8. Certification of EIR

CEQA requires the lead agency to certify that the EIR was completed in compliance with CEQA, that the agency has reviewed and considered it prior to approving the project, and that the EIR reflects the agency's independent judgment. As previously discussed, the EIR was completed after notice and opportunity for public comment on the scope of the environmental review and the draft EIR, as required by CEQA. The final EIR compiles and reflects all written and oral comments made on the draft EIR, and responds to them, as required by CEQA. The EIR identifies the proposed project's significant and unavoidable environmental impacts, mitigation measures that will avoid or substantially lessen them, and identifies Alternative 2 as the environmentally superior alternative. We have reviewed and considered the information contained in the EIR, as well as parties' challenges to the adequacy of the EIR as discussed below. We certify that the EIR was completed in compliance with CEQA, that we have reviewed and considered the information contained in it, and that it reflects our independent judgment.

With respect to the parties' challenges to the EIR, we reiterate CEQA Guideline § 15151 which states in part, "Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts." As discussed more fully below, the EIR fully reflects the parties' disagreements and responds to them appropriately, and thus is in compliance with CEQA.

8.1. Evaluation of Alternative 3A

PACE and the Kirkpatricks assert that the EIR inappropriately failed to evaluate Alternative 3A on the basis of its erroneous conclusion that the use of an abandoned railroad right of way for 4100 feet of the route is legally infeasible. Specifically, based on communications with the railroad's Western Region Property Manager, the final EIR determined that the right of way is owned by Rail America, who does not wish to sell it. PACE alleges that, according to its own investigation after the final EIR issued, the right of way is owned by Tulare Valley Railroad, which is quite willing to sell it. Putting aside this apparent factual discrepancy regarding ownership of the railroad right of way, the assertion that the EIR did not evaluate Alternative 3A is incorrect. To the contrary, the EIR reconfigured Alternative 3A to parallel the railroad right of way at issue, and evaluated the alternative under this reconfiguration to determine its impacts. The suggestion that the EIR misidentified Alternative 3A's unique adverse impacts as a result of misidentifying the railroad right of way's owners is likewise incorrect: The unique adverse impacts identified in the EIR occur outside of the railroad right of way and therefore apply equally to both configurations.

Farm Bureau and Paramount Citrus assert that the EIR's reconfiguration of Alternative 3A unnecessarily increased impacts to agricultural resources. This assertion appears to incorrectly assume that the portion of Alternative 3A that would otherwise follow the railroad right of way would not cause agricultural impacts. To the contrary, regardless of whether it follows the railroad right of way or the land adjacent to it, that portion of the route would traverse lands that are almost entirely designated as prime farmland, unique farmland, or farmland of statewide importance.7 Thus, it is reasonable to assume that the difference between the configurations' agricultural impacts would be slight.

Farm Bureau, Paramount Citrus, Farmersville and the Kirkpatricks take issue with the EIR's determination that Alternative 3A's adverse environmental impacts are unique and that it is therefore unlikely to be superior to Alternative 2. Farm Bureau, Paramount Citrus and Farmersville contend that Alternative 3A's adverse impacts are not unique, but similar to other alternatives' impacts that the EIR found to be insignificant. To the contrary, the EIR adequately distinguishes Alternative 3A's adverse impacts from the similar impacts of other alternatives: Alternative 3A would place the transmission line

in close proximity of four private residences and surround a business on three sides; Alternative 3A's right of way would pass within 50 feet of four residences while, at approximately 300 feet away, Alternative 2's right of way would be much farther removed from its three impacted residences. Alternative 3A would surround an existing business operation on three sides by transmission lines and structures, while Alternative 2 would have no similar adverse impact. Alternative 3A would diagonally bisect several agricultural parcels; while, as Paramount Citrus notes, Alternative 2 would also bisect several agricultural parcels, it would do so in parallel to parcel boundaries and, in many instances, following existing farm roads.8 Alternative 3A would encroach on eight parcels in a proposed development shown in Tulare County's draft General Plan; Alternative 1 would bisect a single (albeit the preferred) parcel for future development of a retail site. Given these distinctions, the Commission cannot reasonably assume that Alternative 3A's impacts are insignificant by comparison to Alternative 1.

