Comments on Draft Decision
The draft decision of ALJ Brown was mailed to the parties in accordance with Pub. Util. Code Section 311(g)(1) and Rule 77.7 of the Commission's Rules of Practice and Procedure.
1. On March 8, 2004, SDG&E filed an application for a CPCN for the proposed OMPPA Transmission Project to construct two new 230 kV electric transmission circuits to connect SDG&E's Miguel Substation with both the Sycamore Canyon Substation and the Old Town Substation in San Diego County.
2. In accordance with CEQA and the State CEQA Guidelines, the Commission is the lead agency under CEQA with respect to the environmental review of the project and preparation of the FEIR and has conducted an environmental review of the project in conformance with CEQA. The FEIR consists of the DEIR, revised to incorporate comments received by the Commission from the proponent, agencies and the public, and the responses to comments. The FEIR has been completed in accordance with CEQA Guidelines Sections 15120 through 15132.
3. On November 18, 2004, SDG&E amended its application to reflect an alternative to the Proposed Project that proposes undergrounding a short portion of a segment that transverses the City of Chula Vista's Bayfront.
4. The EIR and the application proceeding for the CPCN proceeded on parallel timelines.
5. In lieu of Evidentiary Hearings on the CPCN, parties submitted testimony and reply testimony, and opening and reply briefs. The matter was submitted upon the filing of reply briefs on April 29, 3005.
6. The OMPPA Project is needed to provide full dispatchability of resources from the proposed OMGP that could be delivered into the San Diego LRA; provide firm transmission delivery of OMPG to load centers; prevent intra-zonal congestion at the Miguel Substation; meet G-1/N-1 reliability criterion; provide for expansion capability; minimize load shedding and avoid potential cascading outages during Miguel Corridor outage; and provide cost savings in reduced RMR costs.
7. The only Class I environmental impact from the Proposed Project was the visual impact along Segment #3 if 63 steel poles are added to the existing lattice towers in the transmission corridor. However, for some key viewpoint locations, APMs and mitigation measures would reduce the impacts to less than significant.
8. The EIR proposes an "Environmentally Superior Alternative" for Segment #3, Alternative 7 PV1, that when the existing lattice towers are removed would result in reducing the overall visual impacts from the key viewpoint locations to less than significant. It is within the discretion of the Commission to adopt this Alternative or some other variation.
9. The degree of overall change from the existing conditions along Segment #3 to under Alternative 7 PV1 would range from beneficial to slightly adverse when compared to the Proposed Project.
10. The ESA of the EIR (Alternative 7 PV1) is not adopted in this decision because it would provide minimal, short-term visual benefits that do not support the Alternative when balanced against the totality of the considerations attendant to the Proposed Project and alternatives, including, cost-effectiveness concerns, delays in construction, potential reduction in dispatch from the South Bay plant with a corresponding increase in RMR costs, problems with reliability, and restrictions to expansion capability for future load growth.
11. The FEIR analyzes the environmental impacts, mitigation measures and significance after mitigation under the following categories: (1) air quality; (2) biological resources; (3) cultural resources; (4) geology and soils; (5) public health and safety; (6) hydrology; (7) noise; (8) transportation and traffic; (9) public services and utilities (10) land use, agriculture, and recreation (11) population and housing; and (12) visual resources The FEIR contained mitigation measures that would avoid or reduce all environmental impacts except specified visual impacts of the Proposed Project and Class I land use impacts of the South Bay Power Plant to Sweetwater River Overhead Design Alternative, to less than significant levels.
12. If an agency approves a project which will have significant and unavoidable environmental impacts it must determine that the benefits of the project outweigh the significant unavoidable impacts pursuant to Public Resources Code Section 21081 and adopt a Statement of Overriding Considerations.
13. The mitigation measures identified in the FEIR are feasible and reasonable.
14. As lead agency under CEQA, the Commission is required to monitor the implementation of mitigation measures adopted for this project to ensure full compliance with the provisions of the monitoring program.
15. The Mitigation Monitoring, Compliance and Reporting Plan in the FEIR conforms to the recommendations of the FEIR for measures required to mitigate or avoid environmental effects of the project as modified and adopted that can be reduced or avoided.
16. The FEIR must contain specific information according to the CEQA Guidelines Sections 15120 through 15132. The Commission must conclude that the FEIR is in compliance with CEQA before approving SDG&E's application for a CPCN for the OMPPA Project.
17. We believe the FEIR meets these tests and we find that the FEIR is the competent and comprehensive informational tool that CEQA requires it to be and the quality of the information therein is such that we are confident of its accuracy.
18. We have considered that information in the FEIR in evaluating the SDG&E's Proposed Project as described herein in this decision.
19. The FEIR reflects the Commission's independent judgment and analysis on the issues addressed in the FEIR, and the Commission has reviewed and considered the information in the FEIR before issuing this decision on the project.
20. The OMPPA Project, as adopted today, is needed to provide full dispatchability of resources from OMGP for delivery into the San Diego LRA; provide firm deliverability of OMGP to Load Centers; reduce intra-zonal congestion at Miguel Substation; meet G-1/N-1 reliability requirements for future growth; provide for expansion capability for load growth; minimize load shedding and avoid potential cascading outages during Miguel corridor outages; and provide RMR cost savings.
