8. Assignment of Proceeding
John A. Bohn is the assigned Commissioner and Maribeth A. Bushey is the assigned Administrative Law Judge in this proceeding.
Findings of Fact
1. From time to time, California telephone and telegraph corporations may require additional facilities and equipment to pursue the provision of public utility service to the public and constructing such facilities may result in a change in the physical environment.
2. State policy supports continued deployment of state-of-the-art telecommunications services and facilities.
3. GO 170 sets forth clear, pragmatic and effective policies, processes, and requirements for complying with the Commission's obligations under CEQA.
Conclusions of Law
1. This Commission must review construction projects by telephone corporations as defined in California Public Utilities Code section 234 and telegraph corporations as defined in California Public Utilities Code Section 236 for compliance with CEQA.
2. This Commission should adopt rules to provide for the orderly evaluation of proposed construction projects by California telephone and telegraph corporations for compliance with the CEQA.
3. Any rules for evaluating telephone and telegraph corporations' construction projects for compliance with the CEQA should be even-handed and not dependent on operating authority.
4. California telephone and telegraph corporations should obtain appropriate operating authority prior to or simultaneously with seeking Commission approval of proposed construction projections pursuant to the CEQA.
5. GO 170 attached to today's decision as Attachment A sets forth reasonable and even-handed procedural rules and substantive policies for this Commission's evaluation of construction projects by telephone and telegraph corporations as required by the CEQA.
6. GO 170 should be adopted and all telephone and telegraph corporations should comply with its terms.
7. This proceeding should be closed.
FINAL ORDER
IT IS ORDERED that:
1. General Order 170 attached to this decision as Attachment A is adopted and all California telephone and telegraph corporations must comply therewith.
2. Rulemaking 06-10-006 is closed.
This order is effective today.
Dated December 16, 2010, at San Francisco, California.
DIAN M. GRUENEICH
JOHN A. BOHN
NANCY E. RYAN
Commissioners
We will file a joint dissent.
/s/ MICHAEL R. PEEVEY
President
/s/ TIMOTHY ALAN SIMON
Commissioners
Attachment A - General Order 170
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General Order No. 170
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
COMMISSION REVIEW PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT OF THE CONSTRUCTION OF TELEPHONE AND TELEGRAPH LINES LOCATED IN CALIFORNIA
Adopted December XX, 2010 Effective January XX, 2011
Decision 10-12-XXX
I. GENERAL PROVISIONS
A. Purpose: These rules implement the California Public Utility Commission's (Commission) responsibilities pursuant to the California Environmental Quality Act (CEQA) to review possible environmental impacts of construction projects consisting of any new telephone or telegraph line; or the repair, replacement, modification, alteration, or addition to an existing telephone or telegraph line in the State of California.
B. Applicability: These rules apply to all telephone and telegraph corporations, as defined in Public Utilities Code Sections 234 and 236, subject to the jurisdiction of this Commission and to any other applicant seeking discretionary authority from the Commission relating to telephone lines as defined in Section 233 and telegraph lines as defined in Section 235. This General Order does not preclude the applicability of General Order 159-A to cellular service providers constructing commercial mobile radio service facilities. General Order 159-A, and not General Order 170, shall apply for construction of cellsites.
C. General Requirement: California telephone and telegraph corporations shall design and engineer their projects in a manner that avoids, reduces, and mitigates any potential environmental impacts. Construction activities shall not commence except as specified in this General Order.
D. Definitions:
a. CEQA - Public Resources Code Sections 21000, et seq., and the CEQA Guidelines codified at 14 California Code of Regulations Sections 15000, et seq.
b. Construction Project - an effort by or on behalf of a telephone or telegraph corporation to build or assemble a telephone or a telegraph line or portion thereof that may result in a direct or indirect physical change to the environment. A Construction Project includes all reasonably foreseeable construction by the carrier that is part of the same project.
c. Full CEQA Review - Commission review of a proposed construction project that is subject to CEQA and does not qualify for an exemption from CEQA review, which requires a Commission decision on the specific proposed construction project.
