5. Summary of General Order (GO) 170
Our experience with CEQA over the years has shown that nearly all of the construction projects typically undertaken by California's telephone corporations fall within an exclusion or an exemption from CEQA or were included with the CEQA review of the CPCN application. Very few telephone corporation construction projects require full CEQA review by this Commission. Accordingly, our primary objective in developing GO 170 has been to create an orderly process with clear requirements for claiming exclusion or exemption from CEQA. This objective is fully consistent with our dual goals for this proceeding of complying with the letter and spirit of CEQA while encouraging the ubiquitous availability of state-of-the-art telecommunications services.
While we do not adopt either the proposal of the Joint Carriers or the proposal of the Joint CLECs in its entirety, we do adopt portions of both of these proposals, in addition to some of the proposals and comments of the other parties. The Commission aims to adopt a CEQA process for telecommunications carriers that complies with the law, is efficient, and services the needs of the rapidly developing communications marketplace.
GO 170 begins with general provisions that require the Commission to apply CEQA equally to all California telephone corporations and require telephone corporations to design all construction projects in a manner that reduces environmental impacts. The GO also explicitly acknowledges that all CPCNs grant the same construction authority to telephone corporations, the authority to construct projects necessary to provide the services consistent with telephone corporations' Commission-granted operating authority. GO 170 imposes procedural conditions based on the significance of the proposed construction activity that will allow the Commission to meet its responsibilities pursuant to CEQA.
In the recent past, the Commission adopted distinctions such as "Limited Facilities Based" and "Full Facilities Based" authority when approving CPCNs. These distinctions were used to implement the requirements of CEQA by linking authorized construction activities to the certificate authorization. Thus, Limited Facilities Based certificates authorized telephone corporations to perform activities that were deemed exempt from CEQA by the Commission. Full Facilities Based certificates authorized telephone corporations to perform construction activities that were not exempt from CEQA, but required telephone corporations to submit applications for specific projects so that the Commission could conduct CEQA review on those non-exempt projects. These distinctions were not directly related to the type of phone service a telephone company was seeking to offer to California consumers, but rather, only related to the scope of the contemplated construction activity necessary to provide those services. GO 170 eliminates the need for these distinctions by applying CEQA based on the specific construction activities proposed by telephone corporations and not the services that they are authorized to provide via their CPCN.
The new CEQA procedures do not in any way alter the operational authority previously granted to a telephone corporation. However, the GO may change the processes by which the telephone corporations must submit information to the Commission in order for the Commission to review the environmental impacts of specific projects.
The GO sets out three levels of Commission review for telephone corporations' construction projects. GO 170 contemplates that all routine activities will be covered by Sections III and IV.A. The first level, found in Section III, is an exclusion from CEQA review primarily based on the fact that these enumerated activities do not result in any physical change to the environment.17 Using existing facilities, either owned by the telephone corporation or as a reseller of services provided by such facilities, and installing new equipment in existing structures, are prominent examples of exclusions from CEQA review.
The Commission has extensive experience with the type of construction activities in the enumerated list of exclusions in Section III of the GO 170. In the Commission's experience, it can be seen with certainty that the activities contained in Section III do not have the potential to result in significant impacts on the environment.18 Even though the activities set forth in Section III of GO 170 would also likely qualify for Categorical Exemptions from CEQA pursuant to CEQA Guidelines 15300, et seq., the Commission will treat them as enumerated activities in GO 170. The reason for doing so is to ease the administrative burden for activities that the Commission has routinely found have no potential to cause environmental impacts.
The GO offers two means for telephone corporations to claim exemption from CEQA in Section IV. The first option allows a telephone corporation to claim exemption without notice to the Commission and by retaining records of the projects for three years for which specified exemptions have been claimed as set forth in CEQA Guidelines Sections 15301, 15302, 15303, 15304, 15332, and 15359. The specified exemptions are for operating, maintaining, replacing or reconstructing existing facilities, new construction or conversion of small structures, minor alterations to land, in-fill development projects and emergency projects involving a clear and imminent danger to life, health or property. No other CEQA exemptions can be claimed via this option.
For example, CEQA Guidelines Section 15301 exempts from the provisions of CEQA existing facilities, including operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. Carriers shall note that "existing facilities" refers to actual utility facilities and not to utility systems. That is, a specific facility may be maintained, replaced, or reconstructed, but new facilities shall not be installed to provide enhanced performance of existing systems.
