground.
The poles are then “framed,” which is the installation of the insulators and clamp hardware. If the pole is set at a location where the line turns a large angle, guy lines will be installed to compensate for the greater tension on the conductor. Then, the conductors and overhead ground wires are installed. The conductors are then tensioned to provide the proper design vertical clearances and “clipped in” to the insulator assemblies. The final stage of construction is ROW clean-up, smoothing of ruts, and placement of sod or seed as needed.
During all stages of construction, FPL will maintain traffic on any adjacent county, state or federal roadways in compliance with Department of Transportation (DOT) regulations.
Throughout construction, sedimentation management techniques (e.g., silt fences, turbidity screens, and hay
bales), will be employed as necessary to minimize potential impacts on water quality from erosion and sedimentation.
The entire construction process for the BWM Line will take 13-to-15 months.
Conditions of Certification
The construction, operation, and maintenance of the BWM Line in any of the corridors proper for certification must comply with the Conditions of Certification. The Conditions of Certification establish a review process through which the final right-of-way, access road, and transmission line structure locations will be reviewed by agencies with regulatory authority over the project.
The parties agree that the Conditions of Certification attached as Appendix I to DEP Exhibit 8 are consistent with applicable non-procedural requirements of the state, regional, and local agencies that have regulatory jurisdiction over the BWM Line.
FPL agrees to comply with the Conditions of Certification.
Agency Review of Corridors Proper for Certification
Local, regional, and state agencies with regulatory authority over the construction of the BWM Line reviewed the FPL Original Corridor application and each subsequent alternate
corridor application filed in this proceeding and submitted to DEP a report on matters within the agency’s jurisdiction.
DEP’s first Summary and Compilation of Agency Reports, dated April 27, 2007, addressed only the FPL Original Corridor. At that time, DEP reported that the FPL Original Corridor “can be certified so long as the conditions of certification are met.” The other commenting agencies recommended that the FPL Original Corridor be certified, subject to the conditions of certification.
A revised Summary and Compilation of Agency reports was issued by DEP on September 7, 2007. It addressed the FPL Original Corridor and 12 alternate corridors. DEP stated that “any of the proposed corridors can be certified.” The other commenting agencies, except for Manatee County and Sarasota County, had no objection to certification of any of the proposed corridors.
Manatee County recommended denial of four alternate corridors, including SMR #1, which is the same as The Concession Corridor. Sarasota County also expressed concerns about SMR #1.
DEP’s most recent Addendum to Staff Analysis Report, dated May 5, 2008, compiled the updated reports of the reviewing agencies on the alternate corridors proper for certification, including the Consensus Corridor. Because the Falkner Corridor was rejected by FPL, Falkner did not submit supporting data for
the corridor and the agencies did not review or comment on the Falkner Corridor.
In the Addendum, Manatee County again recommended denial of The Concession Corridor.
Comparison of Corridor Impacts
The Effect of Paragraph 5 of the Settlement Agreement
In the second half of the certification hearing, an issue arose regarding the credibility of the testimony of witnesses for 15 non-governmental parties. These parties entered into a Settlement Agreement on November 7, 2007, which contained the following condition in paragraph 5:
The Parties agree that, through their pleadings and testimony, they shall urge the Administrative Law Judge to recommend, and the Siting Board to certify, the Consensus Corridor subject to the supplemental conditions of certification set forth below.
FPL and the other signatories to the agreement offered testimony to show that they had not entered into the agreement until they were genuinely convinced that the Consensus Corridor was the best of the proposed corridors. They asserted, therefore, that the credibility of the testimony offered in support of the Consensus Corridor is not diminished by the fact that the parties had contractually obligated themselves to support the Consensus Corridor in their testimony.
Paragraph 5 of the Settlement Agreement, however, also raises the question of whether witnesses for the signatories to the agreement felt free to express a subsequent change of opinion with respect to any aspect of the Consensus Corridor; a change of opinion which they reached either on their own or through cross-examination.
The Administrative Law Judged asked several of the witnesses whether their testimony was serving their oaths to tell the truth or their contractual obligation to support the Consensus Corridor. All the witnesses claimed allegiance to their oaths to tell the truth.
The credibility of the witnesses, based on their demeanor and other indices of veracity, was still discernable by the Administrative Law Judge, despite Paragraph 5 of the Settlement Agreement. Only one witness gave testimony that, in some respects, appeared to be based not on personal knowledge or genuine belief, but on the witness’ sense of contractual obligation to support the Consensus Corridor.
Lack of Detailed Information for the Falkner Corridor
Because the Falkner Corridor was rejected by FPL, Falkner did not submit detailed information in support of his corridor and the agencies did not review it. Therefore, Falkner had the burden to present in the certification hearing all of
the information needed to fully evaluate the Falkner Corridor and to compare it to the corridors proper for certification.
Falkner contends that his right to due process was violated because “FPL prevented the public and government agencies from fully considering the proposal to build the BWM Line in the existing FPL right-of-way.” The evidence offered by Falkner in support of his due process claim, however, amounts to nothing more than discussions between FPL and governmental parties about TSLA procedures and the effect of the PSC need determination. The governmental parties remained free to disagree with FPL and to take whatever related action they deemed appropriate. FPL had no power to “prevent” action by a governmental party. Section 403.526(4), Florida Statutes, provides that the failure of an agency to submit a report is not grounds to deny or condition certification.
In several respects, Falkner failed to present the detailed information needed to fully evaluate the Falkner Corridor. For example, the potential environmental impacts associated with the Falkner Corridor (especially the impacts associated with crossing of the Manatee River) were described in less detail than was done in the case of the corridors proper for certification. The record evidence regarding the existing and future land uses adjacent to the Falkner Corridor is also inadequate to make detailed findings on that subject.
The Certification Criteria
Section 403.529(4), Florida Statutes, provides:
In determining whether an application should be approved in whole, approved with modifications or conditions, or denied, the board, or secretary when applicable, shall consider whether, and the extent to which, the location of the transmission line corridor and the construction, operation, and maintenance of the transmission line will:
Ensure electric power system reliability and integrity;
Meet the electrical energy needs of the state in an orderly, economical, and timely fashion;
Comply with applicable nonprocedural requirements of the agencies;
Be consistent with the applicable provisions of local government comprehensive plans, if any; and
Effect a reasonable balance between the need for the transmission line as a means or providing reliable, economically efficient electric energy, as determined by the commission, under s. 403.537, and the impact upon the public and the environment resulting from the location of the transmission corridor and the construction, operation, and maintenance of the transmission lines.
