Findings Of Fact On or about May 24, 1976, Petitioner and Respondent entered into a contract for State Project No. HRS-7525-A (hereinafter "Phase 1") for improvements to the utility system at Chattahoochee, Florida. The Phase I contract involved conversion of boilers located at that facility to fuel oil firing; additions to the system's cooling tower capacity; and repair of condenser shell and boiler stacks at the hospital. Petitioner was to be paid ;525,927 for work performed under the Phase I contract. Although Respondent was referred to as the "owner" in the Phase I contract documents, it was responsible only for contracts and the work performed thereunder. The Florida Department of Health and Rehabilitative Services is the state agency responsible for operating Florida State Hospital and is referred to in the contract documents as the "using agency". The using agency's only responsibility under the Phase I contract was to coordinate periodic utility outages with Petitioner. The firm of Tidewater Engineers, Inc. ("architect' or Tidewater") was referred to in the Phase I contract document as the Architect and/or Engineer. Tidewater engineered the Phase I contract, prepared the contract specifications, and provided general administration of the work performed under the contract. Pursuant to the provisions of the Phase I contract, Petitioner received from Respondent a Notice to Proceed with construction dated June 28, 1976. In accordance with the contract documents, Petitioner was given 210 days, or until January 23, 1977, to complete construction on the project. Petitioner actually commenced work on Phase I on June 28, 1976. During the course of construction, Petitioner was granted a 23-day extension of time by change order, with a resulting extension of the tine for completion of the project through February 15, 1977. The architect certified that Petitioner attained "substantial completion" of work, as that term is defined in the contract documents, on the project on February 23, 1977. Accordingly, "substantial completion" was accomplished eight-days beyond the date provided for in the contract, as modified by change orders approved by the architect. The Phase I contract allowed Petitioner a period of 60 days between "substantial completion" and "final completion" of construction on the project. Thus, Petitioner was scheduled to conclude work on the project no later than April 24, 1977 However, "final completion" was certified by the architect to have been accomplished by Petitioner on July 21, 1977, or 88 day's beyond the period provided in the Phase I contract. The Phase I Contract contained the following provision concerning liquidated damages for failure to attain "substantial completion" and "final completion" within the time limit agreed upon by the parties: . . . it is hereby agreed that if the project is not substantially completed, according to the definition of "sub- stantial completion" in Article 8.3 hereof, or within such further time, if any, as in accordance with the provisions of the contract documents shall be allowed for such substantial completion, the Contractor shall pay to the Owner as liquidated damages for such delay, and not as a penalty, Two Hundred dollars ($200) for each and every calendar day elapsing between the date fixed for sub- stantial completion in Article 4 hereof and the date such substantial completion shall have been fully accomplished. It is also hereby agreed that if this project is not finally completed, in accordance with the requirements of the contract documents, the Contractor shall pay to the Owner as liquidated damages for such delay, and not as a penalty, one-fourth of the rate indicated above. . . . In accordance with the foregoing provisions of the Phase I contract, and in light of the 8-day overrun in attaining "substantial completion" and the 88-day overrun in attaining "final completion", the architect, by certificate dated December 12, 1978, assessed against Petitioner $1,600 in liquidated damages for failure to timely accomplish "substantial completion", and $4,400 for overruns on "final completion" of the project, for total liquidated damages of $6,000. Petitioner contends that it should have been granted extensions of time by the architect sufficient to offset the amounts assessed as liquidated damages by virtue of its failure to-attain "substantial completion" and "final completion" within the time limits contained in the Phase I contract documents, as modified by change orders issued by the architect. The record in this proceeding establishes that additional delays in completion of construction of Phase I were attributable to an insufficient number of welders on the job site to complete construction as contemplated. Petitioner additionally asserts that adverse weather conditions and problems encountered by its subcontractors in interfacing the contract work with existing facilities caused unavoidable delay. In this regard, Section 8.3.1 of the General Conditions of the Contract for Construction provides that: If the Contractor is delayed at any time in the progress of the Work by any act or neglect of the Owner or the Archi- tect, or by any employee of either, or by any separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in transportation, unavoidable casualties or any causes beyond the Contractor's con- trol or by delay authorized by the Owner pending arbitration, or by any cause which the Architect determines may justify the delay, then the Contract Time shall be extended by Change Order for such reason- able time as the Architect may determine. Further, Section 8.3.2 of the General Conditions provides that: [a]ll claims for extension of time shall be made in writing to the Architect no more than twenty days after the occurrence of the delay; otherwise they shall be waived Petitioner did not timely submit a request for extension of time to reach "substantial completion" or "final completion" of construction on Phase I, nor is there any competent evidence in this proceeding to indicate that either Respondent or the architect agreed explicitly or by implication to waive the requirement of the contract documents that requests for extension of time be made in writing within twenty days of the occurrence giving rise to the request. On or about October 19, 1976, after receipt and evaluation of competitive bids, Petitioner and Respondent entered into a contract for State Project Number HRS-7525-B (hereinafter "Phase II") . The Phase II contract involved demolition and removal of Boiler Number 5, installation of Boiler Number 9 and accessories, and other modifications to the steam distribution system at Florida State Hospital. Petitioner was paid a total of $276,322.44 for work performed under the Phase II contract. In addition, Tidewater also served as the architect on the Phase II contract. Among the specifications contained in the Phase II contract documents as the following: Bidders are required, before submitting their proposals, to visit the site of the proposed work and completely familiar- ize themselves with the nature and extent of the work and any local conditions that may in any manner-affect the work to be performed, and the equipment, materials, and labor required. They are also required to examine carefully the drawings, speci- fications and other bidding documents, to inform themselves thoroughly regarding any and all conditions and requirements that may in any manner affect the work. [Original emphasis]. (Joint Exhibit number 2, p. B-4). The specifications governing Phase II required Petitioner to attend a pre-construction conference before beginning work at the site, the purpose of which conference was to discuss the project under contract and prepare a program of procedure in keeping with requirements of the drawing and specifications." (Joint Exhibit number 2, p. H-1) . In addition, the Phase II specifications provided that it was Petitioner's responsibility " . . . to verify all conditions relating to the work in the field prior to proceeding with the installation." [Original emphasis]. (Joint Exhibit number 2, p. 1-1). The specifications further provided that where the work under the contract " . . . ties into existing facilities [Petitioner] shall coordinate his work with the Owner so that a minimum of downtime and disruption will occur." (Joint Exhibit number 2, p. 1-1). The section of the Phase II specifications dealing with demolition and installation of the various boilers provided that: It is imperative that the Contractor visit the jobsite prior to submitting his bid for the work. He shall carefully inspect the premises and shall include in his pro- posal such necessary contingencies as might be required by conditions at the site. Failure of the Contractor to visit the jobsite and include necessary contin- gencies shall not relieve him from complete and correct prosecution of the work. (Joint Exhibit number 2, p. 6-1). Finally, the Phase II specifications also provides that: The plant will be in operation during construction. Any outages shall be scheduled at the convenience of the Owner and at a time designated by him. When required by Owner, temporary feeds will be provided by this Contractor to keep existing equipment in operation while installing new equipment. On October 25, 1976, a conference was held at the construction site with representatives of Petitioner, Respondent, Florida State Hospital and the architect present. By letter dated October 26, 1976, Petitioner's president memorialized the discussions which occurred at this meeting as they applied to work under both Phase I and Phase 11. With respect to Phase II, this letter indicated that Petitioner's president: . . . was advised by both [the architect] and [the hospital's representative] that the hospital must have the capability to fire three boilers at anytime during this time of the year. [The architect] further advised that [Petitioner] could not start demolition of Boiler number 5 until all existing boilers are converted and checked out. [Petitioner's president] advised [the architect] that it would take [Petitioner] the minimum of six months to complete Phase II of this contract after [Petitioner] is allowed to go to work. [The architect] advised that he would grant [Petitioner] this additional time from when [Petitioner is] allowed to proceed. The evidence in this proceeding establishes that the demolition of Boiler Number 5 and the installation of Boiler Number 9 constituted the vast majority of work to be performed in Phase II. Accordingly, at all times following the meeting of October 25, 1976, Petitioner was aware that no date had been established for commencement of the major portion of the Phase II contract work, but that it would be allowed an extension of time of six months to complete Phase II of the contract after receiving notice from Respondent to proceed with demolition of Boiler Number 5. The Phase II contract provided that work to be performed thereunder would be commenced within ten calendar days after receipt of a Notice to Proceed, and that work under that section of the contract was required to be "substantially completed" within 180 calendar days of receipt of the Notice to Proceed. However, as indicated above, Petitioner was advised at the October 25, 1976 meeting that it would receive, in addition to the time periods contained in the original Phase II documents, a 180-day period of time to complete the contract work after receipt of a Notice to Proceed with demolition of Boiler Number 5. Petitioner received from Respondent a Notice to Proceed, dated November 4, 1976, establishing the starting date for the Phase II contract time as November 15, 1976. In accordance with the Phase II contract documents, the Notice to Proceed also established a "substantial completion" date of May 13, 1977. These dates were established subject to change consistent with the agreement between the parties reached at the October 25, 1976 pre-construction conference. The record clearly establishes that this Notice to Proceed was intended to allow Petitioner to begin that portion of the Phase II work not associated with demolition of Boiler Number 5 and installation of Boiler Number 9. A second conference was held at the job site on November 15, 1976, which resulted in a pre-construction conference report signed by representatives of Respondent, Florida State Hospital, the architect and Petitioner. This report indicated that work on Phase II of the project was ". . . being delayed because of work on Phase I that the " . . . engineer agrees with delay on Phase II and suggests [Change Order] to extend time . .", and that a " . . . Change Order [is] to be issued when boiler is received and project starts." (Respondent's Exhibit number 1). In reliance on the Notice to Proceed dated November 15, 1976, Petitioner apparently proceeded with some of the work called for under the contract, with the exception of work connected with the demolition of Boiler Number 5 and the installation of Boiler Number 9. The understanding between the parties concerning the starting date for work on the two boilers was again memorialized in a letter from the architect to Petitioner dated December 7, 1976. That letter provided that: Due to the circumstances involved while converting the existing boilers No. 6, 7 & 8 the institution has requested the use of boiler No. 5 during the conversion shut down. This boiler will remain in use until the new fuel oil pumping system is in operation serving the existing boilers No. 6, 7 and 3. Since you have been notified to proceed with the Phase II contract and your con- strution time has begun, we will give you 180 calendar days from the time you are allowed to begin demolition of No. 5 boiler. Please advise your subcontractors and suppliers of this change so they can arrange their schedules accordingly. It appears that the work inside the boiler room can begin about January 15, 1977. The January 15, 1977 anticipated starting date referred to in the aforementioned letter apparently resulted from an estimate of the anticipated date of substantial completion of work on Phase I, which was scheduled for January 2.3, 1977. However, as a result of Change Orders issued on the Phase I project and construction overruns by Petitioner on the Phase I work, substantial completion was not reached on Phase I until February 23, 1977. As a result, Respondent did not issue a Notice to Proceed with demolition of Boiler Number 5 until March 28, 1977. This Notice to Proceed established March 28, 1977 as the contract commencement time, and further established September 23, 1977 as the required date for substantial completion. This second Notice to Proceed also contained a notation that these new dates were being established because " . . . Project HRS-7525-A, Improvements to Utilities System, Phase I, was behind schedule, therefore the Using Agency could not shut dawn the existing boiler which is to be renovated under the contract." (Petitioner's Exhibit number 22). In accordance with the earlier understanding by the parties reached on October 25, 1976, Petitioner was given a period of 180 days from March 28, 1977, in which to reach "substantial completion" of work on the project. In addition, the architect granted a 32-day extension by Change Order during the course of construction work. As a result, the date on which substantial completion was to have been reached by Petitioner was October 25, 1977. However, the architect certified that Petitioner attained substantial completion of work on the project on November 11, 1977, which constituted a 17-day overrun of the required substantial completion date. The Phase II contract documents allowed Petitioner a period of sixty days from the date established for substantial completion to reach final completion of construction on the project. Accordingly, final completion of the project was scheduled to occur no later than January 10, 1978. However, final completion of work on the Phase II contract was certified by the architect to have been accomplished by Petitioner on February 16, 1978, 37 days beyond the date required by the contract documents. The Phase II contract documents contained a provision that for each day of overrun in reaching substantial completion, the Petitioner would be assessed one hundred dollars as liquidated damages. In addition, the contract provided far a twenty-five dollar per day assessment of liquidated damages for each day of overrun in reaching final completion of the project. Accordingly, Petitioner was assessed $1,700 in liquidated damages for overruns on reaching substantial completion, and $925 for overruns in obtaining final completion. Petitioner did not request an extension of time in accordance with the Phase II contract documents to offset the time overruns for which it was assessed liquidated damages. In addition, as with the Phase I contract, nothing in the record of this proceeding establishes that Respondent or its representatives in any way waived the notice provisions of the Phase II contract documents with regard to requests for extensions of time. Finally, the coordination problems encountered by Petitioner with materialmen which Petitioner asserts as justification for the overruns on the Phase II contract, were among the matters which the contract documents required Petitioner to take into account in formulating its bid and cannot, at this late date, constitute an excuse for failure to comply with the time limits contained in the contract. Periodic payments under both the Phase I and the Phase II contracts were scheduled to be made to Petitioner on a monthly basis depending upon progress in construction. The contract allowed Respondent to withhold 10 percent from the amount of each of the monthly progress payments as retainage. The contract documents also provided that upon substantial completion of the contract work, the 10 percent retainage figure could be reduced to 5 percent, in the discretion of the architect, with the remaining 5 percent constituting the final payment to be made upon final completion. All periodic payments were to be made to Petitioner upon approval by the architect. Payment in the amount of $32,169.39 reducing Phase I retention from 10 percent to 5 percent was made on February 9, 1978, almost one year after the February 23, 1977, date certified by the architect for substantial completion on Phase I. Payment reducing retention on Phase II from 10 percent to 5 percent, in the amount of $34,730.70, was made on February 3, 1978, approximately three months after the November 11, 1977, certified date for substantial completion of construction on Phase II. Final payment of all retention on Phase I, which payment amounted to $20,451.50, was made on March 19, 1979, approximately 20 months after the July 21, 1977 certificate of final completion Issued by the architect. Final payment of all retention on Phase II, in the amount of $11,389.14, was made on May 29, 1979, approximately 15 months after the February 16, 1978, final completion date certified by the architect. Petitioner claims that it is entitled to an award of interest on those parts of the contract sums remaining unpaid from the respective dates of substantial and final completion of the two projects until retainage payments were actually received. In this regard, the General Conditions of the contract documents contained a clause that provided that " . . [a]ny monies not paid when due to either party under this Contract shall bear interest at the legal rate in force at the place of the Project." (Joint Exhibit number 5 p. 12) However, in the specifications for both the Phase I and Phase II contracts there appears a clause which deletes the above-quoted interest provision in its entirety. It is, therefore, specifically found that the intent of the parties in deleting that portion of the contract documents providing for the payment of interest on past-due monies owing under the contracts was to relieve either- party from any liability for interest on such past-due amounts. Accordingly, Petitioner's claim for an award of interest on late payments is precluded by virtue of the provisions of both the Phase I and Phase II contract documents. Finally, Petitioner claims entitlement to an increase in the contract sum on the Phase II contract because of its inability to proceed with demolition of Boiler Number 5 and installation of Boiler Number 9 until March 28, 1977. Petitioner calculates its claim for an increase in the contract sum based upon additional overhead expenses attributable to the lapse of time between the initial Notice to Proceed issued on November 15, 1976 and the second Notice to Proceed of March 28, 1977. In essence, Petitioner argues that there was nothing in any of the Phase II contract documents which would have put it on notice that construction on Phase II could not have commenced shortly after the award of the contract, and that it prepared its bid in reasonable reliance on its ability to begin construction shortly after the letting of the contract. Because of the using agency's need to keep Boiler Number 5 operating until completion of work on Phase I, and the additional requirement that a coal chute at the hospital be left unblocked to facilitate unloading of fuel, Petitioner was not allowed to begin demolition of Boiler Number 5 until 134 days after issuance of the initial Notice to Proceed. As indicated earlier in this Recommended Order, the Phase II contract documents required Petitioner to visit the site of the proposed work and completely familiarize [itself] with the nature and extent of the work and any local conditions that may in any manner affect the work to be performed, and the equipment, materials, and labor required . . . [Original emphasis]. (Joint Exhibit number 2, p. B-4). The Phase II contract documents also required that "[w]here [Petitioner] ties into existing facilities, [it] shall coordinate its work with the Owner, so that a minimum of downtime and disruption will occur." (Joint Exhibit number 2, p. 1-1). Finally, the contract documents contained a provision that: . . . If [Petitioner] is delayed at any time in the progress of the Work . . . by any cause which the Architect determines may justify the delay, then the Contract Time shall be extended by Change Order for such reasonable time as the architect may deter- mine. [Emphasis added]. (Joint Exhibit number 5, p. 12). There is no provision in any of the Phase II contract documents setting a specific starting time for work on the project. Instead, the contract documents simply provide that "[t]he date of commencement of the Work is the date established in a notice to proceed (Joint Exhibit number 5, p. 12). In this regard, Petitioner knew at all times on and after October 25, 1976, that there would be a substantial delay in commencement of work on the demolition of Boiler Number 5. In accordance with the terms of the contract documents, Petitioner was advised on October 25, 1976, and at numerous times thereafter, that it would be granted the full 180-day time period to complete the Phase II work after receipt of a notice to proceed with demolition of Boiler Number 5. The record establishes that Petitioner acquiesced in this arrangement, and that it did not request an increase in the contract sum within twenty days of the October 25, 1976, meeting as it was required to do in the contract documents. (Joint Exhibit number 5, p. 17). Finally, delays in commencement of work under the Phase II contract, unlike changes in or stoppage of the work once it has been started, cannot form the basis for an award of delay damages. Under the Phase II contract, delays in initial commencement of the work arising prior to the issuance of a notice to proceed can be redressed only by extension of the contract time. Accordingly, expenses incurred in preparation to perform work under the contract prior to the issuance of a notice to proceed, absent some contrary agreement, are undertaken at the contractor's risk. This is especially so under the facts of this case where Petitioner knew of the likelihood of delay on work on Phase II well in advance of the issuance of either of the notices to proceed, and where Petitioner itself, by virtue of its delinquencies in performing work under the Phase I contract, thereby contributed to the delay in commencing work on Phase II. Both Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those proposed findings have not been adopted herein, they have been rejected as either being irrelevant to the issues presented or as not having been supported by the evidence.
Findings Of Fact On May 3, 1977, DOT advertised for bids to construct 4.034 miles of interstate highway in Charlotte County, Florida, from a point north of Oilwell Road to a point north of Green Gulf Boulevard. This project, which is the subject matter of this proceeding, was designated as join No 0l075-340l. The closing for bids was 10:30 A.M. on March 30, 1977. On January 27, 1977, DOT advertised for bids to construct 5.027 miles of interstate highway in Charlotte County, Florida, from the county line to a point north of Oilwell Road. This project, which was adjacent to the "3401 job" was designated as job No. 01075-3407 . The closing date for the bids on this contract was changed from February 23, 1977, to March 23, 1977, by Addendum No. 3 dated March 9, 1977. Petitioner is a corporation which has been involved in the construction of various types of roads in the sate of Florida for many years, and, for the last 19 years has constructed roads in the area of the state generally north of Tampa. Petitioner was the successful bidder on both the aforementioned projects. Prior to submitting its bid, representatives for Petitioner visited the construction site, observed that the site consisted of flat country with lakes and standing water, and inquired of local residents about area weather conditions. Petitioner's representatives were advised that the area experienced frequent rainfall, but made no inquiry about historical rainfall statistics, either independently or through DOT. On May 26, 1977, Petitioner entered into a contract with DOT in the amount of $5,884,703.32 to construct the "3401 job" consisting of 4.034 miles of interstate highway in Charlotte County, Florida, from a point north of Oilwell Road to a point north of Green Gulf Boulevard, including construction of Green Gulf Boulevard to U.S. 41. In that contract, Petitioner agreed, in part ". . . to fully complete all necessary work . . . within not more than nine hundred calendar days. " On May 19, 1977, Petitioner entered into a contract with DOT in the amount of $5,734,417.40 to construct the "3407 job" consisting of 5.027 miles of interstate highway in Charlotte County, Florida, from the county line to a point north of Oilwell Road and agreed, in part, to complete necessary work on this project within not more than seven hundred calendar days. Prior to the advertising and letting of bids on the two above-described projects, a feasibility study was conducted during the 1960s as mandated by federal law, which study was followed by a 4F Environmental Impact Statement approved by the U.S. Secretary of Transportation locating the aforementioned portions of the proposed interstate highway in the Cecil M. Webb Wildlife Area in Charlotte County, Florida. One of the requirements of the 4F Statement is that necessary embankment material for the construction of the portions of the interstate highway herein disputed be excavated from a designated location in the wildlife area, thereby creating a lake to be stocked for public fishing. Soil samples were taken from the proposed lake borrow area by borings during the period from March 20, 1972 through April 10, 1972. These soil samples were analyzed by DOT personnel, which analysis resulted in a soil report which was entered into evidence in this proceeding. Samples of two strata of A- 2(4) soil, from the proposed borrow area were forwarded to DOT's Gainesville laboratory for X-ray diffraction. These tests resulted in a memorandum dated July 29, 1972, which indicated that the test results showed the materials to contain a small amount, approximately one part in ten of the clay fraction, of montmorillonite. Montmorillonite is a mineral whose chief characteristic is an affinity for attracting and tenaciously holding excess water, thereby becoming highly plastic and difficult to compact. The presence of montmorillonite is common in coastal areas of Florida, such as Charlotte County. The July 29, 1972, memorandum also contained the further provision that: Caution is advised in the use of these materials, as we do not have enough background data, historical data, etc. to determine the effect of different amounts of montmorillonite on material handling characteristics, under varying moisture conditions. As previously indicated, because of the requirements of the 4F Statement, construction plans and special provisions relating to these two projects required that all material for road embankment was to come from the construction of a lake area in the Cecil M. Webb Wildlife Area. Because of the aforementioned soil analysis, information was placed in the project plans indicating the presence of plastic materials in the Sample 3, 5, and 6, and the following notation was placed in the project plans concerning embankment and sub-grade material: The material from Strata No. I, 2, and 4 appears satisfactory for use in the embankment. The material from Strata No. 3, 5, and 6 appears satisfactory for use in the embankment above the water level existing during construction. However, extreme caution should be followed in the use of these materials as they are likely to retain excess moisture and may be difficult to dry. The material from Strata No. 7 and 8 appears satisfactory for use in the embankment. However extreme caution should be followed in the use of these materials as they are likely to retain excess moisture end may be difficult to dry. The material from Strata No. 9 is muck. (Emphasis added) In addition, the following notations were contained in the Special Provisions portion of the contract between Petitioner and DOT, in Paragraph 11 entitled "Embankment": Source: The Contractor shall obtain all required material for the proposed embankment from areas within the Cecil M. Webb Wildlife Area. This excavation shall be performed in accordance with the lake construc- tion plans. . . . (f) Soil Analysis: The Contractor's attention is directed to the strata which are likely to retain excess moisture and may be difficult to dry. Prior to commencement of construction on the projects, a pre- construction conference was held between representatives of Petitioner and DOT in Punta Gorda, Florida, on June 0, 1977. At the pro-construction conference, discussions were held which indicated that all embankment material for the two projects would come from the planned lake area as shown on the plans and specifications, and it was again pointed out to Petitioner's representative that the embankment material might be difficult to dry. Petitioner's job superintendent was present at the preconstruction conference, had read the soil notes concerning the affinity of the embankment material for retaining moisture, but made no further inquiry of representatives of DOT concerning the soil test results contained in the project plans. It is undisputed that DOT did not furnish petitioner the results of its laboratory tests, nor did DOT advise Petitioner specifically of the presence of montmorillonite. Section 8-8.1, Florida Department of Transportation Standards Specifications for Roads and Bridge Construction, 1973, which was made a part of the contract between Petitioner and DOT, provides, in pertinent part, that: Time is an essential element of the con tract and, as delay in the prosecution of the work will inconvenience the public, obstruct traffic, and interfere with business, it is important that the work be pressed vigorously to completion. Moreover, the cost to the Department of the administration of the contract, including engineering, inspection, and supervision, will be increased as the construction period is lengthened . . . . Section 8-7.1, of the aforementioned document further provides that: The contractor shall perform fully, entirely and in accordance with the specifications, the work contracted for, within the contract time specified in the proposal , or as may be extended in accordance with the provisions herebelow.. Section 8-7.3.2 of the Standard Specifications Provides that: No allowance in contract time will be made for delay or suspension of the prosecution of the work when such delay is due to fault or negligence of the contractor. Finally, Section 8-8.3 provides, in part, as follows: (i) The Department may grant extensions of time during the prosecution of the work, as allowed under the Standard Specifications and special provisions for the work, regardless of the Contractor's delinquency status. If is incumbent upon the Contractor to request the Department for such extensions of time as he feels he is entitled to. (j) The Department may recognize as grounds for granting time extensions only those conditions which are beyond the control of the Contractor and which could have not been reasonably anticipated at the time bids were received. Rains or other inclement weather conditions will be considered only when such are unseasonable, and provided that job records indicate that such weather was sufficient to cause serious obstacle prosecution of the work. (Emphasis added) Section 8-8.3 of the Standard Specifications provides, in part, that: A contractor may be declared delinquent because of unsatisfactory progress on a contract with the Department, when the contract time allowed has not been entirely consumed, but the Contractor's progress at any check period does not meet at least one of the following two tests: The percentage of dollar value of completed work with respect to the total amount of the contract is within ten percentage points of the percentage of contract time elapsed. The percentage of dollar value of completed work is within ten percentage points of the dollar value which would have been performed according to the contractor's own progress schedule previously approved by the Engineer. . A contractor will be declared delinquent because of unsatisfactory progress on a contract with the Department, under the following circumstances: The contract time allowed has been consumed and the work has not been completed. The contract time allowed has not been entirely consumed, but the contractor's progress at any check period does not meet either of the two tests described under the paragraphs headed (a) above. As previously indicated, and as stipulated by both Petitioner and DOT, both the contract for the 3401 job and for the 3407 job were what is known in the industry as "calendar day contracts," as opposed to "work day contracts.' The first chargeable day under the contract under consideration in this proceeding was June 22, 1977. Petitioner's records show that the first day on which it had employees on the job site was July 11, 1977. During the course of construction on the 3401 job, Petitioner was granted time extensions which increased the number of allowable days under the contract form the original 900 to 974. In addition the original contract amount of $5,884,703.32 was increased to $6,191,921.43. As previously indicated, the first chargeable day under the contract for the 3401 job was June 11, 1977, and Petitioner's first day on the job site was July 11, 1977. During August, 1977, Petitioner began excavation on the main channel in the lake area, which area was to serve as the source for materials to be used of embankment on the 3401 and 3407 jobs. Placement of embankment material on the 3401 job began on November 28, 1977, Petitioner was approximately 3 percent ahead of schedule on the 3401 project. However, by September 2, 1979, Petitioner was 20.51 percent behind his progress schedule and 31 percent behind due to lapse of contract time, both of which parameters exceeded the 20 percent range allowed under the contract. Factoring in time extensions and additions to the original contract amount approved by the supplemental agreements dated November 25, 1979, Petitioner had completed approximately 55 percent of the work, although almost 89 percent of the contract time had elapsed, which placed Petitioner in default under the contract terms. A preliminary Notice of Delinquency due to unsatisfactory progress on the 3401 job was sent by certified mail dated November 8, 1979, to Petitioner from DOT's representative. In response to this preliminary Notice, by letter dated November 21, 1979, Petitioner requested a 345 calendar day extension to the 3401 contract, asserting as reasons therefor, unsuitable embankment material and unusual amounts of rainfall on the job site. A final Notice of Delinquency due to unsatisfactory progress on the 3401 job was sent by certified mail to Petitioner on November 30, 1979. Petitioner timely requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, on these matters contained in the final Notice of Delinquency. Petitioner's request was sent by certified mail to the Secretary of DOT on December 6, 1979. Both Petitioner and DOT have stipulated that the calendar days allowed under the terms of the 3401 contract and previously authorized extensions, expired prior to completion of the work. It is abundantly clear from the record in this proceeding that one of the major contributing factors to Petitioner's exceeding the number of allowable contract days was difficulties encountered in the handling of embankment material due to the presence of the mineral montmorillonite. That mineral's high affinity for attracting and binding water made it extremely difficult to stabilize the subgrade of the roadway in order to meet DOT's compaction requirements. Petitioner's continuing efforts to sufficiently dry this material for use in the embankment did, in fact, cause some delays in completion of the work. This record does not establish, however, that this eventuality is something that could not have been reasonably anticipated by Petitioner, or that the presence of montmorillonite in the embankment material was the only cause of Petitioner's failure to timely complete work on the 3401 job. In fact, the above described contract provisions clearly warned Petitioner of the very problems that it eventually encountered with the use of this embankment material--that is that the material was ". . . likely to retain excess moisture and may be difficult to dry." In fact, Petitioner's own expert witnesses, who were qualified to testify as experts in the areas of soil dynamics, soil analysis and engineering, geology, minerology and soil stabilization as it relates to highway construction, each testified that the inclusion of the above quoted language on the soil notes were sufficient notice to trigger further inquiry into the potential presence of "troublesome soils." In addition, it further appears from the record in this proceeding that construction methods utilized by Petitioner on both the 3401 and 3407 jobs were not optimum for proper handling for the type of minerals found in the embankment material. For example, Petitioner placed these embankment materials on the subgrade in layers so thick that proper aeration was not facilitated in order to properly dry the material. In addition, petitioner attempted to compact the already wet material with heavy equipment, further exacerbating difficulties encountered with excess moisture content. Furthermore, problems were caused by petitioner's failure to construct the embankment in a manner which would have prevented "ponding" of rainfall on the subgrade surface. Naturally, by allowing "ponding" of rainfall on the embankment, the problems encountered with the embankment materials' high moisture retention were further aggravated. Although Petitioner has asserted in this proceeding that it is entitled to time extensions due to unusually heavy rainfall in the area during tie course of construction on the 3401 job, the record in this proceeding is insufficient to conclude that "unseasonable" amounts of rainfall in fact occurred, or that weather conditions were in any way ". . . sufficient to cause serious obstacle to prosecution of the work." Petitioner did submit daily precipitation data compiled for various stations in the State of Florida, including Naples and Punta Gorda, for the period from June, 1977 through August, 1979. Other than this data, the only other evidence of record in this proceeding concerning rainfall amounts are the uncorroborated hearsay assertions of Petitioner's accountant that ". . . [n]ormal rainfall in the he area is somewhere around 52 inches," and that rainfall for the first calendar year of the contract was 8.73 inches "over normal." There is, in fact, no competent evidence in this record from which a determination can be made as to the average annual rainfall in the area of the project, or the amount, if any, by which actual rainfall in the first year of the contract exceeded the annual average. Although the Petitioner submitted data on rainfall experienced at two stations located five and twenty miles distant from the job site for the period June, 1977, through August, 1979, this date is both insufficient to allow a determination that rainfall, in fact, so contributed to delay in the prosecution of the work as to merit an extension of contract time. Finally, it appears from the record in this Proceeding that substantial amounts of contract time were lost by petitioner due to delays in obtaining and placing lime rock on the job site, end by attempting to conduct work on the 3401 job and the 3407 job as one contract, despite the fact that these jobs were the subject of separate bids, separate contracts and differing time requirements. Counsel for both Petitioner and DOT have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact have not been adopted in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
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.
