SUMMARY OF PUBLIC WORKSHOP
NOTICED
GENERAL PERMIT AND
FIBER OPTIC
CABLE ZONES, FEES
May 22, 2001, 9:00
a.m. – 10:52 a.m.
Department of Environmental Protection
Tallahassee, Florida
A public workshop regarding Fiber Optic
Cables (FOCs) was held on May 22, 2001, at the Department of Environmental
Protection (DEP), 3800 Commonwealth Blvd., Conference Room 170-M, Tallahassee,
Florida. The workshop was advertised in
the Florida Administrative Weekly, May 11, 2001, Volume 27, Number 7,
pages 2320 and 2377. Approximately 38
persons attended or participated by phone, including nine DEP staff. A list of attendees is attached. This is the last scheduled workshop prior to
presenting the rules to the Board of Trustees (Board); previous meetings were
held on February 21, April 20 and April 25, 2001.
The purpose of the workshop was to continue discussion and to receive public comments on preliminary draft amendments to Chapter 18-21, F.A.C., regarding the location of zones and assessment of fees for the placement of offshore FOCs on sovereign submerged lands, and Chapter 62-341, F.A.C, establishing a new environmental resource (ERP) noticed general permit (NGP) for offshore FOCs. Revised drafts of the NGP and the amendments to 18-21 were presented, along with a summary from the two previous workshops held April 20 in Tallahassee and April 25 in West Palm Beach.
Eric
Bush, Bureau Chief of the Bureau of Submerged Lands and Environmental Resources
(BSLER), made introductory remarks with a brief overview of the effect of the
purposed rules and encouraged input on the DEP’s efforts from all concerned
parties. He then reviewed the summary
from the recent April workshops and presented changes to the proposed NGP and
the amendments to chapter 18-21.
Comments were accepted from those in the audience and on the
telephone. A copy of the PowerPoint
presentation is attached.
·
Copies of the overhead presentation.
·
Fiber Optic Cable Rule amendments to Chapters 62-341 and 18-21, F.A.C.
·
Combined summary from April public workshops.
In
July 2000, the Board approved an agenda item recommending the DEP, as staff tot
he Board, consider establishing corridors and assessing a new fee structure for
offshore FOCs on sovereign submerged lands.
DEP presented a status report to the Board in March 2001. At that time, the Board asked DEP to make
Florida the fastest, cheapest, most FOC-friendly state, but to balance this
appeal with protection of Florida’s environment and natural resources. For information on the background of how and
why this effort originated, please refer to the summary of the February 21,
2001, public meeting.
Discussion of Proposed NGP (Chapter
62-341)
Eric
Bush presented an overview of the draft rule.
DEP proposes to add a new ERP NGP in rule 62-341 to expedite regulatory
permitting for installation of offshore fiber optic cables and associated
conduits located in the territorial seas, including connections to a manhole
landing in the first uplands reached (referred to as the beach manhole). This new section will establish and provide:
limitations on allowable impacts; “best management practices” for directional
drilling and cable laying operations; inspection and reporting requirements;
mitigation requirements; and water quality and habitat protections. The NGP includes requirements for avoidance
and minimization and, specifically, sand source areas will have to be avoided
and have a buffer setback. This proposed NGP will be a pre-issued permit and will cover
the installation, operation and maintenance of cables and conduits. An NGP allows activities to commence
30 days after a complete notice is submitted to the Department. Changes made since the last workshop:
·
Deleted
removal of cables as an authorized activity, although additional references to
removal need to be made to page 1
·
Deleted
Martin County
·
Total
resource impacts increased to 1,000 sq. ft.
·
Coral
impacts reduced to 15 sq. ft.
·
Added
no impact to anchorage areas
·
Revised
information to be contained in the NGP Notice
·
Deleted
fluorometry monitoring plan
·
Deleted
“no other additives to drilling lubricants”
·
Deleted
landfill disposal receipt requirement
·
Reduced
the maximum cable-laying vessel speed to between ½ and 1 knot
·
Submittal
of mitigation module plan increased to 60 days after final cable installation
·
Deleted
most manatee conditions
·
The
Department should obtain more refined information on sea turtle and coral
habitat mitigation and restoration from current leading experts at Florida Fish
and Wildlife Conservation Commission (FWC, Walt Jaap, USFWS, NMFS, and the
South Atlantic Fisheries Council).
·
The
proposed 5:1 ratio (mitigation modules:impact) will not adequately offset
natural coral and hard bottom impacts - artificial reefs and natural boulders do not provide all
the habitat and productively of those natural communities.
·
Reef Relief
does not support placement of bare modules or other structures. Better coral restoration is available. Several module manufacturers have been
transplanting corals and seeding corals in association with module placement.