The three corridors proper for certification and the Falkner Corridor will be compared below with respect to each certification criterion.
Ensure Electric Power System Reliability and Integrity
The PSC determined that locating the BWM Line in a geographically separate ROW from the existing common ROW would enhance the electric system reliability benefits of the new line. The Administrative Law Judge ruled that this determination by the PSC did not preclude Falkner or any other party from presenting evidence regarding electric system reliability.
The Florida Reliability Coordinating Council (FRCC) is a component of the North American Electric Reliability Corporation (NERC). FRCC’s primary purpose is to ensure electric system reliability in Florida. FRCC has adopted NERC’s planning standards, which are mandatory and enforced by the Federal Energy Regulatory Commission.
All four proposed corridors would be equally able to achieve the reliability standards established by NERC for “single contingency” events, those that result from the loss of a single element such as a generator or a transmission circuit. The reliability issue in dispute in this proceeding relates to the potential for the loss of all circuits on a common ROW, referred to as a “corridor outage.”
NERC planning standard TPL-004 requires electric utilities to plan for and mitigate the system performance problems that could occur during a corridor outage. The key to
maintaining adequate system performance during a corridor outage is reinforcement elsewhere in the transmission system.
FPL’s records from 1985 to date show that FPL has experienced eight corridor outages in that period. Corridor outages have been caused by, among other things, fires, airplanes contacting the lines, hurricanes, tornados, and lightning. These are all events that could occur in the common ROW that is the Falkner Corridor.
Vince Ordax, FPL’s former supervisor of local area transmission planning, testified that a corridor outage with the BWM Line in the Falkner Corridor could possibly trigger cascading, or uncontrollable, outages. A simulation performed under the direction of Carlos Candelaria, an expert in transmission planning, also showed that a cascading outage could occur, resulting in a blackout lasting hours and affecting 500,000 customers. Such a blackout would jeopardize public health, safety and welfare.
FPL admits, and it is understood in the electric utility industry, that the probability of a corridor outage is very low.
Falkner agrees that “if the BWM Line is built in the existing right-of-way, and if there is a corridor outage, a cascading outage might result causing customer service interruption of up to 4-6 hours.” Falkner further agrees that,
“If the BWM Line is built in a geographically separate corridor
. . . then a cascading outage is unlikely and customer service interruptions should be resolved in minutes, not hours.” Falkner’s position is that this difference in system reliability is not significant and does not prevent an ultimate finding that the Falkner Corridor would have the least adverse impact when all the certification criteria are considered.
The preponderance of the evidence presented shows that geographic separation of the BWM line from the existing ROW would improve system reliability with respect to system performance in the event of a corridor outage. Placement of the BWM Line in the Falkner Corridor would reduce system reliability in the event of a corridor outage. This enhancement of system reliability is a part of the need for the BWM Line as determined by the PSC.
There is an airstrip that is in active use that is perpendicular to Fruitville Road within The Concession Corridor. The proximity of an airstrip to the BWM Line poses a risk of a plane striking the line.
The Consensus and FPL Original Corridors are the same length, about 26 miles. The Concession Corridor is 3.3 miles longer and the Falkner Corridor is 2.5 miles longer. A shorter line reduces line losses and exposure to reliability risks, such as lightning or falling trees. However, the differences in the
lengths of the four corridors under review are not significant with regard to system reliability.
Electric system integrity addresses the adequacy of design and strength of the transmission line to withstand various events. The BWM Line will be constructed, operated, and maintained in compliance with all applicable design codes, including the National Electrical Safety Code, DEP’s regulations on electric and magnetic fields (Florida Administrative Code Chapter 62-814), the Florida DOT Utility Accommodation Manual, Manatee County and Sarasota County noise ordinances, and the standards of the American Society of Civil Engineers, the Institute of Electronic and Electrical Engineers, American Society of Testing Materials, NERC standards, as well as FPL’s own internal standards.
If the BWM Line were constructed in the Falkner Corridor, several structures would have to be built in the open water and floodplain of the Manatee River. Maintenance of these structures would be more difficult and the replacement of poles and some other major components would require barges or helicopters.
The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are on nearly equal footing with regard to this particular certification criterion, with the Concession Corridor slightly less attractive. The Falkner
Corridor has the greatest potential for adverse impact with regard to this criterion.
Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion
In its need determination for the BWM Line, the PSC determined that the line must be in service by December 2011 to preserve electric system reliability and integrity. The design, construction, and operation of the BWM Line can be accomplished in an orderly and timely fashion and in compliance with the conditions of certification in any of the corridors proper for certification.
FPL contends that there was an insufficient showing that the BWM Line could be constructed, operated and maintained in the Falkner Corridor in compliance with the conditions of certification and, therefore, an insufficient showing that a new transmission line in the Falkner Corridor could meet the area’s electric energy needs in an orderly and timely fashion.
FPL’s position is based in part on its belief that it would be difficult and perhaps impossible to obtain agency approvals for the wetland impacts associated with the crossing of the Manatee River in the Falkner Corridor. Although the record evidence indicates that a transmission line in the Falkner Corridor would have wetland impacts associated with its
crossing of the Manatee River, the evidence is insufficient to demonstrate that a permit could not be obtained.
Some questions remain about whether the BWM Line could physically fit within the existing common ROW in the area south of SR 70 where a Peace River Electric Cooperative (PRECO) transmission line, called the Crawley tap, is located within it or in locations requiring the BWM Line to turn corners where guying would be needed.
Within the next 10 or 15 years, FPL and PRECO plan to place four new distribution substations east of Interstate 75 in Manatee County and Sarasota County to serve future growth. Placing the BWM Line in a corridor east of the existing common ROW would more efficiently integrate these future distribution substations than placing the transmission line in the Falkner Corridor.
Placement of the BWM Line in one of the corridors proper for certification would facilitate the building of an integrated system that could be efficiently expanded in the future as this area continues to develop. The Falkner Corridor, because it is on the western edge of the service area, would be less able to provide these benefits.
The Concession asserts that its corridor has the unique advantage of passing FPL property that was purchased many years ago for a future distribution substation, referred to as
the Oakford site. However, because of the uncertainties associated with whether and when the Oakford site will ultimately be used, how other planned substations will be integrated, and their costs, the proximity of the Oakford site to the Concession Corridor cannot be assigned much weight at this time.
The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are all on essentially equal footing with regard to this particular certification criterion. The Falkner Corridor has some potential adverse impact with regard to this criterion.
