STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: CALPINE CONSTRUCTION FINANCE COMPANY, L.P. (BLUE HERON ENERGY CENTER) POWER PLANT SITING APPLICATION NO. PA00-42,

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) Case No. 00-4564EPP

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LAND USE RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

J. Lawrence Johnston, held a land use hearing in the above- styled case on February 6, 2002, in Vero Beach, Florida.

APPEARANCES

For Petitioner Calpine Construction Finance Company, L.P.:

David S. Dee, Esquire Landers & Parsons

310 West College Avenue Tallahassee, Florida 32301

For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399

For Audubon of Florida and the Pelican Island Audubon Society:

Kevin S. Doty, Esquire Hatch & Doty, P.A.

1701 A1A, Suite 220

Vero Beach, Florida 32963

STATEMENT OF THE ISSUE

Pursuant to Section 403.508(2), Florida Statutes, the sole issue for determination in this case is whether the proposed site for the Petitioner’s electrical power plant “is consistent and in compliance with existing land use plans and zoning ordinances.” (All statutory references are to the 2001 codification of the Florida Statutes.)

PRELIMINARY STATEMENT

On October 31, 2000, Calpine Construction Finance Company,

1. (“Calpine”), filed an application with the Florida Department of Environmental Protection (“Department” or “DEP") for authorization to construct and operate a nominal 1080 megawatt (“MW”) natural gas-fired, combined cycle electrical power plant on a site located in unincorporated Indian River County, Florida. Calpine’s application is subject to the requirements of the Florida Electrical Power Plant Siting Act (“PPSA”), Sections 403.501-.518, Florida Statutes. In compliance with Section 403.508(1), the land use hearing (“the Land Use Hearing”) in this case was scheduled for February 6, 2002.

   On January 25, 2002, a “Prehearing Stipulation for Land Use Hearing” (“Prehearing Stipulation”) was filed by Calpine, DEP, the Florida Department of Community Affairs, the Florida Department of Transportation, the Florida Public Service Commission, the Florida Fish and Wildlife Conservation

   Commission, the St. Johns River Water Management District, the Treasure Coast Regional Planning Council, Indian River County ("County"), St. Lucie County, Audubon of Florida and the Pelican Island Audubon Society. In the Prehearing Stipulation, all of the signatories, except Audubon of Florida and the Pelican Island Audubon Society (collectively referred to as "Audubon"), either agreed with or did not dispute Calpine’s assertion that the site of the proposed project is consistent and in compliance with existing land use plans and zoning ordinances.

   At the Land Use Hearing, Calpine called two witnesses: Jack Doolittle (accepted as an expert regarding electrical power plant siting and permitting, and environmental and land use impact assessments for power plants) and Stan Boling (accepted as an expert regarding land use planning and zoning issues). Calpine introduced exhibits 1-29 into evidence without objection.

   Prior to the Land Use Hearing, Calpine requested the Administrative Law Judge to take judicial notice of certain excerpts from the Indian River County 2020 Comprehensive Plan ("Comprehensive Plan"), and excerpts from The Code of Indian River County ("County Code"). Calpine's request was granted at the Land Use Hearing, subject to the ruling on any timely written objections. No objection to Calpine’s request was

   filed. (The excerpts from the Comprehensive Plan and County Code also were introduced into evidence at the Land Use Hearing, without objection.)

   None of the signatories to the Prehearing Stipulation participated at the Land Use Hearing, except Calpine, DEP, and Audubon. Except for Calpine, the parties to this proceeding did not call any witnesses or proffer any exhibits. Although the public was given an opportunity to comment, no one from the public testified or proffered any exhibits at the Land Use Hearing.

   The transcript of the Land Use Hearing was filed with the Division of Administrative Hearings on February 8, 2002, and the parties were allowed until February 21, 2002, to submit proposed recommended orders. Calpine and DEP timely filed a joint proposed recommended order on February 21, 2002. To date, no other party has filed a proposed recommended order.

   Based on all of the evidence of record, the following findings of fact are determined:

   FINDINGS OF FACT

   The Petitioner

   1. Calpine intends to license, construct, own, and operate a new electrical power plant in unincorporated Indian River County, Florida. Calpine filed an application with DEP under the PPSA for the proposed electrical power plant, which is known as the Blue Heron Energy Center ("the Project").

      The Site for the Blue Heron Energy Center

   2. The site (“Site”) for the Blue Heron Energy Center is located in southeastern Indian River County, approximately 5 miles southwest of the City of Vero Beach.

   3. The Site is approximately 50.5 acres in size and is currently undeveloped. The primary vegetation on the Site is pine flatwoods. The Site contains two small wetlands that will be preserved.

