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FLORIDA
POWER & LIGHT COMPANY
CONDITIONS
OF CERTIFICATION: TA 03-12
Table of Contents
I.
CERTIFICATION CONTROL
II.
APPLICABLE RULES
III.
DEFINITIONS
IV.
DESIGN AND PERFORMANCE CRITERIA
V.
RIGHT OF ENTRY/MONITORING
VI.
EMERGENCY REPORTING
VII.
CERTIFIED CORRIDOR
VIII.
PROCEDURES FOR POST-CERTIFICATION SUBMITTALS
IX.
DISPUTE RESOLUTION
X.
SEVERABILITY
XI.
ENFORCEMENT
XII.
REVOCATION OR SUSPENSION
XIII. PROPERTY RIGHTS
XIV. PROCEDURAL RIGHTS
XV.
MODIFICATION OF CERTIFICATION
XVI.
SUBMITTALS AND NOTICES REQUIRED BY CONDITIONS
XVII. TRANSFER OF
CERTIFICATION
XVIII. ROW
LOCATION
XIX.
PROCESS FOR REVIEW OF ROW LOCATION
XX. ROW
SURVEYS
XXI.
ACTIVITIES IN WETLANDS
XXII. DRAINAGE
AND EROSION CONTROL
XXIII. CONSTRUCTION PRACTICES
XXIV. MITIGATION
XXV.
ELECTRIC AND MAGNETIC FIELD EFFECTS
XXVI. HERBICIDES
XXVII. OPERATION AND MAINTENANCE OF FACILITIES
XXVIII. SOUTH FLORIDA WATER MANAGEMENT DISTRICT WORKS AND
LANDS
XXIX. TRANSMISSION LINE DESIGN
XXX. FLORIDA DEPARTMENT OF TRANSPORTATION
XXXI. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND
Attachment 1
Attachment 2
Attachment 3
Attachment 4
History Notes
A.
Under the control of these Conditions of Certification, Florida
Power & Light Company (FPL) will construct and operate a 230-kilovolt (kV)
transmission line consisting of an approximately 53.9 mile transmission
line between the Orange River substation in Lee County and the Collier
substation in Collier County, Florida, consisting of structures,
conductors and appurtenant facilities to be located in a final ROW,
typically up to 60 feet in width. The facility is known as the
Collier-Orange River #3 230-kV transmission line and is to be located
within a certified corridor located within Lee and Collier Counties,
Florida.
B. These Conditions of
Certification, unless specifically amended or modified, are binding upon
FPL and shall apply to the construction, operation and maintenance of the
certified facility. If a conflict should occur between the design
criteria of this project and the Conditions of Certification, the
Conditions shall prevail unless amended or modified. In any conflict
between any of these Conditions of Certification, the more specific
condition governs.
I Citation:
Section 403.531, F.S. (2002).
The construction and operation of the
certified transmission line shall be in accordance with all applicable
non-procedural provisions of Florida Statutes and Florida Administrative
Code, including, but not limited to, the following regulations, except to
the extent a variance, exception, exemption or other relief is granted in
the final order of certification: Chapter 403 (Environmental Control),
Florida Statutes (F.S.), and Chapters 40E-4 (Environmental Resource
Permits), 40E-6 (Works or Lands of the District), 40E-40 (General
Environmental Resource Standard Permits), 62-4 (Permits), 62-17 Part II
(Transmission Line Siting Act), 62-301 (Surface Waters of the State),
62-302 (Surface Water Quality Standards), 62-330 (Environmental Resource
Permitting), 62-340 (Delineation of the Landward Extent of Wetlands and
Surface Waters), 62-343 (Environmental Resource Permit Procedures), and
62-814 (Electric and Magnetic Fields), Florida Administrative Code
(F.A.C.).
II Citation: Section
403.531, F.S. (2002).
Unless otherwise indicated herein, the
meaning of terms used herein shall be governed by the definitions
contained in Chapters 373 and 403, Florida Statutes, and any regulation
adopted pursuant thereto. In the event of any dispute over the meaning of
a term used in these conditions which is not defined in such statutes or
regulations, such dispute shall be resolved by reference to the most
relevant definitions contained in any other state or federal statute or
regulation or, in the alternative by the use of the commonly accepted
meaning as determined by the Department. In addition, the following shall
apply:
A.
“Application” shall mean the Application for Corridor Certification for
the Florida Power & Light Company Collier-Orange River #3 transmission
line, as supplemented by the Sufficiency Response and as amended on
October 22, 2004.
B. "DCA" shall mean
the Florida Department of Community Affairs.
C. "DEP" or "Department" shall
mean the Florida Department of Environmental Protection.
D. "DHR" shall mean the Florida
Department of State, Division of Historical Resources.
E. “DOT” shall mean the Florida
Department of Transportation.
F.
“Emergency conditions” shall mean urgent circumstances involving
potential adverse consequences to human life or
property as a result of weather conditions or other calamity, and
necessitating new or replacement transmission line components or access
facilities.
G.
"Facility" or "Project" shall mean the Collier-Orange River #3
230-kV electrical “transmission line” as defined in Section 403.522(21),
F.S.
H. "Feasible" or
"practicable" shall mean reasonably achievable considering a balance of
land use impacts, environmental impacts, engineering constraints, and
costs as described in 62-4.540(10), F.A.C.
I. "FFWCC" shall mean the
Florida Fish and Wildlife Conservation Commission.
J. “FPL” shall mean Florida
Power & Light Company, the Applicant/Licensee.
K. "Licensee
" shall mean FPL, which has obtained a certification order
for the subject electrical transmission line.
L. “Listed species”
shall mean the species listed in Table 2.3-3 or Table 2.3-2 of the
Application as endangered, threatened or species of special concern by
FFWCC, the Florida Department of Agriculture and Consumer Services, or the
U.S. Fish and Wildlife Service.
M. “Post-certification submittal”
shall mean a submittal made by FPL pursuant to a Condition of
Certification.
N. “ROW” shall mean the
transmission line right-of-way to be selected by FPL within the certified
corridor in accordance with the Conditions of Certification.
O.
“SFWMD” shall mean the South Florida Water
Management District.
P.
“State water quality standards” shall mean the
numerical and narrative criteria applied to specific water uses or
classifications set forth in Chapter 62-302, F.A.C., as revised through
September 30, 2003.
Q.
“Sufficient” shall mean the post-certification
filing provides the data required by the relevant condition of
certification.
R.
“Transmission line” shall mean the Florida Power
& Light Company Collier-Orange River #3 230-kV transmission line.
S.
