The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller's license.
Findings Of Fact Petitioner, Stanley Sarentino, Jr. (Sarentino) is the owner and president of the The A/C Guy, Inc. (The A/C Guy) an air-conditioning service business based in Pompano Beach, Florida. The A/C Guy was incorporated in 1996, and serves residential and business customers in Broward and Palm Beach Counties. Respondent Department of Agriculture and Consumer Services (the Department) is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with the provisions of the Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes (2000) (the Telemarketing Act). Sarentino has worked in the air-conditioning business in South Florida for over ten years. Both as an employee of other companies and since he formed The A/C Guy, Sarentino works exclusively as an air-conditioning mechanic. Sarentino has no expertise in, and has never been involved with, the daily running of the business, nor in the marketing of services, at the A/C Guy. Neither has Sarentino worked in the business side of any of the prior companies in which he was employed. Sarentino is assisted in managing The A/C Guy by his wife of 10 years. The Sarentinos have three children, and the family is well regarded in the community. Prior to the marriage, Sarentino's life was less exemplary. In 1991, Sarentino was charged with felony transportation of stolen stock certificates. Close in time to the stock charges, Sarentino was charged with unlawfully purchasing cocaine. Both incidents were disposed of by plea agreements which spared Sarentino a jail sentence. Since then, Sarentino has devoted himself to “turning his life around” by attending church, providing for his growing family, and otherwise occupying himself with lawful pursuits. Recently, Sarentino has made efforts to grow his small business. Those efforts included hiring John Frank Aiello, Jr. (Aiello) as full-time General Manager of The A/C Guy in the spring of 2001. Sarentino and Aiello came to believe that The A/C Guy had grown about as much as it could via word of mouth and print media advertising. They desired to expand the customer base for the business through telemarketing. Under the provisions of the Telemarketing Act, individuals who wish to have their business engage in telemarketing are required to be licensed (the Department). Aiello prepared a telemarketing license application for Sarentino in accordance with the instructions contained in the application package provided by the Department. Before commencing to prepare the application, Sarentino and Aiello carefully reviewed the licensing criteria. They paid special attention to the requirement that any criminal background be disclosed, and acted in good faith to disclose Sarentino’s history with as much precision as Sarentino’s 10-year-old memory would allow. The Department’s independent investigation corroborated that Sarentino had truthfully provided all requested information. Since his successful completion of probation for the decade-old incidents revealed on his telemarketing application, Sarentino has been a law abiding citizen. All applications for a telemarketer's license must be accompanied by a non-refundable $1500 processing fee. Applicants must also provide proof that they have paid the premium and have otherwise fulfilled the requirements to obtain a $50,000 bond from a private bonding company. The bond premium in this case was $1000.00. It is also necessary for applicants to provide extensive information about the business in whose name telemarketing will be conducted, along with information about individuals affiliated with the business, so that the Department may investigate their backgrounds for the public’s protection. Sarentino spent in excess of $350.00 in accounting fees for the preparation of financial statements required for the application. Prior to investing the time and incurring the expense associated with the application process, both of which are considerable, Sarentino carefully considered the question of whether he had a realistic chance to obtain a license. At the time he submitted his application, Sarentino reasonably believed, based upon the information provided by the Department itself, that his application would not be automatically rejected on account of his decade-old legal difficulties. After Sarentino’s application was submitted, Aiello, in his capacity as The A/G Guy general manager, had telephone conversations with the Department’s Regulatory Consultant Tom Kenny (Kenny) to follow-up on the status of the application. During the course of such conversations, Kenny revealed that the plea to the stock charge as well as the plea to the cocaine charge---each, by itself---would trigger the denial of the license application once the Department had independently confirmed that Sarentino had indeed truthfully disclosed the pleas. The evidence established and the Department conceded that there is an informal, unwritten practice enforced by Kenny's supervisor, James R. Kelly (Kelly), the Department’s Director of the Division of Consumer Services, that a plea of guilty to a felony charge, no matter what the felony, no matter how remote in time, no matter whether the applicant was rehabilitated or not will automatically result in the denial of a license application. The Department has no written rules, policies, or guidelines to which a citizen may refer in order to be apprised that the applications of individuals like Sarentino, and those similarly situated, are, in fact, dead on arrival. The Department's interpretation of the law is directly contrary to the discretionary language of the statute, which plainly does not foreclose all possibility that mitigating factors would be taken into account by Department officials in evaluating an applicant's criminal history. Sarentino has fulfilled all the statutory criteria for licensure. The Department would have granted the license were it not for its unwritten policy that the statute requires that any plea to a criminal charge mandates automatic denial.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered by the Department granting a commercial telephone seller's license to Stanley Sarentino, Jr. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 28th day of September, 2001. COPIES FURNISHED: James Curran, Esquire 633 Southeast Third Avenue Suite 201 Fort Lauderdale, Florida 33301 William N. Graham, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent committed an unlawful employment practice.
Findings Of Fact Respondent, American Cable Systems of Florida, Ltd., d/b/a Continental Cablevision of Broward County (Continental), is a supplier of cable television services. Petitioner, Daniel J. Cellucci (Cellucci), filed an application for employment as a Service Technician I with Continental on or about January 13, 1993. Cellucci gave the receptionist at Continental his completed application form, his resume, and letters of reference. Bernard Dorsett (Dorsett) and Richard Jacobi (Jacobi), both Supervisors of Technical Operations at Continental, shared the responsibility for interviewing applicants for the position of Service Technician I. Dorsett called Cellucci and set up an interview. Cellucci was interviewed by Dorsett and Jacobi on January 15, 1993. During the interview, Cellucci wore a back brace underneath a loose fitting shirt. Dorsett and Jacobi explained the requirements and the benefits of the position to Cellucci. It was standard practice of Continental to show all applicants a copy of the position description during the interview. Dorsett showed Cellucci a copy of the position description for a Service Technician I during the interview. The position description listed the following as essential job functions of a Service Tech I: Monitors customer's reception and radio frequency with test meters to ensure cable is in proper working condition. Replaces any or all parts of drop as necessary to resolve customer problems or leaks, back to the line extender. Makes necessary adjustments and repairs to equipment to resolve customer problems or leaks. Handles difficult or confrontational customer situations tactfully. The position description required that the applicant possess the following skills: Ability to lift and climb 70 pound ladders, ability to climb a pole and work at heights up to 25 feet, basic mathematics skills, good verbal and written communications skills. Needs tack and ability to handle difficult customers. Ability to crawl, bend, stoop, crouch. The 70 pound ladder, which is used by a Service Technician I throughout his workday, is transported to the job site on top of a service van. In order to remove the ladder from the top of the service van, the Service Technician I must lift the ladder from the top of the service van. The Service Technician I then carries the ladder to the location where the work is to be performed and puts the ladder in position. In addition to being able to lift a 70 pound ladder, a Service Technician I must be able to lift spools of cable which weigh from 25 to 50 pounds. Service Technician I's work alone. Being able to lift up to 70 pounds is an essential function of the job of a Service Technician I. Based on his past experience in the cable industry, Cellucci knew that he would have to be able to lift ladders which could weigh up to 70 pounds in order to carry out the functions of a Service Technician I. Sometime during the interview, Cellucci voluntarily advised Dorsett and Jacobi that he had a back problem and provided them with a letter dated January 4, 1993, from his treating physician, Dr. George Bonis. The letter stated, "Lifting is limited to 25 pounds at the present time and he should be able to change positions between standing, walking and sitting at will." At the time of the interview, Cellucci could lift more than 25 pounds; however he did not advise either Jacobi or Dorsett that he could lift more than 25 pounds at that time. Cellucci did advise them that he was undergoing physical therapy, that he was improving and that he expected the lifting restriction to be a temporary one. At the time of the interview Cellucci, Jacobi, and Dorsett, viewed Cellucci's lifting restrictions to be temporary. Neither Dorsett nor Jacobi perceived Cellucci's back injury or his lifting restrictions to be a disability. On January 30, 1993, Dr. Bonis discharged Cellucci. Cellucci was able to lift more than 70 pounds at the time he was discharged. Additionally, he was no longer required to wear the back brace which he had worn during his interview. He did not advise anyone at Continental that he no longer had a lifting restriction after he was discharged by Dr. Bonis. Cellucci was not hired because he could not meet the 70 pound lifting requirement. Cellucci's back injury does not limit one or more major life activities. When asked at hearing whether his disability prohibited him from doing any major life activities, Cellucci replied, "None whatsoever. In fact I work out on a day-to-day basis. I run every evening, I swim." In June of 1993, Cellucci became employed as a sales manager for Inter-Continental at a rate of pay of $17.00 per hour plus commissions. In November of 1993, Petitioner became a full-time student and became employed by Production Arts at a rate of pay of $10.00 per hour. In that job, Cellucci currently lifts objects which weigh up to 200 pounds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Daniel Cellucci's claim of handicap discrimination against American Cable Systems of Florida, Ltd., d/b/a Continental Cablevision of Broward County. DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1614 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Respondent's proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraph 1: The first part of the paragraph is accepted in substance. The second half of the paragraph is rejected as constituting a conclusion of law. Paragraphs 2-12: Accepted in substance. Paragraph 13: The first sentence is accepted in substance. The remainder of the paragraph is rejected as unnecessary. Paragraph 14: The first sentence is accepted in substance. The remainder of the paragraph is rejected as subordinate to the facts actually found. Paragraphs 15-17: Rejected as unnecessary. Paragraphs 18-31: Accepted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronald Renzy, Esquire Ronald Thomas Spann, Esquire 1600 Southeast 17th Causeway, Suite 414 Ft. Lauderdale, Florida 33316 William C. Thomas, III, Esquire 120 East Robinson Street Orlando, Florida 32801
The Issue The issue for determination in this proceeding is whether the corridor for the Seminole Plant-Keystone-JEA Firestone 230 kV Transmission Line proposed by the Applicants, Seminole Electric Cooperative, Inc. and Jacksonville Electric Authority, is proper for certification under the Transmission Line Siting Act, Sections 403.52-403.5365, Florida Statutes (1989 and Supp. 1990).
Findings Of Fact Procedural Matters Determination of Need. The determination of need for the SKF Transmission Line was made by the PSC pursuant to Section 403.537, Florida Statutes, by Order No. 22713, dated March 20, 1990, attached as Appendix A to this proposed Recommended Order. The PSC determined that the SKF Transmission Line was needed for several reasons. First, the proposed transmission line will improve the reliability of electrical service to customers of CEC by replacing the radial, or dead-end, 69 kV transmission line that presently serves the Riverview, Florahome and Keystone substations. The proposed transmission line will provide looped service to these existing substations and prevent the occurrence of a single contingency outage. If a single outage occurs at some point along the proposed transmission line, all of the substations can continue receiving power from one direction or the other. Secondly, the proposed SKF Transmission Line will improve the reliability of service to JEA's Firestone Substation by preventing future overloads and low voltage conditions on the JEA system. Finally, the proposed transmission line will improve the transfer capability of the SECI's transmission system by providing an interconnection with the JEA transmission system allowing SECI to purchase more economical generation capacity outside the State of Florida. The estimated economic benefit over the next 20 years to SECI's customers is $48.2 million and to JEA customers is $544,000. The PSC determined that the proposed transmission line was needed in service by 1994. Filing of Application and Notices. On September 7, 1990, the Applicants, SECI and JEA, filed with DER the Seminole Plant-Keystone-JEA Firestone 230 kV Transmission Line Application for Corridor Certification. Notices of the Application and the certification hearing were properly published in the Florida Administrative Weekly and in newspapers of general circulation within the counties to be crossed by the proposed transmission line corridor. No party properly filed an alternate corridor for consideration in this proceeding. Project Design As described in the Application, the Applicants propose a single 230 kV transmission line which will originate at the Seminole Plant in Putnam County and terminate at the JEA Firestone Substation in the City of Jacksonville/Duval County. The total length of the proposed transmission line corridor is approximately 70 miles. Approximately 35 miles of the proposed corridor is located along existing transmission line rights-of-way and the proposed transmission line will replace or be collocated with existing transmission lines within these rights-of-way. The majority of the remaining proposed corridor is located along major linear facilities such as S.R. 100, S.R. 21, and the proposed Branan Field-Chaffee Limited Access Road. A map of the proposed SKF Transmission Line corridor is shown in Appendix B to this Recommended Order. Between the Seminole Plant and the JEA Firestone Substation, the SKF Transmission Line will connect to four existing substations. In Putnam County, the proposed transmission line will connect to the Riverview and Florahome substations. In Clay County, the proposed transmission line will connect to the Keystone and Black Creek substations. SECI will be responsible for the construction, operation and maintenance of the proposed transmission line in Putnam County and Clay County. JEA will be responsible for the construction, operation and maintenance of the proposed transmission line in the City of Jacksonville/Duval County. Location of the Preferred Corridor, Existing Land Use and Cover Seminole Plant to Riverview Substation. The proposed transmission line corridor originates at the Seminole Plant and proceeds west along SECI's existing 230 kV transmission line right-of-way. Approximately two miles west of the Seminole Plant, the corridor turns south toward the Riverview Substation. In this section of the corridor, the developed land uses include the Seminole Plant and the Putnam County Landfill. Agricultural land uses include pasture and planted pine. Natural vegetative areas include some mixed swamp forest along the Moccasin Creek, cypress domes west of the Seminole Plant, and some sandhill. Surface water bodies in this portion of the corridor include Moccasin Creek, an unnamed pond and a tributary leading to the St. Johns River. Riverview to Florahome Substation. From the Riverview Substation, the proposed corridor generally heads west toward the Florahome substation following the existing CEC 69 kV transmission line right-of-way. The corridor widens near Bardin to include an existing SECI 230 kV transmission line right-of-way. Land uses in this portion of the corridor include primarily planted pine, pasture, and some low density residential. Vegetative communities include sandhill, pine plantation, and mixed swamp forest around the Etonia and Simms Creeks. Several small unnamed canals, ditches, ponds and streams are crossed by this portion of the corridor. Named water bodies crossed by the corridor in this area include Simms Creek and Etonia Creek. Florahome to Keystone Substation. The proposed transmission line corridor heads west and north from the Florahome Substation to the Keystone Substation. The corridor continues to follow the existing 69 kV transmission line right-of-way into the City of Keystone Heights. Pursuant to a Stipulation between the City of Keystone Heights and SECI, the proposed transmission line corridor will turn south from the existing 69 kV transmission line right-of-way on the east side of Commercial Circle and proceed to the Keystone Substation along S.R. 100. Developed land uses in the area of the Florahome Substation are sparse and are comprised of mostly pasture and low density residential. As the proposed corridor approaches the City of Keystone Heights, residential areas become more prevalent. Within the City of Keystone Heights the land uses are primarily institutional, and commercial services with sparse residential development. Natural vegetation in this part of the corridor includes sandhill and disturbed oak hammock. Water bodies crossed by the corridor in this area include small unnamed ponds, lakes, streams, and canals. Keystone to Black Creek Substation. From the Keystone Substation, the proposed transmission line corridor follows S.R. 21 north to the intersection of C.R. 215. At this point the corridor continues north and then east following the existing CEC 115 kV transmission line right-of-way to the Black Creek Substation. SECI will locate the SKF Transmission Line within the existing CEC 115 kV transmission line right-of-way. Land uses in this area of the corridor include some commercial/services near the City of Keystone Heights, industrial, such as the Gold Head Mine, Gold Head Branch State Park, the Camp Blanding military reservation along S.R. 21, and some residential areas near the community of Middleburg. The vegetative communities include primarily sandhill and pine plantation, with some mixed swamp forest near the Black Creek and its tributaries, and smaller areas of cypress domes and sand pine scrub. The corridor crosses several named water bodies in this area including a narrow portion of Brooklyn Lake adjacent to S.R. 21, Ates Creek, the South Fork of Black Creek, Bull Creek, Mill Creek, Dillaberry Branch, the North Fork of Black Creek and Grog Branch. Several smaller unnamed streams, ponds, canals, and tributaries associated with these water bodies are also crossed. Black Creek to JEA Firestone Substation. The proposed transmission line corridor proceeds north from the Black Creek Substation centered on the existing Branan Field Road and the proposed Branan Field-Chaffee Limited Access Road to a point directly west of the JEA Firestone Substation where the corridor turns to the east. The corridor heads east and intersects and follows an existing JEA 138 and 230 kV transmission line right-of-way to the JEA Firestone Substation. In this section of the corridor, the land uses include some residential areas to the north of the Black Creek Substation and along the edges of the existing transmission line right-of-way west of the JEA Firestone Substation. The corridor crosses areas of pine flatwoods, pine plantation, and sandhill. Wetland areas include some cypress domes and some mixed swamp forest near the north and south prong of the Double Branch River, and the Ortega River. Water bodies crossed by the corridor in this area include unnamed canals and ponds, the South and North Prong of the Double Branch, the Ortega River and several unnamed tributaries associated with these water bodies. Proposed Design, Construction and Maintenance of the SKF 230 kV Transmission Line SECI Structures. In Putnam County and Clay County, SECI will use one of five typical transmission line structures. In rural areas along the majority of the proposed transmission line corridor, SECI will use an H-frame transmission line structure. In more urbanized areas, either single pole vertical or delta transmission line structures may be used. Where it is feasible to locate distribution lines on the same structure with the transmission line, SECI will use a single pole vertical with distribution underbuilt structure. Where it is feasible to collocate the proposed transmission line with an existing transmission line or where it is necessary to double-circuit the proposed transmission line, SECI will use a single-pole, double-circuit transmission line structure. The span lengths between the transmission line structures will vary between 600 to 1,200 feet. Overhead ground wires will be attached to the top of each structure and may contain a fiber optic cable. The minimum clearance for the SECI portion of the transmission line will be 26 feet. JEA Structures. In the City of Jacksonville/Duval County, JEA will use a single pole vertical structure where new right-of-way is acquired. Where the proposed transmission line is collocated with the existing JEA 138 kV transmission line, the conductors will be located on the existing single pole vertical transmission line structures. The minimum clearance for the JEA portion of the proposed transmission line will be 22.5 feet. Right-of-Way Requirements for SECI and JEA. In Putnam County and Clay County where the proposed transmission line replaces the SECI 69 kV transmission line or is collocated with the CEC 115 kV transmission line, the proposed transmission line will be located in the existing 100-foot-wide right-of-way. Where the SECI portion of the transmission line is located adjacent to an existing road or railroad right-of-way, the right-of-way width may vary between 25 to 100 feet in width. In the City of Jacksonville/Duval County, the transmission line right-of-way may be up to 130 feet wide. Phases of Construction. The primary phases of construction for the SKF Transmission Line include surveying the right-of-way, right-of-way clearing, access road and structure pad construction, and structure erection and conductor stringing. The phases of construction will generally be the same for both the SECI and JEA portions of the proposed transmission line. Surveying. In the first phase of construction, the boundaries for new right-of-way within the proposed corridor will be determined and staked for clearing. The boundaries where new access roads and structure pads are required will also be determined. Right-of-Way Clearing. After surveying is completed, vegetation in the new right-of-way, and where necessary in the existing right-of-way, will be cleared. In upland areas, the right-of-way will be cleared to the ground level, leaving the existing root mat. In wetland areas, restrictive clearing, as defined in DER Condition of Certification S-2.B and SJRWMD Condition of Certification S-23 B.(1), will be used. (A compilation of the Conditions of Certification is attached hereto as Appendix C to this Recommended Order.) Access Road and Structure Pad Construction. Due to the location of the majority of the proposed transmission line along existing transmission line rights-of-way and roads, new access road and structure pad construction will be minimized. New access roads and structure pads will be required in areas where soft soil conditions do not support the weight of the equipment required to construct and maintain the proposed transmission line. Where access roads and structure pads are constructed, fill material will only be used when the existing soil cannot be properly compacted for construction. Structure Erection and Conductor Stringing. The transmission line structures will be erected using cranes and other support vehicles such as bulldozers, tractors and light vehicles. Foundations for the structures may be either native soil, crushed rock or, in the case of heavy line angles, concrete. After the structures have been erected, the conductors will be installed using various tension machines and cable pullers. Duration of Construction Phases. Each phase of construction along a typical mile of the transmission line will last two to five days. The construction time for the entire SKF Transmission Line will be approximately 18 months. Transmission Line Load Design. The SECI portion of the proposed transmission line is designed for a nominal voltage of 230 kV with a maximum current rating (MCR) of 2000 amperes. The JEA portion of the transmission line is also designed for a nominal voltage of 230 kV with a MCR of 1,677. Transmission Line and Right-of-Way Maintenance. Transmission line and right-of-way maintenance is typically the same for both the SECI and JEA portions of the transmission line. The transmission line will be patrolled approximately every two months. Repairs and maintenance to the transmission line, access roads and culverts will be performed at this time, if necessary. The right-of-way will be mowed approximately every two years. Where mowing is not feasible, herbicides will be used in accordance with DER Condition of Certification S-7 as set forth in Appendix C to this Recommended Order. Compliance with Codes and Engineering Standards. The proposed transmission line will be designed and constructed to meet the requirements of the National Electrical Safety Code (Ed. 1990), REA Transmission Line Design Guidelines, the Florida Department of Transportation Utility Accommodation Guide (May 1990), and Chapter 17-274, Florida Administrative Code. Materials used for the construction of the proposed transmission line will comply with the American National Standards Institute (ANSI), American Society of Testing Material (ASTM), and American Concrete Institute (ACI). Stipulations Concerning Transmission Line Design. The Applicants have agreed with various state, regional and local agencies regarding conditions of certification applicable to the construction and location of the proposed transmission line. All of the conditions of certification regarding the design or location of the proposed transmission line are encompassed within the ranges of design and location proposed in the Application. The Conditions of Certification affecting the construction and location of the SKF Transmission Line are included in Appendix C to this Recommended Order. Impacts of the SKF Transmission Line Upon the Public Impacts on Existing Land Uses. The SKF Transmission Line will have a minimal impact on existing land uses. Approximately 35 miles of the 70 mile corridor follows existing transmission line rights-of-way where the SKF Transmission Line will replace or be collocated with the existing transmission lines. Approximately 33 of the remaining 35 miles of the corridor parallel existing or proposed linear facilities; i.e., S.R. 100, S.R. 21, the Georgia Southern and Florida Railroad, Branan Field Road and the proposed Branan Field- Chaffee Limited Access Road. The use of existing transmission line rights-of- way and the paralleling of linear facilities minimizes disruption to existing land uses and minimizes the need for new access road construction. Additionally, other than some residential areas near the City of Keystone Heights and Middleburg, most of the corridor traverses undeveloped land and agricultural land. The Applicants have stipulated with the City of Keystone Heights and Clay County on Conditions of Certification for the location and construction of the transmission line in the City of Keystone Heights and surrounding area, and in the community of Middleburg. These Conditions of Certification are included in Appendix C to this Recommended Order. Construction Noise. Construction activities, such as right-of-way clearing, are minimized by locating the majority of the proposed corridor along existing transmission line rights-of-way. Construction activities will take place in short phases where the total time in any one area will be one to two weeks. Noise associated with construction activities is confined to machinery used intermittently during construction and will occur only during daylight hours. Electric Shock. The National Electrical Safety Code (NESC) sets standards for the installation, operation and maintenance of electric and communication facilities necessary to protect the safety of the public and operators of those facilities. The proposed transmission line will comply with the requirements of the NESC. Lightning. Lightning is generally attracted and diverted to the tallest object on the ground in a particular area. Transmission line structures, often the tallest structures in an area, are frequently struck by lightning. To protect the transmission line against large surges in voltage and current which can cause damage, the Applicants will protect the SKF Transmission Line by placing ground wires above the conductors to interrupt the lightning and safely route it to an extensive grounding system at the base of the structures consistent with the NESC. This structural design should produce no risk to people or residents adjacent to the transmission line and may provide additional safety in the vicinity of the transmission line by diverting lightning to the transmission line grounding system. Transmission Line Noise. During fair weather transmission line noise will be below ambient noise levels. Measurable noise will only be generated by the transmission line during foul weather or when the conductors are saturated with water. During these periods, the maximum noise levels will range between 39 dBA to 48 dBA. In all instances, the noise levels generated by the transmission line will comply with applicable local government noise ordinances. Radio and Television Interference. The proposed transmission line will not interfere with frequency modulated (FM) radio reception. The transmission line may interfere with amplitude modulated (AM) radio reception depending on the frequency level of the transmission, the location of the receiver, and the strength of the radio transmission. No interference from the transmission line is expected to AM radio reception from a Type A station where the receiver is located at least 20-25 feet from the edge of the transmission line right-of-way. Interference from the transmission line to AM radio reception from a Type B station may occur if the receiver is located within 100 feet of the transmission line. Foul weather may increase the level of interference. Interference to AM radio reception from the transmission line can usually be corrected by adjusting the position of the antenna for the radio receiver. The audio portion of television is transmitted using FM frequency and will not experience interference from the transmission line. The video portion of television is transmitted using the AM frequency and therefore may experience interference from the transmission line. This interference should be limited to the weaker Grade B television transmissions, during foul weather, on channels two through six. Pursuant to Condition of Certification S-5 shown in Appendix C to this Recommended Order, the Applicants will investigate complaints regarding radio and television interference and provide appropriate mitigation for all impacts. Interference with Other Communication Systems. The transmission line will not interfere with cable television reception or telephone reception. Pursuant to the Condition of Certification S-10 shown in Appendix C, SECI will perform a base line communication measurement for the Keystone Fire Tower and take any necessary steps to correct any interference the transmission line may cause to the Keystone Fire Tower communications system. Electric and Magnetic Fields. Electric and magnetic fields are produced by virtually all electrical equipment. Transmission lines also produce electric fields, measured in kilovolts per meter (kV/m), and magnetic fields, measured in milligauss (mG). Standards for