Findings Of Fact Kyle Brothers Land Company, Inc. filed its application with the Department of Environmental Regulation to excavate four canals and to unplug two canals which they had already dug within its development in Port Pine Heights located on Big Pine Key, Monroe County, Florida. The application of Kyle Brothers Land Company, Inc. was introduced as Composite Exhibit No. 1 and a plat of the proposed development was introduced as Exhibit 9. The proposed activity would be constructed on Class 3 waters as defined in Chapter 17-3, F.A.C. Test data submitted shows that the water quality of the water in the existing canals meets or exceeds the standards established in Section 17-3.09, F.A.C. The proposed canals, as well as the existing canals, are being developed as residential home sites. Two potential threats exist to the maintenance of water quality standards within the canals. The first threat is the short-term effect of increased turbidity of the waters due to the construction of the proposed activity. The second threat is the long-term effect of the increased pollution of the waters resulting from waste disposal through proposed septic tank systems to be used in the residential home sites adjoining the proposed and existing canals. The permit application appraisal, Exhibit 2, indicates that the short- term effects of increased turbidity could be controlled by the use of plugs, screens, and daily testing for turbidity and dissolved oxygen. The evidence further shows a variance in the depth of the existing canals and the two plugged canals. The two plugged canals and several of the existing canals have a depth greater than the central canal. The variance in depth permits the accumulation of debris and silt in the finger canals which under certain conditions could be stirred up and become suspended in the waters of the canals increasing the turbidity of the canals and violating the water quality standards. To prevent this from occurring these canals would have to be filled to bring them to the depth of the central canal. The long-term threat to water quality in the canals is the introduction into the canals of nutrients and chemicals attributable to surface water runoff and the proposed septic tank systems to be utilized on the residential home sites. Control of surface water runoff can be obtained by backs loping the uplands away from the canals. The control of nutrient loading associated with the septic tank systems is more complex. The Declaration of Restrictions for Port Pine Heights, Exhibit 7, recites that sewage disposal shall be by septic tank or central disposal plant. However, the plans submitted by the Applicant do not indicate any provision for establishment of a central disposal plant. Further, under the provisions of the deed restrictions there is no requirement that a resident of Port Pine Heights use a central disposal plant even if such a system were available. The current residents of Port Pine Heights currently use septic tank waste disposal systems; however, the number of current residents is substantially less than the number of residents that Port Pine Heights is designed to accommodate. The disposal of sewage by septic tanks will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area. To maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal. Because of the substantial difference in the level of development existing in Port Pine Heights currently and the potential level of development, the test data and the projections based upon that data do not give reasonable assurances that the increased pollutions attributable to the use of septic tanks would not violate water-quality standards.
Recommendation Until the Applicant makes a reasonable, affirmative showing that the long- term effect of the activity will not violate the water-quality standards, the application should be denied. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION KYLE BROTHERS LAND COMPANY, INC. Petitioner, vs. CASE NO. 76-607 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact The proposed transmission line corridor is for the purpose of locating two 500 kV transmission lines scheduled to be placed in service in 1985. These lines will be part of a transmission expansion plan to provide a 500 kV transmission network along the Florida east coast from Georgia to southeast Florida. This transmission network will allow the import of coal-generated electricity from the Southern Company in Georgia and transfers of coal-generated electricity from future generating facilities located in Duval County and Putnam County. This transmission corridor is referred to as the Duval-Poinsett Transmission Corridor. The northern terminus of the corridor is to be located in Duval County and the southern terminus of the corridor is to be located in Orange County. The length of the corridor is approximately 175 miles. Within the corridor there will be placed a 330 foot wide right-of-way for two 500 kV transmission lines constructed upon tubular steel H-frame structures with an approximate span between structures of 1,320 feet. Although the width of the right-of-way would normally not exceed 330 feet, that width could extend to 380 feet where angle structures in the line are required. Similarly, in some places the right-of-way may be narrower than 330 feet. Pursuant to the requirements of Section 403.537, Florida Statutes (1981), the Florida Public Service Commission, by order dated June 29, 1981, concluded that: The two proposed Duval-Poinsett 500 kV transmission lines will enhance electric system reliability and integrity. The two proposed Duval-Poinsett 500 kV transmission lines will improve the availability of low-cost electric energy within the State of Florida. The Duval Substation and the Poinsett Substation are appropriate starting and ending points for the proposed line. The Public Service Commission then determined that the proposed transmission line is needed. Notice of the final certification hearing as scheduled for November 23, 1981, was published in the Florida Administrative Weekly, Volume 7, No. 42, October 16, 1981; The Daytona Beach Morning Journal, on September 24, 1981; The Florida Times Union, on September 23, 1981; The Sentinel Star, on September 23, 1981; and The Palatka Daily News, on September 24, 1981. Pursuant to motion, the final hearing as scheduled for November 23, 1981, was subsequently continued to January 11, 1982. Pursuant to that continuance, notice of the final certification hearing as continued was published in the Florida Administrative Weekly, Volume 7, No. 51, December 18, 1981; The Daytona Beach Sunday News Journal, on November 22, 1981; The Florida Times Union, on November 21, 1981; The Palatka Daily News, on November 20, 1981; and The Sentinel Star, on November 12, 1981. All parties to this proceeding had actual notice of the proceeding. For the purposes of this Recommended Order the corridor for which FP&L seeks certification will be broken into six segments as follows: the Duval-to- Rice Segment; the Palatka Area Segment (Rice Substation to Putnam-Flagler County line); the Flagler County Segment; the Volusia County Segment; the Seminole County Segment; and the Orange County Segment. In addition, a corridor segment from Interstate IV in Volusia County, south through Brevard County, and west to the Poinsett Substation in Orange County, was proposed by certain parties in this proceeding and will be referred to herein as the "Geneva Alternate Corridor." The corridor as proposed is approximately one mile wide except that, in some places, the applicant has proposed, in agreement with certain parties, that the width be less than one mile. During the progress of this proceeding, both prior to and during final hearing, in the process of litigating the disputes between the parties, certain changes to the location of the corridor as set forth in the application have been proposed by parties and accepted by the applicant. Thus, the alignment of the corridor now specifically sought by the applicant differs from that originally proposed in the application. The corridor as now proposed and recommended by the applicant is set forth in Composite Attachments II and III to this Recommended Order. The six segments listed above and depicted by Composite Attachments II and III are generally described as follows: Duval to Rice Segment - that part of the corridor as proposed from the Duval Substation through Duval, Clay and Putnam Counties to the Rice Substation. Palatka Area Segment - a corridor proceeding southwest from the Rice Substation, in a southerly direction to the west of the City of Palatka and in an easterly direction south of Palatka, to the Flagler County line. Flagler County Segment - that part of the proposed corridor alignment through the central portion of Flagler County. Volusia County Segment - that part of the proposed corridor through the central region of Volusia County crossing the Volusia-Seminole County line west of Lake Ashby. Seminole County Segment - that part of the proposed corridor through the eastern region of Seminole County. Orange County Segment - that part of the proposed corridor through the eastern region of Orange County to the termination at the Poinsett Substation. There are no unique physical features within the proposed corridor that would reasonably preclude from an engineering point of view the location of a transmission line right-of-way and the construction of two 500 kV transmission lines with associated access/maintenance roads. Placement of two 500 kV transmission lines within the corridor as proposed does not conflict with any local government comprehensive plan. A right of way can be located within the corridor as proposed without the displacement of any existing home. However, the possibility does exist that homes or other structures could be built after the final certification hearing in this cause in such a manner as to necessarily subject it to displacement in the location of a right of way. Similarly, it is possible that negotiations with property owners pertinent to the ultimate location of the right of way could result in the removal of a home for economic, environmental or other land use reasons. Taken as a whole, the impact of the proposed corridor on property values adjacent to or in the vicinity of the right-of-way will be minimal. Where the highest and best use of land is agriculture, there will be almost no impact on property values because almost none of the land will be withdrawn from its agricultural use. For land whose highest and best use is timber production, the right-of-way with its transmission lines will not Significantly interfere with such production and can serve as a firebreak and all-weather access. Thus, it is possible that the value of the entire timber tract which becomes subject to a transmission line right-of-way would not be significantly diminished. Semi-rural lands with development potential which have not been subdivided will be very slightly impacted with regard to land value because the development of property within an existing right-of-way can take into account such a right-of- way and significantly negate its impact on land value. There will be an impact on the land value of suburban homesites one to ten acres in size. This impact would typically be minimal except in a situation where the remaining property in a parcel after placement of the right-of-way is no longer suited for a homesite. It is reasonable to assume that in placing a transmission line right-of-way 175 miles in length, it would not be reasonably possible to avoid all such suburban homesites. The corridor as proposed in this proceeding successfully keeps such contact with suburban homesites to a minimum. The most significant diminution in property values from placement of a transmission line right-of-way occurs in high-valued urban areas. No such areas are included within the corridor as proposed. A 500 kV transmission line is an extra high voltage line. The highest electrical field strength on the right-of-way of the proposed 500 kV transmission lines measured one meter above the ground will be approximately ten kilovolts per meter and the field strength will diminish with distance from the line. The maximum magnetic field associated with the proposed transmission line under normal loading conditions will be approximately 0.4 gauss. Under emergency loading conditions, the maximum magnetic-field could be as high as 0.8 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. The minimum clearance of the conductors will be 35 feet and in all cases will conform to the criteria contained in the applicable National Electric Safety Code. These criteria reasonably eliminate the possibility of harmful shocks resulting from electric field induction. If perceptible electric shocks are encountered, they can be eliminated by grounding the object offering the shocks. During fair weather, the audible noise at the edge of the right-of-way produced by the transmission lines will be at or less than ambient levels. The maximum foul weather ambient noise level in Florida is approximately 52dB(A), and the average level of foul weather ambient noise is approximately 42dB(A). Under foul weather conditions the maximum audible noise level produced by the proposed transmission lines at the edge of the right-of-way will be approximately 50.6dB(A) and the average audible noise will be approximately 47dB(A). This is a low noise level. This noise level will diminish with distance from the line. During worst foul weather conditions, the audible noise of the proposed transmission linens might be by someone within a home at the immediate edge of the right-of-way with the windows open. With the windows closed, the attenuation through the structure should be sufficient to reduce the audible noise level of the transmission lines below that of the ambient level within the home. In fair weather, inside a home at the immediate edge of the right-of-way the transmission lines will not be audible, even with the windows open. No electromagnetic interference from the proposed transmission lines will occur for FM radio and two-way communication facilities using frequency modulated inter-communication systems. Under fair weather conditions, there should be little or no interference with Type A stations (as defined by the Federal Communications Commission) at the edge of the right-of-way. Under foul weather conditions, a receiver more than 150 feet from the edge of the right-of- way receiving a Type A station will not experience interference from the proposed transmission lines. However, within 150 feet from the edge of the right-of-way, such a station could experience interference from the proposed transmission lines. Under fair weather conditions, there should be no interference of the Type B stations as defined by the Federal Communications Commission, at receivers more than fifty feet from the edge of the right-of-way. Under foul weather conditions, a Type B station could potentially receive interference from the proposed transmission lines up to 650 feet from the edge of the right-of-way. There should be no significant electromagnetic interference with the audio portion of television signals from the proposed transmission lines. No interference is expected beyond the edge of the right-of-way to the video portion of the signals for Grade A television stations as defined by the Federal Communications Commission. There is a potential for interference with minimum Grade B stations during the worst foul weather conditions out to distances of 200 to 400 feet from the edge of the right-of-way in Channels 2 through 6. Otherwise, it is not expected that any electromagnetic interference with the video portion of the signals for Grade B stations in Channels 7 through 53 would occur outside the right-of-way. The transmission lines will not create electromagnetic interference with radio communications or radio navigation systems required in the operation of the Daytona Beach Regional Airport. No harmful radio interference is expected from the proposed transmission lines at the Volusia County Civil Defense Communication Center. Physical shielding of the transmission lines could potentially shield out the radio signals from the station, but it is extremely unlikely that such interference would occur. With the exception of those stations located immediately adjacent to or underneath the transmission lines, there should be no impact on Citizen's Band radios. The range of the Southern Bald Eagle, which is on the Federal Endangered Species List and the State Threatened Species List, extends throughout the area of the proposed corridor. A reasonable guideline is that development should not occur within 1500 feet of an active eagle's nest after a site specific determination has been made that the proposed development will not impact the nesting eagle. Only one Southern Bald Eagle's nest has been identified within the proposed corridor. It is on the extreme northern boundary of the corridor south of Palatka. Considering the location of that nest, there is sufficient flexibility within the proposed corridor to place the actual transmission lines at least 1500 feet from the nest. There are two other endangered or threatened species to which special attention should be paid with regard to the construction of a transmission line and associated facilities. These are the Red Cockaded Woodpecker and the Scrub Jay. The range of the Red Cockaded Woodpecker extends throughout the proposed corridor. No known locations of Red Cockaded Woodpeckers occur within the proposed corridor. Such woodpeckers are likely to occur where there are mature pine trees over 45 years of age. Such trees may occur within the proposed corridor. Red Cockaded Woodpeckers excavate cavities within such trees wherein which they nest. A colony is a grouping of such cavity trees occupied by a single clan of of Red cockaded Woodpeckers. Colony areas typically range from 5 to 30 acres and are generally round or oval in configuration. To avoid any negative effects upon a Red Cockaded Woodpecker clan, the transmission line should go around the colony. A site-specific evaluation could indicate that less stringent mitigative measures would be satisfactory to avoid adverse impact on a particular woodpecker clan. The range of the Florida Scrub Jay encompasses several areas within the proposed corridor. The Scrub Jay is typically found in scrub oak, myrtle oak, and live oak less than 25 feet tall. Construction and maintenance of the proposed transmission lines will not significantly affect the Florida Scrub Jay nor the Scrub Jay habitat, because substantially less than all the scrub jay habitat located within the corridor will ultimately be cleared within the proposed right-of-way. Existing low-growing vegetational species will be allowed to remain on the right-of-way to a significant degree with the exception of the access/maintenance road area and a small working area around the structures. It is possible that the construction of the proposed transmission lines with their associated access/maintenance roads could result in violations of water quality standards. The evidence indicates that such violations do not normally occur however. In order to mitigate the possibility of such a violation, the applicant has proposed as a condition of certification to which condition the Department of Environmental Regulation has agreed, that prior to construction in any area over which DER has dredge and fill jurisdiction as defined in Chapter 17-4, Florida Administrative Code, the applicant will submit detailed site specific information to DER as required in the Dredge/Fill Joint Application, Department of Army/Florida Department of Environmental Regulation for Activities in Waters of the State. The provision of this information is sufficient to allow the identification of potential water quality violations before such violations actually occur and to thus avoid any actual water quality violations. Because of the nature of the construction of transmission lines of the type proposed in this application and because of the mitigative measures proposed by the applicant, no significant adverse impact on wetlands crossed by the proposed transmission lines is expected. The removal of vegetative canopy over a wetland which can result in a possible increase in a solar impact on the organisms living within the wetland will be Substantially mitigated because all brush and vegetation less than fifteen feet tall will be allowed to remain except for fast-growing species which will be cut if over five feet tall. Root mats will be left intact in wetland areas thus avoiding possible damage to trees. The impoundment or draining of water in a wetland can occur if the access/maintenance roads are not properly constructed and culverted. As proposed in this application, the placement of access/maintenance roads in wetland areas will be constructed so as not to significantly affect the surface regime of the wetlands within the proposed corridor. There will be no significant adverse impact to aquifer recharge capabilities resulting from the construction of the proposed transmission lines. With the exception of the Palatka Area Segment, the Department of Environmental Regulation has stipulated and agreed that the corridor as presently proposed meets the requirements for certification set forth in Chapter 403, Florida Statutes (1981). Residential development in the Duval-Rice Segment can be essentially avoided. That segment has no unique agricultural land nor any known archaeological sites. In the southern portion of the Duval-to-Rice Segment is the Etonia Creek Wildlife Sanctuary, a privately owned property designated a sanctuary by the Florida Game and Fresh Water Fish Commission. There is adequate land within the proposed corridor for the placement of a right-of-way outside the boundaries of the sanctuary. There are no major water bodies located within the Duval-to-Rice Segment. The Falling Branch Ravine area can be avoided in the placement of the right-of-way. The Palatka Area Segment is opposed by the Department of Environmental Regulation and the City of Palatka. Putnam County argues in favor of the Palatka Area Segment as proposed. That segment as proposed would place the right-of-way for the transmission lines through a stretch of the St. Johns River Swamp. This is a riverine hardwood swamp of environmental value. There has been no showing that this particular riverine hardwood swamp is of any more significant value than any other similar swamp or wetland area traversed by other segments of the proposed corridor. The Palatka Area Segment of the corridor as proposed by the applicant would require a river crossing of the St. Johns approximately one-half mile wide entailing two tower locations in the water. There are two known archaeological sites in this segment of the proposed corridor which are avoidable by the right-of way. Timbering activities are currently occurring in the riverine hardwood swamp south of the City of Palatka in the vicinity of the proposed corridor. A 330 foot right-of-way within the proposed corridor south of the City of Palatka would encompass approximately 120 to 125 acres of the riverine hardwood swamp. That is less than three percent of the total riverine hardwood swamp in that location. Actually less than 100 to 125 acres of the swamp will be directly impacted by the construction of a proposed transmission line because all of the right-of-way will not be cleared in the construction of a transmission line. No evidence was presented which would establish the significance of the impact on the St. Johns River or the St. Johns River Swamp of the construction of the proposed transmission lines and a right-of-way through the proposed corridor. The City of Palatka proposes to site a sewage treatment plant within the proposed corridor outside of the Palatka city limits. This plant would require approximately ten to twenty acres. Necessary federal and state approval has not been received by the City. No evidence was presented from which it could be concluded that the proposed transmission lines would interfere in any manner with the plans of the City of Palatka for the siting of its sewage treatment plant. The Palatka Area Segment as proposed would have little impact on existing residential areas and would not require the displacement of any homes. The Department of Environmental Regulation has argued in favor of an alternative to the Palatka Area Segment as proposed which would entail a river crossing of the St. Johns north of the City of Palatka rather than south of the City. This alternative segment proposed by the Department of Environmental Regulation as an alternative would transit riverine hardwood swamp and parallel the drainage of Rice Creek. It would require a crossing of the St. Johns River one and one-half miles wide and potentially require as many as fourteen tower locations in the river proper. It would require the displacement of at least one home on the east bank of the St. Johns River and would result in the surrounding of several existing homes with transmission lines. The alternate segment as proposed by DER contains unique farmland to the east of the St. Johns River. There is one known archaeological site in the alternate segment proposed by DER. The alternate proposed by DER is approximately 6.15 miles shorter than the Palatka Area Segment proposed by the applicant and the cost of placing the proposed transmission lines within a right-of-way in the corridor proposed by DER is approximately 2.24 million dollars less than in the Palatka Area Segment proposed by the applicant. No party to this proceeding presented any evidence for the purpose of showing that the Flagler County Segment was not suitable for certification in accordance with Chapter 403, Florida Statutes (1981). One party to this proceeding, The Container Corporation, chose not to address the factual issues in this proceeding, but did object to the adequacy of notice as to the corridor segment that crossed its property in Flagler County. The Flagler County Segment crosses the Haw Creek drainage at the narrowest point possible. One of the large wetland areas traversed by the Flagler County Segment has already been subjected to significant drainage practices north of State Road 205 and the transmission lines would not be expected to significantly accelerate that impact. The Flagler County Segment contains two cemeteries which can be avoided in the placement of the right-of-way. There are three unavoidable water crossings in the Flagler County Segment and approximately ten miles of abandoned railroad-bed which, if paralleled, could provide access to the proposed transmission lines. The Flagler County Segment traverses a relatively small amount of planted land and contains fewer homes than any proposed alternative. The Department of Environmental Regulation, the Department of Veteran and Community Affairs, the Department of Natural Resources, and the Florida Game and Fresh Water Fish Commission have recommended certification of the Flagler County Segment as proposed by the applicant. The Volusia County Segment of the corridor is opposed by the Geneva Citizen's Association, the owners of Seminole County, Inc. and Seminole County, which parties support an alternate corridor proceeding from I-4 in Volusia County south through Brevard County and west to the Poinsett Substation in Orange County. The Volusia County Segment contains fewer wetland acres than any of the other possible corridors discussed herein. Further, those wetlands are dominated by cypress wetlands rather than hardwood swamp wetlands which would dominate in other possible corridors. The Volusia County Segment closely follows ridgelines thus facilitating a right-of-way with a minimum of wetland crossings. The segment contains more planted pines than the other possible alternatives discussed. Planted pines are not a particularly productive wildlife habitat. There is essentially no development in the Volusia County Segment of the proposed corridor. There is a field of unique agriculture land in the Volusia County Segment which would not be spanable by the transmission line. The Volusia County Segment intrudes upon the Volusia Water Recharge Area, which is an environmentally endangered land, by about one-third of a mile. No evidence was presented to show that the placement of a transmission line right- of-way and the construction of a transmission line as proposed would have any impact upon such a recharge area. There is one unavoidable stream crossing in the Volusia County Segment. The Seminole County Segment is opposed by Seminole County, Geneva Citizen's Association, and the Owners of Seminole County, Inc., in the same manner as they opposed the Volusia County Segment. There are no known archaeological sites within the Seminole County Segment of the proposed corridor, nor are there any unique agricultural lands within the Seminole County Segment. There is existing development in the Seminole County Segment in the area east of the community of Geneva in Seminole County. It is possible to place a 330 foot right-of-way through the Seminole County Segment of the proposed corridor without displacing any homes. Properties in the Geneva area of Seminole County which are suitable for sale as five-acre tracts are worth approximately $6,000 per acre. No evidence was presented from which it could be found as a matter of fact that any change in the value of those properties would occur from the construction of the proposed transmission lines. Geneva is a small rural community. In 1980 the census figures for the Geneva-Chuluota area exceeded 3,800. The Seminole County Segment of the proposed corridor encompasses only a small part of that area for which the 1980 population census exceeded 3,800. The population density for the area is very light. Although part of the area within the Seminole County Segment is a recharge area for the aquifer, no evidence has been presented from which it could be found that construction of a transmission line will negatively impact such a recharge area. The predominant zoning category of Seminole County within the Seminole County Segment of the proposed corridor is A-1 Agricultural. There are no unique agricultural lands within the Orange County Segment of the proposed corridor. The segment does contain wetland areas, but not in significantly greater or lesser amounts than in any other corridor that might be chosen. The Orange County Segment as proposed encompasses minimal development and has fewer stream crossings than any alternative considered in this proceeding. The Department of Environmental Regulation, the Department of Veteran and Community Affairs, the Department of Natural Resources, the Florida Game and Fresh Water Fish Commission, the St. Johns River Water Management District and Orange County have stipulated and recommended that the Orange County Segment of the proposed corridor meets the requirements for certification pursuant to Chapter 403, Florida Statutes (1981). There was raised in this proceeding another alternate segment referred to as the Geneva Alternate Segment which begins in Volusia County south of Interstate 4 proceeding to the east of Lake Ashby, south through Brevard County, and then west to the Poinsett Substation in Orange County. Proponents of this alternate segment are the Geneva Citizen's Association, the Owners of Seminole County, Inc., and Seminole County. One of the primary purposes of this alternate was to avoid placing the corridor in the Geneva Area in Seminole County. The applicant has not adopted this alternate as part of its request for certification of a corridor. The Department of Environmental Regulation, the Florida Game and Fresh Water Fish Commission, the St. Johns River Water Management District, and Brevard County oppose the Geneva Alternate Segment. The Geneva Alternate Segment does not have as much residential development as the Volusia County Segment, Seminole County Segment and Orange County Segment combined. The Geneva Alternate Segment traverses approximately one and one-half miles of the St. Johns National Wildlife Refuge and approximately one and one-half miles of the Tosohatchee State Preserve and approximately ten to twelve miles of the Farmton Wildlife Management Area. The construction of a transmission line is not consonant with the purposes of a national wildlife refuge or a state preserve. Construction of a transmission line is not necessarily inconsistent with the purposes of a wildlife management area. There are sixteen unavoidable water crossings in the Geneva Alternate Segment. There are eight unavoidable water crossings in the corridor as proposed by the applicant for which the Geneva Alternate Segment is a replacement. There are approximately seventeen miles of unavoidable wetlands in the Geneva Alternate with eleven to twelve miles of these being continuous. In the corridor proposed by the applicant south of Interstate 4, there are approximately one and one-half miles of unavoidable wetlands which are numerous and scattered. The corridor south of Interstate 4 as proposed by the applicant is approximately 2.96 miles shorter than the Geneva Alternate Segment. It will cost approximately 4.7 million dollars less to construct the proposed transmission lines within the corridor south of Interstate 4 as proposed by the applicant than it would cost to construct the same lines in the Geneva Alternate. The Geneva Alternate Segment parallels exfsting transmission lines for all but approximately eight miles of its length. The applicant notified all counties and municipalities through which the proposed corridor passes that a variance or special exception from local ordinances which would be applicable to location, construction and maintenance activities within the right-of-way would be sought in this proceeding pursuant to Rule 17-17.64(2)(e), Florida Administrative Code. The applicant and the Department of Environmental Regulation jointly propose certain conditions of certification which are attached hereto as Attachment I. Except as otherwise noted in the Findings of Fact herein, the testimony and evidence in this cause establishes that the proposed transmission lines, if constructed along a right-of-way in the corridor as finally proposed by the applicant and depicted in Attachments II and III hereto, pursuant to the Conditions of Certification proposed jointly by the applicant and DER, would have no significant adverse effect on the environment, public health, safety or welfare. In general, neither would the Geneva Alternate Segment, as proposed, have any significant adverse effect on the environment, public health, safety or welfare with certain exceptions. By traversing the St. Johns National Wildlife Refuge and the Tosohatchee State Preserve, the Geneva Alternate Segment creates a conflict with environmental land use not found in the corridor as proposed by the applicant.
