The Issue The issues in this preliminary hearing are whether the South Florida Water Management District (WMD) has jurisdiction and whether Petitioners have standing. In part, the issue of WMD's jurisdiction involves sub-issues as to Petitioners' timeliness in requesting an administrative hearing.
Findings Of Fact Issuance of FPL's Permit and Waivers On May 2, 2000, WMD received an application from FPL for ROW Standard Permit to construct a parallel run of transmission lines (Parkland Transmission Line) in Sections 26, 27, 28, 29 and 35, Township 47, Range 41 East, located in Palm Beach and Broward Counties, inside the south ROW of the Hillsboro Canal. The Parkland Transmission Line was planned to carry 230 kilovolts (kV) of electricity to FPL's Parkland substation. FPL applied to place the 91-foot high poles for the transmission lines 14 feet from the top of the canal bank, on the south side of the canal, which is at least 80 feet wide. On May 5, 2000, WMD received from FPL a Petition for Waiver of Rule 40E-6.011(4), (5) and (6), which governs the placement of permanent and semi-permanent encroachments within forty feet of the top of canal bank within Works and Lands of WMD. Although not identified in the style of the Petition for Waiver, FPL also sought a "waiver from the Basis of Review Rule (L)(4)(Transmission Lines, p. 113 of Sept. 1999, Volume V, Criteria Manual for Use of Works of the District.)"3 The Petition for Waiver sought permanent waivers. The District published notice of receipt of the petition for waiver from FPL in the Florida Administrative Weekly (FAW), Volume 26, Number 21, dated May 26, 2000. However, instead of giving notice that FPL was requesting permanent waivers, the notice stated that FPL only sought "temporary relief from the Rule 40E-6.011(4), (5) and (6) . . . and the Basis of Review." In addition, while the notice described Rule 40E-6.011(4), (5) and (6) as requiring a "minimum 40 foot setback requirement from the top of bank," it did not describe the criteria in the Basis of Review, which states in pertinent part: The use of the District's Works or Lands for the construction, operation, and maintenance of transmission lines has the potential to interfere with the District's operation, maintenance and allied purposes. Applicants should acquire their own right of way and should not look to the District to utilize District-controlled Works or Lands, which were acquired for water management and other allied purposes. This policy should not be construed as a prohibition against the construction of distribution or transmission line crossings, nor is it a prohibition against use of short segments of District's right of way for the construction of local distribution facilities when such facilities will not interfere with operations and maintenance and are otherwise acceptable to the District. Finally, WMD's notice did not describe FPL's project. As a result, it could not have been ascertained from WMD's notice what FPL's Petition for Waiver was for (installation of a 230 kV overhead transmission line) or what the Basis of Review provided on transmission lines. Instead, as worded, the notice implied that both Rule 40E-6.011(4)-(6) and the Basis of Review required a "minimum 40 foot setback . . . from the top of bank." The District published notice of the July 13, 2000, Governing Board meeting (in Fort Myers, Florida) in the FAW, Volume 26, Number 25, dated June 23, 2000. This notice simply stated that the agenda of the meeting was available upon written request or via WMD's website. The meeting agenda fully described both FPL's Permit application and Petition for Waiver. It also noted WMD staff's recommendation that the both be approved. WMD's Governing Board granted both FPL's Permit application and Petition for Waiver at its meeting on July 13, 2000. An Order Granting Waiver was reduced to writing and filed on July 26, 2000, effectively nunc pro tunc July 13, 2000. The Order Granting Waiver also granted FPL's Permit application and included a Notice of Rights, which advised affected persons how to seek an administrative hearing by filing "a petition for hearing pursuant to Sections 120.569 and 120.57(1)." WMD published in the FAW, Volume 26, Number 36, dated September 8, 2000, notice of the disposition of FPL's Petition for Waiver under Section 120.542, Florida Statutes. Unlike the notice of filing the Petition for Waiver, the notice of disposition described the project as "installation of 3.7 miles of overheads parallel transmission pole line inside the south right of way of the Hillsboro Canal, Palm Beach and Broward Counties." The notice of disposition did not contain a Notice of Rights or other "point of entry" to request an administrative hearing. Except as set out in Findings 3-6, supra, neither WMD nor FPL gave Petitioners any other kind of notice of FPL's Permit application or Petition for Waiver proceedings. WMD did not determine that FPL's project was of heightened public concern, or that there was the likelihood of a request for an administrative hearing, so as to require additional notice in accordance with WMD rules. First Notice to Petitioners (Except Leserra and Smith) Petitioners all own residences in the vicinity of FPL's transmission line project. While Jeff Leserra lives south of the Hillsboro Canal and across Loxahatchee Road in Broward County, the other Petitioners all live north of the Hillsboro Canal in Boca Winds, a group of related residential developments in Palm Beach County, west of Boca Raton. Some of the Boca Winds residents--Terwilliger, Tennant, Pam Danko, Larry Rosenman, Teresa Badillo, and Mike Sturm--live in homes on property adjacent to WMD's north ROW along the Hillsboro Canal. These homes are approximately between 230 and 250 from the nearest Parkland Transmission Line pole. Moreover, in late 1999, each of these Petitioners applied to WMD for a Noticed General Permit (NGP) to extend their backyard fence enclosures between 20 and 25 feet into WMD's north ROW along the Hillsboro Canal--closer to the poles. Their applications were processed primarily by Badillo and another homeowner, Gary Fishman, who is not one of Petitioners. The applications were granted and NGPs were issued to them on May 8, 2000, just after FPL's Permit application and Petition for Waiver were filed. The homes of the other Petitioners--Jose and Amalia Gutman, Frank Longo, David Weinstein, and Ballard Smith--are not adjacent to the Hillsboro Canal. The homes of the Gutmans and Smith are approximately 370 and 390 feet from the nearest pole; Weinstein's home is approximately twice as far away; Longo's home is approximately 1,100 feet away from the nearest pole. All Petitioners use their homes as their permanent residence except for Ballard Smith, whose principal residence is in Bradenton, Florida. Prior to November 2000, Petitioners had no notice or knowledge of FPL's Permit application or Petition for Waiver proceedings. FPL began installing 90-foot high poles for the Parkland Transmission Line along the Hillsboro Canal ROW on or about November 1, 2000. By mid-November 2000, all Petitioners except Leserra and Smith has seen the poles, made inquiry of various kinds, and learned of FPL's plans to construct the Parkland Transmission Line. Leserra and Smith did not see any poles and had no knowledge about the Parkland Transmission Line until later. See Findings 49-53 and 58, infra. Initial Reaction to Transmission Poles The Boca Winds homeowners who became aware of the installation of the poles just south of the Hillsboro Canal reacted in different ways. Some instantly suspected both the ultimate use of the poles for electrical transmission and that the poles were on WMD ROW. Others suspected the former but not the latter. Several made telephone inquiries of different kinds-some to FPL, some to their homeowner association. Quickly, word spread, and these homeowners, including all Petitioners except Smith and Leserra, began organizing to oppose FPL's Permit. Meetings were held, and many members of the loosely-organized opposition were involved initially, but the group soon turned to and relied heavily on a handful of its members--primarily the Gutmans, Badillo, and Gary Fishman- -to gather information and contact FPL and WMD on behalf of the group. While none of the group was particularly knowledgeable about the legal technicalities of WMD procedures, Jose Gutman was a Florida-licensed lawyer (albeit practicing in patent law), and Fishman had handled the applications of Terwilliger, Tennant, Pam Danko, Rosenman, Badillo, Sturm, and others for WMD NGPs to extend their backyard fence enclosures into WMD's north ROW along the Hillsboro Canal. Although most members of the group did not view Jose Gutman technically as their attorney during this time, Gutman asserted attorney-client privilege as to communications between himself and members of the group beginning in November 2000, and Petitioners' objections to disclosure of these communications were sustained. A meeting between Jose Gutman, Fishman, Badillo, and other Boca Winds residents and various FPL representatives was held on November 8, 2000. During this meeting, the residents essentially complained that they had no notice and asked FPL to relocate the transmission line. FPL responded that the required notice was given and said it would respond to the request to relocate the lines. The next day the homeowners put their requests to FPL in writing. They asked for proposals for relocating the transmission line, for the projected cost of putting the line underground for the 1.3 miles in the vicinity of their homes, for EMF testing of their homes, and for a statement of safety. The Gutmans then began the process of drafting a petition for circulation to residents for signature. Entitled "Petition to Halt Construction of FPL High Power Transmission Lines on the Land Adjacent to Our Homes," the petition stated that the homeowners "hereby petition our government and [FPL] to halt construction . . . [and] relocate the lines away from our communities." The petition stated that the homeowners had no notice until November 1, 2000, and did not consent to the project. It complained about "a significant loss in property value along with the additional serious concern of health risks [namely, leukemia and cancer] to our children that will be playing within the electric and magnetic fields (EMFs) emitted." The petition requested "that our government representatives and FPL engineers promptly halt construction . . . and provide in writing proposed alternative plans for moving these transmission lines away from our communities." The petition was dated November 18, 2000, but signatures were collected after that date. Meanwhile, Jose Gutman and Fishman arranged to meet with WMD representatives at WMD's main offices in West Palm Beach on November 28, 2000. Since they had a follow-up meeting with FPL scheduled for the following day, they were surprised on their arrival to find Daniel Hronec, FPL Principal Engineer on the Parkland Transmission Line project, in attendance, apparently having been notified and invited by WMD. Gutman and Fishman essentially reiterated their complaint of lack of notice and their request to have the transmission line relocated. Discussion ensued on the permitting process used by FPL and WMD. WMD's Laura Lythgoe explained that WMD rules provide for different review criteria and notice requirements depending on the nature of the request.4 She stated that no notice to affected parties is required for ROW use permits, such as the one FPL got for the Parkland Transmission Line. She went on to explain that the procedure for requesting a variance is set out in Section 120.542, Florida Statutes, which only requires notice in the FAW. Fishman complained that the FAW notice was not specific enough. Thomas L. Fratz, WMD ROW Division Director, responded that the notice was legally sufficient. Lythgoe also pointed out that the agenda item gave specifics and was available on WMD's internet web site. In testimony at the preliminary hearing, Fishman recalled a statement being made during the course of discussion that the homeowners had 21 days to petition for a hearing and that the time had expired. Gutman did not recall such a statement being made specifically, but he conceded that the thrust of the discussion was that the proper notice was given and that the homeowners were too late. During the discussion of WMD procedures, Gutman asked for copies of certain documentation being discussed. Gutman also expressed the homeowners' need for legal advice on the subject and asked for a referral to an attorney knowledgeable in the area. WMD agreed to respond to these requests in writing. Towards the end of the meeting on November 28, 2000, Gutman asked how the homeowners could proceed with their grievance. Fratz responded that the homeowners' issue was with FPL, not WMD. Gutman replied that the homeowners could only negotiate with FPL (which they already were doing) but could petition WMD, as their government, to take action to rectify the situation. Gutman indicated that he had a petition with approximately 150 signatures for that purpose. It is not clear whether the petition and signatures were physically presented to WMD at that time, but it is clear that WMD did not direct Gutman to WMD's Clerk's office, which was just down the hall from where they were meeting, to file the petition. The next day, FPL hosted a meeting with the homeowners to respond to their requests made at the meeting on November 8, 2000, and in their letter dated November 9, 2000. FPL confirmed its response in a letter dated November 30, 2000. FPL told the homeowners that there were options for relocating the transmission line but that implementing the options would cost the homeowners between $900,000 and $1.5 million, depending on the option chosen and that a $20,000 engineering deposit would be required up-front. The option of replacing the planned overhead transmission lines with underground lines would be much more expensive--approximately $15 million--and "unquestionably prohibitive." The homeowners considered FPL's proposals to be financially infeasible and unacceptable. By letter dated December 1, 2000, WMD provided Jose Gutman and Fishman documentation in response to their request during the meeting on November 28, 2000. Included were copies of the agenda for the Governing Board's meeting on July 13, 2000, and Section 120.542, Florida Statutes (2000). The letter stated that Section 120.542 applied, not Section 403.201 (applicable to the Department of Environmental Protection), which Gutman and Fishman apparently cited at the meeting. The letter also stated that there was no requirement for publishing or other notification to affected parties for issuance of a ROW permit. Attorney Walker and the Board Meeting December 14, 2000 After the meetings and letters, the homeowners decided that it would be necessary to appeal directly to WMD Governing Board. They also decided that they needed competent legal representation to assist them. Amy Gutman contacted Governing Board member Nicholas J. Gutierrez, Jr., who advised the homeowners to bring their grievances to the next Board meeting on December 14, 2000. Gutierrez put Amy Gutman in contact with the Board's meeting coordinator, Sandra Gomez, who scheduled the homeowners to participate in the public comment portion of the upcoming Board meeting on December 14, 2000. Meanwhile, Jose Gutman took steps on behalf of the homeowners to retain counsel. After considering several candidates, Gutman eventually settled on Stephen A. Walker and his law firm of Lewis, Longman & Walker, P.A. to represent the group of homeowners (including all Petitioners except Leserra and Smith). Walker served as General Counsel of WMD from 1985 to 1991, and was a frequent practitioner before the SFWMD Governing Board. He also has appeared in cases before the Division of Administrative Hearings. It is not clear from the evidence what documentation Walker obtained from WMD's permit files before appearing on behalf of the homeowners at the Governing Board's meeting on December 14, 2001. However, it is reasonable to infer that, as former WMD General Counsel and an attorney specializing in WMD permitting with extensive experience in that field, Walker was aware of the generally applicable 21-day time limitation for seeking an administrative hearing regarding proposed agency action. Walker also was aware of the difference between petitioning to intervene in a proceeding for the issuance of a permit and asking an administrative agency to initiate proceedings to revoke a permit that has already been issued. Whether Walker communicated this knowledge is not clear from the evidence because Petitioners objected to questions seeking disclosure of attorney-client communications, and the objections were sustained. However, it can be inferred from all of the evidence that such communications probably took place. Walker and the homeowners not only appeared for the public comment portion of the Governing Board's agenda for December 14, 2001, they also conducted a protest demonstration that caused a disturbance in the hallway outside the meeting room during an earlier part of the agenda. Attempting to ascertaining the reason for the disturbance, the Chairman of the Governing Board, Michael Collins, asked WMD Ombudsman, Richard E. Williams, to attempt to gain some understanding of the reason for the demonstration and to suggest possible solutions. When it was made known that Fratz and other WMD staff already had met with the homeowners and FPL, Collins asked that Fratz be included. Williams then met with the homeowners, FPL, and some WMD staff in the nearby WMD cafeteria. When the situation was explained to Williams, he suggested that all parties agree to give him time to gather additional facts and try to mediate an "acceptable agreement" to report back to the Governing Board at its meeting in January 2001. In the meantime, it was agreed that FPL would postpone construction in the vicinity of the homeowners and that the homeowners would postpone pursuit of their grievance. This was acceptable and agreed by all involved. When FPL and the homeowners returned to the Governing Board meeting for the public comment portion, Walker appeared on behalf of the homeowners. Walker summarized the history of FPL's Permit and waivers. He asked the WMD Governing Board to do three things: (1) have staff investigate the appropriateness of the issuance of the Permit in the first instance; (2) based upon that investigation, partially revoke FPL's Permit; and (3) have Williams continue to work with the homeowners and FPL in an effort to find a solution. The Gutmans, Tennant, Terwilliger, and Badillo also addressed the Governing Board to ask that FPL's Permit be revoked. Jose Gutman advised the Governing Board that the homeowners had a petition (by then with 256 signatures) with a cover letter that would provide the Board a summary of the issues. He offered to provide the Board with copies and was directed to hand them to Darrell Bell, a member of the staff of WMD's Clerk's office, who would make sure all Board members got a copy. The other speakers expressed their concerns about EMF, aesthetics, and property values. Collins then asked the WMD's General Counsel, John Fumero, to identify the Board's options. Fumero advised that the Board could modify, revoke or suspend FPL's Permit but that, before taking such action, the Board would want to know the facts and understand the consequences of each option. Without taking a formal vote, the Board asked staff to investigate the facts and report back at the next meeting. Walker advised the Board, and Dan Hronec on behalf of FPL concurred, that FPL had temporarily stopped construction near where his clients lived while it continued work on other portions of the transmission line. Smith's First, Incomplete Knowledge Smith saw a tall concrete structure off to the left of the main entrance to Little Palm Lane when he visited his home for approximately four days in late December 2000. He denied seeing any other poles (although all of the poles behind the Boca Winds homes were installed by then). Smith explained that he spent most of his time during this visit in the house or in the backyard where the poles would be less visible. Although Smith admitted that he was outside in front of his house, where the poles would have been more visible, at times during his visit in December and that he can now see the poles and lines from inside his house through any front window on either the first or second story, Smith's testimony as to what he saw in December 2000 is accepted and credited. Likewise, Smith's testimony that he did not realize the purpose of the pole he saw or its location on WMD ROW is accepted and credited. Walker's Review of WMD Documents As part of his representation of the homeowners, Walker or one of his subordinates obtained copies of at least parts of WMD's official agency file on FPL's Permit. Walker's files contained several partial copies of FPL's Permit; there also was a Notice of Rights form (the kind attached to the Order Granting Waiver). Walker's file also contained other materials that are found in the WMD's file on FPL's Permit, such as the standard form letter that accompanies each permit transmittal. Fishman understood that Jose Gutman had asked Walker or one of his subordinates to go to WMD and undertake an investigation regarding the issuance of FPL's Permit. Gutman did not confirm Fishman's understanding, and Walker denied that he or anyone from his staff went to WMD's main office in West Palm Beach to investigate the issuance of FPL's Permit and obtain the documentation in his file. It is possible that Walker was given the documents by one or more of the homeowners. Walker also testified at hearing that he could not recall when he obtained the documentation that was in his file. However, based on the record evidence, it is reasonable to infer that this occurred prior to January 8, 2001, as Walker sent a letter to WMD on that date which described the Permit in detail and to which he attached copies of FPL's Permit, FPL's permit and waiver applications, and several items of WMD correspondence from the permit file. Failure of Mediation; Board's Meeting February 14, 2001 After the Governing Board's December 2000 meeting, Ombudsman Williams undertook to schedule separate meetings with the homeowners and with FPL, to be followed by a joint meeting with all involved. It soon became apparent that it would not be possible to conduct all the meetings and be ready to report back to the Governing Board at its January 2001 meeting. In a letter from FPL to Fratz dated January 5, 2001, FPL confirmed that FPL would continue to postpone construction in the vicinity of the homeowners until after the February 2001 meeting of the Governing Board and that, "in return for this concession, the concerned residents have agreed to hold any further action, including comment to the Board, until the February Board meeting." Williams met separately with the homeowners and with FPL, as planned. When Williams contacted Amy Gutman to schedule a joint meeting, she asked whether anything new was being proposed. When Williams said, no, Gutman told him she did not think another meeting would be productive and declined on behalf of the homeowners to participate in one. Apparently, FPL representatives met with WMD staff, and they discussed landscaping to help mitigate the aesthetic concerns of the homeowners. Having declined to participate, the homeowners were not aware of the landscaping proposals (essentially, planting cabbage palms in the ROW.) FPL's Permit and waivers made up an agenda item at the WMD Governing Board's meeting on February 14, 2001. Fratz introduced the item with a presentation. The Board then received public comment from Walker on behalf of the homeowners and from a number of homeowners. Walker, on behalf of all Petitioners except Smith and Leserra, identified three concerns of the homeowners, one of which was the lack of notice. Specifically, Walker stated that the Administrative Procedure Act was involved, that the model rules provide for a point of entry for people wanting to object to a permit, and that his clients did not get the required point of entry. At the conclusion of his presentation, Walker asked the Board to revoke FPL's Permit. When asked by one of the Board members whether there were other options available, Walker stated that he was not aware of an available alternative other than revocation. Petitioners Tennant, Frank Longo, Terwilliger, Jose Gutman, Larry Rosenman, and Badillo also addressed the Board and provided reasons why they believed FPL's Permit should be revoked. FPL then made a presentation, after which the Board discussed the issue and entertained several motions. During the Board's discussion, staff was asked about possible interference with WMD's operation and maintenance of the Hillsborough Canal as a result of the transmission line and about the safety of WMD's workers. These questions were addressed by Fratz, by WMD's Executive Deputy Director, Joe Taylor, and by WMD's Director of Field Operations (South), John Adams. They advised the Board that WMD could adequately operate and maintain the canal with the transmission lines in place and that the safety of WMD's workers would not be compromised. Fratz noted that WMD frequently received requests for waiver of the 40-foot setback from the top of canal banks, and Adams pointed out that WMD does not operate any of its equipment, including cranes with booms, along WMD ROW in winds above 35 miles per hour. After these questions were answered, Board Chair Michael Collins again asked General Counsel, John Fumero, to list the Board's options. Fumero outlined three possible courses of action: (1) to take action relative to the Permit such as revocation, modification or suspension; (2) to take no action with respect to the Permit; or (3) to direct staff to publish notice of the Permit to create a point of entry for an administrative challenge. After some questions from the Board were answered, Board member Dr. Patrick J. Gleason moved to give the homeowners a point of entry, and the motion was seconded. After further discussion, the motion was amended in two respects: (1) the Board would delegate to the executive director the authority to initiate a proceeding to suspend FPL's Permit while the administrative challenge was ongoing; and (2) the Board's action would be based upon information received during the meeting indicating that certain WMD criteria may not be met. The motion, as amended, was defeated by a 7 to 1 vote. A subsequent motion was made for FPL to install and maintain certain landscaping over a portion of the ROW to provide a visual buffer between the homes and the transmission line. That motion passed, 7 to 1. Petitioners (except Smith and Leserra, who still had no knowledge of events taking place and did not participate in the meeting on February 14, 2001) understood that the Governing Board had refused to initiate revocation proceedings at the meeting. Although some Petitioners expressed willingness to hear more about the landscaping proposal, which was new to them, Petitioners also already knew that the landscaping alternative proposed would not be acceptable to them and that they still wanted FPL's Permit revoked. After the Board's vote, several Petitioners, including Jose Gutman, Badillo, and Rosenman (as well as Fishman) talked to Walker about other avenues to pursue in their continued opposition to FPL's Permit. This discussion included advice on seeking a formal administrative hearing. It is highly likely that, even if Walker did not have all his documentation from WMD's file on FPL's Permit by January 8, 2001, he had them by the Governing Board's meeting on February 14, 2001. During the meeting, Walker introduced exhibits that he indicated were retrieved from WMD's file on FPL's permit. These included a copy of the Notice of Rights attached to the Order Granting Waiver. Walker advised the homeowners for the last time after the meeting on February 14, 2001, before his clients left the meeting. His representation was terminated shortly thereafter. Petitioners have invoked attorney-client privilege to preclude discovery of the precise substance of the discussion with Walker after the meeting on February 14, 2001- -in particular whether the various jurisdictional time limitations were discussed. However, it is reasonable to infer that Walker shared this information with the homeowners, including the information contained in the Notice of Rights attached to the Order Granting Waiver, before terminating his representation. Leserra's Knowledge and the Petition Petitioner Leserra first learned of the installation of high-voltage transmission line poles in the vicinity of his home in approximately February 2001. The closest pole was just 69 feet away from his home, across Loxahatchee Road. Leserra contacted State Representative Stacy Ritter to complain, and his office contacted WMD and obtained information concerning the project in mid to late-February 2001. A letter sent by Representative Ritter's office to Leserra on February 28, 2001, and received by Leserra shortly after March 2, 2001, stated that the line in question was located on property determined to be owned by WMD. Leserra testified that, even after receiving this information, he did not know how WMD's ownership was determined and still did not know for certain of WMD's involvement at the time. In early March 2001, a friend informed Leserra that homeowners in Boca Winds in Palm Beach County were having a similar problem with installation of high-voltage transmission lines near their homes and gave him Teresa Badillo's name and telephone number. Leserra telephoned her and was told that there was a meeting about it at WMD in February 2001. Badillo gave Leserra Jose Gutman's name and number for additional information. Badillo testified that she also told Leserra about FPL's Permit to use WMD's ROW. Leserra does not recall her saying that. Even if she did, Leserra did not even know where Boca Winds was at the time and did not know that Boca Winds was being affected by the same transmission line project that was affecting him. On March 12, 2001, Leserra wrote to FPL and WMD and threatened that he would hold WMD responsible for any adverse impact from the FPL facilities on the Hillsborough Canal. At the time he sent the letter, he had not yet been able to speak to Jose Gutman. At some point during the next four days, Leserra was able to contact Jose Gutman by telephone. Gutman explained the Boca Winds situation in detail, including the homeowners' intention to request an administrative hearing, and Leserra agreed to be a co-petitioner. Since Petitioners objected to disclosure of communication with Gutman on grounds of attorney-client privilege, it is not clear that Gutman imparted to Leserra information as