II. COMMISSION AUTHORIZATION
Construction of facilities shall be consistent with the authority granted in a California telephone and telegraph corporations' Certificate of Public Convenience and Necessity (CPCN) and shall not commence until a CPCN is granted pursuant to Public Utilities Code Section 1001. CPCNs, past and prospective, authorize construction projects to commence if one or more of the following are applicable:
A. Construction of the facilities do not rise to the level of a CEQA project because the Commission has determined that it can be seen with certainty that there is no possibility that the construction of those facilities may have a significant effect on the environment pursuant to CEQA Guidelines Section 15061(b)(3).
B. Construction of the facilities do not rise to the level of a CEQA project because they fall within the list of enumerated activities contained in Section III of this General Order.
C. The Commission determines that the construction of the facilities are exempt from CEQA review, even though they are not contained within the list of enumerated exemptions in this General Order, and all of the following occur:
1. Proper notice has been served pursuant to this General Order;
2. Notice has been provided via the Commission's Online Reporting System (ORS) once ORS is up and running;
3. No exceptions to any claimed exemptions apply; and
4. A Notice to Proceed has been issued by Commission Energy Division Staff (Staff).
D. The proposed facilities have undergone a full CEQA review and a Final Negative Declaration or Final Mitigated Negative Declaration (MND) has been adopted, or a Final Environmental Impact Report (EIR) has been certified, by this Commission as either a Lead or Responsible Agency, as defined in CEQA Guidelines Sections 15050, 15053, 15367, and 15381; and the Commission has made Findings and adopted a Statement of Overriding Considerations pursuant to CEQA, if applicable.
E. The proposed facilities have already undergone CEQA review.
III. ACTIVITIES THAT DO NOT REQUIRE REVIEW BY THE COMMISSION PURSUANT TO CEQA
The following activities are authorized to be performed by a California telephone and telegraph corporation in compliance with its Certificate of Public Convenience and Necessity and do not rise to the level of a project pursuant to CEQA. The Commission has determined that it can be seen with certainty that these activities would not have a significant effect on the environment and do not require further Commission review pursuant to CEQA:
A. Reselling local or interexchange service.
B. Service drops of unlimited length.
C. Use of existing facilities, including, but not limited to, conduit, poles, and other structures.
D. Installation of replacement poles, guy wires and anchors.
E. Installation of facilities in existing conduit.
F. Installation of underground or at-grade hand-holes, pull-boxes, and conduit vaults as necessary for any authorized activity.
G. Installation of above-ground vaults and splice boxes as necessary for any authorized activity.
H. Installation of facilities within existing structures.
I. Installation of minor facilities such as distributed antennae systems and related nodes on existing structures.
J. Installation of minor facilities of less than 2,400 cubic feet in total volume above-ground within a state, federal, municipal or special district Right-of-Way which must have been previously disturbed and occupied by existing utility facilities and all applicable permits must be obtained.
K. Minimal trenching of discrete, non-continuous segments of approximately 150 feet and/or 1,000 feet of new aerial facilities and supporting structures.
L. Construction activities authorized, after CEQA review, in a decision issuing a CPCN.
DAS projects that fall within this enumerated list must serve notice on local agencies with a permit to issue in the project areas before commencing construction of the project.
California telephone and telegraph corporations are required to obtain all applicable state, local, resource, and special use permits when engaging in the above Section III activities. Certificated and registered entities are and continue to be governed by Public Utilities Code Section 7901. Pursuant to Public Utilities Code Section 7901.1, municipalities shall have the right to exercise reasonable control as to time, place, and manner in which roads, highways, and waterways are accessed.