Recommendation Having considered all matters of fact and law presented in this proceeding and being otherwise fully apprised, and based upon the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That certification, pursuant to the Transmission Line Siting Act, Chapter 403, Florida Statutes (1981), be GRANTED to the Florida Power and Light Company for the location of the transmission line corridor, the construction of the transmission lines, and the maintenance of the transmission lines and right- of-way as proposed in the application and specifically delineated in Attachment III hereto. That such certification be made subject to the Conditions of Certification attached hereto as Attachment I and that, pursuant to the requirements of Section 403.531(3), Florida Statutes (1981), that Florida Power and Light Company shall be required to seek any necessary interests in State lands, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund, from the Board, prior to engaging in any activity on or affecting such lands. ENTERED this 31st day of August, 1982, in Tallahassee, Florida. CHRIS H. BENTLEY, Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1982. COPIES FURNISHED: Carlos Alvarez and Carolyn S. Raepple, Esquires 420 Lewis State Bank Building Post Office Box 6526 Tallahassee, Florida 32301 Ronald E. Clark, Esquire Putnam County Attorney Post Office Drawer V Palatka, Florida 32077 Tom Cloud and Kaye Collie, Esquires Orange County Legal Department 201 East Pine Street Orlando, Florida 32801 George Kenneth Gilleland, II Game and Fresh Water Fish Commission First Floor - Farris Bryant Bullding 620 South Meridian Street Tallahassee, Florida 32301 Louis Hubener and John C. Bottcher, Esquires Department of Environmental Regulation 638 Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Dawson Alexander McQuaig, Sr., General Counsel City of Jacksonville, City Hall - 13th Floor Jacksonville, Florida 32201 Paul Sexton, Esquire Public Service Commission Legal Department Fletcher Building 101 East Gaines Street Tallahassee, Florida 32301 Warren O. Tiller and Daniel Vaughen, Esquires Volusia County Legal Department Post Office Box 429 DeLand, Florida 32720 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services 531 Mayo Building Tallahassee, Florida 32301 Nikki Clayton, Esquire Seminole County Legal Department Seminole County Courthouse North Park Avenue Sanford, Florida 32771 Toby P. Brigham, Esquire Brigham Reynolds Byrne Muir and Gaylord The Reinhold Corporation 203 Southwest 13th Street Miami, Florida 33130 Frank Bird Gummey, III and Reginald E. Moore, Esquires City of Daytona Beach Post Office Box 551 Daytona Beach, Florida 32015 Laurence Keesey, Esquire Department of Veteran and Community Affairs 2nd Floor - Howard Building 2571 Executive Center Circle East Tallahassee, Florida 32301 Hubert D. Pellicer, Administrative Assistant to Flagler County Commissioners Post Office Box 936 Bunnell, Florida 32310 Eugene Frazier Shaw, Esquire Clay County Attorney Post Office Box 838 Green Cove Springs, Florida 32043 Ernest Lee Worsham, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32077 John W. Williams, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Room 1003C Tallahassee, Florida 32301 Noah C. McKinnon, Jr., Esquire Flagler County Attorney Post Office Drawer 9670 Daytona Beach, Florida 32020 William A. Leffler, III, Esquire Cypress Isles Homeowners Post Office Box 2298 Sanford, Florida 32771 Abbot M. Herring and Thomas Speer, Esquires Geneva Citizens Associations and Owners of Seminole County, Inc. 201 West First Street Sanford, Florida 32771 Roger A. Kelly Fishback Davis Dominick and Bennet 170 East Washington Street Orlando, Florida 32801 (Attorneys for Hogan and Thompson) Robert M. Rhodes, Terry E. Lewis and James C. Hauser, Esquires Messer Rhodes and Vickers 701 Lewis State Bank Building Post Office Box 1876 Tallahassee, Florida 32302 (Attorneys for Dimension Investment Corp) Frederick W. Leonhardt, Esquire 100 Seabreeze Boulevard-Suite 130 Post Office Box 2134 Daytona Beach, Florida 32015 (Attorney for Sun Country, Rima Ridge, Lone Pine and George Anderson, et al.) Florence T. Robbins, Esquire Greenberg Traurig Askew Hoffman Lipoff Quentel and Wolff, P.A. Brickell Concourse 1401 Brickell Avenue Miami, Florida 33131 (Attorney for Mario Gluck, Trustee)
The Issue This proceeding was conducted under the Florida Electrical Transmission Line Siting Act (TLSA), Sections 403.52 through 403.5365, Florida Statutes (2007)1, to determine whether any of the proposed transmission line corridors for the Bobwhite- Manatee 230-kV transmission line (BWM Line) comply with the criteria in Section 403.529(4), Florida Statutes, and, if more than one corridor complies with the criteria, to determine which corridor has the least adverse impact regarding the criteria, including costs. If any of the “corridors proper for certification,” as that term is defined in Section 403.522(10), Florida Statutes, is determined to have the least adverse impact, the Siting Board must determine whether the application for the corridor should be approved in whole, with modifications or conditions, or denied. If the alternate corridor proposed by John Falkner (not a corridor proper for certification) is determined by the Siting Board to have the least adverse impact, certification shall be denied.
Findings Of Fact The Parties FPL is the electric utility that is applying for certification of the Bobwhite-Manatee 230kV Transmission Line. DEP is the state agency with powers and duties to administer the TLSA, including the power and duty to process applications for certification and to act as a clearinghouse for agency comments on proposed corridors. Sarasota County and Manatee County are political subdivisions of the State and the local governments with jurisdiction over the areas in which the BWM Line will be located. Schroeder-Manatee Ranch, Inc. (SMR), is a Delaware corporation with its office in Bradenton, Florida. It owns real property in Manatee and Sarasota Counties, and is the developer of residential communities, including Lakewood Ranch. Lake Club Investors, LLC (LCI), is a Florida limited liability company with its office in Winter Park, Florida. It owns property in Manatee County. Gum Slough Preservation Foundation, Inc. (GSPF), is a Florida non-profit corporation with its office in Sarasota, Florida. GSPS was established with the primary objectives to protect and preserve the beauty and ecological values of Gum Slough. Manasota-88, Inc., is a Florida not-for-profit corporation with its office in Nokomis, Florida. Manasota-88 was formed to protect and preserve the water quality and wildlife of Manatee and Sarasota Counties. John Falkner is a resident of Myakka City, Florida, and the owner of real property in Manatee County. Taylor & Fulton, Inc., is a Florida corporation with its office in Palmetto, Florida. It is the owner of real property in Manatee County. Myakka Ranch Holdings, LLC, and FC, LLC, are Florida limited liability companies with separate offices in Bradenton, Florida. They own real property in Sarasota County. The Concession Land Development, LLC, and The Concession Golf Club, LLC, are Florida limited liability companies with their office in Wichita, Kansas. They are the owners and managers, respectively, of The Concession residential development and The Concession Golf Club in Manatee County. Kittie L. Chapman is a resident of Sarasota, Florida, and the owner of real property in Sarasota County. John Cannon Homes-Eastmoor, LLC, is a Florida limited liability company with its office in Sarasota, Florida. It owns real property in Sarasota County. Schwartz Farms, Inc., is a Florida corporation with its office in Sarasota, Florida. It owns real property in Sarasota County. Michael D. and JoAnne Schwartz are residents and real property owners in Sarasota County. Sarasota One, LLC, is a Florida limited liability company with its office in Bowie, Maryland. It owns real property in Sarasota County. Pacific Land, Ltd, is a Florida limited liability company with its office in Palmetto, Florida. It owns real property in Manatee County. East County Homeowners Organization, Inc., is a Florida non-profit corporation with its office in Sarasota, Florida. It was formed to protect the health, safety, and quality of life of the residents of eastern Sarasota County. Hi Hat Ranch, LLP, is a Florida liability limited partnership with its office in Sarasota, Florida. It owns real property in Sarasota County. Michael Hunsader, David Hunsader, and Donald Hunsader own real property in Manatee County. Bridle Creek Home Owners Association, Inc. (BCHOA), is a Florida non-profit corporation with its office in Sarasota, Florida. BCHOA was formed to represent the owners of real property in the Bridle Creek residential community. Manatee County, the Florida Department of Transportation, and the Southwest Florida Water Management District filed timely notices of their intent to be parties. Sarasota County filed a Notice of Appearance and participated as a party without objection. The Need for the Bobwhite-Manatee Line FPL is seeking certification of a transmission line to transmit electricity from the Manatee Energy Center, a generating facility near Parrish in Manatee County, to the proposed Bobwhite transmission substation near Fruitville Road in Sarasota County. The service area for the proposed BWM Line is an area in Manatee County and Sarasota County that is south of the Manatee Energy Center, north of the planned Bobwhite substation, and east of I-75 and the existing 230kV transmission network. The PSC determined that FPL had demonstrated the need for the BWM Line by December 2011 to: provide additional transmission reinforcement to the existing 230kV transmission network between Manatee and Ringling Substations in a reliable manner consistent with the North American Electric Reliability Corporation (NERC), and the Florida Reliability Coordinating Council (FRCC) and other applicable standards; (b) serve the increasing load and customer base in the projected service area; and (c) provide for another electrical feed via a separate right-of-way (“ROW”) path, thereby reducing the impact of a loss of the existing transmission facilities on a common ROW. The PSC recognized, however, that the “Siting Board will make the final determination concerning the exact length and route of the new line.” The Proposed Corridors (Depicted in FPL Exhibit 77B) 1. The FPL Original Corridor Selection Process FPL established a multi-disciplinary team to identify and evaluate routing alternatives. The team comprised a transmission line engineer, a land use planner, and an ecologist. Because FPL wanted geographic separation from the existing transmission lines that are located in a common ROW that is generally parallel to I-75, the western boundary of the team’s study area began a mile east of this existing ROW. The multi-disciplinary team gathered data on siting opportunities and constraints within the study area. The guidelines developed by the team to select route segments included maximizing collocation with existing or proposed roads, following property lines or section lines as much as possible, following disturbed paths through wetlands where practicable, and minimizing siting constraints such as airports, private airstrips, residential development, and the crossing of existing transmission lines. The team ultimately identified 62 route segments which could be assembled into 1,275 alternate routes for the BWM Line. FPL engaged in an extensive public outreach program to gather public input regarding the BWM Line. The public outreach program was integrated with the corridor selection process so that information was shared with the public and feedback from the public was used in evaluating alternate routes. FPL’s multi-disciplinary team evaluated the 1,275 routes quantitatively, using factors such as the number of homes and schools in proximity; the length of wetlands crossed; the length through existing parks, recreation areas or other designated conservation lands; the number of parcels or lots crossed; and estimated costs. The quantitative analysis was used as a screening tool to limit the number of routes that would receive more detailed analysis. The route that received the highest ranking from the quantitative analysis is the same as The Concession Corridor. The FPL Original Corridor follows the route that was ranked eleventh. The routes that correspond with the subsequently-filed Consensus Corridor and Falkner Corridor were not ranked in the initial screening process because they were not among the 1,275 evaluated routes. The Consensus Corridor passes through a conservation area that FPL’s multi-disciplinary team assumed had to be avoided. The Falkner Corridor was not included because it is in FPL’s existing transmission line ROW, which the team also assumed was not an option. The team then evaluated the highest ranked routes, using both quantitative and qualitative criteria. The qualitative criteria included the functional value of wetlands; the orientation of landing strips to the route; plans for new roads, road extensions and road widenings; proposed developments; “buildability” issues; and the need for future distribution substations. From the more detailed analysis, a preferred route was selected by FPL. This corridor, described in FPL’s application for certification, will be referred to as the FPL Original Corridor. The multi-disciplinary team then determined the varying widths of the FPL Original Corridor along its route that were needed to provide flexibility in locating the ROW within the corridor. The Route of the FPL Original Corridor The FPL Original Corridor exits the Manatee Energy Center north of State Road 62 (SR 62) and turns east for approximately one mile. The corridor then turns south along a section line for approximately five miles, in which area the corridor is approximately 3,000 feet wide. The corridor includes a lateral spur along an existing 50-foot-wide farm road, which is included in the corridor for the sole purpose of providing access to the transmission line from County Road 675 (CR 675). The corridor then intersects CR 675 and follows CR 675 to its intersection with SR 64, in which area the corridor is 400 feet wide and centered on the road. At the intersection of SR 64, the corridor turns west and follows SR 64 for approximately three miles to its intersection with Dam Road. There, the corridor turns south and runs along section lines for approximately three miles, beginning with a width of 4,500 feet and narrowing to 3,000 feet, until it reaches University Parkway. At University Parkway, the corridor turns west and runs along the south side of the road to its intersection with Lorraine Road, in which area the corridor is at least 500 feet wide. At Lorraine Road, the corridor turns south along the road and is of varying width as it follows Lorraine Road to Dog Kennel Road and the proposed Bobwhite substation. The Consensus Corridor Selection Process In November 2007, after eight days of hearing, FPL, SMR, and several other parties jointly requested a continuance of the certification hearing because their informal discussions indicated the possibility for agreement on corridor modifications that would resolve a number of disputes. The continuance was granted and the certification hearing was continued until May 2008. In the interim, a number of parties reached agreement on a new corridor which they referred to as the Consensus Corridor. The areas of the Consensus Corridor that differed from the FPL Original Corridor were thoroughly studied and inspected by consultants and experts hired by FPL and SMR. FPL re-initiated its public outreach program to inform the public about the new Consensus Corridor. The Consensus Corridor is now the corridor preferred by FPL. The Route of the Consensus Corridor The Consensus Corridor is identical to the FPL Original Corridor from the Manatee Energy Center to SR 64. However, FPL and Pacific Land, Ltd, entered into an agreement wherein FPL agreed to locate the ROW “as close as reasonably practicable” to Pacific Land’s west property boundary line. The Consensus corridor follows SR 64 a shorter distance west than the FPL Original Corridor before it turns south, avoiding some of the frontage along Lake Manatee State Park. The Consensus Corridor is 500 feet wide as it turns south from SR 64 on property owned by Bradenton Motorsports, Inc., and continues south onto land owned by Taylor & Fulton, Inc. It then makes four 90-degree turns to form a “C” shape, or “notch,” to follow Taylor & Fulton’s eastern property boundary.3 When the Consensus corridor reaches Taylor & Fulton’s southern property boundary, it turns west and rejoins the FPL Original Corridor. Along Taylor & Fulton’s southern boundary, the corridor is located north of a drainage canal, and about 350 feet north of the Bridle Creek subdivision. In addition to this setback from Bridle Creek, Taylor & Fulton has agreed to preserve the existing tree line between them. Turning south from Taylor & Fulton’s property, the Consensus Corridor generally follows the FPL Original Corridor, but the Consensus Corridor is narrower, providing about 200 feet more separation from the residential developments of Panther Ridge and The Concession.4 Along Bourneside Boulevard, the Consensus Corridor is shifted west to align with the eastern edge of the existing road pavement,5 which avoids some wetlands crossed by the FPL Original Corridor and provides a greater setback from The Concession residential development. South of University Parkway, the Consensus Corridor departs substantially from the FPL Original Corridor to avoid the latter’s impacts to SMR’s residential developments. Rather than moving west all the way to Lorraine Road and following Lorraine Road south, the Consensus Corridor turns south almost immediately after reaching University Parkway, and meanders generally southward through the Heritage Ranch Conservation Easement (HRCE). The HRCE is a 1,972-acre tract of land owned by SMR, which is subject to a conservation easement acquired by Sarasota County. The Consensus corridor is 1,000 feet wide as it moves through the HRCE along an irregular line that generally follows existing field roads or fire lanes. The corridor exits the HRCE going west onto SMR-owned land, rejoins the FPL Original Corridor along Lorraine Road, and then runs south to the proposed Bobwhite substation. The Concession Corridor 45. The Concession Corridor (formerly SMR #1) is identical to the FPL Original Corridor from the Manatee Energy Center to SR 64. At the intersection of SR 64 and CR 675, The Concession Corridor continues to follow CR 675 to the intersection with SR 70. The corridor then extends southeast on SR 70 to Verna Road, which the corridor follows south to Verna Road’s intersection with Fruitville Road. The Concession Corridor then follows Fruitville Road west to Dog Kennel Road, then north on Dog Kennel to the proposed site of the Bobwhite substation. From SR 64 to the Bobwhite substation, the corridor is 500 feet wide. The Falkner Corridor The Falkner Corridor stays in existing FPL transmission line ROW all the way from the Manatee Energy Center to the proposed Bobwhite substation. From the Manatee Energy Center, the Falkner Corridor heads west on the FPL ROW for approximately five miles. It then turns south and follows the ROW for approximately twenty miles, where it turns eastward and then southeastward for about five miles, until it reaches the area of the proposed Bobwhite substation. The Falkner Corridor is 400-to-500 feet wide. Land Uses and Significant Natural Features 1. FPL Original Corridor Manatee Energy Center to SR 64 All three of the corridors proper for certification incorporate this segment from the Manatee Energy Center to SR The existing land uses in the area of the corridor are primarily agricultural. The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are Major Public/Semi Public (P/SP-1), Agricultural/Rural (AG-R), and Major Recreation/Open Space (R-OS) The P/SP-1 land use category applies only to the Manatee Energy Center. The AG-R land use category designates areas with long-term agricultural or rural residential character. Potential uses in this category include farms, rural residential, small retail and office commercial, mining, low- intensity recreational facilities, and schools. The maximum gross residential density is one dwelling unit per five acres. The R-OS land use category applies to Lake Manatee State Park, and recognizes these existing recreation and permanent open space land uses. The ecological communities between the Manatee Energy Center and CR 675 include pine flatwoods, mixed oak-pine uplands, freshwater marshes, wet prairies, forested swamps, and small tributaries such as Gamble Creek, Tyre Creek, and Waterhole Creek. The vegetative habitats are dominated by agricultural crops. The tributaries are narrow and have existing road crossings. From CR 675 to SR 64, the FPL Original Corridor follows SR 675. The existing land uses on both sides of the road are primarily agricultural. The corridor crosses the Manatee River system, which includes Boggy Creek and Gilley Creek. There are scattered trees, including some large oak trees along portions of CR 675. SR 64 to University Parkway Lake Manatee State Park is on the north side of SR 64. On the south side are the DeSoto Speedway and Bradenton Motorsports Park, as well as a mix of other uses, including businesses, a nursery, a winery, and some residences. Between SR 64 and University Parkway, the existing land uses are primarily agricultural, except for the Panther Ridge and The Concession residential developments, which are just east of the FPL Original Corridor. The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are AG-R, R-OS (described above), Urban Fringe (UF-3), and Estate Rural (ER). The UF-3 land use category applies to a half-mile strip on the south side of SR 64, west of Dam Road, is for low-density residential use, generally developed through the planned unit development concept, and residential support uses. The ER land use category is for clustered, low-density suburban, residential use with large tracts of open space for agricultural activities, low- intensity recreational use, environmental protection or other compatible open space uses. The maximum gross residential density is one dwelling unit per five acres. The ecological communities in this area include mixed oak-pine uplands, pine flatwoods, shrub and brush land, freshwater marshes, and forested swamps along tributaries of the Manatee River. Along SR 64, the vegetative habitats and waterbodies include scattered shrub and pasture. Lake Manatee State Park contains pine flatwoods and xeric pine communities, except close to SR 64, where a fire break is maintained. The FPL Original Corridor crosses the Braden River which is a Class I water. As the corridor approaches University Parkway, there are scattered uplands, several small marshes, and pasture land. Near The Concession development, there are four herbaceous wetlands along the eastern boundary of the corridor. c. University Parkway to the Proposed Bobwhite Substation The land in this area is largely undeveloped. Within the corridor, the land use is primarily agricultural. However, just north of the FPL Original Corridor is an SMR residential development under construction known as The Lake Club and a large-lot residential community to the west known as The Polo Club. Closer to the Bobwhite substation site, there are large- lot residential developments east of the corridor. University Parkway divides Manatee County and Sarasota County in this area. The small piece of the FPL Original Corridor that is north of University Parkway and in Manatee County is subject to AG-R (described above) and RES-1 future land use categories. RES-1 designates areas of low-density suburban residential environment, clustered low-density urban residential environment, and compatible agricultural facilities. The maximum gross residential density is one dwelling unit per acre. The balance of future land uses in this segment of the FPL Original Corridor is subject to the Sarasota County Comprehensive Plan, and its Rural land use category. The primary function of the Rural category is to preserve agricultural lands and rural character, and residential development is limited to a maximum density of one dwelling unit per five acres. However, if elected by the developers, these lands can be subject to the Sarasota 2050 Resource Management Area (RMA) Supplement to the Future Land Use Element. The Sarasota 2050 Plan creates several types of RMAs, which function as overlays that do not affect existing development rights of the underlying property owners. RMAs encourage the use of clustered development and the preservation of open space and rural character. The FPL Original Corridor crosses three types of RMAs: Greenway, Village/Open Space, and Rural Heritage/Estate. The Greenway RMA designates a network of riverine systems, floodplains, native habitats, storm surge areas and uplands as priority resources. Uses in Greenway RMAs are restricted to uses that are compatible with ecological functions and values. The Village/Open Space RMA provides for compact, mixed-use, pedestrian-friendly villages and hamlets within a system of large areas of permanent open space, designed to prevent urban sprawl. Villages have a maximum density within developed areas of five-to-six dwelling units per acre. The Rural Heritage/Estate RMA is intended to recognize and preserve the existing pattern of very low-density, large-lot estate developments, agriculture, and equestrian activities outside the urban service boundary. The vegetative communities and habitats along University Parkway to Lorraine Road are dominated on the north side of the road by developing lands, and on the south side of the road by the HRCE and portions of Gum Slough. As the corridor proceeds westward, there are also scattered shrub and brush land, pine flatwoods, and scattered marshes and forested systems. Along Lorraine Road, the vegetative communities and habitats include primarily shrub and brush land, various upland forested systems, some wetland forested systems, small marshes, and active mining east of Lorraine Road. Land Uses and Significant Natural Features – The Consensus Corridor a. Manatee Energy Center to SR 64 This segment of the Consensus Corridor is the same as the FPL Original Corridor and, therefore, has the same land uses and significant natural features as were previously described. b. SR 64 to University Parkway The Consensus Corridor is east of the FPL Original Corridor in the north half of this segment. There are large- acre agricultural land uses in this area, but the corridor is closer to residential development to the east. The future land use is AG-R (Agriculture/Rural), described previously. c. University Parkway to the Bobwhite Substation The Consensus Corridor meanders through the HRCE for most of this segment. The existing uses are cattle grazing, sod farming, and recreational hunting. The HRCE has a future land use designation as Greenway. The HRCE contains a portion of the Gum Slough swamp system as well as uplands of open pine flatwoods and improved pasture which serve as a buffer for the swamp system. Land Uses and Significant Natural Features – The Concession Corridor a. Manatee Energy Center to SR 64 This segment of The Concession Corridor is the same as the FPL Original Corridor and, therefore, has the same land uses and significant natural features as were previously described. b. State Road 64 to Fruitville Road The existing land uses in this area are a mix of large-lot residences and some agriculture. A large PUD, Panther Ridge, is just west of The Concession corridor. When The Concession Corridor turns south on Verna Road, it passes large wellfields owned by the City of Sarasota and through pastures and other agricultural uses on both sides of the road, with some residential development to the east. The future land uses in this area, as designated in the Manatee County Comprehensive Plan, are AG-R and R-OS, which were described above. The ecological communities in this area include pine flatwoods, shrub and brush lands, and freshwater marshes. Just south of SR 64, The Concession Corridor crosses Corbett Branch, which is a Class I tributary of the Manatee River. Along CR 675 and SR 70, are primarily developed lands or farmsteads. There are scattered trees and wetlands along SR 675. The corridor along SR 70 crosses a slough. Along Verna Road, there are no significant natural features. c. Fruitville Road to the Proposed Bobwhite Substation In this area of The Concession Corridor, there are some existing residential and agricultural uses, as well as vacant land that is proposed for residential development. Fruitville Road (and The Concession Corridor) runs just north of the large Gum Slough System. The future land uses in this area are subject to the Sarasota County Comprehensive Plan. The primary future land uses are Rural, which may be subject to the Sarasota 2050 RMA Supplement, as explained above; Major Government Uses (MGU), which applies to the existing city wellfield; and Greenway, which covers the Gum Slough system. There are also publicly owned lands south of Fruitville Road that are protected for environmental functions and values. The ecological communities in this area are pine flatwoods, oak and pine uplands, shrub and brush lands, freshwater marshes, wet prairies, and forested swamps. On the western end of Fruitville Road, there are scattered wetlands and tributaries across the roadway, including Cow Pen Slough and Gum Slough. Land Uses and Significant Natural Features – The Falkner Corridor Falkner did not present a detailed description of the existing and future land uses or the significant environmental features in the areas through which the Falkner Corridor passes. In the ROW itself, of course, the existing use is electrical transmission lines. Along the corridor, however, there are areas of existing and future residential development. The corridor also passes over the Manatee River and its floodplain. D. Transmission Line Design and Construction FPL will ultimately construct the BWM Line within a ROW more narrow than the approved corridor. The width of the ROW will range from 10 feet to 75 feet. Pursuant to Section 403.522(10), Florida Statutes, after all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the width of the ROW. The proposed design for the BWM Line will be a single- pole un-guyed concrete structure, 65-to-100 feet above grade, with the phase conductors framed in a vertical or triangular configuration. Each of the BWM Line’s 3 phases is anticipated to utilize bundled 954-thousand circular mils, aluminum conductors (2 conductors per phase), with a steel reinforced alumoweld core. There will also be a smaller overhead ground wire to provide shielding and lightning protection for the conductors. The maximum current rating for the BWM Line will be 2,990 amperes. The span length between structures will vary between 250 feet and 700 feet, depending on site-specific ROW widths and other design considerations. Both pole height and span length will vary due to natural or man-made constraints such as wetlands, water bodies, property boundaries, existing utility poles, utility lines, and roadways. Shorter structures might be required in proximity to an airstrip, to comply with applicable clear zones, or to accommodate the wishes of underlying property owners. The transmission line poles can accommodate the placement of electric distribution lines or communication cables beneath the transmission line’s conductors, referred to as “underbuilding.” For poles shorter than 85 feet, however, it is difficult to underbuild. Use of shorter poles also requires a wider ROW to comply with the electric and magnetic fields (EMF) requirements established in Florida Administrative Code Chapter 62-814. Surveying the ROW to facilitate acquisition of the necessary property interests is a first step toward construction. Concurrently with surveying, FPL will work with the underlying landowners to determine the most appropriate boundaries of the ROW and the location of poles within the ROW. Another early task is to determine where access roads or structure pads are needed. After the ROW is established, the initial phase of construction involves clearing the ROW. Clearing the ROW will consist mainly of tree trimming in compliance with American National Standards Institute (ANSI) standards. Generally, trees that cannot be avoided and which exceed or are capable of exceeding 14 feet in height will have to be removed to ensure adequate clearance is maintained around the conductors, both vertically and horizontally. In wetlands, trees capable of exceeding 14 feet will be removed by hand. Lower wetland vegetation will not be cleared. After the ROW is cleared, any necessary access roads and structure pads will be constructed. To the greatest extent practicable, existing roads will be used. Improvements might be made to existing roads, depending on their condition. Where soil conditions will not support large construction and maintenance vehicles, usually in wet areas and areas with soft soil, FPL will probably construct new access roads and structure pads. Where new access roads are constructed, they will typically be 14 feet wide and at least six feet above seasonal high water. Structure pads will typically extend about 20 feet around the pole, but, on at least one side, must extend at least 30 feet to accommodate the outriggers on the construction and maintenance equipment. Access roads and structure pads will not be paved. They will have culverts installed beneath them, when needed, to maintain preconstruction water flows in the area. The next phase of construction involves the augering of holes, erection of poles, and backfilling of the holes. Poles are typically embedded 18-to-25 feet into the ground. The poles are then “framed,” which is the installation of the insulators and clamp hardware. If the pole is set at a location where the line turns a large angle, guy lines will be installed to compensate for the greater tension on the conductor. Then, the conductors and overhead ground wires are installed. The conductors are then tensioned to provide the proper design vertical clearances and “clipped in” to the insulator assemblies. The final stage of construction is ROW clean-up, smoothing of ruts, and placement of sod or seed as needed. During all stages of construction, FPL will maintain traffic on any adjacent county, state or federal roadways in compliance with Department of Transportation (DOT) regulations. Throughout construction, sedimentation management techniques (e.g., silt fences, turbidity screens, and hay bales), will be employed as necessary to minimize potential impacts on water quality from erosion and sedimentation. The entire construction process for the BWM Line will take 13-to-15 months. Conditions of Certification The construction, operation, and maintenance of the BWM Line in any of the corridors proper for certification must comply with the Conditions of Certification. The Conditions of Certification establish a review process through which the final right-of-way, access road, and transmission line structure locations will be reviewed by agencies with regulatory authority over the project. The parties agree that the Conditions of Certification attached as Appendix I to DEP Exhibit 8 are consistent with applicable non-procedural requirements of the state, regional, and local agencies that have regulatory jurisdiction over the BWM Line. FPL agrees to comply with the Conditions of Certification. Agency Review of Corridors Proper for Certification Local, regional, and state agencies with regulatory authority over the construction of the BWM Line reviewed the FPL Original Corridor application and each subsequent alternate corridor application filed in this proceeding and submitted to DEP a report on matters within the agency’s jurisdiction. DEP’s first Summary and Compilation of Agency Reports, dated April 27, 2007, addressed only the FPL Original Corridor. At that time, DEP reported that the FPL Original