Comply with Applicable Nonprocedural Requirements of the Agencies
The construction, operation and maintenance of the BWM Line on any of the corridors proper for certification, subject to the conditions of certification proposed by the DEP, will comply with the applicable nonprocedural requirements of agencies.
Described earlier, but also relevant to this particular certification criterion, is FPL’s contention that it would be difficult and perhaps impossible to obtain agency approvals for the wetland impacts associated with the transmission line crossing of the Manatee River in the Falkner Corridor. FPL suggests that the availability of the alternative
river-crossing along CR 675 in the corridors proper for certification would pose a problem in demonstrating that a transmission line in the Falkner Corridor avoided or minimized wetland impacts. However, the Falkner Corridor would only be certified by the Siting Board if it determined that the Falkner Corridor had the least adverse impacts regarding the criteria in Section 403.529(4), Florida Statutes. Such a determination made in this integrated certification proceeding would have to be considered in the wetland permitting process.
As stated above, the record evidence is insufficient to find that the Falkner Corridor could not be approved due to its wetland impacts.
Falkner did not show, and it was not conceded by FPL, that the BWM Line could be constructed in the Falkner Corridor in compliance with the EMF standards.
The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are all on an equal footing with regard to this particular certification criterion. The Falkner Corridor has more potential adverse impact with regard to this criterion.
Consistency with Applicable Local Government Comprehensive Plans
The Manatee County Comprehensive Plan has no provisions specifically addressing transmission lines. Policy
GS 2.4 of the Sarasota County Comprehensive Plan discourages the crossing of Greenway RMAs by utilities, but allows a utility crossing when it shown to be necessary to ensure the health, safety and welfare of the citizenry. A utility crossing must be designed to have minimal impacts on the environment.
The Consensus Corridor crosses a Greenway RMA in Sarasota County within the HRCE. Sarasota County has authorized placement of the BWM Line across the HRCE if the Consensus Corridor is certified.6
In the Sarasota County Comprehensive Plan, Future Land Use Objective VOS 5 and Policy VOS 5.2 require protection of the “open vistas” and “integrity of the rural character” of Fruitville and Verna Roads.
Because transmission lines are commonly placed in rural settings, FPL asserts that a transmission line is consistent with rural character. The comments of the public show this notion is not generally accepted. Although it is undisputed that transmission lines are commonly placed in rural areas, there appears to be almost unanimity in the belief that a transmission line reduces the quality of a rural vista.
Neither Manatee County nor Sarasota County asserted in this proceeding that any of the four proposed corridors is inconsistent with the applicable provisions of its comprehensive plan. However, the TLSA requires a consideration of “the extent
to which” the proposed corridors are consistent with local government comprehensive plans.
Because Sarasota County has recognized the special character of the Verna Road/Fruitville Road area and adopted policies that seek to preserve its open vistas and rural character, The Concession Corridor along Verna Road and Fruitville Road presents a “negative” with respective to this criterion.
The Consensus Corridor also presents a consistency issue under the Sarasota County Comprehensive Plan because the corridor crosses through the HRCE. However, due to the mitigation proposed as part of the corridor proposal (discussed in the next section), there is a net positive furtherance of the relevant comprehensive plan goals, objectives, and policies regarding environmental protection, generally, and the HCRE, specifically.
The four proposed corridors are not far apart with respect to this particular certification criterion, but, as explained above, there is an advantage with The Consensus Corridor and a disadvantage with The Concession Corridor.
Effecting a Reasonable Balance Between the Need for the Transmission Line and the Impact Upon the Public and the Environment
Proximity to Residences
There is no route between the Manatee Energy Center and the proposed Bobwhite substation that would make the BWM Line unseen from residences. Of the corridors proper for certification, the Consensus Corridor has the fewest homes within 600 feet and The Concession Corridor has the most. The Consensus Corridor has 40 existing homes within 600 feet, the FPL Original Corridor has 54, and The Concession Corridor has 189.
The record does not show how many existing homes or residential lots are within 600 feet of the Falkner Corridor, but the Falkner Corridor passes through or by residential developments and urban areas.
Taylor & Fulton/the Hunsaders/Bridle Creek
The FPL Original Corridor, south from SR 64, begins at Dam Road and travels south through a large tract of agricultural land owned by Taylor & Fulton. Manatee County plans to extend Dam Road north from University Parkway to SR 64, and the FPL Original Corridor would be aligned with Dam Road through the Taylor & Fulton property. Collocation with Dam Road, compatibility with the existing agricultural uses, and avoidance of the residential land uses to the east and west were
some of the reasons given by FPL for selecting this segment of the corridor as part of the FPL Original Corridor.
The Consensus Corridor in this segment is derived from an agreement between FPL and Taylor & Fulton to have the BWM Line follow Taylor & Fulton’s eastern property boundary. Jay Taylor testified that this location would cause less impact to the future development of the Taylor & Fulton property.
In order to follow Taylor & Fulton’s eastern property boundary, it is necessary to construct the BWM Line in a “C”- shaped notch. The notch adds about one mile of transmission line, compared to a straight line. FPL asserts that such notches are not unusual and FPL has created notches in other areas of the State to follow property boundaries or to avoid wetlands. However, the only examples presented by FPL were notches with much longer sides. The notch in the Consensus Corridor creates a tight “C” shape, with the sides close to each other. From several vantage points around the notch, a viewer would see two, three, or even four transmission lines.
There are technical solutions for transmission lines that turn sharp angles, so the tight turns in the proposed notch can be engineered and built. The problem created by the proposed notch in the Consensus Corridor is not an engineering issue, but a problem of extreme visual impact on adjacent properties. The complaints and concerns expressed by many
persons and parties in this proceeding were over the prospect of a single linear “eyesore.” The notch in the Consensus Corridor, however, would make it appear that there were three or four separate transmission lines built close together and running in different directions. This dramatic difference undermines attempts to describe the Consensus Corridor as more favorable than the FPL Original Corridor in this segment.
The Hunsaders own property that would be surrounded on three sides by the BWM Line in the notch of the Consensus Corridor. In this area, the Hunsaders host the annual Hunsader festival, a rural community festival that attracts thousands of people.
Collocation with existing or planned roads is an important consideration in transmission line siting. The FPL Original Corridor south of SR 64 is collocated with the future Dam Road extension. The Consensus Corridor would provide an opportunity to collocate with existing farm roads on the Taylor & Fulton property, but collocation with Dam Road is the better of these alternatives.
Although Taylor & Fulton claims that the Consensus Corridor would cause significantly adverse impact to its property, the evidence offered in support of this claim was not persuasive. Agricultural uses are relatively unaffected by a transmission line. Unlike SMR, Taylor & Fulton has no specific
future development plans for its property. Its concern regarding the impacts of the BWM Line on future development is speculative.
