7. Certification of EIR

After the release of the Notice of Preparation of the SEIR in October 2010, the Commission's Energy Division held a 30-day public scoping period allowing the public and regulatory agencies an opportunity to comment on the scope of the environmental document and the alternatives considered, and to identify issues that should be addressed in the SEIR. Energy Division received seven comment letters during this scoping process, and the SEIR addresses the issues raised by them.

The Energy Division issued the draft SEIR on February 22, 2011, and solicited written comments on it. The draft SEIR was made available for review at repositories in Palm Springs, Blythe and Indio, as well as at CPUC headquarters in San Francisco. During the 45-day comment period, Energy Division received 11 written comments from public agencies, community groups, non-profit organizations, private companies, a private individual and SCE. Energy Division responded to all comments in the final SEIR, which it issued on April 29, 2011.

The SEIR was completed after notice and opportunity for public comment on the scope of the environmental review and the draft SEIR, as required by CEQA. The final SEIR documents all written and oral comments made on the draft SEIR, and responds to them, as required by CEQA. The SEIR identifies the proposed project's significant and unavoidable environmental impacts, mitigation measures that will avoid or substantially lessen them, and identifies Avoidance Alternative #1 as the environmentally superior alternative and the Southern Alternative as the next alternative in order of environmental superiority.

CARE asserts that the SEIR is inadequate for failing to provide an accurate, stable and consistent project description by inconsistently describing the project component acreage as roughly 160 acres and as significantly less than that, inconsistently describing the substation expansion area as 34 acres and as 45 acres, failing to identify all project access roads, and failing to identify the amount of land that will be disturbed by undergrounding the project's telecommunications infrastructure. To the contrary, the SEIR clearly refers to the 160-acre parcel as the entire area of the project and identifies the project components as covering approximately 90 acres of that parcel (SEIR, at B-2); it consistently identifies the area of permanent disturbance for the substation expansion as 34 acres and the total area of permanent disturbance for this expansion footprint as well as for stormwater detention basin (1.7 acres), drainage improvements (7.4 acres), driveways (1 acre), and telecommunications system (0.6 acre) as 45 acres (SEIR, at B-9 and Appendix 10); it identifies the proposed access roads (SEIR, at B-4); it specifies the location of the underground telecommunications conduit (SEIR, at B-17) and states that there will be no additional ground disturbance beyond the installation of this conduit (SEIR, at B-5).

CARE asserts that the Amended Biological Assessment, which is cited as a reference in the U.S. Fish and Wildlife Service's (USFWS) Biological Opinion appended to the SEIR, includes calculations of adversely affected special-status species habitat based on data from the original EIR and that this is evidence that the SEIR's project description is inadequate. To the contrary, the fact that the USFWS may have considered, among other information, data that predates this expansion project is not evidence that that the USFWS failed to assess, much less identify, the expansion project in preparing its Biological Opinion. Indeed, the USFWS's Biological Opinion presents project impact acreages for DPV2 including the Colorado River Substation expansion area (SEIR, Appendix 10, Table 1.)

CARE asserts that the SEIR improperly incorporated documents into its analysis of impacts on biological resources that were not included in the draft and/or final SEIR. To the contrary, CEQA does not require that all documents cited in an EIR be included in an EIR. (CEQA Guidelines §§ 15148 and 15150(a).)

CARE asserts that, although the SEIR bases its biological analysis on the Supplemental Information for the Genesis Solar Energy Project (Appendix 8) and the DPV2 Telecommunication System Route Biological Review (Appendix 9), the draft SEIR improperly failed to include them, and the final SEIR improperly included them after the time for public review of the draft SEIR had passed. To the contrary, although the draft SEIR did not include them, it listed them as source documents for the environmental setting discussion and properly described and cited them, as permitted by CEQA Guidelines §§15148 and 15150(a). (SEIR, at D-5.)⁶ While these appendices were added to the final SEIR to aid in the public review of the document, they had already been described and cited in the draft SEIR, did not add additional information, and were available for review during the 45-day comment period.

CARE makes the same assertion with respect to the USFWS's Biological Opinion (Appendix 10). However, neither the draft nor the final SEIR rely on this document for its biological analysis. The Biological Opinion is attached to the SEIR in reference to the permissible relocation distance for desert tortoises specified therein. (See SEIR, at I-63.)

