STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: TAMPA ELECTRIC ) COMPANY and PROGRESS ENERGY )

FLORIDA'S LAKE AGNES-GIFFORD ) Case No. 07-5691TL TRANSMISSION LINE SITING )

APPLICATION NO. TA07-16 )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 19 and 20, 2008, in Kissimmee, Florida, before the Division of Administrative Hearings, by its assigned Administrative Law Judge, Donald R. Alexander.

APPEARANCES

For Tampa Electric Lawrence N. Curtin, Esquire Company: Holland & Knight, LLP

Post Office Box 810

Tallahassee, Florida 32302-0810

For Progress Carolyn S. Raepple, Esquire Energy Florida: Virginia C. Dailey, Esquire

Hopping Green & Sams, P.A. Post Office Box 6526

Tallahassee, Florida 32314-6526

For Department Toni L. Sturtevant, Esquire

of Environmental Department of Environmental Protection Protection: Mail Station 35

3000 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Orange County: Allen G. Erickson, Esquire

Assistant County Attorney Post Office Box 1393 Orlando, Florida 32802-1393

For Orlando Tasha O. Buford, Esquire

Utilities Young Van Asssenderp, P.A.

Commission: Post Office Box 1833 Tallahassee, Florida 32302-1833

For Intervenor: Gary von Behren, President

Oak Island Cove Community Owners Association

2872 Blooming Alamanda Loop Kissimmee, Florida 34747-2252

STATEMENT OF THE ISSUES

The issue for determination is whether either of the proposed transmission line corridors for the proposed Lake Agnes-Gifford 230 kV transmission line comply with the criteria in Section 403.529(4), Florida Statutes, and if so, which of those corridors has the least adverse impacts with respect to the criteria in Section 403.529(4), Florida Statutes, including cost. If one of the corridors proper for certification is determined to have the least adverse impacts, the issue is whether certification of that corridor should be approved in whole, with modifications or conditions, or denied. See

§ 403.529(4) and (5), Fla. Stat. If the two corridors are found to be substantially equal in adverse impacts regarding the criteria in Section 403.529(4), Florida Statutes, including costs, the Siting Board shall certify the Joint Applicants' Preferred Corridor. See § 403.529(5)(c), Fla. Stat.

PRELIMINARY STATEMENT

Pursuant to Section 403.537, Florida Statutes, on August 1, 2007, Tampa Electric Company (TECO) and Florida Power Corporation d/b/a Progress Energy Florida, Inc. (PEF) submitted a Petition to Determine Need for the Lake Agnes-Gifford 230 kV transmission line project with the Florida Public Service Commission (PSC). On September 26, 2007, the PSC issued Order No. PSC-07-0784-FOF-EI determining the need for the transmission line.

On December 12, 2007, TECO and PEF filed their Application for Corridor Certification (Application) with the Department of Environmental Protection (Department) and paid the appropriate application fee. The Application was filed under the Transmission Line Siting Act (TLSA), codified in Sections 403.52 through 403.5365, Florida Statutes, for a new 230 kV overhead transmission line and related facilities connecting the existing Lake Agnes substation in Polk County to the planned Gifford substation in southwestern Orange County (the Project). The Project will run through parts of Polk, Osceola, and Orange Counties and extend around twenty-seven miles. The Department determined that the application was complete on January 18, 2008.

The Application was forwarded to the Division of Administrative Hearings on December 17, 2007, with a request

that an administrative law judge conduct a formal hearing. By Notice of Hearing dated December 27, 2007, the certification hearing was scheduled to begin on May 5, 2008. On January 2, 2008, the case was transferred from Administrative Law Judge T. Kent Wetherell, III, to the undersigned.

On April 4, 2008, Oak Island Community Cove Owners Association (OIC), an association representing ninety-one homeowners in western Osceola County, filed its Petition to Intervene, together with a notice formally proposing an alternate corridor (the OIC Alternate Corridor) in the area of the intersection of Funie Steed Road/Oak Island Road and State Road 429/Western Beltway in Osceola County. Intervention was authorized by Order dated April 15, 2008. On the same date, a Petition to Intervene was filed by Blackwater Associates, Ltd., which was granted by Order dated April 21, 2008. On May 9, 2008, Mountain Funding, LLC, filed a Petition for Leave to Intervene, which was granted by Order dated May 9, 2008.

On April 9, 2008, the Applicants and Department filed notices of acceptance of the OIC Alternative Corridor for consideration in this proceeding. On May 1, 2008, OIC filed with the Department additional information in support of its proposal. On May 27, 2008, the Department filed a determination that the OIC Alternate Corridor filing was complete. At the request of the parties, the final hearing was rescheduled to

August 18 through 22 and September 19, 22, and 23, 2008, in Kissimmee, Florida. Only two days, however, were required to complete the hearing. All notices required by law were timely published in accordance with Section 403.527, Florida Statutes. The final hearing was conducted for the purpose of receiving oral, written, and documentary evidence concerning whether the Project should be approved in whole, or with such modifications and conditions as the Siting Board deems appropriate, or denied under the TLSA.

At the certification hearing, the Applicants presented the testimony of David M. Lukcic, TECO's Manager of Capital Projects and Environmental Health and Safety; Chip S. Whitworth, Manager of TECO's Transmission Engineering Department and accepted as an expert; Leamon J. Davis, PEF's Senior Engineer in the Engineering Department and accepted as an expert; Randy Grass, Transmission Line Business Unit Director for Power Engineers, Inc., and accepted as an expert; Karl A. Bullock, Senior Ecologist for Golder Associates, Inc., and accepted as an expert; and Richard A. Zwolak, Director of Environmental Planning and Power Market Sector Leader for Golder Associates, Inc., and accepted as an expert. Also, they offered Applicants' Exhibits 1 through 28, which were received in evidence. The Department presented the testimony of Ann S. Seiler, Siting Coordination Case Manager. Also, it offered Department Exhibits

1 through 7, which were received in evidence. Intervenor OIC was represented by Gary von Behren, its president, who testified on its behalf, and presented the testimony of Greg Nieboer, a Department Environmental Specialist II, and Thomas Howard, a project manager with Pegasus Company, which is under contract to perform services on the Project. Also, it offered OIC Exhibits

1. through 4 and 5A through 5F, which were received in evidence.

   
   

   Orange County and Orlando Utilities Commission participated in the hearing but did not submit any evidence. Intervenors Blackwater Associates, Ltd, and Mountain Funding, LLC, did not attend or otherwise participate in the hearing.

   A public hearing was held at 6:00 p.m. on August 20, 2008, for the purpose of allowing members of the public an opportunity to present evidence and testimony. Six members of the public testified: Karen Gilson, Sharon Cullingford, George Clark, John Bedford, Michael LaRaussa, and Paul Torola. Also, Mr. von Behren offered comments during that segment of the hearing.

   Finally, a representative of the South Florida Water Management District (SFWMD), Edward Yaun, Division Director of its Orlando Service Center, presented testimony.

   The Transcript (four volumes) of the final hearing was filed on September 11, 2008. Applicants and the Department (jointly) and OIC filed Proposed Recommended Orders on

   October 1, 2008, which have been considered in the preparation

   of this Recommended Order. On October 3, 2008, OIC filed a paper styled "Demand for Revision to Applicants/DEP Draft of PRO" (Demand). A Motion to Strike Untimely Filing of Oak Island Cove Community Owners Association was filed by the Applicants on October 10, 2008. Finally, an Objection to Applicants' Motion to Strike Untimely Filing was filed by OIC the same date.

   Because the Demand essentially constitutes a reply to the Applicants and Department's Proposed Recommended Order and is not contemplated by the Uniform Rules of Procedure nor authorized by the undersigned, the Motion to Strike is granted.

