Findings Of Fact PROCEDURAL MATTERS 12 PROJECT DESIGN 16 ENGINEERING DESIGN, CONSTRUCTION, AND MAINTENANCE 17 Design 17 Construction 21 Maintenance 23 SYSTEM RELIABILITY AND SEPARATION FROM EXISTING TRANSMISSION LINES 24 THE TREASURE COAST REGIONAL PLANNING COUNCIL CORRIDORS FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 29 DESCRIPTION OF THE TCRPC CORRIDORS 29 Land Uses 29 Unusual Uses or Restricted Areas - Cemeteries 32 Water Resources 32 Vegetation 33 Wildlife 33 IMPACTS ON THE PUBLIC OF THE TCRPC CORRIDORS 34 Land Use Impacts 34 Impacts on Unique Uses or Restricted Areas - Cemeteries 41 Landscape Architecture and Visual Impacts 41 IMPACTS ON THE ENVIRONMENT OF THE TCRPC CORRIDORS 43 Water Resources Impacts 43 Vegetation Impacts 44 Wildlife Impacts 45 THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT CORRIDOR FROM CORBETT SUBSTATION TO LEVEE SUBSTATION 45 DESCRIPTION OF THE SFWMD CORRIDOR 45 Land Uses 45 Water Resources 48 Vegetation 49 Wildlife 50 IMPACTS ON THE PUBLIC OF THE SFWMD CORRIDOR 51 Land Use Impacts 51 Unique Proposed Uses 52 Landscape Architecture and Visual Impacts 52 Other Consideration - Impacts to Sugar Cane 53 IMPACTS ON THE ENVIRONMENT OF THE SFWMD CORRIDOR 54 Water Resources Impacts 54 Vegetation Impacts 55 Wildlife Impacts 56 DUDA CORRIDOR 1/1A FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 57 DESCRIPTION OF DUDA CORRIDOR 1/1A 57 Land Uses 57 Unique Uses or Restricted Areas - Airports 58 Water Resources 59 Vegetation 59 Wildlife 59 IMPACTS ON THE PUBLIC OF DUDA CORRIDOR 1/1A 59 Land Use Impacts 59 Impacts on Unique Uses or Restricted Areas - Airports 60 Landscape Architecture and Visual Impacts 61 IMPACTS ON THE ENVIRONMENT OF DUDA CORRIDOR 1/1A 62 Water Resources Impacts 62 Vegetation Impacts 62 Wildlife Impacts 62 DUDA CORRIDOR 2/2A FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 63 DESCRIPTION OF DUDA CORRIDOR 2/2A 63 Land Uses 63 Unique Uses or Restricted Areas - Airports 64 Water Resources 65 Vegetation 65 Wildlife 65 IMPACTS ON THE PUBLIC OF DUDA CORRIDOR 2/2A 65 Land Use Impacts 65 Impacts on Unique Uses or Restricted Areas - Airports 66 Landscape Architecture and Visual Impacts 67 IMPACTS ON THE ENVIRONMENT OF DUDA CORRIDOR 2/2A 67 Water Resources Impacts 67 Vegetation Impacts 67 Wildlife Impacts 68 CONSISTENCY WITH LOCAL GOVERNMENT COMPREHENSIVE PLANS 68 CONSISTENCY OF THE TCRPC CORRIDOR WITH LOCAL PLANS 68 St. Lucie County 68 Martin County 68 Palm Beach County 69 CONSISTENCY OF THE SFWMD CORRIDOR WITH LOCAL PLANS 69 Palm Beach County 69 Broward County 69 Dade County 70 THE SITE FOR THE CONSERVATION SUBSTATION 71 SYSTEM PLANNING AND ENGINEERING 71 System Planning 71 Engineering 72 DESCRIPTION OF THE SITE FOR CONSERVATION SUBSTATION 73 Land Uses 73 Vegetation 74 Wildlife 74 IMPACTS ON THE PUBLIC OF THE PROPOSED SITE FOR CONSERVATION SUBSTATION 74 Land Use Impacts 74 Landscape Architecture and Visual Impacts 74 Consistency with Local Comprehensive Plans 75 IMPACTS ON THE ENVIRONMENT OF THE SITE FOR CONSERVATION SUBSTATION 75 Vegetation Impacts 75 Wildlife Impacts 75 COSTS FOR THE LEVEE-MIDWAY TRANSMISSION LINE 76 ELECTRIC AND MAGNETIC FIELDS 77 Compliance with EMF Rule 77 Lightning 78 Noise 78 Radio and Television Interference 79 NONPROCEDURAL REQUIREMENTS OF AGENCIES 80 Conditions of Certification Agreed to by FPL 80 Supplemental Conditions Agreed to by FPL and SFWMD 83 Conditions of Certification Proposed by SFWMD but Opposed by FPL 85 Conditions of Certification Proposed by GFWFC 87 Local Government Zoning 89 Stipulations for Settlement Entered into by FPL 91
Conclusions Corridors That Remain Certifiable 93 Standing 94 CRITERIA TO EVALUATE CORRIDORS THAT REMAIN CERTIFIABLE 95 Compliance with Section 403.529(3)(a), Florida Statutes 96 Compliance with Section 403.529(3)(b), Florida Statutes 97 Compliance with Section 403.529(3)(c), Florida Statutes 98 Compliance with Section 403.529(3)(d), Florida Statutes 100 Compliance with Section 403.529(3)(e), Florida Statutes 101 Impacts on the Public 101 Impacts on the Environment 104 Compliance with Section 403.529(4)(a), Florida Statutes 106 Compliance with Section 403.529(4)(c), Florida Statutes 107 CONSERVATION SUBSTATION 108 RECOMMENDATION 109
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order and therein dismiss the parties who failed to make and appearance; ratify the partial Summary Recommended Order; and grant certification for the location of the Levee-Midway Transmission Line in TCRPC Corridor 1 and the SFWMD Corridor and for the construction and maintenance of the transmission line within those corridors as proposed in the application and in accordance with the conditions of certification contained in Appendices C, D, E, F, G, H, I, and K, as modified and recommended on pages 98 and 99 herein. DONE AND ENTERED this 2nd day of March, 1990, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1990. * APPENDIX TO RECOMMENDED ORDER * Appendix to this Recommended Order is available for review in the Division's Clerk's Office. COPIES FURNISHED: Carlos Alvarez David L. Powell Richard W. Moore Attorneys at Law Hopping Boyd Green & Sams, P.A. 123 South Calhoun Street (32301) Post Office Box 6526 Tallahassee, FL 32314 Attorneys for Florida Power and Light Company Richard T. Donelan, Jr. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road, Room 654 Tallahassee, FL 32399-2400 Attorney for Department of Environmental Regulation James V. Antista, General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 Attorney for the Game and Fresh Water Fish Commission Frances Jauquet John J. Fumero Attorneys at Law South Florida Water Management District 3301 Gun Club Road (33406) Post Office Box 24680 West Palm Beach, FL 33416-4680 Attorneys for South Florida Water Management District 1 Katherine Funchess Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Attorney for Department of Community Affairs Roger G. Saberson, Attorney at Law Treasure Coast Regional Planning Council E. Atlantic Avenue Delray Beach, FL 33444 Attorney for Treasure Coast Regional Planning Council Samuel S. Goren, Attorney at Law Josias & Goren, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33308 Attorney for South Florida Regional Planning Council Fred W. Van Vonno Assistant County Attorney Martin County 2401 S.E. Monterey Road Stuart, FL 34996 Attorney for Martin County Patrick M. Casey Assistant County Attorney Dade County Metro-Dade Center N.W. 1st Street, Suite 2810 Miami, FL 33128-1993 Attorney for Dade County Krista A. Storey Assistant County Attorney St. Lucie County 2300 Virginia Avenue, Annex Fort Pierce, FL 34982 Attorney for St. Lucie County Noel M. Pfeffer, Deputy General Counsel Broward County Governmental Center, Suite 423 115 South Andrews Avenue Fort Lauderdale, FL 33301 Attorney for Broward County Robert P. Banks Assistant County Attorney Palm Beach County Governmental Complex, 6th Floor 301 North Olive Avenue, Suite 601 West Palm Beach, FL 33401 Attorney for Palm Beach County Andrea L. Moore Assistant City Attorney City of Coral Springs 9551 W. Sample Road Coral Springs, FL 33065 Attorney for City of Coral Springs Richard L. Doody, Attorney at Law Office of City Attorney City of Tamarac 7525 NW 88th Avenue Tamarac, FL 33321-2401 Attorney for City of Tamarac Steven L. Josias, Attorney at Law Josias & Goren, P.A. Centrust Savings Bank 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33309 Attorneys for Vesta Vestra, Inc. and the City of Parkland Jon M. Henning, City Attorney City of Sunrise 10770 West Oakland Park Boulevard Sunrise, FL 33351 Lisa N. Mulhall, Attorney at Law Burke, Bosselman & Weaver One Lincoln Place 1900 Glades Road, Suite 350 Boca Raton, FL 33431 Attorney for Town of Davie Heather Ruda, Attorney at Law Gibson & Adams, P.A. 303 First Street, Suite 400 (33401) Post Office Box 1629 West Palm Beach, FL 33402-1629 Attorney for Solid Waste Authority of Palm Beach County Scott Shirley, Attorney at Law Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Post Office Box 6507 Tallahassee, FL 32314-6507 Attorney for Coral Ridge Properties William L. Hyde, Attorney at Law Roberts, Baggett, LaFace & Richard 101 East College Avenue (32301) Post Office Box 1838 Tallahassee, FL 32302 Co-counsel for Hollywood Lakes Country Club, Inc. Donald R. Hall, Attorney at Law Gustafson, Stephens, Ferris, Forman & Hill, P.A. 540 Northeast Fourth Street Fort Lauderdale, FL 33301 Attorney for Silver Lakes Partnership, Hollywood STS Associates, and the William Lyon Company Donna H. Stinson, Attorney at Law Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Attorney for Indian Trail Grove, Limited, Irving Cowan, Savin Groves, Kenneth G. Savage, Robert Povey and Harold Wideman, and Sunny Urban Meadows Landowners Association; Indian Trail Scott Mager, Attorney at Law Mager & Gaffney, P.A. The 110 Tower - 12th Floor 110 Southeast 6th Street Fort Lauderdale, FL 33301 Attorney for the Shennandoah Community Association and Jeff Reisburg Water Control District Stephen Covert, Attorney at Law 631 U.S. Highway One, Suite 200 (33408) Post Office Box 14035 North Palm Beach, FL 33408 Attorney for Via Tropical Fruits, Inc.; Ronnie Hattaway; Talquin Corp.; Ralph C. Nash and Mikatum Groves J. A. Jurgens, Attorney at Law Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive Suite 1100 (33401) Post Office Drawer E West Palm Beach, FL 33402 Co-counsel for Via Tropical Fruits, Inc.; Ronnie Hattaway; Talquin Corp.; Ralph C. Nash and Mikatum Groves Timothy J. Manor Margaret H. Schreiber Attorneys at Law Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive (32801) Post Office Box 2809 Oriando, FL 32802-2809 Attorney for The Coca-Cola Company William J. Payne Dale Konigsburg Donna Stinson Attorneys at Law Rinker Materials Corporation 1501 Belvedere Road (33401) Post Office Box 24635 West Palm Beach, FL 33416-4635 Attorneys for Rinker Materials Corporation Lawrence N. Ctrtin Samuel J. Morley Attorneys at Law Holland and Knight 315 South Calhoun Street, Suite 600 Post Office Drawer 810 Tallahassee, Florida 32302 Attorneys for New Hope Sugar Company, Okeelanta Corporation, Sugar Cane Growers Cooperative of Florida, Inc., South Bay Growers, Inc. United States Sugar Corporation, S. D. Sugar Corporation, Florida Sugar Cane League Alfred J. Malefatto, Attorney at Law Shapiro & Bregman, P.A. Suite 310, East Tower 777 South Flagler Drive (33401) Post Office Box 20629 West Palm Beach, FL 33416-0629 Attorney for FreBar, Inc.; Sugar Belle Joint Venture and Flor Ag Corporation Mark P. Gagnon Stanley D. Klett, Jr. Attorneys at Law Scott, Royce, Harris, Bryan & Hyland, P.A. 4400 PGA Boulevard, Suite 900 Palm Beach Gardens, Florida 33410 Attorneys for A. Duda and Sons, Inc. Leigh A. Williams, Attorney at Law Littman, Littman, Williams & Strike, P.A. 1855 S. Kanner Way (34994) Post Office Box 1197 Stuart, FL 34995 Attorney for VBQ, Inc.; Beach Brooks as Trustee and Individually Darrell White, Attorney at Law McFarlain, Sternstein, Wiley & Cassedy, P.A. 600 First Florida Bank Building (32301) Post Office Box 2174 Tallahassee, FL 32316-2174 Attorney for Allapattah Properties Partnership Michael K. Spotts, Attorney at Law Brennan, Hayskar, Jefferson & Gorman, P.A. 519 South Indian River Drive (34954) Post Office Box 3779 Fort Pierce, FL 34948 Attorney for Reuben Carlton Honorable Bob Martinez Governor, State of Florida The Capitol Tallahassee, Florida 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399-1050 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, Florida 32399-0300 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32399-0350 Eric Simon, Attorney at Law Borkson, Simon & Noskowitz 1500 N.W. 49th Street, Suite 401 Fort Lauderdale, FL 33309 Attorney for Hollywood Lakes Country Club, Inc. Mary M. Viator, Attorney at Law Caldwell & Pacetti Post Office Box 2775 Palm Beach, FL 33480 Attorney for Indian Trail Water Control District Robert D. Miller, Attorney at Law 1675 Palm Beach Lakes Boulevard Tower A, Suite 700 West Palm Beach, FL 33401 Sugar Belle Joint Venture and Flor-Ag Corporation Joseph M. Norton Transmission Line Siting Coordinator Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Tim Murphy Anita Tallarico Attorneys at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, FL 33021 Attorneys for South Florida Regional Planning Council Kerri L. Barsh, Attorney at Law 1221 Brickell Avenue Miami, FL 33131 Attorney for Graham Companies Donald S. Rosenberg, Attorney at Law 2600 AmeriFirst Building One S. E. Third Avenue Miami, FL 33131 Attorney for Black Island Partnership Robert E. Ferris, Trustee 540 Northeast Fourth Street Fort Lauderdale, FL 33301 Paul H. Amundsen James C. Hauser Attorneys at Law Blank, Hauser & Amundsen 204-B South Monroe Street Tallahassee, FL 32301 Attorney for D.L. Scotto & Company; Indian River Citrus League Frank H. Fee, III, Attorney at Law Fee, Bryan & Koblegard, P.A. Post Office Box 1000 Fort Pierce, FL 34954 Attorney for North St. Lucie River Water Control District Thomas E. Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 David Swafford, Executive Director Florida Public Service Commission Fletcher Building 101 E. Gaines Street Tallahassee, FL 32399-0875
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2005.