·
The
mitigation should be more flexible to better address impacts to specific
habitats.
·
Mitigation
using modules should mimic the actual habitat lost. Modules should be smaller to reflect the variety of nooks and
crannies found in natural habits (creatures come in all sizes), not just the
4-foot diameter limerock boulders.
Modules without specifications to recreate the configuration of the lost
habitat is not acceptable. Use the
habitat equivalency modules (HEMs) to predict the type and amount of needed
mitigation.
·
The
mitigation ratio using (regular) modules is an amount that is greater than the
average required using habitat equivalency modules.
·
Mitigation
should only be done at artificial reef sites or they must request use of other
areas from the U.S. Army Corps of Engineers (COE) and the state’s Artificial
Reef Program. The COE has not been
approving new artificial reefs.
·
Many reef
modules use steel. Steel is not
recommended, but if modules with steel are to be used, thicker gauge steel
should be used. Check on the type of
steel being allowed.
·
No one
anchors artificial reefs and boulders.
It is not economically feasible for industry to do so; therefore, do not
include it as part of the mitigation condition.
·
There
should be monitoring for a minimum of 1 year after placement of mitigation
structures. Other types of mitigation
projects have monitoring plans.
Following the cable laying, there should be a monitoring report of the
restoration efforts and other information, similar to what industry has to
supply for the initial review and what all other industries must supply for
restoration and mitigation of environmental impacts.
·
Who will
determine if the “mitigation” is successful?
·
There
should be a notification process at the time of receipt of the application - the public needs to be informed when new
cables are proposed.
·
The draft
NGP appears to have been developed from other documents that do not necessarily
contain the most appropriate information.
For example, it appears, in part that information was cut and pasted
from previous cable laying permits.
Were those projects monitored for success criteria? This is not the type of activity to be
issued as an NGP – too many resources are at stake.
·
Florida
Geological Survey’s (FGS) Coastal Research Group (CRG) is currently working
from Brevard to Martin Counties conducting rock coring and side scans, adding
continuously to the information on new sources of sand. It is recommended that future requests for
offshore information be addressed to the FGS, as CRG’s coastal program is
ongoing and continually acquiring new coastal data.
·
Gary Early
calculated the information concerning the number of modules recommended. For 1,000 sq. ft impact to hard bottom, at
75 sq. ft. per module, 61 modules will be required. TyCom provided 36 modules for 6 sq. ft. of impact. Gary recommended that the Department put
more focus in the other resources besides rock.
·
The DEP
Office of Beaches and Coastal Systems (OBCS) is trying to find every area that
is a potential sand source area. Sand
is a very significant resource to Miami-Dade, Palm Beach and Broward Counties
for future beach renourishment projects.
The OBCS would like industry to submit geotechnical information on sand
grain analysis, if not before, then during the review process.
·
From Stuart
southward, some areas near beach nourishment projects are becoming more shallow
from the sand movement and buildup, and this information may not be reflected
on the navigation charts.
·
Gary Early
asked DEP to reconsider his comments on the set back from sand source
areas. He believes that this will
further restrict location of landing sites.
It may result in a speculative mode for these areas. Coordination between OBCS and the COE for
sand source areas was requested. The
1,000-foot set back from sand source areas is another limit to the location of
landing sites. It was suggested that
the setback be 200 feet within the corridor.
·
Although
nautical charts are republished with changes every five years, we were informed
by FWC that there are changes on a 6-month basis, including pipeline placements
that are not published until the five-year update.
·
Industry’s
primary concern is the restriction from “lighting” (providing power to) the
cable during the installation and testing process. Industry stated that part of the installation process requires
being able to test the connection and verify that the cable is working. Gary Early stated that there are other
enforcement abilities (i.e., administrative fines) for the DEP to address
industry violators who may try to operate and use the cable prior to meeting
all the permit requirements. He would
like to see the Department use other compliance measures. The longer the time the Department has to
obtain, review and respond to the cable laying report, the longer industry is
prevented from connecting the power to their cable, and collecting their monetary
return.
REVISIONS TO
Chapter 18-21—LocationS of Zones, Authorizations, and Fees
Zones
Eric Bush
explained that the number of zones has been reduced to three - one in Miami-Dade County, and two in Palm Beach County
(the Martin County zone was dropped). The zones were selected in consideration of hardbottom and
seagrass resources, state and federal managed areas, critically eroding
beaches, fishing areas, beach nourishment areas, existing lines, and
upland landing considerations.
Additional background on these zones may be found in the summary of the
April workshops. The proposed
amendments to chapter 18-21 include provisions for an expedited form of
authorization and reduced fees for offshore FOCs that are located in one of the
three designated zones.
