STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: FLORIDA POWER & LIGHT ) TURKEY POINT UNIT 5 POWER PLANT ) SITING APPLICATION NO. PA03-45 )

Case No. 03-4391EPP

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, J. Lawrence Johnston, held a certification hearing in the above-styled case on September 20-21, 2004, in Miami, Florida.

APPEARANCES

For Florida Power & Light Co.:

Peter C. Cunningham, Esquire Carolyn S. Raepple, Esquire Hopping Green & Sams, P.A.

123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314

Harris M. Rosen, Esquire Senior Attorney, Law Department Florida Power & Light Company Post Office Box 14000

Juno Beach, Florida 33408

For the Department of Environmental Protection:

Scott A. Goorland, Esquire

Department of Environmental Protection Office of General Counsel

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

For South Florida Water Management District:

Douglas McLaughlin, Esquire Peter Cocotos, Esquire Post Office Box 24680

West Palm Beach, Florida 33416-4690 For Miami-Dade County:

John D. McInnis, Esquire David Murray, Esquire

Miami-Dade County Attorney’s Office

111 Northwest First Street, Suite 2810 Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether the Governor and Cabinet, sitting as the Siting Board, should issue certification to Florida Power & Light Company (“FPL”), to construct and operate a new combined cycle generating unit, providing an additional 1150 megawatts, at FPL’s existing Turkey Point site in Miami-Dade County, Florida, in accordance with the Florida Electrical Power Plant Siting Act, Section 403.501, et seq., Florida Statutes.

PRELIMINARY STATEMENT

This proceeding was conducted pursuant to the Florida Electrical Power Plant Siting Act (“PPSA”), Chapter 403, Part II, Florida Statutes, and Florida Administrative Code Chapter 62-17 to consider FPL’s application for power plant site certification of the Turkey Point Expansion, or Unit 5, Project (the “Project”). On November 14, 2003, FPL applied for

certification to construct and operate an 1150 megawatt natural gas-fired electrical power plant in Miami-Dade County, Florida, referred to as “Unit 5,” pursuant to the PPSA. The Florida Department of Environmental Protection (“DEP”) determined the application for site certification to be complete on December 1, 2003. (PS p 3).1

Comments on the sufficiency of the application were timely submitted by the Department of Transportation, the Florida Fish and Wildlife Conservation Commission, the South Florida Water Management District (“SFWMD”), and the South Florida Regional Planning Council. FPL filed responses to all agency sufficiency comments. (FPL Ex 2). The application was found sufficient on April 7, 2004. (Id.)

On April 14, 2004, the SFWMD Governing Board, which has exclusive jurisdiction to regulate consumptive use of water within the District’s boundaries pursuant to Section 373.217, Florida Statutes, adopted its staff’s report recognizing that the Project can be constructed consistent with SFWMD statutes and rules, recommending approval of FPL’s withdrawal of 17.89 million gallons per day (90-day average)/4,599 million gallons per year to provide cooling water for Unit 5, subject to certain conditions and restrictions, and requiring FPL to use a reliable source of reclaimed water, if and when SFWMD notifies FPL that it is available at the Project site in a quantity and quality

acceptable to FPL for Unit 5 cooling purposes. (DEP Ex 2, Appendix IV).

Miami-Dade County (“M-DC”) filed its “Preliminary Statement of Issues” on February 2, 2004, and on February 3, 2004, filed its “Amended Preliminary Statement of Issues.” FPL voluntarily submitted responses to M-DC’s “Amended Preliminary Statement of Issues” on April 9, 2004. (FPL Ex 8; PS p 3).

On April 15, 2004, a land use hearing was held for the purposes of determining whether the Project is consistent and in compliance with local land use plans and zoning ordinances of

M-DC. On May 7, 2004, the assigned Administrative Law Judge entered his Recommended Order (on Land Use) concluding that the Project and its site are consistent and in compliance with M- DC’s land use plans and zoning ordinances. On August 10, 2004, the Siting Board unanimously approved a final Land Use Order adopting the Recommended Order (on Land Use) and finding the Project to be consistent and in compliance with applicable land use plans and zoning ordinances. The Siting Board’s Land Use Order was signed by Governor Bush and issued on August 18, 2004. (FPL Ex 6; PS p 3).

Pursuant to Section 403.519, Florida Statutes, the Florida Public Service Commission issued Order No. PSC-04-0609-FOF-EI, dated June 18, 2004, affirmatively determining the need for Turkey Point Unit 5 as proposed by FPL. (FPL Ex 4).

Pursuant to Section 403.507(3), Florida Statutes, the certification hearing shall also serve as the hearing on any petition for an administrative hearing concerning the preliminary determination and draft permit issued by DEP on the separately-issued federal prevention of significant deterioration ("PSD") permit for the Project. No such petition has been timely filed.

The various reviewing agencies have submitted reports on the Project and proposed conditions of certification. (T-II 73- 74; DEP Ex 2). On July 15, 2004, DEP issued its Staff Analysis Report on the Project, incorporating the reports of the reviewing agencies and recommending certification of Turkey Point Unit 5, subject to a comprehensive set of Conditions of Certification. (DEP Ex 2; PS p 4). At the hearing on this matter, DEP submitted a revised and corrected Staff Analysis Report that, among other things, incorporated an updated comprehensive set of Conditions of Certification. (DEP Ex 2).

Those Conditions of Certification were also submitted by all parties participating in the certification hearing as a Joint Exhibit. (Jt Ex 1).

On July 23, 2004, notice of the certification hearing scheduled for September 7, 2004, was published in the Miami

Herald and the South Dade News Leader, both local newspapers in the vicinity of the Project. The Miami Herald is the newspaper

of general circulation with the largest daily circulation in Miami-Dade County and has its principal office in that County. Notice of this certification hearing was also published by DEP on its website on July 23, 2004. (FPL Comp Ex 5; PS p 4).

FPL filed an Emergency Motion for Continuance and an Emergency Motion for Alteration of Time Limits on September 2 and 3, 2004, respectively, due to the uncertainties associated with the landfall of Hurricane Frances. A hearing on the Motion for Continuance was held on September 3, 2004, and an Order granting the continuance and re-scheduling the hearing to September 13, 2004, was entered on September 8, 2004. Notice of the continuance was published by FPL in the Miami Herald on September 4, 2004, and by DEP on its website on September 10, 2004. (FPL Comp Ex 9). In addition, FPL employees were stationed at the original hearing time and location to notify anyone who appeared of the continuance. No persons appeared to attend the hearing scheduled for this date. (FPL Comp Ex 9.D & 10.C).

On September 10, 2004, FPL filed a Second Emergency Motion for Continuance and Alteration of Time Limit due to the uncertainties associated with the landfall of Hurricane Ivan.

An Order granting the continuance and re-scheduling the hearing to commence September 20, 2004, was issued on September 13, 2004. Notice of the continuance was published by DEP on its

website on September 17, 2004. In addition, an FPL employee was stationed at the first re-scheduled hearing time and location to notify anyone who appeared of the continuance. No persons appeared to attend the hearing scheduled for this date. (FPL Comp Ex 10).

After proper notice by the Applicant and by DEP, the certification hearing was held on September 20-21, 2004, in Miami, Florida. (T-I & T-II; FPL Ex 5, 9 & 10). The hearing was conducted for the purpose of receiving evidence as to whether certification authorizing construction and operation of the Project should be approved, approved with conditions, or denied. (PS p 1).

On September 1, 2004, FPL, DEP, Florida Fish and Wildlife Conservation Commission, Florida Department of Transportation, Florida Department of Community Affairs, SFWMD and M-DC filed a Prehearing Stipulation addressing certification issues. (FPL Ex 3). The Stipulation indicated that all parties agreed that the Project should be certified, subject to appropriate conditions of certification. (T-I 3-4; FPL Ex 3; Jt Ex 1). All parties other than M-DC were in agreement on the appropriate conditions of certification. (FPL Ex 3). M-DC’s position was that certain additions and revisions to the otherwise agreed-upon conditions were warranted. (T-I 17).

At the certification hearing, the parties filed as a Joint Exhibit revised and updated Conditions of Certification. (Jt Ex 1). All parties agreed that certification should be made subject to those conditions set forth in Joint Exhibit 1. (T-I 3-4). M-DC announced at the commencement of the hearing that the single remaining issue it intended to pursue was that the conditions of certification be altered to include a requirement that FPL perform additional modeling to further assess the impact of FPL's proposed withdrawals from the Upper Floridan aquifer on existing legal users, in particular M-DC. (T-I 17-

18).

FPL presented the testimony of 10 witnesses and the

following exhibits were received into evidence without objection: FPL Exhibits 1 through 10,2 JG-1 through 11, HF-1 through 10, KFK-3 through 5, and PA-1 through 6. The Applicant’s expert witnesses and the subject of their testimony included:

Peter Andersen, Groundwater Hydrology and Groundwater Modeling;

Karl Bullock, Terrestrial and Wetlands Ecology; Harold Frediani, P.E., Surface Water Hydrology, Civil

Engineering, and Power Plant Systems Operation;

John Gnecco, P.E., Power Plant Design, Engineering and Construction;

Kennard Kosky, P.E., Power Plant Siting, Licensing, Public Interest Determinations, and Regulatory Compliance, Air Pollution Control Technology Design and Engineering, Best Available Control Technology Design and Engineering, Air Quality Impact Analysis including impacts to Visibility and Noise Evaluation and Impact Analysis;

Bill L. Maus, Wetland Ecology, Mitigation and Functional Assessment Methodology;

Heriberto Nunez, Power Plant Operations;

Winifred Perkins, Management of Wildlife Species Programs;

and

Richard Zwolak, Land Use Planning, Socioeconomic Impact

Analysis and Traffic Impact Analysis.

FPL also presented the testimony of David N. Hicks, a fact witness.

DEP presented the testimony of Steven L. Palmer, an expert in the field of Electrical Power Plant Site Certification in Florida, including the Site Certification Procedures and Substantive Requirements. In addition, DEP Exhibits 1 and 2 were admitted in evidence.

SFWMD presented the testimony of Scott Burns, an expert in the field of Hydrogeology and Consumptive Use Permitting.

M-DC presented the testimony of Virginia Walsh, P.G., an expert in the field of Groundwater Modeling and Hydrology. In addition, MD-C Exhibit 1 was admitted in evidence.