The Kirkpatricks claim that the EIR's analysis of Alternative 3A demonstrates a biased, deliberate effort by its preparers to avoid meaningful participation and input by the public. As evidence of this claim of professional misconduct, the Kirkpatricks assert that there was practically no contact initiated by the EIR team to follow up with the public on their comments; that the EIR fails to demonstrate that SCE is legally prevented from using its alleged easement over the Stone Corral Ecological Reserve; that the EIR's analysis of Alternative 3A (as discussed previously) demonstrates lack of a reasonable and good faith undertaking; and that the EIR erroneously concludes that Alternative 3A would adversely impact, rather than enhance, the poultry business which it would surround on three sides. The Kirkpatricks do not identify how, if at all, the EIR team's follow-up on public comments failed to comply with the requirements of CEQA. The Kirkpatricks do not identify how, if at all, SCE's alleged easement over the Stone Corral Ecological Reserve alters the proposed project's environmental impacts. As discussed previously, the EIR reasonably analyzed Alternative 3A. The Kirkpatricks' contrary opinion that surrounding the implicated business on three sides with transmission lines and structures is a positive, rather than negative, impact does not make the EIR inadequate (CEQA Guideline § 15151), much less demonstrate bias or misconduct. The Kirkpatricks' claims of bias and professional misconduct by the Commission's EIR team are entirely without merit.

Alternative 3A would not avoid or substantially lessen the project's significant impact to agricultural resources relative to the environmentally superior Alternative 2. Furthermore, it would cause unique adverse impacts that could potentially be significant. The EIR reasonably declined to fully evaluate Alternative 3A.

8.2.1. Paramount Citrus

Paramount Citrus asserts that the EIR did not adequately consider Alternative 2's impact on agricultural resources, particularly citrus. Paramount Citrus contends that, contrary to the assumption in the EIR, other crops including citrus trees cannot be productively farmed in the new right of way. As stated in the final EIR's response to Paramount Citrus's comments to this effect, all crops that are currently grown in Alternative 2's new right of way, including citrus, are currently grown in the existing Rector-Big Creek right of way. (Final EIR, Response O19-3 at 5-22.) Paramount Citrus's contention that this is irrelevant and insubstantial evidence that crops can be grown in the new right of way is without merit.

Paramount Citrus asserts that the EIR is deficient because it did not address the economic effects of the proposed project's physical impacts to agricultural productivity within the proposed project's rights of way, as permitted by CEQA Guideline § 15131. To the contrary, the EIR considered the impact of the proposed project on agricultural production in the rights of way and determined that, with mitigation, it is insignificant. (Final EIR at G-17 - G-18.)

Paramount Citrus asserts that the EIR does not adequately inform the public or decision makers about the extent of the project's impact on agricultural irrigation because, while Mitigation Measure 4.7-11b requires SCE to adjust the proposed right of way to avoid existing wells, the EIR defers an inventory of the impacted agricultural wells until a later time. Paramount Citrus offers no basis for us to conclude that this level of analysis is inadequate. To the contrary, the EIR identifies the potential for the proposed project to interfere with agricultural irrigation, and identifies mitigation for it, thus providing a sufficient degree of analysis to enable us to intelligently take into account the proposed project's impact on agricultural wells. (See CEQA Guideline § 15151.)

