The Issue The issues in this preliminary hearing are whether the South Florida Water Management District (WMD) has jurisdiction and whether Petitioners have standing. In part, the issue of WMD's jurisdiction involves sub-issues as to Petitioners' timeliness in requesting an administrative hearing.
Findings Of Fact Issuance of FPL's Permit and Waivers On May 2, 2000, WMD received an application from FPL for ROW Standard Permit to construct a parallel run of transmission lines (Parkland Transmission Line) in Sections 26, 27, 28, 29 and 35, Township 47, Range 41 East, located in Palm Beach and Broward Counties, inside the south ROW of the Hillsboro Canal. The Parkland Transmission Line was planned to carry 230 kilovolts (kV) of electricity to FPL's Parkland substation. FPL applied to place the 91-foot high poles for the transmission lines 14 feet from the top of the canal bank, on the south side of the canal, which is at least 80 feet wide. On May 5, 2000, WMD received from FPL a Petition for Waiver of Rule 40E-6.011(4), (5) and (6), which governs the placement of permanent and semi-permanent encroachments within forty feet of the top of canal bank within Works and Lands of WMD. Although not identified in the style of the Petition for Waiver, FPL also sought a "waiver from the Basis of Review Rule (L)(4)(Transmission Lines, p. 113 of Sept. 1999, Volume V, Criteria Manual for Use of Works of the District.)"3 The Petition for Waiver sought permanent waivers. The District published notice of receipt of the petition for waiver from FPL in the Florida Administrative Weekly (FAW), Volume 26, Number 21, dated May 26, 2000. However, instead of giving notice that FPL was requesting permanent waivers, the notice stated that FPL only sought "temporary relief from the Rule 40E-6.011(4), (5) and (6) . . . and the Basis of Review." In addition, while the notice described Rule 40E-6.011(4), (5) and (6) as requiring a "minimum 40 foot setback requirement from the top of bank," it did not describe the criteria in the Basis of Review, which states in pertinent part: The use of the District's Works or Lands for the construction, operation, and maintenance of transmission lines has the potential to interfere with the District's operation, maintenance and allied purposes. Applicants should acquire their own right of way and should not look to the District to utilize District-controlled Works or Lands, which were acquired for water management and other allied purposes. This policy should not be construed as a prohibition against the construction of distribution or transmission line crossings, nor is it a prohibition against use of short segments of District's right of way for the construction of local distribution facilities when such facilities will not interfere with operations and maintenance and are otherwise acceptable to the District. Finally, WMD's notice did not describe FPL's project. As a result, it could not have been ascertained from WMD's notice what FPL's Petition for Waiver was for (installation of a 230 kV overhead transmission line) or what the Basis of Review provided on transmission lines. Instead, as worded, the notice implied that both Rule 40E-6.011(4)-(6) and the Basis of Review required a "minimum 40 foot setback . . . from the top of bank." The District published notice of the July 13, 2000, Governing Board meeting (in Fort Myers, Florida) in the FAW, Volume 26, Number 25, dated June 23, 2000. This notice simply stated that the agenda of the meeting was available upon written request or via WMD's website. The meeting agenda fully described both FPL's Permit application and Petition for Waiver. It also noted WMD staff's recommendation that the both be approved. WMD's Governing Board granted both FPL's Permit application and Petition for Waiver at its meeting on July 13, 2000. An Order Granting Waiver was reduced to writing and filed on July 26, 2000, effectively nunc pro tunc July 13, 2000. The Order Granting Waiver also granted FPL's Permit application and included a Notice of Rights, which advised affected persons how to seek an administrative hearing by filing "a petition for hearing pursuant to Sections 120.569 and 120.57(1)." WMD published in the FAW, Volume 26, Number 36, dated September 8, 2000, notice of the disposition of FPL's Petition for Waiver under Section 120.542, Florida Statutes. Unlike the notice of filing the Petition for Waiver, the notice of disposition described the project as "installation of 3.7 miles of overheads parallel transmission pole line inside the south right of way of the Hillsboro Canal, Palm Beach and Broward Counties." The notice of disposition did not contain a Notice of Rights or other "point of entry" to request an administrative hearing. Except as set out in Findings 3-6, supra, neither WMD nor FPL gave Petitioners any other kind of notice of FPL's Permit application or Petition for Waiver proceedings. WMD did not determine that FPL's project was of heightened public concern, or that there was the likelihood of a request for an administrative hearing, so as to require additional notice in accordance with WMD rules. First Notice to Petitioners (Except Leserra and Smith) Petitioners all own residences in the vicinity of FPL's transmission line project. While Jeff Leserra lives south of the Hillsboro Canal and across Loxahatchee Road in Broward County, the other Petitioners all live north of the Hillsboro Canal in Boca Winds, a group of related residential developments in Palm Beach County, west of Boca Raton. Some of the Boca Winds residents--Terwilliger, Tennant, Pam Danko, Larry Rosenman, Teresa Badillo, and Mike Sturm--live in homes on property adjacent to WMD's north ROW along the Hillsboro Canal. These homes are approximately between 230 and 250 from the nearest Parkland Transmission Line pole. Moreover, in late 1999, each of these Petitioners applied to WMD for a Noticed General Permit (NGP) to extend their backyard fence enclosures between 20 and 25 feet into WMD's north ROW along the Hillsboro Canal--closer to the poles. Their applications were processed primarily by Badillo and another homeowner, Gary Fishman, who is not one of Petitioners. The applications were granted and NGPs were issued to them on May 8, 2000, just after FPL's Permit application and Petition for Waiver were filed. The homes of the other Petitioners--Jose and Amalia Gutman, Frank Longo, David Weinstein, and Ballard Smith--are not adjacent to the Hillsboro Canal. The homes of the Gutmans and Smith are approximately 370 and 390 feet from the nearest pole; Weinstein's home is approximately twice as far away; Longo's home is approximately 1,100 feet away from the nearest pole. All Petitioners use their homes as their permanent residence except for Ballard Smith, whose principal residence is in Bradenton, Florida. Prior to November 2000, Petitioners had no notice or knowledge of FPL's Permit application or Petition for Waiver proceedings. FPL began installing 90-foot high poles for the Parkland Transmission Line along the Hillsboro Canal ROW on or about November 1, 2000. By mid-November 2000, all Petitioners except Leserra and Smith has seen the poles, made inquiry of various kinds, and learned of FPL's plans to construct the Parkland Transmission Line. Leserra and Smith did not see any poles and had no knowledge about the Parkland Transmission Line until later. See Findings 49-53 and 58, infra. Initial Reaction to Transmission Poles The Boca Winds homeowners who became aware of the installation of the poles just south of the Hillsboro Canal reacted in different ways. Some instantly suspected both the ultimate use of the poles for electrical transmission and that the poles were on WMD ROW. Others suspected the former but not the latter. Several made telephone inquiries of different kinds-some to FPL, some to their homeowner association. Quickly, word spread, and these homeowners, including all Petitioners except Smith and Leserra, began organizing to oppose FPL's Permit. Meetings were held, and many members of the loosely-organized opposition were involved initially, but the group soon turned to and relied heavily on a handful of its members--primarily the Gutmans, Badillo, and Gary Fishman- -to gather information and contact FPL and WMD on behalf of the group. While none of the group was particularly knowledgeable about the legal technicalities of WMD procedures, Jose Gutman was a Florida-licensed lawyer (albeit practicing in patent law), and Fishman had handled the applications of Terwilliger, Tennant, Pam Danko, Rosenman, Badillo, Sturm, and others for WMD NGPs to extend their backyard fence enclosures into WMD's north ROW along the Hillsboro Canal. Although most members of the group did not view Jose Gutman technically as their attorney during this time, Gutman asserted attorney-client privilege as to communications between himself and members of the group beginning in November 2000, and Petitioners' objections to disclosure of these communications were sustained. A meeting between Jose Gutman, Fishman, Badillo, and other Boca Winds residents and various FPL representatives was held on November 8, 2000. During this meeting, the residents essentially complained that they had no notice and asked FPL to relocate the transmission line. FPL responded that the required notice was given and said it would respond to the request to relocate the lines. The next day the homeowners put their requests to FPL in writing. They asked for proposals for relocating the transmission line, for the projected cost of putting the line underground for the 1.3 miles in the vicinity of their homes, for EMF testing of their homes, and for a statement of safety. The Gutmans then began the process of drafting a petition for circulation to residents for signature. Entitled "Petition to Halt Construction of FPL High Power Transmission Lines on the Land Adjacent to Our Homes," the petition stated that the homeowners "hereby petition our government and [FPL] to halt construction . . . [and] relocate the lines away from our communities." The petition stated that the homeowners had no notice until November 1, 2000, and did not consent to the project. It complained about "a significant loss in property value along with the additional serious concern of health risks [namely, leukemia and cancer] to our children that will be playing within the electric and magnetic fields (EMFs) emitted." The petition requested "that our government representatives and FPL engineers promptly halt construction . . . and provide in writing proposed alternative plans for moving these transmission lines away from our communities." The petition was dated November 18, 2000, but signatures were collected after that date. Meanwhile, Jose Gutman and Fishman arranged to meet with WMD representatives at WMD's main offices in West Palm Beach on November 28, 2000. Since they had a follow-up meeting with FPL scheduled for the following day, they were surprised on their arrival to find Daniel Hronec, FPL Principal Engineer on the Parkland Transmission Line project, in attendance, apparently having been notified and invited by WMD. Gutman and Fishman essentially reiterated their complaint of lack of notice and their request to have the transmission line relocated. Discussion ensued on the permitting process used by FPL and WMD. WMD's Laura Lythgoe explained that WMD rules provide for different review criteria and notice requirements depending on the nature of the request.4 She stated that no notice to affected parties is required for ROW use permits, such as the one FPL got for the Parkland Transmission Line. She went on to explain that the procedure for requesting a variance is set out in Section 120.542, Florida Statutes, which only requires notice in the FAW. Fishman complained that the FAW notice was not specific enough. Thomas L. Fratz, WMD ROW Division Director, responded that the notice was legally sufficient. Lythgoe also pointed out that the agenda item gave specifics and was available on WMD's internet web site. In testimony at the preliminary hearing, Fishman recalled a statement being made during the course of discussion that the homeowners had 21 days to petition for a hearing and that the time had expired. Gutman did not recall such a statement being made specifically, but he conceded that the thrust of the discussion was that the proper notice was given and that the homeowners were too late. During the discussion of WMD procedures, Gutman asked for copies of certain documentation being discussed. Gutman also expressed the homeowners' need for legal advice on the subject and asked for a referral to an attorney knowledgeable in the area. WMD agreed to respond to these requests in writing. Towards the end of the meeting on November 28, 2000, Gutman asked how the homeowners could proceed with their grievance. Fratz responded that the homeowners' issue was with FPL, not WMD. Gutman replied that the homeowners could only negotiate with FPL (which they already were doing) but could petition WMD, as their government, to take action to rectify the situation. Gutman indicated that he had a petition with approximately 150 signatures for that purpose. It is not clear whether the petition and signatures were physically presented to WMD at that time, but it is clear that WMD did not direct Gutman to WMD's Clerk's office, which was just down the hall from where they were meeting, to file the petition. The next day, FPL hosted a meeting with the homeowners to respond to their requests made at the meeting on November 8, 2000, and in their letter dated November 9, 2000. FPL confirmed its response in a letter dated November 30, 2000. FPL told the homeowners that there were options for relocating the transmission line but that implementing the options would cost the homeowners between $900,000 and $1.5 million, depending on the option chosen and that a $20,000 engineering deposit would be required up-front. The option of replacing the planned overhead transmission lines with underground lines would be much more expensive--approximately $15 million--and "unquestionably prohibitive." The homeowners considered FPL's proposals to be financially infeasible and unacceptable. By letter dated December 1, 2000, WMD provided Jose Gutman and Fishman documentation in response to their request during the meeting on November 28, 2000. Included were copies of the agenda for the Governing Board's meeting on July 13, 2000, and Section 120.542, Florida Statutes (2000). The letter stated that Section 120.542 applied, not Section 403.201 (applicable to the Department of Environmental Protection), which Gutman and Fishman apparently cited at the meeting. The letter also stated that there was no requirement for publishing or other notification to affected parties for issuance of a ROW permit. Attorney Walker and the Board Meeting December 14, 2000 After the meetings and letters, the homeowners decided that it would be necessary to appeal directly to WMD Governing Board. They also decided that they needed competent legal representation to assist them. Amy Gutman contacted Governing Board member Nicholas J. Gutierrez, Jr., who advised the homeowners to bring their grievances to the next Board meeting on December 14, 2000. Gutierrez put Amy Gutman in contact with the Board's meeting coordinator, Sandra Gomez, who scheduled the homeowners to participate in the public comment portion of the upcoming Board meeting on December 14, 2000. Meanwhile, Jose Gutman took steps on behalf of the homeowners to retain counsel. After considering several candidates, Gutman eventually settled on Stephen A. Walker and his law firm of Lewis, Longman & Walker, P.A. to represent the group of homeowners (including all Petitioners except Leserra and Smith). Walker served as General Counsel of WMD from 1985 to 1991, and was a frequent practitioner before the SFWMD Governing Board. He also has appeared in cases before the Division of Administrative Hearings. It is not clear from the evidence what documentation Walker obtained from WMD's permit files before appearing on behalf of the homeowners at the Governing Board's meeting on December 14, 2001. However, it is reasonable to infer that, as former WMD General Counsel and an attorney specializing in WMD permitting with extensive experience in that field, Walker was aware of the generally applicable 21-day time limitation for seeking an administrative hearing regarding proposed agency action. Walker also was aware of the difference between petitioning to intervene in a proceeding for the issuance of a permit and asking an administrative agency to initiate proceedings to revoke a permit that has already been issued. Whether Walker communicated this knowledge is not clear from the evidence because Petitioners objected to questions seeking disclosure of attorney-client communications, and the objections were sustained. However, it can be inferred from all of the evidence that such communications probably took place. Walker and the homeowners not only appeared for the public comment portion of the Governing Board's agenda for December 14, 2001, they also conducted a protest demonstration that caused a disturbance in the hallway outside the meeting room during an earlier part of the agenda. Attempting to ascertaining the reason for the disturbance, the Chairman of the Governing Board, Michael Collins, asked WMD Ombudsman, Richard E. Williams, to attempt to gain some understanding of the reason for the demonstration and to suggest possible solutions. When it was made known that Fratz and other WMD staff already had met with the homeowners and FPL, Collins asked that Fratz be included. Williams then met with the homeowners, FPL, and some WMD staff in the nearby WMD cafeteria. When the situation was explained to Williams, he suggested that all parties agree to give him time to gather additional facts and try to mediate an "acceptable agreement" to report back to the Governing Board at its meeting in January 2001. In the meantime, it was agreed that FPL would postpone construction in the vicinity of the homeowners and that the homeowners would postpone pursuit of their grievance. This was acceptable and agreed by all involved. When FPL and the homeowners returned to the Governing Board meeting for the public comment portion, Walker appeared on behalf of the homeowners. Walker summarized the history of FPL's Permit and waivers. He asked the WMD Governing Board to do three things: (1) have staff investigate the appropriateness of the issuance of the Permit in the first instance; (2) based upon that investigation, partially revoke FPL's Permit; and (3) have Williams continue to work with the homeowners and FPL in an effort to find a solution. The Gutmans, Tennant, Terwilliger, and Badillo also addressed the Governing Board to ask that FPL's Permit be revoked. Jose Gutman advised the Governing Board that the homeowners had a petition (by then with 256 signatures) with a cover letter that would provide the Board a summary of the issues. He offered to provide the Board with copies and was directed to hand them to Darrell Bell, a member of the staff of WMD's Clerk's office, who would make sure all Board members got a copy. The other speakers expressed their concerns about EMF, aesthetics, and property values. Collins then asked the WMD's General Counsel, John Fumero, to identify the Board's options. Fumero advised that the Board could modify, revoke or suspend FPL's Permit but that, before taking such action, the Board would want to know the facts and understand the consequences of each option. Without taking a formal vote, the Board asked staff to investigate the facts and report back at the next meeting. Walker advised the Board, and Dan Hronec on behalf of FPL concurred, that FPL had temporarily stopped construction near where his clients lived while it continued work on other portions of the transmission line. Smith's First, Incomplete Knowledge Smith saw a tall concrete structure off to the left of the main entrance to Little Palm Lane when he visited his home for approximately four days in late December 2000. He denied seeing any other poles (although all of the poles behind the Boca Winds homes were installed by then). Smith explained that he spent most of his time during this visit in the house or in the backyard where the poles would be less visible. Although Smith admitted that he was outside in front of his house, where the poles would have been more visible, at times during his visit in December and that he can now see the poles and lines from inside his house through any front window on either the first or second story, Smith's testimony as to what he saw in December 2000 is accepted and credited. Likewise, Smith's testimony that he did not realize the purpose of the pole he saw or its location on WMD ROW is accepted and credited. Walker's Review of WMD Documents As part of his representation of the homeowners, Walker or one of his subordinates obtained copies of at least parts of WMD's official agency file on FPL's Permit. Walker's files contained several partial copies of FPL's Permit; there also was a Notice of Rights form (the kind attached to the Order Granting Waiver). Walker's file also contained other materials that are found in the WMD's file on FPL's Permit, such as the standard form letter that accompanies each permit transmittal. Fishman understood that Jose Gutman had asked Walker or one of his subordinates to go to WMD and undertake an investigation regarding the issuance of FPL's Permit. Gutman did not confirm Fishman's understanding, and Walker denied that he or anyone from his staff went to WMD's main office in West Palm Beach to investigate the issuance of FPL's Permit and obtain the documentation in his file. It is possible that Walker was given the documents by one or more of the homeowners. Walker also testified at hearing that he could not recall when he obtained the documentation that was in his file. However, based on the record evidence, it is reasonable to infer that this occurred prior to January 8, 2001, as Walker sent a letter to WMD on that date which described the Permit in detail and to which he attached copies of FPL's Permit, FPL's permit and waiver applications, and several items of WMD correspondence from the permit file. Failure of Mediation; Board's Meeting February 14, 2001 After the Governing Board's December 2000 meeting, Ombudsman Williams undertook to schedule separate meetings with the homeowners and with FPL, to be followed by a joint meeting with all involved. It soon became apparent that it would not be possible to conduct all the meetings and be ready to report back to the Governing Board at its January 2001 meeting. In a letter from FPL to Fratz dated January 5, 2001, FPL confirmed that FPL would continue to postpone construction in the vicinity of the homeowners until after the February 2001 meeting of the Governing Board and that, "in return for this concession, the concerned residents have agreed to hold any further action, including comment to the Board, until the February Board meeting." Williams met separately with the homeowners and with FPL, as planned. When Williams contacted Amy Gutman to schedule a joint meeting, she asked whether anything new was being proposed. When Williams said, no, Gutman told him she did not think another meeting would be productive and declined on behalf of the homeowners to participate in one. Apparently, FPL representatives met with WMD staff, and they discussed landscaping to help mitigate the aesthetic concerns of the homeowners. Having declined to participate, the homeowners were not aware of the landscaping proposals (essentially, planting cabbage palms in the ROW.) FPL's Permit and waivers made up an agenda item at the WMD Governing Board's meeting on February 14, 2001. Fratz introduced the item with a presentation. The Board then received public comment from Walker on behalf of the homeowners and from a number of homeowners. Walker, on behalf of all Petitioners except Smith and Leserra, identified three concerns of the homeowners, one of which was the lack of notice. Specifically, Walker stated that the Administrative Procedure Act was involved, that the model rules provide for a point of entry for people wanting to object to a permit, and that his clients did not get the required point of entry. At the conclusion of his presentation, Walker asked the Board to revoke FPL's Permit. When asked by one of the Board members whether there were other options available, Walker stated that he was not aware of an available alternative other than revocation. Petitioners Tennant, Frank Longo, Terwilliger, Jose Gutman, Larry Rosenman, and Badillo also addressed the Board and provided reasons why they believed FPL's Permit should be revoked. FPL then made a presentation, after which the Board discussed the issue and entertained several motions. During the Board's discussion, staff was asked about possible interference with WMD's operation and maintenance of the Hillsborough Canal as a result of the transmission line and about the safety of WMD's workers. These questions were addressed by Fratz, by WMD's Executive Deputy Director, Joe Taylor, and by WMD's Director of Field Operations (South), John Adams. They advised the Board that WMD could adequately operate and maintain the canal with the transmission lines in place and that the safety of WMD's workers would not be compromised. Fratz noted that WMD frequently received requests for waiver of the 40-foot setback from the top of canal banks, and Adams pointed out that WMD does not operate any of its equipment, including cranes with booms, along WMD ROW in winds above 35 miles per hour. After these questions were answered, Board Chair Michael Collins again asked General Counsel, John Fumero, to list the Board's options. Fumero outlined three possible courses of action: (1) to take action relative to the Permit such as revocation, modification or suspension; (2) to take no action with respect to the Permit; or (3) to direct staff to publish notice of the Permit to create a point of entry for an administrative challenge. After some questions from the Board were answered, Board member Dr. Patrick J. Gleason moved to give the homeowners a point of entry, and the motion was seconded. After further discussion, the motion was amended in two respects: (1) the Board would delegate to the executive director the authority to initiate a proceeding to suspend FPL's Permit while the administrative challenge was ongoing; and (2) the Board's action would be based upon information received during the meeting indicating that certain WMD criteria may not be met. The motion, as amended, was defeated by a 7 to 1 vote. A subsequent motion was made for FPL to install and maintain certain landscaping over a portion of the ROW to provide a visual buffer between the homes and the transmission line. That motion passed, 7 to 1. Petitioners (except Smith and Leserra, who still had no knowledge of events taking place and did not participate in the meeting on February 14, 2001) understood that the Governing Board had refused to initiate revocation proceedings at the meeting. Although some Petitioners expressed willingness to hear more about the landscaping proposal, which was new to them, Petitioners also already knew that the landscaping alternative proposed would not be acceptable to them and that they still wanted FPL's Permit revoked. After the Board's vote, several Petitioners, including Jose Gutman, Badillo, and Rosenman (as well as Fishman) talked to Walker about other avenues to pursue in their continued opposition to FPL's Permit. This discussion included advice on seeking a formal administrative hearing. It is highly likely that, even if Walker did not have all his documentation from WMD's file on FPL's Permit by January 8, 2001, he had them by the Governing Board's meeting on February 14, 2001. During the meeting, Walker introduced exhibits that he indicated were retrieved from WMD's file on FPL's permit. These included a copy of the Notice of Rights attached to the Order Granting Waiver. Walker advised the homeowners for the last time after the meeting on February 14, 2001, before his clients left the meeting. His representation was terminated shortly thereafter. Petitioners have invoked attorney-client privilege to preclude discovery of the precise substance of the discussion with Walker after the meeting on February 14, 2001- -in particular whether the various jurisdictional time limitations were discussed. However, it is reasonable to infer that Walker shared this information with the homeowners, including the information contained in the Notice of Rights attached to the Order Granting Waiver, before terminating his representation. Leserra's Knowledge and the Petition Petitioner Leserra first learned of the installation of high-voltage transmission line poles in the vicinity of his home in approximately February 2001. The closest pole was just 69 feet away from his home, across Loxahatchee Road. Leserra contacted State Representative Stacy Ritter to complain, and his office contacted WMD and obtained information concerning the project in mid to late-February 2001. A letter sent by Representative Ritter's office to Leserra on February 28, 2001, and received by Leserra shortly after March 2, 2001, stated that the line in question was located on property determined to be owned by WMD. Leserra testified that, even after receiving this information, he did not know how WMD's ownership was determined and still did not know for certain of WMD's involvement at the time. In early March 2001, a friend informed Leserra that homeowners in Boca Winds in Palm Beach County were having a similar problem with installation of high-voltage transmission lines near their homes and gave him Teresa Badillo's name and telephone number. Leserra telephoned her and was told that there was a meeting about it at WMD in February 2001. Badillo gave Leserra Jose Gutman's name and number for additional information. Badillo testified that she also told Leserra about FPL's Permit to use WMD's ROW. Leserra does not recall her saying that. Even if she did, Leserra did not even know where Boca Winds was at the time and did not know that Boca Winds was being affected by the same transmission line project that was affecting him. On March 12, 2001, Leserra wrote to FPL and WMD and threatened that he would hold WMD responsible for any adverse impact from the FPL facilities on the Hillsborough Canal. At the time he sent the letter, he had not yet been able to speak to Jose Gutman. At some point during the next four days, Leserra was able to contact Jose Gutman by telephone. Gutman explained the Boca Winds situation in detail, including the homeowners' intention to request an administrative hearing, and Leserra agreed to be a co-petitioner. Since Petitioners objected to disclosure of communication with Gutman on grounds of attorney-client privilege, it is not clear that Gutman imparted to Leserra information as to the Notice of Rights attached to the Order Granting Waiver to FPL or the deadline for petitioning for an administrative hearing. But it can be inferred that the former was communicated and that the latter was discussed. On March 16, 2001, Amy Gutman contacted Ombudsman Williams to tell him that the homeowners no longer were represented by Attorney Walker but, along with Leserra now, wanted to petition for an administrative hearing, wanted to know their rights, and wanted assistance in understanding the process to avail themselves of their rights. On March 20, 2001, Williams relayed this information to Deputy Executive Director Taylor and General Counsel Fumero for handling. The office of WMD General Counsel responded to Williams' request by sending a letter dated March 22, 2001, to Amy Gutman, on behalf of the homeowners, enclosing a copy of the Order Granting Waiver, with Notice of Rights, which "explains the various remedies that are available to anyone substantially affected by a decision of the District." After receipt of the letter with copy of the Order Granting Waiver with Notice of Rights, Amy Gutman and some of the homeowners (including all Petitioners except Ballard Smith) decided to file a petition for administrative hearing. Suzanne Terwilliger telephoned WMD office of General Counsel to get sample petitions, which were faxed to her on April 3, 2001. Terwilliger drafted a Petition for Formal Administrative Hearing (Petition) and telephoned WMD to see if it could be filed by fax. She was told Sandra Gomez would call her back. Terwilliger called again on April 6, 2001, angry that she had gotten no response from Gomez and that FPL was energizing the transmission line which had been completely installed since February 14, 2001. Told that it could be filed by fax, the Petition was filed in that manner on April 6, 2001. The Petition was filed by Terwilliger, Amy Gutman, and Leserra purportedly on behalf of unnamed residents of several residential areas in southwest Palm Beach County. On April 11, 2001, FPL filed a Motion to Dismiss asserting that the Petition was untimely, that WMD had no jurisdiction over the matters raised in the Petition, and that Petitioners had no standing. Smith's Knowledge and Joinder; Amended Petition There was no evidence that Ballard Smith knew anything at all about what transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001. Smith visited his home in Boca Winds again during Easter weekend 2001. When he arrived, he was shocked to see the transmission line in place. On April 14, 2001, he talked to his neighbors, the Gutmans, who informed him of some of what had transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001, including FPL's Motion to Dismiss the Petition. He agreed to give Gutman an affidavit to help oppose the Motion to Dismiss and to join the Petition. As set out in the Preliminary Statement, on May 3, 2001, the original Petitioners filed the Affidavit of Ballard Smith as part of their opposition to FPL's Motion to Dismiss. In it, Smith swore that he lived in Bradenton and was not aware of WMD's actions until April 14, 2001; he also swore that he "substantially agrees" with the Petition and "joins with the Petitioners in this Case No. 01-1504." While not clear from the Affidavit itself, Smith clarified in his testimony that he intended by the Affidavit to join in the Petition. On May 18, 2001, Petitioners filed an Amended Petition. The Amended Petition listed 13 individual Petitioners--those included in the above-caption (including Smith), plus one other who later voluntarily dismissed and was dropped. The Amended Petition states that Petitioners' interests in this proceeding are based on the following concerns: (i) the effects of electromagnetic fields (EMF); (ii) impact on Petitioners' property values; (iii) aesthetics and loss of quiet enjoyment; (iv) structural safety; and (v) interference with radio and television. Several Petitioners testified to concerns that the transmission line would interfere with the operation of the Hillsborough Canal and cause their properties and roads to flood, and Tennant testified that the transmission line interfered with her husband's fishing in the canal. The Amended Petition did not allege that these things affected Petitioners in particular, as opposed to the community in general. But they were heard without objection and by implied consent. Likewise, Tennant's testimony about her family's canoeing and kite-flying being impacted by the transmission line were heard without objection and by implied consent. EMF Petitioners Badillo, Smith, Rosenman, Weinstein, Tennant, and the Gutmans expressed concerns about EMF generated by transmission lines (although Smith disclaimed any personal interest in the issue.) The remaining Petitioners did not express EMF concerns. The only competent, substantial evidence in the record on Petitioners' medical concerns about EMF were two booklets--one produced in 1995 by the National Institute of Environmental Health Sciences and the United States Department of Energy, and another produced by the Department of Engineering and Public Policy of the Carnegie Mellon University--which FPL provides to those asking for information about EMF. These booklets did not prove that medical or health impacts on Petitioners are likely as a result of the Parkland Transmission Line. Far from proving immediate injury, these booklets at most were only enough to generate some speculation about possible medical or health impacts. Property Values and Aesthetics The Amended Petition states that the presence of the Parkland Transmission Line will adversely impact Petitioners' property values, decreasing values by 20-30 percent. This claim is coupled with claims regarding the aesthetics of the facilities. As to property values, there was no competent, substantial evidence in the record to support Petitioners' contentions. Petitioners made no attempt to substantiate their expressed concern of a drop in property values. They presented no expert evidence regarding property values, none that sales of homes in the area have been or will impacted, and none that the sale price of any home has been lower than it would have been without installation of the transmission line. As for aesthetics, the only evidence was the opinions of several Petitioners who testified that the transmission lines are unsightly. Even if this was enough to prove diminished aesthetics, at least for Petitioners closest to the transmission line, there was no evidence to causally connect diminished aesthetics to a reduction in property value, so as to be actionable in this proceeding. Structural Safety Petitioners presented no competent, substantial evidence that the Parkland Transmission Line is structurally unsound or in any reasonable danger of failure. FPL presented ample evidence to the contrary. The Parkland Transmission Line is designed to meet FPL's internal standards. FPL's internal standards are more stringent (i.e., designed to withstand heavier loads) than the present regulatory requirements for wind-loading and structural safety. FPL's internal standards are also more stringent than the voluntary standards for electric transmission facilities developed by the American Society of Civil Engineers (ASCE). The structural strength of FPL's transmission line also exceeds the requirements of both the Broward and Palm Beach County building codes. Based largely on FPL's stringent internal standards, the National Electrical Safety Code (NESC) is being revised to improve the wind-loading standards for electric transmission poles. Because the new standards are based on FPL's existing internal standards, the Parkland Transmission Line structures are designed to comply with the new NESC that is currently in the final stages of development. FPL's stringent design standards make the possibility for Petitioners to be affected by a failed transmission pole or conductor extremely remote and speculative. Petitioners have expressed a concern over the effects of hurricanes on FPL's concrete transmission poles. However, it is highly unlikely that any portion of the transmission line would fail in a hurricane. FPL's experience reveals that no concrete transmission pole has ever been lost to a Category 3 hurricane, which is a 1-in-100 storm event. Hurricane Andrew, which was a 1-in-400 year storm event, was the only hurricane known to have affected such poles. Even then, 92 percent of FPL's poles stood up. The likelihood of a storm of that magnitude hitting the area where Petitioners' homes are located is very remote. Additionally, the poles along the Parkland Transmission Line are built to FPL's post- Andrew standards and have more load-bearing capacity than the poles in place during Andrew. Petitioners questioned the credibility of FPL's evidence on the structural integrity of FPL's transmission poles and lines, contending that FPL's design calculations for wind-loading failed to increase the basic design wind speed by the terrain factor for exposure category "D." According to the "Guidelines for Electrical Transmission Line Structural Loading," ASCE Manual No. 74, Exposure D is "described as unobstructed coastal areas directly exposed to wind flowing over large bodies of water." Petitioners contend that Exposure D applies because the Hillsboro Canal "runs for miles along the transmission line." But FPL Structural Engineer, C. Jerry Wong, Ph.D., P.E., testified clearly and persuasively that the presence of the Hillsboro Canal does not place the Parkland Transmission Line in an Exposure D setting. Even if failure of a pole were to occur during a hurricane, the chance that a pole would fall and hit one of Petitioners' homes still would be remote. For all Petitioners except Leserra, the poles are too far away for that to happen. The poles, which weigh 45,000 pounds apiece, are too heavy to become airborne. Petitioners presented no competent, substantial evidence suggesting that either a pole or electric conductor could somehow become airborne and reach the property of any Petitioner except Leserra. The only record evidence on this point established that, when there is a structural failure, the pole and the conductor fall down approximately right below where the transmission line is located. The odds of one of these homes being hit by a pole or transmission line due to high winds are almost zero. Even in the case of Leserra, who is the closest to the transmission line at approximately 69 feet away, the odds of his house being hit by a pole due to high winds is less than two-tenths of one percent. Because the transmission line is designed to have higher structural capacity than required by local building codes, it is likely that any winds strong enough to have the potential to damage the line would also destroy surrounding homes. It is far more likely that Petitioners' homes would be destroyed and strike the transmission line than the other way around. In any event, if a hurricane was strong enough to topple one of FPL's transmission line poles or blow down lines, it also would be strong enough already to have destroyed Petitioners' homes. So even if by some bizarre and remote chance a pole or wires blew into one or more of Petitioners' homes, the homes probably already would have been destroyed by such a storm. Petitioners next expressed concern regarding one of the poles being struck by a vehicle, such as a fully-loaded commercial truck. For most Petitioners, even if a truck could knock down a pole, the pole would not reach their property. Only Leserra's home is close enough for there to be any possibility of this happening. Even in Leserra's case, it is next to impossible for a truck to cause one of the poles to fall. The only truck traffic near the poles is on Loxahatchee Road, which runs parallel to the pole line. The poles are separated from the road by a guard rail designed to withstand a 50 mile per hour (mph) collision. The maximum weight of a truck allowed on the road is 80,000 pounds. Such a truck would have to hit a pole at a near right angle and at over 100 mph to have any chance of causing a failure. Because the trucks travel parallel to the pole line, and there is a guardrail in the way, the chance of failure from a collision is extremely remote and speculative. In essence the truck would need to make a 90- degree turn near the pole, break through the 50-mph guard rail a few feet away, and still be traveling at over 100 mph at the time it struck the pole. Then, the pole would have to fall in the opposite direction from the impact to hit Leserra's home. The odds of something this bizarre happening are extremely remote. Finally, it is noted that FPL's Permit has an indemnity clause, which "requires that FPL hold and save the South Florida Water Management District and its successors harmless from any and all damages, claims or liabilities which may arise by reason of the construction maintenance or use of the work or structure involved in the permit." Since this makes it clear that any liability resulting from the presence of the transmission line must be borne by FPL alone, any claim that a structural failure could lead to liability for WMD is speculative at best. Flooding Concerns Several Petitioners testified to concerns about flooding in the Boca Winds subdivision by blocking of subdivision drainage culverts that flow into the Hillsborough Canal or by interference with WMD's routine maintenance of the canal. But Petitioners presented no competent, substantial evidence that flooding for these reasons would be likely. There are two box culverts leading from Boca Winds into the Hillsborough Canal. But, as required by WMD rules, the Boca Winds storm water system is designed to accommodate a 3-day long, 1-in-100 year storm event, with no external outflow. In other words, the system is designed to function without the drainage culverts in even this extreme rainfall condition. There is only a one-percent chance that a 1-in-100- year rainfall event would hit Boca Winds in any given year. In any storm of this magnitude or less, the onsite system would be sufficient to accommodate the rainfall with no flooding of the floor elevation of Petitioners' homes. The possibility that any one storm event would even require drainage into the Hillsborough Canal to prevent flooding in Boca Winds is therefore remote. The culverts leading to the Hillsboro Canal essentially provide additional drainage capacity to the internal storm water management system of Boca Winds. In addition, by slowly draining ("bleeding") water from the Boca Winds subdivision to the canal, they allow the system to recover capacity for subsequent rain events. It is highly unlikely that a transmission pole, even if it was to shear off and fall toward the canal-which is in itself an extremely remote possibility--could in any way impede the functions of either the drainage structures or the canal. Even if a pole were to fall and directly strike and crush one of the two drainage structures, it probably would not appreciably affect the culvert's ability to bleed water into the canal. The drainage into the structures is controlled initially by a weir at the inflow point, not by the pipe diameter at the outflow. Even if a pole were to somehow crush the outflow pipe, water would continue to flow into the canal at roughly the same rate. A pole falling into the canal itself would not affect the ability of the canal to provide drainage. If a pole were to fall into the canal, it would most likely do so top first. Because the pole is tapered, only a small cross section would enter the canal, which would have almost no effect on the flow of water. Even assuming that a pole were to enter the canal in its entirety, it would affect only a minimal portion of the canal cross section and would not significantly affect the flowage capacity of the canal. Even multiple poles falling completely in the canal--an extremely unlikely event--would not significantly affect the function of the canal, due to the small cross-section taken up and the distance between the poles. Most maintenance of the Hillsborough Canal is done with herbicides and from boats in the canal itself. There is rarely a need to use heavy land-based equipment to maintain a drainage canal. The Parkland Transmission Line is on the south bank of the canal, and the Permit provides for the poles to be set approximately 450 feet apart and more than 14 feet from the top of the canal bank. (In many instances the poles are much more than 14 feet from the top of the canal bank). The Permit provides that the poles are to be installed with turn structures that allow at least a 14-foot passing zone around each pole. This is sufficient for the types of vehicles used by WMD to pass around the poles, assuming there was a need to drive along the south bank of the canal. Most heavy equipment can operate from the passing pad and from the space between poles. When heavy equipment is needed, a backhoe or grade- all is typically used. Both of these types of equipment can operate unimpeded from the south side of the canal. A grade- all operating from the south bank has sufficient reach to dredge the bottom of the canal should that be necessary and is the optimal piece of equipment for such an operation. The transmission line would not affect the operation of a grade- all from the southern bank of the canal. Because of the higher elevation, a grade-all would not be used from the north bank, and a crane would be used if there were a need to conduct dredging from that direction. However, because of its location, the transmission line would not impede any equipment use on the north bank. Moreover, if any extensive dredging were done, the routine method would be to operate from a barge on the canal itself, which would also not be affected by the transmission line. There also is no way that the presence of the transmission line could affect the maintenance of the outfall structures from Boca Winds. Any maintenance of those structures would be performed from the north bank of the canal-the side opposite to the transmission line-or from boats or barges operating in the canal. Petitioners introduced evidence to prove that, in some instances, the poles may not have been installed as provided in the permit, with not enough room between the poles and the top of the bank on one side or Loxahatchee Road on the other. It was not clear from their evidence whether this may have occurred in more than two instances, or in any instance other than where the transmission line intersected the canal and changed direction near a culvert. Even if proven, these would have amounted to compliance enforcement issues, not permitting issues. It was not proven that the installation design at these locations was improper; if installation was designed properly but implemented improperly, it was not proven that installation as designed was impossible at these locations. Finally, it was not proven that the installation hampered canal maintenance. Leserra also expressed concerns about flooding of his property from a north-south drainage ditch along his property line, which conveys water from the south to a box culvert under Loxahatchee Road to the Hillsboro Canal, draining a significant area in the vicinity of Parkland. There was little evidence on the operation of Leserra's drainage ditch. The little evidence presented was insufficient to prove the likelihood of flooding of Leserra's property due to the existence of the transmission line. The evidence presented about the Hillsboro Canal in general suggests that flooding of Leserra's property due to the existence of the transmission line is highly unlikely. Indeed, there was no testimony that water in the Hillsborough Canal has ever risen above its banks, even in major rain events. Recreational Use of Canal Tennant testified that her husband regularly used the Hillsboro Canal for fishing and canoeing before the transmission line was installed. The transmission line does not physically obstruct canoeing or fishing in the canal, but her husband chooses not to canoe or fish in the canal any longer due to medical and health concerns and for aesthetic reasons. He does not enjoy those activities as much any more due to the transmission line being there both visibly and audibly. (It makes a noise described as "buzzing" or "humming.") Tennant also testified that her family used to fly kites from the dirt road in the ROW along the north side of the canal behind their home. Due to the proximity of the transmission line, this activity no longer is safe and has been discontinued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Amended Petition for lack of standing. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON 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 27th day of February, 2002.