Opportunity was afforded for members of the general public to appear. Six members offered oral comments:

Norman Hatch, Director of Engineering for the Florida Keys Aqueduct Authority (“FKAA”), offered sworn testimony about the FKAA’s intent to install an aquifer storage and recovery (“ASR”) facility within the Upper Floridan aquifer in South Dade County and the FKAA’s desire for conditions on FPL’s Project that will safeguard the FKAA ASR facility. (T-I 129-33). In addition, FKAA may in the future seek approval to use water from the Upper Floridan aquifer, with desalinization, to augment its water supplies. (T-I 131-132).

Mark Oncavage, Conservation Chair of the Sierra Club’s Miami Group, provided unsworn public comment expressing concern for the environment. (T-I 133-35).

Otis Wallace, Mayor of Florida City, provided unsworn public comments recognizing FPL’s historical demonstrations of its ability to conduct business in an environmentally sensitive way and the need for the Unit 5 Project, and expressing the City Commission’s support for certification of the Project. (T-I 135- 36).

Denise Heacock, of the Perrine-Cutler Ridge Council, provided unsworn public comments about the area’s need for power to support growth and maintain electric system reliability, and expressed the Council’s support for certification of the Project. (T-I 136-38).

Donna Masson, President of the Chambers South, a Chamber of Commerce that serves south Miami-Dade County, provided unsworn public comments recognizing the need for the Project and expressing support for certification of the Project. (T-I 138- 39).

Mary Finlan, Executive Director of the Greater Homestead Florida City Chamber of Commerce, provided unsworn public comments in support of certification for FPL’s Project. (T-I 140-41).

In addition, written documents containing unsworn public comments were submitted by Sierra Club, Biscayne National Park, City of Homestead, Dade County Farm Bureau, Homestead Hospital and Miami-Dade College. These submissions were marked Public Comment Exhibits and placed in the record.

Upon concluding the taking of evidence, FPL elected to order the. two-volume Transcript of the proceedings which was filed with the Division of Administrative Hearings on September 30, 2004. A Joint Proposed Recommended Order by FPL, DEP, and SFWMD was timely submitted and has been considered in rendition

of this Recommended Order. M-DC joined in portions of the Joint Proposed Recommended Order and also filed a separate Proposed Recommended Order in which it proposed that certain portions of the Joint Proposed Recommended Order be replaced or otherwise amended; M-DC also suggested that a proposed condition of certification be modified to require FPL to perform density- dependent groundwater modeling, using values observed at multiple sites in the aquifer system, following the completion of FPL's Aquifer Performance Test (APT), in order to determine what, if any, impact FPL will have on existing M-DC ASR wells.

FINDINGS OF FACT

Background

1. FPL, the largest electric utility in Florida, serves more than 4.17 million customers, and a population of 8 million people, in 35 counties along the eastern seaboard and the southern and southwestern portions of Florida. (FPL Ex 1, Vol 1, p 1-2; FPL Comp Ex 7, Hicks p 2 & Ex DH-1). FPL owns 82 generating units in the state of Florida, representing approximately 18,144 megawatts (“MW”) of electrical generating capacity, and has partial ownership of two units located in Jacksonville and one unit in Georgia. (FPL Ex 1, Vol 1, p 1-2; FPL Comp Ex 7, Hicks p 3).

2. FPL last added new generation in Miami-Dade County in 1973, at which time the Miami-Dade load was 2,435 MW. FPL projects the Miami-Dade load will grow to 5,445 MW by 2007, an

   increase of 124% over the peak load in 1973. (FPL Comp Ex 7, Hicks p 6). Based on a detailed reliability assessment, FPL projects that it will need 1,066 MW of additional capacity to meet the needs of its customers and provide adequate reserve margins in 2007. (PSC Need Order, FPL Ex 4).

3. On June 18, 2004, the Florida Public Service Commission (“PSC”) issued an Order Granting Determination of Need for the FPL Turkey Point Unit 5 Project. (FPL Ex 4; PS p 29). In its Order issued pursuant to Section 403.519, Florida Statutes, the PSC determined there is a need for the Project, taking into account the need for electric system reliability and integrity and for adequate electricity at a reasonable cost. (Id.) The PSC further determined that the Project is the best, most cost-effective alternative available. (Id.)

4. Another important benefit of the Project to the reliability of Southeast Florida’s electric service is the Project’s location in South Miami-Dade County. This location will reduce the growing imbalance between load and generation capacity in Southeast Florida and the associated increasing reliance on transmission import capability to serve the Southeast Florida area load. The location of new generation in Southeast Florida also avoids higher costs related to transmission losses and increased uneconomic operation of Southeast Florida gas combustion turbines

   caused by the growing imbalance between load and generation capacity. (FPL Comp Ex 7, Hicks p 4; FPL Ex 1, Vol 1, p 1-8).

5. The Project was selected as FPL’s Next Planned Generating Unit (NPGU) to meet FPL’s 2007 need because it was determined to be the only practicable alternative from among all the self-build options identified and evaluated by FPL. (FPL Comp Ex 7, Hicks p 5).

6. On August 18, 2004, the Siting Board rendered a Land Use Order, in which it determined that the 90-acre Project site (“the Project area”), at which the production of electricity will be fueled by natural gas and/or ultra low-sulfur distillate oil, is consistent and in compliance with the existing land use plans and zoning ordinances of M-DC. (FPL Ex 6).

   The Existing Turkey Point Power Plant Site

   
   

7. The 90-acre Project area is wholly within FPL’s existing 11,000-acre Turkey Point Power Plant site, which is the location of four existing generating units with a total capacity of approximately 2,200 MW. (FPL Ex 1, Vol 1, pp 1-3, 2-1 & 3-4; PS p 27; FPL Ex JG-3 & JG-8). Existing Turkey Point Units 1 and 2 are both nominal 400-MW capacity residual oil and/or natural gas-fired steam units, which began operation in 1967 and 1968, respectively. (FPL Ex 1, Vol 1, pp 1-3, 2-1 & 3-1; T 29). Existing Turkey Point Units 3 and 4 are both nominal 700-MW capacity nuclear units, which began operation in 1972 and 1973, respectively. (Id.)

8. The southern portion of the Turkey Point Power Plant site is dominated by a closed-loop 5,900-acre cooling canal system that provides cooling water for Turkey Point Units 1-4. (PS p 27; T-I 33; FPL Ex 1, Vol 1, p 1-3). DEP has classified the Biscayne aquifer in the Project area east of the L-31-E canal as G-III, which is non-potable with no reasonable potential to be used as a source of drinking water. (T-I 89. See also FPL Ex 1, Vol 1, p 5-1). The water levels in the cooling canals and the westerly adjacent interceptor ditch are maintained at levels that result in hydraulic gradients with groundwater flow towards the cooling canal system, thus preventing cooling canal water from moving into the L-31E Canal or potable groundwater to the west or into Biscayne Bay to the east. (T-I 81-83; FPL Ex HF-9B; FPL Ex 1, Vol 1, pp 2-20 & 2-21). The cooling canals also serve as feeding and nesting habitat for the federally-listed endangered American Crocodile. (FPL Comp Ex 7, Bullock p 10, Perkins p 5 & Ex. WP-3. See also FPL Ex 1, Vol 1, p 4-19).

9. The existing facilities on the Turkey Point Power Plant site also include: two 268,000-barrel residual fuel oil tanks; a system substation with associated electrical transmission lines; Unit 1 and 2 support facilities, including an administration and maintenance building, and warehouse; Unit 3 and 4 support facilities, including an administration building, security entrance building, simulator facility, maintenance facility and

   warehouse; an entrance road; a gas pipeline that supplies the site with natural gas; and a fuel barge unloading facility where residual fuel oil is delivered. (T-I 28-29; FPL Ex 1, Vol 1, p 2- 1; FPL Comp Ex 7, Hicks p 8).

10. The Turkey Point Power Plant site is surrounded by undeveloped land to the south and west, most of which is part of the FPL-owned and operated 13,000-acre Everglades Mitigation Bank, and by recreational facilities to the north and east, including Homestead Bayfront Park, Biscayne National Park and Biscayne Bay. (T-I 26; FPL Ex. JG-3; FPL Ex 1, Vol 1, p 2-2; FPL Comp Ex 7, Zwolak, p 6). FPL’s property ownership in and around the Turkey Point Plant site totals approximately 24,000 acres. (T-I 25).

11. The Turkey Point Power Plant site is underlain by the Floridan aquifer system, a regionally-extensive aquifer system that underlies much of Florida and several southeastern states.

    (T-II 10-11; FPL Ex HF-5A). The Floridan aquifer system transmits fairly large quantities of water. (T-II 10-11).

12. The Upper Floridan aquifer lies beneath the Biscayne aquifer, a surficial aquifer, and is separated from the Biscayne aquifer by the Hawthorn formation, which serves as a semi- confining layer that restricts flow between the Upper Floridan aquifer and the overlying Biscayne aquifer. (T-II 11; FPL EX HF- 5A). In the Turkey Point Power Plant site area, the Upper Floridan is about 850 feet thick, composed of limestone, with the

    top of the aquifer being about 1000 feet below land surface. Beneath the Upper Floridan aquifer is another semi-confining bed that separates it from the Lower Floridan aquifer, which contains poor-quality water. (Id.) The Upper Floridan aquifer in South Florida contains brackish water and, therefore is considered non- potable.3 (T-II 12; FPL Ex HF-5B).

13. The Upper Floridan receives recharge from precipitation in the upland area in Central and Northern Florida, and the water moves toward exit points further south. Water flows in the Upper Floridan aquifer, therefore, in a southeasterly direction. (T-II 12; FPL Ex HF-5A). As the aquifer dips toward the southeast, the water in the aquifer is under pressure, such that the potentiometric surface in the Turkey Point area is about 40 feet above land surface. (T-II 13). This means that if water is allowed to rise in a well, it would rise above land surface about

    40 feet. (Id.)

    
    

    The Proposed Unit 5 Project Area

    
    

14. The proposed 90-acre Turkey Point Unit 5 Project area (“Project area”) is located to the north of the existing Units 1-4 within the Turkey Point Power Plant site. (PS p 27; T-I 30; FPL Ex JG-3 & JG-7). The choice of this location was based on an alternatives analysis that included consideration of three other potential locations within the Turkey Point site. (T-I 51; FPL Ex JG-10). The other three potential locations were rejected as

    being more costly, being too close to the federally-mandated nuclear security zone around Units 3 and 4, and having wetland impacts, among other things. (Id.)

15. The vegetative and ecological habitats within the Project area consist of dwarf/shrub mangroves, hypersaline dwarf mangrove marsh, a man-made open-water lagoon, tidal creeks, and the upland “Red Barn” peninsula. (FPL Ex 1, Vol 1, pp 2-28 thru 2-29; FPL Comp Ex 7, Bullock p 7).