With regard to the EIR's analysis of impacts to local hydrology, Paramount Citrus asserts that the EIR incorrectly assumes that groundwater conditions throughout the San Joaquin Valley are uniform and the entirety of the project area overlies the San Joaquin aquifer and disregards comments by certified hydrologists opining that Alternative 3 is generally within in the alluvial area. To the contrary, the EIR explicitly recognizes that the hydraulic properties of the aquifer are heterogeneous and can vary notably. (Final EIR, Master Response on Groundwater at 4.4-2, and Response O18-1 at 5-19 - 5-20.)

Paramount Citrus asserts that the EIR offers no analysis in support of its conclusion that pole installation will not substantially impact groundwater flow under Alternatives 1, 2 and 6. To the contrary, the EIR provides ample analysis in support of this conclusion. (Final EIR, Master Response on Groundwater at 4.4-1 - 4.4-3.)

Paramount Citrus asserts that the EIR errs in concluding that Alternative 3 will have greater adverse impacts on groundwater hydrology than Alternative 2. This assertion misstates the EIR, which concludes that, with mitigation, none of the alternatives has a significant adverse impact on groundwater hydrology; the EIR does not compare the alternatives' relative, but less than significant, impacts, nor is it required to do so under CEQA.9

With respect to the EIR's conclusion that dewatering during construction will not cause a significant impact, Paramount Citrus asserts that the EIR fails to consider that the land surface and groundwater surface in the vast regional aquifer are located downhill from the shallow aquifers that will be impacted by construction of Alternatives 1, 2 and 6. To the contrary, the EIR explains that all the alluvial areas within the project area are part of the same aquifer system. (Final EIR, Response O18-4 at 5-20 - 5-21.)

Visalia asserts that the EIR is inadequate because it did not analyze the proposed project's inconsistencies with Visalia's General Plan policies and goals. To the contrary and as the EIR explained, CEQA does not require this analysis as Visalia does not have jurisdiction over the proposed project. (Final EIR, Response O25-7 at 5-98, and Response O10-8 at 5-10.)

Visalia cites to Application of Pacific Gas and Electric Company (PG&E) for CPCN for Jefferson-Martin 230 kV Transmission Project (2004) D.04-08-046 (Jefferson-Martin) and Application of San Diego Gas & Electric Company (SDG&E) for CPCN for Sunrise Powerlink Transmission Project (2008) D.08-12-058 (Sunrise Powerlink) in support of its assertion that, in practice, the Commission closely analyzes inconsistencies between projects and general plans and often adopts mitigation to avoid them. More precisely, while Jefferson-Martin and Sunrise Powerlink considered such inconsistencies, they did so, not in the context of the environmental review of impacts to land use policies, but rather in the context of community values and for purposes, not of requiring additional mitigation, but rather of selecting the route alternative. Likewise, we address Visalia's assertions of the proposed project's inconsistencies with its General Plan in this context of community values for purposes of selecting a route alternative, as discussed in Section 9, below.

Visalia asserts that, in analyzing the proposed project's negative impacts on the city's aesthetic resources, the EIR did not adequately document the city's scenic views of the Sierra Nevada Range, or depict the proposed project's visual contrast against them, from various vantage points in the city and public recreational areas. The final EIR fully reflects Visalia's assertions and provides a thorough and reasonable explanation of its analysis. (Final EIR, Responses O25-9 through O25-15 at 5-99 - 5-107.) Visalia's disagreement with the EIR's analysis does not make the EIR inadequate. (CEQA Guideline § 15151.)

Visalia asserts that the EIR erroneously concludes there would be no impact because there are no "designated" scenic vistas in the vicinity of the proposed project. To the contrary, the EIR appropriately identified scenic resources (including scenic vistas) in two ways: by evaluating a visual resource's visual quality, viewer types and volumes, and viewer exposure (Draft EIR at 4.1-1 - 4.1-2), and by identifying visual resources that have been designated as "scenic" in a city or county general plan or zoning ordinance (id. at 4.1-21 - 4.1-23). While the EIR did not identify any "designated" scenic vistas in the vicinity of the proposed project, it identified numerous scenic resources in the area and adopted mitigation measures to reduce the project's adverse impact on them. (Id. at 4.1-38 - 4.1-52.)