The Issue Whether the Governor and Cabinet sitting as the Siting Board should approve (on appropriate conditions) or deny petitioners' application for a certificate authorizing construction and operation of the proposed Cedar Bay Cogeneration Project, an electrical power plant?
Findings Of Fact As far as the evidence showed, petitioners never analyzed the costs of a natural gas facility as compared to those of a coal-fired facility. According to uncontroverted testimony, however, natural gas is not commercially available in the quantities necessary to fire the plant. If fueled by natural gas, instead of by coal as proposed, the Cedar Bay Cogeneration Project would require 50 million cubic feet of natural gas per day, on a firm basis. Natural Gas Availability The Florida Gas Transmission system, a branch of which (the "Brooker lateral") serves People's Gas System, the only local distribution company in Jacksonville, (RT.60) has no transmission capacity not already fully allocated to existing users. Among Florida Gas Transmission Company's customers are other power plants, including some operated by Jacksonville Electric Authority. Florida has "roughly 6,000 megawatts of power [generating capacity] that is primarily gas fired . . . [and] another 5,000 megawatts of power [generating capacity] that uses natural gas as a secondary fuel." RT.62. It would take more than "the entire capacity of the Florida Gas Transmission system to move . . . the fuel required to generate . . . 6,000 megawatts." Id. Jacksonville Electric Authority buys natural gas on an interruptible basis, because it has been unable to obtain a commitment to a constant or "firm" supply. The Florida Gas Transmission Company has plans to expand its transmission capacity by 100 million cubic feet a day to a total of 925 million cubic feet a day in 1991 or early 1992. But allocation of the increase -- an issue in obtaining approval from the FERC -- has already been accomplished, and the expansion will make no firm capacity available to new users. Talk of another expansion has already begun, but so far the company has done little more than collect questionnaires (which suggest demand for double the existing service.) At one time, liquefied natural gas came from Algeria to Elba Island near Savannah, Georgia, by ship. A 20- inch pipeline connects the terminal with the Sonat system on the mainland. But no Sonat pipeline comes within some 150 miles of Jacksonville, and shipments of liquefied natural gas to Elba Island ceased with the decline of oil prices after the mid-l970s. At present, the Florida Gas Transmission Company has a monopoly in Jacksonville and peninsular Florida. But `a system. in southern Georgia "called Mobile Bay" (RT.77) has plans to extend a 12-inch pipeline from an existing line near Live Oak to Jacksonville. With respect to some or all of this planned capacity, "certain commitments have been made." RT.59. Under pressure, the proposed 12-inch pipeline could transmit over 40 million cubic feet of natural gas a day, but only if that much gas reached Live Oak, and "the South Georgia system is constrained during certain parts of the year," RT.59, as it is. From the fact that a pipeline is to be constructed to bring less natural gas to Jacksonville than would be required to fuel the Cedar Bay project it might be inferred that the project itself would justify construction of a pipeline. But the opinion of petitioners' expert, Mr. Van Meter that natural gas is not an available or reasonable fuel for the Cedar Bay Cogeneration Project (RT.65, 74, 79) -- and would not have been even if natural gas had been planned for earlier -- went unrebutted. Likewise unrebutted was the testimony of another of petitioners' experts that, from an economic standpoint, "Base load power plants['] most desirable fuels would be coal and nuclear." RT. 103. Construction Dewatering The applicants have modified their dewatering plan, and now propose new construction techniques for the railcar unloading facility; sequential installation of underground pipes; sequential excavation of pump pits; and an advanced effluent treatment system. (RT. 147, 149-52, 171-76, 178, 185-92; AES Ex. 4R) A cofferdam or groundwater barrier encircling the railcar unloading area would drastically reduce the amount of groundwater seeping into the excavation during construction. (RT. 173; AES Ex. 4R, 7R). Sheet piling is to be driven into perimeter trenches filled with bentonite cement. (RT. 174-75; AES Ex. 4R, 7R, 8R). Using a jet grouting technique, a five- to ten-foot thick seal would be created underneath the planned excavation. (RT. 175-76; AES Ex. 4R, 7R, 9R). Steel tie-back rods would strengthen the cofferdam, and a pump would move seepage to the surface from a sump designed to collect groundwater seeping through the cofferdam and up through the grout into the excavation. (RT. 176-77; AES Ex. 4R, 7R) The modified construction techniques now proposed would reduce maximum groundwater drawdown outside the cofferdam from approximately the 30 feet below grade originally contemplated to a currently anticipated level of approximately 5.5 feet below grade. (RT. 279; AES Ex. 10R). Excavations to install circulating water piping and to create pits to house runoff pumps would be scheduled to keep down the volume of dewatering effluent at any given time. (RT. 178-79, AES Ex. 4R) Installing a cofferdam, jetting in grauting, and sequencing construction, as now proposed, would reduce dewatering effluent flows from the 1000 to 2000 gallons per minute originally contemplated to no more than 200 gallons per minute. (RT. 180, 185; AES Ex. 4R, pp. 1 and 2) In another modification, the applicants now propose an advanced treatment system to improve the quality of (a diminished quantity of) dewatering effluent, prior to its introduction into Seminole Kraft's cooling water system. The proposed treatment system would employ as many as five treatment technologies, if needed, to ensure that cooling water system discharges to the St. Johns River containing dewatering effluent would meet Class III water quality standards. Equipment necessary to bring each technology to bear would be on site and available for use before dewatering began. (RT. 151, 185, 193, 196; AES Ex. 4R) Mixing dewatering effluent with lime would remove dissolved metals from solution. Then a clarifier would precipitate and separate solids. These first two stages of the treatment process now proposed comprise the whole of the treatment process originally proposed. (RT. 149-50, 185-68; AES Ex. 4R) Additional treatment, as needed, would include sand filtering, to eliminate the need for any turbidity mixing zone (RT. 151, 190, 198, 201; AES Ex. 4R); using a carbon filter to remove organic compounds (and some heavy metals), obviating the need for a phenol mixing zone (RT. 190-191, 198, 201; AES Ex. 4R); and, finally, selective ion exchange, to provide additional metals removal, if needed. (RT. 151, 191, 201-02; AES Ex. 4R) The applicants are to ascertain and report the quality of effluent as long as dewatering takes place. They must use a composite sampling method once a week for the first month. Thereafter they may use a single "grab" sample, but must continue assessing effluent quality once a week until dewatering ceases. The proposed monitoring program must be capable of detecting whether water quality standards are being met. (RT. 166, 195, 321-22; AES Ex. 4R). The applicants' modified dewatering plan is an environmental improvement over the previous plan and would ensure compliance with water quality standards. (RT. 193, 196, 261) DER has recommended and the applicants have agreed to accept modified Conditions III.A.12. (Construction dewatering), III.A.13 (Mixing Zones), and III.A.14. (Variances to Water Quality Standards). (RT. 152; AES Ex. SR as modified by the Joint Recommended Order filed November 1990). Based upon the applicants' modified dewatering plan, a reasonable allocation of water for construction dewatering is a maximum daily withdrawal not to exceed .288 million gallons. Modified Condition V.D. is reasonable and the applicants accept its terms. (RT. 254, 294-295; SJRWMD Ex. IR) Water for Cooling Purposes The applicants now propose to use either reclaimed water or river water for cooling, to the extent practicable, in an effort to avoid using groundwater as the permanent, primary source of cooling water. September drought conditions caused record low readings for the Floridan aquifer at 23 monitoring wells in the northern part of the St. Johns River Water Management "District, including wells in Duval County." RT. 248. The original proposal called for withdrawing four million gallons of water a day from the Floridan aquifer for cooling, when power generation begins. Under the modified proposal, groundwater would still be used as makeup for the steam or power generation system, as service water, and for potable purposes, but (except in emergencies) not for cooling, assuming the applicants obtain the regulatory approval they would be obliged to seek. The applicants have agreed to accept modified Condition XXV (Use of Water for Cooling Purposes). (RT. 155-158, 204-208; AES Ex. 6R, 12R, 13R) Condition IV.C. has been modified to reflect the reduced withdrawal of groundwater that would be necessary if groundwater is not used for cooling. For the next seven years, a maximum annual withdrawal from the Floridan aquifer for non- cooling uses of no more than 530.7 million gallons and a maximum daily withdrawal of no more than 1.45 million gallons represent amounts that are considered reasonably necessary and efficient. Unless the City of Jacksonville has agreed, on or before December 1, 1990, to supply reclaimed water for cooling, the applicants will redesign the cooling system so that river water can be used for cooling. Salt in the Broward and St. Johns rivers requires the use of highly corrosion-resistant materials for certain system components. Constructing these system components with such materials would enable the cooling system to use river water, reclaimed water from the City, or Seminole Kraft wastewater. (RT. 155-56, 159-60, 216-17; AES Ex. 6R). If river water is used, existing Seminole Kraft intake and discharge structures would be utilized. In order to reduce ill effects on aquatic organisms, the applicants would install screening and filter systems upstream of the pumps. Brackish river water must be changed or "cycled" more often than groundwater, lest evaporation cause scaling that would clog the system. The volume of river water required for cooling tower makeup is estimated at approximately 14 million gallons per day. Because cooling with river water would require more water, the applicants propose to increase piping and valve sizes for the cooling system. (RT. 155-57, 168, 215-16, 219-20; AES Ex. 6R) Modified Condition XXV specifies a procedure for amending site certification to require use of one of two primary cooling water sources: reclaimed water from the City or surface water from the Broward or St. Johns rivers. The applicants have agreed to apply within six months for modifications concerning design and operation of the plant cooling system. The application must contain information necessary to demonstrate that operation of the cooling system without using groundwater as the primary cooling water source would comply with all relevant non-procedural agency standards or qualify for a variance. The application must also detail the reasons for selection of one requested source over other possible sources. There would be no delegation to DER's Secretary for determinations under Condition XXV. Final authority to render determinations under Condition XXV would remain with the Siting Board. (RT. 207, 269; SJRWMD Ex. 2R) As drafted by the parties, modified proposed Condition xxv provides that groundwater may be utilized for cooling only in the event that neither river water nor reclaimed water from the City of Jacksonville obtains necessary environmental approvals of the preferred primary cooling sources are denied on the grounds of unavailability, or environmental or economic impracticability, as set forth in the condition. (RT. 207, 228-30; AES Ex. 12R) The applicants modified cooling system plans and modified Condition XXV, as drafted by the parties, are designed to ensure that the cooling system will use either river water or reclaimed water, to the extent it is economically and environmentally practicable. Use of either of these sources for this proposed cooling facility is viewed by the SJRWMD as equally appropriate to fulfill its conservation and reuse standards and the state water policy, which require consumptive users to utilize, to the extent practicable, the lowest quality water suitable for the proposed use. (RT. 242-43, 299-300) The applicants have stipulated that it is economically feasible and practicable for them to pay $.18-1/2 per thousand gallons for reclaimed water without phosphorous treatment or $.22 per thousand gallons for treated reclaimed water, unless expenditures have already been made to construct the cooling system to utilize river water. They also stipulated that the river water cooling option is economically feasible and practicable, if the facility is authorized to operate with the same type of cooling tower discharge operation variances granted to the St. Johns River Power Park. (RT. 206, 218, 245, 295j AES Ex. 12R) The St. Johns River Power Park, a power plant in Duval County which was certified under the Florida Electrical Power Plant Siting Act, utilizes river water for cooling tower makeup and discharges its cooling tower blowdown into the St. Johns River. When river water is used for cooling, evaporation increases concentrations of pollutants already in the river. The St. Johns River Power Park's certification conditions include variances from Class III water quality standards which allow the facility to operate its cooling system with river water. These variances have been granted for two-year periods, with the permittee being required to obtain variance renewals every two years in order to continue operation of the cooling system. (RT. 206, 218-19, 288-89). Salt drift as well as concentrations of pollutants in the blowdown are being assessed. RT. 284. Use of Seminole Kraft's current wastewater is not mentioned in modified Condition XXV, as drafted by the parties. By the time the Cedar Bay cogeneration facility needs cooling water, the Seminole Kraft plant may have become a cardboard recycling facility, which would discharge a different and potentially more useful wastewater than is currently being discharged by Seminole Kraft. The precise quality of any such future effluent cannot be predicted with a high degree of certainty at this time. (RT. 222-23, 238-43) But the applicants should "evaluate the practicability under [SJRWMD] rules of utilizing Seminole Kraft wastewater . . . [using] the best information . . . available," (RT. 243) during the post- certification proceeding new Condition XXV calls for, at least if reclaimed water is unavailable from the City of Jacksonville. If a primary source of cooling water other than groundwater proves unavailable or environmentally or economically impractical, as set out in modified Condition XXV, a maximum annual withdrawal from the Floridan aquifer for all facility uses not to exceed 1,990 million gallons and a maximum daily withdrawal not to exceed seven million gallons are reasonable for a period of seven years. (RT. 211,12, 296-97; AES Ex. 14R) In the event groundwater became the primary cooling source, proposed Condition xxv would require the applicants to implement their groundwater mitigation plan. (RT. 207, 229-30; AES Ex. 12R). Under this plan, the applicants would fund a free- flowing well inventory in Duval County. Additionally, they would provide a contribution of $380,000 per year for plugging free- flowing wells to reduce discharges from these wells by seven million gallons a day, if discharges of such magnitude are found. Thereafter, the applicants' annual contributions, which are to continue as long as groundwater is used for cooling, would fund a water conservation and reuse grants program in Duval County. The plan represents not only a water conservation measure but also serves as an economic incentive to the applicants to pursue necessary approvals for use of another primary cooling water source. Overall Evaluation Hamilton S. Oven, Jr. testified without contradiction that the project as now proposed "would produce minimal adverse effects on human health . . . the environment the ecology of the land and its wildlife . . . [and] the ecology of state waters and their aquatic life." RT.277. He also testified that the applicants' proposal would comply "with relevant agency standards." (RT.273) (although the evidence showed variances would be needed for cooling tower blowdown, at least if reclaimed water is not used.) Mr. Oven explained that he used permitting agencies' "criteria as a measuring stick to show compliance and to try to produce the minimal adverse impacts as allowed by regulatory policy." RT.274. Like Mr. Oven, Stephen Smallwood, Director of DER's Division of Air Resources Management interprets "minimal" as used in the Florida Electric Power Plant Siting Act to mean "minimal with respect to the standards of the agencies." DER's Exhibit No. 2R, P. 11. Otherwise, he explained, "[Y]ou'd have to perhaps conclude . . . that you couldn't license any coal-fired units [. T]hey'd either all have to be natural-gas fired or . . . nuclear or . . . solar." Id. DER staff concluded that the proposed Cedar Bay Cogeneration Project effects a reasonable balance between the need for the project and the environmental impacts associated with the project. On this basis, DER recommended that the project be certified subject to recommended conditions of certification.
Recommendation It is, accordingly, RECOMMENDED: That the Siting Board grant the site certification application filed by AES Cedar Bay, Inc. and Seminole Kraft Corporation, as amended, subject to the agreed conditions of certification attached to the recommended order as an appendix, and on condition that the facility use reclaimed wastewater as cooling tower make-up within seven years of beginning operation. DONE and ENTERED this 29th day of May, 1990, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1990. APPENDIX CONDITIONS OF CERTIFICATION When a condition is intended to refer to both AES Cedar Bay, Inc. and Seminole Kraft Corp., the term "Cedar Bay Cogeneration Project or the abbreviation "CBCP" or the term "permittees" will be used. Where a condition applies only to AES Cedar Bay, Inc. the term "AES Cedar Bay, Inc." or the abbreviation "AESCB" or the term "permittee," where it is clear that AESCB is the intended responsible party, will be used. Similarly, where a condition applies only to Seminole Kraft Corp., the term "Seminole Kraft Corp." or the abbreviation "SK" or the term "permittee," where it is clear that SK is the intended responsible party, will be used. The Department of Environmental Regulation may be referred to as DER or the Department. BESD represents the City of Jacksonville, Bio-Environmental Services Division. SJRWMD represents the St. Johns River Water Management District. GENERAL The construction and operation of CBCP shall be in accordance with all applicable provisions of at least the following regulations of the Department Chapters 17-2, 17-3, 17-4, 17-5, 17-6, 17-7, 17-12, 17-21, 17-22, 17-25 and 17-610, Florida Administrative Code (F.A.C.) or their successors as they are renumbered. AIR The construction and operation of AESCB shall be in accordance with all applicable provisions of Chapters 17-2, F.A.C. In addition to the foregoing, AESCB shall comply with the following condition of certification as indicated. Emission Limitations for AES Boilers Fluidized Bed Coal Fired Boilers (CFB) The maximum coal charging rate of each CFB shall neither exceed 104,000 lbs/hr, 39,000 tons per month (30 consecutive days, nor 390,000 tons per year (TPY). This reflects a combined total of 312,000 lbs/hr, 117,000 tons per month, and 1,170,000 TPY for all three CFBs. The maximum wood waste (primarily bark) charging rate to the No. 1 and No. 2 CFBs each shall neither exceed 15,653 lbs/hr, nor 63,760 TPY. This reflects a combined total of 31,306 lbs/hr, and 127,521 TPY for the No. 1 and No. 2 CFBs. The No. 3 CFB will not utilize woodwaste, nor will it be equipped with wood waste handling and firing equipment. The maximum heat input to each CFB shall not exceed 1063 MMBtu/hr. This reflects a combined total of 3189 MMBtu/hr for all three units. The sulfur content of the coal shall not exceed 1.7% by weight on an annual basis. The sulfur content shall not exceed 3.3% by weight on a shipment (train load) basis. Auxiliary fuel burners shall be fueled only with natural gas or No. 2 fuel oil with a maximum sulfur content of 0.3% by weight. The fuel oil with a maximum sulfur content of 0.3% by weight. The fuel oil or natural gas shall be used only for startups. The maximum annual oil usage shall not exceed 160,000 gals/year, nor shall the maximum annual natural gas usage exceed 22.4 MMCF per year. The maximum heat input from the fuel oil or gas shall not exceed 1120 MMBtu/hr for the CFBs. The CFBs shall be fueled only with the fuels permitted in Conditions 1a., 1b and 1e above. Other fuels or wastes shall not be burned without prior specific written approval of the Secretary of DER pursuant to condition XXI, Modification of Conditions. The CFBs may operate continuously, i.e. 8760 hrs/yr. Coal Fired Boiler Controls The emissions from each CFB shall be controlled using the following systems: Limestone injection, for control of sulfur dioxide. Baghouse, for control of particulate. Flue gas emissions from each CFB shall not exceed the following: Pollutant lbs/MMBtu Emission lbs/hr Limitations TPY TPY for 3 CFBs CO 0.19 202 823 2468 NOx 0.29 308.3 1256 3767 SO2 0.60(3-hr avg.) 637.8 -- -- 0.31(12 MRA) 329.5 1338 4015 VOC 0.016 17.0 69 208 PM 0.020 21.3 87 260 PM10 0.020 21.3 86 257 H2SO4mist 0.024 25.5 103 308 Fluorides 0.086 91.4 374 1122 Lead 0.007 7.4 30 91 Mercury 0.00026 0.276 1.13 3.4 Beryllium 0.00011 0.117 0.5 1.5 Note: TPY represents a 93% capacity factor. MRA refers to a twelve month rolling average. Visible emissions (VE) shall not exceed 20% capacity (6 min. average), except for one 6 minute period per hour when VE shall not exceed 27% capacity. Compliance with the emission limits shall be determined by EPA reference method tests included in the July 1, 1988 version of 40 CFR Parts 60 and 61 and listed in Condition No. 7 of this permit or be equivalent methods after prior DER approval. The CFBs are subject to 40 CFR Part 60, Subpart Da; except that where requirements within this certification are more restrictive, the requirements of this certification shall apply. Compliance Tests for each CFB Initial compliance tests for PM/PM10, SO2, NOx, CO, VOC, lead, fluorides, mercury, beryllium and H2SO4 mist shall be conducted in accordance with 40 CFR 60.8 (a), (b), (d), (e), and (f). Annual compliance tests shall be performed for PM. SO2, NOx, commencing no later than 12 months from the initial test. Initial and annual visible emissions compliance tests shall be determined in accordance with 40 CFR 60.11(b) and (e). The compliance tests shall be conducted between 90-100% of the maximum licensed capacity and firing rate of each permitted fuel. The following test methods and procedures of 40 CFR Parts 60 and 61 or other DER approved methods with prior DER approval shall be used for compliance testing: Method 1 for selection of sample site and sample traverses. Method 2 for determining stack gas flow rate. Method 3 or 3A for gas analysis for calculation of percent O2 and CO2. Method 4 for determining stack gas moisture content to convert the flow rate from actual standard cubic feet to dry standard cubic feet. Method 5 or Method 17 for particulate matter. Method 6, 6C, or 8 for SO2. Method 7, 7A, 7B, 7C, 7D, or 7E for nitrogen oxides. Method 8 for sulfuric acid mist. Method 9 for visible emissions, in accordance with 40 CFR 60.11. Method 10 for CO. Method 12 for lead. Method 13B for fluorides. Method 25A for VOCs. Method 101A for mercury. Method 104 for beryllium. Continuous Emission Monitoring for each CFB AESCB shall use Continuous Emission Monitors (CEMS) to determine compliance. CEMS for opacity, SO2, NOx, CO, and O2 or CO2, shall be installed, calibrated, maintained and operated for each unit, in accordance with 40 CFR 60.47a and 40 CFR 60 Appendix F. Each continuous emission monitoring system (CEMS) shall meet performance specifications of 40 CFR 60, Appendix B. CEMS data shall be recorded and reported in accordance with F.A.C. Chapter 17-2, F.A.C., and 40 CFR 60. A record shall be kept for periods of startup, shutdown and malfunction. A malfunction means any sudden and unavoidable failure of air pollution control equipment or process equipment to operate in a normal or usual manner. Failures that are caused entirely or in part by poor maintenance, careless operation or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions. The procedures under 40 CFR 60.13 shall be followed for installation, evaluation and operation of all CEMS Opacity monitoring system data shall be reduced to 6-minute averages, based on 36 or more data points, and gaseous CEMS data shall be reduced to 1-hour averages, based on 4 or more data points, in accordance with 40 CFR 60.13(h). For purposes of reports required under this certification, excess emissions are defined as any calculated average emission concentration, as determined pursuant to Condition No. 10 herein, which exceeds the applicable emission limit in Condition No. 3. Operations Monitoring for each CFB Devices shall be installed to continuously monitor and record steam production, and flue gas temperature at the exit of the control equipment. The furnace heat load shall be maintained between 70% and 100% of the design rated capacity during normal operations. The coal, bark, natural gas and No. 2 fuel oil usage shall be recorded on a 24-hr (daily) basis for each CFB. Reporting for each CFB A minimum of thirty (30) days prior notification of compliance test shall be given to DER's N.E. District office and to the BESD (Bio-Environmental Services Division) office, in accordance with 40 CFR 60. The results of compliance test shall be submitted to the BESD office within 45 days after completion of the test. The owner or operator shall submit excess emission reports to BESD, in accordance with 40 CFR 60. The report shall include the following: The magnitude of excess emissions computed in accordance with 40 CFR 60.13(h), any conversion factors used, and the date and time of commencement and completion of each period of excess emissions (60.7(c)(1)). Specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the furnace boiler system. The nature and cause of any malfunction (if known) and the corrective action taken or preventive measured adopted (60.7(c)(2)). The date and time identifying each period during which the continuous monitoring system was inoperative except for zero and span checks, and the nature of the system repairs of adjustments (60.7(c)(3)). When no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information shall be stated in the report (60.7(c)(4)). The owner or operator shall maintain a file of all measurements, including continuous monitoring systems performance evaluations; monitoring systems or monitoring device calibration; checks; adjustments and maintenance performed on these systems or devices; and all other information required by this permit recorded in a permanent form suitable for inspection (60.7(d)). Annual and quarterly reports shall be submitted to BESD as per F.A.C. Rule 17-2.700(7). Any change in the method of operation, fuels utilized, equipment, or operating hours or any other changes pursuant to F.A.C. Rule 17-2.100, defining modification, shall be submitted for approval to DER's Bureau of Air Regulation. AES - Material Handling and Treatment The material handling and treatment operations may be continuous, i.e. 8760 hrs/yr. The material handling/usage rates shall not exceed the following: Handling/Usage Rate Material TPM TPY Coal 117,000 1,170,000 Limestone 27,000 320,000 Fly Ash 28,000 336,000 Bed Ash 8,000 88,000 Note: TPM is tons per month based on 30 consecutive days, TPY is tons per year. The VOC emissions from the maximum No. 2 fuel oil utilization rate of 240 gals/hr, 2,100,000 gals/year for the limestone dryers; and 8000 gals/hr, 160,000 gals/year for the three boilers are not expected to be significant. The maximum emissions from the material handling and treatment area, where baghouses are used as controls for specific sources, shall not exceed those listed below (based on AP-42 factors): Particulate Emissions Source lbs/hr TPY Coal Rail Unloading Coal Belt Feeder neg neg neg neg Coal Crusher 0.41 1.78 Coal Belt Transfer neg neg Coal Silo neg neg Limestone Crusher 0.06 0.28 Limestone Hopper 0.01 0.03 Fly Ash Bin 0.02 0.10 Bed Ash Hopper 0.06 0.25 Ash Silo 0.06 0.25 Common Feed Hopper 0.03 0.13 Ash Unloader 0.01 0.06 The emissions from the above listed sources and the limestone dryers are subject to the particulate emission limitation requirement of 0.03 gr/dscf. However, neither DER nor BESD will require particulate tests in accordance with EPA Method 5 unless the VE limit of 5% opacity is exceeded for a given source, or unless DER or BESD, based on other information, has reason to believe the particulate emission limits are being violated. Visible Emissions (VE) shall not exceed 5% opacity from any source in the material handling and treatment area, in accordance with F.A.C. Chapter 17-2. The maximum emissions from each of the limestone dryers while using oil shall not exceed the following (based on AP-42 factors, Table 1, 3-1, Industrial Distillate, 10/86): Pollutant lbs/hr Estimated TPY Limitations TPY for 2 dryers PM/PM10 0.25 1.1 2.2 SO2 5.00 21.9 43.8 CO 0.60 2.6 5.2 NOx 2.40 10.5 21.0 VOC 0.05 0.2 0.4 Visible emissions from the dryers shall not exceed 5% opacity. If natural gas is used, emissions limits shall be determined by factors contained in AP-42 Table 1. 4-1, Industrial 10/86. The maximum No. 2 fuel oil firing rate for each limestone dryer shall not exceed 120 gals/hr, or 1,050,000 gals/year. This reflects a combined total fuel oil firing rate of 240 gals/hr, and 2,100,000 gals/year, for the two dryers. The maximum natural gas firing rate for each limestone dryer shall not exceed 16,800 CF per hour, or 147 MMCF per year. Initial and annual Visible Emission compliance tests for all the emission points in the material handling and treatment area, including but not limited to the sources specified in this permit, shall be conducted in accordance with the July 1, 1988 version of 40 CFR 60, using EPA Method 9. Compliance test reports shall be submitted to BESD within 45 days of test completion in accordance with Chapter 17- 2.700(7) of the Florida Administrative Code. Any changes in the method of operation, raw materials processed, equipment, or operating hours or any other changes pursuant to F.A.C. Rule 17-2.100, defining modification, shall be submitted for approval to DER's Bureau of Air Regulation (BAR). Requirements for the Permittees Beginning one month after certification, AESCB shall submit to BESD and DER's BAR, a quarterly status report briefly outlining progress made on engineering design and purchase of major equipment, including copies of technical data pertaining to the selected emission control devices. These data should include, but not be limited to, guaranteed efficiency and emission rates, and major design parameters such as air/cloth ratio and flow rate. The Department may, upon review of these data, disapprove the use of any such device. Such disapproval shall be issued within 30 days of receipt of the technical data. The permittees shall report any delays in construction and completion of the project which would delay commercial operation by more than 90 days to the BESD office. Reasonable precautions to prevent fugitive particulate emissions during construction, such as coating of roads and construction sites used by contractors, regrassing or watering areas of disturbed soils, will be taken by the permittees. Fuel shall not be burned in any unit unless the control devices are operating properly, pursuant to 40 CFR Part 60 Subpart Da. The maximum sulfur content of the No. 2 fuel oil utilized in the CFBs and the two unit limestone dryers shall not exceed 0.3 percent by weight. Samples shall be taken of each fuel oil shipment received and shall be analyzed for sulfur content and heating value. Records of the analysis shall be kept a minimum of two years to be available for DER and BESD inspection. Coal fired in the CFBs shall have a sulfur content not to exceed 3.3 percent by weight. Coal sulfur content shall be determined and recorded in accordance with 40 CFR 60.47a. AESCB shall maintain a daily log of the amounts and types of fuel used and copies of fuel analysis containing information on sulfur content and heating values. The permittees shall provide stack sampling facilities as required by Rule 17-2.700(4) F.A.C. Prior to commercial operation of each source, the permittees shall each submit to the BAR a standardized plan or procedure that will allow that permittee to monitor emission control equipment efficiency and enable the permittee to return malfunctioning equipment to proper operation as expeditiously as possible. Contemporaneous Emission Reductions This certification and any individual air permits issued subsequent to the final order of the Board certifying the power plant site under 403.509, F.S., shall require, that the following Seminole Kraft Corporation sources be permanently shut down and made incapable of operation, and shall turn in their operation permits to the Division of Air Resources Management's Bureau of Air Regulation, at the time of submittal of performance test results for AES's CFBs: the No. 1 PB (power boiler), the No. 2 PB, shall be specifically informed in writing within thirty days after each individual shut down of the above reference equipment. This requirement shall operate as a joint and individual requirement to assure common control for purpose of ensuring that all commitments relied on are in fact fulfilled. WATER DISCHARGES Any discharges into any waters of the State during construction and operation of AESCB shall be in accordance with all applicable provisions of Chapters 17-3, and 17-6, Florida Administrative Code, and 40 CFR, Part 423, Effluent Guidelines and Standards for Steam Electric Power Generating Point Source Category, except as provided herein. Also, AESCB shall comply with the following conditions of certification: Plant Effluents and Receiving Body of Water For discharges made from the AESCB power plant the following conditions shall apply: Receiving Body of Water (RBW) - The receiving body of water has been determined by the Department to be those waters of the St. Johns River or Broward River and any other waters affected which are considered to be waters of the State within the definition of Chapter 403, Florida Statutes. Point of Discharge (POD) - The point of discharge has been determined by the Department to be where the effluent physically enters the waters of the State in the St. Johns River via the SKC discharge outfall 001, which is the existing main outfall from the paper mill emergency overflow to the Broward River. Thermal Mixing Zones - The instantaneous zone of thermal mixing for the AESCB cooling system shall not exceed an area of 0.25 acres. The temperature at the point of discharge into the St. Johns River shall not be greater than 95 degrees F. The temperature of the water at the edge of the mixing zone shall not exceed the limitations of Section 17-3.05(1)(d), F.A.C. Cooling tower blowdown shall not exceed 95 degrees F as a 24-hour average, nor 96 degrees F as an instantaneous maximum. Chemical Wastes from AESCB - All discharges of low volume wastes (demineralizer regeneration, floor drainage, labs drains, and similar wastes) and chemical metal cleaning wastes shall comply with Chapter 17-6, F.A.C. at OSN 006 and 007 respectively. If violations of Chapter 17-6 F.A.C. occur, corrective action shall be taken by AESCB. These wastewaters shall be directed to an adequately sized and constructed treatment facility. pH - The pH of the combined discharges shall be such that the pH will fall within the range of 6.0 to 9.0 at the POD to the St. Johns River and shall not exceed 6.5 to 8.5 at the boundary of a 0.25 acre mixing zone. Polychlorinated Bipheny Compounds - There shall be no discharge of polychlorinated bipheny compounds. Cooling Tower Blowdown - AESCB's discharge from Outfall Serial Number 002 - Cooling Tower Blowdown shall be limited and monitored as specified below: a. Parameter Discharge Limit Monitoring Frequency Requirement Type Discharge Flow (mgd) Report 1/day Totalizer Discharge Temp (F) Instantaneous Maximum Continuous Recorder Total Residual Instantaneous Continuous Recorder Oxidants Maximum-.05 mg/l Time of Total 120 minutes Continuous Recorder Residual Oxidant per day Discharge (TR) Iron Instantaneous 1/week grab Maximum-0.5 mg/l pH 6-9 1/week grab There shall be no detectable discharge of the 125 priority pollutants contained in chemicals added for cooling tower maintenance. Notice of any proposed use of compounds containing priority pollutants shall be made to the DER Northeast District Office not later than 180 days prior to proposed use. Samples taken in compliance with the monitoring requirements specified above shall be taken at OSN 002 prior to mixing with any other waste stream. Seminole Kraft Corporation (SKC) shall shut down the mill's once thru cooling system upon completion of the initial compliance tests on the AESCB boilers conducted pursuant to Condition II.A.7. SKC shall inform the DER NE District Office of the shutdown and surrender all applicable operating permits for that facility. Combined Low Volume Wastes shall be monitored at OSN 006 with weekly grab samples. Discharge limitations are as follows: Daily Max Daily Avg Oil and Grease 20.0 mg/l 15.0 Copper-dissolved 1.0 mg/l* N/A Iron-dissolved 1.0 mg/l* N/A Flow Report N/A Heavy Metals Report (See Below) The pH of the discharge shall not be less than 7.0* standard units and shall be monitored once per shift, unless more frequent monitoring is necessary to quantify types of nonchemical metal cleaning waste discharged. Serial number assigned for identification and monitoring purposes. Heavy metal analysis shall include total copper, iron, nickel, selenium, and zinc. *Limits applicable only to periods in which nonchemical metal cleaning waste is being discharged via this OSN. Length of composite samples shall be during the periods (s) of nonchemical metal cleaning waste generation and discharge and shall be adequate to quantify differences in sources of waste generated (air preheater vs. boiler fireside, etc.). Chemical Metal Cleaning AESCB's discharge from outfall serial number 007 - metal cleaning wastes discharged to the Seminole Kraft treatment system. Such discharges shall be limited and monitored by the permittee as specified below: a. Effluent Characteristic Discharge Limits Monitoring Requirements Instantaneous Max Measurement Frequency Sample Type Flow - m3/day (MGD) - 1/batch Pump log Copper, Total 1.0 mg/l 1/ grab Iron, Total Batches 1.0 mg/l Report 1/ 1/batch grab logs Chemical metal-cleaning wastes shall mean process equipment cleaning including, but not limited to, boiler tubes cleaning. Waste treated and discharged via this OSN shall not include any stream for which an effluent guideline has not been established (40 CFR Part 423) for total copper and total iron at the above levels. Samples taken in compliance with the monitoring requirement specified above shall be taken at the discharge from the metal-cleaning waste treatment facility(s) prior to mixing with any other waste stream. Storm Water Runoff - During construction and operation discharge from the storm water runoff collection system from a storm event less than the once in ten year twenty-four hour storm shall meet the following limits and shall be monitored at OSN 003 by a grab sample once per discharge, but not more often than once per week:* Discharge Limits Effluent Characteristic Instantaneous Maximum Flow (MGD) Report TSS (mg/l) 50 pH 6.0-9.0 During plant operation, necessary measures shall be used to settle, filter, treat or absorb silT.containing or pollutanT.laden storm water runoff to limit the suspended solids to 50 mg/l or less at OSN 003 during rainfall periods less than the 10-year, 24-hour rainfall. Any underdrains must be checked annually and measures must be taken to insure that the underdrain operates as designed. Permittees will have to modify the underdrain system should maintenance measures be insufficient to achieve operation of the underdrains as designed. AES Cedar Bay must back flush the exfiltration/underdrain system at least once during the first six months of calendar each year. These backflushings must occur no closer than four calendar months from each other. In advance of backflushing the exfiltration/underdrain systems, the permittees must notify BESD and SJRWMD of the date and time of the backflushing. Control measures shall consist at the minimum of filters, sediment, traps, barriers, berms or vegetative planting. Exposed or disturbed soil shall be protected as soon as possible to minimize silt, and sedimenT.laden runoff. The pH shall be kept within the range of 6.0 to 9.0 in the discharge to the St. Johns River and 6.5 to 8.5 in the Broward River. Special consideration must be given to the control of sediment laden runoff resulting from storm events during the construction