Forms of Authorization
Individual easements will be issued for installation of
FOC cables and conduits. The easement gives
the grantee the authorization for the specified purpose, and does not grant
exclusive use of the entire easement area.
Where a subsequent use is deemed compatible with a use authorized by an
easement, a subsequent easement can be issued that may cover all or a portion
of the same area. However, we do not
expect to issue overlapping easements for FOCs because each will only be
approximately 10 feet wide or wide enough to provide the protection
needed. Conflicting uses, such as
easements for borrow sites, will not be allowed to overlap and will be some
distance apart.
For projects located within a zone, the authority to
grant the sovereign submerged lands authorization would be delegated to staff
of the Department of Environmental Protection.
A temporary letter of consent would be issued initially with a condition
that an easement be executed within six months of installation. Projects outside the zones would be considered
of heightened public concern and, therefore, would require Board of Trustees’
consideration and authorization, as they have in the past.
Fees
Application fees of $15,000 would be required for all
private or public easement applications for FOCs in the territorial sea,
whether located inside or outside a zone.
The annual easement fee for private projects located within one of the
southeast zones would be $100 per cable or stand-alone conduit. For private projects outside zones, but in
Palm Beach, Broward or Miami-Dade Counties, the annual easement fee would be
based on a formula using the appraised value of the upland property; these fees
are expected to be much higher, approximately $800,000. The proposed rule now includes the formula [one-half the appraised value of the
riparian upland parcel where the FOC landing is located, expressed in square
feet x number of square feet of the easement x corporate rate of return on
investment for each stand-alone cable or conduit, with or without a cable], replacing
the $50 per linear foot per year. The
$100 fee will be adjusted annually based on changes to the Consumer Price
Index. Additional information on fees
is contained in the summary of the April workshops.
·
Industry
stated that the fees outside of the zones are excessive and will prohibit new
facilities. Additionally, the appraised
value for the upland seems arbitrary when considering a fee of $100 fee inside
a zone versus $800,000 fee outside a zone.
Industry questioned the fee formula and stated that both the $50 per
linear foot average and the formula are unattractive.
·
The width
of the easement is too wide - a cable
occupies much less space. The industry
will be paying more money in easement fees than is necessary.
·
Easement
fees should be fixed, not based on a formula.
The formula gives more incentive to locating cables in poorer
neighborhoods.
·
The
California model on which the formula was based is not representative of how
California is actually assessing fees.
·
There is
great disparity between the $15,000 application fee and the $100 easement fee
for cables in zones, considering how the cables in the zones will be precluding
other public uses. A fixed fee per
linear foot of cable would be better.
·
Industry
stated that a lot of activity will be precluded during cable installation, but
not after the cable has been placed.
·
Industry
suggested that the easements should be for 20 years, instead of 10, and
mentioned that there has not been discussion of the size of the easement.
·
There was a
suggestion that industry post bonds but they are already doing this for some
counties’ regulations.
ENTITIES WHO
PROVIDED WRITTEN COMMENTS AND MATERIALS
Please
refer to the attached list of all comments received from April through June.
Maps of cable routes from the east and west coasts
of Florida may be viewed at DEP’s FTP Internet site: ftp://tlhdwf2.dep.state.fl.us/erpgis/cables/index.html. This site contains an index of the
maps. The maps on the site are slightly
revised from the printed versions.
There are “large” *.jpg images from the original full size maps which
can be viewed on screen and downloaded and taken into a graphic program for
printing if desired. Also there are
“small” *.jpg images—the originals were resampled between 27% and 35% of their
original size to make printing them easier.
However, a lot of resolution and clarity will be lost with these smaller
maps. The contact for questions about the
maps is Richard Butgereit, 850/921-9933, Richard.Butgereit@dep.state.fl.us.
ADDITIONAL COMMENTS
The next action involves taking
amendments to rule 18-21,
regarding location of proposed zones and fees, though the Department’s internal
review process so that the amendments can be presented to the Board of Trustees
on June 12, 2001. This will be preceded
by a Cabinet Aids meeting on June 6.
Electronic
Attachments:
Power
Point Presentation on Proposed Amendments to Chapters 18-21 and 62-341, F.A.C.
Attendance
List
REGARDING
FIBER OPTIC CABLES
This
is a complete list of all comments received from April through June 8, 2001,
including
those previously listed in the Summary of the April Public Workshops:
·
Joanne
Delaney, NOAA, Florida Keys National Marine Sanctuary – April 16, 2001 e-mail
·
Leonard
Nero – April 25, 2001, verbal and e-mail
·
Mary C.
