7. Certification of EIR/EIS

CEQA requires the lead agency to certify that the EIR/EIS was completed in compliance with CEQA, that the agency has reviewed and considered it prior to approving the project, and that the EIR/EIS reflects the agency's independent judgment. As previously discussed, the EIR/EIS was completed after notice and opportunity for public comment on the scope of the environmental review and the draft EIR/EIS, as required by CEQA. The final EIR/EIS documents all comments made on the draft EIR/EIS, and responds to them, as required by CEQA. The EIR/EIS identifies the proposed project's significant and unavoidable environmental impacts, mitigation measures that will avoid or substantially lessen them, and the environmentally superior alternative. We have reviewed and considered the information contained in the EIR/EIS, as well as parties' challenges to the adequacy of the EIR/EIS as discussed below. We certify that the EIR/EIS was completed in compliance with CEQA, that we have reviewed and considered the information contained in it, and that it reflects our independent judgment.

7.1. BAD

BAD asserts that the EIR/EIS violates CEQA by (1) inaccurately describing the project as distributing "only" renewable energy via the gen-tie line, (2) improperly dismissing the ECO System Alternative 6 and BAD's distributed generation alternative, and (3) inadequately analyzing hydrologic impacts, public health impacts, and impacts to avian species.

To the contrary, the EIR/EIS fairly describes the project based upon the known project purpose, provides sufficient explanation for dismissing the ECO System Alternative 6 and BAD's distributed generation alternative, and adequately analyzed all environmental impacts. Furthermore, BAD raised each of these assertions in its comments on the draft EIR/EIS, and the final EIR/EIS appropriately summarizes and responds to each of them. (See Exhibit 11 at (1) Comment/Response D.33-4, (2) Comments/Responses D.33-8 and D.33-90; and (3) Comments/Responses D.33-20, D.33-12, and D.33-15.) We reiterate CEQA Guideline § 15151 which states in part, "Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts."

7.2. San Diego Rural Fire Protection District

The District contends that the EIR/EIS must be modified to require the District's approval of any fire protection plan under Mitigation Measure FF-4 and of the level of funding assistance under Mitigation Measure FF-3. In support of its contention, the District argues variously that (1) by deferring the determination of the fire protection plan and funding assistance level, the EIR/EIS fails to adequately describe mitigation measures in violation of CEQA Guidelines § 15126.4(a)(1); (2) the EIR/EIS's determination that there are unavoidable fire and fuels management impacts is unsupportable because requiring District approval of any fire protection plan and the level of funding assistance will potentially mitigate and/or avoid those impacts; and (3) the Commission is precluded from issuing a statement of overriding considerations that is premised on this unsupportable determination that there are unavoidable fire and fuels management impacts. The District maintains that these inadequacies can be cured by giving the District approval authority over the fire protection plan and funding assistance level. We disagree with the District's arguments.

The EIR/EIS does not defer the formulation of mitigation measures; rather, as CEQA Guidelines § 15126.4(a)(1)(B) expressly allows, Mitigation Measures FF-3 and FF-4 "specify performance standards which would mitigate the significant effect of the project which may be accomplished in more than one specified way." (Indeed, the specified performance standards in Mitigation Measure FF-4 include the District's own content requirements for fire protection plans.) This approach is appropriate where, as here, identifying the specifics is not reasonably practical or feasible before project approval and the EIR otherwise adequately discloses the project's impacts. (Riverwatch v. County of San Diego, 76 Cal. App. 4th 1428, 1448-50 (1999).) In its 135 pages of discussion of fire and fuels management impacts, and by cautiously declining to assume that the as-yet-to-be-determined fire protection plan and funding assistance will fully mitigate all significant impacts, the EIR/EIS fully informs the public and the Commission of the potential fire impacts and potential mitigation.