   FINDINGS OF FACT

   
   

   Based upon all of the evidence the following findings of fact are determined:

   1. Parties

      
      

      1. The TLSA establishes TECO, Progress Energy, and the Department as parties to this proceeding, and the following became parties upon their timely filing of a notice of intent to be a party, which each has done: Florida Department of Transportation (DOT), Department of Community Affairs, and the Southwest Florida Water Management District (SWFWMD). See

         § 403.527(2), Fla. Stat. The following agencies did not participate in the proceeding and did not file a notice of intent before the thirtieth day prior to the certification hearing and each one is deemed to have waived its right to be a

         party: the PSC; the Florida Fish and Wildlife Conservation Commission; the Department of Agriculture and Consumer Services, Division of Forestry; Osceola County; Polk County; Reedy Creek Improvement District; Department of Health; Department of State, Bureau of Historic Preservation; East Central Florida Regional Planning Council; and Central Florida Regional Planning Council. See § 403.527(3), Fla. Stat. Orange County, Orlando Utilities Commission (OUC), and the SFWMD (during the public comment portion of the hearing only) appeared at the hearing.

      2. Pursuant to Section 403.527(2)(c)3., Florida Statutes, any person whose substantial interests are affected and being determined by the proceeding shall be parties to the proceeding upon the filing of a notice of intent to be a party. By stipulation of the parties, having filed a notice of intent to be a party or a petition to intervene, OIC, OUC, Blackwater Associates, Ltd., and Mountain Funding, LLC, are parties to the proceeding without the need to introduce evidence as to substantial interests affected and being determined by the proceeding.

   2. The Corridors Proper for Certification

      
      

      1. The Applicants' Preferred Corridor exits the existing Lake Agnes substation in northeastern Polk County and extends east-northeast approximately 18.9 miles within, adjacent to, or in proximity to the OUC McIntosh-Taft transmission line right-

         of-way (ROW), which generally runs parallel to Interstate 4 (I-4), across Polk and Osceola Counties. It then turns north and crosses Loughman Road (Polk County Road 54, now known as Ronald Reagan Boulevard), Old Lake Wilson Road, and I-4, and continues north along the Daniel Webster Western Beltway, also

         known as State Road 429 (SR 429), co-locating in the SR 429 ROW, for approximately 8.6 miles. The Preferred Corridor then turns west and exits the SR 429 ROW, just north of Western Way and enters into PEF's existing easement, crossing Hartzog Road into the planned Gifford substation in southwestern Orange County.

      2. The OIC Alternate Corridor is designed to avoid the western edge of the OIC development in Osceola County and commences at the Applicants' Preferred Corridor 2,000 feet south of Funie Steed Road/Oak Island Road on the west side of SR 429, where it turns northwest and proceeds approximately 2,000 feet, and then turns northeast and proceeds approximately 2,000 feet, in an approximate horseshoe shape, to rejoin the Applicants' Preferred Corridor along SR 429.

      3. A series of aerial photographs showing both proposed corridors is found at Applicants' Exhibit 21; a map showing both proposed corridors is also found at Department Exhibit 3, page 2.

   3. The Application

   
   

   1. Project Description

      
      

      1. An electrical transmission line is designed to transport large amounts of electrical power from a generating facility or substation to one or more substations. At the substation, the electricity voltage can be either increased or reduced for further transport or for distribution directly to end users.

      2. The Applicants are seeking certification of their Preferred Corridor between the existing Lake Agnes substation and the planned Gifford substation, within which the Applicants will ultimately construct the transmission line on a narrow ROW. Once all property interests in the ROW are acquired, the boundaries of the certified corridor will shrink to the typical width of the 25 to 100-foot wide ROW. In some cases, the ROW will be co-located with an existing transmission ROW that is 145 feet wide.

      3. The Project is a joint venture between the Applicants.

         
         

         Of the approximately 27.5 miles of the proposed Lake Agnes- Gifford Line, approximately 10.5 miles are in TECO's service territory and approximately 17 miles are in PEF's service territory.

      4. The objectives for the Project are to provide a 230 kV electrical path that connects the existing Lake Agnes substation

         to the planned Gifford substation, providing a reliable path for the transmission line and reducing the impacts to the community and the environment while maintaining the integrity of Florida's transmission grid.

   2. Need for the Line

      
      

      1. The PSC determined that a new 230 kV transmission line between the existing Lake Agnes substation and the planned Gifford substation is needed, taking into account the need for electric system reliability and integrity and the need to provide abundant, low cost electrical energy to assure the economic well-being of the citizens of the State.

      2. The objectives of the Project are to serve the increasing electrical load in the region, to maintain reliability of electrical service within the region, and to minimize future overhead exposure outages within the regional transmission system.

      3. The PSC found that the existing Lake Agnes substation and the planned Gifford substation constitute the starting and ending points for the proposed line. The PSC noted that the additional transmission capacity is needed to be in service by June 2011. The PSC also recognized that the Siting Board will make the final determination concerning the route selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes.

   3. Transmission Line Design

      
      

      1. The typical design for the transmission line will be a single-shaft tubular steel or spun concrete structure, with the capability of accommodating an additional 230 kV circuit. The poles are proposed to range in height from 85 feet above grade to 175 feet above grade, with the conductors framed in a vertical configuration. Three conductor phases will be used, and each of the three conductors is anticipated to be a bundled 954 Aluminum Conductor Steel Support/Trapezoidal Wire. The conductor is 1.08 inches in diameter with a weight of approximately 1.23 pounds per foot. There will also be a smaller overhead ground wire to provide lightning protection for the transmission circuit. The maximum electrical current rating is 3,000 amperes.

      2. The open span length between structures will typically vary between 500 and 1,000 feet, depending on site-specific conditions. Both pole height and span length may vary to accommodate various site-specific conditions that may be encountered, to take advantage of the terrain, to potentially address community concerns, and to avoid environmentally sensitive areas.

      3. Existing roadways, access roads, and structure pads will be used for construction and maintenance access to the transmission line wherever practicable. Access roads and

         structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Where constructed, the typical road top width will be 16 feet, with a 2-to-1 side slope, and a typical elevation of

2. feet above the seasonal high water line. Structure pads will have variable sizes but are typically 75 feet by 150 feet. The structure pads are designed to provide a dry, stable surface for staging material and for equipment setup. Culverts may be installed beneath access roads and structure pads with the specific design reviewed by the appropriate regulatory agencies. The design will be similar to previously approved designs.

1. The proposed design of the transmission line complies with good engineering practices. It will be designed in compliance with all applicable design codes and standards, including the North American Electrical Reliability Corporation's standards, the National Electrical Safety Code, the noise ordinances of Polk, Orange, and Osceola Counties, the Department's regulations on electric and magnetic fields, the Florida Department of Transportation's Utility Accommodation Manual, the standards of the American Society of Civil Engineers, the Institute of Electrical and Electronics Engineers, the American Society of Testing and Materials, the American Concrete Institute, and the American National Standards Institute, the requirements of applicable regulatory agencies,

   as well as the Applicants' own numerous transmission design standards. There are no applicable designs or standards with which the transmission line will not comply.

   1. Transmission Line Construction

      
      

2. The initial phase of construction is to survey and clear the ROW. Because much of the length of the corridor is co-located, that is, grouped or placed side by side, with

   existing roads and utility facilities, the need for clearing has been minimized. Where existing ROW widths are insufficient for placement of the transmission Line or where the transmission line will go cross-country, additional clearing will be necessary. Upland areas will be cleared to ground level. In forested wetlands, the Applicants have committed to use only restrictive clearing methods. Restrictive clearing will be used in wetlands to clear vegetation from the transmission line centerline to 50 feet on each side of the outer conductors and in work areas approximately 64 feet by 150 feet around structure sites. In wetland areas, low-growing herbaceous vegetation can remain within the ROW; stumps in the area beyond 20 feet on either side of the outer conductors will be left in place to preserve the root mat. During clearing, best management practices will be utilized to control erosion.

