00-004564EPP In Re: Blue Heron Energy Center, Llc (Blue Heron Energy Center) Power Plant Siting Application No. Pa00-42 vs. * Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, May 4, 2006.

Summary: Applicant proved that site for proposed combined cycle, natural gas-fired electrical power plant was consistent and in compliance with land use plans and zoning ordinances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: CALPINE CONSTRUCTION )

FINANCE COMPANY, L.P. (BLUE )

HERON ENERGY CENTER) POWER ) Case No. 00 - 4564EPP

PLANT SITING APPLICATION NO. )

PA00 - 42, )

)

LAND USE RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

J. Lawrence Johnston, held a land use hearing in the above -

styled case on February 6, 2002, in Vero Beach, Florida.

AP PEARANCES

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

David S. Dee, Esquire

Landers & Parsons

310 West College Avenue

Tallahassee, Florida 32301

For the Florida Department of Environmental Protection:

Scott A. Goorl and, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399

For Audubon of Florida and the Pelican Island Audubon

Society:

Kevin S. Doty, Esquire

Hatch & Doty, P.A.

1701 A1A, Suite 220

Vero Beach, Florida 32963

STATEMENT OF THE ISSUE

Pursuant to Section 403.508(2), Florida Statutes, the sole

issue for determination in this case is whether the proposed

site for the Petitioner’s electrical power plant “is con sistent

and in compliance with existing land use plans and zoning

ordinances.” (All statutory references are to the 2001

codification of the Florida Statutes.)

PRELIMINARY STATEMENT

On October 31, 2000, Calpine Construction Finance Company,

L.P. (“Calp ine”), filed an application with the Florida

Department of Environmental Protection (“Department” or “DEP")

for authorization to construct and operate a nominal 1080

megawatt (“MW”) natural gas - fired, combined cycle electrical

power plant on a site located in unincorporated Indian River

County, Florida. Calpine’s application is subject to the

requirements of the Florida Electrical Power Plant Siting Act

(“PPSA”), Sections 403.501 - .518, Florida Statutes. In

compliance with Section 403.508(1), the land use hearing (“the

Land Use Hearing”) in this case was scheduled for February 6,

2002.

On January 25, 2002, a “Prehearing Stipulation for Land

Use Hearing” (“Prehearing Stipulation”) was filed by Calpine,

DEP, the Florida Department of Community Affairs, the F lorida

Department of Transportation, the Florida Public Service

Commission, the Florida Fish and Wildlife Conservation

Commission, the St. Johns River Water Management District, the

Treasure Coast Regional Planning Council, Indian River County

("County"), St. Lucie County, Audubon of Florida and the

Pelican Island Audubon Society. In the Prehearing Stipulation,

all of the signatories, except Audubon of Florida and the

Pelican Island Audubon Society (collectively referred to as

"Audubon"), either agreed wit h or did not dispute Calpine’s

assertion that the site of the proposed project is consistent

and in compliance with existing land use plans and zoning

ordinances.

At the Land Use Hearing, Calpine called two witnesses:

Jack Doolittle (accepted as an expert regarding electrical

power plant siting and permitting, and environmental and land

use impact assessments for power plants) and Stan Boling

(accepted as an expert regarding land use planning and zoning

issues). Calpine introduced exhibits 1 - 29 into evide nce

without objection.

Prior to the Land Use Hearing, Calpine requested the

Administrative Law Judge to take judicial notice of certain

excerpts from the Indian River County 2020 Comprehensive Plan

("Comprehensive Plan"), and excerpts from The Code of In dian

River County ("County Code"). Calpine's request was granted at

the Land Use Hearing, subject to the ruling on any timely

written objections. No objection to Calpine’s request was

filed. (The excerpts from the Comprehensive Plan and County

Code also were introduced into evidence at the Land Use

Hearing, without objection.)

None of the signatories to the Prehearing Stipulation

participated at the Land Use Hearing, except Calpine, DEP, and

Audubon. Except for Calpine, the parties to this proceeding

did not call any witnesses or proffer any exhibits. Although

the public was given an opportunity to comment, no one from the

public testified or proffered any exhibits at the Land Use

Hearing.

The transcript of the Land Use Hearing was filed with the

Di vision of Administrative Hearings on February 8, 2002, and

the parties were allowed until February 21, 2002, to submit

proposed recommended orders. Calpine and DEP timely filed a

joint proposed recommended order on February 21, 2002. To

date, no other pa rty has filed a proposed recommended order.

Based on all of the evidence of record, the following

findings of fact are determined:

FINDINGS OF FACT

The Petitioner

1. Calpine intends to license, construct, own, and

operate a new electrical power plant i n unincorporated Indian

River County, Florida. Calpine filed an application with DEP

under the PPSA for the proposed electrical power plant, which

is known as the Blue Heron Energy Center ("the Project").

The Site for the Blue Heron Energy Center

2. The site (“Site”) for the Blue Heron Energy Center is

located in southeastern Indian River County, approximately 5

miles southwest of the City of Vero Beach.

3. The Site is approximately 50.5 acres in size and is

currently undeveloped. The primary vegetati on on the Site is

pine flatwoods. The Site contains two small wetlands that will

be preserved.