16. The dwarf red mangroves in the Project area are less than 3 feet in height, likely reduced in size due to decreased nutrient availability and/or increased salinity resulting from the lack of freshwater sheet flow. The shrub/scrub red mangroves are up to 5 feet in height. (FPL Ex 1, Vol 1, p 2-28; FPL Comp Ex 7, Bullock p 8).

17. The hypersaline dwarf mangroves, which occur west of the existing transmission line patrol road, are more hydrologically isolated from Biscayne Bay and have water depth ranging from 1 to

    8 inches. (FPL Comp Ex 7, Bullock p 8).

    
    

18. The man-made open-water lagoon was dredged soon after the construction of the Turkey Point facilities in the late 1960s. Its depth ranges from 1 to approximately 5 feet. About 67 percent of the 1.74-acre lagoon contains sparse to moderately dense seagrass. The vegetation along the banks of the lagoon is dominated by red mangroves, some individuals up to 20 feet in

    height, with the exotic species Australian pine located on the northern edge upon the spoil piles remaining from excavation of the lagoon. (FPL Comp Ex 7, Bullock pp 8-9).

19. There are two narrow, shallow tidal creeks within the Project area that connect to the man-made lagoon. The banks of these creeks support mangroves up to 20 feet in height. (FPL Comp Ex 7, Bullock p 9).

20. The Red Barn peninsula is located on the eastern edge of the Project area. This area was used for recreational purposes prior to September 11, 2001. (Id.)

21. The Project area provides limited high-quality wildlife habitat. The existing Turkey Point facility, its access road and transmission line patrol road diminish the value of the habitat with regard to wildlife usage. The roadway and patrol road, which have been in place for over 40 years, have altered natural hydrology and limited the tidal flushing of mangroves on the western portion of the Project area. This lack of flushing as a result of reduced hydrologic connectivity has resulted in stressful hypersaline conditions for this area of proposed impact. The eastern portion of the Project area supports mangrove growth that is not conducive to utilization by birds or animals because nearby areas provide easier access for wildlife. (FPL Comp Ex 7, Maus p 17).

22. The vegetation and ecological habitats surrounding the Project area include:

    1. Dwarf mangrove wetlands and tidal creeks, similar to those within the Project area, to the north;

       
       

    2. Biscayne Bay, an Outstanding Florida Water and Aquatic Preserve that contains large expanses of seagrasses and supports a variety of marine life, to the east;

       
       

    3. Cleared land associated with the existing electric generating facilities to the south;

       
       

    4. An area of freshwater sawgrass marsh west of the Turkey Point Power Plant access road;

       
       

    5. A series of 5 test cooling canals dominated by the exotic species Australian pine to the southwest of the Project area; and

       
       

    6. Further to the south and west of the Project area is the 5,900-acre closed cooling canal system that provides feeding and nesting habitat for the federally-endangered American Crocodile.

       
       

       (FPL Ex 1, Vol 1, Figure 2.2-4; FPL Ex 2, p FDEP-19; FPL Comp Ex

       
       

       7, Bullock pp 9-10 and Zwolak p 6).

       
       

23. Land uses in the vicinity of the Project area include:

    
    

    1. Transmission infrastructure and undeveloped land to the west and north;

       
       

    2. Power plant generation and ancillary uses to the east and south;

       
       

    3. Biscayne Bay, Biscayne National Park and Biscayne Aquatic Preserve offshore to the east;

    4. Card Sound, which is included within the Biscayne Bay Aquatic Preserve, to the southeast;

       
       

    5. Biscayne National Park headquarters about

       1.8 miles to the north;

       
       

    6. Mangrove County Preserve north of the National Park headquarters;

       
       

    7. Homestead Bayfront Park about 1.3 miles to the north;

       
       

    8. The Everglades Mitigation Bank to the south and west; and

       
       

    9. Model Lands Basin, a Save Our Rivers acquisition, west of the FPL-owned lands.

       
       

       (FPL Ex 1, Vol 1, p 2-2 & Figure 2.1-1; FPL Comp Ex 7, Zwolak pp

       
       

       6-7; T-I 87).

       
       

24. The Project area is outside the boundaries of the Biscayne National Park, an Outstanding Florida Water, as FPL owns in fee simple the Turkey Point Power Plant site out to a depth of three feet mean high water in Biscayne Bay. (T-I 25-26 & 36; FPL Comp Ex 7, Bullock p 10).

25. The nearest residence is located 3.4 miles northwest of the Project area, and there is no residential neighborhood within five miles of the Project area. (Id.; FPL Ex 1, Vol 1, p 2-4). Project Design

26. The Project involves the creation of a new “4-on-1” combined cycle unit, that is, for combustion turbines/heat recovery steam generator units that supply steam to a single steam

    turbine generator. (PS pp 27-28; T-I 32; FPL Ex 1, Vol 1, p 1-3). A combustion turbine is similar to a large jet engine. It combines air and fuel in the combustion turbine, where the fuel is ignited and the air expanded to rotate a shaft that has an electric generator attached to it. Heat from the combustion turbine, in addition to supplemental heat from duct burners, is exhausted into a heat recovery steam generator which produces steam to rotate a conventional steam turbine shaft that is attached to a separate electric generator. The recovery of waste heat from the combustion turbine for use in the steam turbine results in the combined-cycle design having efficiency gains over conventional combustion turbines. (T-I 31; FPL Ex JG-5; FPL Ex 1, Vol 1, p 1-3).

27. The new Unit 5 will be fueled primarily by natural gas delivered by an existing pipeline, with ultra low-sulfur light oil, delivered by truck, as a backup fuel for up to 500 hours per year per combustion turbine. (FPL Ex 1, Vol 1, pp 1-3 & 3-5; PS pp 27-28; T-I 39).

28. A new cooling tower will be used in the Unit 5 heat dissipation system. A cooling tower is a device that brings water into contact with air for the purpose of cooling the water. (T-I 40, 83). Use of the cooling tower will increase the efficiency of the steam turbine-generator by allowing the steam to condense at a lower pressure and temperature than exhausting the

    steam to the atmosphere, and will facilitate recycling of the high-quality water needed in the boiler and heat recovery steam generators. (T-I 66-67).

29. The source of makeup water for the new cooling tower will be brackish groundwater from the Upper Floridan aquifer, drawn from wells up to 1400 feet below ground surface. (PS p 28; T-I 40; FPL Ex 1, Vol 1, p 3-11). Unit 5 will also be able to accept reclaimed water when that source becomes available at the site in an acceptable quality and quantity for the new power plant’s cooling tower. (Id.)

30. Because the cooling water is recycled in the cooling tower, going through multiple cycles of evaporation and condensation, the buildup of dissolved minerals in this heat dissipation system must be controlled to avoid chemical scaling and diminished system performance. Dissolved mineral buildup is controlled by releasing a portion of the cooling tower’s circulating water and replacing it with new makeup water. This process is called “blowdown.” (T-I 84).

31. FPL initially estimated that 17.89 million gallons per day (“MGD”) (maximum 90-day average) of Upper Floridan aquifer water would be needed for cooling tower makeup. (T-I 40. See also FPL Ex 1, App 10-9 p 1). Subsequently, FPL determined that it could reduce the maximum 90-day average withdrawal rate from the Upper Floridan aquifer to 14.06 MGD. (T-I 40).

32. FPL recognizes that use of reclaimed water is a high priority for DEP, SFWMD and M-DC. (T-I 44). Consequently, FPL began evaluating reclaimed water as an alternative water source for the Project from the inception of the Project. (T-I 43; FPL Ex 1, Vol 3, App 10.10). FPL perceives use of reclaimed water as a win-win situation, provided that the reclaimed water can come to the facility at a quality and a quantity that is acceptable for the use in the power plant. (T-I 44).

    Currently, the nearest source of reclaimed water, the South District Wastewater Treatment Plant, is 7.5 miles away from the Turkey Point Power Plant site, which is beyond the five-mile distance within which DEP generally requires feasibility studies. (T-I 41; FPL Ex 1, Vol 3, App 10.10). The water quality of that source is such that it could require additional treatment before it could be used in the Unit 5 cooling tower. (Id.)

33. If water from the Upper Floridan aquifer is used for cooling tower makeup, cooling tower blowdown would be to the existing 5,900-acre cooling canal system, a permitted wastewater treatment facility at the Turkey Point Power Plant Site, with no adverse impact to the chemical composition of the cooling canal system. If reclaimed water is used for cooling tower makeup, blowdown will be returned to the South District Wastewater Treatment Plant. Due to some of the constituents in reclaimed

    water, both organic and inorganic, FPL would not discharge blowdown from this source into its cooling canal system which serves as habitat for the federally-endangered American crocodile. (PS p 28; T-I 68, 84-85). Prior to returning the reclaimed water blowdown stream to the South Dade Wastewater Treatment Plant, additional pretreatment may be required. (T-I

    42).

    
    

34. Other industrial wastewaters will be treated in an

    
    

    onsite facility and recycled to the cooling pond. Domestic wastewater will be treated in an existing on-site permitted facility. Process water, service water and potable water for Turkey Point Unit 5 will be supplied from Miami-Dade County. (PS pp 28-29; T-I 69; FPL Ex 1, Vol 1, p 3-11).

35. The Unit 5 discharges of industrial wastewater to surface waters and groundwater will comply with applicable water quality standards. (PS p 30; T-I 17-18. See also FPL Ex 1, Vol 1, p 3-3).

36. Of the 90-acre Project area, approximately 55 acres will be used for construction of Unit 5. The original site plan for Unit 5 would have resulted in 40 acres of wetland impact. (T-I 37-38; FPL Ex JG-9). Subsequently, FPL had numerous discussions with local, state and federal agencies and identified opportunities to reconfigure the site plan to further minimize wetland impacts. (T-I 37; FPL Comp 7, Bullock p 13-14). The site

    plan for which certification is sought in this proceeding involves impact to 24.35 acres, only 19.01 of which are permanently impacted. (FPL Comp Ex 7, Bullock pp.13-14; FPL Ex JG-7 and JG- 9). This represents a reduction of permanent impacts to wetlands and potential listed species habitat of 52.5 percent compared to the original Project conceptual design.