The District's suggestion that the Commission can cure these alleged deficiencies by requiring District approval of the fire protection plan and funding assistance level miscomprehends the Commission's and the District's respective authority and responsibilities under CEQA. The Commission is the lead agency and, as such, is responsible for determining the appropriate mitigation for the project. It would be inappropriate for the Commission to abdicate its responsibility and defer to the District to determine whether SDG&E ultimately complies with the mitigation measures that may be required as a condition of the Commission's project permitting.

Nevertheless, the Commission has welcomed the District's participation in the environmental review process, and seeks the District's further participation in the implementation of Mitigation Measures FF-3 and FF-4. In particular, Mitigation Measure FF-4 requires SDG&E to provide a draft fire protection plan to the District (and other responsible agencies) for comment and for SDG&E to resolve any such comments in consultation with the responsible agencies.

The District objects that the EIR/EIS improperly changes the title and, by implication, the focus of the fire protection plan required by Mitigation Measure FF-2 from "operation and maintenance" to "operational maintenance." To the extent that the District is concerned that the EIR/EIS does not provide for a fire protection plan addressing the operation of the project, the District's concern is unfounded. The plain language of Mitigation Measures FF-2, FF-3 and FF-4 addresses ongoing operational activity.

The District complains that there is no data or analysis in the EIR/EIS to support the "conclusion" set forth in Mitigation Measure FF-3 that "(a)ll fuel management activities shall be in accordance with CEQA Guidelines Section 15304(i)." The District misreads Mitigation Measure FF-3. The statement is a requirement that SDG&E comply with CEQA Guidelines § 15304(i), not a conclusion that SDG&E already does so.

The proposed decision noted that, after briefs were submitted, the Energy Division submitted an errata to the EIR/EIS providing for a fixed annual fire mitigation fee to be provided by SDG&E to the District for mitigation funding (Ex.13) and invited the District to address, in its comments on the proposed decision, whether this errata resolves its concerns in its comments on the proposed decision. In its comments, the District stated that this errata goes a long way toward providing effective mitigation of the increased fire risk posed by the location of ECO Substation in the District's service area, but requests modification of the EIR to provide for the upfront payment of the total obligation (annual fee multiplied by the number of projected years of project operation) so that the District may invest the funds in order to recover the escalated costs of goods and labor over time. While we note the District's dissatisfaction, we nevertheless conclude that the EIR/EIS complies with CEQA and reflects our independent judgment.

7.3. Public Comments

We acknowledge the many public comments objecting to the project for its environmental impacts on recreation, scenic vistas, biological resources, fire safety, noise and vibration, public health and safety, and water, as well as its impact on local property values and quality of life and the asserted lack of need for the power that would be generated by the project. The main points of these objections were also raised in written comments on the draft EIR/EIS, and the final EIR/EIS summarizes and responds to them. (See Exhibit 11, Vol. 4.) We are satisfied that the EIR/EIS has been prepared with a sufficient degree of analysis and information to enable us to take account of environmental consequences as required by CEQA, and that it discloses and responds to the public's objections. (See CEQA Guidelines § 15151.)

We also acknowledge the many public comments objecting to the identification of the ECO Substation Alternative combined with the ECO Partial Underground 138 kV Transmission Route Alternative as the environmentally superior alternative. The comments object that undergrounding is unacceptably costly, that it serves no compelling purpose as it would be located in the remote and uninhabited area of East San Diego County, and that the land disturbance will cause adverse impacts. We will address the public comments' economic objection to undergrounding in the final decision on this application, in the context of whether the environmentally superior alternative is infeasible. With regard to the public comments' objections to undergrounding for the reason that it serves no compelling environmental purpose in a remote rural area, the EIR/EIS appropriately documents the adverse impacts on visual resources by reference to viewers who include, not only to residents, but also users of designated park, recreation and natural areas and of historic routes and scenic highways. (Exhibit 11, Part D.3, D.3-4.) The EIR/EIS identifies partial undergrounding as a viable means of mitigating those impacts as required by CEQA.

We conclude that the EIR/EIS properly identifies the ECO Partial Underground 138 kV Transmission Route Alternative as the environmentally superior alternative.