3. After the ROW is cleared, any necessary access roads and structure pads will be constructed. The Applicants have

   committed to use existing access roads and public roads for access to the transmission line to the extent practicable. Where existing access is not available, the Applicants have committed to construct access roads and structure pads in a manner which reduces or eliminates adverse impacts to on-site and adjacent wetlands to the extent practicable.

4. The next phases of construction involve the physical transmission line construction, including material hauling and spotting, pole setting and framing, and conductor stringing activities. The newly-constructed structure pads are used to provide a stable and dry platform for the material staging and equipment. The foundations are constructed. The pole materials and other materials will be hauled to each specific structure site. The pole sections will then be jacked together on the ground. The insulators and hardware will then be framed up on the ground. Next, the top pole section will be lifted by crane and placed on the foundation base that was previously set.

   Poles will typically be installed 30 to 50 feet below ground.

   
   

5. The conductor stringing activities occur next. Reels of wire and wire tensioning equipment will be brought to the job site and set up at dead-end locations. The construction crew will install stringing blocks or pulleys on each structure where the conductor will be pulled through. Once the conductors are pulled in, the conductor will be secured at the dead-end

   locations, and the wires will be sagged and tensioned appropriately to maintain vertical clearances. Finally, the conductor is secured to the insulator attachment and the pulleys and blocks are removed from each structure.

6. The final stage of construction is the cleanup stage.

   
   

   This involves a final inspection of the area to remove the silt fences and hay bales, to clean up excess spoils from the foundation excavations, to repair or replace fencing, and to replace and secure gates.

7. Throughout construction, in areas where soil is disturbed, sedimentation management techniques, such as the use of silt screens and hay bales, or other best management practices, will be employed as necessary to minimize potential impacts from erosion and sedimentation.

8. While each phase of construction will typically take up to two weeks at each structure location, the construction crew will normally be active for two to four days at a typical structure location. Construction for the entire project is expected to last approximately eighteen months.

   1. Methodology for Choosing Applicants' Preferred Corridor

      
      

9. The Applicants established a multidisciplinary team to identify a corridor for the transmission line. The role of this team was to select a certifiable corridor based on an evaluation of environmental, land use, socioeconomic, engineering, and cost

   considerations. The multidisciplinary team was composed of experts in land use, engineering, and environmental disciplines and included representatives of the two utilities, outside legal counsel, and various consultants.

10. Corridor selection methodologies were designed to be integrative of multidisciplinary siting criteria, regional and objective in decision-making, sensitive to social and environmental conditions, responsive to regulatory requirements, reflective of community concerns and issues, and capable of accurate documentation and verification.

11. The team engaged in four major steps: to establish and define the project study area; to conduct regional screening and mapping; to select and evaluate candidate corridors using both quantitative and qualitative analysis; and finally to select the preferred corridor and identify the boundaries of that corridor. The team's work included a number of field studies, data collection, internal meetings, and meetings with the public.

12. In defining the project study area, the multidisciplinary team identified the starting and ending points for the proposed transmission line, the locations of existing and planned substations in the area, the service boundaries of the utilities, and major roads in the area.

13. In regional screening, the multidisciplinary team gathered data from a variety of sources to identify the different types of opportunities and potential constraints for siting a transmission line in the project study area. The multidisciplinary team developed a regional screening map, received in evidence as Applicants' Exhibit 24, which was prepared by the team using generally publicly available information including Geographic Information System (GIS) mapping. The map data were collected from various state agencies and local governments; information was gathered from the Florida Geographic Data Library (which distributes GIS data), the Florida Natural Areas Inventory, and most of the agencies involved in this proceeding. Various environmental and land use data were mapped as were existing infrastructure, archaeological/historical sites, and information gathered on roads, railroads, rivers, waterbodies, and the like. These represented primarily potential siting constraints or siting issues within a particular study area. The regional screening map was then used to identify route segments.

14. Using the regional screening information, the multidisciplinary team selected corridor segments for consideration using quantitative analysis of the data gathered in the earlier stages of the process. The team then evaluated the corridor segments using both quantitative and qualitative

    criteria. The multidisciplinary team gathered data on siting opportunities and constraints within the study area and identified sixty line segments which could be assembled into a total of 1,187 potential candidate corridor combinations. Using a predefined set of quantitative environmental, land use, and engineering criteria, each corridor segment was measured for those resources. Using the weights developed by the team for each criterion, the weights were applied and tabulated for all candidate corridor segments. The candidate corridors were then ranked in order from best to worst based on the quantitative weighted scores.

15. Once the rankings were performed, the five highest- ranked candidate corridors were subjected to further quantitative and qualitative evaluation. These candidate corridors were evaluated using predetermined qualitative criteria which do not lend themselves easily to quantification, such as safety and buildability.

16. At the completion of the evaluation, the multidisciplinary team deliberated and ultimately chose a preferred corridor. Once the preferred corridor was selected, the multidisciplinary team defined the boundaries of the Applicants' Preferred Corridor. The team developed corridor boundaries of varying widths - - narrowing the corridor to avoid

    siting constraints or widening the corridor to take advantage of siting opportunities.

    1. Public Involvement in the Corridor Selection Process

       
       

17. The Applicants engaged in an extensive public outreach program, the purpose of which was to inform and educate the public about the project and to invite public input from the public in the corridor selection process. The public outreach program included a series of direct mailings, surveys, open houses, extensive communications with regulatory agency officials and local elected officials, a project web page by both Applicants and the Department, a toll-free telephone number, and newsprint advertisements.

18. There were two direct mailings as a part of the public outreach program. The first mailing went to approximately 7,900 customers with a map of the project area, a fact sheet, and an invitation to one of three open houses to be held. One open house was conducted in Polk County, while two open houses were conducted in Lake County in close proximity to the project area. Following the completion of the open house process, a second mailing was sent to approximately 6,000 customers identifying the preferred corridor chosen during the evaluation process.

    The names of the mailing recipients were obtained by identifying the properties located within certain distances in both directions from the centerline of the candidate corridors. The

    Property Appraisers' Offices of Polk, Osceola, Orange, and Lake Counties were a source for this information. The mailings were also sent to the homeowners' associations along the candidate corridors.

19. The Applicants plan additional mailings if a corridor for the transmission line is certified. Additional informational open houses will also be held, and the transmission structures and potential locations will be identified at that time so the public can be informed.

20. As part of the public outreach, the project also ran a series of five advertisements in local newspapers. The first series of advertisements notified the public of the three open houses: a newspaper advertisement was run on August 9, 2007, in The Lakeland Ledger, The Winter Haven News Chief, and The Orlando Sentinel for the first open house, and for the second and third open houses, a newspaper advertisement was run in The Lakeland Ledger, The Hometown Sun, The Winter Haven News Chief, The Report, West Orange Times, South Lake Press, Osceola News- Gazette, and The Orlando Sentinel.

21. The second advertisements notified the public of the filing of the Application in December 2007 in The Tampa Tribune, The Lakeland Ledger, The Winter Haven News Chief, The Osceola- News Gazette, and The Orlando Sentinel. In March 2008, a third series of advertisements was run in The Orlando Sentinel, The

    Lakeland Ledger, and The Osceola News-Gazette to notify the public of the certification hearing. In June 2008, a fourth series of advertisements was run notifying the public of the rescheduling of the certification hearing; this advertisement was published by OIC in the Osceola County section of The Orlando Sentinel and this advertisement was published by the Applicants in The Lakeland Ledger and the Orange County section of The Orlando Sentinel. Finally, in August 2008, a notice regarding the second week of hearing was published in The Osceola News-Gazette, The Lakeland Ledger, and The Orlando Sentinel.

22. Copies of the Application were maintained for public inspection during the certification process at the TECO offices in Tampa and Winter Haven and at the PEF offices in St. Petersburg, Lake Wales, and Lake Buena Vista. In addition, a copy of the Application was provided to the Hart Memorial Central Library and Ray Shanks Law Library in Kissimmee, the Orlando Public Library in Orlando, the Bartow Public Library in Bartow, and the Auburndale Public Library in Auburndale.