37. Unit 5 will use numerous existing Turkey Point Power Plant facilities, including: the Units 1 and 2 control building, warehouse, and administration and maintenance building; the existing potable water supply pipeline and natural gas pipeline; the existing closed-loop cooling canal system for blowdown from the new cooling tower; the existing electrical substation, which will be expanded; and the transmission system. (T-I 38-39, 84; FPL Ex 1, Vol 1, p 3-1; FPL Ex JG-7).

38. Environmental controls and safeguards are an important part of FPL’s design philosophy. (T-I 45). Unit 5 is designed to meet all applicable regulatory requirements and to use best available methods to minimize impacts of the Project (T-I 45),

including:

1. Use of an existing power plant site rather than a “green field” site, allowing utilization of numerous existing facilities (Id.);

   
   

2. Use of combustion turbines in a combined- cycle configuration to maximize efficiency, making Unit 5 one of the most efficient power

   plants in Florida (Id.; FPL Ex 1, Vol 1, p 1- 3; T-I 45);

   
   

3. Use of design features to minimize air emissions, including (1) the combined cycle technology (2) use of clean fuels that minimize emissions of sulfur dioxide, particulate matter and other fuel-bound contaminants, (3) use of combustion controls such as dry low-NOx combustors on the combustion turbines and low-NOx duct burner for the heat recovery steam generator when firing natural gas that minimize the formation of nitrogen oxides (NOx), and (4) use of a Selective Catalytic Reduction system on each heat recovery steam generator to further reduce NOx emissions (PS p 28; T-I 45; FPL Ex 1, Vol 1, p 3-9; FPL Comp Ex 7, Kosky p 7);

   
   

4. Refinement of the Project’s site plan to minimize wetland impacts (T-I 46; FPL Comp Ex 7, Bullock pp 13-14);

   
   

5. Use of construction safeguards to protect adjacent wetlands during construction of Unit 5, including the use of impervious barriers and turbidity screens around the initial dredging and filling of impacted wetlands, the installation of treatment facilities for stormwater prior to discharge into adjacent wetlands, and the implementation of a monitoring program for the surrounding wetlands during the construction period (T-I 46-47); and

   
   

6. Implementation of a mitigation plan that includes wetlands and wildlife habitat creation, enhancement and/or preservation, and provides a margin of benefit to the environment (T-I 46; FPL Comp Ex 7, Maus p 20, FPL Ex BM-7).

1. The Project’s design and construction is consistent with the Conditions of Certification contained in Joint Exhibit 1

   (also Appendix I to DEP Exhibit 2, which is the revised and corrected DEP Staff Analysis Report). Turkey Point Unit 5 will comply with the applicable nonprocedural requirements of all agencies. (T-I 55) In addition, the Project can be operated in compliance with those conditions. (T-I 103)

   Construction of Unit 5 Facilities

   
   

2. Construction of Unit 5 is scheduled to commence in March 2005, with commercial operation needed for June 2007. (T-I 44; FPL Ex 4, p 3).

3. No explosives for blasting will be used during construction of the Project.

4. Fugitive dust generation from traffic and/or excavations will be minimized through paving, the use of water sprinkling, or other dust suppressant techniques. (Id.). Pockets of material unsuitable for buildings or heavy equipment foundations may be found at the site during site clearing operations. Removal of any unsuitable material and the unavoidable removal of some adjacent material may be required. Unsuitable material (i.e., muck) will be stockpiled onsite for future use in the Everglades Mitigation Bank to enhance the wetlands in accordance with state and federal permits. The removed material will be replaced, as necessary, with structural fill obtained from an onsite construction source, such as limerock stockpiled along the existing cooling canal berms

   when that system was constructed. (FPL Ex 1, Vol 1, pp 3-18 & 4- 2; FPL Ex 2, p FDEP 7).

5. Temporary dewatering, when required, for initial site preparation will be accomplished by localized pumping in the de- mucked area.

6. FPL has developed for this Project monitoring plans and management programs for listed species, including the American crocodile, Eastern indigo snake, wood stork and wading birds, and the Florida Manatee, which will be implemented prior to the commencement of construction and during construction. In addition, biologists and environmental specialists working for FPL and its contractor will conduct extensive wildlife training for the construction crews to educate them on possible wildlife species they might encounter and the appropriate actions and notifications they will be required to make if any listed species are encountered. (FPL Comp Ex 7, Perkins pp 10-11 and FPL Ex WP-4). Similar wildlife management programs, designed and implemented by FPL in the past, have been successful. (See FPL Comp Ex 7, Perkins p 8).

7. It is anticipated that onsite construction activities for the Project will be completed by June 2007. Demobilization, site restoration, and clean-up will extend to November 2007. (FPL Ex 1, Vol 1, p 4-4).

   Stormwater Management

   
   

8. The areas that will be dredged and then filled during construction of Unit 5 will be isolated from Biscayne Bay and adjacent wetlands by an impermeable barrier. The areas of the site where no filling will occur will be protected by silt fence or hay bales. (T-I 90, 92).

9. There will be four stormwater detention ponds built to handle and treat runoff during the construction phase. Three of those ponds will be constructed prior to any other construction on the site, and the fourth will be partially constructed and then completed as the power block area is filled. Following treatment, water from these ponds will flow into either the cooling canal system or a small tidal creek. (T-I 90-91; FPL Ex HF-3).

10. During operation of Unit 5, runoff from potentially oil- contaminated areas will first be collected in a sump, pumped through oil-water separators, before ultimate discharge to the cooling canal system, which is an industrial wastewater facility. (T-I 52-53, 93; FPL Ex HF-4; FPL Ex 1, p 3-18). Runoff from other areas will be collected in three stormwater ponds and discharged either to the cooling canal system or a small tidal creek after treatment by sedimentation. The water discharged to the creek will be released to the same tidal stream and at approximately the

    same flow rate as water currently drains from the area. (T-I 93- 95, 99; FPL Ex HF-4).

11. The proposed stormwater system for the Unit 5 Project, both during the construction and operational phases, including any discharges to surface water and groundwater through percolation, will comply with all applicable non-procedural standards of DEP, SFWMD and M-DC. (T-I 96-98; FPL Ex HF-10).

    Water Uses and Sources

    
    

12. The three principal water uses for Turkey Point Unit 5

    
    

    are:

    
    

    1. Makeup water to replace net evaporation and blowdown from the cooling tower heat dissipation system;

       
       

    2. Demineralized water to be used in the inlet air foggers, for combustion turbine power augmentation, for NOx control in the combustion turbine during oil firing, and for steam cycle makeup. Collectively, this is known as "process water"; and

       
       

    3. General “service” water for washdowns, fire protection, pump seals, etc.

       
       

       (T-I 65-66; FPL Ex 1, Vol 1, p 3-11).

       
       

13. FPL will install four wells, three productions wells and one spare, to withdraw brackish, non-potable water from the upper 300 feet of the Upper Floridan aquifer for cooling water. (T-I 73-74; FPL Ex 1, Vol 1, p 3-11). Even if reclaimed water becomes available in an acceptable quantity and quality at the Turkey Point site and is used for cooling tower makeup, FPL may

    need these Upper Floridan aquifer wells to provide a back-up supply in case of some upset in the reclaimed water system. Also, it is not anticipated that reclaimed water can be available in time for the 2007 Unit 5 startup. (T-I 85-86).

14. FPL will use M-DC potable water for service water and will use it to make demineralized water for use as process water. (T-I 75).

15. The SFWMD criteria for approval of a consumptive use of water require that FPL provide reasonable assurances that the proposed use of water:

    1. Is a reasonable-beneficial use as defined in Section 373.019, Florida Statutes

       
       

    2. Will not interfere with any presently existing legal use of water; and

       
       

    3. Is consistent with the public interest. (T-II 95; § 373.223(1), Fla. Stat.).

16. “Reasonable assurances” is a term used to address the uncertainties that abound in natural systems. (T-II 97). It differs from an absolute guarantee insofar as the SFWMD water use permitting program deals with a variety of uncertainties that change daily, or even hourly, in the south Florida environment. (Id.) Conditions may be placed on a permit to account for certain things that could occur despite reasonable assurances having been provided, that will allow the conditions of the permit to be met

    through modifications of an operation if it, in fact, becomes necessary. (T-II 98).

17. It would be impossible for SFWMD to administer its consumptive use permitting program if applicants had to provide guarantees. Instead, the system is flexible, as is necessary to meet the demands of all the varied interests within SFWMD’s 16- county area and the over 7 million people it serves. (T-II 98).

18. To assess whether a consumptive use of water is reasonable and beneficial, one must evaluate the volume and source of water. (T-II 100). There is no dispute as to the reasonableness of the volume of water FPL requires for operation of the Project. (See FPL Ex 3). For FPL’s proposed water use, the Floridan aquifer is the most appropriate source since it is a reliable source of consistent reasonable quality water, is economically feasible, and is not subject to water shortages.

    (T-I 40; T-II 102-103). It is an environmentally compatible source of water as well. (T-II 103).

19. Both the SFWMD Governing Board and the State of Florida have found the generation of power to be consistent with the public interest. (T-II 121). In this case, there is no question whether this Project serves the public and the public interest. (Id.; FPL Ex 3).

    Potential for Interference with Existing Legal Users of the Upper Floridan Aquifer

    
    

20. The sole issue contested in this proceeding, only by M-DC, is whether FPL should be required to perform additional modeling to further demonstrate that its proposed water withdrawals will not interfere with existing legal users,

    particularly M-DC. (See T-I 17). Specifically, M-DC is concerned about interference with the operation of its 3 aquifer storage and recovery (“ASR”) wells at its West Wellfield, located 20 miles from FPL’s proposed well, and two wells at its Southwest Wellfield, located 18 miles from FPL’s proposed well, that are not yet operating. (T-II 40).

21. The definition of “interference with an existing legal user” under SFWMD rules, which is the threshold upon which permitting determinations are made, requires either:

    1. The inability to withdraw water consistent with the provisions of the permit or the exempt use, such as when remedial structural or operational actions that are not materially authorized by the existing permit must be taken to address the interference;

       
       

    2. A change in the quality of water pursuant to primary State Drinking Water Standards to the extent that the water can no longer be used for its authorized purpose, or when such change is imminent; or

       
       

    3. The inability of an existing legal user to meet its permitted demands without exceeding the permitted allocation.

       (T-II 106-109. See also SFWMD Basis of Review for Water Use Permit Applications, § 3.7.B.(1)-(3)).

22. A measurable impact does not necessarily constitute “interference with an existing legal user” under SFWMD rules. (T-II 112-113). Existing legal users, including ASR operators, cannot expect zero impacts to their water. (T-II 111-112). Rather, they must share the water resources with other users. (T-II 112). It is widely accepted, for ASR facilities and all other water users, that impacts will occur among users. (Id.)

