4. Notice and Procedural Issues
Due process requires that affected parties be provided adequate notice and opportunity to be heard, such that they can timely protest and participate in the Commission's environmental review and analysis of the Proposed Project. For permits to construct (PTCs), the utility must comply with notice requirements described in GO 131-D, Section XI.A. In pertinent part, Section XI.A requires the following forms of notice:
1. By direct mail to:
a. The planning commission and the legislative body for each county or city in which the proposed facility would be located, the CEC [California Energy Commission], the State Department of Transportation and its Division of Aeronautics, the Secretary of the Resources Agency, the Department of Fish and Game, the Department of Health Services, the State Water Resources Control Board, the Air Resources Board, and other interested parties having requested such notification. The utility shall also give notice to the following agencies and subdivisions in whose jurisdiction the proposed facility would be located: the Air Pollution Control District, the California Regional Water Quality Control Board, the State Department of Transportation's District Office, and any other State or Federal agency which would have jurisdiction over the proposed construction; and
b. All owners of land on which the proposed facility would be located and owners of property within 300 feet of the right-of-way as determined by the most recent local assessor's parcel roll available to the utility at the time notice is sent.
2. By advertisement not less than once a week, two weeks successively, in a newspaper or newspapers of general circulation in the county or counties in which the proposed facilities will be located, the first publication to be not later than ten days after filing of the application; and
3. By posting a notice on-site and off-site where the project would be located.
PG&E represents that it has complied with the above applicable notice requirements.
Notice of the Application itself also appeared in the Commission's June 5, 2009 Daily Calendar. On August 3, 2009, the Cloud 9 Vineyards, LLC (Cloud 9 Vineyards) timely filed a protest to the Application on the grounds that Rule 3.12 of the Commission's Rules of Practice and Procedure (Rules) requires the proposed power line to be installed underground and the failure to do so would have an adverse impact on the scenic value or the area.
PG&E replied to Cloud 9 Vineyard's protest on August 27, 2009. PG&E asserts that Rule 3.12, which codifies the rules set by the Commission in Decision (D.) 80864 (74 CPUC 454), applies only to overhead distribution facilities (which operate at less than 50 kV), not to power line projects like the Cabrillo - Santa Ynez 115 kV Proposed Project. Further, the rule applies to future projects, not to a reconductored power line using the existing right of way corridor and not making any changes to the existing visual baseline environment.
We agree with PG&E that the undergrounding requirements of Rule 3.12 do not apply to the Proposed Project due to the size of the Cabrillo - San Ynez power line. Rule 3.12 was developed in D.80864 to implement the directive of Public Utilities Code Section 320, which declares it is "the policy of the state to achieve, whenever feasible and not inconsistent with sound environmental planning, the undergrounding of all future electric and communication distribution facilities which are proposed to be erected in proximity to any highway designated a state scenic highway. . . ." In D.80864, the Commission notes that distribution facilities are generally lines with maximum voltage in the range of 12-33 kVs. Since this decision, the Commission has adopted uniform definitions in GO 131-D namely that a transmission line is a line designed to operate at or above 200 kV, a power line is a line designed to operate between 50 and 200 kV, and a distribution line is a line designed to operate under 50 kV."4
In addressing the visual impacts of the Proposed Project on the Cloud 9 Vineyards, PG&E asserts that at the protestant's property, two existing poles will be replaced with new light-duty, direct-buried steel poles that will be similar in appearance, with a slightly smaller diameter and the same height or up to ten feet taller than the existing approximately 55-foot high wooden poles. The IS/MND confirms PG&E's statements regarding the visual impact on Cloud 9 Vineyards and concludes that "Impacts would be less than significant and no mitigation would be required."5
We therefore find that the Application was properly noticed, and an evidentiary hearing is not necessary in order to address the Rule 3.12 and scenic impact issues raised by Cloud 9 Vineyards in its August 3, 2009 protest.
4 GO 131-D, Section 1.
5 January 2010 draft IS/MND, at 3.1 - 7.