23. The public outreach program was integrated into the corridor selection process. The public's input included information about anticipated road expansions and modifications as well as proposed residential developments in the project area.

24. A few members of the public complained at the public hearing that they were unaware that a new transmission line corridor was being proposed until just before the hearing. However, the evidence shows that long before the certification hearing, information concerning this process was widely disseminated through advertisements, open houses, mass mailings, surveys, and meeting with regulatory agencies and local elected officials. See Findings of Fact 33 and 35-37, supra.

    1. Detailed Description of the Applicants' Preferred Corridor

    
    

25. The Applicants' Preferred Corridor provides significant opportunities for co-location with other linear facilities such as roads, a natural gas pipeline, and other transmission lines. Co-location is an important benefit from the perspectives of engineering, ecology, and land use because it results in reduced impacts from the new transmission line, reduced ROW needs (or land acquisition needs) for the new line, reduced need for new clearing of land, reduced impacts to wetlands by co-locating with previously-disturbed areas, and reduced incremental impacts by co-locating with an existing linear facility.

26. The Preferred Corridor exits the existing Lake Agnes substation and extends east-northeast approximately 18.9 miles within, adjacent to, or in proximity to the OUC McIntosh-Taft

    transmission line ROW, which generally runs parallel to I-4, across Polk and Osceola Counties. The Applicants' Preferred Corridor crosses Loughman Road (now known as Ronald Reagan Boulevard) and Old Lake Wilson Road. In this area, the land use includes water utility infrastructure in addition to I-4 and the OUC transmission line. Near the Lake Agnes substation, the land uses include some individual residences, as well as undeveloped land now used as pasture, citrus groves, and the Hilochee Wildlife Management Area. The land uses along I-4 and the OUC transmission line include residential development, undeveloped land north of Ronald Reagan Boulevard and south of Champions Gate and U.S. Highway 27, and the Hilochee Wildlife Management Area. In the area of U.S. Highway 27, there is considerable residential development and mixed-use development to the east and west of the Preferred Corridor. The ecological communities in this area include the Green Swamp Wildlife Management Area (also known as Green Swamp East Tract) north of I-4 and the Hilochee Wildlife Management Area. The ecological communities within the Preferred Corridor include residential areas, improved pastures, forested wetlands, pine flatwoods, and freshwater marsh.

27. At the I-4 and SR 429 interchange, the Preferred Corridor turns and continues north along the Daniel Webster Western Beltway (SR 429), co-locating in the SR 429 ROW for

    approximately 8.6 miles. The land uses beginning at the I-4 and SR 429 interchange and northward to U.S. Highway 192 include residential communities on both the east and west sides of the Preferred Corridor, a large regional wastewater treatment facility on the west side of the Preferred Corridor, and undeveloped land, as well as resort, residential, and commercial development. Between U.S. Highway 192 and the planned Gifford substation, the land uses include a number of mixed-use and residential developments and golf course communities on the east and west side of the Preferred Corridor, as well as undeveloped land that is used for agricultural purposes and as part of wetland systems. The ecological communities in this area include the large Davenport Creek Swamp to the west of SR 429 and Reedy Creek to the east of SR 429; ecological communities within the Preferred Corridor include citrus, improved pasture, pine and pine oak forest, freshwater wetlands, and forested wetlands.

28. The Applicants have agreed to adjust the eastern corridor boundary in the area south of Funie Steed Road/Oak Island Road and north of the southern boundary of the OIC residential development to be 55 feet east of the edge of the

    SR 429 ROW, rather than the originally-proposed 100 feet east of the edge of the SR 429 ROW. This adjustment was made at the hearing in response to concerns raised by OIC. By making this

    adjustment, the impact on the homes in the OIC community will be substantially diminished.

29. The Applicants' Preferred Corridor then turns west and exits the SR 429 ROW just north of Western Way and enters into PEF's existing easement, crossing Hartzog Road into the planned Gifford substation. The land use in this area of the planned Gifford substation is predominantly additional utility infrastructure associated with wastewater treatment facilities.

30. The width of the Preferred Corridor varies along its entire length to provide flexibility within the corridor to avoid or minimize impacts to such areas as large wetland areas, to provide flexibility at large road intersections, and to take advantage of existing land patterns, property boundaries, and linear facilities.

    1. OIC's Application for Alternate Corridor

       
       

       1. Selection of the OIC Alternate Corridor

          
          

31. Mr. von Behren indicated in testimony that he and fellow board members of the OIC Community Owners Association selected the OIC Alternate Corridor. Unlike the Applicants' Preferred Corridor, the OIC Alternate Corridor was selected by OIC without any public outreach to obtain input from the community. OIC did, apparently, pay attention to the property interests of OIC. No OIC property is traversed by, or adjacent to, the OIC Alternate Corridor; however, the OIC Alternate

    Corridor bisects the existing, nearby residential Emerald Island development.

    1. Detailed Description of OIC Alternate Corridor

       
       

32. The OIC Alternate Corridor is located in the Osceola County portion of the Project and commences at the Applicants' Preferred Corridor 2,000 feet south of Funie Steed Road/Oak Island Road on the west side of SR 429, where it turns northwest and proceeds approximately 2,000 feet, and then turns northeast and proceeds approximately 2,000 feet, in an approximate horseshoe shape, to rejoin the Applicants' Preferred Corridor along SR 429.

33. The land uses and ecological communities within the SR 429 portion of the OIC Alternate Corridor were described above in Finding of Fact 42, supra.

34. The land use of the OIC Alternate Corridor where it deviates from the Applicants' Preferred Corridor is undeveloped lands between two components of the Emerald Island residential development. The undeveloped lands include pasture, shrub and brushland, and undisturbed, undeveloped freshwater marsh and forested wetlands. A portion of these wetlands provide water treatment and storage functions for the Lake Tohokepaliga Water Authority and are held within a conservation easement and subject to a water use permit.

    1. Design and Construction of Transmission Line within OIC Alternate Corridor

    
    

35. The design and construction techniques described in Findings of Fact 13 through 23 will be the same if the transmission line is constructed, operated, and maintained in the OIC Alternate Corridor. The parties have stipulated that the transmission line can be constructed, operated, and maintained in the OIC Alternate Corridor in compliance with the regulatory and industry standards listed in Finding of Fact 16.

    1. Agencies' Review of Corridors Proper for Certification and Resulting Determinations

       
       

36. State, regional, and local agencies with regulatory authority over the Project reviewed the Application and submitted to Department reports concerning the impact of the Project on matters within their respective jurisdictions, as required by Section 403.526(2), Florida Statutes. Eleven regulatory agencies reviewed the Application, and nine reviewing agencies submitted reports on the Project, and have proposed Conditions of Certification. None of the agencies involved in the review process recommended that the proposed corridor be denied or modified. On May 30, 2008, the Department issued its Written Analysis on the Project, incorporating the reports of the reviewing agencies and proposing a compiled set of Conditions of Certification. The Department recommended that

    the Applicants' Preferred Corridor be certified subject to appropriate conditions of certification.

37. Three reviewing agencies submitted supplemental reports on the OIC Alternate Corridor on or before June 20, 2008, again proposing Conditions of Certification. On July 7, 2008, the Department issued its Supplemental Written Analysis on the Project, including the OIC Alternate Corridor, incorporating the supplemental reports of the reviewing agencies and proposing a comprehensive set of Conditions of Certification. The Department did not recommend approval of the OIC Alternate Corridor, although it found the alternate corridor to be certifiable. In its Supplemental Written Analysis, the Department stated:

    Given the alternate corridor is likely to have a higher impact on the environment as well as additional cost, the Department does not find the alternate corridor to be superior to the preferred corridor, although either corridor is ultimately certifiable.

    
    

    Department Exhibit 3, page 4.