electric and magnetic fields produced by transmission lines are set forth in Chapter 17-274, Florida Administrative Code. The calculations for electric fields within and at the edge of the right-of-way, and for magnetic fields at the edge of the right-of- way, are made using the Bonneville Power Administration (BPA) Corona and Field Effects Program. Pursuant to Chapter 17-274, calculations for electric and magnetic fields are made under a worst case scenario; e.g. maximum conductor voltage, minimum conductor to ground clearance, and maximum current rating. The calculated electric and magnetic fields for the proposed SKF Transmission Line are shown on Appendix D to this Recommended Order. Depending on the final engineering of the transmission line, the actual electric and magnetic field levels will likely be lower than those shown in Appendix D. Pursuant to Chapter 17-274, Florida Administrative Code, the electric field for a 230 kV transmission line shall not exceed 8 kV/m within the right-of-way and 2.00 kV/m at the edge of the right-of-way, and the magnetic field shall not exceed 150 mG at the edge of the right-of-way. See, Rule 17-274.450(3) F.A.C. The proposed SKF Transmission Line complies with these standards. Further, a review of these standards is being undertaken by DER in deference to the rule's recognition of "a potential for adverse health effects" associated with electrical and magnetic fields emanating from electrical transmission and distribution lines. In accordance with Condition of Certification S-6 of appendix C, applicants agree to comply with presently existing electrical and magnetic field standards as well as any amendments to those standards which may result from DER's review of the state of the science in this area. Impacts of the SKF Transmission Line Upon the Environment: Water Resources, Vegetation and Wildlife Water Resources Flood Levels. The proposed SKF Transmission Line will not adversely impact flood elevations in the area of the preferred corridor. The majority of the preferred corridor is located along existing transmission line rights-of-way and other major linear facilities, such as S.R. 100, S.R. 21, and the Branan Field-Chaffee Limited Access Road, thereby minimizing the amount of fill required for new access roads. Additionally, all the surface water bodies along the corridor can be spanned by the proposed transmission line thus eliminating the need for any fill or structures in open water. Water Quality. The location and construction of the proposed transmission line within the corridor will not adversely affect water quality. The use of existing rights-of-way for the proposed transmission line will minimize disturbances to the ground cover in the area of the preferred corridor thereby reducing the potential for erosion. Where new access roads or structure pads are built the soil will be compacted and erosion control devices such as mulch and fiber fences will be used to control erosion that could affect water quality. Water Quantity. The proposed transmission line will not adversely affect the water quantity in the area of the preferred corridor. The location of the transmission line within existing rights-of-way and along roadways will minimize the need for new access roads. Where new access roads must be built, culverts will be installed where appropriate to maintain existing hydroperiods. Low-lying vegetation in areas not occupied by existing or new access roads and structure pads will be allowed to grow, thereby maintaining the infiltration and runoff rates in the area of the corridor. Ground Water. Limited dewatering may be required for construction of the transmission line and will not exceed the consumptive use permitting thresholds or exemptions adopted by the SJRWMD. Where dewatering is required for the placement of a structure foundation, the water will be discharged on site and allowed to percolate through the ground to recharge the surficial aquifer. Conditions of Certification Regarding Water Resources. The Applicants have agreed with DER and SJRWMD on Conditions of Certification regarding water resources. If constructed in accordance with these Conditions of Certification, the proposed transmission line will comply with the water quality, and water quantity and wetland standards for DER and the SJRWMD. Vegetation Impacts on Vegetation and Clearing. The impacts to vegetation from the location, construction and maintenance of the SKF Transmission Line within the proposed corridor will be minimal. For approximately one-half the length of the corridor, the SKF Transmission Line will be located within existing transmission line rights-of-way. Location of the SKF Transmission Line within existing transmission line rights-of-way virtually eliminates the need for new clearing of vegetation within those portions of the corridor. Approximately 33 of the remaining 35 miles of the proposed corridor follows existing linear facilities such as roads and railroads. The use of existing linear facilities will facilitate access to the SKF Transmission Line thereby reducing the amount of new access road construction and permanent clearing. Vegetation that will be cleared within the corridor is not regionally unique, nor does it provide critical habitat to wildlife species. Moreover, where clearing does occur, low lying vegetation will be allowed to revegetate. In wetland areas, clearing practices will be used to minimize the impacts to those communities. In freshwater marsh areas where access roads and structure pads are not required, no clearing will occur. Pursuant to DER Condition of Certification S-2.B. and SJRWMD Condition of Certification II b.(1), restrictive clearing shall be used in forested wetland areas to minimize impacts to wetland vegetation. Wildlife Wildlife Habitats. Wildlife habitats within the SKF Transmission Line corridor are primarily sandhill communities, various pine communities, pasture land and various freshwater and forested wetland areas where the corridor is crossed by creeks and rivers. Along the majority of the corridor, the proposed transmission line will be located adjacent to or within existing linear facilities thereby minimizing the clearing required in the various wildlife habitats. No federally designated Critical Habitat is crossed by the corridor. Threatened and Endangered Species. The corridor was screened for 51 species of wildlife designated by various federal, state, and regional agencies as Threatened and Endangered, Rare, or Species of Special Concern. Other than the gopher tortoise and associated commensurals, none of the 51 species were found to be dependent upon any of the wildlife habitats within the corridor. In respect to gopher tortoises, a regionally common species throughout the area, structure locations can be varied to minimize impacts to this species. Stipulations with DNR and GFWFC. Prior to the location of the transmission line right-of-way across any portion of the Mike Roess Gold Head Branch State Park, the Applicants will consult with DNR and ensure that the location of the right-of-way complies with the Incompatible Use Policy. (Section 403.531(3), Florida Statutes.) Prior to any clearing activities, the Applicants will conduct a threatened and endangered species survey. The survey will be submitted to the U. S. Fish and Wildlife Service and GFWFC for review and appropriate steps taken to avoid, minimize, or mitigate impacts to any identified species. Nonprocedural Requirements of Agencies The Applicants have expressly accepted the Conditions of Certification attached hereto as Appendix C to insure that the location, construction and maintenance of the SKF Transmission Line within the Applicants' corridor will comply with the nonprocedural requirements of state, regional and local government agencies. Two special exceptions required for the SKF Transmission Line were identified in the Application. A special exception will be needed for the location of the proposed transmission line in any zoning district in Putnam County. In the City of Jacksonville/Duval County, a special exception will be required for the location of the transmission line within the General Floodplain District. Evidence admitted at hearing, including that regarding corridor selection methodology, transmission line design and construction techniques, together with the Conditions of Certification attached as Appendix C, support the issuance of the special exceptions in Putnam County and the City of Jacksonville/Duval County. Compliance with Comprehensive Plans The location of the SKF Transmission Line within the Applicants' corridor will be compatible with existing land uses and consistent with the applicable comprehensive plans of Putnam County, Clay County, City of Jacksonville/Duval County, and the City of Keystone Heights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Siting Board enter a Final Order approving SECI's and JEA's Seminole Plant-Keystone-JEA-Firestone 230 kV Transmission Line Application for Corridor Certification subject to the Conditions of Certification as set forth in Appendix C to this Recommended Order. RECOMMENDED this 30th day of April, 1991, in Tallahassee, Florida. Don W. Davis, Hearing Officer Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1991.
Findings Of Fact Fundamental findings Petitioner, Christian Interactive Network, Inc., is a non-profit corporation exempt from tax under Section 501(c)(3) of the Internal Revenue Code. Petitioner's articles of incorporation provide that it is organized "[t]o operate, manage, run and otherwise do and perform those acts and things appropriate and proper for the conduct of the management and operation of a computer network, including, but not limited to the performance of services and installation or construction of the network, and purchase or writing of programing necessary to place such subsystem within the national and international computer information network system. Such computer network shall be and it is the intent hereof that the network be operated for the express purpose of Christian information and data access and for the purposes of glorifying God without personal financial gain as a motivating factor." To carry out its corporate purpose, petitioner leases approximately 3,000 square feet of office space at Suite 101, 505 Northwest 65th Court, Fort Lauderdale, Florida, wherein it maintains fifteen computers that are linked via the telephone network with the Internet. From its office location, petitioner provides an "on-line," "virtual area where people from around the world can gather . . ." in a computer networking area. There, petitioner organizes the data and electronic format for its on-line service, places leading ministries on-line, and monitors its programs and responses. Petitioner has no ministers on staff, but considers itself a "pathway" to the leading ministries by placing their program on-line, and by providing space for open forum discussion on Christian issues. Access to petitioner's resources and information is available through Internet access provided by commercial on-line services, Free-net on-line services, public access areas at libraries, and other providers or sources of Internet access. The religious activities petitioner presents on-line are of a character or nature that would qualify as "religious services and activities" under the "religious institutions" exemption provided by Section 212.08(7)(o)2, Florida Statutes; however, participants in petitioner's on-line service do not physically meet at petitioner's offices to participate in religious services, petitioner does not provide any service to physically transport its members or participants, and petitioner was not shown to be a "governing or administrative office[] . . . to assist or regulate the customary activities of religious organizations or members." The exemption at issue Here, petitioner has requested a consumer's certificate of exemption as a religious institution under the provisions of subsection 212.08(7)(o)2, Florida Statutes. Pertinent to this case, that subsection provides: The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows: "Religious institutions" means churches, synagogues, and established physical places for worship at which nonprofit religious services and activities are regularly conducted and carried on. The term "religious institu- tions" includes nonprofit corporations the sole purpose of which is to provide free transportation services to church members, their families, and other church attendees. The term "religious institutions" also includes state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. 2/ It is petitioner's position that usage of computer on-line services, the so called Cyberspace or information super highway, is part of a rapidly changing technological environment wherein it provides an interactive meeting place to serve the spiritual needs of participants, nationally and globally, who might otherwise be unable to physically assemble. Such, petitioner contends, qualifies it as a "physical place[] of worship," a "provide[r] of free transportation services to church . . . attendees," or a "governing or administrative office[] the function of which is to assist or regulate the customary activities of religious organizations or members." Contrasted with petitioner's contention, the Department, consistent with the statutory mandate that the exemption for "religious institutions" be "strictly . . . limited" to that defined by the law, reads the provisions of subsection 212.08(7)(o)2a to apply only when (1) there exists an established physical place of worship, i.e., a "bricks and mortar" facility, (2) the organization provides physical transportation for church members or attendees, or (3) that the provider, who claims to be a "governing or administrative office" whose "function is to assist or regulate the customary activities of religious organizations or members," be part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. Such reading is consistent with the literal import of subsection 212.08(7)(o)2a, and to the extent the provisions of that subsection relating to "other governing or administrative offices" may be unclear, is a reasonable interpretation of such provision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying petitioner's application for a consumer's certificate of exemption as a religious institution. DONE AND ENTERED this 25th day of April 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April 1996.
Findings Of Fact Petitioner, the AAI, Florida Chapter, is an affiliate member of the International Association of Arson Investigators, Inc. AAI, Florida Chapter, is a nonprofit corporation exempt from federal income tax under Section 501(c)(6) of the Internal Revenue Code, and is located at 2302 North Wallen Drive, Lake Park, Florida. The governing body for AAI, Florida Chapter, the International Association of Arson Investigators, is a world-wide organization dedicated to the suppression of arson and related criminal activities. The mission of the International Association of Arson Investigators is to provide education, training, and public awareness to combat these crimes. To this end, the International Association of Arson Investigators provides training through regional programs, seminars, and publications. The AAI, Florida Chapter, exists pursuant to a grant of authority from the International Association of Arson Investigators. However, the AAI, Florida Chapter, is a separate and distinct legal entity from the International Association of Arson Investigators. The membership of the AAI, Florida Chapter, is comprised of individuals involved in some professional aspect of arson suppression. Members are typically employed by fire departments, law enforcement agencies, and fire marshals' offices. Petitioner's membership also includes representatives from the Statewide Prosecutor's Office, the Florida Department of Law Enforcement, the various state attorneys' offices, and sheriffs' offices. Petitioner provides training for state agencies and educational organizations, including the Florida Fire College, Federal Law Enforcement Training Center, the National Fire Academy, and school districts, community colleges and public universities in Florida. Petitioner provides the personnel, supplies, equipment and materials for the training programs which it conducts. Some of the training seminars conducted by Petitioner receive law enforcement matching funds, and are approved for continuing education units for law enforcement personnel and for recertification contact hours for fire service personnel. The educational training and programs provided by AAI, Florida Chapter, are offered to various entities on a contractual basis. Notwithstanding Petitioner's contractual relationships with several educational entities, it has no authority or control over those entities. Petitioner is not accredited by nor is it a member of Southern Association of Colleges and Schools, the Florida Council of Independent Schools, or any other organization responsible for accrediting educational entities. Petitioner applied for a consumer certificate of exemption as an educational institution, and contends that the basis for such exemption is that it is an administrative office whose function is to assist or regulate the customary activities of its members.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order denying a consumer certificate of tax exemption to Petitioner, the International Association of Arson Investigators, Florida Chapter. DONE and ENTERED this 21st day of May, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5668 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. 1-12. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1. 1-18. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Linda Lettera General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Ruth Ann Smith, Esquire Tracy L. Allen, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Guy E. Burnette, Jr., Esquire William R. Lewis, Esquire Butler, Burnette & Pappas Bayport Plaza, Suite 1100 6200 Courtney Campbell Causeway Tampa, Florida 33607-1458 Larry Ruchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact On September 12, 1985, the LCSB issued a Request for Proposals ("PEP") for a telephone system to serve its Administrative Complex and Lively Area Vocational-Technical Center Main Campus ("the proposed telephone system"). Subsequently, several addenda and supplemental materials were forwarded to all participating vendors of handwritten portion. The PEP scheduled a vendor's conference for September 19, 1985. It required any "discrepancies, errors, omissions, or ambiguities in the specifications or addenda (if any)" to be reported to the LCSB no later than September 25, 1985. Similarly, the PEP required vendors to "submit written requests for clarification of terminology, if necessary, no later than September 25, 1985." Responses to the PEP were required by the time set for opening the vendors' proposals at 10:00 a.m. on October 4, 1985. The compressed time frames were imposed in an effort to be able to complete the PEP process, award the contract and have a telephone system installed by the first week of January 1986. This target date for installation was established because, although budgetary and other problems delayed the start of the PEP process, the LCSB had decided by September 1985 to change its telephone listings in the December 1985 to December 1986 edition of the Official Telephone Directory For Tallahassee, Florida, in anticipation of a new telephone system. Pursuant to a requirement of the PEP, ten letters of intent to submit proposals were received on or before September 19, 1985, including letters of intent from Petitioner, Telecom Plus of Florida, Inc. ("Telecom Plus"), and Intervenor, Centel Business Systems ("Centel"). Telecom Plus, Centel, and three other vendors submitted proposals on or before the deadline of October 4, 1985. By letters dated October 10, 1985, the LCSB Director of Purchasing notified the five proposing vendors that the Superintendent intended to recommend to the LCSB that the contract be awarded to Centel based on the bid tabulation prepared by the LCSB telecommunications consultants. Attached to those letters was a copy of the evaluation summary (bid tabulation). The letter was written on LCSB stationery on behalf of the LCSB and, under Rule 6g x 37-6.09, Rules of the LCSB, had the effect of announcing the intention of the LCSB to award the contract to Centel. The proposed telephone system will serve two locations, the LCSB Administration Complex and the Lively Area Vocational-Technical Center Main Campus. These two locations are separated by a distance of approximately 4,500 feet. The PEP required the proposed telephone system to provide telephone service to each location, as well as to interconnect the two locations. The cable(s) for the interconnection between the two locations will be housed in a 4,500-foot long, four-inch PVC conduit to be installed as part of the proposed telephone system. To satisfy the needs of the LCSB, the proposed telephone system could be in one of several configurations. At least one Electronic Private Automatic Branch Exchange (EPABX, commonly referred to as a "switch") is necessary to provide for intra- and inter-facility communications and to connect the Administration Complex and Lively Area Vocational-Technical Center Main Campus to the outside world. The PEP indicated that the possible configurations for the proposed telephone system included: (1) a single switch at the Administration Complex with cables extending at least 4,500 feet to each telephone instrument at the Lively location; (2) a single switch at the Administration Complex with remote peripheral equipment ("RPE," means a portion of the single switch which is remotely located) located at the Lively location and connected to the switch by 4,500-foot long cables, and (3) two switches, one at the Administration Complex and one at the Lively location, interconnected by 4,500-foot long cables. Telecom Plus filed a protest after the posting of the bid tabulations on or about October 16, 1985. 2/ In its letter of protest, as further explicated in the Prehearing Stipulation, Telecom Plus raised three basic issues. First, Telecom Plus complained that the RFP specifications were ambiguous and not well enough defined, resulting in comparisons between vendors' systems which were not "apples to apples." Second, Telecom Plus claimed that Centel's Call Accounting System, a required subcomponent of the proposed telephone system, fails to meet the FFP's specifications. Finally, Telecom Plus challenged the subjectivity of the point awards in the equipment evaluation, claiming that the point awards for equipment did not accurately reflect the proposals of Telecom Plus and Centel. The LCSB used a request for proposals to solicit vendors' suggestions on how its proposed telephone system needs could best be met because, in the opinion of the LCSB telecommunications consultants, an invitation to bid setting forth precise specifications for equipment in a given configuration would have eliminated all competition among vendors. While the telephone systems proposed by Telecom Plus and Centel differed in the mechanisms used to meet the LCSB needs, the systems were capable of comparison in an evaluation of whether and the extent to which they met the LCSB needs. Each of the alleged ambiguities raised in the Telecom Plus letter of protest were apparent on the face of the FFP. Telecom Plus did not avail itself of several opportunities to have any such perceived ambiguities in the RFP specifications cleared up. On September 19, 1985, the LCSB conducted a vendors' conference to answer vendor questions concerning the PEP and to clarify the vendors' understanding of the PEP. Representatives of Telecom Plus and Centel, as well as several other vendors, attended the vendors' conference. Notes from the vendors' conference setting forth questions raised and the LCSB's answers were distributed as supplemental material to all PEP specifications. In addition to the clarifications made as a result of the vendors' conference, the PEP included an invitation to vendors to submit written requests for clarification of terminology, if necessary, by no later than September 25, 1985. No such written requests were received by LCSB. The PEP also provided that any discrepancies, errors, omissions, or ambiguities in the specifications, errors, omissions, or ambiguities in the specifications or addenda should be reported in writing to the LCSB by no later than September 25, 1985. No such written notification was received by the LCSB. Despite complaints in its protest that these time frames were inadequate, Telecom Plus acknowledged the time frames in its response to the PEP and neither made objection nor took exception to them. On the merits, the PEP clearly and accurately communicated that no system architecture was "preferred" over another. The LCSB wanted the vendor's to propose their solutions to the peculiar communications problems faced by the LCSB. Neither single switch, double switch nor switch with remote peripheral equipment (RPE) configuration was to be excluded from consideration. Regarding the system features, the PEP required electronic multi-line key sets "providing for combinations of five or more lines and/or programmable feature access buttons." Although it may have been wiser to specify the maximum number of lines and feature access buttons, there is nothing ambiguous about the PEP. It requires a minimum of five lines or feature access buttons. Telecom Plus asserted that the Call Accounting System proposed by Centel did not comply with the RFP specifications in that the Call Accounting System proposed by Centel only provides 40,000 call records. The LCSB indicated in the notes from the vendors' conference that a 60,000 capacity in number of calls recorded was "desired"; no 60,000 capacity was specified in the EFP itself. Even if the desired target of 60,000 call records contained in the vendors' conference notes was considered a specification of the RFP, vendors had the option of adding or deleting items from the system requirements in their proposal as long as the additions or deletions are clearly indicated. Centel clearly indicated that its proposed SUMMA IV Call Accounting System would provide only 40,000 call records, complying with the addition/deletion provision of the RFP. 3/ In recognition of the fewer call records provided by Centel's Call Accounting System, the LCSB telecommunications consultants awarded Centel seven fewer points than possible. Telecom Plus, on the other hand, received all of the available points for its Call Accounting System that exceeded the desired target of 60,000 call records. The RFP described the criteria to be used by the LCSB in evaluating proposals. A maximum of 1,000 points would be awarded to each proposal--300 points for equipment considerations, 300 points for vendor considerations and 400 points for financial considerations. The equipment considerations included the system's fulfillment of the minimum size, feature, capacity and performance characteristics contained in the RFP, as well as the availability and functionality of specified items, such as the availability of features, ease of systems operation, and projected longevity. The vendor considerations included the vendor's capability and qualifications to provided installs and maintain the system, which would involve an evaluation of the vendor's experience (particularly with other installations of comparable size and complexity), available manpower, financial stability, and proposed installation and maintenance plans. The financial considerations included initial and recurring costs of the system, which would involve an evaluation of the cost of lease or purchase, cost of maintenance, cost of future additions based upon an assumed annual average growths cost of insurance, cost of systems administration, and any other determinable costs associated with the acquisition, installations or operation of the proposed system. In evaluating proposals, some effort was made to relate points to a dollar value. Since Centel's proposal would cost a total of $1,164,528 over seven years and Telecom Plus' would cost a total of $1,223,281 over seven years, it was borne in mind that each point in the equipment or vendor categories would relate to roughly $4,000 in the financial category. In other words, if a proposal fell short of optimal in an equipment category, for example, the proposal would receive enough fewer points in the equipment category to correspond to the value in dollars by which the proposal was thereby reduced figured at roughly $4,000 per point. By submitting a proposal in response to the PEP, Telecom Plus signified that it understood and accepted the criteria upon which proposals were to be evaluated and the sole discretion of the LCSB evaluators to determine the bid rankings. 4/ Extensive testimony was received regarding the capabilities and features of both Telecom Plus' proposed NEAX 2400 telephone system and Centel's proposed SL-1N telephone system. In addition, the LCSB telecommunications consultants who performed the technical evaluation of the proposals detailed the relative merits of the two systems in their Evaluation Of Proposals dated October 11, 1985. In the Evaluation Of Proposals, points were awarded as follows: Centel Telecom Plus A. Equipment Proven Reliability (of 40) 40 35 System Architecture (of 40) 39 35 Reliability Considerations (of 40) 37 35 System Capacities (of 40) 32 40 System Features (of 35) 35 33 Instruments (of 35) 28 30 Data Considerations (of 35) 34 30 Call Accounting System (of 35) 28 35 TOTAL 273 273 B. Vendor 292 290 C. Financial 384 366 GRAND TOTAL 949 929 The points awarded in the equipment evaluation were justified with one minor exception. The LCSB consultants based their award of points in the "System Features" category on the assumption that the system proposed by Telecom Plus provided for 100 speed call assignments. Actually, that system provides 200 speed call assignments. Accordingly Telecom Plus should have been awarded an additional point. Since the Telecom Plus system received 20 points overall less than Centel's proposed system, the addition of one point to Telecom Plus' total point award would not change the outcome. Regarding proven reliability of the equipment proposed, Centel's proposed switch was first marketed by Northern Telecom in 1975. The switch was improved and modified over the years, and much of the SL-1N is "backward compatible" (i.e., uses components that could be used in prior versions of the switch) Telecom Plus' proposed NEAX 2400, in contrast, has been on the market only approximately 18 months. This gave Centel's proposal the advantage in this category. Regarding Systems Architecture, Centel's RPE proposal gave it the advantage in solving the peculiar need of the LCSB to provide an EPABX to serve two buildings at least 4500 feet apart (but especially in comparison with the Telecom Plus proposal). Regarding reliability considerations, Telecom Plus did not prove (either by documentation in its proposal or by evidence at the hearing) that its D Term telephone instruments will operate reliably at 4500 or more feet from its single telephone switch, as was proposed to provide telephone service for the Lively building. Telecom Plus did, however, delete from the manufacturer's literature included in its response to the RFP the manufacturer's recommendation that the D Term not be used more than 4500 feet from the switch. All these facts and circumstances result in an advantage to the Centel proposal. In the categories System Capacities, Instruments and Call Accounting System, Telecom Plus' proposal deserved and was given the advantage. Telecom Plus did not prove that its advantage should have been larger. In System Capacities, Telecom Plus' proposal received eight more points (worth roughly $32,000) for being "non-blocking" (i.e., all telephone instruments could be off- hook at the same time) although Centel's proposal met all specifications of the RFP. Centel's Call Accounting System is capable of less-than-desired 40,000 call records; Telecom Plus' has the desired 60,000 call record capacity and was given the maximum 35 points in this category. Telecom Plus did not prove that its Call Accounting System was worth more than seven points (roughly $28,000) more to the LCSB, especially since lack of capacity can be addressed by simply "dumping" call records twice as often. (See also footnote 3 above.) Regarding the financial category, Telecom Plus proved that the LCSB consultants erroneously used the pre-cutover price of $240 instead of the post- cutover price of $281 in figuring the cost of additional telephone sets anticipated to be needed during the first seven years of operation under the Centel proposal. This error deflated the total cost of the Centel proposal by approximately $3,000 over seven years. In light of the actual total cost of the Centel proposal, Centel should have received only 383 points in the financial category instead of 384 points, not enough of a difference to change the outcome of this case.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Leon County School Board enter a final order awarding a contract to Centel Business Systems to install the telephone communications system proposed in its response to the Request For Proposals in this case. RECOMMENDED this 5th day of December 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer 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 5th day of December 1985.