IV. CONSTRUCTION PROJECTS EXEMPT FROM REVIEW PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT.
Certain types of construction projects are subject to CEQA but qualify for exemption from full review. The procedures for claiming these exemptions differ depending on whether a Notice to Proceed is required to be issued by the Commission:
A. California telephone and telegraph corporations acting within the scope of their CPCNs may, where applicable, rely on the following exemptions without receiving a Notice to Proceed from the Commission, but must retain records for three years of all instances where such exemptions are relied on as set forth in CEQA Guidelines Sections 15301, 15302, 15303, 15304, 15332 and 15359.
i. CEQA Guidelines Section 15301 - Existing Facilities: 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.
ii. CEQA Guidelines Section 15302 - Replacement or Reconstruction: 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. The term "capacity" in this context refers to the physical footprint of the facilities and not to their function. Functional upgrades to facilities are considered replacement and/or reconstruction.
iii. CEQA Guidelines Section 15303 - New Construction or Conversion of Small Structures: construction, installation, and/or conversion of limited numbers of new and/or existing facilities/structures.
iv. CEQA Guidelines Section 15304 - Minor Alterations to Land: public or private alterations in the conditions of land, water, and/or vegetation.
v. CEQA Guidelines Section 15332 - In-Fill Development Projects: provided all applicable Guideline criteria are met.
vi. CEQA Guidelines Section 15359 - Emergency Projects as defined by CEQA Guidelines Section 15359:
B. California telephone and telegraph corporations claiming that an exemption for an activity, not included in Sections III or IV.A. of this General Order, would not have a significant effect on the environment must file a Notice of Proposed Construction. The Notice of Proposed Construction must state the grounds upon which the Commission could find the activity to be exempt from full CEQA review. This process applies to the installation of new poles. This process may also be used for activities utilizing new technologies that are not contemplated by this General Order.
Each Notice of Proposed Construction shall be limited to 25 pages (exclusive of maps; charts; tables; graphs; photographs; lists; and check-lists) and must contain the following information:
i. Detailed description of the proposed project:
1. Customer(s) to be served
2. The precise location of the proposed construction project
3. Regional and local site maps
4. Project-level design details
5. Other relevant information necessary to adequately describe the project
ii. Description of the environmental setting:
1. Cultural, historical, and paleontological resources
2. Biological resources
3. Current land use and zoning
4. Sensitive visual receptors
5. Other relevant information necessary to adequately describe the environmental setting
iii. Construction workplan, to include:
1. Pre-Construction Survey Checklist - Archaeological Resources
2. Pre-Construction Survey Checklist - Biological Resources
3. Detailed schedule of construction activities, including site restoration activities
4. Description of construction/installation techniques
5. List of other agencies contacted with respect to siting, land use planning, and environmental resource issues, including contact information
6. List of permits required for the proposed project
iv. Exemption statement - Clear and concise statement, with supporting factual evidence, documentation, and verifications, identifying the exemption claimed for the proposed project and demonstrating that the proposed project meets all the requirements for the exemption.
v. Procedures for Filing and Processing a Notice of Proposed Construction
1. The Notice of Proposed Construction shall be filed with the Staff as a Tier 2 advice letter as specified in General Order 96-B, or successor rule, served on all local agencies with a permit to issue in the project areas, in addition to those parties specified in General Order 96-B, and shall be provided via the Commission's Online Reporting System (ORS) once ORS is up and running. Staff will maintain a non-exclusive list of local agency contact information on the website.
2. Interested parties may protest the advice letter as specified in General Order 96-B and Staff shall review and process the Notice of Proposed Construction advice letter as provided in General Order 96-B.
3. If Staff finds from the review of the advice letter and any protests that the proposed construction qualifies for the claimed exemption, it shall issue a Notice to Proceed to the advice letter filer with copies to the protestants (if any). If Staff finds that the construction does not so qualify, it shall notify the advice letter filer and any protestants. Staff's finding is subject to appeal as provided in General Order 96-B.