    
    

    1. Whether and Extent to Which Each Corridor Will Comply with Criteria in Section 403.529(4), Florida Statutes

       
       

       1. Ensure Electric Power System Reliability and Integrity

          
          

38. The PSC decided that there are regional transmission system limitations in the I-4 corridor between Polk County and the greater Orlando area due to projected load growth in the 2008-2011 timeframe. The PSC found that the new 230 kV line is

    needed by June 2011 to preserve electric system reliability and integrity in order to:

    1. provide additional transmission transfer capability along the I-4 corridor to move electricity generated in the Polk County region to load centers in the Greater Orlando area in a reliable manner consistent with the North American Electric Reliability Council (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) potentially 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 further decided that the transmission line is the most cost-effective and efficient means to both increase the capability of the existing 230 kV network and serve the increasing load and customer base in the Central Florida region.

39. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to provide electric power system reliability and integrity. Even so, the evidence shows that the Applicants' Preferred Corridor better provides electric power system reliability and integrity than does the OIC Alternate Corridor because the Applicants' Preferred Corridor will involve a shorter length of line and because the Applicants' Preferred

    Corridor will involve fewer maintenance issues and access issues.

40. The Applicants' Preferred Corridor is shorter by 1,472 feet than the OIC Alternate Corridor. Unnecessary length added to a transmission circuit introduces further exposure to the forces of nature which could impact reliability of a transmission line. The greater the line length, the greater the exposure or risk to reliability.

41. The OIC Alternate Corridor also involves additional maintenance issues and access issues not raised by the Applicants' Preferred Corridor. For example, there is a risk of flooding because some of the areas within the OIC Alternate Corridor are used for overflow for nearby retention ponds. This flooding could cause an access problem if emergency or routine repairs or maintenance were needed.

    1. Meet the Electrical Energy Needs of the State in an Orderly, Economical and Timely Fashion

       
       

42. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to meet the electrical energy needs of the State in an orderly, economical, and timely fashion. Nevertheless, the Applicants' Preferred Corridor better meets the State's electrical energy needs in an orderly, economical, and timely fashion than does the OIC Alternate Corridor because

    the OIC Alternate Corridor adds significant cost to the overall project and long-term costs associated with operation and maintenance. The OIC Alternate Corridor is estimated to cost

    $4.4 million more for construction than the Applicants' Preferred Corridor. The cost differential is caused by the need for more easement area, more access roads, the nature of the soils, the foundation requirements, the heavy angle requirements, and more wetlands mitigation of the OIC Alternate Corridor. For example, because the OIC Alternate Corridor is primarily located in wetlands, the OIC Alternate Corridor will require larger poles and larger pole foundations, which involve higher costs.

43. In addition to the $4.4 million construction cost differential, the OIC Alternate Corridor will also involve additional maintenance costs throughout the life of the transmission line because there will be a higher cost and effort required for vegetation management and access road maintenance in the OIC Alternate Corridor than will be required for the Applicants' Preferred Corridor.

    1. Comply with the Applicable Nonprocedural Requirements of Agencies

       
       

44. Construction, operation, and maintenance of the transmission line within either the Applicants' Preferred

    Corridor or the OIC Alternate Corridor will comply with applicable nonprocedural requirements of agencies.

    1. Electrical and Magnetic Fields

       
       

45. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in compliance with the Department's standards for Electric and Magnetic Fields in Florida Administrative Code Rule Chapter 62-814, which limit the electric and magnetic fields associated with new transmission lines.

46. The Applicants propose to use four different configurations for the transmission line depending upon the location. The options include a 230 kV single circuit on a 100- foot ROW, a 230 kV single circuit on the 185-foot ROW including the existing OUC McIntosh-Taft 230 kV line, a 230 kV single circuit roadside, and a 230 kV single circuit roadside with an additional 35-foot easement including the existing Boggy Marsh- Gifford and Four Corners-Gifford 69 kV lines. For each of these configurations, the Department's rule requires that the electric and magnetic fields (or energy forces) within the ROW and at the edge of the ROW be calculated to ensure compliance. The electric field is a field that is generated by voltage of a conductor, expressed as a kilovolt meter (kV/m). The magnetic

    field is a field produced by the current traveling along the conductor, expressed in milligauss (mG).

47. Those portions of Florida Administrative Code Rule Chapter 62-814 that are applicable to this Project establish maximum values for electric and magnetic fields. Compliance with the electric and magnetic field requirements was calculated for each of the configurations that may be utilized for the Project. The results were then compared to the requirements of Florida Administrative Code Rule 62-814.450(3). The maximum expected values from all configurations for the electric fields and for the magnetic fields are all below the values set forth in the rule.

48. The maximum voltage and current that is anticipated for the line during its life are used in making the calculations. However, it is highly unlikely that this condition would occur. It is anticipated that the maximum condition would occur less than five percent of the time while the transmission line is operating. In order to operate at the maximum condition, the conductor must be operating at its maximum temperature (which requires an extreme weather condition), and there would also need to be some type of system disturbance (such as an outage in the region). Levels for electric fields will be less at the normal operating levels and magnetic fields about fifty percent less.

49. The levels of electric and magnetic fields from the transmission line are similar to the levels that would be expected to result from common household appliances.

    1. Noise

    
    

50. Transmission lines can generate audible noise as a result of build-up of particles on the conductor. During periods of fair weather dust can collect on the conductor and that may cause low levels of audible noise. When rain is experienced, the dust is washed off but replaced with water droplets on the conductor that create a condition that results in slightly higher levels of audible noise. The noise levels experienced during rainfall events are temporary, and the noise is reduced as soon as the water droplets evaporate from the conductor.

51. The expected levels of noise are generally calculated using an industry-standard software program called the Bonneville Power Administration Field Effects Program. The calculations performed for the transmission line show that the maximum audible noise levels at the edge of the ROW would range up to a high of 37.6 dBA. This noise level is similar to the upper noise level in a library, and less than the living room noise in a suburban area. Also, during rainfall events, when the maximum noise levels are expected, the rain will tend to mask the sound from the transmission line.

52. The calculated noise levels for the transmission line indicate that the noise levels that will be produced will not be a significant issue. Further, the calculated noise levels will comply with all applicable audible noise ordinances in Polk, Osceola, and Orange Counties.

    1. Be Consistent with Applicable Local Government Comprehensive Plans, If Any

       
       

53. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to be consistent with applicable provisions of local government comprehensive plans, if any.

54. The Polk County Comprehensive Plan identifies electric transmission and distribution facilities as a permitted use in all land use categories. The Osceola County Comprehensive Plan and the City of Auburndale Comprehensive Plan identify utility and public facilities as allowable uses in all land use categories provided that the TLSA standards and other regulatory standards are met. The Orange County Comprehensive Plan identifies utility and public facilities as allowable uses in all land use categories.

55. The Reedy Creek Improvement District Comprehensive Plan identifies that utility corridors are allowable uses where no other alternatives are feasible. The PSC found that the Applicants considered four alternatives to the Project and none

    were feasible. Further, the Applicants considered a number of alternatives in the corridor selection process and considered the OIC Alternate Corridor and selected the Applicants' Preferred Corridor as the best choice among the various corridors. See Finding of Fact 102, infra.

56. After certification of this project, the transmission line will be located and constructed entirely within established rights-of-way, including easements acquired after corridor certification. Construction of transmission lines on such established ROWs is excepted from the definition of "development" in Section 163.3164(6), Florida Statutes. Accordingly, the provisions of the local comprehensive plans related to "development" that have been adopted by the local governments crossed by the transmission line are not applicable to this project.

57. No variances or exemptions from applicable state or local standards or ordinances are needed for the project.

    1. Effect a Reasonable Balance Between the Need for the Lake Agnes-Gifford Transmission Line as a Means of Providing Abundant Low-Cost Electrical Energy and the Impact Upon the Public and the Environment Resulting from the Location of the Lake Agnes-Gifford Transmission Line and Construction, Operation, and Maintenance of the Transmission Line

    
    

58. The Applicants' Preferred Corridor was chosen using a multidisciplinary team of experts to minimize impacts upon the public and the environment.