Murphy, DEP Southeast District – April 18, 2001 e-mail
·
Site map of
the Martin County Borrow Area from Clay Bryant, Gahagan & Bryant
Associates, Inc., April 20, 2001
·
Santos
Stewart, COE, Jacksonville – April 24, 2001, verbal
·
Robert J.
Bartolotta, Town Manager, Town of Jupiter – April 24, 2001 letter
·
Site map of
Kathy Fitzpatrick, Martin County, provided DEP a map that shows a considerable
amount of information on resources other than hard bottom, April 25, 2001
·
John Armor,
NOAA, Office of National Marine Sanctuaries – April 26 verbal and May 7, 2001
e-mail
·
Mary F.
Smallwood, Ruden, McClosky, Smith, Schuster & Russell, P.A. – May 2, 2001 letter with videos and project reports
·
E. Gary
Early, Akerman Senterfitt, Attorneys at Law – May 2, 2001 letter with CD of
summary and maps of alternatives analysis
·
Richard E.
Walesky, Director, Environmental Resource Management, Palm Beach County – May
8, 2001 letter
·
Craig
Kruempel, Coastal Planning & Engineering, Inc. – May 9, 2001, e-mail
·
Al Devereaux,
Director, Office of Beaches and Coastal Systems, DEP – May 10, 2001 e-mail
letter
·
John
Sprague, Marine Industries Association of Florida – May 11, 2001, e-mail
·
Paul
Johnson, Reef Relief – May 15, 2001 letter
·
Daniel
Clark, Cry of the Water, Inc. – May 16, 2001 letter and video “State of the
Reef, Broward Nearshore Hardbottom”
·
E. Gary
Early, Akerman Senterfitt, Attorneys at Law - May 18, 2001, transmittal of Industry Response to
“Frequently Asked Questions”
·
Martin
Stern and Megan Troy, Preston Gates Ellis & Rouvelas Meeds LLP
(representing Global Crossing Ltd.) - May 23, 2001, letter via fax
·
Ron
Hoenstein, Florida Geological Survey - May 23, 2001, e-mail
·
E. Gary
Early, Akerman Senterfitt, Attorneys at Law (representing TyCom) – May 23, 2001
letter of comments on Ch. 18-21 amendments
·
James K.
Culter, Mote Marine Laboratory – May 23, 2001 letter
·
David H.
Kaplan – May 30, 2001 letter
·
Janet
Phipps, Palm Beach County – June 1, 2001 e-mail
·
Phil Light,
Palm Beach County – June 1, 2001 e-mail
·
FOC HDD
engineer – June 4, 2001 e-mail
·
Dr. Ray
McAllister, Professor (Emeritus) of Ocean Engineering - June 4, 2001 letter
·
Walt Japp,
Fish and Wildlife Conservation Commission, FMRI – June 4, 2001 e-mail
memorandum
·
Edrianna
Stillwell – June 4, 2001 e-mail
·
Lee County
Board of County Commissioners – June 5, 2001 letter
·
Jon
Dodrill, Fish and Wildlife Conservation Commission, Artificial Reef Program –
June 5 e-mail of letter, June 6, 2001 letter
·
Anne
Longman – June 8, 2001 e-mail
For
previous comments from the North American Submarine Cable Association (NASCA)
and Public Employees for Environmental Responsibility, see the February 21,
2001 meeting summary.
Fiber Optic Cables Rule
Development Workshop
ATTENDEES
DEP: Eric
Bush, Phil Coram, Doug Fry,
Alice
Heathcock, Katherine Gilbert,
Others:
Chris Jensen - Florida Energy & Pipeline
Association
Roxane Dow –
DEP, OBCS
Paul Johnson –
Reef Relief
Mike Tammaro –
Carlton Fields
Jackie Fry –
Phoenix Environmental
James Wilson –
360 Network
Kim Walker –
Ecology & Environment
Richard Shine –
Greenberg, Traurig
Kim Grippa,
Office of Secretary of State, Cabinet Affairs
Dave Brache –
Florida Teleport
Laly (Peralta)
Cereijo – Florida Teleport
Seann Frazier -
Greenberg Traurig
Richard
Brightman – HGSS
Nick Stratis - DEP
Ann Longman –
Lewis Longman & Walker
Catherine Creese
– Tycom
Gary Early –
Akerman Senterfitt
Mary Smallwood –
Ruden McClosky, et. al.
Kurtis Gregg - DEP, Office of Intergovernmental Policy
Paul Shorb -
AT&T Corporation
Brian Bibeal - Hopping Green
Diana Davis - Florida Power & Light
Tom Maher - FWC, Artificial Reef Program
Jim Rimes - Tallahassee, FL
Telephone:
Dana Wiehle –
Office of The Comptroller
Wilbert Holliday
– DEP, Orlando District Office