phase. Best management practices erosion controls should be installed early during the construction period so as to prevent the transport of sediment into surface waters which could result in water quality violations and Departmental enforcement action. Revegetation and stabilization of disturbed areas should be accomplished as soon as possible to reduce the potential for further soil erosion. Should construction phase runoff pose a threat to the water quality of state waters, additional measures such as treatment of impounded runoff of the use of turbidity curtains (screens) in on-site impoundments shall be immediately implented with any releases to state waters to be controlled. It is necessary that there be an entity responsible for maintenance of the system pursuant to Section 17- 25.027, F.A.C. Correctional action or modification of the system will be necessary should mosquito problems occur. AES Cedar Bay shall submit to DER with copy to BESD, erosion control plans for the entire construction project (or discrete phrases of the project) detailing measures to be taken to prevent the offsite discharge of turbid waters during construction. These plans must also be provided to the construction contractor prior to the initiation of construction. All swale and retention basin side slopes shall be seeded and mulched within thirty days following their completion and a substantial vegetative cover must be established within ninety days of seeding. Boiler Blowdown Discharge from boiler blowdown to the cooling tower from outfall serial Number 004 shall be limited and monitored as specified below: Effluent Discharge Limits Monitoring Characteristic Requirements Daily Sample Measurement Maximum Type Frequency TSS 30.0 grab 1/Quarter Oil and Grease 15.0 grab 1/Quarter Flow - Calculation 1/Quarter Construction Dewatering Discharge of construction dewatering to the SKC once-through cooling system from outfall serial number 005 shall be limited and monitored as specified below: Effluent Characteristic Discharge Limits Monitoring Requirements Instantaneous Maximum Measurement Frequency Sample Type Flow - m3/day (MGD) - daily Totalizer Turbidity (NTU) 164 1/week grab Aluminium mg/l 1.5 1/week grab Copper mg/l 0.046 daily composite Iron mg/l 0.3 1/week grab Lead mg/l 0.5 1/week grab Mercury mg/l 0.002 1/week grab Phenol ug/l 35.7 daily grab TSS mg/l 50.0 1/week grab pH 6.0-9.0 1/week grab Variance - In accordance with the provisions of Section 403.201 and 403.511(2), F.S., AES Cedar Bay is hereby granted a variance to water quality standards of Chapter 17- 3.121, F.A.C. for copper subject to the following conditions. AES Cedar Bay shall treat the construction dewatering discharge so as not to exceed 0.046 milligrams per liter for copper in the effluent from the dewatering treatment system. AES Cedar Bay shall do sufficient bench testing to demonstrate that it can meet the above limit for copper. AES Cedar Bay shall notify DER and BESD of the bench testing, and allow DER and BESD to be present if they so desire to observe the bench testing. In addition, AES Cedar Bay shall determine the amount of treatment and removal provided for iron, aluminum and lead by the method of treatment selected for copper. A report shall be submitted to DER and BESD summarizing the results of the bench testing of the proposed treatment technique. The variance shall be valid beginning with the start of dewatering and lasting until the end of construction dewatering but not to exceed a period of two years (not including periods of interruption in the construction dewatering). The Secretary has been delegated the authority to grant additional variances or mixing zones from water quality standards should AES Cedar Bay demonstrate any to be necessary after consideration of comments from the parties, public notice and an opportunity for hearing, pursuant to section 120.57 F.S., with final action by the Siting Board if a hearing is requested. In the absence of such final action by the Secretary, compliance with water quality standards shall be measured at the designated POD to the St. John River unless a zone of mixing is granted. Project discharge descriptions - Dewatering water, outfall 005, includes all surficial groundwater extracted during all excavation construction on site for the purpose of installing structures, equipment, etc. Discharges to the SKC once through cooling water system at a location to be depicted on an appropriate engineering drawing to be submitted to DER and BESD. Final discharge after treatment is to the St. Johns River. The permittee shall report to BESD the date that construction dewatering is expected to begin at least one week prior to the commencement of dewatering. Mixing zones - The discharge of the following pollutants shall not violate the Water Quality Standards of Chapter 17-3, F.A.C., beyond the edge of the designated instantaneous mixing zones as described herein. Such mixing zones shall apply when the St. Johns River is in compliance with the applicable water quality standard. Plant Dewatering Operations for two years from the date construction dewatering commences: Parameter Mixing Zone Aluminum 125,600 m2 31 acres Copper " 31 " Iron " 31 " Lead " 31 " Turbidity 12,868 m2 3.2 " Phenol 12,868 " 3.2 " The permittee shall report the date construction dewatering commences to the BESD. During operation of CBCP for the life of the facility: Iron 125,600 m2 (31 acre) mixing zone Chlorine 0 - not measurable in river Temp 1,013 m2 (0.25 acre) pH 1,013 m2 (0.25 acre) Variances to Water Quality Standards - In accordance with the provisions of Sections 403.201 and 403.511(2), F.S., permittees are hereby granted variances to the water Quality Standards of Chapter 17-3.121, F.A.C. for the following: During construction dewatering for a period not to exceed two years -- copper. The Secretary of DER may authorize variances for aluminum, iron, and lead upon a showing that treatment for copper can not bring these metals into compliance, however, any variance granted shall not cause or allow an exceedance of acute toxicity standards. During Operation -- iron. Such variances shall apply only as the natural background levels of the St. Johns River approach or exceed those standards. In any event, the discharge from the CBCP shall comply with the effluent limitations set forth in Paragraph III.A.12. At least 90 days prior to start of construction, AES shall submit a bioassay program to assess the toxicity of construction dewatering effluent to the DER for approval. Such program shall be approved prior to start of construction dewatering. Sanitary wastes from AESCB shall be collected and discharged for treatment to the SKC domestic wastewater treatment plant. Water Monitoring Programs Necessity and extent of continuation, and may be modified in accordance with Condition No. XXI, Modification of Conditions. Chemical Monitoring - The parameters described in Condition III.A. shall be monitored during discharge as described in condition III A. commencing with the start of construction or operation of the CFBs and reported quarterly to the Northeast District Office: Coal, Ash, and Limestone Storage Areas - runoff from the coal pile, ash and lime stone storage areas shall be directed to the SK waste-water treatment facility for discharge under its existing waste-water permit. Monitoring of metals, such as iron, copper, zinc, mercury silver, and aluminum, shall be done once a month during any month when a discharge occurs at OSC 008 or once per month from the collection pond. The ground water levels shall be monitored continuously at selected wells as approved by the SJRWMD. Chemical analysis shall be made on samples from all monitored wells identified in Condition III.F. below. The location, frequency and selected chemical analysis shall be as given in Condition IV.F. The ground water monitoring program shall be implemented at least one year prior to operation of the CFBs. The chemical analysis shall be in accord with the latest edition of Standard Methods for the Analysis of Water and Waistwater. The data shall be submitted within 30 days of collection/analysis to the SJRWMD. GROUND WATER Prior to the construction, modification, or abandonment of a production well for the SK paper mill, the Seminole Kraft must obtain a Water Well Construction Permit from the SJRWMD pursuant to Chapter 40C-3, Florida Administrative Code. Construction, modification, or abandonment of a production well will require modification of the SK consumptive use permit when such construction, modification or abandonment is other than that specified and described on SK's consumptive use permit application form. The construction, modification, or abandonment of a monitor well specified in condition IV.H. will require the prior approval of the Department. All monitor wells intended for use over thirty days must be noticed to BESD prior to construction or change of status from temporary to permanent. Well Criteria, Tagging and Wellfield Operating Plan Leaking or inoperative well casings, valves, or controls must be repaired or replaced as required to put the system back in an operative condition acceptable to the SJRWMD. Failure to make such repairs will be cause for deeming the well abandoned in accordance with Chapter 17.21.02(5), Florida Administrative Code, Chapter 373.309, Florida Statutes and Chapter 366.301(b), and .307(a), Jacksonville ordinance code. Wells deemed abandoned will require plugging according to state and local regulations. A SJRWMD issued identification tag must be prominently displayed at each withdrawal site by permanently affixing such tag to the pump, headgate, valve or other withdrawal facility as provided by Section 40C-2.401, Florida Administrative Code. The SK must notify the SJRWMD in the event that a replacement tag is needed. The permittees must develop and implement a Wellfield Operating Program within six (6) months of certification. This program must describe which wells are primary, secondary, and standby (reserve); the order of preference for using the wells; criteria for shutting down and restarting wells; describe AES Cedar Bay and SKC responsibilities in the operation of the well field, and any other aspects of well field management operation, such as who the well field operator is and any other aspects of wellfield management operation. This program must be submitted to the SJRWMD and a copy to BESD within six (6) months of certification and receive District approval before the wells may be used to supply water for the AES Cedar Bay Cogeneration plant. Maximum Annual Withdrawals Maximum annual withdrawals for AESCB from the Floridan aquifer must not exceed 1.99 billion gallons. Maximum daily withdrawals from the Florida aquifer for the AESCB must not exceed 7.0 million gallons. The use of the Floridan aquifer potable water for control of fugitive dust emissions is prohibited when alternatives are available, such as treated discharges, shallow aquifer wells, or stormwater. The use of Floridan aquifer potable water for the sole purpose of waste stream dilution is prohibited. Water Use Transfer The SJRWMD must be notified, in writing, within 90 days of the transfer of this certification. All transfers are subject to the provisions of Section 40C-2.351, Florida Administrative Code, which state that all terms and conditions of the permit shall be binding of the transferee. Emergency Shortages Nothing in this certification is to be construed to limit the authority of the SJRWMD to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or to formulate a plan for implementation during periods of water shortage, pursuant to Section 373.246, Florida Statutes. In the event of a water shortage, as declared by the District Governing Board, the AESCB shall adhere to reductions in water withdrawals as specified by the SJRWMD. Monitoring and Reporting The permittee shall maintain records of total daily withdrawals for the AESCB on a monthly basis for each year ending on December 31st. These records shall be submitted to the SJRWMD on Form EN-3 by January 31st of each year. Water quality samples shall be taken in May and October of each year from each production well. The samples shall be analyzed by an HRS certified laboratory for the following parameters: Magnesium Sulfate Sodium Carbonate Potassium Bi-Carbonate (or alkalinity if pH is 6.9 or lower) Chloride Calcium All major ion analysis shall be checked for anion-cation balance and must balance within 5 percent prior to submission. It is recommended that duplicates be taken to allow for laboratory problems or loss. The sample analysis shall be submitted to the SJRWMD by May 30 and October 30 of each year. AESCB shall mitigate any adverse impact caused by withdrawals permitted hereinon legal uses of water existing at the time of permit application. The SJRWMD has the right to curtail permitted withdrawal rates or water allocations if the withdrawals of water cause an adverse impact on legal uses of water which existed at the time of permit application. Adverse impacts are exemplified but not limited to: Reduction of well water levels resulting in a reduction of 10 percent in the ability of an adjacent well to produce water; Reduction of water levels in an adjacent surface water body resulting in a significant impairment of the use of water in that water body; Saline water intrusion or introduction of pollutants into the water supply of an adjacent water use resulting in a significant reduction of water quality; or Change in water quality resulting in either impairment or loss of use of a well or water body. The AESCB shall mitigate any adverse impact cause by withdrawals permitted herein on adjacent land uses which existed at the time of permit application. The SJRWMD had the right to curtail permitted withdrawal rates of water allocations if withdrawals of water cause any adverse impact on adjacent land use which existed at the time of permit application. Adverse impacts are exemplified by but not limited to: Significant reduction in water levels in an adjacent surface water body; Land collapse or subsidence caused by a reduction in water levels; or Damage to crops and other types of vegetation. Significant increases in Chloride levels such that it is likely that wells from the plant or those being impacted from the plant, will exceed 250 mg/l. Ground Water Monitoring Requirements After consultation with the DER, BESD, and SJRWMD, AESCB shall install a monitoring well network to monitor ground water quality horizontally and vertically through the aquifer above the Hawthorm Formation. Ground water quantity and flow directions will be determined seasonally at the site through the preparation of seasonal water table contour maps, based upon water level data obtained during the applicant's preoperational monitoring program. From these maps and the results of the detailed subsurface investigation of site stratigraphy, the water quality monitoring well network will be located. A ground water monitoring plan that meets the requirements of Section 17-28.700(d), F.A.C., shall be submitted to the Department's Northeast District Office for review. Approval or disapproval of the ground water monitoring plan shall be given within 60 days of receipt. Ground water monitoring shall be required at AESCB's pelletized ash storage area, each sedimentation pond, the lime mud storage area, and each coal pile storage area. Insofar as possible, the monitoring wells may be selected from the existing wells and piezometers used in the permittees preoperational monitoring program, provided that the wells construction will not preclude their use. Existing wells will be properly sealed in accordance with Chapter 17-21, F.A.C., whenever they are abandoned due to construction of facilities. The water samples collected from each of the monitor wells shall be collected immediately after removal by pumping of a quantity of water equal to at least three casing volumes. The water quality analysis shall be performed monthly during the year prior to commercial operation and quarterly thereafter. No sampling or analysis is to be initiated until receipt of written approval of a site-specific quality assurance project plant (QAPP) by the Department. Results shall be submitted to the BESD by the fifteenth (15th) day of the month following the month during which such analysis were performed. Testing for the following constituents is required around unlined ponds or storage areas: TDS Cadmium Conductance Zinc pH Copper Redox Nickel Sulfate Selenium Sulfite Chromium Color Arsenic Chloride Beryllium Iron Mercury Aluminum Lead Gross Alpha Conductivity shall be monitored in wells around all lined solid waste disposal sites, coal piles, and wastewater treatment and sedimentation ponds. Leachate Zone of Discharge Leachate from AESCB's coal storage piles, lime mud storage area or sedimentation ponds shall not cause or contribute to contamination of waters of the State (including both surface and ground waters) in excess of the limitations of Chapter 17-3, F.A.C., beyond the boundary of a zone of discharge extending to the top of the Hawthorne Formation below the wastelandfill cell or pond rising to a depth of 50 feet at a horizontal distance of 200 feet from the edge of the landfill or ponds. Corrective Action When the ground water monitoring system shows a potential for this facility to cause or contribute to a violation of the ground water quality standards of Chapter 17-3, F.A.C., at the boundary of the zone of discharge, the appropriate ponds or coal pile shall be bottom sealed, relocated, or the operation of the affected facility shall be altered in such a manner as to assure the Department that no violation of the ground water standards will occur beyond the boundary of the zone of discharge. CONTROL MEASURES DURING CONSTRUCTION Storm Water Runoff During construction, appropriate measures shall be used to settle, filter, treat or absorb silT.containing or pollutanT.laden storm water runoff to limit the total suspended solids to 50 mg/1 or less and pH to 6.0 to 9.0 at OSN 003 during rainfall events that are lesser in intensity than the 10-year, 24-hour rainfall, and to prevent an increase in turbidity of more than 29 NTU above background in waters of the State. Control measures shall consist at the minimum of sediment traps, barriers, berms or vegetative planting. Exposed or disturbed soil shall be protected as soon as possible to minimize silT. and sedimenT.laden runoff. The pH shall be kept within the range of 6.0 to 9.0 at OSN 003. Stormwater drainage to the Broward River or St. Johns River shall be monitored as indicated below: Monitoring Point Parameters Frequency Sample Type *Storm water drainage BOD5, TOC, sus- ** ** to the Broward River pended solids, from the runoff turbidity, dis- treatment pond solved oxygen, pH, TKN, Total phosphorus, Fecal Coliform, Total Coliform Oil and grease ** ** *Monitoring shall be conducted at suitable points for allowing a comparison of the characteristics of preconstruction and construction phase drainage and receiving waters. **The frequency and sample type shall be as outlined in a sampling program prepared by the applicant and submitted at least ninety days prior to start of construction for review and approval by the DER Northeast District Office. The District Office will furnish copies of the sampling program to the BESD and SJRWMD and shall indicate approval or disapproval within 60 days of submittal. Sanitary Wastes Disposal of sanitary wastes from construction toilet facilities shall be in accordance with applicable regulations of the Department and the BESD. Environmental Control Program Each permittee shall establish an environmental control program under the supervision of a qualified person to assure that all construction activities conform to good environmental practices and the applicable conditions of certification. A written plan for controlling pollution during construction shall be submitted to DER and BESD within sixty days of issuance of the Certification. The plan shall identify and describe all pollutants and waste generagted during construction and the methods for control, treatment and disposal. Each permittee shall notify the Department's Northeast District Office and BESD by telephone within 24 hours if possible if unexpected harmful effects or evidence of irreversible environmental damage are detected by it during construction, shall immediately report in writing to the Department, and shall within two weeks provide an analysis of the problem and a plan to eliminate or significantly reduce the harmful effects or damage and a plan to prevent reoccurrence. Construction Dewatering Effluent Maximum daily withdrawals for dewatering for the construction of the railcar unloading facility must not exceed 1.44 million gallons, except during the first 30 days of dewatering. Dewatering for the construction of the railcar unloading facility shall terminate no later than nine months from the start of dewatering. Should the permittee's dewatering operation create shoaling in adjacent water bodies, the permittee is responsible for removing such shoaling. All offsite discharges resulting from dewatering activities must be in compliance with water quality standards required by DER Chapters 17-3 and 17-4, F.A.C., or such standards as issued through a variance by DER. SAFETY The overall design, layout, and operation of the facilities shall be such as to minimize hazards to humans and the environment. Security control measures shall be utilized to prevent exposure of the public to hazardous conditions. The Federal Occupational Safety and Health Standards will be complied with during construction and operation. The Safety Standards specified under Section 440.56, F.S., by the Industrial Safety Section of the Florida Department of Commerce will also be complied with. CHANGE IN DISCHARGE All discharges or emissions authorized herein to AESCB shall be consistent with the terms and conditions of this certification. The discharge of any pollutant not identified in the application or any discharge more frequent than, or at a level in excess of, that authorized herein shall constitute a violation of this certification. Any anticipated facility expansions, production increases, or process modification which will result in new, different or increased discharges or expansion in steam generating capacity will require a submission of new or supplemental application to DER's Siting Coordination Office pursuant to Chapter 403, F.S. NONCOMPLIANCE NOTIFICATION If, for any reason, either permittee does not comply with or will be unable to comply with any limitation specified in this certification, the permittee shall notify the Deputy Assistant Secretary of DER's Northeast District and BESD office by telephone as soon as possible but not later than the first DER working day after the permittee becomes aware of said noncompliance, and shall confirm the reported situation in writing within seventy-two (72) hours supplying the following information: A description and cause of noncompliance; and The period of noncompliance, including exact dates and times; or, if not corrected, the anticipated time the noncompliance is expected to continue, and steps being taken to reduce, eliminate, and prevent recurrence of the noncomplying event. FACILITIES OPERATION Each permittee shall at all times maintain good working order and operate as efficiently as possible all of its treatment or control facilities or systems installed or used by the permittee to achieve compliance with the terms and conditions of this certification. Such systems are not to be bypassed without prior Department (Northeast District) after approval and after notice to BESD except where otherwise authorized by applicable regulations. ADVERSE IMPACT The permittees shall take all reasonable steps to minimize any adverse impact resulting from noncompliance with any limitation specified in this certification, including, but not limited to, such accelerated or additional monitoring as necessary to determine the nature and impact of the noncomplying event. RIGHT OF ENTRY The permittees shall allow the Secretary of the Florida Department of Environmental Regulation and/or authorized DER representatives, and representatives of the BESD and SJRWMD, upon the presentation of credentials: To enter upon the permittee's premises where an effluent source is located or in which records are required to be kept under the terms and conditions of this permit; and To have access to and copy all records required to be kept under the conditions of this certification; and To inspect and test any monitoring equipment or monitoring method required in this certification and to sample any discharge or emissional pollutants; and To assess any damage to the environment or violation of ambient standards. SJRWMD authorized staff, upon proper identification, will have permission to enter, inspect, and observe permitted and related CUP facilities in order to determine compliance with the approved plans, specifications, and conditions of this certification. BESD authorized staff, upon proper identification, will have permission to enter, inspect, sample any discharge, and observe permitted and related facilities in order to determine compliance with the approved plans, specifications, and conditions of this certification. REVOCATION OR SUSPENSION This certification may be suspended, or revoked pursuant to Section 403.512, Florida Statutes, or for violations of any Condition of Certification. CIVIL AND CRIMINAL LIABILITY This certification does not relieve either permittee from civil or criminal responsibility or liability for noncompliance with any conditions of this certification, applicable rules or regulations of the Department, or Chapter 403, Florida Statutes, or regulations thereunder. Subject to Section 403.511, Florida Statutes, this certification shall not preclude the institution of any legal action or relieve either permittee from any responsibilities or penalties established pursuant to any other applicable State Statutes or regulations. PROPERTY RIGHTS The issuance of this certification does not convey any property rights in either real or personal property, tangible or intangible, nor any exclusive privileges, nor does it authorize any injury to public or private property or any invasion of personal rights, nor any infringement of Federal, State or local laws or regulations. The permittees shall obtain title, lease or right of use to any sovereign submerged lands occupied by the plant, transmission line structures, or appurtenant facilities from the State of Florida. SEVERABILITY The provisions of this certification are severable, and, if any provision of this certification or the application of any provision of this certification to any circumstances is held invalid, the application of such provision to other circumstances and the remainder of the certification shall not be affected thereby. DEFINITIONS The meaning of terms used herein shall be governed by the definitions contained in Chapter 403, Florida Statutes, and any regulation adopted pursuant thereto. In the event of any dispute over the meaning of a term used in these general or special conditions which is not defined in such statutes or regulations, such dispute shall be resolved by reference to the most relevant definitions contained in any other state or federal statute or regulation or, in the alternative, by the use of the commonly accepted meaning as determined by the Department. REVIEW OF SITE CERTIFICATION The certification shall be final unless revised, revoked, or suspended pursuant to law. At least every five years from the date of issuance of this certification or any National Pollutant Discharge Elimination Control Act Amendments of 1972 for the plant units, the Department shall review all monitoring data that has been submitted to it or it's agent(s) during the preceding five- year period for the purpose of determining the extent of the permittee's compliance with the conditions of this certification of the environmental impact of this facility. The Department shall submit the results of it's review and recommendations to the permittees. Such review will be repeated at least every five years thereafter. MODIFICATION OF CONDITIONS The conditions of this certification may be modified in the following manner: The Board hereby delegates to the Secretary the authority to modify, after notice and opportunity for hearing, any conditions pertaining to consumptive use of water, reclaimed water, monitoring, sampling, ground water, surface water, mixing zones, or variances to water quality standards, zones of discharge, leachate control programs, effluent limitations, air emission limitations, fuel, or solid waste disposal, right of entry, railroad spur, transmission line, access road, pipelines, or designation of agents for the purpose of enforcing the conditions of this certification. All other modifications shall be made in accordance with Section 403.516, Florida Statutes. FLOOD CONTROL PROTECTION The plant and associated facilities shall be construed in such a manner as to comply with the Duval County flood protection requirements. EFFECT OF CERTIFICATION Certification and conditions of certification are predicated upon design and performance criteria indicated in the application. Thus, conformance to those criteria, unless specifically amended, modified, or as the Department and parties are otherwise notified, is binding upon the applicants in the preparation, construction, and maintenance of the certified project. In those instances where a conflict occurs between the application's design criteria and the conditions of certification, the conditions shall prevail. NOISE To mitigate the effects of noise produced by the steam blowout of steam boiler tubes, the permittees shall conduct public awareness campaigns prior to such activities to forewarn the public of the estimated time and duration of the noise. The permittees shall comply with the applicable noise limitations specified in Environmental Protection Board Rules or The City of Jacksonville Noise Ordinance. USE OF RECLAIMED WATER AESCB The AESCB shall design the Cogeneration Facility so as to be capable of using reclaimed and treated domestic wastewater from the City of Jacksonville for use as cooling tower makeup water. Reclaimed water shall be utilized as soon as it becomes available. Ground water may be used only as a backup to the reclaimed water after that time. Before use of reclaimed water from the City by the permittee, it will be treated to a level suitable for use as cooling tower makeup water. Reclaimed water used in the AESCB cooling tower shall be disinfected prior to use. Disinfectant levels in the cooling tower makeup water shall be continuously monitored, prior to insertion in the cooling tower. The reclaimed water shall be treated so as to obtain no less than a 1.0 mg/liter free chlorine residual after fifteen (15) minutes contact time or its equivalent. Chlorination shall occur at a turbidity of 5 Nephlometric Turbidity Units (NTU) or less, unless a lesser degree of disinfection is approved by the Department upon demonstration of successful viral kill. Within 120 days following issuance of a modification to the City of Jacksonville's DER wastewater discharge permit allowing Jacksonville, as part of its comprehensive reuse plan, to supply reclaimed water to the Cedar Bay Cogeneration Project, AES Cedar Bay, Inc. shall submit a request for modification to DER for use of reclaimed water for cooling purposes, seeking to make any necessary modifications to their facility and the conditions of certification as may be necessary to allow use of reclaimed water. Its request shall include plans, technical analyses, and modelling needed to evaluate the environmental effects of the proposed modifications. Its request for modification shall also include a financial analysis of the costs of any necessary modifications to its facility, additional operating costs, and the financial impact of these additional costs on AES Cedar Bay, Inc. If DER requires data or analyses concerning the cogeneration facility or its operation, or its discharges or emissions in order to evaluate Jacksonville's application to modify its domestic wastewater discharge permit, AES will supply the necessary information in a timely fashion. The Secretary, as prescribed in Condition XXI, Modification of Conditions, may modify the conditions of certification contained herein as may be necessary to implement the use of reclaimed water. The use of reclaimed water shall be contingent upon a determination of it being financially practicable, and it meeting applicable environmental standards. Prior to any such action by the Secretary, the Secretary shall request and consider a report by the SJRWMD as to the request for modification for the use of reclaimed water by AES Cedar Bay, Inc. Possible Use of Reclaimed Water The use of reclaimed water as described above shall not be limited to cooling tower makeup. Reuse water, if available may be used for fugitive particulate emission control, washdown, and any other feasible use for non-potable water which would not require additional treatment. ENFORCEMENT The Secretary may take any and all lawful actions as he or she deems appropriate to enforce any condition of this certification. Any participating agency (federal, state, local) may take any and all lawful actions to enforce any condition of this certification that is based on the rules of that agency. Prior to initiating such action the agency head shall notify the Secretary of that agency's proposed action. BESD may initiate any and all lawful actions to enforce the conditions of this certification that are based on the Department's rules, after obtaining the Secretary's written permission to so process on behalf of the Department. ENDANGERED AND THREATENED SPECIES Prior to start of construction, AESCB shall survey the site for endangered and threatened species of animal and plant life. Plant species on the endangered or threatened list shall be transplanted to an appropriate area if practicable. Gopher Tortoises and any commensals on the rare or endangered species list shall be relocated after consultation with the Florida Game and Fresh Water Fish Commission. A relocation program, as approved by the FGFWFC, shall be followed. PETROLEUM STORAGE TANKS AES Cedar Bay shall provide clean-up of the #1 underground diesel fuel storage tank site, which is listed under the EDI program, in accordance with F.A.C. Chapter 17-770. AES shall complete an Initial Remedial Action (IRA) in accordance with Rule 17-770.300, F.A.C., prior to construction dewatering. DER and BESD will receive written notification ten working days prior to initiation of the IRA. AES shall determine the extent of contamination. AES Cedar Bay shall then design and install a pump and treatment system at the site, which will create a reverse hydraulic gradient that will prevent the further spread of the contamination by the dewatering operation. This plan shall be submitted to DER and BESD for approval, thirty days prior to the start of construction dewatering, and shall be implemented prior to commencement of the dewatering operation. Furthermore, AES Cedar Bay shall submit a Quality Assurance Report (CAR) and a Remedial Action plan (RAP), in accordance with a F.A.C. Chapter 17-770 to DER for approval with copies to BESD thirty days prior to the start of construction dewatering. AES Cedar Bay shall provide complete site rehabilitation in accordance with F.A.C Chapter 17-770. AES Cedar Bay shall develop a QAPP, CAR, and RAP as required and in accordance with Chapter 17-700, F.A.C. for the site listed in XXVIII, C and D below, and submit these plans to DER for approval with copies to BESD thirty days prior to the start of construction dewatering. Prior to construction dewatering, at the underground diesel fuel storage tank #2 site, AES Cedar Bay shall: Perform an IRA with F.A.C. Rule 17-770.300. Determine the extent of down gradient contamination and submit that information to BESD, and DER prior to installation of the well described in paragraph C.4 below. Establish a series of groundwater level monitoring wells at intervals of approximately 250 feet from the coal unloading site to the #2 tank for determination of the groundwater dewatering cone of influence. Daily groundwater levels shall be recorded for each of these wells during construction dewatering. A background well with a continuous water level recorder shall be installed, at a site that would not be influenced by the dewatering operations, to determine ambient conditions at the site. Install a monitoring well with a continuous water level recorder which will be used to trigger implementation of the RAP. The well will be located 150 feet down gradient from the boundary of the plume of contamination determined above in XXVII C.2. If the epiezometric head in the trigger well drops 6 inches below ambient conditions as compared to the background well, then AES Cedar Bay shall notify DER and BESD of a verified drop of 6 inches or more in the trigger well within three working days and the appropriate portion of the RAP shall be implemented by AES Cedar Bay. AES Cedar Bay shall submit a plan for the location and construction of the monitoring wells described above in paragraph C.3 and C.4 to DER and BESD for approval. AES Cedar Bay shall submit monthly reports of the groundwater level recordings to DER and BESD. Prior to construction dewatering, at each of the following tank sites: underground diesel fuel storage tank #3; underground #6 fuel oil shortage tank #5; above-ground #6 fuel oil storage tank #2: "pitch tank" located North of the lime kilns; AES Cedar Bay shall: Install 2 down gradient monitoring wells. AES Cedar Bay shall submit a plan for location and construction of these 8 wells to DER and BESD for approval. BESD shall have the opportunity to observe the construction of these wells. Sample the above reference wells for parameters listed in 17-770.600(8), F.A.C. In addition, AES Cedar Bay shall sample the monitoring wells at the above-ground tank sites for acetone and carbon disulfide. AES Cedar Bay shall split samples with BESD if BESD so requests and submit a report of the analytical results to DER and BESD within ten days of receipt of analysis by AES Cedar Bay. If contamination is found in the above reference wells in excess of the clean-up criteria referenced in 17- 770.730(5)(a)2., F.A.C., a QAPP, CAR and an RAP will be development and, DER and BESD shall be provide with that information prior to the installation of the well described in paragraph D.4 below. Install a trigger well with a continuous water level recorder which will be located 150 feet down gradient from the boundary of the plume of contamination determined above in XXVIII.D.3. If the piezometric head in the trigger well drops 6 inches below ambient conditions as compared to the background well then AES Cedar Bay shall notify DER and BESD of a verified drop of 6 inches or more in the trigger well within three working days and the appropriate portion of the RAP shall be implemented by AES Cedar Bay. AES Cedar Bay shall submit a plan for the location and construction of the monitoring wells described above in paragraph D.4, to DER and BESD for approval. AES Cedar bay shall submit monthly reports of the groundwater level recordings to DER and BESD. Implementation of the appropriate portion of the RAP shall commence within 14 days of the determination that the construction dewatering cone of depression will reach any of contaminated sites. AES Cedar Bay shall monitor the construction dewatering effluent from their treatment system, once a week during dewatering, for the following criteria: Benzene 1 ugle; Total VOA 40 ug/l Total Naphthalenes (Total-naphthalenes = methyl napthalenes) 100 ugle; and Total Residual Hydrcarbons 5 mg/l. If the concentrations of contaminants in the effluent rise above those in the above list, AES Cedar Bay shall take corrective actions to return concentrations to acceptable levels. If any disagreement arises regarding this condition, the parties agree to submit the matter for an expedited hearing to the DOAH and shall request assignment of the hearing officer who has heard the case, if possible, pursuant to 403.5064, F.S. The informal dispute resolution process shall be used. COPIES FURNISHED: Terry Cole, Esquire Scott Shirley, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blairstone Road Suite C Tallahassee, FL 32301 Betsy Hewitt, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, FL 32399-2400 Kathryn Mennella, Esquire St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Richard L. Maguire, Esquire Towncentre, Suite 715 421 West Church Street Jacksonville, FL 32202 Katherine L. Funchess, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 William C. Bostwick, Esquire 1550-2 Hendricks Avenue Jacksonville, FL 32201 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue On December 13, 1989, Florida Power Corporation (FPC) filed a wetland resource permit application with the Florida Department of Environmental Regulation (DER) for a project to construct, operate and maintain a 69 kilovolt (kV) electrical transmission line in Osceola County. The application described the placement of power line poles in jurisdictional wetlands. On September 28, 1990, DER issued its notice of permit denial, DER File No. 49-173789-4. The ultimate issue for determination is whether FPC is entitled to the permit. Ancillary issues include the scope of "cumulative impacts" to be considered; the scope of "secondary impacts"; whether alternative sites must be considered; whether FPC's clearing of the right of way constituted dredge and fill activity; and whether mitigation is required, and if so, whether the mitigation offered by the applicant is adequate.