The Issue The issue is whether Respondent properly denied payment of certain charges related to out-of-network surgical procedures pursuant to the State Employees’ PPO Group Health Insurance Plan.
Findings Of Fact At all times pertinent to this proceeding, Petitioner, who is now 29 years old, was an employee of the University of West Florida, and was enrolled as a member of the State Employees PPO Plan (Plan). She started employment with the University on December 1, 2007, and became enrolled in the Plan. Respondent was provided with the State Employees’ PPO Plan Group Health Insurance Plan Booklet and Benefits Document, effective January 1, 2007 (Plan Booklet). The Department of Management Services is responsible for all aspects of the purchase of health care for state employees, including those services provided under the Plan. Respondent is responsible for the administration of the state group insurance program. As authorized by law, Respondent has contracted with Blue Cross & Blue Shield of Florida (now known as Florida Blue) as its third-party medical claim administrator of employee health insurance benefits. The Plan Booklet contains the terms and conditions of the state group insurance program applicable to this proceeding. The booklet provides, as part of its Summary of Benefits, that: When you go to non-network providers, this Plan pays benefits based on the non-network allowance. If your provider charges more than the non-network allowance, you are responsible for any amounts above the non- network allowance. In addition, because the Plan pays a lower benefit level for non- network care, you pay more out-of-pocket for non-network care. In selecting BCBSF as the Medical Claim Administrator for the state Employees’ PPO Plan, DSGI agreed to accept the non-network allowance schedule used by BCBSF to make payment for specific healthcare services submitted by non-network providers. Keep in mind that you will receive benefits at the non-network level whenever you use non-network providers, even if a network provider is unavailable. (Emphasis added). The booklet provides, in section 6, entitled About the Provider Network, that: In an effort to contain healthcare costs and keep premiums down, BCBSF has negotiated with PPCSM network healthcare providers to provide services to health Plan participants at reduced amounts. PPCSM network providers have agreed to accept as payment a set amount for covered services . . . . Non-network providers will bill you their regular charges. You will be responsible for a larger coinsurance and/or copayment, and you will be responsible for paying the difference between the provider’s charges and the amount established as the non- network allowance for the service. The non- network allowance may be considerably less than the amount the non-network provider charges. * * * An Important Note About Using Non-Network Providers To make sure you receive the highest level of benefits from the Plan, it’s important to understand when non-network benefits are paid. When you use non-network providers, you receive non-network benefits. Here are some examples. In some situations, your network provider may use, or recommend that you receive care from, a non-network provider. For example, your network family doctor says you need to see another doctor and recommends a non-network doctor. It is your choice; you decide whether to go to the recommended non-network doctor or to ask your doctor for another recommendation to a network doctor. In this example, even though your family doctor is a network doctor, you will receive non-network benefits if you go to the recommended non- network doctor. Sometimes the health care professional you need to see is not in the network. You receive non-network benefits when you use non-network providers, even if no network provider is available. From an early age, Petitioner was plagued with symptoms of temporomandibular joint (TMJ) disorder. When she was seven or eight years old, Petitioner began to experience clicking in her jaw, and her jaw would occasionally lock. The symptoms soon abated. While she was in sixth grade, Petitioner was fitted for orthodontic braces. The braces were removed when she was 12 or 13 years old. When Petitioner was in her early teens, the clicking in her jaw reappeared. The clicking was now accompanied by pain in her jaw muscles, which was likened to that experienced from a migraine headache. Petitioner was referred to an oral surgeon regarding her jaw symptoms. The surgeon recommended a course of physical therapy for her jaw, and placed her on a diet that eliminated foods that were “chewy.” Despite those measures, Petitioner’s jaw began to periodically lock open. At the age of 16, Petitioner had her wisdom teeth removed. While that procedure resulted in a cessation of the locking, Petitioner could only open her mouth about one-quarter of the way. She was also prescribed Tylenol #3, which contained codeine, for pain. At the age of 16 or 17, Petitioner was given splints to keep her jaw in alignment. Petitioner was clenching her teeth so hard in response to the pain, that she broke several splints during the first year that she had them. By the time she was 19 years old, Petitioner’s headaches were “out of control.” She was referred to the facial pain center at the University of Florida, where she was fitted with custom-made splints. She was provided with a course of physical therapy, and was prescribed muscle relaxers. When she returned home from college for the summer, she did the recommended physical therapy, which was effective in relieving her symptoms for a few months. Petitioner was subsequently referred to Dr. Widmer, a physician at the University of Florida. Dr. Widmer performed an arthrocentesis, by which a steroid solution was injected into Petitioner’s temporomandibular joints. The procedure was ineffective. By 2006, when Petitioner was 23 years old, the opening of her mouth began to be accompanied by a “squishing” noise. Dr. Widmer referred Petitioner to Dr. Margaret Dennis. Dr. Dennis ordered an MRI of Petitioner’s jaw to determine if there was any bone damage. The MRI revealed that the bones of the temporomandibular joint were degraded, and that the disk material was calcified. Dr. Dennis increased the dosage of Petitioner’s pain medications to handle the pain associated with her condition. After a period of time, and with Petitioner having little relief from her symptoms, Dr. Dennis referred her to Dr. Mark Piper, a physician who is board-certified in oral and maxillo-facial surgery. Dr. Piper maintains his office in Tampa, Florida. Petitioner had her first appointment with Dr. Piper in August 2009. Dr. Piper ordered a level 3 MRI, which produced a clearer picture than her earlier MRI, as well as a CAT scan. He took imprints of Petitioner’s teeth, and performed a physical examination of the bones of Petitioner’s jaw. The results of the imaging and the physical exam showed severe and active degeneration of Petitioner’s temporomandibular joints, especially the right joint. To remedy Petitioner’s physical condition, Dr. Piper recommended a bilateral arthroplasty of Petitioner’s jaw, consisting of a fat graft to the right temporomandibular joint, and a procedure involving the disk tissue to the left temporomandibular joint. Given the exhaustion of more conservative forms of treatment, arthroplasty was, by this point, appropriate and medically necessary for the resolution of Petitioner’s condition. On August 25, 2009, Dr. Piper provided Petitioner with a statement summarizing his diagnosis, and providing an explanation of his recommended course of action. Petitioner provided Dr. Piper’s statement to BCBSF to explain the necessity for her proposed out-of-network treatment. The evidence suggests that Petitioner provided the CPT codes for the recommended procedures at issue. CPT codes are a system by which medical services are assigned numbers to describe those services, and are used by insurers to establish a uniform schedule of reimbursement. On a case-by-case basis, the numbers are provided by medical service providers to describe the services they have rendered. Respondent maintains a business record of all communications between it and its customers. On August 27, 2009, those records reflect that a telephonic request for information was received either from or regarding Petitioner. The notation regarding the request for information stated, in pertinent part: PRICING FOR PROC CODES 21240 AND 69990 RELATED TO TREATMENT OF TMJ NEEDED, PROV IS 62468....ALLOWANCES ARE 1168.09 AND 252.53 Petitioner acknowledged that she received the information regarding the rates, but understood the rates to be estimated amounts, and not official because the person with whom she spoke could not give final figures over the telephone. Later on August 27, 2009, Respondent’s records reflect that a second telephonic request for information was received either from or regarding Petitioner. The notation regarding the request for information stated, in pertinent part: MEMBER S REQUESTING TO SPK WITH THE VPCR [Voluntary Pre-coverage Review] AREA AS SHE WANTS PRIOR APPROVAL OF CODES 21240 AND 69990 FOR THE TREATMENT OF TMJ....I ADVISED HER OF THE PROCESS AND TO GO AHEAD AND SUBMIT THE LMN [Letter of Medical Necessity] AND SUPPORTING DOCS IF THE NON PAR PROV IS UNWILLING TO CALL OUR OFFICE..I EXPLAINED THAT THE DET WOULD BE MADE AND IF ADDTLS DOCS ARE REQD, THIS WOULD BE ADVISED ALSO, ADV MEMBER SHE CAN WITH FAX OR MAIL TO AD ON THE BACK OF INS CARD. Respondent’s records reflect no further telephonic inquiries regarding Petitioner until October 19, 2009. Petitioner scheduled her surgery with Dr. Piper for September 16, 2009. Petitioner testified that approximately one week prior to the scheduled surgery, BCBSF sent an e-mail to Petitioner providing her with the name of a network provider in Jacksonville who could perform the surgery necessary to resolve her TMJ issues. She further testified that she contacted the network provider’s office, and was advised by a Dr. Milton that the medical group could not perform the surgery. Petitioner testified that she advised BCBSF of that information, and advised BCBSF that there was no one in-network that could perform the surgery. A copy of the e-mail was not provided, nor was there evidence to otherwise corroborate the described events. Therefore, no finding can be made as to that alleged series of communications. Respondent maintains a list of network health care providers by specialty type and location. The list is available on-line. The list includes a number of oral and maxillofacial surgeons located in the Jacksonville area. However, one cannot determine from the list whether a provider is capable of performing a particular procedure under the specialty. The evidence demonstrates that Dr. Piper is an accomplished oral and maxillofacial surgeon, with particular expertise in disc removal and fat graft placement surgery for the temporomandibular joint. However, even if Dr. Piper is the surgeon most qualified to perform the procedure, that does not mean he is the surgeon singularly qualified to perform the procedure. Dr. Imray testified that he has referred patients for bilateral arthroplastic procedures on many occasions. His referrals were generally to oral and maxillofacial surgeons practicing at teaching centers in Jacksonville and Gainesville. Although he could not testify whether such surgeons were in the State Employees’ PPO network without consulting his PPO reference book, he could recall no instance of having had to refer a patient to an out-of-network provider, “because most of the teaching centers take most of the plans.” The evidence in this case failed to demonstrate that there were no network providers capable of performing the procedures medically necessary for the resolution of Petitioner’s TMJ issues. Having concluded that Dr. Piper afforded her with the greatest likelihood for a successful outcome, Petitioner proceeded with the surgery as scheduled. After a recovery period of two years, which included braces to adjust her teeth to fit her repaired and aligned temporomandibular joints, the surgery has proven to be a complete success. Petitioner testified convincingly that the surgery was a life-changing event. The total cost to Petitioner for the surgical and immediate post-operative procedures was $30,005.00. In November, 2009, Petitioner began the process of filing her claim with BCBSF. After some difficulties, the submission of the claim was completed in January, 2010. The amount billed to BCBSF was $29,976.00. The bulk of the charge, in the amount of $24,650.00, was for the procedure identified by Dr. Piper as CPT Code 21240. The documentation submitted clearly indicated -- both by the description of the CPT Code 21240 procedure as “Bilateral TMJ Arthroplasty” and by the listing of the modifier code “50”, which was the code assigned for procedures that were bilateral -- that the arthroplasty procedure was bilateral. On March 11, 2010, BCBSF notified Petitioner that it would reimburse her medical expenses related to the surgery in the amount of $1,526.57. That amount included $1,168.09 for the arthroplasty (CPT Code 21240), and $358.48 for the surgical splint (CPT Code 21085). BCBSF indicated that it would not pay the $1,650.00 charge for the operating microscope (CPT Code 69990) on the basis that the charge was incidental to the primary arthroplasty procedure, and therefore included in the $1,168.09 allowance for that procedure. BCBSF also denied payment for a ZZ Therabite (CPT Code 99070). The reimbursement amount was calculated by applying the CPT Codes provided by Dr. Piper to the BCBSF fee schedule. The amount was then further adjusted by the non-network payment allowance to reach the final reimbursable amount. The process is mechanical, and involves no exercise of discretion. In that regard, the reimbursement for the arthroplasty was identical to the estimate provided to Petitioner on August 27, 2009. The evidence demonstrates that the amounts paid to Petitioner for CPT Code 21240 procedures and the CPT Code 21085 surgical splint were accurately derived through application of the BCBSF fee schedule allowance to the procedure codes provided by Dr. Piper. However, as to the arthroplasty procedure, the evidence further demonstrates that the amount paid was based on a single procedure. The arthroplasty performed by Dr. Piper was a bilateral procedure, which was clearly disclosed on the claim form. According to Kevin Tincher, BCBSF’s senior manager of coding and professional payment, Petitioner is entitled to reimbursement for both procedures, with the reason given for not paying for both being Dr. Piper’s failure to bill each part of the bilateral procedure on separate lines of the claim form. Given the lack of any instruction requiring that the two sides of a single bilateral procedure be billed on separate lines, especially given the application of the modifier code “50” to indicate a bilateral procedure, the information provided on the claim form was neither deficient nor in error. When two procedures of the same type are performed on the same day, the BCBSF fee schedule calls for reimbursement for the second procedure at a rate of 50 percent of the allowance for the first procedure. Under that schedule, Petitioner should have been reimbursed an additional $584.05, i.e., 50 percent of the $1,168.09 allowance for the first CPT Code 21240 procedure. The evidence demonstrates that the Therabite device (CPT Code 99070) was “appropriate and acceptable” in Petitioner’s case. Thus, the device was medically necessary under the circumstances. Petitioner should have been reimbursed, at the non-network rate, for that device. During the hearing, Jessica Bonin, BCBSF’s Critical Inquiry Analyst, admitted that the post-operative CT scan -- CPT Code 70486 -- in the amount of $301.93, should have been paid, but that the claim had not been reprocessed by BCBSF. Respondent further admitted in its Proposed Recommended Order that payment in the amount of $301.93 should be made for the post-operative CT scan. It is so found. Petitioner initiated a Level I appeal with BCBSF. She provided BCBSF with as much of her medical history as she could locate, a list of medications, and all of the records, photographs, and X-rays that she could access. She also provided a letter from Dr. Piper, dated March 18, 2010, in which he detailed the services provided to Petitioner. Dr. Piper’s description suggests that the services provided to Petitioner were extensive, but did not suggest that the procedure itself varied from the procedure described in CPT Code 21240. However, Dr. Piper did reaffirm that the surgery was a bilateral procedure involving both of Petitioner’s temporomandibular joints. BCBSF did not change its decision as a result of the Level I Appeal. On May 14, 2010, Petitioner filed a Level II Appeal with Respondent. On June 16, 2010, the Level II Appeal was denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Management Services enter a final order finding that Petitioner is entitled to additional reimbursement for her medical expenses as set forth herein.1/ DONE AND ENTERED this 23rd day of August, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 23rd day of August, 2012.