“Wetlands” shall mean those areas meeting the
definition set forth in Section 373.019(22), F.S., as delineated pursuant
to Chapter 62-340, F.A.C., and ratified by Section 373.4211, F.S.
III Citation:
Section 403.531, F.S. (2002).
Certification, including
these Conditions of Certification, is predicated upon preliminary design
ranges and performance criteria. Final engineering design will be within
the range described in the Application and explained at the certification
hearing. Conformance to those criteria, unless specifically modified in
accordance with Rule 62-17.680, F.A.C., is binding upon FPL in the design,
construction, operation and maintenance of the certified transmission
line. In any instance where a conflict occurs between the Application’s
design criteria and the Conditions of Certification, the Conditions shall
prevail.
IV Citation: Section
403.531, F.S. (2002).
A. Upon presentation of
credentials or other documents as may be required by law, FPL shall allow
authorized representatives of DEP or other agencies with jurisdiction over
a portion of the ROW:
1. At reasonable
times, to enter upon the ROW in order to monitor activities within their
respective jurisdictions for purposes of assessing compliance with this
certification; or
2. During business
hours, to enter FPL’s premises in which records are required to be kept
under this certification; and to have access to and copy any records
required to be kept under this certification.
B. When requested by DEP, on its
own behalf or on behalf of another agency with regulatory jurisdiction,
FPL shall within 10 working days or such longer period as may be mutually
agreed upon by DEP and the Licensee furnish any information required by
law, which is needed to determine compliance with the certification. If
FPL becomes aware that relevant facts were not submitted or were incorrect
in the Application or in any report to DEP or other agencies, such facts
or information shall be corrected promptly.
V Citation: Section
403.531, F.S. (2002).
Replacement of ROW access roads or
transmission lines constructed under this certification necessitated by
emergency conditions shall not be considered a modification pursuant to
Section 403.5315, F.S. (2002). An oral report of the emergency shall be
made to DEP as soon as possible. Within 14 calendar days after correction
of an emergency, which would require FPL to perform an activity not in
accordance with the Conditions of Certification, a report to DEP shall be
made outlining the details of the emergency and the steps taken for its
temporary relief. The report shall be a written description of all of the
work performed and shall set forth any pollution control measures or
mitigative measures which were utilized or are being utilized to prevent
pollution of waters, harm to sensitive areas, or alteration of
archaeological or historical resources.
VI Citation: Section
403.531, F.S. (2002).
The certified corridor is depicted in
by Figure 1.1-2 in the application as attached hereto in
Attachment 1.
VII Citation:
Section 403.531, F.S. (2002).
A.
Purpose of Submittals – Conditions of Certification
which provide for the post-certification submittal of information to DEP
or other agencies by FPL are for the purpose of facilitating the agencies’
monitoring of the effects arising from the location of the ROW and the
construction and maintenance of the transmission line. This monitoring is
for DEP to assure, in consultation with other agencies with applicable
regulatory jurisdiction, continued compliance with the Conditions of
Certification, without any further agency action.
B.
Filings – All post-certification submittals of information
by FPL are to be filed with DEP. Copies of each submittal shall be
simultaneously submitted to any other agency indicated in the specific
Condition requiring the post-certification submittal.
C. Completeness – DEP shall promptly review each
post-certification submittal for completeness. This review may include
consultation with the other agency(ies) receiving the post-certification
submittal. For the purposes of this condition, completeness shall mean
that the information submitted is both complete and sufficient. DEP’s
finding of incompleteness shall specify the area of the right-of-way
affected, and shall not delay further processing of the post-certification
submittal for non-affected areas. Within 20 days after submittal the DEP
shall hold a meeting with the applicant to discuss any sufficiency issues;
the applicant may continue to supplement the submittal with additional
information through the 30th day.
If any portion of a post-certification submittal is found to be
incomplete, FPL shall be so notified. Failure to issue such a notice
within 30 days after filing of the submittal shall constitute a finding of
completeness. Subsequent findings of incompleteness, if any, shall
address only the newly filed information.
D. Interagency
Meetings – Within 45 days of the filing of a complete
post-certification submittal, DEP may conduct an interagency meeting with
other agencies, which received copies of the submittal. The purpose of
such an interagency meeting shall be for the agencies with regulatory
jurisdiction over the matters addressed in the post-certification
submittal to discuss whether reasonable assurance of compliance with the
Conditions of Certification has been provided. Failure of DEP to conduct
an interagency meeting or any agency to attend an interagency meeting
shall not be grounds for DEP to withhold a determination of compliance
with these Conditions nor to delay the timeframes for review established
by these Conditions. At DEP’s request, FPL shall conduct a field
inspection with the agency representative in conjunction with the
interagency meeting.
E. Reasonable Assurances of
Compliance –Within 90 days of the filing of a complete
post-certification submittal, DEP shall give written notification to FPL
and the other agency(ies) to which the post-certification information was
submitted of its determination whether there is reasonable assurance of
compliance with the conditions of certification. If it is determined that
reasonable assurance has not been provided, FPL shall be notified with
particularity of the deficiencies and possible corrective measures
suggested.
Failure to notify FPL in writing within 90 days of
receipt of a complete post-certification submittal shall constitute a
compliance determination.
F. Commencement of
Construction – If DEP does not object within the time period specified
in paragraph E. above, FPL may begin construction pursuant to the terms of
the Conditions of Certification and the subsequently submitted
construction details.
G. Water Quality
Certification – For each post-certification submittal which addresses
matters within DEP’s environmental resource permitting jurisdiction, DEP
shall provide to the U.S. Army Corps of Engineers a letter in accordance
with DEP Rule 62.17.665(7)(f), F.A.C. This letter shall be sent
concurrently with a determination of compliance pursuant to paragraph E.
above, or immediately upon request by FPL more than 90 days after the
filing of a complete post-certification submittal addressing matters
within DEP’s environmental resource
permitting jurisdiction.
H. Coastal Zone
Consistency – For each post-certification submittal, which addresses
activities located within joint jurisdictional wetlands or surface waters,
that provides reasonable assurance of compliance with the conditions of
certification, DEP shall provide to the U.S. Army Corps of Engineers a
letter indicating that the activities are consistent with the
federally-approved Florida Coastal Zone Management Program.
I. Revisions to
Design Previously Reviewed for Compliance – The Licensee shall submit
to DEP any proposed revisions to the project’s site specific design that
were previously reviewed for compliance with these Conditions during the
post-certification review process. The DEP shall review the proposed
revisions for continued compliance pursuant to paragraphs C, D and E
above. Such submittals shall include the same type of information
required for the original submittal and shall be submitted prior to
construction/implementation.