    1. Impacts Upon the Public

       
       

59. The land uses found in the area of the Applicants' Preferred Corridor and the OIC Alternate Corridor are compatible with transmission lines; there are many locations throughout Florida where transmission lines similar to the proposed transmission line coexist with these land use patterns.

60. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor are appropriate locations for a transmission line from a land use perspective, but the Applicants' Preferred Corridor is a better location in relation to impacts upon the public.

    aa. Co-location with Existing Linear Facilities

    
    

61. The Applicants' Preferred Corridor is co-located with existing linear facilities for nearly its entire length. In choosing among the candidate corridors considered by the multidisciplinary team, the Applicants' Preferred Corridor was chosen with reference to maximizing co-location with existing linear features, including transmission lines, highways, and natural gas pipelines. Co-location is advantageous because the existing linear facilities often provide existing access, minimizing the need for new access roads, the need for new clearing, and the need for further encumbrance of additional land. By following these existing linear features, the Applicants' Preferred Corridor conforms to existing and future

    development patterns and minimizes intrusion into surrounding areas. Further, there is less of an incremental difference in impacts from adding a linear facility to an area of existing linear facilities than from adding a linear facility to a presently unencumbered area.

62. In contrast, the OIC Alternate Corridor follows an area of undeveloped land and thus does not offer the advantages of co-location.

    bb. Impacts upon Residential Development

    
    

63. In choosing among the candidate corridors, minimizing the number of homes within the corridor was a significant criterion considered by the multidisciplinary team.

64. It is an advantage for the OIC Alternate Corridor over the Applicants' Preferred Corridor that the OIC Alternate Corridor has fewer homes within the corridor than does the Applicants' Preferred Corridor. However, it is a disadvantage for the OIC Alternate Corridor that it bisects two components of the Emerald Island residential development.

65. The impacts of the Applicants' Preferred Corridor on OIC homes is minimal. The "residents" of the OIC development are predominantly short-term renters or vacationers who will be in proximity to the transmission line for only a few weeks' duration. (Many of the homes are owned by citizens of the United Kingdom who rent the properties to vacationers visiting

    the area. There are, however, three permanent year-round residents in the development, including Mr. von Behren.) The Applicants have adjusted the eastern corridor boundary to no more than 55 feet from the edge of the SR 429 ROW in the vicinity of the OIC development. Further, the Applicants have committed that, if the Applicants' Preferred Corridor is certified, there will be no existing homes within the eventual transmission line ROW.

66. PEF's engineering expert testified that the Applicants' preferred location for the transmission line within the Applicants' Preferred Corridor in the vicinity of the OIC development is to be on the west side of SR 429, which would not impact any OIC homes. If that location is not feasible, the Applicants' preferred location for the transmission line within the Applicants' Preferred Corridor in the vicinity of the OIC development is to be on the east side of SR 429, with poles located 15 feet inside the DOT's ROW for SR 429, in which case the only property rights that the Applicants would need outside the DOT ROW would be no more than 30 feet for an overhanging aerial easement and access rights. These commitments by the Applicants mean that there are only three or four properties within OIC where the Applicants might need an aerial and access easement for the transmission line; the pole would be no nearer to those homes than approximately thirty feet. This evidence

    demonstrates that there will be very little impacts on the OIC residential development.

67. Further, OIC raised concerns about existing vegetation with the OIC residential development. Those concerns are misplaced because PEF's engineering expert explained that the Applicants would avoid any vegetation that exists outside the

    SR 429 ROW, and that any vegetation that would be replaced would be within the SR 429 ROW.

    cc. Minimizing the Length of Transmission Lines in the Landscape

    
    

68. The length of a transmission line in the landscape is important because it is a land use consideration to minimize the amount and length of linear facilities in the landscape. The shorter the linear facility, the less potential effects of the linear facility. This is an advantage for the Applicants' Preferred Corridor because it is shorter than the OIC Alternate Corridor.

    dd. Impacts to Conservation Lands

    
    

69. The Applicants' Preferred Corridor has the advantage of avoiding conservation lands while the OIC Alternate Corridor in contrast crosses lands held for conservation purposes. The conservation lands include a parcel held for use by Osceola County as a stormwater retention and conveyance system, a parcel held by Emerald Island Resort as a conservation area, a parcel

    owned by the Lake Tohopekaliga Water Authority held in a conservation easement by SFWMD, and a parcel subject to a water use permit. The conservation easement expressly prohibits the construction of utility infrastructure within its boundaries.

    Although SFWMD's conservation easement could be amended by the underlying property owner to allow for crossing by the OIC Alternate Corridor, SFWMD prefers the Applicants' Preferred Corridor because it better avoids and minimizes impacts to wetlands.

    ee. Impact on Property Values

    
    

70. At the public portion of the certification hearing, several members of the public testified in opposition to the Applicants' Preferred Corridor. A number of those testifying, including Mr. von Behren, expressed concern about the impact of the Project on property values, and the desire to have the Applicants seek another route. Although these concerns are genuine, the impact on property values is not a subject for consideration at this hearing.

    1. Impacts Upon the Environment

       
       

71. The transmission line, whether constructed, operated, and maintained in the Applicants' Preferred Corridor or the OIC Alternate Corridor, will comply with all applicable state, regional, and local nonprocedural regulations, including the wetland regulatory standards applicable to such projects.

72. The Applicants have committed to a variety of Conditions of Certification that require extensive measures to eliminate or minimize the potential environmental impacts. For example, within forested wetlands, the Applicants have committed to using restrictive clearing practices, removing only tall- growing trees and leaving understory (the lower layer of plants growing under a higher layer of plants) and root mats in place within the ROW. The Applicants have also committed to the use of existing access roads through wetland areas to the greatest extent practicable, and the construction of at-grade access roads where conditions allow. In addition, the Applicants have committed to compensatory mitigation to offset the loss of wetland functions, if any.

73. Further, if the transmission line is constructed in either the Applicants' Preferred Corridor or the OIC Alternate Corridor, the transmission line design will allow for variable span length to avoid wetland impacts by spanning those areas upland-to-upland.

74. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor are appropriate locations for a transmission line from an environmental perspective, but the Applicants' Preferred Corridor is a better location in relation to impacts upon the environment.

    aa. Impacts to Vegetative Communities, Including Wetlands

    
    

75. The Applicants' Preferred Corridor will have minimal environmental impact. Construction of the line within the Applicants' Preferred Corridor will cause minimal adverse ecological impacts for several reasons:

    1. regional screening was conducted to minimize inclusion of areas of ecological constraints, such as eagles' nests, undisturbed wetland habitat, protected species habitat, and forested areas;

    2. the width of the corridor provides flexibility when the final ROW is selected to avoid ecological resources within the corridor;

    3. because of the corridor's co-location with existing rights-of-way, there is a prevalence of developed areas within the Applicants' Preferred Corridor;

    4. where the Preferred Corridor traverses areas of natural vegetation, it does so largely in previously-disturbed areas, minimizing the amount of needed clearing and new access roads; and

    5. wetlands will be avoided by spanning them to the extent practicable.

76. With respect to the Green Swamp, an area of 870 square miles, the Applicants' Preferred Corridor minimizes impacts by co-locating with the OUC transmission line ROW. Other candidate

    corridors considered by the multidisciplinary team would have involved clearing of undisturbed forested wetlands, including areas of mature cypress domes.