    For a proposed use to be non-permittable, it must cross one of the thresholds established by SFWMD rules defining interference with existing legal users for which the resulting interference could not be mitigated. (Id. See also SFWMD Basis of Review for Water Use Permit Applications, § 3.7(C)).

23. The parties, including M-DC, agreed in the Prehearing Stipulation that SFWMD has exclusive authority over consumptive use regulation within its jurisdiction. (See PS p 27; T-II 163). The SFWMD’s position is that FPL has provided reasonable assurances that FPL’s proposed withdrawals will meet the applicable consumptive use-permitting criteria, including the requirement that the proposed use will not interfere with any existing legal user. (DEP Ex 2, SFWMD Report; T-II 99-110). SFWMD's position is based on an evaluation performed by FPL. FPL's evaluation included groundwater modeling of the impacts from

    its proposed withdrawals from the Upper Floridan aquifer. (T-II 18; FPL Ex PA-3). For several reasons, FPL used a groundwater model called MODFLOW.

24. MODFLOW is a mathematical model used to analyze how an aquifer system will respond to a new stress and is required by SFWMD for evaluating groundwater withdrawals. (T-II 17-18). A MODFLOW model is constructed using values for three physical properties of water that affect groundwater flow, together with information from boring logs and a literature search. (T-II 17).

25. The three physical properties used by MODFLOW are are transmissivity, storage coefficient, and leakance. (T-II 14). Transmissivity is basically a measure of how readily an aquifer can transmit water from one point to the next. (Id.) Storage coefficient is a measure of how much water is released from the aquifer matrix when you lower the potentiometric head through pumping. (T-II 15; FPL Ex PA-2). Leakance is a measure of how much water can enter or exit an aquifer through the confining layers that sandwich the aquifer layer. (T-II 15-16; FPL Ex PA- 2). Each of these properties can be determined through an aquifer performance test ("APT"). (T-II 16).

26. SFWMD specifically recognizes the MODFLOW model as an acceptable numeric model in circumstances such as this for modeling and assessing impacts. (FPL Ex 3, p 3; SFWMD Basis of Review for Water Use Permit Applications, § 1.7.5.2.A). While a

    relatively simple and uniform-density model, MODFLOW was used because it is capable of representing the Upper Floridan aquifer’s natural hydrologic system in a mathematical framework, is widely used, well tested, extensively documented, and publicly available. (FPL Ex 3, p 3). Through the evaluation of thousands of cases, SFWMD has found that an inexpensive, analytic, rather simplified model, using very broad generalizations, such as MODFLOW, will conservatively overstate the impact of a proposed drawdown. (T-II 121-123, 125). In order to further ensure conservatism, SFWMD rules also require that sensitivity analyses be conducted to determine how the results would change if the values for the three physical properties used in the model are increased or decreased by orders of magnitude.

27. If the simpler evaluation indicates that the permitting criteria are met, no further analysis is required because the model would overstate the actual extent of impact. (Id.) If the simplified model shows that some of the permitting criteria may not be met, it does not necessarily mean that the modeled effects will occur in real life. (T-II 123-124). In that circumstance, SFWMD’s rules allow for use of a second type of model, called a “calibrated numerical system simulation model,” such as density- dependent type of models. (Id.; SFWMD Basis of Review for Water Use Permit Applications, § 1.7.5.2.B). The more complex models, however, add progressively more uncertainty into the results,

    since one must estimate water quality, flow path, and chemical interactions in addition to the estimate of the physical conditions of the flow field. (T-II 124-125). As a result, in conjunction with the use of the more complex models, it is necessary to have a lot of real good field data, i.e., actual measured data, to be able to say with confidence that the complex model accurately represents how the system really works. (T-II 124-125).

28. The values input to FPL's MODFLOW model for various hydrogeologic properties, including the three physical properties affecting groundwater flow, were obtained from the literature, including a Dames and Moore report on a 90-day APT conducted at the Turkey Point site in 1975. (FPL Ex PA-3, pp 4-5, 13). The APT reported by Dames and Moore is superior to any other tests that have been conducted in the area and is the best information available on the Upper Floridan aquifer’s physical properties in the Turkey Point area. (T-II 47-48). The values reported by Dames and Moore also were very close to those obtained from the pump tests performed at the Florida Keys Aqueduct Authority's (“FKAA's”) proposed ASR project, located about 10 miles west of FPL's Turkey Point Project area, the operation permit for which is being reviewed by DEP. (T-II 138).

29. FPL's MODFLOW groundwater model was run for a 90-day simulation, which is in accordance with the SFWMD Basis of Review.

    (T-II 19-20, 23, 28, 164). The initial results indicated that two existing legal users were barely within the "cone of depression," from FPL's proposed Upper Floridan withdrawals--i.e., the distance beyond which a draw-down impact of less than foot would be expected, which SFWMD considers to be de minimis such that no further evaluation would be required. Those existing legal users were the Ocean Reef golf course irrigation system and the Card Sound golf course irrigation system, both located approximately nine miles to the south-southeast of the FPL Project area. When FPL conducted sensitivity analyses with its model, varying factors in its model by orders of magnitude, the model results showed the FKAA site also just inside the cone of depression.4 (T-II 126, 138-139). Consequently, a condition has been agreed to by all parties that FPL will conduct another APT when it constructs its withdrawal wells to confirm the values for the three properties that affect groundwater flow used in its modeling. (T-II 127; Jt Ex 1, p 38-39). If the results of that additional APT shows the potential exists for interference with existing legal users, SFWMD will require additional analysis and, if necessary, mitigation to prevent such interference. (Jt Ex 1, p 39).

30. According to SFWMD’s rules, no further analysis of impact is required at this time to provide reasonable assurances that FPL’s proposed withdrawals will not interfere with these existing legal users. (T-II 30, 105-06, 128, 131). FPL

    nevertheless performed additional evaluation of its proposed withdrawals from the Upper Floridan aquifer and its potential to interfere with the three closest, existing legal users. (T-II 30).

31. The primary concern of the FKAA ASR facility is similar to the concern of MD-C with regard to its significantly more distant ASR operations. (T-II 34). These ASR facilities will operate cyclically. (T-I 131). That is, water will be injected into the Upper Floridan aquifer during one period of time during the year (generally, during the wet season), and withdrawn for another period of time during the year (the dry season). (T-II 25-26). The intent of an ASR facility is to serve as an underground reservoir of fresh water. (T-I 131; T-II 30-31). When fresh water is injected during periods of excess water, the water flows radially from the well and forms a cylinder, or

    bubble, around the well and is surrounded by poorer quality water. (T-II 31). Later, during periods of drought, the fresh water is withdrawn from the same well used to inject it. (T-II 32). The concern about FPL's proposal is, if the gradient is too great, the bubble of fresh water will move away from the well and be unavailable for future withdrawal. (T-II 34-35).

32. The natural gradient at the FKAA ASR will move the fresh water bubble in a southerly direction at a rate of about 4.5 feet per year. (T-II 35). FPL's MODFLOW evaluation indicates that,

    when FPL’s proposed pumping is combined with the natural gradient, the fresh water bubble will move to the southeast at a rate of 5.1 to 8.1 feet per year. (T-II 35-36). This amount of movement is on the same order as the natural gradient movement that was determined when the facility was designed and is fairly small in comparison to the size of the bubble expected to be created. (T- II 37; FPL Ex PA-6A through 6C).

33. The primary concern at the two golf clubs is drawdown, because excessive drawdown would decrease the productivity of their wells used for golf course irrigation. (T-II 37-38). Each of the two golf clubs withdraws about 7.5 MGD and creates their own drawdown of approximately 40 feet at their wells. (T-II 38). FPL’s withdrawal will create a drawdown of about a foot, which is insignificant compared to the self-imposed drawdowns at those golf course wells. (Id.)

34. Located 18-20 miles away, M-DC’s ASR facilities are well outside the area of influence of the cone of depression associated with FPL’s proposed Turkey Point Unit 5 withdrawal well. (T-II 106). Consequently, the M-DC’s ASR facilities were not considered under FPL’s water use certification evaluation as an “existing legal user,” as SFWMD considers the impacts from FPL’s proposed withdrawal at the M-DC’s facilities to be de minimis. (Id. See

    also SFWMD Basis of Review for Water Use Permit Applications,

    
    

    § 1.7.5.2.).

35. Even though its facilities are outside the area for consideration as an “existing legal user” that must be evaluated for FPL’s proposed withdrawals under SFWMD’s rules (Id.; T-II 105- 106, 128), M-DC has expressed concern about the potential impact from FPL’s proposed withdrawals on its two ASR facilities. (T-II 39). M-DC does not oppose certification of the Turkey Point Unit

    5 power plant and does not allege that FPL’s withdrawals will definitely impact its ASR facilities. (See T-I 17; T-II 160). Instead, M-DC believes approval should be conditioned on FPL performing additional modeling of the aquifer using a variable- density (also called density-dependent) model. (Id.)

36. No statute or rule would require FPL to conduct density- dependent modeling to assess the potential impacts of its proposed groundwater withdrawals, as suggested by M-DC. (T-II 166). Instead, FPL has complied with all applicable regulatory requirements in performing its groundwater modeling. (Id.) M-DC could not cite a single applicant or permit-holder that has ever been required to perform density-dependent modeling to assess groundwater withdrawal impacts in Miami-Dade County. (Id.). In addition, SFWMD has issued numerous permits over the years for which density-dependent modeling was not required, and M-DC could not cite to a single failure or problem with any of those permits. (T-II 175).

37. Nonetheless, to evaluate the potential for impact on the M-DC ASR facilities, FPL expanded the boundaries of its original model by 23 miles in each direction to envelope the M-DC ASR facilities and ensure the model boundaries were well beyond those facilities. (T-II 41). In addition to running the 90-day model, which showed no effect on the M-DC ASR facilities, FPL also ran the model to a “steady state,” which approximates the condition of maximum drawdown. (T-II 41). Under a “steady state” condition, FPL’s model showed a maximum drawdown of 1.5 feet, and a gradient velocity change of 4.9 feet per year, at the M-DC ASR facilities. (T-II 42-43). FPL’s drawdown effect at the M-DC ASR facilities is within the natural variability that is seen in the aquifer just due to climate changes and is on the same order of magnitude that would be seen from variations in M-DC’s own operational schemes. (Id.) The velocity change is also small, particularly considering M-DC consultants’ estimate that the fresh water bubble at these facilities will be about 13,000 feet in diameter. (Id.)