Findings Of Fact FPC, whose headquarters are located at 3201 34th Street, South, St. Petersburg, Florida, 33733, is required by Florida Statutes and regulations promulgated by the Florida Public Service Commission (PSC) to provide electric utility service in the vicinity of the proposed transmission line. DER, 2600 Blair Stone Road, Tallahassee, Florida 32399-2900 is an executive agency directly responsible for prevention of pollution of the air and waters of this State. Pursuant to that obligation, Sections 403.91-403.929, Florida Statutes, and Chapter 17-312, F.A.C., DER regulates proposed dredging and filling activities in waters of the State. FPC, pursuant to its statutory and regulatory mandate, transmits electricity through 33 counties within the state, providing actual service to customers in 32 counties. FPC's electrical transmission lines range in voltage capacity from 69 kV (69,000 volts) to 500 kV (500,000 volts). Considering other utilities, there are approximately 7,000 miles of 69 kV electrical transmission lines within the state, over 1,855 miles of which are operated and maintained by FPC. The Project The electrical transmission line at issue in the instant proceeding will traverse approximately 10 miles. It intercepts two areas of jurisdictional wetlands; however, the main point of contention in the permitting proceeding is the six acres of wetland vegetation which have been cleared in the vicinity of where the transmission line corridor intersects the main crossing of Reedy Creek. The original application for this project was 14 miles long; however, FPC and DER agreed to modify the application by separating the northern-most four miles of the project and submitting it as a separate application. The northern segment starts at the Intercession City substation and proceeds easterly along an existing transmission line corridor in the right of way of SR 17/92 to Old Tampa Road and then turns south terminating at the Poinciana Industrial Park. The proposed transmission line which is the subject of this proceeding starts from the Poinciana Industrial Park and proceeds south, then crosses Reedy Creek in a northeast to southwest direction and continues south, ultimately terminating at the Poinciana substation. There are references in the application to a 72 kV line. 72,000 volts is the maximum operating voltage. 69,000 volts is the normal daily load. Direct dredge and fill impacts associated with the proposed construction include 301 cubic yards of fill, which includes the wooden transmission poles as well as crushed rock backfill at the base of those poles. This fill material would be placed over .00846 acres. This fill amount equates to an area analogous to a 20 foot by 20 foot room. Initial placement and continued maintenance of the poles and lines require clearing. This enables access by equipment and prevents vegetation from interfering with the lines. Clearing is essential for the safety and reliability of the electrical power distribution system. The wood electrical transmission line poles will be spaced approximately 300 foot apart in an area of vegetation clearing 60 feet wide. The major jurisdictional area north and south of the Reedy Creek crossing is approximately 4,400 feet long. The Applicant will, after construction, undertake corridor maintenance on a three to five year cycle. An area will be kept clear 50 foot square around each wooden pole structure along the proposed transmission line. Vegetation will be maintained at ground or water level for 17 feet on either side of the wooden utility poles. The outer 13 feet on each side will be allowed to regenerate except for fast growing trees and other vegetation with the potential to reach 30 feet prior to the next regularly scheduled maintenance period. Fast growing trees within the 13 foot outer area on either side of the corridor will be girdled or treated with herbicides by specific and selective application. The only herbicides to be used will be those that are EPA approved for use in the State of Florida. All exotic or nuisance target species will be removed from the entire right of way as part of FPC's maintenance program. The Application Process FPC submitted a wetland resource permit application for this project on December 6, 1989, received by the DER Central Florida District on December 13, 1989. DER requested additional information on January 12, 1990, and the Applicant submitted responses by letter dated April 20, 1990. On May 18, 1990, DER submitted a second request for additional information, which was responded to by FPC at a meeting with DER Central District staff in Orlando on June 5, 1990, and by a follow-up letter dated June 20, 1990. Neither of DER's requests for additional information required information relative to alternate routes for the proposed transmission line; however, a letter from DER to FPC dated June 20, 1990 states that mitigation would be required since an alternative route was not presented and impacts could not be reduced any further. The application was deemed complete on June 22, 1990. Subsequently, FPC proposed a preservation mitigation of 1:1 ratio by offering for preservation a 6-acre area of Reedy Creek Swamp near the Intercession City substation. FPC waived DER's 90 day statutory time clock in which it has to act on complete permit applications until October 1, 1990. The DER Central District Office issued a notice of permit denial regarding FPC's project on September 28, 1990. The maintenance plan described in paragraph 6, above, includes a departure from FPC's past practices. The plan and specifics of the 13-foot border areas were provided to DER during the hearing on December 3, 1991. Without objection by DER, the hearing proceeded on the application thus modified. Reedy Creek Swamp and the Project Context Reedy Creek Swamp is located in Orange, Osceola and Polk Counties. It is the only large mixed wetland forest system in Osceola County and is one of the largest systems in central Florida. It provides valuable forested wetland habitat for numerous plant and animal species. The proposed dredging and filling activity which is the subject of this application occurs in the South Reedy Creek basin. It is part of the Reedy Creek and its associated floodplains and uplands that drain south-southeast of Interstate-4. South Reedy Creek basin, as described in the instant proceeding, consists of over 92,000 acres of upland and wetland habitats. Approximately 31,448 acres of contiguous forested wetland are contained within that 92,000 acres. Based on the limited nature of the project's corridor, the six acre disturbance has been correctly characterized as de minimis. Since the turn of the century the South Reedy Creek basin has been the subject of extensive logging and silviculture impacts through either clearcutting or selective timbering which continues to this day. The basin is also the subject of an ongoing effort by the South Florida Water Management District for land aquisition and management. Approximately 7,000 acres of the basin have been bought or are under plans to purchase for protection. Commercial and environmental interests command the basin's resources. Clearing the Way FPC's clearing of the six acres of forested wetland was accomplished from March 12 through June 7, 1990. Clearing occurred during the processing of the dredge and fill application in order to take advantage of dry conditions and to facilitate bringing the electrical transmission line into service in accordance with FPC's established schedule. All vegetation in the wetland area was removed at ground or water level and the material was then either burned on site or removed to upland locations. Charles Duncan, FPC's chief inspector for transmission line construction, made regular spot investigations of all construction and assured that the hand clearing and low pressure rubber wheeled and tracked vehicles used by FPC did not result in significant soil disturbance. It is unrefuted that between June and November 1990, well after FPC's clearing was completed, considerable silvicultural activity occurred immediately adjacent to the corridor, both east and west. John Vogel, an expert in forestry and the effects of clearcutting, provided photographic evidence of those silvicultural entities' use of the corridor and identified the adjacent property owner as the party actually responsible for that activity. These facts, and DER employee Don Medellin's tacit admission that what he saw on his June 7, 1990, site inspection clearly could have been accomplished by parties other than FPC, leads to the specific finding that no FPC-initiated dredging and filling has occurred within the corridor. Dredging and filling will occur when the poles are placed. The evidence submitted by FPC, including rainfall and flow discharge information for the relevant time period, closely corroborate Mr. Duncan's eye witness accounts that clearing was conducted during a period when the wetland areas were extremely dry. Mr. Duncan further noted that the dry conditions precluded the burning of all of the collected and stockpiled debris beyond the week of June 7, 1990, and those conditions account for some of Mr. Medellin's observations of stockpiled material during his visit to the site on June 7, 1990. Considering the site conditions at the time of clearing and the absence of running water within Reedy Creek itself, there were effectively no water quality consequences to the creek from the clearing activity. Silt screens were constructed on the site on May 1, 1990, and according to Dr. Miles Smart, an expert in water chemistry and limnology, that precaution adequately safeguarded water quality within Reedy Creek during subsequent rain events. DER witness, Don Medellin, confirmed that the Department had no knowledge of any water quality violations having occurred during the FPC construction activity. The Public Interest Criteria Much, if not all, of the Department's opposition to the proposed project is based on the clearing of vegetation as opposed to pole placement and filling associated therewith. In this case the impacts of the clearing are already known. In the traditional dredge and fill case, the applicant provides evidence, testimony and test results predicting the impacts of the proposed construction activity, whereas in the instant case, the Applicant has the benefit of providing reasonable assurances by documenting the consequences of its acts. In the instant case, FPC provided a detailed analysis of biological and water quality ramifications from its clearing. DER presented several witnesses who contested the positive or neutral effects that the proposed transmission line corridor would have on wildlife, citing nest parasitism, predation, fragmentation, and reduction in patch size as examples of adverse impacts that the proposed line could impose on wildlife. DER witness, Dr. Francis Putz, testified that the project could cause unraveling of the forested wetland and sunscalding of newly exposed trees along the edge of the corridor. However, no DER witness presented any quantitative data or analyses that would indicate that any of the possible adverse consequences mentioned above were, in fact, occurring or reasonably likely to occur in Reedy Creek as a result of FPC's project. It is undisputed by either party that clearing of the proposed transmission line corridor resulted in a change to that specific six acre area from a forested wetland to a herbaceous/shrub wetland. Furthermore, it is undisputed that FPC's proposed maintenance practices will maintain that change over the expected 30-year operational life of the transmission line. However, different is not synonymous with adverse. The structural change to the wetland has not had, and will not have, any deleterious consequences to water quality within Reedy Creek. Dr. Miles Smart, the only expert in water chemistry and limnology to testify, presented testimony, based on samples of water quality in Reedy Creek and available historical water quality data, that water quality approximately a year and a half after initial clearing was no different than the ranges observed over the ten year period for which historical information was available. In most cases, water quality was the same or extremely close for the sampled parameters which included water temperature, pH, dissolved oxygen, alkalinity, turbidity, concentrations of nitrogen, phosphorous, total kjeldahl nitrogen and orthophosphate nitrogen. FPC's proposed maintenance practices which include the use of EPA approved herbicides for use in control of target species, will pose no problem to water quality. A study of twenty-two transmission line rights of way in the State of New York found virtually no water quality problems as a result of maintenance of those transmission lines. It was uncontroverted that FPC has never experienced water quality violations as a result of its management practices, nor has it been the focus of any enforcement or noncompliance action with respect to any previous clearing or construction activity it has undertaken. The clearing created no impediment to flow or impounding. The continuing use of silt screens and hay bales by FPC during pole installation will reduce the likelihood of erosion or shoaling. Extensive ground cover currently present in the corridor and FPC's proposed preservation of this herbaceous/shrub vegetation will further minimize any possible shoaling and erosion. Vegetative surveys conducted approximately a year and a half after the initial clearing show that the corridor has revegetated with 85 percent mean herbaceous plant cover in the corridor. Species composition of vegetation is similar in the corridor and no new species have been introduced nor have any been eliminated as a result of the clearing activity. Based on primary productivity and decomposition rate studies, FPC's clearing activity and the vegetative change that has resulted predictably should increase net primary productivity threefold over what exists in the adjacent forest, primary productivity being simply biomass accumulated over a period of time. Several DER witnesses testified to the possible introduction of nuisance or invader species as a result of FPC's clearing activity and subsequent maintenance of the corridor. However, FPC's proposed maintenance practices will eliminate those target species which inhibit the growth of other species, resulting in a wetland community having similar shrub and herb strata to that of the adjacent forest. DER admitted that any proliferation of nuisance species can be controlled with proper management techniques and has required such control as mitigation for clearing associated with an electrical transmission line project by Florida Power and Light Company in Lee County. Left to natural processes, the cleared corridor would eventually return to a forested area similar in species composition to the adjacent forest within several years. This rapid regeneration comports with experiences in other transmission line projects and in the silviculture industry. Qualitative analysis of other utility corridors in the Central Florida region confirm this natural process of succession. One of those projects, the Tampa Palms Corridor Improvement Project, constructed in a large forested wetland similar to the Reedy Creek Swamp, revealed that in 25 years after clearing, trees had regenerated to heights of 10 to 50 feet with corresponding diameters at breast height ranging from 2.7 to 30.5 centimeters. John Vogel, an expert in forestry and the effects of clearcutting, provided unrefuted testimony and photographic evidence of a clear cut site in the South Reedy Creek basin where after a period of 8 years rapid revegetation and reforestation was occurring, resulting in a fully stocked pre-commercial stand of timber. Several DER witnesses indicated that FPC's manner of cutting trees at ground or water height could have adverse effects on the ability of tree species to regenerate. However, this was refuted by the evidence of tree coppicing ( sprouting within the cut-off stumps) within the corridor with some canopy species having coppices over six feet tall in the 18 month period since FPC's initial clearing. DER employee, Donald Medellin, indicated at hearing that the clearing and proposed maintenance activity of FPC may impact a limited number of plant species listed as threatened. The Applicant's onsite analysis established that Tillandsia, a species listed in Chapter 581, Florida Statutes, as endangered, does exist in the adjacent forest in large numbers. No species referenced by Mr. Medellin appear on any federal endangered or threatened plant species list. Certain referenced plants appear on various state lists; however, none of these lists preclude the clearing of such vegetation with permission of the landowner. FPC's proposed maintenance activities for this project would not threaten the continuing existence of any of those species. The loss of some individual plants as a result of FPC's initial clearing was inconsequential, and continued maintenance of the corridor will not impact the species' continuing existence in the area. The change from forested to herbaceous wetland was demonstrated to have had no adverse effect on the conservation of fish and wildlife in the South Reedy Creek basin. An extensive quantitative analysis undertaken by J. Steven Godley established that aquatic organisms (i.e., fish, aquatic amphibians, and reptiles), invertebrates, mammals, and birds have not been negatively impacted by FPC's initial clearing of the transmission line corridor. It was uncontroverted that the project has occasioned a twofold increase in the number of aquatic organisms in the corridor as compared to the adjacent forest. Even though wildlife surveys conducted over 1,000 manhours revealed no measurable impact to any species of wildlife, Mr. Godley constructed a theoretical listing of several species of vertebrates indigenous to the Reedy Creek Swamp system which were likely to use the swamp system in an average year or at least a part of their life cycle, in order to assess the possible impact of the corridor on those species. Mr. Godley's unrefuted analysis revealed that the vast majority of all species of the various groups (fish, amphibian, reptiles, mammals, birds) are expected to be either positively affected or not affected at all by FPC's proposed project. DER witness, Dr. Herbert Kale, testified that some bird species such as red-eyed vireos, warblers, woodpeckers and thrushes could possibly be impacted due to the loss of forested canopy since they are cavity nesters, and because of nest parasitism by the brownheaded cowbird. Dr. Kale readily admitted, however, that the transmission line swath was small and was not fatal to any of those interior forest bird species. Moreover, his testimony regarding the nest parasitism was inherently contradictory, since the cowbirds breed in winter during a period when the other species are actually in Central and South America. The wetland change occasioned by FPC's project will not adversely affect endangered or threatened wildlife species. The only reptile likely to occur in the Reedy Creek Swamp that is either threatened, endangered or a species of special concern is the indigo snake, which will likely be positively impacted by the corridor, as it feeds on aquatic organisms in the swamp. No listed mammals will be impacted by the corridor. Three species of wading birds, the wood stork, little blue heron and snowy egret, will be positively affected by the transmission line corridor as they, too, will be provided excellent feeding habitat. DER's witness, Dr. Kale, agreed that the change will provide additional habitat for marsh wading birds. The only other possible endangered species that may occur in the swamp is the bald eagle. Since bald eagles prefer large water bodies, they are unlikely to occur. They would benefit, however, from the enhanced feeding habitat. Existing literature regarding the ecological impacts of clearcutting and electrical transmission line corridors on wildlife is consistent with the quantitative evidence submitted by FPC. Existing scientific literature generally reflects that transmission line rights of way cause edge effect, defined as a transition between two or more diverse communities. This edge causes an increase in species number and diversity for wildlife in the corridors, as compared to the adjacent forest. This is particularly true of bird species. For small mammals there is either a nonsignificant difference in species numbers in the corridor as compared to the adjacent forest, or there is a larger small mammal diversity within the corridor as opposed to the adjacent forest. The same applies for larger mammals and game species. The applicant's witnesses touted edge effect as essentially positive, while DER's witnesses described the phenomenon as a negative impact, since any new species are already abundant in other habitats. No finding is made generally on this issue, but rather in this case it is concluded that edge effect is not so significant as to constitute a negative consequence of the project. Based on the weight of empirical evidence and opinion testimony presented, wildlife species residing in the South Reedy Creek basin have been and will continue to be either positively affected or not affected at all by FPC's proposed project. Moreover, the overall productivity of the wetland from the standpoint of vegetation and wildlife, when balanced across all plant and animal species, has not and will not be negatively affected. Although the opportunities for recreational activities are limited in South Reedy Creek basin due to the inaccessibility of the site, those activities such as hunting, fishing, and bird watching are unchanged or have improved as a result of the small localized change to a herbaceous/shrub wetland. The need for the electrical transmission line was unrefuted. FPC must meet minimum service standards in its provision of electric power as set out by the PSC. In order to meet these service standards, FPC decided, through its internal system planning and modeling, that a new 69 kV electrical transmission line was required between its Intercession City and Poinciana substations to provide a more reliable source of power to the towns of Davenport and Haines City as well as the Parker-Poinciana 55,000 unit residential development, as these areas have experienced problems with low voltage. The demonstrated need for this facility and the public benefit which DER has admitted it will provide, when balanced with minimal changes to the forested wetland system, lead to the finding that this project is not contrary to the public interest. Cumulative Impacts DER failed to present any evidence disputing the hydrologic and biologic validity of the boundaries of the South Reedy Creek basin or the location of existing and proposed electrical transmission lines in that system. The only other projects suggested by DER for cumulative impact analysis were several projects consisting of construction of berms, roads and pipelines, as well as proposed developments of regional impact (DRI's). However, these projects were not shown to be similar in construction or amount of impact to FPC's proposed electrical transmission line, except for their linear nature. Unlike this project, roads, berms, pipelines and residential developments remove wetlands. It was not established that all the project applications considered by DER for cumulative impacts were within the South Reedy Creek basin. Instead, several DER witnesses alluded to the loss of forested wetlands allegedly occurring throughout the state. The evidence was anecdotal and unreliable. DER cited an analysis showing a three percent decline in forested wetlands, but the study combined both South Carolina and Florida acreages. Of the existing and proposed transmission lines within a 10 year planning horizon, very few (only three) will directly cross any portion of the South Reedy Creek basin. Those proposed electrical transmission lines will be co-located along existing rights of way and will have little, if any, impact on the forested component of the South Reedy Creek basin. It was undisputed that as a general proposition, the construction and operation of electrical transmission lines vital to the provision of electrical service does not stimulate subsequent development in an area but, in fact, follows development where electrical services are projected to be needed. Logging has occurred extensively in this area in the past and there is no evidence that the 60 foot corridor has induced additional logging activity, as asserted by DER. Consideration of Alternative Routes and Methods Having identified the need for a new transmission line, FPC conducted an intensive route selection analysis taking into account environmental, property (real estate), economic, and construction considerations. In this case, FPC considered two routes to address the electrical needs of this area: the recommended route, which is the subject of this proceeding, and an alternate route to the east and along an existing roadway. The alternate route would still have crossed Reedy Creek and its contiguous wetlands at some point in order to connect to the Poinciana substation. Both of the proposed corridor routes are within FPC's service territory. A consideration in choosing the recommended route was its proximity to existing and proposed substations. The alternate route would have necessitated more vegetative clearing in the future, as its location was not near proposed substations in this area. Moreover, the recommended route was aligned through the narrowest portion of the South Reedy Creek basin through what was an old tram railbed used by the logging industry. Major property owners in the area of the proposed line expressed their preference for the recommended route. The landowner for most of the proposed corridor south of the Reedy Creek crossing granted easements at no cost to FPC. FPC fully participated in the give and take of the permit application process for this project with DER. It was unrefuted that FPC employee, W. Jeffrey Pardue, met with a DER employee prior to submittal of the application during which meeting the two routes were discussed. The only concern about the project expressed by DER at that meeting was construction of access roads. In response to this concern, and prior to application submittal, FPC's transmission line was redesigned to consist of only wooden pole structures requiring shorter span construction and allowing less right-of-way clearing, since the transmission line wires would not move as much due to wind or other weather conditions. Wood pole construction will also allow for the use of low pressure, high flotation, equipment for construction and maintenance of the transmission line, thereby obviating the need for access roads. Mitigation: The policy applied In order to appease DER's demand for mitigation, FPC entered into negotiations with DER and offered the preservation of six acres of existing wetlands located east of its Intercession City substation adjacent to State Road 17/92, an area vegetatively similar to the area affected. Mitigation is the reduction or elimination of actual or anticipated adverse effects caused by a wetland project. Mitigation, as evolved in DER's permitting processes, can be the creation of new wetlands to replace those destroyed, the enhancement of an existing wetland, or preservation of an existing wetland other than that impacted by the project. Because preservation as a mitigation measure does not replace lost wetlands, DER has consistently required a preservation ratio of more than 1:1, most often 10:1, and sometimes substantially more than 10:1. The requirement is based on a case by case analysis of the quality of the wetland impacted, the extent of the impact and the quality of the wetland offered for preservation by the applicant. Clearing, without more, is not considered a dredge and fill activity and therefore has not, alone, required a DER permit. Clearing has not, therefore, been the subject of mitigation requirements in the past. Until the recent past, DER has not applied its mitigation policy to clearing associated with construction and maintenance of electrical transmission lines. Most of those lines have been placed along roadways and other existing corridors with little additional impact to jurisdictional areas. DER has required mitigation for other linear configured projects such as pipelines and the unique "Maglev" project, a high speed elevated train proposed to be constructed from the Orlando Airport to a tourist center in Orange County. DER is presently requiring power companies in three power plant or transmission line siting cases to address the secondary impact of clearing. Until the review of impacts is complete, the DER staff cannot predict what and how much mitigation will be required in those cases. Prior to the instant case, DER Chief of the Bureau of Wetland Resource Management, Janet Llewellyn, could identify only one instance of mitigation for clearing associated with an electrical transmission line: the Florida Power and Light Company line in Lee County addressed in paragraph 21, above. The "mitigation" required in that case is already proposed in FPC's maintenance plan. DER in this case has adequately justified its policy of considering secondary impacts of clearing related to the construction and maintenance of electrical transmission lines. Those impacts are legitimately assessed when the need for mitigation is being considered. The nature and extent of secondary impacts from clearing are properly part of the discourse and review of the nature and extent to which mitigation will be required. The need for mitigation, however, is not reached when no adverse impacts are found. Here, the applicant has successfully demonstrated by the substantial weight of evidence that neither the clearing already completed, (albeit precipitately) nor the planned pole and line construction and future right of way maintenance will violate water quality standards or otherwise offend the public interest criteria of Section 403.918, F.S. The application of DER's mitigation policy is unnecessary in this case.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the agency enter its final order granting the application for permit #49-173789-4. DONE and RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 9 and paragraph 10. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 15. Rejected as unnecessary. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in substance in paragraph 20. Adopted in substance in paragraph 21. Adopted in substance in paragraph 22. Adopted in substance in paragraph 23. Adopted in substance in paragraph 24. Adopted in substance in paragraph 25. Adopted in substance in paragraph 26. Adopted in substance in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 29. Adopted in paragraph 30. Adopted in paragraph 31. Adopted in paragraph 32. Adopted in paragraph 33. Adopted in part in paragraph 34, except for the proposed finding that forested wetlands are increasing, which finding is not supported by reliable, nonhearsay evidence. Adopted in paragraph 35. Adopted in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 38. Adopted in paragraph 39. Rejected, except for the conclusory finding that mitigation is not necessary here because of no finding of adverse impacts. See paragraph 44. The proposed findings related to the error of the policy generally are rejected as contrary to the evidence. Respondent's Proposed Findings Adopted in paragraph 7. 2.-3. Adopted in paragraph 4. 4.-5. Adopted in part in paragraph 7. Rejected as unnecessary. Rejected as contrary to the evidence (as to any implication that dredging and filling was done by the applicant); otherwise adopted by implication in paragraph 11. Adopted in substance in paragraph 11. 9.-10. Adopted in substance in paragraph 7. Adopted in substance in paragraph 39. Adopted in substance in paragraph 7. Adopted in substance in paragraph 4. Adopted in substance in paragraphs 6 and 7. Adopted in substance in paragraph 5. Adopted in substance in paragraph 6. Adopted in substance in paragraph 5 and conclusions of law #3. Rejected as contrary to the evidence. The clearing conducted by FPC did not constitute dredge and fill activity. 19.-22. Adopted in substance in paragraph 11. 23.-24. The conclusion that logging activity is a secondary impact of the FPC is rejected as wholly unsubstantiated by competent evidence. Adopted in paragraph 8. Adopted in part in paragraph 8, otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Adopted in substance in paragraph 24. Adopted in paragraph 10. Adopted in paragraph 16. Rejected as unsupported by competent, credible evidence. 31(a). Rejected as contrary to more substantial evidence and, as to recreation mitigation, unnecessary. 32.-33. Rejected in substance as unsubstantiated by the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence. 36.-38. Rejected as unnecessary. FPC will remove the nuisance species as part of its maintenance plan. 39.-47. Rejected as contrary to the greater weight of evidence. 48.-50. Rejected as unsubstantiated by competent evidence. 51.-52. Rejected as contrary to the weight of evidence. Adopted in paragraph 17. Rejected as unnecessary. The construction activity could have, but did not cause water quality violations. See paragraph 13. 55.-58. Rejected as unnecessary. 59. Rejected as contrary to the evidence. The logging activity was occurring long before and during the relevant period and was not caused by the FPC project. 60.-76. Rejected as irrelevant or contrary to the weight of evidence. Adopted in paragraph 32. Adopted in paragraph 36. 80.-87. Rejected as irrelevant. 88. Adopted in part in paragraph 42. That mitigation is required is rejected as contrary to the evidence. 89.-90. Adopted in paragraph 39. Rejected as unnecessary. Adopted in part in paragraph 42, otherwise rejected as an enforcement issue and irrelevant here. Adopted in paragraph 40. Adopted in substance in paragraph 40. 95.-106. Rejected as unnecessary. COPIES FURNISHED: Frank E. Matthews, Esquire Michael P. Petrovich, Esquire Hopping, Boyd, Green & Sams O. Box 6526 Tallahassee, FL 32314 Douglas MacLaughlin, Esquire Office of the General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact All parties involved concurred that there is a necessity for expanded generating capacity to serve Gulf's customers and that the two initial units of 500mw each can meet this requirement. The parties stipulated that the power plant site certification application submitted by Gulf (Exhibit 1) deals sufficiently with the issue of operational safeguards and further that DER's proposed conditions of certification contain a condition that adequately addresses that issue. All agencies involved recommended certification; however, DER's recommendation was predicated upon Gulf complying with the general and special conditions or certifications contained in Exhibits 4 and 5. Gulf agreed to all those conditions but three, viz: 1. That the water intake and return lines to the river cross the wetlands on a trestle instead of the causeway proposed by Gulf; 2. A more extensive monitoring program and without termination date than the fixed period monitoring program proposed by Gulf; and 3. Restrictions upon use of herbicides to clear transmission line corridors in excess of those placed by federal and state authorities. In addition DER proposed in general conditions of certification 11(a) and (b) to modify in the future the conditions of certification by any new or more stringent department rule enacted pursuant to Chapter 120 F.S. Gulf objected to this condition of certification and submitted a brief in opposition thereto. I With respect to Item number 1 the proposed causeway will occupy some 8 acres of wetlands. It is proposed to commence the causeway at elevation + 58 feet (above MSL), which is the 25 year predicted high water flood level in the Choctawhatchee River flood plain, and continue the causeway some 2400 feet at this elevation tot he river bank. The base of the proposed causeway will have a maximum width of 130 feet at a point near the river's edge where the causeway height will be 23 feet (T91). The top width is roughly 60 feet (T90) of which 18 feet will be paved surface. To the north of the access road will be a buried electrical service to carry electricity to the pumps. In the causeway to the south of the access road will be buried two intake lines of 30 inch diameter and one water discharge line. Near the river end of the causeway a vehicle turn-around area will be provided. The causeway across the wetlands will run in a southwesterly direction from plant site parallel to the principal direction of flood water flow when the river is out of its banks. Five oval-shaped culverts will be placed in the causeway at the lowest points of natural contour and permit water to pass through the causeway to equalize levels on both sides of the causeway. These culverts will be 6 feet wide by 3 feet 8 inches high. During the wet season water will be standing in most of these culverts. If the causeway were built in the same location, but without culverts, so as to block any flow normal to the causeway, the build up of water on the north side of the causeway would be only 1 or 2 inches at full flood stage of 57 feet (T146).1 Accordingly, the causeway would have little, if any, effect on the water flow in the wetlands over which this causeway passes; and, but for the 8 acres of wetlands eliminated by the construction of the causeway, the ecological function of these wetlands will be virtually unimpaired. As a collector of sediment from the flood waters the flood plain would also be unimpaired by the construction of the causeway (T154). The cost of constructing the causeway as proposed is $216,000. As a condition of certification (Ex 5 D 1 b) DER prescribed "a trestle shall be used for access to the platform for all areas west of station 14 + 00." This includes the access across the wetlands and presumably it is DER's position that the intake and discharge pipes from the Choctawhatchee River shall be placed upon a trestle structure rather than upon a causeway. The only evidence presented with respect to the cost of the trestle structure was presented by Gulf that a concrete pile trestle to support the pipes and access road would cost some $900,000. A creosoted pile trestle to perform the same function would cost approximately $600,000 and to provide fire protection for the piling would cost another $250,000, which would place the cost of either type trestle some four times the cost of the causeway. No maintenance costs or useful life comparisons of the trestle and causeway were presented. Both trestle and causeway would require the same corridor to be cleared thus the construction of either would result in the same ecological damage. Thereafter, however, the vegetation and other indicia of wetlands could return under the trestle. While evidence was presented that the causeway would occupy 8 acres of former wetlands no evidence was presented of the area occupied by the piling of the trestle. It is obvious that this would be a small fraction of the area occupied by the causeway, but not necessarily insignificant. Gulf opposed the trestle concept for two additional reasons. The exposed pipe on the trestle, if of steel, would require painting and would conduct heat from the sun to the water passing through the pipe. Testimony was presented that ecologists not present had evaluated wetlands in general as having an ecological value of between $1,000 and $20,000 per acre per year. If these figures have economic reality all wetland should have a market value of at least $10,000 per acre. Regardless of this if we assume the values presented are real and the cost for the access corridors are correct, the following economic comparisons can be made. The difference in the cost of the causeway and trestle is approximately $700,000. If this money is borrowed by Gulf at 8 1/2 percent interest the interest cost is almost $60,000 per year. Since this would be a valid capital expense this interest cost will be reflected in the rates of Gulf's customers. If the wetlands are ecologically worth $7,500 per acre per year the 8 acres here involved would also have a value of $60,000 per year. In this connection it should be noted that DER's condition of certification specifying trestle across wetlands was based solely on ecological factors and cost was not considered (T308). During the course of the hearing considerable evidence was presented regarding a third alternative for piping water to and from the river, viz. in pipes buried across the wetlands. This evidence was insufficient in numerous aspects to give it viability; however, several aspects of this proposal are worthy of note. Any pipe that is used to carry cooling water requires some degree of slope to permit the pipe to be drained. From a position near SR 179 (where if underground pipes are used the pumps would have to be placed to provide access for maintenance) the pipe could be buried; but, at some point in the flood plain, the pipe would have to be placed upon a trestle to maintain slope to the river's edge (T287). Burying pipes across the wetlands would have the least ecological impact upon the wetlands. Once the pipe path was trenched, suitable bearing material placed in the trench to support the pipe, the pipe laid and the trench back filled the wetlands would return to natural state and the area involved resume most of the characteristics of wetlands. Problems associated with this proposal include providing all-weather access to the inside of the pipe; obtaining suction on pumps located 2400 feet laterally and 12 + feet above the level of the water to be pumped; long periods of shutdown in case a section of pipe required replacement; and routine engineering problems in obtaining a constant slope upon installation. Regardless of the path taken by these pipes some difficulties with corbicula clams are expected. These creatures are endemic to the Choctawhatchee River and will be entrained in the pipe. There they will attach themselves and as they grow restrict the flow in the pipes. Although chlorination at the inlet is expected to help control this problem periodic cleaning of the intake pipes may be required. Accordingly, access to these pipes at all stages of the water level in the flood plain is an important concern. While testimony presented that it was possible to obtain suction with pumps located 2400 feet laterally and 12 feet higher than the level of the water to be pumped, it was also acknowledged that this 2400 feet of 30 inch pipe would "probably" have to be primed before the pumps could pick up suction. (T305-306). Cost and feasibility of providing all weather access to the buried pipes, and of providing capability to prime the remote pumps was not presented. Furthermore the cost associated with burying the pipes across the wetlands was not presented. Accordingly this concept should not be further considered. II With respect to the biological monitoring program to be carried out by Gulf to determine the effects of the power plant on river organisms, DER, as a condition of certification, proposes a program that will continue for the life of the plant regardless of the conclusions reached from such monitoring. Gulf, on the other hand, proposes a monitoring program to commence prior to the operation of Unit I to determine the base line conditions and continue for one year after commencement of operations of Unit I. Thereafter when Unit II comes on line the monitoring program would be reinstituted and continue for one more year. Since Unit II is scheduled to come on line one year after Unit I the monitoring program proposed by Gulf would actually be continuous for about 2 1/2 years. All parties generally agreed that monitoring is required to ascertain the ecological effects of the plant on the aquatic life in the river. One type monitoring is needed to determine the effect of impingement and entrainment at the intake. The intake structure is designed so the plant of the intake screen is parallel to the current flow. This largely eliminates impingement of fish and other aquatic life on the intake screen as the current flow would tend to wash aquatic life off the screen. Since water is drawn into the intake at a speed of 1/2 foot per second those aquatic life in the volume of water entering which are small enough to pass through the screens will be entrained and killed in the filters. It is to determine the quantity and composition of the aquatic life so destroyed that this part of the monitoring program is intended. The second part of the monitoring program involves ascertaining the aquatic life in the river above the plant and below the point of discharge of the returned cooling water in order to ascertain the effect of the discharged water on the aquatic organisms. With respect to the entrainment monitoring there was considerable confusion in the testimony regarding anticipated findings. Gulf's witness stated that at low river and low flow conditions the greatest number of organisms would be entrained. While it is obvious that the greatest percentage of available water will be removed from the river during low flow conditions (since the same quantity or volume of water will be withdrawn as at high flow conditions) it is not obvious that there will be a higher density of aquatic organisms in the river at this same time; and no one so testified. In fact the testimony was that various organisms in the water may change radically (of a magnitude of 1,000 to 1) at various times throughout the year. It would appear that whatever concentration of aquatic organisms that exist in the thalweg of the river would exist in the water withdrawn through the intake pipes and be entrained. Those organisms that exist in slack water portions of the river, swim or otherwise remain out of the current passing near the intake would not be entrained. Thus a sampling point in the current near the intake would provide adequate information on the effects of entrainment. The program proposed by Gulf and contained in Exhibit 21 appears adequate for this determination. With respect to the monitoring required to ascertain the effects of the plant operation on the river ecosystems Gulf proposed sampling only periphyton while DER's condition or certification (Exhibit 5) provides for a sampling to include phytoplankton, zoo plankton, ichthyoplankton, nutrient analysis, benthos and fish. These samples would be taken at points above and below the plant intake and discharge for the obvious determination of the effects on the river ecological system resulting from the discharge of the used cooling water back into the system. In this regard it should be pointed out that the water to be discharged will be treated to remove heat, solids, and other concentrations that would affect compliance with the EPA standards. No valid cost estimates for the monitoring program proposed by either Gulf or DER was presented. One witness upon cross examination gave a ball park "guesstimate" of $50,000 per year for Gulf's proposed program and $100,000 per year for DER's program. The witness expressly disallowed any credit for the accuracy of these figures and accordingly they are disregarded. They are inserted here simply because cost of the end product, electricity, is a factor to be considered in determining under what conditions this certification should be granted. As noted above, Gulf proposes to continue the monitoring program for approximately 30 months (until one year after Unit II has come on line) while DER proposes a monitoring program that will continue for the life of the plant. The biological community sampling program contained in Exhibit 5, part II C should be followed. The time during which these programs should be continued will be discussed under Conclusions. III All parties generally agreed that the use of herbicides was required to clear vegetation from transmission line corridors in wet areas where mechanical equipment cannot operate. Gulf proposes to use Kuron, a herbicide approved by both state and federal authorities. It will be used in wet areas only at a frequency not to exceed once per year and in accordance with manufacturer's instructions admitted into evidence as Exhibit 22. At the hearing DER appeared to take the position that approval by DER should be obtained prior to each time the herbicide is used. The evidence presented clearly shows that Kuron is a safe non- persistent herbicide which, when applied in accordance with instructions, will cause no harm to untargeted vegetation. All of the transmission line routes were not finalized at the time of the hearing but when the remainder of these corridors are finalized there appears to be no reason that Gulf should not provide DER with a map of these corridors indicating thereon those areas in which herbicides will be used. IV No factual evidence regarding general conditions of certification 11(a) and (b) was presented. Accordingly these will be treated solely as a matter of law.
Recommendation It is RECOMMENDED that the application of Gulf Power Company for a power plant site certificate be granted so as to authorize the construction and operation of a coal-fired steam generating electrical power plant near Carryville, Florida in accordance with Exhibit 1. It is further RECOMMENDED that this approval be conditioned upon compliance by Gulf with the conditions of certification contained in Exhibit 4 and 5 except conditions II D 1 (b) (Exhibit 5), general conditions 11(a) and (b), (Exhibit 4), and that condition II C (Exhibit 5) be modified to provide such monitoring shall commence not less than six months prior to completion of Unit I and continue for a period of three years after completion of Unit II. At this time Gulf may petition DER for authority to discontinue said monitoring or to modify same and if such request is not approved Gulf shall be entitled to a hearing at which evidence shall be presented from which a determination can be made whether the benefits of said monitoring program justify the costs involved. DONE AND ENTERED this 19th day of January, 1976, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida (904) 488-9675
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, 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 18th day of October, 2005.
The Issue The issues for determination are whether either of the properly proposed corridors (the FPL Corridor or the Alternate Corridor) for the Collier-Orange River #3 230-kV transmission line (the COR #3 Line) comply with the criteria in Section 403.529(4)(a)-(e), Florida Statutes (2003); and, if so, which of the corridors have the least adverse impacts with respect to the criteria in Section 403.529(4)(a)-(e), Florida Statutes, including cost. (All citations are to the 2002 version of the Florida Statutes unless otherwise indicated.) If the Florida Power & Light Company (FPL) Preferred Corridor (FPL Corridor) is determined to have the least adverse impacts, or if the two corridors are determined to be substantially equal in adverse impacts, the Siting Board must determine whether the FPL application for corridor certification should be approved in whole, with modifications or conditions, or denied. § 403.529(4) & (5)(c), Fla. Stat. If it is determined that the Alternate Corridor proposed by Collier Enterprises, Ltd. (CE) and Barron Collier Companies (BCC) has the least adverse impacts, including costs, since this corridor was rejected by FPL for consideration pursuant to Section 403.5271(1)(b), Florida Statutes, certification shall be denied or FPL shall be allowed to submit an amended application to include such corridor. § 403.529(5)(b), Fla. Stat.