to the Notice of Rights attached to the Order Granting Waiver to FPL or the deadline for petitioning for an administrative hearing. But it can be inferred that the former was communicated and that the latter was discussed. On March 16, 2001, Amy Gutman contacted Ombudsman Williams to tell him that the homeowners no longer were represented by Attorney Walker but, along with Leserra now, wanted to petition for an administrative hearing, wanted to know their rights, and wanted assistance in understanding the process to avail themselves of their rights. On March 20, 2001, Williams relayed this information to Deputy Executive Director Taylor and General Counsel Fumero for handling. The office of WMD General Counsel responded to Williams' request by sending a letter dated March 22, 2001, to Amy Gutman, on behalf of the homeowners, enclosing a copy of the Order Granting Waiver, with Notice of Rights, which "explains the various remedies that are available to anyone substantially affected by a decision of the District." After receipt of the letter with copy of the Order Granting Waiver with Notice of Rights, Amy Gutman and some of the homeowners (including all Petitioners except Ballard Smith) decided to file a petition for administrative hearing. Suzanne Terwilliger telephoned WMD office of General Counsel to get sample petitions, which were faxed to her on April 3, 2001. Terwilliger drafted a Petition for Formal Administrative Hearing (Petition) and telephoned WMD to see if it could be filed by fax. She was told Sandra Gomez would call her back. Terwilliger called again on April 6, 2001, angry that she had gotten no response from Gomez and that FPL was energizing the transmission line which had been completely installed since February 14, 2001. Told that it could be filed by fax, the Petition was filed in that manner on April 6, 2001. The Petition was filed by Terwilliger, Amy Gutman, and Leserra purportedly on behalf of unnamed residents of several residential areas in southwest Palm Beach County. On April 11, 2001, FPL filed a Motion to Dismiss asserting that the Petition was untimely, that WMD had no jurisdiction over the matters raised in the Petition, and that Petitioners had no standing. Smith's Knowledge and Joinder; Amended Petition There was no evidence that Ballard Smith knew anything at all about what transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001. Smith visited his home in Boca Winds again during Easter weekend 2001. When he arrived, he was shocked to see the transmission line in place. On April 14, 2001, he talked to his neighbors, the Gutmans, who informed him of some of what had transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001, including FPL's Motion to Dismiss the Petition. He agreed to give Gutman an affidavit to help oppose the Motion to Dismiss and to join the Petition. As set out in the Preliminary Statement, on May 3, 2001, the original Petitioners filed the Affidavit of Ballard Smith as part of their opposition to FPL's Motion to Dismiss. In it, Smith swore that he lived in Bradenton and was not aware of WMD's actions until April 14, 2001; he also swore that he "substantially agrees" with the Petition and "joins with the Petitioners in this Case No. 01-1504." While not clear from the Affidavit itself, Smith clarified in his testimony that he intended by the Affidavit to join in the Petition. On May 18, 2001, Petitioners filed an Amended Petition. The Amended Petition listed 13 individual Petitioners--those included in the above-caption (including Smith), plus one other who later voluntarily dismissed and was dropped. The Amended Petition states that Petitioners' interests in this proceeding are based on the following concerns: (i) the effects of electromagnetic fields (EMF); (ii) impact on Petitioners' property values; (iii) aesthetics and loss of quiet enjoyment; (iv) structural safety; and (v) interference with radio and television. Several Petitioners testified to concerns that the transmission line would interfere with the operation of the Hillsborough Canal and cause their properties and roads to flood, and Tennant testified that the transmission line interfered with her husband's fishing in the canal. The Amended Petition did not allege that these things affected Petitioners in particular, as opposed to the community in general. But they were heard without objection and by implied consent. Likewise, Tennant's testimony about her family's canoeing and kite-flying being impacted by the transmission line were heard without objection and by implied consent. EMF Petitioners Badillo, Smith, Rosenman, Weinstein, Tennant, and the Gutmans expressed concerns about EMF generated by transmission lines (although Smith disclaimed any personal interest in the issue.) The remaining Petitioners did not express EMF concerns. The only competent, substantial evidence in the record on Petitioners' medical concerns about EMF were two booklets--one produced in 1995 by the National Institute of Environmental Health Sciences and the United States Department of Energy, and another produced by the Department of Engineering and Public Policy of the Carnegie Mellon University--which FPL provides to those asking for information about EMF. These booklets did not prove that medical or health impacts on Petitioners are likely as a result of the Parkland Transmission Line. Far from proving immediate injury, these booklets at most were only enough to generate some speculation about possible medical or health impacts. Property Values and Aesthetics The Amended Petition states that the presence of the Parkland Transmission Line will adversely impact Petitioners' property values, decreasing values by 20-30 percent. This claim is coupled with claims regarding the aesthetics of the facilities. As to property values, there was no competent, substantial evidence in the record to support Petitioners' contentions. Petitioners made no attempt to substantiate their expressed concern of a drop in property values. They presented no expert evidence regarding property values, none that sales of homes in the area have been or will impacted, and none that the sale price of any home has been lower than it would have been without installation of the transmission line. As for aesthetics, the only evidence was the opinions of several Petitioners who testified that the transmission lines are unsightly. Even if this was enough to prove diminished aesthetics, at least for Petitioners closest to the transmission line, there was no evidence to causally connect diminished aesthetics to a reduction in property value, so as to be actionable in this proceeding. Structural Safety Petitioners presented no competent, substantial evidence that the Parkland Transmission Line is structurally unsound or in any reasonable danger of failure. FPL presented ample evidence to the contrary. The Parkland Transmission Line is designed to meet FPL's internal standards. FPL's internal standards are more stringent (i.e., designed to withstand heavier loads) than the present regulatory requirements for wind-loading and structural safety. FPL's internal standards are also more stringent than the voluntary standards for electric transmission facilities developed by the American Society of Civil Engineers (ASCE). The structural strength of FPL's transmission line also exceeds the requirements of both the Broward and Palm Beach County building codes. Based largely on FPL's stringent internal standards, the National Electrical Safety Code (NESC) is being revised to improve the wind-loading standards for electric transmission poles. Because the new standards are based on FPL's existing internal standards, the Parkland Transmission Line structures are designed to comply with the new NESC that is currently in the final stages of development. FPL's stringent design standards make the possibility for Petitioners to be affected by a failed transmission pole or conductor extremely remote and speculative. Petitioners have expressed a concern over the effects of hurricanes on FPL's concrete transmission poles. However, it is highly unlikely that any portion of the transmission line would fail in a hurricane. FPL's experience reveals that no concrete transmission pole has ever been lost to a Category 3 hurricane, which is a 1-in-100 storm event. Hurricane Andrew, which was a 1-in-400 year storm event, was the only hurricane known to have affected such poles. Even then, 92 percent of FPL's poles stood up. The likelihood of a storm of that magnitude hitting the area where Petitioners' homes are located is very remote. Additionally, the poles along the Parkland Transmission Line are built to FPL's post- Andrew standards and have more load-bearing capacity than the poles in place during Andrew. Petitioners questioned the credibility of FPL's evidence on the structural integrity of FPL's transmission poles and lines, contending that FPL's design calculations for wind-loading failed to increase the basic design wind speed by the terrain factor for exposure category "D." According to the "Guidelines for Electrical Transmission Line Structural Loading," ASCE Manual No. 74, Exposure D is "described as unobstructed coastal areas directly exposed to wind flowing over large bodies of water." Petitioners contend that Exposure D applies because the Hillsboro Canal "runs for miles along the transmission line." But FPL Structural Engineer, C. Jerry Wong, Ph.D., P.E., testified clearly and persuasively that the presence of the Hillsboro Canal does not place the Parkland Transmission Line in an Exposure D setting. Even if failure of a pole were to occur during a hurricane, the chance that a pole would fall and hit one of Petitioners' homes still would be remote. For all Petitioners except Leserra, the poles are too far away for that to happen. The poles, which weigh 45,000 pounds apiece, are too heavy to become airborne. Petitioners presented no competent, substantial evidence suggesting that either a pole or electric conductor could somehow become airborne and reach the property of any Petitioner except Leserra. The only record evidence on this point established that, when there is a structural failure, the pole and the conductor fall down approximately right below where the transmission line is located. The odds of one of these homes being hit by a pole or transmission line due to high winds are almost zero. Even in the case of Leserra, who is the closest to the transmission line at approximately 69 feet away, the odds of his house being hit by a pole due to high winds is less than two-tenths of one percent. Because the transmission line is designed to have higher structural capacity than required by local building codes, it is likely that any winds strong enough to have the potential to damage the line would also destroy surrounding homes. It is far more likely that Petitioners' homes would be destroyed and strike the transmission line than the other way around. In any event, if a hurricane was strong enough to topple one of FPL's transmission line poles or blow down lines, it also would be strong enough already to have destroyed Petitioners' homes. So even if by some bizarre and remote chance a pole or wires blew into one or more of Petitioners' homes, the homes probably already would have been destroyed by such a storm. Petitioners next expressed concern regarding one of the poles being struck by a vehicle, such as a fully-loaded commercial truck. For most Petitioners, even if a truck could knock down a pole, the pole would not reach their property. Only Leserra's home is close enough for there to be any possibility of this happening. Even in Leserra's case, it is next to impossible for a truck to cause one of the poles to fall. The only truck traffic near the poles is on Loxahatchee Road, which runs parallel to the pole line. The poles are separated from the road by a guard rail designed to withstand a 50 mile per hour (mph) collision. The maximum weight of a truck allowed on the road is 80,000 pounds. Such a truck would have to hit a pole at a near right angle and at over 100 mph to have any chance of causing a failure. Because the trucks travel parallel to the pole line, and there is a guardrail in the way, the chance of failure from a collision is extremely remote and speculative. In essence the truck would need to make a 90- degree turn near the pole, break through the 50-mph guard rail a few feet away, and still be traveling at over 100 mph at the time it struck the pole. Then, the pole would have to fall in the opposite direction from the impact to hit Leserra's home. The odds of something this bizarre happening are extremely remote. Finally, it is noted that FPL's Permit has an indemnity clause, which "requires that FPL hold and save the South Florida Water Management District and its successors harmless from any and all damages, claims or liabilities which may arise by reason of the construction maintenance or use of the work or structure involved in the permit." Since this makes it clear that any liability resulting from the presence of the transmission line must be borne by FPL alone, any claim that a structural failure could lead to liability for WMD is speculative at best. Flooding Concerns Several Petitioners testified to concerns about flooding in the Boca Winds subdivision by blocking of subdivision drainage culverts that flow into the Hillsborough Canal or by interference with WMD's routine maintenance of the canal. But Petitioners presented no competent, substantial evidence that flooding for these reasons would be likely. There are two box culverts leading from Boca Winds into the Hillsborough Canal. But, as required by WMD rules, the Boca Winds storm water system is designed to accommodate a 3-day long, 1-in-100 year storm event, with no external outflow. In other words, the system is designed to function without the drainage culverts in even this extreme rainfall condition. There is only a one-percent chance that a 1-in-100- year rainfall event would hit Boca Winds in any given year. In any storm of this magnitude or less, the onsite system would be sufficient to accommodate the rainfall with no flooding of the floor elevation of Petitioners' homes. The possibility that any one storm event would even require drainage into the Hillsborough Canal to prevent flooding in Boca Winds is therefore remote. The culverts leading to the Hillsboro Canal essentially provide additional drainage capacity to the internal storm water management system of Boca Winds. In addition, by slowly draining ("bleeding") water from the Boca Winds subdivision to the canal, they allow the system to recover capacity for subsequent rain events. It is highly unlikely that a transmission pole, even if it was to shear off and fall toward the canal-which is in itself an extremely remote possibility--could in any way impede the functions of either the drainage structures or the canal. Even if a pole were to fall and directly strike and crush one of the two drainage structures, it probably would not appreciably affect the culvert's ability to bleed water into the canal. The drainage into the structures is controlled initially by a weir at the inflow point, not by the pipe diameter at the outflow. Even if a pole were to somehow crush the outflow pipe, water would continue to flow into the canal at roughly the same rate. A pole falling into the canal itself would not affect the ability of the canal to provide drainage. If a pole were to fall into the canal, it would most likely do so top first. Because the pole is tapered, only a small cross section would enter the canal, which would have almost no effect on the flow of water. Even assuming that a pole were to enter the canal in its entirety, it would affect only a minimal portion of the canal cross section and would not significantly affect the flowage capacity of the canal. Even multiple poles falling completely in the canal--an extremely unlikely event--would not significantly affect the function of the canal, due to the small cross-section taken up and the distance between the poles. Most maintenance of the Hillsborough Canal is done with herbicides and from boats in the canal itself. There is rarely a need to use heavy land-based equipment to maintain a drainage canal. The Parkland Transmission Line is on the south bank of the canal, and the Permit provides for the poles to be set approximately 450 feet apart and more than 14 feet from the top of the canal bank. (In many instances the poles are much more than 14 feet from the top of the canal bank). The Permit provides that the poles are to be installed with turn structures that allow at least a 14-foot passing zone around each pole. This is sufficient for the types of vehicles used by WMD to pass around the poles, assuming there was a need to drive along the south bank of the canal. Most heavy equipment can operate from the passing pad and from the space between poles. When heavy equipment is needed, a backhoe or grade- all is typically used. Both of these types of equipment can operate unimpeded from the south side of the canal. A grade- all operating from the south bank has sufficient reach to dredge the bottom of the canal should that be necessary and is the optimal piece of equipment for such an operation. The transmission line would not affect the operation of a grade- all from the southern bank of the canal. Because of the higher elevation, a grade-all would not be used from the north bank, and a crane would be used if there were a need to conduct dredging from that direction. However, because of its location, the transmission line would not impede any equipment use on the north bank. Moreover, if any extensive dredging were done, the routine method would be to operate from a barge on the canal itself, which would also not be affected by the transmission line. There also is no way that the presence of the transmission line could affect the maintenance of the outfall structures from Boca Winds. Any maintenance of those structures would be performed from the north bank of the canal-the side opposite to the transmission line-or from boats or barges operating in the canal. Petitioners introduced evidence to prove that, in some instances, the poles may not have been installed as provided in the permit, with not enough room between the poles and the top of the bank on one side or Loxahatchee Road on the other. It was not clear from their evidence whether this may have occurred in more than two instances, or in any instance other than where the transmission line intersected the canal and changed direction near a culvert. Even if proven, these would have amounted to compliance enforcement issues, not permitting issues. It was not proven that the installation design at these locations was improper; if installation was designed properly but implemented improperly, it was not proven that installation as designed was impossible at these locations. Finally, it was not proven that the installation hampered canal maintenance. Leserra also expressed concerns about flooding of his property from a north-south drainage ditch along his property line, which conveys water from the south to a box culvert under Loxahatchee Road to the Hillsboro Canal, draining a significant area in the vicinity of Parkland. There was little evidence on the operation of Leserra's drainage ditch. The little evidence presented was insufficient to prove the likelihood of flooding of Leserra's property due to the existence of the transmission line. The evidence presented about the Hillsboro Canal in general suggests that flooding of Leserra's property due to the existence of the transmission line is highly unlikely. Indeed, there was no testimony that water in the Hillsborough Canal has ever risen above its banks, even in major rain events. Recreational Use of Canal Tennant testified that her husband regularly used the Hillsboro Canal for fishing and canoeing before the transmission line was installed. The transmission line does not physically obstruct canoeing or fishing in the canal, but her husband chooses not to canoe or fish in the canal any longer due to medical and health concerns and for aesthetic reasons. He does not enjoy those activities as much any more due to the transmission line being there both visibly and audibly. (It makes a noise described as "buzzing" or "humming.") Tennant also testified that her family used to fly kites from the dirt road in the ROW along the north side of the canal behind their home. Due to the proximity of the transmission line, this activity no longer is safe and has been discontinued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Amended Petition for lack of standing. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2002.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Transportation, (Department), was the state agency regulating the utilization of the state highway system by commercial vehicles. The Petitioner, Consolidated Freightways, (Consolidated), is a long haul interstate carrier operating in forty-eight states, including Florida. It has a freight terminal in Brooksville, Florida, a city approximately 11 miles west of I-75 which it has used since December 1, 1986. On October 24, 1990, Andrew J. Gay, Jr., Petitioner's Southern Area Safety Supervisor, requested tandem trailer access to its terminal facilities in Brooksville, via a route over State Road 50 from its intersection with I-75 to the old Dade City highway, then over that road to the terminal. The application indicated the proposed route would be used for on the average of 10 round trips per 7 day week, during the approximate hours of from 2:00 AM to Noon. Upon receipt at the Department, the file was forwarded to the District Operating Engineer in the Department's District VII office in Tampa, that office responsible for supervision of operations in the pertinent area, where it was given to Kevin Dunn, an assistant civil engineer, for evaluation. This was the first evaluation such as this that Mr. Dunn had made. In accomplishing the evaluation, he relied upon a department directive, TOPIC NO. 750-010-050-C; effective November 21, 1990, good to May 21, 1991, entitled, EVALUATION OF PROPOSED TANDEM TRAILER TRUCK ROUTES, in which, at PROCEDURE; (4)(B) 1 & 2, rejection criteria, including vehicular safety and highway safety considerations, are listed. Section (4) of the Directive deals with Terminal Access Route Evaluation Standards, and provides that when an operator of a terminal facility located more than 5 miles from the tandem trailer truck highway network submits a request for access routing, it shall be for the shortest route available, and shall be evaluated utilizing the rejection criteria outlined which indicate that a request may be rejected when one of the criteria for rejection are met, but shall be rejected when two or more are met. Mr. Dunn considered that one of the vehicular safety considerations was met as was one of the highway safety considerations. The former, he felt, authorizes rejection when: The total combined length of high accident locations exceeds 15% of the total length of the proposed route. In analyzing the stretch of highway involved, Mr. Dunn compared it with similar highway sections throughout the state for its accident frequency record. He found that each year there was a segment along the proposed route which appeared as a high accident segment area. He added these up to get the total length of high accident highway and got a figure that was 13% of the total route. Though the directive considered a minimum of 15% as disqualifying, Mr. Dunn concluded that 13% was close enough to qualify. The figure arrived at was not the required 15%, however. Mr. Dunn also considered that Highway safety consideration which read: d. The route does not provide a minimum passing sight distance of one-half mile at a maximum of three mile intervals. To qualify as a safe segment, there must be passing areas with a 1/2 mile sight distance, within 3 miles of each other. This road does not comply with that criterion. Mr. Dunn made field measurements of the route in question and found that heading westbound, the first passing zone started at mile 1.3 and ended at mile 1.8; the second started at mile 2.4 and ended at mile 2.5; and the third started at mile 4.1 and ended at mile 4.8. After that, westbound, there were no more 1/2 mile passing zones within the 3 mile maximum separation. Evaluating that stretch, while the 1.3 - 1.8 segment is 1/2 mile in length, it is not within 3 miles of the next qualifying passing segment. The same can be said for zone 4.1 - 4.8. Passing segment 2.4 - 2.5 is no good because it is not 1/2 mile in length. Looking at the eastbound route, there is one qualifying passing zone, between mile .4 and mile 1.0 and one between mile 3.8 and mile 4.3, but there are no more 1/2 mile passing zones within 3 miles of each other, so, in his opinion, the eastbound route does not qualify, either. Sometime later, Mr. Dunn measured the highway again based on information presented to him that the route had been re-striped. His second evaluation indicated the situation is now worse that it was before since fewer areas are now striped for passing. A 1989 report of the Transportation Research Board of the National Research Council, supports the method of evaluation Mr. Dunn used here. It increases the minimum passing distance to 3040 feet, a distance much greater than the 2640 feet, (1/2 mile) utilized in the Department's criteria. In addition, the Manual on Uniform Traffic Control Devices, published by the Federal Highway Administration, supports a 900 foot passing distance for passenger cars passing passenger cars. That's a much shorter distance than is needed for cars passing large trucks. Mr. Dunn concluded that taken alone, the passing distance rejection criteria would have been enough to disqualify the Petitioner's application, and when it was considered along with the close issue of the high accident percentage, he was satisfied that rejection was clearly appropriate. However, he did not make any recommendation to his supervisor as to what should be done with this application. He merely reported his findings to his supervisor, Mr. Buser, who made the decision to deny approval. Mr. Buser has serious doubts was to whether the intersection of State Road 50 and I-75 is a trouble spot. The high number of accidents utilized by Mr. Dunn in his analysis all took place at or near the intersection, a point argued by Mr. Gay. Mr. Buser is of the opinion that even if that intersection is not a trouble spot, the Department could prohibit tandem trailer trucks from exiting the interstate there in any case. This has not been done, however. According to Petitioner's representative, Mr. Gay, the requirement to break down the tandem rigs and tow them individually over the route to the terminal creates additional traffic and a resultant increased risk of accident. It also requires increased fuel usage, utilizes increased mileage, and results in increased environmental pollutions. Costs increase, wear to the equipment increases and the result is a loss in productivity. Allowing tandems to traverse the route to the terminal intact would, he claims, reduce traffic and avoid the other undesirable consequences he cited. No doubt it would. On May 13, 1991, Mr. Gay covered the route from I-75 to the terminal. He got behind a truck at I-75 and by the time they got to the first passing zone, the truck was doing 55 mph in a 55 mph zone. After that, there was no reason to pass, since 55 mph is the maximum speed permitted. This presupposes that all drivers observe the speed limit. Travel on the highways of this state show this to be an unjustified presumption. On May 20, 1991, he repeated the experiment and followed a truck to the first passing zone, by which time he was going 49 mph. These two experiments do not have major evidentiary value. Mr. Gay also noted some other pertinent facts regarding permitted activities on State Road 50, which went uncontradicted by the Department. Mobile homes up to 85 feet in length may be towed by a tractor; trailers up to 57.6 feet in length with a 12 month permit, (when the tractor is added, the total length is 68.6 feet); large boat haulers are allowed; and tandem trailers for household movers are allowed anywhere. Only tandem long haulers are not allowed on highway 50. These tandems trailers are 28 feet long each, with a 4 foot dolly between them. When a tractor is added, the total length is 71 feet, which is 2 1/2 feet longer than a large tractor and trailer. In light of the above, Mr. Gay contends that since all these other units are allowed, his should be allowed as well. He admits, however, that mobile homes and other oversize loads generally have escort vehicles preceding and following. He also recognizes that the handling characteristics of the tandem rig are different than those of the single unit trailer. Nonetheless, based on his research, he contends there are sufficient passing zones all along the route to make it safe. State guidelines, however, indicate to the contrary. Nothing above is intended to indicate that Petitioner is operating other than in a satisfactory manner. In its most recent rating by the United States Department of Transportation, the company was awarded a satisfactory evaluation. In addition, there is no doubt that numerous commercial enterprises served by the Petitioner would consider the opportunity to carry more cargo beneficial to their operations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that if such action is consistent with then existing legislation, the Petition by Consolidated Freightways, for a tandem trailer route over State Road 50 from I-75 to its terminal near Brooksville, Florida be denied. RECOMMENDED this 11th day of July, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS - 58 Tallahassee, Florida 32399-0450 Andrew J. Gay, Jr. Safety Supervisor Consolidated Freightways 5625 Carden Road Orlando, Florida 32810 Ben G. Watts Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel D.O.T. 605 Suwannee Street Tallahassee, Florida 32399-458
The Issue The issue for determination is whether either of the proposed transmission line corridors for the proposed Lake Agnes-Gifford 230 kV transmission line comply with the criteria in Section 403.529(4), Florida Statutes, and if so, which of those corridors has the least adverse impacts with respect to the criteria in Section 403.529(4), Florida Statutes, including cost. If one of the corridors proper for certification is determined to have the least adverse impacts, the issue is whether certification of that corridor should be approved in whole, with modifications or conditions, or denied. See § 403.529(4) and (5), Fla. Stat. If the two corridors are found to be substantially equal in adverse impacts regarding the criteria in Section 403.529(4), Florida Statutes, including costs, the Siting Board shall certify the Joint Applicants' Preferred Corridor. See § 403.529(5)(c), Fla. Stat.