Findings Of Fact The proposed transmission line corridor is for the purpose of locating a 500 kV transmission line to provide dispersion of the additional power generated at the Crystal River Electric Power Plant when Unit 5 becomes operational in the fourth quarter of 1984. The northern terminus of the corridor is in Sumter County at the Central Florida Substation, located immediately south of State Road 44 in Section 24, Township 19 South, Range 23 East. The southern terminus of the corridor is in Polk County at the proposed Kathleen Substation, to be located north of U.S. Highway 98 in either Section 8 or 17, Township 26 South, Range 23 East. The length of the corridor is approximately 43 miles. The purpose of the corridor is to provide a 190 foot wide right-of-way for a 500 kV transmission line constructed upon steel lattice guyed V structures and four-legged, self-supporting steel lattice tower structures, with an approximate span between the structures of 1,200 feet. Pursuant to the requirements of Section 403.537, Florida Statutes (1980 Supp.), the Florida Public Service Commission, by order dated July 21, 1981, concluded that: The construction of the proposed transmission line will enhance electric system reliability and integrity. The proposed transmission line will improve the availability of low-cost electric energy within the State of Florida. The Central Florida Substation and the proposed Kathleen Substation are the appropriate starting and ending points of the transmission line. The Public Service Commission then determined that the proposed transmission line is needed. Notice of the final certification hearing was published on October 9, 1981, in the Leesburg Commercial, a daily newspaper published at Leesburg in Lake County, Florida, and on October 11, 1981, in The Ledger, a daily newspaper published at Lakeland in Polk County, Florida. For the purposes of this Recommended Order, the corridor for which FPC seeks certification will be broken down into three segments -- the North Corridor Segment, the Central Corridor Segment, and the South Corridor Segment. The entire corridor for which FPC seeks certification is depicted on Attachment 1 hereto. The segments are generally described as follows: The North Corridor Segment begins at the Central Florida Substation and continues to the northeast corner of the Withlacoochee State Forest and is 2,600 feet wide; The Central Corridor Segment begins at the northeast corner of the Withlacoochee State Forest and goes to a point which is the southeast corner of Section 8, Township 25 South, Range 23 East, which is generally 2 miles east of State Road 471 and south of the Withlacoochee River; and The South Corridor Segment begins at the termination of the Central Corridor Segment and continues to the proposed Kathleen Substation north of U.S. Highway 98. The three segments are described in detail in the application (Applicant's Exhibit No. 22). Parties to this proceeding agree that the North Corridor Segment and the South Corridor Segment, with certain Conditions of Certification about which the parties also agree, meet the requirements for site certification under the Transmission Line Site Certification Act. However, a dispute exists between the parties with regard to the certification of the Central Corridor Segment as proposed by FPC. The Applicant, the Department of Agriculture and Consumer Services, Division of Forestry, the Department of Natural Resources, the Florida Department of Transportation and C. M. Overstreet, et ux., argue in favor of the Central Corridor Segment as proposed by FPC. The Department of Environmental Regulation has proposed an alternative alignment to the Central Corridor Segment for which FPC seeks site certification. For purposes of this Recommended Order, this proposal by DER shall be referred to as the "DER Proposed Corridor." The Florida Game and Fresh Water Fish Commission and the Florida Department of Veteran and Community Affairs argue in favor of the DER Proposed Corridor. The DER Proposed Corridor begins at the northeast corner of the Withlacoochee State Forest and, proceeding in a westerly direction, the corridor parallels the northern boundary of the Withlacoochee State Forest and crosses North Grade Road. After approximately 6 miles (10 kilometers), the corridor crosses SR 471 and the Little Withlacoochee River, enters Hernando County, and turns due south, entering the Withlacoochee State Forest. Proceeding south on the west side of Route 471, the corridor crosses an unnamed dirt road in Section 1 (Hernando County), Richloam Clay Sink Road, and Center Grade Road, enters Pasco County 3 miles (4.8 kilometers) south of the Little Withlacoochee River crossing, and crosses unnamed roads in Section 25 (Pasco County), and exits the State Forest on the north side of Section 36, Township 23 South, Range 22 East. This alignment continues south along the west side of SR 471 to the west southern boundary of the State Forest and crosses SR 471 to the east side at the northwest corner of Section 7, Township 24 South, Range 23, East. It continues south along the east side of SR 471 to the southwest corner of Section 6, Township 25 South, Range 23 East, where it turns east southeasterly to go along the northeasterly side of a straight line connecting the southwest corner of Section 6, Township 25 South, Range 23 East and the northeast corner of Section 17, Township 25 South, Range 23 East where it joins the southern segment. This southeastern diagonal alignment crosses the Withlacoochee River in the vicinity of Trail Ford Bridge and enters Polk County. This corridor is 1,000 feet wide. The Department of Environmental Regulation has also proposed, as a second alternative to the Central Corridor Segment, deflections of that Central Corridor Segment in the area of Bayroot Slough and Cross Creek Swamp. For the purposes of this Recommended Order this proposal will be referred to as the "DER Preferred Alternate Corridor." The DER Preferred Alternate Corridor is the same as the Central Corridor Segment proposed by FPC except that the Central Corridor Segment is routed around Bayroot Slough and Cross Creek Swamp as follows: The Bayroot Slough bypass begins at the northeastern corner of Section 12, Township 23 South, Range 23 East and parallels on the south of a line from that point to the southwest corner at the same section, hence it parallels on the east a line from that point to the northeast corner of Section 24. This bypass corridor is 190 feet wide. The Cross Creek Swamp bypass begins at the northeast corner of the southeastern quarter of the southeastern quarter of Section 32, Township 24 South, Range 23 East and parallels on the northern side of a southwesterly line from that point to the northeast corner of the southwestern quarter of the southeastern quarter of Section 5, Township 25 South, Range 23 East; and then parallels on the west a due south line to the northeast corner of the southwest quarter of the southeast quarter of said Section 5 and then parallels on the southern side of a southeasterly line to the southeast corner of Section 5 and joins the FPC preferred corridor. The bypass corridor is 190 feet wide. The land uses in the North Corridor Segment consist primarily of agricultural uses, improved pasture, orange groves, row crops and some hardwood hammocks. The prevalent land uses in that part of the Central Florida Segment within the Withlacoochee State Forest are timber management and game management. The prevalent land uses within that part of the Central Florida Segment south of the Withlacoochee State Forest are private timber management and cattle operations. The DER Proposed Corridor and the Central Corridor Segment, south of the Withlacoochee State Forest, are composed of approximately the same types and amounts of wet land and forested areas. The proposed corridor in the Central Corridor Segment crosses two large wetland systems, Cross Creek Swamp and Bayroot Slough. The entire corridor proposed by the Applicant contains approximately 1,100 acres of cypress wetland. Altering the FPC corridor in the manner suggested by DER in the DER Proposed Corridor would increase the cypress wetland acreage encompassed by the corridor to 1,300 acres. A similar comparison of the two corridors with regard to fresh water marsh indicates that the DER Proposed Corridor would reduce the acreage of fresh water marsh encompassed by the corridor from 800 acres in the FPC corridor to 600 acres. Both corridors contain similar amounts of fresh water swamp. There are three large wetland systems in the FPC Proposed Corridor. They are Bayroot Slough, Devils Creek Swamp, and Cross Creek Swamp. Bayroot Slough is approximately 3,600 acres in area, Devils Creek Swamp is 8,800 acres in area and Cross Creek Swamp, 1,145 acres in area. The Applicant proposes to build an access/maintenance road completely through Devils Creek Swamp on the eastern most 20 feet of its right-of-way. This access/maintenance road would be used as a partial base for a levee proposed to be constructed in the area by the Southwest Florida Water Management District. This access/maintenance road would require the filling of approximately 9 acres, or one-tenth of one percent, of Devils Creek Swamp. In Bayroot Slough and Cross Creek Swamp, as well as all other major wetland areas, with the exception of Devils Creek Swamp, the Applicant proposes to use keyhold fills for the placement of its towers and to leave the span between towers open with no placement of fill. These construction techniques are designed to permit sheet flow to continue in a near natural state, thus minimizing adverse impact on those wetland areas. In Bayroot Slough, approximately six acres, or less than two-tenths of one percent, are proposed to be filled in connection with construction of the subject line. In Cross Creek Swamp, approximately four acres, or less than four-tenths of one percent of the total swamp area, will be filled for the construction of an access/maintenance road. The DER Proposed Corridor would require approximately four additional miles of transmission line than would the corridor proposed by FPC. That would increase the cost of construction of the transmission line from approximately $23,174,000.00 to $25,824,000.00 Thus, the DER Proposed Corridor would cost $2,650,000.00 more to construct than would the corridor proposed by the Applicant. The DER Preferred Alternate Corridor, which contains deflections around Bayroot Slough and Cross Creek Swamp, would require approximately .87 miles more transmission line than would the FPC Proposed Corridor and because of that additional length and the number of turning angles necessary,, would cost approximately $1,344,000.00 more to construct than would the corridor as proposed by FPC. The wetland systems in the region which contain Bayroot Slough, Devils Creek Swamp and Cross Creek Swamp are interrelated with regard to wildlife. This region is approximately 25,000 acres in size. Approximately 96 acres would be cleared and 19 acres filled with the construction of a transmission line along the corridor proposed by the Applicant. The right-of-way required for the proposed 500 kV transmission line will measure 190 feet in width. The transmission line will consist of one single circuit 500 kV line. The basic structure type selected for the proposed transmission line is a steel lattice guyed V. This structure will be used to support the conductors on straight portions of the line. At angles in the transmission line, the conductors will be supported by a four-legged, self- supporting steel lattice tower. These angle structures are significantly more expensive than the steel lattice guyed V structures. The structures will be constructed of steel angle sections and will be galvanized. The guy wires for the guyed V structure will be either aluminum coated steel cable or an aluminum cable with an approximate diameter of 1.0 to 2.0 inches. A four-legged self- supporting steel lattice structure may be used on some straight portions of the transmission line where required, due to soil conditions, clearances, or other engineering or environmental considerations. The structures will support a single three-phase alternating current, 500,000 volt circuit. Three conductors will be included in each phase, resulting in a total of nine conductors for the circuit. The structure also supports two overhead ground wires which protect the circuit from lightning strikes. The conductor will be supported in the structure by insulator and hardware assemblies. A typical foundation for the guyed V structure will be a cast-in-place reinforced concrete foundation. Guy wires will be attached. The angle structure will be supported on cast-in-place reinforced concrete cylinder foundations. The structures will be electrically grounded. The minimum conductor to ground clearance will be 37 feet at 120 degrees Fahrenheit. A typical span between structures is 1,200 feet. The transmission line will be designed to meet or exceed the requirements of the National Electric Safety Code, 1973 and 1981 Editions. Construction of the transmission line will be done in three phases. The first phase will consist of clearing the right-of-way and access/maintenance road construction. The second phase will consist of construction of the towers, and the third phase will consist of the actual stringing of the conductors. Because of the very small amount of the total aquifer recharge area proposed to be filled by the Applicant, there will be no significant adverse impact to aquifer recharge capabilities because of the construction of the transmission line. If constructed with an adequate amount of culverting, the access/maintenance roads proposed to be constructed by the Applicant will not significantly affect the surface regime in the areas within the FPC Proposed Corridor. Outside of the 190 foot transmission line right-of-way there will be essentially no change in-existing vegetation. Within the 190 foot right-of-way, only the inside 150 feet will be cleared with the outer 20 feet on each side being cleared only of "danger" trees; that is, trees that might fall on to the line because they are diseased, dead or leaning toward the line. Benthic organisms (microscopic, microinvertebrates, which are aquatic organisms on the lower levels of the food chain) could be adversely impacted if the wetland they inhabit is relatively small compared to the amount of fill required in that wetland for the construction activities associated with the transmission line. If the wetland is relatively large, however, there will be no discernible impact on the standing crop of benthic organisms because they can migrate to other portions of the wetland which are not filled. The DER Proposed Corridor has a greater number of relatively small wetland areas than does the FPC Proposed Corridor. No evidence was presented to establish any adverse impact by construction of a transmission line to upland wildlife habitat or upland wildlife species with the exception of the American wood stork. Although the evidence did establish that construction of a transmission line through wetland wildlife habitat could adversely affect some wildlife species within that habitat, the evidence did not establish that the extent of such an impact on any species would be significant in either the FPC Proposed Corridor, the DER Proposed Corridor or the DER Preferred Alternate Corridor. Witnesses for the Department of Environmental Regulation and the Florida Game and Fresh Water Fish Commission expressed a concern that placement of a transmission line in the FPC Proposed Corridor will allow increased human access to the large wetland areas within that corridor. The evidence considered overall, however, does not establish that placement of a transmission line in the FPC Proposed Corridor" will in fact result in any significant increased human access to the large wetland areas within that corridor or that such access per se would result in some significant adverse environmental impact. In order to attenuate potential flood damage along the Withlacoochee River, the Southwest Florida Water Management District proposes the construction of a levee to capture and hold 25-year and greater storm events in head-water areas of the Withlacoochee River. This is an ongoing project of SWFWMD which, at best, is several years from construction. In the area of Devils Creek Swamp, the Central Corridor Segment proposed by the Applicant would co-locate the transmission line with the SWFWMD proposed levee, thus minimizing the amount of fill to be placed in that area by the two projects and minimizing the adverse impact of the wetland system by the transmission line. Should such co-location occur, it would have the minimizing effect outlined above. However, because of the prospective nature of the SWFWMD project, the ultimate co-location of the transmission line and the SWFWMD levee is too speculative to assign much weight to its significance. Should a transmission line be placed adjacent to Highway 471 as proposed as an alternative by the Department of Environmental Regulation, some of that transmission line would cross property which is intended for residential development by its owners. The Florida Department of Agriculture and Consumer Affairs, Division of Forestry, has indicated its hope that the alignment of the transmission corridor as proposed by the Applicant in the area of the Withlacoochee State Forest would provide a fire break beneficial to the Division for forest management purposes. There are three endangered species to which special attention should be paid with regard to the construction of a transmission line and associated faciliti es. These are the scrub jay, the red-cockaded woodpecker, and the wood stork. The scrub jay is found in vegetation typically less than 25 feet tall so that except for tower placement, scrub jay habitat will be essentially unaffected. The Applicant has agreed to a Condition of Certification to further protect the scrub jay and its habitat by avoiding colonies where found or by leaving the oak scrub in place under the wires. The red-cockaded woodpecker nests and roosts in mature and over-mature pines. Such trees may occur within the proposed corridor. To protect colonies that may exist, a survey needs to be performed prior to final right-of-way selection and if a colony is found, a right-of-way should be chosen to avoid that colony if at all possible. It could be very costly to divert the transmission line around such a colony by angles in the line. None of the proposed corridors cross a known wood stork rookery. However, a former rookery exists at Clay Sink wading bird site and will probably again become a rookery in the future when favorable conditions again exist. The FPC Proposed Corridor is more than a mile from any known wood stork rookery which should eliminate any significant adverse impact on such a site. A 500 kV transmission line is an extra high voltage line. The highest electrical field strength directly underneath the proposed Central Florida-to- Kathleen 500 kV transmission line at ground level will be less than 10,000 volts per meter, and the field strength will diminish with distance from the line. The magnetic field associated with the proposed transmission line will be less than 0.5 gauss. Testimony and evidence establishes that the electric and magnetic field forces encountered in the vicinity of the transmission line at ground level will have essentially no biological effect and will be no stronger than similar forces encountered in the normal course of modern daily life. Because of the size of the conductors to be used on the proposed transmission line, the ozone produced by that line will be negligible and will be well below the maximum ozone concentration level (0.12 ppm) recommended by the United States Environmental Protection Agency. During fair weather, the line will be virtually silent. During wet weather, when the conductors are wet, the noise level will be approximately 38 dBA at the edge of the right-of-way. This is a low noise level. At locations near the edge of the right-of-way, some interference with the reception of AM radio signals will experienced, particularly during wet conductor conditions. No interference to reception of FM radio broadcasts is expected from the proposed transmission line at any time. Television reception may be affected similarly-to that of AM radio signals. No hazardous induced currents are expected to occur in structures or vehicles beneath the line. Except as otherwise noticed in the Findings of Fact herein, the testimony and evidence in this cause establishes that the proposed transmission line, if constructed along a right-of-way in the corridor as proposed by the Applicant, pursuant to the Conditions of Certification, would have no significant adverse effect on the environment, public health, safety or welfare. Similarly, neither the DER Proposed Corridor nor the DER preferred Alternate Corridor would have any significant adverse effect on the environment, public health safety or welfare. The evidence does not establish that the two alternative corridors proposed by DER would have an appreciably reduced effect on the environment, public health, safety or welfare. The evidence does establish, as set forth in Paragraph 13 above, that the two DER alternatives would be significantly more expensive to construct than would the FPC proposed corridor. The corridor as proposed by FPC and depicted on Appendix 1 is 2,600 feet wide from its starting point at the existing Central Florida Substation to the northeast corner of Section 1, Township 23 South, Range 23 East, also the northeast corner of the Withlacoochee State Forest. At that point, the corridor narrows to 1,000 feet and continues to proceed southerly immediately west of the Sumter/Lake County line. At a point identified as the northeast corner of Section 1, Township 24 South, Range 23 East, the corridor narrows to 500 feet and proceeds in a southwesterly direction with 250 feet-on either side of a line running from the northeast corner of Section 1, Township 24 South, Range 23 East, to the southwest corner of Section 4, Township 24 South, Range 23 East. At a point identified as the southwest corner of Section 4, Township 24 South, Range 23 East, the corridor turns due south, expands to 1,020 feet with the eastern 20 feet inside the SWFWMD west property line, and proceeds directly south paralleling the SWFWMD proposed levee for approximately one and one-half miles through "Devils Creek Swamp" to a point where the transmission line corridor end the SF4D proposed levee diverge. The corridor narrows to 1,000 feet and proceeds directly south immediately west of the SWFWMD west property line to the proposed Kathleen Substation site.