Visalia notes that, independent of CEQA, Pub. Util. Code § 1002(a) imposes on the Commission the duty to consider the proposed project's impacts to recreation resources and aesthetic values; Visalia asserts those impacts are highly relevant and must be mitigated "in this context." To be sure, these impacts are highly relevant and we consider them. However, as set forth in the scoping memo for this proceeding and consistent with Commission precedent,10 we do so in the course of our environmental review pursuant to CEQA.

Visalia contends that the EIR is inadequate because it did not identify the impact of Alternatives 2, 3 and 6 on the planned River Run Ranch development as significant or, consequently, require mitigation to avoid or lessen it. Visalia presented evidence that these project alternatives will reduce the value of homes selling in this planned development by an estimated $600,000 to $1 million. Visalia asserts that this situation is similar to the situation in Application of SCE for CPCN for Tehachapi-Vincent Transmission Project (2007) D.07-03-045 (Tehachapi-Vincent), in which the Commission found that the proposed transmission project would have impeded construction of a planned development and required alternative project routing to avoid that impact out of a concern about the associated adverse economic impact. More accurately, Tehachapi-Vincent found that the project alternative in question would have a significant and unavoidable impact on the planned residential development because it would preclude the use of land parcels within the new right of way. (Tehachapi-Vincent at 39-40.) Here, in contrast, the proposed project would not encroach on the planned development, and the EIR reasonably determined that the proposed project's proximity to the planned development does not cause a significant adverse impact; accordingly, no mitigation is required.

Farmersville asserts that the EIR did not adequately consider the economic and social impacts resulting from Alternative 1's bisection of the site of a planned commercial/industrial park in Farmersville because it inappropriately determines that the planned development is speculative. This assertion misstates the final EIR. In response to Farmersville's comments asserting that the transmission line's bisection of the site render it unsuitable for development, the EIR explains why transmission lines are not incompatible with industrial and general development. (Final EIR, Response O10-7 at 5-10.) In response to a comment from William Pensar making the same assertion as Farmersville, the EIR states that the commenter's assertion that Alternative 1 will render the site undesirable for the planned development is speculative. (Final EIR, Response I66-2 at 6-37.) The EIR adequately assessed the economic and social impacts resulting from Alternative 1's bisection of the planned commercial/industrial park.

Paramount Citrus asserts that revised Mitigation Measure 4.7-11b, which requires SCE to relocate wells that cannot be accommodated by adjusting the proposed right of way, is infeasible because it will be extremely difficult to locate sufficient well sites that will produce the same quantity and quality of water to be replaced, particularly in the bedrock areas of Alternatives 1, 2 and 6. Paramount Citrus argues that, as a result, those alternatives have a significant and unmitigated impact. The fact that a proposed mitigation measure may be difficult does not make it infeasible. Furthermore, it is speculative to assume that, in the event that SCE cannot adjust the proposed right of way to avoid existing wells, it will not be able to locate replacement well sites.

Farm Bureau recommends that, in consideration of Tulare County agricultural interests, the Commission should establish an agricultural advisory committee comprised of existing agricultural organizations, community based groups that have emerged as a result of the proposed project, other participants that have expertise in such areas as pest control, water well development and irrigation systems, and a limited number of individual growers; the committee would be expected to avoid or resolve many conflicts and reduce unavoidable project impacts. As stated in the EIR, the formation of such a committee does not meet CEQA Guideline § 15126.4(a)(2)'s requirement that mitigation measures be fully enforceable through permit conditions, agreements, or other legally binding instruments. We address the reasonableness of Farm Bureau's recommendation in the context of our consideration of community values pursuant to Pub. Util. Code § 1002(a)(1) in Section 9, below.