Findings Of Fact Based upon all of the evidence the following findings of fact are determined: Parties The TLSA establishes TECO, Progress Energy, and the Department as parties to this proceeding, and the following became parties upon their timely filing of a notice of intent to be a party, which each has done: Florida Department of Transportation (DOT), Department of Community Affairs, and the Southwest Florida Water Management District (SWFWMD). See § 403.527(2), Fla. Stat. The following agencies did not participate in the proceeding and did not file a notice of intent before the thirtieth day prior to the certification hearing and each one is deemed to have waived its right to be a party: the PSC; the Florida Fish and Wildlife Conservation Commission; the Department of Agriculture and Consumer Services, Division of Forestry; Osceola County; Polk County; Reedy Creek Improvement District; Department of Health; Department of State, Bureau of Historic Preservation; East Central Florida Regional Planning Council; and Central Florida Regional Planning Council. See § 403.527(3), Fla. Stat. Orange County, Orlando Utilities Commission (OUC), and the SFWMD (during the public comment portion of the hearing only) appeared at the hearing. Pursuant to Section 403.527(2)(c)3., Florida Statutes, any person whose substantial interests are affected and being determined by the proceeding shall be parties to the proceeding upon the filing of a notice of intent to be a party. By stipulation of the parties, having filed a notice of intent to be a party or a petition to intervene, OIC, OUC, Blackwater Associates, Ltd., and Mountain Funding, LLC, are parties to the proceeding without the need to introduce evidence as to substantial interests affected and being determined by the proceeding. The Corridors Proper for Certification The Applicants' Preferred Corridor exits the existing Lake Agnes substation in northeastern Polk County and extends east-northeast approximately 18.9 miles within, adjacent to, or in proximity to the OUC McIntosh-Taft transmission line right- of-way (ROW), which generally runs parallel to Interstate 4 (I-4), across Polk and Osceola Counties. It then turns north and crosses Loughman Road (Polk County Road 54, now known as Ronald Reagan Boulevard), Old Lake Wilson Road, and I-4, and continues north along the Daniel Webster Western Beltway, also known as State Road 429 (SR 429), co-locating in the SR 429 ROW, for approximately 8.6 miles. The Preferred Corridor then turns west and exits the SR 429 ROW, just north of Western Way and enters into PEF's existing easement, crossing Hartzog Road into the planned Gifford substation in southwestern Orange County. The OIC Alternate Corridor is designed to avoid the western edge of the OIC development in Osceola County and commences at the Applicants' Preferred Corridor 2,000 feet south of Funie Steed Road/Oak Island Road on the west side of SR 429, where it turns northwest and proceeds approximately 2,000 feet, and then turns northeast and proceeds approximately 2,000 feet, in an approximate horseshoe shape, to rejoin the Applicants' Preferred Corridor along SR 429. A series of aerial photographs showing both proposed corridors is found at Applicants' Exhibit 21; a map showing both proposed corridors is also found at Department Exhibit 3, page 2. The Application Project Description An electrical transmission line is designed to transport large amounts of electrical power from a generating facility or substation to one or more substations. At the substation, the electricity voltage can be either increased or reduced for further transport or for distribution directly to end users. The Applicants are seeking certification of their Preferred Corridor between the existing Lake Agnes substation and the planned Gifford substation, within which the Applicants will ultimately construct the transmission line on a narrow ROW. Once all property interests in the ROW are acquired, the boundaries of the certified corridor will shrink to the typical width of the 25 to 100-foot wide ROW. In some cases, the ROW will be co-located with an existing transmission ROW that is 145 feet wide. The Project is a joint venture between the Applicants. Of the approximately 27.5 miles of the proposed Lake Agnes- Gifford Line, approximately 10.5 miles are in TECO's service territory and approximately 17 miles are in PEF's service territory. The objectives for the Project are to provide a 230 kV electrical path that connects the existing Lake Agnes substation to the planned Gifford substation, providing a reliable path for the transmission line and reducing the impacts to the community and the environment while maintaining the integrity of Florida's transmission grid. Need for the Line The PSC determined that a new 230 kV transmission line between the existing Lake Agnes substation and the planned Gifford substation is needed, taking into account the need for electric system reliability and integrity and the need to provide abundant, low cost electrical energy to assure the economic well-being of the citizens of the State. The objectives of the Project are to serve the increasing electrical load in the region, to maintain reliability of electrical service within the region, and to minimize future overhead exposure outages within the regional transmission system. The PSC found that the existing Lake Agnes substation and the planned Gifford substation constitute the starting and ending points for the proposed line. The PSC noted that the additional transmission capacity is needed to be in service by June 2011. The PSC also recognized that the Siting Board will make the final determination concerning the route selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the transmission line will be a single-shaft tubular steel or spun concrete structure, with the capability of accommodating an additional 230 kV circuit. The poles are proposed to range in height from 85 feet above grade to 175 feet above grade, with the conductors framed in a vertical configuration. Three conductor phases will be used, and each of the three conductors is anticipated to be a bundled 954 Aluminum Conductor Steel Support/Trapezoidal Wire. The conductor is 1.08 inches in diameter with a weight of approximately 1.23 pounds per foot. There will also be a smaller overhead ground wire to provide lightning protection for the transmission circuit. The maximum electrical current rating is 3,000 amperes. The open span length between structures will typically vary between 500 and 1,000 feet, depending on site-specific conditions. Both pole height and span length may vary to accommodate various site-specific conditions that may be encountered, to take advantage of the terrain, to potentially address community concerns, and to avoid environmentally sensitive areas. Existing roadways, access roads, and structure pads will be used for construction and maintenance access to the transmission line wherever practicable. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Where constructed, the typical road top width will be 16 feet, with a 2-to-1 side slope, and a typical elevation of feet above the seasonal high water line. Structure pads will have variable sizes but are typically 75 feet by 150 feet. The structure pads are designed to provide a dry, stable surface for staging material and for equipment setup. Culverts may be installed beneath access roads and structure pads with the specific design reviewed by the appropriate regulatory agencies. The design will be similar to previously approved designs. The proposed design of the transmission line complies with good engineering practices. It will be designed in compliance with all applicable design codes and standards, including the North American Electrical Reliability Corporation's standards, the National Electrical Safety Code, the noise ordinances of Polk, Orange, and Osceola Counties, the Department's regulations on electric and magnetic fields, the Florida Department of Transportation's Utility Accommodation Manual, the standards of the American Society of Civil Engineers, the Institute of Electrical and Electronics Engineers, the American Society of Testing and Materials, the American Concrete Institute, and the American National Standards Institute, the requirements of applicable regulatory agencies, as well as the Applicants' own numerous transmission design standards. There are no applicable designs or standards with which the transmission line will not comply. Transmission Line Construction The initial phase of construction is to survey and clear the ROW. Because much of the length of the corridor is co-located, that is, grouped or placed side by side, with existing roads and utility facilities, the need for clearing has been minimized. Where existing ROW widths are insufficient for placement of the transmission Line or where the transmission line will go cross-country, additional clearing will be necessary. Upland areas will be cleared to ground level. In forested wetlands, the Applicants have committed to use only restrictive clearing methods. Restrictive clearing will be used in wetlands to clear vegetation from the transmission line centerline to 50 feet on each side of the outer conductors and in work areas approximately 64 feet by 150 feet around structure sites. In wetland areas, low-growing herbaceous vegetation can remain within the ROW; stumps in the area beyond 20 feet on either side of the outer conductors will be left in place to preserve the root mat. During clearing, best management practices will be utilized to control erosion. After the ROW is cleared, any necessary access roads and structure pads will be constructed. The Applicants have committed to use existing access roads and public roads for access to the transmission line to the extent practicable. Where existing access is not available, the Applicants have committed to construct access roads and structure pads in a manner which reduces or eliminates adverse impacts to on-site and adjacent wetlands to the extent practicable. The next phases of construction involve the physical transmission line construction, including material hauling and spotting, pole setting and framing, and conductor stringing activities. The newly-constructed structure pads are used to provide a stable and dry platform for the material staging and equipment. The foundations are constructed. The pole materials and other materials will be hauled to each specific structure site. The pole sections will then be jacked together on the ground. The insulators and hardware will then be framed up on the ground. Next, the top pole section will be lifted by crane and placed on the foundation base that was previously set. Poles will typically be installed 30 to 50 feet below ground. The conductor stringing activities occur next. Reels of wire and wire tensioning equipment will be brought to the job site and set up at dead-end locations. The construction crew will install stringing blocks or pulleys on each structure where the conductor will be pulled through. Once the conductors are pulled in, the conductor will be secured at the dead-end locations, and the wires will be sagged and tensioned appropriately to maintain vertical clearances. Finally, the conductor is secured to the insulator attachment and the pulleys and blocks are removed from each structure. The final stage of construction is the cleanup stage. This involves a final inspection of the area to remove the silt fences and hay bales, to clean up excess spoils from the foundation excavations, to repair or replace fencing, and to replace and secure gates. Throughout construction, in areas where soil is disturbed, sedimentation management techniques, such as the use of silt screens and hay bales, or other best management practices, will be employed as necessary to minimize potential impacts from erosion and sedimentation. While each phase of construction will typically take up to two weeks at each structure location, the construction crew will normally be active for two to four days at a typical structure location. Construction for the entire project is expected to last approximately eighteen months. Methodology for Choosing Applicants' Preferred Corridor The Applicants established a multidisciplinary team to identify a corridor for the transmission line. The role of this team was to select a certifiable corridor based on an evaluation of environmental, land use, socioeconomic, engineering, and cost considerations. The multidisciplinary team was composed of experts in land use, engineering, and environmental disciplines and included representatives of the two utilities, outside legal counsel, and various consultants. Corridor selection methodologies were designed to be integrative of multidisciplinary siting criteria, regional and objective in decision-making, sensitive to social and environmental conditions, responsive to regulatory requirements, reflective of community concerns and issues, and capable of accurate documentation and verification. The team engaged in four major steps: to establish and define the project study area; to conduct regional screening and mapping; to select and evaluate candidate corridors using both quantitative and qualitative analysis; and finally to select the preferred corridor and identify the boundaries of that corridor. The team's work included a number of field studies, data collection, internal meetings, and meetings with the public. In defining the project study area, the multidisciplinary team identified the starting and ending points for the proposed transmission line, the locations of existing and planned substations in the area, the service boundaries of the utilities, and major roads in the area. In regional screening, the multidisciplinary team gathered data from a variety of sources to identify the different types of opportunities and potential constraints for siting a transmission line in the project study area. The multidisciplinary team developed a regional screening map, received in evidence as Applicants' Exhibit 24, which was prepared by the team using generally publicly available information including Geographic Information System (GIS) mapping. The map data were collected from various state agencies and local governments; information was gathered from the Florida Geographic Data Library (which distributes GIS data), the Florida Natural Areas Inventory, and most of the agencies involved in this proceeding. Various environmental and land use data were mapped as were existing infrastructure, archaeological/historical sites, and information gathered on roads, railroads, rivers, waterbodies, and the like. These represented primarily potential siting constraints or siting issues within a particular study area. The regional screening map was then used to identify route segments. Using the regional screening information, the multidisciplinary team selected corridor segments for consideration using quantitative analysis of the data gathered in the earlier stages of the process. The team then evaluated the corridor segments using both quantitative and qualitative criteria. The multidisciplinary team gathered data on siting opportunities and constraints within the study area and identified sixty line segments which could be assembled into a total of 1,187 potential candidate corridor combinations. Using a predefined set of quantitative environmental, land use, and engineering criteria, each corridor segment was measured for those resources. Using the weights developed by the team for each criterion, the weights were applied and tabulated for all candidate corridor segments. The candidate corridors were then ranked in order from best to worst based on the quantitative weighted scores. Once the rankings were performed, the five highest- ranked candidate corridors were subjected to further quantitative and qualitative evaluation. These candidate corridors were evaluated using predetermined qualitative criteria which do not lend themselves easily to quantification, such as safety and buildability. At the completion of the evaluation, the multidisciplinary team deliberated and ultimately chose a preferred corridor. Once the preferred corridor was selected, the multidisciplinary team defined the boundaries of the Applicants' Preferred Corridor. The team developed corridor boundaries of varying widths - - narrowing the corridor to avoid siting constraints or widening the corridor to take advantage of siting opportunities. Public Involvement in the Corridor Selection Process The Applicants engaged in an extensive public outreach program, the purpose of which was to inform and educate the public about the project and to invite public input from the public in the corridor selection process. The public outreach program included a series of direct mailings, surveys, open houses, extensive communications with regulatory agency officials and local elected officials, a project web page by both Applicants and the Department, a toll-free telephone number, and newsprint advertisements. There were two direct mailings as a part of the public outreach program. The first mailing went to approximately 7,900 customers with a map of the project area, a fact sheet, and an invitation to one of three open houses to be held. One open house was conducted in Polk County, while two open houses were conducted in Lake County in close proximity to the project area. Following the completion of the open house process, a second mailing was sent to approximately 6,000 customers identifying the preferred corridor chosen during the evaluation process. The names of the mailing recipients were obtained by identifying the properties located within certain distances in both directions from the centerline of the candidate corridors. The Property Appraisers' Offices of Polk, Osceola, Orange, and Lake Counties were a source for this information. The mailings were also sent to the homeowners' associations along the candidate corridors. The Applicants plan additional mailings if a corridor for the transmission line is certified. Additional informational open houses will also be held, and the transmission structures and potential locations will be identified at that time so the public can be informed. As part of the public outreach, the project also ran a series of five advertisements in local newspapers. The first series of advertisements notified the public of the three open houses: a newspaper advertisement was run on August 9, 2007, in The Lakeland Ledger, The Winter Haven News Chief, and The Orlando Sentinel for the first open house, and for the second and third open houses, a newspaper advertisement was run in The Lakeland Ledger, The Hometown Sun, The Winter Haven News Chief, The Report, West Orange Times, South Lake Press, Osceola News- Gazette, and The Orlando Sentinel. The second advertisements notified the public of the filing of the Application in December 2007 in The Tampa Tribune, The Lakeland Ledger, The Winter Haven News Chief, The Osceola- News Gazette, and The Orlando Sentinel. In March 2008, a third series of advertisements was run in The Orlando Sentinel, The Lakeland Ledger, and The Osceola News-Gazette to notify the public of the certification hearing. In June 2008, a fourth series of advertisements was run notifying the public of the rescheduling of the certification hearing; this advertisement was published by OIC in the Osceola County section of The Orlando Sentinel and this advertisement was published by the Applicants in The Lakeland Ledger and the Orange County section of The Orlando Sentinel. Finally, in August 2008, a notice regarding the second week of hearing was published in The Osceola News-Gazette, The Lakeland Ledger, and The Orlando Sentinel. Copies of the Application were maintained for public inspection during the certification process at the TECO offices in Tampa and Winter Haven and at the PEF offices in St. Petersburg, Lake Wales, and Lake Buena Vista. In addition, a copy of the Application was provided to the Hart Memorial Central Library and Ray Shanks Law Library in Kissimmee, the Orlando Public Library in Orlando, the Bartow Public Library in Bartow, and the Auburndale Public Library in Auburndale. The public outreach program was integrated into the corridor selection process. The public's input included information about anticipated road expansions and modifications as well as proposed residential developments in the project area. A few members of the public complained at the public hearing that they were unaware that a new transmission line corridor was being proposed until just before the hearing. However, the evidence shows that long before the certification hearing, information concerning this process was widely disseminated through advertisements, open houses, mass mailings, surveys, and meeting with regulatory agencies and local elected officials. See Findings of Fact 33 and 35-37, supra. Detailed Description of the Applicants' Preferred Corridor The Applicants' Preferred Corridor provides significant opportunities for co-location with other linear facilities such as roads, a natural gas pipeline, and other transmission lines. Co-location is an important benefit from the perspectives of engineering, ecology, and land use because it results in reduced impacts from the new transmission line, reduced ROW needs (or land acquisition needs) for the new line, reduced need for new clearing of land, reduced impacts to wetlands by co-locating with previously-disturbed areas, and reduced incremental impacts by co-locating with an existing linear facility. The Preferred Corridor exits the existing Lake Agnes substation and extends east-northeast approximately 18.9 miles within, adjacent to, or in proximity to the OUC McIntosh-Taft transmission line ROW, which generally runs parallel to I-4, across Polk and Osceola Counties. The Applicants' Preferred Corridor crosses Loughman Road (now known as Ronald Reagan Boulevard) and Old Lake Wilson Road. In this area, the land use includes water utility infrastructure in addition to I-4 and the OUC transmission line. Near the Lake Agnes substation, the land uses include some individual residences, as well as undeveloped land now used as pasture, citrus groves, and the Hilochee Wildlife Management Area. The land uses along I-4 and the OUC transmission line include residential development, undeveloped land north of Ronald Reagan Boulevard and south of Champions Gate and U.S. Highway 27, and the Hilochee Wildlife Management Area. In the area of U.S. Highway 27, there is considerable residential development and mixed-use development to the east and west of the Preferred Corridor. The ecological communities in this area include the Green Swamp Wildlife Management Area (also known as Green Swamp East Tract) north of I-4 and the Hilochee Wildlife Management Area. The ecological communities within the Preferred Corridor include residential areas, improved pastures, forested wetlands, pine flatwoods, and freshwater marsh. At the I-4 and SR 429 interchange, the Preferred Corridor turns and continues north along the Daniel Webster Western Beltway (SR 429), co-locating in the SR 429 ROW for approximately 8.6 miles. The land uses beginning at the I-4 and SR 429 interchange and northward to U.S. Highway 192 include residential communities on both the east and west sides of the Preferred Corridor, a large regional wastewater treatment facility on the west side of the Preferred Corridor, and undeveloped land, as well as resort, residential, and commercial development. Between U.S. Highway 192 and the planned Gifford substation, the land uses include a number of mixed-use and residential developments and golf course communities on the east and west side of the Preferred Corridor, as well as undeveloped land that is used for agricultural purposes and as part of wetland systems. The ecological communities in this area include the large Davenport Creek Swamp to the west of SR 429 and Reedy Creek to the east of SR 429; ecological communities within the Preferred Corridor include citrus, improved pasture, pine and pine oak forest, freshwater wetlands, and forested wetlands. The Applicants have agreed to adjust the eastern corridor boundary in the area south of Funie Steed Road/Oak Island Road and north of the southern boundary of the OIC residential development to be 55 feet east of the edge of the SR 429 ROW, rather than the originally-proposed 100 feet east of the edge of the SR 429 ROW. This adjustment was made at the hearing in response to concerns raised by OIC. By making this adjustment, the impact on the homes in the OIC community will be substantially diminished. The Applicants' Preferred Corridor then turns west and exits the SR 429 ROW just north of Western Way and enters into PEF's existing easement, crossing Hartzog Road into the planned Gifford substation. The land use in this area of the planned Gifford substation is predominantly additional utility infrastructure associated with wastewater treatment facilities. The width of the Preferred Corridor varies along its entire length to provide flexibility within the corridor to avoid or minimize impacts to such areas as large wetland areas, to provide flexibility at large road intersections, and to take advantage of existing land patterns, property boundaries, and linear facilities. OIC's Application for Alternate Corridor Selection of the OIC Alternate Corridor Mr. von Behren indicated in testimony that he and fellow board members of the OIC Community Owners Association selected the OIC Alternate Corridor. Unlike the Applicants' Preferred Corridor, the OIC Alternate Corridor was selected by OIC without any public outreach to obtain input from the community. OIC did, apparently, pay attention to the property interests of OIC. No OIC property is traversed by, or adjacent to, the OIC Alternate Corridor; however, the OIC Alternate Corridor bisects the existing, nearby residential Emerald Island development. Detailed Description of OIC Alternate Corridor The OIC Alternate Corridor is located in the Osceola County portion of the Project and commences at the Applicants' Preferred Corridor 2,000 feet south of Funie Steed Road/Oak Island Road on the west side of SR 429, where it turns northwest and proceeds approximately 2,000 feet, and then turns northeast and proceeds approximately 2,000 feet, in an approximate horseshoe shape, to rejoin the Applicants' Preferred Corridor along SR 429. The land uses and ecological communities within the SR 429 portion of the OIC Alternate Corridor were described above in Finding of Fact 42, supra. The land use of the OIC Alternate Corridor where it deviates from the Applicants' Preferred Corridor is undeveloped lands between two components of the Emerald Island residential development. The undeveloped lands include pasture, shrub and brushland, and undisturbed, undeveloped freshwater marsh and forested wetlands. A portion of these wetlands provide water treatment and storage functions for the Lake Tohokepaliga Water Authority and are held within a conservation easement and subject to a water use permit. Design and Construction of Transmission Line within OIC Alternate Corridor The design and construction techniques described in Findings of Fact 13 through 23 will be the same if the transmission line is constructed, operated, and maintained in the OIC Alternate Corridor. The parties have stipulated that the transmission line can be constructed, operated, and maintained in the OIC Alternate Corridor in compliance with the regulatory and industry standards listed in Finding of Fact 16. Agencies' Review of Corridors Proper for Certification and Resulting Determinations State, regional, and local agencies with regulatory authority over the Project reviewed the Application and submitted to Department reports concerning the impact of the Project on matters within their respective jurisdictions, as required by Section 403.526(2), Florida Statutes. Eleven regulatory agencies reviewed the Application, and nine reviewing agencies submitted reports on the Project, and have proposed Conditions of Certification. None of the agencies involved in the review process recommended that the proposed corridor be denied or modified. On May 30, 2008, the Department issued its Written Analysis on the Project, incorporating the reports of the reviewing agencies and proposing a compiled set of Conditions of Certification. The Department recommended that the Applicants' Preferred Corridor be certified subject to appropriate conditions of certification. Three reviewing agencies submitted supplemental reports on the OIC Alternate Corridor on or before June 20, 2008, again proposing Conditions of Certification. On July 7, 2008, the Department issued its Supplemental Written Analysis on the Project, including the OIC Alternate Corridor, incorporating the supplemental reports of the reviewing agencies and proposing a comprehensive set of Conditions of Certification. The Department did not recommend approval of the OIC Alternate Corridor, although it found the alternate corridor to be certifiable. In its Supplemental Written Analysis, the Department stated: Given the alternate corridor is likely to have a higher impact on the environment as well as additional cost, the Department does not find the alternate corridor to be superior to the preferred corridor, although either corridor is ultimately certifiable. Department Exhibit 3, page 4. Whether and Extent to Which Each Corridor Will Comply with Criteria in Section 403.529(4), Florida Statutes Ensure Electric Power System Reliability and Integrity The PSC decided that there are regional transmission system limitations in the I-4 corridor between Polk County and the greater Orlando area due to projected load growth in the 2008-2011 timeframe. The PSC found that the new 230 kV line is needed by June 2011 to preserve electric system reliability and integrity in order to: provide additional transmission transfer capability along the I-4 corridor to move electricity generated in the Polk County region to load centers in the Greater Orlando area in a reliable manner consistent with the North American Electric Reliability Council (NERC) and the Florida Reliability Coordinating Council (FRCC) and other applicable standards; b) serve the increasing load and customer base in the projected service area; and (c) potentially provide for another electrical feed via a separate Right of Way (ROW) path, thereby reducing the impact of a loss of the existing transmission facilities on a common ROW. The PSC further decided that the transmission line is the most cost-effective and efficient means to both increase the capability of the existing 230 kV network and serve the increasing load and customer base in the Central Florida region. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to provide electric power system reliability and integrity. Even so, the evidence shows that the Applicants' Preferred Corridor better provides electric power system reliability and integrity than does the OIC Alternate Corridor because the Applicants' Preferred Corridor will involve a shorter length of line and because the Applicants' Preferred Corridor will involve fewer maintenance issues and access issues. The Applicants' Preferred Corridor is shorter by 1,472 feet than the OIC Alternate Corridor. Unnecessary length added to a transmission circuit introduces further exposure to the forces of nature which could impact reliability of a transmission line. The greater the line length, the greater the exposure or risk to reliability. The OIC Alternate Corridor also involves additional maintenance issues and access issues not raised by the Applicants' Preferred Corridor. For example, there is a risk of flooding because some of the areas within the OIC Alternate Corridor are used for overflow for nearby retention ponds. This flooding could cause an access problem if emergency or routine repairs or maintenance were needed. Meet the Electrical Energy Needs of the State in an Orderly, Economical and Timely Fashion The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to meet the electrical energy needs of the State in an orderly, economical, and timely fashion. Nevertheless, the Applicants' Preferred Corridor better meets the State's electrical energy needs in an orderly, economical, and timely fashion than does the OIC Alternate Corridor because the OIC Alternate Corridor adds significant cost to the overall project and long-term costs associated with operation and maintenance. The OIC Alternate Corridor is estimated to cost $4.4 million more for construction than the Applicants' Preferred Corridor. The cost differential is caused by the need for more easement area, more access roads, the nature of the soils, the foundation requirements, the heavy angle requirements, and more wetlands mitigation of the OIC Alternate Corridor. For example, because the OIC Alternate Corridor is primarily located in wetlands, the OIC Alternate Corridor will require larger poles and larger pole foundations, which involve higher costs. In addition to the $4.4 million construction cost differential, the OIC Alternate Corridor will also involve additional maintenance costs throughout the life of the transmission line because there will be a higher cost and effort required for vegetation management and access road maintenance in the OIC Alternate Corridor than will be required for the Applicants' Preferred Corridor. Comply with the Applicable Nonprocedural Requirements of Agencies Construction, operation, and maintenance of the transmission line within either the Applicants' Preferred Corridor or the OIC Alternate Corridor will comply with applicable nonprocedural requirements of agencies. Electrical and Magnetic Fields The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in compliance with the Department's standards for Electric and Magnetic Fields in Florida Administrative Code Rule Chapter 62-814, which limit the electric and magnetic fields associated with new transmission lines. The Applicants propose to use four different configurations for the transmission line depending upon the location. The options include a 230 kV single circuit on a 100- foot ROW, a 230 kV single circuit on the 185-foot ROW including the existing OUC McIntosh-Taft 230 kV line, a 230 kV single circuit roadside, and a 230 kV single circuit roadside with an additional 35-foot easement including the existing Boggy Marsh- Gifford and Four Corners-Gifford 69 kV lines. For each of these configurations, the Department's rule requires that the electric and magnetic fields (or energy forces) within the ROW and at the edge of the ROW be calculated to ensure compliance. The electric field is a field that is generated by voltage of a conductor, expressed as a kilovolt meter (kV/m). The magnetic field is a field produced by the current traveling along the conductor, expressed in milligauss (mG). Those portions of Florida Administrative Code Rule Chapter 62-814 that are applicable to this Project establish maximum values for electric and magnetic fields. Compliance with the electric and magnetic field requirements was calculated for each of the configurations that may be utilized for the Project. The results were then compared to the requirements of Florida Administrative Code Rule 62-814.450(3). The maximum expected values from all configurations for the electric fields and for the magnetic fields are all below the values set forth in the rule. The maximum voltage and current that is anticipated for the line during its life are used in making the calculations. However, it is highly unlikely that this condition would occur. It is anticipated that the maximum condition would occur less than five percent of the time while the transmission line is operating. In order to operate at the maximum condition, the conductor must be operating at its maximum temperature (which requires an extreme weather condition), and there would also need to be some type of system disturbance (such as an outage in the region). Levels for electric fields will be less at the normal operating levels and magnetic fields about fifty percent less. The levels of electric and magnetic fields from the transmission line are similar to the levels that would be expected to result from common household appliances. Noise Transmission lines can generate audible noise as a result of build-up of particles on the conductor. During periods of fair weather dust can collect on the conductor and that may cause low levels of audible noise. When rain is experienced, the dust is washed off but replaced with water droplets on the conductor that create a condition that results in slightly higher levels of audible noise. The noise levels experienced during rainfall events are temporary, and the noise is reduced as soon as the water droplets evaporate from the conductor. The expected levels of noise are generally calculated using an industry-standard software program called the Bonneville Power Administration Field Effects Program. The calculations performed for the transmission line show that the maximum audible noise levels at the edge of the ROW would range up to a high of 37.6 dBA. This noise level is similar to the upper noise level in a library, and less than the living room noise in a suburban area. Also, during rainfall events, when the maximum noise levels are expected, the rain will tend to mask the sound from the transmission line. The calculated noise levels for the transmission line indicate that the noise levels that will be produced will not be a significant issue. Further, the calculated noise levels will comply with all applicable audible noise ordinances in Polk, Osceola, and Orange Counties. Be Consistent with Applicable Local Government Comprehensive Plans, If Any The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to be consistent with applicable provisions of local government comprehensive plans, if any. The Polk County Comprehensive Plan identifies electric transmission and distribution facilities as a permitted use in all land use categories. The Osceola County Comprehensive Plan and the City of Auburndale Comprehensive Plan identify utility and public facilities as allowable uses in all land use categories provided that the TLSA standards and other regulatory standards are met. The Orange County Comprehensive Plan identifies utility and public facilities as allowable uses in all land use categories. The Reedy Creek Improvement District Comprehensive Plan identifies that utility corridors are allowable uses where no other alternatives are feasible. The PSC found that the Applicants considered four alternatives to the Project and none were feasible. Further, the Applicants considered a number of alternatives in the corridor selection process and considered the OIC Alternate Corridor and selected the Applicants' Preferred Corridor as the best choice among the various corridors. See Finding of Fact 102, infra. After certification of this project, the transmission line will be located and constructed entirely within established rights-of-way, including easements acquired after corridor certification. Construction of transmission lines on such established ROWs is excepted from the definition of "development" in Section 163.3164(6), Florida Statutes. Accordingly, the provisions of the local comprehensive plans related to "development" that have been adopted by the local governments crossed by the transmission line are not applicable to this project. No variances or exemptions from applicable state or local standards or ordinances are needed for the project. Effect a Reasonable Balance Between the Need for the Lake Agnes-Gifford Transmission Line as a Means of Providing Abundant Low-Cost Electrical Energy and the Impact Upon the Public and the Environment Resulting from the Location of the Lake Agnes-Gifford Transmission Line and Construction, Operation, and Maintenance of the Transmission Line The Applicants' Preferred Corridor was chosen using a multidisciplinary team of experts to minimize impacts upon the public and the environment. Impacts Upon the Public The land uses found in the area of the Applicants' Preferred Corridor and the OIC Alternate Corridor are compatible with transmission lines; there are many locations throughout Florida where transmission lines similar to the proposed transmission line coexist with these land use patterns. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor are appropriate locations for a transmission line from a land use perspective, but the Applicants' Preferred Corridor is a better location in relation to impacts upon the public. aa. Co-location with Existing Linear Facilities The Applicants' Preferred Corridor is co-located with existing linear facilities for nearly its entire length. In choosing among the candidate corridors considered by the multidisciplinary team, the Applicants' Preferred Corridor was chosen with reference to maximizing co-location with existing linear features, including transmission lines, highways, and natural gas pipelines. Co-location is advantageous because the existing linear facilities often provide existing access, minimizing the need for new access roads, the need for new clearing, and the need for further encumbrance of additional land. By following these existing linear features, the Applicants' Preferred Corridor conforms to existing and future development patterns and minimizes intrusion into surrounding areas. Further, there is less of an incremental difference in impacts from adding a linear facility to an area of existing linear facilities than from adding a linear facility to a presently unencumbered area. In contrast, the OIC Alternate Corridor follows an area of undeveloped land and thus does not offer the advantages of co-location. bb. Impacts upon Residential Development In choosing among the candidate corridors, minimizing the number of homes within the corridor was a significant criterion considered by the multidisciplinary team. It is an advantage for the OIC Alternate Corridor over the Applicants' Preferred Corridor that the OIC Alternate Corridor has fewer homes within the corridor than does the Applicants' Preferred Corridor. However, it is a disadvantage for the OIC Alternate Corridor that it bisects two components of the Emerald Island residential development. The impacts of the Applicants' Preferred Corridor on OIC homes is minimal. The "residents" of the OIC development are predominantly short-term renters or vacationers who will be in proximity to the transmission line for only a few weeks' duration. (Many of the homes are owned by citizens of the United Kingdom who rent the properties to vacationers visiting the area. There are, however, three permanent year-round residents in the development, including Mr. von Behren.) The Applicants have adjusted the eastern corridor boundary to no more than 55 feet from the edge of the SR 429 ROW in the vicinity of the OIC development. Further, the Applicants have committed that, if the Applicants' Preferred Corridor is certified, there will be no existing homes within the eventual transmission line ROW. PEF's engineering expert testified that the Applicants' preferred location for the transmission line within the Applicants' Preferred Corridor in the vicinity of the OIC development is to be on the west side of SR 429, which would not impact any OIC homes. If that location is not feasible, the Applicants' preferred location for the transmission line within the Applicants' Preferred Corridor in the vicinity of the OIC development is to be on the east side of SR 429, with poles located 15 feet inside the DOT's ROW for SR 429, in which case the only property rights that the Applicants would need outside the DOT ROW would be no more than 30 feet for an overhanging aerial easement and access rights. These commitments by the Applicants mean that there are only three or four properties within OIC where the Applicants might need an aerial and access easement for the transmission line; the pole would be no nearer to those homes than approximately thirty feet. This evidence demonstrates that there will be very little impacts on the OIC residential development. Further, OIC raised concerns about existing vegetation with the OIC residential development. Those concerns are misplaced because PEF's engineering expert explained that the Applicants would avoid any vegetation that exists outside the SR 429 ROW, and that any vegetation that would be replaced would be within the SR 429 ROW. cc. Minimizing the Length of Transmission Lines in the Landscape The length of a transmission line in the landscape is important because it is a land use consideration to minimize the amount and length of linear facilities in the landscape. The shorter the linear facility, the less potential effects of the linear facility. This is an advantage for the Applicants' Preferred Corridor because it is shorter than the OIC Alternate Corridor. dd. Impacts to Conservation Lands The Applicants' Preferred Corridor has the advantage of avoiding conservation lands while the OIC Alternate Corridor in contrast crosses lands held for conservation purposes. The conservation lands include a parcel held for use by Osceola County as a stormwater retention and conveyance system, a parcel held by Emerald Island Resort as a conservation area, a parcel owned by the Lake Tohopekaliga Water Authority held in a conservation easement by SFWMD, and a parcel subject to a water use permit. The conservation easement expressly prohibits the construction of utility infrastructure within its boundaries. Although SFWMD's conservation easement could be amended by the underlying property owner to allow for crossing by the OIC Alternate Corridor, SFWMD prefers the Applicants' Preferred Corridor because it better avoids and minimizes impacts to wetlands. ee. Impact on Property Values At the public portion of the certification hearing, several members of the public testified in opposition to the Applicants' Preferred Corridor. A number of those testifying, including Mr. von Behren, expressed concern about the impact of the Project on property values, and the desire to have the Applicants seek another route. Although these concerns are genuine, the impact on property values is not a subject for consideration at this hearing. Impacts Upon the Environment The transmission line, whether constructed, operated, and maintained in the Applicants' Preferred Corridor or the OIC Alternate Corridor, will comply with all applicable state, regional, and local nonprocedural regulations, including the wetland regulatory standards applicable to such projects. The Applicants have committed to a variety of Conditions of Certification that require extensive measures to eliminate or minimize the potential environmental impacts. For example, within forested wetlands, the Applicants have committed to using restrictive clearing practices, removing only tall- growing trees and leaving understory (the lower layer of plants growing under a higher layer of plants) and root mats in place within the ROW. The Applicants have also committed to the use of existing access roads through wetland areas to the greatest extent practicable, and the construction of at-grade access roads where conditions allow. In addition, the Applicants have committed to compensatory mitigation to offset the loss of wetland functions, if any. Further, if the transmission line is constructed in either the Applicants' Preferred Corridor or the OIC Alternate Corridor, the transmission line design will allow for variable span length to avoid wetland impacts by spanning those areas upland-to-upland. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor are appropriate locations for a transmission line from an environmental perspective, but the Applicants' Preferred Corridor is a better location in relation to impacts upon the environment. aa. Impacts to Vegetative Communities, Including Wetlands The Applicants' Preferred Corridor will have minimal environmental impact. Construction of the line within the Applicants' Preferred Corridor will cause minimal adverse ecological impacts for several reasons: regional screening was conducted to minimize inclusion of areas of ecological constraints, such as eagles' nests, undisturbed wetland habitat, protected species habitat, and forested areas; the width of the corridor provides flexibility when the final ROW is selected to avoid ecological resources within the corridor; because of the corridor's co-location with existing rights-of-way, there is a prevalence of developed areas within the Applicants' Preferred Corridor; where the Preferred Corridor traverses areas of natural vegetation, it does so largely in previously-disturbed areas, minimizing the amount of needed clearing and new access roads; and wetlands will be avoided by spanning them to the extent practicable. With respect to the Green Swamp, an area of 870 square miles, the Applicants' Preferred Corridor minimizes impacts by co-locating with the OUC transmission line ROW. Other candidate corridors considered by the multidisciplinary team would have involved clearing of undisturbed forested wetlands, including areas of mature cypress domes. In contrast, the transmission line will have more adverse environmental impacts if constructed, operated, and maintained in the OIC Alternate Corridor than the Applicants' Preferred Corridor because of the prevalence of undisturbed wetland habitat within the OIC Alternate Corridor as compared to the previously-disturbed habitat along SR 429 within the Applicants' Preferred Corridor. Construction of the transmission line within the OIC Alternate Corridor would result in greater forested and herbaceous wetland impacts and require greater alteration to previously-undisturbed areas. bb. Protected Species The Applicants have committed to a number of conditions of certification protecting species whether the Applicants' Preferred Corridor or the OIC Alternate Corridor is certified. For example, the Applicants have agreed to conduct pre-clearing surveys of the final ROW for protected species, and to consult with the Florida Fish and Wildlife Conservation Commission, the United States Fish and Wildlife Service, and the Department if any species are located within the ROW to address avoidance and mitigation measures. Impacts to listed plant and animal species from construction of the transmission line within the Applicants' Preferred Corridor are expected to be minimal because the corridor includes primarily previously-impacted areas which have limited suitability as protected species habitat and because of the Applicants' commitment to conduct pre-clearing species surveys. The Applicants' Preferred Corridor avoids or minimizes intrusion into the undisturbed wildlife habitats due to its co- location with existing linear facilities for almost its entire length. The current condition and relative value of function of the habitat within the Applicants' Preferred Corridor is generally minimal from a wildlife ecology and protected species perspective because it has been previously-disturbed through construction of major roadways. In the areas of undisturbed lands, the Applicants' Preferred Corridor is co-located with existing utility rights-of-way including a transmission line and natural gas pipeline that already disturb the area. The gopher tortoise is a protected species that has been documented to be located within the Applicants' Preferred Corridor and the OIC Alternate Corridor. Gopher tortoise habitat typically is not compromised by construction of transmission lines due to the relatively small ground footprint of disturbance and the maintenance of low vegetation within the ROW, which is suitable habitat for gopher tortoises. Thus, the transmission line is not expected to have significant impact on gopher tortoises. The impacts to protected species will be greater in the OIC Alternate Corridor than the Applicants' Preferred Corridor. The Applicants' Preferred Corridor includes two known locations of protected species; transmission lines are compatible with the habitat for these species. In addition, the habitat within the Preferred Corridor is not suitable for most protected species because it is previously disturbed where vegetation communities have already been cleared and converted to roadside ROW. In contrast, the OIC Alternate Corridor consists predominantly of undisturbed wetlands, which is habitat that is highly suitable for a number of protected species. Although there are no Florida Natural Areas Inventory-documented locations of protected species within the OIC Alternate Corridor, there are four field-documented protected species within the OIC Alternate Corridor. Further, the habitat is highly suitable for protected species because it is largely undisturbed, much is held in conservation easement, and it includes forested and herbaceous wetlands. cc. Floodplains The 100-year floodplain is an area, regulated by the Department and the water management districts, that demarks the area that would be inundated in severe flood events. The Applicants are required to provide compensating floodplain storage to offset the loss, if any, of floodplain storage caused by fill needed for the transmission line; this requirement is designed to avoid any flooding of adjacent properties that might be caused by the Project. Because of this requirement, one of the goals in corridor selection was to minimize impacts to the 100-year floodplain. Only a small portion of the Applicants' Preferred Corridor is located within the 100-year floodplain, while a large portion of the OIC Alternate Corridor is located within the 100-year floodplain. Further, the portions of the Applicants' Preferred Corridor that are located within the 100- year floodplain are located in areas that have been previously disturbed by the construction of SR 429 and would likely not involve significant further impacts to the 100-year floodplain. dd. Archaeological and Historical Resources The Applicants utilized information from the Department of State, Division of Historical Resources (DHR), to identify potential archeological and historical resources within the Applicants' Preferred Corridor. A number of locations were identified as a result of the information and the Applicants have committed, through the Conditions of Certification, to perform a cultural resources survey when the actual ROW is located. If any artifacts are discovered, the Applicants will notify the Department and DHR and consult with DHR to determine appropriate action. There is no difference between the impacts to cultural resources of the Applicants' Preferred Corridor and the OIC Alternate Corridor. The Need for the Lake Agnes-Gifford Line as a Means of Providing Abundant Low-Cost Electrical Energy The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to meet the need for the transmission line as a means of providing reliable, economically efficient electric energy as determined by the PSC. The PSC determined that the proposed line is needed taking into account the factors set forth in Section 403.537, Florida Statutes. The PSC found that the Applicants evaluated four alternatives to the proposed transmission line. All of the alternatives were transmission modifications to the proposed ROW that used a portion of, or the entire existing, common ROW. The PSC accepted the Applicants' rejection of the alternatives primarily because of economic and reliability concerns. The PSC found that the proposed line will assure the economic well-being of Florida's citizens by serving projected new electric load in the region and improving the region's electric reliability by minimizing the region's exposure to single contingency events. Reasonable Balance Between the Need for the Lake Agnes- Gifford Line and the Impacts of the Line upon the Public and the Environment Expert witnesses in the fields of land use, engineering, and ecology with specializations in transmission line siting, permitting, design, and reliability have compared the corridors proper for certification and all concluded that the Applicants' Preferred Corridor effects a better balance between the need for the transmission line and the impacts of the line on the public and the environment from the perspective of their expertise than does the OIC Alternate Corridor. Conditions of Certification The transmission line can and will be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in compliance with the Conditions of Certification, which are found in the Department's Exhibit 3. The Conditions of Certification establish a post- certification review process through which the final right-of- way, access road, and structure locations will be reviewed by agencies with regulatory authority over the project. The Applicants have agreed to the Conditions of Certification to minimize land use and environmental impacts of the construction, operation, and maintenance of the transmission line. The parties agree that the Conditions of Certification are consistent with applicable non-procedural requirements of the state, regional, and local agencies with regulatory jurisdiction over the transmission line, and that such conditions should be imposed on the certification, if granted, for either of the corridors under consideration in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving Tampa Electric Company and Progress Energy Florida's Lake Agnes-Gifford 230 kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Department Exhibit 3. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas M. Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Lawrence N. Curtin, Esquire Holland & Knight LLP Post Office Box 810 Tallahassee, Florida 32302-0810 Carolyn S. Raepple, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Toni L. Sturtevant, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gary von Behren, President Oak Island Cove Community Owners Association 2872 Blooming Alamanda Loop Kissimmee, Florida 34747-2252 Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Allen G. Erickson, Esquire Assistant County Attorney Post Office Box 1393 Orlando, Florida 32802-1393 Tasha A. Buford, Esquire Young Van Assenderp, P.A. Post Office Box 1833 Tallahassee, Florida 32302-1833 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Ray Maxwell, District Administrator Reedy Creek Improvement District 1900 Hotel Plaza Boulevard Lake Buena Vista, Florida 32830-8438 Jo O. Thacker, Esquire Osceola County Attorney One Courthouse Square, Suite 4200 Kissimmee, Florida 34741-5440 Emily J. Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mitchell B. Kirschner, Esquire Mitchell B. Kirschner, P.A. 1515 North Federal Highway Suite 314 Boca Raton, Florida 33432-1953 Steven I. Silverman, Esquire Kluger, Peretz, Kaplan & Berlin, P.L. 201 South Biscayne Boulevard, Suite 1700 Miami, Florida 33131-4332 Ruth A. Holmes, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Phil Laurien, Executive Director East Central Florida Regional Planning Council 631 North Wymore Road, Suite 100 Maitland, Florida 32751-4229 Patricia M. Steed, Executive Director Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830-3931 Jennifer S. Brubaker, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Shaw P. Stiller, General Counsel Department of Community Affairs 2470 Centerview Drive Tallahassee, Florida 32399-2100 Laura Kammerer Bureau of Historic Preservation 500 South Bronough Street Tallahassee, Florida 32399-0250 Michael E. Duclos, Esquire Assistant County Attorney Post Office Box 9005, Drawer AT 01 Bartow, Florida 33830-9005 Kimberly C. Menchion, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2005.
The Issue Whether a permit should be granted for a public-at-grade rail/highway crossing by new rail construction 50 feet north of Seaboard Coast Line MP SVC 855, Ft. Green Springs Road, Hardee County, Florida, Section 0600-6605, State Road 663.
Findings Of Fact After the hearing was called to order the parties called for a recess and after the recess the following stipulation was agreed to: There is a need for the subject crossing to serve the applicant's mining operation. The new rail construction is needed to move rock from the mine to applicant's other plants. It was further agreed that the applicant, C. F. Mining Corporation, will Provide the installation of side mounted flashing lights and ringing bells, and advance warning disks with flashers and pavement markings as outlined in Part 8 of the Manual of Traffic Control Devices. The applicant, Hardee County, as a part of its overall road program will police the crossing and notify the applicant's mining corporation of any defective operation in the signalization. The permit would provide a way for an industrial spurline to come off the main track of Seaboard Coast Line Railroad across Fort Green Springs Road into the C. F. Mining Corporation plant. The Seaboard Coast Line Railroad did not appear at the hearing and made no objection to the granting of the permit. The need for the crossing has been established and proper precautions for public safety are planned.
Recommendation Grant the permit as Requested. DONE and ORDERED this 22nd day of November, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Philip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 David Ashby, Chief Engineer C. F. Mining Corporation Post Office Box 1849 Bartow, Florida 33830 Eugene R. Buzard, Esquire Seaboard Coast Line Railroad Company 500 Water Street Jacksonville, Florida 32202
