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PROGRESS ENERGY FLORIDA
CONDITIONS OF CERTIFICATION: TA 81-02
Table of Contents
General Conditions
I. Definitions
II. Performance Criteria
III. Property Rights
IV. Adverse Impacts
V. Right of Entry
VI. Civil and Criminal
Liability
VII. Severability
VIII. Revocation or
Suspension
IX. Compliance
X. Right-of-Way Delineation and Compliance Verification
XI. Other Construction
Activities
XII. Maintenance
XIII. Archeological Sites
XIV. Road Crossings
XV. Modifications of
Conditions
XVI. Emergency Reporting
Special Conditions
I. Certified Corridor
II. Right-of-Way Route
Selection
III. Activities in Submerged and Transition Zones
IV. Areas for
Further Consideration
V. Access/Maintenance Roads
VI. Scrub Jay Habitat
VII. Activities/SWFWMD
VIII. Other
Construction
History Notes
GENERAL
CONDITIONS OF CERTIFICATION
The meaning of terms
used herein shall be governed by the definitions contained in Chapters
403, 373 and 253, Florida Statutes, and any regulation adopted pursuant
thereto and the statutes and regulations of any party. In the event of
any dispute over the meaning of a term used in these general or special
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 law.
The term 'keyhole
fill" as used herein shall mean the leaving of a span no less than 1,150
feet between two towers without an access/maintenance road.
The term 'ROW" means
the transmission line right-of-way to be selected by the permittee
within the corridor in accordance with the conditions of certification.
The term “DEP" means
the Florida department of Environmental Protection.
Certification,
including conditions of certification, is predicated upon design and
performance criteria indicated in the application. Thus, conformance to
those criteria, unless specifically amended, modified, or as DEP and the
parties are otherwise notified, is binding upon the permittee in the
preparation, construction and maintenance of the certified project. In
those instances where a conflict occurs between the application's design
criteria and the conditions of certification, the conditions shall
prevail.
III. Property
Rights
Except as otherwise
provided herein and under the Transmission Line Siting Act and rules
thereunder, the issuance of this certification does not convey any
property rights in either real or personal property, tangible or
intangible, nor any exclusive privileges, nor does it authorize any
injury to public or private property or any invasion of personal rights
nor any infringement of federal, state or local laws or regulations. The
permittee must obtain title, lease or right of use from the State of
Florida to any sovereign lands submerged or otherwise, occupied by the
ROW for the transmission line and structures.
IV. Adverse Impact
The permittee shall
take all reasonable steps to minimize any adverse impact resulting from
the construction, operation and maintenance of the transmission line in
complying with any limitation specified in this certification.
V. Right
of Entry
The permittee shall
allow the Secretary of DEP and/or authorized representatives, upon the
presentation of credentials:
A. To
enter upon the ROW where any construction or maintenance is being
undertaken or upon the permittee's premises in which records are
required to be kept under the terms and conditions of this permit.
B. To
have access to and copy all records required to be kept under the
conditions of this certification.
VI.
Civil and Criminal Liability
This certification
does not relieve the permittee from civil or criminal responsibility or
liability for non-compliance with any conditions of this certification,
applicable rules or regulations in accordance with Chapter 403, F.S.
VII. Severability
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 circumstances is held invalid, the application of such provision
to other circumstances and the remainder of the certification shall not
be affected thereby.
VIII. Revocation or Suspension
This certification
may be suspended or revoked pursuant to section 403.532, F.S.
IX. Compliance
Except as otherwise
provided herein, construction and maintenance shall comply with the
applicable nonprocedural rules and regulations of DEP and those agencies
specified in 62-17.54(2)(a) and (b), F.A.C., which would otherwise be
applicable to the construction and maintenance of the transmission line,
access roads and ROW.
X. Right-of-Way Delineation
and Compliance Verification
Aerial photographs of
at least 1:24000 scale shall be submitted to DEP delineating the ROW
route acquired. These photographs shall be submitted prior to
commencement of construction on the various segments of the line; it is
recommended that this information be submitted in segments rather than
waiting until the entire ROW is acquired. DEP and any other party which
requests to do so shall have 30 days from receipt by DEP to review the
photographs and to call any apparent conflicts with the requirements of
these conditions to the permittee's attention.
If DEP or any party
has reason to believe that the construction of the transmission line and
access roads within the permittee's designated ROW cannot be
accomplished in compliance with applicable statutes and rules of DEP or
of the party, the permittee shall be notified in writing. Failure of
such a notice to be served on permittee within 30 days from filing the
various segments in the aerial photographs with DEP constitutes approval
for construction within the designated ROW or the various segments of
ROW submitted for approval.