Farm Bureau suggests that Mitigation Measure 4.7-11b requires revision in order to ensure its enforceability. Specifically, in the event that the project requires replacement of a groundwater well, Mitigation Measure 4.7-11b requires SCE to demonstrate that the new location is capable of producing water of equal quantity and quality. Farm Bureau, along with PACE, asserts that the measure should be revised to prohibit SCE from commencing construction until it satisfies this requirement, in order to meet the requirement of CEQA Guideline § 15091(d) that it be enforceable. The mitigation measure, as written, does not appear to be unenforceable, Farm Bureau and PACE do not articulate how or why it is unenforceable, and the recommended revision would unreasonably delay commencement and completion of the project. For these reasons, we reject Farm Bureau's and PACE's recommendation.

Farm Bureau notes that revised Mitigation Measure 4.3-1b requires SCE to obtain approval of its use of chemicals near agricultural areas from the Tulare County Farm Bureau, and submits that the correct authority is the Tulare County Agricultural Commissioner, who is tasked with the enforcement of state regulation of the safe use of pesticides. We make that correction.

Farm Bureau recommends that the Dispute Resolution Process contained in the mitigation program be revised to "provide for an expedited resolution process" and to establish "a separate process and Commission designee [...] for time sensitive issues." As written, the Dispute Resolution Process provides, as the first step in the event of a compliance dispute, the dispute shall be directed to the Commission's designated project manager for informal resolution. In the event that informal resolution is unsuccessful, an affected party may seek resolution by the Commission's Executive Director (the Executive Director or designee shall meet with the parties within 10 days of notice of dispute, and subsequently issue an Executive Director's Resolution); if unsatisfied by the Executive Director's Resolution, an affected party may appeal it to the full Commission. Step one of the Dispute Resolution Process provides a reasonable opportunity for speedy informal resolution by a Commission designee, which reasonably addresses Farm Bureau's concern.

Farm Bureau takes issue with the mitigation measure addressing walnut productivity in the rights of way. Specifically, as walnut trees cannot be productive when cropped to the 15-foot height restriction for trees located within transmission rights of way,11 Mitigation Measure 4.2-4 requires increasing the height of project structures to allow for a maximum walnut tree height of 30 feet to be maintained beneath the 220 kV conductor, which the EIR determines will mitigate this impact to a less than significant level. Farm Bureau asserts that this measure is as ambiguous as the 15-foot height restriction because it does not state if it is a maximum or minimum height. In view of our extensive experience with General Order 95 (initially adopted in 1941), we reject Farm Bureau's assertion that the height restriction is ambiguous. Farm Bureau asserts that the measure unduly presumes that all walnut trees will maintain the same productivity level based on the same height. To the contrary, Mitigation Measure 4.2-4 explicitly recognizes that the pruning may reduce productivity to varying degrees and thereby result in an economic impact to farmers; those impacts would be addressed by SCE during its right of way acquisition process.

Farm Bureau asserts that the final EIR misinterpreted its comment addressing apiaries, and "reiterates the recommendation to notify landowners in advance of energization to ensure hives are adequately distanced during energization to avoid disruption." To the contrary, Farm Bureau's comment on the draft EIR makes no such recommendation. Its comment notes concern with the impact of power line electric fields generally on bees, recommends that SCE be required to survey the approved route to determine if apiaries will be potentially impacted, and suggests that this would be an impact on which its proposed agricultural advisory committee might beneficially consult. (Final EIR, Comment Letter 020, p. 10.) The EIR reasonably interpreted and responded to

Farm Bureau's comment.12

Farm Bureau suggests that Mitigation Measure 4.2-2, which requires SCE to obtain one acre of agricultural conservation easements for every acre of permanently converted farmland that is converted prime farmland, should be revised to mandate that SCE obtain those easements through an existing conservation bank. Farm Bureau offers no rationale for restricting SCE's options in this manner, and none is apparent to us. We reject Farm Bureau's recommendation.