Findings Of Fact THE PARTIES The TLSA establishes FPL and the DEP as parties to this proceeding, as well as the following upon their filing of a notice of intent to be a party, which each has done: Florida Department of Transportation, SFWMD, Lee County, City of Fort Myers, and the City of Bonita Springs. The following agencies did not participate in the proceeding and did not file a notice of intent before the 30th day prior to the certification hearing and each one is therefore deemed to have waived its right to be a party: PSC, Department of Community Affairs, Florida Fish and Wildlife Conservation Commission, Southwest Florida Regional Planning Council, and Collier County. § 403.527(4), Fla. Stat. Approximately five linear miles of FPL’s Corridor is located on real property owned by BCC. One section, i.e., 640 acres, is located along SR 82 adjoining FPL’s Corridor, one section north and east of Lake Trafford to the east of the FPL Corridor, and four sections along the north side of Immokalee Road, CR 846. Virtually all of those lands along Immokalee Road on the north side are stewardship-receiving areas, which means they can receive a density of up to four dwelling units per acre. See Findings of Fact 90 and 102. Locating the proposed transmission line on real property owned by BCC may result in adverse environmental impacts to BCC’s real property if not subject to appropriate conditions of certification. Such impacts could include, but may not be limited to, impacts to wetlands. Additional buffering may be required for BCC’s property. BCC’s substantial interests are affected by and subject to determination in this proceeding. Approximately 5.5 linear miles of FPL’s Corridor is located on real property owned by CE in Collier County. Material here, CE owns land just north (and west) of the intersection of Immokalee Road (CR 846) and south of the Lee County Electrical Cooperative (LCEC) 138-kV ROW that turns to the east. CE land proceeds south of Oil Well Road, with the southernmost tip adjacent to I-75. (BCC also owns adjacent land east of this location.) See Findings of Fact 93-94 and 99. These lands are among a large group of landholdings designated as the Rural Land Stewardship Area that is designated in comprehensive plan amendments. The allowed density as noted above is up to four dwelling units per acre in a variety of forms, including compact rural development, village, towns, and hamlets that could provide for a range of mixed uses on these lands. These lands can be classified as either sending or receiving lands. See Finding of fact 99. Locating the proposed transmission line on real property owned by CE may result in adverse environmental impacts to CE’s real property if not subject to appropriate conditions of certification. Such impacts could include, but may not be limited to, impacts to wetlands. CE may also need to undertake additional landscaping and buffering in order to conceal the view of the transmission line. The view of the Camp Kaeis slough (located approximately one mile west of the intersection described in Finding of Fact 4) from CE property may be impacted in the future. See Finding of Fact 94. CE’s substantial interests are affected by and subject to determination in this proceeding. Intervenor, Parklands Development, L.P. (Parklands), is the owner of the east one-half (1/2) of Section 4, Township 48 South, Range 26 East in Lee County, Florida, less approximately 83 acres in the northeastern portion of the east one-half of Section 4 which is owned by DiVosta and Company, Inc. Parklands has also developed the western one-half of Section 4 and still owns portions of that one-half section that have not been sold to individual lot owners. These parcels are within the City of Bonita Springs. In addition, Parklands is the owner of substantially all of Section 9, Township 48 South, Range 26 East in Collier County, Florida. Parklands further has a contract to purchase 180+ acres in the northwest corner of Section 3, Township 48 South, Range 26 East in Lee County, Florida, from Corkscrew Growers, Inc. Parklands’ substantial interests will be affected by action of the Transmission Line Siting Board because construction of the Alternate Corridor could affect Parklands’ use and development of its property. In addition, Parklands has an interest in assuring the availability of a reliable source of power for its developments. Accordingly, Parklands’ substantial interests are affected by and subject to determination in this proceeding. Intervenor, DiVosta Homes L.P., successor by merger with DiVosta and Company, Inc. (DiVosta), is the owner of approximately 468 acres of real property in the City of Bonita Springs, Lee County, Florida, as identified in the Warranty Deed attached to its Petition to Intervene. In addition, DiVosta owns approximately 83.61 acres in the Northeast Quarter of Section 4, Township 48 South, Range 26 East; approximately 109.05 acres in the Southwest Quarter of Section 3, Township 48 South, Range 26 East in Lee County; approximately 214 acres in Section 26, Township 50 South, Range 26 East and approximately 6 acres in Section 34, Township 50 South, Range 26 East, both in Collier County, Florida. DiVosta’s substantial interests will be affected by the action of the Transmission Line Siting Board because construction of the Alternate Corridor could affect DiVosta’s use and development of its property. In addition, DiVosta has an interest in assuring the availability of a reliable source of power for its developments. Accordingly, DiVosta’s substantial interests are affected by and subject to determination in this proceeding. The City of Bonita Springs is a municipality in Lee County, Florida. The City of Ft. Myers, a municipality, appeared at the final hearing. Pursuant to Section 403.527(4)(c)2., Florida Statutes, domestic non-profit corporations formed, in whole or in part, to promote the conservation and protection of the environment or to promote comprehensive planning or orderly development of the area in which the proposed transmission line or corridor is located are parties to the proceeding upon the filing of a notice of intent to be a party. Having complied with these statutory requirements the following are parties to this proceeding: Collier County Audubon Society, Inc., Conservancy of Southwest Florida, Florida Audubon Society, Florida Wildlife Federation, and Responsible Growth Management Coalition. Kenneth E. Smith’s substantial interests are affected by and subject to determination in this proceeding because FPL’s Preferred Corridor includes real property owned by Mr. Smith east of Green Meadows Road. See Findings of Fact 80 and 243. STIPULATIONS ENTERED INTO BY THE PARTIES The following parties signed stipulations with FPL in which they adopted the position and witnesses of FPL at the certification hearing: DiVosta Homes, L.P., Parklands Development Limited Partnership, Florida Wildlife Federation, Collier County Audubon Society, Florida Audubon Society, Conservancy of Southwest Florida, and Responsible Growth Management Coalition. FPL, BCC, and CE also entered into a stipulation that the location, construction and maintenance of the COR #3 230 kV transmission line (COR #3 Line) in either the FPL Corridor or the portion of the Alternate Corridor within the existing Common ROW between the Orange River and Collier substations could both be consistent with applicable local government comprehensive plans and would comply with all non-procedural requirements of agencies. The stipulation reserved the right of BCC and CE to argue as to the extent to which locating, constructing and maintaining the COR #3 Line in either corridor would be consistent with applicable comprehensive plans and non- procedural requirements of agencies. FPL reserved the right to argue as to the inapplicability of any provisions of local government comprehensive plans to the location, construction and maintenance of electric transmission lines within established ROWs. The stipulation was entered into the record as Joint Exhibit 9. The parties also stipulated that the COR #3 Line could be constructed on either the FPL Corridor or the Alternate Corridor in compliance with the electric and magnetic field standards of Florida Administrative Code Chapter 62-814. FPL APPLICATION General FPL submitted the application to the DEP on April 30, 2003. The DEP determined that the application was complete on May 13, 2003, and sufficient on August 21, 2003. On October 10, 2003, the DEP issued its Written Analysis, incorporating the reports of the reviewing agencies and including proposed conditions of certification. Project Description An electrical transmission line’s purpose is to transport large amounts of electricity from a generating facility to one or more substations. At the substation, the electricity can be either increased or reduced in voltage through transformers and other electrical equipment for further transportation or for distribution at lower voltages directly to customers. Florida has a highly integrated electric transmission line system. High voltage transmission lines connect the various electric generating utilities to one another. The interconnected electric grid provides benefits to the state because it allows electric utilities to share generation capacity, resulting in lower electrical rates, and to back up one another in emergencies. FPL’s service area generally covers the eastern half of the Florida peninsula and Southwest Florida. FPL is seeking certification of a corridor between the Orange River substation (east of Ft. Myers, Lee County) and the Collier substation (near Naples, in Collier County) within which it will ultimately construct the COR #3 Line on a narrow ROW. Once all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the width of the 15- foot to 60 foot ROW. (A ROW consists of the actual property rights that FPL will acquire to construct the transmission line. A corridor is a much larger area that includes the boundaries of the ROW within it. Once a ROW is established, the boundaries of the corridor become moot. See generally § 403.522(10), Fla. Stat.) The service area for the proposed COR #3 Line (the “Project Service Area”) is southern Lee County and Collier County. The Project Service Area is bounded on the north by the Fort Myers Power Plant switchyard and the Orange River substation, on the east by a line that follows the boundary between Lee and Hendry Counties, on the west by the Gulf of Mexico, and on the south by FPL’s southernmost customer in Collier County.1 (FPL’s Ft. Myers Power Plant is north of and nearby the Orange River substation and is interconnected with that substation with transmission lines.) The proposed FPL Corridor is approximately 53.9 miles in length. If approved, FPL expects to incorporate an approximately 14-mile 230-kV transmission line into the new line between the Orangetree substation, located (south) on Immokalee Road (CR 846), and the intersection of FPL’s existing Collier- Orange #1 and #2 transmission Common ROW and Livingston Road. (See FPL Exhibit 4 for the location of the proposed FPL Corridor, the FPL Common ROW, and other landmarks.) There are three 138-kV lines flowing south out of the Ft. Myers Power Plant and a fourth radial line that is not included in the Project Service Area. There are four existing 230-kV lines flowing southeast out of the Ft. Myers Power Plant to the Orange River substation. (See FPL Exhibit 10.) There are three 230-kV lines that flow south out of the Orange River substation and eventually terminate at the Collier substation to the south. One phase is known as Collier- Orange River #1 and the other is Collier-Orange River #2. A third 230-kV line runs from the Orange River substation south along the Common ROW then west to the Alico substation and then from Alico (loops back to the east) and south along the Common ROW to the Collier substation. (See FPL Exhibit 10.) One 500-kV line flows south out of the Orange River substation along the Common ROW and then, east of the Southwest Florida International Airport, flows east to Andytown. Id. The Project Service Area is an electrical “peninsula,” that is, all electricity is brought into the area and flows from the north to the south from the Fort Myers Power Plant or the Orange River substation and then south. (See FPL Exhibits 9 and 10.) The Project Service Area is dependent on the transmission line system to import electricity from the north. (The Florida Public Service Commission (PSC) found, in part, that “[t]he principal bulk transmission link into the region south of Ft. Myers is an existing 230-kV connection between the Orange River substation, just east of Ft. Myers, and the Collier substation adjacent to Naples. Thus, the area south of Ft. Myers, including Naples, is considered an electrical peninsula.”) The primary path for transmission lines bringing electricity into the Project Service Area is on the existing Common ROW between the Orange River substation east of Fort Myers in Lee County and the Collier substation east of Naples in Collier County. This single Common ROW contains all three of the 230-kV transmission lines, as well as some other 138-kV and a 500-kV transmission line segments, that collectively bring about 70-75 percent of the electricity into the Project Service Area. See also Findings of Fact 22-24. The three objectives of the COR #3 Line project are: (1) to address the need, as confirmed by the PSC, to provide FPL’s existing and future customers in the Project Service Area with additional electricity; (2) to enhance the reliability of electric service to the customers in the Project Service Area by locating the new line on a geographically separate route from the existing lines on the Common ROW; and (3) to provide a secondary feed, known as “looping,” to the new Orangetree distribution substation in eastern Collier County. Need for the COR #3 Line The PSC determined a new 230-kV transmission line between the Orange River substation and the Collier substation is needed, taking into account the need for electric system reliability and integrity in Southwest Florida and the need to provide abundant, low-cost electrical energy to assure the economic well-being of the citizens of the State, particularly those in Southwest Florida. The PSC noted that FPL’s planning studies indicate this additional transmission capacity will be needed by December 2005 to alleviate potential overloads and low voltage conditions that could result from a single contingency event.2 The PSC found that construction of the COR #3 Line on a route that is geographically separate from the Common ROW will enhance system reliability, integrity, and restoration of service more than locating the line on the existing Common ROW. The PSC also found that placement of the COR #3 Line on the existing Common ROW is “not optimal” due to concerns with serving the Project Service Area via a “single corridor”3 and the “inability for future expansion of FPL’s transmission system to the east of the existing corridor” or Common ROW. The PSC recognized, however, that any party to the site certification hearing may propose an alternate corridor and that the Siting Board will make the final corridor selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the COR #3 Line will be a single-pole unguyed concrete structure, 90 feet above grade in height, with the conductors framed in a vertical configuration. Each of the three conductors is anticipated to be a 1,431 thousand circular mils (kcmil), aluminum conductor, steel reinforced alumoweld core (ACSR/AW). There will also be a smaller overhead ground wire to provide shielding and lightning protection for the conductors. The maximum current rating (MCR) for the line will be 1,905 amperes.4 In some locations, electric distribution lines and communication cables may also be attached to the structures beneath the conductors. The span length between structures will typically vary between 250 feet and 700 feet, depending on site-specific ROW widths and other design considerations. Both pole height and span length may vary to accommodate such things as locating poles to coincide with property boundaries or existing collocated utility facility poles, to minimize or avoid wetland impacts, to cross other utility lines, and to facilitate wide crossings of water bodies and roadways. Shorter structures may be required in proximity to an airstrip to comply with applicable clear zones. Where the transmission line turns angles in excess of 10-15 degrees, the structures may be guyed to support the differential tension. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Pads may be installed in low or wet areas. Access roads may be built in some areas where linear features, such as an existing line or road, do not exist. Where constructed, the typical road top width will be about 14 feet, with a 2:1 side slope, and a minimum elevation of 6 inches over mean or seasonal high water. Structure pads will have variable sizes (e.g., 45’X50’, 34’X50’, and 35’X60’), depending on site-specific requirements, but will be of sufficient size to provide access to structure locations for the large construction equipment. Access roads and structure pads will not be paved. Culverts will be installed beneath access roads and structure pads with spacing, diameter, and length to maintain pre-construction flows. The design of the COR #3 Line complies with good engineering practices. Transmission Line Construction The transmission line will be constructed in seven phases: surveying; ROW clearing; construction of access roads and structure pads; line construction; pole framing; line stringing; and ROW restoration. Surveying the ROW to facilitate acquisition of the necessary property interests is a first step towards construction. Since 95 percent of the FPL Corridor is collocated with existing roads and utility facilities, the need for acquisition of private property has been minimized. After property rights have been acquired, the initial phase of construction is to clear the ROW. Collocation of the FPL Corridor with existing roads and utility facilities will enable required clearing to be minimized. Clearing will consist mainly of tree trimming and the occasional removal of trees that exceed or are capable of exceeding 14 feet in height. In wetlands, trees capable of exceeding 14 feet in height that could come in conflict with the line will be removed by hand-clearing or use of very low ground pressure equipment. Low-growing herbaceous vegetation will not be cleared from wetlands. After the ROW is cleared, any necessary access roads and structure pads will be constructed. Typically, access road and pads are only required in wet and low areas. This enables all subsequent construction activity in those wet areas to remain on the newly constructed access road and pad. The next phases of construction involve the physical transmission line construction. Initially, materials are brought to the jobsite. Next, holes are augered at each pole location and the poles are then erected using cranes or other heavy equipment. The hole is then backfilled with the excavated material or, if that material is unsuitable, with suitable fill from offsite. Typically, the pole is embedded into the ground approximately 16 feet to 20 feet. After the poles are set, the poles are framed; that is, the insulators and hardware are installed on the pole.5 Then through a wire pulling operation the conductors and overhead ground wires are installed. The conductors are then properly sagged and tensioned to provide the proper vertical clearances. Next, the conductors are “clipped in” to the insulator assemblies. The final stage of construction is ROW restoration or clean up. During all stages of construction, FPL will maintain traffic on any adjacent county, state or federal roadways in compliance with applicable Management of Traffic (MOT) regulations or plans. Throughout construction, sedimentation management techniques, such as the use of silt screens and hay bales, will be employed as necessary to minimize potential impacts from erosion and sedimentation. Turbidity testing is also performed. While each phase of construction will typically take only one to seven days in an area, the entire COR #3 Line construction process will last approximately 13 months. The COR #3 Line will be constructed in compliance with all applicable design codes, including the National Electrical Safety Code, the DEP’s regulations on electric and magnetic fields,6 the Florida DOT Utility Accommodation Manual, the Lee County and Collier County noise ordinances, and standards of the American Society of Civil Engineers (ASCE), the Institute of Electronic & Electrical Engineers (IEEE), American Society of Testing Materials (ASTM) and American National Standards Institute (ANSI), as well as FPL’s own design standards. See Findings of Fact 226 and 252. Methodology for Choosing the FPL Corridor Importance of Geographic Separation On project initiation, FPL management instructed its multi-disciplinary corridor selection team to identify, if it could (“to the greatest extent practicable”), a corridor for the COR #3 Line that is geographically separate from the existing Common ROW. This instruction was based on the importance of maintaining some geographic separation between the existing Common ROW and the new COR #3 Line to enhance reliability of electric service in the electrical peninsula to be served by the new line. It is not prudent utility planning or practice to carry excessive amounts of power on any one line, substation, transformer or transmission ROW. While FPL has approximately 15 common ROWs on its system with power transfer capability equivalent to four 230-kV transmission lines or more, no common ROW, other than the one between the Orange River and Collier substations, is an electrical peninsula that lacks a power generation source at one end. In other words, the existing Common ROW between the Orange River and Collier substations is the only Common ROW on the FPL system that serves an electrical “peninsula.” Since all other FPL common ROWs have a generation source at both ends, the historical outages, resulting when all of the transmission lines on those ROWs were taken out of service, have generally been on the order of hours or minutes. This may be because FPL has the ability to respond quickly, if by no other means, by restarting those power plants on either end of the common ROW to get electricity back to its customers. This strategy is not a reasonable option in the Project Service Area because there are no electric generating plants connected to the transmission system within the Project Service Area south of the Orange River substation. The planning standards of the North American Electric Reliability Council (NERC) provide that there are situations when it is appropriate for a utility to decide to do more than is required by those standards. In determining whether to go beyond NERC standards, the consequences of a situation occurring may be considered even if the frequency of such a situation causing an electrical outage would be rare. In this case, FPL decided that a worst case scenario loss of up to 80 percent of the electric capacity (all transmission lines on the Common ROW including the COR #3) in the Project Service Area potentially for as long as six days, which could affect about 600,000 people (less the population of the Project Service Area that may be served via the 138-kV transmission lines), was a severe enough consequence to warrant identifying a geographically separate ROW to the extent possible.7 See also Findings of Fact 185 and 297. Corridor Selection and Public Involvement FPL established a multi-disciplinary team to identify and evaluate routing alternatives within the Project Study Area. This multi-disciplinary team was comprised of a transmission line engineer, a land use planner, and an ecologist. As noted herein, FPL management provided the team with the major premise that FPL wanted a geographically separate corridor for the COR # Line. During the route evaluation study, the multi-disciplinary team did not identify or evaluate the Common ROW as a route option, nor did they seek input from the public on use of the Common ROW for the COR #3 Line. However, the team responded to public inquiry on this subject and explained to the public the basis for FPL’s desire for a geographically separate corridor. FPL’s multi-disciplinary team gathered data on siting opportunities and constraints within the study area,8 and identified dozens of line segments which could be assembled into more than 3,700 alternate routes for the COR #3 Line. FPL also engaged in an extensive public participation program to gather input for its route evaluation study. This public participation program included several open houses, establishment of a Community Advisory Panel, mass mailings, a community survey, a toll-free telephone number, a website, and numerous meetings with regulatory agencies, community associations, homeowner groups, and individual homeowners and property owners. The public participation program provided substantive input to the route evaluation study in terms of a study area boundary, siting opportunities and constraints in the area, identification of route segments to be evaluated, and weights to be assigned to the route evaluation criteria. For example, the study area is dominated by a very large area of environmentally- sensitive lands, wetlands, and lands acquired or proposed for acquisition under several land acquisition programs for conservation purposes, generally referred to as the Corkscrew Swamp System. Due to input from the community during the public participation program, the multi-disciplinary team expanded the study area to the east to include route alignments suggested by the public/agency participants that could avoid the environmentally sensitive Corkscrew Swamp System. FPL’s multi-disciplinary team evaluated the 3,700+ routes quantitatively, using ten weighted criteria, and then evaluated in more detail, using both quantitative and qualitative criteria, the top three distinct routes. The Gencore (literally generates corridors) computer software was used to help the team identify highly ranked distinct alternatives (combinations of segments), which were then subject to further, more detailed evaluation. (The FPL Corridor was ranked using the Gencore computer analysis and it became number 16 out of 3,784 alternatives studied.) Ultimately, FPL’s multi-disciplinary team identified the route of the FPL Corridor as providing the most appropriate minimization and balance of factors to address the project objectives. At the public hearing held on February 11, 2004, a representative of the CREW Land and Water Trust, a non-profit public/private partnership organization formed in 1989 to protect the Corkscrew Regional Ecosystem Watershed expressed appreciation for FPL’s public participation work with other interests in the area to identify its FPL Corridor. Collier County Commissioner Tom Henning also noted FPL’s impressive public involvement efforts in selecting its FPL Corridor. Once the preferred alignment was identified, the multi-disciplinary team delineated the boundaries (width) of the FPL Corridor to provide flexibility, including efforts to avoid or minimize impacts, for locating the eventual ROW within that corridor. The southernmost 1.8-mile segment of the FPL Corridor uses the existing Common ROW. After FPL’s multi-disciplinary team met significant community opposition to the geographically separate alternative routes identified by FPL in this area, FPL determined that the risk of using the Common ROW for this short segment was acceptable because: the Common ROW is significantly wider in this segment than to the north and allows for some physical separation between the COR #3 Line and the existing 230-kV lines; if a multiple outage of all lines on the Common ROW occurred in this 1.8-mile segment, fewer people would be affected than if the outage occurred further to the north because power could still be provided to several substations located to the north of this 1.8 mile segment; and the likelihood of a multiple outage of all lines in this 1.8-mile segment is lower than anywhere else along the Common ROW because there is extensive development on either side of the ROW and a major roadway on the east, lessening the likelihood of a wildfire, vandalism, sabotage or terrorism. Agencies’ Review of FPL’s Application and Resulting Determinations Each state, regional, and local agency with regulatory authority over the project reviewed FPL’s Application and submitted to the DEP a report as to the impact of the proposed COR #3 Line on matters within the agency’s jurisdiction, as required by Section 403.526(2), Florida Statutes. The DEP then compiled these reports and made a recommendation that the COR #3 Line be granted approval, subject to appropriate conditions, which have been amended. See Preliminary Statement, p. 5. DESCRIPTION OF THE FPL CORRIDOR Approximately 95 percent of the FPL Corridor is collocated with existing linear features, such as roads and transmission lines. This collocation will minimize impacts of the new COR #3 Line. Approximately three miles of the total line length of the FPL Corridor is not immediately adjacent to either a dedicated road ROW and/or an existing transmission line ROW. The width of the FPL Corridor varies along the route to provide flexibility within the corridor to minimize or avoid impacts to such areas as existing developments and large wetland areas. A large portion of the FPL Corridor is within the territory of the LCEC. From the Orange River Substation to State Road (SR) 82 The FPL Corridor begins at the north at the Orange River substation, which is east of Fort Myers. From the Orange River substation, the FPL Corridor proceeds west for about one mile along the north side of, and generally paralleling, Homestead Lane/Tice Street. In this area, the corridor is 2,600 feet wide to provide flexibility in meeting the FAA and Lee County tall structure ordinance clearance requirements from the Strayhorn airstrip south of Homestead Lane. Approximately one mile west of the substation, the corridor turns south and is located on an existing FPL 138-kV 100 and 160 foot-wide transmission line ROW for about three miles to SR 82. The land uses around the substation are primarily agricultural and some low-density residential. Along the existing FPL ROW in this segment, the land uses are primarily agricultural, with some low-density development to the west of the FPL Corridor. This segment of the FPL Corridor includes development, lands undergoing development, and agricultural lands that have very little or no value from a vegetation and wildlife perspective. The few isolated natural habitats in this segment have already been affected by man’s activities. At the public hearing, two residents who live on Tice Street expressed concern for the COR #3 Line being placed close to their homes and asked that the line be placed on the existing Common ROW or in the far northern section of the FPL Corridor. FPL has agreed to a condition of certification that requires it to locate the COR #3 Line north of Tice Lane (and Homestead Road) in order to minimize potential impacts to the existing residential areas. (See Joint Exhibit 5A, p.11-Condition of Certification XVIII.D. See also March 17, 2004, draft of conditions, p. 11, filed at DOAH with the Proposed Recommended Order submitted by FPL and other parties and April 19, 2004, Notice of Filing Corrected Conditions of Certification, paragraph D, “FPL agrees to locate the transmission line north of Homestead Road and Tice Lane in order to minimize potential impacts to the existing residential areas subject to the preferred corridor.” This latter set of draft conditions were not admitted into evidence and should be considered by the Siting Board with all parties given an opportunity to comment thereon.) Notwithstanding, the residents were concerned that the precise location of the line was unknown. Along SR 82 to Sunshine Boulevard (Including “Line Swap”) At SR 82, the FPL Corridor turns east and follows SR 82 in a southeasterly direction for about 7.5 miles to the intersection with Sunshine Boulevard and Green Meadows Road. In this area, the corridor is 500 feet wide, centered on SR 82, to allow the possibility of placing the COR #3 Line on either side of the roadway. Where this segment crosses the existing Common ROW, FPL will use a “line swap” configuration to maintain a separation of about one-half mile between the new COR #3 Line and the existing transmission lines on the Common ROW.9 See FPL Exhibits 6-7.) Thus, the FPL Corridor includes a lateral 400- foot-wide segment in this area that follows Buckingham Road for about 2,500 feet to the east of the Common ROW and then traverses south along the west side of the section line to SR 82. The land use along the north side of SR 82 is the Lehigh Acres residential subdivision. On the south side of SR 82, the land uses are largely agricultural. In the vicinity of the “line swap,” on the north side of Buckingham Road, is Lee County’s resource recovery facility. See Finding of Fact 75. Due to the presence of a major roadway, Lehigh Acres, a large subdivision north of SR 82, and developing lands and farmlands south of SR 82, there are some natural habitats, but in this segment of the FPL Corridor, the natural habitats have been somewhat diminished. The approximately one-mile portion of this segment that is not collocated with existing roads or transmission lines crosses pine flatwoods and mixed forest habitat in an area that is already disturbed by the east-west crossing of Colonial Boulevard. Lee County’s resource recovery (or “waste-to-energy”) facility, including an incinerator and recycling facility, is located on the north side of Buckingham Road. Lee County plans to expand the recycling facility by extending it about 140 feet- 150 feet to the south, towards Buckingham Road. The recycling facility’s rezoning approval requires a 200-foot setback from Buckingham Road, including a significant vegetative buffer. These requirements will continue to be met with the expansion of the recycling facility, even though some of the vegetative buffer that exists between the recycling facility and Buckingham Road will have to be removed. Lee County is concerned that even more vegetation in that buffer will have to be removed if the COR #3 Line is placed on the north side of Buckingham Road. FPL has agreed to locate the COR #3 Line south of the northern ROW line of Buckingham Road in Lee County, if possible. If FPL is unable to obtain the necessary property interests to place the transmission line ROW within this area, FPL will locate the transmission line adjacent to the northern edge of the road ROW, such that there is no intervening land between the transmission line and the Buckingham Road ROW. Any trees or shrubs disturbed by FPL north of the centerline of Buckingham Road ROW will be replaced on adjacent Lee County property at FPL's expense. (See Joint Exhibit 5A, p. 12, Condition of Certification XVIII.G. See also March 17, 2004, draft of conditions, p. 11.) From the Intersection of SR 82 and Sunshine Boulevard/Green Meadows Road to FPL’s 500-kV Transmission Line ROW At the intersection of SR 82 and Sunshine Boulevard and Green Meadows Road, the FPL Corridor turns south and follows Green Meadows Road, a private road, for about two miles to the existing FPL 500-kV transmission line ROW. A new ROW will be required here. In this area, the corridor is 200 feet wide, is centered on Green Meadows Road, and includes the roadbed of Green Meadows Road within its boundaries. The land uses on the west side of Green Meadows Road are primarily agricultural. On the east side, there is some vacant land, some agricultural land, and some low-density residential land use, perhaps with a density of five residential units per acre. (During the public hearing, there was testimony that there are approximately five residences on Green Meadows Road.) Other than the isolated freshwater marsh along the southwest side of Green Meadows Road, the agricultural and residential areas along Green Meadows Road are of little or no ecological value. Intervenor, Kenneth E. Smith, owns a home on the east side of Green Meadows Road. Mr. Smith expressed concern about the aesthetics of the transmission line, property values, the potential proximity of the line to his home and potential health risks associated with the line being nearby his home, and emergency evacuation if an extreme event brought down one or more transmission structures. Mr. Smith suggested that the FPL line be “co-located to existing facilities” and not along Green Meadows Road. Lines of similar design to the COR #3 Line exist in all types of land uses throughout Florida. The National Electrical Safety Code (NESC) governs the proximity of transmission lines to structures, and FPL has committed to comply with that Code. In emergency situations where there is a concern that evacuation could be hampered, residents have the option to go to a shelter established within the County for such purposes. Moreover, FPL has agreed to a condition of certification that requires it to finalize a route that minimizes potential adverse impacts to the existing residences on the east side of Green Meadows Road by locating the transmission line on the west side of the road to the extent practicable. (Joint Exhibit 5A, p. 11, Condition of Certification XVIII.E. See also March 17, 2004, draft of conditions, p. 11 and April 19, 2004, corrected conditions, paragraph E- “To the extent practicable, FPL must finalize a route that minimizes potential adverse impacts to the existing residential areas on Green Meadows Road by locating the transmission line on the west side of Green Meadows Road.”) At the public hearing, a property owner with mining interests on both sides of Green Meadows Road expressed support for placement of the COR #3 Line on the existing Common ROW. The same person is president of the Corkscrew Island Neighborhood Association, which is located in a rectangular area at the south bend in Immokalee Road, near Corkscrew Swamp and Bird Rookery Swamp to the west. See Finding of Fact 98. (See FPL Exhibit 4.) Along the FPL 500-kV Transmission Line ROW At the intersection of Green Meadows Road and the FPL Andytown-Orange River 500-kV 330 foot-wide transmission line ROW, the FPL Corridor turns southeast and runs along the 500-kV ROW for approximately 13 miles. In this segment, the FPL Corridor is 400 feet wide to include the existing FPL 500-kV ROW plus 70 feet to the north of that ROW. The land uses along this segment are primarily agricultural and some vacant land. The western portion of this segment (Lee County) of the FPL Corridor includes many natural areas; however, the wildlife habitats that actually occur on the FPL 500-kV ROW are shrub and brushland and some freshwater marshes. The eastern portion (Collier County) of this segment of the FPL Corridor is mostly citrus lands, which have very little or no value to wildlife. From the FPL 500-kV Transmission Line ROW to Immokalee Road At a point approximately two miles west of the intersection of SR 82 and SR 29, the FPL Corridor turns south and follows section lines and an existing LCEC 138-kV transmission line ROW for approximately six miles. In this six- mile segment, the corridor is 300 feet wide, centered on the LCEC transmission ROW, except in an area of development near Lake Trafford Road where the corridor is reduced to 200 feet to avoid intrusion into existing residential development to the west. About two miles north of Immokalee Road, the LCEC line turns to the east, but the FPL Corridor continues south to Immokalee Road. In this two-mile segment, the corridor is 500 feet wide. The land uses in this segment are primarily agricultural and vacant land, except in the vicinity of Lake Trafford, where there is residential development on the west side of the FPL Corridor around Lake Trafford Road. On the east side of the FPL Corridor, just north of Lake Trafford Road, there is a proposed Habitat for Humanity subdivision. See Finding of Fact 91. The portion of this segment north of Lake Trafford Road is largely citrus and residential lands, which have very little or no value to wildlife. South of Lake Trafford Road, the FPL Corridor crosses two small wetland systems that are a part of the Corkscrew Swamp System. The first of these is crossed in a location where the FPL Corridor is collocated with the LCEC 138-kV transmission line and access road. This prior disturbance has created a shrub swamp habitat in this wetland. (The “unnamed flowway” is located east of Lake Trafford.) Farther to the south along this segment, the FPL Corridor crosses agricultural lands and a narrow section of Baucomb Strand, which is primarily forested and somewhat undisturbed. (See FPL Exhibit 4.) BCC owns four sections of land along the north side of Immokalee Road, west of the intersection of Immokalee Road and the LCEC ROW in this segment. This property is within the Immokalee urban area, which allows for a more intense future residential use. See also Finding of Fact 2. At the public hearing, an officer of Habitat for Humanity of Collier County, Inc., expressed concern that placement of the COR #3 Line in this segment would preclude use of five lots within a proposed adjacent 165-lot Habitat for Humanity development. However, in this location FPL will collocate the COR #3 Line entirely within the LCEC easement, and there is not likely to be an impact on any of the proposed Habitat building lots. This segment of the FPL Corridor is within the territory of the LCEC. Currently, LCEC receives its electricity from FPL’s Buckingham substation, from which it serves about 29,000 of its customers on a radial line.10 If the COR #3 Line is located in this segment of the FPL Corridor, LCEC plans to construct a 230- to 138-kV substation in Collier County near the LCEC’s Immokalee substation to provide reliability looping to three of its four existing substations and two proposed substations in this portion of its territory. The proposed interconnection between the COR #3 Line and the LCEC system will also improve the reliability to its fourth existing substation by taking 20-30 miles off its single source line. Without looping of LCEC’s substations, if the source of power is lost at the FPL Buckingham substation or if LCEC’s radial line is taken out of service at any location, it would cause a blackout to the residents served downstream from that loss of service. Currently, there is no alternative source of power for LCEC’s substations. Along Immokalee Road to Orangetree Substation The FPL Corridor follows the Immokalee Road (County Road (CR) 846) alignment, turning west, south, and west again for approximately 15 miles to the Orangetree substation, which is located on the south side of Immokalee Road, just west of Wilson Boulevard in eastern Collier County. For most of this 15-mile segment, the corridor is 400 feet wide, centered on Immokalee Road, allowing collocation along either side of the road ROW. For the last two miles northeast of the Orangetree substation, while the corridor continues to include both sides of Immokalee Road, it is narrowed on the east side to exclude existing residential development and is 300 feet wide. This segment of the FPL Corridor traverses largely agricultural land, some low-density residential areas, and vacant land, some of which is a portion of the Corkscrew Swamp System proposed for acquisition as conservation lands. This crossing of Camp Keais Strand (a Cypress and freshwater marsh system) is designated as Save Our Rivers lands, and occurs where Camp Keais Strand is already impacted by the crossing of Immokalee Road. (See FPL Exhibit 4.) Along this segment of the FPL Corridor, there is little existing residential development. There is one planned residential area, the Orangetree and Waterways of Naples community, and the low-density development of the Golden Gate Estates subdivision that is a very large residential subdivision. The gross densities of these developments are .77 units per acre for Orangetree/Waterways of Naples, and .44 units per acre for Golden Gate Estates. Farther to the west, after Immokalee Road has turned to the south, the FPL Corridor crosses the eastern edge of Bird Rookery Swamp. It is in this location that a Cardinal Air Plant was observed on the west side of Immokalee Road. See Finding of Fact 269. FPL has agreed to Condition of Certification XVIII. that requires FPL to use all available means to locate the transmission line ROW to the east of Immokalee Road in this area. (Joint Exhibit 5A, Condition of Certification XVIII. F., p. 11.) To the east of Immokalee Road lie predominantly agricultural and developing lands, which have very little or no value to wildlife. Transmission Lines in Rural Areas CE offered testimony expressing concern for placement of the COR #3 Line in this rural area. However, transmission lines are common in such rural areas since these lines are used to: provide connections between urban areas, as would the COR #3 Line; interconnect systems of different electric utilities; transport power from power plants, which are often in rural areas, to where the electricity is used; bring electricity to processing facilities, such as phosphate and juice processing plants, which are also often in rural areas. In rural areas, transmission lines are commonly sited along rural roadways. At the public hearing, the president of the Corkscrew Island Neighborhood Association expressed support for placement of the COR #3 Line on the existing Common ROW. His concern with the FPL Corridor in this segment was the aesthetic impact on the rural area and the increased cost of using the FPL Corridor. See also Finding of Fact 82. Plans for Future Development Adjacent to the eastern area of this segment of the FPL Corridor, CE owns approximately 1,920 acres north of Immokalee Road and approximately 19,000 acres to the south of the road. See Finding of Fact 4. CE’s property, which is already bisected by Immokalee Road, is not subject to urban development, such as commercial, residential, industrial, or recreational development, except some lands are used for recreational hunting. The property is used for agriculture, water management and environmental uses. These lands are part of the Collier County Rural Lands Stewardship Area, within which a property owner may designate agricultural lands and sensitive habitats as sending areas to transfer development rights to other property, called receiving areas. (Mr. Conrecode identified land north and south of Immokalee Road until Oil Well Road, as holdings or parcels of concern. The uses are “primarily cattle grazing, vegetation grow crop production and environmental.”) CE is in the process of designating these lands, but has not yet decided which of this property to designate as sending or receiving areas. The rural character of this area may be short-lived, as CE plans to develop its property adjacent to this segment of the FPL Corridor within the next 5 to 10 years. Such development could include residential, commercial, industrial, agricultural, ecological, and mining and minerals extraction. One of CE’s goals is to maximize the potential return on its properties. CE is concerned placement of the COR #3 Line adjacent to its property would impact the viewscape of the Camp Keais flowway area, the access to its property from Immokalee Road, and its ability to use the 20+ mile-long Camp Keais natural environmental system as a visual amenity to other properties. (See FPL Exhibit 4 for the location of Camp Keais.) CE is also concerned that when it develops its land adjacent to the COR #3 Line it will have to spend money to buffer and offset the visual and perceived impacts to residents and other business uses in the area by installing berming and landscaping. In the eastern area of this segment, west of the lands referenced above that are owned by CE, BCC owns four square miles of property on the north side of Immokalee Road. See Finding of Fact 2. As noted herein, most of the BCC lands that border Immokalee Road are Stewardship Receiving Areas under the Collier County Comprehensive Plan. This land could receive future residential development up to a density of four dwelling units per acre. BCC anticipates this land will be developed (residential with commercial within the community) within the next 10-15 years. Incorporation of Existing 230-kV Line from Orangetree Substation to FPL Common ROW (Not To Be Certified) The COR #3 Line will incorporate an existing 230-kV transmission line from the Orangetree substation west along the north side of the Immokalee Road ROW, south along Collier Boulevard or CR 951, and then west following an existing FPL transmission ROW (with a single 138-kV transmission line within the ROW) to a point along the existing Common ROW at its intersection with Livingston Road, approximately 1.8 miles north of the Collier substation. Certification is not being sought for this segment of the line. Southernmost 1.8 Miles of Existing Common ROW The final segment of the FPL Corridor follows the easternmost 250 feet of the existing 405 foot-wide Common ROW from the western end of the Orangetree 230-kv transmission line, south to Collier substation. The corridor follows the west side of Livingston Road. The land uses in this area are primarily existing planned residential development. The urbanized character of this segment precludes the presence of any significant wildlife habitat in this area. DETAILED DESCRIPTION OF THE ALTERNATE CORRIDOR The Alternate Corridor is approximately 36.8 miles long and is proposed to lie generally in or adjacent to FPL’s Common ROW transmission corridor that runs between the Orange River and Collier substations. As described in more detail above, the Alternate Corridor will leave the Common ROW at the intersection of the Common ROW and Immokalee Road and proceed east along Immokalee Road across CR 951 to the Orangetree substation. Like the FPL Corridor, the Alternate Corridor will connect at the Orangetree substation to incorporate FPL’s new 14-mile long 230-kV line (currently under construction) to accomplish completion of the new 230-kV circuit from FPL’s Orange River substation to the Collier substation. Unlike the FPL Corridor, the Alternate Corridor was selected by the CE/BCC consultants without any public outreach to obtain input from the community.11 The consultants gathered information about the location of properties owned by CE and BCC. Other than the Grey Oaks Development adjacent to the existing Common ROW, which ROW is incorporated into the southernmost 1.8 miles of both the FPL Corridor and the Alternate Corridor, there is no CE or BCC property adjacent to or traversed by the Alternate Corridor. See Findings of Fact 2-5. During the public hearing, Collier County Commissioner Tom Henning stated, in part, that he “would have hoped” that CE and BCC would have had a public meeting in the community prior to selecting the Alternate Corridor like FPL had done when selecting its FPL Corridor. Utilization of the Existing Common ROW The BCC and CE Alternate Corridor exits the Orange River substation on the existing Common ROW and proceeds south approximately 30 miles to Immokalee Road. (See FPL Exhibit 4 and CE Exhibit 61.) The existing Common ROW within the Alternate Corridor is wide enough to accommodate at least two additional 230-kV circuits. This segment of the Alternate Corridor within the Common ROW traverses over nine miles of wetlands. See Finding of Fact 286. The specific number of acres of wetlands that may be impacted by placing the COR #3 Line in the Alternate Corridor is unknown. On-site wetland delineations would be performed, if the Alternate Corridor were chosen, to locate the jurisdictional limits of the wetlands. Specific pole locations and pad