The Issue The issues in these cases are whether Respondent’s proposed contract award pursuant to a Request for Proposals for Medicaid Non-Emergency Medical Transportation in Palm Beach County, Florida, and whether Respondent’s proposed contract award pursuant to a Request for Proposals for Medicaid Non-Emergency Medical Transportation Services in Duval County, Florida, are contrary to Respondent’s governing statutes, Respondent’s rules or policies, or the request for proposals.
Findings Of Fact The Commission is an independent commission of the State of Florida created pursuant to Section 427.012, Florida Statutes (2009),1 and is housed administratively within the Department. The Commission sought proposals to provide Medicaid non-emergency medical transportation, and the Department administered the procurement process for the Commission by issuing the RFP and otherwise administratively handling the procurement for the Commission. Contracts were to be awarded for ten counties, including Palm Beach and Duval Counties. The proposers were required to submit a separate proposal for each county for which they were seeking a contract. The RFP incorporated three separate addenda, numbered one through three. Addendum No. 2 included a list of potential proposers’ questions concerning the RFP and the Commission’s responses to those questions. Each proposer was required to include with its proposal a signed acknowledgement certifying its receipt of each addendum. When the notice of solicitation was posted and the addenda were issued, no party filed a protest of the specifications within 72 hours of the posting or issuance of the addenda. MV Contract Transportation, Inc., and TMS Joint Venture submitted their responses to the RFP for both Duval and Palm Beach Counties. MV Contract Transportation, Inc., is a Delaware Corporation, which was incorporated on September 23, 2003. It is a wholly-owned subsidiary of MV Transportation, Inc., which is a California corporation incorporated on December 18, 1978. MV Contract Transportation, Inc., is a separate corporation from MV Transportation, Inc. MV Contract Transportation, Inc., and MV Transportation, Inc., have separate federal employer identification numbers, bank accounts, officers, and directors. TMS Joint Venture was formed by TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc., pursuant to a Joint Venture Agreement dated October 15, 2009. TMS Joint Venture refers to the term “TMS” throughout its proposals as TMS Joint Venture and its respective venturers. TMS Management Group, Inc., was formed on January 4, 2005. Transportation Management Services of Brevard, Inc., was formed on November 23, 2004. Relevant portions of the Joint Venture Agreement provide: TMSG [TMS Management Group, Inc.] and TMSB [Transportation Management Services of Brevard, Inc.] do hereby acknowledge, pledge, and covenant with one another to allow the full use of their personnel, equipment, assets, and facilities to support and perform any contract(s) to which the Joint Venture may become a party and to do such other things and provide other support to TMS [TMS Joint Venture], as may be reasonably necessary, to allow TMS to submit bids, proposals, or otherwise respond to solicitations for its services on the projects and to perform all contracts which may be awarded to TMS. * * * TMSG shall provide financial and administrative support to TMS. In doing so, it is hereby authorized to submit bids and proposals on behalf of TMS. It is further authorized to execute contracts on TMS’ behalf and to thereby bind both TMSG and TMSB as Venturers. TMSG shall also be authorized to accept and cash checks made payable to TMS and to deposit such into its accounts for subsequent use and distribution in accordance with the joint instructions of the Venturers. TMSG shall otherwise be authorized to take all actions, including but not limited to the submission of all payment requests, payment of related bills and expenses, negotiate and execute any needed subcontracts, provider agreements, obtain insurance or bonds if needed and to otherwise execute all documents and conduct all of the business of TMS for the benefit of the Venture. TMS Joint Venture has been awarded contracts pursuant to the RFP for other counties. Those contracts have been entered into by the Commission and TMS Joint Venture/TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc. The Department posted its initial Notice of Intent to Award the contracts pursuant to the RFP at 5:00 p.m. on November 16, 2009. For the Duval County contract, the posting showed that “MV Contract Transportation” had earned a total score of 88.33 and that TMS Joint Venture had earned a total score of 83.99. The initial Notice of Intent to Award proposed to award the Duval County contract to MV Contract Transportation, Inc. On November 19, 2009, TMS Joint Venture filed a notice of intent to protest the contract award for Duval County pursuant to the RFP. The notice of intent to protest identified the RFP by number, RFP-DOT 09/10-9005-JP-Duval County, Fl. The notice of protest stated: Please be advised that this firm represents the interests of TMS Joint Venture (“TMS”) regarding the above referenced matter. Please accept this as written notice of TMS’s intent to protest the above referenced intended award to MV Transportation, Inc. (“MV”). This Notice of Intent to Protest is being forwarded to you pursuant to paragraph 29.1 of the RFP and Florida Statute 120.57. No evidence was presented that any of the parties were confused about who was the intended awardee for the Duval County contract. No evidence was presented that, at the time of the filing of the notice of intent to protest, any of the parties were uncertain that TMS Joint Venture was protesting the intended award of the Duval County contract to MV Contract Transportation, Inc. In its Petition to Intervene for the Duval County contract, MV Contract Transportation, Inc., stated: On November 16, 2009, the Department posted a Notice of Intent to Award the Duval Contract to MV Contract. On November 19, 2009, TMS filed its Notice of Intent to Protest the award to MV Contract. On November 30, TMS filed a Formal Written Protest and Petition for Formal Administrative Hearing (“the Petition”). The initial posting for Palm Beach County showed that TMS Joint Venture had a total score of 91.66 and that “MV Contract Transportation” had a total score of 91.65. The initial Notice of Intent to Award proposed to award the Palm Beach County contract to TMS Joint Venture. On November 18, 2009, MV Contract Transportation, Inc., filed a notice of intent to protest the award of the Palm Beach County contract to TMS Joint Venture. On December 16, 2009, the Department posted a revised Notice of Intent to Award the Palm Beach County contract to “MV Contract Transportation.” The total score of TMS Joint Venture was revised to 89.65, based on a scrivener’s error by an evaluator. One of the evaluators had made a mistake in recording the scores from his handwritten score sheet to the typed score sheet. There was no evidence presented that any of the evaluators were given an opportunity to revisit or change their original scoring of the proposals. On December 18, 2009, TMS Joint Venture filed a notice of intent to protest the intended award of the Palm Beach County contract to MV Contract Transportation, Inc. TMS Joint Venture filed a Petition for Formal Hearing concerning the Palm Beach County contract with the Commission on December 28, 2009, as stated in the Certificate of Service. Section 1 of the Introduction portion of the RFP provides: The Department intends to award contracts to responsive and responsible Proposer or Proposers whose proposal is determined to be the most advantageous to the Department. . . . After the award, said Proposer will be referred to as the “Vendors.” For the purpose of each document, the term “Proposer” means the prime Vendor acting on its own behalf and those individuals, partnerships, firms, or corporations comprising the Proposer team. The term “prime vendor” is not defined in the RFP. There are references in other sections of the RFP which require the identification of the “prime contractor” in the completion of the Bidder Opportunity List and the Anticipated DBE Participation Statement. The terms prime contractor and prime vendor are synonymous. The Department interprets the term “prime vendor” to mean the entity that will be entering into the contract with the Commission and that will be bound legally to the terms of the contract. The cover letter of each proposal and the forms submitted which required a signature are signed by W.C. Pihl, vice president. Mr. Pihl is a vice president of business development for MV Contract Transportation, Inc. The cover pages of the proposals at issue submitted by MV Contract Transportation, Inc., state that the proposal is submitted by MV Contract Transportation, Inc., and underneath that name further state in italics “A Wholly Owned Subsidiary of MV Transportation, Inc.” The cover letter in each proposal states: “Enclosed please find MV Contract Transportation’s proposal in response to the State of Florida Department of Transportation’s Request for Proposal for Medicaid Non-Emergency Transportation Services” for the county in which the proposal is being submitted, and “I encourage you to select MV Contract Transportation as your partner for the provision of Medicaid Non-Emergency Transportation Services” for the county in which the proposal is being submitted. The Bid Opportunity List, which was required to be submitted with each proposal, identified the prime contractor as MV Contract Transportation, Inc. If awarded the contracts for Duval and Palm Beach Counties, MV Contract Transportation, Inc., is the entity who would be entering into the contracts and who would be legally bound to the contracts. It is clear that MV Contract Transportation, Inc., is the prime vendor for the proposals at issue. The proposals submitted by TMS Joint Venture stated: “The TMS Joint Venture with its respective Venturers are hereinafter collectively referenced throughout this proposal as ‘TMS,’ which is the entity submitting this proposal.” The proposals identified TMS Joint Venture as the prime vendor. On October 12, 2009, the Department issued Addendum No. 2 to the RFP, which included questions that were received from prospective proposers and the Commission’s responses. Question 7 stated: “Page 18, Section 28, Proposal Evaluation: Is the evaluation of the proposal strictly limited to the prime vendor and the Proposer Team as identified in Section 1, invitation?” The Commission’s written response was: “The evaluation of the proposal is based on the prime vendor and their demonstration of their ability to fulfill the requirements of the scope of services.” TMS Joint Venture takes the position that question 7 in Addendum No. 2 means that the evaluation of a proposer’s experience and capability to fulfill the requirement of the scope of services is limited to a review of the experience and capability of the prime vendor and that the experience of others who are part of the proposer team may not be considered by the evaluators. MV Contract Transportation, Inc., takes the position that the experience of others who are a part of the proposer team may be considered in determining whether the prime vendor has the ability to fulfill the requirements of the scope of services. It is not clear from the testimony what the position of the Commission is concerning whether question 7 in Addendum No. 2 limited the evaluation to the prime vendors’ experience. Joyce Plummer, the Department employee responsible for the procurement, relied on the Commission for the answers to the questions asked by the proposers. Bobby Jernigan, the executive director of the Commission, relied on his staff to answer the questions. Thus, no one clearly stated the Commission’s position as to what the Commission intended by the response to question 7 in Addendum No. 2. The proposed recommended order of the Commission does little to shed light on whether the Commission intended to limit the evaluation to the experience of the prime vendor. For example, in its proposed recommended order, the Commission states that the statements about MV Contract Transportation, Inc.’s, experience which included MV Transportation, Inc.’s, experience were not misrepresentations, “as long as it is proper for the proposer to have included information about its parent company” and certain claims made by MV Contract Transportation, Inc., are true, “unless MV can only make claims as to the particulars of MV Contract Transportation, Inc.” Based on question 7 and the response to question 7 in Addendum No. 2 and the definition of proposer in the RFP, the evaluation and scoring of the proposals were to be based on the experience, solvency, assets, and capabilities of the prime vendor and not the prime vendor and the proposer team. If the Commission had wanted the experience and solvency of parent companies and affiliates to be considered in the evaluation, it could have said so in its response to question 7, but it did not do so. Section 8.1 of the Special Conditions of the RFP states: The Department will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. The Proposer shall identify necessary experienced personnel and facilities to support the activities associated with this proposal. Section 20.2 of the Special Conditions of the RFP provides that the proposals shall include an executive summary, a management plan, and a technical plan. The sections were described in the RFP as follows: EXECUTIVE SUMMARY The Proposer shall provide an Executive Summary to be written in nontechnical language to summarize the Proposer’s overall capabilities and approaches for accomplishing the services specified herein. The Proposer is encouraged to limit the summary to no more than ten (10) pages. PROPOSER’S MANAGEMENT PLAN The Proposer shall provide a management plan which describes administration, management and key personnel. Administration and Management The Proposer should include a description of the organizational structure and management style established and the methodology to be used to control costs, services, reliability and to maintain schedules; as well as the means of coordination and communication between the Proposer and the Commission. The Proposer shall provide a management plan which describes administration, management and key personnel. The plan should address the following: Company’s experience in providing specialized transportation services, including but not limited to Medicaid NET. Include location and duration. Company’s assets available to operate in the county proposed to be served. List all assets that will be committed to this project. Describe the proposed local service area organizational structure and how it fits into the overall organizational structure of your company. Company’s ability to comply with the reporting requirements and the Scope of Services. Cite any failures to provide adequate and timely reporting in the past. Company’s solvency and ability to assume the risks of service provision in the proposed county. Does your company have a policies and procedures manual? If so, describe the type of policies and procedures contained in your manual, how often they are updated and how they are maintained. (Please provide a copy.) Describe your company’s driver training program. How will you ensure you’re [sic] your drivers and the drivers of any subcontracted transportation providers are trained? Does your company have a Quality Management Plan? If so, please provide a copy. If not, describe your methods for ensuring quality of services. Describe your company’s process for the procurement of subcontracted operators, if applicable, including your efforts for recruitment and retention of minority businesses. Please describe how your company’s internal office practices lessen the impact on non-renewable resources and global climate change (reduction in water, energy, paper use, minimalization of hazardous materials, compressed or flexible work week schedules, etc.). Discuss what initiatives your company will implement to effectively manage current funding levels and secure additional funds to support the system. Provide 3-5 professional references regarding your organization’s ability and experience in providing specialized transportation, including but not limited to Medicaid NET services. The references should state the period of time service was provided. Identification of Key Personnel The Proposer should provide the names of key personnel on the Proposer’s team, as well as a resume for each individual proposed and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively for the project and to the assigned tasks should also be indicated. 