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The Petitioner is MCI Telecommunications Corporation, whose business address is Suite 400, 400 Perimeter Center Terrace NE, Atlanta, Georgia 30346. The Respondent is State of Florida, Department of General Service, whose address is 614 Larson Building, 200 East Gaines Street, Tallahassee, Florida. The Intervenors are Microtel, Inc., whose address is 7100 West Camino Real, Suite 311, Boca Raton, Florida 33433, and United States Transmission Systems, whose business address is 320 Park Avenue, New York, New York 10022. MCI, Microtel, AT&T, Southland, and USTS are all interexchange carriers authorized by the Federal Communications Commission to provide, among other things, interstate WATS. MCI, AT&T, Southland, and Microtel are all interexchange carriers certified by the Florida Public Service Commission to provide, among other things, intermachine trunks and intrastate WATS. The interexchange carriers who participated in the November 5, 1987, negotiations were not advised prior to 9:00 a.m. on that day that the negotiations would consist of three rounds of price quotations with the prices quoted and each round being posted immediately on the board for review by the other carriers. The posting by the Division of Purchasing between 3:00 p.m. on November 2, 1987, and 3:00 p.m. on November 5, 1987, of a draft memorandum from William Monroe to Glenn Mayne was not a bid tabulation. The State of Florida provides a communications system to state agencies, local governments, and public school districts through the SUNCOM Network. The SUNCOM Network consists of switches, access lines, and transmission facilities such as Intermachine Trunks, Interstate WATS, and Intrastate WATS. On the SUNCOM Network, long distance calls from one SUNCOM user to another SUNCOM user are completed on IMTs. Intrastate WATS facilities are used to place in-state long distance calls from a SUNCOM user to a party not a member of the SUNCOM Network. Interstate WATS facilities are used to complete out-of-state long distance calls. The Division of Communications desired to migrate the data users of the SUNCON Network from an analog environment to a digital environment. In order to do that, there had to be changes to the SUNCOM switching facilities and changes to the transmission facilities. In 1984, a Request for Proposal (RFP) was issued for the switches. As a result of the RFP, the network went from 5 to 11 switches on December 1, 1986. The Division of Communications decided to utilize digital transmission facilities for both IMTs and Interstate WATS facilities on the newly configured network. In 1985, the Division of Communications negotiated a contract with MCI for the provision of the Interstate WATS. MCI made no protest to being awarded the contract by negotiation. AT&T was selected to provide the IMTs. The selection of AT&T and MCI was an interim measure to give the Division of Communications time to evaluate the transmission facilities for changes after the new network had stabilized. At the time of the final hearing, AT&T was the current provider for the IMTs and Intrastate WATS and MCI was the current provider for the Interstate WATS. On March 1, 1987, the Division of Communications and the Division of Purchasing sent a letter to seventeen suppliers of transmission facilities. The letter advised the suppliers that the Division of Communications was beginning an evaluation process to determine the viability of replacing some or all of the SUNCOM Network completion facilities with different suppliers. The suppliers were advised that a potential supplier did not have to service all routes or provide all facilities in order to be considered. Suppliers were requested to provide information concerning their transmission facilities. It was contemplated that the transmission facilities would be tested for approximately 90 days, during which time there would be consideration of reliability, maintainability, cost, and billing. The evaluation process also contemplated consideration of corporate viability and status, network typology, and references from existing customers similar in size to the State of Florida. The suppliers were cautioned that their participation in the evaluation process did not guarantee a contract and that it was possible that the evaluation process might not result in any contract. The suppliers were also advised that any contract would be negotiated. The March 18, 1987, letter is a request for information and was so considered by the Division of Communications and the Division of Purchasing. By April 9, 1987, the Department of General Services had received ten responses to the March 18, 1987, letter. A five member evaluation team was formed to review the April 9 responses from the suppliers, conduct the oral presentations, conduct the 90-day test and make recommendations. The evaluation committee was comprised of five employees of the Division of Communications. Division of Purchasing personnel did not actively participate on the evaluation committee because they wanted to remain impartial in the event the Division of Purchasing would later have to decide what method of procurement to use. Each potential supplier was scheduled for an oral presentation in late April or early May of 1987. Additional information about the proposals was obtained at those presentations. The suppliers were asked during oral presentation if their prices were open for negotiation. Ed Martinez of MCI said that MCI was open for negotiation. Of the carriers that survived the technical evaluation process, MCI had submitted the lowest price for all of the solicited telecommunications facilities and services. An in-service test of the ten suppliers was conducted from July 10 to September 30, 1987. One supplier, Lightnet, disconnected its transmission facility prior to the end of the test period. Robert Davis, chairman of the evaluation committee, used a numerical rating scheme to assist in evaluating the suppliers. The numerical point system was used as a way to make the evaluation process more objective. Additionally, when the evaluation was begun, the evaluation committee did not know whether contracts would be awarded through a formal acquisition process or through negotiation. The committee thought that an orderly ranking of the participants based on a rating scheme would be beneficial to Mr. Mayne in determining the method of acquisition. Mr. Mayne was unaware that a numerical point system was being used to evaluate the responses until he read the report prepared by the evaluation committee. On October 16, 1987, the evaluation committee issued the "Report on Alternate Suppliers for SUNCOM Network Transmission Facilities." The report outlined the evaluation process, presented the findings of the committee in the areas of pricing, billing, reliability-maintainability, corporate viability and general compliance by the suppliers, and made recommendations based on their findings. The evaluation committee concluded that, based on the prices submitted by the suppliers, it was possible for the state to reduce the cost of the operation of the network by over $368,000 per month. In considering the corporate viability of a supplier, the evaluation committee did not intend to conduct an indepth financial analysis. The evaluation committee wanted to determine whether the suppliers would have the ability to survive in a competitive environment for the contract period of three years. Both DGS' staff and MCI's financial analysis expert agreed that ITT, MCI, Microtel, AT&T and Southland were in a position to maintain their corporate viability for the contract period. The evaluation committee recognized that there was an opportunity to further reduce the cost of the network transmission facilities. The committee recommended that the IMTs, Interstate WATS and Intrastate WATS not be provided by one supplier. It was also recommended that Sprint, Digital Signal, and Lightnet be eliminated from further consideration. The report did not recommend specific suppliers. The committee recognized that if the point evaluation were used that the ranking would change as the result of further negotiations. They felt that if a decision was made not to use the point evaluation, then low cost would determine the suppliers. The report was presented to Glenn Mayne for his consideration. Based on his review of the report, Mr. Mayne determined that the State was currently paying far too much money for the transmission facilities; the State desired to have more than one supplier for the transmission facilities; and there was a group of potential alternate suppliers who could supply the State with transmission facilities which would be acceptable for the SUNCOM Network. As soon as Mr. Mayne became aware of the enormous potential savings to the State (and probably because of that awareness) things began to happen very quickly. A copy of the evaluation report was given to Bill Monroe. Mr. Mayne and Mr. Monroe discussed the report and Mr. Mayne expressed some concerns relating to the Division of Communications' need to migrate data signals to the network. Monroe asked that those concerns be put in writing. Mr. Mayne complied by memorandum dated October 28, 1987, in which he expressed his concerns relating to the discontinuance of Telpak and the Division of Communications' plans to migrate data to the voice network. The desire to address these concerns in the negotiations was due primarily to an AT&T proposal submitted in the late summer or early fall of 1987, which addressed these concerns. The Department had made no effort to obtain proposals similar to AT&T's from the other suppliers prior to requesting authority to negotiate from the Division of Purchasing. The Division of Purchasing deemed the October 28 memorandum to be the Division of Communications' formal request for the authority to negotiate. Mr. Monroe authorized the Division of Communications to negotiate contracts for the transmission facilities and services for the SUNCOM Network. The authorization to negotiate was granted because the providing of transmission facilities and services was a regulated portion of the telephone industry; the participants were limited to those which met Florida Public Service Commission guidelines for facility based operations; an indepth evaluation of the suppliers had been performed; and the delay incident to using any other procurement method would result in a substantial monetary loss to the State. The most significant factor in the decision to negotiate was the monetary loss which would result from delay. The authorization memorandum recommended that the negotiation be handled as a joint venture between the Division of Communications and the Division of Purchasing, and that the Division of Purchasing participate in development of the criteria for final selection of a supplier. Mr. Mayne discussed the method of negotiations to be used with Mr. Monroe and his staff. Based on his past experience with one-on-one negotiations, Mr. Mayne felt it would be fairer to put up everyone's prices on the board so that all suppliers could see each others prices. Mr. Mayne suggested that there be two verbal rounds of pricing and a final round in writing. Mr. Monroe concurred with Mr. Mayne's suggestion. It was felt this method of negotiations would result in better pricing for the State; could be done quickly and easily; and would reduce the chance of one supplier being favored over another. The intended decision of the Division of Purchasing to authorize the negotiation was posted in the Division of Purchasing beginning November 2, 1987, at 3:00 p.m. The posting was in the form of a post-dated, unsigned memorandum from the Division of Purchasing Director to the Division of Communications Director. Stamped at the bottom of the draft memorandum was the language required by Section 120.53(5), Florida Statutes, indicating that the failure to file a timely protest would constitute a waiver of Chapter 120, Florida Statutes, proceedings. In large letters at the top of this posting was the word DRAFT. Each of the ten suppliers was notified that the Division of Purchasing had authorized negotiations and that this decision would be posted beginning November 2 through November 5, 1987. On November 2, 1987, Cherrie McClellan, a purchasing specialist for the Division of Purchasing, called MCI's Ed Martinez to advise him that the authorization for the Division of Communications to negotiate for the procurement of the SUNCOM Network alternate suppliers would be posted from 3:00 p.m. November 2, 1987 to 3:00 p.m. November 5, 1987. Ms. McClellan was unable to reach Mr. Martinez and left the message on his recording machine. On November 3, 1987, Mr. Martinez called Ms. McClellan to confirm the message. She told him that the posting was for the authority for the Division of Communications to negotiate and she assumed that the Division of Communications would be contacting him. In giving the telephone notification to MCI, the Division of Purchasing did not specifically advise MCI that its failure to file a timely protest of the Division of Purchasing's decision would waive MCI's rights to proceedings under Chapter 120, Florida Statutes. On November 3, Mr. Martinez also called John Fain, a purchasing specialist supervisor with the Division of Purchasing. Mr. Fain advised Mr. Martinez that the Division of Purchasing had received a request for authority to negotiate from the Division of Communications, final negotiation could not begin until after the conclusion of the posting at 3:00 p.m. on November 5, 1987, and he did not know if there would be another posting. On November 2, 1987, Mohammed Amirzadeh Asl, an electrical engineer with the Division of Communications, called Ed Martinez between 2:00 and 3:00 p.m.; invited him to the negotiations on November 5; told him to bring his best prices for IMT routes and personnel who could make a decision; advised him he would have access during the negotiations to a phone but he had to use his credit card for any calls; and told him that DGS would be faxing him additional information concerning the negotiations. Mr. Amirzadeh also advised the other suppliers on November 2 of the negotiations and told them the same thing he had told Mr. Martinez. Mr. Martinez called Mr. Amirzadeh on November 3 and 4 with questions concerning the negotiations. On November 4, DGS faxed a memorandum to the suppliers concerning the criteria for the negotiations and the prices which had been quoted thus far to the Division of Communications. The memorandum advised the suppliers that preliminary discussions would start at 9:00 a.m. on November 5 at the Division of Communications and official negotiations would not start until 3:00 p.m. When Mr. Martinez, the MCI representative, came to the negotiations, he expected the Department to negotiate first with MCI to attempt to reach a mutually satisfactory agreement for the solicited telecommunications facilities and services, and he expected the Department to negotiate with other suppliers only if the negotiations with MCI were unsuccessful. These expectations were based on MCI's status as one of the incumbent suppliers, on the fact that the Department appeared to very satisfied with MCI's performance, and on the fact that MCI had submitted the lowest price proposals for all of the solicited telecommunications facilities and services in its April 9, 1987, submittal. These expectations were unwarranted. The negotiations began at 9:00 a.m. on November 5,1987. Glenn Mayne started out the negotiations by discussing the criteria which had been faxed to the suppliers on November 4. The suppliers were also given copies of the evaluation committee report. The suppliers were advised that there would be three rounds of negotiations The first two rounds would be preliminary. The last round of negotiation was to take place prior to 5:00 p.m. There were some assumptions that the suppliers were given to use in presenting their prices. The suppliers' prices were to be for one T-1 on each route, and the costs were to include access charges. Additionally, if there was any difference between the quoted and actual access charges the difference would be the responsibility of the supplier. The format used by the Division of Communications for the negotiations on November 5, 1987, was not normally used by the Department. The first round of pricing was at 11:00 a.m. Each supplier gave its price orally and as the price was given it was written on a board in the room. An objection was raised by one of the suppliers that the method used could give the last supplier an advantage because he would have seen all of the other suppliers' prices prior to giving his price. The second round was scheduled for 2:00 p.m. The method of receiving prices was changed to accommodate the objections at the first round. In the second round each participant wrote his prices on a piece of paper, all the papers were picked up, the papers opened, and the prices were written on the board. Between the second and third rounds, each supplier was given an opportunity to meet with Mr. Mayne and his staff. Mr. Martinez met with Mr. Mayne and his staff at 3:00 p.m. During the meeting, Mr. Mayne advised Mr. Martinez that DGS would like two separate fibers for each T-1 route for IMTs. The price for IMTs given by Microtel was approximately $9.50 per mile month. The corresponding price for MCI was around $15 or $16 per mile month. Mr. Mayne advised Mr. Martinez that, in order for MCI to be considered for a portion of the IMTs, MCI's price needed to be around $10 per mile month. Mr. Mayne did not reference access charges when he discussed the $10 per mile month. One of the assumptions of the pricing for the negotiations was that all prices would include access charges. During the meeting, Mr. Mayne told Mr. Martinez that MCI's price for IMTs was almost twice as much as the other suppliers. Additionally during the 3:00 p.m. meeting between Mr. Mayne and Mr. Martinez, Mr. Mayne explained to Mr. Martinez that the suppliers would reconvene at 4:00 p.m. and report their final responses and the last round of pricing would be before 5:00 p.m. Notwithstanding the clear explanation of when the suppliers would have their last opportunity to give their final prices, Mr. Martinez was apparently confused because he thought (albeit erroneously) that he would have another opportunity to offer a price after the third round. Because he thought that as an incumbent supplier MCI would have another opportunity to offer a price after all of the other suppliers had given their final prices, Mr. Martinez made a judgment call not to offer MCI's best price during the third round of the negotiations. The best price that Mr. Martinez was authorized to offer on the interstate WATS was slightly higher than the best price actually offered by another supplier. Mr. Martinez appears to be the only one who was confused about the finality of the third round of negotiations. It would not have been fair to the other suppliers to have afforded MCI an opportunity to submit further prices after the third round. No one from the Department of General Services advised Mr. Martinez that he would be given an opportunity to present further pricing after the other suppliers had given their best and final prices. The suppliers reconvened at 4:00 p.m. A supplier inquired whether the prices could be given before 5:00 p.m. Mr. Mayne asked the other suppliers whether they were ready and no one objected to giving the prices before 5:00 p.m. Mr. Mayne emphasized the third round was the last round. The suppliers gave their final prices at 4:19 p.m. The suppliers were asked to sign the sheets which contained their prices for the last round. Microtel submitted the lowest price for IMTs at $8.89 per mile. MCI's price for the IMTs was $12.52 per mile. ITT submitted the lowest price for Interstate WATS facilities at $.1249 per minute. MCI submitted $.1285 per minute for the Interstate WATS facilities. MCI submitted the lowest price for Intrastate WATS facilities at $.1133 per minute. Microtel submitted $.1139 per minute for the Intrastate WATS facilities. At the conclusion of the final round of pricing, AT&T indicated that they had additional pricing which was contained in a proposal submitted to Mr. Mayne in late summer or early fall of 1987. Mr. Mayne thought that AT&T had submitted its final prices during the last round and he advised AT&T that he would not consider the prices that were not contained on the sheets submitted by AT&T during the last round. John Fain, representative for the Division of Purchasing at the negotiations, also stated that prices not placed on the board could not be accepted. Mr. Mayne advised the suppliers at the end of the negotiations that the Division of Communications would try to reach a decision by the close of business on November 6. At the end of negotiations on November 5, 1987, the Division of Communications returned to AT&T its proposal which had formed part of the basis for the Division of Communications' request for authority to negotiate after AT&T claimed pricing information contained in that proposal was proprietary. At the beginning of the negotiation session on November 5, Mr. Mayne was satisfied that each of the participants could provide the solicited transmission facilities and services. Since the AT&T proposal would not be considered, Mr. Mayne determined that the contract should be awarded based on lowest cost for each of the transmission facilities. Prior to acting on this determination, Mr. Mayne discussed the matter with the Division of Purchasing. The Division of Purchasing concurred in the decision to award on the basis of lowest cost. The contract awards were based on low price and not the total points assigned to the providers based upon the numeric rating system used by the evaluation committee in the evaluation report. Mr. Amirzadeh telephoned Mr. Martinez on November 6, 1987, to inform MCI that the Department intended to award the Intrastate WATS facilities to MCI. Mr. Martinez advised Mr. Amirzadeh that the prices submitted by MCI were package prices. MCI later contacted the Department and advised the Department that the MCI price for Intrastate WATS was a package price. MCI withdrew its offering for Intrastate WATS. On being advised that MCI was withdrawing its offer for the Intrastate WATS facilities, the Department decided to award the Intrastate WATS facilities to the next lowest provider, which was Microtel. On November 10, 1987, the Department issued Communications Service Authorizations (CSAs) to Microtel for the Intrastate WATS facilities and IMTs, and to ITT for the Interstate WATS facilities. These CSAs are the only contracts to be executed by the State of Florida for the solicited telecommunications services and facilities. The CSAs were signed by the Division of Communications. By contracting with Microtel for IMTs, Mr. Mayne estimated there would be a cost savings of $216,000 per month. The cost savings associated with contracting with Microtel for the Intrastate WATS is approximately $98,000 a month. It is estimated the State will save approximately $105,000 per month by contracting with ITT for Interstate WATS. MCI filed a notice of intent to protest the contract awards on November 12, 1987. MCI filed its formal written protest on November 23, 1987. In acquiring these transmission facilities the Department is leasing spaces on the supplier's fiber optic cable. The spaces within the cable are analogous to time envelopes, which may carry information or no information, being shot down the fiber optic cable. The Department leases the spaces in multiples of T-1s. A T-1 represents 1.544 million spaces per second. When the Department leases a T-1, the Department has a dedicated physical connection and the information that will be contained in the spaces or time envelopes will always appear in the same space and in the same time. The Department leases the fiber facilities on a 24-hour-a-day basis, because it is more economical than leasing for shorter periods of time. While the space is being leased to the State, no other customer of the transmission facilities supplier can use that space. The functions of the facilities can also be described as follows. The interstate WATS service, the intrastate WATS service, and the IMT service for which the Department contracted, involve the receipt by the carrier of an originating call from a SUNCOM switch and the transmission of that call over the carrier's owned or leased facilities, including access facilities leased by the carrier from the local exchange company, to its destination either outside or inside the State of Florida or to another SUNCOM switch. In addition to the lease of spaces, the Department will be acquiring maintenance and billing services and, in the case of the WATS facilities, it will also be procuring management reports concerning the location of calls. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the State of Florida will not have physical access to, the ability to monitor traffic over, maintenance or repair responsibility for, or rights to use particular components of those facilities. This applies to both the carriers' facilities and the access facilities leased by the carrier from local exchange companies to connect the SUNCOM switches and the carriers' facilities. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the long distance carrier will have the responsibility for maintenance and repair of those facilities, the right to replace or upgrade those facilities in a fashion transparent to the State, and the right to determine the physical path through those facilities over which information from the State of Florida would be transmitted. This applies to both the carrier's facilities and the access facilities leased by the carrier from the local exchange companies to connect the SUNCOM switches to the facilities. The Department interprets Rule Chapter 13C-2, Florida Administrative Code, to apply to the acquisition of nonregulated communications equipment. The forms referred to in Rule 13C-2.008 are forms which State agencies use in requesting approval from the Division of Communications for the purchase or lease of nonregulated communications services or equipment. Rule Chapter 13C-1, Florida Administrative Code, has been interpreted by the Department to deal with a regulated environment. The procurement at issue in this proceeding is in a regulated environment. The criteria and procedures described in Chapter 13C-2, Florida Administrative Code, were not used in this procurement of the solicited telecommunications facilities and services. The negotiation process itself was negotiated in a fair and equitable manner. Each supplier was advised at the beginning of the negotiation session that there would be three rounds of pricing. There has been no claim by MCI that any of the suppliers had knowledge prior to 9:00 a.m. on November 5, 1987, of the actual negotiation process that would be used. When an objection was made by one of the suppliers to the method of accepting pricing in round one, the method of accepting prices was changed so that no supplier would have an advantage over another. It was made clear that the third round was the last round in which the suppliers could submit their best and final offers. The Department did not consider offers which were not submitted during the third round. The Department attempted to provide competition in the negotiation process by having the suppliers compete against each other in the pricing rounds. No supplier was treated more favorably than another. MCI was never told that it would be awarded the contracts. MCI made no protest or objection to the negotiation process prior to or on November 5, 1987.
Recommendation Based on all of the foregoing, it is recommended that a final order be entered denying the relief requested by the Petitioner. DONE AND ENTERED this 11th day of February, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH 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 11th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5338BID The following are my specific ruling on all of the findings of fact proposed by all of the parties. Findings proposed by the Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9: All generally accepted, but some details have been omitted as either subordinate or unnecessary. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraphs 11 and 12: Rejected as irrelevant. Paragraphs 13, 14, and 15: Accepted. Paragraph 16: Rejected as irrelevant. Paragraphs 17, 18 and 19: Accepted. Paragraph 20: Rejected as irrelevant in light of other evidence. Paragraphs 21, 22, 23 and 24: Accepted. Paragraph 25: Accepted in substance. Paragraphs 26 and 27: Accepted. Paragraph 28: Rejected as subordinate and unnecessary details. Paragraph 29: Accepted in substance. Paragraph 30: Rejected a subordinate and unnecessary Paragraphs 31 and 32: Accepted: Paragraph 33: Rejected as contrary to the greater weight of the evidence. Paragraphs 34, 35, 36, 37, 38 and 39: Accepted. Paragraphs 40 and 41: Rejected because the analogies fail. Paragraph 42: Accepted. Paragraph 43: Rejected as subordinate and unnecessary details. Findings proposed by the Respondent: Paragraphs 1, 2, 3, 4, 5, 6 and 7: Accepted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Accepted. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraphs 12, 13, 14, 15, 16, 17 and 18: Accepted. Paragraph 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44: Accepted. Paragraph 45: First sentence accepted. The remainder is rejected as subordinate and unnecessary details. Paragraph 46: First four sentences accepted. Last sentence is a conclusion of law. Paragraphs 47 and 48: Accepted. Findings proposed by the Intervenors: Paragraph 1: Rejected as statement of position rather than proposed finding. Paragraph 2 and 3: Accepted. Paragraphs 4, 5 and 6: Rejected as subordinate and unnecessary details. Paragraphs 7, 8, 9 and 10: Some of the details proposed in these paragraphs have been included, but most are rejected as subordinate and unnecessary. Paragraph 11: Rejected as subordinate and unnecessary, details. Paragraphs 12 add 13: Accepted in substance. Paragraphs 14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraphs 16 and 17: Rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, 23 and 24: Some of the details proposed in these paragraphs have been included, but most have been rejected as subordinate and unnecessary. Paragraphs 25, 26 and 27: Rejected as subordinate and unnecessary details. Paragraph 28: Accepted. Paragraph 29, 30, 31 and 32: Rejected as subordinate and unnecessary details. Paragraphs 33, 34, 35, 36, 37 and 38: Accepted. Paragraphs 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49: Rejected as subordinate and unnecessary details. Paragraphs 50 and 51: Rejected as subordinate and unnecessary details. Paragraphs 52 and 53: Accepted. Paragraph 54: Rejected as subordinate and unnecessary details. Paragraph 55: Accepted in substance. Paragraph 56: Rejected as subordinate and unnecessary details. Paragraphs 57, 58 and 59: Accepted in substance. Paragraphs 60 and 61: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Susan Kirkland, Esquire Sandra D. Allen, Esquire Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Carolyn S. Raepple, Esquire Richard D. Melson, Esquire Hopping, Boyd, Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Patrick K. Wiggins, Esquire Wings Solcum Benton, Esquire Ranson & Wiggins 325 West Park Avenue Post Office Drawer 1657 Tallahassee, Florida 32302 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
Findings Of Fact The petitioners are in the process of constructing a rural connector road between State Road 11 and U. S. Highway 1 in Flagler County. This is to be a two-lane twenty (20) foot wide pavement secondary road with the right-of-way acquisition and construction costs being provided by secondary gasoline tax funds allocated to Flagler County. The county has provided the necessary rights-of-way for the project. The project, as designed, provides for a realignment of the existing road to afford a straight approach to its connection with U. S. Highway 1. This realignment will eliminate the existing railroad crossing that is presently signalized with passive signalization consisting of standard cross-buck signs. The closing of the crossing will also eliminate a hazardous condition due to the sharp angles involved in the highway alignment at the present crossing. The proposed crossing is to be approximately 600 feet north of the existing crossing. Provision has been allowed for ingress and egress to individuals living in the area. The proposed crossing will intersect with the railroad tracks almost perpendicularly. The railroad, at this location, consists of a single track. There are sixteen (16) freight trains scheduled per day with a maximum speed of 60 miles per hour. In the vicinity of the proposed crossing the railroad track is straight. There is a curve in the track approximately 700 feet north from the proposed crossing. As a part of the proposed crossing there is to be Type II signalization installed consisting of a train-activated cantilevered flashing lights and ringing bells. These cantilevered signals are to be mounted on roadside posts which will allow maximum shoulder clearance for a fixed object in accordance with current practice and still provide for two (2) flashing lights suspended directly over each driving lane. Traffic studies conducted by the Planning Section of the Department of Transportation reflect that at present approximately 87 vehicles per day use the existing crossing. It is anticipated that 100 vehicles per day will use the proposed crossing when it is opened and projections estimate that in twenty (20) years approximately 400 vehicles per day will use the crossing. State Road S-304 is not used as a school bus route at this time nor is it anticipated that this road will be used for school buses in the foreseeable future. Permits to open and to close the crossing as applied for should be granted.