J. Variation to Submittal Requirements – DEP, in
consultation with the appropriate agencies, and FPL may jointly agree to
vary any of the post-certification submittal requirements, provided the
information submitted is sufficient to provide reasonable assurances of
compliance with these Conditions of Certification.
K. Disputes –
Any agency which received a copy of a post-certification submittal
pursuant to paragraph A. above and a Specific Condition of Certification
may dispute a determination by DEP that a post-certification submittal
provides reasonable assurances of compliance with the Conditions of
Certification by following the procedures set forth in General Condition
G-IX within 30 days after receiving notice of DEP’s determination.
VIII Citation:
Section 403.531, F.S. (2002); Rules 62-17.600 and 62-17.665, F.A.C.;
Sections 373.413 and 373.416, F.S. (2002); Rules 40E-4.301, 40E-4.303 and
40E-4.381, F.A.C.
If a situation arises in which mutual
agreement cannot be reached between DEP and another agency receiving a
post-certification submittal or between DEP and FPL regarding compliance
with the Conditions of Certification, then the matter shall be immediately
referred to the Division of Administrative Hearings (DOAH) for disposition
in accordance with the provisions of Chapter 120, F.S. An expedited
hearing under Section 120.57(1), F.S., shall be held as soon as
practicable after the matter’s referral to DOAH. The Administrative Law
Judge (ALJ) shall issue a recommended order to the Secretary of DEP within
60 days after receipt of the hearing transcript. All exceptions to the
ALJ’s recommended order shall be filed with the Secretary of DEP within 10
days of the issuance of such recommended order. The Secretary of DEP
shall issue a decision within 30 days of the filing of the exceptions, if
any, or within 30 days of issuance of the ALJ’s recommended order if no
exceptions are filed. The time requirements under this condition may be
altered by agreement of DEP, the Applicant and the other party to the
dispute.
IX Citation:
Sections 403.527, 403.531 and 120.57, F.S. (2002).
The provisions of this certification are
severable, and if any provision of this certification or the application
of any provision of this certification to any circumstance is held
invalid, the remainder of the certification or the application or such
provision to other circumstances shall not be affected thereby.
X Citation: Sections
403.529 and 403.531, F.S. (2002).
A. The terms, conditions,
requirements, limitations and restrictions set forth in these Conditions
of Certification are binding and enforceable pursuant to Sections 403.141,
403.161, and 403.533, F.S. Any noncompliance with a Condition of
Certification constitutes a violation of Chapter 403, F.S., and is grounds
for enforcement action, permit termination, permit revocation, or permit
revision. The Licensee is placed on notice that the Department will
review this certification periodically and may initiate enforcement action
for any violation of these Conditions.
B. All records, notes, monitoring
data and other information relating to the construction or operation of
this certified transmission line which are submitted to the Department may
be used by the Department as evidence in any enforcement case involving
the certified source arising under the Florida Statutes or Department
rules, except where such evidence shall only be used to the extent it is
consistent with the Florida Rules of Civil Procedure and appropriate
evidentiary rules.
XI Citation: Section
403.141, 403.161 and 403.533, F.S. (2002)
This certification may be suspended or
revoked pursuant to Section 403.532, Florida Statutes.
XII Citation:
Section 403.532, F.S. (2002).
The issuance of this certification does
not convey any property rights in either real or personal property, or any
exclusive privileges thereto. The Licensee shall obtain title, lease,
easement, or right of use from the State of Florida to any sovereignty
submerged or other state-owned lands occupied by the right of way for the
transmission line.
XIII Citation:
Section 403.531, F.S. (2002).
No term or Condition of Certification
shall be interpreted to preclude the post-certification exercise by the
Licensee of whatever procedural rights it may have under Chapter 120, F.S.
XIV Citation:
Chapter 120, F.S. (2002).
A. Pursuant to Section
403.5315(1), F.S., Section 120.569(2)(n), F.S., and Rule 62-17.680,
F.A.C., the Siting Board hereby delegates the authority to the Secretary
of the Department of Environmental Protection to modify these Conditions
of Certification, as follows:
1. The Secretary of the
Department may modify any condition of this certification.
2. The Secretary of the
Department may grant modifications necessary to meet licensing conditions
or requirements imposed on FPL by any federal regulatory agency. FPL
shall notify DEP at least 30 days prior to the issuance of the federal
license that would require such a modification, if known, or in any event,
as soon as the federal agency notifies FPL.
3. The Secretary of the
Department may authorize the reconstruction of the ROW or transmission
line necessary to avoid or mitigate an emergency condition. Such a
modification shall be obtained only when an emergency replacement of a
transmission line pursuant to Rule 62-17.695 is not required or when an
emergency replacement must be further modified after the emergency
conditions requiring the original reconstruction are no longer present.
B. DEP shall give written notice
to the parties to the original certification, at their last address of
record, of any requests for modification filed by FPL.
XV Citation:
Sections 120.569(2)(n) and 403.5315, F.S. (2002); Rule 62-17.680, F.A.C.
A.
Post-certification submittals and notices shall be sent to the
agencies specified in these conditions at the following addresses, unless
FPL and DEP are notified in writing of an agency’s change in address for
such submittals and notices:
Florida Department of
Environmental Protection
Siting Coordination
Office, MS 48
2600 Blair Stone Road
Tallahassee, FL
32399-2400
Florida Department of
Environmental Protection
South
District Office
Post
Office Box 2549
Fort
Myers, Florida 33902-2549
Florida Department of
Community Affairs
Office of the Secretary
2555 Shumard Oak Blvd.
Tallahassee, FL
32399-2100
Florida Fish & Wildlife
Conservation Commission
Division of Environmental
Services<
620 South Meridian Street
Tallahassee, FL
32399-1600
Division of Historical
Resources and
State Historic
Preservation Officer
Office of the Director
R.A. Gray Building
500 S. Bronough Street
Tallahassee, FL
32399-0250
Southwest Florida Regional
Planning Council
Office of the Executive
Director
4980 Bayline Drive
North Ft. Myers, FL 33917
South Florida Water Mgmt.
District
Office of the Executive
Director
P.O. Box 24680
West Palm Beach, FL
33416-4690
Florida Department of
Transportation
Director of Planning and
Production, District 1
P. O. Box 1249
Bartow, FL 33831-1249
Collier County
Office of Administrator
Community Development and
Environmental Services
2800 N. Horseshoe Drive
Naples, FL 34112
Lee County
Department of Community
Development
1500 Monroe Street
Fort Myers, FL 33902
City of Ft. Myers
City Attorney’s Office
2200 Second Street
P.O. Drawer 2217
Fort Myers, FL 33902-2217
XVI Citation: Section 403.531,
F.S. (2002).