The acquisition of a
particular ROW or the expenditure of funds toward acquisition of a
particular ROW prior to DEP's review will be at the permittee's risk,
and DEP or any other party is not stopped from disapproving the
construction of the transmission line or access road within the ROW.
XI. Other Construction
Activities
A. Existing access
roads shall be used wherever practicable rather than constructing new
roads.
B. No borrow ponds
shall be constructed in hardwood hammocks.
C. The outer 20 feet
of the ROW shall not be clear-cut but rather selectively cleared of
danger trees. Danger trees are tall dead or diseased trees, or trees
leaning toward the line which would contact the line by falling.
D. Compliance with
the most recent version of the National Electric Safety Code adopted by
the Public Service Commission is required.
E. Open burning in
connection with land clearing shall be in accordance with the applicable
rules of the department of Agriculture and Consumer Services.
XII. Maintenance
A. Herbicides
applied in the ROW shall only be those registered by the U.S.
Environmental Protection Agency and by the state of Florida for use in
power line right of ways and other transportation corridors. 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
targeted to the undesirable vegetation. Broadcast application of
herbicide shall not be used in the ROW unless effects on non-targeted
vegetation are minimized.
B. When maintenance
trimming is necessary the outer 20 feet shall be selectively cleared of
danger trees and not clear-cut.
XIII. Archaeological Sites
Any archaeological sites
discovered during construction of the transmission lines shall be
disturbed as little as possible and such discovery shall be communicated
to the department of State, Division of Archives, History and Record
Management (DAHRM). Potentially affected areas crossed by the ROW deemed
likely to contain archaeological or historic sites as identified by
DAHRM shall be investigated by pedestrian survey, and if a significant
site is located, the site shall be protected and reported to DAHRM.
XIV. Road Crossings
A. For all locations
where the transmission line will cross state highways, the permittee
shall submit materials pursuant to the department of Transportation's
(DOT) "Utility Accommodation Guide" to DOT's district office within 30
days prior to starting construction for a particular crossing. The-
permittee shall comply with the criteria in the Utility Accommodation
Guide and with all applicable regulations pertaining to roadway
crossings by transmission lines, including these conditions of
certification, unless the DOT and the permittee agree to change those
requirements for good cause shown.
B. All crossings of
state highways shall be as nearly perpendicular to, and all towers as
far from, state, county and city roads, rights-of-way as practicable and
still maintain proper road clearance, in order to allow future widening
and expansion of those roads.
C. The transmission
line shall not be constructed across any state, county or city bridge,
which is supported by pilings.
D. For all locations
where the transmission line will cross county roads, and in counties
where crossing permits are generally required, the permittee shall
submit the applicable road crossing information to the County Engineer
as normally required by the county for such permit. The permittee shall
comply with all applicable county regulations pertaining to roadway
crossings by transmission lines.
XV. Modifications of
Conditions
A. Notwithstanding
Section XV.B. herein, the DEP Secretary is delegated the authority
pursuant to 403.5315(l), F.S., to modify conditions of certification
relating to:
1. A
modification of the project that would not cause any significant adverse
environmental impact.
2.
Modifications necessary to meet licensing conditions or requirements
imposed on the permittee by any federal regulatory agency. The permittee
shall notify DEP at least thirty (30) days prior to the issuance of the
federal license that would require such a modification.
3. A
reconstruction of the ROW or transmission line necessary to avoid or
mitigate an emergency involving the loss of human life or property
resulting from any natural or manmade cause, including hurricane,
tornado, fire, flood, explosion, windstorm or other calamitous accident
when new right-of-way or access facilities are necessary.
B. Unless objected
to by a party to these proceedings 20 days after notification by DEP or
the permittee, the DEP Secretary is delegated the authority pursuant to
403.5315(l), F.S., to modify these conditions of certification. To
comply with applicable non-procedural regulations of agencies, the
permittee may be required to use different construction or maintenance
techniques other than those represented in the application.
XVI. Emergency Reporting
Emergency replacement
of previously existing ROW or transmission lines shall not be considered
a modification pursuant to 403.5315(1), F.S., A verbal report of the
emergency shall be made to DEP as soon as possible.
Within fourteen (14)
calendar days after correction of the emergency which would require the
permittee to perform an activity not in accordance with the condition
certification, a report to DEP shall be made outlining the details of
the emergency and the steps taken for its temporary relief. The relief
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.
SPECIAL CONDITIONS OF
CERTIFICATION
These special
conditions are predicated upon the particular facts and issues in this
transmission line corridor certification proceeding and as such are not
expected to have applicability to future certifications.