77. In contrast, the transmission line will have more adverse environmental impacts if constructed, operated, and maintained in the OIC Alternate Corridor than the Applicants' Preferred Corridor because of the prevalence of undisturbed wetland habitat within the OIC Alternate Corridor as compared to the previously-disturbed habitat along SR 429 within the Applicants' Preferred Corridor. Construction of the transmission line within the OIC Alternate Corridor would result in greater forested and herbaceous wetland impacts and require greater alteration to previously-undisturbed areas.

    bb. Protected Species

    
    

78. The Applicants have committed to a number of conditions of certification protecting species whether the Applicants' Preferred Corridor or the OIC Alternate Corridor is certified. For example, the Applicants have agreed to conduct pre-clearing surveys of the final ROW for protected species, and to consult with the Florida Fish and Wildlife Conservation Commission, the United States Fish and Wildlife Service, and the Department if any species are located within the ROW to address avoidance and mitigation measures.

79. Impacts to listed plant and animal species from construction of the transmission line within the Applicants' Preferred Corridor are expected to be minimal because the corridor includes primarily previously-impacted areas which have limited suitability as protected species habitat and because of the Applicants' commitment to conduct pre-clearing species surveys. The Applicants' Preferred Corridor avoids or minimizes intrusion into the undisturbed wildlife habitats due to its co- location with existing linear facilities for almost its entire length.

80. The current condition and relative value of function of the habitat within the Applicants' Preferred Corridor is generally minimal from a wildlife ecology and protected species perspective because it has been previously-disturbed through construction of major roadways. In the areas of undisturbed lands, the Applicants' Preferred Corridor is co-located with existing utility rights-of-way including a transmission line and natural gas pipeline that already disturb the area.

81. The gopher tortoise is a protected species that has been documented to be located within the Applicants' Preferred Corridor and the OIC Alternate Corridor. Gopher tortoise habitat typically is not compromised by construction of transmission lines due to the relatively small ground footprint of disturbance and the maintenance of low vegetation within the

    ROW, which is suitable habitat for gopher tortoises. Thus, the transmission line is not expected to have significant impact on gopher tortoises.

82. The impacts to protected species will be greater in the OIC Alternate Corridor than the Applicants' Preferred Corridor. The Applicants' Preferred Corridor includes two known locations of protected species; transmission lines are compatible with the habitat for these species. In addition, the habitat within the Preferred Corridor is not suitable for most protected species because it is previously disturbed where vegetation communities have already been cleared and converted to roadside ROW. In contrast, the OIC Alternate Corridor consists predominantly of undisturbed wetlands, which is habitat that is highly suitable for a number of protected species. Although there are no Florida Natural Areas Inventory-documented locations of protected species within the OIC Alternate Corridor, there are four field-documented protected species within the OIC Alternate Corridor. Further, the habitat is highly suitable for protected species because it is largely undisturbed, much is held in conservation easement, and it includes forested and herbaceous wetlands.

    cc. Floodplains

    
    

83. The 100-year floodplain is an area, regulated by the Department and the water management districts, that demarks the

    area that would be inundated in severe flood events. The Applicants are required to provide compensating floodplain storage to offset the loss, if any, of floodplain storage caused by fill needed for the transmission line; this requirement is designed to avoid any flooding of adjacent properties that might be caused by the Project. Because of this requirement, one of the goals in corridor selection was to minimize impacts to the 100-year floodplain. Only a small portion of the Applicants' Preferred Corridor is located within the 100-year floodplain, while a large portion of the OIC Alternate Corridor is located within the 100-year floodplain. Further, the portions of the Applicants' Preferred Corridor that are located within the 100- year floodplain are located in areas that have been previously disturbed by the construction of SR 429 and would likely not involve significant further impacts to the 100-year floodplain.

    dd. Archaeological and Historical Resources

    
    

84. The Applicants utilized information from the Department of State, Division of Historical Resources (DHR), to identify potential archeological and historical resources within the Applicants' Preferred Corridor. A number of locations were identified as a result of the information and the Applicants have committed, through the Conditions of Certification, to perform a cultural resources survey when the actual ROW is located. If any artifacts are discovered, the Applicants will

    notify the Department and DHR and consult with DHR to determine appropriate action. There is no difference between the impacts to cultural resources of the Applicants' Preferred Corridor and the OIC Alternate Corridor.

    1. The Need for the Lake Agnes-Gifford Line as a Means of Providing Abundant Low-Cost Electrical Energy

       
       

85. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to meet the need for the transmission line as a means of providing reliable, economically efficient electric energy as determined by the PSC.

86. The PSC determined that the proposed line is needed taking into account the factors set forth in Section 403.537, Florida Statutes. The PSC found that the Applicants evaluated four alternatives to the proposed transmission line. All of the alternatives were transmission modifications to the proposed ROW that used a portion of, or the entire existing, common ROW. The PSC accepted the Applicants' rejection of the alternatives primarily because of economic and reliability concerns. The PSC found that the proposed line will assure the economic well-being of Florida's citizens by serving projected new electric load in the region and improving the region's electric reliability by minimizing the region's exposure to single contingency events.

    1. Reasonable Balance Between the Need for the Lake Agnes- Gifford Line and the Impacts of the Line upon the Public and the Environment

    
    

87. Expert witnesses in the fields of land use, engineering, and ecology with specializations in transmission line siting, permitting, design, and reliability have compared the corridors proper for certification and all concluded that the Applicants' Preferred Corridor effects a better balance between the need for the transmission line and the impacts of the line on the public and the environment from the perspective of their expertise than does the OIC Alternate Corridor.

    1. Conditions of Certification

       
       

88. The transmission line can and will be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in compliance with the Conditions of Certification, which are found in the Department's Exhibit 3.

89. The Conditions of Certification establish a post- certification review process through which the final right-of- way, access road, and structure locations will be reviewed by agencies with regulatory authority over the project.

90. The Applicants have agreed to the Conditions of Certification to minimize land use and environmental impacts of the construction, operation, and maintenance of the transmission line. The parties agree that the Conditions of Certification

    are consistent with applicable non-procedural requirements of the state, regional, and local agencies with regulatory jurisdiction over the transmission line, and that such conditions should be imposed on the certification, if granted, for either of the corridors under consideration in this proceeding.

    CONCLUSIONS OF LAW

    
    

91. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 403.527(1), Fla. Stat.

92. This certification proceeding was held pursuant to the Transmission Line Siting Act, Sections 403.52 through 403.5365, Florida Statutes, and Florida Administrative Code Rule Chapter 62-17, Part II. The intent of this certification process is:

    to fully balance the need for the transmission lines with the broad interests of the public in order to effect a reasonable balance between the need for the facility as a means of providing abundant low-cost electrical energy and the impact on the public and the environment resulting from the location of the transmission line corridor and the construction and maintenance of the transmission lines.

    
    

    § 403.521, Fla. Stat. To implement this intent, the Legislature has set forth specific requirements for the PSC to determine the need for the proposed transmission line and address other

    matters within its jurisdiction, for other various agencies to prepare reports and studies regarding matters within their jurisdiction, for publication of notice of the application and certification proceeding, for third parties to have an opportunity to offer alternate corridor routes for consideration, and for criteria to be considered in determining whether an application should be approved in whole, approved with modification or conditions, or denied. See §§ 403.526, 403.527, 403.5271, 403.529, and 403.537, Fla. Stat.

93. Except as noted, all parties identified in Finding of Fact 1 have standing in this proceeding.

94. The Applicants have the burden of proving that, under the criteria of Section 403.529(4)(a)-(e), Florida Statutes, their Proposed Corridor for the Lake Agnes-Gifford transmission line should be certified as proposed based upon a preponderance of the evidence presented at the certification hearing. See, e.g., Fla. Dept. of Transp. v. J.W.C Co., Inc.,et al., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

95. The evidence in this proceeding demonstrates compliance with the procedural requirements of the TLSA, including the notice requirements for the certification and public hearings. It is noted that Applicants voluntarily engaged in an extensive public outreach program that included

    additional newspaper notices, extensive mailings, and establishment of project websites.