This certification is transferable, upon
Department approval, to an entity determined to be competent to construct,
operate and maintain the transmission line in accordance with these
Conditions of Certification. A transfer of certification of all or part of
a certified facility shall be initiated by the Licensee’s filing with the
Department and the parties a notice of intent to transfer certification to
a new licensee. The notice of intent shall identify the intended new
certification holder or licensee and the identity of the entity
responsible for compliance with the certification. Parties shall have 30
days to file in writing with the Department any objections to transfer of
the certification. Upon the filing with the Department of a written
agreement from the intended new licensee to abide by all conditions of
certification and applicable laws and regulations, the transfer shall be
approved unless the Department objects to the transfer on the grounds of
the inability of the new licensee to comply with the conditions of
certification, specifies in writing its reasons therefore, and gives
notice and opportunity to petition for a Section 120.57, F.S.,
administrative hearing. A copy of the Department’s action on the transfer
of certification shall be sent to all parties.
XVII Citation:
Section 403.531, F.S. (2002), Chapter 62-17, F.A.C.
A. The ROW shall avoid the wetland
areas indicated by cross-hatching on the attached aerials
except as noted below:
1.
To the extent practicable the ROW shall avoid the wetland
areas indicated by cross hatching on the attached aerial identified as
Attachment 2, except as may be allowed by condition XVIII.F below,
or,
2. To the extent practicable the ROW shall avoid the
wetland areas indicated by cross hatching on the attached aerial
identified as Attachment 3. Should it be necessary to locate the ROW on
the north side of the road in the area of these wetlands, the ROW shall be
limited to 15 feet directly adjacent to the road right of way, unless an
additional adjacent amount is required to accommodate FWC panther
crossings.
B. To the extent
feasible, FPL shall locate the transmission line ROW so as to avoid the
taking of homes.
C. To the extent feasible, as
described in the Application, FPL shall collocate within or adjacent to
existing ROWs for those portions of the corridor which include such
existing ROWs.
D. FPL agrees to locate the
transmission line north of Homestead Road and Tice Lane in order to
minimize potential impacts to the existing residential areas adjacent to
the preferred corridor.
Agency: Lee County,
revised
E. To the extent
practicable, FPL must finalize a route that minimizes potential adverse
impacts to the existing residential areas on Green Meadows Road by
locating the transmission line on the west side of Green Meadows Road.
F.
Prior to placement of the
transmission line in the portion of the corridor located along the
west side of Immokalee Road (CR-846)
in Section 34, T47S, R27E, and Section 3, T48S, R27E, indicated by
cross-hatching on the attached aerial identified as Attachment 4, FPL
shall attempt through all available means, including the exercise
of the power of eminent domain, to locate the transmission line ROW on the
east side of Immokalee Road in this area. If FPL is unable to obtain the
necessary property interest to place the transmission line ROW on the east
side of Immokalee Road in this area, the transmission line shall be
located adjacent to the western edge of the road right-of-way – such that
there is no intervening land between the transmission line ROW and
existing or proposed road right-of-way.
Agency: Collier County
Ordinance No. 2002-32, which established the Rural Fringe Mixed Use
District in the Collier County Growth Management Plan, revised.
G. FPL will, through all lawful
means available to it, locate the subject transmission line structures
south of the northern right-of-way line of Buckingham Road in Lee
County, with the exception of a single stub pole and associated anchors
installed to accommodate the transmission line turning a sharp angle to
turn south in the easternmost portion of the corridor along Buckingham
Road. If FPL is
unable to obtain the necessary property interests to place the
transmission line right-of-way within this area, FPL will locate the
transmission line adjacent to the northern edge of the road right-of-way,
such that there is no intervening land between the transmission line and
the Buckingham Road right-of-way. Any trees or shrubs disturbed by FPL
north of the centerline of Buckingham Road right-of-way will be replaced
on adjacent Lee County property at FPL's expense.
Agency: Lee County
A. Prior to the finalization of
the ROW location, three copies of blue-line reproductions of the most
recent available aerial photographs at a scale of 1” = 400’ with wetland
locations generally identified shall be submitted to DEP, and one copy
each to SFWMD, DOT, DCA, Lee County and Collier County, delineating the
certified corridor, and the selected transmission line ROW. In addition,
FPL shall note on the aerial photographs new development within the
corridor that has occurred since the photograph was taken. FPL shall
notify all parties of such filing and shall meet with DEP to discuss the
ROW location. This information may be submitted in segments. The
agencies receiving copies of the aerial photographs from FPL shall have an
opportunity to review the photographs and to notify DEP of any apparent
conflicts with the requirements of the Conditions of Certification within
10 working days from receipt of the photographs. However, this paragraph
shall not operate to avoid the need for post-certification submittals and
compliance reviews otherwise required by the Conditions of Certification.
B. After review of the aerial
photographs and comments from the other reviewing agencies, if DEP has
reason to believe that the construction of the transmission line, access
roads or pads within FPL’s designated ROW cannot be accomplished in
compliance with the Conditions of Certification, FPL shall be so notified
in writing, with copies to other parties to the certification proceeding,
within 15 working days from receipt of the aerial photographs. Such
notice shall specify with particularity the basis for DEP’s conclusion,
and possible corrective measures shall be suggested which would bring the
Project into compliance. If such notice is provided, FPL may relocate the
ROW within the certified corridor to address the specified concern, or FPL
may proceed with design of the transmission line on the noticed ROW at its
own risk that construction can be accomplished in compliance with the
Conditions of Certification.
C. The acquisition of a particular
ROW or the expenditure of funds toward acquisition of a particular ROW
prior to the agencies’ review pursuant to this condition will be at FPL’s
risk, and no party will be estopped by such acquisition to seek
disapproval of the construction of the transmission line or access road
within the ROW in accordance with these Conditions of Certification.
D.
After FPL has acquired interest in the entire length of the
transmission line ROW in a county, FPL shall:
1.
File a statement with the clerk of the circuit court for each
county through which the corridor passes certifying that all lands
required for the transmission line ROW within the corridor have been
acquired. FPL shall also file with the county Planning Department a map
at the scale of 1” = 400’ showing the boundaries of the acquired ROW.
2.
File with DEP a map at a scale of 1” = 400’ showing the boundaries
of the acquired ROW, if such boundaries are different from those shown in
the filing required by paragraph A. above. Such maps shall comply with the
requirements of paragraph A. If the boundaries have not changed, FPL shall
file a statement with DEP accordingly.
XIX Citation:
Sections 403.531 and 403.4312, F.S. (2002); Rule 62-17.600(4), F.A.C.