CARE asserts that the SEIR is deficient for failing to specify where the referenced documents would be available for inspection, as required by CEQA Guidelines § 15150(b). Specifically, although the SEIR specifies that the draft and final SEIRs may be reviewed at the Commission's headquarters in San Francisco as well as three identified repository sites in Indio, Blythe, and Palm Springs, it does not specify or provide that the referenced documents would be available for inspection, either there or elsewhere. However, the SEIR provides an email contact address and the project website on the Commission's official website, which provides further email and telephone contacts for persons to request additional information. Indeed, CARE indicates in its opening brief that it was provided a copy of a referenced document upon request, which demonstrates that the SEIR's identification of contact information for obtaining additional information reasonably serves the intent and purpose, if not the letter, of CEQA Guidelines § 15150(b). The SEIR's failure to identify and provide repository sites for the referenced documents does not render the document legally deficient.

CARE asserts that the SEIR failed to consider actual biology surveys on the expansion site and relied instead on the analysis of biological impacts performed under the BLM's environmental impacts statements for the Blyth and Genesis Solar Projects. CARE misreads the SEIR. As it states, the SEIR also relied on new biological resource data that was collected at the proposed Colorado River Substation expansion site and vicinity. (See SEIR, at D-5 and at I-1 through I-3.)

CARE asserts that the SEIR impairs informed decision-making because it limits the relocation of the desert tortoise to 640 feet, and confuses the public and the decision-maker by characterizing this as the equivalent of 500 meters. CARE misreads the SEIR. The SEIR identifies a relocation distance of 1,640 feet, which is the equivalent of 500 meters. (SEIR, at D-18.)

CARE asserts that the SEIR is fatally defective because it does not specify the performance standard or criteria to be met in the future to ensure that mitigation measures necessary to ensure that impacts on the desert tortoise do not rise to a significant level will be in line with the USFWS's Biological Opinion, as promised in the DPV2 Telecommunication System Route Biological Review. CARE confuses the mitigation measures presented in the DPV2 Telecommunication System Route Biological Review (SEIR, Appendix 9) with the mitigation measures identified by the SEIR as required by CEQA. The desert tortoise mitigation measures B-1a, B-7b, and B-7c properly include performance standards to govern future actions. (SEIR, at D-16 through D-19.)

CARE asserts that the SEIR does not comply with CEQA because it has not considered a distributed-generation alternative. The SEIR reflects CARE's comments on the draft SEIR to this effect and provides a thorough and reasonable explanation of why it properly declined to include a distributed-generation in its analysis. CEQA requires that an EIR describe a reasonable range of alternatives that is potentially feasible, would feasibly attain most of the basic objectives of the project, and would avoid or substantially lessen any of the project's significant effects. (CEQA Guidelines § 15126.6(a).) The SEIR reasonably omits a distributed-generation alternative from the alternatives selected for detailed analysis because it would not meet two of the three project objectives, providing transmission access to potential future renewable resources in the Blythe area and serving other, approved solar projects in the Blythe area. (SEIR, at I-124.)

CARE asserts that the SEIR failed to identify and analyze growth-inducing impacts as required pursuant to Pub. Res. Code § 21100(b)(5) including, for example, the growth-inducing impact of potential mining operations that will be facilitated by the project's new access roads. To the contrary, the SEIR identifies and analyzes the potential for growth-inducing project effects including economic or population growth or the construction of additional housing (SEIR, Section G.1) and growth related to the provision of additional electric power (SEIR, Section G.1.2). With respect to CARE's assertion that the SEIR must consider the growth-inducing impacts of the project's new access roads, CARE's premise that the project will create new access roads is without merit as the substation expansion project would merely widen and improve an existing access road. (SEIR, at B-4.)

We have reviewed and considered the information contained in the SEIR, as well as parties' challenges to the adequacy of the SEIR. We certify that the final SEIR has been completed in compliance with CEQA, that the final SEIR was presented to us and that we have reviewed and considered the information contained in it, and that the final SEIR reflects our independent judgment and analysis.

⁶ The final SEIR shows changes made to the draft SEIR by underlining inserted text and striking out deleted text.