38. The additional analysis FPL conducted supports the conclusion that FPL’s proposed withdrawals will not interfere with or have an adverse impact on the M-DC ASR facilities. (T-II 42, 51-52). FPL has provided reasonable assurance that its proposed withdrawals will not prevent M-DC’s ASR facilities from withdrawing water consistent with their permits, will not create a change in the quality of water pursuant to State Primary Drinking

    Water Standards to the extent that the M-DC ASR water can no longer be used for its authorized purpose, and will not require M- DC to exceed its permitted allocations to meet its permitted demands. (T-II 113-118). Any impact of FPL’s proposed withdrawals on M-DC’s ASR facilities will be de minimis and consistent with SFWMD’s rule criteria. (T-II 117-118).

39. Because FPL’s withdrawal will result in small drawdown amounts at the existing legal users in the vicinity, no significant amount of the poorer-quality water that underlies these wells will be drawn upward. (T-II 38-39).

40. Based on all of the evidence, FPL gave reasonable assurance that the proposed withdrawals from the Upper Floridan aquifer will not interfere with or adversely affect any existing legal users; will not cause harm to or adversely impact existing off site land uses; and will not cause harm to or adversely impact natural resources. (See PS p 29; T-II 39, 131).

41. In the event FPL’s proposed withdrawals were determined to interfere with an existing legal user, SFWMD’s rules allow for the formulation of a mitigation plan to alleviate that impact in lieu of denying the proposed withdrawal. (T-II 119-120, 131). Under the facts of this case, M-DC’s concern for potential impacts to its ASR facilities is appropriately addressed by Condition of Certification XXXIII.B.2., which requires FPL to mitigate any future interference with

    existing legal users that is caused in whole or in part by FPL’s withdrawals. (Joint Ex 1; T-II 82).

    Air Emissions Control Technology

    
    

42. Air emissions from Turkey Point Unit 5 will be minimized through the inherent efficiency of the combined cycle design, and the use of: natural gas as the primary fuel, with ultra-low sulfur light oil as a backup fuel; advanced combustion control technology, and post-combustion control technology. Natural gas, the cleanest of fossil fuels, has very low levels of impurities. Ultra-low sulfur light oil is also very low in impurities and will be used as a backup fuel for no more than

    500 hours per year per combustion turbine. Natural gas and ultra-low sulfur light oil can be burned very efficiently to minimize the formation of air pollutants. The use of dry low NOx combustion design in the combustion turbines, and low NOx burners in the duct burners, will also minimize air emissions by inhibiting formation of thermal NOx by premixing of fuel and air prior to combustion, and by reducing flame temperatures. Selective Catalytic Reduction (SCR) will provide additional control of emissions of NOx from Unit 5 when operating in combined cycle mode. The cooling tower will have high efficiency “drift” or “mist” eliminators to minimize the amount of drift and resulting particulate matter that is formed. These

    drift eliminators will reduce drift by over 99.99 percent. (FPL Ex 1, pp 3-7 thru 3-11 & App 10.1.5; FPL Comp Ex 7, Kosky p 7).

43. State and federal PSD regulations require that Turkey Point Unit 5 meet all applicable emission limiting standards and that Best Available Control Technology (“BACT”) be applied in order to control emissions. BACT is defined in Florida Administrative Code Chapter 62-210.200(38) as:

    An emission limitation, including a visible emissions standard, based on the maximum degree of reduction of each pollutant emitted which the Department [of Environmental Protection], on a case by case basis, taking into account energy, environmental and economic impacts, and other costs, determines is achievable through application of production processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant.

    
    

    The BACT requirements are intended to insure that the air emission control systems for Unit 5 reflect the latest in control technologies used in the electric utility industry and take into consideration existing and future air quality in the vicinity of the Project. BACT review includes a cost-benefit analysis of alternative control technologies capable of achieving a higher degree of emission reduction than the proposed technology. DEP’s determination on what constitutes BACT for Turkey Point Unit 5 is to be based on a balancing of

    environmental benefits with environmental, energy, and economic impacts and other costs. (FPL Ex 1, App 10.1.5 at pp 3-2 thru 3-4; FPL Comp Ex 7, Kosky p 8).

44. In its review for the PSD permit for the Project, DEP determined that the emission limits for the Project represent BACT for purposes of the PSD permit. (PS p 28; FPL Comp Ex 7, Kosky pp 9-10, FPL Ex KFK-3).

45. The Project’s use of extremely clean fuels, combined with advanced combustion control technology, will provide the maximum degree of emission reduction for sulfur dioxide, particulate matter, volatile organic compounds, carbon monoxide and sulfuric acid mist. The dry low NOx control technology for the combustion turbine combustors and the duct burners, along with SCR, reflect the latest available control technologies for reducing NOx emissions from combined cycle systems. (FPL Ex 1, pp 3-7 thru 3-11 & App 10.1.5; FPL Comp Ex 7, Kosky pp 9-10).

46. The emission limits for Turkey Point Unit 5 in the recommended Conditions of Certification contained in Joint Exhibit 1 are identical to the emission limits proposed as BACT by DEP. The recommended NOx emission limit of 2.0 parts per million for combined cycle operation firing natural gas and 8.0 parts per million when firing ultra-low sulfur light oil are the lowest NOx emission limits that have been approved as BACT for identical units, and are more stringent than those for any

    project previously certified by the Siting Board under the PPSA and are the lowest NOx emission limits for any power plant in Florida. (T-I 111; FPL Comp Ex 7, Kosky pp 10-11).

    Air Quality Impact Analysis

    
    

47. Ambient air quality standards have been established by the U.S. EPA and DEP to protect public health and welfare. Miami-Dade County has also established ambient air quality standards for sulfur dioxide that are more stringent than the Florida standards. Air quality in the vicinity of the Turkey Point Plant, and throughout Southeast Florida, currently meets all federal and state ambient air quality standards. Miami-Dade County is designated as in “attainment” for all ambient air quality standards, and no area of Florida is currently designated as “nonattainment” for any air pollutant. (FPL Ex 1, pp 5-14 thru 5-15 & App 10.1.5; FPL Comp Ex 7, Kosky p 13).

48. DEP determined during its PSD review that air emissions from Unit 5, as specified in the application for the permit, would comply with all federal, state and local ambient air quality standards, and all PSD increments for Class I and Class II air quality areas, and would not adversely impact Air Quality Related Values (“AQRVs”). (PS p 28; FPL Comp Ex 7, Kosky pp 15-16, FPL Ex KFK-4).

49. In its review for the PSD permit for the Project, DEP determined that air quality modeling demonstrates that Turkey

    Point Unit 5 will comply with all state and federal ambient air quality standards, as well as PSD Class I and II increments.

    The air quality modeling conducted for the Project followed EPA and FDEP modeling guidelines. Two air quality models were utilized to assess air quality impacts in the area surrounding the Turkey Point Plant site, including assessing the impacts in the nearest PSD Class I area, which is the Everglades National Park, located approximately 13 miles west of the Turkey Point Plant site. Local and regional meteorological data from the National Weather Service was used in the modeling. The modeling incorporated maximum air emissions from the Unit 5 at various operating modes, fuels, loads, and ambient air temperatures, which may affect the emission rates from the Unit. The air quality modeling results support DEP’s determination that the maximum air impacts from the Project will comply with all ambient air quality standards and PSD Class I and II increments. (FPL Ex 1, pp 5-17 thru 5-22 & App 10.1.5; FPL Comp Ex 7, Kosky pp 16-18, FPL Ex KFK-4 & -5).

50. EPA has established “Significant Impact Levels” for the various pollutants that are subject to PSD review, and the Department has adopted these Significant Impact Levels at Florida Administrative Code Rule 62-204.200(29). The comparison of a project’s air quality impacts with the Significant Impact Levels represents an initial screening analysis to determine

    which pollutants require a more detailed modeling analysis. (FPL Ex 1, pp 5-16 thru 5-21 & App 10.1.5; FPL Comp Ex 7, Kosky

    pp 15-18).

    
    

51. In its review for the PSD permit for the Project, the DEP determined that impacts of the emissions of all air pollutants from Unit 5 would be below the PSD Class I and Class II Significant Impact Levels, with the exception of the maximum three-hour and the 24-hour Class I impacts for PM10. (FPL Ex 1, pp 5-21 thru 5-22; App 10.1.5; FPL Comp Ex 7, Kosky p 17, FPL Ex KFK-5).

52. For the three-hour and 24-hour averaging times for SO2 and the 24-hour averaging time for PM10, comparison of the maximum Project impact and other increment consuming sources in the region was performed. This is called “multi-source modeling.” In its review for the PSD permit for the Project, DEP determined that the modeling demonstrated that the Project would comply with the applicable PSD Class I increments. The maximum impact of the Project in the Everglades National Park could not be measured even with the most sophisticated monitoring equipment. (FPL Ex 1, pp 5-21 thru 5-22 & App 10.1.5; FPL Comp Ex 7, Kosky pp 17-18, FPL Ex KFK-5).

53. The predicted impacts of the Project on AQRVs, which include deposition and visibility, were all found to be acceptable to the Federal Land Manager (FLM)(the Superintendent

    of the Everglades National Park) for this PSD Class I area. The basis for that determination is comparison of the maximum impacts to the screening criteria, which are guideline thresholds to assess impacts to AQRVs. For visibility, the maximum regional haze impacts when firing natural gas or ultra- low sulfur light oil were low compared to the screening criteria established by the FLM. The National Park Service concluded that the emissions from the Project are not anticipated to adversely impact the sensitive resources at the Everglades National Park. (FPL Ex 1, pp 5-22 thru 5-25 & App 10.1.5; FPL

    Comp Ex 7, Kosky pp 18-19).

    
    

54. The air quality impacts of the Project, including deposition and visibility, were also evaluated in the Biscayne National Park. As a result of these analyses, the National Park Service concluded that the emissions from the Project are not anticipated to adversely impact the sensitive resources at the Biscayne National Park. (FPL Comp Ex 7, Kosky pp 18-19).

55. The Project’s predicted impact on atmospheric deposition in Everglades National Park and Biscayne National Park for the relevant pollutants is extremely small compared to the amount of deposition previously observed in the region. The low levels of atmospheric deposition predicted for the Project would have no measurable or discernible impact on water quality

    in either Everglades National Park or Biscayne National Park. (Id.)