Visalia asserts that, in consideration of the community's values of maintaining its unique scenic vistas and small town characteristics and providing for orderly growth, open space and park lands, the EIR should require mitigation measures including the development of a landscaped, open space parkway, the formation of a conjunctive use committee, and other visual relief measures. The purpose of the EIR is to identify significant environmental impacts and measures, if any, to mitigate them. As discussed previously, the EIR properly determined that, as mitigated, the proposed project will not significantly impact Visalia's aesthetic resources or relevant land use policies. We address the issue of whether Visalia's recommendations are mandated by our consideration of community values pursuant to Pub. Util. Code § 1002(a)(1) in Section 9.2, below.

Visalia asserts that, consistent with General Order No. 131-D, Section XIV.B and Application of SCE for CPCN for Devers-Palo Verde No. 2 Transmission Line Project (2007) D.07-01-040 (Devers-Palo Verde No. 2), the Commission should require SCE to consult with Visalia to resolve conflicts between the project and the city's General Plan. To the contrary, Section XIV.B does not mandate such consultations. Rather, Section XIV.B's mandate concerns jurisdictional disputes between the utility and local agencies. As the EIR correctly explains, while a utility project is not subject to local land use plans, it must obtain any required non-discretionary local permits; Section XIV.B requires the utility to consult with the local agency in the event that there is a dispute regarding whether such non-discretionary local land use permits are required. Accordingly, in Devers-Palo Verde No. 2, the utility and the tribal authority disputed whether the utility was required to obtain a conditional use permit for the tribal land, and the Commission appropriately adopted the mitigation measure that invoked Section XIV.B. (Devers-Palo Verde No. 2 at 91-92.) In contrast, in this matter, there is no jurisdictional dispute between Visalia and SCE.

SCE argues that Alternative 1 is the environmentally superior alternative because, while all of the alternatives require the same mitigation to address their potential impacts to cultural and agricultural resources, Alternative 1 is the only alternative that has no potential impact to biological resources. In its comments on the proposed decision, SCE elucidates its argument by stating that, as none of the alternatives avoids or substantially lessens a significant impact to cultural or agricultural resources, they should be considered to be on par with respect to those impacts; and, as only Alternative 1 avoids the potential for biological impacts, it should be found to be superior to all other alternatives including those that, with mitigation, avoid or substantially lessen their potential biological impact. By this logic, an alternative that impacts a thousand acres of agricultural resources may be deemed to be on par with an alternative that impacts a single acre. Furthermore, it is not apparent that an alternative that never poses a potential environmental impact is environmentally superior to one that, with mitigation, succeeds in entirely avoiding it. We disagree that the Commission should (and CEQA permits it to) ignore the relative ultimate impacts of alternatives in identifying the environmentally superior alternative, and reject SCE's argument that Alternative 1 is the environmentally superior alternative.

7 As shown by comparing the maps, or "road story," of Alternative 3 (Draft EIR, Appendix C, at 20 of 34) to the map of important farmlands (Draft EIR, Figure 4.2-1.)

8 See Draft EIR, Appendix C, Section 1, at 17-24 of 27.

9 This argument also appears to contradict Paramount Citrus's assertion that pole installation under Alternatives 1, 2 and 6 will have greater adverse impacts on groundwater resources than under Alternative 3.

10 Application of Lodi Gas Storage for CPCN for Gas Storage Facilities (2000) D.00-05-048 (Lodi Gas Storage) at 28. ("[T]he appropriate place for the parties to address [project's influence on environment] was in the EIR, so that the parties would not duplicate their efforts in both portions of the proceeding.")

11 See General Order 95.

12 Farm Bureau suggests that this is an example of the type of process with which an agricultural advisory committee could assist. Although we do not require the establishment of an agricultural advisory committee as a condition of project certification, we invite Farm Bureau to bring these types of suggestions to SCE's attention throughout the construction process, and we expect SCE to be responsive to reasonable community concerns.

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