Lazaro Aleman
ECB Publishing, Inc.
The transmission line ordinance that the county planners have been tweaking for months in conjunction with Attorney David Collins has now been sent to the Jefferson County Commission for review and expected approval.
The measure, ostensibly a challenge to NextEra and the 161kV line that it proposes to run across Jefferson County, is set to be taken up by county commissioners on Thursday evening, May 7.
On Thursday, April 23, in a video-streamed meeting, the planners gave the document a final review before approving it for recommendation to the commission.
The nine-page measure specifically targets transmission lines that carry more than 50 kilowatts, but less than 230 kilovolts, by requiring them to comply with the standards set in the ordinance, unless otherwise preempted by state law. The standards, as set in the ordinance, are intended to ensure for the public's health, safety and welfare.
Among the ordinance's several requirements for the targeted transmission lines, utility companies must submit an application for a special-exception plan review by the Jefferson County Planning Commission, to determine if the project complies with the standards.
The application, moreover, must be of sufficient depth and breath to show that it complies with the standards, including maps, legal descriptions of the properties that the transmission line impacts and a
plan for how sensitive resources will be protected.
Among the ordinance's many proposed safety standards: To the extent practical, proposed transmission lines must use existing state-maintained roads and utility rights-of-way routes and easements that can safely accommodate said lines; if the lines go outside existing routes, they must be adjacent to existing public roads, utility rights-of-way or easements and “may not increase the width of the clearing for the existing right-of-way or easements by more than 50 percent and not beyond a maximum width of 125 feet”; for lines that are not in or adjacent to existing routes, the permanent rights-of-way are limited to 50 feet in width; they must also be located at least 200 feet away from residences or occupied places of business; and the lines must comply with FCC requirements for electric magnetic field monitoring.
The applicant must also, per the ordinance, submit a plan “as to whether burying the transmission line is feasible on the proposed route or any part of said proposed route.” If burying is feasible, “the applicant must provide a detailed estimate of the costs to the county for burying all or part of the line...”
The purpose of the estimate, per the ordinance, is to “allow county officials to determine if the citizens would vote to approve and pay for a public bond to pay for the burying of said line(s).”
The language allows county officials “the right to stop or halt any activity that violates the ordinance's requirements,” as well as impose monetary fines against any entity that does not conform to the requirements.
In his brief comments to the planners, Collins told them that the version before them was “much different” from the one they had previously considered. It didn't require the utility company to bury the line, he said. Rather, it asked for cost estimates so that county officials could decide if they wanted to pursue burial of sections of the line in certain areas at county cost, he said.
Planner John Walker asked if it wouldn't be better to require the utility company to pay for the lines' burial?
Collins said he didn't recommend doing so.
“If we do, I expect the utility company to balk,” Collins said. “It would give them ammunition to litigate on this point... For litigation purposes, we need to leave that out. It would be millions to bury the line and it would be problematic to us. What we're doing is requiring them to give us an estimate, so that we can decide if we want to do it. This in no way puts the county on the hook in anyway.”
The idea, he said, was to bury the line in the section near the Waukeenah business area if the county so chose.
Doug Darling, a citizen, questioned if the ordinance was legally defensible in light of state preemption?
State preemption, Collins responded, was the key issue that the county faced when it began drafting the ordinance. State law, he said, typically trumped local law. Which was why he had been so careful to cast the ordinance as an attempt to protect the health, safety and welfare of residents, an area that was left to local governments to decide.
“This is the best ordinance that we can make and that the state can't attack as going against state preemption,” he said, citing various state statutes that supported his argument that public safety was an area left to local governments.
“This is a safety ordinance,” he said. “It has nothing to do with construction or siting. It simply allows the county to protect its citizens from the dangers that transmission lines pose.”
The ordinance also, he said, was consistent with the Jefferson County Comprehensive Plan, which the state had approved.
“Once the county commission approves this ordinance, it goes to the state for final approval,” Collins said. “If the state approves it, we're in good shape.”
Darling returned to his question, clarifying it.
“My question is based on the potential for litigation,” he said. “If we pass the ordinance, is it going to be a basis for litigation? Because I don't think Jefferson County has the reserves unless we're 110 percent sure that we're going to win. Does this ordinance give us 110 percent assurance?”
That was something that he couldn't assure, Collins said. Which, he said, was why it was called the practice of law and not the science of law.
“I feel very good about it, but I can't give that assurance,” Collins said of the ordinance. “The alternative is to accept what the transmission company wants to do. What I'm saying is that time is urgent if we're going to defend this.”
He wanted it understood that the action posed possible benefits, as well as risks. If the county won, he said, NextEra would have to pay all the legal costs, including the county's. If the county lost, however, it would be responsible for the company's legal costs.
Collins shared one more piece of information. NextEra, he said, had given the county an ultimatum. The company, he said, had offered to give Jefferson County $300,000 for the Wacissa River Park and Wacissa Volunteer Fire Department, provided that the attempted regulations were dropped.
“NextEra sent an email that if we didn't accept the offer and we attempted to regulate the line, the offer would not be available and they would see us in court,” he said.
Following Collins' remarks, the planning commission voted unanimously to recommend the ordinance to the county commission for approval.
NextEra's subsidiary, Gulf Power, is seeking to install the 161kV transmission line, which is planned to run 176 miles.
Formally called the North Florida Resiliency Connection, the proposed line is intended to connect the Florida Power & Light (FPL) Raven Substation in Columbia County to the Gulf Power PC Sinai Cemetery Substation in Jackson County. FPL is also a subsidiary of NextEra.
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