Findings Of Fact Procedural Matters The Public Service Commission issued its Order Approving Electrical Transmission Line on October 30, 1987, determining the need for the Crane- Bridge-Plumosus 230 kV transmission line to provide additional service load capacity and maintain system reliability. Florida Power & Light Company (hereinafter "FPL") filed with the Department of Environmental Regulation (hereinafter "DER") its Application for Corridor Certification of the Crane-Bridge-Plumosus 230 kV transmission line corridor on July 14, 1988. That Application was deemed by DER to be complete but insufficient, and FPL's Sufficiency Response was filed on September 16, 1988. The certification hearing was originally scheduled to commence on February 6, 1989. PGA Property Owners' Association, Inc. (hereinafter "PGA") timely filed alternate corridors on December 13, 1988. Old Marsh Partners, Old Marsh Golf Club, Inc., and Old Marsh Homeowners Association, Inc., (hereinafter "Old Marsh" or "OM") timely filed alternate corridors on December 15, 1988. Several of the alternates filed by PGA were accepted by FPL on December 7 20, 1988. Several of the alternates filed by Old Marsh were accepted by FPL on January 5, 1989. FPL did not respond to several of the alternates proposed by PGA and Old Marsh (the burial alternates) because FPL considered these proposed alternates to be design modifications to FPL's corridor, a factual proposition that was accepted by this Hearing Officer prior to the final hearing in this cause but which was disproven during the evidentiary hearing. One of Old Marsh's alternates was rejected by FPL. The certification hearing was rescheduled to commence on April 3, 1989, due to the timely filing of alternate corridors and the acceptance of some of them. George H. Sands, Jeffrey H. Sands, George H. Sands and Jeffrey H. Sands d/b/a Princeton Arms (hereinafter "Sands") and Southern Land Group, Martin Downs Country Club, Inc., and Martin Downs Property Owners Association, Inc., (hereinafter "Martin Downs") timely filed alternate corridors on February 9, 1989. Two of those alternates were rejected by FPL, and FPL did not respond to one of those alternates because it considered that alternate to be within the FPL proposed corridor. By the time of the final hearing in this cause, alternate corridors proper for consideration were reduced to Alternate Corridors 2A and 2B filed by PGA and jointly proposed by PGA and Old Marsh (hereinafter "Alternate corridor" unless otherwise described). During the final hearing, settlement agreements between Sands and FPL and between Martin Downs and FPL resulted in Sands and Martin Downs voluntarily dismissing their petitions to intervene in this proceeding and voluntarily withdrawing their proposed alternate corridors in exchange for FPL agreeing to a number of additional conditions of certification of the Martin County segment of the Crane-Bridge-Plumosus corridor are set forth in Attachment A to this Recommended Order. Prior to the final hearing, all parties entered into a Prehearing Stipulation which included Attachment D. Attachment D set forth the minimum conditions for certification, which conditions were agreed to by FPL, and which conditions will apply no matter which corridor is certified. Those conditions are set forth in Attachment B to this Recommended Order. All statutory notices regarding the filing of FPL's Application, the filing of the PGA/OM Alternate corridors 2A and 2B, and the scheduling and rescheduling of the certification hearing were properly published, and all statutory notifications were properly accomplished. Description of the FPL Proposed Corridor Essentially, the Crane-Bridge-Plumosus 230 kV transmission line corridor would run from the existing site of the proposed Crane Substation in the immediate vicinity of the Martin Downs community near Stuart, Martin County, Florida, to the existing Plumosus Substation near Jupiter, Palm Beach County, Florida. The total length of the proposed FPL corridor is approximately 40 miles. The FPL proposed corridor is of variable width, ranging from approximately 300 feet to 1 mile wide. Crane-Mapp: The FPL proposed corridor begins at the site for the Crane Substation in Martin County and runs south to the proposed Mapp Substation siting area paralleling the Florida Turnpike so that a right-of-way could be located on either side of the Turnpike. Mapp-Hanson: From the proposed Mapp Substation siting area, the FPL proposed corridor continues to proceed south straddling the Florida Turnpike until it reaches the junction of I-95 and the Turnpike. From that point the proposed corridor runs southeast away from the Florida Turnpike and parallel with I-95 on the east side to the proposed Hanson Substation siting area. Hanson-Bridge: At a point approximately 1 mile south of the State Road 76 interchange with I-95 at the proposed Hanson Substation siting area, the FPL corridor turns west and crosses both I-95 and the Florida Turnpike until it reaches County Road 711. The proposed corridor then proceeds south along County Road 711 for a distance of 13 mi1es crossing County Road 708, County Road 706 and the C-18 Canal. As the proposed corridor begins proceeding south straddling County Road 711, it reaches the proposed Bridge Substation siting area and continues south, narrowing at one point to exclude the actual residential structures in the Foxwood development but not excluding the properties owned by the residents of that subdivision. At the proposed Bridge Substation siting area, the corridor widens to allow flexibility in connecting the proposed transmission line to an existing 230 kV transmission line. Bridge-Moroso-Alexander: From the proposed Bridge Substation siting area, the FPL proposed corridor continues to parallel County Road 711 south through the proposed Moroso Substation siting area to the intersection of State Road 710 where it connects to the proposed Alexander Substation siting area. Alexander-Steeplechase: At the intersection of County Road 711 and State Road 710 which is also known as the Beeline Highway, in the vicinity of the proposed Alexander Substation siting area, the FPL proposed corridor turns southeast and straddles State Road 710 until the Beeline Highway intersects with PGA Boulevard at the proposed Steeplechase Substation siting area. Along the Beeline Highway, the corridor narrows to exclude the residences in the Caloosa residential development but does not exclude the properties on which those residences are located. Steeplechase-Ryder: At the intersection of the Beeline Highway and PGA Boulevard, the FPL proposed corridor turns east on PGA Boulevard crossing the C-18 Canal a second time and crossing the Loxahatchee Slough. At the point where FPL's proposed corridor crosses the C-18 Canal along PGA Boulevard in Palm Beach County, the proposed corridor would be approximately 1,000 feet wide. At a point just east of the C-18 Canal, FPL's proposed corridor narrows somewhat on the south side of PGA Boulevard to exclude the residential structures in the PGA National community from the corridor. Nevertheless, the corridor width would still encompass both the north and south sides of PGA Boulevard, and on the south side it would extend through the individual backyards and actually abut the homes of the PGA National residents. FPL's corridor continues to proceed easterly on both sides of PGA Boulevard to a point where Ryder Cup Boulevard intersects the south side of PGA Boulevard. At that intersection, the corridor is widened and turns to the north to accommodate the proposed Ryder Substation location. FPL's proposed Ryder Substation siting area is located in the area adjacent to and north of the intersection of PGA Boulevard and Ryder Cup Boulevard. Ryder-Bonnette: The FPL proposed corridor continues north through the proposed Ryder Substation siting area following a dirt road past a sewage treatment plant. As it proceeds north of Hood Road along the proposed Jog Road extension, it narrows as it passes between the Old Marsh and Eastpointe residential developments. Despite the narrowing of the corridor at this point, homesites, storm water management facilities, and portions of golf courses in both of those developments are encompassed by the proposed corridor. As the corridor passes the northern boundary of Old Marsh, it again widens and continues to proceed north encompassing wetland areas, until it reaches the current western termination point of Donald Ross Road. The Bonnette Substation is proposed by FPL to be located in this area. Bonnette-Plumosus: From the proposed Bonnette Substation siting area, the FPL proposed corridor turns east and follows Donald Ross Road for approximately 2 miles, running along the Palm Beach Country Estates subdivision on the north side of Donald Ross Road and the northern edge of the Eastpointe subdivision along the south side of Donald Ross Road. Once again, the corridor narrows on the Donald Ross Road segment to exclude the actual residential structures in the Eastpointe and Palm Beach Country Estates developments but does not exclude the properties on which those residences are located. The corridor continues to run east along Donald Ross Road until it crosses the Florida Turnpike and I-95, turning north just west of the Donald Ross Road and Central Boulevard intersection. The FPL proposed corridor then runs north paralleling an existing 138 kV transmission line for a distance of 2 miles to the existing Plumosus Substation. Except for a small segment of the FPL proposed corridor located at the proposed Hanson Substation siting area in Martin County, the corridor includes the lands on both sides of the roadways it follows in order to provide flexibility to FPL in designing and constructing its proposed transmission line. The width of FPL's proposed corridor -- up to 1 mile wide -- serves the same purpose of allowing flexibility to FPL in locating a right-of-way for its transmission line facility. No specific right-of-way within the proposed corridor is contemplated at this time, and the eventual right-of-way is not the subject of this proceeding; rather, FPL can locate a right-of-way anywhere within a corridor which is certified. Description of the PGA/OM Alternate Corridor The PGA/OM Alternate corridor differs from one 4-mile segment of the FPL proposed corridor by commencing north 13 from PGA Boulevard at a point just after the FPL proposed corridor crosses the C-18 Canal for the second time. The Alternate corridor follows an existing unnamed canal for 1 mile, then parallels Sections 33 and 28 for 2 miles. Alternates 2A and 2B are coextensive with each other up to the point at which the Alternate corridor is due west of Donald Ross Road. At that point, Alternate 2A turns east at the northwest corner of Section 28 and continues easterly to reconnect with the FPL proposed corridor in the vicinity of the Bonnette Substation. Alternate 2B continues north, rather than east, at the northwest corner of Section 28 for approximately 3/4 of a mile along the west boundary of Section 21. At that point, Alternate 2B turns southeasterly following a proposed future alignment of the Donald Ross Road extension to reconnect with the FPL proposed corridor in the vicinity of the Bonnette Substation. In conjunction with the PGA/OM Alternate corridor, FPL's proposed site for the Ryder Substation would be relocated approximately 1 mile to the west so that the Ryder Substation would be located just east of the PGA/OM Alternate corridor and north of PGA Boulevard. Description of the Transmission Line The transmission line which FPL proposes to construct within its proposed corridor would be an overhead line using a single-circuit, single-pole concrete structure. The concrete poles would average 80 feet in height, but may be as tall as 100 feet. The concrete pole is 2 feet wide at its base. The wires that transmit electricity, called conductors, are connected to insulators which are attached to the concrete pole structures. Three conductors will be used for this proposed transmission line. The single concrete pole structures will have one of two types of configurations: vertical or triangular (delta). In a vertical configuration, all three of the conductors are located on one side of the concrete pole structure, and in the triangular configuration, two conductors are located on one side of the concrete pole structure, and one conductor is located on the opposite side. A ground wire is located at the top of the concrete pole structure and acts to protect the conductors from lightning strikes. The right-of-way required for the proposed transmission line will vary from 15 feet to 50 feet, depending on whether a vertical or a triangular configuration is used and on whether the transmission line structure can be placed adjacent to an existing road that can be used for access to the transmission line. Additional right-of-way up to 140 feet in width may be required for guyed corner or side tension structures. When an existing road or road right-of-way can be used for access, a 15 foot right-of-way adjacent to the road right-of-way can be used for the transmission line structures with a vertical configuration. If a triangular configuration is used adjacent to an existing road or road right-of-way that can be used for access, a 35 foot right-of-way would be required for this transmission line. Where new access roads will be required, a 35 foot right-of- way is required for the vertical configuration, and a 50 foot right-of-way is required for the triangular configuration. FPL anticipates constructing approximately 12 miles of new access roads in its proposed corridor in areas that do not have existing roads or where adjacent roads cannot be used for access, such as adjacent to the Florida Turnpike and adjacent to I-95. If the PGA/OM Alternate corridor is certified, FPL anticipates requiring a 50-foot wide right-of-way along the entire length of the Alternate corridor due to the absence of existing roads (excluding unofficial roads created by persons using all-terrain recreational vehicles) and the use of triangular configured structures. Since the segment of the FPL proposed corridor from which the PGA/OM Alternate corridor deviates follows existing roadways which FPL anticipates using for access, FPL plans to use vertical structures with a smaller 15-foot right-of-way in that corridor segment. Span lengths between structures will vary between 300 feet and 600 feet, with a minimum conductor-to-ground clearance of 24 feet. The span lengths depend upon specific right-of-way widths determined by FPL after corridor certification and on final line design also determined by FPL after corridor certification. The transmission line poles may also be used for other utility attachments, such as distribution or communication lines. Access to the transmission line concrete poles must be provided for both construction and maintenance purposes. Any new access roads to be constructed will typically be unpaved and 14 feet in width. Finger roads connecting access roads to the pole location will typically be 30 feet in width. A structure pad for location of trucks for maintenance purposes will be constructed at the location of each pole. The structure pads surrounding each concrete pole will typically be 30 feet by 40 feet. Substations Between the existing site for the proposed Crane Substation and the existing Plumosus Substation, the proposed transmission line will connect 8 proposed intermediate substations in Martin and Palm Beach Counties. Proposed intermediate substations in Martin County include the Mapp, Hanson, and Bridge Substations. The proposed Moroso Substation will be located in the vicinity of the Martin County and Palm Beach County line. Proposed intermediate substations in Palm Beach County include the Alexander, Steeplechase, Ryder, and Bonnette Substations. Most of the proposed substation siting areas are one square mile or 640 acres in size. However, Bridge is one-half mile square, Moroso is 5 miles square, and Alexander is 4 mile square. Prior to filing its Application for Corridor Certification for the Crane-Bridge-Plumosus 230 kV transmission line, FPL enlisted the aid of an advisory committee composed of representatives from agencies and local governments and two home owners. At the time the advisory committee convened, the substation locations were already identified and the geographical areas already determined. The advisory panel did not provide input into the location or size of the substation areas. Rather, the advisory panel merely looked for a corridor which would connect the already-designated substation siting areas. It is unclear how much input the advisory committee actually had into the corridor proposed by FPL in this proceeding. Only the location proposed for the Ryder Substation is at issue in this proceeding, since it is proposed to be located along the segment of FPL's proposed corridor from which the PGA/OM Alternate corridor deviates. If the PGA/OM Alternate corridor is certified, the proposed Ryder Substation siting area would be moved approximately 1 mile west of the Ryder Substation location proposed by FPL. Locating the Ryder Substation adjacent to the Alternate corridor on the east side of that corridor is appropriate from a land use perspective and will not materially affect the efficiency and reliability of electrical service to the area to be served by that substation. The actual difference in service reliability of the Ryder Substation if located adjacent to the Alternate corridor on the west side of the Alternate corridor would be an increase of 0.3 service interruptions per year, or one additional service interruption every 3 to 4 years. The difference in service reliability if the Ryder substation were located adjacent to the Alternate corridor on the east side of the Alternate corridor would be even less. Therefore, essentially the same service reliability would result. Engineering and Design The construction techniques for the proposed transmission line set forth in FPL's Application are standard construction techniques in the industry. The proposed Crane-Bridge-Plumosus transmission line will be designed for two types of load: structural and electrical. The structural load of the proposed transmission line will be designed to hold the weights of the poles, insulators, and conductors in a sustained wind of 115 mph. The electrical load for the proposed transmission line will be designed to carry 230 kilovolts with a conductor capacity of 647 megavolt amperes (MVA). Under normal operation, the proposed transmission line will carry between 250 and 350 MVA. The design and construction of the proposed transmission line will comply with all applicable codes and standards including the National Electrical Safety Code, the American Society of Testing Materials, the American National Standards Institute, the American Concrete Institute, the Southern Building Code, and the Florida Department of Transportation Utility Accommodation Guide. Transmission lines can be constructed adjacent to or within road rights-of-way, with the road drainage facility or swale between the road and the concrete pole. The maintenance finger road to access the pole structure is culverted where that road crosses the drainage facility or swale. The transmission line can be constructed, from an engineering perspective, within the right-of-way east of Old Marsh. FPL has constructed transmission lines within road rights-of-way for other transmission line projects. FPL has entered into agreements with local governments for other projects to share road right-of-way. From an engineering perspective, the transmission line can be constructed to span Impoundment 2BE (discussed hereinafter), if necessary. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor would be more flexible if located on the north side of PGA Boulevard near PGA National. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor would be more flexible if located south of the Beeline Highway near the Caloosa Development. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor between the Old Marsh and Eastpointe developments offers limited flexibility. From an engineering perspective, the design and siting of the transmission line within the Alternate Corridor is preferable because line siting flexibility is increased. From an engineering perspective, location of the Ryder Substation adjacent to the Alternate corridor or in the location proposed by FPL is appropriate. Impacts to the Environment Wetlands Both the FPL corridor and the Alternate corridor may impact wetlands within the jurisdiction of DER, the South Florida Water Management District, and the United States Army Corps of Engineers. DER has not formally identified jurisdictional wetlands within the FPL corridor or within the 20 Alternate corridor. The South Florida Water Management District and the United States Army Corps of Engineers have expressed jurisdiction over certain wetlands within the FPL corridor and within the Alternate corridor. The actual extent of wetlands impacted is unknown and will ultimately be determined at the time of actual line siting within the certified corridor. Section 3.2 of the FPL Application states that FPL will provide detailed information on dredging or filling (locations and volumes) to DER after a corridor is certified, when the right-of-way is determined and engineering is completed. Mitigation for wetland impacts will be required at the time of line construction. Attachment D to the Prehearing Stipulation sets forth specific mitigation criteria as conditions of corridor certification acceptable to DER and the South Florida Water Management District for wetland impacts. Implementation of those mitigation conditions will not result in any conflicts or problems with the mitigation practices and policies of the Corps of Engineers, DER, or the South Florida Water Management District. The jurisdictional determination evidenced in PGA/OM Joint Exhibit 18A, though not a "binding jurisdictional" pursuant to DER rules, is an accurate representation of the DER jurisdictional areas in the proximity of the Loxahatchee Slough and the Alternate corridor. That jurisdictional drawing was participated in by DER personnel. That informal jurisdictional determination evidences minimal acreage of wetlands within the jurisdiction of DER within the Alternate corridor. Along the FPL corridor route, numerous altered or disturbed wetland areas exist. Road construction, land clearing, and other human activities have altered the natural state of wetlands previously associated along the FPL proposed corridor. The wetlands within the southern half of the Alternate corridor are altered or disturbed due to existing canals and ditches as well as dirt roads within and adjacent to the Alternate corridor. Over time, due to the altered hydrology and transitional vegetation within and adjacent to the Alternate corridor, the acreage of wetlands impacted due to construction of a transmission line would approximate the acreage of wetlands impacted within the FPL corridor from the same transmission line construction. Certain wetlands within the FPL corridor are comparable to the wetlands within the Alternate corridor in terms of hydrology, quality, and habitat. The FPL corridor will cross 26 water bodies, all of which are classified as Class III, except for the C-18 Canal which is classified as Class I. The FPL corridor also crosses several isolated wetlands and the Loxahatchee Slough. There will be no significant impact to water quality from the construction of the Crane-Bridge-Plumosus transmission line. Short-term turbidity caused by the removal of vegetation will be controlled through the use of erosion control practices, such as fabric fences and straw bales. Long-term water quality will be maintained by allowing the vegetation around access roads and structure pads to re-establish. Any impacts to wetlands caused by the proposed transmission line can be mitigated consistent with regulatory agency mitigation criteria and the DER dredge and fill criteria. Wildlife Species of plants or animals designated as endangered, threatened, or species of a special or regional concern by the Treasure Coast Regional Planning Council, the United States Fish and Wildlife Service, the Florida Game and Fresh Water Fish Commission, the Florida Department of Agriculture and Consumer Services, and/or the Florida Committee on Rare and Endangered Plants and Animals, and species based on literature surveys and agency consultations were researched for potential occurrence within the FPL and Alternate corridors. The species studied are listed in FPL's Application. None of the species were found to have breeding or viable populations in the FPL or Alternate corridors. The presence or absence of specific plant species is primarily based upon suitable habitats. None of the corridors under consideration herein is expected to have any significant impact on important plant species. Of the 48 vertebrate species identified as occurring or possibly occurring within the proposed corridors, most are characteristic of or restricted to coastal habitat or estuarine habitat. Therefore, presence of these species would be of a migratory nature. Because of the absence of these species, impact to such wildlife would be expected to be minimal. Since the FPL corridor and the Alternate corridor include areas of disturbed habitat, the probability of occurrence for threatened and endangered species and other regionally significant species is diminished. Wildlife observed actually within the Old Marsh community included the sandhill crane, a threatened species listed by the Florida Game and Fresh Water Fish Commission. From a wildlife perspective, the FPL corridor and the Alternate corridor are appropriate locations for the construction of a 230 kV transmission line. The Prehearing Stipulation entered into by the parties requires the identification of endangered species prior to any clearing for the construction of the transmission line. Vegetation Vegetation communities associated with the FPL corridor include hammock, wet prairie, grassland and rangeland, pine flatwoods, cypress, freshwater marsh, pinewood, pinewood prairie, forested old field and mixed hardwood swamp. Vegetation communities associated with the Alternate corridor include tropical hammock, cabbage palm, wet prairie, cypress, pine wet prairie and pine flatwoods. The majority of vegetation within the Alternate corridor is pine wet prairie. The transmission line can be constructed to avoid the tropical hammock community. The alteration of habitat and associated vegetation due to human activities and altered hydrology in both the FPL and the Alternate corridors has resulted in the transition of vegetative communities including the introduction of exotic, nuisance plant species such as Melaleuca, Brazilian Pepper, and Australian Pine to those corridors. If the hydrologic condition remains the same within and adjacent to the Alternate corridor, additional exotic, nuisance plants would invade the area. Due to changes in the hydrologic condition east of the C-18 Canal and west of the Alternate corridor, a portion of the historic Loxahatchee Slough, exotic plants such as Melaleuca and Brazilian Pepper have invaded that area. The eastern boundary of the Loxahatchee Slough, as identified through analysis of vegetation, is a north-south line approximately half-way between the eastern leg of the C-18 Canal and the western boundary of the Alternate corridor. The Alternate corridor is not located within the historic Loxahatchee Slough. The implementation of the Loxahatchee River Basin Water Resources Plan (discussed hereinafter) would result in the creation of a littoral zone, Impoundment 2BE, not currently present within the geographical proximity of the Alternate corridor and would restore the historic hydroperiod of the Slough, limiting the introduction of additional exotic species to the area. From a vegetative perspective, both the FPL corridor and the Alternate corridor are appropriate locations for the construction of the 230 kV transmission line. Construction of the Crane-Bridge-Plumosus transmission line in the FPL 25 corridor or in the Alternate corridor will produce a minimal impact to existing vegetation. In wetland areas, the vegetation root mat will be retained in the right-of-way areas not occupied by access roads or structure pads. Construction of the proposed transmission line in the FPL corridor or in the Alternate corridor will not destroy the vegetative communities, but will merely force the shift in the successional stages of those communities within the right-of-way. Hydrology Due to human activities such as road construction and channelization, the hydrology associated with the FPL corridor is altered. Further, the Hood Road and Jupiter wellfields have contributed to altered hydrologic conditions in the proximity of the FPL corridor and the Alternate corridor near Old Marsh. The construction of the C-18 Canal in the early 1950's contributed to the lowering of the water table and altered the natural hydrologic conditions, impacting the wetlands lying east of the C-18 Canal but west of the Alternate corridor. Drainage of the Slough is increased when compared to drainage patterns prior to canal construction. The altered hydrology rendered the former Loxahatchee Slough area, east of the C-18 Canal and west of the Alternate corridor, a seasonally flooded area. In the area of the Alternate Corridor the C-18 Canal has altered the natural hydrological regime, impacting the associated vegetation and habitat. Further, the area within the southern half of the Alternate corridor is subject to persistent draining due to the location of an unnamed canal and other ditches within and adjacent to the Alternate corridor. The area within the Alternate corridor immediately north of Old Marsh is subject to minimum channelization. Adjacent developments and the Hood Road and Jupiter wellfields have lowered the water table, altering natural hydrologic conditions. In the geographical area immediately south of Old Marsh, both within and adjacent to the FPL corridor and the Alternate corridor, a series of connected channels have had a drastic impact on the wetlands and hydrology of that area. This channelization has resulted in the general lowering of the water table, altering natural hydrologic conditions. Attachment D to the Prehearing Stipulation includes conditions for certification regarding culverts and construction techniques to maintain historical drainage patterns along the eventual transmission line right-of-way. Construction of the transmission line along PGA Boulevard through the Loxahatchee Slough will not significantly impact water quality or water resource hydrology. From a water quality and hydrologic perspective, the FPL corridor and the Alternate corridor are appropriate locations for the construction of the transmission line. Construction techniques used will maintain water flows, existing drainage patterns, and hydroperiods. Impacts to wetland storage volumes will be minimized through removal of vegetation within the wetlands and installation of culverts. Installed culverts will be designed to accommodate the design storm of applicable agency design criteria. Loxahatchee River Basin Water Resources Plan The Loxahatchee River Basin Water Resources Plan (hereinafter "Plan") is a regional plan extending from southern Martin County into the northeastern part of Palm Beach County. The Plan's purpose is to capture surplus water during the rainy season or during an extremely rainy year, store the water in reservoirs, and deliver that water when necessary during times of drought. Additionally, the Plan would increase the hydroperiod in the Loxahatchee Slough, offsetting the adverse impacts of C-18 Canal construction. The Plan would result in releases of water into the historic Northwest Fork of the Loxahatchee River. The Plan would also augment recharge of two impacted municipal wellfields, the Hood Road wellfield and the Jupiter wellfield. The Northern Palm Beach County Water Control District is proposing the Plan and will seek regulatory approval for the Plan. By the time of the Final Hearing in this cause, the Plan had been informally discussed and reviewed by all regulatory agencies involved. The public hearings held thus far on the Plan by the Northern Palm Beach County Water Control District had brought forth no objections to the Plan. Although the Plan had not been filed with the South Florida Water Management District at the time of the Final Hearing in this cause and formal application for approval had not yet been made, it was anticipated that the Plan and applications for approval would be filed with the regulatory agencies involved around June 1, 1989. The Plan calls for reservoirs to be constructed on both sides of the C-18 Canal. The location of one of those reservoirs, Impoundment 2BE, may be partially within the Alternate corridor. Impoundment 2BE borders the eastern edge of the traditional Loxahatchee Slough. That reservoir, starting at PGA Boulevard, as currently designed, would occupy an area immediately to the east of the Alternate corridor, extending northerly along the eastern side of that corridor, crossing the corridor at the reservoir's narrowest point, then continuing parallel to the west side of the Alternate corridor into the northern portion of the Alternate corridor area. Impoundment 2BE is adjacent to, but will not be located within, the Loxahatchee Slough. Implementation of the Plan would not result in additional standing water within the Alternate corridor altering existing impacted wetlands. Hydrology of the Alternate corridor would be minimally impacted by the Plan due to the impoundment of the natural west to east water sheet flow. The location of Impoundment 2BE is subject to minimal change during the permitting review and approval process due to the nature of valuable wetlands to the west of the proposed location of the Impoundment, the location of existing and planned development to the east of the proposed location, and because the planned location maximizes the environmental benefits of Impoundment 2BE to recharge the Loxahatchee Slough. The impact of the reservoir on the wetland area incorporated as part of the proposed Bonnette Substation site is minimal because the reservoir water levels are not high enough to effectuate sufficient seepage nor will there be releases of surface water into that area. Direct releases from the Impoundment will be only through existing channels. The direct release channels are the south canal of the South Indian River Water Control District, north of the Alternate corridor, and the east channel from Impoundment along the south boundary of Old Marsh into the Eastpointe development. These two channels are the only two areas for direct releases of surface water. Impoundment 2BE will include an 8-foot berm constructed around its perimeter. The Plan includes a 16-foot wide road atop the impoundment berm to maintain berm side slopes. It is anticipated that the water level in the reservoir will average 3 feet above natural grade, and it is not expected to be higher than 4 feet. To avoid seepage impacts, the Plan includes construction of toe drains to capture seepage and deliver that seepage to a pump system, returning the seepage to the reservoir. The Plan includes an access road surrounding the toe drains which surround the berm to access and maintain the toe drains. The access road next to the toe drains will be approximately 10-15 feet wide. FPL and the Northern Palm Beach County Water Control District have shared maintenance access roads in other 30 locations. A conflict would not exist between FPL and the Water Control District in sharing the Impoundment 2BE access road. The South Florida Water Management District, through the Loxahatchee River and Slough Restoration Program (hereinafter "Program"), intends to restore the historic hydrologic condition of the Loxahatchee Slough. The Program and the Plan are compatible and complementary water resource plans. Conflicts would not result due to the implementation of the Plan and the Program. Implementation of the Plan and construction of the 230 kV transmission line would not conflict from an engineering perspective. Impoundment 2BE and the line can be constructed sharing access roads, and conflicts would not result in maintaining the reservoir and the transmission line. If the Plan is implemented as proposed, much of the wetlands in the vicinity of the Alternate corridor would be significantly impacted, if not completely obliterated. Thus, the possible wetland impacts which might occur as a result of construction of the transmission line through the Alternate corridor would be minimized, or would already have occurred, if the proposed reservoir is constructed. In the event the reservoir is constructed as currently envisioned, construction of the transmission line through the Alternate corridor would have to span the reservoir at its narrowest point where it crosses the Alternate corridor. The reservoir is anticipated to be 400 feet wide at its narrowest point, and the normal span length for an FPL transmission line varies between 300 and 600 feet. Accordingly, spanning the reservoir does not pose a significant engineering problem, and the two projects could be constructed in a compatible manner. Impacts To The Public Land Use: The FPL corridor originates just south of the Martin Downs development and is adjacent to, incorporates, or is in the proximity of industrial parks, low and medium density residential development, a communications tower, borrow pits, the St. Lucie Canal, vacant and undeveloped land, trailer parks, agricultural land, the Foxwood subdivision, the Pratt-Whitney industrial complex, Palm Beach Park of Commerce, service stations, the Caloosa subdivision, a platted undeveloped subdivision, the C-18 Canal, the proposed North Palm Beach County General Aviation Airport, the Loxahatchee Slough, PGA National subdivision, the Seacoast Utility sewage treatment plant, a plant nursery, Old Marsh and Eastpointe residential developments, Palm Beach Country Estates, North Palm Beach Heights, and the Hampton residential development. The FPL corridor is aligned immediately adjacent to the edges of homes in the PGA development and includes the backyards and setbacks of those homes. The FPL corridor includes several golf course holes, buildings, and critical water management facilities within the Old Marsh development. The Alternate corridor from south to north beginning at PGA Boulevard, is adjacent to, or in the proximity of, an unnamed canal, undeveloped but disturbed land, the west boundary of Old Marsh, and more undeveloped, partially disturbed land. Numerous changes in the extent and type of development, whether commercial, industrial, or residential, occurred between the filing of the FPL Application in July, 1988, and subsequent land use review by FPL personnel conducted immediately prior to the Final Hearing in April, 1989. The Florida Department of State, Division of Historical Resources, did not find any archaeological or historical sites recorded within the FPL or the Alternate corridors. The City of Palm Beach Gardens has annexed the geographical area bordered by PGA Boulevard, the proposed Jog Road extension, the south boundary of Old Marsh, and the Alternate corridor. The City of Palm Beach Gardens' plans to annex the Old Marsh, Eastpointe, and, possibly, the Caloosa developments. The City of Palm Beach Gardens plans to annex the area bordered