21. The economic benefits of OMPPA outweigh the economic costs.
10. The procedures employed for this project are in conformance with CEQA. The contents of the FEIR comply with the requirements of CEQA and represent the Commission's independent judgment. Accordingly, the FEIR should be certified for the Project in accordance with CEQA.
11. The Commission has jurisdiction over the Proposed Project pursuant to Pub. Util. Code Section 1001 et seq.
12. The Commission, under CEQA Guidelines Section 15021, has an obligation to balance economic, social/community factors, timing of need, along with the environmental information presented in the FEIR to make the ultimate determination regarding whether the Proposed Project is to be approved.
13. The Commission retains authority to approve SDG&E's mitigation plan to ensure that the OMPPA Project does not affect the environment adversely.
14. Commission's approval of SDG&E's application for a CPCN, as modified herein, is in the public interest.
15. The approval of the application, as provide herein, should be conditioned upon the completion of the mitigation measures identified in the FEIR. Those mitigation measures should be adopted and made conditions of project approval.
16. With respect to those mitigation measures referenced in the immediately preceding Conclusion of Law that are within the responsibility and jurisdiction of another public agency, such mitigation measures can and should be adopted by that other agency.
17. Construction of the project approved herein will result in significant and unavoidable visual impacts that cannot be mitigated to less than significant levels.
18. Benefits of the project identified in the Statement of Overriding Considerations outweigh the significant and unavoidable impacts of the project and justify its approval.
19. SDG&E should be granted a CPCN for the OMPPA Project because of its beneficial impact on the operation of the state's electric system, and in particular, SDG&E's electric system.
20. There are no internal disputed facts and EHs are not required.
IT IS ORDERED that:
21. The Final Environmental Impact Report (FEIR), which consists of two separate documents, the Draft EIR and the Final EIR, is certified as the Environmental Impact Report (EIR) for the Otay Mesa Power Purchase Agreement Transmission Project (OMPPA), which is the subject of this application and is certified for use by responsible agencies in considering subsequent approvals for the project, or for portions thereof.
22. The Statement of Overriding Considerations is adopted and certified as part of the FEIR.
23. A Certificate of Public Convenience and Necessity is granted San Diego Gas & Electric Company (SDG&E) to construct the OMPPA Project consistent with the environmental and regulatory requirements set forth herein.
24. SDG&E shall, as a condition of approval, build the project in accordance with the alternative design options as described in the FEIR, but not with Alternative 7 PV1. In addition, SDG&E shall comply with the mitigation measures applicable to the Proposed Project, as specified in the DEIR, FEIR, and Mitigation Monitoring and Reporting Program adopted and certified by this Order.
25. The Executive Director shall supervise and oversee construction of the project insofar as it relates to monitoring and enforcement of the mitigation conditions described herein. The Executive Director may delegate his duties to one or more Commission staff members or outside staff. The Executive Director is authorized to employ staff independent of the Commission staff to carry out such functions, including, without limitation, the on-site environmental inspection, environmental monitoring, and environmental mitigation supervision of the construction of the project. Such staff may be individually qualified professional environmental monitors or may be employed by one or more firms or organizations. In monitoring the implementation of the environmental mitigation measures described in the DEIR and FEIR, the Executive Director shall attribute the acts and omissions of SDG&E's employees, contractors, subcontractors, or other agents to SDG&E.
26. SDG&E shall comply with all orders and directives of the Executive Director concerning implementation of the environmental mitigation measures described in the DEIR and FEIR.
27. The Executive Director shall not authorize SDG&E to commence actual construction until SDG&E has entered into a cost reimbursement agreement with the Commission for the recovery of the costs of the mitigation monitoring program described in Section G of the FEIR, including, but not limited to, special studies, outside staff, or Commission staff costs directly attributable to mitigation monitoring. The Executive Director is authorized to enter into an agreement with SDG&E that provides for such reimbursement on terms and conditions consistent with this decision in a form satisfactory to the Executive Director. The terms and conditions of such agreement shall be deemed conditions of approval of the application to the same extent as if they were set forth in full in this decision.
28. SDG&E's right to construct the project as set forth in this decision shall be subject to all other necessary state and local permitting processes and approvals.
29. SDG&E shall file a written notice with the Commission, served on all parties to this proceeding, of its agreement, executed by an officer of SDG&E duly authorized (as evidenced by a resolution of its board of directors duly authenticated by a secretary or assistant secretary of PG&E) to acknowledge SDG&E's acceptance of the conditions set forth in Ordering Paragraphs 1 through 9, inclusive, of this decision. Failure to file such notice within 75 days of the effective date of this decision shall result in the lapse of authority granted by this decision.
30. The Executive Director shall file a Notice of Determination for the project as required by the California Environmental Quality act and the regulations promulgated pursuant thereto.
31. Application 04-03-008 is closed.
This order becomes effective immediately.
Dated __________________, at San Francisco, California.