3. PROPOSER’S TECHNICAL PLAN The Proposer shall provide a technical plan which explains technical approach and facility capabilities. Technical Approach The Proposer should explain the approach, capabilities, and means to be used in accomplishing the tasks in the Scope of Services, and where significant development difficulties may be anticipated and resolved. Any specific techniques to be used should also be addressed in addition to the following: The Proposer should provide a description and location of the Proposer’s facilities as they currently exist and as they will be employed for the purpose of this work. Identify your company’s software and demonstrate its ability to comply with CMS, HIPPA and Commission software necessary for reporting data as required in Exhibit A, scope of services. Provide documentation demonstrating the number of specialized transportation trips, including but not limited to, Medicaid NET, provided on a monthly basis and show the complaint ration on said trips. Please state when and where these trips were provided. Describe your company’s process for tracking and resolving complaints received. Please include the length of time it takes a complaint to be resolved by your organization. Describe your company’s ability to monitor activities of subcontracted operators. Reference evaluation tools used and include copies in proposals if available. Please describe your company’s vehicle inspection and maintenance program to ensure safe and reliable functioning of their vehicles. Address how your company will comply with the requirements of Chapter 14- 90, FAC. Have your vehicles or your subcontractors vehicles, been involved in any accidents that resulted in a fatality over the last year? Please attach the accident report(s). Describe the process to acquire vehicles for use in the service area. Provide the estimated amount of time required to acquire vehicles. Please describe any alternative energy resources your company or your subcontractors (or expectations listed in procurement for subcontractors) may utilize, such as solar or wind energy, and use of bio-diesel or other alternative fuels in support of your company’s energy needs. Provide a detailed plan describing the process that will be followed to ensure a smooth contract start-up on January 1, 2010. Based on the definition of proposer, which includes the prime vendor and the proposer team, and based on the information which was required to be submitted, it is clear that the Commission contemplated that the prime vendor would not necessarily be providing all the services required by the contract and that some services could be subcontracted. In Addendum No. 2, the Commission responded affirmatively to question 8 which provided: Page 15, Section 2a, Proposer’s Management Plan, #1 through #12 and Page 16, Section 3. Proposer’s Technical Plan #1 through #10, the terms “company” and “organization” are used throughout this section. Please verify that these terms are to mean the “Proposer.” The RFP and Addenda are not models of clarity; however, when the responses to questions 7 and 8 in Addendum No. 2 are considered together, information could be included about the prime vendor and the proposer team, but only the information about the prime vendor would be used in the evaluation process. Thus, the proposals would have to identify what information related to the prime vendor and what information related to the proposer team. The parties have stipulated as follows: MV Contract’s proposals, in part, described the experience, contracts, facilities, assets and/or personnel of some of its related entities (parent and affiliated corporations). Throughout its proposals MV Contract Transportation, Inc., refers to the term “MV,” which it identifies on page 9 of each of the proposals as “MV Transportation, Inc. and its affiliates.” The cover letters for the proposals state that MV is the current Subcontracted Transportation Provider (STP) for the county for which the proposal is being submitted, meaning that MV is the current STP for Palm Beach and Duval Counties. However, MV is not the current STP provider in each of the counties; MV Contract Transportation, Inc., is the current STP provider in the two counties. In its proposals, MV Contract Transportation, Inc., refers to the experience of MV, meaning MV Transportation, Inc., and its affiliates. The proposals do not identify who the affiliates are. One would presume that MV Contract Transportation, Inc., is one of the affiliates, since it is a wholly-owned subsidiary of MV Transportation, Inc., and is submitting the proposals. The proposals do not delineate between the experience and capabilities of MV Contract Transportation, Inc., and MV Transportation, Inc., and its affiliates. The RFP required that each proposal address the “Company’s solvency and ability to assume the risks of service provision in the proposed county.” The RFP did not require that certain documents, such as a financial statement, be submitted to satisfy this requirement. How this requirement was to be addressed was to be left to the proposer. MV Contract Transportation, Inc.’s proposals address the solvency issue by the following: 5. Financial Resources and Stability MV is a privately held firm that has neither been bought by nor merged with another firm. The lack of this debt load associated with such transactions has allowed MV to control interest costs and keep money in the pockets of our customers and employees and out of those of lenders. MV is in sound financial condition and has proven ability to run services efficiently. We are well positioned to handle the risks of this program, and understand the contractual expectations of the CTD, and the service expectations of our passengers. The Company’s financial position is solid, and has strengthened over the last three years as evidenced by the increase in working capital and working capital ratios. The Company has the financial resources and wherewithal to meet its financial obligations. For more information regarding the financial viability of MV, please contact Mr. Jeff Heavin, Chief Financial Officer, at (707)863-8980, extension 3009. Based on the definition of MV in MV Contract Transportation, Inc.’s, proposals, an evaluator could not tell to what extent the proposal is addressing the solvency of MV Contract Transportation, Inc., and the ability of MV Contract Transportation, Inc., to assume the risks of service provision in the proposed county. This is important because MV Contract Transportation, Inc., is the entity that would be legally bound and responsible to perform under the contract. The Commission would not be contracting with MV Transportation, Inc., or other affiliates of MV Contract Transportation, Inc., and, therefore, cannot hold MV Transportation, Inc., liable for the performance of the contract. Section 28 of the Special Conditions of the RFP provides: Evaluation Process: A Technical Review team will be established to review and evaluate each proposal submitted in response to the Request for Proposals (RFP). The Technical Review team will be comprised of at least three persons with background, experience, and/or professional credentials in relative service areas. The Procurement Office will distribute to each member of the Technical Review team a copy of each technical proposal. The Technical Review team members will independently evaluate the proposals on the criteria established in the section below entitled “Criteria for Evaluation” in order to assure that proposals are uniformly rated. The Technical Review team will assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. Proposing firms must attain a score of seventy (70) points or higher on the Technical Proposal to be considered responsive. During the process of evaluation, the Procurement Office will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. Criteria for Evaluation Proposals will be evaluated and graded in accordance with the criteria detailed below. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Proposer’s Executive Summary, Management Plan, and Technical Plan for understanding of project, qualifications, approach and capabilities, to assure a quality product. The following point system is established for scoring the technical proposals: Point Value Executive Summary 25 Management Plan 30 Technical Plan 45 The evaluators selected by the Commission to evaluate the proposals for Duval County were Karen Somerset, Douglas Harper, and Elizabeth De Jesus. The evaluators selected to evaluate the proposals for Palm Beach County were Karen Somerset, Douglas Harper, and Angela Morlok. The evaluators were advised that they were not to discuss the proposals with the other evaluators and that they were required to do an independent evaluation. Each evaluator was to fill out a technical evaluation summary sheet, which essentially tracked the areas listed in Section 20.2 of the RFP for what was to be included in the proposals for the executive summary, the management plan, and the technical plan. Each evaluator based his or her scoring on the maximum allowable points per category. Some evaluators assigned points for various aspects of the proposals, and others just gave points on the overall quality of the category being evaluated. Regardless of the method that an evaluator used to allocate the maximum points for each category, the evaluator evaluated all the proposals in the same manner. None of the evaluators discussed the proposals with the other evaluators, nor did the evaluators discuss how the proposals were to be scored with one another. The RFP did not require the evaluation team members to meet to develop a method to allocate the maximum amount of points for the categories to be evaluated. Although the RFP states, “[t]he Technical Review team will assign points utilizing the technical evaluation criteria identified herein,” it is reasonable to construe the RFP to mean that each of the evaluators was to assign points independently. This reading is reasonable because the rest of the sentence in which that language appears reads “and complete a technical summary.” The technical summary was not to be completed by the evaluation team as a whole. Each evaluator was to complete his or her own technical summary for each of the proposals evaluated. Other than Ms. Somerset, who skimmed the contents of the RFP, none of the evaluators had reviewed the RFP, including the addenda, prior to their evaluations of the proposals. Thus, the evaluators were not aware that they were to evaluate the prime vendor, rather than the proposer as defined by the RFP. The evaluators did not consider whether the experience and capabilities being evaluated were those of MV Contract Transportation, Inc., or MV Transportation, Inc. They thought the proposer was “MV.” Some of the evaluators knew that “MV” had the STP transportation contracts in Palm Beach and Duval Counties and assumed that entity who had those contracts was the proposer. Section 1 of the Special Conditions of the RFP provides: Since July 1, 2003, the Department has been using the State of Florida’s web-based electronic procurement system. MyFloridaMarketPlace. PROPOSERS MUST BE REGISTERED IN THE STATE OF FLORIDA’S MYFLORIDAMARKETPLACE SYSTEM BY THE TIME AND DATE OF THE TECHNICAL PROPOSAL OPENING OR THEY WILL BE CONSIDERED NON-RESPONSIVE (see Special Condition 18). (Emphasis in original) TMS Joint Venture is not registered with the myFloridaMarketPlace system; however, the venturers, TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc., are registered with the myFloridaMarketPlace system. No credible evidence was presented on whether the joint venture could have been registered with the myFloridaMarketPlace system. Question 9 of Addendum No. 2 of the RFP stated: “On several forms, the proposer’s FEID number is referenced. If the proposer is a joint venture, shall the FEID numbers of each venturer be listed or shall only the lead administrative venturer’s FEID number be listed?” The Commission’s written response stated: “Only the lead administrative venturer’s FEID number should be listed.” An entity’s FEID number can be used to register with the myFloridaMarketPlace system. Thus, TMS Joint Venture took this response also to mean that, since both the venturers were registered on the myFloridaMarketPlace system, the listing of the lead administrative venturer as being registered on the myFloridaMarketPlace system was sufficient to make the proposals responsive. When Ms. Plummer received the proposals from TMS Joint Venture, she questioned whether the proposals were responsive and discussed it with her supervisor. The Department took the position that both venturers were listed on the system; thus, the registering of the lead administrative venturer was sufficient to deem the proposals of TMS Joint Venture responsive to the requirement to be registered on the myFloridaMarketPlace system. The parties have stipulated that “TMS’s proposals described the experience, contracts, facilities, assets and/or personnel of its Joint Venturers.” MV Contract Transportation, Inc., contends that TMS Joint Venture is not responsive to the RFP because it listed Greater Pinellas Transportation Management Services, Inc. (GPTMS), as the provider for a contract that was listed in the experience section of TMS Joint Venture’s proposals. The listing was clear that GPTMS had been the contractor for the project listed and not TMS Joint Venture. The evaluators could tell by reading TMS Joint Venture’s proposals what experience related to TMS Joint Venture and what experience related to GPTMS. The evaluators could not tell from reading the proposals of MV Contract Transportation, Inc., what experience was related to MV Contract Transportation, Inc., because the experience was described as the experience of MV, which was defined as MV Transportation, Inc., and its affiliates. The RFP required proposers to provide “a description and location of the Proposer’s facilities as they currently exist and as they will be employed for the purpose of this contract.” TMS Joint Venture described its call center in Clearwater, which “contains 6,000 square feet, with 3,700 feet of additional space to rapidly expand, of administrative space and provides for all functional areas.” TMS Joint Venture leases the building in which the call center is located, but it currently shares space in the call center with GPTMS. TMS Joint Venture did not disclose that it is currently sharing space with GPTMS. However, there was no evidence presented that the call center as it currently exists does not have sufficient capability to meet the needs of the contracts at issue. In TMS Joint Venture’s proposals, the Management Plan section states: The TMS senior management has spent years constructing and honing our client eligibility screening systems. TMS staff began innovating these systems in 1991, when management quantitatively analyzed our existing transportation systems. TMS was alarmed when we quantified the considerable costs that running trips for ineligible clients, imposed on the business. The Management Plan goes on to say what measures TMS Joint Venture takes to ensure that ineligible clients do not receive services. Mr. David McDonald, the president of TMS Management Group, Inc., explained that the language was meant to demonstrate that the senior staff members of TMS Joint Venture had been constructing and honing eligibility systems since 1991 and that they had applied their experience in developing the screening measures used by TMS Joint Venture. In TMS Joint Venture’s proposals, the Management Plan includes the following statement: For more than 15 years, the TMS team has managed the administration, coordination, and provision of Medicaid and all other types of human transportation. The TMS operations team has nearly 350 years of Medicaid and other transportation related service delivery experience. This statement is referring to the experience of the management team members and not specifically to the number of years that TMS Joint Venture or the venturers had been in business. That portion of the proposals goes on to list the various current contracts of the venturers of TMS Joint Venture. Section 19 of the Special Conditions of the RFP provides: Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non- responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, and improper and/or undated signatures. Section 16 of Pur 1001 form attached to the RFP provides: Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State’s best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the evaluation of the proposals of MV Contract Transportation, Inc., were contrary to the RFP; that the way in which MV Contract Transportation, Inc., submitted its proposals prevents the evaluators from evaluating the proposals in accordance with the RFP; that the notices of protests and formal protests of TMS Joint Venture were timely filed; and that the proposals of TMS Joint Venture are responsive to the RFP. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 25th day of March, 2010.