A. Endangered
Species - Prior to ROW acquisition where access is available, but in
any event prior to start of construction within any of the ROWs, FPL shall
survey the final right-of-way in areas characterized by habitat features
for listed species to identify the occurrence of any listed species. The
survey shall be conducted in accordance with USFWS/FWC guidelines
by a person or firm that is knowledgeable and experienced in conducting
flora and fauna surveys for endangered species. The survey shall be done
in accordance with recognized methodologies. This survey shall also
identify any wading bird colonies within one-half mile of the project ROW
that may be affected. If listed wildlife species are found, their
presence shall be reported to the DEP Siting Coordination Office, the DEP
South District Office, the FFWC's Office of Environmental Services,
Collier County and U.S. Fish and Wildlife Service. If listed vegetation
species are found on public land or water, their presence shall be
reported to the DEP Siting Coordination Office and the Florida Department
of Agriculture and Consumer Services. Listed wildlife species and listed
vegetation species on public land or water shall not be disturbed, if
practicable. If avoidance is not practicable, FPL shall consult with DEP,
FFWC, and, if possible, the U. S. Fish and Wildlife Service for listed
wildlife species, and with the Florida Department of Agriculture and
Consumer Services for listed vegetation species on public land or water,
to determine the steps appropriate for the species involved which are to
be taken to avoid, minimize, mitigate, or otherwise appropriately address
impacts within each agency’s respective jurisdiction. For wildlife
species, these steps shall be memorialized in a wildlife management plan
and submitted to DEP, FFWC and Collier County.
XX.A. Citation:
Sections 372.072 and 403.531, F.S. (2002); Chapters 5B-40 and 39-27,
F.A.C., Collier County.
B. Red-cockaded
Woodpeckers - Prior to the ROW acquisition where access is available,
but in any event prior to construction, all pine forests in the proposed
ROW shall be surveyed for the possible occurrence of red-cockaded
woodpeckers, colony trees or any adjacent mature timber, which could
potentially become colony trees. If any of the above are found, the ROW
shall be routed around the colony. In addition, FFWC shall be contacted
for site-specific coordination.
C. Gopher Tortoises - Prior
to final design of the transmission line facilities, all open woods,
scrub, and grasslands in the proposed ROW shall be surveyed for the
possible occurrence of Gopher tortoise, active burrows, inactive burrows,
or habitat suitable for potential burrowing. If Gopher tortoise, active
burrows, and or inactive burrows are found, the poles, pads, or access
road shall be located to avoid the burrows or appropriate permits shall be
obtained from the FWC. In addition, FFWC shall be contacted for
site-specific coordination.
D. Archaeological
Survey - After the ROW has been selected, FPL shall conduct a survey
of archaeological sensitive areas, as determined in consultation with the
Department of State, Division of Historical Resources (DHR), where they
are crossed by the ROW. This report shall be submitted to DHR. If
practicable, sites considered to be eligible for the National Register
shall be avoided during construction of the transmission line and access
roads, and subsequently during maintenance of the ROWs. For any other
significant site, FPL shall consult with DHR to determine appropriate
action. If avoidance is not practicable, impact shall be mitigated through
archaeological salvage operations or other methods acceptable to DHR. If
historical or archaeological artifacts are discovered at any time within
the project site, FPL shall notify the DEP Southwest District office and
the Bureau of Historic Preservation, Division of Historical Resources, R.A.
Gray Building, Tallahassee, Florida 32399-0250, telephone number (850)
487-2073.
XX.D. Citation:
Sections 267.061 and 403.531, F.S. (2002).
A. Activities Within Wetlands
or Other Surface Waters
At least 90 days prior to the projected
commencement of construction of any portion of the transmission line in
wetlands or other surface waters, FPL shall submit to DEP's South District
Environmental Resource Permitting Section and the U.S. Army Corps of
Engineers a Joint Environmental Resource Permit Application,
DEP Form No. 62-343.900(1). Information may be submitted by discrete
sections of the ROW; FPL shall consult with the DEP to identify mutually
agreeable section for purposes of wetlands submittals. The completed
application for each section shall be reviewed pursuant to Condition
VIII. “Construction” in this context shall include land clearing,
excavation, the placement of structure pads, access roads, culverts, fill
materials, and related activities. Construction activities shall not
include the stringing of conductors on existing transmission line
structures or on structures located outside wetlands or other surface
waters.
XXI.A. Citation:
Sections 373.414 and 373.416, F.S. (2002); Rules 40E-4.091, 40E-4.101,
40E-4.301, 40E-4.302, 40E-4.303 and 40E-4.381, F.A.C.
B.
Reduction and Elimination of Impacts
1. Where the ROW
crosses wetlands or other surface waters, FPL shall utilize adjacent
existing FPL access roads and public roads for access to the transmission
line ROW for construction, operation and maintenance purposes to the
greatest extent feasible.
2. Finger roads,
connecting the existing road to the structure pads and access roads, which
must be constructed in areas where an existing FPL access road or public
road is not available shall be constructed in a manner which does not
impede natural drainage flows and reduces or eliminates adverse impacts to
on-site and adjacent wetlands to the extent practicable. FPL shall be
deemed to have satisfied this condition if the access and finger roads
satisfy the criteria of Rules 40E-4.301 and 40E-4.302, F.A.C., and the
applicable portions of the Basis of Review for Environmental Resource
Permit Applications.
3. FPL shall make
an effort to reduce or eliminate impacts to wetlands and other surface
waters within the certified corridor. The length of the span between
transmission line structures shall be varied as appropriate and other
design changes, which shall include but not be limited to a reduction in
pad size, elimination of access roads, use of finger fill from existing
ROWs and/or modification of construction techniques shall be considered to
eliminate or reduce wetland impacts.
4. To the extent
practicable and utilizing the typical structures shown in the Application,
access roads, culverts and structures shall be located:
a. to reduce or eliminate wetland impacts from the project; and
b. to avoid conflict with existing underground water and sewer
facilities properly documented in county records.
5. In the event
temporary fill is used to facilitate construction of the transmission
line, the temporary fill shall be removed where necessary to minimize
impacts to wetlands or habitats of listed species.
Agency: Collier
County
C. Consultation with Wetland
Agencies - At the request of FPL, DEP shall conduct an interagency
meeting for FPL to consult with the wetlands resource permitting staffs of
DEP and SFWMD, and the FWC’s staff, prior to the finalization of possible
access road locations, transmission line structure locations, and the
establishment of water control structure types and general locations in
wetlands which are to be reflected in any post-certification submittals.
At DEP’s request, FPL shall conduct a field inspection with the agencies’
staff representatives in conjunction with the interagency meeting.