56. Nitrogen oxides and volatile organic compounds are precursors to the formation of ozone in the atmosphere. In its review for the PSD permit for the Project, the DEP determined that the emission of these air pollutants from Turkey Point Unit

    5 will not interfere with the ongoing compliance with the ambient air quality standard for ozone in the Southeast Florida region. (FPL Ex 1, App 10.1.5 p 7-7; T-I 111).

57. There are expected to be no air quality impacts due to industrial, commercial, or residential growth associated with the Project. (FPL Ex 1, p 5-22 & App 10.1.5 pp 7-1 thru 7-7). Wetland Impacts

58. Construction of the Unit 5 Project will impact 24.35 acres of wetlands, of which 19 acres will be permanent impacts. (FPL Comp Ex 7, Bullock p.11). Those wetlands permanently impacted include 16.742 acres of dwarf and shrub mangroves, 1.74 acres of man-made lagoon comprised of 1.2 acres of seagrass and

    0.54 acres of open water with unvegetated bottom, 0.19 acres of spoil piles, and 0.34 acres of tidal creeks. (Id.) Of those permanent impacts, 0.432 acres will be impacted to retain area functions, that is, the reconnection of the two tidal creeks north of the new power block, the re-establishment of the tidal creek channel adjacent to that power block, and connection of the re-

    created man-made lagoon to the adjacent tidal creek. (FPL Comp Ex 7, Bullock pp 11-12 and Maus p 18).

59. No offsite surface waters or wetlands will be adversely impacted by the Project’s construction activities. (FPL Comp Ex 7, Bullock p 12).

60. FPL has implemented practicable design modifications for the Project to eliminate or reduce impacts to wetland and other surface water functions. (See PS p 30).

61. FPL developed a comprehensive wetland impact mitigation plan to offset wetland functional loss. The goal of mitigation is to maintain all of the functional values of wetland systems that otherwise would be lost as a result of development. To assess wetland functional loss, FPL evaluated wildlife utilization, listed animals and plants, vegetation characteristics, hydrologic parameters, location characteristics, soil parameters and water quality. This evaluation was performed using the Wetland Assessment Technique for Environmental Review (“WATER”), a methodology designed specifically for use in Florida to develop an overall ranking of wetland functional value. (FPL Comp Ex 7, Maus p 6-7 and FPL Ex BM-7 at Appendix A).

62. FPL’s mitigation plan will more than offset the wetland impacts associated with the Project through a combination of on- and off-site mitigation. The permanent and temporary wetland impacts of the Project will be permanently compensated through

    preservation, enhancement, and/or restoration of over 400 acres of wetlands within the Project’s same drainage basin. Onsite mitigation activities include the installation of culverts under the transmission line patrol road to improve the mangroves’ hydrologic connection with Biscayne Bay and alleviate hypersaline conditions. In addition, two of the upland test cooling canal berms will be converted to wetlands through removal of exotic vegetation, topographic grading to saturated soil elevation, and planting with native wetland shrubs.

    Offsite mitigation includes the preservation and transfer of title to governmental agencies of over 300 acres of mangrove property adjacent to the Biscayne National Park, and the purchase of 8.99 mitigation credits from the Everglades Mitigation Bank. The credits purchased from the Everglades Mitigation Bank will support the creation, restoration and enhancement of 63 acres of wetlands, and partially fund the restoration of over 293 acres of tidal creeks. (FPL Comp Ex 7, Bullock pp 15-16, 20, Maus pp 11-14 and FPL Ex BM-7).

63. The restoration plan for the Everglades Mitigation Bank calls for significant hydrologic improvement that will re- establish freshwater flows to large areas that are currently blocked from overland sheetflow. This activity will also provide benefits to the marine resources of Card Sound and Biscayne Bay. The restoration will benefit seagrass beds and

    fish habitat, American Crocodile habitat, and a vast array of macro-invertebrates, fish, amphibians, reptiles, wading birds, raptors, and mammals. The seagrass restoration within the Everglades Mitigation Bank will increase the acreage of this natural resource within the drainage basin and surpass the acreage lost by the implementation of FPL’s proposed Unit 5 Project. (FPL Comp Ex 7, Maus p 14).

64. Overall, FPL’s mitigation activities will generate

    
    

    26.88 credits of mitigation, whereas the Project’s impacts require 25.88 credits of mitigation.5 FPL’s proposed mitigation plan is more than adequate to offset impacts associated with the Project and will provide a greater level of wetland function than those functions displaced by the Project. (FPL Comp Ex 7, Bullock p 16 and Maus p 18-19; FPL Ex BM-3).

65. All of the functions of wetlands and surface waters affected by the construction and operation of the Project will be more than replaced by the proposed mitigation activities. Since the proposed mitigation activities will fully replace any lost habitat, there will not be a permanent adverse effect on the functional values that the surface water and wetland habitats provide to fish and wildlife, including listed species, as a result of construction and operation of the proposed Project. The landscape characteristics that contribute to the continued use by wildlife, including listed species, are

    remaining in the immediate area as a direct result of the proposed mitigation. (FPL Comp Ex 7, Maus p 18).

66. In addition to the mitigation to offset wetland impacts, FPL is proposing additional onsite enhancement activities. These additional activities are not being conducted to generate wetland mitigation credits, but rather to ensure an overall increase in the ecological value of areas surrounding the Project site, to hasten the permitting process, and to assist in the seamless integration of the mitigation activities into the area ecosystem. These additional enhancement activities include hydrologic improvements, re-creation of the man-made lagoon, removal of exotic species upon the three remaining test cooling canal berms and the creation of habitat for the American crocodile and Eastern indigo snake upon those berms, and restoration of the temporary construction parking, laydown, and access roads. (FPL Comp Ex 7, Bullock p 16 and Maus pp 14-16).

67. The Project’s impacts to surface water and wetland habitats will not adversely affect the public health, safety, or welfare or the property of others. Instead, aspects of the Project’s proposed mitigation plan will provide benefits to the property of others through the preservation of wetlands adjacent to the Biscayne National Park that may be used to aid the Comprehensive Everglades Restoration Plan’s (“CERP’s”) goal of

    restoring freshwater inputs to Biscayne Bay. (FPL Comp Ex 7, Bullock p 14).

68. The Project’s mitigation plan would benefit CERP by improving tidal connections between Biscayne Bay and mangroves on the Turkey Point Power Plant site, thus preparing the property for CERP’s restoration of historical freshwater flows. In addition, the preservation and transfer of title to government agencies of over 300 acres of wetlands property adjacent to Biscayne National Park provide additional natural areas that may be utilized for the CERP goals of restoring freshwater flows. (FPL Comp Ex 7, Bullock pp 14-15).

69. The construction and operation of the Project, in conjunction with the proposed mitigation, will not adversely affect threatened and endangered or other protected plant and animal species, the conservation of fish and wildlife, or their habitats, and will not adversely affect navigation. (See PS p 30; FPL Comp Ex 7, Bullock pp 17-18) The Project also will not adversely affect fishing, recreational values, or marine productivity in the vicinity. (FPL Comp Ex 7, Bullock pp 18-19 & FPL Ex KB-4).

70. Protective measures enacted during construction will be designed to reduce or eliminate secondary impacts to water resources. These measures include sedimentation barriers and non- porous barriers that will isolate areas of dredge and fill

    activities from adjacent undisturbed areas, and direction of stormwater from construction laydown and parking areas to stormwater ponds designed to meet applicable treatment standards. Notwithstanding these protective measures during construction, FPL will provide additional mitigation to offset the potential for secondary impacts to these adjacent areas. (FPL Comp Ex 7, Bullock p 21).

71. The Project will not result in discernible degradation of Biscayne Bay, due to the lack of water quality impacts associated with construction and operation. The Project will comply with the specific anti-degradation standards presented in Florida Administrative Code Rule 62-4.242 through the use of protective measures during construction that are designed to prevent any discharge of dredge/fill materials or other pollutants outside of construction areas. Additional measures to ensure that the Project does not degrade Biscayne Bay include the aspects of the Project’s mitigation plan that are specifically beneficial to Biscayne Bay, such as the enhancement of tidal wetlands, re-creation of fish habitat, and the preservation of over 300 acres. (FPL Comp Ex 7, Bullock pp 21-22).

72. The Project will not result in unacceptable cumulative impacts upon wetlands and other surface waters. Rather, the Project will result in a net increase in wetland

    functional values through implementation of the proposed mitigation plan, which provides over 400 acres of preserved, enhanced, restored, and created wetlands to offset the permanent loss of 19 acres of wetlands. (FPL Comp Ex 7, Bullock p 22).

    Other Interests of the Public

    
    

73. No archaeological resources or other historic or cultural resources will be affected by construction of the Project. (PS p 29).

74. The location, construction, and operation of Turkey Point Unit 5 will utilize available and reasonable methods, which will minimize adverse effects on human health and the environment. Turkey Point Unit 5 will not unduly conflict with the goals established by the Miami-Dade County Comprehensive Development Master Plan or with the state comprehensive plan or the Strategic Regional Policy Plan of the South Florida Regional Planning Council. Turkey Point Unit 5 will utilize safeguards that are technically sufficient for the protection of the health and welfare of the citizens of Florida. (PS p 29).

75. The Project will have minimal visual impacts. (FPL Comp Ex 7, Zwolak p 7). The tallest Unit 5 structure will be the heat recovery steam generator stacks, which will not exceed 150 feet from finished grade. (T 38). The existing stacks at Units 1 and 2 are much taller, about 400 feet in height. (FPL Comp Ex 7, Zwolak p 8). Similarly, the existing Units 1 and 2 boilers, at

    200 feet in height, are much larger than the proposed Unit 5 heat recovery steam generators, which will be about 90 feet tall. (Id.) While the proposed Unit 5 will add additional infrastructure to the viewshed, the new infrastructure will be smaller in height and bulk when compared to the existing infrastructure on the Turkey Point Power Plant site. (FPL Comp Ex 7, Zwolak pp 7-8).

76. The expected Project impact on land use and recreational and protected areas will be minimal. Undeveloped FPL-owned land and existing power generation infrastructure provide a significant buffer to existing non-FPL owned land uses and recreation and protected areas to the south, west and north. (FPL Comp Ex 7, Zwolak p 8).

77. There will be no audible or air quality effects on the recreation facilities associated with the National Park, the County Park and Preserve, and Save Our Rivers lands. Views of the proposed Project from the parks are very limited and the change in view will not be substantial. (FPL Comp Ex 7, Zwolak

    p 9).