I. Certified Corridor
A. The corridor for
which certification is granted is depicted in Attachment I.
B. Modified
Corridor Boundary
At a point identified
as the southwest corner of Section 4, Township 24 South, Range 23 East,
the corridor turns due south, expands, to 1,060 feet with the eastern 60
feet inside the SWFWMD west property line, and proceeds directly south
paralleling the SWFWMD proposed levee for approximately one and one-half
miles through “Devil’s Creek Swamp” to a point where the transmission
line corridor and the SWFWMD proposed levee diverge.
II. Right-of-Way Route
Selection
A. Prior to
right-of-way siting, all sandhills and flatwoods in the corridor shall
be surveyed for the possible occurrence of red-cockaded woodpeckers and
colony trees. If woodpeckers or such trees are found, the permittee
shall notify the Florida Game and Fresh Water Fish Commission and in
cooperation with that Commission attempt to site the right-of-way so
that the identified red-cockaded woodpecker colony shall be avoided if
such siting can occur without the addition of otherwise unnecessary
turning angles in the transmission line. In any event, construction of
the transmission line will be conducted in such a manner as to preserve,
if possible, red cockaded woodpecker colony trees when such are
identified within the right-of-way selected.
B. The ROW shall be
located along the county line in the vicinity of SR 48 such that minimal
disturbance is made to the R-1-M zoning area (Mobile Home Residental)
and C-1 zoning area (Neighborhood Commercial) located thereabouts.
C. The Row shall be
located parallel and immediately contiguous to the west side of the
existing Central Florida to Windermere transmission line in the area
delineated in the map attached as Figure I in Appendix III.
D. The ROW shall be
located along the county line south of SR 50 in Section 24, Township
22S, Range 23E, to avoid the hardwood hammock.
III. Activities in Submerged
and Transition Zones of Waters of the State
A. Swales shall not
be used if possible. However, where swales are used swale plugs shall be
provided between low areas to prevent drainage.
B. Turbidity
Control. Turbidity control measures, including but not limited to hay
bales, sodding, mulching and seeding, or turbidity screens, shall be
employed as needed to prevent violation of water quality standards.
C. Vegetation
Removal/Planting
1. Where
the transmission line crosses water- courses (rivers, creeks, sloughs,
etc., in which water usually flows in a defined bed or channel),
existing vegetation not in excess of 25 feet in height shall be left
undisturbed within 100 feet of the ordinary high water mark of the bed
or channel, but in any case it shall not exceed more than 150 feet from
either side of the centerline of the open water. if it is necessary to
remove trees, the root mat shall-be left undisturbed.
2. The
slope of the maintenance/access roads built on new fill in waters of the
State shall be seeded or planted immediately after construction with
endemic or benign non-endemic species to prevent potential erosion and
subsequent water quality degradation.
D. Site-Specific
Dredge/Fill Information and Compliance Verification
For all construction
activities in submerged and transition zones of waters of the State as
defined in Subsection 62-4.02(17), F.A.C., the permittee shall file a
copy of the Dredge/Fill Joint Application, department of Army/Florida
department of Environmental Regulation for Activities in Waters of the
State, SAJ Form 983 (July 21, 1977) with the DEP, Bureau of Permitting,
Power Plant Siting Section. The application form shall also be forwarded
by DEP to the Corps of Engineers, identifying that certification has
already been granted by the State.
Within 45 days of
filing of complete information, DEP shall determine whether or not a
probable violation of the conditions of certification would occur if the
plans were executed as filed. If it is determined that a probable
violation would occur, the permittee shall be notified and the probable
violation specified with particularity as well as possible corrective
measures suggested. Failure to notify the permittee in writing within-45
days shall constitute a compliance verification. Since certification is
the only form of permit required by the State, it is understood that the
permittee and DEP shall strive to resolve such matters by mutual
agreement. If mutual agreement cannot be reached, then the matter shall
be referred to the Division of Administrative Hearings (DOAH) for
disposition in accordance with the provisions of Chapter 120, F.S. The
hearing pursuant to Section 120.57, F.S., shall be held within 30 days
after its referral to DOAH.- The Hearing Officer shall issue the
decision 15 days after termination of such hearing. Referral of an issue
to DOAH pursuant to this condition shall neither affect other
conditions, nor shall it operate as a stay on any other portion of the
transmission line.
E. Water Quality
Certifications
Any necessary water
quality certification which must be provided to the Corps of Engineers
and the permittee by DEP shall be made at the time of a finding of
compliance for specific work at specific locations.