Corridor “can be certified so long as the conditions of certification are met.” The other commenting agencies recommended that the FPL Original Corridor be certified, subject to the conditions of certification. A revised Summary and Compilation of Agency reports was issued by DEP on September 7, 2007. It addressed the FPL Original Corridor and 12 alternate corridors. DEP stated that “any of the proposed corridors can be certified.” The other commenting agencies, except for Manatee County and Sarasota County, had no objection to certification of any of the proposed corridors. Manatee County recommended denial of four alternate corridors, including SMR #1, which is the same as The Concession Corridor. Sarasota County also expressed concerns about SMR #1. DEP’s most recent Addendum to Staff Analysis Report, dated May 5, 2008, compiled the updated reports of the reviewing agencies on the alternate corridors proper for certification, including the Consensus Corridor. Because the Falkner Corridor was rejected by FPL, Falkner did not submit supporting data for the corridor and the agencies did not review or comment on the Falkner Corridor. In the Addendum, Manatee County again recommended denial of The Concession Corridor. Comparison of Corridor Impacts The Effect of Paragraph 5 of the Settlement Agreement In the second half of the certification hearing, an issue arose regarding the credibility of the testimony of witnesses for 15 non-governmental parties. These parties entered into a Settlement Agreement on November 7, 2007, which contained the following condition in paragraph 5: The Parties agree that, through their pleadings and testimony, they shall urge the Administrative Law Judge to recommend, and the Siting Board to certify, the Consensus Corridor subject to the supplemental conditions of certification set forth below. FPL and the other signatories to the agreement offered testimony to show that they had not entered into the agreement until they were genuinely convinced that the Consensus Corridor was the best of the proposed corridors. They asserted, therefore, that the credibility of the testimony offered in support of the Consensus Corridor is not diminished by the fact that the parties had contractually obligated themselves to support the Consensus Corridor in their testimony. Paragraph 5 of the Settlement Agreement, however, also raises the question of whether witnesses for the signatories to the agreement felt free to express a subsequent change of opinion with respect to any aspect of the Consensus Corridor; a change of opinion which they reached either on their own or through cross-examination. The Administrative Law Judged asked several of the witnesses whether their testimony was serving their oaths to tell the truth or their contractual obligation to support the Consensus Corridor. All the witnesses claimed allegiance to their oaths to tell the truth. The credibility of the witnesses, based on their demeanor and other indices of veracity, was still discernable by the Administrative Law Judge, despite Paragraph 5 of the Settlement Agreement. Only one witness gave testimony that, in some respects, appeared to be based not on personal knowledge or genuine belief, but on the witness’ sense of contractual obligation to support the Consensus Corridor. Lack of Detailed Information for the Falkner Corridor Because the Falkner Corridor was rejected by FPL, Falkner did not submit detailed information in support of his corridor and the agencies did not review it. Therefore, Falkner had the burden to present in the certification hearing all of the information needed to fully evaluate the Falkner Corridor and to compare it to the corridors proper for certification. Falkner contends that his right to due process was violated because “FPL prevented the public and government agencies from fully considering the proposal to build the BWM Line in the existing FPL right-of-way.” The evidence offered by Falkner in support of his due process claim, however, amounts to nothing more than discussions between FPL and governmental parties about TSLA procedures and the effect of the PSC need determination. The governmental parties remained free to disagree with FPL and to take whatever related action they deemed appropriate. FPL had no power to “prevent” action by a governmental party. Section 403.526(4), Florida Statutes, provides that the failure of an agency to submit a report is not grounds to deny or condition certification. In several respects, Falkner failed to present the detailed information needed to fully evaluate the Falkner Corridor. For example, the potential environmental impacts associated with the Falkner Corridor (especially the impacts associated with crossing of the Manatee River) were described in less detail than was done in the case of the corridors proper for certification. The record evidence regarding the existing and future land uses adjacent to the Falkner Corridor is also inadequate to make detailed findings on that subject. The Certification Criteria Section 403.529(4), Florida Statutes, provides: In determining whether an application should be approved in whole, approved with modifications or conditions, or denied, the board, or secretary when applicable, shall consider whether, and the extent to which, the location of the transmission line corridor and the construction, operation, and maintenance of the transmission line will: Ensure electric power system reliability and integrity; Meet the electrical energy needs of the state in an orderly, economical, and timely fashion; Comply with applicable nonprocedural requirements of the agencies; Be consistent with the applicable provisions of local government comprehensive plans, if any; and Effect a reasonable balance between the need for the transmission line as a means or providing reliable, economically efficient electric energy, as determined by the commission, under s. 403.537, and the impact upon the public and the environment resulting from the location of the transmission corridor and the construction, operation, and maintenance of the transmission lines. The three corridors proper for certification and the Falkner Corridor will be compared below with respect to each certification criterion. Ensure Electric Power System Reliability and Integrity The PSC determined that locating the BWM Line in a geographically separate ROW from the existing common ROW would enhance the electric system reliability benefits of the new line. The Administrative Law Judge ruled that this determination by the PSC did not preclude Falkner or any other party from presenting evidence regarding electric system reliability. The Florida Reliability Coordinating Council (FRCC) is a component of the North American Electric Reliability Corporation (NERC). FRCC’s primary purpose is to ensure electric system reliability in Florida. FRCC has adopted NERC’s planning standards, which are mandatory and enforced by the Federal Energy Regulatory Commission. All four proposed corridors would be equally able to achieve the reliability standards established by NERC for “single contingency” events, those that result from the loss of a single element such as a generator or a transmission circuit. The reliability issue in dispute in this proceeding relates to the potential for the loss of all circuits on a common ROW, referred to as a “corridor outage.” NERC planning standard TPL-004 requires electric utilities to plan for and mitigate the system performance problems that could occur during a corridor outage. The key to maintaining adequate system performance during a corridor outage is reinforcement elsewhere in the transmission system. FPL’s records from 1985 to date show that FPL has experienced eight corridor outages in that period. Corridor outages have been caused by, among other things, fires, airplanes contacting the lines, hurricanes, tornados, and lightning. These are all events that could occur in the common ROW that is the Falkner Corridor. Vince Ordax, FPL’s former supervisor of local area transmission planning, testified that a corridor outage with the BWM Line in the Falkner Corridor could possibly trigger cascading, or uncontrollable, outages. A simulation performed under the direction of Carlos Candelaria, an expert in transmission planning, also showed that a cascading outage could occur, resulting in a blackout lasting hours and affecting 500,000 customers. Such a blackout would jeopardize public health, safety and welfare. FPL admits, and it is understood in the electric utility industry, that the probability of a corridor outage is very low. Falkner agrees that “if the BWM Line is built in the existing right-of-way, and if there is a corridor outage, a cascading outage might result causing customer service interruption of up to 4-6 hours.” Falkner further agrees that, “If the BWM Line is built in a geographically separate corridor . . . then a cascading outage is unlikely and customer service interruptions should be resolved in minutes, not hours.” Falkner’s position is that this difference in system reliability is not significant and does not prevent an ultimate finding that the Falkner Corridor would have the least adverse impact when all the certification criteria are considered. The preponderance of the evidence presented shows that geographic separation of the BWM line from the existing ROW would improve system reliability with respect to system performance in the event of a corridor outage. Placement of the BWM Line in the Falkner Corridor would reduce system reliability in the event of a corridor outage. This enhancement of system reliability is a part of the need for the BWM Line as determined by the PSC. There is an airstrip that is in active use that is perpendicular to Fruitville Road within The Concession Corridor. The proximity of an airstrip to the BWM Line poses a risk of a plane striking the line. The Consensus and FPL Original Corridors are the same length, about 26 miles. The Concession Corridor is 3.3 miles longer and the Falkner Corridor is 2.5 miles longer. A shorter line reduces line losses and exposure to reliability risks, such as lightning or falling trees. However, the differences in the lengths of the four corridors under review are not significant with regard to system reliability. Electric system integrity addresses the adequacy of design and strength of the transmission line to withstand various events. The BWM Line will be constructed, operated, and maintained in compliance with all applicable design codes, including the National Electrical Safety Code, DEP’s regulations on electric and magnetic fields (Florida Administrative Code Chapter 62-814), the Florida DOT Utility Accommodation Manual, Manatee County and Sarasota County noise ordinances, and the standards of the American Society of Civil Engineers, the Institute of Electronic and Electrical Engineers, American Society of Testing Materials, NERC standards, as well as FPL’s own internal standards. If the BWM Line were constructed in the Falkner Corridor, several structures would have to be built in the open water and floodplain of the Manatee River. Maintenance of these structures would be more difficult and the replacement of poles and some other major components would require barges or helicopters. The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are on nearly equal footing with regard to this particular certification criterion, with the Concession Corridor slightly less attractive. The Falkner Corridor has the greatest potential for adverse impact with regard to this criterion. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion In its need determination for the BWM Line, the PSC determined that the line must be in service by December 2011 to preserve electric system reliability and integrity. The design, construction, and operation of the BWM Line can be accomplished in an orderly and timely fashion and in compliance with the conditions of certification in any of the corridors proper for certification. FPL contends that there was an insufficient showing that the BWM Line could be constructed, operated and maintained in the Falkner Corridor in compliance with the conditions of certification and, therefore, an insufficient showing that a new transmission line in the Falkner Corridor could meet the area’s electric energy needs in an orderly and timely fashion. FPL’s position is based in part on its belief that it would be difficult and perhaps impossible to obtain agency approvals for the wetland impacts associated with the crossing of the Manatee River in the Falkner Corridor. Although the record evidence indicates that a transmission line in the Falkner Corridor would have wetland impacts associated with its crossing of the Manatee River, the evidence is insufficient to demonstrate that a permit could not be obtained. Some questions remain about whether the BWM Line could physically fit within the existing common ROW in the area south of SR 70 where a Peace River Electric Cooperative (PRECO) transmission line, called the Crawley tap, is located within it or in locations requiring the BWM Line to turn corners where guying would be needed. Within the next 10 or 15 years, FPL and PRECO plan to place four new distribution substations east of Interstate 75 in Manatee County and Sarasota County to serve future growth. Placing the BWM Line in a corridor east of the existing common ROW would more efficiently integrate these future distribution substations than placing the transmission line in the Falkner Corridor. Placement of the BWM Line in one of the corridors proper for certification would facilitate the building of an integrated system that could be efficiently expanded in the future as this area continues to develop. The Falkner Corridor, because it is on the western edge of the service area, would be less able to provide these benefits. The Concession asserts that its corridor has the unique advantage of passing FPL property that was purchased many years ago for a future distribution substation, referred to as the Oakford site. However, because of the uncertainties associated with whether and when the Oakford site will ultimately be used, how other planned substations will be integrated, and their costs, the proximity of the Oakford site to the Concession Corridor cannot be assigned much weight at this time. The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are all on essentially equal footing with regard to this particular certification criterion. The Falkner Corridor has some potential adverse impact with regard to this criterion. Comply with Applicable Nonprocedural Requirements of the Agencies The construction, operation and maintenance of the BWM Line on any of the corridors proper for certification, subject to the conditions of certification proposed by the DEP, will comply with the applicable nonprocedural requirements of agencies. Described earlier, but also relevant to this particular certification criterion, is FPL’s contention that it would be difficult and perhaps impossible to obtain agency approvals for the wetland impacts associated with the transmission line crossing of the Manatee River in the Falkner Corridor. FPL suggests that the availability of the alternative river-crossing along CR 675 in the corridors proper for certification would pose a problem in demonstrating that a transmission line in the Falkner Corridor avoided or minimized wetland impacts. However, the Falkner Corridor would only be certified by the Siting Board if it determined that the Falkner Corridor had the least adverse impacts regarding the criteria in Section 403.529(4), Florida Statutes. Such a determination made in this integrated certification proceeding would have to be considered in the wetland permitting process. As stated above, the record evidence is insufficient to find that the Falkner Corridor could not be approved due to its wetland impacts. Falkner did not show, and it was not conceded by FPL, that the BWM Line could be constructed in the Falkner Corridor in compliance with the EMF standards. The FPL Original Corridor, the Consensus Corridor, and The Concession Corridor are all on an equal footing with regard to this particular certification criterion. The Falkner Corridor has more potential adverse impact with regard to this criterion. Consistency with Applicable Local Government Comprehensive Plans The Manatee County Comprehensive Plan has no provisions specifically addressing transmission lines. Policy GS 2.4 of the Sarasota County Comprehensive Plan discourages the crossing of Greenway RMAs by utilities, but allows a utility crossing when it shown to be necessary to ensure the health, safety and welfare of the citizenry. A utility crossing must be designed to have minimal impacts on the environment. The Consensus Corridor crosses a Greenway RMA in Sarasota County within the HRCE. Sarasota County has authorized placement of the BWM Line across the HRCE if the Consensus Corridor is certified.6 In the Sarasota County Comprehensive Plan, Future Land Use Objective VOS 5 and Policy VOS 5.2 require protection of the “open vistas” and “integrity of the rural character” of Fruitville and Verna Roads. Because transmission lines are commonly placed in rural settings, FPL asserts that a transmission line is consistent with rural character. The comments of the public show this notion is not generally accepted. Although it is undisputed that transmission lines are commonly placed in rural areas, there appears to be almost unanimity in the belief that a transmission line reduces the quality of a rural vista. Neither Manatee County nor Sarasota County asserted in this proceeding that any of the four proposed corridors is inconsistent with the applicable provisions of its comprehensive plan. However, the TLSA requires a consideration of “the extent to which” the proposed corridors are consistent with local government comprehensive plans. Because Sarasota County has recognized the special character of the Verna Road/Fruitville Road area and adopted policies that seek to preserve its open vistas and rural character, The Concession Corridor along Verna Road and Fruitville Road presents a “negative” with respective to this criterion. The Consensus Corridor also presents a consistency issue under the Sarasota County Comprehensive Plan because the corridor crosses through the HRCE. However, due to the mitigation proposed as part of the corridor proposal (discussed in the next section), there is a net positive furtherance of the relevant comprehensive plan goals, objectives, and policies regarding environmental protection, generally, and the HCRE, specifically. The four proposed corridors are not far apart with respect to this particular certification criterion, but, as explained above, there is an advantage with The Consensus Corridor and a disadvantage with The Concession Corridor. Effecting a Reasonable Balance Between the Need for the Transmission Line and the Impact Upon the Public and the Environment Proximity to Residences There is no route between the Manatee Energy Center and the proposed Bobwhite substation that would make the BWM Line unseen from residences. Of the corridors proper for certification, the Consensus Corridor has the fewest homes within 600 feet and The Concession Corridor has the most. The Consensus Corridor has 40 existing homes within 600 feet, the FPL Original Corridor has 54, and The Concession Corridor has 189. The record does not show how many existing homes or residential lots are within 600 feet of the Falkner Corridor, but the Falkner Corridor passes through or by residential developments and urban areas. Taylor & Fulton/the Hunsaders/Bridle Creek The FPL Original Corridor, south from SR 64, begins at Dam Road and travels south through a large tract of agricultural land owned by Taylor & Fulton. Manatee County plans to extend Dam Road north from University Parkway to SR 64, and the FPL Original Corridor would be aligned with Dam Road through the Taylor & Fulton property. Collocation with Dam Road, compatibility with the existing agricultural uses, and avoidance of the residential land uses to the east and west were some of the reasons given by FPL for selecting this segment of the corridor as part of the FPL Original Corridor. The Consensus Corridor in this segment is derived from an agreement between FPL and Taylor & Fulton to have the BWM Line follow Taylor & Fulton’s eastern property boundary. Jay Taylor testified that this location would cause less impact to the future development of the Taylor & Fulton property. In order to follow Taylor & Fulton’s eastern property boundary, it is necessary to construct the BWM Line in a “C”- shaped notch. The notch adds about one mile of transmission line, compared to a straight line. FPL asserts that such notches are not unusual and FPL has created notches in other areas of the State to follow property boundaries or to avoid wetlands. However, the only examples presented by FPL were notches with much longer sides. The notch in the Consensus Corridor creates a tight “C” shape, with the sides close to each other. From several vantage points around the notch, a viewer would see two, three, or even four transmission lines. There are technical solutions for transmission lines that turn sharp angles, so the tight turns in the proposed notch can be engineered and built. The problem created by the proposed notch in the Consensus Corridor is not an engineering issue, but a problem of extreme visual impact on adjacent properties. The complaints and concerns expressed by many persons and parties in this proceeding were over the prospect of a single linear “eyesore.” The notch in the Consensus Corridor, however, would make it appear that there were three or four separate transmission lines built close together and running in different directions. This dramatic difference undermines attempts to describe the Consensus Corridor as more favorable than the FPL Original Corridor in this segment. The Hunsaders own property that would be surrounded on three sides by the BWM Line in the notch of the Consensus Corridor. In this area, the Hunsaders host the annual Hunsader festival, a rural community festival that attracts thousands of people. Collocation with existing or planned roads is an important consideration in transmission line siting. The FPL Original Corridor south of SR 64 is collocated with the future Dam Road extension. The Consensus Corridor would provide an opportunity to collocate with existing farm roads on the Taylor & Fulton property, but collocation with Dam Road is the better of these alternatives. Although Taylor & Fulton claims that the Consensus Corridor would cause significantly adverse impact to its property, the evidence offered in support of this claim was not persuasive. Agricultural uses are relatively unaffected by a transmission line. Unlike SMR, Taylor & Fulton has no specific future development plans for its property. Its concern regarding the impacts of the BWM Line on future development is speculative. The Dam Road extension (four-lanes) will divide the Taylor & Fulton lands into two distinct areas, east and west of the road. The BWM Line would run along one side of Dam Road. It will be Dam Road, not the BWM line, that will be the primary feature that Taylor & Fulton will have to incorporate into its future development plans. Moreover, the potential adverse impacts to Taylor & Fulton’s future development interests must be considered in conjunction with the fact that Dam Road and the BWM Line are both major public infrastructure projects that will provide substantial future benefits to Taylor & Fulton and the other developers in that area. FPL and other parties emphasized in this proceeding that when a transmission line is constructed in rural areas in advance of residential development, there are many options and techniques available to a developer to integrate the transmission line into future development plans in order to minimize its visual impact. In the future development of Taylor & Fulton’s agricultural lands, Taylor & Fulton will have these same development options and techniques. The difference between the three-sided notch and a simple line defies simple comparisons, such as the numbers of current residents in the vicinity of the Consensus Corridor versus the FPL Original Corridor in this segment. In order to assuage the concerns of the residents of the Bridle Creek subdivision on the south side of the Consensus Corridor where it runs back to the west to join the FPL Original Corridor alignment, Taylor & Fulton agreed to have the BWM Line located on the north side of a drainage canal and a line of trees so that the BWM Line would be screened from Bridle Creek. Taylor & Fulton would not remove the trees in this area if the BWM Line is constructed within the Consensus Corridor. FPL has agreed to the following condition, to be added to the Conditions of Certification as No. XVIII(F), if the Consensus Corridor is certified: To the extent feasible, and upon request by the Bridle Creek Homeowners Association (BCHOA), FPL shall consult with Taylor & Fulton, Inc. and BCHOA in the design of the transmission line to: 1) keep the pole heights along the northern BCHOA property boundary to the minimum height that is practicable, consistent with the desires of Taylor & Fulton, and in compliance with the requirements of the National Electrical Safety Code and good engineering practices; and 2) work collaboratively to locate the poles in such a way as to accommodate the BCHOA to the extent practicable, consistent with the wishes of Taylor & Fulton, and in compliance with the requirements of the National Electrical Safety Code and good engineering practices. The Concession’s Entrance The Concession’s main concern is the impact of the BWM Line on its entrance. An attractive entrance is an important aspect of a residential development. The Concession believes the BWM Line in the FPL Original Corridor and the Consensus Corridor would substantially diminish the attractiveness of its entrance and harm the marketability of lots and homes within The Concession. Although The Concession did not join in the Settlement Agreement that resulted in the Consensus Corridor, the Consensus Corridor was designed to reduce the potential impacts of the BWM Line on The Concession’s entrance and property. FPL has agreed to locate the BWM Line along the west side of four-lane Bourneside Boulevard, the opposite side of Bourneside Boulevard from The Concession’s entrance. The transmission line would not cross over The Concession’s entrance road. In this area, the BWM Line would be 450 feet from The Concession golf course and 832 feet from the nearest residential lot. The Concession has opportunities to reduce the visual impact of the line with landscaping. The Concession’s entrance is not currently unblemished. A 250-foot telecommunications tower is located on SMR’s property several hundred feet from The Concession entrance. The tower was constructed before The Concession purchased its property, and the tower operator has a lease which allows the tower to remain there for many years. The telecommunications tower affects the siting of the BWM Line in this area. Telecommunications towers must be separated from high voltage power lines by a distance equal to the tower’s height. Therefore, the BWM Line must be located at least 250 feet from the tower. The Concession presented no direct evidence that the prospect of the BWM line near the entrance to The Concession residential development has harmed lot or home sales. The presence of the telecommunications tower was not shown to have affected sales. FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8, as No. XVIII(D): In the area of the planned Dam Road/Bourneside Boulevard extension (“Extension”), south of SR 64 and north of University Parkway and connecting with SR 70, FPL shall coordinate to the extent practicable with Manatee County Transportation Department and the underlying property owners regarding the location of the ROW for the Extension and the ROW for the BWM Line. If either Manatee County or the property owner(s) decline to participate in the coordination effort, FPL shall coordinate with the cooperating entity. FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8, as No. XVIII(E): During design of the BWM Line, FPL shall locate poles, to the extent practicable and in compliance with the requirements of the National Electrical Safety Code and good engineering practices, to maximize the space between a pole and the primary entrance of a major residential subdivision, using typical structures, and within the ROW alignment. FPL has agreed to the following condition of certification, to be added to the Conditions of Certification contained in Exhibit DEP-8 as No. XXVII(B): To the extent practicable and consistent with safe operation and ongoing maintenance practices for the BWM Line, and in compliance with the requirements of Section 163.3209, F.S. (2007) and FPL’s Transmission Vegetation Management Procedures [which have been filed with NERC and are mandatory], after construction of the BWM Line is complete, FPL shall allow underlying property owners along the BWM Line ROW to plant vegetation within the ROW. Vegetation planted within the ROW shall not have a mature height of more than 14 ft from natural ground grade and must maintain at least 75 ft of clear space around the base of the structure and must not be located so as to impede access to the BWM Line for routine and emergency maintenance. Plans for vegetation planting along the BWM Line ROW shall be reviewed and approved by FPL to ensure compatibility with the access, operation and maintenance of the facility; if compatible, the planting must be permitted. These three conditions of certification would provide opportunities to reduce the visual impact of the BWM Line in the Consensus Corridor on The Concession’s entrance. The Concession proposes a condition of certification that would require the BWM Line to be constructed several hundred feet west of Bourneside Boulevard, on SMR property. However, this would create substantial interference with SMR’s Lake Club development, part of an approved Development of Regional Impact. The adverse impacts to the Lake Club would be disproportionately greater than the adverse impacts to The Concession’s entrance caused by the Consensus Corridor. University Parkway FPL and SMR have agreed to work together on the design of the BWM Line, including ROW location, pole height, and framing configuration, in the areas of University Parkway and Bourneside Boulevard to minimize the visibility of the poles. With respect to the area south of University Parkway, the Consensus Corridor has fewer impacts on existing and future residences than the FPL Original Corridor because the Consensus Corridor is more distant from residences. It avoids crossing lands designated for future Village Land Use on the Sarasota 2050 Plan and as RES-1 on the Manatee Future Land Use Map. CR 675, Verna Road, and Fruitville Road The Concession Corridor is close to and would adversely impact more existing homes and approved future residential lots than the FPL Original Corridor and Consensus Corridor. CR 675, Verna Road, and Fruitville Road have narrow rights-of-way, with homes closer to the roads, and less opportunity for landscaped screening. The Falkner Corridor The number and proximity of existing and future homes along the Falkner Corridor was not shown. There already are multiple transmission lines in the Falkner Corridor, so for many persons living near the corridor, the incremental increase in the visual impact of adding another transmission line in the corridor should be relatively small. Nevertheless, the overall impact of the Falkner Corridor in this respect is unknown. Electric and Magnetic Fields Some members of the public expressed concern at the public hearings and through letters submitted to the Administrative Law Judge about the potential for health effects from electric and magnetic fields (EMF). However, EMF standards have already been established for the protection of human health and safety and would apply to a transmission line constructed in any corridor certified by the Siting Board. Neither the Administrative Law Judge nor the Siting Board has authority in this certification proceeding to determine the appropriateness of any EMF standard. FPL provided reasonable assurances that the BWM Line, if built within any of the corridors proper for certification, will comply with the EMF standards. Falkner did not show, and it was not conceded by FPL, that the BWM Line could be constructed in the Falkner Corridor in compliance with the EMF standards. Environmental Impacts No matter what corridor is certified, FPL has agreed to follow a number of procedures to avoid and minimize the impacts to wetlands. For example, wetlands will be spanned wherever possible so poles or pads are not placed in wetlands. The transmission line will follow disturbed areas when possible. FPL has agreed to use restrictive clearing practices in forested wetlands, removing only trees taller than 14 feet and leaving the understory vegetation in place. Where fill is required, FPL will install culverts to maintain water movement. FPL will appropriately mitigate for wetland impacts that cannot be avoided. The FPL Original Corridor and Consensus Corridor are wide in some areas for the purpose of providing flexibility to avoid natural vegetated communities and waterbodies to the greatest degree possible. The FPL Original Corridor and Consensus Corridor can be constructed without significant disturbance to wetlands. The Concession Corridor is narrower, but generally follows areas that are already disturbed and can also be constructed without significant disturbance to wetlands. Based on a simple calculation of total wetlands that are crossed by the corridors, The Concession contends that it would have the least environmental impact. That is a simplistic analysis that fails to account for the fact that, in any of the corridors proper for certification, FPL will probably be able to avoid significant impacts to the wetlands. All of the corridors proper for certification cross the Manatee River and Gilley Creek on existing bridge crossings without any poles needing to be placed in open water or wetlands. These crossings would be accomplished by spanning over the water, upland-to-upland. The BWM Line in the three corridors proper for certification would be collocated with CR 675 at the Edward Chance Preserve, adjacent to the Preserve’s parking lot. The pristine, natural areas of the preserve would not be disturbed. For most of the Falkner Corridor, a new transmission line in the existing ROW would appear to have no wetland impacts, but the Falkner Corridor crosses the Manatee River at a much wider point than the other three corridors. Building the BWM Line in the Falkner Corridor would require placing at least four structures within the Manatee River, and 7-to-8 structures in the adjacent floodplain. Four miles south of SR 64, the Consensus Corridor and FPL Original Corridor cross the Braden River. The river is narrow within these corridors and can be spanned. The Concession Corridor and Falkner Corridor do not cross the Braden River. The Concession Corridor crosses Gum Slough and Cow Pen Slough on Fruitville Road, and Wolf Slough on CR 675 south of SR 64. The other proposed corridors do not cross these sloughs. However, no significant impacts to these wetlands are expected to occur if the BWM Line is constructed in The Concession Corridor. The construction, operation, and maintenance of the BWM Line in any of the corridors proper for certification is not expected to adversely impact any listed species or their habitats. There are no known listed plant species within the proposed corridors. However, there are conditions of certification which require FPL to survey for and protect any listed plant species found after certification of the BWM Line. Much of the wildlife habitat within the proposed corridors has been disturbed by roads, farming operations, and other man-induced impacts. No listed wildlife species are known to use the lands within the proposed corridors. FPL is required by the conditions of certification to protect any listed species that