    
    

78. The maximum noise impacts from Unit 5 construction

    
    

    and operation activities will be minimal at the property boundary of the Turkey Point Plant site. Neither M-DC, nor the State of Florida, has specific numerical noise standards, but the Project’s noise impacts are less than noise criteria

    generally considered to be acceptable as numerical noise standards by many municipalities and counties in Florida and other states. Also, the noise associated with the construction and operation of the Project will not violate M-DC’s nuisance regulation. (FPL Ex 1, Vol 1, pp 5-26 thru 5-27; FPL Comp Ex 7,

    Kosky p 20).

    
    

79. The proposed Unit 5 Project is compatible with existing land uses because of, among other things, its proximity to existing power plant facilities and its distance from residential and recreational land uses. (FPL Ex 1, Vol 1, pp 2-5 thru 2-6; See FPL Comp Ex 7, Zwolak pp 9-10).

80. The proposed Unit 5 Project is consistent with the State Comprehensive Plan, the South Florida Regional Planning Council Strategic Regional Policy Plan, the M-DC Comprehensive Development Master Plan and the M-DC land development regulations. (FPL Ex 1, Vol 1, pp 2-3 thru 2-5; FPL Ex 2; FPL Comp Ex 7, Zwolak, pp 10-14).

81. The proposed Project will provide approximately 290 jobs and total direct wages are estimated at $57.5 million dollars during construction. In addition to jobs and wages, the proposed Project will generate substantial revenue to the County and the state from various forms of payments including user fees, sales taxes and corporate income taxes. Sales tax benefits during construction are anticipated to be $600,000,

    with the local portion estimated at $50,000. (FPL Comp Ex 7, Zwolak p 14).

82. Socioeconomic costs associated with construction are primarily a result of increased construction traffic. Traffic delays, however, are anticipated to be minor since highway Level of Service (LOS) will only be minimally affected for a short-to- moderate duration, roadway segments will continue to operate at an acceptable LOS, and Project commuting patterns will be opposite of existing peak hour flows. (FPL Ex 1, Vol 1, pp 7-5 thru 7-6; FPL Comp Ex 7, Zwolak p 15-17).

83. Due to the small increase in employment after the Project is operational and the resultant low volume of trip generation, operation impacts on roadways and intersections will be negligible. Traffic impacts will not result in a lowering of the LOS below standards established by the Florida Department of Transportation and M-DC. As a result, mitigation measures for roadway and intersection impacts are not warranted. (PS p 29; FPL Ex 1, Vol 1, pp 7-5 thru 7-6FPL Comp Ex 7, Zwolak pp 17-18).

84. Jobs and payroll during operation are estimated to be

    
    

    12 full-time equivalent employees with an average annual wage of

    
    

    $40,000 per employee. User fees, sales taxes and corporate income taxes will also be generated during the operation period. Requirements for public service facilities needed to support the

    additional unit are minimal. (FPL Ex 1, Vol 1, pp 7-1 thru 7-3; FPL Comp Ex 7, Zwolak p 15).

85. No significant negative economic effects of Project operations are anticipated. (FPL Comp Ex 7, Zwolak p 15. See also FPL Ex 1, Vol 1, pp 7-1 thru 7-3).

86. FPL dispatches its generating units in the inverse order of their operating costs. (FPL Comp Ex 7, Hicks p 6).

    Since Unit 5 will be a highly efficient natural gas-fired combined cycle unit, it will be dispatched on FPL’s economic dispatch system before the less-efficient existing Units 1 and 2. During the first five years that Unit 5 is operational, FPL projects a reduction in barge fuel oil deliveries through Biscayne Bay to Units 1 and 2 in the range of 80-125 fewer barge trips per year and approximately 7,500 tons per year reduction in nitrogen oxides and sulfur dioxide air emissions due to Units 1 and 2 dispatching less frequently with Unit 5 in operation. (FPL Comp Ex 7, Hicks p 7-8 and Kosky p 19).

87. With the operational safeguards for Unit 5, including the highly efficient design technology, clean fuel, and location, together with the recommended Conditions of Certification contained in Joint Exhibit 1 (also Appendix I to DEP Exhibit 2, which is the revised and corrected DEP Staff Analysis Report), Turkey Point Unit 5 will comply with the applicable nonprocedural requirements of all agencies, are adequate to

    protect public health, welfare and the environment. (FPL Comp Ex 7, Kosky pp 20-21).

88. The Turkey Point Unit 5 Project is clearly in the public interest. The PSC determined that the Project is the most cost-effective way to meet the future energy needs of FPL’s customers. The Project will have minimal adverse environmental impacts through the use of the latest technologies and maximizing the use of the existing infrastructure at the Turkey Point Site. The comprehensive environmental studies submitted into the record of this proceeding, along with the recommended Conditions of Certification contained in Joint Exhibit 1 (also Appendix I to DEP Exhibit 2), demonstrate that Turkey Point Unit

    5 will comply with the applicable nonprocedural requirements of all agencies, demonstrate that the impacts of the Project will be minimal, and in some cases will be beneficial. Indeed, there will be net environmental benefits associated with Turkey Point Unit 5, such as the projected cumulative air emission reductions at the site. (FPL Comp Ex 7, Kosky p 21-22).

    CONCLUSIONS OF LAW

    
    

89. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. This proceeding has been conducted in accordance with the Florida Electrical Power Plant Siting Act, Chapter 403, Part II, Florida Statutes, and Florida

    Administrative Code Chapter 62-17, Part I, which sets out the procedures for power plant siting reviews.

90. In accordance with Chapters 120 and 403, Florida Statutes, and Florida Administrative Code Chapter 62-17, proper notice was accorded to all persons, entities, and parties entitled to such notice, and appropriate notice was provided to the general public by both DEP and FPL. All necessary and required governmental agencies participated, and the general public had the opportunity to fully participate, in the certification process. Reports and studies were issued by DEP, the Department of Community Affairs, the Florida Department of Transportation, the Florida Fish and Wildlife Conservation Commission, the Department of State - Division of Historical Resources, SFWMD, the South Florida Regional Planning Council, and M-DC, in accordance with their various statutory duties under the PPSA.

91. The PSC has issued its affirmative determination that a need exists for the electrical generating facility and the electricity it will produce, in accordance with Section 403.519, Florida Statutes.

92. SFWMD has exclusive authority to regulate and permit the consumptive use of water within its geographical boundaries. (PS p 27; § 373.217, Fla. Stat.).

93. By its own terms, the PPSA “shall not apply” to electrical power plants for which applications for permits were made prior to 1973. § 403.506(1), Fla. Stat., Ch. 73-33, Laws of Fla. FPL applied for permits for Turkey Point Units 1 through 4 prior to 1973, and thus the PPSA does not apply to those existing units. FPL has not in this proceeding sought to invoke the jurisdiction of the PPSA with respect to existing Turkey Point Units 1 through 4, nor has FPL elected to apply for certification of Units 1 through 4 under the optional PPSA provision for certification of existing electrical power plants codified at Section 403.5175, Florida Statutes.

94. There is reasonable assurance that construction and operation of the Project will comply with all applicable standards of jurisdictional agencies, and that no variances or other relief from non-procedural agency standards is requested or necessary for the construction and operation of Turkey Point Unit 5. (See PS p 30; T-II 83).

95. The evidence and testimony produced at the certification hearing demonstrates that FPL has met its burden of proof to demonstrate that Turkey Point Unit 5 meets the criteria for certification under the PPSA. Testimony and other evidence produced at the hearing demonstrates that the safeguards for construction and operation of Turkey Point Unit 5 are technically sufficient to protect the public welfare of the

    citizens of Florida and are otherwise reasonable and available methods to achieve that protection of the public. Turkey Point Unit 5 will result in minimal adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. (T-II 84).

96. In addition, the Project will not conflict with the state comprehensive plan or the local comprehensive plan for

M-DC, the Miami-Dade County Comprehensive Development Master Plan. If operated and maintained in accordance with this Recommended Order and the Conditions of Certification contained in Joint Exhibit 1 (also Appendix I to DEP Exhibit 2), Turkey Point Unit 5 will comply with the applicable nonprocedural requirements of all agencies. Furthermore, certification of the Project will fully balance the increasing demand for electrical power plant location and operation in this State with the broad interests of the public that are protected by the PPSA.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Siting Board grant full and final certification to Florida Power & Light Company, under Section 403, Part II, Florida Statutes, for the location, construction, and operation of Turkey Point Unit 5, representing a 1150 MW combined cycle unit, as described in the Site Certification

Application and the evidence presented at the certification hearing, and subject to the Conditions of Certification contained in Joint Exhibit 1 (also Appendix I to DEP Exhibit 2).

DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida.

S

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 18th day of November, 2004.

ENDNOTES

1/ Abbreviations used in references to the record will be as follows: App = Appendix; Ex = exhibit; Comp Ex = Composite Exhibit; Jt = Joint; p = exhibit page number; PS = Prehearing Stipulation; T-I and T-II = transcript of certification hearing on 9/20/04 and 9/21/04, respectively; and Vol = Volume.)

2/ FPL Composite Exhibit 7 includes the prefiled written testimony of some FPL witnesses, along with FPL Exhibits DH-1 & 2, KFK-1 through 5, BM-1 through 7, EN-1, WP-1 through 4, RZ-1, and KB-1 through 4, all of which were also received into evidence without objection.

3/ However, since the upper portion of the Upper Floridan aquifer has less than 10,000 TDS, it is considered an underground source of drinking water under the U.S. Environmental Protection Agency’s standard. (T-II 45-46).

4/ FKAA may in the future seek approval to use water from the Upper Floridan aquifer, with desalinization, to augment its water supplies. (T-I 131-132).

5/ Actually, the acreage of impacts has decreased since the mitigation plan was developed, but none of the proposed mitigation has been reduced. (FPL Comp 7, Maus p 20).

COPIES FURNISHED:

James V. Antista, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building, Room 108 620 South Meridian Street

Tallahassee, Florida 32399-1600

Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Sam Goren, Esquire

South Florida Regional Planning Council 3099 East commercial Boulevard, Suite 200

Hollywood, Florida 33021

John Mcinnis, Esquire Metropolitan Dade County

111 Northwest First Street, Suite 2810 Miami, Florida 33128-1994

Sheryl Wood, Esquire

South Florida Water Management District Post Office Box 24680

West Palm Beach, Florida 33416

Scott A. Goorland, Esquire

Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Mary Anne Helton, Esquire

Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850

Sheauching Yu, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Peter C. Cunningham, Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526

Kathy C. Carter, Agency Clerk Office of General counsel Mail Station 35

3900 Commonwealth Boulevard

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 Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 03-004391EPP

Orders for Case No: 03-004391EPP