4. The general area surrounding the Site is a mixture of

agricultural, industrial, institutional, utility and

residential land uses. The Interstate 95 ("I - 95 ") corridor is

adjacent to the west side of the Site. Just west of the I - 95

corridor are two existing electrical transmission line

corridors operated by Florida Power & Light Company ("FPL").

There is an existing natural gas pipeline owned by Florida Gas

Transmission Company located between the two electrical

transmission line corridors. The Indian River County

Correctional Institution is located directly northwest of the

Site. Farther to the north are Indian River County's landfill

and several industria l (citrus processing) facilities. There

also is one single - family residence located north of the Site.

The eastern boundary of the Site is adjacent to 74th Avenue,

which is adjacent to a drainage ditch known as the Lateral C

Canal. A citrus grove and an industrial wastewater sprayfield

are located on the east side of the Lateral C Canal. The

southern boundary of the Site abuts the border between Indian

River County and St. Lucie County. The I - 95 corridor and

undeveloped lands lie south of the Site in S t. Lucie County.

Southeast of the Site, in St. Lucie County, is a residential

development known as Spanish Lakes Fairways. The Site is

separated from this residential development by a drainage

ditch, a berm, and an existing buffer of mature trees and den se

vegetation.

Description of the Proposed Blue Heron Project

5. The Blue Heron Energy Center will involve the

construction and operation of a combined cycle, natural gas -

fired, electrical power plant that will generate approximately

1080 MW (nominal). The Blue Heron Project will be built in two

phases, each generating approximately 540 MW (nominal). The

first phase of the Project will include two combustion

turbines, two heat recovery steam generators, a steam turbine,

exhaust stacks, cooling towers, a treatment and storage system

for process water, a treatment system and detention basin for

storm water, an operations control center, transformers and

related switching gear, and other ancillary structures and

features. The second phase of the Project w ill be similar to

the first phase.

6. The Blue Heron Energy Center will connect to

Florida's electrical grid with two overhead transmission lines

that will extend west from the Site approximately 1400 feet

(over I - 95) to the existing FPL transmission li nes. The

Project will obtain natural gas by installing an underground

pipe that will extend from the Site approximately 1400 feet to

the west (under I - 95) to where the Project will interconnect

with the natural gas pipeline systems operated by Gulfstream

and Florida Gas Transmission Company. Calpine has obtained

options to purchase the land west of the Site where Calpine's

gas pipeline corridor and electrical transmission line corridor

will be located.

7. The primary source of cooling and process water for

the Blue Heron Energy Center will be surface water (storm

water), which will be obtained from the Lateral C Canal or the

County's proposed stormwater park. Potable water and domestic

wastewater services will be provided by Indian River County.

No gro undwater will be used by the Project. The Blue Heron

Project will not discharge any industrial or domestic

wastewater to any surface water or groundwater.

Existing Land Use Plans and Zoning Ordinances

8. The Site is designated Agricultural (AG - 1) in In dian

River County's Comprehensive Plan. Under the Comprehensive

Plan, the AG - 1 designation allows for the construction of

electrical power plants, like the Project, as "public

facilities."

9. Indian River County has adopted land development

regulations and zoning districts that implement the intent of

the County’s Comprehensive Plan. Under the zoning code, like

the Comprehensive Plan, the Site is located in an Agricultural

(A - 1) district. The County’s zoning code expressly allows the

construction of "p ublic and private utilities, heavy" as a

special exception use in A - 1 zoning districts. The County's

zoning code defines "utilities, public or private, heavy" to

include "all major electrical generation plants (generating

fifty (50) megawatts or more)." Thus, the A - 1 zoning

designation for the Site allows the development of the Project

as a special exception use.

Special Exception Use

10. Section 971.05 of the County Code sets forth the

procedures and criteria for obtaining the County's approval of

a special exception use. Among other things, Section 971.05(9)

of the County Code requires an applicant for a special

exception use to demonstrate that the proposed project is

consistent with the County's Comprehensive Plan and zoning

code.

11. Calpine ha s worked with the County to ensure that

every aspect of the Blue Heron Energy Center will comply with

the County's criteria. Consistent with the requirements of

Section 971.05 of the County Code, Calpine filed an application

with the County for approval o f a special exception use and

conceptual site plan for the Blue Heron Project. The Special

Use Exception Application ("SUEA") fully described the Project,

including the corridors for the proposed transmission lines and

natural gas pipeline.

12. The Cou nty’s staff reviewed Calpine’s SUEA and

recommended approval, subject to certain conditions. On

August 9, 2001, the County's Planning and Zoning Commission

held a duly noticed public hearing and then recommended

approval of Calpine’s SUEA, with condition s. On September 18,

2001, the Indian River County Board of County Commissioners

("County Commission") held a duly noticed public hearing and

then approved Calpine’s SUEA, with conditions. It is "typical"

for the County to include conditions as part of th e County's

approval for a special exception use. If Calpine complies with

the County's conditions for its special exception use, the

County will "automatically approve the final site plan" for the

Blue Heron Project. No one appealed the County Commission 's

approval of Calpine’s SUEA and the deadline for filing an

appeal has passed.