Findings Of Fact Procedural Matters. Filing of the Application and Notices. FPC filed the DWS transmission line Application on July 2, 1992. The Notice of Receipt of Transmission Line Certification Application, the Notice of Certification Hearing on Proposed Transmission Line Corridor, and the Reminder Notice of Certification Hearing were published in newspapers of general circulation in Volusia and Seminole Counties, and in the Florida Administrative Weekly in accordance with the requirements of Section 403.527, Florida Statutes (1991), and Rule 17 Florida Administrative Code Stipulations. DCA, GFWFC, ECFRPC, DOT, Volusia County, Seminole County, City of Lake Mary, and City of Sanford have entered into stipulations with FPC regarding the certification of the DWS transmission line. These state, regional, and local agencies have agreed that the location of the DWS transmission line corridor and the construction and maintenance of the transmission line as set forth in the Application will, under the provisions contained in the stipulations, comply with the nonprocedural standards of each agency and/or be consistent and in compliance with the local government comprehensive plans and land use regulations of the local governments. It was further agreed that the Siting Board should adopt Conditions of Certification substantially in compliance with those set forth in Attachment A to this Recommended Order. No party filed an alternate corridor for consideration in this proceeding. Summary of Need for DWS Transmission Line. The Determination of Need for the DWS transmission line was issued by the PSC pursuant to Section 403.537, Florida Statutes, by Order No. 24993, dated August 29, 1991. The several reasons cited in the Determination of Need Order for why the DWS transmission line is needed in the Central Florida area are summarized below: First, the DWS transmission line is needed to enable FPC to continue to meet its reliability criteria in the Greater Orlando area. Specifically, the DWS transmission line is needed to maintain reliability in case of a single contingency outage of either the Sanford-North Longwood 230 or the North Longwood-Winter Springs 230 Secondly, the DWS transmission line is needed for transmission of electrical power if additional generating units are added to the FPC DeBary power plant site or, in the absence of new generating units, to facilitate the flow of power from north of the DeBary power plant south to the Greater Orlando area. Project Design. The DWS transmission line will consist of a single overhead 230 circuit and will proceed from the FPC DeBary power plant site located in Volusia County south to the Winter Springs Substation in Seminole County. The total length of the DWS transmission line corridor is 19.1 miles. The transmission line corridor extensively follows existing transmission line rights-of-way, roadways, and other linear facilities. From the St. Johns River south to the Winter Springs Substation, the DWS transmission line will replace an existing transmission line or be located within an existing transmission line right-of- way. The transmission line corridor ranges in width from 350 feet to one mile. As part of this certification, FPC is seeking approval for the conversion of the Lake Emma Substation located in the City of Lake Mary from 115-kV to 230 kV to 230 from the DWS transmission line. An entire detailed site plan review package for the Lake Emma Substation was included as Appendix C to the Application. Location of the Preferred Corridor, Land Use, and Biophysical Environment. DeBary Power Plant to St. Johns River The proposed corridor begins in the vicinity of the FPC DeBary power plant in Volusia County and proceeds south to Konomac Lake, the cooling pond for the Florida Power & Light Company (FPL) Sanford power plant. The corridor is approximately 0.5 miles wide along this portion and follows the CSX Railroad and two existing transmission line rights-of-way in this area. At the southern end of Konomac Lake, the corridor expands to one mile wide to encompass several linear facilities, including U.S. Highway 17/92 and several existing transmission line rights-of-way. South of the FPL Sanford plant, the corridor follows the existing FPC Turner-North Longwood (TNL) transmission line right-of- way to the St. Johns River. From the FPC DeBary power plant to the St. Johns River, the corridor crosses unincorporated portions of Volusia County. Predominant land uses in this portion of the corridor are characterized by utilities such as the FPC DeBary power plant, a wastewater treatment plant, and the FPL Sanford power plant. This portion of the corridor also includes numerous linear facilities, including the CSX Railroad, U.S. Highway 17/92, and numerous transmission line rights-of- way. Low and medium-density residential housing, including a portion of the Orlandia Heights Subdivision, is also located along this portion of the corridor. The types of natural land cover in the portion of the corridor from the DeBary power plant to the St. Johns River include areas of sand pine scrub, pine flatwoods, wet prairies, and improved pastures. Much of the natural land cover has been disturbed by development. Major waterbodies crossed by the corridor in this area include Konomac Lake, which is a manmade cooling pond, and the St. Johns River. St. Johns River to the Winter Springs Substation. After the corridor crosses the St. Johns River, it enters Seminole County. From the St. Johns River, the corridor proceeds south and crosses U.S. Interstate 4 (I FPC TNL transmission line right-of-way along this portion of the corridor. Land uses in this portion of the corridor include undeveloped land, low-density residential development, transportation corridors, and utilities. Just south of the St. Johns River, the natural land cover is composed of cypress and cleared marsh and pasture. Where the corridor approaches the I there are some areas of mixed wetland hardwood forest. The St. Johns River is the only major waterbody in this area of the corridor. After the corridor crosses I a portion of the City of Sanford. The corridor widens to 2,500 feet in this area to allow flexibility for siting around the proposed Seminole Mall and the I corridor include undeveloped land, utility corridors (FPC DeBary-Altamonte Springs/DeBary-North Longwood (DA/DL) and TNL transmission line rights-of-way), transportation corridors (I Pine/mesic oak, citrus groves, improved pasture, and xeric oak comprise the natural land cover in this portion of the corridor. No major waterbodies are crossed in this portion of the corridor. The corridor enters the City of Lake Mary after it crosses 25th Street (CR 46A). Just south of 25th Street, the corridor narrows to 600 feet to avoid existing and proposed development and follows Rinehart Road south to Lake Mary Boulevard. The predominant land uses in this portion of the corridor are utilities (DA/DL and TNL transmission line rights-of-way and the Lake Emma Substation) and transportation (Rinehart Road). Other land uses include commercial, industrial, and institutional land uses. Natural land cover is comprised of improved pasture, longleaf pine/xeric oak, and xeric oak communities. The corridor crosses Lake Emma and some other small, unnamed waterbodies in this portion of the corridor. South of Lake Mary Boulevard, the corridor enters unincorporated Seminole County. The corridor follows Rinehart Road, and then the FPC DA/DL and TNL transmission line rights-of-way south to the area of the FPC North Longwood Substation. In the vicinity of the North Longwood Substation, the corridor widens to 3,800 feet to allow flexibility in siting the DWS transmission line around the substation area. Land uses in this portion of the corridor include transmission line rights-of-way, commercial, industrial, and residential development. Remnants of a mixed hardwood forest make up the predominant natural land cover in this area. No major named waterbodies are crossed by the corridor in this area. After exiting the FPC North Longwood Substation area, the corridor narrows to approximately 800 feet, turns southeast, and proceeds along the northern portion of the City of Longwood to U.S. Highway 17/92. Predominant land uses along this portion of the corridor are the FPC North Longwood Substation, several transmission line rights-of-way, industrial development, undeveloped land, and some low-density residential development. Natural land cover is characterized primarily by small areas of wetland hardwood forest that are located on the edge of the Spring Hammock Conservation and Recreation Lands (CARL) property. No named waterbodies are crossed by the corridor in this area. From U.S. Highway 17/92, the proposed corridor turns south and proceeds through portions of the Cities of Winter Springs and Casselberry, and then turns east and proceeds to the Winter Springs Substation, the termination point of the proposed corridor. The corridor ranges in width from 350 to 400 feet in this area and follows the North Longwood-Rio Pinar (NR) 230 transmission line. FPC intends to locate the proposed DWS transmission line on a structure with the NR transmission line along this portion of the corridor. Because the corridor is relatively narrow in this area, the existing NR transmission line is the predominant land use within this portion of the corridor. Other land uses adjacent to the existing transmission line include a wastewater disposal facility, medium and high-density residential development, and some industrial development. The types of natural land cover along this portion of the corridor include small areas of sand pine, improved pasture, disturbed pine flatwoods, and disturbed oak. Gee Creek is the only named waterbody crossed by the corridor in this area. Exclusion Areas. Pursuant to Condition of Certification S agreed to exclude certain areas within the proposed corridor from consideration when locating the DWS transmission line right-of-way. A map showing the general location of these "exclusion" areas is set forth in Appendix 5 to the Conditions of Certification. (See Attachment A to the Recommended Order.) Proposed Design, Construction, and Maintenance of the DWS Transmission Line. Structures. Four typical structures will be used for the DWS transmission line. Double-circuit, single-pole structures with conductors in a vertical configuration will be used where the transmission line will be collocated with another transmission line or be designed to have a double- circuit capability. A single-pole structure with conductors in a vertical configuration will be used where only a single-circuit structure is required for the DWS transmission line. A triple-circuit, single-pole structure with the upper transmission line conductors in a vertical configuration and the underbuilt transmission line conductors in a delta configuration will be used where the DWS transmission line will be located on the same structure with two other transmission line circuits. Typical span lengths between structures will range between 600 to 1,000 feet. Typical structure heights will range from 80 to 135 feet where the DWS transmission line is either located in a single- circuit configuration, designed to have a double-circuit configuration, or located in a double-circuit configuration with one other transmission line circuit. Where the DWS transmission line is located with two other transmission line circuits, structure heights will range from 160 to 170 feet. Collocation of the DWS Transmission Line. From the DeBary power plant site to the southern portion of Konomac Lake, the DWS transmission line will be constructed within or immediately adjacent to an existing linear facility such as transmission line or railroad rights-of-way. From the southern portion of Konomac Lake to the St. Johns River, the DWS transmission line will be within or immediately adjacent to an existing linear facility right-of-way or will replace an existing transmission line which will be removed. From the St. Johns River to the North Longwood Substation, the DWS transmission line will replace an existing transmission line which will be removed. From the North Longwood Substation to the Winter Springs Substation, the DWS transmission line will be located with one or more existing transmission line circuits on a single transmission line structure. Phases of Construction. Construction of the DWS transmission line will take place in several phases: right-of-way clearing, access road and structure pad construction, dismantling of existing transmission lines (where applicable), foundation placement, structure erection, conductor and shield wire stringing, and clean-up. Clearing. Very little clearing will be required for the DWS transmission line since the majority of the right-of-way will be within or adjacent to an existing transmission line or other linear facility rights-of- way. Where clearing is required, rotary mowers will be used in upland, non- scrub habitats. In upland scrub habitats and wetland areas, restrictive clearing will be used. Restrictive clearing will be done using hand-clearing tools or low-ground pressure machinery. Restrictive clearing includes the removal of vegetation from areas extending from the transmission line centerline to 15 feet on each side of the outer conductors and in work areas approximately 100 feet by 150 feet around structure sites. In addition, where access from an available adjacent road is required, a path approximately 20-25 feet wide may be cleared for such access. Access Road and Structure Pad Construction. While access roads and structure pads are required for the construction and maintenance of the DWS transmission line, no new access roads are anticipated for the proposed transmission line. Access to the DWS transmission line will be from adjacent public roads or via existing access roads. Some of the existing access roads may need upgrading. In particular, the access road south of the St. Johns River will need to be upgraded. In some wetland areas, temporary construction matting in lieu of access road upgrade can be used. Design requirements for access roads and structure pads are described generally in the Application and Condition of Certification S Dismantling Existing Transmission Lines. Where the DWS transmission line will replace an existing transmission line, dismantling of the existing transmission line will be required. Dismantling of the existing transmission line involves removing the conductors and shield wires, disassembling the insulator assemblies, and removing the existing transmission line structure. Foundation Placement. Depending on the soil conditions at structure sites, three types of foundations are possible for the DWS transmission line structures. Direct embedded foundations are constructed by augering a shaft in the ground, placing the foundation in the ground, and backfilling around the foundation shaft with either crushed rock or concrete. Concrete-filled caisson foundations are constructed by augering a hole, placing reinforcing steel and anchoring bolts in the shaft, and filling the shaft with concrete. Vibratory- driven foundations are constructed by driving the foundation pole into the ground with a vibratory hammer. Any excavated material from foundation construction will be dispersed around the foundation site or, if in a wetland area, removed and disposed of in a suitable upland area. Structure Erection. Transmission line structures will be assembled on the ground and then placed into the foundations using cranes and other support vehicles. Once the structures have been raised, insulator assemblies and hardware components will be attached. Conductor and Shield Wire Stringing. Standard wire pulling and tensioning equipment will be used to string the conductors and shield wires on the DWS transmission line structures. Clean-up. Clean-up activities will take place through all phases of the construction process. Duration of Construction. Along a typical mile of the DWS transmission line, each phase of construction is expected to last one to two weeks. The entire construction of the DWS transmission line should take approximately 18 months. Transmission Line Load Design. The DWS transmission line is designed for a nominal operating voltage of 230,000 volts with a maximum operating voltage of 242,000 volts. The maximum current rating (MCR) for the DWS transmission line is 1,980 amperes. Transmission Line and Right-of-Way Maintenance. Transmission lines typically require minimal maintenance. Annual inspections of the DWS transmission line will be made by air or ground to ensure the safe operation of the transmission line. Maintenance activities in the right-of- way will be consistent with the initial clearing, if any, of the right-of-way. Restrictive clearing practices will continue to be used to maintain the right-of-way in upland scrub and wetland areas. Herbicides approved by the U.S. Environmental Protection Agency will be used on targeted species and will be applied by a licensed applicator pursuant to Condition of Certification S Compliance with Codes and Engineering Standards. Construction of the DWS transmission line will comply with applicable construction and material codes, including the National Electrical Safety Code (Ed. 1990), the DOT Utility Accommodation Guide (May 1990), and the electric and magnetic field standards of Chapter 17 line will also comply with applicable engineering and material standards issued by the American Society of Civil Engineers (ASCE), the Institute of Electrical and Electronic Engineers (IEEE), the American National Standards Institute (ANSI), American Society of Testing Material (ASTM), and the American Concrete Institute (ACI). Construction of the Lake Emma Substation. The DWS transmission line will provide power to the existing Lake Emma Substation. This connection will require that the Lake Emma Substation be converted from 115 capacity. Conversion of the Lake Emma Substation will involve relocation of the boundary fence, followed by foundation construction and equipment installation. The site plan review package for the Lake Emma Substation conversion was included in the Application and approved by the City of Lake Mary and the SJRWMD, agencies with jurisdiction over the Lake Emma Substation site. The SJRWMD has agreed that the stormwater management system as proposed to serve the Lake Emma Substation conversion is consistent with the applicable nonprocedural standards of the District. Construction on the Lake Emma Substation conversion will last approximately nine months. Stipulations Concerning the Design of the DWS Transmission Line. FPC entered into stipulations with DER, DCA, GFWFC, DOT, DNR, ECFRPC, Seminole County, Volusia County, the City of Casselberry, the City of Lake Mary, and the City of Sanford regarding Conditions of Certification applicable to the location and construction of the proposed transmission line and Lake Emma Substation conversion. All of the Conditions of Certification regarding the design or location of the proposed transmission line and Lake Emma Substation construction are encompassed within the ranges of design and location proposed in the Application. Appropriate Conditions of Certification affecting the location and construction of the DWS transmission line and Lake Emma Substation are included in Attachment A to this Recommended Order. Impacts of the DWS Transmission Line Upon the Public. Impacts on Existing Land Uses. The location, construction, and operation of the DWS transmission line in the proposed corridor will have minimal impact upon adjacent land uses. South of the St. Johns River, the DWS transmission line will replace an existing transmission line or be located within existing transmission line rights-of-way. North of the St. Johns River, the DWS transmission line will be either within or adjacent to an existing linear facility right-of-way, or replace an existing transmission line. Collocation of the DWS transmission line will minimize the need for additional right-of-way and minimize disruption to existing land uses. To further minimize the impact to adjacent land uses, FPC has agreed to exclude certain areas of the proposed transmission line corridor from consideration for right-of-way location and transmission line construction. These exclusion areas, which are set forth in Condition of Certification S include certain residential developments, community facilities, public lands, and environmentally sensitive areas. There are no known significant archaeological sites within the corridor. To ensure that significant archaeological artifacts are not disturbed, a survey of archaeologically sensitive areas will be conducted prior to the construction of the DWS transmission line. Construction Noise: Noise from the construction of the DWS transmission line will be that typically associated with trucks and other construction equipment. Construction activities will be scheduled to take place during daylight hours only. Transmission Line Noise. During fair weather, the DWS transmission line will not emit audible noise above ambient noise levels. During wet weather, including heavy fog, when water droplets may form on the DWS transmission line conductors, audible noise may be emitted from the transmission line. Where the DWS transmission line is located alone within a right-of-way, the maximum audible noise level at the edge of the right-of-way will be approximately 42.5 dBA. Where the DWS transmission line is located with one or more other transmission lines, the audible noise at the edge of the right-of-way will vary between 36.7 dBA to 47.3 dBA depending on the number of transmission lines and the width of the right-of-way. The noise from the proposed DWS transmission line in foul weather will be similar to the sound of rain falling in a field. Therefore, transmission line noise may be masked by the rain during foul weather. The audible noise from the DWS transmission line will comply with the noise