are found after certification of the BWM Line. The significant wildlife habitats (for non-listed species) in the corridors proper for certification are either avoided or, in the case of the Consensus Corridor’s location in the HRCE, the impacts are mitigated by measures to protect more wildlife habitat. There are some large live oak trees along CR 675. FPL can avoid or minimize impacts to those trees. In addition, FPL has agreed to the following additional condition of certification to be added as Condition No. XVIII(G) to the Conditions of Certification: When establishing the ROW location and constructing the transmission line, the Licensee shall minimize impacts to pre- existing natural features and minimize tree removal and trimming of vegetation, to the extent feasible and in compliance with Section 163.3209, Fla. Stat. (2007), which incorporates by reference National Electrical Reliability Corporation (NERC) standard FAC-003-1, American National Standards Institute (ANSI) standards A300 (Part I)-2001 and Z133.1-2000, and NESC standards adopted by the Florida Public Service Commission. Heritage Ranch Conservation Easement (HRCE) and Mitigation The Consensus Corridor is the only corridor that goes through the HRCE. The BWM Line would involve 18-to-28 acres of transmission line ROW in the 1,972-acre HRCE, depending on pole height and EMF-related ROW width requirements. The Consensus Corridor is near the western edge of the HRCE, which is primarily improved pasture and pine flatwoods, and follows jeep trails and fire breaks for much of its length. No unique or significant wildlife habitat exists in the corridor. No wetlands or important environmental features of the HRCE would have to be disturbed. The environmental functions of the HRCE would not be impaired. Although the HRCE is in a conservation land use designation, the portion of the HRCE within the Consensus Corridor is not environmentally sensitive, but serves as a buffer to the environmentally sensitive Gum Slough system. Sarasota County, the holder of the HRCE conservation easement, has approved the construction, operation and maintenance of the BWM Line within the HRCE in the Consensus Corridor. SMR has agreed to add 140 acres to the HRCE if the Consensus Corridor is certified. These 140 acres include portions of Gum Slough and large isolated wetlands. Protection of these additional lands would provide wildlife habitat and water quality benefits. SMR would also protect 470 acres of additional lands contiguous to the HRCE with restrictive covenants. The 470 acres include wetland systems, such as Cow Pen Slough, which would be protected from future development. The restrictive covenants require SMR to ensure that these wetlands are maintained in as good an ecological condition and functionality as currently exists, or better. The restrictive covenants would aid in the protection and preservation of the natural drainage pattern in the area, and would provide a benefit to the Gum Slough system for wildlife habitat and water quality. Summary of Environmental Impacts At this level of analysis, it is impossible to predict the unavoidable environmental wetland impacts that would be associated with each of the corridors proper for certification. As required by the Conditions of Certification, the construction of the BWM Line in any certified corridor must comply with the wetland regulatory standards applicable to such projects. The three corridors proper for certification have some potential for environmental impacts, but for all of these corridors, the environmental impacts should be relatively minor. However, the Consensus Corridor is the best of the three proposals because it presents an opportunity for a net environmental benefit with SMR’s offer to protect 600 more acres of sensitive lands. The Falkner Corridor has the greatest potential for adverse environmental impacts because of the need to place structures in the Manatee River and its floodplain. Costs The FPL Original Corridor is estimated to cost about $25.5 million, the most of the three corridors proper for certification. The Consensus Corridor is estimated to cost $3.3 million less, primarily due to the agreements with Taylor & Fulton and SMR regarding ROW acquisition. The Concession Corridor is estimated to cost $500,000 less than the Consensus Corridor. The difference between the estimated costs for the Consensus Corridor and The Concession Corridor, $500,000, represents a small percentage of the total project costs, especially in light of the margin of error in these cost estimates. Even a cost differential of $3 million, at this early stage of planning and cost analysis, is not a substantial difference. The estimated cost of placing the BWM Line within the existing common ROW in the Falkner Corridor was not clearly established in the record. Falkner used 2006-2007 cost estimates to argue that the Falkner Corridor would cost millions less than the other corridors. FPL states that the FPL Corridor would require that transmission lines be looped in and out from the existing common ROW to FPL’s future distribution substations, adding over $7 million of costs when compared to a geographically separate corridor. However, there is insufficient evidence in the record regarding the costs associated with future substations and connecting transmission lines to meaningfully compare the four corridors with regard to these and other future system components. The preponderance of the credible evidence shows that the BWM Line in the Falkner Corridor would probably cost the least to build. However, the record evidence is not sufficient to state how much less the Falkner Corridor would cost. Other Issues The Concession Corridor and Falkner Corridor avoid impacts to Lake Manatee State Park. The potential impacts of the FPL Corridor and Consensus Corridor on the park would be small, but the Consensus Corridor would have less impact because it avoids the Park’s entrance and reduces the BWM Line’s length along the park boundary on SR 64 by about one mile. Within the park, the BWM Line would likely be screened from view by trees in the park. There should be no adverse ecological impacts to the park. If the BWM Line is located in the Consensus Corridor or FPL Original Corridor, FPL would first try to place the line in the road ROW. If that were not possible, FPL would locate the line just inside the Park’s fence in an area already cleared. With respect to traffic interruption during construction of the BWM Line, the Consensus Corridor and FPL Original Corridor would have equally small impact. Construction of the BWM Line in The Concession Corridor along CR 675 (south of SR 64), SR 70, Verna Road, and Fruitville Road would likely require intermittent closure of at least one lane of traffic for the 2-to-3 month construction period. Summary Regarding The Balancing of Need and Impact All three corridors proper for certification would cause adverse impacts to the public which can be avoided without jeopardizing the objectives of the TLSA and without losing the benefits associated with integrating the BWM Line with existing and future land uses. However, the TLSA clearly contemplates that a proposed corridor can cause adverse impacts to the public and the environment, but still meet the criteria for certification. The three corridors proper for certification are found to meet this criterion because none would cause adverse impacts to the public and the environment that are so great that they outweigh the need or benefits of constructing the BWM Line. The evidence submitted for the Falkner Corridor, however, was insufficient to make a finding regarding this particular criterion. I. The Corridor that would have the Least Adverse Impact Section 403.529(5)(b), Florida Statutes, provides that the Siting Board shall deny certification if it determines that a rejected corridor has the least adverse impact with regard to the certification criteria. The Falkner Corridor has more potential for adverse impact regarding some of the certification criteria than the corridors proper for certification. For some certification criteria, insufficient evidence was presented regarding the Falkner Corridor to make a meaningful comparison with the corridors proper for certification. Therefore, the record evidence does not support a finding that the Falkner Corridor has the least adverse impact regarding the criteria in Section 403.529(4), Florida Statutes. If two or more corridors proper for certification meet the statutory criteria, certification must be granted to the corridor that has the least adverse impact regarding the criteria in Section 403.529(4) Florida Statutes, including costs. § 403.529(5)(c), Fla. Stat. Because the FPL Original Corridor, the Consensus Corridor, and The Concession Corridor meet the certification criteria, it must be determined which of them would have the least adverse impact. During the certification hearing, the parties promoted one corridor over another based on the advantages and disadvantages associated with their various segments. However, the preponderance of the evidence demonstrates that the best combination of corridor segments, creating a corridor that has the least adverse impact and effects the best balance between the need for the BWM Line and impacts upon the public and the environment, is not one of the corridors proper for certification. The Consensus Corridor does not effect the best balance between the need for the transmission line and the impact on the public because it includes substantial adverse impacts on the public in the area of the notch on Taylor & Fulton’s property that are unnecessary and avoidable. The avoidance of these impacts, the opportunity to collocate the BWM Line with the Dam Road extension, and several other advantages described by FPL in its corridor application and in the evidence presented by FPL during the first part of the certification hearing, make the FPL Original Corridor preferable in this area of Manatee County. The best combination of corridor segments is the FPL Original Corridor from the Manatee Energy Center to the point where it is perpendicular to Taylor & Fulton’s southern property boundary, and then continuing south in the Consensus Corridor to the proposed Bobwhite substation.
Conclusions For Applicant, Florida Power & Light Company: Carolyn S. Raepple, Esquire Virginia Daily, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 For the Department of Environmental Protection: Toni Sturtevant, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32333-3000 For Manatee County: Sarah A. Schenk, Esquire Assistant County Attorney Manatee County Attorney’s Office 1112 Manatee Avenue West, Suite 969 Post Office Box 1000 Bradenton, Florida 34206-1000 For Sarasota County: Stephen E. DeMarsh, Esquire David Pearce, Esquire Office of the County Attorney 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 For the Southwest Florida Water Management District: Martha Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 LLC: For the Department of Transportation Leon M. Biegalski, Esquire Kimberly Menchion, Esquire Assistant General Counsel 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 For Schroeder-Manatee Ranch, Inc., and Lake Club Investors, W. Douglas Hall, Esquire H. Ray Allen, II, Esquire Dianne Triplett, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 For Myakka Ranch Holdings, LLC; FC, LLC; Sarasota One, LLC; John Cannon Homes - Eastmoor, LLC; Schwartz Farms, Inc.; Michael and Jo Anne Schwartz: Kevin S. Hennessy, Esquire R. David Jackson, Esquire Lewis, Longman & Walker, P.A. 1001 Third Avenue West, Suite 670 Bradenton, Florida 34205 For Gum Slough Preservation Foundation; Kittie L. Chapman; East County Homeowners Organization, Inc.; and Hi Hat Ranch, LLP: Robert S. Wright, Esquire Young van Assenderp, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301 For ManaSota-88, Inc.: Barbara G. Hines, Esquire 117 81st Street Holmes Beach, Florida 34217 For John Falkner: Roy W. Cohn, Esquire 2406 Watrous Avenue Tampa, Florida 33629 For Pacific Land, Ltd.: Maureen M. Daughton, Esquire Broad & Cassel 215 S. Monroe Street, Suite 400 Tallahassee, Florida 32301 For The Concession Land Development, LLC; and The Concession Golf Club, LLC: Jon C. Moyle, Jr., Esquire Anchors Smith Grimsley The Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 For Michael, David, and Doanld Hunsader: Paul F. Grondahl, Esquire Mackey Law Group, P.A. 1402 Third Avenue West Bradenton, Florida 34206 For Bridle Creek Home Owners Association, Inc.: Keith Colabella, pro se . c/o Miller Management 2848 Proctor Road Sarasota, Florida 34231 For Taylor & Fulton, Inc.: Joel E. Roberts, Esquire V. Nicholas Dancaescu Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Orlando, Florida 32801
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order that certifies the corridor for the BWM Line as consisting of the FPL Original Corridor from the Manatee Energy Center to the point where it is perpendicular to Taylor & Fulton’s southern property boundary, and then continuing south in the Consensus Corridor to the proposed Bobwhite substation; and that is subject to the Conditions of Certification that were entered into the hearing record as DEP Exhibit 8; and that is subject to the additional conditions agreed to by FPL and cited in paragraphs 161 through 163, and 183, of this Recommended Order; and that incorporates the terms set forth as paragraphs 5A through 5D of the Settlement Agreement entered into the record as FPL Exhibit 91, or comparable terms that provide for the environmental mitigation described therein, as conditions of this certification. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2008.
Findings Of Fact David F. Ramsey, Respondent, is a registered professional engineer holding registration No. 15307 and a registered land surveyor holding registration No. 2545 and at all times relevant hereto he was so registered. In April 1974 Respondent was President and qualifying professional engineer for Ramsey and Associates, Inc. , the engineering firm retained to prepare plans and specifications for a mobile home park known as Heritage Village. Approved financing for this project was near expiration date and the plans had not been approved by Indian River County officials. Before the plans for the sewage treatment plant and percolation pond associated therewith could he approved, a subsoil percolation test was required. On April 24, 1974, Respondent, in company with Larry Brown, General Manager of Brown Testing Laboratory, a wholly owned subsidiary of Ramsey and Associates, Inc., proceeded to the site of the Heritage Village project. There five test holes were dug to obtain subsoil conditions and prepare Subdivision Analysis Form (Exhibit l) for submission to Indian River County so the plans could be approved. No hole was dug deeper than 3.2 feet. Brown testified only a posthole digger was available for digging while Respondent recalled a hand auger also being available. Since Brown did the digging, his memory may be the better. During the procedure, Respondent took notes as the holes were excavated. Hardpan was found 2-1/2 to 3 feet below the surface, but the thickness of this hardpan was not ascertained. No water was put in the holes to ascertain the percolation rate for the subsoil. After the testing was completed, Respondent and Brown retired to the Holiday Inn for lunch where Respondent prepared page 4 of Exhibit 1, which is titled "Survey of Subsoil Conditions". Thereon for the 5 holes reported he included the percolation time for water in the test holes to drop one inch. These figures were estimated by Respondent based upon the type of soil observed in the holes. These figures were certified by Respondent to be representative of existing subsoil conditions at the time the test was made. It is this certification, which was submitted to Indian River County to get the plans approved, which forms the basis for the charge here under consideration. While Respondent was under investigation, and after being fully advised of his rights, he told an investigator that he had estimated the percolation rates because no water was available in the vicinity and submission of the subsoil report was urgent due to the financing deadline. In his defense, Respondent did not deny the percolation figures submitted on Exhibit 1 were estimates rather than the measurements they purported to be, but contended that the percolation rates and subsoil conditions shown on Exhibit 1 accurately represent conditions as they existed. Evidence to support this position was included in the tests conducted and reported in Exhibit 3. Standard procedure for taking percolation tests is to fill the hole with water and observe the time it takes the water level to drop three inches. It is also standard to dig a 6-foot deep hole. Here it was testified that hardpan prevented the hole depth from exceeding 3.2 feet. However, when a proper test was made shortly before the hearing, no difficulty was encountered getting to a depth of 6 feet using a hand auger. It is difficult to dig deeper than about 3 feet with a posthole digger.
The Issue The issues to be resolved in this proceeding are: whether the Governor and Cabinet, sitting as the Siting Board, should approve the application of Progress Energy Florida (PEF) to certify and license the construction and operation of a 2200 megawatt (MW) (nominal) nuclear electrical generating facility and associated facilities, including electrical transmission lines; and, if so, what conditions of certification should be imposed.
Findings Of Fact Background Florida Power Corporation, doing business as Progress Energy Florida, Inc. (PEF), provides electricity and related services to approximately 1.7 million customers in the state of Florida. PEF's retail service area spans 35 counties over about 20,000 square miles in central and west Florida. In Florida, PEF operates and maintains more than 43,600 miles of distribution and transmission lines that serve a population of more than 5 million people. PEF owns and operates a diverse mix of electrical generating units in Florida, including approximately 47 combustion turbines, 5 combined cycle units, 12 fossil units, and one nuclear unit at PEF's Crystal River Energy Complex (CREC). The CREC is located in northwest Citrus County approximately four miles west of U.S. Highway 19 on the Gulf of Mexico. There are five generating facilities within the CREC; four units are coal-fired and one is a nuclear unit. PEF considered locating new nuclear generating capacity at the CREC, but determined that would concentrate too much electrical generation at one site. PEF proposes to build and operate a two-unit nuclear- powered electrical generating facility in Levy County (LNP). Directly associated facilities include a heavy haul road used for construction (Levy County), two site access roads (Levy County), and cooling water intake and discharge pipelines (Levy and Citrus Counties). PEF also seeks certification of nine transmission corridors associated with eleven electrical transmission lines: Citrus 1 and 2 Transmission Lines — proposed LNP to proposed Citrus Substation, two 500-kV Transmission Lines (Levy and Citrus Counties), also referred to as the "LPC" Lines; Crystal River Transmission Line — proposed LND to existing CREC Switchyard, one 500-kV Transmission Line (Levy and Citrus Counties), also referred to as the "LCR" Line; Sumter Transmission Line — proposed LNP to proposed Central Florida South Substation, one 500-kV Transmission Line (Levy, Citrus, Marion, Sumter and Lake Counties and Municipalities of Wildwood and Leesburg), also referred to as the "LCFS" Line; Levy North Transmission Line — proposed LNP to existing 69-kV Inglis-High Springs Transmission Line, one 69-kV Transmission Line for LNP construction/administration (Levy County), also referred to as the "IS" Line; Levy South Transmission Line — proposed LNP to existing 69-kV Inglis-Ocala Transmission Line, one 69-kV Transmission Line for LNP construction/administration (Levy County and Town of Inglis), also referred to as the "IO" Line; Brookridge Transmission Line — existing CREC Switchyard to existing Brookridge Substation, one 230 kV Transmission Line (Citrus and Hernando Counties), also referred to as the "CB" Line; Brooksville West Transmission Line — existing Brookridge Substation to existing Brooksville West Substation, one 230-kV Transmission Line (Hernando County), also referred to as the "BBW" Line; Crystal River East 1 and 2 Transmission Lines — proposed Citrus Substation to existing Crystal River East Substation, two 230-kV Transmission Lines (Citrus County), also referred to as the "CCRE" Lines; and Polk-Hillsborough-Pinellas Transmission Line — existing Kathleen Substation to existing Lake Tarpon Substation, one 230-kV Transmission Line (Polk, Hillsborough and Pinellas Counties and municipalities of Tampa, Plant City and Oldsmar), also referred to as the "Kathleen" Line. Need for the Project The PSC issued its Final Order determining the need for the Project on August 12, 2008. The PSC found: "a need for Levy Units 1 and 2, taking into account the need for electric system reliability and integrity"; "a need for Levy Units 1 and 2, taking into account the need for fuel diversity"; "a need for Levy Units 1 and 2, taking into account the need for base-load generating capacity"; "a need for Levy Units 1 and 2, taking into account the need for adequate electricity at a reasonable cost"; "[t]here are no renewable energy sources and technologies or conservation measures taken by or reasonably available to PEF which might mitigate the need for Levy Units 1 and 2"; and "Levy Units 1 and 2 will provide the most cost-effective source of power." The PSC also found a need for the associated transmission lines. New transmission lines are required to interconnect and integrate the proposed plant into PEF's existing transmission grid and to reliably deliver bulk power to PEF's load centers. Load flow studies were conducted by PEF system planners to identify the appropriate transmission end- points and voltages. The proposed transmission lines in PEF's proposed corridors satisfy the need for transmission lines as determined by the PSC. Public Notice and Outreach PEF has engaged in extensive public outreach for the selection of the LNP site and for the transmission line corridors. With regard to the plant portion of the Project, PEF's outreach efforts have included communications with local community leaders, press releases, communications with state and federal legislators, dissemination of information to the general public and property owners in the vicinity of the plant via mailings and open houses, and participation in community and advisory groups. With regard to the electrical transmission line portion of the Project, public involvement has been key to the corridor selection process. PEF developed a Community Partnership for Energy Planning (CPEP) process to gain feedback from members of the community in a manner that would most effectively involve the community in the transmission line corridor selection process. Through the CPEP process, PEF established leadership teams in three geographic regions: Hillsborough, Pinellas, Pasco, and Polk Counties; Citrus, Hernando, and Levy Counties; and Lake, Marion, and Sumter Counties. The leadership teams identified and selected more than 100 community representatives to participate in regional Utility Search Conferences. The Utility Search Conferences involved intensive two-day discussions of local issues and the future of electricity supply in the region. The purpose of the conferences was to inform the participants about the Project, to gain public input, and to allow participants to nominate community members to become part of the Community Working Groups for the remainder of the Project. PEF formed the Community Working Groups to further study and refine the recommendations of the conferences as well as to provide ongoing input to PEF throughout the Project. PEF also held open houses in February and March 2008 to involve the public in the transmission line corridor selection process. PEF used newspaper advertisements, press releases, and direct mail letters to facilitate public awareness of the open houses. Over 2,900 people attended the open houses, and PEF received completed written questionnaires from 2,071 attendees. The goal of PEF's public outreach program (with regard to both the plant and transmission lines) was to provide information in a transparent manner to the public and to provide ample opportunity and many avenues for the public to provide input during all phases of the Project. In total, PEF has conducted over 40 public presentations and sent communications to more than 125,000 property owners and stakeholders regarding the Project. Many of PEF's outreach efforts have been beyond the efforts required by law. Pursuant to Section 403.5115(6), Florida Statutes, PEF provided direct notice by mail of the filing of the SCA to all landowners whose property and residences are located within: three miles of the proposed main site boundaries of the LNP; one-quarter mile of a transmission line corridor that only includes a transmission line as defined by Section 403.522(22), Florida Statutes; and (3) one-quarter mile for all other linear associated facilities extending away from the main site boundary. PEF timely submitted a list of the landowners and residences notified to DEP's Siting Coordination Office (SCO), as required by Section 403.5115(6)(b), Florida Statutes. PEF made copies of the SCA available at two of its offices and ten public libraries. In addition, PEF provided copies to all local governments and agencies within whose jurisdiction portions of the Project will be located. DEP made an electronic version of the document available on its website. On June 19, 2008, PEF published notice of the filing of the SCA in the Ocala Star-Banner, the Hernando Today, the Tampa Tribune, The Lakeland Ledger, The Villages Daily Sun, the Levy County Journal, the Orlando Sentinel, the Gainesville Sun, the Citrus County Chronicle, the Sumter County Times, the Hernando Times, and the North Pinellas Times, satisfying the requirements of Section 403.5115(1)(b), Florida Statutes, and Florida Administrative Code Rule 62-17.281(3). On December 18, 2008, PEF published notice of the certification hearing in the same newspapers, satisfying the requirements of Section 403.5115(1)(e), Florida Statutes, and Florida Administrative Code Rule 62-17.281(7). PEF published amended notices of the site certification hearing in the same newspapers on February 17, 2009. DEP also published notices in the Florida Administrative Weekly. All notices required by law were timely published and/or provided in accordance with Section 403.5115, Florida Statutes. Agency Reports and Stipulations Agency reports and proposed conditions of certification on the plant-related facilities of the Project were submitted to DEP by: (1) the PSC; (2) DCA; (3) SWFWMD; (4) Levy County; (5) FWC; (6) the Withlacoochee Regional Planning Council; and (7) DOT. All of these agencies either recommended approval of the Project or otherwise did not object to certification. Although Citrus County did not file an agency report, it recommended approval of the LNP in the prehearing stipulation of the parties. Affected state, regional, and local agencies reviewed the SCA and submitted to DEP reports concerning the impact of the transmission lines on matters within their respective jurisdictions and proposed conditions of certification, as required by Section 403.507(2), Florida Statutes. None of the agencies involved in the review process have recommended that the proposed electrical transmission line corridors be denied or modified. On September 25, 2008, DEP issued its written analysis on the transmission line portion of the Project, incorporating the reports of the reviewing agencies and proposing a compiled set of conditions of certification. The conditions of certification were subsequently revised to reflect agreed-upon language. DEP recommended that the PEF proposed transmission line corridors be certified subject to the conditions of certification. On January 12, 2009, DEP prepared a Staff Analysis Report (SAR) compiling all of the agency reports on the power plant, proposing conditions of certification, and making an overall recommendation. DEP recommended certification of the Project subject to conditions of certification. The conditions of certification attached to the SAR have been superseded by the Fourth Amended Conditions of Certification filed by DEP as DEP Exhibit 1 on March 23, 2009. PEF is committed to constructing the LNP in accord with these conditions. Plant and Associated Facilities2 Project Overview PEF's proposed nuclear-powered electric generating facility (the LNP) will be located in Levy County. The LNP site is east of U.S. Highway 19 and approximately four miles north of the Town of Inglis and the Levy-Citrus County border. The LNP site contains approximately 3,105 acres, with the two reactors and ancillary power production support facilities located near the center of the site. The majority of the LNP site is currently active silviculture and is unimproved. The proposed heavy haul road and pipelines will be located in corridors south of the LNP site. Two site access roads will tie into U.S. Highway 19 west of the site and proceed east to the main plant area. PEF also owns a second 2,000-acre tract contiguous with the southern boundary of the LNP site, which provides access to a water supply in the Cross Florida Barge Canal (CFBC) as well as containing the heavy haul road and electrical transmission line corridors that exit the LNP site. Project Description The LNP will include two 1,100 megawatt (MW) (nominal) generating units (LNP 1 and LNP 2) designed by Westinghouse Electric Company, LLC (Westinghouse). The reactor design has received an official design certification from the NRC and is referred to as the Westinghouse AP1000 Reactor (AP1000). The AP1000 is a standardized, advanced passive pressurized-water nuclear reactor. PEF proposes to place LNP 1 in commercial service by 2016 and LNP 2 in commercial service by 2017. In the AP1000, the reactor core heats water which flows through the reactor cooling system in the primary loop. The reactor coolant pump circulates water through the reactor core. A pressurizer is used to maintain a constant pressure in the primary loop. The heated water flows to the steam generator and through a combination of U-shaped tubes, transferring heat to a separate, independent closed-loop water system, or the secondary loop. Inside the steam generator, the water in the secondary loop boils and is separated in dryers which produce high quality steam. The reactor, the four coolant pumps, and the two steam generators are contained in the containment shield building for each unit. Within the shield building, a steel containment structure surrounds the reactor and steam generators. A passive cooling water tank, which will provide emergency cooling, sits in the top of the containment shield building. The steam in the secondary loop is routed to the adjacent turbine building where it goes into a high-pressure turbine and then three low pressure turbines. The steam produces the force to turn the turbines, which then turn the electrical generator. Electricity is then sent to the on-site switchyard for transmission. The steam exhausting from the turbines moves into the condenser where it comes into contact with the cold surfaces of the tubes in the condenser, which contain water circulating from the cooling tower. The steam condenses back to water. The condensed water is collected in the bottom of the condenser and pumped back into the steam generator. The cycle then repeats. Other components of the AP1000 design include an annex building which contains the main control room; a fuel handling area where new fuel is received and spent fuel is stored; and a diesel generator building. Two cooling towers, three stormwater runoff ponds, and one electrical transmission 500 kV switchyard serving both units are also to be located near the generating units. Each LNP unit will be equipped with a recirculating cooling water system, including a cooling tower, that supplies cooling water to remove heat from the main condensers. The cooling tower makeup water system supplies water to the cooling tower to replace water consumed as a result of evaporation, drift, and blowdown. The LNP's cooling water intake will be located on the CFBC. Cooling water will be conveyed to the LNP site via pipelines. The proposed corridor for the cooling water intake and wastewater discharge pipelines is approximately 13 miles long and 0.25 miles wide. The intake pipeline corridor extends south from the LNP site to the CFBC. The wastewater discharge corridor then turns westerly along the CFBC for six miles before turning south along the western side of an existing PEF transmission line and enters the CREC. As part of its pending application for an NPDES permit, PEF has proposed that LNP wastewater be released into the existing CREC discharge canal. Materials needed to construct the LNP will be delivered via: (1) U.S. Highway 19; and (2) a barge slip on the CFBC in conjunction with the heavy haul road for large components. The heavy haul road, to be used primarily during construction, will be co-located with the makeup and blowdown pipeline corridor south of the LNP site. Federally-Required Approvals The LNP is also subject to the construction and operation approval of the NRC. As part of the federal permitting process for nuclear power plants, PEF has submitted a Combined Operating License Application (COLA) to the NRC. PEF submitted the COLA for the LNP on July 30, 2008. The NRC's review is in progress, and a decision on the application is expected in late 2011. PEF has also requested a Limited Work Authorization (LWA) from the NRC. The LWA request covers the installation of a perimeter diaphragm wall and preliminary foundation work for the two units, and related buildings that are not nuclear safety-related items. An NRC-certified design for the AP1000 allows an applicant for NRC COL approval to avoid readdressing matters that the NRC has already considered when reviewing an individual COLA that uses that standard design. This approach is expected to provide more predictability and reduce the NRC's licensing review process. For PEF, the advantages of a standard design include the ability to apply lessons learned from other projects being constructed ahead of the LNP, as well as improved performance in cost and scheduling. PEF is seeking certification under the PPSA prior to completion of the NRC approval because state site certification will allow PEF to begin early site preparation (such as access roads) and will allow PEF to proceed to acquire property rights within the electrical transmission corridors. The NRC regulates radiological effluents and monitoring at nuclear power plants. The state of Florida does not have regulations specifically applicable to regulation of spent nuclear fuel. Under NRC regulations, nuclear power plants are required to have radiological environmental monitoring programs (REMPs). Part of the REMP is an offsite dose calculation manual (ODCM). The Florida Department of Health (FDOH), Bureau of Radiation Monitoring, performs much of the monitoring in the ODCM at nuclear power plants under an agreement with the NRC. See 42 U.S.C. § 2021(b); Florida Administrative Code Chapter 64E-5. The FDOH also monitors groundwater wells in the vicinity of a nuclear plant for numerous parameters, including radiological releases. In addition to the separate NRC approvals, PEF has filed applications with DEP for [a federally-required Prevention of Significant Deterioration (PSD) air construction permit under the federal Clean Air Act, a National Pollutant Discharge Elimination System (NPDES)] permit under the federal Clean Water Act, and (in accordance with 403.506(3), Florida Statutes) a state-required environmental resource permit (ERP) from DEP for construction of a new barge slip on the CFBC. DEP issued the final PSD air construction permit on February 20, 2009. DEP has not taken final agency