by the proposed Donald Ross Road extension, west to the Beeline Highway, south to the section line just south of PGA Boulevard, and east to PGA National. The Palm Beach Gardens land use plan for the areas north and south of Old Marsh between the Alternate and FPL corridors is low density residential development. The Palm Beach Gardens land use plan for the area north of PGA Boulevard, south of the Eastpointe development, and east of the FPL corridor is low density residential development. The FPL corridor, north from Ryder Cup Boulevard where that Boulevard intersects PGA Boulevard, would bisect planned low density residential communities. Associated with the sewage treatment facility adjacent to the FPL corridor, north of Ryder Cup Boulevard along the existing dirt road, is a planned golf course to buffer developing residential areas from the sewage treatment plant and to effectuate the use of spray water irrigation to comply with DER's water reuse rule. The proposed Jog Road extension, as depicted on the draft of the Palm Beach County Thoroughfare Plan, is subject to possible relocation and realignment due to environmental concerns, absence of reserved right-of-way, and the history of the road as previously depicted within PGA National. The FPL corridor provides numerous opportunities for paralleling other linear facilities within the corridor. Linear facilities within that corridor include the Florida Turnpike, I-95, County Road 711, State Road 710 (the Beeline Highway), PGA Boulevard, the sewage treatment plant access road, the proposed extension of Jog Road, Donald Ross Road, another transmission line, and numerous overhead distribution lines. Although FPL contends that the existing linear facilities also can be used as access roads to the transmission line structures thereby minimizing the amount of land required for the transmission line right- of-way, the accuracy of that position cannot be determined until an actual right-of-way is located and the transmission line is designed. For example, I- 95 and the Florida Turnpike are limited access roads, and FPL potentially would construct its own access road outside the rights-of-way of those highways. Similarly, FPL has a preference to not use Florida Department of Transportation road rights-of-way. Further, the location of the proposed Jog Road extension is yet to be determined. The wide corridor proposed by FPL to maintain maximum flexibility for siting the eventual transmission line right-of-way and for designing the actual transmission line would allow FPL to site the transmission line far enough in distance from the existing linear facilities so that the existing rights-of-way of those facilities need not be shared by FPL. From a land use perspective, the narrower Alternate corridor also tracks linear facilities, conforming to coexisting and proposed land use patterns. The existing unnamed canal, the proposed Donald Ross Road extension, section lines, and the possible Impoundment 2BE and its maintenance road serve as such linear facilities. None of these linear facilities have restricted rights-of-way. Land use patterns are more than conceptually developed in the area of the Alternate corridor. The section line serves as an edge of a clearly established land use pattern. The annexation plans and Comprehensive Plan of Palm Beach Gardens evidence future development plans. From a land use perspective, it is appropriate to site a transmission line and allow developing residential areas to adjust and to mitigate impacts from that line. Development can build around a transmission line if the transmission line is placed in the landscape first. From a land use perspective, the Alternate corridor is more appropriate than the FPL corridor for construction of a 230 kV transmission line due to its greater distance from existing and proposed residential areas, which reduces the potential for visual impacts, adverse health effects, and reduction in property values. Old Marsh is a golf course community of 120 acres constructed in an area of pristine, natural prairie marsh wetlands. Two hundred and seventeen lots are platted within the Old Marsh development, with a maximum lot price of $250,000. Heavy vegetation, including palm and pine trees, borders the western boundary of Old Marsh. A 25-foot vegetative buffer borders the eastern boundary of Old Marsh. Old Marsh expended significant sums of money to bury all electrical distribution lines within the community to maintain the visual aesthetics of that unique, environmentally-sensitive community and to avoid injury from overhead electrical lines that may occur during a hurricane or other storm. The naturally occurring wetlands in the center and western part of the project were preserved. In the eastern part of the project, within the FPL proposed corridor, are located several golf course holes and water control facilities consisting of lakes and littoral zones. A canal system, which serves to manage the water resources for stormwater and environmental purposes, flows throughout the development. The lakes and littoral zones within the proposed FPL corridor serve as part of the project mitigation plan. The same facilities provide part of the storage volume retaining stormwater runoff, maintaining the project's water quality and reducing nutrient loading. The Northern Palm Beach County Water Control District, through the establishment of Unit of Development No. 21, constructed, operates, and maintains the water control facilities for Old Marsh. The operation and maintenance are in accordance with approved federal, state, and local permits and a judicially-approved plan. Securing permits for the Old Marsh project was extremely difficult because approximately one-third of the project land area was required to be preserved. The portion of the Old Marsh project included within the FPL proposed corridor includes land subject to conservation easements in favor of DER and the Northern Palm Beach County Water Control District. Transmission line construction within the FPL corridor through the Old Marsh property would severely impact the water control facilities and golf holes which are fully constructed. Old Marsh maximized the land area available such that relocating or reconfiguring the water management facilities or golf holes is not possible. Relocation or reduction in size of the water management facilities would destroy the function of the facilities. PGA National is a resort community located in the City Of Palm Beach Gardens which includes approximately 5,700 homesites, 4 golf courses, a hotel, a sports and recreation complex, and commercial and light industrial areas. It is an "upscale" community. One of the amenities of PGA National is that electrical distribution lines within the community are buried. The lines were buried for two reasons: to maintain the visual aesthetics of the community and for safety reasons, to avoid injury from downed electrical lines during hurricanes and other storms. The cost of burial of the distribution lines throughout the community was in the hundreds of thousands of dollars, which was part of the overall development cost of the community. The homes within PGA National along PGA Boulevard are traditional, single-family homes with permanent residents. The approximate cost of a home is $300,000. From a land use perspective, the north side of PGA Boulevard near PGA National would be a more appropriate location for a transmission line than the south side. The proposed FPL corridor parallels the Beeline Highway between the Beeline's intersection with County Road 711 and the Beeline's intersection with PGA Boulevard. This segment of FPL's proposed corridor is approximately 800 feet in width. On the north side of the Beeline, at the intersection with County Road 711 is the developing Palm Beach Park of Commerce. Just below the Park of Commerce is the Caloosa subdivision. Although the FPL proposed corridor is narrowed at that point, it is only narrowed to exclude the physical structures on the residential lots in the Caloosa development; it does not exclude the backyards of those properties. North of the Beeline Highway right-of-way, the FPL proposed corridor includes a 70 foot recreation, utility, and drainage easement within the Caloosa subdivision. The northern boundary of the corridor for much of its length corresponds to the northern boundary of that easement. The easement includes a canal which is an integral part of Caloosa's drainage system and is also a source of recreation for Caloosa residents. The Caloosa canal system will also be an integral part of the proposed Northern Palm Beach County Water Control District Water Resource Management Plan. Residential lots and homes are located immediately adjacent to the 70-foot easement. The corridor also includes portions of some of the residential lots of Caloosa property owners. Caloosa is the only residential area which abuts FPL's proposed corridor along the Beeline Highway segment. South of the Beeline Highway, the FPL proposed corridor also includes additional Florida Department of Transportation right-of-way, a railroad right- of-way, other easements for underground utilities, and approximately 200 feet of vacant undeveloped land. These linear facilities run parallel to the Beeline Highway corridor. The vacant land within the corridor south of the Beeline Highway, which is not a part of any existing right-of-way or easement, contains some scattered disturbed or impacted wetlands. There are no residential developments on the south side of the Beeline Highway. The land uses of the Beeline Highway segment of the corridor include vacant or undeveloped land, agricultural land, and residential land only where Caloosa is located. There are no planned residential developments along the Beeline Highway segment other than Caloosa. The linear facilities located on the south side of the Beeline Highway provide an opportunity to efficiently plan the transmission line corridor. From a land use perspective, the south side of State Road 710 (the Beeline Highway) would be a more appropriate location for a transmission line than the north side. Sharing of rights-of-way means either actually co-locating structures within the right-of-way or, for example, locating the FPL concrete structure within an FPL easement adjacent to the existing right-of-way but overhanging the conductors in the existing right-of-way. Such sharing of rights-of-way is important from a land use planning perspective in that it represents an opportunity to avoid impacting residential property and reduces the amount of land necessary for rights-of-way. Although it is FPL's preference to obtain its own rights-of-way, it is common practice for linear facilities to share rights- of-way. A transmission line is a linear facility. Along the Beeline Highway, FPL would have the opportunity to share existing rights-of-way on the south side of the Beelihe Highway with the Florida Department of Transportation, with the railroad, and with the other utilities in the utility easements. On the north side of the Beeline Highway, FPL would have the opportunity to share the Beeline Highway right-of-way. To locate the transmission line facility within the recreation, utility, and drainage easement within the Caloosa subdivision, FPL would need the approval of the Northern Palm Beach County Water Control District. It is the opinion of the Executive Director of the Northern Palm Beach County Water Control District that the Crane-Bridge-Plumosus 230 kV transmission line should not be located north of the Beeline Highway in the Caloosa easement. The construction of the transmission line in that easement creates a potential for conflict between FPL's construction and maintenance of its transmission facility and the Northern Palm Beach County Water Control District's maintenance of that easement and the canal system in Caloosa. Aesthetics At the PGA National community, on the south side of PGA Boulevard, there is currently a berm along the residential lot lines, approximately 4 feet in height with vegetation extending another 4 feet in height. Despite the presence of the berm, the 38-foot wooden distribution poles on the north side of PGA Boulevard are clearly visible from the backyards and patios of those residents living along PGA Boulevard as well as from the homes located across the street to the south. The transmission line structures in FPL's proposed corridor would be visible from the homes and the yards within the PGA National subdivision despite the berm and landscaping between the homes and the proposed 230 kV transmission line. Similarly, the transmission line structures would be visible from the homes and yards of the residents in the Martin Downs, Foxwood, Caloosa, Eastpointe and Palm Beach Country Estates subdivisions. Further, the entrance ways and entrance roads to those subdivisions and to the Old Marsh subdivision would be spanned by the proposed 230 kV transmission line. Although there are existing distribution lines along the roadways adjacent to those subdivision, those existing distribution lines utilize wooden poles approximately 38 feet high. On the other hand, the proposed Crane-Bridge- Plumosus transmission line will utilize concrete poles 80 feet or more in height, 2 feet wide at the base. The placement of the Crane-Bridge-Plumosus transmission line in the FPL proposed corridor will result in a new visual intrusion to residents of existing and planned residential communities. The visual impact of the proposed line is not the same impact as the existing distribution lines and is not merely an increased impact over the existing distribution lines; rather, the proposed transmission line utilizing tall concrete poles is a different visual impact than that currently caused by any existing wooden distribution poles. FPL does not contemplate any landscaping improvements in constructing the transmission line in order to visually block the line from the view of adjacent residences and residential property. To screen the view of a power pole such as is contemplated by FPL for this transmission line from a home 100 feet from the transmission line would require a 35-foot-high vegetative buffer. A power pole 150 feet away would require a 28-foot-high vegetative buffer. At a distance of 300 feet, a 20-foot-high buffer would be required; at 500 feet, an 18-foot-high buffer would be required. The proposed Crane-Bridge-Plumosus transmission line is not aesthetically pleasing and will have a substantial impact on the residents of subdivisions adjacent to it. Electric and Magnetic Fields When energized with electricity, a transmission line produces both electric and magnetic fields (hereinafter "EMF"). The Environmental Regulation Commission of DER adopted a rule on January 18, 1989, which established EMF standards to be met at the edge of transmission line rights-of-way or at the property boundary of new substations. Although the Crane-Bridge-Plumosus transmission line will meet the standards set forth in that rule, the rule itself specifically provides that the standards contained therein are interim standards pending further research and study. The rule provides that the standards contained within that rule will be re-visited within 2 years and further provides that there does exist evidence of potential for adverse health effects on the public and that existing knowledge is inadequate to conclude that no further action is needed. On the day following the passage of its EMF rule, the Environmental Regulation Commission passed a resolution recognizing the potential for adverse health effects on the public from EMF, and recognizing that it would be prudent to keep the long-term exposure of the population to low values of EMF by routing transmission lines outside of residential areas. That resolution specifically provided that new electric transmission lines of 69 kV or greater should be sited in a manner that would consolidate those lines with existing corridors, and, further, that new corridors should be planned in coordination with the land use plans of local governments to avoid placing corridors through residential areas. Members of the public testified in this proceeding that the recently- promulgated standards adopted by the Environmental Regulation Commission were not reassuring regarding public concerns of health hazards associated with electric and magnetic fields. The standards themselves are not a guarantee of safety. Moreover, the standards may not prove safe in the future. Of the numerous persons who testified at the two public hearings held in this cause, a substantial majority of them expressed fear for the health and welfare of themselves and their families from ENF. Burial of the transmission line within the FPL proposed corridor would alleviate the concerns of the residents of the PGA National, Caloosa, and Palm Beach Country Estates subdivisions who testified in this proceeding. Property Values Limited studies have been completed analyzing the impact of single concrete pole transmission lines on residential property values. Factors associated with power lines impacting property values include the proximity of homes to the line, the price range of the homes, the type of power line, lot sizes, and the public perception of transmission lines. The higher the price of the residence, the greater the potential impact on the residential value caused by a transmission line because purchasers of more expensive property favor and expect a more attractive visual environment. FPL's study of the impact of transmission lines on residential property values focused on communities on the west coast of Florida. That study was of little value since there was no showing of the similarity of the real estate markets in those communities and the real estate markets in Palm Beach County and Martin County. On the other hand, a Palm Beach County study indicated a devaluation of residential property as high as 32 percent when comparing sales of comparable homesites adjacent to and not adjacent to several types of transmission lines. Prior to the Final Hearing in this cause, parents of school age children had sued the Palm Beach County School Board to prevent the School Board from opening a new school facility which was built adjacent to large transmission lines. That litigation had been extensively covered by the media, and residents in at least Palm Beach County had become generally aware of the controversy regarding the impact of transmission lines on the health of children and the general population. That litigation was still pending at the time of the Final Hearing in this cause. At least in Palm Beach County there is a public perception that transmission lines are hazardous to human health. The public awareness of the controversy in Palm Beach County had caused one developer to cease sales of residential units located near transmission lines in that development. In other developments, the lots adjacent to transmission lines have been sized two or three times larger than lots located away from those transmission lines in order that the sales price of the lots near the lines could be comparable to the sales price of the lots away from the lines. Other developers have established large vegetative buffer areas or unusually wide setback areas between transmission lines and the lots nearest those transmission lines in order to offer to potential buyers an extra factor of privacy to compensate for the location of those homesites near transmission lines. In the Caloosa, PGA National, and Palm Beach Country Estates subdivisions, real estate sales have already been negatively impacted due to public knowledge of the proposed location of the FPL proposed corridor for the Crane-Bridge-Plumosus 230 kV transmission line. The numerous public witnesses testifying in this proceeding believe the property value of their homes will be severely and negatively impacted if the transmission line is constructed near their property. No one testified in this proceeding that he or she would be willing to purchase a home, or live, in the near proximity of a 230 kV overhead transmission line. The public perception of adverse health effects from overhead transmission lines, coupled with the adverse visual or aesthetic impact of transmission lines in residential areas, does have an adverse effect on residential property values. Policies of Public Bodies Just as the Florida Environmental Regulation Commission has issued a policy statement that transmission lines should be routed away from residential communities, the regional planning agency and local governments in the geographical area through which the proposed Crane-Bridge-Plumosus transmission line will be constructed have addressed similar positions. The Treasure Coast Regional Planning Council reviewed the FPL proposed corridor for the Crane- Bridge-Plumosus transmission line and concluded that burial of the proposed transmission line within the FPL proposed corridor may represent the best solution to provide a balance between environmental and socioeconomic impacts. Palm Beach County, by Resolution passed on April 4, 1989, adopted the comments of the Treasure Coast Regional Planning Council. That Resolution further strongly recommended that, based upon the policies of the County's Comprehensive Plan, as an additional condition of certification, the Crane- Bridge- Plumosus transmission line be placed underground where its right-of-way is to be located adjacent to existing or developing areas of densities of one unit per acre and above to minimize potential health, safety, aesthetic and property value impacts. The Resolution also recommended as a condition of certification that the FPL proposed corridor be narrowed to the south side of the Beeline Highway and the north side of PGA Boulevard to avoid the existing residential developments located on the north side of the Beeline Highway (Caloosa) and the south side of PGA Boulevard (PGA National). The current Palm Beach County Comprehensive Plan even calls for the burial of electrical distribution facilities in new growth areas. Martin County also adopted the Treasure Coast Regional Planning Council's report on the Crane-Bridge-Plumosus line and, therefore, the same comments regarding burial of the proposed line within the FPL proposed corridor as the best balance among the competing interests. The City of Palm Beach Gardens, by Resolution adopted April 21, 1988, after reviewing the FPL proposed corridor for the Crane-Bridge-Plumosus transmission line, opposed the establishment of the corridor for the proposed above-ground transmission line on PGA Boulevard. The Resolution further recited that the impact of such transmission lines pertaining to potentially adverse health consequences from both electric and magnetic fields and to the aesthetic balance of the PGA National entrance ways and the general community being destroyed far outweighed the other values that could be placed on the proposed location of the corridor. The City Council of Palm Beach Gardens prefers an alternate corridor alignment corresponding to the alignment of the Alternate corridor. The subdivision regulations of the City of Palm Beach Gardens require electrical distribution lines to be placed underground, and the City's proposed Comprehensive Plan in its current draft calls for the burial of transmission lines. Burial Burial of transmission lines has been used as an alternative engineering design where, for example, the transmission line is to go through residential areas or is to be located in the vicinity of airports. The Crane- Bridge-Plumosus proposed corridor is located in the same area as the proposed North Palm Beach County General Aviation facility on the south side of the Beeline Highway near the Caloosa residential community. Burial of the transmission line would negate the impacts to the public described above, i.e., the potential impacts from electric and magnetic fields, and the negative impacts to property values based upon the visual impact of the transmission line and the public perception of the hazardous nature of the transmission line. From a land use perspective, from a transmission line engineering perspective, and from an environmental perspective, the burial of transmission lines is an appropriate and desirable design technique. Burial of the Crane-Bridge-Plumosus 230 kV transmission line is not a design modification since the proposed transmission line has not been finally designed. This proceeding involves only the location of the corridor in which the line is to be designed and constructed, and FPL will not determine the design of the line until after this cause has reached final resolution. Rather, burial of the transmission line is an appropriate condition of certification to be considered, similar to the other design criteria agreed to previously by FPL in Attachment D to the Prehearing Stipulation as other conditions for certification of the Crane-Bridge-Plumosus corridor. The public bodies which have considered burial of the Crane-Bridge- Plumosus transmission line have determined burial to be an appropriate and desirable design condition for certification. Additionally, the witnesses who testified during the public hearing portions of this certification proceeding overwhelmingly endorsed burial of the transmission line as a condition of certification and expressed an enthusiastic willingness to pay the costs of that additional design criteria. Other Considerations During fair weather, noise from the proposed 230 kV transmission line normally will be below ambient levels. The noise from the proposed Crane- Bridge-Plumosus transmission line will comply with applicable local government noise ordinances. Radio and television interference from transmission lines is generally inversely proportional to the frequency of the radio or television transmission, the lower the frequency, the greater the potential for interference. FM radio transmissions, because of their higher frequency, have no noise interference from transmission lines. AM radio frequencies may be susceptible to interference from transmission lines. The effect can generally be corrected by simply adjusting the position of the receiver or antenna for the radio receiver. Television is broadcast using both AM and FM frequencies. The audio portion of the television is transmitted using FM frequency and, therefore, there is no transmission line interference. The video portion of television uses AM frequency and, therefore, may be susceptible to interference from foul weather on the lower television channels of 2 through 6. This interference can generally be corrected by reorienting the TV antenna. Pursuant to a condition of certification in Attachment D to the Prehearing Stipulation, FPL will investigate all complaints regarding radio and television interference and will provide appropriate mitigation for all impacts. If FPL complies with all of the conditions of certification contained in Attachment D to the Prehearing Stipulation, those conditions of certification agreed to in the settlement agreements entered into with Sands and with Martin Downs during the certification proceeding, the policies set forth in the resolutions of the public bodies discussed hereinabove, and the conditions of certification contained in this Recommended Order, then the Crane-Bridge- Plumosus 230 kV transmission line is expected to comply with all non-procedural requirements of agencies. Variances or exceptions from local zoning ordinances will likely be required, and these are expected to be obtained. Although none of the comprehensive plans of Martin County, Palm Beach County, the Town of Jupiter, or the City of Palm Beach Gardens requires transmission lines to be buried, the draft of the future Palm Beach Gardens Comprehensive Plan calls for the burial of transmission lines, and it is reasonable to believe that that provision will be retained in the final Comprehensive Plan in view of the policy statements of the City of Palm Beach Gardens discussed above. A waiver from the Martin County Comprehensive Plan prohibition on development in wetlands may be required once the ultimate right- of-way for the Crane-Bridge-Plumosus transmission line has been selected by FPL. I. Initial Costs FPL has provided estimated costs per mile for the construction and location of the Crane-Bridge-Plumosus line in its proposed corridor, including right-of-way acquisition costs, line construction costs (conductor installation costs and all other construction costs) and access road construction costs. According to FPL's estimates, the total cost per mile for the location and construction of the transmission line along the entire distance of the FPL proposed corridor averages $297,500. For the 4.0 miles of the FPL proposed corridor segment located between the beginning of the PGA/OM Alternate corridor and the Bonnette Substation (that segment where the FPL proposed corridor and the PGA/OM Alternate corridor deviate from each other), FPL estimates the total cost per mile to be $273,400, for a total cost of $1,093,600 for that 4.0 mile segment. FPL estimates the total cost per mile for the location and construction of the Crane-Bridge-Plumosus transmission line in PGA/OM Alternate corridor 2A to be $425,700. FPL adds to that cost the sum of $640,300 for "relocating" the Ryder Substation to the west of the PGA/OM Alternate corridor. Using those figures, the total cost for PGA/OM Alternate corridor 2A for the 4.1 miles from the beginning of that corridor to the Bonnette Substation is $2,385,700. For the PGA/OM Alternate corridor 2B, FPL estimates the total cost per mile to be $458,300. Adding the cost of $640,300 for "relocating" the Ryder Substation, the total cost for the 5.2 miles of PGA/OM Alternate corridor 2B would be $3,025,500. It is erroneous to include in the cost estimates for the PGA/ON Alternate corridor the figure of $640,300 for the cost of relocating the Ryder Substation. First, no relocation is involved since the Ryder Substation does not exist. What does exist is a site that FPL has selected for placement of a substation to be called the Ryder Substation. Second, PGA/OM does not propose that the Ryder Substation be relocated to the west side of the Alternate corridor, but rather proposes that the Ryder Substation be relocated to the east side of the Alternate corridor, a difference of approximately 1,100 feet less. Even FPL's experts admit that relocating the Ryder Substation to the east side of the Alternate corridor rather than the west side would only cost $490,000, rather than the $640,300 which they have computed in their cost estimates. Third, the only cost identified in the "relocation" figure is the cost of distribution lines (radial feeds) which would be increased in length and therefore be more expensive due to locating the Ryder Substation one mile west of FPL's projected load center. Although computing the extra expense for the longer lines running in one direction, FPL fails to compute the decreased costs of the necessarily shorter lines running in the opposite direction. Most importantly, there is no basis for computing the costs of the location of the Ryder Substation and adding those costs to the cost estimates for the PGA/OM Alternate corridor since FPL does not compute the cost of the seven other intermediate substations in computing the costs of the transmission line to be constructed in FPL's proposed corridor. Since the cost of the substations along the FPL proposed corridor are not computed in FPL's cost estimates, so should the cost of the Ryder Substation be similarly excluded from the cost estimates for the Alternate corridor. Only the location of the Ryder Substation is at issue in this proceeding. Even if the costs of the Ryder Substation were an issue, they are highly speculative. The cost difference estimated by FPL between Alternate 2A and the FPL corridor is approximately $1.3 million. The cost difference estimated by FPL between Alternate 2B and the FPL corridor is approximately $2 million. Estimated costs are higher for the Alternate corridor, if evaluated under present conditions, in part due to the dissimilarity between the FPL proposed corridor and the Alternate corridor in the extent of roads available for construction and maintenance access purposes. The difference attributable to access road construction is speculative for two reasons: first, until FPL actually selects a right-of-way, the extent of access roads necessary in the FPL proposed corridor is uncertain. Second, approval of the Loxahatchee River Basin Water Resources Plan and/or the other two water management plans proposed in the area east of the C-18 Canal may well reduce the extent of access roads needed to be constructed in the Alternate corridor. It appears that transmission line initial costs for PGA/Old Marsh Alternate corridor 2A would be less than for Alternate corridor 2B, primarily because of Alternate corridor 2A's shorter length. FPL estimates costs for right-of-way acquisition in the FPL proposed corridor between Old Marsh and Eastpointe to be $39,000 per mile. FPL's estimate for right-of-way acquisition does not include the cost of acquisition of improvements within a right-of-way, severance damages, or costs of litigation. FPL calculated its estimated costs based upon present conditions and factors. Final costs of line construction may be substantially different from those estimates for both the FPL and the Alternate corridors based upon an increase or decrease in construction materials costs, the ability of FPL to enter into agreements with local governments or the Northern Palm Beach County Water Control District for access easements, the ability of FPL to enter into agreements with private land owners for access easements, the ability of FPL to site the line to minimize wetlands impacts and the associated costs of mitigating those impacts, the ability of FPL to site the transmission line to minimize land use impacts existing at the time of actual siting and construction of the line, and the ability of FPL to use transmission line construction techniques developed during the time between the Final Hearing in this cause and the actual line construction that may further reduce construction line costs. These costs could vary whichever corridor is certified. Further, engineering design problems are created when a transmission line corridor is designed to go through already developed property or developing property as opposed to vacant land. Design problems which occur because the transmission line is designed for developed or developing property increase. The cost of the transmission line. Generally, the cost of constructing the transmission line is reduced where there is less congestion. As to the approximate cost for burial of a 230 kV transmission line, FPL estimates the cost per mile for materials and labor to install a double circuit 230 kV transmission line underground ranges from $1.6 million to $2.2 million. Added to these costs is $1.2 million for the two terminal ends required at the beginning and ending points of each underground segment of the transmission line, however many miles long that transmission line segment might be. The FPL estimates for burial costs are based upon historic FPL costs, such as the previous burial of transmission lines under Biscayne Bay. It is likely that such a project would have been more costly than burial of transmission lines in any of the segments of the corridors proposed for the Crane-Bridge- Plumosus transmission line. Another historical cost project in which FPL buried its transmission line was a project in which FPL chose to place that line underground because burial costs were much less expensive than the cost of acquiring the right-of-way needed through the residential area. Underground placement of 230 kV transmission lines is technically feasible and has been done by FPL in the past. The decision to bury transmission lines is primarily a decision based upon cost considerations. The costs of burying transmission lines are decreasing. Typical underground transmission line design calls for the cable to be oil-insulated and encased in concrete. Other technology involving solid dielectric trunk cable which is less expensive and easier to handle than oil-insulated cables has been used throughout Europe for many years. Other utility companies have buried transmission lines at less cost than FPL's estimates. The Jacksonville Electric Authority recently constructed an underground transmission project at a cost of approximately $1 million per mile utilizing typical oil-insulated technology. The utilization of solid dielectric cable would have been even less costly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Siting Board enter a Final Order: Approving FPL's application for certification of its proposed `Crane- Bridge-Plumosus 230 kV transmission line corridor subject to the following conditions: FPL's proposed corridor shall be modified so that it substitutes PGA/OM Alternate 2A for that portion of the FPL proposed corridor from which PGA/OM Alternate corridor 2A deviates; The Ryder Substation siting area shall be moved so that it is located adjacent to PGA/OM Alternate 2A on the east side of that Alternate corridor; The transmission line shall be buried in all other segments of the FPL proposed corridor where the corridor is within 300 feet of any existing subdivisions as specifically described in the Conclusions of Law section of this Recommended Order. FPL shall comply with all conditions set forth in Attachments A and B to this Recommended Order; and FPL shall seek any necessary interest in state lands prior to engaging in any activity on or affecting that land, pursuant to Section 403.531(3), Florida Statutes. In the alternative and as a second choice to the recommendation contained in paragraph numbered 1, approving FPL's application for certification of its proposed Crane-Bridge-Plumosus 230 kV transmission line corridor subject to the following conditions: FPL shall bury the transmission line where its proposed corridor is within 300 feet of existing subdivisions as specifically described in the Conclusions of Law section of this Recommended Order; FPL shall locate the Ryder substation in the interior portion of its proposed siting area and north of PGA Boulevard; FPL shall comply with all conditions set forth in Attachments A and B to this Recommended Order; and FPL shall seek any necessary interest in state lands prior to engaging in any activity on or affecting that land, pursuant to Section 403.531(3), Florida Statutes. Dismissing as parties to this proceeding for non-appearance at the Final Hearing the Department of Community Affairs, the Treasure Coast Regional Planning Council, the Florida Game and Fresh Water Fish Commission, the Town of Jupiter, the City of Palm Beach Gardens, Donald Ross Landowners Association, Inc., and Box Ranch Management Corporation. DONE AND ENTERED this 30th day of June, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 30th day of June, 1989. COPIES FURNISHED: 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 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399 =================================================================
The Issue The issue for determination in this proceeding is whether the corridor for the Seminole Plant-Keystone-JEA Firestone 230 kV Transmission Line proposed by the Applicants, Seminole Electric Cooperative, Inc. and Jacksonville Electric Authority, is proper for certification under the Transmission Line Siting Act, Sections 403.52-403.5365, Florida Statutes (1989 and Supp. 1990).