The Dam Road extension (four-lanes) will divide the Taylor & Fulton lands into two distinct areas, east and west of the road. The BWM Line would run along one side of Dam Road. It will be Dam Road, not the BWM line, that will be the primary feature that Taylor & Fulton will have to incorporate into its future development plans. Moreover, the potential adverse impacts to Taylor & Fulton’s future development interests must
be considered in conjunction with the fact that Dam Road and the BWM Line are both major public infrastructure projects that will provide substantial future benefits to Taylor & Fulton and the other developers in that area.
FPL and other parties emphasized in this proceeding that when a transmission line is constructed in rural areas in advance of residential development, there are many options and techniques available to a developer to integrate the transmission line into future development plans in order to minimize its visual impact. In the future development of Taylor & Fulton’s agricultural lands, Taylor & Fulton will have these same development options and techniques.
The difference between the three-sided notch and a simple line defies simple comparisons, such as the numbers of
current residents in the vicinity of the Consensus Corridor versus the FPL Original Corridor in this segment.
In order to assuage the concerns of the residents of the Bridle Creek subdivision on the south side of the Consensus Corridor where it runs back to the west to join the FPL Original Corridor alignment, Taylor & Fulton agreed to have the BWM Line located on the north side of a drainage canal and a line of trees so that the BWM Line would be screened from Bridle Creek. Taylor & Fulton would not remove the trees in this area if the BWM Line is constructed within the Consensus Corridor.
FPL has agreed to the following condition, to be added to the Conditions of Certification as No. XVIII(F), if the Consensus Corridor is certified:
To the extent feasible, and upon request by the Bridle Creek Homeowners Association (BCHOA), FPL shall consult with Taylor & Fulton, Inc. and BCHOA in the design of the transmission line to: 1) keep the pole heights along the northern BCHOA property boundary to the minimum height that is practicable, consistent with the desires of Taylor & Fulton, and in compliance with the requirements of the National Electrical Safety Code and good engineering practices; and 2) work collaboratively to locate the poles in such a way as to accommodate the BCHOA to the extent practicable, consistent with the wishes of Taylor & Fulton, and in compliance with the requirements of the National Electrical Safety Code and good engineering practices.
The Concession’s Entrance
The Concession’s main concern is the impact of the BWM Line on its entrance. An attractive entrance is an important aspect of a residential development. The Concession believes the BWM Line in the FPL Original Corridor and the Consensus Corridor would substantially diminish the attractiveness of its entrance and harm the marketability of lots and homes within The Concession.
Although The Concession did not join in the Settlement Agreement that resulted in the Consensus Corridor, the Consensus Corridor was designed to reduce the potential impacts of the BWM Line on The Concession’s entrance and property. FPL has agreed to locate the BWM Line along the west side of four-lane Bourneside Boulevard, the opposite side of Bourneside Boulevard from The Concession’s entrance. The transmission line would not cross over The Concession’s entrance road. In this area, the BWM Line would be 450 feet from The Concession golf course and 832 feet from the nearest residential lot.
The Concession has opportunities to reduce the visual impact of the line with landscaping.
The Concession’s entrance is not currently unblemished. A 250-foot telecommunications tower is located on SMR’s property several hundred feet from The Concession
entrance. The tower was constructed before The Concession purchased its property, and the tower operator has a lease which allows the tower to remain there for many years.
The telecommunications tower affects the siting of the BWM Line in this area. Telecommunications towers must be separated from high voltage power lines by a distance equal to the tower’s height. Therefore, the BWM Line must be located at least 250 feet from the tower.
The Concession presented no direct evidence that the prospect of the BWM line near the entrance to The Concession residential development has harmed lot or home sales. The presence of the telecommunications tower was not shown to have affected sales.
FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8, as No. XVIII(D):
In the area of the planned Dam Road/Bourneside Boulevard extension (“Extension”), south of SR 64 and north of University Parkway and connecting with SR 70, FPL shall coordinate to the extent practicable with Manatee County Transportation Department and the underlying property owners regarding the location of the ROW for the Extension and the ROW for the BWM Line. If either Manatee County or the property owner(s) decline to participate in the coordination effort, FPL shall coordinate with the cooperating entity.
FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8, as No. XVIII(E):
During design of the BWM Line, FPL shall locate poles, to the extent practicable and in compliance with the requirements of the National Electrical Safety Code and good engineering practices, to maximize the space between a pole and the primary entrance of a major residential subdivision, using typical structures, and within the ROW alignment.
FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8 as No. XXVII(B):
To the extent practicable and consistent with safe operation and ongoing maintenance practices for the BWM Line, and in compliance with the requirements of Section 163.3209, F.S. (2007) and FPL’s Transmission Vegetation Management Procedures [which have been filed with NERC and are mandatory], after construction of the BWM Line is complete, FPL shall allow underlying property owners along the BWM Line ROW to plant vegetation within the ROW. Vegetation planted within the ROW shall not have a mature height of more than 14 ft from natural ground grade and must maintain at least 75 ft of clear space around the base of the structure and must not be located so as to impede access to the BWM Line for routine and emergency maintenance. Plans for vegetation planting along the BWM Line ROW shall be reviewed and approved by FPL to ensure compatibility with the access, operation and maintenance of the facility; if compatible, the planting must be permitted.
These three conditions of certification would provide opportunities to reduce the visual impact of the BWM Line in the Consensus Corridor on The Concession’s entrance.
The Concession proposes a condition of certification that would require the BWM Line to be constructed several hundred feet west of Bourneside Boulevard, on SMR property. However, this would create substantial interference with SMR’s Lake Club development, part of an approved Development of Regional Impact. The adverse impacts to the Lake Club would be disproportionately greater than the adverse impacts to The Concession’s entrance caused by the Consensus Corridor. University Parkway
FPL and SMR have agreed to work together on the design of the BWM Line, including ROW location, pole height, and framing configuration, in the areas of University Parkway and Bourneside Boulevard to minimize the visibility of the poles.
With respect to the area south of University Parkway, the Consensus Corridor has fewer impacts on existing and future residences than the FPL Original Corridor because the Consensus Corridor is more distant from residences. It avoids crossing lands designated for future Village Land Use on the Sarasota 2050 Plan and as RES-1 on the Manatee Future Land Use Map.