Findings Of Fact The proposed transmission line corridor is for the purpose of connecting a 230 kV line from the City of Tallahassee's existing system to the Georgia Power Transmission grid. The southern terminus of the corridor is in Leon County where the City's 230 kV line running north from the Hopkins' Power Plant makes a right angle turn toward the east, following Interstate Highway 10 (Section 13, Range 1 West, Township 1 North). The northern terminus of the corridor is that point where it ties to the Georgia system in Gadsden County, Florida, just south of the Florida State line in close proximity to the intersection of U.S. Highway 27 and SR 157 (Section 90, Range 1 West, Township 3 North, north of the Watson line). The corridor generally follows a center line conjunct with the Range 1 West range line, except that approximately 2.75 miles north of its southern terminus the corridor bends approximately 25 degrees to the east for a distance of approximately one-half mile before turning north for approximately 1.4 miles at which point the corridor turns west approximately 25 degrees for a distance of approximately 1.2 miles, and then turns east approximately 35 degrees for approximately 8 miles before once again turning north. The corridor encompasses several major highways, including Interstate Highway 10 and U.S. Highway 27. It also encompasses part of the Ochlocknee River, the Gadsden County, Florida landfill, part of the Tallahassee Commercial Airport, and part of the Ochlocknee Wildlife Management Area and Lake Talquin State Recreation Area. Just north of the rest stop on Interstate Highway 10, the corridor includes an area known as Riverwood Acres, a non-platted subdivision. The center line of the corridor bisects the subdivision. From its southern origin north, for approximately the first one mile of the corridor, the width of the corridor is approximately 9/16 mile. Thereafter the width of the corridor is approximately 1/2 mile. The location of the corridor is depicted in Figures 2-3, 2-6A, 2-6B, and 2-6C of the application. There being no more definitive a description of the location of the corridor than that shown in the maps comprising figures 2-6A, B, and C of the application, it is found as a matter of fact that those figures define the parameters of the proposed corridor. The length of the corridor is approximately 15 miles. The purpose of the corridor is to provide a 100 foot right-of-way for a 230 kV transmission line constructed upon H-frame wood poles, with an approximate span of 600 feet. Pursuant to the requirements of Section 403.537, Florida Statutes (1980 Supp.), the Florida Public Service Commission, by order dated March 31, 1981, found that: The construction of the proposed transmission line will enhance electric system reliability and integrity. The proposed transmission line will improve the availability of low-cost electric energy within the State of Florida. The point at which the City of Tallahassee proposes to connect to the construction of Georgia Power Company, and the point at which it proposes to connect to its own system, are the appropriate starting and ending points of the line. The Public Service Commission then concluded that the proposed transmission line is needed. Approximately 11.0 miles of the corridor's center line traverses land that is wooded and undeveloped. The remainder of the corridor center line, 3.9 miles, crosses land that reflects some type of human development or use. That includes land that is currently agricultural, in improved pasture, or simply open, cleared land. Although no residences lie within the corridor's center line, houses do lie elsewhere within the corridor. Several houses are located near the southern end of the corridor just north of Interstate Highway 10 in the area referred to as Riverwood Acres. Several houses are located near the Gadsden County Sanitary Landfill, and scattered houses are located in the corridor to the west of the Concord and to the south of the Darsey communities. Immediately beyond the eastern corridor boundary, but not within the corridor, is a developing neighborhood located in Township 1 north, Range 1 West, Section In that area residential property boundaries abut the eastern corridor boundary. Because of the objection by homeowners in the Riverwood Acres area, the width of the corridor has been slightly extended along the western and eastern boundaries so that the right-of-way may be placed with least impact upon the homes in that area. Approximately 0.05 acres of agricultural land will be directly disturbed by placement of transmission structures. It is expected that agricultural land can continue to be farmed between transmission structures. Where possible, existing road crossings or roads adjacent to the right-of-way will be utilized for maintenance and construction purposes. Where necessary, new access roads will be developed, but only to the extent needed for construction and maintenance of the line. The only major water body crossed by the proposed corridor is the Ochlocknee River. Impacts to the river should be negligible since the line structures on each side of the river will be physically located away from the river banks, and the lines and structures spanning the river will be situated well above the ordinary high water mark as defined by the United States Corps of Engineers. The uncontradicted evidence presented indicates that other streams or small water bodies crossed by the corridor will not be adversely impacted. Similarly, the uncontradicted evidence established that the two wetland areas to be crossed by the corridor center line will not be adversely impacted. A 230 kV transmission line is not considered an extra high voltage transmission line. Lines at 345 kV or larger are considered extra high voltage lines. The uncontradicted evidence establishes that there will be no significant noise impacts from the proposed transmission line operation. Except as otherwise noticed in the Findings of Fact herein, the uncontradicted evidence established that the proposed transmission line, if constructed along a right-of-way in the proposed corridor, pursuant to the conditions of certification, would have no significant adverse effect on the environment. Its impact on the environment will be minimal. Although none of the parties to this proceeding posed any objection to the proposed transmission line corridor and the transmission line to be constructed therein, three members of the public gave testimony in opposition to the site certification at the final certification hearing. The three persons were all residents of Riverwood Acres and were generally expressing the concerns of the neighborhood. Their sincere concern is evidenced by the excellent quality of their presentation. They expressed their opinion that their land value would be diminished by the construction of a transmission line adjacent or over their property. While it is difficult to consider the construction of such a transmission line as an enhancement to the property, as established by the testimony of their property will be diminished by the construction of the transmission line. These public witnesses also expressed a concern for the aesthetic damage to their neighborhood by the construction of this transmission line. It is found as a matter of fact that should the transmission line be constructed over or adjacent to these residential owners in Riverwood Acres, the aesthetic value of their environment would be diminished by the visual impact of the transmission line. Finally, these public witnesses expressed their concern and belief that the effects of the electric and magnetic fields generated by the transmission line would effect the health and welfare of the residents of the neighborhood. However, as established by the testimony of two witnesses expert in the areas of electrical engineering, radiation biology, and biophysics, 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. These members of the public presented a thoughtful, well conceived proposed alternative routing which would take the proposed transmission line around their residential neighborhood. However, the evidence presented in this proceeding does not establish that the existence of the alternative proposed by these members of the public by itself indicates that the corridor for which site certification has been requested, will not produce minimal adverse effects on the environment, public health, safety and welfare. The Department of Environmental Regulation, the Department of Veterans and Community Affairs, the Department of Natural Resources, the Florida Game and Fresh Water Fish Commission, and the Northwest Florida Water Management District have all recommended that the proposed transmission line corridor will have minimal, if any, adverse effects on the environment and public health, safety and welfare. Those agencies have recommended no reason why the site should not be certified subject to the conditions proposed by the Department of Environmental Regulation, which conditions are attached to this Recommended Order. Notice of the final certification hearing was published on May 13, 1981, in the Tallahassee Democrat, a daily newspaper published at Tallahassee, in Leon County, Florida.
Recommendation Having reviewed the record of this proceeding, and based upon the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that certification, pursuant to the Transmission Lines Siting Act, Chapter 403, Florida Statutes (1980 Supp.), be GRANTED to the City of Tallahassee for the transmission line corridor and the construction of the subject transmission lines as proposed in the application as amended and the evidence admitted to the record. It is further RECOMMENDED that certification be made subject to the Conditions of Certification attached hereto and the further condition pursuant to the requirement in Section 403.531(3), Florida Statutes (1980 Supp.), that the City of Tallahassee 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. DONE AND ENTERED this 23rd day of July 1981 in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1981. COPIES FURNISHED: Louis F. Hubener, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 C. Laurence Keesey, Esquire Department of Veteran and Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301 Paul Sexton, Esquire Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Douglas Stowell, Esquire Northwest Florida Water Management District Route 1, Box 3100 Havana, Florida 32333 Kenneth Gilleland, Esquire Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32301 John Williams, Esquire Department of Natural Resources 3300 Commonwealth Building Tallahassee, Florida Ted Steinmeyer, Esquire Leon County Attorney Leon County Courthouse, Room 203 Tallahassee, Florida 32301 John Shaw Curry, Esquire Gadsden County Attorney Post Office Box 469 Quincy, Florida 32351 Barrett Johnson, Esquire c/o Mahoney, Hadlow & Adams Post Office Box 471 Tallahassee, Florida 32302 James R. Brindell, Esquire Post Office Box 3103 Tallahassee, Florida 32303 (Representing Riverwood Acres Neighborhood Association)
The Issue The issues for determination are whether either of the properly proposed corridors (the FPL Corridor or the Alternate Corridor) for the Collier-Orange River #3 230-kV transmission line (the COR #3 Line) comply with the criteria in Section 403.529(4)(a)-(e), Florida Statutes (2003); and, if so, which of the corridors have the least adverse impacts with respect to the criteria in Section 403.529(4)(a)-(e), Florida Statutes, including cost. (All citations are to the 2002 version of the Florida Statutes unless otherwise indicated.) If the Florida Power & Light Company (FPL) Preferred Corridor (FPL Corridor) is determined to have the least adverse impacts, or if the two corridors are determined to be substantially equal in adverse impacts, the Siting Board must determine whether the FPL application for corridor certification should be approved in whole, with modifications or conditions, or denied. § 403.529(4) & (5)(c), Fla. Stat. If it is determined that the Alternate Corridor proposed by Collier Enterprises, Ltd. (CE) and Barron Collier Companies (BCC) has the least adverse impacts, including costs, since this corridor was rejected by FPL for consideration pursuant to Section 403.5271(1)(b), Florida Statutes, certification shall be denied or FPL shall be allowed to submit an amended application to include such corridor. § 403.529(5)(b), Fla. Stat.
Findings Of Fact THE PARTIES The TLSA establishes FPL and the DEP as parties to this proceeding, as well as the following upon their filing of a notice of intent to be a party, which each has done: Florida Department of Transportation, SFWMD, Lee County, City of Fort Myers, and the City of Bonita Springs. The following agencies did not participate in the proceeding and did not file a notice of intent before the 30th day prior to the certification hearing and each one is therefore deemed to have waived its right to be a party: PSC, Department of Community Affairs, Florida Fish and Wildlife Conservation Commission, Southwest Florida Regional Planning Council, and Collier County. § 403.527(4), Fla. Stat. Approximately five linear miles of FPL’s Corridor is located on real property owned by BCC. One section, i.e., 640 acres, is located along SR 82 adjoining FPL’s Corridor, one section north and east of Lake Trafford to the east of the FPL Corridor, and four sections along the north side of Immokalee Road, CR 846. Virtually all of those lands along Immokalee Road on the north side are stewardship-receiving areas, which means they can receive a density of up to four dwelling units per acre. See Findings of Fact 90 and 102. Locating the proposed transmission line on real property owned by BCC may result in adverse environmental impacts to BCC’s real property if not subject to appropriate conditions of certification. Such impacts could include, but may not be limited to, impacts to wetlands. Additional buffering may be required for BCC’s property. BCC’s substantial interests are affected by and subject to determination in this proceeding. Approximately 5.5 linear miles of FPL’s Corridor is located on real property owned by CE in Collier County. Material here, CE owns land just north (and west) of the intersection of Immokalee Road (CR 846) and south of the Lee County Electrical Cooperative (LCEC) 138-kV ROW that turns to the east. CE land proceeds south of Oil Well Road, with the southernmost tip adjacent to I-75. (BCC also owns adjacent land east of this location.) See Findings of Fact 93-94 and 99. These lands are among a large group of landholdings designated as the Rural Land Stewardship Area that is designated in comprehensive plan amendments. The allowed density as noted above is up to four dwelling units per acre in a variety of forms, including compact rural development, village, towns, and hamlets that could provide for a range of mixed uses on these lands. These lands can be classified as either sending or receiving lands. See Finding of fact 99. Locating the proposed transmission line on real property owned by CE may result in adverse environmental impacts to CE’s real property if not subject to appropriate conditions of certification. Such impacts could include, but may not be limited to, impacts to wetlands. CE may also need to undertake additional landscaping and buffering in order to conceal the view of the transmission line. The view of the Camp Kaeis slough (located approximately one mile west of the intersection described in Finding of Fact 4) from CE property may be impacted in the future. See Finding of Fact 94. CE’s substantial interests are affected by and subject to determination in this proceeding. Intervenor, Parklands Development, L.P. (Parklands), is the owner of the east one-half (1/2) of Section 4, Township 48 South, Range 26 East in Lee County, Florida, less approximately 83 acres in the northeastern portion of the east one-half of Section 4 which is owned by DiVosta and Company, Inc. Parklands has also developed the western one-half of Section 4 and still owns portions of that one-half section that have not been sold to individual lot owners. These parcels are within the City of Bonita Springs. In addition, Parklands is the owner of substantially all of Section 9, Township 48 South, Range 26 East in Collier County, Florida. Parklands further has a contract to purchase 180+ acres in the northwest corner of Section 3, Township 48 South, Range 26 East in Lee County, Florida, from Corkscrew Growers, Inc. Parklands’ substantial interests will be affected by action of the Transmission Line Siting Board because construction of the Alternate Corridor could affect Parklands’ use and development of its property. In addition, Parklands has an interest in assuring the availability of a reliable source of power for its developments. Accordingly, Parklands’ substantial interests are affected by and subject to determination in this proceeding. Intervenor, DiVosta Homes L.P., successor by merger with DiVosta and Company, Inc. (DiVosta), is the owner of approximately 468 acres of real property in the City of Bonita Springs, Lee County, Florida, as identified in the Warranty Deed attached to its Petition to Intervene. In addition, DiVosta owns approximately 83.61 acres in the Northeast Quarter of Section 4, Township 48 South, Range 26 East; approximately 109.05 acres in the Southwest Quarter of Section 3, Township 48 South, Range 26 East in Lee County; approximately 214 acres in Section 26, Township 50 South, Range 26 East and approximately 6 acres in Section 34, Township 50 South, Range 26 East, both in Collier County, Florida. DiVosta’s substantial interests will be affected by the action of the Transmission Line Siting Board because construction of the Alternate Corridor could affect DiVosta’s use and development of its property. In addition, DiVosta has an interest in assuring the availability of a reliable source of power for its developments. Accordingly, DiVosta’s substantial interests are affected by and subject to determination in this proceeding. The City of Bonita Springs is a municipality in Lee County, Florida. The City of Ft. Myers, a municipality, appeared at the final hearing. Pursuant to Section 403.527(4)(c)2., Florida Statutes, domestic non-profit corporations formed, in whole or in part, to promote the conservation and protection of the environment or to promote comprehensive planning or orderly development of the area in which the proposed transmission line or corridor is located are parties to the proceeding upon the filing of a notice of intent to be a party. Having complied with these statutory requirements the following are parties to this proceeding: Collier County Audubon Society, Inc., Conservancy of Southwest Florida, Florida Audubon Society, Florida Wildlife Federation, and Responsible Growth Management Coalition. Kenneth E. Smith’s substantial interests are affected by and subject to determination in this proceeding because FPL’s Preferred Corridor includes real property owned by Mr. Smith east of Green Meadows Road. See Findings of Fact 80 and 243. STIPULATIONS ENTERED INTO BY THE PARTIES The following parties signed stipulations with FPL in which they adopted the position and witnesses of FPL at the certification hearing: DiVosta Homes, L.P., Parklands Development Limited Partnership, Florida Wildlife Federation, Collier County Audubon Society, Florida Audubon Society, Conservancy of Southwest Florida, and Responsible Growth Management Coalition. FPL, BCC, and CE also entered into a stipulation that the location, construction and maintenance of the COR #3 230 kV transmission line (COR #3 Line) in either the FPL Corridor or the portion of the Alternate Corridor within the existing Common ROW between the Orange River and Collier substations could both be consistent with applicable local government comprehensive plans and would comply with all non-procedural requirements of agencies. The stipulation reserved the right of BCC and CE to argue as to the extent to which locating, constructing and maintaining the COR #3 Line in either corridor would be consistent with applicable comprehensive plans and non- procedural requirements of agencies. FPL reserved the right to argue as to the inapplicability of any provisions of local government comprehensive plans to the location, construction and maintenance of electric transmission lines within established ROWs. The stipulation was entered into the record as Joint Exhibit 9. The parties also stipulated that the COR #3 Line could be constructed on either the FPL Corridor or the Alternate Corridor in compliance with the electric and magnetic field standards of Florida Administrative Code Chapter 62-814. FPL APPLICATION General FPL submitted the application to the DEP on April 30, 2003. The DEP determined that the application was complete on May 13, 2003, and sufficient on August 21, 2003. On October 10, 2003, the DEP issued its Written Analysis, incorporating the reports of the reviewing agencies and including proposed conditions of certification. Project Description An electrical transmission line’s purpose is to transport large amounts of electricity from a generating facility to one or more substations. At the substation, the electricity can be either increased or reduced in voltage through transformers and other electrical equipment for further transportation or for distribution at lower voltages directly to customers. Florida has a highly integrated electric transmission line system. High voltage transmission lines connect the various electric generating utilities to one another. The interconnected electric grid provides benefits to the state because it allows electric utilities to share generation capacity, resulting in lower electrical rates, and to back up one another in emergencies. FPL’s service area generally covers the eastern half of the Florida peninsula and Southwest Florida. FPL is seeking certification of a corridor between the Orange River substation (east of Ft. Myers, Lee County) and the Collier substation (near Naples, in Collier County) within which it will ultimately construct the COR #3 Line on a narrow ROW. Once all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the width of the 15- foot to 60 foot ROW. (A ROW consists of the actual property rights that FPL will acquire to construct the transmission line. A corridor is a much larger area that includes the boundaries of the ROW within it. Once a ROW is established, the boundaries of the corridor become moot. See generally § 403.522(10), Fla. Stat.) The service area for the proposed COR #3 Line (the “Project Service Area”) is southern Lee County and Collier County. The Project Service Area is bounded on the north by the Fort Myers Power Plant switchyard and the Orange River substation, on the east by a line that follows the boundary between Lee and Hendry Counties, on the west by the Gulf of Mexico, and on the south by FPL’s southernmost customer in Collier County.1 (FPL’s Ft. Myers Power Plant is north of and nearby the Orange River substation and is interconnected with that substation with transmission lines.) The proposed FPL Corridor is approximately 53.9 miles in length. If approved, FPL expects to incorporate an approximately 14-mile 230-kV transmission line into the new line between the Orangetree substation, located (south) on Immokalee Road (CR 846), and the intersection of FPL’s existing Collier- Orange #1 and #2 transmission Common ROW and Livingston Road. (See FPL Exhibit 4 for the location of the proposed FPL Corridor, the FPL Common ROW, and other landmarks.) There are three 138-kV lines flowing south out of the Ft. Myers Power Plant and a fourth radial line that is not included in the Project Service Area. There are four existing 230-kV lines flowing southeast out of the Ft. Myers Power Plant to the Orange River substation. (See FPL Exhibit 10.) There are three 230-kV lines that flow south out of the Orange River substation and eventually terminate at the Collier substation to the south. One phase is known as Collier- Orange River #1 and the other is Collier-Orange River #2. A third 230-kV line runs from the Orange River substation south along the Common ROW then west to the Alico substation and then from Alico (loops back to the east) and south along the Common ROW to the Collier substation. (See FPL Exhibit 10.) One 500-kV line flows south out of the Orange River substation along the Common ROW and then, east of the Southwest Florida International Airport, flows east to Andytown. Id. The Project Service Area is an electrical “peninsula,” that is, all electricity is brought into the area and flows from the north to the south from the Fort Myers Power Plant or the Orange River substation and then south. (See FPL Exhibits 9 and 10.) The Project Service Area is dependent on the transmission line system to import electricity from the north. (The Florida Public Service Commission (PSC) found, in part, that “[t]he principal bulk transmission link into the region south of Ft. Myers is an existing 230-kV connection between the Orange River substation, just east of Ft. Myers, and the Collier substation adjacent to Naples. Thus, the area south of Ft. Myers, including Naples, is considered an electrical peninsula.”) The primary path for transmission lines bringing electricity into the Project Service Area is on the existing Common ROW between the Orange River substation east of Fort Myers in Lee County and the Collier substation east of Naples in Collier County. This single Common ROW contains all three of the 230-kV transmission lines, as well as some other 138-kV and a 500-kV transmission line segments, that collectively bring about 70-75 percent of the electricity into the Project Service Area. See also Findings of Fact 22-24. The three objectives of the COR #3 Line project are: (1) to address the need, as confirmed by the PSC, to provide FPL’s existing and future customers in the Project Service Area with additional electricity; (2) to enhance the reliability of electric service to the customers in the Project Service Area by locating the new line on a geographically separate route from the existing lines on the Common ROW; and (3) to provide a secondary feed, known as “looping,” to the new Orangetree distribution substation in eastern Collier County. Need for the COR #3 Line The PSC determined a new 230-kV transmission line between the Orange River substation and the Collier substation is needed, taking into account the need for electric system reliability and integrity in Southwest Florida and the need to provide abundant, low-cost electrical energy to assure the economic well-being of the citizens of the State, particularly those in Southwest Florida. The PSC noted that FPL’s planning studies indicate this additional transmission capacity will be needed by December 2005 to alleviate potential overloads and low voltage conditions that could result from a single contingency event.2 The PSC found that construction of the COR #3 Line on a route that is geographically separate from the Common ROW will enhance system reliability, integrity, and restoration of service more than locating the line on the existing Common ROW. The PSC also found that placement of the COR #3 Line on the existing Common ROW is “not optimal” due to concerns with serving the Project Service Area via a “single corridor”3 and the “inability for future expansion of FPL’s transmission system to the east of the existing corridor” or Common ROW. The PSC recognized, however, that any party to the site certification hearing may propose an alternate corridor and that the Siting Board will make the final corridor selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the COR #3 Line will be a single-pole unguyed concrete structure, 90 feet above grade in height, with the conductors framed in a vertical configuration. Each of the three conductors is anticipated to be a 1,431 thousand circular mils (kcmil), aluminum conductor, steel reinforced alumoweld core (ACSR/AW). There will also be a smaller overhead ground wire to provide shielding and lightning protection for the conductors. The maximum current rating (MCR) for the line will be 1,905 amperes.4 In some locations, electric distribution lines and communication cables may also be attached to the structures beneath the conductors. The span length between structures will typically vary between 250 feet and 700 feet, depending on site-specific ROW widths and other design considerations. Both pole height and span length may vary to accommodate such things as locating poles to coincide with property boundaries or existing collocated utility facility poles, to minimize or avoid wetland impacts, to cross other utility lines, and to facilitate wide crossings of water bodies and roadways. Shorter structures may be required in proximity to an airstrip to comply with applicable clear zones. Where the transmission line turns angles in excess of 10-15 degrees, the structures may be guyed to support the differential tension. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Pads may be installed in low or wet areas. Access roads may be built in some areas where linear features, such as an existing line or road, do not exist. Where constructed, the typical road top width will be about 14 feet, with a 2:1 side slope, and a minimum elevation of 6 inches over mean or seasonal high water. Structure pads will have variable sizes (e.g., 45’X50’, 34’X50’, and 35’X60’), depending on site-specific requirements, but will be of sufficient size to provide access to structure locations for the large construction equipment. Access roads and structure pads will not be paved. Culverts will be installed beneath access roads and structure pads with spacing, diameter, and length to maintain pre-construction flows. The design of the COR #3 Line complies with good engineering practices. Transmission Line Construction The transmission line will be constructed in seven phases: surveying; ROW clearing; construction of access roads and structure pads; line construction; pole framing; line stringing; and ROW restoration. Surveying the ROW to facilitate acquisition of the necessary property interests is a first step towards construction. Since 95 percent of the FPL Corridor is collocated with existing roads and utility facilities, the need for acquisition of private property has been minimized. After property rights have been acquired, the initial phase of construction is to clear the ROW. Collocation of the FPL Corridor with existing roads and utility facilities will enable required clearing to be minimized. Clearing will consist mainly of tree trimming and the occasional removal of trees that exceed or are capable of exceeding 14 feet in height. In wetlands, trees capable of exceeding 14 feet in height that could come in conflict with the line will be removed by hand-clearing or use of very low ground pressure equipment. Low-growing herbaceous vegetation will not be cleared from wetlands. After the ROW is cleared, any necessary access roads and structure pads will be constructed. Typically, access road and pads are only required in wet and low areas. This enables all subsequent construction activity in those wet areas to remain on the newly constructed access road and pad. The next phases of construction involve the physical transmission line construction. Initially, materials are brought to the jobsite. Next, holes are augered at each pole location and the poles are then erected using cranes or other heavy equipment. The hole is then backfilled with the excavated material or, if that material is unsuitable, with suitable fill from offsite. Typically, the pole is embedded into the ground approximately 16 feet to 20 feet. After the poles are set, the poles are framed; that is, the insulators and hardware are installed on the pole.5 Then through a wire pulling operation the conductors and overhead ground wires are installed. The conductors are then properly sagged and tensioned to provide the proper vertical clearances. Next, the conductors are “clipped in” to the insulator assemblies. The final stage of construction is ROW restoration or clean up. During all stages of construction, FPL will maintain traffic on any adjacent county, state or federal roadways in compliance with applicable Management of Traffic (MOT) regulations or plans. Throughout construction, sedimentation management techniques, such as the use of silt screens and hay bales, will be employed as necessary to minimize potential impacts from erosion and sedimentation. Turbidity testing is also performed. While each phase of construction will typically take only one to seven days in an area, the entire COR #3 Line construction process will last approximately 13 months. The COR #3 Line will be constructed in compliance with all applicable design codes, including the National Electrical Safety Code, the DEP’s regulations on electric and magnetic fields,6 the Florida DOT Utility Accommodation Manual, the Lee County and Collier County noise ordinances, and standards of the American Society of Civil Engineers (ASCE), the Institute of Electronic & Electrical Engineers (IEEE), American Society of Testing Materials (ASTM) and American National Standards Institute (ANSI), as well as FPL’s own design standards. See Findings of Fact 226 and 252. Methodology for Choosing the FPL Corridor Importance of Geographic Separation On project initiation, FPL management instructed its multi-disciplinary corridor selection team to identify, if it could (“to the greatest extent practicable”), a corridor for the COR #3 Line that is geographically separate from the existing Common ROW. This instruction was based on the importance of maintaining some geographic separation between the existing Common ROW and the new COR #3 Line to enhance reliability of electric service in the electrical peninsula to be served by the new line. It is not prudent utility planning or practice to carry excessive amounts of power on any one line, substation, transformer or transmission ROW. While FPL has approximately 15 common ROWs on its system with power transfer capability equivalent to four 230-kV transmission lines or more, no common ROW, other than the one between the Orange River and Collier substations, is an electrical peninsula that lacks a power generation source at one end. In other words, the existing Common ROW between the Orange River and Collier substations is the only Common ROW on the FPL system that serves an electrical “peninsula.” Since all other FPL common ROWs have a generation source at both ends, the historical outages, resulting when all of the transmission lines on those ROWs were taken out of service, have generally been on the order of hours or minutes. This may be because FPL has the ability to respond quickly, if by no other means, by restarting those power plants on either end of the common ROW to get electricity back to its customers. This strategy is not a reasonable option in the Project Service Area because there are no electric generating plants connected to the transmission system within the Project Service Area south of the Orange River substation. The planning standards of the North American Electric Reliability Council (NERC) provide that there are situations when it is appropriate for a utility to decide to do more than is required by those standards. In determining whether to go beyond NERC standards, the consequences of a situation occurring may be considered even if the frequency of such a situation causing an electrical outage would be rare. In this case, FPL decided that a worst case scenario loss of up to 80 percent of the electric capacity (all transmission lines on the Common ROW including the COR #3) in the Project Service Area potentially for as long as six days, which could affect about 600,000 people (less the population of the Project Service Area that may be served via the 138-kV transmission lines), was a severe enough consequence to warrant identifying a geographically separate ROW to the extent possible.7 See also Findings of Fact 185 and 297. Corridor Selection and Public Involvement FPL established a multi-disciplinary team to identify and evaluate routing alternatives within the Project Study Area. This multi-disciplinary team was comprised of a transmission line engineer, a land use planner, and an ecologist. As noted herein, FPL management provided the team with the major premise that FPL wanted a geographically separate corridor for the COR # Line. During the route evaluation study, the multi-disciplinary team did not identify or evaluate the Common ROW as a route option, nor did they seek input from the public on use of the Common ROW for the COR #3 Line. However, the team responded to public inquiry on this subject and explained to the public the basis for FPL’s desire for a geographically separate corridor. FPL’s multi-disciplinary team gathered data on siting opportunities and constraints within the study area,8 and identified dozens of line segments which could be assembled into more than 3,700 alternate routes for the COR #3 Line. FPL also engaged in an extensive public participation program to gather input for its route evaluation study. This public participation program included several open houses, establishment of a Community Advisory Panel, mass mailings, a community survey, a toll-free telephone number, a website, and numerous meetings with regulatory agencies, community associations, homeowner groups, and individual homeowners and property owners. The public participation program provided substantive input to the route evaluation study in terms of a study area boundary, siting opportunities and constraints in the area, identification of route segments to be evaluated, and weights to be assigned to the route evaluation criteria. For example, the study area is dominated by a very large area of environmentally- sensitive lands, wetlands, and lands acquired or proposed for acquisition under several land acquisition programs for conservation purposes, generally referred to as the Corkscrew Swamp System. Due to input from the community during the public participation program, the multi-disciplinary team expanded the study area to the east to include route alignments suggested by the public/agency participants that could avoid the environmentally sensitive Corkscrew Swamp System. FPL’s multi-disciplinary team evaluated the 3,700+ routes quantitatively, using ten weighted criteria, and then evaluated in more detail, using both quantitative and qualitative criteria, the top three distinct routes. The Gencore (literally generates corridors) computer software was used to help the team identify highly ranked distinct alternatives (combinations of segments), which were then subject to further, more detailed evaluation. (The FPL Corridor was ranked using the Gencore computer analysis and it became number 16 out of 3,784 alternatives studied.) Ultimately, FPL’s multi-disciplinary team identified the route of the FPL Corridor as providing the most appropriate minimization and balance of factors to address the project objectives. At the public hearing held on February 11, 2004, a representative of the CREW Land and Water Trust, a non-profit public/private partnership organization formed in 1989 to protect the Corkscrew Regional Ecosystem Watershed expressed appreciation for FPL’s public participation work with other interests in the area to identify its FPL Corridor. Collier County Commissioner Tom Henning also noted FPL’s impressive public involvement efforts in selecting its FPL Corridor. Once the preferred alignment was identified, the multi-disciplinary team delineated the boundaries (width) of the FPL Corridor to provide flexibility, including efforts to avoid or minimize impacts, for locating the eventual ROW within that corridor. The southernmost 1.8-mile segment of the FPL Corridor uses the existing Common ROW. After FPL’s multi-disciplinary team met significant community opposition to the geographically separate alternative routes identified by FPL in this area, FPL determined that the risk of using the Common ROW for this short segment was acceptable because: the Common ROW is significantly wider in this segment than to the north and allows for some physical separation between the COR #3 Line and the existing 230-kV lines; if a multiple outage of all lines on the Common ROW occurred in this 1.8-mile segment, fewer people would be affected than if the outage occurred further to the north because power could still be provided to several substations located to the north of this 1.8 mile segment; and the likelihood of a multiple outage of all lines in this 1.8-mile segment is lower than anywhere else along the Common ROW because there is extensive development on either side of the ROW and a major roadway on the east, lessening the likelihood of a wildfire, vandalism, sabotage or terrorism. Agencies’ Review of FPL’s Application and Resulting Determinations Each state, regional, and local agency with regulatory authority over the project reviewed FPL’s Application and submitted to the DEP a report as to the impact of the proposed COR #3 Line on matters within the agency’s jurisdiction, as required by Section 403.526(2), Florida Statutes. The DEP then compiled these reports and made a recommendation that the COR #3 Line be granted approval, subject to appropriate conditions, which have been amended. See Preliminary Statement, p. 5. DESCRIPTION OF THE FPL CORRIDOR Approximately 95 percent of the FPL Corridor is collocated with existing linear features, such as roads and transmission lines. This collocation will minimize impacts of the new COR #3 Line. Approximately three miles of the total line length of the FPL Corridor is not immediately adjacent to either a dedicated road ROW and/or an existing transmission line ROW. The width of the FPL Corridor varies along the route to provide flexibility within the corridor to minimize or avoid impacts to such areas as existing developments and large wetland areas. A large portion of the FPL Corridor is within the territory of the LCEC. From the Orange River Substation to State Road (SR) 82 The FPL Corridor begins at the north at the Orange River substation, which is east of Fort Myers. From the Orange River substation, the FPL Corridor proceeds west for about one mile along the north side of, and generally paralleling, Homestead Lane/Tice Street. In this area, the corridor is 2,600 feet wide to provide flexibility in meeting the FAA and Lee County tall structure ordinance clearance requirements from the Strayhorn airstrip south of Homestead Lane. Approximately one mile west of the substation, the corridor turns south and is located on an existing FPL 138-kV 100 and 160 foot-wide transmission line ROW for about three miles to SR 82. The land uses around the substation are primarily agricultural and some low-density residential. Along the existing FPL ROW in this segment, the land uses are primarily agricultural, with some low-density development to the west of the FPL Corridor. This segment of the FPL Corridor includes development, lands undergoing development, and agricultural lands that have very little or no value from a vegetation and wildlife perspective. The few isolated natural habitats in this segment have already been affected by man’s activities. At the public hearing, two residents who live on Tice Street expressed concern for the COR #3 Line being placed close to their homes and asked that the line be placed on the existing Common ROW or in the far northern section of the FPL Corridor. FPL has agreed to a condition of certification that requires it to locate the COR #3 Line north of Tice Lane (and Homestead Road) in order to minimize potential impacts to the existing residential areas. (See Joint Exhibit 5A, p.11-Condition of Certification XVIII.D. See also March 17, 2004, draft of conditions, p. 11, filed at DOAH with the Proposed Recommended Order submitted by FPL and other parties and April 19, 2004, Notice of Filing Corrected Conditions of Certification, paragraph D, “FPL agrees to locate the transmission line north of Homestead Road and Tice Lane in order to minimize potential impacts to the existing residential areas subject to the preferred corridor.” This latter set of draft conditions were not admitted into evidence and should be considered by the Siting Board with all parties given an opportunity to comment thereon.) Notwithstanding, the residents were concerned that the precise location of the line was unknown. Along SR 82 to Sunshine Boulevard (Including “Line Swap”) At SR 82, the FPL Corridor turns east and follows SR 82 in a southeasterly direction for about 7.5 miles to the intersection with Sunshine Boulevard and Green Meadows Road. In this area, the corridor is 500 feet wide, centered on SR 82, to allow the possibility of placing the COR #3 Line on either side of the roadway. Where this segment crosses the existing Common ROW, FPL will use a “line swap” configuration to maintain a separation of about one-half mile between the new COR #3 Line and the existing transmission lines on the Common ROW.9 See FPL Exhibits 6-7.) Thus, the FPL Corridor includes a lateral 400- foot-wide segment in this area that follows Buckingham Road for about 2,500 feet to the east of the Common ROW and then traverses south along the west side of the section line to SR 82. The land use along the north side of SR 82 is the Lehigh Acres residential subdivision. On the south side of SR 82, the land uses are largely agricultural. In the vicinity of the “line swap,” on the north side of Buckingham Road, is Lee County’s resource recovery facility. See Finding of Fact 75. Due to the presence of a major roadway, Lehigh Acres, a large subdivision north of SR 82, and developing lands and farmlands south of SR 82, there are some natural habitats, but in this segment of the FPL Corridor, the natural habitats have been somewhat diminished. The approximately one-mile portion of this segment that is not collocated with existing roads or transmission lines crosses pine flatwoods and mixed forest habitat in an area that is already disturbed by the east-west crossing of Colonial Boulevard. Lee County’s resource recovery (or “waste-to-energy”) facility, including an incinerator and recycling facility, is located on the north side of Buckingham Road. Lee County plans to expand the recycling facility by extending it about 140 feet- 150 feet to the south, towards Buckingham Road. The recycling facility’s rezoning approval requires a 200-foot setback from Buckingham Road, including a significant vegetative buffer. These requirements will continue to be met with the expansion of the recycling facility, even though some of the vegetative buffer that exists between the recycling facility and Buckingham Road will have to be removed. Lee County is concerned that even more vegetation in that buffer will have to be removed if the COR #3 Line is placed on the north side of Buckingham Road. FPL has agreed to locate the COR #3 Line south of the northern ROW line of Buckingham Road in Lee County, if possible. If FPL is unable to obtain the necessary property interests to place the transmission line ROW within this area, FPL will locate the transmission line adjacent to the northern edge of the road ROW, such that there is no intervening land between the transmission line and the Buckingham Road ROW. Any trees or shrubs disturbed by FPL north of the centerline of Buckingham Road ROW will be replaced on adjacent Lee County property at FPL's expense. (See Joint Exhibit 5A, p. 12, Condition of Certification XVIII.G. See also March 17, 2004, draft of conditions, p. 11.) From the Intersection of SR 82 and Sunshine Boulevard/Green Meadows Road to FPL’s 500-kV Transmission Line ROW At the intersection of SR 82 and Sunshine Boulevard and Green Meadows Road, the FPL Corridor turns south and follows Green Meadows Road, a private road, for about two miles to the existing FPL 500-kV transmission line ROW. A new ROW will be required here. In this area, the corridor is 200 feet wide, is centered on Green Meadows Road, and includes the roadbed of Green Meadows Road within its boundaries. The land uses on the west side of Green Meadows Road are primarily agricultural. On the east side, there is some vacant land, some agricultural land, and some low-density residential land use, perhaps with a density of five residential units per acre. (During the public hearing, there was testimony that there are approximately five residences on Green Meadows Road.) Other than the isolated freshwater marsh along the southwest side of Green Meadows Road, the agricultural and residential areas along Green Meadows Road are of little or no ecological value. Intervenor, Kenneth E. Smith, owns a home on the east side of Green Meadows Road. Mr. Smith expressed concern about the aesthetics of the transmission line, property values, the potential proximity of the line to his home and potential health risks associated with the line being nearby his home, and emergency evacuation if an extreme event brought down one or more transmission structures. Mr. Smith suggested that the FPL line be “co-located to existing facilities” and not along Green Meadows Road. Lines of similar design to the COR #3 Line exist in all types of land uses throughout Florida. The National Electrical Safety Code (NESC) governs the proximity of transmission lines to structures, and FPL has committed to comply with that Code. In emergency situations where there is a concern that evacuation could be hampered, residents have the option to go to a shelter established within the County for such purposes. Moreover, FPL has agreed to a condition of certification that requires it to finalize a route that minimizes potential adverse impacts to the existing residences on the east side of Green Meadows Road by locating the transmission line on the west side of the road to the extent practicable. (Joint Exhibit 5A, p. 11, Condition of Certification XVIII.E. See also March 17, 2004, draft of conditions, p. 11 and April 19, 2004, corrected conditions, paragraph E- “To the extent practicable, FPL must finalize a route that minimizes potential adverse impacts to the existing residential areas on Green Meadows Road by locating the transmission line on the west side of Green Meadows Road.”) At the public hearing, a property owner with mining interests on both sides of Green Meadows Road expressed support for placement of the COR #3 Line on the existing Common ROW. The same person is president of the Corkscrew Island Neighborhood Association, which is located in a rectangular area at the south bend in Immokalee Road, near Corkscrew Swamp and Bird Rookery Swamp to the west. See Finding of Fact 98. (See FPL Exhibit 4.) Along the FPL 500-kV Transmission Line ROW At the intersection of Green Meadows Road and the FPL Andytown-Orange River 500-kV 330 foot-wide transmission line ROW, the FPL Corridor turns southeast and runs along the 500-kV ROW for approximately 13 miles. In this segment, the FPL Corridor is 400 feet wide to include the existing FPL 500-kV ROW plus 70 feet to the north of that ROW. The land uses along this segment are primarily agricultural and some vacant land. The western portion of this segment (Lee County) of the FPL Corridor includes many natural areas; however, the wildlife habitats that actually occur on the FPL 500-kV ROW are shrub and brushland and some freshwater marshes. The eastern portion (Collier County) of this segment of the FPL Corridor is mostly citrus lands, which have very little or no value to wildlife. From the FPL 500-kV Transmission Line ROW to Immokalee Road At a point approximately two miles west of the intersection of SR 82 and SR 29, the FPL Corridor turns south and follows section lines and an existing LCEC 138-kV transmission line ROW for approximately six miles. In this six- mile segment, the corridor is 300 feet wide, centered on the LCEC transmission ROW, except in an area of development near Lake Trafford Road where the corridor is reduced to 200 feet to avoid intrusion into existing residential development to the west. About two miles north of Immokalee Road, the LCEC line turns to the east, but the FPL Corridor continues south to Immokalee Road. In this two-mile segment, the corridor is 500 feet wide. The land uses in this segment are primarily agricultural and vacant land, except in the vicinity of Lake Trafford, where there is residential development on the west side of the FPL Corridor around Lake Trafford Road. On the east side of the FPL Corridor, just north of Lake Trafford Road, there is a proposed Habitat for Humanity subdivision. See Finding of Fact 91. The portion of this segment north of Lake Trafford Road is largely citrus and residential lands, which have very little or no value to wildlife. South of Lake Trafford Road, the FPL Corridor crosses two small wetland systems that are a part of the Corkscrew Swamp System. The first of these is crossed in a location where the FPL Corridor is collocated with the LCEC 138-kV transmission line and access road. This prior disturbance has created a shrub swamp habitat in this wetland. (The “unnamed flowway” is located east of Lake Trafford.) Farther to the south along this segment, the FPL Corridor crosses agricultural lands and a narrow section of Baucomb Strand, which is primarily forested and somewhat undisturbed. (See FPL Exhibit 4.) BCC owns four sections of land along the north side of Immokalee Road, west of the intersection of Immokalee Road and the LCEC ROW in this segment. This property is within the Immokalee urban area, which allows for a more intense future residential use. See also Finding of Fact 2. At the public hearing, an officer of Habitat for Humanity of Collier County, Inc., expressed concern that placement of the COR #3 Line in this segment would preclude use of five lots within a proposed adjacent 165-lot Habitat for Humanity development. However, in this location FPL will collocate the COR #3 Line entirely within the LCEC easement, and there is not likely to be an impact on any of the proposed Habitat building lots. This segment of the FPL Corridor is within the territory of the LCEC. Currently, LCEC receives its electricity from FPL’s Buckingham substation, from which it serves about 29,000 of its customers on a radial line.10 If the COR #3 Line is located in this segment of the FPL Corridor, LCEC plans to construct a 230- to 138-kV substation in Collier County near the LCEC’s Immokalee substation to provide reliability looping to three of its four existing substations and two proposed substations in this portion of its territory. The proposed interconnection between the COR #3 Line and the LCEC system will also improve the reliability to its fourth existing substation by taking 20-30 miles off its single source line. Without looping of LCEC’s substations, if the source of power is lost at the FPL Buckingham substation or if LCEC’s radial line is taken out of service at any location, it would cause a blackout to the residents served downstream from that loss of service. Currently, there is no alternative source of power for LCEC’s substations. Along Immokalee Road to Orangetree Substation The FPL Corridor follows the Immokalee Road (County Road (CR) 846) alignment, turning west, south, and west again for approximately 15 miles to the Orangetree substation, which is located on the south side of Immokalee Road, just west of Wilson Boulevard in eastern Collier County. For most of this 15-mile segment, the corridor is 400 feet wide, centered on Immokalee Road, allowing collocation along either side of the road ROW. For the last two miles northeast of the Orangetree substation, while the corridor continues to include both sides of Immokalee Road, it is narrowed on the east side to exclude existing residential development and is 300 feet wide. This segment of the FPL Corridor traverses largely agricultural land, some low-density residential areas, and vacant land, some of which is a portion of the Corkscrew Swamp System proposed for acquisition as conservation lands. This crossing of Camp Keais Strand (a Cypress and freshwater marsh system) is designated as Save Our Rivers lands, and occurs where Camp Keais Strand is already impacted by the crossing of Immokalee Road. (See FPL Exhibit 4.) Along this segment of the FPL Corridor, there is little existing residential development. There is one planned residential area, the Orangetree and Waterways of Naples community, and the low-density development of the Golden Gate Estates subdivision that is a very large residential subdivision. The gross densities of these developments are .77 units per acre for Orangetree/Waterways of Naples, and .44 units per acre for Golden Gate Estates. Farther to the west, after Immokalee Road has turned to the south, the FPL Corridor crosses the eastern edge of Bird Rookery Swamp. It is in this location that a Cardinal Air Plant was observed on the west side of Immokalee Road. See Finding of Fact 269. FPL has agreed to Condition of Certification XVIII. that requires FPL to use all available means to locate the transmission line ROW to the east of Immokalee Road in this area. (Joint Exhibit 5A, Condition of Certification XVIII. F., p. 11.) To the east of Immokalee Road lie predominantly agricultural and developing lands, which have very little or no value to wildlife. Transmission Lines in Rural Areas CE offered testimony expressing concern for placement of the COR #3 Line in this rural area. However, transmission lines are common in such rural areas since these lines are used to: provide connections between urban areas, as would the COR #3 Line; interconnect systems of different electric utilities; transport power from power plants, which are often in rural areas, to where the electricity is used; bring electricity to processing facilities, such as phosphate and juice processing plants, which are also often in rural areas. In rural areas, transmission lines are commonly sited along rural roadways. At the public hearing, the president of the Corkscrew Island Neighborhood Association expressed support for placement of the COR #3 Line on the existing Common ROW. His concern with the FPL Corridor in this segment was the aesthetic impact on the rural area and the increased cost of using the FPL Corridor. See also Finding of Fact 82. Plans for Future Development Adjacent to the eastern area of this segment of the FPL Corridor, CE owns approximately 1,920 acres north of Immokalee Road and approximately 19,000 acres to the south of the road. See Finding of Fact 4. CE’s property, which is already bisected by Immokalee Road, is not subject to urban development, such as commercial, residential, industrial, or recreational development, except some lands are used for recreational hunting. The property is used for agriculture, water management and environmental uses. These lands are part of the Collier County Rural Lands Stewardship Area, within which a property owner may designate agricultural lands and sensitive habitats as sending areas to transfer development rights to other property, called receiving areas. (Mr. Conrecode identified land north and south of Immokalee Road until Oil Well Road, as holdings or parcels of concern. The uses are “primarily cattle grazing, vegetation grow crop production and environmental.”) CE is in the process of designating these lands, but has not yet decided which of this property to designate as sending or receiving areas. The rural character of this area may be short-lived, as CE plans to develop its property adjacent to this segment of the FPL Corridor within the next 5 to 10 years. Such development could include residential, commercial, industrial, agricultural, ecological, and mining and minerals extraction. One of CE’s goals is to maximize the potential return on its properties. CE is concerned