ordinances of Seminole County, the City of Casselberry, and the City of Longwood. The City of Sanford has a unique noise standard which establishes individual noise standards at different octave bands. Audible noise from the DWS transmission line will, in foul weather, exceed the standard in the four highest octave bands set forth in the noise standard; however, the sound of rainfall during foul weather also will exceed the standard at those four frequency bands. Furthermore, there is no practical way for the proposed transmission line to comply with the City of Sanford noise standard. Therefore, FPC seeks and is entitled to a variance from this portion of the Sanford noise standard. Radio and Television Interference. The proposed DWS transmission line will not interfere with frequency- modulated (FM) radio reception or the audio portion of television, which is transmitted on FM frequency. Amplitude-modulated (AM) radio transmission and the video portion of television transmission may be susceptible to interference from the DWS transmission line. The amount of interference is dependent upon the strength of the signals from the radio station and television station transmitters and the strength of the interference from the transmission line. During fair weather, radio transmission from over 90% of the Type A AM radio stations would be received without interference along the edge of the right-of-way. At a distance of 10 feet or more from the edge of the right-of- way, 100% of the transmissions from Type A stations would be received without interference. Sixty-three percent of the weaker Grade B AM radio stations would be received at a distance of 10 feet or greater from the edge of the right-of- way, and 97% of the Grade B stations would be received at a distance of 15 feet or more from the edge of the right-of-way. Natural radio interference from foul weather will mask any increase in interference from the transmission line during foul weather conditions. Transmission line interference with the video portion of television reception is very rare. The proposed DWS transmission line will not interfere with the audio or video television reception from either Grade A or Grade B television transmissions at the edge of the right-of-way in either fair or foul weather. Pursuant to Condition of Certification S complaints of radio and television interference and will take appropriate corrective action for impacts to audio or television interference caused by the proposed transmission line. Other Communications Equipment. The transmission line will not cause any interference with cable television, telephone, or cellular telephone reception. Electric and Magnetic Fields. The DWS transmission line, like all electrical equipment, will produce electric and magnetic fields. Electric fields from transmission lines are measured in kilovolts per meter (kV/m) and magnetic fields are measured in milligauss (mG). Standards for electric and magnetic fields produced by transmission lines are set forth in Chapter 17 Those standards limit the electric field for a 230 more than 8 kV/m within the right-of-way and 2 kV/m at the edge of the right-of- way, and the magnetic field to no more than 150 mG at the edge of the right-of- way. Calculations to demonstrate compliance with the standards in Chapter 17 at the edge of the right-of-way and calculations for magnetic fields at the edge of the right-of-way are made using the Bonneville Power Administration (BPA) computer program. The electric and magnetic fields are calculated based on the design of the transmission line, the maximum operating voltage of the transmission line, the maximum current rating for the transmission line, and the minimum conductor-to-ground clearance. The DWS transmission line will comply with the electric and magnetic field standards in Chapter 17 detailed design of the DWS transmission line will not be finalized until the right-of-way is identified following certification, electric and magnetic field calculations for 14 typical and other probable transmission line configurations were performed for the proposed DWS transmission line. These calculations are included in Appendix G to the Application. All of the transmission line configurations for which calculations are reflected in Appendix G of the Application will be below the electric and magnetic field limits established by Chapter 17 Condition of Certification S developed during the final design of the DWS transmission line that is not included in Appendix G to the Application at least 90 days prior to the start of construction. Impacts of the DWS Transmission Line Upon the Environment: Water Resources, Vegetation, and Wildlife. Water Quality. The location, construction, and operation of the DWS transmission line in the proposed corridor will not have an adverse effect on the quality of the water within or adjacent to the proposed corridor. Location of the DWS transmission line adjacent to or within existing cleared rights-of- way minimizes construction and clearing activities which could contribute to erosion and turbidity. Water quality treatment is currently provided for some existing access roads by roadside swales. Additionally, where required, turbidity barriers and revegetation will be used to control erosion and turbidity from placement of poles and associated construction. Finally, pursuant to Condition of Certification S water quality treatment methods if necessary to comply with state water quality standards. Water Quantity. The location, construction, and operation of the DWS transmission line in the proposed corridor will not have an adverse impact on water quantity. No new access roads will be constructed using methods which could impact water quantity or water flow. Where existing access roads are upgraded, specifically south of the St. Johns River, culverts will be used to maintain or improve the existing flows, and compensating storage will be provided for any fill placed in the 10 or 100-year floodplain area. Consumptive Use. No groundwater or surface water withdrawals are anticipated which exceed the SJRWMD's permitting thresholds for consumptive use of water. Should such groundwater withdrawals occur, they will comply with the consumptive use requirements of Chapter 40C Navigation. Where the DWS transmission line crosses the St. Johns River, the height of the structures will ensure that there are no impacts to navigation since the conductor clearance will be consistent with that of the existing transmission line, which is being replaced in this area. Management and Storage of Surface Waters. The management and storage of surface waters (MSSW) system proposed for the DWS transmission line consists primarily of culverts and roadside swales where access road construction will take place. The system contains appropriate components which have been determined to meet the criteria and standards set forth in Chapters 40C-4 and 40C-42, Florida Administrative Code. Therefore, the MSSW system will comply with the nonprocedural requirements of the SJRWMD. It will also operate effectively and not increase any potential for damage to offsite property nor endanger life, health, or property. Pursuant to Condition of Certification S professional engineer that it complies with the construction standards required by the Conditions of Certification for this transmission line. Lake Emma Substation. The construction of the Lake Emma Substation conversion will not adversely impact water resources adjacent to the site. Stormwater runoff from the driveway and substation site will be conveyed by curb and gutter to two separate retention areas. Both retention areas exceed the retention volume and recovery time criteria as required by the nonprocedural regulations of SJRWMD. SJRWMD and the City of Lake Mary, the two agencies with regulatory jurisdiction over the Lake Emma Substation site, have reviewed the Lake Emma Substation Site Plan Review Package included as Appendix C to the Application and agree that the conversion construction of the Lake Emma Substation will meet all applicable nonprocedural requirements. Vegetation. The location, construction, and operation of the DWS transmission line will have a minimal impact upon the vegetation within the proposed corridor. Because the proposed transmission line will be located adjacent to or within existing rights-of-way, little new clearing will be required. Additionally, no new access roads are planned, further minimizing impacts due to access road construction. Where scrub habitat is found, restrictive clearing practices will be utilized if clearing is necessary. Wetlands. Impacts to wetlands from the location, construction, and operation of the DWS transmission line will also be minimal. No new access roads will be built which could result in loss of wetland areas. Furthermore, since existing rights-of- way will be utilized for the DWS transmission line, little, if any, clearing will be required. Where clearing is required in wetlands, restrictive clearing practices will be utilized. Wildlife Habitats. The location, construction, and operation of the proposed DWS transmission line in the proposed corridor will not adversely affect wildlife or the conservation of any fish or wildlife habitats. The use of existing rights-of-way, and in some cases existing structures, greatly reduces any potential impacts to wildlife habitats. If clearing is needed, sensitive wildlife habitats such as scrub and wetland habitats will be cleared using restrictive clearing techniques, pursuant to Condition of Certification S Threatened and Endangered Species. The location, construction, and operation of the DWS transmission line will not result in harm or harassment to any threatened or endangered wildlife species. Other than the manatee habitat in the St. Johns River, none of the wildlife habitats within the proposed corridor are essential for the survival of any threatened, endangered, or other listed species. Pursuant to Condition of Certification S a survey for threatened and endangered species prior to the construction of the DWS transmission line. If any threatened or endangered species are determined to be present in the transmission line right-of-way and to be impacted by the construction of the transmission line, FPC will consult with DER, GFWFC, and the U.S. Fish and Wildlife Service to determine the appropriate steps for minimizing, avoiding, or otherwise addressing those impacts. Nonprocedural Requirements of Agencies. Attachment A to the Recommended Order sets forth the Conditions of Certification agreed to by the parties to this proceeding. Appendix 4 to the Conditions Certification sets forth the list of nonprocedural requirements applicable to the certification of the DWS transmission line, including the conversion construction of the Lake Emma Substation. Copies of these regulations were introduced into evidence by FPC at the certification hearing. Agencies, including DER, DCA, DOT, GFWFC, SJRWMD, ECFRPC, Volusia County, Seminole County, City of Sanford, and the City of Lake Mary, either through written stipulation or testimony, have agreed that the DWS transmission line will conform to these nonprocedural requirements if located, constructed, and maintained as set forth in the Application and in conformance with the Conditions of Certification. Furthermore, the City of Lake Mary and SJRWMD, the two agencies with jurisdiction over the Lake Emma Substation site, have agreed that the conversion construction at the Lake Emma Substation will comply with the nonprocedural requirements applicable to that facility if constructed in conformance with the site plan review package set forth as Appendix C to the Application. FPC and the agencies with regulatory jurisdiction over the DWS transmission line have identified certain variances, exceptions, exemptions, and other relief from the nonprocedural requirements that may be needed for the location, construction, and maintenance of the DWS transmission line in the proposed corridor. These variances, exceptions, exemptions, and other relief are identified in Appendix 4 to the Conditions of Certification. Evidence admitted at hearing, including the location of the proposed corridor and the design and construction of the proposed DWS transmission line, together with the Conditions of Certification attached as Attachment A to this Recommended Order, support the issuance of the necessary variances, exceptions, exemptions, and other relief. It is also the position of DER that these variances, exceptions, exemptions, and other relief are appropriate and should be granted by the Siting Board. Compliance with Comprehensive Plans. The applicable comprehensive plans for Volusia County, Seminole County, City of Sanford, City of Lake Mary, City of Longwood, City of Casselberry, and the City of Winter Springs were introduced at the certification hearing. The location of the DWS transmission line in the proposed corridor and the construction and maintenance of the transmission line are consistent with these local government comprehensive plans.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving FPC's DeBary-Winter Springs 230 Certification subject to the Conditions of Certification set forth in Attachment A to this Recommended Order, and grant the variances, exceptions, exemptions, and other relief identified in Appendix 4 to the Conditions of Certification that may be necessary for the location, construction, or maintenance of the DWS transmission line. DONE AND ENTERED this 7th day of April, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1993. COPIES FURNISHED: Pamela I. Smith, Attorney at Law Florida Power Corporation Post Office Box 14042 St. Petersburg, FL 33733-4042 Representing Applicant Richard W. Moore Carolyn S. Raepple Attorneys at Law 123 South Calhoun Post Office Box 6526 Tallahassee, FL 32314-6526 Representing Applicant Richard Donelan Gary C. Smallridge Assistant General Counsels Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Representing DER Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, FL 32399-0850 Representing PSC Lucky T. Osho Karen Brodeen Assistant General Counsels Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Representing DCA M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. MS-35 Tallahassee, FL 32399-3000 Representing DNR William H. Roberts Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Representing DOT James V. Antista, General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 Representing GFWFC Clare E. Gray Kathryn Mennella Assistant General Counsels St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32078 Representing SJRWMD Robert A. McMillan, County Attorney Lonnie A. Groot Assistant County Attorney Seminole County Services Building 1101 East First Street Sanford, FL 32771 Representing Seminole County Douglas M. Weaver Assistant County Attorney 123 West Indiana Avenue Deland, FL 32117 Representing Volusia County Gerald S. Livingston Attorney at Law Kreuter & Livingston, P.A. 200 East Robinson Street Suite 1150 Orlando, FL 32801 Representing East Central Florida Regional Planning Council Kenneth W. McIntosh, Attorney at Law Post Office Box 4848 Sanford, FL 32772-4848 Representing City of Casselberry Ned N. Julian, Jr. Attorney at Law Post Office Box 4848 Sanford, FL 32772-4848 Representing City of Lake Mary Gretchen R. H. Vose, City Attorney 2705 W. Fairbanks Avenue Winter Park, FL 32789 Representing City of Longwood William L. Colbert, Attorney at Law Post Office Box 4848 Sanford, FL 32772-4848 Representing City of Sanford Frank C. Kruppenbacher, City Attorney Honigman, Miller, Schwartz and Cohn 390 N. Orange Avenue, Suite 1300 Orlando, FL 32801 Representing City of Winter Springs Honorable Lawton Chiles Governor State of Florida The Capitol Tallahassee, FL 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, FL 32399-1050 Honorable Bob Crawford Commissioner of Agriculture State of Florida The Capitol Tallahassee, FL 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, FL 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02 Tallahassee, FL 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, FL 32399-0300 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol, Plaza Level Tallahassee, FL 32399-0350
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 On December 13, 1989, Florida Power Corporation (FPC) filed a wetland resource permit application with the Florida Department of Environmental Regulation (DER) for a project to construct, operate and maintain a 69 kilovolt (kV) electrical transmission line in Osceola County. The application described the placement of power line poles in jurisdictional wetlands. On September 28, 1990, DER issued its notice of permit denial, DER File No. 49-173789-4. The ultimate issue for determination is whether FPC is entitled to the permit. Ancillary issues include the scope of "cumulative impacts" to be considered; the scope of "secondary impacts"; whether alternative sites must be considered; whether FPC's clearing of the right of way constituted dredge and fill activity; and whether mitigation is required, and if so, whether the mitigation offered by the applicant is adequate.
Findings Of Fact FPC, whose headquarters are located at 3201 34th Street, South, St. Petersburg, Florida, 33733, is required by Florida Statutes and regulations promulgated by the Florida Public Service Commission (PSC) to provide electric utility service in the vicinity of the proposed transmission line. DER, 2600 Blair Stone Road, Tallahassee, Florida 32399-2900 is an executive agency directly responsible for prevention of pollution of the air and waters of this State. Pursuant to that obligation, Sections 403.91-403.929, Florida Statutes, and Chapter 17-312, F.A.C., DER regulates proposed dredging and filling activities in waters of the State. FPC, pursuant to its statutory and regulatory mandate, transmits electricity through 33 counties within the state, providing actual service to customers in 32 counties. FPC's electrical transmission lines range in voltage capacity from 69 kV (69,000 volts) to 500 kV (500,000 volts). Considering other utilities, there are approximately 7,000 miles of 69 kV electrical transmission lines within the state, over 1,855 miles of which are operated and maintained by FPC. The Project The electrical transmission line at issue in the instant proceeding will traverse approximately 10 miles. It intercepts two areas of jurisdictional wetlands; however, the main point of contention in the permitting proceeding is the six acres of wetland vegetation which have been cleared in the vicinity of where the transmission line corridor intersects the main crossing of Reedy Creek. The original application for this project was 14 miles long; however, FPC and DER agreed to modify the application by separating the northern-most four miles of the project and submitting it as a separate application. The northern segment starts at the Intercession City substation and proceeds easterly along an existing transmission line corridor in the right of way of SR 17/92 to Old Tampa Road and then turns south terminating at the Poinciana Industrial Park. The proposed transmission line which is the subject of this proceeding starts from the Poinciana Industrial Park and proceeds south, then crosses Reedy Creek in a northeast to southwest direction and continues south, ultimately terminating at the Poinciana substation. There are references in the application to a 72 kV line. 72,000 volts is the maximum operating voltage. 