IV. Areas for Further
Consideration
Those areas
delineated in red on the Appendix III maps are areas where DEP finds
that construction in certain Dredge/Fill Jurisdiction Areas is
acceptable, but only with conditions. More detailed review as provided
by Special Condition III.D. will be necessary before a final
determination can be made. In general, however, it will be DEP's policy,
except in the Devils Creek Swamp area, to only approve keyhole fills
rather than continuous access roads which bisect the areas delineated in
red on the Appendix III maps. In the Devils Creek Swamp area the
permittee will build a continuous access/ maintenance road in the
easternmost 20 feet of the ROW. If prior to construction of the
access/maintenance road, the SWFWMD Board votes to drop its plan to
build a levee in the Devils Creek Swamp area, the permittee shall
construct keyhole fills in Devils Creek Swamp.
V. Access/Maintenance Roads
A.
Access/maintenance roads shall not be constructed in waters of the state
where DEP has dredge and fill jurisdiction pursuant to Chapter 62-4,
F.A.C., except in the following circumstances:
1. Where
the permittee would not have access to other portions of the ROW
adjacent to such waters of the State, except by constructing roads or
acquiring easements outside of the ROW; provided that the cost of
constructing the access/maintenance roads in the waters of the State
does not exceed the cost of obtaining any necessary easements and
construction of roads outside of the permittee's ROW. An affidavit of
the cost comparison shall be submitted with the dredge/fill
informational filing required by Special Condition III.D. in these
instances. OR
2. Where
by-passing the waters of the State would require the permittee to travel
a distance outside of its ROW in excess of three miles to return to the
next tower structure. A map indicating the route to be traveled and the
distance shall be submitted with the dredge/ fill informational filing
required by Special Condition III.D. in these instances. OR
3. Where
more environmental harm would result from routing the access/maintenance
road outside the waters of the State than in the waters of the State.
Justification for this decision shall be submitted with the dredge/fill
informational filing required by Special Condition III.D. in these
instances. OR
4. Where
the environmental benefits to be gained by not building the
access/maintenance roads in waters of the State are outweighed by other
land use factors. Justification for this decision shall be submitted
with the dredge/fill informational filing required by Special Condition
III.D. in these instances.
B. Where
access/maintenance roads are constructed in waters of the State, the
permittee shall comply with the following conditions:
1.
Access/maintenance roads shall be constructed and maintained to provide
reasonable assurances of compliance with water quality standards;
turbidity control measures, including but not limited to, hay bales,
sodding, mulching and seeding, shall be employed as necessary to prevent
violations of water quality standards;
2.
Access/maintenance roads shall be constructed and maintained to provide
reasonable assurances for the passage of flood waters equal in volume to
the 1-in-25 year storm and that post-construction flow volumes will not
vary significantly from pre-construction flow volumes;
3. The
slope of access/maintenance roads constructed in waters of the State
shall be planted with vegetation to prevent Potential erosion and
subsequent water quality degradation.
VI. Scrub Jay Habitat
Prior to final ROW
clearing, the scrub oak thickets near the intersection of SR 469 and SR
50 and those occurring within the broad area icted as possible locations
for the Kathleen Substation, with the exception of the substation
itself, shall be located on the best available aerial photographs with
the aid of soils maps which depict soils types which support scrub jay
habitat. These scrub oak thickets shall be then surveyed for the
occurrence of scrub jays. Where the scrub jays are found, the oak
understory shorter than 25 feet in height beneath the transmission line
shall be left intact with the exception of a 20-foo'6 wide
access/maintenance road pathway.
VII. Activities Within Works
of the Southwest Florida Water Management District
A. For all
construction activity in works of the District, the permittee shall
file, at least forty-five (45) days prior to commencement of
construction in the works of the District with the Southwest Florida
Water Management District (SWFWMD) in Brooksville, Florida, a copy of
the Dredge/Fill Joint Application, department of Army/Florida department
of Environmental Regulation, for Activities in the Waters of the State,
SAJ Form 983 (July 21, 1977) or, at the permittee's option, the
following information:
1. A
centerline profile of existing topographic features along proposed
access road(s).
2.
Preliminary design of proposed access road(s) with elevation marked.
3.
Typical cross-section of access road(s).
4.
Cross-section of each-stream or creek at those points to be crossed by
access road(s) or other facilities.
5.
Specifications showing size and type of water control structure (pipe,
culvert, etc.) to be placed within or on the works of the District, with
proposed flowline elevation marked.
6.
Specifications showing design capacity of all water control structures
to be employed.
7.
Specifications showing location and type of each transmission tower and
access road(s) to be constructed within or on the works of the District.