placement of the COR #3 Line adjacent to its property would impact the viewscape of the Camp Keais flowway area, the access to its property from Immokalee Road, and its ability to use the 20+ mile-long Camp Keais natural environmental system as a visual amenity to other properties. (See FPL Exhibit 4 for the location of Camp Keais.) CE is also concerned that when it develops its land adjacent to the COR #3 Line it will have to spend money to buffer and offset the visual and perceived impacts to residents and other business uses in the area by installing berming and landscaping. In the eastern area of this segment, west of the lands referenced above that are owned by CE, BCC owns four square miles of property on the north side of Immokalee Road. See Finding of Fact 2. As noted herein, most of the BCC lands that border Immokalee Road are Stewardship Receiving Areas under the Collier County Comprehensive Plan. This land could receive future residential development up to a density of four dwelling units per acre. BCC anticipates this land will be developed (residential with commercial within the community) within the next 10-15 years. Incorporation of Existing 230-kV Line from Orangetree Substation to FPL Common ROW (Not To Be Certified) The COR #3 Line will incorporate an existing 230-kV transmission line from the Orangetree substation west along the north side of the Immokalee Road ROW, south along Collier Boulevard or CR 951, and then west following an existing FPL transmission ROW (with a single 138-kV transmission line within the ROW) to a point along the existing Common ROW at its intersection with Livingston Road, approximately 1.8 miles north of the Collier substation. Certification is not being sought for this segment of the line. Southernmost 1.8 Miles of Existing Common ROW The final segment of the FPL Corridor follows the easternmost 250 feet of the existing 405 foot-wide Common ROW from the western end of the Orangetree 230-kv transmission line, south to Collier substation. The corridor follows the west side of Livingston Road. The land uses in this area are primarily existing planned residential development. The urbanized character of this segment precludes the presence of any significant wildlife habitat in this area. DETAILED DESCRIPTION OF THE ALTERNATE CORRIDOR The Alternate Corridor is approximately 36.8 miles long and is proposed to lie generally in or adjacent to FPL’s Common ROW transmission corridor that runs between the Orange River and Collier substations. As described in more detail above, the Alternate Corridor will leave the Common ROW at the intersection of the Common ROW and Immokalee Road and proceed east along Immokalee Road across CR 951 to the Orangetree substation. Like the FPL Corridor, the Alternate Corridor will connect at the Orangetree substation to incorporate FPL’s new 14-mile long 230-kV line (currently under construction) to accomplish completion of the new 230-kV circuit from FPL’s Orange River substation to the Collier substation. Unlike the FPL Corridor, the Alternate Corridor was selected by the CE/BCC consultants without any public outreach to obtain input from the community.11 The consultants gathered information about the location of properties owned by CE and BCC. Other than the Grey Oaks Development adjacent to the existing Common ROW, which ROW is incorporated into the southernmost 1.8 miles of both the FPL Corridor and the Alternate Corridor, there is no CE or BCC property adjacent to or traversed by the Alternate Corridor. See Findings of Fact 2-5. During the public hearing, Collier County Commissioner Tom Henning stated, in part, that he “would have hoped” that CE and BCC would have had a public meeting in the community prior to selecting the Alternate Corridor like FPL had done when selecting its FPL Corridor. Utilization of the Existing Common ROW The BCC and CE Alternate Corridor exits the Orange River substation on the existing Common ROW and proceeds south approximately 30 miles to Immokalee Road. (See FPL Exhibit 4 and CE Exhibit 61.) The existing Common ROW within the Alternate Corridor is wide enough to accommodate at least two additional 230-kV circuits. This segment of the Alternate Corridor within the Common ROW traverses over nine miles of wetlands. See Finding of Fact 286. The specific number of acres of wetlands that may be impacted by placing the COR #3 Line in the Alternate Corridor is unknown. On-site wetland delineations would be performed, if the Alternate Corridor were chosen, to locate the jurisdictional limits of the wetlands. Specific pole locations and pad locations and sizing would need to be determined. Thereafter, impacts to wetlands would be determined. From a review of aerial photography it appears that the Common ROW has not been cleared from edge to edge and certainly not maintained routinely edge-to-edge. Some wetland vegetation clearing may be required in order to construct a new line on the opposite side of the existing poles if those are selected. Immokalee Road From Existing Common ROW to Orangetree Substation At the intersection of the Common ROW and Immokalee Road, the Alternate Corridor turns east and follows Immokalee Road approximately 8.5 miles to the Orangetree substation. (See FPL Exhibit 4 and CE Exhibit 61.) To provide for making the eastward turn at the intersection, the proposed Alternate Corridor is extended to 500 feet on either side of the centerline of the existing Common ROW from a point 1,000 feet north of the intersection of the Common ROW and Immokalee Road to the same intersection. From that intersection, the Alternate Corridor extends east to the Orangetree substation, along Immokalee road, at a width of 500 feet, north and south from the centerline of Immokalee Road (for a total of 1,000 feet in width). (See CE Exhibit 29, p. 2.) There are 20 planned residential communities and one section of the Golden Gate Estates subdivision along the Immokalee Road portion of the Alternate Corridor. The gross densities of these residential developments range from .51 to 12 units per acre on the north side of Immokalee Road, and from 2.11 to 12.84 units per acre on the south side of the road. On the north side of Immokalee Road, all but one of the residential developments has gross densities greater than one unit per acre. On the south side of Immokalee Road all but one of the residential developments have gross densities greater than three units per acre. There is one planned residential community that is actually developed into two communities, Orangetree (Orangetree and Waterways of Naples), and eight units of Golden Gate Estates residential subdivision located along the north or west and south or east sides of the Immokalee Road portion of the FPL Corridor. The gross density for the Orangetree planned community is .77 units per acre and .44 units per acre for Golden Gates Estates. See Finding of Fact 94. The land segment west of CR 951 is more urban and developed, as opposed to the land segment east of CR 951, which is more rural. Siting Constraints within Immokalee Road ROW There was diverging evidence on whether the COR #3 Line could be located and constructed within the Immokalee Road ROW along the ROW segment from the FPL Common ROW running east along Immokalee Road to the intersection of CR 951. During the public hearing, Donald Scott, the director of Collier County's Transportation Planning Department, testified and appeared in this capacity. He stated that Collier County is going to widen to six lanes, the portion of Immokalee Road from Livingston Road (the FPL Common ROW) to CR 951, i.e., a portion of the Alternate Corridor. (See FPL Exhibit 4 for the location of the road-widening project.) He also stated that the County has “some concerns with where the poles might possibly be placed in regards to utilities and other issues we’re dealing with within the corridor.” He wanted “to be on the record to raise our concerns - - and need for more work. [He understood] it can be within a wide corridor and it might not affect the road, but we have concerns with our widening, and would like to work with F.P.L. more and see if it’s even feasible.” Mr. Scott further explained: “The section from Livingston to I-75 will start construction by the end of this year. It’s about 90 percent design plans right now. The section from I-75 to County Road 951 is due to start 2006 with a design build.” Mr. Scott also stated: “We’re having a lot of problems particularly between Livingston and I-75.” During their case-in-chief, BCC and CE’s experts, Dr. Glover and Ms. Day, opined that the COR #3 Line could be located within the Alternate Corridor along Immokalee Road from the FPL Common ROW east to the intersection at CR 951. Dr. Glover opined, in part, that the COR #3 Line could be built on the north side of Immokalee Road, between the road and the SFWMD canal with good engineering practices. He based his opinion, in part, on the placement of an existing 230 kV line on concrete, single pole structures that start at the Orangetree substation and run westerly to Collier Boulevard (CR 951), located on the north side of Immokalee Road and south of the canal. Ms. Day thought that there may be room for the line within the 1,000-foot corridor. She was uncertain as to a specific location for the line within the corridor, but suggested that it would be the subject of more detailed studies. During rebuttal and in response to the testimony of Dr. Glover and Ms. Day that the COR #3 Line can be built in the Alternate Corridor segment as described above, FPL’s transmission line engineer, Mr. Hronec testified over objection that he was doubtful that the COR #3 Line could be built within the Immokalee Road ROW in this segment due to road widening plans and the presence of multiple underground utilities. (As discussed in more detail below, Mr. Hronec also opined that a line could not be located within the SFWMD canal north of Immokalee road.) His opinion testimony was based upon conversations with the Collier County Transportation Planning and Engineering Departments, a review of the County’s proposed road projects and plans to widen the segment, and personal observations of the segment. (As of FPL’s case-in-chief when Mr. Hronec testified initially, he had not studied the ROW to the west of CR 951 in the same detail as he had to the east of CR 951.) There are numerous utility facilities in place within Immokalee Road ROW in this segment of the Alternate Corridor, both north and south of the road pavement. There is also a generally continuous guardrail adjacent to the north side of the roadway. There appear to be guardrails on the south side of the road, but not continuous. By agreement of the parties, memorialized in the Order dated February 24, 2004, page 2, CE was authorized to file transcripts of deposition(s) in response to Mr. Hronec’s rebuttal testimony. On March 19, 2004, CE timely filed the transcript of the deposition of Mr. Conrecode. Mr. Conrecode, a Florida-registered Professional Engineer, was formerly the capital projects director for Collier County and the public works administrator for Collier County. In both positions, he had responsibility to design and plan the road network in Collier County as well as the construction of existing road facilities and new road corridors. He is also involved with other transportation-related entities. Mr. Conrecode reviewed Collier County’s plans for the widening of Immokalee Road within the Alternate Corridor. He also spoke with Clarence Tears, the director of the Big Cypress Basin, regarding the concerns of SFWMD. Mr. Conrecode opined that there was “substantial amount of space between the guardrail at the north side of the road and the top bank of the canal” to place the transmission line poles. (He also took into consideration the location of existing underground utilities.) He also stated, “the configuration on the north side of Immokalee Road is very similar to what FP&L encountered on [CR] 951 as they ran the connection from the Collier substation to the [n]ew Orange Street [sic] substation, the proximity from the top of the bank to the edge of the road.” Mr. Conrecode also opined that the transmission line could be located within the canal ROW north of the canal and on the south side of the canal. He felt that the area north of the canal had the best and most abundant access east of I-75, but that it was not the only engineering solution. He also opined that the transmission line could be placed within the SFWMD ROW, i.e., placed longitudinally in the SFWMD ROW, notwithstanding, Mr. Hronec’s testimony to the contrary. No persuasive evidence was offered regarding the specific setbacks required from the existing utilities, guardrails or pavement to establish the COR #3 Line in this area. DOT road-design standards would need to be consulted. Siting Constraints to the North of Immokalee Road ROW To the north of the Immokalee Road ROW between Livingston Road and CR 951, there is a SFWMD canal. Mr. Hronec opined that SFWMD prohibits construction of electric transmission lines longitudinally within their ROW (“works of the district,” here the canal). Florida Administrative Code Chapter 40E-6 pertains to the “works of the [SFWMD].” Florida Administrative Code Rule 40E-6.011(4) provides: “The District has determined that an unencumbered 40 foot wide strip of right of way, measured from the top of the bank landward, is required in order for the District to perform the required routine and emergency operations and maintenance activities necessary to insure flood protection to the entire community. In this 40 foot right of way, subject only to limited exceptions provided in this rule, the district shall not authorize any aboveground facilities or other encroachments.” (See Fla. Admin. Code R. 40E-6.121(2) and (6) and 40E-6.221(2); CE Exhibit 18.). The SFWMD published Volume V, “Permit Information Manual,” pertaining to “Criteria for Use of Works of the District,” September 15, 1999 (Manual). Regarding “Transmission Lines,” the a portion of the Manual provides: “The use of the District’s Works or Lands for the construction, operation, and maintenance of transmission lines has the potential to interfere with the District’s operation, maintenance and allied purposes. Applicants should acquire their own right of way and should not look to the District to utilize District-controlled Works or Lands, which were acquired for water management and other allied purposes. This policy should not be construed as a prohibition against the construction of distribution or transmission line crossings, nor is it a prohibition against use of short segments of District’s right of way for the construction of local distribution facilities when such facilities will not interfere with operations and maintenance and are otherwise acceptable to the District.” The SFWMD also provides for five operational zones described in the Manual at page 28 and Florida Administrative Code Rule 40E-6.011(7), Figure 1, pertaining to Zones 1 through 5 and providing distances from the canal channel and the top of the bank outward. (Zone one is the canal channel from the top of the bank to the opposite top of the bank; Zone two is the point on the ROW from a point five feet landward from the top of the bank; Zone three is between five and 20 feet landward from the top of the bank; Zone four is from 20 to 40 feet landward from the top of the bank; and Zone five is any ROW located further than than 40 feet landward from the top of the bank.) (See CE Rebuttal Exhibit 2.) Mr. Conrecode offered testimony regarding the potential placement of the COR #3 Line within the “Zones.” He observed that FPL, in its existing Orangetree line, has located the poles along CR 951 of the existing canal. No representative from the SFWMD testified in this proceeding. However, the Governing Board of the SFWMD adopted Resolution No. 2003-1207, and concluded that the Alternate Corridor “would not adversely impact the water resources and other matters with the [SFWMD’s] jurisdiction.” (CE Exhibit 18.) Also, several ROW conditions are attached to this Resolution, including the requirement that the permittee submit drawings “showing the proposed facilities for a determination of compliance with the requirements of Chapter 40E-6, F.A.C.” Id. at 8 of 19. (See also CE Exhibit 18, pp. 18 and 19 of 19, Land Management Footnotes (1)-(8).) Aside from the brief public hearing testimony of Mr. Scott, no representative from Collier County Transportation Planning Department, testified regarding the possible placement of the COR #3 Line north or south of Immokalee Road in the location of the Alternate Corridor. As noted, Mr. Conrecode opined, based upon conversations with Mr. Tears, in conjunction with his reading of the SFWMD rules and Manual provisions and Collier County plans for the area, that the COR #3 Line could be placed within the SFWMD canal ROW. Locating and constructing the line in this area would depend on locating the line with precision and then consulting with SFWMD staff. (See CE Exhibit 18.) In the areas north of the SFWMD canal, there are a number of places where development has already filled in up to and abutting the canal which may not leave room for placement of the COR #3 Line. It would be possible to construct portions of the COR #3 Line north of the SFWMD canal in the other areas where development has not yet filled in immediately adjacent to the canal. Several residents who live north of the canal in this segment of the Alternate Corridor, including the president of the Longshore Lake Homeowners Association (this subdivision is located a half of a mile east of the I-75 interchange on Immokalee Road (see FPL Exhibit 4), testified at the public hearing and expressed concern that the proposed transmission line might be placed adjacent to their existing development rather than in the largely undeveloped segment of the FPL Corridor along Immokalee Road. Siting Constraints to the South of Immokalee Road ROW The COR #3 Line might be able to be built on private easements adjoining the south side of Immokalee Road ROW, if private easements could be acquired. FPL’s transmission line engineer is concerned about the ability to acquire a private easement adjacent to the Immokalee Road ROW within the Alternate Corridor because a showing would be required in eminent domain proceedings that this is the best available route. Mr. Conrecode agreed that placing the transmission on the south side of Immokalee Road could be a problem in practice because of the locations of the existing ROW. He believes FPL would have to acquire additional ROW for the location of the poles. But, because of the adequacy of the ROW to the north side of the road, Mr. Conrecode believed that it would not be necessary to consider the south side of the road. Placement of the COR #3 Line on the south side of Immokalee Road would likely negatively impact many existing buffers and visual amenities as follows: The live oaks that presently buffer the Windsong Club Apartment townhomes from the road and existing distribution line, which goes along the south side of Immokalee Road in this area, would have to be removed or severely pruned. These townhomes face Immokalee Road and are set back only 20 to 30 feet from the sidewalk. Most of the trees and palms that presently buffer the Ibis Cove homes from Immokalee Road and adjacent distribution line would have to be removed. The backs of these homes are about 30 to 40 feet from the sidewalk. The Hong Kong orchid and sable palms that buffer the Pebblebrook Lakes homes from Immokalee Road and the existing distribution line would have to be removed. These homes are set back approximately 10 to 15 feet from the back of the property line. The developer of Saturnia Lakes previously paid to have the existing overhead distribution line on the south side of Immokalee Road buried for several hundred feet in front of its development. In addition to adding an overhead power line in this area, the vegetative area that presently buffers the Saturnia Lakes homes from Immokalee Road would also probably need to be greatly reduced. The Washingtonia palms and the large oak at the entrance to Heritage Greens would conflict with the COR #3 Line and would need to be removed. The pine trees in front of the Laurel Oaks Elementary School and Gulf Coast High School would be in conflict with the COR #3 Line if it were placed on the south side of Immokalee Road in this area. The street trees in front of two of the churches would probably have to be removed if the COR #3 Line were constructed on the south side of the road. Other Land Use Issues This segment of the Alternate Corridor conflicts with the two highest-ranking criteria for corridor selection identified in the results of the community survey conducted by FPL’s multi-disciplinary team during its route selection study-- avoidance of homes and schools. There are two schools, Laurel Oaks Elementary School and adjacent Gulf Coast High School, and three churches on the south side of Immokalee Road between the Common ROW and the Orangetree substation. (One parcel is being purchased for another school east of CR 951.) There is already a 230-kV transmission line on the north side of Immokalee Road from CR 951 east to the Orangetree substation. The structures for that line are not of sufficient strength to also support the COR #3 Line. If the COR #3 Line were built on the south side of Immokalee Road for this four- mile segment, there would be a transmission line on both sides of Immokalee Road. FPL’s experience has been that placement of a transmission line on both sides of a road is not supported by the community. Other Engineering Considerations Between the Common ROW and CR 951, it may be theoretically possible to cross back and forth across Immokalee Road in an attempt to avoid the proximate homes, churches and school sites on the south side, but such multiple crossings of the road may require taller structures to maintain required vertical clearances while crossing both the road ROW and the 100-foot-wide SFWMD ROW. If the crossings were not right angles, this configuration would require long expanses of conductor cables going over both the Immokalee Road ROW and the SFWMD canal, which would be undesirable. Such a zigzag configuration would also require approvals from SFWMD for multiple crossings of its canal in a short area. No credible evidence was offered to show whether approval could be obtained. Mr. Hronec did not believe this configuration would violate any local laws or ordinances of Collier County. A zigzag configuration may also require either guying or use of more substantial foundations to support the differential tension for structures where the conductors turned large angles, typically exceeding 10-15 degrees. This configuration is likely to create visual clutter, accentuating the visual impact of the line. The minimization of the number of crossings of a roadway or canal would be good engineering practice. This segment of the Alternate Corridor also presents the engineering challenge of crossing I-75 at an interchange in excess of 1,200 feet in width. DOT restricts the ability to place structures within the confines of such an interchange. Therefore, this crossing may require multiple elevated structures, the tallest of which could exceed 120 to 130 feet in height, to achieve the required vertical clearances of about 24 feet above the pavement. However, there is no rule that would prohibit the construction of the COR #3 Line in and adjacent to the interstate interchange. See Finding of Fact 253. Can the Alternate Corridor between the Common ROW and CR 951 accommodate the COR #3 Line? CE offered the testimony of Mr. Conrecode, and others, suggesting possible alternatives for the placement of the COR #3 Line in this segment of the Alternate Corridor. FPL offered credible rebuttal evidence. This segment of the Alternate Corridor may accommodate the COR #3 Line. However, the actual location and construction of the COR #3 Line within this segment of the Alternate Corridor presents significant engineering design and construction constraints and potential impacts upon the public for the reasons stated herein. See also Findings of Fact 226, 230, 252, and Endnote 17. Orangetree Substation to Collier Substation The southernmost portion of the Alternate Corridor between the Orangetree and Collier substations is identical to the FPL Corridor. WHETHER AND THE EXTENT TO WHICH EACH CORRIDOR WILL COMPLY WITH SECTION 403.529(4), FLORIDA STATUTES, CRITERIA Ensure Electric Power System Reliability and Integrity The Project Service Area is presently served by (a) three 230-kV transmission lines (a fourth 230-kV line runs from the Ft. Myers Power Plant to the Orange River substation) that run from the Orange River substation into the Project Service Area, two of which run directly to the Collier substation, and the third runs (loops) to FPL’s Alico substation and continues to the Collier substation; (b) three 138-kV lines that run from Ft. Myers Power Plant to the Project Service Area, generally in the western portion of the Project Service Area. See Findings of Fact 20-26. Whether the COR #3 Line is built in FPL’s Corridor or the Alternate Corridor will not change the electrical peninsula character of the Project Service Area because the area will still be fed from the north only. FPL has a responsibility to provide safe and reliable service to its customers. The provision of reliable electric service to its customers is important to FPL. In the past, FPL has consistently demonstrated the ability to plan a reliable electric system consistent with NERC and FRCC planning standards. Electric system reliability involves both the “adequacy” of the system to serve load (demand), and the “security” of the system to continue serving load, even after one system component is taken out of service. Electric system integrity requires having all elements of the electric system in service, protected from overloads or abuse. System integrity is closely related to system reliability. The NERC is a national organization that adopts standards for electric system planning and reliability that are used nationwide. The FRCC, which represents all of the investor-owned utilities, cooperative systems, municipal electric utilities, independent power producers and power marketers that operate in peninsular Florida east of the Apalachicola River, participates in the development of, and has adopted the national planning standards established by NERC for the reliability of electrical transmission lines. NERC’s planning standards, which are relied upon in the entire electric utility industry nationwide for the planning of new electrical transmission line facilities, address four transmission systems standards – normal and contingency conditions: Category A – all facilities in service and operating normally (voltages are appropriate) and no loss of load (customer electric demand or supply); Category B – a single element of the transmission system is out of service (also referred to as a “single contingency,” transmission system is stable, and no loss of load to customers; Category C – two or more elements of the transmission system are simultaneously taken out of service, transmission system required to achieve a stable operating state without overloaded transmission lines and with appropriate voltages and without cascading outages and with a variable loss of some customer load; and Category D – an extreme event resulting in two or more (multiple) elements being removed or cascading out of service. (FPL Exhibit 12, Table I.) Construction of the COR #3 Line in either the FPL Corridor or the Alternate Corridor would be consistent with the NERC planning standards. Similarly, whether the proposed COR #3 Line is located on the FPL Corridor or the Alternate Corridor, it will provide looping to the Orangetree substation.12 Looping of this substation will improve the reliability of electric service to customers served by the Orangetree substation because it will provide an alternate source of electricity that can sustain the substation in the event one source is taken out of service. The loss of the Common ROW has not been studied by FRCC as a Category D event. FRCC has studied extreme events, such as the loss of generating plants, e.g., Crystal River, St. Lucie, Turkey Point, and Martin, and the loss of 500-kV lines in Common ROWs. According to Dr. Glover, under NERC standards, a utility has the discretion to address a Category D event that does not result in cascading outages. But he was not aware of another utility applying a Category D event to other than cascading system-wide outages. FPL plans its system to withstand any single contingency without loss of load (loss of service) to any of its customers, consistent with the NERC planning standards. Category D events (extreme events) include the loss of multiple generating units at a single site, loss of a substation, loss of a transmission line with three or four circuits on it, and loss of all transmission lines on a common ROW. (FPL Exhibit 12, Table I.D.) Following a Category D extreme event, one would expect at least some of a utility’s customers to experience loss of electric service for some period of time. A utility is required by the NERC planning standards to ensure that a Category D event on their system does not result in cascading outages, where the outage spreads in a domino fashion and impacts other utilities’ systems. A “cascading outage” is an outage event that begins in one area but spreads to another area, causing outages in the second area. For example, an outage starting in another state and causing outages in Florida, or an outage starting in one Florida utility’s service area and causing an outage in other Florida utilities service area, is considered to be a “cascading outage.” The Project Service Area is an electrical peninsula and cascading of an outage to other areas is not