3. Procedural Background
3.1. Summary
SDG&E filed this application for a permit to construct the ECO Substation Project on August 10, 2009. Backcountry Against Dumps (BAD), the Protect Our Communities Foundation, and the East County Community Action Coalition jointly protested the application.
After the conduct of a prehearing conference on February 18, 2011, the assigned Commissioner issued a scoping memo and ruling on March 15, 2011, determining that the requisite authority to construct the ECO Substation is a permit to construct, identifying the issues to be determined by the Commission in resolving the proceeding, and setting a schedule for addressing those issues.
As the scoping memo and ruling explains, in order to issue a permit to construct pursuant to General Order 131-D, the Commission must find that the project complies with the California Environmental Quality Act (CEQA).1 CEQA requires the lead agency (the Commission in this case) to conduct a review to identify environmental impacts of the project, and ways to avoid or reduce environmental damage, for consideration in the determination of whether to approve the project or a project alternative. CEQA precludes the lead agency from approving a proposed project or a project alternative unless it requires the project proponent to eliminate or substantially lessen all significant effects on the environment where feasible, and determines that any unavoidable remaining significant effects are acceptable due to overriding considerations. (CEQA Guidelines §§ 15090, 15091, 15093, 15126.2, 15126.4 and 15126.6.) Because the project also requires approval from the federal Bureau of Land Management (BLM), it is also subject to environmental review pursuant to the National Environmental Protection Act (NEPA), which requires the preparation of an environmental impact statement (EIS). Under these circumstances, CEQA encourages the state agency to conduct its environmental review jointly with the federal agency. (CEQA Guidelines § 15222.)
In addition, pursuant to General Order 131-D and Decision (D.) 06-01-042, the Commission will not certify a project unless its design is in compliance with the Commission's policies governing the mitigation of electromagnetic field (EMF) effects using low-cost and no-cost measures.
Accordingly, the scoping memo and ruling determined the following issues to be within the scope of the proceeding:
1. What are the significant environmental impacts of the proposed project?
2. Are there potentially feasible mitigation measures that will eliminate or lessen the significant environmental impacts?
3. As between the proposed project and the project alternatives, which is environmentally superior?
4. Was the environmental impact report (EIR) (in this case, the combined EIR/EIS) completed in compliance with CEQA, did the Commission review and consider the EIR/EIS prior to approving the project or a project alternative, and does the EIR/EIS reflect the Commission's independent judgment?
5. Are the mitigation measures or project alternatives infeasible?
6. To the extent that the proposed project and/or project alternatives result in significant and unavoidable impacts, are there overriding considerations that nevertheless merit Commission approval of the proposed project or project alternative?
7. Is the proposed project and/or project alternative designed in compliance with the Commission's policies governing the mitigation of EMF effects using low-cost and no-cost measures?
The Commission's Energy Division and the BLM issued the draft EIR/EIS on December 24, 2010, which was received into evidence by the assigned Commissioner's scoping memo and ruling. Evidentiary hearing was held on May 2, 2011. The final EIR/EIS was received into the evidentiary record by Administrative Law Judge (ALJ) ruling on October 31, 2011. SDG&E, BAD and the San Diego Rural Fire Protection District2 filed opening briefs on all issues on November 7, 2011, and reply briefs on November 17, 2011. A public participation hearing was conducted on January 24, 2012, in Jacumba, California, after which the record was submitted.
By ruling dated March 16, 2012, the assigned Commissioner amended the schedule to provide for the issuance of this interim decision resolving issues 1 through 4 and certifying the EIR/EIS, to be followed at a later date with a decision resolving the remaining issues in the proceeding.