Findings Of Fact Procedural Matters Determination of Need. The determination of need for the SKF Transmission Line was made by the PSC pursuant to Section 403.537, Florida Statutes, by Order No. 22713, dated March 20, 1990, attached as Appendix A to this proposed Recommended Order. The PSC determined that the SKF Transmission Line was needed for several reasons. First, the proposed transmission line will improve the reliability of electrical service to customers of CEC by replacing the radial, or dead-end, 69 kV transmission line that presently serves the Riverview, Florahome and Keystone substations. The proposed transmission line will provide looped service to these existing substations and prevent the occurrence of a single contingency outage. If a single outage occurs at some point along the proposed transmission line, all of the substations can continue receiving power from one direction or the other. Secondly, the proposed SKF Transmission Line will improve the reliability of service to JEA's Firestone Substation by preventing future overloads and low voltage conditions on the JEA system. Finally, the proposed transmission line will improve the transfer capability of the SECI's transmission system by providing an interconnection with the JEA transmission system allowing SECI to purchase more economical generation capacity outside the State of Florida. The estimated economic benefit over the next 20 years to SECI's customers is $48.2 million and to JEA customers is $544,000. The PSC determined that the proposed transmission line was needed in service by 1994. Filing of Application and Notices. On September 7, 1990, the Applicants, SECI and JEA, filed with DER the Seminole Plant-Keystone-JEA Firestone 230 kV Transmission Line Application for Corridor Certification. Notices of the Application and the certification hearing were properly published in the Florida Administrative Weekly and in newspapers of general circulation within the counties to be crossed by the proposed transmission line corridor. No party properly filed an alternate corridor for consideration in this proceeding. Project Design As described in the Application, the Applicants propose a single 230 kV transmission line which will originate at the Seminole Plant in Putnam County and terminate at the JEA Firestone Substation in the City of Jacksonville/Duval County. The total length of the proposed transmission line corridor is approximately 70 miles. Approximately 35 miles of the proposed corridor is located along existing transmission line rights-of-way and the proposed transmission line will replace or be collocated with existing transmission lines within these rights-of-way. The majority of the remaining proposed corridor is located along major linear facilities such as S.R. 100, S.R. 21, and the proposed Branan Field-Chaffee Limited Access Road. A map of the proposed SKF Transmission Line corridor is shown in Appendix B to this Recommended Order. Between the Seminole Plant and the JEA Firestone Substation, the SKF Transmission Line will connect to four existing substations. In Putnam County, the proposed transmission line will connect to the Riverview and Florahome substations. In Clay County, the proposed transmission line will connect to the Keystone and Black Creek substations. SECI will be responsible for the construction, operation and maintenance of the proposed transmission line in Putnam County and Clay County. JEA will be responsible for the construction, operation and maintenance of the proposed transmission line in the City of Jacksonville/Duval County. Location of the Preferred Corridor, Existing Land Use and Cover Seminole Plant to Riverview Substation. The proposed transmission line corridor originates at the Seminole Plant and proceeds west along SECI's existing 230 kV transmission line right-of-way. Approximately two miles west of the Seminole Plant, the corridor turns south toward the Riverview Substation. In this section of the corridor, the developed land uses include the Seminole Plant and the Putnam County Landfill. Agricultural land uses include pasture and planted pine. Natural vegetative areas include some mixed swamp forest along the Moccasin Creek, cypress domes west of the Seminole Plant, and some sandhill. Surface water bodies in this portion of the corridor include Moccasin Creek, an unnamed pond and a tributary leading to the St. Johns River. Riverview to Florahome Substation. From the Riverview Substation, the proposed corridor generally heads west toward the Florahome substation following the existing CEC 69 kV transmission line right-of-way. The corridor widens near Bardin to include an existing SECI 230 kV transmission line right-of-way. Land uses in this portion of the corridor include primarily planted pine, pasture, and some low density residential. Vegetative communities include sandhill, pine plantation, and mixed swamp forest around the Etonia and Simms Creeks. Several small unnamed canals, ditches, ponds and streams are crossed by this portion of the corridor. Named water bodies crossed by the corridor in this area include Simms Creek and Etonia Creek. Florahome to Keystone Substation. The proposed transmission line corridor heads west and north from the Florahome Substation to the Keystone Substation. The corridor continues to follow the existing 69 kV transmission line right-of-way into the City of Keystone Heights. Pursuant to a Stipulation between the City of Keystone Heights and SECI, the proposed transmission line corridor will turn south from the existing 69 kV transmission line right-of-way on the east side of Commercial Circle and proceed to the Keystone Substation along S.R. 100. Developed land uses in the area of the Florahome Substation are sparse and are comprised of mostly pasture and low density residential. As the proposed corridor approaches the City of Keystone Heights, residential areas become more prevalent. Within the City of Keystone Heights the land uses are primarily institutional, and commercial services with sparse residential development. Natural vegetation in this part of the corridor includes sandhill and disturbed oak hammock. Water bodies crossed by the corridor in this area include small unnamed ponds, lakes, streams, and canals. Keystone to Black Creek Substation. From the Keystone Substation, the proposed transmission line corridor follows S.R. 21 north to the intersection of C.R. 215. At this point the corridor continues north and then east following the existing CEC 115 kV transmission line right-of-way to the Black Creek Substation. SECI will locate the SKF Transmission Line within the existing CEC 115 kV transmission line right-of-way. Land uses in this area of the corridor include some commercial/services near the City of Keystone Heights, industrial, such as the Gold Head Mine, Gold Head Branch State Park, the Camp Blanding military reservation along S.R. 21, and some residential areas near the community of Middleburg. The vegetative communities include primarily sandhill and pine plantation, with some mixed swamp forest near the Black Creek and its tributaries, and smaller areas of cypress domes and sand pine scrub. The corridor crosses several named water bodies in this area including a narrow portion of Brooklyn Lake adjacent to S.R. 21, Ates Creek, the South Fork of Black Creek, Bull Creek, Mill Creek, Dillaberry Branch, the North Fork of Black Creek and Grog Branch. Several smaller unnamed streams, ponds, canals, and tributaries associated with these water bodies are also crossed. Black Creek to JEA Firestone Substation. The proposed transmission line corridor proceeds north from the Black Creek Substation centered on the existing Branan Field Road and the proposed Branan Field-Chaffee Limited Access Road to a point directly west of the JEA Firestone Substation where the corridor turns to the east. The corridor heads east and intersects and follows an existing JEA 138 and 230 kV transmission line right-of-way to the JEA Firestone Substation. In this section of the corridor, the land uses include some residential areas to the north of the Black Creek Substation and along the edges of the existing transmission line right-of-way west of the JEA Firestone Substation. The corridor crosses areas of pine flatwoods, pine plantation, and sandhill. Wetland areas include some cypress domes and some mixed swamp forest near the north and south prong of the Double Branch River, and the Ortega River. Water bodies crossed by the corridor in this area include unnamed canals and ponds, the South and North Prong of the Double Branch, the Ortega River and several unnamed tributaries associated with these water bodies. Proposed Design, Construction and Maintenance of the SKF 230 kV Transmission Line SECI Structures. In Putnam County and Clay County, SECI will use one of five typical transmission line structures. In rural areas along the majority of the proposed transmission line corridor, SECI will use an H-frame transmission line structure. In more urbanized areas, either single pole vertical or delta transmission line structures may be used. Where it is feasible to locate distribution lines on the same structure with the transmission line, SECI will use a single pole vertical with distribution underbuilt structure. Where it is feasible to collocate the proposed transmission line with an existing transmission line or where it is necessary to double-circuit the proposed transmission line, SECI will use a single-pole, double-circuit transmission line structure. The span lengths between the transmission line structures will vary between 600 to 1,200 feet. Overhead ground wires will be attached to the top of each structure and may contain a fiber optic cable. The minimum clearance for the SECI portion of the transmission line will be 26 feet. JEA Structures. In the City of Jacksonville/Duval County, JEA will use a single pole vertical structure where new right-of-way is acquired. Where the proposed transmission line is collocated with the existing JEA 138 kV transmission line, the conductors will be located on the existing single pole vertical transmission line structures. The minimum clearance for the JEA portion of the proposed transmission line will be 22.5 feet. Right-of-Way Requirements for SECI and JEA. In Putnam County and Clay County where the proposed transmission line replaces the SECI 69 kV transmission line or is collocated with the CEC 115 kV transmission line, the proposed transmission line will be located in the existing 100-foot-wide right-of-way. Where the SECI portion of the transmission line is located adjacent to an existing road or railroad right-of-way, the right-of-way width may vary between 25 to 100 feet in width. In the City of Jacksonville/Duval County, the transmission line right-of-way may be up to 130 feet wide. Phases of Construction. The primary phases of construction for the SKF Transmission Line include surveying the right-of-way, right-of-way clearing, access road and structure pad construction, and structure erection and conductor stringing. The phases of construction will generally be the same for both the SECI and JEA portions of the proposed transmission line. Surveying. In the first phase of construction, the boundaries for new right-of-way within the proposed corridor will be determined and staked for clearing. The boundaries where new access roads and structure pads are required will also be determined. Right-of-Way Clearing. After surveying is completed, vegetation in the new right-of-way, and where necessary in the existing right-of-way, will be cleared. In upland areas, the right-of-way will be cleared to the ground level, leaving the existing root mat. In wetland areas, restrictive clearing, as defined in DER Condition of Certification S-2.B and SJRWMD Condition of Certification S-23 B.(1), will be used. (A compilation of the Conditions of Certification is attached hereto as Appendix C to this Recommended Order.) Access Road and Structure Pad Construction. Due to the location of the majority of the proposed transmission line along existing transmission line rights-of-way and roads, new access road and structure pad construction will be minimized. New access roads and structure pads will be required in areas where soft soil conditions do not support the weight of the equipment required to construct and maintain the proposed transmission line. Where access roads and structure pads are constructed, fill material will only be used when the existing soil cannot be properly compacted for construction. Structure Erection and Conductor Stringing. The transmission line structures will be erected using cranes and other support vehicles such as bulldozers, tractors and light vehicles. Foundations for the structures may be either native soil, crushed rock or, in the case of heavy line angles, concrete. After the structures have been erected, the conductors will be installed using various tension machines and cable pullers. Duration of Construction Phases. Each phase of construction along a typical mile of the transmission line will last two to five days. The construction time for the entire SKF Transmission Line will be approximately 18 months. Transmission Line Load Design. The SECI portion of the proposed transmission line is designed for a nominal voltage of 230 kV with a maximum current rating (MCR) of 2000 amperes. The JEA portion of the transmission line is also designed for a nominal voltage of 230 kV with a MCR of 1,677. Transmission Line and Right-of-Way Maintenance. Transmission line and right-of-way maintenance is typically the same for both the SECI and JEA portions of the transmission line. The transmission line will be patrolled approximately every two months. Repairs and maintenance to the transmission line, access roads and culverts will be performed at this time, if necessary. The right-of-way will be mowed approximately every two years. Where mowing is not feasible, herbicides will be used in accordance with DER Condition of Certification S-7 as set forth in Appendix C to this Recommended Order. Compliance with Codes and Engineering Standards. The proposed transmission line will be designed and constructed to meet the requirements of the National Electrical Safety Code (Ed. 1990), REA Transmission Line Design Guidelines, the Florida Department of Transportation Utility Accommodation Guide (May 1990), and Chapter 17-274, Florida Administrative Code. Materials used for the construction of the proposed transmission line will comply with the American National Standards Institute (ANSI), American Society of Testing Material (ASTM), and American Concrete Institute (ACI). Stipulations Concerning Transmission Line Design. The Applicants have agreed with various state, regional and local agencies regarding conditions of certification applicable to the construction and location of the proposed transmission line. All of the conditions of certification regarding the design or location of the proposed transmission line are encompassed within the ranges of design and location proposed in the Application. The Conditions of Certification affecting the construction and location of the SKF Transmission Line are included in Appendix C to this Recommended Order. Impacts of the SKF Transmission Line Upon the Public Impacts on Existing Land Uses. The SKF Transmission Line will have a minimal impact on existing land uses. Approximately 35 miles of the 70 mile corridor follows existing transmission line rights-of-way where the SKF Transmission Line will replace or be collocated with the existing transmission lines. Approximately 33 of the remaining 35 miles of the corridor parallel existing or proposed linear facilities; i.e., S.R. 100, S.R. 21, the Georgia Southern and Florida Railroad, Branan Field Road and the proposed Branan Field- Chaffee Limited Access Road. The use of existing transmission line rights-of- way and the paralleling of linear facilities minimizes disruption to existing land uses and minimizes the need for new access road construction. Additionally, other than some residential areas near the City of Keystone Heights and Middleburg, most of the corridor traverses undeveloped land and agricultural land. The Applicants have stipulated with the City of Keystone Heights and Clay County on Conditions of Certification for the location and construction of the transmission line in the City of Keystone Heights and surrounding area, and in the community of Middleburg. These Conditions of Certification are included in Appendix C to this Recommended Order. Construction Noise. Construction activities, such as right-of-way clearing, are minimized by locating the majority of the proposed corridor along existing transmission line rights-of-way. Construction activities will take place in short phases where the total time in any one area will be one to two weeks. Noise associated with construction activities is confined to machinery used intermittently during construction and will occur only during daylight hours. Electric Shock. The National Electrical Safety Code (NESC) sets standards for the installation, operation and maintenance of electric and communication facilities necessary to protect the safety of the public and operators of those facilities. The proposed transmission line will comply with the requirements of the NESC. Lightning. Lightning is generally attracted and diverted to the tallest object on the ground in a particular area. Transmission line structures, often the tallest structures in an area, are frequently struck by lightning. To protect the transmission line against large surges in voltage and current which can cause damage, the Applicants will protect the SKF Transmission Line by placing ground wires above the conductors to interrupt the lightning and safely route it to an extensive grounding system at the base of the structures consistent with the NESC. This structural design should produce no risk to people or residents adjacent to the transmission line and may provide additional safety in the vicinity of the transmission line by diverting lightning to the transmission line grounding system. Transmission Line Noise. During fair weather transmission line noise will be below ambient noise levels. Measurable noise will only be generated by the transmission line during foul weather or when the conductors are saturated with water. During these periods, the maximum noise levels will range between 39 dBA to 48 dBA. In all instances, the noise levels generated by the transmission line will comply with applicable local government noise ordinances. Radio and Television Interference. The proposed transmission line will not interfere with frequency modulated (FM) radio reception. The transmission line may interfere with amplitude modulated (AM) radio reception depending on the frequency level of the transmission, the location of the receiver, and the strength of the radio transmission. No interference from the transmission line is expected to AM radio reception from a Type A station where the receiver is located at least 20-25 feet from the edge of the transmission line right-of-way. Interference from the transmission line to AM radio reception from a Type B station may occur if the receiver is located within 100 feet of the transmission line. Foul weather may increase the level of interference. Interference to AM radio reception from the transmission line can usually be corrected by adjusting the position of the antenna for the radio receiver. The audio portion of television is transmitted using FM frequency and will not experience interference from the transmission line. The video portion of television is transmitted using the AM frequency and therefore may experience interference from the transmission line. This interference should be limited to the weaker Grade B television transmissions, during foul weather, on channels two through six. Pursuant to Condition of Certification S-5 shown in Appendix C to this Recommended Order, the Applicants will investigate complaints regarding radio and television interference and provide appropriate mitigation for all impacts. Interference with Other Communication Systems. The transmission line will not interfere with cable television reception or telephone reception. Pursuant to the Condition of Certification S-10 shown in Appendix C, SECI will perform a base line communication measurement for the Keystone Fire Tower and take any necessary steps to correct any interference the transmission line may cause to the Keystone Fire Tower communications system. Electric and Magnetic Fields. Electric and magnetic fields are produced by virtually all electrical equipment. Transmission lines also produce electric fields, measured in kilovolts per meter (kV/m), and magnetic fields, measured in milligauss (mG). Standards for electric and magnetic fields produced by transmission lines are set forth in Chapter 17-274, Florida Administrative Code. The calculations for electric fields within and at the edge of the right-of-way, and for magnetic fields at the edge of the right-of- way, are made using the Bonneville Power Administration (BPA) Corona and Field Effects Program. Pursuant to Chapter 17-274, calculations for electric and magnetic fields are made under a worst case scenario; e.g. maximum conductor voltage, minimum conductor to ground clearance, and maximum current rating. The calculated electric and magnetic fields for the proposed SKF Transmission Line are shown on Appendix D to this Recommended Order. Depending on the final engineering of the transmission line, the actual electric and magnetic field levels will likely be lower than those shown in Appendix D. Pursuant to Chapter 17-274, Florida Administrative Code, the electric field for a 230 kV transmission line shall not exceed 8 kV/m within the right-of-way and 2.00 kV/m at the edge of the right-of-way, and the magnetic field shall not exceed 150 mG at the edge of the right-of-way. See, Rule 17-274.450(3) F.A.C. The proposed SKF Transmission Line complies with these standards. Further, a review of these standards is being undertaken by DER in deference to the rule's recognition of "a potential for adverse health effects" associated with electrical and magnetic fields emanating from electrical transmission and distribution lines. In accordance with Condition of Certification S-6 of appendix C, applicants agree to comply with presently existing electrical and magnetic field standards as well as any amendments to those standards which may result from DER's review of the state of the science in this area. Impacts of the SKF Transmission Line Upon the Environment: Water Resources, Vegetation and Wildlife Water Resources Flood Levels. The proposed SKF Transmission Line will not adversely impact flood elevations in the area of the preferred corridor. The majority of the preferred corridor is located along existing transmission line rights-of-way and other major linear facilities, such as S.R. 100, S.R. 21, and the Branan Field-Chaffee Limited Access Road, thereby minimizing the amount of fill required for new access roads. Additionally, all the surface water bodies along the corridor can be spanned by the proposed transmission line thus eliminating the need for any fill or structures in open water. Water Quality. The location and construction of the proposed transmission line within the corridor will not adversely affect water quality. The use of existing rights-of-way for the proposed transmission line will minimize disturbances to the ground cover in the area of the preferred corridor thereby reducing the potential for erosion. Where new access roads or structure pads are built the soil will be compacted and erosion control devices such as mulch and fiber fences will be used to control erosion that could affect water quality. Water Quantity. The proposed transmission line will not adversely affect the water quantity in the area of the preferred corridor. The location of the transmission line within existing rights-of-way and along roadways will minimize the need for new access roads. Where new access roads must be built, culverts will be installed where appropriate to maintain existing hydroperiods. Low-lying vegetation in areas not occupied by existing or new access roads and structure pads will be allowed to grow, thereby maintaining the infiltration and runoff rates in the area of the corridor. Ground Water. Limited dewatering may be required for construction of the transmission line and will not exceed the consumptive use permitting thresholds or exemptions adopted by the SJRWMD. Where dewatering is required for the placement of a structure foundation, the water will be discharged on site and allowed to percolate through the ground to recharge the surficial aquifer. Conditions of Certification Regarding Water Resources. The Applicants have agreed with DER and SJRWMD on Conditions of Certification regarding water resources. If constructed in accordance with these Conditions of Certification, the proposed transmission line will comply with the water quality, and water quantity and wetland standards for DER and the SJRWMD. Vegetation Impacts on Vegetation and Clearing. The impacts to vegetation from the location, construction and maintenance of the SKF Transmission Line within the proposed corridor will be minimal. For approximately one-half the length of the corridor, the SKF Transmission Line will be located within existing transmission line rights-of-way. Location of the SKF Transmission Line within existing transmission line rights-of-way virtually eliminates the need for new clearing of vegetation within those portions of the corridor. Approximately 33 of the remaining 35 miles of the proposed corridor follows existing linear facilities such as roads and railroads. The use of existing linear facilities will facilitate access to the SKF Transmission Line thereby reducing the amount of new access road construction and permanent clearing. Vegetation that will be cleared within the corridor is not regionally unique, nor does it provide critical habitat to wildlife species. Moreover, where clearing does occur, low lying vegetation will be allowed to revegetate. In wetland areas, clearing practices will be used to minimize the impacts to those communities. In freshwater marsh areas where access roads and structure pads are not required, no clearing will occur. Pursuant to DER Condition of Certification S-2.B. and SJRWMD Condition of Certification II b.(1), restrictive clearing shall be used in forested wetland areas to minimize impacts to wetland vegetation. Wildlife Wildlife Habitats. Wildlife habitats within the SKF Transmission Line corridor are primarily sandhill communities, various pine communities, pasture land and various freshwater and forested wetland areas where the corridor is crossed by creeks and rivers. Along the majority of the corridor, the proposed transmission line will be located adjacent to or within existing linear facilities thereby minimizing the clearing required in the various wildlife habitats. No federally designated Critical Habitat is crossed by the corridor. Threatened and Endangered Species. The corridor was screened for 51 species of wildlife designated by various federal, state, and regional agencies as Threatened and Endangered, Rare, or Species of Special Concern. Other than the gopher tortoise and associated commensurals, none of the 51 species were found to be dependent upon any of the wildlife habitats within the corridor. In respect to gopher tortoises, a regionally common species throughout the area, structure locations can be varied to minimize impacts to this species. Stipulations with DNR and GFWFC. Prior to the location of the transmission line right-of-way across any portion of the Mike Roess Gold Head Branch State Park, the Applicants will consult with DNR and ensure that the location of the right-of-way complies with the Incompatible Use Policy. (Section 403.531(3), Florida Statutes.) Prior to any clearing activities, the Applicants will conduct a threatened and endangered species survey. The survey will be submitted to the U. S. Fish and Wildlife Service and GFWFC for review and appropriate steps taken to avoid, minimize, or mitigate impacts to any identified species. Nonprocedural Requirements of Agencies The Applicants have expressly accepted the Conditions of Certification attached hereto as Appendix C to insure that the location, construction and maintenance of the SKF Transmission Line within the Applicants' corridor will comply with the nonprocedural requirements of state, regional and local government agencies. Two special exceptions required for the SKF Transmission Line were identified in the Application. A special exception will be needed for the location of the proposed transmission line in any zoning district in Putnam County. In the City of Jacksonville/Duval County, a special exception will be required for the location of the transmission line within the General Floodplain District. Evidence admitted at hearing, including that regarding corridor selection methodology, transmission line design and construction techniques, together with the Conditions of Certification attached as Appendix C, support the issuance of the special exceptions in Putnam County and the City of Jacksonville/Duval County. Compliance with Comprehensive Plans The location of the SKF Transmission Line within the Applicants' corridor will be compatible with existing land uses and consistent with the applicable comprehensive plans of Putnam County, Clay County, City of Jacksonville/Duval County, and the City of Keystone Heights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Siting Board enter a Final Order approving SECI's and JEA's Seminole Plant-Keystone-JEA-Firestone 230 kV Transmission Line Application for Corridor Certification subject to the Conditions of Certification as set forth in Appendix C to this Recommended Order. RECOMMENDED this 30th day of April, 1991, in Tallahassee, Florida. Don W. Davis, Hearing Officer Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1991.