Under CEQA Guidelines Section 15302, replacement or reconstruction are exempt from the provisions of CEQA. This includes replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced, and also undergrounding of utility distribution systems. We note that capacity refers to the physical footprint of the facilities and not their function. Functional upgrades to facilities, including replacing copper with fiber, are considered replacement and/or reconstruction.
CEQA Guidelines Section 15303 provides that certain new construction or conversion of small structures are exempt from the provisions of CEQA. This includes "[w]ater main, sewage, electrical, gas, and other utility extensions, including street improvements, of reasonable length to serve such connections."19
CEQA Guidelines Section 15304 exempts minor alterations to land from the provisions of CEQA. These minor alterations include grading and "[m]inor trenching and backfilling where the surface is restored."20
Under CEQA Guidelines Section 15332, in-fill development projects are exempt from the provisions of CEQA. These in-fill projects must meet certain conditions, including be consistent with all applicable zoning designations and regulations, "[t]he project site has no value as habitat for endangered, rare or threatened species,"21 and "[a]pproval of the project would not result in significant effects relating to traffic, noise, air quality or water quality."22
Lastly, pursuant to CEQA Guidelines Section 15359, emergency projects are exempt from the provisions of CEQA. CEQA Guidelines Section 15359 defines "Emergency" as a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to life, health, property, or essential public services. Emergency includes such occurrences as fire, flood, earthquake, or other soil or geologic movements, as well as such occurrences as riot, accident, or sabotage.23
The second option for claiming exemption requires filing a request with the Commission's Energy Division staff (Staff) and obtaining a Notice to Proceed, and allows the telephone corporation to claim any valid and applicable exemption from CEQA. A telephone corporation must file a Notice of Proposed Construction and supporting materials as a Tier 2 advice letter with Staff. The Notice of Proposed Construction must include a verified statement demonstrating that the proposed construction project is exempt from CEQA review and must be served on local agencies with a permit to issue in the project area, other interested parties, and provided over the Commission's on-line reporting system when available.24 Parties may protest the filing. Staff then evaluates the filing, including any protests. If the protests meet the criteria for valid protests under GO 96-B, Staff must prepare a Resolution for Commission disposition of the advice letter. If there are no valid protests, Staff may issue a Notice to Proceed. The Staff finding is subject to appeal through the existing advice letter process found in GO 96-B.
It should be noted that telephone corporations that propose to construct Distributed Antenna Systems (DAS) are specifically required to provide notice to all local agencies with a permit to issue in the project area, even if the DAS project falls in one of the enumerated activities that do no required further review pursuant to CEQA under Section III of GO 170. Also, installation of new poles is not included in the enumerated list in Section III of GO 170 and is subject to the Tier 2 advice letter process set forth in Section IV.B. of the GO. While we believe that installation of new poles could fall within the enumerated list in Section III of GO 170, we also recognize that the Cities have an interest in the location of new poles in the communities.
The final level of Commission review for proposed construction projects is set out in Section V of GO 170 and provides for full CEQA review. The Commission has existing rules for full CEQA review that require an application and proponent's environmental assessment and are found in the Commission's Rules of Practice and Procedure.
GO 170 Section VI provides for enforcement. The Commission specifically retains all its authority to take such actions as the public interest may require to ensure that all California telephone corporations comply with GO 170 and other applicable law and regulations. The Commission also delegates authority to the Executive Director or the Energy Division Director to take immediate actions necessary to halt an on-going violation of the General Order by a California telephone corporation. Where the Director finds that a violation of CEQA or Commission law or regulations is occurring, the Director may issue a Stop Work Notice requiring immediate cessation of the violation. A telephone corporation may appeal a Stop Work Notice to the Executive Director. If the appeal is rejected by the Executive Director, this determination must be ratified by the Commission via Resolution.
17 CEQA applies to projects that "may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment." (Public Resources (Pub. Res.) Code, § 21065.)
18 CEQA Guidelines Section 15061(b)(3).
19 CEQA Guidelines Section 15303(d).
20 CEQA Guidelines Section 15304(f).
21 CEQA Guidelines Section 15332(c).
22 CEQA Guidelines Section 15332(d).
23 CEQA Guidelines Section 15359.
24 Telephone and telegraph corporations subject to GO 170 must provide this information over the Commission's on-line reporting system once that system is up and running.