locations and sizing would need to be determined. Thereafter, impacts to wetlands would be determined. From a review of aerial photography it appears that the Common ROW has not been cleared from edge to edge and certainly not maintained routinely edge-to-edge. Some wetland vegetation clearing may be required in order to construct a new line on the opposite side of the existing poles if those are selected. Immokalee Road From Existing Common ROW to Orangetree Substation At the intersection of the Common ROW and Immokalee Road, the Alternate Corridor turns east and follows Immokalee Road approximately 8.5 miles to the Orangetree substation. (See FPL Exhibit 4 and CE Exhibit 61.) To provide for making the eastward turn at the intersection, the proposed Alternate Corridor is extended to 500 feet on either side of the centerline of the existing Common ROW from a point 1,000 feet north of the intersection of the Common ROW and Immokalee Road to the same intersection. From that intersection, the Alternate Corridor extends east to the Orangetree substation, along Immokalee road, at a width of 500 feet, north and south from the centerline of Immokalee Road (for a total of 1,000 feet in width). (See CE Exhibit 29, p. 2.) There are 20 planned residential communities and one section of the Golden Gate Estates subdivision along the Immokalee Road portion of the Alternate Corridor. The gross densities of these residential developments range from .51 to 12 units per acre on the north side of Immokalee Road, and from 2.11 to 12.84 units per acre on the south side of the road. On the north side of Immokalee Road, all but one of the residential developments has gross densities greater than one unit per acre. On the south side of Immokalee Road all but one of the residential developments have gross densities greater than three units per acre. There is one planned residential community that is actually developed into two communities, Orangetree (Orangetree and Waterways of Naples), and eight units of Golden Gate Estates residential subdivision located along the north or west and south or east sides of the Immokalee Road portion of the FPL Corridor. The gross density for the Orangetree planned community is .77 units per acre and .44 units per acre for Golden Gates Estates. See Finding of Fact 94. The land segment west of CR 951 is more urban and developed, as opposed to the land segment east of CR 951, which is more rural. Siting Constraints within Immokalee Road ROW There was diverging evidence on whether the COR #3 Line could be located and constructed within the Immokalee Road ROW along the ROW segment from the FPL Common ROW running east along Immokalee Road to the intersection of CR 951. During the public hearing, Donald Scott, the director of Collier County's Transportation Planning Department, testified and appeared in this capacity. He stated that Collier County is going to widen to six lanes, the portion of Immokalee Road from Livingston Road (the FPL Common ROW) to CR 951, i.e., a portion of the Alternate Corridor. (See FPL Exhibit 4 for the location of the road-widening project.) He also stated that the County has “some concerns with where the poles might possibly be placed in regards to utilities and other issues we’re dealing with within the corridor.” He wanted “to be on the record to raise our concerns - - and need for more work. [He understood] it can be within a wide corridor and it might not affect the road, but we have concerns with our widening, and would like to work with F.P.L. more and see if it’s even feasible.” Mr. Scott further explained: “The section from Livingston to I-75 will start construction by the end of this year. It’s about 90 percent design plans right now. The section from I-75 to County Road 951 is due to start 2006 with a design build.” Mr. Scott also stated: “We’re having a lot of problems particularly between Livingston and I-75.” During their case-in-chief, BCC and CE’s experts, Dr. Glover and Ms. Day, opined that the COR #3 Line could be located within the Alternate Corridor along Immokalee Road from the FPL Common ROW east to the intersection at CR 951. Dr. Glover opined, in part, that the COR #3 Line could be built on the north side of Immokalee Road, between the road and the SFWMD canal with good engineering practices. He based his opinion, in part, on the placement of an existing 230 kV line on concrete, single pole structures that start at the Orangetree substation and run westerly to Collier Boulevard (CR 951), located on the north side of Immokalee Road and south of the canal. Ms. Day thought that there may be room for the line within the 1,000-foot corridor. She was uncertain as to a specific location for the line within the corridor, but suggested that it would be the subject of more detailed studies. During rebuttal and in response to the testimony of Dr. Glover and Ms. Day that the COR #3 Line can be built in the Alternate Corridor segment as described above, FPL’s transmission line engineer, Mr. Hronec testified over objection that he was doubtful that the COR #3 Line could be built within the Immokalee Road ROW in this segment due to road widening plans and the presence of multiple underground utilities. (As discussed in more detail below, Mr. Hronec also opined that a line could not be located within the SFWMD canal north of Immokalee road.) His opinion testimony was based upon conversations with the Collier County Transportation Planning and Engineering Departments, a review of the County’s proposed road projects and plans to widen the segment, and personal observations of the segment. (As of FPL’s case-in-chief when Mr. Hronec testified initially, he had not studied the ROW to the west of CR 951 in the same detail as he had to the east of CR 951.) There are numerous utility facilities in place within Immokalee Road ROW in this segment of the Alternate Corridor, both north and south of the road pavement. There is also a generally continuous guardrail adjacent to the north side of the roadway. There appear to be guardrails on the south side of the road, but not continuous. By agreement of the parties, memorialized in the Order dated February 24, 2004, page 2, CE was authorized to file transcripts of deposition(s) in response to Mr. Hronec’s rebuttal testimony. On March 19, 2004, CE timely filed the transcript of the deposition of Mr. Conrecode. Mr. Conrecode, a Florida-registered Professional Engineer, was formerly the capital projects director for Collier County and the public works administrator for Collier County. In both positions, he had responsibility to design and plan the road network in Collier County as well as the construction of existing road facilities and new road corridors. He is also involved with other transportation-related entities. Mr. Conrecode reviewed Collier County’s plans for the widening of Immokalee Road within the Alternate Corridor. He also spoke with Clarence Tears, the director of the Big Cypress Basin, regarding the concerns of SFWMD. Mr. Conrecode opined that there was “substantial amount of space between the guardrail at the north side of the road and the top bank of the canal” to place the transmission line poles. (He also took into consideration the location of existing underground utilities.) He also stated, “the configuration on the north side of Immokalee Road is very similar to what FP&L encountered on [CR] 951 as they ran the connection from the Collier substation to the [n]ew Orange Street [sic] substation, the proximity from the top of the bank to the edge of the road.” Mr. Conrecode also opined that the transmission line could be located within the canal ROW north of the canal and on the south side of the canal. He felt that the area north of the canal had the best and most abundant access east of I-75, but that it was not the only engineering solution. He also opined that the transmission line could be placed within the SFWMD ROW, i.e., placed longitudinally in the SFWMD ROW, notwithstanding, Mr. Hronec’s testimony to the contrary. No persuasive evidence was offered regarding the specific setbacks required from the existing utilities, guardrails or pavement to establish the COR #3 Line in this area. DOT road-design standards would need to be consulted. Siting Constraints to the North of Immokalee Road ROW To the north of the Immokalee Road ROW between Livingston Road and CR 951, there is a SFWMD canal. Mr. Hronec opined that SFWMD prohibits construction of electric transmission lines longitudinally within their ROW (“works of the district,” here the canal). Florida Administrative Code Chapter 40E-6 pertains to the “works of the [SFWMD].” Florida Administrative Code Rule 40E-6.011(4) provides: “The District has determined that an unencumbered 40 foot wide strip of right of way, measured from the top of the bank landward, is required in order for the District to perform the required routine and emergency operations and maintenance activities necessary to insure flood protection to the entire community. In this 40 foot right of way, subject only to limited exceptions provided in this rule, the district shall not authorize any aboveground facilities or other encroachments.” (See Fla. Admin. Code R. 40E-6.121(2) and (6) and 40E-6.221(2); CE Exhibit 18.). The SFWMD published Volume V, “Permit Information Manual,” pertaining to “Criteria for Use of Works of the District,” September 15, 1999 (Manual). Regarding “Transmission Lines,” the a portion of the Manual provides: “The use of the District’s Works or Lands for the construction, operation, and maintenance of transmission lines has the potential to interfere with the District’s operation, maintenance and allied purposes. Applicants should acquire their own right of way and should not look to the District to utilize District-controlled Works or Lands, which were acquired for water management and other allied purposes. This policy should not be construed as a prohibition against the construction of distribution or transmission line crossings, nor is it a prohibition against use of short segments of District’s right of way for the construction of local distribution facilities when such facilities will not interfere with operations and maintenance and are otherwise acceptable to the District.” The SFWMD also provides for five operational zones described in the Manual at page 28 and Florida Administrative Code Rule 40E-6.011(7), Figure 1, pertaining to Zones 1 through 5 and providing distances from the canal channel and the top of the bank outward. (Zone one is the canal channel from the top of the bank to the opposite top of the bank; Zone two is the point on the ROW from a point five feet landward from the top of the bank; Zone three is between five and 20 feet landward from the top of the bank; Zone four is from 20 to 40 feet landward from the top of the bank; and Zone five is any ROW located further than than 40 feet landward from the top of the bank.) (See CE Rebuttal Exhibit 2.) Mr. Conrecode offered testimony regarding the potential placement of the COR #3 Line within the “Zones.” He observed that FPL, in its existing Orangetree line, has located the poles along CR 951 of the existing canal. No representative from the SFWMD testified in this proceeding. However, the Governing Board of the SFWMD adopted Resolution No. 2003-1207, and concluded that the Alternate Corridor “would not adversely impact the water resources and other matters with the [SFWMD’s] jurisdiction.” (CE Exhibit 18.) Also, several ROW conditions are attached to this Resolution, including the requirement that the permittee submit drawings “showing the proposed facilities for a determination of compliance with the requirements of Chapter 40E-6, F.A.C.” Id. at 8 of 19. (See also CE Exhibit 18, pp. 18 and 19 of 19, Land Management Footnotes (1)-(8).) Aside from the brief public hearing testimony of Mr. Scott, no representative from Collier County Transportation Planning Department, testified regarding the possible placement of the COR #3 Line north or south of Immokalee Road in the location of the Alternate Corridor. As noted, Mr. Conrecode opined, based upon conversations with Mr. Tears, in conjunction with his reading of the SFWMD rules and Manual provisions and Collier County plans for the area, that the COR #3 Line could be placed within the SFWMD canal ROW. Locating and constructing the line in this area would depend on locating the line with precision and then consulting with SFWMD staff. (See CE Exhibit 18.) In the areas north of the SFWMD canal, there are a number of places where development has already filled in up to and abutting the canal which may not leave room for placement of the COR #3 Line. It would be possible to construct portions of the COR #3 Line north of the SFWMD canal in the other areas where development has not yet filled in immediately adjacent to the canal. Several residents who live north of the canal in this segment of the Alternate Corridor, including the president of the Longshore Lake Homeowners Association (this subdivision is located a half of a mile east of the I-75 interchange on Immokalee Road (see FPL Exhibit 4), testified at the public hearing and expressed concern that the proposed transmission line might be placed adjacent to their existing development rather than in the largely undeveloped segment of the FPL Corridor along Immokalee Road. Siting Constraints to the South of Immokalee Road ROW The COR #3 Line might be able to be built on private easements adjoining the south side of Immokalee Road ROW, if private easements could be acquired. FPL’s transmission line engineer is concerned about the ability to acquire a private easement adjacent to the Immokalee Road ROW within the Alternate Corridor because a showing would be required in eminent domain proceedings that this is the best available route. Mr. Conrecode agreed that placing the transmission on the south side of Immokalee Road could be a problem in practice because of the locations of the existing ROW. He believes FPL would have to acquire additional ROW for the location of the poles. But, because of the adequacy of the ROW to the north side of the road, Mr. Conrecode believed that it would not be necessary to consider the south side of the road. Placement of the COR #3 Line on the south side of Immokalee Road would likely negatively impact many existing buffers and visual amenities as follows: The live oaks that presently buffer the Windsong Club Apartment townhomes from the road and existing distribution line, which goes along the south side of Immokalee Road in this area, would have to be removed or severely pruned. These townhomes face Immokalee Road and are set back only 20 to 30 feet from the sidewalk. Most of the trees and palms that presently buffer the Ibis Cove homes from Immokalee Road and adjacent distribution line would have to be removed. The backs of these homes are about 30 to 40 feet from the sidewalk. The Hong Kong orchid and sable palms that buffer the Pebblebrook Lakes homes from Immokalee Road and the existing distribution line would have to be removed. These homes are set back approximately 10 to 15 feet from the back of the property line. The developer of Saturnia Lakes previously paid to have the existing overhead distribution line on the south side of Immokalee Road buried for several hundred feet in front of its development. In addition to adding an overhead power line in this area, the vegetative area that presently buffers the Saturnia Lakes homes from Immokalee Road would also probably need to be greatly reduced. The Washingtonia palms and the large oak at the entrance to Heritage Greens would conflict with the COR #3 Line and would need to be removed. The pine trees in front of the Laurel Oaks Elementary School and Gulf Coast High School would be in conflict with the COR #3 Line if it were placed on the south side of Immokalee Road in this area. The street trees in front of two of the churches would probably have to be removed if the COR #3 Line were constructed on the south side of the road. Other Land Use Issues This segment of the Alternate Corridor conflicts with the two highest-ranking criteria for corridor selection identified in the results of the community survey conducted by FPL’s multi-disciplinary team during its route selection study-- avoidance of homes and schools. There are two schools, Laurel Oaks Elementary School and adjacent Gulf Coast High School, and three churches on the south side of Immokalee Road between the Common ROW and the Orangetree substation. (One parcel is being purchased for another school east of CR 951.) There is already a 230-kV transmission line on the north side of Immokalee Road from CR 951 east to the Orangetree substation. The structures for that line are not of sufficient strength to also support the COR #3 Line. If the COR #3 Line were built on the south side of Immokalee Road for this four- mile segment, there would be a transmission line on both sides of Immokalee Road. FPL’s experience has been that placement of a transmission line on both sides of a road is not supported by the community. Other Engineering Considerations Between the Common ROW and CR 951, it may be theoretically possible to cross back and forth across Immokalee Road in an attempt to avoid the proximate homes, churches and school sites on the south side, but such multiple crossings of the road may require taller structures to maintain required vertical clearances while crossing both the road ROW and the 100-foot-wide SFWMD ROW. If the crossings were not right angles, this configuration would require long expanses of conductor cables going over both the Immokalee Road ROW and the SFWMD canal, which would be undesirable. Such a zigzag configuration would also require approvals from SFWMD for multiple crossings of its canal in a short area. No credible evidence was offered to show whether approval could be obtained. Mr. Hronec did not believe this configuration would violate any local laws or ordinances of Collier County. A zigzag configuration may also require either guying or use of more substantial foundations to support the differential tension for structures where the conductors turned large angles, typically exceeding 10-15 degrees. This configuration is likely to create visual clutter, accentuating the visual impact of the line. The minimization of the number of crossings of a roadway or canal would be good engineering practice. This segment of the Alternate Corridor also presents the engineering challenge of crossing I-75 at an interchange in excess of 1,200 feet in width. DOT restricts the ability to place structures within the confines of such an interchange. Therefore, this crossing may require multiple elevated structures, the tallest of which could exceed 120 to 130 feet in height, to achieve the required vertical clearances of about 24 feet above the pavement. However, there is no rule that would prohibit the construction of the COR #3 Line in and adjacent to the interstate interchange. See Finding of Fact 253. Can the Alternate Corridor between the Common ROW and CR 951 accommodate the COR #3 Line? CE offered the testimony of Mr. Conrecode, and others, suggesting possible alternatives for the placement of the COR #3 Line in this segment of the Alternate Corridor. FPL offered credible rebuttal evidence. This segment of the Alternate Corridor may accommodate the COR #3 Line. However, the actual location and construction of the COR #3 Line within this segment of the Alternate Corridor presents significant engineering design and construction constraints and potential impacts upon the public for the reasons stated herein. See also Findings of Fact 226, 230, 252, and Endnote 17. Orangetree Substation to Collier Substation The southernmost portion of the Alternate Corridor between the Orangetree and Collier substations is identical to the FPL Corridor. WHETHER AND THE EXTENT TO WHICH EACH CORRIDOR WILL COMPLY WITH SECTION 403.529(4), FLORIDA STATUTES, CRITERIA Ensure Electric Power System Reliability and Integrity The Project Service Area is presently served by (a) three 230-kV transmission lines (a fourth 230-kV line runs from the Ft. Myers Power Plant to the Orange River substation) that run from the Orange River substation into the Project Service Area, two of which run directly to the Collier substation, and the third runs (loops) to FPL’s Alico substation and continues to the Collier substation; (b) three 138-kV lines that run from Ft. Myers Power Plant to the Project Service Area, generally in the western portion of the Project Service Area. See Findings of Fact 20-26. Whether the COR #3 Line is built in FPL’s Corridor or the Alternate Corridor will not change the electrical peninsula character of the Project Service Area because the area will still be fed from the north only. FPL has a responsibility to provide safe and reliable service to its customers. The provision of reliable electric service to its customers is important to FPL. In the past, FPL has consistently demonstrated the ability to plan a reliable electric system consistent with NERC and FRCC planning standards. Electric system reliability involves both the “adequacy” of the system to serve load (demand), and the “security” of the system to continue serving load, even after one system component is taken out of service. Electric system integrity requires having all elements of the electric system in service, protected from overloads or abuse. System integrity is closely related to system reliability. The NERC is a national organization that adopts standards for electric system planning and reliability that are used nationwide. The FRCC, which represents all of the investor-owned utilities, cooperative systems, municipal electric utilities, independent power producers and power marketers that operate in peninsular Florida east of the Apalachicola River, participates in the development of, and has adopted the national planning standards established by NERC for the reliability of electrical transmission lines. NERC’s planning standards, which are relied upon in the entire electric utility industry nationwide for the planning of new electrical transmission line facilities, address four transmission systems standards – normal and contingency conditions: Category A – all facilities in service and operating normally (voltages are appropriate) and no loss of load (customer electric demand or supply); Category B – a single element of the transmission system is out of service (also referred to as a “single contingency,” transmission system is stable, and no loss of load to customers; Category C – two or more elements of the transmission system are simultaneously taken out of service, transmission system required to achieve a stable operating state without overloaded transmission lines and with appropriate voltages and without cascading outages and with a variable loss of some customer load; and Category D – an extreme event resulting in two or more (multiple) elements being removed or cascading out of service. (FPL Exhibit 12, Table I.) Construction of the COR #3 Line in either the FPL Corridor or the Alternate Corridor would be consistent with the NERC planning standards. Similarly, whether the proposed COR #3 Line is located on the FPL Corridor or the Alternate Corridor, it will provide looping to the Orangetree substation.12 Looping of this substation will improve the reliability of electric service to customers served by the Orangetree substation because it will provide an alternate source of electricity that can sustain the substation in the event one source is taken out of service. The loss of the Common ROW has not been studied by FRCC as a Category D event. FRCC has studied extreme events, such as the loss of generating plants, e.g., Crystal River, St. Lucie, Turkey Point, and Martin, and the loss of 500-kV lines in Common ROWs. According to Dr. Glover, under NERC standards, a utility has the discretion to address a Category D event that does not result in cascading outages. But he was not aware of another utility applying a Category D event to other than cascading system-wide outages. FPL plans its system to withstand any single contingency without loss of load (loss of service) to any of its customers, consistent with the NERC planning standards. Category D events (extreme events) include the loss of multiple generating units at a single site, loss of a substation, loss of a transmission line with three or four circuits on it, and loss of all transmission lines on a common ROW. (FPL Exhibit 12, Table I.D.) Following a Category D extreme event, one would expect at least some of a utility’s customers to experience loss of electric service for some period of time. A utility is required by the NERC planning standards to ensure that a Category D event on their system does not result in cascading outages, where the outage spreads in a domino fashion and impacts other utilities’ systems. A “cascading outage” is an outage event that begins in one area but spreads to another area, causing outages in the second area. For example, an outage starting in another state and causing outages in Florida, or an outage starting in one Florida utility’s service area and causing an outage in other Florida utilities service area, is considered to be a “cascading outage.” The Project Service Area is an electrical peninsula and cascading of an outage to other areas is not likely. A loss of a substantial electrical load in a large area caused by a single event taking multiple electric system elements out of service, even if it does not result in cascading outages, is also classified as a Category D event. Under the NERC planning standards, although a utility is not required to evaluate all Category D extreme events, a utility must exercise its judgment as to which extreme events it will evaluate and which non-cascading Category D events it will institute actions to mitigate. (See FPL Exhibit 12, Footnote e to Table I.D. of the NERC Planning Standards which states: “A number of extreme contingencies that are listed under Category D and judged to be critical by the transmission planning entity(ies) will be selected for evaluation. It is not expected that all possible facility outages under each listed contingency of Category D will be evaluated.”) Allowing some customers to temporarily lose their electric service (referred to as “load shedding”) is an acceptable practice when needed to preserve reliability to the remainder of a utility’s customers. Electrical Vulnerability of Project Service Area There are types of extreme single events that can take all of the transmission lines out of the service on the Common ROW including hurricanes, tornadoes, wind-blown debris, plane crashes, wildfires, vandalism, sabotage and terrorism. The Common ROW in the Project Service Area is vulnerable to several extreme events that could take out of service all the transmission lines within that ROW. For example, there are five airports (including the Southwest Florida International Airport, approximately one mile from the FPL Common ROW) in the vicinity of the Common ROW, resulting in a potential for plane crashes. Portions of the Common ROW go through undeveloped areas where wildfires could cause an outage, as has happened on other FPL common ROWs. While no outages of the lines on the Common ROW have been caused by tornadoes or hurricanes since 1989, these types of weather events occur in the Project Service Area.13 These weather events and associated large wind-blown debris can also result in a complete outage of lines on a common ROW. While FPL cannot control the frequency of Category D events that can result in a common ROW outage, it has some control over the duration and consequences of the outage. Due to the electrical peninsula nature of the Project Service Area, an electrical outage caused by an extreme event affecting the Common ROW would last as long as it took to repair the damaged lines because there is no other way to deliver electricity to FPL’s customers in the south end of the “peninsula.” If a transmission line is damaged by an extreme event like a plane crash, hurricane, tornado or sabotage, depending on the severity of the event, all of the phases of construction required for a new transmission line, other than possibly surveying, may be required to reconstruct the damaged line. Depending on the severity of the damage, an extreme event damaging all of the transmission lines on the Common ROW could result in hundreds of thousands of FPL customers being out of service for approximately two to six days.14 See Finding of Fact 297. (Mr. Armand testified, in part, that FPL’s assertion of an outage lasting up to six days is “totally unrealistic.” He believed that there is a very small probability of a corridor outage in the Common ROW with the COR #3 Line located in it, and that if there were to be such an outage, it would be less than 12 hours in duration, i.e., to get one line operational. See Finding of Fact 296.) Even though FPL is recognized as an industry leader in service restoration efforts, and it has in place an emergency response plan to restore structurally damaged transmission facilities in the Common ROW, it may take a minimum of two days to get the first damaged circuit back in service, depending on the extent of the damage. Reliability Enhancement from Geographic Separation Placement of the COR #3 Line on a geographically separate ROW like the FPL Corridor spreads the risk and lowers the likelihood that all 230-kV lines serving the Project Service Area would be taken out of service by a single event. While outages of all transmission lines on common ROWs (Category D events) are a relatively rare occurrence, they do occasionally occur. (FPL Exhibit 11.) It is difficult to establish with any degree of certainty a mathematical probability of such a Category D event occurring. Since 1985, FPL has experienced 12 events where all transmission lines on a common ROW on its system have been taken out of service due to hurricane, tornado, birds, plane crash or wildfire.15 (FPL Exhibit 11.) (In 1977, FPL experienced an outage on the Andytown line.) See Findings of Fact 295-297. The typical corridor outage is of relatively brief duration. Of the 13 corridor outages reported in FPL Exhibit 11 and BCC Exhibit 7, several were 16 or fewer minutes in duration. The Turkey Point Corridor suffered a 120-hour outage as a result of Hurricane Andrew and, as a result of the hurricane, FPL experienced transmission line “outages in a large area of Dade and Broward Counties.” While not accounting for all reported corridor outages, other corridor outages lasted approximately 11 hours (Volusia-Smyrna #’s 1 and 2 115-kV (plane)) and approximately 17 and 10 hours (Duval-Thalmann 500-kV and Duval- Hatch 500-kV, respectively (plane)). Except for the outage occurring in the Turkey Point Corridor that has seven 230-kV lines, there have been no transmission line corridor outages involving four or more transmission lines. There have been no reported common corridor outages in the Common ROW or the Project Service Area. There are many reported single-transmission line outages within the Collier-Orange River Corridor, but none attributable to a plane crash, hurricane, or tornado. Many of the reported transmission line outages in the Collier-Orange River Corridor have been attributed to unknown causes, equipment failures, foreign interference, lightning, birds, and human elements (other than vandalism). In the Collier-Orange River Corridor, there have been eight line outages on six different days caused by fire and one outage due to vandalism. (BCC Exhibit 5-(1989-2003).) When planning a transmission line system in Florida, the loss of all transmission lines in a common ROW is one of the probable extreme events that should be evaluated. The loss of an entire generating plant is another. All of the 230-kV transmission lines on the Common ROW are on two structures for much of its length. In these places, an extreme event would only have to destroy two structures to take all of the 230-kV lines on the Common ROW out of service. Guide G6 in NERC’s planning standards, which represents a good planning practice, provides that the transmission system should be planned to avoid excessive dependence on any one transmission circuit, structure, ROW or substation. Guide G6 is a reasonable basis to plan a new ROW geographically separate from an existing ROW that already contains multiple transmission line circuits. Similarly, the FRCC crisis response plan identifies physical security measures for which utilities should plan to enhance the reliability of Florida’s transmission system. These physical security measures were adopted following September 11, 2001. That plan recommends that utilities consider not placing too many transmission lines on a common ROW because of terrorist-type threats, sabotage, or disgruntled employees. Minimizing risk to infrastructure is also consistent with the planning philosophies of homeland security. Deterministic vs. Probabilistic Contingency Assessment In the context of contingency assessments for transmission lines, two types of evaluations are possible: deterministic and probabilistic. When using a deterministic evaluation, a utility determines whether an event can occur and, if so, the consequences of that event. If the consequences are severe, the utility evaluates the steps it could take to mitigate the adverse effects. When using a probabilistic evaluation, a mathematical computation is used, based on historical data. This method is used when, for example, calculating the probability that all generators in Florida might not meet future loads in the future. NERC’s planning standards do not require a probabilistic evaluation when assessing Category D contingencies. The president of FRCC, Mr. Wiley, is not aware of any utility using a probabilistic evaluation for transmission line planning in his forty years of experience. In planning the COR #3 Line on a geographically separate ROW, FPL used a deterministic evaluation. FPL determined that an extreme event could cause an outage of all lines on the Common ROW, and that the consequences of such an outage were severe enough to warrant looking for a geographically separate ROW. If an extreme event like a plane crash takes out of service all of the transmission lines on the existing Common ROW, leaving the COR #3 Line undamaged on a geographically separate ROW within the FPL Corridor would allow FPL to restore service to about 60 percent of the demand in the Project Service Area in the worst case. With the available electricity, FPL could direct power to circuits with critical facilities within the Project Service Area, such as hospitals, police stations and fire stations, and rotate the blackout among many of its other customers until the damaged lines were reconstructed. Alternatively, if the COR #3 Line were placed on the existing Common ROW and all of the transmission lines on the ROW were taken out of service by an extreme event, FPL would only be able to serve about 25-30 percent of the load in the Project Service Area through the 138-kV transmission network until the damaged lines were rebuilt. In such an event, there may not be enough electricity to energize all of the feeders that serve critical facilities in the Project Service Area. Further Justification for Geographic Separation The “not-in-my-backyard” approach of many landowners is a well-known impediment to transmission line construction, and obtaining property rights for new transmission lines is becoming increasingly difficult. Getting land for a new transmission line ROW is more difficult when development has already occurred than when land is still relatively undeveloped. The population and demand for electricity in the Project Service Area are both growing rapidly. FPL projects there will be a need to add more transmission lines to bring power into the Project Service Area within the next 10 to 15 years. Even though there is room on the existing common ROW to accommodate the addition of at least two new transmission circuits (one on the existing COR #2 structures and one on new structures), it is prudent for FPL to establish a geographically separate transmission line ROW in the Project Service Area for the COR #3 Line before future development makes it more difficult to do so. The Common ROW between the Orange River and Collier substations is the only common ROW on FPL’s system with no generating plant connected on each end. For all the other FPL common ROWs, if there is an extreme event that takes out of service all the lines on that ROW, the resulting outage will last only as long as it takes to redirect power from FPL’s fleet of generators. In the Project Service Area, there is currently no way other than the Common ROW to adequately feed the significant electrical demand in the Naples area. Thus, an outage in the Project Service Area caused by an extreme event on the Common ROW would last as long as it took to repair the damaged lines, which could take several days. Collier County’s Director of Emergency Management testified that, in his opinion, it is simple common sense planning to provide as much separation as possible between the COR #3 Line and the other 230-kV lines on the Common ROW. It is highly unlikely that an extreme event would affect both the Common ROW and the COR #3 Line on a geographically separate route. Thus, the geographic separation would enhance the ability to restore electric service to the community. The FPL Corridor also facilitates the timely provision of reliability looping to LCEC’s existing and future substations. If the COR #3 Line is not built in the FPL Corridor, this reliability looping would be farther in the future and it would cost substantially more to achieve because of the increased distance between the LCEC system and the closest point on the Alternate Corridor. Other Projects that Might Improve Reliability of Electric Service in the Project Service Area Rejected BCC offered testimony suggesting FPL has the option of upgrading its 138-kV transmission system located to the west of the Common ROW to 230-kV facilities in the Project Service Area rather than building a new 230-kV line. In making this suggestion, however, BCC’s witness assumed, and concluded, that there would be physical space to accomplish such an upgrade. (He had not inspected all of the existing 138-kV facilities in this area.) FPL’s transmission line engineer noted that a number of the existing 138-kV substations on that system have insufficient physical space to allow for the conversion, although he did not recall which substations are physically incapable of expansion to accommodate the conversion. No persuasive evidence was offered by BCC to explain how the electrical demands in the area could be met while the lines were being reconstructed. As another alternative for eliminating the peninsula effect, BCC suggested that FPL could have resolved its reliability concern and eliminated the electrical peninsula nature of the Project Service Area by installing generation capacity in that Area.16 But this option was one of the alternative projects considered by the PSC in the need proceeding for this project, and it was rejected. FPL has not pursued a suggested option to relocate the transmission lines off of common ROWs to increase reliability on its common ROWS outside the Project Service Area because they all have generation on both ends, allowing FPL to feed demand using generation facilities even if all the lines on a common ROW are out of service. Here, while FPL is not proposing to “relocate” a line off the Common ROW, it is proposing to take advantage of the fact that a new line is needed by constructing it off the Common ROW, achieving the same result suggested by this option. BCC appears to be concerned that use of either the FPL Corridor or the Alternate Corridor for the COR #3 Line will increase the percentage of transmission capacity in the Project Service Area that comes through the Orange River substation. Although BCC offered testimony that loss of the Orange River substation would result in similar numbers of customers being out of service as a Common ROW outage, FPL’s decision to not duplicate that substation facility is reasonable. Duplication of the Orange River substation would probably be too expensive, although the specific amount is uncertain. Also, while a transmission line is a linear facility, a substation is a finite location, resulting in much less exposure to an extreme event. Moreover, substations are very robust facilities that are able to withstand higher wind and mechanical forces, and are less vulnerable to wildfires than transmission lines. For all these reasons, a complete outage of the Orange River substation is less likely than an outage of all the lines on the Common ROW. FPL’s Judgment to Seek a Geographically Separate ROW Consistent with Prior Action This is not the first time FPL has decided to seek a geographically separate route for a new transmission line even though space was available on a common ROW. On one other occasion, FPL chose to locate a transmission line on a geographically separate route from an existing common ROW where there was room to accommodate the new line. FPL made that decision for geographic separation for many of the same reasons it is seeking a geographically separate route for the COR #3 Line. FPL lost all three lines in the common corridor that resulted in a complete blackout and no amount of load shedding could arrest the frequency decline and prevent the blackout. In that instance, after a 500-kV common ROW outage caused an electrical outage in South Florida for over three hours, FPL chose to put its next 500-kV transmission line on a geographically separate route. FPL’s service area generally covers the eastern half of the Florida peninsula and southwest Florida. FPL has approximately 15 common transmission line corridors of varying lengths that have at least the transmission line capacity of four 230-kV lines. The total transmission line capacity of these corridors ranges from four 230-kV lines to as many as nine 230-kV lines, as well as (a) two 500-kV lines and three 230-kV lines; (b) three 500-kV lines; and (c) one 500-kV line and seven 230-kV lines. FPL has installed new 230-kV transmission lines in common corridors since 1992. FPL is planning to add additional generating capacity at its Martin generating station and an additional 1,100 MW of capacity at its Turkey Point station. It does not appear that FPL has relocated any of the 230-kV lines out of the Turkey Point corridor in order to achieve geographic diversity. CE and BCC suggest that the current state of FPL’s corridors and generating plants described above is inconsistent with FPL’s Corridor. All of the reasons for FPL’s decisions to plan and construct and add to the facilities noted above are not apparent in this record. However, the unique nature of the Project Service Area, in part, distinguishes FPL’s plans to locate the COR #3 Line in FPL’s Corridor from other projects. Geographic Separation Appropriate for COR #3 Line The contingencies that FPL addressed in its evaluation of the reliability of the proposed COR #3 Line Project were reasonable and appropriate under the NERC planning standards. Given the electrical peninsula nature of the Project Service Area, it is prudent to locate the new COR #3 Line on a route that is geographically separate from the existing Common ROW to enhance reliability for the customer. Construction of the COR #3 Line in the FPL Corridor would provide greater system reliability and integrity for FPL’s customers. Use of this geographically separate ROW would mitigate the possibility of all transmission lines on the Common ROW being taken out of service simultaneously and leaving a substantial percentage of FPL’s customers in the Project Service Area without power for an extended period of time. Construction of the COR #3 Line on a geographically separate ROW, such as the FPL Corridor, is prudent and will ensure electric system reliability, integrity and service restoration. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion The PSC recognized that FPL’s planning studies indicate that the COR #3 Line is needed by December 2005 to alleviate potential overloads and low voltage conditions from a single contingency event. The COR # 3 Line can be constructed in either the FPL Corridor or the Alternate Corridor and meet the requirements set forth in Finding of Fact 47, except as otherwise noted herein regarding the potential significant constraints to locate and construct the COR #3 Line within the Alternate Corridor between the Common ROW and CR 951 along Immokalee Road. Location of the COR #3 Line on either the FPL Corridor or the Alternate Corridor would meet the electrical energy needs of the state in a timely fashion in that the single-contingency planning criteria established by NERC will be met. However, the FPL Corridor would meet the electrical energy needs of the state in a more orderly fashion than the Alternate Corridor because: The Project Service Area is a fast growing area of the state and new distribution substations will likely be required in the eastern portions of Lee and Collier County. Those future substations can be fed more efficiently from the FPL Corridor than if the COR #3 Line is placed on the existing Common ROW and long east- west transmission lines (similar to the Immokalee Road segment of the Alternate Corridor) are required to feed those substations. In transmission line siting, it is easier to locate a new transmission line in an area before it becomes developed. The Alternate Corridor incorporates a 4-mile stretch of Immokalee Road that is already densely developed. In contrast, much of the FPL Corridor’s route is presently undeveloped or agricultural in nature. Both CE and BCC acknowledge plans to develop their lands adjacent to Immokalee Road along the FPL Corridor within the next 10 to 15 years. While there is space on the Common ROW for placement of additional 230-kV transmission lines that may accommodate electric demand for another 29 to 44 years, it is not prudent to wait that long to establish a geographically separate ROW. By that time, CE and BCC plan to have developed their lands and it is not unreasonable to expect that the then-existing residents and businesses on that eastern stretch of Immokalee Road will be in the same position as those currently located along the western stretch of Immokalee Road within the Alternate Corridor. These residents will be occupying development in place that has not been planned to accommodate an adjacent transmission line. Comply with the Nonprocedural Requirements of Agencies The location, construction, operation, and maintenance of the COR #3 Line in either the FPL Corridor or the Alternate Corridor could comply with all applicable nonprocedural requirements of agencies. The segment of the Alternate Corridor between the Common ROW and CR 951 may accommodate the location and construction of the COR #3 Line, subject to the significant engineering design and construction constraints discussed herein. See Findings of Fact 120-156, 226. Be Consistent with Applicable Local Government Comprehensive Plans The location, construction, and maintenance of the COR #3 Line in either the FPL Corridor or the Alternate Corridor will be consistent with all applicable provisions of local government comprehensive plans. The COR #3 Line ROW will be established through the grant of approval from an existing ROW owner or FPL’s acquisition of an easement or fee simple interest in property. These acquisitions can be through purchase, eminent domain, or by grant. No segment of the COR #3 Line will be constructed until the ROW for that segment has been established. The Lee County Comprehensive Plan is essentially silent on transmission lines as a land use. There are two potentially applicable policies in the Comprehensive Plan of the City of Fort Myers. One indicates that land should be provided for utilities, and the other explicitly provides that the City’s land development regulations shall only permit, among other identified uses, utility lines, poles, and/or pipes in wetland areas. In the Collier County Comprehensive Plan, essential services (which include transmission lines) are permitted uses in all future land use designations crossed by the FPL Corridor or the Alternate Corridor. Similarly, Section 2.6.9.3 of the Collier County’s Land Development Code exempts “structures supporting lines or cables” from the regulations. 