CR 675, Verna Road, and Fruitville Road
The Concession Corridor is close to and would adversely impact more existing homes and approved future residential lots than the FPL Original Corridor and Consensus Corridor. CR 675, Verna Road, and Fruitville Road have narrow rights-of-way, with homes closer to the roads, and less opportunity for landscaped screening.
The Falkner Corridor
The number and proximity of existing and future homes along the Falkner Corridor was not shown. There already are multiple transmission lines in the Falkner Corridor, so for many persons living near the corridor, the incremental increase in the visual impact of adding another transmission line in the corridor should be relatively small. Nevertheless, the overall impact of the Falkner Corridor in this respect is unknown.
Electric and Magnetic Fields
Some members of the public expressed concern at the public hearings and through letters submitted to the Administrative Law Judge about the potential for health effects from electric and magnetic fields (EMF). However, EMF standards have already been established for the protection of human health and safety and would apply to a transmission line constructed in any corridor certified by the Siting Board. Neither the Administrative Law Judge nor the Siting Board has authority in
this certification proceeding to determine the appropriateness of any EMF standard.
FPL provided reasonable assurances that the BWM Line, if built within any of the corridors proper for certification, will comply with the EMF standards. Falkner did not show, and it was not conceded by FPL, that the BWM Line could be constructed in the Falkner Corridor in compliance with the EMF standards.
Environmental Impacts
No matter what corridor is certified, FPL has agreed to follow a number of procedures to avoid and minimize the impacts to wetlands. For example, wetlands will be spanned wherever possible so poles or pads are not placed in wetlands. The transmission line will follow disturbed areas when possible. FPL has agreed to use restrictive clearing practices in forested wetlands, removing only trees taller than 14 feet and leaving the understory vegetation in place. Where fill is required, FPL will install culverts to maintain water movement. FPL will appropriately mitigate for wetland impacts that cannot be avoided.
The FPL Original Corridor and Consensus Corridor are wide in some areas for the purpose of providing flexibility to avoid natural vegetated communities and waterbodies to the greatest degree possible. The FPL Original Corridor and
Consensus Corridor can be constructed without significant disturbance to wetlands. The Concession Corridor is narrower, but generally follows areas that are already disturbed and can also be constructed without significant disturbance to wetlands.
Based on a simple calculation of total wetlands that are crossed by the corridors, The Concession contends that it would have the least environmental impact. That is a simplistic analysis that fails to account for the fact that, in any of the corridors proper for certification, FPL will probably be able to avoid significant impacts to the wetlands.
All of the corridors proper for certification cross the Manatee River and Gilley Creek on existing bridge crossings without any poles needing to be placed in open water or wetlands. These crossings would be accomplished by spanning over the water, upland-to-upland.
The BWM Line in the three corridors proper for certification would be collocated with CR 675 at the Edward Chance Preserve, adjacent to the Preserve’s parking lot. The pristine, natural areas of the preserve would not be disturbed.
For most of the Falkner Corridor, a new transmission line in the existing ROW would appear to have no wetland impacts, but the Falkner Corridor crosses the Manatee River at a much wider point than the other three corridors. Building the BWM Line in the Falkner Corridor would require placing at least
four structures within the Manatee River, and 7-to-8 structures in the adjacent floodplain.
Four miles south of SR 64, the Consensus Corridor and FPL Original Corridor cross the Braden River. The river is narrow within these corridors and can be spanned. The Concession Corridor and Falkner Corridor do not cross the Braden River.
The Concession Corridor crosses Gum Slough and Cow Pen Slough on Fruitville Road, and Wolf Slough on CR 675 south of SR 64. The other proposed corridors do not cross these sloughs. However, no significant impacts to these wetlands are expected to occur if the BWM Line is constructed in The Concession Corridor.
The construction, operation, and maintenance of the BWM Line in any of the corridors proper for certification is not expected to adversely impact any listed species or their habitats. There are no known listed plant species within the proposed corridors. However, there are conditions of certification which require FPL to survey for and protect any listed plant species found after certification of the BWM Line.
Much of the wildlife habitat within the proposed corridors has been disturbed by roads, farming operations, and other man-induced impacts. No listed wildlife species are known to use the lands within the proposed corridors. FPL is required
by the conditions of certification to protect any listed species that are found after certification of the BWM Line.
The significant wildlife habitats (for non-listed species) in the corridors proper for certification are either avoided or, in the case of the Consensus Corridor’s location in the HRCE, the impacts are mitigated by measures to protect more wildlife habitat.
There are some large live oak trees along CR 675.
FPL can avoid or minimize impacts to those trees. In addition, FPL has agreed to the following additional condition of certification to be added as Condition No. XVIII(G) to the Conditions of Certification:
When establishing the ROW location and constructing the transmission line, the Licensee shall minimize impacts to pre- existing natural features and minimize tree removal and trimming of vegetation, to the extent feasible and in compliance with Section 163.3209, Fla. Stat. (2007), which incorporates by reference National Electrical Reliability Corporation (NERC) standard FAC-003-1, American National Standards Institute (ANSI) standards A300 (Part I)-2001 and Z133.1-2000, and NESC
standards adopted by the Florida Public Service Commission.
Heritage Ranch Conservation Easement (HRCE) and Mitigation
The Consensus Corridor is the only corridor that goes through the HRCE. The BWM Line would involve 18-to-28 acres of transmission line ROW in the 1,972-acre HRCE, depending on pole
height and EMF-related ROW width requirements. The Consensus Corridor is near the western edge of the HRCE, which is primarily improved pasture and pine flatwoods, and follows jeep trails and fire breaks for much of its length. No unique or significant wildlife habitat exists in the corridor. No wetlands or important environmental features of the HRCE would have to be disturbed. The environmental functions of the HRCE would not be impaired.
Although the HRCE is in a conservation land use designation, the portion of the HRCE within the Consensus Corridor is not environmentally sensitive, but serves as a buffer to the environmentally sensitive Gum Slough system. Sarasota County, the holder of the HRCE conservation easement, has approved the construction, operation and maintenance of the BWM Line within the HRCE in the Consensus Corridor.
SMR has agreed to add 140 acres to the HRCE if the Consensus Corridor is certified. These 140 acres include portions of Gum Slough and large isolated wetlands. Protection of these additional lands would provide wildlife habitat and water quality benefits.
SMR would also protect 470 acres of additional lands contiguous to the HRCE with restrictive covenants. The 470 acres include wetland systems, such as Cow Pen Slough, which would be protected from future development. The restrictive
covenants require SMR to ensure that these wetlands are maintained in as good an ecological condition and functionality as currently exists, or better. The restrictive covenants would aid in the protection and preservation of the natural drainage pattern in the area, and would provide a benefit to the Gum Slough system for wildlife habitat and water quality.
