3. California Environmental Quality Act (CEQA)

Pursuant to CEQA and Rule 2.4¹ of the Commission's Rules of Practice and Procedure, the Commission examines projects to determine any potential environmental impacts in order that adverse effects are avoided and environmental quality is restored or enhanced to the fullest extent possible under CEQA.

In the Proponent's Environmental Assessment and Response, SnowCrest proposed construction activities will generally include the installation of a DSLAM remote terminal interconnected with a pre-existing adjacent remote terminal.

These activities fall within the following classes of projects that are likely exempt from CEQA and for which neither an Environmental Impact Report nor a Negative Declaration is required.

· Class 1 Exemption: operation, repair, maintenance, leasing or minor alteration of existing public or private structures and facilities, with negligible or no expansion of an existing use. This includes existing facilities used to provide public utility services. 14 CCR § 15301.

· Class 3 Exemption: construction including water main, sewage, electrical, gas and other utility extensions of reasonable length to serve such construction. This includes the construction of limited numbers of new small facilities or utility extensions. 14 CCR § 15303.

SnowCrest's proposed activities involve construction of reasonably short utility extensions (Class 3). In order to provide its service, SnowCrest will install its remote terminals adjacent to existing remote terminals owned by AT&T. The DSLAM equipment will be placed in enclosures located a few feet from existing AT&T remote terminals, and connect to the AT&T remote terminals with copper wires placed in a trench typically fewer than 10 feet in length. Exemption of these activities is consistent with Commission precedent. SnowCrest's proposed new construction activities are similar to those undertaken by other carriers that we have decided are categorically exempt from CEQA. See, e.g, D.06-04-063 (ClearLinx Network Corporation); D.06-04-067 (CA-CLEC LLC).

SnowCrest requests approval to utilize a procedure for expedited review of its projects once it is aware of a specific site(s) in which it plans construction. The proposed procedure, described in Application Exhibit B, tracks the expedited review procedure that we have approved for other carriers. Such a process will expedite CEQA review and is appropriate for the type of construction outlined here, which will be likely categorically exempt. By establishing this expedited review process, we are able to review the information on a specific project to confirm that it is categorically exempt from CEQA or explain why further environmental review is required. At the same time, the proposed CEQA review process will enable SnowCrest to undertake construction of its projects in an efficient manner without experiencing delays caused by an unnecessarily protracted CEQA review.

Similar to the procedure approved for other carriers, the following procedure will be used to obtain Commission approval of SnowCrest's claimed CEQA exemptions for proposed construction projects:

· SnowCrest will provide the Commission's Energy Division with:

o A detailed description of the proposed project, including:

· Customer(s) to be served;

· The precise location of the proposed construction project; and

· Regional and local site maps.

o A description of the environmental setting, to include at a minimum:

· Cultural, historical, and paleontological resources;

· Biological resources; and

· Current land use and zoning.

o A construction workplan, to include:

· Commission Preconstruction Survey Checklist-Archaeological Resources;

· Commission Preconstruction Survey Checklist-Biological Resources;

· A detailed schedule of construction activities, including site restoration activities;

· A description of construction/installation techniques;

· A list of other agencies contacted with respect to siting, land use planning, and environmental resource issues, including contact information; and

· A list of permits required for the proposed project.

o A statement of the CEQA exemption(s) applicable to the proposed project; and

o Documentation and factual evidence sufficient to support a finding that the claimed exemption(s) is (are) applicable.

· The Energy Division will review SnowCrest's submission for the proposed project to confirm that the claimed exemption(s) from CEQA are applicable.

· Within 21 days from the date of SnowCrest's submittal, the Energy Division will issue either:

o A Notice to Proceed (NTP) and file a Notice of Exemption with the State Clearinghouse, Office of Planning and Research, or

o A letter of denial stating the specific reasons why the claimed exemption(s) are not applicable to the proposed project.

We have reviewed the application and Supplement and find that:

· SnowCrest's proposed facilities-based project activities are very limited;

· These activities would in almost all circumstances be very likely to qualify for an exemption from CEQA; and

· The proposed process for reviewing the applicability of CEQA exemptions to SnowCrest's facilities-based projects is not only adequate for the Commission's purposes as CEQA Lead Agency, but is also in the public interest because it enables SnowCrest to respond in a timely manner to requests for service without the delay or burden of a full CEQA review when such review is unnecessary.

We therefore approve SnowCrest's proposed process for Commission review of claimed CEQA exemptions for construction projects undertaken pursuant to SnowCrest's full facilities-based authority, based on the specific facts of this case with the following modifications related to the Commission's Energy Division review and approval or disapproval of the proposed exemptions.

· If the Energy Division disapproves SnowCrest's claimed CEQA exemption(s), and issues a letter of denial to SnowCrest, SnowCrest must either re-design the specific project and facilities and then reapply for a finding of exemption from CEQA, or file a formal application with the Commission seeking the requisite approval and full CEQA review, before commencing any construction activities.

SnowCrest shall not perform any full facilities-based construction activities without first obtaining an NTP from the Energy Division or authorization by the Commission after the requisite environmental review.

We have previously determined that the CPCN require that competition be allowed in the provision of competitive local exchange service,
Rulemaking 95-04-043/Investigation 95-04-044. Granting this application will benefit the public interest by expanding the availability of technologically advanced telecommunications services within the state.

¹ Unless otherwise noted, items labeled "Rule" are from the Commission's Rules of Practice and Procedure.