C. Exceptional Circumstances: When filing a Notice of Proposed Construction claiming an exemption, carriers will represent to the Commission that no exceptional circumstances apply. CEQA Guidelines Section 15300.2 provides for exceptions to the CEQA exemptions for the following circumstances:
i. Sensitive locations
ii. Cumulative impacts
iii. Significant effects
iv. Scenic highways
v. Hazardous waste sites
vi. Historical resources
D. Segmented or piecemealed construction designed to avoid CEQA is prohibited. All projects must comply with CEQA Guidelines Section 15378
V. FULL COMMISSION REVIEW OF PROPOSED CONSTRUCTION PROJECT PURSUANT CALIFORNIA ENVIROMENTAL QUALITY ACT
A. If a proposed construction project may have a physical impact on the environment and does not qualify for the Notice of Proposed Construction process described above, the telephone or telegraph corporation must file an application and Proponents Environmental Assessment as provided in the Commission's Rules of Practice and Procedure.
B. If a proposed construction project is subject to the California Environmental Quality Act and does not quality for an exemption, but a full CEQA review has been certified or adopted by another agency, the telephone or telegraph corporation may make use of previously-completed applicable CEQA studies provided all of the following occur:
a. The studies are not more than five years old and there are no changed circumstances per CEQA Guidelines Section 15153;
b. Upon review by Commission staff, no exceptional circumstances apply per CEQA Guidelines Section 15300.2;
c. There are no changes in the baseline assumptions of the original CEQA analysis; the installation and construction techniques; the technical operations of the facilities; or other material changes; and
d. The Commission is a Responsible Agency pursuant to CEQA.
VI. ENFORCEMENT AND DELEGATION OF AUTHORITY
A. The Commission reserves all of its authority to take such actions as the public interest may require to ensure that all telephone and telegraph corporations adhere to the requirements of this General Order, CEQA, and any applicable Commission rules or decisions.
B. In addition, the Commission delegates to Staff, as designated by the Executive Director, the following authority:
a. Monitor and Inspect Construction Activities - Staff is authorized to monitor and inspect all construction activity by California telephone and telegraph corporations for compliance with CEQA as well as all Commission orders, rules, and decisions.
b. Access to Records and Projects - all California telephone and telegraph corporations shall, upon request, provide Staff immediate access to all records relating to construction projects and physical access to any construction projects that are underway.
c. Issue Stop-Work Notices - when Staff obtains sufficient evidence to support a finding of that a violation of CEQA or Commission rules or decisions may have occurred at a construction project by a California telephone or telegraph corporation, Staff shall issue a Stop-Work Notice to the telephone or telegraph corporation.
d. Contents of Stop-Work Notice - the notice shall be in writing and served on a representative or agent of the telephone or telegraph corporation conducting the construction project, including by facsimile. The Notice shall indicate the activity believed to be in violation of CEQA or Commission rules or decisions and specify the construction activity that must cease. The Notice must also provide any available and obvious means to remedy the identified potential violation. The Notice may apply to the entire construction project or a defined portion, and may make allowances for continued work to provide for immediate public safety, such as covering an open trench. The Notice shall be signed by either the Executive Director or a Division Director.
e. Compliance with Stop-Work Notice - all California telephone and telegraph corporations shall comply with any Stop-Work Notice and any violation of a Stop-Work Notice is a violation of this General Order.
f. Appeal of Stop-Work Notice - any California telephone or telegraph corporation that receives a Stop-Work Notice may appeal the issuance of the Notice to the Commission's Executive Director. Such an appeal, however, does not excuse compliance with the Stop-Work Notice and all appeals where work has not ceased will be summarily denied.
(END OF ATTACHMENT A)
Dissent of Commissioner Timothy Alan Simon
December 16, 2010 Commission Meeting - Item 61 R.06-10-006
Final Decision Adopting General Order Specifying Review Procedures Pursuant to California Environmental Quality Act
Introduction
During the California Public Utilities Commission (CPUC) December 16, 2010 meeting, the CPUC voted 3-2 in favor of a Proposed Decision [Item 61 on the December 16, 2010 Agenda].
I voted against the proposed decision and file this Dissent.