Summary of Environmental Impacts
At this level of analysis, it is impossible to predict the unavoidable environmental wetland impacts that would be associated with each of the corridors proper for certification. As required by the Conditions of Certification, the construction of the BWM Line in any certified corridor must comply with the wetland regulatory standards applicable to such projects.
The three corridors proper for certification have some potential for environmental impacts, but for all of these corridors, the environmental impacts should be relatively minor. However, the Consensus Corridor is the best of the three proposals because it presents an opportunity for a net environmental benefit with SMR’s offer to protect 600 more acres of sensitive lands. The Falkner Corridor has the greatest potential for adverse environmental impacts because of the need to place structures in the Manatee River and its floodplain.
Costs
The FPL Original Corridor is estimated to cost about
$25.5 million, the most of the three corridors proper for certification. The Consensus Corridor is estimated to cost $3.3 million less, primarily due to the agreements with Taylor & Fulton and SMR regarding ROW acquisition. The Concession Corridor is estimated to cost $500,000 less than the Consensus Corridor.
The difference between the estimated costs for the Consensus Corridor and The Concession Corridor, $500,000, represents a small percentage of the total project costs, especially in light of the margin of error in these cost estimates. Even a cost differential of $3 million, at this early stage of planning and cost analysis, is not a substantial difference.
The estimated cost of placing the BWM Line within the existing common ROW in the Falkner Corridor was not clearly established in the record. Falkner used 2006-2007 cost estimates to argue that the Falkner Corridor would cost millions less than the other corridors.
FPL states that the FPL Corridor would require that transmission lines be looped in and out from the existing common ROW to FPL’s future distribution substations, adding over $7 million of costs when compared to a geographically separate
corridor. However, there is insufficient evidence in the record regarding the costs associated with future substations and connecting transmission lines to meaningfully compare the four corridors with regard to these and other future system components.
The preponderance of the credible evidence shows that the BWM Line in the Falkner Corridor would probably cost the least to build. However, the record evidence is not sufficient to state how much less the Falkner Corridor would cost.
Other Issues
The Concession Corridor and Falkner Corridor avoid impacts to Lake Manatee State Park. The potential impacts of the FPL Corridor and Consensus Corridor on the park would be small, but the Consensus Corridor would have less impact because it avoids the Park’s entrance and reduces the BWM Line’s length along the park boundary on SR 64 by about one mile.
Within the park, the BWM Line would likely be screened from view by trees in the park. There should be no adverse ecological impacts to the park. If the BWM Line is located in the Consensus Corridor or FPL Original Corridor, FPL would first try to place the line in the road ROW. If that were not possible, FPL would locate the line just inside the Park’s fence in an area already cleared.
With respect to traffic interruption during construction of the BWM Line, the Consensus Corridor and FPL Original Corridor would have equally small impact. Construction of the BWM Line in The Concession Corridor along CR 675 (south of SR 64), SR 70, Verna Road, and Fruitville Road would likely require intermittent closure of at least one lane of traffic for the 2-to-3 month construction period.
Summary Regarding The Balancing of Need and Impact
All three corridors proper for certification would cause adverse impacts to the public which can be avoided without jeopardizing the objectives of the TLSA and without losing the benefits associated with integrating the BWM Line with existing and future land uses. However, the TLSA clearly contemplates that a proposed corridor can cause adverse impacts to the public and the environment, but still meet the criteria for certification.
The three corridors proper for certification are found to meet this criterion because none would cause adverse impacts to the public and the environment that are so great that they outweigh the need or benefits of constructing the BWM Line. The evidence submitted for the Falkner Corridor, however, was insufficient to make a finding regarding this particular criterion.
I. The Corridor that would have the Least Adverse Impact
Section 403.529(5)(b), Florida Statutes, provides that the Siting Board shall deny certification if it determines that a rejected corridor has the least adverse impact with regard to the certification criteria. The Falkner Corridor has more potential for adverse impact regarding some of the certification criteria than the corridors proper for certification. For some certification criteria, insufficient evidence was presented regarding the Falkner Corridor to make a meaningful comparison with the corridors proper for certification. Therefore, the record evidence does not support a finding that the Falkner Corridor has the least adverse impact regarding the criteria in Section 403.529(4), Florida Statutes.
If two or more corridors proper for certification meet the statutory criteria, certification must be granted to the corridor that has the least adverse impact regarding the criteria in Section 403.529(4) Florida Statutes, including costs. § 403.529(5)(c), Fla. Stat. Because the FPL Original Corridor, the Consensus Corridor, and The Concession Corridor meet the certification criteria, it must be determined which of them would have the least adverse impact.
During the certification hearing, the parties promoted one corridor over another based on the advantages and disadvantages associated with their various segments. However,
the preponderance of the evidence demonstrates that the best combination of corridor segments, creating a corridor that has the least adverse impact and effects the best balance between the need for the BWM Line and impacts upon the public and the environment, is not one of the corridors proper for certification.
The Consensus Corridor does not effect the best balance between the need for the transmission line and the impact on the public because it includes substantial adverse impacts on the public in the area of the notch on Taylor & Fulton’s property that are unnecessary and avoidable. The avoidance of these impacts, the opportunity to collocate the BWM Line with the Dam Road extension, and several other advantages described by FPL in its corridor application and in the evidence presented by FPL during the first part of the certification hearing, make the FPL Original Corridor preferable in this area of Manatee County.
The best combination of corridor segments is the FPL Original Corridor from the Manatee Energy Center to the point where it is perpendicular to Taylor & Fulton’s southern property boundary, and then continuing south in the Consensus Corridor to the proposed Bobwhite substation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Sections 120.569, 120.57(1), and 403.525, Florida Statutes.
The standing of the parties was not disputed. All the parties that participated in this certification proceeding have standing to participate as parties. FPL, DEP, and the parties who filed alternate corridor applications are necessary parties in this proceeding. Manatee County, Florida Department of Transportation, and Southwest Florida Water Management District filed timely notices of their intent to be parties. Sarasota County filed a Notice of Appearance and participated as a party without objection. All other Intervenors have standing to participate because they have substantial interests that are affected and being determined by the proceeding.
The intent of this certification process is:
to fully balance the need for 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 reliable, economical, and efficient electrical energy and the impact on the public and the environment resulting from the location of the transmission line corridor and the construction, operation and maintenance of the transmission lines.
§ 403.521, Fla. Stat.