Consistency With Land Use Plans and Zoning Ordinances

13. The County staff, the Planning and Zoning Commission,

and the County Commission considered whether the Project is

co nsistent and in compliance with the County's Comprehensive

Plan and zoning ordinances, pursuant to Section 971.05 of the

County Code, and then they approved the Project, with

conditions.

14. The evidence presented in the Land Use Hearing

demonstrated tha t the Site is consistent and in compliance with

Indian River County’s Comprehensive Plan. The evidence also

demonstrated that the Site is consistent and in compliance with

Indian River County’s zoning ordinances.

15. In the Prehearing Stipulation, India n River County,

St. Lucie County, the Florida Department of Community Affairs,

the Treasure Coast Regional Planning Council, the Florida

Department of Environmental Protection, the Florida Department

of Transportation, the Florida Public Service Commission , the

Florida Fish and Wildlife Conservation Commission and the St.

Johns River Water Management District either agreed with or did

not dispute Calpine’s assertion that the Site is consistent and

in compliance with existing land use plans and zoning

ordina nces. Indian River County also stipulated that it

supports Calpine’s plan to construct and operate the Blue Heron

Project on the Site.

Public Notice of the Land Use Hearing

16. On December 11, 2000, Calpine published a “Notice of

Filing of Application for Electrical Power Plant Site

Certification” in the Vero Beach Press - Journal , which is a

newspaper of general circulation published in Indian River

County, Florida.

17. On October 9, 2001, the Administrative Law Judge

issued an “Order Granting Continua nce and Re - Scheduling Land

Use Hearing” and served a copy of his Order on all of the

parties to this proceeding. The Judge’s Order stated that the

Land Use Hearing would be conducted on February 6, 2002.

18. On December 14, 2001, Calpine published a “Not ice of

Land Use and Zoning Hearing on Proposed Power Plant Facility”

in the Vero Beach Press - Journal .

19. On December 14, 2001, the Department published notice

of the Land Use Hearing in the Florida Administrative Weekly.

20. The public notices for t he Land Use Hearing satisfy

the informational and other requirements set forth in Section

403.5115, and Rules 62 - 17.280 and 62 - 17.281(4), Florida

Administrative Code.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over th e parties to and subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

403.508.

22. Calpine and DEP published timely public notice of the

Land Use Hearing, in compliance with the requirements contained

in the PPSA and Chapter 62 - 17, Florida Administrative Code.

23. Pursuant to Section 403.508(2), the sole issue for

determination in this proceeding is whether the proposed Site

of the Blue Heron Energy Center is consistent and in compliance

with existing land use plans and zoning ordinances.

24. The competent, substantial, and unrebutted evidence

presented by Calpine at the Land Use Hearing demonstrated that

the Site for the Blue Heron Project is consistent and in

compliance with the applicable provisions of the existing land

use plans and zoning ordinances, including but not limited to

Indian River County’s comprehensive land use plan and zoning

code.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions

of Law, it is RECOMMENDED that the Governor and Cabinet,

sitting as the Siting Board, enter a Land Use Final Order in

this case finding that the Site of the Blue Heron Energy Center

is consistent and in compliance with the existing land use

plans and zoning ordinances.

DONE AND ORDERED this 5th day of March, 20 02, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUN COM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March, 2002.

COPIES FURNISHED:

James V. Antista, General Counsel

Florida Fish and Wildlife

Conservation Commis sion

Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Ross Stafford Burnaman, Esquire

Florida Fish and Wildlife

Conservation Commission

Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Paul Bangel, Es quire

County Attorney's Office

1840 25th Street

Vero Beach, Florida 32960

Kathy Beddell, Esquire

Harold Mclean, General Counsel

Florida Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 0850

David S. Dee, Esquire

Landers & Parsons

310 West College Avenue

Tallahassee, Florida 32301

Kevin S. Doty, Esquire

Hatch & Doty, P.A.

1701 Highway A1A, Suite 220

Vero Beach, Florida 32963 - 2206

Scott A. Goorland, Esquire

Department of Environmental Protection

3900 Commonwealth Boulev ard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

Charles Lee, Sr., Vice President

Florida Audubon Society

1331 Palmetto Avenue

Suite 110

Winter Park, Florida 32789

Terry E. Lewis, Esquire

Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard

Suite 1000

West Palm Beach, Florida 33401

Daniel S. McIntyre, Esquire

St. Lucie County

2300 Virginia Avenue

3rd Floor Administrative Annex

Fort Pierce, Florida 34952

Cari L. Roth, Esquire

Department of Community Affairs

2555 Shum ard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Roger G. Saberson, Esquire

70 Southeast Fourth Avenue

Delray Beach, Florida 33483

Colin M. Roopnarine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 210 0

Jennifer B. Springfield, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178 - 1429

Sheauching Yu, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Flo rida 32399 - 0458

Kathy C. Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Departme nt of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Land Use Recommended Order. Any

exceptions to this Land Use Recommended Order should be filed

with the agency that will issue the Final Order in this case.