If the permittee
chooses to submit a DEP/Corps dredge/fill form, the specific information
detailed in this paragraph must be incorporated with the DEP/Corps
dredge/fill form. SWFWD and the permittee may jointly agree to vary the
informational requirements herein for good cause shown.
B. Construction
activities in works of the District means the placement of a structure,
e.g. access/ maintenance roads, tower structures, culverts and fill
materials in a works of the District. Construction activity shall not
include any activity exempted from Chapter 40 D-6, F.A.C., by 40 D-6
051(3), F.A.C.
C. "Works of the
District" means the following works of the SWFMD to the ordinary
high-water mark:
1. Devils
Creek Swamp, in Sections 8 and 17, Township 24 South, Range 23 East, as
shown on the U.S.G.S. Quadrangle Map-D-Clay Sink, Florida (1960).
2. Cross
Creek Swamp in Section 5, Township 25 South, Range 23 East, and Section
32, Township 24 South, Range 23 East, as shown on U.S.G.S. Quadrangle
Map-Branchborough, Florida (1960).
3. Cross
Creek in Section 8, Township 25 South, Range 23 East, as shown on
U.S.G.S. Quadrangle Map-Branchborough, Florida (1960).
4.
Withlacoochee River in Section 8, Township.25 South, Range 23 East, as
shown on U.S.G.S. Quadrangle Map-Branchborough, Florida (1960).
5. Colt
Creek in Sections 20 and 17, Township 25 South, Range 23 East, as shown
on U.S.G.S. Quadrangle Map-Branchborough, Florida (1960).
6. Gator
Creek in Section 32, Township 25 South, Range 23 East, as shown on
U.S.G.S. Quadrangle Map-Branchborough, Florida (1960).
D. Within forty-five
(45) days of filing all the information required herein, SWFWMD shall
determine, and notify the permittee in writing, whether the permittee
has provided reasonable assurances that the conditions of certification
would not be violated by the proposed construction activity. If SWFWMD
determines that reasonable assurances have not been given, SWFWMD shall
notify the permittee in writing of the probable violation specified with
particularity, as well as specify corrective measures. Failure to notify
the permittee in writing within forty-five (45) days shall constitute
compliance verification. Since certification is the only form of permit
required by any agency, it is understood that the permittee and the
SWFWMD shall strive to resolve such matters by mutual agreement. If
mutual agreement cannot be reached, then the matter shall be immediately
referred to the Division of Administrative Hearings (DOAh)
for disposition in accordance with the provisions of Chapter 120,
Florida Statutes. A hearing under S 120.57, Florida Statutes, shall be
held within thirty (30) days after its referral to DOAH. The Hearing
Officer shall issue the decision fifteen (15) days after the termination
of such hearing. All exceptions to the, Hearing Officer's order shall be
filed with the Governor and Cabinet within ten (10) days of the issuance
of such order. The Governor and Cabinet shall issue a decision within
thirty (30) days of the filing of the exception. Construction shall not
commence in the works of the districts affected until final agency
action. Referral of an issue to DOAH pursuant to this paragraph shall
neither affect other conditions nor operate as a stay on any other
portion of the transmission line certified.
E. Where the
transmission line crosses the site of the proposed SWFWMD levee in
Sections 4 and 5 of Township 24 South, Range 23 East, the permittee
shall coordinate construction with SWFWMD. The term "coordinate" shall
mean that the permittee will disclose to SWFWMD the construction
specifications of the transmission line for the crossing of that part of
the levee described above prior to construction, and that the
transmission line will be constructed so that the tower placement,
height of the conductors, and other construction or placement of
structures within the ROW, will not unreasonably interfere with the
construction and operation of the SWFWMD levee. SWFWMD understands that
the permittee will construct an overhead 500 kV transmission line over
the SWFWMD levee in the area described in this paragraph, and that the
term "coordinate" is limited to the placement of any structure within
the ROW so that such structure does not unreasonably interfere with the
construction and operation of the SWFWMD levee. It is agreed that, for
the purposes of this condition, the design height of the SWFWMD levee
will not be greater than 108 feet above the National Geodetic Vertical
Datum (NGVD).
VIII. Other Construction
Activities
General Condition
XI.C. shall not apply to those ROW areas where the ROW is immediately
contiguous to the SWFWMD levee.
History
Notes
Certified 07/26/82
Modified 01/11/83; signed by DEP
Secretary Tschinkel
Modified 09/13/85; signed by DEP
Secretary Tschinkel
Modified 11/03/04: signed by SCO
Program Administrator, Hamilton Oven
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