The Legislature has established a two-part transmission line certification process which begins with the PSC’s determination of the need for the proposed transmission line and related matters within its jurisdiction deemed relevant to the determination of need. See § 403.537, Fla. Stat. The PSC’s determination of need is binding on all parties to the certification proceeding. Id. The Governor and Cabinet, sitting as the Siting Board, must then determine whether, and the extent to which, each proposed corridor and its construction, operation, and maintenance will satisfy the statutory criteria set forth in Section 403.529(4) Florida Statutes:
Ensure electric power system reliability and integrity;
Meet the electrical energy needs of the state in an orderly, economical, and timely fashion;
Comply with applicable nonprocedural requirements of the agencies;
Be consistent with the applicable provisions of local government comprehensive plans, if any; and
Effect a reasonable balance between the need for the transmission line as a means or providing reliable, economically efficient electric energy, as determined by the commission, under s. 403.537, and the impact upon the public and the environment resulting from the location of the transmission corridor and the construction,
operation, and maintenance of the transmission lines.
The TLSA requires, in Section 403.529(4)(a), Florida Statutes, that the Administrative Law Judge and the Siting Board to determine whether the proposed corridors ensure electric power system reliability. Therefore, the PSC’s findings regarding system reliability that are made as part of the PSC determination of need do not foreclose an independent assessment of system reliability in this certification proceeding.
Section 403.529(4)(d), Florida Statutes, requires the Siting Board to consider whether, and the extent to which, a transmission line corridor would be “consistent with applicable provisions of local government comprehensive plans, if any.”
FPL contends that, because transmission lines are excluded from the definition of “development” in the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes, the local government comprehensive plans of Manatee and Sarasota Counties are not “applicable” to the BWM Line and no determination of consistency is required.
Although the construction of an electric transmission line in an established right-of-way is not “development” under Chapter 163, Florida Statutes, and the TLSA was not intended to require an applicant to demonstrate consistency with a local
government’s Future Land Use Map, the broadly-stated goals, objectives, and policies of comprehensive plans have meaning apart from the regulation of development and must be considered in determining whether a proposed corridor meets the criterion in Section 403.509(4)(d), Florida Statutes.
If two or more corridors proper for certification meet the statutory criteria, certification must be granted to the corridor that has the least adverse impact regarding the criteria in Section 403.529(4) Florida Statutes, including costs. See § 403.529(5)(c), Fla. Stat.
The corridors proper for certification are those addressed in the application, in any amendments to the application, and in notices of acceptance of proposed alternate corridors. See § 403.522(10), Fla. Stat. Because FPL rejected the Falkner Corridor, it is not a corridor proper for certification.
Section 403.5271(3)(a), Florida Statutes, refers to the “rejection of a proposed alternate corridor by the applicant or the department,” but the TLSA does not identify any criteria that govern the decision to reject a corridor. Florida Administrative Code Rule 62-17.625(1) sets forth the criteria that DEP uses to determine whether it will reject a proposed alternate corridor:
The alternate does not have appropriate end points which connect to the remainder of the transmission line.
The quality of the filing is so poor as to make it difficult for the department to evaluate the proposal.
Failure to submit the information required by section 405.527(5)(a), F.S.; however, this shall be without prejudice to refile within the timeframes set forth in Section 403.527(5), F.S.
If the Siting Board finds that a rejected corridor has the least adverse impact regarding the statutory criteria, certification must be denied and the applicant allowed to submit an amended application. § 403.529(5)(b), Fla. Stat.
The Concession argues that the mitigation of environmental impacts should not be considered by the Administrative Law Judge or the Siting Board in determining which proposed corridor has the least adverse impact regarding the criteria in Section 403.529(4), Florida Statutes. There is no provision of the TLSA that prohibits the consideration of environmental mitigation. The TLSA is intended to be a "centralized and coordinated licensing process" for siting electric transmission lines. See § 403.521, Fla. Stat. Certification under the TLSA is in lieu of any license or permit required by any state, regional, or local agency under state law or local ordinance. See § 403.531(3)(a), Fla. Stat. Mitigation of environmental impacts is routinely considered and can be
approved under the substantive permitting procedures that are supplanted by the TLSA.
DEP, charged with administering the TLSA, interprets the TLSA to allow for the consideration of proposed environmental mitigation.
The Siting Board has already established a precedent for considering and accepting environmental mitigation in the selection of a transmission line corridor, in In Re: Florida Power & Light Company Levee-Midway 500 kV Transmission Line Corridor Certification Application No. TA89-0, DOAH Case No. 89- 0279TL (Mar. 2, 1990), affirmed, Fla. Sugar Cane League v. State of Florida, 580 So. 2d 846, 850-51 (Fla. 1st DCA 1991).
Each party proposing a corridor has the burden of proving, through a preponderance of competent substantial evidence, that the corridor meets the criteria in Section 403.529(4), Florida Statutes. See § 403.5271(3)(b), Fla. Stat. See also Fla. Dep’t of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor were shown by a preponderance of the evidence to meet the certification criteria. Falkner did not meet his burden to prove that the Falkner Corridor would meet the certification criteria.
Falkner claimed that his right to due process was violated by FPL’s rejection of his proposed corridor and FPL’s
discussions with Sarasota County and Manatee County representatives in which FPL asserted that it was unnecessary for the counties to review and comment on the Falkner Corridor. To the extent that Falkner’s due process claim is an attack on the procedures of the TLSA, it cannot be raised in this certification proceeding. See Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Imp. Fund, 427 So. 2d 153 (Fla. 1982); Dep’t of Revenue v. Young American Builders, 330 So. 2d 864 (Fla. 1st DCA 1976). The statements made by FPL in its discussions with Sarasota County and Manatee County did not control the actions of those governments. No timely motion or demand for specific relief was made by Falkner. Falkner’s due process claim was not properly raised, alleged, or proven.
The definition of “corridor” in Section 403.522(10), Florida Statutes, is broad enough to include any area proposed by any party for the location of the transmission line ROW, and to allow the Siting Board to certify a corridor that combines segments of two or more corridors proper for certification. All parts of a corridor that combines segments from corridors proper for certification would have been included in the public notices required by the TLSA. All parts of such a corridor would have been subject to detailed description and analysis in the proceeding. Combining segments, therefore, satisfies the fundamental requirements of the TLSA to provide notice to all
affected persons and to conduct a thorough review of the proposed corridor.
The Siting Board is authorized to approve a certification application "with modifications." § 403.529(4), Fla. Stat. "Certification" is defined to mean approval by the Siting Board of a corridor proper for certification "with the changes or conditions as the siting board deems appropriate."