A. Maintenance of
Drainage/Hydroperiod – FPL shall employ best management practices,
construction techniques, and adequate culverting in order to maintain
existing drainage patterns along the transmission line ROW. Within all
wetland areas affected, wetland control elevations shall be established
and maintained. This condition shall not preclude FPL from improving
preconstruction hydroperiods provided such improvement can be achieved in
compliance with the other Conditions of Certification. FPL shall be
deemed to have satisfied this condition if the access and finger roads
satisfy the criteria of Rules 40E-4.301 and 40E-4.302, F.A.C., and the
applicable portions of the Basis of Review for Environmental Resource
Permit Applications.
XXII.A. Citation:
Sections 373.416 and 403.531; Rules 40E-4.091 and 40E-4.301, F.A.C.
B.
Erosion/Runoff Control
1. FPL shall compact or otherwise stabilize any fill material
placed around newly installed structures, to reduce erosion, turbidity,
nutrient loading and sedimentation in the receiving waters.
2. Grass seed and mulch or sod must be installed and maintained on
exposed slopes prior to finalization of construction, and at all times
measures must be taken to prevent erosion, sedimentation or turbid
discharges into wetlands and or waters of the state.
3. To control runoff which may reach and thereby pollute waters of
the state, necessary measures shall be utilized to settle, filter, treat
or absorb silt-containing or pollutant-laden storm water to ensure against
spillage or discharge of excavated material that may cause turbidity in
excess of 29 Nephelometric Turbidity Units (NTU) above background in
waters of the state. Control measures may consist of sediment traps,
barriers, berms, and vegetation plantings, and must be maintained in
effective condition at all locations until construction in the area is
completed and disturbed soil areas are stabilized. Exposed or disturbed
soil shall be protected and stabilized as soon as possible to minimize
silt and sediment-laden runoff. The pH of the runoff shall be kept within
the range of 6.0 to 8.5. FPL shall comply with the applicable
nonprocedural requirements in Rule 40E-4, F.A.C.
XXII.B. Citation:
Section 403.531, F.S. (2002); Rule 40E-4.381, F.A.C.
A. Wetland
Clearing
1. FPL
shall use only restrictive clearing practices during construction and
maintenance of the transmission line where it crosses forested wetlands.
Restrictive clearing, as used in this condition, is the removal of
vegetation by hand, usually with chain saws, or with low-ground-pressure
shear or rotary machines to reduce soil compaction and damage to ground
cover. These methods may be used alone or in combination, as may be
appropriate for specific sites. All cut vegetation must be removed from
wetlands unless other techniques, such as mulching or burning in place,
are agreed to by DEP in the post-certification review process. Restrictive
clearing includes the removal of vegetation from areas extending from the
transmission line centerline to 20 feet on each side of the outer
conductors and in the structure pad areas (approximately 60 feet by 50
feet). Removable construction matting in conjunction with best management
practices may be used in wetlands to support equipment. The remainder of
the ROW in wetland areas, beyond 20 feet on either side of the outer
conductors and the structure pads, shall not be cleared; however,
vegetation that has an expected mature height greater than 14 feet may be
removed. In addition, danger timber (trees or limbs likely to contact a
conductor if felled) within or outside the right-of-way may be removed.
2. Stumps may be removed in wetlands where a structure is to be
placed (typically a 10-foot by 10-foot area within the cleared structure
pad). Tree stumps under the conductors and in the structure pad may be
removed, sheared, or ground to 6 inches below the ground line to allow for
travel and construction activities. Tree stumps in the area beyond 20
feet on either side of the outer conductors shall be left in place to
preserve the root mat.
XXIII.A. Citation:
Section 403.531, F.S.
B. Open Burning - Any open
burning in connection with initial land clearing shall be in accordance
with the non-procedural requirements of Chapter 62-256, F.A.C., Chapter
5I-2, F.A.C., Uniform Fire Code Section 33.101, Addendum, and any other
applicable county regulation. Prior to any burning of
construction-generated material, after initial land clearing that is
allowed to be burned in accordance with Chapter 62-256, F.A.C., FPL shall
seek approval from the DEP South District Office whose approval may be
granted in conjunction with the Division of Forestry and any other county
regulations that may apply. Burning shall not occur if not approved by
the appropriate agency or if the Department or the Division of Forestry
has issued a ban on burning due to fire safety conditions or due to air
pollution conditions.
XXIII.B. Citation:
Section 403.531, F. S. (2002); Chapters 5I-2 and 62-256, F.A.C.
C. Solid Wastes
- Solid wastes resulting from construction shall be disposed of in
accordance with the non-procedural requirements of applicable regulations
of Chapter 62-701, F.A.C.
XXIII.C. Citation:
Section 403.531, F.S. (2002); Chapter 62-701, F.A.C.
D. Hazardous
Substances – If hazardous substances are used in the construction or
maintenance of the transmission line, FPL shall provide the DEP with
reasonable assurances that such hazardous substances will not enter the
surface water management system for the transmission line.
XXIII.D. Citation:
Sections 403.531 and 403.414. F.S. (2002); Chapter 40E-4, F.A.C.
A. If the project
complies with the following, DEP shall not require mitigation:
1. All permanent fill
shall be at grade. Fill shall be limited to that necessary for the
electrical support structures, towers, poles, guy wires, stabilizing
backfill, and at-grade access roads limited to 20-foot widths; and
2. The Licensee may
utilize access and work areas limited to the following: a linear access
area of up to 25 feet wide between electrical support structures, an
access area of up to 25 feet wide to electrical support structures from
the edge of the right-of-way, and a work area around the electrical
support structures, towers, poles, and guy wires. These areas may be
cleared to ground, including removal of stumps as necessary, and
3. Vegetation within
wetlands may be cut or removed no lower than the soil surface under the
conductor, and 20 feet to either side of the outermost conductor, while
maintaining the remainder of the project right-of-way within the wetland
by selectively cleaning vegetation which has an expected mature height
above 14 feet. Brazilian pepper, Australian pine, and melaleuca shall be
eradicated throughout the wetland portions of the right-of-way; and
4. Erosion control
methods shall be implemented as necessary to ensure that state water
quality standards for turbidity are met. Diversion and impoundment of
surface waters shall be minimized; and
5. The proposed
construction and clearing shall not adversely affect threatened and
endangered species; and
6. The proposed
construction and clearing shall not result in a permanent change in
existing ground surface elevation; and
7. Where fill is
placed in wetlands, the clearing to ground of forested wetlands is
restricted to 4.0 acres per 10-mile section of the project, with no more
than one impact site exceeding 0.5 acres. The impact site which exceeds
0.5 acres shall not exceed 2.0 acres. The total forested wetland clearing
to the ground per 10-mile section shall not exceed 15 acres. The 10-mile
sections shall be measured from the beginning to the terminus, or vice
versa, and the section shall not end in a wetland.