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 Maintenance of the Transmission Lines In determining whether it is practicable to locate the COR #3 Line on a route that is geographically separated from the existing Common ROW, three relevant factors to consider are the costs of the geographically separate route, the benefits of that route, and the technical ability to construct the COR #3 Line on the alternative route. The need for the COR #3 Line is not disputed. All parties agree that reliable electric service is desirable. The type of transmission line design proposed for the COR #3 Line occurs in all types of land uses throughout Florida. By collocating the new line with existing linear features, such as roads, property boundaries and other transmission line ROWs, both the FPL Corridor and the Alternate Corridor conform to the existing patterns of land development, and will consolidate land use/environmental impacts to a single area, as opposed to locating the new line in a non-collocated alignment. Collocation also reduces the amount of new ROW needed. For example, next to a road, the new line will only need a ROW that is up to 15 feet in width, whereas up to a 60-foot ROW is required where the line is not collocated with an existing linear feature. Impact Upon the Public Two priorities expressed by the community in the Project Service Area during the public outreach activities were the minimization of impacts to homes and schools. The FPL Corridor minimizes impacts to existing homes by following a route where there is little residential development and where planned residential development is low density. There do not appear to be any schools within or adjacent to the FPL Corridor, although the Collier County School Board is in the process of acquiring land on the south side of Immokalee Road approximately three miles east of CR 951 and west of the Orangetree substation. (See FPL Exhibit 6-5, proposed site designated with a circle.) Intervenor, Kenneth E. Smith, whose residence is located on Green Meadows Road along the FPL Corridor, expressed concern about the potential for health effects from electric and magnetic fields. See also Findings of Fact 11 and 80. BCC’s representative, Thomas W. Sansbury, is employed by the Grey Oaks Development Corporation as its president; Grey Oaks Realty Corporation as its president and broker of record; and Grey Oaks Community Services. The Grey Oaks community is on the west side of Livingston Road and near the Collier substation. (FPL Exhibit 4.) (A member of the board of BCC owns Grey Oaks Development Corporation and Grey Oaks Community Services.) Mr. Sansbury has extensive experience in the sales, management, and operations of developments. He also advised that there is sales resistance when developments are close to or adjacent to transmission lines. He advised of the need and cost for buffering of properties that are nearby transmission lines. Mr. Sansbury also believed that BCC has the ability to plan and develop other commercially successful developments (like Grey Oaks, for example) that are adjacent to other transmission lines. He also expressed concern about the public’s perception of effects from electric and magnetic fields and sales resistance he has received from being close to or adjacent to transmission lines. Mr. Sansbury, who served on the Environmental Regulation Commission when the DEP’s rule limiting the electric and magnetic fields associated with electric transmission lines and substations were adopted, agreed that the experts who testified at the Commission’s hearings around the state supported a determination that there is no conclusive evidence that there is any danger or hazard to public health at the 60 Hertz electric and magnetic fields found in Florida, although he stated that typical buyers do not support such a determination. The COR #3 Line will comply with the standards adopted by the DEP, limiting the electric and magnetic fields associated with transmission lines in all areas of the FPL Corridor. The Alternate Corridor along Immokalee Road (from the Common ROW to CR 951) is adjacent to high-density residential development and two existing schools. See Finding of Fact 242. Yet, avoiding homes and schools are high priorities in this community. There are several techniques that can be used to lessen the potential impact of an adjacent transmission line on development. They include the installation of an earth berm and/or landscaping to buffer the development from the transmission line; alignment of residential units so the living space at the rear of the homes are faced away from the line; and the placement of lesser-valued or non-residential units, like golf courses and commercial uses, closest to the line. It is easier to implement these mitigation techniques prior to development taking place or prior to development being planned and approved, than after the development is complete or approved. From a land use perspective, the Common ROW portion of the Alternate Corridor is suitable for the placement of the COR #3 Line. Also, from a land use perspective, the FPL Corridor from the Orange River substation south to its intersection with Immokalee Road is similar in land use impacts to the portion of the Alternate Corridor on the existing Common ROW north of the intersection with Immokalee Road. In these areas, both corridors follow existing linear facilities and are suitable for location of the COR #3 Line from a land use perspective. (See, e.g., FPL Exhibit 4.) Aside from some environmental area issues discussed herein, the main difference in land use impacts between the FPL Corridor and the Alternate Corridor occurs along their two different Immokalee Road segments. There is little existing development in the FPL Corridor along Immokalee Road (east of CR 951), whereas the existing residential and commercial development in the Alternate Corridor between the Common ROW and CR 951 is quite extensive. Placement of the COR #3 Line in the Alternate Corridor along Immokalee Road between Livingston Road (which is just east of the Common ROW) and CR 951 would have more significant impacts on residential areas than placement of the line within the FPL Corridor. The existing residential development within the Alternate Corridor in this area is much higher density, and the FPL Corridor provides greater opportunity for future development to accommodate or plan around the line as an existing feature. In addition to the existing residential development along Immokalee Road within the Alternate Corridor, several other developments are already planned and have received at least some of their approvals. Also, to place the COR #3 Line in the Alternate Corridor along Immokalee Road between Livingston Road and CR 951, a zigzag configuration may be required. See Findings of Fact 150-153. This zigzagging would create visual clutter, whereas placement of the line in the FPL Corridor parallel to a road would allow the line to blend into the other linear elements and not predominate. While construction of the COR #3 Line in the Alternate Corridor could comply with applicable standards as listed in Finding of Fact 47, compliance with good engineering practices may be difficult to achieve along the segment of Immokalee Road within the Alternate Corridor because of the uncertainty of where the COR #3 Line can be located and the constraints discussed herein. See Finding of Fact 156. The crossing of I-75/Immokalee Road interchange within the Alternate Corridor without placement of structures within the DOT I-75 interchange, may require the use of multiple elevated structures, some of which might exceed 120 feet or 130 feet in height to achieve the appropriate vertical clearances over the elevated roadway. See also Finding of Fact 154. CE offered testimony that the COR #3 Line could have a negative impact on the quality of a car trip to the vehicle’s occupants. Yet there are between two and three times the number of vehicles each day on the segment of Immokalee Road traversed by the Alternate Corridor, compared to the segment in the FPL Corridor. Along Immokalee Road, the FPL Corridor is a better choice than the Alternate Corridor from a land use planning perspective. In planning future development land holdings of CE and BCC, CE and BCC would have the flexibility to install berms and landscape materials to buffer future development from the COR #3 Line and Immokalee Road. Both CE and BCC have experience buffering development from transmission lines and achieving a commercial success with such development. Evidence presented by BCC of the potential for the COR #3 Line to impact the “sales velocity” (speed with which a residential lot or home sells) and property value impact to its lands along the FPL Corridor has some merit but is not persuasive. When selling homes in Collier County, the preferred orientations that affect values of homes in Collier County are to have the living space facing west, toward a golf course or water. The two villa properties used for comparison in this testimony are not comparable to one another from a landscape architecture perspective. The Muse villa properties are on the eastern portion of the Grey Oaks community and are buffered from the FPL ROW by a buffer area, landscape berm, and roadway. The units are faced away from the ROW. The Muse contains approximately 26 residential units of 2,600 to 3,000 square feet. The Santiva community has similarly sized and number of units and is on the east side of Airport-Pulling Road (western border of the property) and buffered from this road by a canal, a berm, and a road. The Santiva units sold out are essentially one year and six months while the Muse units, which buffered the power lines sold out in approximately three years. While the villas (The Muse) that sold more slowly face west and are adjacent and west of Livingston Road along the Common ROW, the view from the living space is over a single golf hole, whereas the villas (Santiva) that sold more quickly have a view of both a lake and several golf holes. Accordingly, the villas that sold more quickly are more desirable from a landscape architecture perspective because of the lot layout. Also, the villas that sold more quickly were in a later phase of the development that occurred after the development had already achieved a good reputation in the community. Nevertheless, the units that do not border on a transmission line are more desirable and valuable than those that are adjacent to a transmission line in this area. Also, utilizing golf holes as a buffer increases the cost of the development. Evidence was also presented regarding property value impacts and sales velocity regarding the estate homes section (on Dalia Way) lots on two sides of the street. The homes that face east on the right side of the street, and were buffered from multiple transmission lines on the existing Common ROW by a golf hole, sold for less and more slowly than the homes that faced west on the other side of the street. Part of the differential between the lots was because of the favorable western view. Mr. Stansbury observed that the prices of the lots facing the transmission lines were approximately 15 percent lower than the others. In any event, there was no persuasive evidence presented that the impact to property value or sales velocity from the multiple transmission lines on a wide ROW in view of the eastern-facing estate lots is comparable to any impact from a single pole transmission line such as the proposed COR #3 Line. Immokalee Road is adjacent to the properties owned by CE and BCC and is an arterial roadway that is planned for future expansion to four or possibly six lanes. Even without a transmission line, both CE and BCC use earth berms and landscaping to buffer development from adjacent arterial roadways. Any impact to CE and BCC there that may result from their desire to buffer the COR #3 Line adjacent to Immokalee Road from their future development along the FPL Corridor is likely to be incremental in that CE and BCC would already be planning to buffer that future development from the arterial roadway. During the public hearing, several people inquired why the COR #3 Line would not be placed underground. The evidence shows that an underground configuration for the COR #3 Line is not cost-effective, and that repair times could increase from hours for an overhead line to days or weeks for an underground line. Impact Upon the Environment From an environmental perspective, the objective of the corridor selection process was to minimize crossings of the various land use and environmental siting constraints, as well as to maximize any collocation opportunities with existing linear facilities. As a result, the FPL Corridor is collocated with existing linear facilities for approximately 95 percent of its length. A new north-south transmission line corridor in this area of Florida cannot be established without crossing a significant wetland system. One major siting constraint in selecting a corridor from Orange River substation to the Orange Tree substation is the Corkscrew Swamp System. Avoidance of potential impacts to the Corkscrew Swamp System is the primary reason why the FPL Corridor extends so far to the east. Even the Alternate Corridor that uses the existing Common ROW crosses more than two miles of wetlands associated with the Corkscrew Swamp System. The Corkscrew Swamp System is a large ecosystem dominated by wetlands, primarily consisting of cypress wetlands. It also includes large expanses of pine flatwoods and other natural systems. Throughout the Corkscrew Swamp System, there are numerous endangered and threatened species. It is the home to some of the high-profile endangered species in the State of Florida, including the Florida panther, bald eagle, and black bear. (The Corkscrew Swamp Ecosystem is estimated to encompass approximately 64,500 acres.) The Corkscrew Swamp Sanctuary, a large Audubon-owned and managed wildlife sanctuary, and also a major tourist attraction in the area, is located in the area north of Immokalee Road and east of the big turn to the south. The FPL Corridor essentially avoids the Corkscrew Swamp System by going around it to the east of the System along the north-south section of Immokalee Road, touching it only on the edges where disturbances already exist, such as existing roadways and transmission lines. Since 95 percent of the FPL Corridor is collocated with existing linear facilities, already-existing access should be sufficient for construction and maintenance of the COR #3 Line in many areas. Where existing access is available, in some areas finger roads to the new structure locations may be required. This ability to use existing access in many areas will minimize the amount of filling required for this project. There are two locations within the FPL Corridor where the Sleeping Beauty Water Lily, a listed plant species, is known to exist. One of these locations occurs just west of the Orange River substation along the eastern edge of an existing citrus grove in an agricultural ditch, and the other location occurs in a roadside ditch along the south side of SR 82. In addition, the listed Cardinal Air Plant was observed to occur along the eastern edge of Bird Rookery Swamp and on the west side of Immokalee Road. (See FPL Exhibit 4.) They also could occur in other areas including other cypress trees along and outside the FPL Corridor. They are locally abundant. FPL has generally agreed to avoid the removal of listed plant species that occur on public lands and waters where practicable. Where such removal is unavoidable, FPL has agreed to abide by the mitigation or other requirements of regulatory agencies with jurisdiction over listed plants. In addition, FPL has specifically agreed to avoid through all available means, including the exercise of the power of eminent domain, placing the COR #3 Line on the west side of Immokalee Road where the land has been designated as Rural Fringe Mixed Use District Sending Lands by Collier County. (Joint Exhibit 5A Conditions of Certification, Section XVIII.F, p.11, Attachment 4.) This is the same area where the Cardinal Air Plant was observed to exist. As noted, the Corkscrew Swamp System is also home to endangered and threatened animal species, including the Florida panther. The Florida panther is one of the most endangered species in the State of Florida. The entire study area for the COR #3 Line is located in Florida panther habitat. The Florida Panther utilizes large expansive pine flatwoods and swamp systems and drainages to travel. Radio-telemetry has indicated the presence of the panther along Immokalee Road to the south of the Corkscrew Swamp System. By collocating along Immokalee Road in these areas, the FPL Corridor will not result in the removal of significant additional habitat that could be used by the Florida Panther, and will not increase the animal’s exposure to more human presence or vehicular traffic. The wood stork, the bald eagle, and the Florida Black Bear are also found in the vicinity of the FPL Corridor. The FPL Corridor avoids known wading bird breeding colonies, including wood stork breeding colonies. In addition, because it is collocated with existing linear facilities for approximately 95 percent of its length, the FPL Corridor is not likely to result in the removal of significant additional habitat that could be used by the wood stork. The construction and operation of the COR #3 Line in the FPL Corridor will have minimal adverse impacts on the wood stork. There are no known active bald eagle nests within one half mile of the FPL Corridor, although they could be observed throughout the study area and are likely to occur along the FPL Corridor. In addition, as with the wood stork, only minimal habitat that the bald eagle might use will be removed. The construction and operation of the COR #3 Transmission Line in the FPL Corridor will have minimal adverse impacts on the bald eagle. There have been black bear observations along Immokalee Road in the vicinity of the FPL Corridor, including, unfortunately, black bear mortalities. The black bear, much like the Florida Panther, utilizes large thickets and swamp systems and move several miles in a day. As with the Florida panther, by collocating along Immokalee Road in these areas, the FPL Corridor will not result in the removal of significant additional habitat that could be used by the black bear, and will not increase the animal’s exposure to more human presence or vehicular traffic. The construction and operation of the COR #3 Line in the FPL Corridor will not adversely affect the black bear. The FPL Corridor avoids and minimizes impacts to wildlife and wildlife habitats because the existing habitats along much of the FPL Corridor are already disturbed. In addition, by avoiding known locations of endangered or threatened species, and by collocating with existing linear facilities for approximately 95 percent of its length, the amount of additional clearing that will be required is minimized. Consequently, the construction of the COR #3 Line in the FPL Corridor will not adversely affect fish and wildlife resources and will not adversely affect endangered or threatened species and their habitats. There will be some fill required in wetlands for the construction and operation of the COR #3 Line in the FPL Corridor. Where the line must cross wetlands, FPL may have to construct access roads and pole pads in the wetlands to facilitate construction and maintenance of the new transmission line. FPL has agreed to follow a number of procedures to avoid and minimize the impacts from such fill in wetlands. First and foremost, the location selected for the FPL Corridor avoids numerous wetlands. Within the wetlands crossed by the FPL Corridor, wetland impacts will be minimized in the following ways: by careful alignment of the ROW, such as by taking advantage of upland islands located within these wetlands for pole locations where practicable, thus avoiding placing a fill pole pad in the wetlands; by incorporating the number and size of culverts necessary to maintain existing surface water hydrology and flow; and by minimizing the size of pole pads placed in wetlands based on site-specific conditions. In addition, FPL has agreed to remove existing exotic vegetation from the wetlands within the FPL Corridor. This will provide a benefit to those wetlands from which exotic vegetation is removed. CE offered testimony estimating that construction of the COR #3 Line in the entire length of the FPL Corridor would require the placement of 2.05 acres of fill in wetlands, with .75 acres through the construction of an access road to the Baucom Strand portion of the FPL Corridor (less than a mile north of the portion of Immokalee Road which turns north toward the LCEC 138-kV ROW) and another 1.3 acres by the placement of 25-fill pads in the remaining areas, e.g., four fill pads for the wetlands at the “unnamed flowway” located east of Lake Trafford on the LCEC 138-kV ROW; four structure pads for the entire length of Baucom Strand (assuming a continuous access road of 2,300 feet); seven fill pads at the Camp Keais Strand located over a mile west of the segment of Immokalee Road which turns west after leaving the LCEC 138-kV ROW; one fill pad at the “freshwater swamp” located on Green Meadows Road; and nine fill pads in the Bird Rookery Swamp area. (See FPL Exhibit 4.) Ms. Johnson (for CE) assumed that the power lines would be placed to minimize impacts to wetlands; the approximate spacing of the poles would be 700-foot maximum and that the pads would be 45 feet by 50 feet. Ms. Johnson stated that while the water management district employed her, permits were issued for projects with that amount or more of wetland impact, and agreed that it is possible for a project to include 2.05 acres of impacts to wetlands and still meet the permitting requirements. FPL offered rebuttal evidence regarding CE’s wetland impact analysis. Mr. Simpson opined, in part, that there might be approximately 1.23 acres of impacts to the areas described by Ms. Johnson. See Finding of Fact 281. FPL has agreed to appropriately mitigate for wetland impacts that cannot be avoided or minimized. CE also offered testimony that construction of the COR #3 Line on the Alternate Corridor would not cause any significant impacts to wetlands. Based on the National Wetland Inventory Data Base, there are over nine miles of non-continuous wetlands along the Alternate Corridor. However, there was no precise quantification of adverse impacts to wetland areas within the Alternate Corridor. Also, the evidence is inconclusive where the actual boundary of the CREW Trust Lands is in relation to the Alternate Corridor. It is difficult to determine at this stage of the siting process what the exact acreage of wetland impacts will be if the COR #3 Line is constructed in either the FPL Corridor or in the Alternate Corridor. Before wetland impact amounts can be calculated, site-specific wetland determinations would have to be made and site-specific pole placement and pad designs would have to be completed. The construction of the COR #3 Line in either the FPL Corridor or the Alternate Corridor will be consistent with the wetland regulatory standards applicable to such projects. (See also Joint Exhibit 9.) The Need for the COR #3 Line as a Means of Providing Abundant Low-Cost Electrical Energy The PSC determined that the COR #3 Line is needed, taking into account the factors set forth in Section 403.537(1)(b), Florida Statutes. In the need proceeding, the PSC considered several alternative projects, including four alternative transmission projects in the Fort Myers-Naples region and the construction of new generation facility near Naples. The PSC determined that “[t]he present value cost of the project proposed by FPL in a new right-of-way is estimated at between $32 million and $57 million, subject to final right- of-way routing and conditions of certification by the” Siting Board. According to the PSC, placement of the COR #3 Line in the existing Common ROW, “was the least cost alternative with an estimated net present value cost of $25 million,” or potentially costing up to $32 million less than a geographically separate route. However, the PSC found that “this alternative is not optimal due to concerns with serving an electrical peninsula via a single corridor and the inability for future expansion of FPL’s transmission system to the east of the existing corridor.” Stated otherwise, the cost to construct the COR #3 Line in the Alternate Corridor will be approximately $11 to $12 million less than in the FPL Corridor without consideration of placing the COR #3 Line on a separate pole line along the Common ROW with an estimated incremental cost of approximately $6.5 million above the previous estimate.17 The PSC also determined that “[t]he other four alternatives were either more costly (estimated net present value costs between $101 million and $138 million) or did not meet undervoltage and thermal overload conditions under all single contingency events.” (See Joint Exhibit 1, App. A pp.5-6.) The value of system line losses (lost energy) if the COR #3 Line is placed in the FPL Corridor would be between approximately $120,000 to $250,000 per year higher than if the Alternate Corridor is used. The benefits of placing the COR #3 Line in the geographically separate FPL Corridor are best understood in terms of the consequences to be mitigated or avoided in the event of an extreme event taking out of service all transmission lines on the Common ROW. While loss of all the transmission lines on a common ROW due to an extreme event (such as plane crash, wildfire, hurricane, tornado, wind-blown debris, vandalism, sabotage, or terrorism) is an unlikely event, it has happened at least 12 times on FPL’s transmission system since 1985, even though some of the total corridor outages have been of relatively short duration. See Findings of Fact 188-190. (See also FPL Exhibit 11; BCC Exhibit 7.) CE and BCC, through Dr. Glover and Mr. Armand, strongly contested the relative likelihood of such an extreme event and the extent of any outage, if the event occurred in the Common ROW. Dr. Glover concluded that the probability of a hurricane with sufficient force to disable all of the lines in the Common ROW would actually do so while not disabling another line located within a few miles of that ROW must be regarded as approximately zero, and the probability greater than zero regarding the impact of tornadoes, but still very, very small. He regarded the probability of a Common ROW outage due to a plane crash as very, very small or low, and due to terrorism as far-fetched and unrealistic at best. He further opined that transmission lines located in remote areas are more vulnerable to outages due to vandalism or sabotage as are the risks associated with wildfire. Mr. Armand opined that there would be a very small probability of a corridor outage on the Common ROW with the COR #3 Line located within it, and if there was, it would last less than twelve hours. He also stated that FPL’s assertion that an outage on the Common ROW could last up to six days was “totally unrealistic,” based, in part, on the devastation caused by Hurricane Andrew to the transmission lines at Turkey Point that took five days to restore. FPL’s experts opined that if the COR #3 Line were added to the Common ROW, and an extreme event occurred there, it could result in a 30-minute to five to six-day blackout affecting between approximately 376,000 and 600,000 people (less the population of the Project Service Area that may be served via the 138-kV transmission lines), as a worst-case scenario. (It appears that the population of the Project Service Area as of January 2003 was 594,900 with population growth expected to be 18,800 per year.) When an electrical outage occurs there are numerous adverse predicable consequences to the community. Traffic lights do not function and traffic accidents increase. Elevators get stuck. Fire alarm systems may become inoperable or may not operate properly. Response time for emergency vehicles is increased due to increased call volume and the emergency vehicles’ loss of preemptive control of traffic signals. Fire hazard is increased due to use of candles, fuel- powered lanterns, barbecue grills and improper fueling of gasoline-powered generators. Community wellness services, like Meals on Wheels and dialysis centers, are impacted. Medical emergencies increase due to injuries that occur during attempts to make emergency repairs, and the lack of light that results in more household accidents and affects the ability to mix and administer medications at home. Emergency management communications with the community regarding shelter locations, available retail operations for water, ice, emergency repair supplies, medicines, etc., are hampered due to many people not having adequate battery-powered receivers. Telephone communications are compromised due to many cordless phones not operating and cell phone batteries not being recharged due to the lack of electricity. There is no vertical water storage in Collier County; the pumping of potable water is mechanical and electrical. Pumps on private drinking water wells, most of which do not have back-up generators, do not function. Very few sewage lift stations have back-up power capability. Once those stations’ capacities are exceeded, effluent can spill outside the station into creeks and roadways, and backup into homes. Moreover, the Southwest Florida economy is dominated by hospitality and tourism-related organizations as part of its economic structure. These companies require continuous and reliable electric power in order to meet the needs of their clients and customers in the marketplace. Failure to have reliable electric power in the community, even for a brief period of time has significant impacts to business. By affecting traffic flow, a power outage hampers the ability of employees to get to and from work. During an electrical outage, a business is not able to operate and be productive as an enterprise because sales do not take place and services are not delivered. Typically, businesses affected by an electrical outage cannot operate. This, of course, affects the ability of that company to generate taxable sales and thereby erodes productivity in the community. FPL decided the consequences to the community in the Project Service Area of a widespread multi-day electrical outage would be too severe and, therefore, chose to seek a geographically separate route for the COR #3 Line to mitigate the impacts of such an outage. FPL’s decision is reasonable and is supported by the weight of the evidence. When the severity (length) and magnitude (number of people affected) of an electrical outage are relatively high, it does not matter that the risk is relatively low. From an emergency management perspective, it is worth providing redundancy to the transmission system and spreading the risk. Putting the COR #3 Line on the geographically separate FPL Corridor is somewhat analogous to a homeowner buying homeowner’s insurance. While the likelihood of any one home suffering a loss from fire, tornado, hurricane, or vandalism is also very low, a homeowner may decide it is prudent to spend money to purchase insurance if the potential loss they could suffer would be catastrophic. In that type of decision, as in the one here, it is important to consider the consequences of the event even though the event is very unlikely to occur. There would be no significant difference between the cost to maintain the COR #3 Line in either the FPL Corridor or the Alternate Corridor. CONDITIONS OF CERTIFICATION The design, construction, and operation of the COR #3 line in the FPL Corridor will comply with the Conditions of Certification. (Joint Exhibit 5A.) See also Preliminary Statement, p. 5 and Findings of Fact 71 and 81 for recent amendments and corrections. (All parties should be given an opportunity to comment on all of the Conditions of Certification, including the amended and corrected Conditions of Certification filed post-final hearing. Id. ) 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. While the FPL Corridor has few homes in close proximity to it and limited wetland crossings, FPL has agreed to conditions of certification that further minimize land use and environmental impacts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving FPL’s Collier-Orange River #3 230-kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Joint Exhibit 5A as may be amended. DONE AND ENTERED this 3rd day of May, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 3rd day of May, 2004.
Findings Of Fact The proposed transmission line corridor is for the purpose of locating a 500 kV transmission line to provide dispersion of the additional power generated at the Crystal River Electric Power Plant when Unit 5 becomes operational in the fourth quarter of 1984. The northern terminus of the corridor is in Sumter County at the Central Florida Substation, located immediately south of State Road 44 in Section 24, Township 19 South, Range 23 East. The southern terminus of the corridor is in Polk County at the proposed Kathleen Substation, to be located north of U.S. Highway 98 in either Section 8 or 17, Township 26 South, Range 23 East. The length of the corridor is approximately 43 miles. The purpose of the corridor is to provide a 190 foot wide right-of-way for a 500 kV transmission line constructed upon steel lattice guyed V structures and four-legged, self-supporting steel lattice tower structures, with an approximate span between the structures of 1,200 feet. Pursuant to the requirements of Section 403.537, Florida Statutes (1980 Supp.), the Florida Public Service Commission, by order dated July 21, 1981, concluded that: The construction of the proposed transmission line will enhance electric system reliability and integrity. The proposed transmission line will improve the availability of low-cost electric energy within the State of Florida. The Central Florida Substation and the proposed Kathleen Substation are the appropriate starting and ending points of the transmission line. The Public Service Commission then determined that the proposed transmission line is needed. Notice of the final certification hearing was published on October 9, 1981, in the Leesburg Commercial, a daily newspaper published at Leesburg in Lake County, Florida, and on October 11, 1981, in The Ledger, a daily newspaper published at Lakeland in Polk County, Florida. For the purposes of this Recommended Order, the corridor for which FPC seeks certification will be broken down into three segments -- the North Corridor Segment, the Central Corridor Segment, and the South Corridor Segment. The entire corridor for which FPC seeks certification is depicted on Attachment 1 hereto. The segments are generally described as follows: The North Corridor Segment begins at the Central Florida Substation and continues to the northeast corner of the Withlacoochee State Forest and is 2,600 feet wide; The Central Corridor Segment begins at the northeast corner of the Withlacoochee State Forest and goes to a point which is the southeast corner of Section 8, Township 25 South, Range 23 East, which is generally 2 miles east of State Road 471 and south of the Withlacoochee River; and The South Corridor Segment begins at the termination of the Central Corridor Segment and continues to the proposed Kathleen Substation north of U.S. Highway 98. The three segments are described in detail in the application (Applicant's Exhibit No. 22). Parties to this proceeding agree that the North Corridor Segment and the South Corridor Segment, with certain Conditions of Certification about which the parties also agree, meet the requirements for site certification under the Transmission Line Site Certification Act. However, a dispute exists between the parties with regard to the certification of the Central Corridor Segment as proposed by FPC. The Applicant, the Department of Agriculture and Consumer Services, Division of Forestry, the Department of Natural Resources, the Florida Department of Transportation and C. M. Overstreet, et ux., argue in favor of the Central Corridor Segment as proposed by FPC. The Department of Environmental Regulation has proposed an alternative alignment to the Central Corridor Segment for which FPC seeks site certification. For purposes of this Recommended Order, this proposal by DER shall be referred to as the "DER Proposed Corridor." The Florida Game and Fresh Water Fish Commission and the Florida Department of Veteran and Community Affairs argue in favor of the DER Proposed Corridor. The DER Proposed Corridor begins at the northeast corner of the Withlacoochee State Forest and, proceeding in a westerly direction, the corridor parallels the northern boundary of the Withlacoochee State Forest and crosses North Grade Road. After approximately 6 miles (10 kilometers), the corridor crosses SR 471 and the Little Withlacoochee River, enters Hernando County, and turns due south, entering the Withlacoochee State Forest. Proceeding south on the west side of Route 471, the corridor crosses an unnamed dirt road in Section 1 (Hernando County), Richloam Clay Sink Road, and Center Grade Road, enters Pasco County 3 miles (4.8 kilometers) south of the Little Withlacoochee River crossing, and crosses unnamed roads in Section 25 (Pasco County), and exits the State Forest on the north side of Section 36, Township 23 South, Range 22 East. This alignment continues south along the west side of SR 471 to the west southern boundary of the State Forest and crosses SR 471 to the east side at the northwest corner of Section 7, Township 24 South, Range 23, East. It continues south along the east side of SR 471 to the southwest corner of Section 6, Township 25 South, Range 23 East, where it turns east southeasterly to go along the northeasterly side of a straight line connecting the southwest corner of Section 6, Township 25 South, Range 23 East and the northeast corner of Section 17, Township 25 South, Range 23 East where it joins the southern segment. This southeastern diagonal alignment crosses the Withlacoochee River in the vicinity of Trail Ford Bridge and enters Polk County. This corridor is 1,000 feet wide. The Department of Environmental Regulation has also proposed, as a second alternative to the Central Corridor Segment, deflections of that Central Corridor Segment in the area of Bayroot Slough and Cross Creek Swamp. For the purposes of this Recommended Order this proposal will be referred to as the "DER Preferred Alternate Corridor." The DER Preferred Alternate Corridor is the same as the Central Corridor Segment proposed by FPC except that the Central Corridor Segment is routed around Bayroot Slough and Cross Creek Swamp as follows: The Bayroot Slough bypass begins at the northeastern corner of Section 12, Township 23 South, Range 23 East and parallels on the south of a line from that point to the southwest corner at the same section, hence it parallels on the east a line from that point to the northeast corner of Section 24. This bypass corridor is 190 feet wide. The Cross Creek Swamp bypass begins at the northeast corner of the southeastern quarter of the southeastern quarter of Section 32, Township 24 South, Range 23 East and parallels on the northern side of a southwesterly line from that point to the northeast corner of the southwestern quarter of the southeastern quarter of Section 5, Township 25 South, Range 23 East; and then parallels on the west a due south line to the northeast corner of the southwest quarter of the southeast quarter of said Section 5 and then parallels on the southern side of a southeasterly line to the southeast corner of Section 5 and joins the FPC preferred corridor. The bypass corridor is 190 feet wide. The land uses in the North Corridor Segment consist primarily of agricultural uses, improved pasture, orange groves, row crops and some hardwood hammocks. The prevalent land uses in that part of the Central Florida Segment within the Withlacoochee State Forest are timber management and game management. The prevalent land uses within that part of the Central Florida Segment south of the Withlacoochee State Forest are private timber management and cattle operations. The DER Proposed Corridor and the Central Corridor Segment, south of the Withlacoochee State Forest, are composed of approximately the same types and amounts of wet land and forested areas. The proposed corridor in the Central Corridor Segment crosses two large wetland systems, Cross Creek Swamp and Bayroot Slough. The entire corridor proposed by the Applicant contains approximately 1,100 acres of cypress wetland. Altering the FPC corridor in the manner suggested by DER in the DER Proposed Corridor would increase the cypress wetland acreage encompassed by the corridor to 1,300 acres. A similar comparison of the two corridors with regard to fresh water marsh indicates that the DER Proposed Corridor would reduce the acreage of fresh water marsh encompassed by the corridor from 800 acres in the FPC corridor to 600 acres. Both corridors contain similar amounts of fresh water swamp. There are three large wetland systems in the FPC Proposed Corridor. They are Bayroot Slough, Devils Creek Swamp, and Cross Creek Swamp. Bayroot Slough is approximately 3,600 acres in area, Devils Creek Swamp is 8,800 acres in area and Cross Creek Swamp, 1,145 acres in area. The Applicant proposes to build an access/maintenance road completely through Devils Creek Swamp on the eastern most 20 feet of its right-of-way. This access/maintenance road would be used as a partial base for a levee proposed to be constructed in the area by the Southwest Florida Water Management District. This access/maintenance road would require the filling of approximately 9 acres, or one-tenth of one percent, of Devils Creek Swamp. In Bayroot Slough and Cross Creek Swamp, as well as all other major wetland areas, with the exception of Devils Creek Swamp, the Applicant proposes to use keyhold fills for the placement of its towers and to leave the span between towers open with no placement of fill. These construction techniques are designed to permit sheet flow to continue in a near natural state, thus minimizing adverse impact on those wetland areas. In Bayroot Slough, approximately six acres, or less than two-tenths of one percent, are proposed to be filled in connection with construction of the subject line. In Cross Creek Swamp, approximately four acres, or less than four-tenths of one percent of the total swamp area, will be filled for the construction of an access/maintenance road. The DER Proposed Corridor would require approximately four additional miles of transmission line than would the corridor proposed by FPC. That would increase the cost of construction of the transmission line from approximately $23,174,000.00 to $25,824,000.00 Thus, the DER Proposed Corridor would cost $2,650,000.00 more to construct than would the corridor proposed by the Applicant. The DER Preferred Alternate Corridor, which contains deflections around Bayroot Slough and Cross Creek Swamp, would require approximately .87 miles more transmission line than would the FPC Proposed Corridor and because of that additional length and the number of turning angles necessary,, would cost approximately $1,344,000.00 more to construct than would the corridor as proposed by FPC. The wetland systems in the region which contain Bayroot Slough, Devils Creek Swamp and Cross Creek Swamp are interrelated with regard to wildlife. This region is approximately 25,000 acres in size. Approximately 96 acres would be cleared and 19 acres filled with the construction of a transmission line along the corridor proposed by the Applicant. The right-of-way required for the proposed 500 kV transmission line will measure 190 feet in width. The transmission line will consist of one single circuit 500 kV line. The basic structure type selected for the proposed transmission line is a steel lattice guyed V. This structure will be used to support the conductors on straight portions of the line. At angles in the transmission line, the conductors will be supported by a four-legged, self- supporting steel lattice tower. These angle structures are significantly more expensive than the steel lattice guyed V structures. The structures will be constructed of steel angle sections and will be galvanized. The guy wires for the guyed V structure will be either aluminum coated steel cable or an aluminum cable with an approximate diameter of 1.0 to 2.0 inches. A four-legged self- supporting steel lattice structure may be used on some straight portions of the transmission line where required, due to soil conditions, clearances, or other engineering or environmental considerations. The structures will support a single three-phase alternating current, 500,000 volt circuit. Three conductors will be included in each phase, resulting in a total of nine conductors for the circuit. The structure also supports two overhead ground wires which protect the circuit from lightning strikes. The conductor will be supported in the structure by insulator and hardware assemblies. A typical foundation for the guyed V structure will be a cast-in-place reinforced concrete foundation. Guy wires will be attached. The angle structure will be supported on cast-in-place reinforced concrete cylinder foundations. The structures will be electrically grounded. The minimum conductor to ground clearance will be 37 feet at 120 degrees Fahrenheit. A typical span between structures is 1,200 feet. The transmission line will be designed to meet or exceed the requirements of the National Electric Safety Code, 1973 and 1981 Editions. Construction of the transmission line will be done in three phases. The first phase will consist of clearing the right-of-way and access/maintenance road construction. The second phase will consist of construction of the towers, and the third phase will consist of the actual stringing of the conductors. Because of the very small amount of the total aquifer recharge area proposed to be filled by the Applicant, there will be no significant adverse impact to aquifer recharge capabilities because of the construction of the transmission line. If constructed with an adequate amount of culverting, the access/maintenance roads proposed to be constructed by the Applicant will not significantly affect the surface regime in the areas within the FPC Proposed Corridor. Outside of the 190 foot transmission line right-of-way there will be essentially no change in-existing vegetation. Within the 190 foot right-of-way, only the inside 150 feet will be cleared with the outer 20 feet on each side being cleared only of "danger" trees; that is, trees that might fall on to the line because they are diseased, dead or leaning toward the line. Benthic organisms (microscopic, microinvertebrates, which are aquatic organisms on the lower levels of the food chain) could be adversely impacted if the wetland they inhabit is relatively small compared to the amount of fill required in that wetland for the construction activities associated with the transmission line. If the wetland is relatively large, however, there will be no discernible impact on the standing crop of benthic organisms because they can migrate to other portions of the wetland which are not filled. The DER Proposed Corridor has a greater number of relatively small wetland areas than does the FPC Proposed Corridor. No evidence was presented to establish any adverse impact by construction of a transmission line to upland wildlife habitat or upland wildlife species with the exception of the American wood stork. Although the evidence did establish that construction of a transmission line through wetland wildlife habitat could adversely affect some wildlife species within that habitat, the evidence did not establish that the extent of such an impact on any species would be significant in either the FPC Proposed Corridor, the DER Proposed Corridor or the DER Preferred Alternate Corridor. Witnesses for the Department of Environmental Regulation and the Florida Game and Fresh Water Fish Commission expressed a concern that placement of a transmission line in the FPC Proposed Corridor will allow increased human access to the large wetland areas within that corridor. The evidence considered overall, however, does not establish that placement of a transmission line in the FPC Proposed Corridor" will in fact result in any significant increased human access to the large wetland areas within that corridor or that such access per se would result in some significant adverse environmental impact. In order to attenuate potential flood damage along the Withlacoochee River, the Southwest Florida Water Management District proposes the construction of a levee to capture and hold 25-year and greater storm events in head-water areas of the Withlacoochee River. This is an ongoing project of SWFWMD which, at best, is several years from construction. In the area of Devils Creek Swamp, the Central Corridor Segment proposed by the Applicant would co-locate the transmission line with the SWFWMD proposed levee, thus minimizing the amount of fill to be placed in that area by the two projects and minimizing the adverse impact of the wetland system by the transmission line. Should such co-location occur, it would have the minimizing effect outlined above. However, because of the prospective nature of the SWFWMD project, the ultimate co-location of the transmission line and the SWFWMD levee is too speculative to assign much weight to its significance. Should a transmission line be placed adjacent to Highway 471 as proposed as an alternative by the Department of Environmental Regulation, some of that transmission line would cross property which is intended for residential development by its owners. The Florida Department of Agriculture and Consumer Affairs, Division of Forestry, has indicated its hope that the alignment of the transmission corridor as proposed by the Applicant in the area of the Withlacoochee State Forest would provide a fire break beneficial to the Division for forest management purposes. There are three endangered species to which special attention should be paid with regard to the construction of a transmission line and associated faciliti es. These are the scrub jay, the red-cockaded woodpecker, and the wood stork. The scrub jay is found in vegetation typically less than 25 feet tall so that except for tower placement, scrub jay habitat will be essentially unaffected. The Applicant has agreed to a Condition of Certification to further protect the scrub jay and its habitat by avoiding colonies where found or by leaving the oak scrub in place under the wires. The red-cockaded woodpecker nests and roosts in mature and over-mature pines. Such trees may occur within the proposed corridor. To protect colonies that may exist, a survey needs to be performed prior to final right-of-way selection and if a colony is found, a right-of-way should be chosen to avoid that colony if at all possible. It could be very costly to divert the transmission line around such a colony by angles in the line. None of the proposed corridors cross a known wood stork rookery. However, a former rookery exists at Clay Sink wading bird site and will probably again become a rookery in the future when favorable conditions again exist. The FPC Proposed Corridor is more than a mile from any known wood stork rookery which should eliminate any significant adverse impact on such a site. A 500 kV transmission line is an extra high voltage line. The highest electrical field strength directly underneath the proposed Central Florida-to- Kathleen 500 kV transmission line at ground level will be less than 10,000 volts per meter, and the field strength will diminish with distance from the line. The magnetic field associated with the proposed transmission line will be less than 0.5 gauss. Testimony and evidence establishes that the electric and magnetic field forces encountered in the vicinity of the transmission line at ground level will have essentially no biological effect and will be no stronger than similar forces encountered in the normal course of modern daily life. Because of the size of the conductors to be used on the proposed transmission line, the ozone produced by that line will be negligible and will be well below the maximum ozone concentration level (0.12 ppm) recommended by the United States Environmental Protection Agency. During fair weather, the line will be virtually silent. During wet weather, when the conductors are wet, the noise level will be approximately 38 dBA at the edge of the right-of-way. This is a low noise level. At locations near the edge of the right-of-way, some interference with the reception of AM radio signals will experienced, particularly during wet conductor conditions. No interference to reception of FM radio broadcasts is expected from the proposed transmission line at any time. Television reception may be affected similarly-to that of AM radio signals. No hazardous induced currents are expected to occur in structures or vehicles beneath the line. Except as otherwise noticed in the Findings of Fact herein, the testimony and evidence in this cause establishes that the proposed transmission line, if constructed along a right-of-way in the corridor as proposed by the Applicant, pursuant to the Conditions of Certification, would have no significant adverse effect on the environment, public health, safety or welfare. Similarly, neither the DER Proposed Corridor nor the DER preferred Alternate Corridor would have any significant adverse effect on the environment, public health safety or welfare. The evidence does not establish that the two alternative corridors proposed by DER would have an appreciably reduced effect on the environment, public health, safety or welfare. The evidence does establish, as set forth in Paragraph 13 above, that the two DER alternatives would be significantly more expensive to construct than would the FPC proposed corridor. The corridor as proposed by FPC and depicted on Appendix 1 is 2,600 feet wide from its starting point at the existing Central Florida Substation to the northeast corner of Section 1, Township 23 South, Range 23 East, also the northeast corner of the Withlacoochee State Forest. At that point, the corridor narrows to 1,000 feet and continues to proceed southerly immediately west of the Sumter/Lake County line. At a point identified as the northeast corner of Section 1, Township 24 South, Range 23 East, the corridor narrows to 500 feet and proceeds in a southwesterly direction with 250 feet-on either side of a line running from the northeast corner of Section 1, Township 24 South, Range 23 East, to the southwest corner of Section 4, Township 24 South, Range 23 East. At a point identified as the southwest corner of Section 4, Township 24 South, Range 23 East, the corridor turns due south, expands to 1,020 feet with the eastern 20 feet inside the SWFWMD west property line, and proceeds directly south paralleling the SWFWMD proposed levee for approximately one and one-half miles through "Devils Creek Swamp" to a point where the transmission line corridor end the SF4D proposed levee diverge. The corridor narrows to 1,000 feet and proceeds directly south immediately west of the SWFWMD west property line to the proposed Kathleen Substation site.
