A Florida appeals court on Wednesday denied a second attempt by the Seminole Tribe of Florida to quash a 2011 Hendry County ordinance that would enable FPL to build a massive power plant on 3,127 acres of panther habitat near its reservation.
"Though the circuit court incorrectly determined that the ordinance was not subject to certiorari review, we conclude that the circuit court ultimately afforded procedural due process and applied the correct law in denying the Seminole Tribe's petition," the Second District Court of Appeal in Lakeland wrote in its nine-page ruling.
The site for Florida Power and Light's proposed natural gas power plant and solar energy farm, which could generate 3,750 megawatts of electricity, borders the tribe's Big Cypress Reservation; the smoke stacks would be visible from two miles away.
West Palm Beach attorney Kenneth G. Spillias, who represents the tribe, could not be reached for comment.
However, the tribe and other groups have other appeals pending that affect the FPL project. Under the Florida Electrical Power Plant Siting Act, the tribe is considered a "substantially affected person" and also could ask for an administrative law judge to hear an appeal.
The tribe, which asked the appeals court in September 2011 to review the Hendry Circuit Court ruling, argued that Hendry County Commissioners' unanimous vote to adopt the ordinance, rezoning the land from agricultural to Planned Unit Development, violated the county's Local Development Code. The tribe also contended commissioners avoided their responsibility to review the project's compatibility with the reservation and determine if it's consistent with the county's comprehensive plan.
The tribe cited concern over the impact on ecotourism, water, and wildlife. The tribe, the Sierra Club, Conservancy of Southwest Florida and the South Florida Wildlands Association opposed the plant, arguing the land is a habitat for the endangered Florida panther, crested caracara, eastern indigo snake and wood stork. They also questioned the impact on air quality and water consumption, noting the plant would use up to 7.5 million gallons of water daily to cool each of the three units.
The tribe and Conservancy also argued commissioners rezoned the land prematurely, without sufficient information, noting the plant can't be completed until a lawsuit over ownership of land that's needed is resolved.
The DCA was limited in its review because the tribe had already appealed county commissioners unanimous May 24, 2011, vote. As a result, the appeals court could only consider whether the circuit court judge applied the correct law and if the judge gave the tribe "procedural due process" to determine if it had been deprived of life, liberty or property. In contrast, the circuit judge also had to determine whether commissioners followed the law and rule whether commissioners' findings and vote were supported by competent, substantial evidence.
The appellate panel agreed county commissioners satisfied their obligation to protect wildlife by requiring approval from state and federal agencies overseeing water, wetlands, and wildlife habitat, and that the judge ruled the county sufficiently addressed the water issue because the project must be approved by the state Department of Environmental Protection and the South Florida Water Management District.