3. Environmental (CEQA) Review
CEQA (Public Resources Code Sections 21000 et seq.) applies to discretionary projects to be carried out or approved by public agencies. A basic purpose of CEQA is to "inform governmental decision-makers and the public about the potential significant environmental effects of the proposed activities." (Title 14 of the California Code of Regulations (hereafter CEQA Guidelines), Section 15002.)
CEQA requires the Commission to act as the designated lead agency to assess the potential environmental impact of a project so that adverse effects are avoided, alternatives are investigated, and environmental quality is restored or enhanced to the fullest extent possible. In Commission Rules of Practice and Procedure Rule 2.4(b), the Commission recognizes that certain classes of projects are exempted from CEQA. In cases where such exemptions apply, we are not required to issue an Environmental Impact Report or Negative Declaration.
At this time, Applicant states that it does not know of any specific projects that it will undertake. Applicant therefore requests approval to utilize a procedure for expedited review of Applicant's projects once Applicant is aware of a specific site(s) in which it plans construction. The Commission has previously approved an expedited CEQA review process for facilities-based service where the anticipated future projects will be categorically exempt.
According to the application, Applicant anticipates that its construction will primarily consist of last mile facilities including network feeder and distribution and associated equipment. These activities could include 1) trenching, micro-trenching, or boring; and 2) installation of vaults, hand holes, small cabinets, and associated facilities and equipment. These activities will take place in developed urban and suburban areas in which previous
ground-disturbing construction has occurred.
Applicant contends that these activities may fall within categorical exemptions to CEQA, including but not limited to:
· CEQA Guidelines § 15303, Class 3(d) and 3(e): Construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.
· CEQA Guidelines § 15304, Class 4(a), 4(c), and 4(f): Minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry and agricultural purposes, and the 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.
· CEQA Guidelines § 15332, Class 32(a) - (e):
Small scale in-fill development that meets specified criteria.
We have previously granted other carriers authority to rely upon the expedited 21-day process for CEQA review by Commission Energy Division Staff (ED Staff) to determine if proposed construction projects are exempt from CEQA.1 Applicant's proposed construction activities, as described in the application, are limited and may, in some circumstances, fall within CEQA exemptions.
By this decision, we make the expedited 21-day process for CEQA review by ED Staff available to Applicant, for full facilities-based projects, as described in the application, which Applicant claims are categorically or statutorily exempt from CEQA. The Commission, as Lead Agency, must evaluate the availability of any claimed exemptions and direct any additional CEQA review that may be necessary.
If Applicant wishes to engage in full facilities-based construction activities and believes that these activities are exempt from CEQA, Applicant shall first apply to the Commission ED Staff for a determination of exemption from CEQA using the following procedure:
A. Required Information From Applicant. Applicant will provide the Commission Energy Division with:
1. A detailed description of the proposed project, including:
a) Customer(s) to be served;
b) The precise location of the proposed construction project; and
c) Regional and local site maps.
2. A description of the environmental setting, including at a minimum:
a) Cultural, historical, and paleontological resources;
b) Biological resources; and
c) Current land use and zoning.
3. A construction work plan, including:
a) Commission Preconstruction Survey
Checklist-Archaeological Resources;b) Commission Preconstruction Survey
Checklist-Biological Resources;c) A detailed schedule of construction activities, including site restoration activities;
d) A description of construction/installation techniques;
e) A list of other agencies contacted with respect to siting, land use planning, and environmental resource issues, including contact information; and
f) A list of permits required for the proposed project.
4. A statement of the CEQA exemption(s) claimed to apply to the proposed project; and
5. Documentation and evidence sufficient to support a finding that the claimed CEQA exemption(s) apply to the project.
6. A proof of service showing that Applicant has served a copy of the above information on the city and county in which the project, if approved, will be constructed.
B. Review by Commission Energy Division. The Commission Energy Division will then review the submittal and notify Applicant of either its approval or its denial of Applicant's claim for exemption from CEQA review no later than 21 days after the date on which Applicant's submittal is complete.
C. Approval of Claimed CEQA Exemption(s)/Notice to Proceed. If the Commission Energy Division approves Applicant's claimed CEQA exemption(s), the staff will prepare a Notice to Proceed (NTP) and file a Notice of Exemption with the State Clearinghouse, Office of Planning and Research.
D. Disapproval of Claimed CEQA Exemption(s). If the Commission Energy Division disapproves Applicant's claimed CEQA exemptions, ED Staff will issue to Applicant a letter which states the specific reasons that the claimed CEQA exemptions do not apply to the proposed project.
If the Commission Energy Division disapproves Applicant's claimed CEQA exemption(s), Applicant shall either re-design the specific project and facilities and then reapply for a finding of exemption from CEQA, or shall file a formal application with the Commission seeking the requisite approval and undergo full CEQA review, before commencing any full facilities-based construction activities.
Applicant shall not engage in any construction activity relating to a pending CEQA exemption request before receiving an NTP from ED Staff. Applicant may follow the above procedures unless and until the Commission adopts different requirements for CEQA review, which are applicable to Applicant, in Rulemaking 06-10-006 or a subsequent proceeding.
We grant Applicant authorization to utilize the above procedure only for certain projects as described in the application, to be constructed in existing public rights-of-way and utility easements in developed urban or suburban areas. Other types of full facilities-based construction may require a different level of CEQA review. Therefore, if Applicant wishes to pursue full facilities-based construction projects other than as described in the application, Applicant shall file for additional authority from the Commission and shall undergo any required CEQA review before commencing construction.
1 See, e.g., ClearLinx Network Corporation (D.06-04-063), New Path Networks, LLC (D.06-04-030), CA-CLEC LLC (D.06-04-067), Sunesys, Inc. (D.06-06-047),
NextG Networks of California, Inc. (D.07-04-045), Broadband Associates International (D.07-08-026), Trillion Partners, Inc. (D.07-11-028), Freedom Telecommunications, Inc. (D.09-11-021), Central Valley Telecom, LLC (D.11-07-019).