B. If the project does not comply
with the requirements of paragraph A.
above, mitigation can be required. For construction in wetlands that does
not comply with those requirements,
FPL shall propose a mitigation plan as a post-certification submittal
under Condition VIII.,
providing the following information to the DEP South District
Environmental Resource Permitting Section for review:
1. detailed description, location map, and recent
aerial photograph of each wetland impact area in which the Rule 62.341.620(2)(b)-(i),
F.A.C. limitations were not met;
2. acreage of the type and quality of wetland being
impact at each such site;
3. narrative, drawings, location map, and aerial
photographs showing and explaining the proposed mitigation;
4. detailed description of the existing conditions
at the impact site and at the mitigation area;
5. acreage and wetland type of the proposed
mitigation;
6. documentation providing reasonable assurance that
the proposed mitigation will be successful; and
7. an analysis pursuant to Chapter 62-345, F.A.C.,
to the extent applicable.
C. Mitigation
plans must be found to fully offset the functions and values provided by
wetlands that will be degraded or eliminated. DEP will work with FPL in
the development of acceptable mitigation plans. The mitigation plans
proposed by FPL shall be submitted for review and compliance monitoring to
DEP under Condition VIII.
D. If DEP, upon
review of the proposed mitigation plan, determines that the proposed
mitigation is inadequate to offset the wetland loss and habitat
degradation from this project, FPL may propose additional or alternative
mitigation or dispute the determination pursuant to Condition IX.
E. If the proposed
mitigation plan is deemed acceptable by DEP, DEP shall establish
construction conditions, success criteria and a monitoring plan to be
carried out for the approved mitigation in accordance with DEP Rule
62-354, F.A.C. These conditions, criteria and monitoring plan shall be
incorporated into the certification conditions as an Attachment.
F. No construction
within wetlands subject to the regulatory jurisdiction of DEP that does
not comply with the non-procedural limitations of Rule
62.341.620(2)(b)-(i), F.A.C., shall commence
until DEP approves a mitigation plan, and mitigation construction
conditions, success criteria and a monitoring plan are incorporated into
the certification conditions.
XXIV.
Citation: Sections 373.414 and 403.531, F.S. (2002); Rules 40E-4.091,
40E-4.301, 40E-4.302, and
62-341.620, F.A.C.
A. Bee Hives
- FPL shall advise known beekeepers having bee hives within or near the
ROW of the potential effect of the transmission line on bee hives.
XXV.A Citation:
Section 403.531, F.S.
B. Radio and
Television Interference – FPL shall investigate all complaints and
take appropriate corrective action for impacts to radio or television
reception caused by the proposed transmission line.
XXV.B Citation:
Section 403.531, F.S.
C. Electric and Magnetic Fields
– The Collier-Orange River #3 230-kV transmission line shall comply with
the applicable electric and magnetic field standards set forth in Chapter
62-814, F.A.C. The electric and magnetic fields associated with any
configuration developed during the final design of this project that is
not shown in the Application shall be provided to DEP on DEP Form
62-814.900 at least 90 days prior to the start of construction, as
required by Rule 62-814.520(3), F.A.C.
XXV.C Citation:
Section 403.523(10), F.S. (2002); Chapter 62-814, F.A.C.
Herbicides applied in the
ROW shall only be those registered by the U.S. Environmental Protection
Agency and which have state approval. Herbicide application rates and
concentrations will be in accordance with label directions and will be
carried out by a licensed applicator, meeting all federal, state and local
regulations. Herbicide applications shall be selectively applied to
targeted vegetation. Broadcast application of herbicide shall not be used
in the ROW unless effects on non-targeted vegetation are minimized.
XXVI Citation:
Sections 403.061, 403.088, 487.031 and 487.041, F.S. (2002)
FPL shall properly operate
and maintain the transmission line to achieve compliance with the
Conditions of Certification.
XXVII Citation:
Section 403.531, F.S. (2002).
A. LEGAL/ADMINSTRATIVE
CONDITIONS
1. Compliance Requirements
This project must be
constructed, operated and maintained in compliance with and meet all
non-procedural requirements set forth in Chapter 373, F.S., and Chapter
40E-6 (Works or Lands of the District), F.A.C., unless otherwise
authorized in this Certification.
2. Construction, Operation, and
Maintenance Responsibilities
The Licensee shall be
responsible for the construction, operation, and maintenance of all
facilities installed for the proposed project.
XXVIII.A.
Citations: 373.044, 373.085, 373.086, 373.113, and 373.129, F.S.; Rule
40E-6.381, F.A.C.
B. ENFORCEMENT
1. The SFWMD may
take any and all lawful actions that are necessary to enforce any
condition of this Certification related to SFWMD Works and Lands
(Condition XXVIII). Prior to initiating such action, the SFWMD shall
notify the Secretary of DEP of the proposed action.
Agency: SFWMD
Reference: Section 373.603, F.S.; Rule 40E-6.501, F.A.C.
2. Licensee agrees to pay all
removal and restoration costs, investigative costs, court costs and
reasonable attorney’s fees, including appeals, resulting from any action
taken by the SFWMD to obtain compliance with this Condition XXVIII.
Agency: SFWMD
C. RIGHT OF WAY CONDITIONS WITHIN WORKS AND LANDS OF SFWMD
1. GENERAL:
a. Construction Within SFWMD Right-of-Way: Prior to the
commencement of construction of any portion of the transmission line which
will cross over, on, under, or otherwise use the SFWMD’s right-of-way, the
Licensee shall submit a pre-construction videotape of that portion of
SFWMD’s right-of-way that is crossed or overlapped by the transmission
line right-of-way except
where the crossing of the SFWMD right-of-way is an aerial crossing in
which case no videotape is required.
In addition, the Licensee shall submit complete scaled or fully
dimensioned 8½” by 11”
drawings to the SFWMD showing the proposed facilities for a determination
of compliance with the requirements of Chapter 40E-6, F.A.C. The drawings
shall depict the proposed crossings/parallel runs within SFWMD’s
right-of-way in both plan and profile views and shall show, at a minimum,
the following:
(1) The canal
right-of-way lines;
(2) The top of the
canal bank and its elevation;
(3) The width and
elevation of any berms or levees;
(4) The canal
maintenance berm and its elevation at its highest point;
(5) The location of
any poles, towers, and/or access roads located within the SFWMD’s
right-of-way;
(6) The location of
any anchors, downguys or spanguys within the SFWMD’s right-of-way;
(7) The elevation
of the lowest line, wire, or cable crossing over the SFWMD’s right-of-way;
(8) The location
and elevation of any buried facilities;
(9) The location of
the facilities in relation to a section line, major road or other
prominent well-known landmark by which the facilities may be located in
the field.