action on the pending NPDES permit application. Federally-required permits issued by the DEP under the Clean Air Act and Clean Water Act are not subject to the PPSA. The PPSA provides that federal permits are reviewed and issued separately by the DEP, but in parallel with the PPSA process to the extent possible. Upon issuance, these federal permits will be incorporated into the conditions of certification. The separate DEP-issued ERP will also be incorporated by reference into the final site certification. Water Use The LNP has two primary needs for water: (1) saltwater to cool the steam condensers (circulating water); and (2) freshwater for power generation and component cooling (service water). Freshwater will be drawn from the upper Floridan aquifer. Saltwater will be supplied from the Gulf of Mexico via the CFBC. A circulating water system can be designed to use either freshwater or saltwater. Common design practice is to use the most abundant source; so saltwater was selected for the LNP. The service water system components for the LNP are established by Westinghouse for the AP1000 standard design and require freshwater. The service water system for the AP1000 reactor has been designed to provide an efficient means of cooling plant components with a relatively small demand for freshwater. Most of the water to be used at the LNP site will be needed for steam condenser cooling which will take place in two cooling towers; one for each unit. The source for cooling tower makeup water will be surface saline water withdrawn from the CFBC. Approximately 122 million gallons per day (mgd) will be withdrawn from the CFBC for cooling water needs. A new intake structure would be constructed on the canal bank at a site south of the LNP site and west of the Inglis Lock on the CFBC, approximately 6.5 miles inland from the Gulf of Mexico. Saltwater will be pumped from the CFBC and directed into the cooling tower basin. The circulating water system is a closed-cycle cooling system and is the primary heat sink for the plant during normal operation. Circulating water pumps direct water to the steam condenser to cool the steam after it passes through the main turbines. The heated saltwater is then returned to the cooling towers where it is cooled by air flow and returned to the cooling tower basin. The LNP recirculating cooling water will be cooled by induced draft, counter-flow, mechanical cooling towers. For each unit's cooling tower, there are 44 cooling tower cells, grouped into two banks of 22 cells each. Each of the cooling tower cells will be approximately 75-feet tall. The total length of each 22-cell cooling tower is approximately 1,200 feet. The LNP will have a continuous need to utilize cooling water. Most of the water loss in the cooling towers is a result of evaporation of the water being cooled in the cooling towers. A small amount of circulating water is lost from the cooling towers as liquid droplets entrained in the exhaust air steam. This is known as "drift." When water evaporates from the cooling tower, minerals and solids are left behind. As more water evaporates, the concentration of these materials increases. This concentration is controlled by continuously releasing and replenishing some water from the tower. Accordingly, both saltwater and freshwater are continuously discharged from the plant to help maintain proper water chemistry. This continuous release of water is called "blowdown" and, as proposed in PEF's pending NPDES application, it will be discharged to the discharge canal for the CREC and then into the Gulf of Mexico, a Class III marine water. The LNP will require up to 1.58 mgd, annual average, of freshwater. This freshwater will be used for plant operations, fire suppression, potable water needs, and demineralized water needs. Groundwater will be withdrawn from four supply wells at the south end of the PEF-owned property south of the LNP site. The AP1000 service water system requires freshwater for use in component cooling. The service water system provides cooling water for the nonsafety-related component cooling water heat exchangers. Demineralized water is processed to remove ionic impurities and dissolved oxygen and is used for plant operations that require pure water, primarily the feed water and condensate systems used in power production. When operational, the LNP site must be capable of supplying potable water to approximately 800 employees and visitors daily. Potable water will also be needed for onsite construction. The fire protection system will be capable of providing water to points throughout the plant where wet system fire suppression could be required. The fire suppression system is designed to supply water at a flow rate and pressure sufficient to satisfy the demand of automatic sprinkler systems and fire hoses for a minimum of 2 hours. Cooling Water Intake Structure The LNP cooling water intake structure (CWIS) will be located on the berm that forms the north side of the CFBC approximately 3 miles south of the LNP, downstream of the Inglis Lock. The CWIS will withdraw surface water into four intake pipelines (two for each nuclear unit) that will convey water to the cooling tower basins for use in the cooling towers. These 54-inch diameter pipelines will generally be buried to a minimum depth of five feet. The pipelines will cross over the Inglis Lock Bypass Channel located north of the CFBC on an approximately 33-foot-wide utility bridge. For each of the LNP units, the CWIS will contain three 50 percent capacity makeup pumps, each with a design flow rate of 23,800 gallons per minute (gpm). Two pumps will provide normal cooling tower makeup flow requirements for each unit. The third spare pump will be in standby mode and automatically start if one of the operating pumps shuts down for any reason. A dual-flow traveling screen upstream of each makeup pump will screen floating and suspended materials in the CFBC water. The screen opening will be 3/8-inch. The screens will be sized to ensure that the through-screen water velocity is no more than 0.5 feet per second (fps) to reduce the impingement and entrainment of aquatic life that could enter the pump bay. The velocity of the water in the intake bay upstream of the traveling screens (the approach velocity) will be about 0.25 fps. Upstream of the traveling screens will be trash racks (also referred to as bar racks). These are a series of steel bars (4 inches apart) to prevent large objects from entering the CWIS. Potential Impacts of Surface Water Intake Cooling water will be withdrawn via the CWIS from a section of the CFBC that extends approximately 7 miles from the Inglis Lock west to the Gulf of Mexico. Operation of the Inglis Lock was discontinued in 1999; the lock separates Lake Rousseau (to the east) from this section of the CFBC. This section of the CFBC has a continuous opening to the Gulf of Mexico. The CFBC bisects the Withlacoochee River, severing the original hydraulic connection between Lake Rousseau and the Lower Withlacoochee River. To maintain flow to the Lower Withlacoochee River which is north of the CFBC, the Inglis Lock Bypass Channel and associated Inglis Lock Spillway were built adjacent to the Inglis Lock (north of the CFBC). Flows in the CFBC are primarily a result of tides coming in and out from the Gulf of Mexico and, to a lesser extent, rainfall. Periodically, freshwater is released from Lake Rousseau into the CFBC via the Inglis Dam. Also, there is some groundwater seepage into the CFBC as well as minor leakage from the Inglis Lock. Residence time for water in the CFBC near the proposed CWIS is currently over 200 days; there is very little outflow. Waters in the CFBC downstream of the Inglis Lock vary in salinity seasonally, with tidal influences, and depending on freshwater releases from the Inglis Dam. On average, the salinity in the area of the CFBC where the intake structure is proposed to be located is approximately 10 parts per thousand (ppt). As the CFBC approaches the Gulf of Mexico, salinity increases, averaging over 20 ppt and as high as 30 ppt. The CFBC ranges from approximately 200-to-260 feet wide. There is vegetation along the banks, as well as riprap, the latter consisting of huge rocks to limit erosion. The upper end of this section of the CFBC has algal blooms during the summer and muddy, silty bottom conditions that limit biological activity. The CFBC does not have seagrass beds that serve as aquatic habitat, except downstream where it joins with the Gulf of Mexico. The CFBC does not serve as significant habitat for endangered fish species, such as the Gulf Sturgeon or Smalltooth Sawfish. Although freshwater and saltwater species may use the CFBC occasionally, it does not serve as significant spawning habitat for any migratory, sport, or commercial fish species. Pursuant to the proposed conditions of certification, pre- operational monitoring and sampling in the CFBC will be used to identify any changes in the use of that canal by such fish species. With regard to the remnant section of the Withlacoochee River between the Inglis Dam and the CFBC (Old Withlacoochee River, or OWR), the biota in the middle and lower reaches of that waterbody currently show the effects of variable salinity levels; these areas are characterized by organisms typically found in marine conditions. The upper reach of the OWR has species normally found in freshwater systems. Aquatic species in the OWR are affected by periodic releases from the Inglis Dam. The LNP CWIS hydraulic zone of influence on the CFBC extends about 5 miles to the west down the approximately 7-mile long CFBC. The hydraulic zone of influence defines the point at which the flow of the CFBC would be affected by the CWIS, under static conditions. In its biological analysis, PEF assumed that potential intake impacts would extend beyond this hydraulic zone of influence. After installation and operation of the LNP CWIS, the dominant forces affecting flow conditions in the CFBC will continue to be primarily tidal activity and releases from Lake Rousseau. The CFBC will become more saline. However, installation and operation of the LNP CWIS will improve flow conditions in the CFBC by adding consistent and very slow upstream movement of about 122 mgd. The LNP CWIS will cause the saline-freshwater transition zone to move up the remnant channel of the OWR, south of the CFBC. The increased salinity is not expected to affect the small enclave of freshwater organisms living in that upper segment of the OWR. Potential adverse impacts from a CWIS include entrainment (when organisms smaller than the screen openings enter the cooling water) and impingement (when organisms larger than the screen openings become trapped on the screen). Potential impacts of entrainment and impingement will be minimized because the LNP CWIS will utilize a closed-cycle recirculating cooling water system which will reduce the amount of cooling water required by approximately 90 percent; the through-screen velocity will be 0.5 fps or less; and the LNP will not disrupt thermal stratification in the CFBC. Under federal law, DEP will make the final determination of compliance with Section 316(b) of the Clean Water Act requirements in the NPDES permit. The LNP CWIS is not expected to pose a threat to threatened or endangered species or migratory, sport, or other fish species. Monitoring for fish species in the CFBC will be undertaken under the FWC's proposed conditions of certification to identify any actual impacts to such species and the need for any mitigation for such impacts. Locating the CWIS near the Inglis Lock on the CFBC will result in less entrainment and impingement impacts compared to potential locations closer to the mouth of the CFBC or in nearby off-shore waters. Proposed conditions of certification require PEF to submit a post-certification survey and monitoring plan for the CFBC and Withlacoochee River to assess actual impacts of the withdrawals for the LNP on these water bodies. If, after review of the annual reports required by these conditions by FWC, DEP, and SWFWMD, there is an indication of adverse impacts, PEF must submit a CFBC and/or Withlacoochee River mitigation plan to mitigate those impacts. As part of its pending NPDES permit application, PEF submitted a "316(b) Demonstration Study" to address compliance with intake standards applicable to the LNP CWIS. Final agency action on the NPDES permit application, including a determination of compliance with Section 316(b) regulations, has not been taken by DEP. Under 40 C.F.R., Subpart I, Sections 125.80-125.89, if pre- and post-operational monitoring demonstrates unacceptable adverse impacts associated with the CWIS, operational and technological improvements to the CWIS may be required. Under the proposed conditions of certification, the final NPDES permit for the LNP will be incorporated by reference into the conditions of certification. Operation of the CWIS is expected to have a negligible impact on saltwater intrusion in the area bounded to the south by the CFBC and to the north by the Lower Withlacoochee River. The waters of the CFBC are marine waters. There currently is stratification in the CFBC, with higher salinity along the bottom of the water column. The change in density of water in the CFBC as a result of the increased salinity due to the LNP's proposed water use in the CFBC is not expected to affect freshwater resources. The tide in the CFBC currently fluctuates 2-3 feet twice per day. The construction of the CFBC and the bisection of the Withlacoochee River have resulted in reduced freshwater flows in the lower portion of the Withlacoochee River north of the CFBC. There is no direct connection between the CFBC and the Lower Withlacoochee River (north of the CFBC). The flow in the By- pass Channel provides less freshwater from Lake Rousseau to the Withlacoochee River than historically flowed into the lower portion of the River. This has caused saltwater to move up the Lower Withlacoochee River, particularly during periods of low flow. SWFWMD has evaluated restoration of the River to its original condition, but has not advocated reconnection. Reconnection of the Withlacoochee River or downstream impoundment of the CFBC probably would not prevent the impacts of increased salinity in the Lower Withlacoochee River during periods of low freshwater flow. Although no agency is currently pursuing a project of this type, DEP has proposed a condition of certification to address future public projects for the maintenance, preservation, or enhancement of surface waters requiring modifications to the CFBC. Potential Impacts to Manatees Manatees use the Withlacoochee River and the CFBC year round, but primarily during the warmer months. The CFBC, including the area of the LNP intake, is not listed as critical habitat for manatees under the federal Endangered Species Act. Construction activities in the CFBC can take place in a manner reasonably likely to avoid adverse impacts to manatees. The FWC has proposed conditions of certification designed to protect manatees from adverse impacts of in-water construction through monitoring and mitigative measures. Compliance with these conditions will minimize impacts to manatees. The operation of the LNP cooling water intake structure (CWIS) is not likely to adversely impact manatees. The potential impacts of the LNP CWIS on manatees will be minimized by the system design and location. Additionally, DEP and FWC have proposed conditions of certification requiring PEF to submit a final CWIS plan for review by FWC prior to construction of the CWIS with regard to manatee safety issues. Potential impacts to manatees from barge traffic on the CFBC related to delivery of Project components and materials for the construction of the LNP is not expected to adversely impact manatees. FWC has proposed conditions of certification to protect manatees during in-water construction. Compliance with the proposed conditions of certification will minimize potential impacts to manatees. Impacts of Groundwater Withdrawals The LNP's proposed groundwater use meets all of the SWFWMD's water use criteria. To demonstrate that the proposed groundwater withdrawals associated with LNP operations will comply with the SWFWMD water use criteria, including not causing unacceptable adverse environmental impacts, PEF performed a groundwater modeling analysis using the SWFWMD's District-Wide Regulation Model 2 (DWRM2) groundwater flow model. The DWRM2 is an acceptable groundwater flow model for evaluating the effects of groundwater withdrawals. The DWRM2 modeling demonstrated that the proposed groundwater withdrawals would not lower surficial aquifer levels to the point of causing unacceptable adverse impacts to wetlands and other surface waters, or interfere with existing legal users. Groundwater pumping for the LNP is not expected to adversely impact Lake Rousseau, the Withlacoochee River, or other streams or springs in the Project area. Groundwater withdrawals for the LNP are likewise not expected to induce saline water intrusion, cause the spread of pollutants in the aquifer, adversely impact any offsite land uses, cause adverse impacts to wetland systems, or adversely impact any other nearby uses of the aquifer system. To confirm the values used in the groundwater flow model supporting the application, proposed certification conditions require that an aquifer performance testing plan be submitted by PEF, approved by the SWFWMD, and implemented. If leakance and transmissivity values derived from actual onsite well tests differ more than 20 percent from values determined through earlier modeling, PEF is required to revise its groundwater model to incorporate the aquifer test results and undertake further modeling. Updated groundwater modeling results will be used to determine whether alternative water supplies or additional mitigation will need to be implemented. To help ensure that the proposed groundwater use does not cause unacceptable adverse environmental impacts, SWFWMD and DEP recommended that conditions be included in the site certification requiring an environmental monitoring plan to evaluate the condition of surface waters and wetlands in areas that could potentially be affected by groundwater withdrawals. Monitoring will continue for a minimum of five years after groundwater withdrawals reach a quantity of 1.25 mgd on an annual average basis. Annual monitoring summaries will be submitted. If, after five years, this monitoring demonstrates that no adverse impacts of groundwater withdrawals are occurring or predicted, PEF may request that monitoring be discontinued. Groundwater withdrawals will be metered and reported to DEP and SWFWMD on a monthly basis. Proposed conditions of certification require periodic water quality sampling be performed on the withdrawn groundwater to ensure no adverse impacts to water quality. Proposed conditions also address ongoing monitoring and compliance by requiring a full compliance report every five years throughout the life of the LNP, to demonstrate continued reasonable assurance that the groundwater use is meeting all of the applicable substantive water use requirements set forth in SWFWMD rules. The SWFWMD has not established water reservations or minimum flows or levels for any waterbody in the vicinity of the LNP. Therefore, the use of water from the CFBC and from the ground will not violate any currently established water reservation or minimum flow or level. Fracture sets (also called solution channels) are small openings through which groundwater moves. Fracture sets are only an issue in groundwater flow if preferential flow paths develop near one of the solution channels. Preferential flow paths tend to develop near existing springs. There are no springs on the LNP site, and subsurface investigations did not reveal any evidence of solution channels under the site. PEF also proposes to withdraw groundwater as part of the dewatering needed for plant construction. PEF proposes to install an impervious diaphragm wall around and below the foundation excavations for each nuclear unit to minimize water flow into the construction site. It is anticipated that dewatering at each unit could last as much as two years. Additional construction dewatering will also be necessary in some locations for installation of the pipelines and other linear facilities. Naturally-occurring groundwater collected during dewatering and excavation activities will be directed into stormwater runoff ponds and allowed to filter back into the ground to recharge the surficial aquifer. Dewatering is expected to cause only a modest amount of drawdown of the surficial aquifer. Construction-related dewatering activities will be approved by DEP and SWFWMD on a post-certification basis after final construction designs are submitted. Potential Surface Water Discharge Impacts The LNP will have a combined wastewater discharge comprised of several wastewater streams. Blowdown from the cooling towers will comprise about 98 percent of the LNP wastewater. The blowdown will be combined with significantly smaller quantities of plant wastewaters, treated plant sanitary wastewater, and occasionally stormwater. LNP wastewaters consist of effluents from process equipment, floor drains, laboratory sample sinks, demineralized water treatment system effluent, and treated steam generator blowdown. Wastewaters will be processed before discharge. The treatment systems include oil separators (to separate oily wastes from the rest of the waste stream) and a wastewater retention basin (to settle out suspended particles). The combined LNP wastewater, as proposed by PEF in its pending NPDES permit application, will be piped to the CREC and released into the existing CREC discharge canal which flows into the Gulf of Mexico. The cooling tower blowdown discharges from the LNP will include saltwater blowdown from the plant recirculating cooling water system and freshwater blowdown from the service water cooling system; the vast majority of this will be saltwater blowdown from the plant recirculating cooling water system. The normal 2-unit recirculating water blowdown rate is expected to be 57,400 gallons per minute (gpm) or 81.4 mgd, and the maximum blowdown rate is expected to be about 59,000 gpm or 84.9 mgd. The 2-unit service water blowdown rate is expected to vary from about 130 gpm during normal operation, to a maximum of about 400 gpm. The CREC currently has two NPDES permits authorizing discharges to surface waters of the State. CREC Units 1, 2, and 3 are cooled with once-through cooling water from the CREC intake canal that is then discharged into the Gulf of Mexico via the existing CREC discharge canal. Once-through cooling water is cooling water that is released after condensing the steam, without being recycled in a cooling tower system. CREC Units 4 and 5 have cooling towers that receive make-up water from the CREC discharge canal and release blowdown into the discharge canal. The discharges for all five CREC units are released to the Gulf of Mexico through a single discharge canal at the CREC site. PEF has proposed to utilize the CREC discharge canal for the LNP discharge; however, the final location will be subject to approval as part of DEP's final agency action on PEF's pending application for an NPDES permit. The wastewater flow at the CREC is limited under the existing CREC NPDES permits to 1,898 mgd during the summer and 1,613 mgd during the winter. The expected day-to-day total wastewater flow from the LNP will be 83.4 mgd, with a conservative maximum total flow rate of 87.9 mgd. The proposed LNP discharge would be equivalent to 4-5 percent of the permitted discharge from the CREC. The design temperature of the LNP wastewater discharge is 89.1ºF, which is expected to be met more than 99.5 percent of the time. This LNP design temperature is cooler than the existing permitted temperature of the existing combined CREC discharge (96.5ºF). Even the expected worst case temperature of the LNP discharge (96.4ºF), will be cooler than the existing temperature limit applicable to CREC. With the addition of the LNP discharge, the CREC is expected to continue to meet its existing thermal permit limit. The addition of the LNP wastewater to the CREC discharge canal is not expected to significantly change the existing area of thermal impact associated with existing CREC discharges. Evaluation of the Project wastewater in this certification proceeding indicates that impacts to flora and fauna, including seagrasses and shellfish beds, will be minimized. PEF has committed to a condition of certification requiring the post-certification submittal of a surface water monitoring plan to DEP to ensure there will be no adverse impacts to seagrasses. The finding related to shellfish beds is supported by a letter from the Florida Department of Agriculture and Consumer Services to the DEP stating that "[r]eclassification of the shellfish harvesting areas will not be necessary if the Project is built as proposed." The LNP wastewater is projected to meet the limits defined under 10 C.F.R. Part 20. Evaluation of the LNP wastewater discharge in this certification proceeding indicates that impacts to surface water quality will be minimized. Adding the LNP discharge to the CREC discharge canal is not expected to have an adverse impact on manatees. The LNP discharge structure at the CREC is likewise not expected to cause adverse impacts to manatees that may be present in the CREC discharge canal. Evaluation of the LNP wastewater in this certification proceeding indicates that impacts to benthic invertebrates, fish, and other organisms in the Gulf of Mexico will be minimized. The discharge is not expected to have adverse impacts on endangered fish species. Proposed conditions of certification require PEF to submit a discharge monitoring plan to ensure that the addition of the LNP wastewater to the CREC discharge does not cause adverse impacts. If, after review of the annual reports required under these conditions by FWC, DEP, and SWFWMD, there is an indication of adverse impacts, PEF must submit a mitigation plan to address those impacts. DEP's final agency action on PEF's application for an NPDES permit for the LNP, if issued, will include final action on compliance with water quality standards and will be incorporated by reference into the conditions of certification. Surface Water Management System The LNP surface water management system consists of pipes and ditches that collect and convey stormwater from the plant area into onsite wet treatment ponds before discharge. Stormwater along the heavy haul road will be collected in roadside swales. The plant area will be raised approximately eight feet. Stormwater will drain from this area into three stormwater ponds. Any cross-flows from the plant site toward the raised areas will pass around the site through culverts or ditches. The stormwater ponds and swales are sized to treat stormwater releases to meet SWFWMD rules. In addition, all construction-related surface water management facilities will comply with SWFWMD's surface water management criteria. The design and proper construction and operation of the surface water management system will satisfy SWFWMD's water quantity and water quality criteria in Rules 40D-4.301 and 40D- 4.302. PEF has committed to a post-certification submittal of detailed stormwater design information to address floodplain impacts as required by section 4.7 ("Historic basin storage") of the SWFWMD Basis of Review for Environmental Resource Permit Applications (adopted in Rule 40D-4.091, which is incorporated by reference in Rule 62-330.200(3)(e)). Solid Waste Disposal There will be no onsite disposal of hazardous waste during construction of the LNP. All hazardous waste will be handled in accordance with applicable federal, state, and local regulations. Contractors will be responsible for having detailed procedures in place to handle hazardous waste. During operation, hazardous waste will be managed and disposed of in accordance with federal and state regulations under the federal Resource Conservation and Recovery Act. PEF has procedures in place for management and control of hazardous materials; such materials will be disposed of offsite through permitted facilities. All solid waste generated during construction will be disposed of at a permitted offsite landfill. There will be no onsite disposal of solid waste. Non-nuclear solid waste generated during operation of the LNP will be disposed of offsite at a permitted landfill. A proposed condition of certification precludes processing or disposal of solid waste onsite. Air Emissions, Controls, and Impacts The LNP is a nuclear-fueled power generating facility that will use uranium dioxide pellets in fuel rods. The LNP will also use a relatively small amount of diesel fuel in its emergency diesel generators, ancillary generators, and fire pump engines. Therefore, the LNP will not emit the typical types and quantities of air pollutants from fossil-fueled power generation such as sulfur dioxide, nitrogen oxides, particulates or carbon dioxide (CO2). The sources of air emissions at the LNP will include the two banks of mechanical draft cooling towers and diesel- fueled emergency power generators and fire pump engines. Air pollutants that will be emitted during normal facility operation will be limited to particulate matter (PM), both more than and less than 10 microns in diameter, which will be emitted from the low profile cooling towers. There will be a small amount of air emissions from the diesel-fueled emergency power generators and fire pump engines; however, these emissions are only expected to occur during the few hours per month when the engines are run for maintenance and testing purposes. There will be no other significant sources of air emissions from operation of the LNP. PM emissions from the draft cooling towers will occur as a result of the entrainment of a small amount of water, as small-diameter droplets, in the exhaust stream from the towers. Particulate matter, consisting of the naturally occurring dissolved solids that will be present in the cooling water, will be contained in these entrained droplets. The droplets and the associated suspended solid particulate matter are known as cooling tower "drift." The amount of cooling tower "drift" is controlled through the use of very high efficiency mist eliminators that will be in the cooling tower. The use of high efficiency mist eliminators on the LNP cooling towers is consistent with state and federal regulations that require the use of Best Available Control Technology to limit such air emissions. The LNP will be located in Levy County which is currently attaining all ambient air quality standards for all pollutants. The LNP will not have an adverse or discernible impact on ambient air quality at the LNP site, or at any location, for any regulated air pollutant. The LNP will not generate power by combusting any fuel. Therefore, there will be no measurable greenhouse gas emissions, including carbon dioxide, during normal plant operation. The estimated CO2 emissions from a natural gas-fired combined-cycle generating facility capable of generating the same amount of electricity as the LNP is approximately 6.4 million tons per year. For comparison, the estimated CO2 emissions from the LNP, which result from periodic testing of the facility's diesel-powered emergency equipment, is only 618 tons/year. Visible plumes from the cooling towers will remain very close to the cooling towers (within approximately 300 feet) under most meteorological conditions. The occurrence of visible vapor plumes at offsite locations is expected to be infrequent. The operation of the cooling towers is expected to have no significant or adverse impacts due to ground level fogging on any roadway or at offsite locations during plant operation. The maximum predicted offsite solids deposition rate from operation of the LNP cooling towers is six pounds per acre per month immediately adjacent to the nearest LNP property boundary. This is below the de minimis adverse impact threshold of nine pounds per acre per month published by the NRC. The rate of deposition is predicted to decrease rapidly and significantly with increasing distance from the plant. Operation of the LNP cooling towers is not expected to cause discernible impacts on any natural resources, including surface waters or wetlands. Noise Impacts of Construction and Operation The noise limits applicable to the LNP site are set by the Levy County Code of Ordinances. The noise limits defined by the County ordinance for the area surrounding the LNP site are 65 dBA from 7 a.m. to 10 p.m. and 55 dBA from 10 p.m. to 7 a.m. There are no other local, state, or federal noise regulations that apply to the plant. PEF conducted noise impact evaluations for construction and operation of the LNP. Ambient noise levels were measured at six locations around the LNP site. Noise levels were conservatively estimated by adding the composite average noise levels that would be generated by construction equipment during the loudest phases of construction. Equipment sound propagation factors were obtained from industry references. The noise model known as CADNA/A was used to predict noise levels at onsite and offsite locations, including the nearest residences for both construction and operation. The noise levels during construction activities and during normal maximum operation of the LNP plant site are projected to be below the Levy County noise limits for all hours at all offsite locations, including the locations of the nearest residences. Due to the large buffer surrounding the developed area of the site, and the relatively low noise levels associated with the LNP, there are not expected to be any significant or adverse noise impacts during construction or operation of the LNP. Wetlands and Terrestrial Ecology (Plant and Transmission Line Corridors) The proposed LNP site has been used for many decades for the production of pine. The clearing of native vegetation, furrowing, bedding, planting, and harvesting (primarily for pine) has altered the site from a natural Florida landscape into a monotypical landscape in both upland and wetland areas with reduced functional attributes. There are no open water bodies or streams on the LNP site. There are some flow-way connections between some of the wetlands, but they are not of the kind that will support long- term fish habitat or aquatic insect communities. Due to the silvicultural nature of the site and recent clearing, the ideal complement of biodiversity on the LNP site is no longer present. The predominant wildlife species are those that tolerate a mono-specific pine tree habitat, such as deer, turkey, and wild hogs. While pre-application surveys indicate that protected species occur at and in the vicinity of the LNP site, several of Florida's listed species are not likely to extensively use the LNP site. Impacts to State-listed and important wildlife species that have been documented or may occur on the LNP site and adjacent uplands will be further minimized under the proposed conditions of certification, including pre-construction wildlife surveys and consultation with FWC on the results and needed measures to avoid and mitigate such impacts. Historically, the 3,105-acre LNP site was dominated by forested cypress wetland systems. However, over the last century or more, those have been harvested and allowed to re- grow, so that many of the wetlands are no longer dominated by cypress trees. Today, most of the forested wetland systems in the footprint of development have been cleared of trees. The anticipated maximum wetland impacts for the entire Project, including the impacts from associated facilities and electrical transmission lines, are estimated to be 765 acres. These impacts are estimated to be: 13.3 acres of open water; 638.4 acres of forested wetlands; and 113.0 acres of herbaceous wetlands. Approximately one-half of the wetland impacts are expected to occur on the LNP site and one-half are expected to occur offsite. The Project's 765-acre wetland impact is a conservative estimate, including long-term and short-term impacts that are the result of direct dredging and filling as well as temporary disturbance. It