Background and Discussion
I want to commend Commissioner John A. Bohn for taking on this challenging and complex proceeding to consider changes to the Commission's application of the California Environmental Quality Act (CEQA) to telephone corporations. The Commission opened this Order Instituting Rulemaking (OIR) in 2006, but the Commission's quixotic attempts to reconcile our obligations under CEQA with a policy mandate of broadband deployment go back even further. However valiant these efforts may be, I do not think we struck the appropriate balance. The adopted General Order 170 runs the real risk of causing severe delay in network build out and delivery of advanced services to consumers, inconvenience and financial loss to small and large businesses that depend on communications services, and may dampen investment and growth in California at a time when we should promoting investment in infrastructure to nurture economic growth.
The Commission's current application of CEQA to carriers has resulted in inconsistent requirements, largely depending on when the particular company began to do business in California. While the proposed decision proclaims the dawning of a level playing field by applying the same rules to all telephone corporations, cable and wireless/wifi providers that compete with telephone corporations in overlapping markets will remain subject to disparate CEQA treatment. Creating this new permitting process "from whole cloth" is inconsistent with the treatment of wireless carriers under General Order 159-A and video service providers under the Digital Information Video Competition Act ("DIVCA")38, both of which explicitly assign any required CEQA review to local agencies. The proposed decision therefore contradicts the OIR's goal of ensuring "that the application of CEQA in the area of telecommunications does not cause undue harm to competition, particularly intermodal competition39" since different players in the relevant market will not be treated equally under GO 170, G0169-A, and DIVCA. This disparate CEQA treatment fails to promote the expedient deployment of advanced telecommunications networks by the entire relevant industry, and may cause undue harm to competition.
The perceived benefits of adopting this new way forward must be balanced against the apparent risks. First, there is the real risk that the proposed decision will derail timelines for network projects and deployments, which is significant since many of the affected carriers have already invested hundreds of millions in infrastructure. New regimes come with growing pains, but we cannot introduce a system that unreasonably hinders and delays the investment in infrastructure and service deployment that California consumers and business increasingly rely upon for their respective livelihoods and development. Arguably, the fear of bottle necks for carriers' projects and the strain on resource availability for the carriers and Commission staff may not be as acute as represented by some carriers. It is encouraging that the Commission will retain the ability to adapt the program should any of these intended consequences prove to be unworkable, but we also run the risk that subsequent program tweaks will come "too little, too late."
Separately, this decision cannot be viewed in a regulatory vacuum. Delaying network projects and deployment will be felt at the local level by consumers and businesses that increasingly rely on advanced telecommunications services. CEQA compliance does not have to mean imposing unnecessary procedural hurdles, especially as the telecommunications industry, consumers, and businesses shift to broadband. This shift entails significant infrastructure investment. Adding what could prove to be time-consuming and resource intensive layers of CEQA compliance may negatively impact not just the newly affected carriers, but also the consumers and businesses that use and procure the vast array of products and services made possible by technological innovation.
Lastly, delays in broadband deployment and system upgrades may be further exacerbated by a challenging investing climate. We must be mindful that the amount and types investment made by industry and investors is related to the level and scope of regulation. We run the risk of sending the wrong signal to investors who have already invested in California's broadband infrastructure. California will remain a competitive market, but it is not prudent to create unintended barriers to effective competition by imposing regulatory costs and time restraints on some but not others.
Ultimately, we should avoid regulatory spawned barriers to competition and should advance critical infrastructure in an environmentally balanced way. It may not be possible at this time to completely level the entire playing field. Still, having changed the rules, it is imperative that we diligently track the implementation of this new GO to ensure that the perceived benefits are not eviscerated by the apparent risks. To serve that end, my office will be involved in tracking the implementation of GO 170.
Conclusion
It is for these reasons provided above that I respectfully dissent on this Order.
/s/ TIMOTHY ALAN SIMON
Timothy Alan Simon
Commissioner
38 See Pub. Util. Code § 5820
39 PD at 3, quoting OIR at 1.