69,000 volts is the normal daily load. Direct dredge and fill impacts associated with the proposed construction include 301 cubic yards of fill, which includes the wooden transmission poles as well as crushed rock backfill at the base of those poles. This fill material would be placed over .00846 acres. This fill amount equates to an area analogous to a 20 foot by 20 foot room. Initial placement and continued maintenance of the poles and lines require clearing. This enables access by equipment and prevents vegetation from interfering with the lines. Clearing is essential for the safety and reliability of the electrical power distribution system. The wood electrical transmission line poles will be spaced approximately 300 foot apart in an area of vegetation clearing 60 feet wide. The major jurisdictional area north and south of the Reedy Creek crossing is approximately 4,400 feet long. The Applicant will, after construction, undertake corridor maintenance on a three to five year cycle. An area will be kept clear 50 foot square around each wooden pole structure along the proposed transmission line. Vegetation will be maintained at ground or water level for 17 feet on either side of the wooden utility poles. The outer 13 feet on each side will be allowed to regenerate except for fast growing trees and other vegetation with the potential to reach 30 feet prior to the next regularly scheduled maintenance period. Fast growing trees within the 13 foot outer area on either side of the corridor will be girdled or treated with herbicides by specific and selective application. The only herbicides to be used will be those that are EPA approved for use in the State of Florida. All exotic or nuisance target species will be removed from the entire right of way as part of FPC's maintenance program. The Application Process FPC submitted a wetland resource permit application for this project on December 6, 1989, received by the DER Central Florida District on December 13, 1989. DER requested additional information on January 12, 1990, and the Applicant submitted responses by letter dated April 20, 1990. On May 18, 1990, DER submitted a second request for additional information, which was responded to by FPC at a meeting with DER Central District staff in Orlando on June 5, 1990, and by a follow-up letter dated June 20, 1990. Neither of DER's requests for additional information required information relative to alternate routes for the proposed transmission line; however, a letter from DER to FPC dated June 20, 1990 states that mitigation would be required since an alternative route was not presented and impacts could not be reduced any further. The application was deemed complete on June 22, 1990. Subsequently, FPC proposed a preservation mitigation of 1:1 ratio by offering for preservation a 6-acre area of Reedy Creek Swamp near the Intercession City substation. FPC waived DER's 90 day statutory time clock in which it has to act on complete permit applications until October 1, 1990. The DER Central District Office issued a notice of permit denial regarding FPC's project on September 28, 1990. The maintenance plan described in paragraph 6, above, includes a departure from FPC's past practices. The plan and specifics of the 13-foot border areas were provided to DER during the hearing on December 3, 1991. Without objection by DER, the hearing proceeded on the application thus modified. Reedy Creek Swamp and the Project Context Reedy Creek Swamp is located in Orange, Osceola and Polk Counties. It is the only large mixed wetland forest system in Osceola County and is one of the largest systems in central Florida. It provides valuable forested wetland habitat for numerous plant and animal species. The proposed dredging and filling activity which is the subject of this application occurs in the South Reedy Creek basin. It is part of the Reedy Creek and its associated floodplains and uplands that drain south-southeast of Interstate-4. South Reedy Creek basin, as described in the instant proceeding, consists of over 92,000 acres of upland and wetland habitats. Approximately 31,448 acres of contiguous forested wetland are contained within that 92,000 acres. Based on the limited nature of the project's corridor, the six acre disturbance has been correctly characterized as de minimis. Since the turn of the century the South Reedy Creek basin has been the subject of extensive logging and silviculture impacts through either clearcutting or selective timbering which continues to this day. The basin is also the subject of an ongoing effort by the South Florida Water Management District for land aquisition and management. Approximately 7,000 acres of the basin have been bought or are under plans to purchase for protection. Commercial and environmental interests command the basin's resources. Clearing the Way FPC's clearing of the six acres of forested wetland was accomplished from March 12 through June 7, 1990. Clearing occurred during the processing of the dredge and fill application in order to take advantage of dry conditions and to facilitate bringing the electrical transmission line into service in accordance with FPC's established schedule. All vegetation in the wetland area was removed at ground or water level and the material was then either burned on site or removed to upland locations. Charles Duncan, FPC's chief inspector for transmission line construction, made regular spot investigations of all construction and assured that the hand clearing and low pressure rubber wheeled and tracked vehicles used by FPC did not result in significant soil disturbance. It is unrefuted that between June and November 1990, well after FPC's clearing was completed, considerable silvicultural activity occurred immediately adjacent to the corridor, both east and west. John Vogel, an expert in forestry and the effects of clearcutting, provided photographic evidence of those silvicultural entities' use of the corridor and identified the adjacent property owner as the party actually responsible for that activity. These facts, and DER employee Don Medellin's tacit admission that what he saw on his June 7, 1990, site inspection clearly could have been accomplished by parties other than FPC, leads to the specific finding that no FPC-initiated dredging and filling has occurred within the corridor. Dredging and filling will occur when the poles are placed. The evidence submitted by FPC, including rainfall and flow discharge information for the relevant time period, closely corroborate Mr. Duncan's eye witness accounts that clearing was conducted during a period when the wetland areas were extremely dry. Mr. Duncan further noted that the dry conditions precluded the burning of all of the collected and stockpiled debris beyond the week of June 7, 1990, and those conditions account for some of Mr. Medellin's observations of stockpiled material during his visit to the site on June 7, 1990. Considering the site conditions at the time of clearing and the absence of running water within Reedy Creek itself, there were effectively no water quality consequences to the creek from the clearing activity. Silt screens were constructed on the site on May 1, 1990, and according to Dr. Miles Smart, an expert in water chemistry and limnology, that precaution adequately safeguarded water quality within Reedy Creek during subsequent rain events. DER witness, Don Medellin, confirmed that the Department had no knowledge of any water quality violations having occurred during the FPC construction activity. The Public Interest Criteria Much, if not all, of the Department's opposition to the proposed project is based on the clearing of vegetation as opposed to pole placement and filling associated therewith. In this case the impacts of the clearing are already known. In the traditional dredge and fill case, the applicant provides evidence, testimony and test results predicting the impacts of the proposed construction activity, whereas in the instant case, the Applicant has the benefit of providing reasonable assurances by documenting the consequences of its acts. In the instant case, FPC provided a detailed analysis of biological and water quality ramifications from its clearing. DER presented several witnesses who contested the positive or neutral effects that the proposed transmission line corridor would have on wildlife, citing nest parasitism, predation, fragmentation, and reduction in patch size as examples of adverse impacts that the proposed line could impose on wildlife. DER witness, Dr. Francis Putz, testified that the project could cause unraveling of the forested wetland and sunscalding of newly exposed trees along the edge of the corridor. However, no DER witness presented any quantitative data or analyses that would indicate that any of the possible adverse consequences mentioned above were, in fact, occurring or reasonably likely to occur in Reedy Creek as a result of FPC's project. It is undisputed by either party that clearing of the proposed transmission line corridor resulted in a change to that specific six acre area from a forested wetland to a herbaceous/shrub wetland. Furthermore, it is undisputed that FPC's proposed maintenance practices will maintain that change over the expected 30-year operational life of the transmission line. However, different is not synonymous with adverse. The structural change to the wetland has not had, and will not have, any deleterious consequences to water quality within Reedy Creek. Dr. Miles Smart, the only expert in water chemistry and limnology to testify, presented testimony, based on samples of water quality in Reedy Creek and available historical water quality data, that water quality approximately a year and a half after initial clearing was no different than the ranges observed over the ten year period for which historical information was available. In most cases, water quality was the same or extremely close for the sampled parameters which included water temperature, pH, dissolved oxygen, alkalinity, turbidity, concentrations of nitrogen, phosphorous, total kjeldahl nitrogen and orthophosphate nitrogen. FPC's proposed maintenance practices which include the use of EPA approved herbicides for use in control of target species, will pose no problem to water quality. A study of twenty-two transmission line rights of way in the State of New York found virtually no water quality problems as a result of maintenance of those transmission lines. It was uncontroverted that FPC has never experienced water quality violations as a result of its management practices, nor has it been the focus of any enforcement or noncompliance action with respect to any previous clearing or construction activity it has undertaken. The clearing created no impediment to flow or impounding. The continuing use of silt screens and hay bales by FPC during pole installation will reduce the likelihood of erosion or shoaling. Extensive ground cover currently present in the corridor and FPC's proposed preservation of this herbaceous/shrub vegetation will further minimize any possible shoaling and erosion. Vegetative surveys conducted approximately a year and a half after the initial clearing show that the corridor has revegetated with 85 percent mean herbaceous plant cover in the corridor. Species composition of vegetation is similar in the corridor and no new species have been introduced nor have any been eliminated as a result of the clearing activity. Based on primary productivity and decomposition rate studies, FPC's clearing activity and the vegetative change that has resulted predictably should increase net primary productivity threefold over what exists in the adjacent forest, primary productivity being simply biomass accumulated over a period of time. Several DER witnesses testified to the possible introduction of nuisance or invader species as a result of FPC's clearing activity and subsequent maintenance of the corridor. However, FPC's proposed maintenance practices will eliminate those target species which inhibit the growth of other species, resulting in a wetland community having similar shrub and herb strata to that of the adjacent forest. DER admitted that any proliferation of nuisance species can be controlled with proper management techniques and has required such control as mitigation for clearing associated with an electrical transmission line project by Florida Power and Light Company in Lee County. Left to natural processes, the cleared corridor would eventually return to a forested area similar in species composition to the adjacent forest within several years. This rapid regeneration comports with experiences in other transmission line projects and in the silviculture industry. Qualitative analysis of other utility corridors in the Central Florida region confirm this natural process of succession. One of those projects, the Tampa Palms Corridor Improvement Project, constructed in a large forested wetland similar to the Reedy Creek Swamp, revealed that in 25 years after clearing, trees had regenerated to heights of 10 to 50 feet with corresponding diameters at breast height ranging from 2.7 to 30.5 centimeters. John Vogel, an expert in forestry and the effects of clearcutting, provided unrefuted testimony and photographic evidence of a clear cut site in the South Reedy Creek basin where after a period of 8 years rapid revegetation and reforestation was occurring, resulting in a fully stocked pre-commercial stand of timber. Several DER witnesses indicated that FPC's manner of cutting trees at ground or water height could have adverse effects on the ability of tree species to regenerate. However, this was refuted by the evidence of tree coppicing ( sprouting within the cut-off stumps) within the corridor with some canopy species having coppices over six feet tall in the 18 month period since FPC's initial clearing. DER employee, Donald Medellin, indicated at hearing that the clearing and proposed maintenance activity of FPC may impact a limited number of plant species listed as threatened. The Applicant's onsite analysis established that Tillandsia, a species listed in Chapter 581, Florida Statutes, as endangered, does exist in the adjacent forest in large numbers. No species referenced by Mr. Medellin appear on any federal endangered or threatened plant species list. Certain referenced plants appear on various state lists; however, none of these lists preclude the clearing of such vegetation with permission of the landowner. FPC's proposed maintenance activities for this project would not threaten the continuing existence of any of those species. The loss of some individual plants as a result of FPC's initial clearing was inconsequential, and continued maintenance of the corridor will not impact the species' continuing existence in the area. The change from forested to herbaceous wetland was demonstrated to have had no adverse effect on the conservation of fish and wildlife in the South Reedy Creek basin. An extensive quantitative analysis undertaken by J. Steven Godley established that aquatic organisms (i.e., fish, aquatic amphibians, and reptiles), invertebrates, mammals, and birds have not been negatively impacted by FPC's initial clearing of the transmission line corridor. It was uncontroverted that the project has occasioned a twofold increase in the number of aquatic organisms in the corridor as compared to the adjacent forest. Even though wildlife surveys conducted over 1,000 manhours revealed no measurable impact to any species of wildlife, Mr. Godley constructed a theoretical listing of several species of vertebrates indigenous to the Reedy Creek Swamp system which were likely to use the swamp system in an average year or at least a part of their life cycle, in order to assess the possible impact of the corridor on those species. Mr. Godley's unrefuted analysis revealed that the vast majority of all species of the various groups (fish, amphibian, reptiles, mammals, birds) are expected to be either positively affected or not affected at all by FPC's proposed project. DER witness, Dr. Herbert Kale, testified that some bird species such as red-eyed vireos, warblers, woodpeckers and thrushes could possibly be impacted due to the loss of forested canopy since they are cavity nesters, and because of nest parasitism by the brownheaded cowbird. Dr. Kale readily admitted, however, that the transmission line swath was small and was not fatal to any of those interior forest bird species. Moreover, his testimony regarding the nest parasitism was inherently contradictory, since the cowbirds breed in winter during a period when the other species are actually in Central and South America. The wetland change occasioned by FPC's project will not adversely affect endangered or threatened wildlife species. The only reptile likely to occur in the Reedy Creek Swamp that is either threatened, endangered or a species of special concern is the indigo snake, which will likely be positively impacted by the corridor, as it feeds on aquatic organisms in the swamp. No listed mammals will be impacted by the corridor. Three species of wading birds, the wood stork, little blue heron and snowy egret, will be positively affected by the transmission line corridor as they, too, will be provided excellent feeding habitat. DER's witness, Dr. Kale, agreed that the change will provide additional habitat for marsh wading birds. The only other possible endangered species that may occur in the swamp is the bald eagle. Since bald eagles prefer large water bodies, they are unlikely to occur. They would benefit, however, from the enhanced feeding habitat. Existing literature regarding the ecological impacts of clearcutting and electrical transmission line corridors on wildlife is consistent with the quantitative evidence submitted by FPC. Existing scientific literature generally reflects that transmission line rights of way cause edge effect, defined as a transition between two or more diverse communities. This edge causes an increase in species number and diversity for wildlife in the corridors, as compared to the adjacent forest. This is particularly true of bird species. For small mammals there is either a nonsignificant difference in species numbers in the corridor as compared to the adjacent forest, or there is a larger small mammal diversity within the corridor as opposed to the adjacent forest. The same applies for larger mammals and game species. The applicant's witnesses touted edge effect as essentially positive, while DER's witnesses described the phenomenon as a negative impact, since any new species are already abundant in other habitats. No finding is made generally on this issue, but rather in this case it is concluded that edge effect is not so significant as to constitute a negative consequence of the project. Based on the weight of empirical evidence and opinion testimony presented, wildlife species residing in the South Reedy Creek basin have been and will continue to be either positively affected or not affected at all by FPC's proposed project. Moreover, the overall productivity of the wetland from the standpoint of vegetation and wildlife, when balanced across all plant and animal species, has not and will not be negatively affected. Although the opportunities for recreational activities are limited in South Reedy Creek basin due to the inaccessibility of the site, those activities such as hunting, fishing, and bird watching are unchanged or have improved as a result of the small localized change to a herbaceous/shrub wetland. The need for the electrical transmission line was unrefuted. FPC must meet minimum service standards in its provision of electric power as set out by the PSC. In order to meet these service standards, FPC decided, through its internal system planning and modeling, that a new 69 kV electrical transmission line was required between its Intercession City and Poinciana substations to provide a more reliable source of power to the towns of Davenport and Haines City as well as the Parker-Poinciana 55,000 unit residential development, as these areas have experienced problems with low voltage. The demonstrated need for this facility and the public benefit which DER has admitted it will provide, when balanced with minimal changes to the forested wetland system, lead to the finding that this project is not contrary to the public interest. Cumulative Impacts DER failed to present any evidence disputing the hydrologic and biologic validity of the boundaries of the South Reedy Creek basin or the location of existing and proposed electrical transmission lines in that system. The only other projects suggested by DER for cumulative impact analysis were several projects consisting of construction of berms, roads and pipelines, as well as proposed developments of regional impact (DRI's). However, these projects were not shown to be similar in construction or amount of impact to FPC's proposed electrical transmission line, except for their linear nature. Unlike this project, roads, berms, pipelines and residential developments remove wetlands. It was not established that all the project applications considered by DER for cumulative impacts were within the South Reedy Creek basin. Instead, several DER witnesses alluded to the loss of forested wetlands allegedly occurring throughout the state. The evidence was anecdotal and unreliable. DER cited an analysis showing a three percent decline in forested wetlands, but the study combined both South Carolina and Florida acreages. Of the existing and proposed transmission lines within a 10 year planning horizon, very few (only three) will directly cross any portion of the South Reedy Creek basin. Those proposed electrical transmission lines will be co-located along existing rights of way and will have little, if any, impact on the forested component of the South Reedy Creek basin. It was undisputed that as a general proposition, the construction and operation of electrical transmission lines vital to the provision of electrical service does not stimulate subsequent development in an area but, in fact, follows development where electrical services are projected to be needed. Logging has occurred extensively in this area in the past and there is no evidence that the 60 foot corridor has induced additional logging activity, as asserted by DER. Consideration of Alternative Routes and Methods Having identified the need for a new transmission line, FPC conducted an intensive route selection analysis taking into account environmental, property (real estate), economic, and construction considerations. In this case, FPC considered two routes to address the electrical needs of this area: the recommended route, which is the subject of this proceeding, and an alternate route to the east and along an existing roadway. The alternate route would still have crossed Reedy Creek and its contiguous wetlands at some point in order to connect to the Poinciana substation. Both of the proposed corridor routes are within FPC's service territory. A consideration in choosing the recommended route was its proximity to existing and proposed substations. The alternate route would have necessitated more vegetative clearing in the future, as its location was not near proposed substations in this area. Moreover, the recommended route was aligned through the narrowest portion of the South Reedy Creek basin through what was an old tram railbed used by the logging industry. Major property owners in the area of the proposed line expressed their preference for the recommended route. The landowner for most of the proposed corridor south of the Reedy Creek crossing granted easements at no cost to FPC. FPC fully participated in the give and take of the permit application process for this project with DER. It was unrefuted that FPC employee, W. Jeffrey Pardue, met with a DER employee prior to submittal of the application during which meeting the two routes were discussed. The only concern about the project expressed by DER at that meeting was construction of access roads. In response to this concern, and prior to application submittal, FPC's transmission line was redesigned to consist of only wooden pole structures requiring shorter span construction and allowing less right-of-way clearing, since the transmission line wires would not move as much due to wind or other weather conditions. Wood pole construction will also allow for the use of low pressure, high flotation, equipment for construction