XXVIII.C.1.a.
Citations: 373.085 and 373.086, F.S.; Rules 40E-6.091(1) and
40E-6.201(1)(h), F.A.C.
b. Vertical Clearances:
Vertical clearances for any aerial crossings over SFWMD canals and
rights-of-way shall conform to SFWMD criteria, as required by Chapter
40E-6, F.A.C., unless otherwise authorized in this Certification.
XXVIII.C.1.b.
Citations: Sections 373.085(1) and 373.086(1), F.S.
c. Use of SFWMD Right-of-Way
During and After Construction: Should the Licensee desire to utilize the
SFWMD’s right-of-way for access during construction of the transmission
line and/or for inspection and maintenance after construction, the
Licensee shall submit to the SFWMD a detailed plan identifying the
proposed route, type and number of vehicles to be used and the frequency
of such use. All use of the SFWMD’s right-of-way by the Licensee
shall be in accordance with Chapter 40E-6, F.A.C., unless otherwise
authorized in this Certification.
XXVIII.C.1.c.
Citations: Sections 373.085 and 373.086, F.S.; Chapter 40E-6, F.A.C.
d. Construction
Coordination Adjacent to SFWMD Right Of Way: In those areas where the
transmission line is proposed to be located adjacent to SFWMD right of
way, the Licensee shall coordinate with the SFWMD’s right of way staff
during the post-certification review process regarding any potential
conflicts between the location/height of the proposed transmission line
facilities and the SFWMD's use of heavy equipment to perform routine or
emergency field maintenance operations within its right of way.
XXVIII.C.l.d.
Citation: Section 373.086, F.S.
2. STANDARD LIMITING
CONDITIONS:
a.
All structures on SFWMD works or lands constructed by Licensee shall
remain the property of Licensee, who shall be solely responsible for
ensuring that such structures and other uses remain in good and safe
condition. The Licensee is advised that other federal, state and local
safety standards may govern the occupancy and use of the SFWMD’s lands and
works. The SFWMD assumes no duty with regard to ensuring that such uses
are so maintained and assumes no liability with regard to injuries caused
to others by any such failure.
b. Licensee solely
acknowledges and accepts the duty and all associated responsibilities to
incorporate safety features, which meet applicable engineering practice
and accepted industry standards, into the design, construction, operation
and continued maintenance of the authorized facilities/use. This duty
shall include, but not be limited to, Licensee’s consideration of the
SFWMD’s regulation and potential fluctuation, without notice, of water
levels in canals and works, as well as the Licensee’s consideration of
upgrades and modifications to the authorized facilities/use which may be
necessary to meet any future changes to applicable engineering practice
and accepted industry standards. Licensee acknowledges that the SFWMD’s
review of this project and authorization to commence construction,
including, but not limited to, any field inspections performed by the
SFWMD, does not in any way consider or ensure that the authorized
use/facilities are planned, designed, engineered, constructed, or will be
operated, maintained or modified so as to meet applicable engineering
practice and accepted industry standards, or otherwise provide any safety
protections. Licensee further acknowledges that any inquiries,
discussions, or representations, whether verbal or written, by or with any
SFWMD staff or representative during the Certification review process,
including, but not limited to, any field inspections, shall not in any way
be relied upon by Licensee as the SFWMD’s assumption of any duty to
incorporate safety features, as set forth above, and shall also not be
relied upon by Licensee in order to meet Licensee’s duty to incorporate
safety features, as set forth above.
c. Licensee agrees to abide by all of the
terms and conditions of this Certification, including any representations
made in the application for Certification and related documents. Licensee
agrees to pay all removal and restoration costs, investigative costs,
court costs and reasonable attorney’s fees, including appeals, resulting
from any action taken by the SFWMD to obtain compliance with this
Condition XXVIII where SFWMD is the prevailing party. If SFWMD legal
action is not taken by staff counsel, “reasonable attorney’s fees” is
understood to mean the fair market value of the services provided, based
upon what a private attorney would charge.
d. This Certification does not convey any
property rights nor any rights or privileges other than those specified
herein and this Certification shall not, in any way, be construed as an
abandonment or any other such impairment or disposition of the SFWMD’s
property rights except as provided in this Certification. The SFWMD
approves the use/facilities authorized in this Certification only to the
extent of its interest in the works of the SFWMD. Licensee shall obtain
all other necessary federal, state, local, special district and private
authorizations prior to the start of any construction or alteration
authorized by this Certification. Licensee shall comply with any more
stringent conditions or provisions, which may be set forth in other
required permits or other authorizations. The SFWMD, however, assumes no
duty to ensure that any such authorizations have been obtained or to
protect the legal rights of the underlying fee owner, in those instances
where the SFWMD owns less than fee.
e. Unless specifically
prohibited or limited by statute, Licensee agrees to indemnify, defend and
save the SFWMD (which used herein includes the SFWMD and its past, present
and future employees, agents, representatives, officers and Governing
Board members and any of their successors and assigns) from and against
any and all lawsuits, actions, claims, demands, losses, expenses, costs,
reasonable attorneys fees, judgments and liabilities which arise from or
may be related to the Licensee’s interest in the ROW, construction,
maintenance or operation of the transmission line or the possession,
utilization, maintenance, occupancy or ingress and egress of the SFWMD’s
right of way which arise directly or indirectly and/or are caused in whole
or in part by the acts, omissions or negligence of the Licensee or of
third parties acting as agents of Licensee. Licensee agrees to provide
legal counsel acceptable to the SFWMD if requested for the defense of any
such claims.
f. The SFWMD does not waive sovereign immunity in any respect.
g. The Licensee shall not engage in any activity regarding the
authorized use which interferes with the construction, alteration,
maintenance or operation of the works of the SFWMD, including:
(1) discharge of
debris or aquatic weeds into the works of the SFWMD;
(2) causing erosion
or shoaling within the works of the SFWMD;
(3) planting trees
or shrubs or erecting structures which limit or prohibit access by SFWMD
equipment and vehicles, except as may be authorized by this Certification.
Licensee shall be responsible for any costs incurred by the SFWMD
resulting from any such interference, as set forth in (1), (2), and (3),
above;
(4) leaving
construction or other debris on the SFWMD’s right of way or waterway;
(5) damaging SFWMD
berms and levees;
(a) the
removal of SFWMD owned spoil material;
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