96. In deciding whether the Application should be approved, approved with conditions, or denied, the Siting Board must determine whether, and the extent to which, the location of the corridor and the construction and maintenance of the transmission line in the corridor will:

    1. Ensure electric power system reliability and integrity;

       
       

    2. Meet the electrical energy needs of the state in an orderly and timely fashion;

       
       

    3. Comply with nonprocedural requirements of agencies;

       
       

    4. Be consistent with applicable local government comprehensive plans; and

       
       

    5. Effect a reasonable balance between the need for the transmission line as a means of providing abundant low-cost electrical energy and the impact upon the public and the environment resulting from the location of the transmission line corridor and the maintenance of the transmission lines.

       
       

       § 403.529(4), Fla. Stat.

       
       

       1. Criteria to Evaluate Applicants' Preferred Corridor versus the OIC Alternate Corridor

       
       

       1. Compliance with Section 403.529(4)(a), Florida Statutes.

          
          

97. The PSC determined the need for a new 230 kV transmission line between the existing Lake Agnes substation and

    the planned Gifford substation in Order No. PSC-07-0784-FOF-EI issued on September 26, 2007.

98. The PSC decided that there are regional transmission system limitations in the I-4 corridor between Polk County and the greater Orlando area due to projected load growth in the 2008-2011 timeframe. The PSC further found that the new 230 kV transmission line is needed by June 2011 to preserve electric system reliability and integrity in order to provide additional transmission capability along the I-4 corridor to move electricity generated in Polk County to the greater Orlando area, to serve the increasing load and customer base in the project area, and to provide another electrical feed via a separate ROW. The PSC decided that the transmission line is the most cost-effective and efficient means to both increase the capability of the existing 230 kV network and serve the increasing load and customer base in the Central Florida region.

99. The PSC's determination of need for the project is binding on all parties to the certification proceeding. See

    § 403.537(1)(d), Fla. Stat. Based upon the PSC Order determining need, a prima facie showing that the transmission line would enhance electric system reliability, integrity, and restoration of service has been made. The PSC found that the Project meets the criteria of Section 403.529(4)(a), Florida Statutes.

100. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to provide electric power system reliability and integrity. Nevertheless, the Applicants' Preferred Corridor better provides electric power system reliability and integrity than does the OIC Alternate Corridor because the Applicants' Preferred Corridor will involve a shorter length of line and because the Applicants' Preferred Corridor will involve fewer maintenance issues and access issues.

101. Because of the reliability concerns associated with the OIC Alternate Corridor, the Applicants' Preferred Corridor better provides electric power system reliability and integrity.

     1. Compliance with Section 403.529(4)(b), Florida Statutes.

        
        

102. The PSC determined that the transmission line is needed to be in-service by June 2011; the evidence demonstrates that, with the projected 18-month construction schedule for the transmission line, it will meet the electrical energy needs of the State in an orderly and timely fashion whether the Applicants' Preferred Corridor or the OIC Alternate Corridor is certified.

103. However, the evidence also demonstrates that the Applicants' Preferred Corridor will meet Florida's energy needs

     in a more economical fashion than the OIC Alternate Corridor because of the significant cost differential in construction and in long-term operation and maintenance of the transmission line.

104. Because of the substantially higher costs associated with the OIC Alternate Corridor, the Applicants' Preferred Corridor better meets Florida's electrical energy needs in an orderly, economical, and timely fashion.

     1. Compliance with Section 403.529(4)(c), Florida Statutes.

        
        

105. The evidence supports a conclusion that the construction, operation, and maintenance of the transmission line in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in conformance with the recommended Conditions of Certification will comply with the applicable nonprocedural requirements of all agencies.

     1. Compliance with Section 403.529(4)(d), Florida Statutes.

        
        

106. The evidence supports a conclusion that there are no inconsistencies between the proposed transmission line and the comprehensive plans adopted by local governments whose jurisdictions are crossed by the proposed transmission line, whether the Applicants' Preferred Corridor or the OIC Alternate Corridor is certified.

     1. Compliance with Section 403.529(4)(e), Florida Statutes.

     
     

107. The overall impacts upon the public and the environment of the Project have been shown to be minimal, particularly when balanced with the significant electrical energy requirements that will be satisfied by construction and operation of the transmission line.

108. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor provide a reasonable balance between the need for the transmission line and its impact upon the public and the environment; however, the evidence demonstrates that the Applicants' Preferred Corridor will have the least adverse impacts upon the public and the environment and provides the best balance between the need for the line and the impacts of the line.

109. The Applicants' Preferred Corridor's impacts upon the public and the environment will be minimized by the co-location with existing linear facilities. Further, the Applicants have committed to limiting the impacts on the homes within the OIC residential development. In contrast, the OIC Alternate Corridor imposes significant additional impacts upon the public and the environment by: bisecting the adjacent Emerald Island residential development; imposing significant additional costs which must be borne by utility ratepayers; intruding upon lands

     held for conservation purposes; imposing additional impacts on undisturbed forested and herbaceous wetlands; imposing additional impacts on the habitat for protected species; and imposing additional impacts on the 100-year floodplain.

110. Based upon a preponderance of the evidence presented at the certification hearing, the Applicants have met their burden of proving that their Preferred Corridor for the transmission line should be certified as proposed, subject to the Conditions of Certification, as set forth in Department Exhibit 3.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Siting Board enter a Final Order approving Tampa Electric Company and Progress Energy Florida's Lake Agnes-Gifford 230 kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Department Exhibit 3.

DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

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 22nd day of October, 2008.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Thomas M. Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Lawrence N. Curtin, Esquire Holland & Knight LLP

Post Office Box 810

Tallahassee, Florida 32302-0810

Carolyn S. Raepple, Esquire Hopping Green & Sams, P.A. Post Office Box 6526

Tallahassee, Florida 32314-6526

Toni L. Sturtevant, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Gary von Behren, President

Oak Island Cove Community Owners Association 2872 Blooming Alamanda Loop

Kissimmee, Florida 34747-2252

Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Allen G. Erickson, Esquire Assistant County Attorney Post Office Box 1393 Orlando, Florida 32802-1393

Tasha A. Buford, Esquire Young Van Assenderp, P.A. Post Office Box 1833

Tallahassee, Florida 32302-1833

Martha A. Moore, Esquire

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34604-6899

Ray Maxwell, District Administrator Reedy Creek Improvement District 1900 Hotel Plaza Boulevard

Lake Buena Vista, Florida 32830-8438

Jo O. Thacker, Esquire Osceola County Attorney

One Courthouse Square, Suite 4200 Kissimmee, Florida 34741-5440

Emily J. Norton, Esquire Florida Fish and Wildlife

Conservation Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600

Mitchell B. Kirschner, Esquire Mitchell B. Kirschner, P.A.

1515 North Federal Highway Suite 314

Boca Raton, Florida 33432-1953

Steven I. Silverman, Esquire

Kluger, Peretz, Kaplan & Berlin, P.L.

201 South Biscayne Boulevard, Suite 1700 Miami, Florida 33131-4332

Ruth A. Holmes, Esquire

South Florida Water Management District 3301 Gun Club Road

West Palm Beach, Florida 33406-3007

Phil Laurien, Executive Director

East Central Florida Regional Planning Council 631 North Wymore Road, Suite 100

Maitland, Florida 32751-4229

Patricia M. Steed, Executive Director Central Florida Regional

Planning Council

555 East Church Street Bartow, Florida 33830-3931

Jennifer S. Brubaker, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850

Shaw P. Stiller, General Counsel Department of Community Affairs 2470 Centerview Drive

Tallahassee, Florida 32399-2100

Laura Kammerer

Bureau of Historic Preservation

500 South Bronough Street Tallahassee, Florida 32399-0250

Michael E. Duclos, Esquire Assistant County Attorney

Post Office Box 9005, Drawer AT 01 Bartow, Florida 33830-9005

Kimberly C. Menchion, Esquire Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 07-005691TL

Orders for Case No: 07-005691TL