3.2. Environmental Review Process
On December 28, 2009, the Commission's Energy Division staff issued a Notice of Preparation (NOP) of a joint EIR/EIS for the proposed project. The NOP was mailed to the state clearinghouse as well as to 23 federal agencies, 24 state agencies, eight county agencies, 29 local agencies (including three local libraries), 38 local organizations/stakeholders, and 34 Native American groups. In addition, a public notice was published in the San Diego Union-Tribune on December 28, 2009, and in the January 2010 edition of the Back Country Messenger, and distributed to more than 1500 identified property owners within a two-mile radius of the proposed ECO Substation, wind energy generation and gen-tie projects. The NOP described the proposed project, solicited written and oral comments on the EIR/EIS's scope, and gave notice of the public scoping meetings to be held on January 27, 2010, in Jacumba, California, and on January 28, 2010, in Boulevard, California. Energy Division received oral comments from 37 people at the public meetings and 60 letters from various agencies and individuals during the 30-day comment period. Energy Division issued the draft EIR/EIS on December 24, 2010, and conducted public information meetings on January 28, 2011, in Jacumba, California, and on February 2, 2011, in Boulevard, California. Energy Division received written comments from more than 235 individuals and organizations during the 70-day comment period.3 Energy Division responded to all comments in the final EIR/EIS, which was issued on October 14, 2011 and received into the evidentiary record by ALJ ruling.4
3.3. Public Comment and Public Participation Hearing
A public participation hearing was conducted on January 24, 2012, in Jacumba, California, which was attended by approximately 113 people. Thirty-seven people spoke,5 and an additional two people submitted written statements into the record of the public participation hearing.
Seventeen people spoke, and one person submitted a written statement, in opposition to the project. Most of the opponents identified themselves as property owners, residents, or recreational users of the community. The opponents included a representative of the Forest Committee of the San Diego chapter of the Sierra Club and a representative of the Rural Economic League in Campo. Most of the speakers opposing the project expressed concerns with regard to the project's environmental impacts on recreation (camping, hiking, and off-road vehicle), scenic vistas, biological resources (in particular, golden eagles), fire safety (prevention and fire-fighting), noise and vibration (construction and operational), public health and safety (EMF effects, shadow flicker and light) and well water. Ten speakers raised objections that the project benefits urban and corporate interests at the expense of local property values and quality of life. Six speakers challenged the need for the project on the basis of electrical demand, the availability of distributed generation as an alternative to the project, and/or the inefficiency of wind power due to the requirement for back-up power.
Sixteen people spoke, and one person submitted a written statement, in support of the project. The supporters included seven property owners and/or residents (including a representative of the East County Chamber of Commerce), four representatives of various renewable energy projects, and the Campo Band of Mission Indians. Of these, approximately 16 speakers commented on the role of the project in enabling the deployment of wind and solar energy resources; three speakers commented on the need to reduce global warming; and five speakers commented on job creation attributable to the project.
Three speakers opposed undergrounding portions of the project on the basis that the visual impact of the project is minor due to its remote location and the cost of undergrounding is significant, while one speaker commented in favor of the undergrounding.
Two speakers asserted that SDG&E failed to follow through on required mitigation on previous transmission line projects, and a third speaker expressed the importance of ensuring that SDG&E do so.
In addition, outside of the public participation hearing, 16 people e-mailed public comments to the ALJ, and one person left a voice message, expressing opposition to undergrounding for reasons of its remote location and high cost.
1 Public Resources (Pub. Res.) Code Section 21000 et seq.
2 The San Diego Rural Fire Protection District's unopposed September 27, 2011, motion for party status was granted by ALJ ruling dated October 31, 2011.
3 Although the customary comment period is 45 days (CEQA Guidelines § 15205(d)), the public comment period was originally set for 54 days and later extended to 70 days.
4 On November 16, 2011, Energy Division served a document titled "ECO/Tule/ESJ Gen-Tie Final EIR/EIS Errata"; by informal ruling on that date, the ALJ admitted the document into the evidentiary record as Exhibit 12. On January 27, 2012, Energy Division served a document titled "East County Substation/Tule Wind/Energia Sierra Juarez Gen-Tie Projects CEQA Addendum"; by informal ruling on January 28, 2012, the ALJ admitted the document into the evidentiary record as Exhibit 13. On February 27, 2012, Energy Division served a document titled "ECO/TULE/ESJ GEN-TIE FINAL EIR/EIR ERRATA II," and asked that it be substituted as Exhibit 13. No party has objected. We hereby affirm the admission of Exhibit 12, "ECO/Tule/ESJ Gen-Tie Final EIR/EIS Errata," and the reopening of the record for the limited purpose of admitting Exhibit 13 "ECO/TULE/ESJ GEN-TIE FINAL EIR/EIS ERRATA II" into the evidentiary record.
5 Many of the speakers also submitted their written statements and/or other materials for inclusion in the transcript.