The Issue Whether Tampa Electric Company's (Tampa Electric) application for site certification of existing Big Bend Generating Station Units 1, 2, and 3 and authorization to construct and operate the Big Bend Unit 1 Modernization Project should be approved under section 403.5175, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the hearing within the scope of this proceeding, the following findings of fact are made: The Parties Tampa Electric is the applicant for site certification of Units 1, 2, and 3, and for approval of the Modernization Project at its Big Bend Power Station (Big Bend). Tampa Electric provides electric service to more than 734,000 residential, commercial, industrial, and governmental customers in west-central Florida. Its service territory includes all of Hillsborough County and portions of Polk, Pasco, and Pinellas counties. Its existing electric generating units are located at five facilities in the service territory, and consist of diverse generating technologies, including coal and natural gas-fired steam units, natural gas-fired combined-cycle and combustion turbine units, an integrated coal-gasification combined-cycle unit, and renewable solar energy facilities. DEP is the state agency charged with administering the Electrical Power Plant Siting Act (PPSA) contained in part II of chapter 403. DEP's Siting Coordination Office (Siting Office) coordinates the site certification process, receives comments from affected agencies, and prepares the Project Analysis Report (PAR) that contains DEP's recommendation to approve or deny the requested certification and the proposed Conditions of Certification. Intervenor, Sierra Club, is a national non-profit environmental advocacy organization. A key component of Sierra Club's mission is to advocate for the use of clean energy sources. Standing Sierra Club's members are concerned about continued reliance on fossil fuels and related climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding. In Florida, Sierra Club has more than 30,000 members, including more than 2,000 members who live, work, and recreate in the Tampa Bay area and some near Big Bend in Hillsborough County. Sierra Club promotes outdoor activities, and many of its Florida members organize and participate in outdoor recreation for people of all ages. Sierra Club members who testified at the certification hearing take their own kids and others picnicking, kayaking, canoeing, and on service projects throughout South Florida and the Tampa Bay area. Sierra Club members, who testified at the certification hearing live in the vicinity of Big Bend, are Tampa Electric customers and enjoy outdoor recreation, such as boating in Tampa Bay and visiting the beaches. Sierra Club members who testified at the certification hearing have been injured by and suffered the effects of climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding. The substantial environmental interests of Sierra Club's Florida members in the Tampa Bay area include the potential adverse effects of climate change to which Tampa Electric's greenhouse gas emissions would allegedly contribute. Thus, a substantial number of Sierra Club's Florida members' substantial interests could reasonably be affected by climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding in the Tampa Bay area. Climate Change Sierra Club's expert, Harold Wanless, Ph.D., provided testimony on various aspects of the general topic of climate change. Dr. Wanless testified that climate change is a complex, worldwide issue, with contributions from many different sources. The primary is carbon dioxide emissions resulting primarily from human activities, including the combustion of fossil fuels. Dr. Wanless testified about his predictions regarding global sea level rise, storm surge, and hurricane activities in the coming years. He opined that all of this should be taken into account in the design and evaluation of a project such as the Modernization Project, but concurred that there are no current regulatory standards, other than the Hillsborough County Code of Ordinances discussed below, which address these issues. Dr. Wanless conceded that his predictions were more extreme based on a comparison with government data, to which he also cited. He advocated the immediate cessation of burning fossil fuels, and that the solution must happen "one car, one power plant at a time." Dr. Wanless also acknowledged that the timing and landfall of individual storm events, such as hurricanes, cannot be specifically attributed to human-induced global warming. From a regulatory standpoint, the United States Environmental Protection Agency's (EPA) guidance for permitting for greenhouse gases states: As a general matter, GHG emissions contribute to global warming and other climate changes that result in impacts in the environment and society. However, due to the global scope of the problem, climate change modeling and evaluations of risks and impacts of GHG emissions currently is typically conducted for changes in emissions orders of magnitude larger than the emissions from individual projects that might be analyzed in PSD permit reviews. Quantifying these exact impacts attributable to the specific GHG source obtaining a permit in specific places is not currently possible with climate change modeling. Given these considerations, an assessment of the potential increase or decrease in the overall level of GHG emissions from a source would serve as the more appropriate and credible metric for assessing the relative environmental impact of a given control strategy. Tampa Electric Ex. 22, p. 000296, ¶ 2 (quoting PSD and Title V Permitting Guidance for Greenhouse Gases, March 2011). Big Bend Power Station Site The Big Bend Power Station Site (the Site) is an existing electrical generating facility located on approximately 1,722 acres of property owned by Tampa Electric. It is approximately ten miles south of Tampa in the unincorporated southwestern portion of Hillsborough County, also known as Apollo Beach. Its address is 13031 Wyandotte Road, Gibsonton, Florida. Approximately 1,096 acres of the Site is currently certified under the PPSA. The SCA sought certification of an additional 92 acres, for a total of 1,188 acres. The Site has been used for power generation since 1970. The main fossil fuel generating facilities are in the northwestern portion of the Site located on land created by spoil materials from dredging the barge access channel to the Site in the late 1960s. The Site contains four coal and natural gas-fired steam electric generating units, a combustion turbine generator peaking unit, and associated facilities. The Site contains the approximately 20 MW Big Bend I Solar Project that was placed into service in 2017 and an area for the approximately 33 MW Solar II Solar Project, which will be constructed in the future. Each of the four coal and natural gas fired steam electric generating units uses what is known as a Rankine process to generate electricity. That process consists of taking high-pressure water and converting it in a boiler to high-pressure, high-temperature steam. The steam is then utilized in a steam turbine to convert the energy in the steam into mechanical energy. The mechanical energy provided by the steam is then used by the electrical generator associated with the steam turbine to create electrical energy. The steam leaving the steam turbine is condensed back to water by the condenser and pumped back into the boiler to complete the process. Onsite facilities associated with electric generation include: boiler and steam turbine generator buildings; air pollution control equipment; three exhaust stacks; water and wastewater treatment facilities; cooling water intake and discharge structures and canals; coal delivery and storage facilities; gypsum storage areas; coal combustion residuals beneficial use storage and handling facilities; electrical enclosures; transmission lines; substation; natural gas pipeline; and water storage and stormwater management facilities. The Site also contains a Manatee Viewing Center and the Florida Conservation and Technology Center, which is a partnership between Tampa Electric, the Florida Aquarium, and the Florida Fish and Wildlife Conservation Commission (FWCC). Other facilities located on the Site include the STI Ash Beneficiation facility and the Tampa Bay Water desalination plant. Portions of the Site were originally certified pursuant to the PPSA in 1981 for the construction and operation of Unit 4. That certification included associated facilities, which are shared with Units 1, 2, and 3, such as coal delivery and storage areas. Units 1, 2, and 3 were not subject to the PPSA because those units were constructed and operational in the 1970s prior to the effective date of the PPSA. In addition to the Modernization Project, Tampa Electric sought certification of the associated facilities for Units 1, 2, and 3, and an approximately 92-acre adjacent parcel, which would increase the certified site area to approximately 1,188 acres. Proposed Modernization Project The Modernization Project would retire Unit 2 and repower Unit 1 as a clean natural gas-fired two-on-one combined- cycle generating facility on an approximately nine-acre portion of the Site. The Unit 1 boiler would be repowered with a new natural gas-fired combined-cycle unit that would utilize Unit 1's existing steam turbine generator. Upon completion, the repowered Unit 1 would have a nominal net generating capacity of 1,090 MW. Tampa Electric selected two General Electric (GE) combustion turbine generators, each with a nominal generating capacity of 370 MW, for the new combined-cycle unit. Hot exhaust gases would be used to generate steam in two heat recovery steam generators, which would be routed to the steam turbine generator. The combustion turbine generators would be capable of operating in simple-cycle mode. The Modernization Project would include construction of new onsite associated facilities, such as electrical equipment enclosures, a gas metering station, water pumps, fin- fan coolers, transformers, an emergency diesel generator, fire protection systems, hydrogen and carbon dioxide storage tanks, an ammonia skid, and stormwater management systems. Existing Unit 1's steam turbine generator, the boiler/turbine structure, once-through cooling system, condenser, intake/discharge structures, the generator step-up transformer, the auxiliary tower, and various electrical and control systems would be refurbished and used for the repowered Unit 1. Other existing infrastructure and systems such as the demineralized water system, potable water and sanitary wastewater onsite service interconnections with Hillsborough County public services, and existing access roads, would also be used. An administration office building would be located on an approximately 1.4-acre area north of the intake canal and southeast of the plant facilities. Temporary use of several areas for construction laydown and parking, barge delivery of larger equipment, and workspace for the gas pipeline horizontal directional drilling (HDD) activities will cover approximately 44 acres. The existing 230 kilovolts (kV) transmission lines to the onsite substation would be upgraded. A new 230 kV transmission line interconnection would be constructed from the combined-cycle facilities to the existing substation. An elevated pipe bridge across the intake canal would be constructed to carry steam from the heat recovery steam generators to the repowered Unit 1 steam turbine generator. The pipe bridge will also be used to support miscellaneous pipes, cable trays, and a personnel access walkway. A new onsite natural gas pipeline interconnection would run east from the combined-cycle plant to a metering station tie-in along the north side of an existing access road located south of the barge canal. From the metering station, the pipeline would continue east to existing gas supply pipeline interconnection, located east of Wyandotte Road within the onsite railroad spur loop. The Unit 1 once-through-cooling water (OTCW) aging circulating water pumps would be replaced in-kind. The cooling water intake structure (CWIS) would be upgraded to include modified traveling water screens and a fish-return system consistent with applicable federal regulations. Fish-holding tanks for the repowered Unit 1 fish return system would be constructed in the deconstructed Unit 2 CWIS area. There would be no changes to the OTCW system serving Units 3 and 4. Construction activities for the Modernization Project would begin in July 2019, with commercial operation of the facility in simple-cycle mode in June 2021. Commercial operation of the combined-cycle plant would begin in January 2023. Unit 2 would continue to operate firing natural gas from the date of certification until 2021 when it would be retired. Environmental and Other Impacts from Existing Site Utilization Historical aerial photographs of southwestern Hillsborough County showed largely undeveloped lands with agricultural activity. Current land uses include transportation and utilities, agricultural activities along with upland non- forested areas and some wetland areas. The existing Big Bend generating facilities and associated facilities were primarily located on artificial fill dredged from Tampa Bay. These areas were heavily impacted by industrial activities associated with power generation. Other areas of the Site, located south of the existing generating facilities, were less impacted by industrial activities. Those industrial activities began in the 1970s and continue to the present time. The developed nature of the Site resulted in low vegetative diversity, limited wetlands, and limited wildlife habitat. There have been significant air emissions from existing Units 1, 2, 3, and 4 since each began operating. As explained below, the units have been capable of burning natural gas or coal since 2015, and Units 1, 2, and 3 have used only natural gas since mid-2017. Prior to mid-2017, those units' coal emissions were significantly higher than the emissions associated with burning natural gas. The air emissions from Big Bend are regulated by state and federally delegated air permitting programs. Air quality in the area is affected by emissions not only from Big Bend, but from a number of surrounding sources. For example, there are approximately 27 major sources of pollutants in Hillsborough County, including hospitals, airports, transportation, power production, and manufacturing. Ambient air quality standards were established for the protection of health and welfare- related concerns and those standards are currently being met in the area of the Site based on review of recent monitoring information. The SCA included a copy of Tampa Electric's application to DEP for a separate air permit to construct the Modernization Project under Florida's federally approved PSD preconstruction review program. DEP published a Notice of Intent to Issue Air Construction Permit No. 0570039-119-AC (Air Permit) for the Modernization Project on June 16, 2018. Sierra Club submitted comments on June 15, 2018, regarding the Air Permit, which were received and considered by DEP in the final Air Permit. However, no challenge was filed to the Air Permit, which was subsequently issued in final form on July 16, 2018. Big Bend has regulated wastewater discharges. Units 1, 2, 3, and 4 are steam electric generators that use water for cooling purposes. Cooling water is withdrawn from the man-made intake canal through CWIS 1 for Units 1 and 2 and CWIS 2 for Units 3 and 4. After being pumped through the condensers, the cooling water is discharged through outfalls into the man-made discharge canal on the south side of Big Bend. This activity is regulated in accordance with the requirements of National Pollutant Discharge Elimination System (NPDES) Permit FL000817. This NPDES permit is administered by DEP under a federally approved program. The cooling water discharge is the largest volume of surface water discharge from Big Bend. Preexisting stresses to aquatic systems are associated with the electrical generating operations at Big Bend, particularly effects from entrainment and impingement and the thermal effects of the cooling water discharge. The stresses have diminished with the use of fine mesh screens. The cooling water is heated when discharged as a result of cooling the condensers. When the cooling water is drawn from the intake canal by pumps and routed into the units, it contains organisms and fish that become trapped in the water and drawn through the intake structures and through the condensers. This causes mortality from entrainment and exposure to heat or impingement on the screens that are associated with the CWIS facilities. The CWIS for Units 1 and 2 has coarse screens that catch large fish and crabs. The CWIS for Units 3 and 4 has coarse and fine mesh screens that trap much smaller organisms that can be returned, alive, to the bay. These aspects are regulated by the federal Clean Water Act and the NPDES permit. Ecological surveys and studies of impingement and entrainment at Big Bend began in 1970 prior to the start-up of Big Bend Unit 1 and have continued through 2013. The thermal limitations were determined to be protective of indigenous shellfish, fish, and wildlife and were permitted to continue. The fine mesh screen system was determined to constitute best technology for reducing entrainment for Units 3 and 4, which satisfied certain federal Clean Water Act requirements. A renewal NPDES permit application is pending and additional review of these aspects will occur. Solid waste materials are produced at Big Bend as a result of the operations. The combustion of coal produces a number of byproducts, including gypsum solids from the flue gas desulfurization equipment and fly ash from the electrostatic precipitators, both of which are air pollution control devices for the facilities. Bottom ash and slag are also produced. These materials are left over after the combustion process and are the noncombustible materials. Economizer ash is also produced as a result of the process. The fly ash byproduct is conveyed to the Separation Technologies, Inc., facility located on an area leased from Tampa Electric at the Big Bend site. The product is separated and reused by cement companies. Bottom ash is stored in surface impoundments and conveyed hydraulically for beneficial reuse as a raw material for other products. Economizer ash is stored in a surface impoundment, and the slag material is stored for future recycling in bins. Approximately 95 percent of the coal combustion residuals are recycled for beneficial use. Materials that are not useable are sent for disposal to approved landfills. Management of coal combustion residuals, including monitoring and inspection requirements are contained in a Coal Combustion Residuals Management Manual. The manual also contains an emergency response plan, which includes communication protocols for specific local, state, and public notifications. The locations of the facilities for the storage of bottom ash, fly ash, and recycling areas are shown on an aerial in the manual, as is the east gypsum storage area. The active coal combustion residual materials storage areas are equipped with liners to prevent groundwater discharges. The facilities are subject to the federal coal combustion residuals rule. The south gypsum storage area and the economizer ash impoundments are in the process of being closed. The Coal Combustion Residuals Management Manual was developed as a component of an April 10, 2001, consent order between Tampa Electric and DEP. The consent order implemented projects that resulted in all the coal combustion residuals storage units being lined and fully contained to prevent contact of the coal combustion residuals, process water, and stormwater runoff with the environment. Previously, those areas were identified as potential release points to groundwater. Groundwater monitoring did not show any exceedances. Environmental and Other Benefits of the Modernization Project Technology and Emissions The Modernization Project includes repowering of Unit 1 into a highly efficient, state of the art, natural gas- fired two-on-one combined-cycle generating power plant using the existing steam turbine generator for Unit 1 along with other equipment. Repowered Unit 1, a combined-cycle generating facility, would consist of two combustion turbine generators, two heat recovery steam generators, and the existing steam turbine electrical generator from Unit 1. Tampa Electric selected the advanced, large-frame GE Model 7HA.02 combustion turbine generator for the Modernization Project. In combined-cycle mode, these large combustion turbine generators are the most efficient electric generating technology currently available for utility scale power plants. The combined-cycle plants can achieve an efficiency of more than 60 percent, compared to combustion turbine generators alone in simple cycle mode at 35 to 38 percent and coal fired steam electric generating plants at 32 to 42 percent. When a combustion turbine generator is operated alone in simple-cycle mode, hot exhaust gases from the combustion turbine generator are released to the atmosphere. In combined- cycle configuration, the hot exhaust gases from the combustion turbine generator are used to produce steam in the heat recovery steam generator and the steam is used to drive the steam turbine electrical generator to generate approximately 50 percent more electricity without using additional fuel, resulting in the efficiencies. Sierra Club's expert witness, Ranajit Sahu, Ph.D., testified that the use of the existing steam turbine generator would result in a difference in generation compared to the use of a new steam turbine generator. Dr. Sahu testified that the increase in performance would be 13 MW. Tampa Electric's expert witness, Kristopher Stryker, testified that Dr. Sahu's opinion was not based on the latest study, which showed that the performance differential between the new steam turbine generator and the refurbished steam turbine generator was 5 MW, which is less than one-half of one percent of the total output of the facility. Mr. Stryker further testified that since extensive modifications would be required to the foundation to install a new steam turbine generator, a 5 MW increase in performance did not justify those modifications. Bypass stacks would be located between the combustion turbine generators and the heat recovery steam generators, which would allow the initial simple-cycle operation of the combustion turbine generators and also allow simple cycle operation in the future in the event that there is a reason to do so. The refurbished steam turbine generator would only be used when the facility is operating in combined-cycle mode. The capacity of the combined-cycle unit is a nominal 1090 MW which would be the output at an average ambient temperature of 70 degrees Fahrenheit. Each combustion turbine generator has a nominal capacity of 370 MW, and the steam turbine generator has a nominal capacity of 350 MW. The combined-cycle facility would be designed with technologies to control air emissions. The two combustion turbine generators would be equipped with dry low-nitrogen oxide combustors to control nitrogen oxide air emissions. The heat recovery steam generators would be equipped with selective catalytic reduction systems to further reduce nitrogen oxide emissions. Emissions of other regulated air pollutants, including sulfur dioxide, volatile organic compounds, and particulate matter, would be controlled through the use of low sulfur, clean burning natural gas as the only fuel fired in the combustion turbine generators, along with advanced combustion equipment and operational practices. The Modernization Project would minimize greenhouse gas emissions through the repowering of Unit 1 with clean burning natural gas, highly efficient combined-cycle electric generating technology, the retirement of Unit 2, and further reductions by dispatching other existing units in the system less often. The Modernization Project was evaluated during the Air Permit process. It was determined that the PSD program was not applicable because the Modernization Project would not result in a net increase in emissions from the Big Bend facility. Based upon the evaluation process for systemwide emissions that was conducted in accordance with the applicable requirements, it was determined that the addition of the Modernization Project would result in a substantial net reduction in emissions in most cases, including a net decrease in greenhouse gas emissions of over two million tons per year. The Modernization Project is projected to result in significant reductions in emissions compared to the continued operation of Units 1 and 2 firing either coal or natural gas as a primary energy source. R. James Rocha, Tampa Electric's expert in resource planning, prepared projections using a Planning and Risk simulation model showing system-wide yearly energy produced or megawatt-hours (MWh) and the resultant yearly systemwide British Thermal Units (BTUs) or fuel use. First, for the case in which the Modernization Project is not constructed and Units 1 and 2 continue to operate into the future; and second, for the case in which the Modernization Project is constructed and Units 1 and 2 cease operations in 2021. The model is essentially an hourly dispatch simulation of the units in the Tampa Electric generating system taking into account a number of operational, fuel, probabilistic outage and planned maintenance outage scenarios, and other variables to develop a reliable estimate of the future operations of the system to meet the hourly needs of customers. Using a complex model, such as that used by Mr. Rocha, is a standard practice in the utility industry for forecasting the hourly dispatch of the system. Outputs from the modeling and emission limits in existing permits, standard emission factors for natural gas, and heat input numbers, were then provided to William Karl, an expert in air quality analyses. Mr. Karl developed calculations of projected emissions reflecting continued operation of Units 1 and 2 burning coal and natural gas, or coal only into the future, compared to projected emissions from the operation of the Modernization Project into the future. In Tampa Electric Exhibit 27, Mr. Karl showed the current carbon dioxide emission rates for Units 1 and 2 operating with coal as a primary energy source and operating with natural gas only, compared to the expected performance of the Modernization Project. The emission rates were expressed in pounds per MWh of energy produced. The Modernization Project carbon dioxide emission rate was projected to be 737 pounds per MWh of energy produced. Units 1 and 2 operating on natural gas only, each had a carbon dioxide emission rate of 1,250 pounds per MWh. Units 1 and 2 operating primarily on coal each had a carbon dioxide emission rate of 2,180 pounds per MWh. Both comparisons demonstrated substantial reductions in the carbon dioxide emission rate of the Modernization Project compared to Units 1 and 2. With Tampa Electric Exhibit 28, Mr. Karl showed the projected Tampa Electric systemwide reduction in greenhouse gas and criteria pollutant emissions if the Modernization Project was constructed compared to Units 1 and 2 continuing to operate primarily on coal during the period of 2017 through 2046. This resulted in a projected reduction in greenhouse gas emissions of 50,500,000 tons and a reduction in emissions of criteria pollutants of 213,000,000 pounds during the period of 2017 through 2046. With Tampa Electric Exhibit 29, Mr. Karl showed the projected Tampa Electric systemwide reduction in greenhouse gas emissions and all criteria pollutants with the Modernization Project constructed compared to operating Units 1 and 2 on natural gas only. This resulted in projected reductions in greenhouse gas emissions of 18,500,000 tons and projected reductions of all criteria pollutants of 21,000,000 pounds over the period of 2017 through 2046. Sierra Club disputed that reduction credit should be given for the comparison of projected emissions from the Modernization Project to projected emissions from Units 1 and 2 continuing to operate using coal as a primary energy source. Sierra Club argued that Tampa Electric's decision to stop using coal in Units 1 and 2 was made prior to filing the SCA, and existing permits were modified to reflect that fact. Therefore, no benefit should be claimed for reduced air emissions resulting from a comparison of emissions of Units 1 and 2 burning coal projected into the future. However, testimony from Paul Carpinone confirmed that if the Modernization Project is not constructed, Tampa Electric intends to continue operating Units 1 and 2, and a return to coal use remains an option. Mr. Rocha explained that based on pricing, it could make sense for the customers to return to coal in Units 1 and 2 if the Modernization Project is not approved. Mr. Carpinone also testified that permit modifications would be required to return the units to coal use. If it is assumed that coal would not be used at all in the future, the construction of the Modernization Project would result in substantial decreases in air emissions. These are projected as decreases of 18,500,000 tons of greenhouse gases and 21,000,000 pounds in all other criteria pollutants as compared to continuing to operate Units 1 and 2 on natural gas only. Although the evidence may support downward adjustment to the projected reductions in emissions resulting from the comparison of the Modernization Project to continuing Units 1 and 2 on coal based on the time it could take to obtain the necessary permit modifications to return to coal, these projected reductions should still be considered as environmental benefits of the Modernization Project. Therefore, the preponderance of the evidence demonstrated that the Modernization Project would operate at a substantially lower emission rate for greenhouse gases than the emission rates for Units 1 and 2 on natural gas or on coal. Water Use The most substantial water use for the Modernization Project would be the OTCW supply from Hillsborough Bay. The existing station is currently authorized to withdraw a combined 1,440 million gallons per day (MGD) for cooling purposes. Primarily as a result of the retirement of Unit 2 in 2021 eliminating Unit 2's cooling water requirements, the Modernization Project would reduce cooling water withdrawals by 25 percent to a maximum of 1,080 MGD. Environmental benefits associated with the reduced cooling water withdrawals would include reductions in impingement and entrainment associated with reduced intake flows and velocity. Also, reduced fish mortality because of new fish friendly modified traveling screens and fish return system that would be installed at CWIS 1, where there previously were no such facilities. The fish return system would allow aquatic organisms washed from the modified traveling screens to be discharged back into Hillsborough Bay at a location that would minimize the potential for re-impingement. Domestic and sanitary wastewater service for Big Bend with the Modernization Project would be provided by interconnection with the Hillsborough County wastewater system similar to existing operations. Potable water for the facility would also be provided by Hillsborough County, but the volume of backup service water use would be significantly reduced. There would be a number of changes to the service water uses. These would include elimination of the auxiliary cooling tower associated with Unit 2, reduction of flue gas desulfurization system makeup water from county effluent, use of county effluent for wash down associated with the combined-cycle unit, and rerouting and reuse of several other relatively minor water streams. Wastes Nonhazardous and potentially hazardous waste generated during operation of the Modernization Project would be managed in accordance with applicable federal, state, and local regulations. The use of natural gas, which does not produce solid wastes, would further reduce the need for onsite solid waste management units for disposal areas, and any waste generated would be disposed of at an offsite permitted solid waste or hazardous waste management facility. Eliminating coal use at Units 1 and 2 along with the Modernization Project, there would be a decrease in the use of coal at the Site. This would lead to production of less coal combustion residuals and reduce the need for storage and handling of those residuals. Stormwater Management The Modernization Project would include onsite stormwater management. The stormwater management system would serve areas that include the combined-cycle and combustion turbine generator areas, onsite construction laydown and parking areas, barge unloading and laydown area, new office building area, and remote construction laydown area. Tampa Electric's stormwater system design expert, Darrel Packard, was the lead civil engineer for the Modernization Project. Mr. Packard testified about the purpose of the stormwater management system and its design and benefits. The stormwater management system would convey runoff from developed areas in a controlled manner and attenuate the stormwater peak flow such that the discharge is not greater than the current discharge conditions. The system would provide water quality benefits through retention and Best Management Practices to minimize and control the discharge of nitrogen and phosphorus. The stormwater system would also address the potential for flooding by the use of appropriately sized pipes and ditches to convey runoff from developed areas and discharge runoff into stormwater ponds that meet the regulatory requirements. Offsite flooding would also be prevented by attenuating the peak discharges that might be increased due to development. Regulatory requirements applicable to the stormwater system include required sediment basins, Best Management Practices such as silt fences, the requirement to control a one-inch runoff from the developed areas, provision of a littoral zone of approximately 35 percent of the pond surface area, and the retention of a one-inch volume of runoff for at least 120 hours prior to discharge. Half of that volume would be contained over 60 hours after the rainfall event. In addition, the design would be sufficient to control the 25-year stormwater runoff event, which is roughly 8.2 inches over 24 hours. The Modernization Project would include installation of a floodwall surrounding repowered Unit 1 to protect it from flooding. Mr. Packard's testimony provided details about the design and dimensions of the floodwall. Tampa Electric Exhibit 12 showed the details of the elevation of the floodwall. Beginning from a published datum referred to as NAVD88 or North American Vertical Datum of 1988 reflected at 0.00 elevation on the exhibit, the existing grade was shown at elevation 8.3 feet above NAVD88. The top of the floodwall was depicted at elevation 18.029 feet above NAVD88, meaning that the total elevation of the flood protection would be 18.029 feet above NAVD88. The design basis for the floodwall height took into account the elevation of the 100-year flood for facilities that are in a defined federal Emergency Management Agency (FEMA) AE Zone. Based on current FEMA flood maps, the Modernization Project is in the AE Zone, and the 100-year flood elevation is 12 feet above NAVD88. Another 2.5 feet were added to the 12-foot, 100-year flood elevation. The Hillsborough County Code of Ordinances specified the use of the American Society of Civil Engineers Standard for Flood Resistant Design and Construction (ASCE Standard) 24-05. The Modernization Project would fall into Category 3 for the ASCE Standard 24-05, adding two feet. The applicable Hillsborough County Ordinance required an additional six inches, resulting in a total minimum flood protection height of 14.5 feet. The design of the floodwall was 18.029 feet above NAVD88 and the amount by which it exceeded the 14.5-foot regulatory requirement provides a margin to account for uncertainties such as sea level rise. The FEMA flood maps for the area are under revision and have not yet been finalized. Under section 403.5185, a proposed revised map not yet in effect is not applicable to this SCA. However, a comparison of the currently effective and the preliminary flood maps showed that the flood zone for the Modernization Project would not change. Sierra Club's expert, Dr. Sahu, opined that since the Modernization Project concerns electric power generation facilities, there should be heightened scrutiny and flood protection requirements. However, Dr. Sahu's testimony did not dispute the Modernization Project's compliance with the applicable regulatory requirements. The Hillsborough County Code of Ordinances defines "critical facilities" as those for which even a slight chance of flooding might be too great. That definition of "critical facilities" does not include power plants. The design details for the floodwall followed ASCE Standard 7-10 for the minimum design load requirements for buildings and other structures. The floodwall was designed considering two design cases. When the cases were considered, essentially three checks were made for wall stability, which included values obtained from the geotechnical report plus calculations performed by the geotechnical engineers. Dr. Sahu questioned the design basis of the floodwall in terms of its ability to withstand the forces that the wall was designed to withstand. His criticism was mainly based on a lack of ability to review final detailed design plans. DEP's witness, Cynthia Mulkey, explained in her testimony that final design plans are not required for every aspect of the project. Ms. Mulkey testified that it was not unusual that final detailed design plans were not available at the time the application was being processed. The applicable nonprocedural requirement pertaining to this issue was contained in the Hillsborough County Code of Ordinances, Part A, SCC 8-1-Hillsborough County Construction Code, and the FEMA flood map. Dr. Sahu's testimony did not dispute the Modernization Project's compliance with these regulatory requirements. Socioeconomic Benefits Construction and operation of the Modernization Project is expected to provide significant benefits to the economy of Hillsborough County and the State of Florida through increased employment and revenues during construction and operation of the project. Direct benefits from construction will include employment and payroll for an average monthly employment of approximately 250 workers, as well as the purchase of equipment and materials. Approximately $300 million of construction expenditures for materials and services would occur during the construction period from 2019 through approximately mid-2023. Approximately $210 million would be spent in the local area. Once the repowering project begins operations, tax revenues and operational and maintenance expenditures would be in the range of $18 million per year. The majority of construction wages would be spent within Hillsborough County. Anticipated annual property tax revenue and sales tax revenue would be $8.4 million and $1.26 million respectively. The peak construction employment would be approximately 500 workers, and this would occur in the most labor intensive construction period in 2021. Land Use and Zoning The applicable Hillsborough County future land use (FLU) map designation for the Modernization Project and barge offloading areas is Heavy Industrial. Electrical generation plants and expansions of electrical power plants are among the allowed uses within this FLU designation. The remote construction laydown area is designated Community Mixed Use-12 which allows for light industrial multipurpose use. Areas associated with the Modernization Project are located within either Manufacturing or Planned Development-Industrial zoning districts. On June 1, 2018, Hillsborough County found the additional 92 acres, as well as the proposed activities, consistent with its existing land use plans and zoning ordinances. Impacts from Construction of the Modernization Project Environmental Impacts The site certification process includes only state, regional, and local requirements. Federal permits issued by the state under federally approved or delegated permit programs that were sought, or modified, in association with the Modernization Project are processed separately from the SCA. These include the Air Permit, the NPDES Permit, and the United States Army Corps of Engineers (USACE) Section 404 application. Tampa Electric would apply for applicable federally delegated stormwater discharge permit(s), including requirements for a comprehensive Stormwater Pollution Prevention Plan, prior to construction. During construction, stormwater would be managed to meet the requirements of those federal permits. As previously found, the stormwater management system for the Modernization Project would be designed to treat the first inch of runoff from the 25-year, 24-hour storm event and would meet federal, state, regional, and local requirements. During operation, contact stormwater runoff from the power block and equipment areas would be collected and treated through a new oil/water separator and routed to a new contact water transfer sump prior to discharge to the existing coal field pond. Noncontact stormwater runoff from the facility area would be collected and routed to a stormwater detention pond for treatment prior to discharge to the barge canal. The Modernization Project would create a new internal outfall for the reverse osmosis (RO) concentrate, and the OTCW discharge from Unit 2 would cease. The NPDES discharge compliance point would include the combined cooling water discharge from Units 1, 3, and 4, and the treated effluent from the flue gas desulfurization treatment plant, as well as the RO concentrate to Hillsborough Bay, a Class III marine water, via the onsite discharge canal. Low-volume industrial wastewater generated by the Site primarily includes floor and equipment drains, water treatment equipment waste, and service cooling tower and boiler blowdown. These waste streams are routed to a system of lined ponds, a reclaimed water storage pond, and bottom ash ponds for containment or reuse within the facility, and the same practice would continue with the Modernization Project. Groundwater monitoring around the water storage ponds is required under the facility's industrial wastewater permit No. FLA017047 and would continue to be a requirement of the Site License. The Modernization Project would include construction of stormwater detention ponds during the beginning stages of the Modernization Project development activities to provide stormwater storage and treatment for onsite runoff during construction. Because of the disturbed nature of the Site, preparation would require minimal clearing and grading. Erosion, sedimentation, and runoff control measures, both pre- and post-construction, will meet applicable nonprocedural requirements of part IV of chapter 373, Florida Statutes, Florida Administrative Code Chapter 62-330, and applicable Hillsborough County land development regulations. Best Management Practices (BMPs) and a sediment control plan would also be implemented during site construction. Monitoring of construction runoff and the operation and maintenance of BMPs for erosion and sediment control would be undertaken as required by applicable construction permits, such as the NPDES Generic Permit for Stormwater Discharge from Large and Small Construction Activities contained in Florida Administrative Code Chapter 62-621. Under current operation, the Site does not withdraw groundwater for plant processes or potable water uses nor will the Modernization Project use groundwater as a source. The Site relies on treated effluent from Hillsborough County and recycled water for its process needs. There would be no consumptive use nor anticipated impact to groundwater supply due to the Modernization Project. Site preparation and facility construction activities may have potential short-term effects on groundwater in the shallow surficial aquifer in the immediate area of the combined- cycle facilities from temporary dewatering activities. Because of the temporary and localized nature of potential dewatering activities and the direction of the flow from east to west of the Floridan aquifer in the area, construction of the Modernization Project is not anticipated to have significant adverse impacts to on or offsite groundwater resources. Construction and operation of the Modernization Project would impact approximately 55 acres of the approximately 1,188-acre certified Site. The Site has been utilized for industrial purposes for the past 50 years. Therefore, most of the land was previously disturbed and not prime habitat for wildlife species. Both uplands and wetlands are located onsite but are considered low-quality and contain a mixture of nuisance exotic and native species. Construction of the Modernization Project would not result in permanent impacts to wetlands. In fact, over 99 percent of the wetlands and surface waters onsite would remain intact. An approximately 0.18-acre portion of a low- quality wetland is proposed to be temporarily cleared for workspace during the construction of the gas pipeline interconnection. Once construction is complete, this area would be allowed to revegetate naturally. Other potential impacts proposed include: an additional 0.02 acres of permanent impact to surface waters/water bodies for the construction of a new pipe bridge across the existing intake canal; temporary impacts in the barge canal due to the spud columns; and approximately 0.01 acres of a man-made, roadside ditch would be filled for construction of a new culverted driveway for access to the remote construction laydown and/or parking area. The wetland proposed for clearing is considered a lower quality wetland, and impacts would be offset by the purchase of mitigation bank credits or onsite mitigation, if necessary. Secondary impacts to preserved wetland communities would be minimized by maintaining an average 25-foot and minimum 15-foot buffer surrounding wetlands where no construction activities would occur. Impacts from the in-water work during construction of the intake canal pipe bridge would be mitigated with the use of turbidity barriers. Existing Units 3 and 4 and the repowered Unit 1 would continue to discharge through separate outfalls into the Site's 4,500-foot discharge canal that leads to Hillsborough Bay through an inlet at the north end of Apollo Beach. The south side of the discharge canal is bordered by a sheet pile seawall that serves as a thermal barrier to the adjacent shallow waters in North Apollo Bay, minimizing thermal impacts to surface waters in this area. Adverse changes in hydrologic or water quality conditions in the existing intake and discharge canals or Hillsborough Bay are not expected to result from operation of the Modernization Project. The existing Site's OTCW discharge provides a primary thermal refuge for the local population of West Indian manatees, and seagrass along the southern boundary of the discharge canal provides food for the manatees that winter in the canal. The area outside the discharge canal and the canal itself are designated as manatee protection areas under both state and federal laws. The Site's NPDES permit includes a manatee protection plan that contains requirements for timely communication with manatee recovery program personnel and for production of adequate warm water during the winter months. Because of these required measures, projected reductions in the effluent temperature and total thermal loading in the discharge canal from operation of repowered Unit 1 and retirement of Unit 2 are unlikely to adversely impact manatees. Noise Noise impacts resulting from construction activities are expected to be minimal and mitigated by the distance between the construction area of the power block and the site boundaries, and the fact that the construction activities will take place mainly on an existing power plant site that is currently operational. Average noise levels during the loudest construction activities are projected to be between 62 and 66 A-weighted decibels (dBA) at the northern property boundary, and noise levels from construction activities will be lower at all other property boundaries. Under the rules of the Hillsborough County Environmental Protection Commission, Chapter 1-10, Noise Pollution, construction activities occurring during the hours of 7:00 a.m. and 6:00 p.m. are exempt from the noise rule if reasonable steps are taken to abate the noise. The construction activities, however, are expected to be below the 70 dBA level applicable to industrial land use category. Noise resulting from the operation of the Modernization Project would not have any adverse impact on the existing noise levels in the general vicinity of the Big Bend Power Station. Archeological and Historic Sites Based on results of cultural resource assessments conducted in 1979, no significant archaeological or historical sites were found or are expected to be found at the Site. A survey conducted in January of 2018 did not identify any previously recorded archaeological sites. In the event that any archaeological resources are encountered during construction activities, the Florida Division of Historical Resources will be notified and consulted to determine appropriate actions. Safety Issues Shawn Copeland, vice president of safety for Tampa Electric, testified on safety issues associated with Big Bend. Tampa Electric has safety programs at the different generating stations, as well as for the operating areas. The programs are designed to provide a safe environment for workers and compliance with regulations and standards. The safety programs apply to Big Bend and are designed to create a safe work environment and also public protection. There is an Emergency Action Plan for Big Bend. The plan provides basic information for initial emergency actions. Actions and procedures for reporting emergencies, procedures for emergency evacuation, procedures to account for personnel after an evacuation, procedures to be followed by employees performing rescue or medical duties, and procedures to be followed by employees remaining to conduct critical plant operations prior to evacuation. The Emergency Action Plan primarily focuses on events related to fires, medical, natural gas, and severe weather emergencies. There are specific emergency evacuation plans for each type of event. The storm preparedness procedures contained in the Emergency Action Plan do not apply to hurricanes, but rather storms that are more sudden. Hurricane preparedness is addressed in the Big Bend Station Storm Preparedness Procedures, revised May 9, 2018, which consists of approximately 151 pages of information and checklists applicable when hurricanes or hurricane-related events are approaching. Emergencies of all types are addressed by the All Hazard Notification Flowchart, which provides protocols for communications and activities to be taken during the occurrence of suspicious activities or an unexpected emergency at the plants. In addition to the foregoing, Big Bend has an Integrated Contingency Plan dated December 2018. The purpose of the Integrated Contingency Plan is to focus on emergency prevention and preparedness and provide rapid, effective protection of human health and the environment during an emergency caused by a chemical release or other physical hazardous release. The objectives of the Integrated Contingency Plan are to establish: (i) means of recognizing an emergency; rapid notification procedures to avoid delay in response; an organizational structure for accountability; initial assessment and response procedures to isolate and stabilize the incident; (v) sustained response procedures to mitigate the consequences of the incident; and (vi) post- incident investigations to document and eliminate the incident causes. The scope of the plan covered involves hazards or releases associated with hazardous waste, oil, and petroleum products, substances subject to the emergency planning and Community Right-to-Know Act requirements, federal workplace requirements for emergency response plans, Florida requirements governing release prevention and response for pollutants stored in regulated tanks, radiation hazards, and federal and state requirements for response to an air release of asbestos containing fibers. The plan provides protection from these hazards for both workers and the public. The Coal Combustion Residuals Management Manual assists the facility in maintaining compliance with permits and environmental procedures and preventing unauthorized releases to the environment, while maximizing beneficial use of this material and minimizing generation of additional wastes. Mr. Stryker detailed the design standards that apply or would be used in the design of the Modernization Project including the natural gas pipeline lateral. The generating facility additions were designed by an internationally recognized engineering firm with significant experience designing similar projects throughout North America and Florida, including one for Tampa Electric. Sound engineering practice will be utilized, and all applicable laws and regulations and required codes, such as the Florida Building Code and the Hillsborough County Code requirements, would be met. The natural gas lateral, in addition to adhering to good engineering practices and industry requirements, is subject to review by the Florida Public Service Commission (PSC). The PPSA and SCA Process The PPSA created a centrally coordinated process for review and evaluation of electrical generating facilities at the state and local level on the basis of adopted standards and recommendations of the reviewing agencies. DEP, through the Siting Office, is responsible for coordinating and processing the SCA and maintaining the Site License for the life of the electrical generating facility. The SCA was filed with DEP on April 18, 2018. DEP submitted the application to DOAH, along with a proposed schedule for processing the SCA for approval by the ALJ. The SCA was distributed to the reviewing agencies that review the SCA for completeness and ultimately submit agency reports containing recommendations. Each agency conducts a review as to the compliance of the SCA with the statutory and administrative requirements within the respective agencies' jurisdiction and also provides a report containing a recommendation of approval or denial of the Modernization Project, including any proposed Conditions of Certification. Following initial agency review, the SCA was determined to be incomplete, and additional information was requested. Tampa Electric submitted the additional information requested on June 27, 2018, and the SCA was determined to be complete on July 19, 2018. The Southwest Florida Water Management District (SWFWMD), the FWCC, the Florida Department of Transportation (DOT), the Florida Department of Economic Opportunity (DEO), the Florida Department of State, Division of Historical Resources (DHR), and the DEP were the state and regional agencies reviewing the SCA. As required by the PPSA, the local government in whose jurisdiction the project would be located was also included. Hillsborough County, as well as the Environmental Protection Commission of Hillsborough County, reviewed the SCA. The state, regional, and local agencies supported the Modernization Project. The agencies determined that the Modernization Project would comply with all applicable non- procedural requirements when constructed and operated in conformance with the proposed Conditions of Certification. SWFWMD, FWCC, DOT, DHR, and Hillsborough County proposed Conditions of Certification to which Tampa Electric agreed. DEP prepared a PAR summarizing the substantive review by the agencies, including DEP's review of the applicable environmental regulations by all the relevant divisions within DEP. The PAR contains DEP's recommendation, taking into account all of the information received from Tampa Electric and the various reviewing agencies, that the SCA should be approved subject to the proposed Conditions of Certification. Tampa Electric has agreed to accept the proposed Conditions of Certification in the PAR. With the exception of DEP, the reviewing agencies waived their rights to be a party and to participate in the certification hearing by not filing the notice required to do so. Need Determination The SCA was filed and processed under the provisions of section 403.5175, which provides for the certification of existing, uncertified units that were not previously subject to the provisions of the PPSA. The SCA requested certification of existing Units 1, 2, and 3, and the authorization to repower Unit 1 and retire Unit 2 after continuing to operate until 2021. Units 1, 2, and 3 are not subject to the PPSA unless the steam electric generating capacity was expanded after the effective date of the PPSA. The preponderance of the evidence established that repowering Unit 1 would not result in an expansion of the steam electric generating capacity, Unit 2 would continue to operate as currently operated until its retirement in 2021, and Unit 3 would continue to operate as currently operated into the future, so there is no expansion of steam electric generating capacity at either of those facilities. The Unit 1 repowering project would use the existing steam turbine electrical generator that is currently used for Unit 1. The electrical generating rating or capacity of a facility is found on a nameplate on the generator. The nameplate capacity of existing Unit 1 steam turbine electrical generator is 445.5 MW. The maximum steam electric generating capacity of the combined-cycle, after the repowering, would be 360 MW. This is because the steam produced in the heat recovery steam generators would limit the amount of electricity that can be produced using the steam. It would be well below the existing capacity of the steam turbine electrical generator for Unit 1. There would not be an expansion of steam electrical generating capacity as measured by the nameplate of the existing Unit 1 steam turbine electrical generator. Therefore, the provisions of the PPSA that require a need determination are not triggered. Ms. Mulkey testified that DEP defines "expansion" as an increase in steam generation. In addition, early in the process, DEP's Siting Office considered the PPSA applicability issues. DEP evaluated the information provided by Tampa Electric and consulted with PSC staff to determine whether the Modernization Project should be subject to a need determination. Because the combined-cycle facility that would repower Unit 1 has the capacity to produce sufficient steam to generate only 360 MW, no expansion of steam turbine electrical generating capacity would occur. The PSC staff and DEP agreed that proceeding under the provisions of section 403.5175 was appropriate. Mr. Stryker testified to other projects where repowering did not go through the site certification process. One such project involved the repowering of Tampa Electric's Gannon Station with a combined cycle unit using the existing steam turbine electrical generator for the repowered units. A similar repowering project was carried out by then Progress Energy at the Bartow facility. The Progress Energy project, although not increasing steam electric generating capacity as a result of the repowering, actually used an entirely new steam electric generator unit. Notwithstanding this difference, DEP concluded that the Bartow repowering project was not subject to the PPSA because it did not increase steam electric generating capacity. Sierra Club's expert, Dr. Sahu, testified that Tampa Electric's consideration of only the steam-generated electricity to determine whether a need determination was required was factually incorrect and misleading. He opined that evaluating only the steam component of the generation for purposes of determining the applicability of the PPSA was not appropriate since the PPSA is 40 years old and the manner in which electricity is generated has changed during that period of time. Instead, he suggests that the entire facility should be looked at, rather than just the steam component. However, Ms. Mulkey testified that for purposes of evaluating whether the Modernization Project would be subject to a need Determination, the focus was on whether there would be an expansion of steam electrical generating capacity defined as an increase in steam generation. It was appropriate to focus on the steam generation component, and the PSC did not express any concerns with this approach. Notice, Outreach, Public Hearing All notices required by the PPSA were provided. Tampa Electric published the required Notice of Filing for Electrical Power Plant Site Certification on May 7, 2018, Notice of Land Use Consistency Determination on Electrical Power Plants Site on June 20, 2018, Notice of Certification Hearing on November 2, 2018, and Notice of Rescheduled Certification Hearing on January 4, 2019, all in the Tampa Bay Times. DEP notices were published in the Florida Administrative Register. Tampa Electric engaged in public outreach for the SCA. The public outreach included newspaper notifications, direct mailing, establishing a website for the SCA, and a phone number to call for questions concerning the SCA. There was one direct mailing consisting of 8,948 direct letters to landowners within three miles of the Site and in accordance with the PPSA. Tampa Electric representatives also met with various elected officials to discuss the Modernization Project. A copy of the SCA was made available for public inspection at Tampa Electric's main office on Tampa Street in downtown Tampa, and a copy of the SCA was also made available at the John F. Germany Hillsborough County Public Library on Ashley Street in Tampa. Those SCAs were updated as appropriate. As part of the certification proceeding, a public hearing was held on March 11, 2019, from 6:00 p.m. until 9:00 p.m. At the hearing, comments were accepted from those who expressed a desire to speak. Thirty-nine members of the public testified. Twenty-six members of the public spoke in opposition, and 13 members of the public spoke in favor of the Modernization Project. The public hearing was recorded and transcribed as part of the Transcript of the certification hearing.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a final order approving certification of Tampa Electric Company, Big Bend Power Generating Station's, existing Units 1, 2, and 3; and authorizing the Modernization Project, subject to the Conditions of Certification contained in DEP's Project Analysis Report. DONE AND ENTERED this 30th day of May, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2019. COPIES FURNISHED: Lawrence N. Curtin, Esquire Kevin W. Cox, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 (eServed) Kelley F. Corbari, Esquire Michael J. Weiss, Esquire Kirk S. White, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Diana A. Csank, Esquire Julie Kaplan, Esquire Aaron Messing Matthew E. Miller, Esquire Sierra Club 50 F Street Northwest, 8th Floor Washington, DC 20001 (eServed) Kathleen Riley Sierra Club 50 F Street Northwest, 8th Floor Washington, DC 20003 Theresa Lee Eng Tan, Esquire Florida Public Service Commission 2450 Shumard Oak Boulevard Tallahassee, Florida 32399 (eServed) Andrew S. Grayson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Marva M. Taylor, Esquire Hillsborough County 601 East Kennedy Boulevard Tampa, Florida 33601 (eServed) Vivian Arenas-Battles, Esquire Southwest Florida Water Management District 7601 U.S. Highway 301 Tampa, Florida 33637 (eServed) Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 (eServed) Jon F. Morris, Esquire Department of Economic Opportunity 107 East Madison Street, Mail Station 110 Tallahassee, Florida 32399 (eServed) Richard Thomas Tschantz, Esquire Environmental Protection Commission 3629 Queen Palm Drive Tampa, Florida 33619 (eServed) Sean Sullivan Tampa Bay Regional Planning Council 4000 Gateway Center Boulevard, Suite 100 Pinellas Park, Florida 33782 Jason Aldridge Division of Historical Resources Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399-0250 Carlos A. Rey, Esquire Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399-0250 (eServed) Ronald W. Hoenstine, Esquire Department of Environmental Protection Douglass Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Andres Restrepo, Esquire Sierra Club 520 Carpenter Lane Philadelphia, Pennsylvania 19119 Joshua Douglas Smith, Esquire Sierra Club 2101 Webster Street Oakland, California 94612 (eServed) Kathryn E.D. Lewis, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Tara R. Price, Esquire Holland and Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32302 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
