Florida governor signs legislation clarifying that PSC has exclusive jurisdiction to require underground transmission lines

Florida Gov. Rick Scott on March 19 signed into law HB 405, which, as noted in a statement from the governor’s office, provides legal certainty for decisions made under the Power Plant Siting and Transmission Line Siting Act.

According to the Florida Department of Environmental Protection’s website, all power plants built after Oct. 1, 1973, by regulated electric utilities in Florida, using solar energy or steam turbines to generate 75 MW or more of electric power are subject to the Power Plant Siting Act. The site also notes that most transmission lines conducting 230 kV or more are subject to the Transmission Line Siting Act; transmission lines with construction limited to established rights of way (ROWs), and lines that are less than 15 miles long, or do not cross a county line, are exempt from that Act. Transmission lines certified under the Power Plant Siting Act are also exempt from the Transmission Line Siting Act, according to the site.

As noted in a March 19 letter from the governor to Secretary of State Kenneth Detzner, HB 405 is among other bills that the governor approved on March 19, and that originated in the Florida House of Representatives during the 2018 Regular Session.

According to the March 13 final bill analysis, as posted on the House’s website, HB 405 passed the House on Jan. 25, and subsequently passed the state Senate on Feb. 21.

The Florida Electrical Power Plant Siting Act (PPSA) and the Florida Electric Transmission Line Siting Act (TLSA) establish centrally coordinated review processes for state and local permitting of certain electrical power plants and transmission lines, the analysis noted.

Under the PPSA, an application to certify a site for a power plant and associated facilities must include a statement on the consistency of the site, and any associated facilities that constitute “development,” with existing land use plans and zoning ordinances; certain activities are excluded from the definition of development, according to the analysis. Further, the PPSA and the TLSA authorize certification conditions to be set, though both indicate that they do not affect the ratemaking powers of the Public Service Commission (PSC), the analysis noted.

In 2016, the Third District Court of Appeal determined that transmission lines associated with a proposed power plant under the PPSA constitute “development” and, thus, require review for consistency with existing local land use plans and zoning ordinances, the analysis said, adding that that decision conflicts with the historical interpretation and application of the PPSA by administrative tribunals in Florida. The court further determined that the siting board empowered by the PPSA would not infringe on the PSC’s exclusive ratemaking jurisdiction if it were to require, as a condition of certification, that a utility install transmission lines underground at its own expense, the analysis noted.

The bill appears to make the law consistent with the historical interpretation of the PPSA by amending two of the items excluded from the definition of “development” in relation to the PPSA, according to the analysis.

According to the enrolled version of the bill, as posted on the House’s website, HB 405:

  • Revises the definition of the term “development” to exclude work by certain utility providers on utility infrastructure on certain ROWs or corridors
  • Revises the definition to exclude the creation or termination of distribution and transmission corridors
  •  Requires the consideration of a certain variance standard when including conditions for the certification of an electrical power plant
  • Requires the consideration of a certain variance standard when including conditions for the certification of a proposed transmission line corridor

According to HB 405, “development” means the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.

Certain operations or uses shall not be taken for the purpose of HB 405 to involve “development,” including:

  • Work by any utility and other persons engaged in the distribution or transmission of gas, electricity, or water, for the purpose of inspecting, repairing, or renewing on established ROWs or corridors, or building on established or to-be-established ROWs or corridors, any sewers, mains, pipes, cables, utility tunnels, power lines, towers, poles, tracks, or the like
  • The creation or termination of rights of access, riparian rights, easements, distribution and transmission corridors, covenants concerning development of land, or other rights in land

Among other things, HB 405 also noted that the legislation shall not affect in any way the PSC’s ratemaking powers or its exclusive jurisdiction to require transmission lines to be located underground.

About Corina Rivera-Linares 3063 Articles
Corina Rivera-Linares, chief editor for TransmissionHub, has covered the U.S. power industry for the past 15 years. Before joining TransmissionHub, Corina covered renewable energy and environmental issues, as well as transmission, generation, regulation, legislation and ISO/RTO matters at SNL Financial. She has also covered such topics as health, politics, and education for weekly newspapers and national magazines. She can be reached at clinares@endeavorb2b.com.