§ 403.522(7), Fla. Stat.
DEP interprets the TLSA to authorize the Siting Board to certify a corridor that is a combination of segments proposed in the corridors proper for certification.
The Siting Board has already established a precedent for certifying a corridor that is a combination of segments from two or more proposed corridors. In the Levee-Midway 500 kV TLSA proceeding, the corridor ultimately certified by the Siting Board included parts of the FPL Primary Corridor and two alternate corridors. The certified corridor was not proposed in its entirety by any party or addressed in any single application. In Re: Fla. Power & Light Co. Levee-Midway 500 kV Transmission Line Corridor, supra.
The preponderance of the evidence presented at the certification hearing demonstrates that the corridor with the least adverse impact regarding the criteria in Section 403.509(4), Florida Statutes, is the FPL Original Corridor from
the Manatee Energy Center to the point where it is perpendicular to Taylor & Fulton’s southern property boundary, and then continuing south in the Consensus Corridor to the proposed Bobwhite substation.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Siting Board enter a Final Order that
certifies the corridor for the BWM Line as consisting of the FPL Original Corridor from the Manatee Energy Center to the point where it is perpendicular to Taylor & Fulton’s southern property boundary, and then continuing south in the Consensus Corridor to the proposed Bobwhite substation; and
that is subject to the Conditions of Certification that were entered into the hearing record as DEP Exhibit 8; and
that is subject to the additional conditions agreed to by FPL and cited in paragraphs 161 through 163, and 183, of this Recommended Order; and
that incorporates the terms set forth as paragraphs 5A through 5D of the Settlement Agreement entered into the record as FPL Exhibit 91, or comparable terms that provide for the environmental mitigation described therein, as conditions of this certification.
DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida.
BRAM D. E. CANTER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2008.
ENDNOTES
1/ All references to the Florida Statutes are to the 2007 codification unless otherwise noted.
2/ Falkner claims that cross-examination of witnesses was not permitted at the May 2008 public hearing, but no such order or ruling was issued by the Administrative Law Judge.
3/ The corridor turns west for 0.5 miles, then south for 0.6 miles, then east for 0.5 miles, and then south again.
4/ The corridor’s eastern boundary is 200 feet from the Panther Ridge development and over 800 feet from the nearest lot in The Concession development.
5/ The BWM Line would be located on the west side of Bourneside Boulevard.
6/ The HRCE was created pursuant to Section 704.06, Florida Statutes. The statute authorizes the easement holder (in this case, Sarasota County) to "voluntarily negotiate the sale or utilization of such lands or easement for the construction and
operation of linear facilities, including electric transmission and distribution facilities."
COPIES FURNISHED:
Lea Crandall, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Tom Beason, General Counsel
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Michael W. Sole, Secretary
Department of Environmental Protection Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
James V. Antista, General Counsel Florida Fish and Wildlife Commission Bryant Building, Room 108
620 South Meridian Street Tallahassee, Florida 32399-1600
Martha Carter Brown, Esquire Public Service Commission 2540 Shumard Oak Boulevard
Tallahassee, Florida 32399-0850
Elizabeth Donley, General Counsel
Southwest Florida Regional Planning Council 1926 Victoria Avenue
Fort Myers, Florida 33901
Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Carolyn S. Raepple, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526
Tallahassee, Florida 32314-6526
Robert M. Fournier, Esquire Fournier & Connolly, P.A.
One South School Avenue, Suite 700 Sarasota, Florida 34237-6014
Laura Kammerer
Bureau of Historic Preservation
R. A. Gray Building
500 South Bronough Tallahassee, Florida 32399
Barton Bibler Department of Health
Environmental Engineering 4042 Bald Cypress Way
Tallahassee, Florida 32399-1742
Martha A. Moore, Esquire
Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34604-6899
Toni Sturtevant, Esquire
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32333-3000
Glenn Compton, Chairman ManaSoto-88, Inc.
Post Office Box 1728 Nokomis, Florida 34274
Jon C. Moyle, Jr., Esquire Moyle, Flanigan, Katz, Kollins,
Raymond & Sheehan, P.A.
118 North Gadsden Street Tallahassee, Florida 32301
Donald D. Conn, Esquire
Tampa Bay Regional Planning Council 4000 Gateway Centre Boulevard
Suite 100
Pinellas Park, Florida 33782
Barbara G. Hines, Esquire
117 81st Street
Holmes Beach, Florida 34217
Maureen McCarthy Daughton, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32301
Leon M. Biegalski, Esquire Department of Transportation
605 Suwannee Street, Mail Stop 58
Tallahassee, Florida 32399-0450
Sarah A. Schenk, Esquire
Manatee County Attorney's Office Post Office Box 1000
Bradenton, Florida 34206-1000
Edgar Lopez, Esquire Richard N. Milian, P.A.
390 North Orange Avenue Suite 1100
Orlando, Florida 32801
W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190
Tallahassee, Florida 32302-0190
David M. Pearce, Esquire
Sarasota County Attorney's Office 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236
H. Ray Allen, II, Esquire Carlton Fields, P.A.
4221 West Boy Scout Boulevard, Suite 1000 Tampa, Florida 33607
V. Nicholas Dancaescu, Esquire GrayRobinson, P.A.
301 East Pine Street, Suite 1400 Orlando, Florida 32801
Roy W. Cohn, Esquire Roy W. Cohn, PLC 2406 Watrous Avenue
Tampa, Florida 33629
Paul F. Grondahl, Esquire Mackey Law Group, P.A.
1402 Third Avenue West Bradenton, Florida 34205
Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A.
1001 Third Avenue West, Suite 670
Bradenton, Florida 34205-7848
Robert Scheffel Wright, Esquire Young van Assenderp, P.A.
225 South Adams Street, Suite 200 Tallahassee, Florida 32301
John Falkner
35100 State Road 64 East Myakka City, Florida 34251
Forrest Watson
Department of Agriculture & Consumer Services
Division of Forestry 3125 Conner Boulevard
Tallahassee, Florida 32399-1650
Brian Brattebo, Esquire Florida Power & Light Company Post Office Box 14000
Juno Beach, Florida 33408
Keith Colabella
Bridle Creek Home Owners Association 19307 64th Avenue East
Bradenton, Florida 34211-7568
Alexis M. Yarbrough, General Counsel Department of Transportation
Haydon Burns Building
605 Suwannee Street, Mail Stop 58
Tallahassee, Florida 32399-0450
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 11, 2008 | Recommended Order | It is recommended that a corridor be certified which combines segments of two of the proposed corridors. |