and maintenance of the transmission line, thereby obviating the need for access roads. Mitigation: The policy applied In order to appease DER's demand for mitigation, FPC entered into negotiations with DER and offered the preservation of six acres of existing wetlands located east of its Intercession City substation adjacent to State Road 17/92, an area vegetatively similar to the area affected. Mitigation is the reduction or elimination of actual or anticipated adverse effects caused by a wetland project. Mitigation, as evolved in DER's permitting processes, can be the creation of new wetlands to replace those destroyed, the enhancement of an existing wetland, or preservation of an existing wetland other than that impacted by the project. Because preservation as a mitigation measure does not replace lost wetlands, DER has consistently required a preservation ratio of more than 1:1, most often 10:1, and sometimes substantially more than 10:1. The requirement is based on a case by case analysis of the quality of the wetland impacted, the extent of the impact and the quality of the wetland offered for preservation by the applicant. Clearing, without more, is not considered a dredge and fill activity and therefore has not, alone, required a DER permit. Clearing has not, therefore, been the subject of mitigation requirements in the past. Until the recent past, DER has not applied its mitigation policy to clearing associated with construction and maintenance of electrical transmission lines. Most of those lines have been placed along roadways and other existing corridors with little additional impact to jurisdictional areas. DER has required mitigation for other linear configured projects such as pipelines and the unique "Maglev" project, a high speed elevated train proposed to be constructed from the Orlando Airport to a tourist center in Orange County. DER is presently requiring power companies in three power plant or transmission line siting cases to address the secondary impact of clearing. Until the review of impacts is complete, the DER staff cannot predict what and how much mitigation will be required in those cases. Prior to the instant case, DER Chief of the Bureau of Wetland Resource Management, Janet Llewellyn, could identify only one instance of mitigation for clearing associated with an electrical transmission line: the Florida Power and Light Company line in Lee County addressed in paragraph 21, above. The "mitigation" required in that case is already proposed in FPC's maintenance plan. DER in this case has adequately justified its policy of considering secondary impacts of clearing related to the construction and maintenance of electrical transmission lines. Those impacts are legitimately assessed when the need for mitigation is being considered. The nature and extent of secondary impacts from clearing are properly part of the discourse and review of the nature and extent to which mitigation will be required. The need for mitigation, however, is not reached when no adverse impacts are found. Here, the applicant has successfully demonstrated by the substantial weight of evidence that neither the clearing already completed, (albeit precipitately) nor the planned pole and line construction and future right of way maintenance will violate water quality standards or otherwise offend the public interest criteria of Section 403.918, F.S. The application of DER's mitigation policy is unnecessary in this case.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the agency enter its final order granting the application for permit #49-173789-4. DONE and RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 9 and paragraph 10. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 15. Rejected as unnecessary. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in substance in paragraph 20. Adopted in substance in paragraph 21. Adopted in substance in paragraph 22. Adopted in substance in paragraph 23. Adopted in substance in paragraph 24. Adopted in substance in paragraph 25. Adopted in substance in paragraph 26. Adopted in substance in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 29. Adopted in paragraph 30. Adopted in paragraph 31. Adopted in paragraph 32. Adopted in paragraph 33. Adopted in part in paragraph 34, except for the proposed finding that forested wetlands are increasing, which finding is not supported by reliable, nonhearsay evidence. Adopted in paragraph 35. Adopted in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 38. Adopted in paragraph 39. Rejected, except for the conclusory finding that mitigation is not necessary here because of no finding of adverse impacts. See paragraph 44. The proposed findings related to the error of the policy generally are rejected as contrary to the evidence. Respondent's Proposed Findings Adopted in paragraph 7. 2.-3. Adopted in paragraph 4. 4.-5. Adopted in part in paragraph 7. Rejected as unnecessary. Rejected as contrary to the evidence (as to any implication that dredging and filling was done by the applicant); otherwise adopted by implication in paragraph 11. Adopted in substance in paragraph 11. 9.-10. Adopted in substance in paragraph 7. Adopted in substance in paragraph 39. Adopted in substance in paragraph 7. Adopted in substance in paragraph 4. Adopted in substance in paragraphs 6 and 7. Adopted in substance in paragraph 5. Adopted in substance in paragraph 6. Adopted in substance in paragraph 5 and conclusions of law #3. Rejected as contrary to the evidence. The clearing conducted by FPC did not constitute dredge and fill activity. 19.-22. Adopted in substance in paragraph 11. 23.-24. The conclusion that logging activity is a secondary impact of the FPC is rejected as wholly unsubstantiated by competent evidence. Adopted in paragraph 8. Adopted in part in paragraph 8, otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Adopted in substance in paragraph 24. Adopted in paragraph 10. Adopted in paragraph 16. Rejected as unsupported by competent, credible evidence. 31(a). Rejected as contrary to more substantial evidence and, as to recreation mitigation, unnecessary. 32.-33. Rejected in substance as unsubstantiated by the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence. 36.-38. Rejected as unnecessary. FPC will remove the nuisance species as part of its maintenance plan. 39.-47. Rejected as contrary to the greater weight of evidence. 48.-50. Rejected as unsubstantiated by competent evidence. 51.-52. Rejected as contrary to the weight of evidence. Adopted in paragraph 17. Rejected as unnecessary. The construction activity could have, but did not cause water quality violations. See paragraph 13. 55.-58. Rejected as unnecessary. 59. Rejected as contrary to the evidence. The logging activity was occurring long before and during the relevant period and was not caused by the FPC project. 60.-76. Rejected as irrelevant or contrary to the weight of evidence. Adopted in paragraph 32. Adopted in paragraph 36. 80.-87. Rejected as irrelevant. 88. Adopted in part in paragraph 42. That mitigation is required is rejected as contrary to the evidence. 89.-90. Adopted in paragraph 39. Rejected as unnecessary. Adopted in part in paragraph 42, otherwise rejected as an enforcement issue and irrelevant here. Adopted in paragraph 40. Adopted in substance in paragraph 40. 95.-106. Rejected as unnecessary. COPIES FURNISHED: Frank E. Matthews, Esquire Michael P. Petrovich, Esquire Hopping, Boyd, Green & Sams O. Box 6526 Tallahassee, FL 32314 Douglas MacLaughlin, Esquire Office of the General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be determined in this case is whether Sabal Trail is entitled to the proposed Environmental Resource Permit and Easement to Use Sovereign Submerged Lands to construct a natural gas pipeline.
Findings Of Fact The Parties Petitioner, WWALS, is a Georgia not-for-profit corporation registered with the Florida Department of State as a Foreign Not For Profit Corporation. Its mailing address is in Hahira, Georgia. WWALS’ mission is to advocate for conservation and stewardship of the Withlacoochee, Willacoochee, Alapaha, Little, and Upper Suwannee River watersheds in South Georgia and North Florida. WWALS stated in its petition that it has a total of 85 members, 36 of whom reside in Florida. The total number of WWALS members was not established at the final hearing. If members that joined WWALS after it filed its petition for hearing are included, WWALS has about 40 members living in Hamilton County and Suwannee County. Sabal Trail is a Delaware limited liability company that is registered to do business in the State of Florida. It is the applicant for the authorizations that are challenged by Petitioner. The Department is the state agency charged with administering the Environmental Resource Permitting program under chapter 373, Florida Statutes, and Florida Administrative Code Chapters 62-4 and 62-330. The Department is also the state agency authorized by chapter 253, Florida Statutes, and Florida Administrative Code Chapter 18-21, to review and authorize certain uses of state- owned submerged lands. General Project Description Sabal Trail proposes to construct an interstate natural gas pipeline. The primary purpose of the pipeline is to support electric power generation in Florida. The pipeline would start in the vicinity of a Transcontinental Gas Pipeline Company station in Tallapoosa County in Alabama. The portion of the pipeline in Florida would cross twelve Florida counties, entering the state in Hamilton County and terminating in Osceola County. The pipeline would include 232.75 miles of 36-inch diameter pipe for the Mainline Route, 13.1 miles of 36–inch diameter pipe for the Hunter’s Creek Line, and 21.5 miles of 24- inch pipe for the Citrus County Line. The pipe used would be made of high-strength ductile carbon steel. The project would include construction and operation of three compressor stations and three meter and regulation stations in Florida. There would also be access roads, pig launcher and receiver stations, mainline valves, and pipe storage/work areas. Most of the pipeline would be installed using a conventional “cut and cover” technique, which means a trench is excavated, sections of pipe are placed in the trench and connected, and the trench is backfilled with soil excavated from the trench. However, waterbodies along the route, including the Suwannee River and Santa Fe River, would be crossed using Horizontal Directional Drilling (“HDD”). The HDD method involves boring a pilot hole beneath the waterbody and then enlarging the hole with one or more passes of a reamer until the hole is large enough to pull a prefabricated pipe segment through the hole. The pipeline would be installed more than 40 feet beneath the Suwannee River and Santa Fe River. During HDD operations, drilling fluid or “mud” is used to lubricate the drill head, and remove cuttings from the hole. Drilling mud is a non-toxic, naturally occurring, bentonite clay, which is commonly used for drilling water wells. The pipeline will require a permanent 50-foot right-of- way. Because the construction would require digging trenches through wetlands, drilling under riverbeds, and construction of stormwater management systems for the various stations, an environmental resource permit from the Department must be obtained for the work. Because some construction is over state- owned submerged lands, authorization from the Trustees of the Internal Improvement Trust Fund is also required. Route Selection The pipeline route was selected based on environmental and cultural resource factors and co-location opportunities with existing utility rights-of-way. The proposed route was modified many times to reduce environmental impacts and respond to landowner requests. The pipeline runs parallel to two existing natural gas pipelines that cross the Santa Fe River. The closest major spring to the pipeline route would be Madison Blue Spring, 1.7 miles away. The route is closer to some smaller springs, but it would not cross near spring vents or areas of concentrated spring flow. The pipeline would cross above the Falmouth Cave system. However, the pipeline would be only four-to-six feet beneath the land surface. The cave system is more than 100 feet below ground. Sabal Trail reduced or eliminated impacts to wetlands and waterbodies along the pipeline route, but the project would result in unavoidable temporary and permanent losses of portions of wetlands along the route. The functional loss of wetland functions, as calculated under the Uniform Mitigation Assessment Method (“UMAM”), would be offset by Sabal Trail’s purchase of credits from approved wetland mitigation banks. Petitioner’s Objections The primary concern of WWALS and its members is the possibility of environmental impacts arising from the construction of the pipeline in karst terrain. Karst terrain, which is limestone undergoing dissolution and characterized by the formation in the limestone of holes, cracks, fissures, conduits, and sinkholes, is common in North Florida and throughout the State. Although fragile in particular locations, karst terrain is able to support large linear facilities in North Florida such as Interstate 10, Interstate 75, and railroads, which bear loads of many tons without collapses occurring in the underlying limestone. Sabal Trail conducted geophysical tests, evaluated the potential for sinkhole formation, developed drilling best management practices, and prepared a karst mitigation plan to address potential adverse circumstances that might arise during construction of the pipeline. The pipeline design specifications provide reasonable assurance that the formation of a sinkhole along the path of the pipeline would not cause it to break. It is in the interests of Sabal Trail to build and operate the pipeline so that breaks or disruptions of service do not occur. There are existing natural gas pipelines that were constructed under the Suwannee River and Santa Fe River. A geologist with the Florida Geological Survey testified that he was unaware of any adverse impacts that have been associated with these other pipelines. WWALS presented no evidence of adverse impacts that have been caused by similar pipelines in similar areas. Petitioner’s members are afraid the pipeline will cause adverse impacts because of its construction in karst terrain, but with the exception of four WWALS members whose properties would be crossed by the pipeline, the concerns expressed by members about how they would be affected were vague and speculative. Not all of the potential pipeline impacts described by WWALS members were vague or speculative, but the members’ injuries were vague and speculative. For example, it was not adequately explained how a sinkhole, if one were to occur along the route of the pipeline, would affect them. WWALS expressed concerns about water quality, but the use of drilling mud and grout for the HDD operations is unlikely to affect the residential water wells of any member or non- member. Nor would it affect the water quality of the rivers under which the pipeline is installed, because the amount of drilling mud and grout is so small in relation to groundwater volumes. WWALS expressed general concerns about fish and wildlife impacts, but no member identified any particular wetland impact caused by construction of the pipeline that would directly affect him or her and Petitioner presented no competent evidence to refute the UMAM assessment or the reasonableness of the proposed mitigation. No competent evidence was presented about the possibility that HDD drilling under the rivers could result in adverse impacts to fish and wildlife. Some WWALS members testified they use and enjoy the rivers and surrounding area, but the concerns about adverse impacts to their use and enjoyment were speculative, being based on the proposition that a sinkhole or other disruption of the limestone will be caused by the construction of the pipeline and it will cause a change in the rivers or land to a degree that their use and enjoyment of the rivers or land will be materially diminished. Petitioner did not establish the connection between pipeline impacts and interference with members’ use of area waters. One member testified he has an organic farm and believes it would be adversely affected by air pollution from a proposed compressor station for the pipeline, but there is a separate permit associated with the air quality impacts of the pipeline. Air quality is not a cognizable issue in this proceeding. A few members believe there could be impacts that would adversely affect their business interests, which are not interests that this proceeding was designed to protect. Although a substantial number of WWALS members have substantial interests in the use and enjoyment of the waters and environment of Hamilton County and Suwannee County, a showing of potential injury to those interests was only established in the record for four WWALS members--the four who own land that the pipeline will cross. Four members is not a substantial number when compared to the total number of WWALS members living in Hamilton County and Suwannee County, which is about forty. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62-330.302. Rule 62-330.302(1)(a) lists seven public interest factors to be considered and balanced: 1 Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the pipeline project would not result in adverse impacts on public health, safety, or welfare. Beyond general, undisputed evidence about the characteristics of karst geology, no competent evidence was presented by Petitioner to show that a karst-related impact could occur that would affect its members. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the pipeline would not cause adverse impacts to fish and wildlife. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the project would not cause adverse impacts to navigation or the flow of water or cause harmful erosion or shoaling. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the project would not cause adverse impacts to fishing or recreational values or marine productivity. It is undisputed that some of the pipeline impacts and the pipeline, itself, will be of a permanent nature. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the proposed pipeline would not adversely affect significant historical and archaeological resources. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the proposed pipeline would not adversely affect the current condition and relative value of environmental functions being performed in the area that would not be fully mitigated. Considering the seven public interest factors listed above, the proposed pipeline is not contrary to the public interest. The Suwannee River and Santa Fe River have been designated as Outstanding Florida Waters. Any activities that would affect them must be shown to be clearly in the public interest. As discussed in the Conclusions of Law, demonstrating that a project is clearly in the public interest requires greater assurance that all permitting requirements will be complied with. Sabal Trail showed clearly that it will comply with all permitting criteria. Rule 62-4.242 prohibits the degradation of water quality in an Outstanding Florida Water. Sabal Trail and the Department showed the construction and operation of the pipeline would not degrade the water quality of the Suwannee River or Santa Fe River. Rule 18-21.004(1)(a) requires that activities on sovereignty submerged lands not be contrary to the public interest. Rule 18-21.003(51) defines public interest in this context as: Demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic cost of the proposed action. Therefore, to obtain authorization to use sovereignty submerged lands easement, an applicant must create a net public benefit. Sabal Trail and the Department demonstrated the project creates a net public benefit because it would not have adverse environmental impacts that would not be fully mitigated and the project addresses a need determined by the Public Service Commission for additional natural gas transportation capacity into Florida, enhancement of natural gas supply diversity and reliability, and increased competition for natural gas transportation services. WWALS contends the proposed project would conflict with rule 18-21.004(2)(a), which requires that all sovereignty submerged lands be primarily managed to maintain “essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming.” However, WWALS presented no competent evidence to show that any sovereignty submerged lands would lose their essential natural conditions, that fish and wildlife propagation would be diminished, or that traditional recreational uses would be interfered with. The proposed project complies with the requirement of rule 18-21.004(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order that approves issuance of Environmental Resource Permit No. 0328333-001 and grants an easement to use sovereign submerged lands to Sabal Trail Transmission, LLC, for the Sabal Trail Natural Gas Pipeline. DONE AND ENTERED this 11th day of December, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 11th day of December, 2015. COPIES FURNISHED: Richard S. Brightman, Esquire Timothy M. Riley, Esquire H. French Brown, IV, Esquire Hopping, Green and Sams Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Gus McLachlan Sabal Trail Transmission, LLC Suite 300 400 Colonial Center Parkway Lake Mary, Florida 32746 John S. Quarterman, President WWALS Watershed Coalition, Inc. Post Office Box 88 Hahira, Georgia 31632 (eServed) Jack Chisolm, Esquire Sidney C. Bigham, III, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) William R. Wohlsifer, Esquire Leighanne C. Boone, Esquire William R. Wohlsifer, P.A. 1100 East Park Avenue, Suite B Tallahassee, Florida 32301 (eServed) Jonathan P. Steverson, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Craig Varn, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