   4. The general area surrounding the Site is a mixture of agricultural, industrial, institutional, utility and residential land uses. The Interstate 95 ("I-95") corridor is adjacent to the west side of the Site. Just west of the I-95 corridor are two existing electrical transmission line corridors operated by Florida Power & Light Company ("FPL"). There is an existing natural gas pipeline owned by Florida Gas Transmission Company located between the two electrical transmission line corridors. The Indian River County Correctional Institution is located directly northwest of the Site. Farther to the north are Indian River County's landfill and several industrial (citrus processing) facilities. There also is one single-family residence located north of the Site. The eastern boundary of the Site is adjacent to 74th Avenue, which is adjacent to a drainage ditch known as the Lateral C Canal. A citrus grove and an industrial wastewater sprayfield are located on the east side of the Lateral C Canal. The southern boundary of the Site abuts the border between Indian River County and St. Lucie County. The I-95 corridor and

      undeveloped lands lie south of the Site in St. Lucie County. Southeast of the Site, in St. Lucie County, is a residential development known as Spanish Lakes Fairways. The Site is separated from this residential development by a drainage ditch, a berm, and an existing buffer of mature trees and dense vegetation.

      Description of the Proposed Blue Heron Project

   5. The Blue Heron Energy Center will involve the construction and operation of a combined cycle, natural gas- fired, electrical power plant that will generate approximately 1080 MW (nominal). The Blue Heron Project will be built in two phases, each generating approximately 540 MW (nominal). The first phase of the Project will include two combustion turbines, two heat recovery steam generators, a steam turbine, exhaust stacks, cooling towers, a treatment and storage system for process water, a treatment system and detention basin for storm water, an operations control center, transformers and related switching gear, and other ancillary structures and features. The second phase of the Project will be similar to the first phase.

   6. The Blue Heron Energy Center will connect to

      Florida's electrical grid with two overhead transmission lines that will extend west from the Site approximately 1400 feet (over I-95) to the existing FPL transmission lines. The Project will obtain natural gas by installing an underground pipe that will extend from the Site approximately 1400 feet to the west (under I-95) to where the Project will interconnect

      with the natural gas pipeline systems operated by Gulfstream and Florida Gas Transmission Company. Calpine has obtained options to purchase the land west of the Site where Calpine's gas pipeline corridor and electrical transmission line corridor will be located.

   7. The primary source of cooling and process water for the Blue Heron Energy Center will be surface water (storm water), which will be obtained from the Lateral C Canal or the County's proposed stormwater park. Potable water and domestic wastewater services will be provided by Indian River County. No groundwater will be used by the Project. The Blue Heron Project will not discharge any industrial or domestic wastewater to any surface water or groundwater.

      Existing Land Use Plans and Zoning Ordinances

   8. The Site is designated Agricultural (AG-1) in Indian River County's Comprehensive Plan. Under the Comprehensive Plan, the AG-1 designation allows for the construction of electrical power plants, like the Project, as "public facilities."

   9. Indian River County has adopted land development regulations and zoning districts that implement the intent of the County’s Comprehensive Plan. Under the zoning code, like the Comprehensive Plan, the Site is located in an Agricultural (A-1) district. The County’s zoning code expressly allows the construction of "public and private utilities, heavy" as a special exception use in A-1 zoning districts. The County's zoning code defines "utilities, public or private, heavy" to

      include "all major electrical generation plants (generating fifty (50) megawatts or more)." Thus, the A-1 zoning designation for the Site allows the development of the Project as a special exception use.

      Special Exception Use

   10. Section 971.05 of the County Code sets forth the procedures and criteria for obtaining the County's approval of a special exception use. Among other things, Section 971.05(9) of the County Code requires an applicant for a special exception use to demonstrate that the proposed project is consistent with the County's Comprehensive Plan and zoning code.

   11. Calpine has worked with the County to ensure that every aspect of the Blue Heron Energy Center will comply with the County's criteria. Consistent with the requirements of Section 971.05 of the County Code, Calpine filed an application with the County for approval of a special exception use and conceptual site plan for the Blue Heron Project. The Special Use Exception Application ("SUEA") fully described the Project, including the corridors for the proposed transmission lines and natural gas pipeline.

   12. The County’s staff reviewed Calpine’s SUEA and recommended approval, subject to certain conditions. On August 9, 2001, the County's Planning and Zoning Commission held a duly noticed public hearing and then recommended approval of Calpine’s SUEA, with conditions. On September 18, 2001, the Indian River County Board of County Commissioners

       ("County Commission") held a duly noticed public hearing and then approved Calpine’s SUEA, with conditions. It is "typical" for the County to include conditions as part of the County's approval for a special exception use. If Calpine complies with the County's conditions for its special exception use, the County will "automatically approve the final site plan" for the Blue Heron Project. No one appealed the County Commission's approval of Calpine’s SUEA and the deadline for filing an appeal has passed.