likely. A loss of a substantial electrical load in a large area caused by a single event taking multiple electric system elements out of service, even if it does not result in cascading outages, is also classified as a Category D event. Under the NERC planning standards, although a utility is not required to evaluate all Category D extreme events, a utility must exercise its judgment as to which extreme events it will evaluate and which non-cascading Category D events it will institute actions to mitigate. (See FPL Exhibit 12, Footnote e to Table I.D. of the NERC Planning Standards which states: “A number of extreme contingencies that are listed under Category D and judged to be critical by the transmission planning entity(ies) will be selected for evaluation. It is not expected that all possible facility outages under each listed contingency of Category D will be evaluated.”) Allowing some customers to temporarily lose their electric service (referred to as “load shedding”) is an acceptable practice when needed to preserve reliability to the remainder of a utility’s customers. Electrical Vulnerability of Project Service Area There are types of extreme single events that can take all of the transmission lines out of the service on the Common ROW including hurricanes, tornadoes, wind-blown debris, plane crashes, wildfires, vandalism, sabotage and terrorism. The Common ROW in the Project Service Area is vulnerable to several extreme events that could take out of service all the transmission lines within that ROW. For example, there are five airports (including the Southwest Florida International Airport, approximately one mile from the FPL Common ROW) in the vicinity of the Common ROW, resulting in a potential for plane crashes. Portions of the Common ROW go through undeveloped areas where wildfires could cause an outage, as has happened on other FPL common ROWs. While no outages of the lines on the Common ROW have been caused by tornadoes or hurricanes since 1989, these types of weather events occur in the Project Service Area.13 These weather events and associated large wind-blown debris can also result in a complete outage of lines on a common ROW. While FPL cannot control the frequency of Category D events that can result in a common ROW outage, it has some control over the duration and consequences of the outage. Due to the electrical peninsula nature of the Project Service Area, an electrical outage caused by an extreme event affecting the Common ROW would last as long as it took to repair the damaged lines because there is no other way to deliver electricity to FPL’s customers in the south end of the “peninsula.” If a transmission line is damaged by an extreme event like a plane crash, hurricane, tornado or sabotage, depending on the severity of the event, all of the phases of construction required for a new transmission line, other than possibly surveying, may be required to reconstruct the damaged line. Depending on the severity of the damage, an extreme event damaging all of the transmission lines on the Common ROW could result in hundreds of thousands of FPL customers being out of service for approximately two to six days.14 See Finding of Fact 297. (Mr. Armand testified, in part, that FPL’s assertion of an outage lasting up to six days is “totally unrealistic.” He believed that there is a very small probability of a corridor outage in the Common ROW with the COR #3 Line located in it, and that if there were to be such an outage, it would be less than 12 hours in duration, i.e., to get one line operational. See Finding of Fact 296.) Even though FPL is recognized as an industry leader in service restoration efforts, and it has in place an emergency response plan to restore structurally damaged transmission facilities in the Common ROW, it may take a minimum of two days to get the first damaged circuit back in service, depending on the extent of the damage. Reliability Enhancement from Geographic Separation Placement of the COR #3 Line on a geographically separate ROW like the FPL Corridor spreads the risk and lowers the likelihood that all 230-kV lines serving the Project Service Area would be taken out of service by a single event. While outages of all transmission lines on common ROWs (Category D events) are a relatively rare occurrence, they do occasionally occur. (FPL Exhibit 11.) It is difficult to establish with any degree of certainty a mathematical probability of such a Category D event occurring. Since 1985, FPL has experienced 12 events where all transmission lines on a common ROW on its system have been taken out of service due to hurricane, tornado, birds, plane crash or wildfire.15 (FPL Exhibit 11.) (In 1977, FPL experienced an outage on the Andytown line.) See Findings of Fact 295-297. The typical corridor outage is of relatively brief duration. Of the 13 corridor outages reported in FPL Exhibit 11 and BCC Exhibit 7, several were 16 or fewer minutes in duration. The Turkey Point Corridor suffered a 120-hour outage as a result of Hurricane Andrew and, as a result of the hurricane, FPL experienced transmission line “outages in a large area of Dade and Broward Counties.” While not accounting for all reported corridor outages, other corridor outages lasted approximately 11 hours (Volusia-Smyrna #’s 1 and 2 115-kV (plane)) and approximately 17 and 10 hours (Duval-Thalmann 500-kV and Duval- Hatch 500-kV, respectively (plane)). Except for the outage occurring in the Turkey Point Corridor that has seven 230-kV lines, there have been no transmission line corridor outages involving four or more transmission lines. There have been no reported common corridor outages in the Common ROW or the Project Service Area. There are many reported single-transmission line outages within the Collier-Orange River Corridor, but none attributable to a plane crash, hurricane, or tornado. Many of the reported transmission line outages in the Collier-Orange River Corridor have been attributed to unknown causes, equipment failures, foreign interference, lightning, birds, and human elements (other than vandalism). In the Collier-Orange River Corridor, there have been eight line outages on six different days caused by fire and one outage due to vandalism. (BCC Exhibit 5-(1989-2003).) When planning a transmission line system in Florida, the loss of all transmission lines in a common ROW is one of the probable extreme events that should be evaluated. The loss of an entire generating plant is another. All of the 230-kV transmission lines on the Common ROW are on two structures for much of its length. In these places, an extreme event would only have to destroy two structures to take all of the 230-kV lines on the Common ROW out of service. Guide G6 in NERC’s planning standards, which represents a good planning practice, provides that the transmission system should be planned to avoid excessive dependence on any one transmission circuit, structure, ROW or substation. Guide G6 is a reasonable basis to plan a new ROW geographically separate from an existing ROW that already contains multiple transmission line circuits. Similarly, the FRCC crisis response plan identifies physical security measures for which utilities should plan to enhance the reliability of Florida’s transmission system. These physical security measures were adopted following September 11, 2001. That plan recommends that utilities consider not placing too many transmission lines on a common ROW because of terrorist-type threats, sabotage, or disgruntled employees. Minimizing risk to infrastructure is also consistent with the planning philosophies of homeland security. Deterministic vs. Probabilistic Contingency Assessment In the context of contingency assessments for transmission lines, two types of evaluations are possible: deterministic and probabilistic. When using a deterministic evaluation, a utility determines whether an event can occur and, if so, the consequences of that event. If the consequences are severe, the utility evaluates the steps it could take to mitigate the adverse effects. When using a probabilistic evaluation, a mathematical computation is used, based on historical data. This method is used when, for example, calculating the probability that all generators in Florida might not meet future loads in the future. NERC’s planning standards do not require a probabilistic evaluation when assessing Category D contingencies. The president of FRCC, Mr. Wiley, is not aware of any utility using a probabilistic evaluation for transmission line planning in his forty years of experience. In planning the COR #3 Line on a geographically separate ROW, FPL used a deterministic evaluation. FPL determined that an extreme event could cause an outage of all lines on the Common ROW, and that the consequences of such an outage were severe enough to warrant looking for a geographically separate ROW. If an extreme event like a plane crash takes out of service all of the transmission lines on the existing Common ROW, leaving the COR #3 Line undamaged on a geographically separate ROW within the FPL Corridor would allow FPL to restore service to about 60 percent of the demand in the Project Service Area in the worst case. With the available electricity, FPL could direct power to circuits with critical facilities within the Project Service Area, such as hospitals, police stations and fire stations, and rotate the blackout among many of its other customers until the damaged lines were reconstructed. Alternatively, if the COR #3 Line were placed on the existing Common ROW and all of the transmission lines on the ROW were taken out of service by an extreme event, FPL would only be able to serve about 25-30 percent of the load in the Project Service Area through the 138-kV transmission network until the damaged lines were rebuilt. In such an event, there may not be enough electricity to energize all of the feeders that serve critical facilities in the Project Service Area. Further Justification for Geographic Separation The “not-in-my-backyard” approach of many landowners is a well-known impediment to transmission line construction, and obtaining property rights for new transmission lines is becoming increasingly difficult. Getting land for a new transmission line ROW is more difficult when development has already occurred than when land is still relatively undeveloped. The population and demand for electricity in the Project Service Area are both growing rapidly. FPL projects there will be a need to add more transmission lines to bring power into the Project Service Area within the next 10 to 15 years. Even though there is room on the existing common ROW to accommodate the addition of at least two new transmission circuits (one on the existing COR #2 structures and one on new structures), it is prudent for FPL to establish a geographically separate transmission line ROW in the Project Service Area for the COR #3 Line before future development makes it more difficult to do so. The Common ROW between the Orange River and Collier substations is the only common ROW on FPL’s system with no generating plant connected on each end. For all the other FPL common ROWs, if there is an extreme event that takes out of service all the lines on that ROW, the resulting outage will last only as long as it takes to redirect power from FPL’s fleet of generators. In the Project Service Area, there is currently no way other than the Common ROW to adequately feed the significant electrical demand in the Naples area. Thus, an outage in the Project Service Area caused by an extreme event on the Common ROW would last as long as it took to repair the damaged lines, which could take several days. Collier County’s Director of Emergency Management testified that, in his opinion, it is simple common sense planning to provide as much separation as possible between the COR #3 Line and the other 230-kV lines on the Common ROW. It is highly unlikely that an extreme event would affect both the Common ROW and the COR #3 Line on a geographically separate route. Thus, the geographic separation would enhance the ability to restore electric service to the community. The FPL Corridor also facilitates the timely provision of reliability looping to LCEC’s existing and future substations. If the COR #3 Line is not built in the FPL Corridor, this reliability looping would be farther in the future and it would cost substantially more to achieve because of the increased distance between the LCEC system and the closest point on the Alternate Corridor. Other Projects that Might Improve Reliability of Electric Service in the Project Service Area Rejected BCC offered testimony suggesting FPL has the option of upgrading its 138-kV transmission system located to the west of the Common ROW to 230-kV facilities in the Project Service Area rather than building a new 230-kV line. In making this suggestion, however, BCC’s witness assumed, and concluded, that there would be physical space to accomplish such an upgrade. (He had not inspected all of the existing 138-kV facilities in this area.) FPL’s transmission line engineer noted that a number of the existing 138-kV substations on that system have insufficient physical space to allow for the conversion, although he did not recall which substations are physically incapable of expansion to accommodate the conversion. No persuasive evidence was offered by BCC to explain how the electrical demands in the area could be met while the lines were being reconstructed. As another alternative for eliminating the peninsula effect, BCC suggested that FPL could have resolved its reliability concern and eliminated the electrical peninsula nature of the Project Service Area by installing generation capacity in that Area.16 But this option was one of the alternative projects considered by the PSC in the need proceeding for this project, and it was rejected. FPL has not pursued a suggested option to relocate the transmission lines off of common ROWs to increase reliability on its common ROWS outside the Project Service Area because they all have generation on both ends, allowing FPL to feed demand using generation facilities even if all the lines on a common ROW are out of service. Here, while FPL is not proposing to “relocate” a line off the Common ROW, it is proposing to take advantage of the fact that a new line is needed by constructing it off the Common ROW, achieving the same result suggested by this option. BCC appears to be concerned that use of either the FPL Corridor or the Alternate Corridor for the COR #3 Line will increase the percentage of transmission capacity in the Project Service Area that comes through the Orange River substation. Although BCC offered testimony that loss of the Orange River substation would result in similar numbers of customers being out of service as a Common ROW outage, FPL’s decision to not duplicate that substation facility is reasonable. Duplication of the Orange River substation would probably be too expensive, although the specific amount is uncertain. Also, while a transmission line is a linear facility, a substation is a finite location, resulting in much less exposure to an extreme event. Moreover, substations are very robust facilities that are able to withstand higher wind and mechanical forces, and are less vulnerable to wildfires than transmission lines. For all these reasons, a complete outage of the Orange River substation is less likely than an outage of all the lines on the Common ROW. FPL’s Judgment to Seek a Geographically Separate ROW Consistent with Prior Action This is not the first time FPL has decided to seek a geographically separate route for a new transmission line even though space was available on a common ROW. On one other occasion, FPL chose to locate a transmission line on a geographically separate route from an existing common ROW where there was room to accommodate the new line. FPL made that decision for geographic separation for many of the same reasons it is seeking a geographically separate route for the COR #3 Line. FPL lost all three lines in the common corridor that resulted in a complete blackout and no amount of load shedding could arrest the frequency decline and prevent the blackout. In that instance, after a 500-kV common ROW outage caused an electrical outage in South Florida for over three hours, FPL chose to put its next 500-kV transmission line on a geographically separate route. FPL’s service area generally covers the eastern half of the Florida peninsula and southwest Florida. FPL has approximately 15 common transmission line corridors of varying lengths that have at least the transmission line capacity of four 230-kV lines. The total transmission line capacity of these corridors ranges from four 230-kV lines to as many as nine 230-kV lines, as well as (a) two 500-kV lines and three 230-kV lines; (b) three 500-kV lines; and (c) one 500-kV line and seven 230-kV lines. FPL has installed new 230-kV transmission lines in common corridors since 1992. FPL is planning to add additional generating capacity at its Martin generating station and an additional 1,100 MW of capacity at its Turkey Point station. It does not appear that FPL has relocated any of the 230-kV lines out of the Turkey Point corridor in order to achieve geographic diversity. CE and BCC suggest that the current state of FPL’s corridors and generating plants described above is inconsistent with FPL’s Corridor. All of the reasons for FPL’s decisions to plan and construct and add to the facilities noted above are not apparent in this record. However, the unique nature of the Project Service Area, in part, distinguishes FPL’s plans to locate the COR #3 Line in FPL’s Corridor from other projects. Geographic Separation Appropriate for COR #3 Line The contingencies that FPL addressed in its evaluation of the reliability of the proposed COR #3 Line Project were reasonable and appropriate under the NERC planning standards. Given the electrical peninsula nature of the Project Service Area, it is prudent to locate the new COR #3 Line on a route that is geographically separate from the existing Common ROW to enhance reliability for the customer. Construction of the COR #3 Line in the FPL Corridor would provide greater system reliability and integrity for FPL’s customers. Use of this geographically separate ROW would mitigate the possibility of all transmission lines on the Common ROW being taken out of service simultaneously and leaving a substantial percentage of FPL’s customers in the Project Service Area without power for an extended period of time. Construction of the COR #3 Line on a geographically separate ROW, such as the FPL Corridor, is prudent and will ensure electric system reliability, integrity and service restoration. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion The PSC recognized that FPL’s planning studies indicate that the COR #3 Line is needed by December 2005 to alleviate potential overloads and low voltage conditions from a single contingency event. The COR # 3 Line can be constructed in either the FPL Corridor or the Alternate Corridor and meet the requirements set forth in Finding of Fact 47, except as otherwise noted herein regarding the potential significant constraints to locate and construct the COR #3 Line within the Alternate Corridor between the Common ROW and CR 951 along Immokalee Road. Location of the COR #3 Line on either the FPL Corridor or the Alternate Corridor would meet the electrical energy needs of the state in a timely fashion in that the single-contingency planning criteria established by NERC will be met. However, the FPL Corridor would meet the electrical energy needs of the state in a more orderly fashion than the Alternate Corridor because: The Project Service Area is a fast growing area of the state and new distribution substations will likely be required in the eastern portions of Lee and Collier County. Those future substations can be fed more efficiently from the FPL Corridor than if the COR #3 Line is placed on the existing Common ROW and long east- west transmission lines (similar to the Immokalee Road segment of the Alternate Corridor) are required to feed those substations. In transmission line siting, it is easier to locate a new transmission line in an area before it becomes developed. The Alternate Corridor incorporates a 4-mile stretch of Immokalee Road that is already densely developed. In contrast, much of the FPL Corridor’s route is presently undeveloped or agricultural in nature. Both CE and BCC acknowledge plans to develop their lands adjacent to Immokalee Road along the FPL Corridor within the next 10 to 15 years. While there is space on the Common ROW for placement of additional 230-kV transmission lines that may accommodate electric demand for another 29 to 44 years, it is not prudent to wait that long to establish a geographically separate ROW. By that time, CE and BCC plan to have developed their lands and it is not unreasonable to expect that the then-existing residents and businesses on that eastern stretch of Immokalee Road will be in the same position as those currently located along the western stretch of Immokalee Road within the Alternate Corridor. These residents will be occupying development in place that has not been planned to accommodate an adjacent transmission line. Comply with the Nonprocedural Requirements of Agencies The location, construction, operation, and maintenance of the COR #3 Line in either the FPL Corridor or the Alternate Corridor could comply with all applicable nonprocedural requirements of agencies. The segment of the Alternate Corridor between the Common ROW and CR 951 may accommodate the location and construction of the COR #3 Line, subject to the significant engineering design and construction constraints discussed herein. See Findings of Fact 120-156, 226. Be Consistent with Applicable Local Government Comprehensive Plans The location, construction, and maintenance of the COR #3 Line in either the FPL Corridor or the Alternate Corridor will be consistent with all applicable provisions of local government comprehensive plans. The COR #3 Line ROW will be established through the grant of approval from an existing ROW owner or FPL’s acquisition of an easement or fee simple interest in property. These acquisitions can be through purchase, eminent domain, or by grant. No segment of the COR #3 Line will be constructed until the ROW for that segment has been established. The Lee County Comprehensive Plan is essentially silent on transmission lines as a land use. There are two potentially applicable policies in the Comprehensive Plan of the City of Fort Myers. One indicates that land should be provided for utilities, and the other explicitly provides that the City’s land development regulations shall only permit, among other identified uses, utility lines, poles, and/or pipes in wetland areas. In the Collier County Comprehensive Plan, essential services (which include transmission lines) are permitted uses in all future land use designations crossed by the FPL Corridor or the Alternate Corridor. Similarly, Section 2.6.9.3 of the Collier County’s Land Development Code exempts “structures supporting lines or cables” from the regulations. Effect a Reasonable Balance Between the Need for the Transmission Line as a Means of Providing Abundant Low-Cost Electrical Energy and the Impact Upon the Public and the Environment Resulting from the Location of the Transmission Line Corridor and Maintenance of the Transmission Lines In determining whether it is practicable to locate the COR #3 Line on a route that is geographically separated from the existing Common ROW, three relevant factors to consider are the costs of the geographically separate route, the benefits of that route, and the technical ability to construct the COR #3 Line on the alternative route. The need for the COR #3 Line is not disputed. All parties agree that reliable electric service is desirable. The type of transmission line design proposed for the COR #3 Line occurs in all types of land uses throughout Florida. By collocating the new line with existing linear features, such as roads, property boundaries and other transmission line ROWs, both the FPL Corridor and the Alternate Corridor conform to the existing patterns of land development, and will consolidate land use/environmental impacts to a single area, as opposed to locating the new line in a non-collocated alignment. Collocation also reduces the amount of new ROW needed. For example, next to a road, the new line will only need a ROW that is up to 15 feet in width, whereas up to a 60-foot ROW is required where the line is not collocated with an existing linear feature. Impact Upon the Public Two priorities expressed by the community in the Project Service Area during the public outreach activities were the minimization of impacts to homes and schools. The FPL Corridor minimizes impacts to existing homes by following a route where there is little residential development and where planned residential development is low density. There do not appear to be any schools within or adjacent to the FPL Corridor, although the Collier County School Board is in the process of acquiring land on the south side of Immokalee Road approximately three miles east of CR 951 and west of the Orangetree substation. (See FPL Exhibit 6-5, proposed site designated with a circle.) Intervenor, Kenneth E. Smith, whose residence is located on Green Meadows Road along the FPL Corridor, expressed concern about the potential for health effects from electric and magnetic fields. See also Findings of Fact 11 and 80. BCC’s representative, Thomas W. Sansbury, is employed by the Grey Oaks Development Corporation as its president; Grey Oaks Realty Corporation as its president and broker of record; and Grey Oaks Community Services. The Grey Oaks community is on the west side of Livingston Road and near the Collier substation. (FPL Exhibit 4.) (A member of the board of BCC owns Grey Oaks Development Corporation and Grey Oaks Community Services.) Mr. Sansbury has extensive experience in the sales, management, and operations of developments. He also advised that there is sales resistance when developments are close to or adjacent to transmission lines. He advised of the need and cost for buffering of properties that are nearby transmission lines. Mr. Sansbury also believed that BCC has the ability to plan and develop other commercially successful developments (like Grey Oaks, for example) that are adjacent to other transmission lines. He also expressed concern about the public’s perception of effects from electric and magnetic fields and sales resistance he has received from being close to or adjacent to transmission lines. Mr. Sansbury, who served on the Environmental Regulation Commission when the DEP’s rule limiting the electric and magnetic fields associated with electric transmission lines and substations were adopted, agreed that the experts who testified at the Commission’s hearings around the state supported a determination that there is no conclusive evidence that there is any danger or hazard to public health at the 60 Hertz electric and magnetic fields found in Florida, although he stated that typical buyers do not support such a determination. The COR #3 Line will comply with the standards adopted by the DEP, limiting the electric and magnetic fields associated with transmission lines in all areas of the FPL Corridor. The Alternate Corridor along Immokalee Road (from the Common ROW to CR 951) is adjacent to high-density residential development and two existing schools. See Finding of Fact 242. Yet, avoiding homes and schools are high priorities in this community. There are several techniques that can be used to lessen the potential impact of an adjacent transmission line on development. They include the installation of an earth berm and/or landscaping to buffer the development from the transmission line; alignment of residential units so the living space at the rear of the homes are faced away from the line; and the placement of lesser-valued or non-residential units, like golf courses and commercial uses, closest to the line. It is easier to implement these mitigation techniques prior to development taking place or prior to development being planned and approved, than after the development is complete or approved. From a land use perspective, the Common ROW portion of the Alternate Corridor is suitable for the placement of the COR #3 Line. Also, from a land use perspective, the FPL Corridor from the Orange River substation south to its intersection with Immokalee Road is similar in land use impacts to the portion of the Alternate Corridor on the existing Common ROW north of the intersection with Immokalee Road. In these areas, both corridors follow existing linear facilities and are suitable for location of the COR #3 Line from a land use perspective. (See, e.g., FPL Exhibit 4.) Aside from some environmental area issues discussed herein, the main difference in land use impacts between the FPL Corridor and the Alternate Corridor occurs along their two different Immokalee Road segments. There is little existing development in the FPL Corridor along Immokalee Road (east of CR 951), whereas the existing residential and commercial development in the Alternate Corridor between the Common ROW and CR 951 is quite extensive. Placement of the COR #3 Line in the Alternate Corridor along Immokalee Road between Livingston Road (which is just east of the Common ROW) and CR 951 would have more significant impacts on residential areas than placement of the line within the FPL Corridor. The existing residential development within the Alternate Corridor in this area is much higher density, and the FPL Corridor provides greater opportunity for future development to accommodate or plan around the line as an existing feature. In addition to the existing residential development along Immokalee Road within the Alternate Corridor, several other developments are already