is likely that the actual impact will decrease as the routing of facilities is refined within the electrical transmission and other corridors and on the LNP site. Based on these anticipated wetland impacts and the functions being provided by these wetlands, PEF calculated the proposed maximum wetland functional loss for the LNP to be 410.9 functional units, as determined under Florida's Uniform Mitigation Assessment Methodology (UMAM) contained in Rule Chapter 62-345. The UMAM scoring indicates that, on average, the wetlands being impacted have approximately one-half of the functional ecological value of an ideal wetland system. To comply with the applicable SWFWMD ERP rules under the PPSA process, PEF must offset the wetland impacts caused by the construction and operation of the LNP, associated transmission lines, roads, and pipelines. PEF submitted to DEP a Wetlands Mitigation Plan for the Progress Energy Levy Nuclear Plant and Associated Transmission Lines (WMP). A primary value of the WMP is an overall increase in ecological function provided across several thousand acres in a regionally-significant location. This regional landscape-level ecosystem benefit substantially augments the value of local-scale mitigation activities. The proposed mitigation for the LNP will potentially achieve greater offset of wetland impacts from a regional perspective and is expected to provide significant long-term ecosystem benefit. The WMP identifies a series of possible scenarios from which the appropriate and ultimate mitigation can be derived. Because impacts are still being refined as corridors are narrowed into actual routes, the information in the WMP is designed to demonstrate that there is available and desirable mitigation to affect the final degree of wetlands impacts, once calculated. The comprehensive mitigation plan, as described in the WMP, is an acceptable alternative to traditional "in-basin" mitigation. DEP conceptually approved this WMP with the understanding that more detailed information will be submitted when final routes are established and actual wetland impacts are known. The amount of mitigation PEF will undertake will be based on the amount of wetlands actually impacted. A condition of certification has been included to require submittal of refinements to the mitigation plan for DEP's approval following final certification. PEF looked at ways to reduce and eliminate wetland impacts at several levels, including site selection, routing of roadways, and commitments through discussions with agencies to further reduce impacts as transmission line routes are selected within the transmission corridors. The Project is designed to comply with SWFWMD ERP criteria in Rules 40D-4.301 and 4.302. There are not expected to be unacceptable secondary wetlands impacts due to the construction of the Project. Under SWFWMD rules, as long as a disturbance is at least 25 feet from a wetland, secondary impacts are deemed avoided. For the LNP site, unimpacted wetlands are dozens to thousands of feet away from Project development. Further, the rural and remote location of the facility, along with the high level of security associated with a nuclear facility (i.e., fencing, buffering, and reduced public access) makes causally-connected offsite development unlikely (with regard to the LNP site). The LNP will comply with the cumulative impact requirements of Section 373.414(8), Florida Statutes. The conceptual WMP is designed to be regionally significant and provides ecological benefits beyond the calculated UMAM functional value increase. For example, the WMP has the potential to connect the Goethe State Forest to the historic floodplain of the Withlacoochee River, which will maintain and enhance a large natural wildlife corridor. The LNP is not anticipated to adversely affect the value or functions provided to fish and wildlife and listed species, including any aquatic and wetland species, or other related-water resources. There are no documented listed aquatic or wetland-dependent species that might be adversely affected by construction at the plant site. Impacts to wetland dependent species will be further minimized under the proposed conditions of certification, including pre-construction wildlife surveys and consultation with FWC on the results. PEF has addressed all of the wildlife issues subject to the site certification process. The FWC has recommended certification, subject to conditions related to surveying of development areas and appropriate buffers for species prior to clearing, construction, and development to ensure appropriate relocation or mitigation opportunities and implementation of management activities to ensure the long-term well-being of the species. Project wetlands impacts are not expected to adversely affect the quality of receiving waters with respect to the applicable water quality criteria for those receiving waters, or adversely affect fishing or recreational values or marine productivity. Through implementation of the WMP, construction of the Project is not expected to adversely affect the current condition and relative value of the functions being performed by wetlands. Transportation The primary roadways in the vicinity of the LNP are U.S. Highway 19 (U.S. 19) and County Road 40 (C.R. 40). U.S. Highway 19 is a Florida DOT-maintained, four-lane arterial roadway west of the Project site. C.R. 40 is a Levy County- maintained, two-lane roadway approximately five miles to the south of the plant site. The Levy County Comprehensive Plan has adopted level of service (LOS) standards for roadways within Levy County. While LOS standards do not apply to temporary construction traffic, PEF evaluated the impacts of both LNP construction and operation traffic on adjacent roadways. This evaluation shows that future traffic levels with the addition of the Project construction and operation traffic are projected to be less than one-half the adopted LOS standards for U.S. 19 and C.R. 40. Roadway links during construction and operation of the LNP are projected to operate within adopted LOS standards. Socioeconomic Impacts and Benefits There is an approximate population of 4,700 persons within a five-mile radius of the LNP site. This equates to a population density of approximately 60 people per square mile. The closest towns to the LNP site are Inglis and Yankeetown, which are located approximately 4.1 miles and 8.0 miles southwest of the LNP site, respectively. The total cost of the LNP, including the proposed electrical transmission lines, is approximately $17 billion. The LNP construction workforce is expected to peak at approximately 3,300 workers in 2014. The operation workforce will consist of approximately 800 employees, with an additional 800 workers needed every 18 months for between 20 and 30 days to refuel the facility. PEF sees retention rate benefits when hiring locally and would like to employ the local workforce for construction and operation of the LNP. PEF has programs in place to train local residents to become part of the future workforce for the LNP. These programs focus on both construction and operation personnel and include programs or potential programs at Bronson High School, Chiefland High School, Dixie County High School, the Withlacoochee Technical Institute, and Santa Fe Community College. PEF is also working in partnership with Dunnellon High School (which draws students from Levy, Citrus, and Marion Counties) on a Power Academy to prepare students for the construction and operation of the LNP. PEF has a successful nuclear engineering program partnership with the University of Florida to train both nuclear engineers and plant operators, including the use of a first-of-its-kind digital training simulator. PEF has provided grants to modernize the nuclear facilities at the University of Florida. In 2005, there were approximately 395,000 workers in the region (defined as a 50-mile radius around the LNP, including Levy, Citrus, Marion, Alachua, Dixie, Gilchrist, Hernando, and Sumter Counties). Specific to construction of a nuclear power plant, there were 4,900 heavy construction workers in the region in 2006. It is probable that more of these 4,900 workers will be available due to rising unemployment rates across the region. Unemployment rates for the three counties immediately surrounding the LNP site have risen from around four percent in 2005 to eight percent in late 2008. There is sufficient housing available in the region to accommodate both LNP construction and operation employees. Construction of the LNP is not expected to significantly increase the number of pupils in the surrounding school systems. The school systems in the region of the LNP will be able to accommodate the increased number of pupils as a result of LNP operations workers and their families. Public services and facilities in the region of the LNP are sufficient to absorb any incremental population growth associated with construction and operation workers and their families. Construction of the LNP will have little, if any, impact on recreational facilities and uses in the area around the LNP site in Levy and Citrus Counties. During LNP operation, recreational facilities and uses will not be impacted. There are no officially-designated landmarks within five miles of the LNP site. The peak construction workforce in 2014 will result in approximately $152 million in annual earnings. Construction earnings in other years will also be substantial. In addition to jobs and earnings, the construction of the LNP will contribute an estimated $263 million annually to the regional economy via direct, indirect, and induced goods and services. The direct social and economic impacts of the LNP operation are expected to include approximately 800 direct jobs; 1,100 indirect or induced jobs; and associated increases in sales, property tax, and output revenues. These operations workers are expected to generate over $53 million in annual payroll. The LNP overall is expected to contribute nearly $521 million annually to the regional economy via direct, indirect, and induced goods and services. Local property tax collections will begin when Unit 1 is brought on-line, resulting in approximately $63 million in tax revenue to Levy County in the first year of operation. Annual property tax collections in Levy County of approximately $18 million are projected to increase by $104 million once both LNP units are operational. Archaeological and Historic Sites Construction and operation of the LNP will not adversely impact archaeologically significant sites or historic standing structures. The Project complies with all federal and state standards for identification and protection of archaeological sites. Field surveys of the plant site, the corridor extending south to the CFBC, and the pipeline corridor to the CREC did not reveal any archaeological sites or historic standing structures eligible for listing in the National Register of Historic Places (NRHP). The Florida State Historic Preservation Officer (SHPO) concurred with PEF's survey methodology and the determination that no sites are NRHP- eligible. PEF has guidelines designed to protect historic sites, landmarks, artifacts, and archaeological sites in the event of an inadvertent discovery. The Florida SHPO has concurred with PEF's approach to protect inadvertent discoveries during land-disturbing activities. Land Use PEF filed applications with Levy County for a comprehensive plan amendment and special exception zoning approval for the LNP. Those applications were approved and are now final. The majority of the existing land use on the LNP site is silviculture, and the property is unimproved. The primary existing land use of the property to the south of the LNP, where the heavy haul road, water pipelines, and other facilities will be located, is likewise silviculture and otherwise unimproved. The properties along the blowdown pipeline corridor to the CREC are primarily vacant and largely unimproved. The nearest residence to the LNP is approximately 1.5 miles to the northwest of the power block generating facilities, measured from the edge of the nearest power block to the residence. The electrical generating facilities are designed with a minimum 1,000-foot setback from the property line of any property not under the control of PEF. A natural 100-foot vegetative buffer is required to be maintained around the LNP's perimeter where the adjacent property is not under PEF's control. Given the setbacks, the perimeter vegetation, and the 250-foot maximum height limitation under Levy County's special exception for the LNP, the physical structures at the LNP site will not be visible from surrounding properties at ground level. The location of the LNP is consistent with the existing and future land uses surrounding the site. The cooling water blowdown pipelines are located to have the least impact on the existing land uses in the area. The LNP will have little impact on land uses in the vicinity. The LNP is consistent with the Levy County Comprehensive Plan and land development regulations (LDRs), the Strategic Regional Policy Plan of the Withlacoochee Regional Planning Council, and the State Comprehensive Plan contained in Chapter 187, Florida Statutes. Electrical Transmission Lines Project Description Generally, the purpose of electrical transmission lines is to transmit large amounts of electricity from a generating facility to one or more substations. Transmission lines operate at voltages above 69 kilovolts (kV). Bulk power, generally operating at 230-kV or 500-kV, is transferred from the generating plant to the substation. At the substation, the voltage of the electricity is changed through transformers and other electrical equipment for further transportation or distribution directly to customers. PEF is seeking certification of nine proposed corridors for transmission lines associated with the LNP. A proposed corridor is associated with each of the proposed transmission lines identified in Findings of Fact 182-189. All of the proposed transmission lines will directly support the construction and operation of the LNP. Corridor Selection Methodology PEF established a multi-disciplinary team to identify a corridor for each of the proposed transmission lines. The role of this team was to select a proposed corridor for certification for each line based on an evaluation of environmental, land use, socioeconomic, engineering, and cost considerations. The multi-disciplinary team was composed of experts in transmission line design, land use planning, system planning, real estate acquisition, corporate communications, and environmental disciplines as they relate to transmission lines. The multi-disciplinary team engaged in four major steps in this process. The first was to establish and define a project study area for each transmission line. The second step was to conduct regional screening and mapping. The third step was to select and evaluate candidate corridors using both quantitative and qualitative analysis. The fourth step was to select the proposed corridors and identify the boundaries of those corridors. Data collection was performed in connection with this effort from the databases of federal, state, regional, and local agencies and organizations, as well as from the public in a series of conferences and open houses described in Findings of Fact 8-11. A number of field studies, internal meetings, and individual and small group meetings were held with members of the public as a part of the process. In defining the project study area for each transmission line, the multi-disciplinary team considered the starting and ending points for the lines and other linear facilities in these areas. Within each study area, the multi-disciplinary team gathered regional screening data from a variety of sources to identify the different types of opportunities and potential constraints for siting a transmission line in the project study areas, such as various environmental and land use features, existing infrastructure, archeological and historical sites, roads, railroads, rivers, waterbodies, and similar features. The multi-disciplinary team evaluated each corridor using quantitative environmental, land use, and engineering criteria. Relative weights for each quantitative criterion were developed and validated with input from agency representatives and the public during the public outreach portion of the corridor selection process. The weights were applied to the quantitative values for the criteria for each candidate corridor segment and the scores were tabulated for all candidate corridors. The candidate corridors were then ranked in order from best to worst based on quantitative weighted scores. The high-ranking candidate corridors were then evaluated using predetermined qualitative criteria which do not lend themselves easily to quantification, such as the types of wetlands and vegetation present, safety, constructability considerations, and other similar considerations. Based on the quantitative and qualitative evaluation of the high-ranking candidate corridors, the multi-disciplinary team ultimately chose the nine proposed corridors. Once the proposed corridors were selected, the multi-disciplinary team refined the boundaries of each of the PEF proposed corridors. The team developed corridor boundaries of varying widths by narrowing the corridor to avoid siting constraints where practicable or widening the corridor to take advantage of siting opportunities. Transmission Line Design A transmission line generally consists of a steel or concrete structure, the conductor, which is attached to the structure by an insulator, and overhead groundwires used for lightning protection and communications for the protection and control systems located in the substation. Access roads and structure pads are also associated with transmission lines. The Project’s 230-kV and 69-kV transmission lines will be constructed using single-shaft tubular steel or spun concrete structures. The conductors will be attached to the structures with braced line post or V-string insulators. The braced line post arrangement is a compressed construction design which minimizes the amount of right-of-way needed. The V-string insulator design allows longer span lengths due to the increased strength of this assembly. Typical heights will range from 80 to 145 feet for the 230-kV structures and 60 to 90 feet for the 69-kV structures. The 500-kV transmission lines will be constructed using tubular steel H-frame or monopole structures. The conductors will be attached to the structures with V-string insulators which provide the necessary strength and minimize the amount of right-of-way needed. Structure heights will range from 110 to 195 feet. The span length between structures and the pole height will vary due to natural or man-made constraints such as wetlands, waterbodies, property boundaries, existing utility poles, utility lines, and roadways. The typical spans between structures supporting 230- kV transmission lines will range from approximately 500 to 700 feet for the braced line post structures and 700 to 1,400 feet for the V-string structures. The typical spans between structures supporting 69-kV transmission lines will range from approximately 250 to 600 feet. The typical spans between structures supporting 500-kV transmission lines will range from approximately 1,000 to 1,500 feet. Access roads and structure pads will be constructed only where necessary. When new roads are required, they will typically be 18 feet wide and unpaved, with the top elevation, two feet above the expected seasonal high water line. Generally, the existing ground will be leveled, a geotextile fabric will be installed, and compacted sand and gravel will be added to arrive at the desired road elevation. Culverts will be installed as required to maintain preconstruction waterflows. Structure pads will typically be 70 feet wide and 100 feet long and unpaved, with the top elevation, two feet above the expected seasonal high water line. The size of the structure pads will vary depending upon the heights of the structures supported and other site-specific factors. The designs for these access roads and structure pads have been used by PEF in the past and have been previously approved in Florida. Design Standards The transmission lines will be designed in compliance with all applicable design codes and standards. These include the National Electrical Safety Code, the standards of the North American Electrical Reliability Corporation, DEP's regulations on electric and magnetic fields, applicable local government requirements such as noise ordinances, and the DOT Utility Accommodation Manual. PEF's own internal design standards incorporate appropriate provisions or guidance from design codes and standards of the American Society of Civil Engineers, the Institute of Electrical and Electronics Engineers, and American Society of Testing Materials, the American National Standards Institute, and the American Concrete Institute. Transmission Line Construction PEF will work with the regulatory agencies and landowners to determine where the rights-of-way, transmission structures, access roads, and structure pads should be located. As rights-of-way are being selected, they will be surveyed to facilitate acquisition of the necessary property interests. After the right-of-way is established within the certified corridor, the initial phase of construction involves clearing the right-of-way. Where the proposed right-of-way is in uplands, the right-of-way clearing for the project will consist of vegetation and tree removal as necessary. Where the proposed right-of-way is in wetlands, vegetation will be cleared utilizing restrictive clearing techniques as necessary for specific sites. Restrictive wetlands clearing will be done by hand, with chainsaws or low ground-pressure shear or rotary machines, to reduce soil compaction and damage to vegetation. The cut material will be removed from the right-of-way utilizing either low ground-pressure equipment or temporary construction mats. Care will be taken to minimize rutting and disturbance of root mat. After the right-of-way is cleared, any necessary access roads and structure pads will be constructed. Existing access roads and structure pads will be used whenever practicable. Where a transmission line will be constructed adjacent to an existing transmission right-of-way, improvements to the associated access roads and paths may be made. Where adequate access roads or structure pads do not exist, new roads and pads will be constructed. The next phase of construction will involve the erection of the structures. All structures will be supported with engineered foundations. Tangent structure foundations will normally consist of either direct buried structures with concrete backfill or reinforced-concrete drilled piers. Structures may also utilize guys and anchors at angle and deadend structures to help support the load. Transmission structures are generally delivered to the site using semi-trucks with open trailers and are assembled onsite as close as possible to the foundation. Typically, the structures are framed with the structure arms and insulator assemblies while lying on the ground. During the assembly process, poles are maneuvered into place using cranes and other lifting equipment to facilitate connections. Once assembled, a crane is used to lift the structures for final placement on the foundation. After the structures are erected, conductor installation will commence. The process of installing conductors involves stringing a pilot line into each structure stringing block to form a continuous connection between stringing end points. This pilot line is then used to pull the conductor into position. The conductor is then tensioned to design specifications, transferred to the support clamp, and clipped into position. The operation is performed on all overhead ground wires and conductors. Typical equipment used in the conductor installation operation includes bucket trucks, wire pulling equipment, guard structures, wire reels, trailers, tensioners, and support vehicles. The final stage of construction will be right-of-way restoration which includes removal of all construction equipment and supplies, grading the right-of-way if needed, and planting or seeding of the disturbed area if needed. During all stages of construction, PEF will maintain traffic on any adjacent county, state, or federal roadways in compliance with DOT regulations. Sedimentation management techniques, including turbidity screens, temporary culverts, silt fences or staked hay bales, and the seeding or mulching of side slopes, will be utilized to minimize potential impacts to water quality from erosion and sedimentation. Corridor Descriptions The LNP will add approximately 185 miles of new 69- kV, 230-kV, and 500-kV transmission lines to be placed within nine proposed corridors. The proposed corridors provide significant opportunities for collocation with other linear facilities such as roads and transmission lines which provides the opportunity to reduce costs, the amount of new access road construction, impacts to wildlife habitat, and other impacts. The width of the proposed corridors varies along the routes to provide flexibility within the corridors to avoid impacts to existing developments, large wetland areas, and other features. After certification, and following the selection of rights-of- way, the boundaries of the corridors will be reduced to those of rights-of-way. The first proposed corridor is associated with the Citrus 1 and 2 lines. The Citrus lines are also referred to as the "LPC" transmission lines and the proposed corridor is referred to as the LPC corridor. The Citrus lines are two 500- kV transmission lines that will connect the LNP to the proposed Citrus Substation, which is not a facility for which PEF is seeking certification. The Citrus 1 and 2 lines will be located in Levy and Citrus Counties. This proposed corridor is approximately seven miles long and one mile wide. The LPC Corridor begins at the LNP site boundary and proceeds south on PEF-owned property south of the LNP site. Through the southern property, the LPC Corridor is collocated with the proposed Sumter and Crystal River 500-kV lines, the Levy South Administration 69-kV line, and is adjacent to the proposed LNP heavy haul road and water pipeline corridors. Continuing south, the LPC Corridor remains collocated with the Sumter and Crystal River lines as well as PEF's existing IO 69-kV line at some locations. The LPC corridor will cross C.R. 40, the CFBC and Inglis Island (which is wedged between the LWR and the CFBC), and will terminate at the proposed Citrus Substation located just north of PEF's existing Crystal River Central Florida transmission line in Citrus County. The second proposed corridor is associated with the Crystal River line, which is also referred to as the "LCR" transmission line and the corridor is referred to as the LCR Corridor. The Crystal River line is a 500-kV transmission line that connects the LNP to the existing CREC switchyard in Citrus County. The Crystal River line will be located within Levy and Citrus Counties. The LCR Corridor is approximately 14 miles long and one mile wide. It begins at the LNP site boundary and proceeds south on the PEF-owned property south of the LNP site. Through the southern property, the LCR corridor is collocated with the proposed Sumter and Citrus 1 & 2 500-kV lines, and the Levy South Administration 69-kV line, and is adjacent to the proposed LNP heavy haul road and water pipeline corridors. Continuing south, the corridor remains collocated with the Sumter and Citrus 1 & 2 lines as well as PEF's existing IO 69-kV line in some locations. The LCR Corridor will cross C.R. 40, the CFBC and Inglis Island, and will enter the existing PEF Crystal River to Central Florida transmission line right-of-way. At this point, the LCR Corridor turns west and follows the general alignment of the existing PEF Crystal River to Central Florida Transmission right-of-way into the CREC where it terminates at the CREC 500-kV switchyard. The third proposed corridor is associated with the Sumter line, which is also referred to as the "LCFS" transmission line. This corridor is referred to as the LCFS Corridor. The Sumter line is a 500-kV transmission line that will connect the LNP to the proposed Central Florida South Substation in Lake and Sumter Counties, which is not a facility for which PEF is seeking certification. The Sumter line will be located in Levy, Citrus, Marion, and Sumter Counties. The LCFS Corridor is approximately 59 miles long and ranges in width from approximately 1,000 feet to one mile wide. For most of its length, the 500-kV LCFS Corridor is collocated with the existing PEF transmission lines, except in the vicinity of the Central Florida South Substation, where it is collocated with the Florida Turnpike. The LCFS Corridor begins at the LNP site boundary and proceeds south on the PEF-owned property south of the LNP site. It will be collocated with the proposed Citrus 1 & 2 and Crystal River 500-kV lines and the Levy South Administration 69-kV line. The LCFS Corridor crosses C.R. 40, the CFBC and Inglis Island, and continues south until reaching the existing PEF Crystal River to Central Florida transmission line right-of-way. At that point, the LCFS Corridor turns east and follows the existing transmission line right-of-way through Citrus and Marion Counties for approximately 45 miles. The corridor turns southeast crossing into Sumter County and crosses S.R. 44 and I-75. The remaining five miles of the LCFS Corridor follows the general alignment of the Florida Turnpike to the southeast and terminates in the area of the proposed Central Florida Substation near Wildwood. The fourth proposed corridor is associated with the Crystal River East 1 & 2 lines, which are also called the "CCRE" transmission lines. This is the CCRE Corridor. The Crystal River East lines are two 230-kV transmission lines that will connect the proposed Citrus Substation to the existing Crystal River East Substation in Citrus County. The lines will be located entirely within Citrus County. The CCRE Corridor is approximately 2.7 miles in length and one mile wide. The west end of the north boundary of the corridor is approximately one- half mile west of U.S. 19 and runs east approximately one-half mile north of West Dunnellon Road (CR-488). The west end of the south boundary of the corridor starts approximately 1 mile west of U.S. 19 and runs east along the northern boundary of the existing PEF transmission right-of-way. At a point approximately 0.3 miles east of U.S. 19, the corridor shifts south approximately one-half mile and continues east for another mile. The corridor also includes five existing 115-kV, 230-kV and 500-kV transmission lines and the Crystal River East Substation. The fifth and sixth proposed corridors are associated with the Levy North and South lines, which are also referred to as the "IS" and "IO" transmission lines. The Levy North and South lines are 69-kV transmission lines required to supply power for the construction and administration of the LNP. These lines will be located entirely within Levy County, and are mostly located on property owned by PEF in the immediate vicinity of the proposed LNP. The IS Corridor is approximately 373 feet in length and 400 feet wide. The IO Corridor is approximately 4.5 miles in length and one mile wide. The IO Corridor will begin at the south boundary of the LNP site and extend south to encompass the existing 69-kV transmission line located south of C.R. 40 in Levy County. The IS Corridor will begin at the west boundary of the LNP site and extend west to encompass the existing 69-kV transmission line that is located parallel to and east of U.S. 19 in Levy County. The seventh proposed corridor is associated with the Brookridge line, which is also referred to as the "CB" transmission line. The corridor is referred to as the CB Corridor. The Brookridge line is a 230-kV transmission line that will connect the existing CREC to the existing Brookridge Substation in Hernando County. The Brookridge line will be located in Citrus and Hernando Counties. The overall length of the CB corridor is approximately 38 miles and ranges in width from approximately 1,000 feet to one mile. The corridor begins at the CREC switchyard and proceeds east towards the existing Crystal River East Substation then southeast to S.R. 44. The corridor collocates with existing transmission line rights-of- way. At S.R. 44, the corridor turns south, following the existing PEF 115-kV transmission right-of-way. Approximately one mile south of Centralia Road, the corridor turns east and ends at the existing Brookridge Substation. The eighth proposed corridor is associated with the Brooksville West line, which is also called the "BBW" transmission line. The corridor is referred to as the BBW Corridor. The Brooksville west line is a 230-kV transmission line that will connect the existing Brookridge Substation to the existing Brooksville West Substation in Hernando County. This line will be located entirely within Hernando County. The overall length of the BBW Corridor is approximately three miles and one-half mile wide. The BBW Corridor exits the Brookridge Substation, collocated with PEF's existing 500/230/115-kV transmission line right-of-way, and travels along Sunshine Grove Road to the south. It terminates at the Brooksville West Substation. The ninth and final proposed corridor is associated with the Kathleen line, which is also called the "PHP" transmission line. The corridor is referred to as the PHP Corridor. The Kathleen line is a 230-kV transmission line that will connect the existing Kathleen Substation in Polk County to the existing Lake Tarpon Substation in Pinellas County. The Kathleen line will be located in Polk, Hillsborough, and Pinellas Counties. The overall length of the PHP Corridor is approximately 50 miles, and it ranges in width from approximately 300 feet to 1000 feet. The corridor begins at the Kathleen Substation and travels west. It crosses U.S. 98 and turns south along the existing transmission line right-of-way to the Griffin Substation. At the Griffin Substation, the corridor turns west paralleling C.R. 582. The corridor crosses U.S. 301 and turns north and then west and crosses I-75, continuing northwest and following the existing transmission right-of-way, and then crosses I-275 and the Veteran's Expressway to the Lake Tarpon Substation. No alternate corridors were proposed for any of the nine proposed transmission line corridors. For each PEF- proposed transmission line corridor, the proposed corridor is the only corridor for the respective line that is proper for certification in this proceeding. For each of the proposed corridors, engineering features of interest, natural resource features, and land use features have been identified and depicted on maps, aerial images, and photographs, which have been utilized in the analysis of the corridors. Operational Safeguards The operational safeguards for each of the transmission lines proposed by PEF are technically sufficient for the public welfare and protection. Each transmission line will be designed, constructed, operated, and maintained in compliance with all applicable codes, standards, and industry guidelines, including: the National Electric Safety Code; the North American Electric Reliability Corporation; the American National Standards Institute; applicable local government requirements; the DOT Utility Accommodation Guide; and PEF's internal design standards, which incorporate appropriate provisions or guidance from design codes and standards of the American Society of Civil Engineers, the Institute of Electrical and Electronics Engineers, the American Society of Testing Materials, the American National Standards Institute, and the American Concrete Institute. Each of the transmission lines proposed by PEF will be constructed, operated, and maintained in compliance with the applicable standards which regulate the electric and magnetic fields associated with new transmission lines. Compliance with the electric and magnetic field requirements has been calculated for each of the