3. California Environmental Quality Act (CEQA)
CEQA requires that the Commission act as the designated lead agency for this project to assess the potential environmental impact of a project in order that adverse effects are avoided, alternatives are investigated, and environmental quality is restored or enhanced to the fullest extent possible. On November 10, 2011, the Commission approved Resolution T-17347 which adopted the Final Initial Study and Mitigated Negative Declaration prepared for the CBC project in accordance with the CEQA Guidelines, the Public Resources Code, and Commission Resolution T-17232. We incorporate that decision into this decision by reference.
In its application, CBC proposed construction activities that will generally include, but not be limited to, micro-trenching, regular trenching, directional bore digging, installation of underground conduit in existing rights-of-way and utility easements, replacement of existing utility poles, installation of new poles, and installation of underground vaults to accommodate communications equipment. Construction will take place in existing rights-of-way and utility easements.
CBC asserts that, in most cases, it will operate by installing equipment in or on existing poles, towers, buildings, fiber, conduits, ducts, rights-of-way, trenches and other facilities and structures of other entities. CBC specifically notes that it may engage in activities such as micro-trenching, regular trenching at a typical depth of 1-3 feet and typical width of 1-6 inches, and installation of underground conduit (average diameter of 1-4 inches) in existing rights-of-way and utility easements (trenching and underground conduit installation). CBC may also replace existing utility poles (performed at a utility's request or to meet applicable engineering and safety standards), install new poles where existing ones are not available, and install underground vaults to accommodate communications equipment where such construction is required, typically by a city or municipality. Occasionally, a portion of this activity will take place on private property in existing easements. In some cases, underground conduit installation will involve use of a directional bore method in addition to or instead of trenching. Specific projects are unknown and speculative at this time.
These activities may fall within the following (Non-Exhaustive) classes of projects that are exempt from CEQA and for which neither an Environmental Impact Report nor a Negative Declaration is required.
· Class 3 Exemption: construction including water main, sewage, electrical, gas and other extensions of reasonable length to serve such construction. This includes the construction of limited numbers of new small facilities or CBC extensions. 14 CCR § 15303.
· Class 4 Exemption: minor public or private alterations in the condition of land, water, and/or vegetation which do not involve the removal of healthy, mature, scenic trees except for forestry and agricultural purposes. Among other things, this includes filling of earth into previously excavated land with material compatible with the natural features of the site, and minor trenching and backfilling where the surface is restored. 14 CCR § 15304.
· Class 32 ("in fill") Exemption: applies where: i) the projects are consistent with the applicable general plan designation and applicable general plan policies and applicable zoning designation and regulation; ii) proposed development occurs within city limits on a project site of more than five acres substantially surrounded by urban uses; iii) the project site has no value as habitat for endangered, rare or threatened species; iv) approval of the project would not result in significant effects relating to traffic, noise, air quality, or water quality; and v) the site can be adequately served by all required utilities and public services. 14 CCR § 15332.
CBC's proposed activities would involve: 1) construction of reasonably short extensions (Class 3); 2) ground disturbing activity limited to primarily minor trenching and back filling (Class 4); and will occur in heavily developed urban and suburban areas which meet the criteria for urban in-fill (Class 32).
CBC requests leave to utilize a procedure for expedited review of its projects once it is aware of a specific site(s) in which it plans construction. The proposed procedure generally tracks the expedited review process that we have approved for other carriers.4 Such a process will expedite CEQA review and is appropriate for any type of construction that is categorically exempt. By establishing this expedited review process, we are able to review the information on a specific project to confirm that it is categorically exempt from CEQA or explain why further environmental review is required. At the same time, the proposed CEQA review process will enable CBC to undertake construction of its projects in a timely manner.
Similar to the procedure approved for other carriers,5 the following procedure will be used to obtain Commission approval of CBC's claimed CEQA exemptions for proposed construction projects:
· CBC will provide the Commission's Energy Division with:
o A detailed description of the proposed project, including:
· Customer(s) to be served;
· The precise location of the proposed construction project; and
· Regional and local site maps.
o A description of the environmental setting, to include at a minimum:
· Cultural, historical, and paleontological resources;
· Biological resources; and
· Current land use and zoning.
o A construction workplan, to include:
· Commission Preconstruction Survey Checklist-Archaeological Resources;
· Commission Preconstruction Survey Checklist-Biological Resources;
· A detailed schedule of construction activities, including site restoration activities;
· A description of construction/installation techniques;
· A list of other agencies contacted with respect to siting, land use planning, and environmental resource issues, including contact information; and
· A list of permits required for the proposed project.
o A statement of the CEQA exemption(s) applicable to the proposed project; and
o Documentation and factual evidence sufficient to support a finding that the claimed exemption(s) is (are) applicable.
o The Energy Division will review CBC's submission for the proposed project to confirm that the claimed exemption(s) from CEQA are applicable.
o Within 21 days from the date of CBC's submittal, the Energy Division will issue either:
· A Notice to Proceed (NTP) and file a Notice of Exemption with the State Clearinghouse, Office of Planning and Research, or
· A letter of denial stating the specific reasons why the claimed exemption(s) are not applicable to the proposed project.
We have reviewed the application and find that:
· CBC's proposed facilities-based project activities are very limited;
· These activities would in almost all circumstances be very likely to qualify for an exemption from CEQA; and
· The proposed process for reviewing the applicability of CEQA exemptions to CBC's facilities-based projects is not only adequate for the Commission's purposes as CEQA Lead Agency, but is also in the public interest because it enables CBC to respond in a timely manner to requests for service without the delay or burden of a full CEQA review when such review is unnecessary.
We therefore authorize CBC to follow the process described in the order herein, for Commission review of claimed CEQA exemptions for construction projects undertaken pursuant to CBC's full facilities-based authority with the following modifications related to the Commission's Energy Division review and approval or disapproval of the proposed exemptions.
· If the Energy Division disapproves CBC's claimed CEQA exemption(s), and issues a letter of denial to CBC, CBC must either re-design the specific project and facilities and then reapply for a finding of exemption from CEQA, or file a formal application with the Commission seeking the requisite approval and full CEQA review, before commencing any construction activities.
CBC shall not perform any full facilities-based construction activities without first obtaining an NTP from the Energy Division or authorization by the Commission after the requisite environmental review.
We have previously determined that the public convenience and necessity require that competition be allowed in the provision of competitive local exchange service, Rulemaking 95-04-043/Investigation 95-04-044. Granting this application will benefit the public interest by expanding the availability of technologically advanced telecommunications services within the state.
4 See Decision (D.) 10-12-004 (Mobilitie, LLC); D.08-12-027 (ATC Outdoor DAS); D.10-04-038 (SnowCrest Telephone, Inc.); D.10-01-014 (Pacific Lightwave); D.09-11-021 (Freedom Telecommunications, Inc.); D.09-07-043 (PublicWireless, Inc.).
5 See e.g., D.06-04-030 (NewPath Networks, LLC); D.06-04-063 (ClearLinx Network Corporation); D.06-06-047 (Sunesys, Inc.); D.08-12-027 (ATC Outdoor DAS, LLC); D.07-04-045 (NextG Networks of California, Inc.); D.07-08-026 (Broadband Associates International); and D.07-11-028 (Trillion Partners, Inc.).