       Consistency With Land Use Plans and Zoning Ordinances

   13. The County staff, the Planning and Zoning Commission, and the County Commission considered whether the Project is consistent and in compliance with the County's Comprehensive Plan and zoning ordinances, pursuant to Section 971.05 of the County Code, and then they approved the Project, with conditions.

   14. The evidence presented in the Land Use Hearing demonstrated that the Site is consistent and in compliance with Indian River County’s Comprehensive Plan. The evidence also demonstrated that the Site is consistent and in compliance with Indian River County’s zoning ordinances.

   15. In the Prehearing Stipulation, Indian River County, St. Lucie County, the Florida Department of Community Affairs, the Treasure Coast Regional Planning Council, the Florida Department of Environmental Protection, the Florida Department of Transportation, the Florida Public Service Commission, the Florida Fish and Wildlife Conservation Commission and the St.

       Johns River Water Management District either agreed with or did not dispute Calpine’s assertion that the Site is consistent and in compliance with existing land use plans and zoning ordinances. Indian River County also stipulated that it supports Calpine’s plan to construct and operate the Blue Heron Project on the Site.

       Public Notice of the Land Use Hearing

   16. On December 11, 2000, Calpine published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Vero Beach Press-Journal, which is a newspaper of general circulation published in Indian River County, Florida.

   17. On October 9, 2001, the Administrative Law Judge issued an “Order Granting Continuance and Re-Scheduling Land Use Hearing” and served a copy of his Order on all of the parties to this proceeding. The Judge’s Order stated that the Land Use Hearing would be conducted on February 6, 2002.

   18. On December 14, 2001, Calpine published a “Notice of Land Use and Zoning Hearing on Proposed Power Plant Facility” in the Vero Beach Press-Journal.

   19. On December 14, 2001, the Department published notice of the Land Use Hearing in the Florida Administrative Weekly.

   20. The public notices for the Land Use Hearing satisfy the informational and other requirements set forth in Section 403.5115, and Rules 62-17.280 and 62-17.281(4), Florida Administrative Code.

       CONCLUSIONS OF LAW

   21. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 403.508.

   22. Calpine and DEP published timely public notice of the Land Use Hearing, in compliance with the requirements contained in the PPSA and Chapter 62-17, Florida Administrative Code.

   23. Pursuant to Section 403.508(2), the sole issue for determination in this proceeding is whether the proposed Site of the Blue Heron Energy Center is consistent and in compliance with existing land use plans and zoning ordinances.

   24. The competent, substantial, and unrebutted evidence presented by Calpine at the Land Use Hearing demonstrated that the Site for the Blue Heron Project is consistent and in compliance with the applicable provisions of the existing land use plans and zoning ordinances, including but not limited to Indian River County’s comprehensive land use plan and zoning code.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Land Use Final Order in this case finding that the Site of the Blue Heron Energy Center is consistent and in compliance with the existing land use plans and zoning ordinances.

DONE AND ORDERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002.

COPIES FURNISHED:

James V. Antista, General Counsel Florida Fish and Wildlife

Conservation Commission Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600

Ross Stafford Burnaman, Esquire Florida Fish and Wildlife

Conservation Commission Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600

Paul Bangel, Esquire County Attorney's Office 1840 25th Street

Vero Beach, Florida 32960

Kathy Beddell, Esquire

Harold Mclean, General Counsel Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850

David S. Dee, Esquire Landers & Parsons

310 West College Avenue Tallahassee, Florida 32301

Kevin S. Doty, Esquire Hatch & Doty, P.A.

1701 Highway A1A, Suite 220 Vero Beach, Florida 32963-2206

Scott A. Goorland, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000

Charles Lee, Sr., Vice President Florida Audubon Society

1331 Palmetto Avenue

Suite 110

Winter Park, Florida 32789

Terry E. Lewis, Esquire Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard Suite 1000

West Palm Beach, Florida 33401

Daniel S. McIntyre, Esquire St. Lucie County

2300 Virginia Avenue

3rd Floor Administrative Annex Fort Pierce, Florida 34952

Cari L. Roth, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Roger G. Saberson, Esquire

70 Southeast Fourth Avenue Delray Beach, Florida 33483

Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Jennifer B. Springfield, Esquire

St. Johns River Water Management District Post Office Box 1429

Palatka, Florida 32178-1429

Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Kathy C. Carter, Agency Clerk Office of General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Land Use Recommended Order. Any exceptions to this Land Use Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-004564EPP

Orders for Case No: 00-004564EPP