configurations that may be utilized for the Project. The results were then compared to the requirements contained in DEP's Rule 62- 814.450(3). The maximum expected values from all configurations for the electric fields and for the magnetic fields are within the values set forth in the rule. The calculations were performed in accordance with the rule requirements, using the maximum voltage and current for each configuration. Operation of any of these transmission lines at maximum voltage and current is not a likely condition. At normal operating levels of voltage and current, the electric fields produced by the transmission lines will be less than calculated at the maximum operating conditions, and the magnetic fields produced will be about 50 percent less than calculated at the maximum operating conditions. The levels of electric and magnetic fields at the edge of the rights-of-way associated with the transmission lines are similar to levels that are experienced by exposure to common household appliances. Transmission lines can generate audible noise as a result of build-up of particles on the conductor. This is known as corona. During periods of fair weather, particulate matter can collect on the conductor causing low levels of audible noise. During rain events, the particles are washed off and replaced with water droplets on the conductor that create a condition that can result in slightly higher levels of audible noise. The noise levels experienced during rainfall events are temporary and masked by the sound of rain falling on vegetation and other surfaces, and the noise is reduced as soon as the water droplets evaporate from the conductor. The expected levels of noise have been calculated using an industry standard software program known as the Bonneville Power Administration Corona Field Effects Program. The calculations performed for each of the transmission lines demonstrate that the maximum audible noise levels at the edge of the right-of-way will be less than the noise levels from most rainfall events or conversational speech at a distance of five feet. The calculated noise levels are expected to comply with all applicable noise ordinances. The operation of the proposed transmission lines is expected to cause minimal interference with radio and television reception in the vicinity of the transmission lines. Radio and television interference can be produced by corona on transmission line conductors or as a result of faulty equipment. Based upon the studies that have been performed, it is not expected that significant interference will occur. Beginning on July 12, 2009, the Federal Communications Commission has directed all television station operators to convert their transmissions to digital format. Digital signals are unaffected by electric fields or weather disturbances. In the event any homeowner or business experiences abnormal interference as a result of the transmission lines, PEF will investigate the complaints and mitigate impacts appropriately. Part of the BBW Corridor has an existing natural gas pipeline and a proposed additional natural gas pipeline that will be operated by Florida Gas Transmission Company. Safety concerns will be addressed in a licensing agreement allowing the pipeline company to utilize the right-of-way. Such collocation is common throughout Florida. The licensing agreement will require that the pipeline company comply with all applicable safety requirements for pipeline operation and will require that the pipeline design be reviewed by an independent engineering company to ensure that the pipeline can be safely operated given the constraints of the design and the proximity of transmission lines. This will ensure that the pipeline can be safely operated near the transmission lines and the electric current. Compliance with Nonprocedural Standards of Agencies The construction, operation, and maintenance of each of the proposed transmission lines in the proposed corridors is expected to comply with the applicable nonprocedural requirements of agencies. The parties have agreed that the conditions of certification found in DEP Exhibit 1 are the applicable nonprocedural requirements of the state, regional, and local agencies with regulatory jurisdiction over the transmission lines. PEF has agreed to construct, operate, and maintain the transmission lines in the proposed corridors in compliance with the conditions of certification. No variances or exemptions from applicable state, regional, or local standards or ordinances have been requested or are needed for construction, operation, and maintenance of these transmission lines. Consistency with Local Government Comprehensive Plans and Land Development Regulations There are a number of different land uses within the nine proposed corridors ranging from open lands, recreational lands, mining and agricultural lands, public and conservation lands, commercial uses, and residential. The construction of the transmission lines in the respective proposed corridors is not expected to impact the existing land uses or change those land uses. The location of the transmission lines in the proposed corridors is appropriate from a land use perspective. The construction, operation, and maintenance of the transmission lines in the respective corridors are compatible with all types of existing land uses occurring in the vicinity of those corridors. Each of the proposed transmission lines will be constructed, operated, and maintained in the proposed corridors consistent with applicable provisions of local government comprehensive plans and land development regulations. After certification of the LNP, each proposed transmission line will be located and constructed established rights-of-way, including easements acquired after certification of the respective corridors. Construction of transmission lines on such established rights-of-way is excepted from the definition of "development" contained in Section 163.3164(6), Florida Statutes. To the extent that comprehensive plans or land development regulations of the local governments crossed by the transmission lines include provisions that are applicable to non-development activities, the transmission lines in each of the designated corridors will be consistent and in compliance with those requirements. Meet Electrical Energy Needs of the State In an Orderly, Timely and Reliable Fashion Each proposed transmission line will be constructed, operated, and maintained in the proposed corridor to meet the electrical energy needs of the state in an orderly, reliable, and timely fashion. The anticipated schedule for the transmission line portion of the Project calls for the permitting, licensing and engineering activities, right-of-way acquisition, and construction to be carried out such that the transmission lines are constructed and operating in 2015 in advance of certain construction and start-up activities for LNP Unit 1. The proposed corridors maximize collocation opportunities for the transmission lines, enabling the collocated transmission lines to be constructed in a more timely and efficient manner. PEF will make all practicable efforts to minimize the impacts to traffic from the proposed transmission lines. PEF will comply with conditions of certification proposed by DOT and local governments to facilitate the orderly construction, operation, and maintenance of each of the transmission lines in the proposed corridors. Reasonable Balance Between the Need and the Impacts Each of the transmission lines is essential to meet the need identified by the PSC. PEF has a long history of reliably constructing, operating, and maintaining similar transmission lines throughout Florida. Each of the transmission lines is designed to comply with stringent reliability standards such as the National Electrical Safety Code and the standards of the North American Electric Reliability Corporation. The construction, operation, and maintenance of the transmission lines in the proposed corridors will meet the need identified by the PSC. The PSC determined that there is a reliability need for additional base-load capacity by 2016. Levy Units 1 and 2 will add 2200 MW of capacity, and new transmission lines are necessary to accommodate this capacity on the electrical power system. The required transmission facilities include those necessary to connect the LNP to PEF's existing grid and to reliably integrate the additional capacity into the existing transmission system. PEF cannot meet the need identified by the PSC without these proposed transmission lines. PEF's proposed corridors were chosen using a multidisciplinary team of experts to minimize impacts on the environment. Each transmission line will be constructed, operated, and maintained in the designated corridor with minimal adverse environmental impacts. The corridor selection process involved regional screening to minimize inclusion of areas of ecological constraints. Each corridor maximizes utilization of previously disturbed areas, where possible. The corridor width has been selected for each corridor to provide flexibility for selection of the final right-of-way to provide the ability to avoid ecological resources within the corridor to the extent practicable. No adverse impacts to air quality are anticipated as a result of the construction or operation of the transmission lines. Each of the transmission lines will be constructed, operated, and maintained in the proposed corridor with minimal, if any, adverse impact to water quality. Each transmission line will be constructed, operated, and maintained in the proposed corridor with minimal adverse impact to fish and wildlife, including protected animal species. The presence of protected animal species was an important consideration during the corridor selection process, and each corridor avoids areas with known concentrations of protected species occurrences to the extent practicable. The agreed-upon conditions of certification require that preconstruction surveys be conducted, and the results will be submitted to the FWC for analysis. Mitigation, as appropriate, may be required. Each transmission line will be constructed, operated, and maintained in the proposed corridor with minimal adverse impact to water resources, including wetlands. Water resources, including wetlands, were an important consideration during the corridor selection process and were avoided to the extent practicable. Structures will not be constructed in major water bodies. The spans between structures will be varied to avoid wetland areas and other sensitive areas, where practicable. Herbaceous wetland communities, including marsh and wet prairie wetlands, can continue to grow underneath the proposed transmission lines. Best management practices will be utilized during construction to ensure that impacts to water bodies and other water resources are minimized. Each transmission line will be constructed, operated, and maintained in the proposed corridor with minimal adverse impacts to other natural resources, including protected plant species and wildlife habitat. The presence of protected plant species and wildlife habitat were important considerations during the corridor selection process and were avoided to the extent practicable. Wildlife habitat in the vicinity of each of the corridors with collocation opportunities has been altered from its natural state for construction and maintenance of the linear facility already there. This will minimize potential impacts. Minimize Adverse Effects Using Reasonable and Available Methods PEF will use reasonable and available methods during construction, operation, and maintenance of the transmission lines in the proposed corridors to minimize adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. Construction, operation, and maintenance of the transmission lines in the designated corridors will comply with the limits for electric and magnetic fields established by DEP in Rule Chapter 62-814 and by the National Electric Safety Code and related standards. In the corridor selection process, collocation opportunities were considered to be a significant criterion, and the corridors were chosen in a way that maximizes collocation with existing linear facilities. This is advantageous because existing linear facilities often provide existing access, and collocation can minimize the need for new access roads and structure pads and the need for new clearing, generally minimizing impacts. PEF will avoid wetlands and water bodies to the extent practicable by varying the length of the spans between structures. PEF will use restrictive clearing practices on forested wetlands, removing vegetation selectively. In cases in which fill is required, PEF will install culverts to maintain water movement. PEF will allow certain vegetation to re-grow, or re- vegetate, in the rights-of-way of the transmission lines following construction, which will maintain suitable habitat for certain listed species. Wetland impacts that cannot be avoided will be appropriately mitigated. Prior to final rights-of-way determination and the beginning clearing in the rights-of-way for the transmission lines, surveys for protected plant and animal species will be conducted to verify their presence or absence in the proposed transmission line right-of-way for each of the lines. In the event that protected plants or animals cannot be avoided, efforts will be made to relocate the individuals in consultation with the FWC and the United States Fish and Wildlife Service, or to provide appropriate mitigation in accordance with the conditions of certification. PEF has agreed to comply with the conditions of certification in the construction, operation, and maintenance of each of the transmission lines. The conditions require measures to eliminate or minimize potential impacts to the environment, including impacts to the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. Serve and Protect the Broad Interest of the Public The construction, operation, and maintenance of the transmission lines in the proposed corridors will serve and protect the broad interests of the public. The public's interest is served through the provision of safe, reliable, and cost-effective electric service. The transmission lines are essential for providing that service. The public outreach program carried out by PEF provided the public with an avenue to voice their concerns. Concerns expressed were considered in the selection process. The corridor selection process maximized collocation opportunities for the selection of each of the corridors, where practicable. By following existing linear features where possible, the corridors and the ultimate rights-of-way can conform to existing development patterns and minimize intrusions into surrounding areas. Collocation reduces costs and impacts. The existing land uses found within the corridors are compatible with each of the proposed transmission lines in part because the corridors are collocated with linear facilities to the extent feasible. The transmission lines that are proposed can coexist with the types of development that are found along each of the corridors. As a result of the process utilized by the multidisciplinary team, the corridors minimize the number of homes that may be affected and avoid public and conservation lands to the maximum degree practicable. The transmission lines will minimize the impacts on cultural and historical resources by avoiding those areas where practicable and by performing a preconstruction survey in consultation with DEP and the Division of Historical Resources to determine the appropriate action should such resources be found. Disruption to traffic during the construction of each of the transmission lines is expected to be minor. PEF will comply with conditions of certification proposed by DOT and local governments to ensure minimization of traffic impacts. Radio and television interference as a result of the operation of the transmission lines will be minimal, and any impacts will be addressed by PEF. The expected noise levels from the transmission lines will be similar to the noise levels resulting from rainfall events and conversation at five feet. The calculated noise levels will comply with all applicable noise ordinances and requirements. The electric and magnetic fields produced by the transmission lines will comply with the applicable standards established by the DEP. Southern Alliance for Clean Energy (SACE) Following the withdrawal of the other intervenors in this proceeding, SACE was the only remaining party opposing certification of the Project. In the prehearing stipulation of the parties, SACE appears to raise five basic issues: (a) there must be express conditions in the agency reports to address impacts to wetlands, fish, wildlife, water resources, and necessary mitigation should the Project not be completed; (b) adverse impacts to wetlands and water resources; (c) business risks of "significant delay, default or abandonment"; (d) risks to fish, marine wildlife, and vegetation; and (e) agency reports must address risks to water resources, wetlands, fish, marine wildlife, and vegetation. SACE did not offer the testimony of any witnesses or present any evidence in this proceeding on these or any other issues. With regard to SACE's first issue, SACE has failed to identify which of the reviewing agencies neglected to propose appropriate conditions or what additional conditions are necessary. In any event, the record shows that DEP, FWC, and SWFWMD all proposed extensive conditions in their agency reports related to protection of wetlands, fish, wildlife, water resources, and/or mitigation of Project-related impacts. With regard to wetlands mitigation, if the Project is not completed, PEF will perform mitigation necessary to compensate for wetlands actually impacted. See Finding of Fact 126. SACE's second contention is that the Project will cause adverse impacts to wetlands and water resources. As detailed in Findings of Fact 73, 115-131, 133-134, PEF has presented competent, substantial evidence that the LNP will not cause adverse impacts to wetlands or to water resources that are not fully offset by mitigation. SACE did not present any contrary evidence. Further, as indicated in Findings of Fact 124-126, 130, and 134, PEF has proposed a comprehensive wetlands mitigation plan that will offset any adverse impacts to wetlands caused by the construction of the LNP. SACE did not present any evidence that this mitigation plan, which has been conceptually approved by the DEP, is inadequate to protect wetlands or meet regulatory requirements. SACE's third contention is related to business risks of "significant delay, default or abandonment." These matters are not relevant under the PPSA criteria, Section 403.509(3), Florida Statutes, but are instead addressed by the PSC. A petition for a determination of need for a new nuclear plant must include a cost estimate, base revenue requirements, and information related to joint ownership discussions. See § 403.519(4)(a), Fla. Stat. The PSC has already determined that the Project is needed, specifically finding that "Levy Units 1 and 2 will provide adequate electricity at a reasonable cost." Under Section 403.519(4), Florida Statutes, the PSC is the "sole forum" for a determination of need. Reconsideration of factors already considered by the PSC in this proceeding is improper. Further, the record does not support SACE's contention regarding alleged business risks. PEF presented uncontroverted evidence that LNP Units 1 and 2 are on schedule to be in service in the 2016/2017 timeframe and that procurement activities have begun. See Finding of Fact 21. SACE's fourth issue relates to adverse impacts to fish, marine wildlife, and vegetation. As detailed in Findings of Fact 51, 56, 61, 62, 69–72, 88–92, and 131-133, PEF presented competent, substantial evidence that the LNP will not cause adverse impacts to fish, marine wildlife, or vegetation. SACE did not present any contrary evidence. Finally, SACE contends that the agency reports must address risks to water resources, wetlands, fish, marine wildlife, and vegetation. Again, SACE has failed to identify which agency reports failed to address these alleged risks. SACE likewise has not identified any specific regulatory requirement for such evaluations of environmental risks beyond the evaluations provided by the agencies. The record shows that DEP, FWC, SWFWMD, and Levy County all addressed risks to water resources, wetlands, fish, marine wildlife, and/or vegetation in their agency reports and proposed conditions of certification related thereto. Public Comment and Public Testimony Sworn oral public testimony was received from approximately 69 individuals and unsworn public comment was received from approximately 16 individuals during the portion of the final hearing devoted to that purpose. Many of the individuals who provided public testimony also submitted written comments. Three written comments were received from members of the public who did not attend one of the public comment sessions. Thirty hours were devoted to allowing members of the public to comment on the Project over six separate sessions. Members of the public testified both in favor of and in opposition to the Project. Several members of the public commented on the benefits of nuclear power in general and the economic benefits of the LNP specifically. Many others spoke in favor of the extensive public outreach conducted by PEF on the Project. Numerous members of the public spoke of PEF's history of being a good corporate neighbor. The individuals who testified in opposition to the Project raised a wide range of questions and concerns. Many of these concerns and questions are addressed by the evidence and are discussed by reference to the relevant Findings of Fact. However, several were outside the scope of the matters considered in this certification hearing. Several members of the public expressed concerns that the Project is not needed, is too costly, and should be deferred in favor of other energy alternatives. But the PSC already considered those issues in certifying a need for the Project. The PSC's determinations are binding, and those issues were not reconsidered in this certification hearing. Several members of the public expressed concerns related to radiological safety, storage of nuclear waste, and radioactive effluent contamination of groundwater via "fracture sets." Radiological issues raised by SACE were stricken because they were preempted by federal regulation under the Supremacy Clause of the United States Constitution. As a result, radiological safety issues were not considered in the certification hearing. The LNP must be approved by the NRC which regulates radiological safety of nuclear power plants. However, there was evidence that the Florida Department of Health monitors groundwater and other media in the vicinity of nuclear plants, and PEF's subsurface investigation did not reveal any evidence of fracture sets below the LNP site. See Finding of Fact 79. Some members of the public expressed concerns regarding potential infrastructure and lifestyle changes to the Town of Inglis. Specifically, members of the public raised concerns related to strain on local public services; traffic impacts; limits on development due to the LNP; and concerns that financial benefits will go only to Levy County and, more specifically, not the Town of Inglis. First, it should be noted that, along with other affected local governments, the Town of Inglis was provided a copy of PEF's nine-volume SCA on June 2, 2008. The Town of Inglis did not file a notice of intent to be a party to this proceeding pursuant to Section 403.508(3), Florida Statutes, and thus waived its right to be a party. In addition, the Town had the opportunity to submit an agency report or to propose conditions of certification pursuant to Section 403.507, Florida Statutes, but did not. As acknowledged in public testimony by one of the Town Council members, the Town of Inglis's Council is unanimously in favor of the LNP. Nonetheless, as detailed in Findings of Fact 143-146, PEF presented competent substantial evidence that public services and facilities in the region of the LNP (which includes the Town of Inglis) are sufficient to absorb any incremental population growth associated with construction and operation workers and their families. PEF also presented evidence that roadways in the vicinity will continue to operate at or above their adopted level of service capacities. See Findings of Fact 135-137. Further, there is no evidence that development will be restricted as a result of the LNP. Current limitations around the CREC related to increases in density are the result of Citrus County's Comprehensive Plan, not the CREC or state regulatory requirements. Finally, while significant tax revenues will go to Levy County, PEF presented evidence that the LNP's operation will contribute $521 million annually to the regional economy, which includes the Town of Inglis. See Finding of Fact 148. By way of comparison, although PEF's CREC is in Citrus County (and outside the Crystal River city limits), the Crystal River City Manager testified that PEF has been good for the Citrus County school system, has provided jobs for residents, and has been very helpful to efforts in the community. Other members of the public expressed concerns that the new jobs created by the LNP will not go to local residents. As indicated in Finding of Fact 141, PEF has and will continue to make efforts to train and employ local residents at the LNP. Other members of the public expressed concern that increased salinity in the CFBC would cause saltwater intrusion in the Lower Withlacoochee River. There is no connection between the CFBC and the Lower Withlacoochee River. While the LNP's withdrawals from the CFBC will increase salinity in the CFBC somewhat, it will not cause increased salinity in the Lower Withlacoochee River. See Findings of Fact 66-67. A member of the public expressed concern that PEF's proposed location for the CWIS would prevent future reconnection of the Withlacoochee River in an effort to provide more freshwater to the Lower Withlacoochee River.3 As detailed in Finding of Fact 68, options for reconnection of the Withlacoochee River have been evaluated by SWFWMD, but would not provide adequate increased freshwater flow to the Lower Withlacoochee River. Another issue raised during the public testimony sessions was the impact of cooling tower drift on vegetation surrounding the LNP. As indicated in Findings of Fact 103-104 and 110-111, PEF presented uncontroverted expert testimony that cooling tower drift will not adversely impact natural resources, including wetlands and surface waters. Several residents of Hernando County expressed concern that a portion of the BBW transmission line as proposed along Sunshine Grove Road is incompatible from a public safety standpoint with existing and proposed natural gas pipelines in this same area. PEF presented evidence, however, that this type of collocation of transmission lines and gas pipelines is commonplace throughout Florida. Further, it was not demonstrated that such collocation is prohibited under or contrary to applicable law or agency regulation. Some of these residents focused their concern on whether locating the BBW transmission line in proximity to a natural gas pipeline would be inconsistent with PEF's internal collocation guidelines, which these residents believe prohibit such collocation because an unsafe operating condition will result. As noted by Hernando County’s attorney and DEP's Siting Administrator, there is no basis in statute, ordinance, or rule to require PEF to comply with its internal guidelines. In any event, PEF presented evidence that the purpose of its internal collocation guidelines is to ensure the safety of persons involved in the construction and installation of a pipeline in proximity to an existing transmission line. Further, PEF is bound by the conditions of certification to comply with requirements of the National Electric Safety Code as they relate to induced currents that might affect a gas pipeline. See DEP Ex. 1, p. 76, Condition XLII(H). Other residents were concerned that construction of the BBW transmission line would be unsafe due to the presence of an existing natural gas pipeline. The conditions of certification require, however, that PEF comply with applicable federal Occupational Safety and Health Standards during construction of each of the transmission lines. The conditions of certification also require PEF to contact the Sunshine State One Call service to locate underground utilities prior to construction activities. Finally, after PEF selects its ultimate location for the BBW transmission line, Hernando County and other agencies will have the opportunity to review the proposed location and notify the DEP Siting Coordination Office if it believes that the construction of the transmission line within the selected right-of-way cannot be accomplished in accordance with the conditions of certification. See DEP Ex. 1, p. 65-66, Condition XXXV(A).
Conclusions For Progress Energy Florida: Douglas S. Roberts, Esquire Brooke E. Lewis, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Lawrence Curtin, Esquire Gigi Rollini, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301-1872 For the Department of Environmental Protection: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 For Levy County: Anne Bast Brown, Esquire Levy County Attorney 380 South Court Street Bronson, Florida 32621-6517 For Hillsborough County: Marva M. Taylor, Esquire Hillsborough County Attorney's Office 601 East Kennedy Boulevard, 27th Floor Tampa, Florida 33602-4156 For City of Tampa: Janice McLean, Esquire Office of the City Attorney Old City Hall, 5th Floor 315 East Kennedy Boulevard Tampa, Florida 33602-5211 For the Southern Alliance for Clean Energy: E. Leon Jacobs, Esquire Williams & Jacobs 1720 South Gadsden Street, Suite 201 Tallahassee, Florida 32301-5506
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order: Approving PEF's Application for Certification to build, operate, and maintain a two-unit nuclear powered electrical generating facility in Levy County, Florida, including a heavy haul road, site access roads, and cooling water intake and discharge pipelines, subject to the conditions of certification set forth in DEP Exhibit 1, as amended; and Approving PEF's Application for Certification to build, operate, and maintain each of the following electrical transmission line corridors as associated facilities, as described above and subject to the conditions of certification set forth in DEP Exhibit 1, as amended: Citrus 1 and 2 Transmission Lines, Crystal River Transmission Line, Sumter Transmission Line, Levy North Transmission Line, Levy South Transmission Line, Brookridge Transmission Line, Brooksville West Transmission Line, Crystal River East 1 and 2 Transmission Lines, and Polk-Hillsborough-Pinellas Transmission Line. DONE AND ENTERED this 15th day of May, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 15th day of May, 2009.
The Issue The issue in this case is whether Petitioner is entitled to the issuance of a septic tank permit.
Findings Of Fact Petitioner owns land located at 6765 Narcoosee Road in Orange County. He purchased the land in 1983, at which time it was undeveloped and zoned for agricultural use. On June 25, 1990, the Orange County Commission approved the rezoning of the land for industrial use. Petitioner wants to build a mini-warehouse and caretaker's residence on the land. The site is not served by central sewer. The nearest sewage system is a package plant located 0.38 miles north of the site. The package plant serves a mobile home park. Orange County policy forbids any connection to the mobile home park's sewage disposal system until the package plant is replaced by a lift station that would pump the wastewater to the closest central sewer line operated by the County. This point would be at Crossen Drive and Charlin Parkway, which is about 1 to 1 1/2 miles from Petitioner's land. The only other central sewer line in the vicinity is on Lee Vista Boulevard, but it is 1.1 miles west of Petitioner's land. In June, 1990, Petitioner's engineering consultant submitted a request for a permit to install two septic tanks on Petitioner's property. The capacity of the two septic tanks would be 1000 gallons with a drainfield of 417 square feet elevated at least 36 inches above grade. The site plan, which was noted as subject to change, showed one septic tank and drainfield located near the front of the property and the other in the center of the property between the two warehouse buildings. Representatives of the Orange County Health Department found several problems with the request. By letter dated July 3, 1990, the Orange County Health Department noted that, contrary to information contained in the application, the wet season water table was only about 12 inches, not 36-48 inches, from the bottom of the drainfield. Thus, the size of the required fill- pad would preclude locating the septic tank in the middle of the property. More relevant to the present case, the letter asks Petitioner to advise when the property was rezoned from agricultural to industrial. The letter concludes by advising that, if the Health Department determined that it was necessary to apply for a variance, Petitioner would have to submit a $150 fee. By letter dated July 17, 1990, Petitioner's engineer enclosed a check for $150 and requested a variance. By letter dated July 23, 1990, the Orange County Health Department returned the check and requested the additional information concerning the rezoning. By letter dated August 20, 1990, Petitioner's engineer again enclosed a check for $150 and requested a variance. On August 22, 1990, Petitioner executed an application for a variance from Chapter 10D-6 on the grounds of hardship. The request is for two 1000-gallon septic tanks. By letter dated September 26, 1990, Respondent acknowledged Petitioner's request for a variance from the requirements of Chapter 10D-6 and advised that the request had been placed on the agenda of the Variance Review Group, which was meeting on October 4, 1990. The Variance Review Group met and recommended that the variance be granted. However, by letter dated October 24, 1990, Respondent advised Petitioner that the request for variance was denied. The reason for the denial was that recent legislation prohibited septic tanks in areas rezoned from agricultural to industrial uses after July 5, 1989. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.) Section 381.272(9) provides in relevant part: No construction permit may be issued for an on-site sewage disposal system in any area zoned or used for industrial or manufacturing purposes, or its equivalent, where a publicly owned or investor-owned sewage treatment system is available, or where a likelihood exists that the system may receive toxic, hazardous, or industrial waste. In areas which are either zoned, rezoned, platted, or subdivided for industrial, manufacturing, or equivalent purposes after July 5, 1989, the department shall not authorize onsite sewage disposal system construction. The two sentences set forth in the preceding paragraph are not in conflict. The first sentence applies to all land. The second sentence applies a more stringent requirement to land first zoned for industrial or manufacturing uses after July 5, 1989. Petitioner's land was first zoned for industrial use after July 5, 1989. Thus, Respondent lacked the authority to authorize the use of a septic tank on Petitioner's land.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health Rehabilitative Services enter a final order denying Roy Rumpza's request to permit the installation of two septic tanks on this property. ENTERED this 21 day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21 day of June, 1991. COPIES FURNISHED: Charles G. Stephens Messer, Vickers, et al. Bayport Plaza, Suite 1040 6200 Courtney Campbell Cswy. Tampa, FL 33607 Sonia Nieves District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson St. South Tower, Suite 5827 Orlando, FL 32801 Linda K. Harris, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