planned and have received at least some of their approvals. Also, to place the COR #3 Line in the Alternate Corridor along Immokalee Road between Livingston Road and CR 951, a zigzag configuration may be required. See Findings of Fact 150-153. This zigzagging would create visual clutter, whereas placement of the line in the FPL Corridor parallel to a road would allow the line to blend into the other linear elements and not predominate. While construction of the COR #3 Line in the Alternate Corridor could comply with applicable standards as listed in Finding of Fact 47, compliance with good engineering practices may be difficult to achieve along the segment of Immokalee Road within the Alternate Corridor because of the uncertainty of where the COR #3 Line can be located and the constraints discussed herein. See Finding of Fact 156. The crossing of I-75/Immokalee Road interchange within the Alternate Corridor without placement of structures within the DOT I-75 interchange, may require the use of multiple elevated structures, some of which might exceed 120 feet or 130 feet in height to achieve the appropriate vertical clearances over the elevated roadway. See also Finding of Fact 154. CE offered testimony that the COR #3 Line could have a negative impact on the quality of a car trip to the vehicle’s occupants. Yet there are between two and three times the number of vehicles each day on the segment of Immokalee Road traversed by the Alternate Corridor, compared to the segment in the FPL Corridor. Along Immokalee Road, the FPL Corridor is a better choice than the Alternate Corridor from a land use planning perspective. In planning future development land holdings of CE and BCC, CE and BCC would have the flexibility to install berms and landscape materials to buffer future development from the COR #3 Line and Immokalee Road. Both CE and BCC have experience buffering development from transmission lines and achieving a commercial success with such development. Evidence presented by BCC of the potential for the COR #3 Line to impact the “sales velocity” (speed with which a residential lot or home sells) and property value impact to its lands along the FPL Corridor has some merit but is not persuasive. When selling homes in Collier County, the preferred orientations that affect values of homes in Collier County are to have the living space facing west, toward a golf course or water. The two villa properties used for comparison in this testimony are not comparable to one another from a landscape architecture perspective. The Muse villa properties are on the eastern portion of the Grey Oaks community and are buffered from the FPL ROW by a buffer area, landscape berm, and roadway. The units are faced away from the ROW. The Muse contains approximately 26 residential units of 2,600 to 3,000 square feet. The Santiva community has similarly sized and number of units and is on the east side of Airport-Pulling Road (western border of the property) and buffered from this road by a canal, a berm, and a road. The Santiva units sold out are essentially one year and six months while the Muse units, which buffered the power lines sold out in approximately three years. While the villas (The Muse) that sold more slowly face west and are adjacent and west of Livingston Road along the Common ROW, the view from the living space is over a single golf hole, whereas the villas (Santiva) that sold more quickly have a view of both a lake and several golf holes. Accordingly, the villas that sold more quickly are more desirable from a landscape architecture perspective because of the lot layout. Also, the villas that sold more quickly were in a later phase of the development that occurred after the development had already achieved a good reputation in the community. Nevertheless, the units that do not border on a transmission line are more desirable and valuable than those that are adjacent to a transmission line in this area. Also, utilizing golf holes as a buffer increases the cost of the development. Evidence was also presented regarding property value impacts and sales velocity regarding the estate homes section (on Dalia Way) lots on two sides of the street. The homes that face east on the right side of the street, and were buffered from multiple transmission lines on the existing Common ROW by a golf hole, sold for less and more slowly than the homes that faced west on the other side of the street. Part of the differential between the lots was because of the favorable western view. Mr. Stansbury observed that the prices of the lots facing the transmission lines were approximately 15 percent lower than the others. In any event, there was no persuasive evidence presented that the impact to property value or sales velocity from the multiple transmission lines on a wide ROW in view of the eastern-facing estate lots is comparable to any impact from a single pole transmission line such as the proposed COR #3 Line. Immokalee Road is adjacent to the properties owned by CE and BCC and is an arterial roadway that is planned for future expansion to four or possibly six lanes. Even without a transmission line, both CE and BCC use earth berms and landscaping to buffer development from adjacent arterial roadways. Any impact to CE and BCC there that may result from their desire to buffer the COR #3 Line adjacent to Immokalee Road from their future development along the FPL Corridor is likely to be incremental in that CE and BCC would already be planning to buffer that future development from the arterial roadway. During the public hearing, several people inquired why the COR #3 Line would not be placed underground. The evidence shows that an underground configuration for the COR #3 Line is not cost-effective, and that repair times could increase from hours for an overhead line to days or weeks for an underground line. Impact Upon the Environment From an environmental perspective, the objective of the corridor selection process was to minimize crossings of the various land use and environmental siting constraints, as well as to maximize any collocation opportunities with existing linear facilities. As a result, the FPL Corridor is collocated with existing linear facilities for approximately 95 percent of its length. A new north-south transmission line corridor in this area of Florida cannot be established without crossing a significant wetland system. One major siting constraint in selecting a corridor from Orange River substation to the Orange Tree substation is the Corkscrew Swamp System. Avoidance of potential impacts to the Corkscrew Swamp System is the primary reason why the FPL Corridor extends so far to the east. Even the Alternate Corridor that uses the existing Common ROW crosses more than two miles of wetlands associated with the Corkscrew Swamp System. The Corkscrew Swamp System is a large ecosystem dominated by wetlands, primarily consisting of cypress wetlands. It also includes large expanses of pine flatwoods and other natural systems. Throughout the Corkscrew Swamp System, there are numerous endangered and threatened species. It is the home to some of the high-profile endangered species in the State of Florida, including the Florida panther, bald eagle, and black bear. (The Corkscrew Swamp Ecosystem is estimated to encompass approximately 64,500 acres.) The Corkscrew Swamp Sanctuary, a large Audubon-owned and managed wildlife sanctuary, and also a major tourist attraction in the area, is located in the area north of Immokalee Road and east of the big turn to the south. The FPL Corridor essentially avoids the Corkscrew Swamp System by going around it to the east of the System along the north-south section of Immokalee Road, touching it only on the edges where disturbances already exist, such as existing roadways and transmission lines. Since 95 percent of the FPL Corridor is collocated with existing linear facilities, already-existing access should be sufficient for construction and maintenance of the COR #3 Line in many areas. Where existing access is available, in some areas finger roads to the new structure locations may be required. This ability to use existing access in many areas will minimize the amount of filling required for this project. There are two locations within the FPL Corridor where the Sleeping Beauty Water Lily, a listed plant species, is known to exist. One of these locations occurs just west of the Orange River substation along the eastern edge of an existing citrus grove in an agricultural ditch, and the other location occurs in a roadside ditch along the south side of SR 82. In addition, the listed Cardinal Air Plant was observed to occur along the eastern edge of Bird Rookery Swamp and on the west side of Immokalee Road. (See FPL Exhibit 4.) They also could occur in other areas including other cypress trees along and outside the FPL Corridor. They are locally abundant. FPL has generally agreed to avoid the removal of listed plant species that occur on public lands and waters where practicable. Where such removal is unavoidable, FPL has agreed to abide by the mitigation or other requirements of regulatory agencies with jurisdiction over listed plants. In addition, FPL has specifically agreed to avoid through all available means, including the exercise of the power of eminent domain, placing the COR #3 Line on the west side of Immokalee Road where the land has been designated as Rural Fringe Mixed Use District Sending Lands by Collier County. (Joint Exhibit 5A Conditions of Certification, Section XVIII.F, p.11, Attachment 4.) This is the same area where the Cardinal Air Plant was observed to exist. As noted, the Corkscrew Swamp System is also home to endangered and threatened animal species, including the Florida panther. The Florida panther is one of the most endangered species in the State of Florida. The entire study area for the COR #3 Line is located in Florida panther habitat. The Florida Panther utilizes large expansive pine flatwoods and swamp systems and drainages to travel. Radio-telemetry has indicated the presence of the panther along Immokalee Road to the south of the Corkscrew Swamp System. By collocating along Immokalee Road in these areas, the FPL Corridor will not result in the removal of significant additional habitat that could be used by the Florida Panther, and will not increase the animal’s exposure to more human presence or vehicular traffic. The wood stork, the bald eagle, and the Florida Black Bear are also found in the vicinity of the FPL Corridor. The FPL Corridor avoids known wading bird breeding colonies, including wood stork breeding colonies. In addition, because it is collocated with existing linear facilities for approximately 95 percent of its length, the FPL Corridor is not likely to result in the removal of significant additional habitat that could be used by the wood stork. The construction and operation of the COR #3 Line in the FPL Corridor will have minimal adverse impacts on the wood stork. There are no known active bald eagle nests within one half mile of the FPL Corridor, although they could be observed throughout the study area and are likely to occur along the FPL Corridor. In addition, as with the wood stork, only minimal habitat that the bald eagle might use will be removed. The construction and operation of the COR #3 Transmission Line in the FPL Corridor will have minimal adverse impacts on the bald eagle. There have been black bear observations along Immokalee Road in the vicinity of the FPL Corridor, including, unfortunately, black bear mortalities. The black bear, much like the Florida Panther, utilizes large thickets and swamp systems and move several miles in a day. As with the Florida panther, by collocating along Immokalee Road in these areas, the FPL Corridor will not result in the removal of significant additional habitat that could be used by the black bear, and will not increase the animal’s exposure to more human presence or vehicular traffic. The construction and operation of the COR #3 Line in the FPL Corridor will not adversely affect the black bear. The FPL Corridor avoids and minimizes impacts to wildlife and wildlife habitats because the existing habitats along much of the FPL Corridor are already disturbed. In addition, by avoiding known locations of endangered or threatened species, and by collocating with existing linear facilities for approximately 95 percent of its length, the amount of additional clearing that will be required is minimized. Consequently, the construction of the COR #3 Line in the FPL Corridor will not adversely affect fish and wildlife resources and will not adversely affect endangered or threatened species and their habitats. There will be some fill required in wetlands for the construction and operation of the COR #3 Line in the FPL Corridor. Where the line must cross wetlands, FPL may have to construct access roads and pole pads in the wetlands to facilitate construction and maintenance of the new transmission line. FPL has agreed to follow a number of procedures to avoid and minimize the impacts from such fill in wetlands. First and foremost, the location selected for the FPL Corridor avoids numerous wetlands. Within the wetlands crossed by the FPL Corridor, wetland impacts will be minimized in the following ways: by careful alignment of the ROW, such as by taking advantage of upland islands located within these wetlands for pole locations where practicable, thus avoiding placing a fill pole pad in the wetlands; by incorporating the number and size of culverts necessary to maintain existing surface water hydrology and flow; and by minimizing the size of pole pads placed in wetlands based on site-specific conditions. In addition, FPL has agreed to remove existing exotic vegetation from the wetlands within the FPL Corridor. This will provide a benefit to those wetlands from which exotic vegetation is removed. CE offered testimony estimating that construction of the COR #3 Line in the entire length of the FPL Corridor would require the placement of 2.05 acres of fill in wetlands, with .75 acres through the construction of an access road to the Baucom Strand portion of the FPL Corridor (less than a mile north of the portion of Immokalee Road which turns north toward the LCEC 138-kV ROW) and another 1.3 acres by the placement of 25-fill pads in the remaining areas, e.g., four fill pads for the wetlands at the “unnamed flowway” located east of Lake Trafford on the LCEC 138-kV ROW; four structure pads for the entire length of Baucom Strand (assuming a continuous access road of 2,300 feet); seven fill pads at the Camp Keais Strand located over a mile west of the segment of Immokalee Road which turns west after leaving the LCEC 138-kV ROW; one fill pad at the “freshwater swamp” located on Green Meadows Road; and nine fill pads in the Bird Rookery Swamp area. (See FPL Exhibit 4.) Ms. Johnson (for CE) assumed that the power lines would be placed to minimize impacts to wetlands; the approximate spacing of the poles would be 700-foot maximum and that the pads would be 45 feet by 50 feet. Ms. Johnson stated that while the water management district employed her, permits were issued for projects with that amount or more of wetland impact, and agreed that it is possible for a project to include 2.05 acres of impacts to wetlands and still meet the permitting requirements. FPL offered rebuttal evidence regarding CE’s wetland impact analysis. Mr. Simpson opined, in part, that there might be approximately 1.23 acres of impacts to the areas described by Ms. Johnson. See Finding of Fact 281. FPL has agreed to appropriately mitigate for wetland impacts that cannot be avoided or minimized. CE also offered testimony that construction of the COR #3 Line on the Alternate Corridor would not cause any significant impacts to wetlands. Based on the National Wetland Inventory Data Base, there are over nine miles of non-continuous wetlands along the Alternate Corridor. However, there was no precise quantification of adverse impacts to wetland areas within the Alternate Corridor. Also, the evidence is inconclusive where the actual boundary of the CREW Trust Lands is in relation to the Alternate Corridor. It is difficult to determine at this stage of the siting process what the exact acreage of wetland impacts will be if the COR #3 Line is constructed in either the FPL Corridor or in the Alternate Corridor. Before wetland impact amounts can be calculated, site-specific wetland determinations would have to be made and site-specific pole placement and pad designs would have to be completed. The construction of the COR #3 Line in either the FPL Corridor or the Alternate Corridor will be consistent with the wetland regulatory standards applicable to such projects. (See also Joint Exhibit 9.) The Need for the COR #3 Line as a Means of Providing Abundant Low-Cost Electrical Energy The PSC determined that the COR #3 Line is needed, taking into account the factors set forth in Section 403.537(1)(b), Florida Statutes. In the need proceeding, the PSC considered several alternative projects, including four alternative transmission projects in the Fort Myers-Naples region and the construction of new generation facility near Naples. The PSC determined that “[t]he present value cost of the project proposed by FPL in a new right-of-way is estimated at between $32 million and $57 million, subject to final right- of-way routing and conditions of certification by the” Siting Board. According to the PSC, placement of the COR #3 Line in the existing Common ROW, “was the least cost alternative with an estimated net present value cost of $25 million,” or potentially costing up to $32 million less than a geographically separate route. However, the PSC found that “this alternative is not optimal due to concerns with serving an electrical peninsula via a single corridor and the inability for future expansion of FPL’s transmission system to the east of the existing corridor.” Stated otherwise, the cost to construct the COR #3 Line in the Alternate Corridor will be approximately $11 to $12 million less than in the FPL Corridor without consideration of placing the COR #3 Line on a separate pole line along the Common ROW with an estimated incremental cost of approximately $6.5 million above the previous estimate.17 The PSC also determined that “[t]he other four alternatives were either more costly (estimated net present value costs between $101 million and $138 million) or did not meet undervoltage and thermal overload conditions under all single contingency events.” (See Joint Exhibit 1, App. A pp.5-6.) The value of system line losses (lost energy) if the COR #3 Line is placed in the FPL Corridor would be between approximately $120,000 to $250,000 per year higher than if the Alternate Corridor is used. The benefits of placing the COR #3 Line in the geographically separate FPL Corridor are best understood in terms of the consequences to be mitigated or avoided in the event of an extreme event taking out of service all transmission lines on the Common ROW. While loss of all the transmission lines on a common ROW due to an extreme event (such as plane crash, wildfire, hurricane, tornado, wind-blown debris, vandalism, sabotage, or terrorism) is an unlikely event, it has happened at least 12 times on FPL’s transmission system since 1985, even though some of the total corridor outages have been of relatively short duration. See Findings of Fact 188-190. (See also FPL Exhibit 11; BCC Exhibit 7.) CE and BCC, through Dr. Glover and Mr. Armand, strongly contested the relative likelihood of such an extreme event and the extent of any outage, if the event occurred in the Common ROW. Dr. Glover concluded that the probability of a hurricane with sufficient force to disable all of the lines in the Common ROW would actually do so while not disabling another line located within a few miles of that ROW must be regarded as approximately zero, and the probability greater than zero regarding the impact of tornadoes, but still very, very small. He regarded the probability of a Common ROW outage due to a plane crash as very, very small or low, and due to terrorism as far-fetched and unrealistic at best. He further opined that transmission lines located in remote areas are more vulnerable to outages due to vandalism or sabotage as are the risks associated with wildfire. Mr. Armand opined that there would be a very small probability of a corridor outage on the Common ROW with the COR #3 Line located within it, and if there was, it would last less than twelve hours. He also stated that FPL’s assertion that an outage on the Common ROW could last up to six days was “totally unrealistic,” based, in part, on the devastation caused by Hurricane Andrew to the transmission lines at Turkey Point that took five days to restore. FPL’s experts opined that if the COR #3 Line were added to the Common ROW, and an extreme event occurred there, it could result in a 30-minute to five to six-day blackout affecting between approximately 376,000 and 600,000 people (less the population of the Project Service Area that may be served via the 138-kV transmission lines), as a worst-case scenario. (It appears that the population of the Project Service Area as of January 2003 was 594,900 with population growth expected to be 18,800 per year.) When an electrical outage occurs there are numerous adverse predicable consequences to the community. Traffic lights do not function and traffic accidents increase. Elevators get stuck. Fire alarm systems may become inoperable or may not operate properly. Response time for emergency vehicles is increased due to increased call volume and the emergency vehicles’ loss of preemptive control of traffic signals. Fire hazard is increased due to use of candles, fuel- powered lanterns, barbecue grills and improper fueling of gasoline-powered generators. Community wellness services, like Meals on Wheels and dialysis centers, are impacted. Medical emergencies increase due to injuries that occur during attempts to make emergency repairs, and the lack of light that results in more household accidents and affects the ability to mix and administer medications at home. Emergency management communications with the community regarding shelter locations, available retail operations for water, ice, emergency repair supplies, medicines, etc., are hampered due to many people not having adequate battery-powered receivers. Telephone communications are compromised due to many cordless phones not operating and cell phone batteries not being recharged due to the lack of electricity. There is no vertical water storage in Collier County; the pumping of potable water is mechanical and electrical. Pumps on private drinking water wells, most of which do not have back-up generators, do not function. Very few sewage lift stations have back-up power capability. Once those stations’ capacities are exceeded, effluent can spill outside the station into creeks and roadways, and backup into homes. Moreover, the Southwest Florida economy is dominated by hospitality and tourism-related organizations as part of its economic structure. These companies require continuous and reliable electric power in order to meet the needs of their clients and customers in the marketplace. Failure to have reliable electric power in the community, even for a brief period of time has significant impacts to business. By affecting traffic flow, a power outage hampers the ability of employees to get to and from work. During an electrical outage, a business is not able to operate and be productive as an enterprise because sales do not take place and services are not delivered. Typically, businesses affected by an electrical outage cannot operate. This, of course, affects the ability of that company to generate taxable sales and thereby erodes productivity in the community. FPL decided the consequences to the community in the Project Service Area of a widespread multi-day electrical outage would be too severe and, therefore, chose to seek a geographically separate route for the COR #3 Line to mitigate the impacts of such an outage. FPL’s decision is reasonable and is supported by the weight of the evidence. When the severity (length) and magnitude (number of people affected) of an electrical outage are relatively high, it does not matter that the risk is relatively low. From an emergency management perspective, it is worth providing redundancy to the transmission system and spreading the risk. Putting the COR #3 Line on the geographically separate FPL Corridor is somewhat analogous to a homeowner buying homeowner’s insurance. While the likelihood of any one home suffering a loss from fire, tornado, hurricane, or vandalism is also very low, a homeowner may decide it is prudent to spend money to purchase insurance if the potential loss they could suffer would be catastrophic. In that type of decision, as in the one here, it is important to consider the consequences of the event even though the event is very unlikely to occur. There would be no significant difference between the cost to maintain the COR #3 Line in either the FPL Corridor or the Alternate Corridor. CONDITIONS OF CERTIFICATION The design, construction, and operation of the COR #3 line in the FPL Corridor will comply with the Conditions of Certification. (Joint Exhibit 5A.) See also Preliminary Statement, p. 5 and Findings of Fact 71 and 81 for recent amendments and corrections. (All parties should be given an opportunity to comment on all of the Conditions of Certification, including the amended and corrected Conditions of Certification filed post-final hearing. Id. ) The Conditions of Certification establish a post- certification review process through which the final right-of- way, access road and structure locations will be reviewed by agencies with regulatory authority over the project. While the FPL Corridor has few homes in close proximity to it and limited wetland crossings, FPL has agreed to conditions of certification that further minimize land use and environmental impacts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving FPL’s Collier-Orange River #3 230-kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Joint Exhibit 5A as may be amended. DONE AND ENTERED this 3rd day of May, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2004.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a seller of business opportunities registered with the Petitioner, holding registration number 2000-054, and located at 3101 Twenty-Second Avenue South, St. Petersburg, Florida 33712. The Respondent was the successor in interest to American Cash Machine, Inc., and is responsible for fulfilling the obligations of the previous company. At all times material to this case, Gilbert B. Swarts was the president and chairman of the board of the Respondent. On July 8, 2005, the Respondent entered into a contract with Bonnie Campbell as trustee of the Campbell Family Trust (purchaser) under which the purchaser agreed to purchase 36 "CardPayment" machines from the Respondent, and the Respondent agreed to place the machines in appropriate business locations on behalf of the purchaser. As required by the contract, the purchaser paid a total of $135,000 by check to the Respondent. At the time of the sale, the Respondent provided a disclosure form to the purchaser which stated that 200 "CardPayment Business Opportunities" had been sold by the Respondent to other purchasers by the end of 2005 and that 25 "Internet Kiosk Business Opportunity [sic]" had been sold by the Respondent to other purchasers by the end of 2002. The disclosure form also stated that the Respondent would provide to the purchaser, the names, addresses, and telephone numbers of the ten purchasers located closest to the purchaser; however, the disclosure form did not include the information, and the Respondent did not otherwise provide the information to the purchaser. The Respondent stocked the 36 CardPayment machines, but failed to acquire business locations for all of the machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 36 CardPayment machines identified in the contract to 18 Internet Kiosk machines. The Respondent was subsequently unable to acquire business locations for all of the Internet Kiosk machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 18 Internet Kiosk machines to 18 "Smart Terminal" machines. The CardPayment machines, Internet Kiosk machines, and Smart Terminal machines are different types of machines, and each type has a usage different from the others. The terms of the contract executed between the parties did not provide for the substitution of various machines upon failure by the Respondent to place the machines into operation. The contract required the Respondent to rebate a portion of the sales price for each month during which each CardPayment machine was not placed for operation. No contract for the purchase of either the Internet Kiosk or the Smart Terminal machines was executed by the parties. The disclosure information provided by the Respondent to the purchaser related to the Internet Kiosk machines was insufficient to comply with the statutory requirements addressed herein. No disclosure information related to the Smart Terminal machines was provided by the Respondent to the purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that the Respondent has violated Subsections 559.803(11)(a) and (b) and 559.809(11), Florida Statutes (2005); imposing an administrative fine of $10,000; and placing the Respondent on probation for a period of three years subject to such conditions as the Department deems appropriate. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of February, 2008. COPIES FURNISHED: Eric H. Miller, Esquire Department of Agriculture and Consumer Services 2005 Apalachee Parkway Tallahassee, Florida 32301 Gilbert B. Swarts American Cash Machine, LLC 535 Twenty-Second Street South St. Petersburg, Florida 33712 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
