11. California Environment Quality Act (CEQA)

CEQA requires the Commission as the designated lead agency 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.

11.1. Proposed Construction

ATC anticipates that most of its construction activity will involve no ground disturbing activity. In most instances, ATC will operate by installing equipment in or on existing streetlights, poles, towers, buildings, fiber, conduits, ducts, rights-of-way, trenches and other facilities and structures of other entities. ATC states that it will not need to construct any new buildings, towers, conduits, poles or trenches in California to provide the services for which it seeks authority. Occasionally when required to meet applicable engineering and safety standards, ATC may also need to replace an existing pole. In these circumstances, ATC would proceed pursuant to its limited facilities-based authority. Also, pursuant to the full facilities-based authority requested in the application, ATC will undertake relatively minor ground-disturbing activities primarily in existing, well-used right-of-way and utility easements in developed areas.

ATC states that the activities for which it seeks authority include, micro-trenching, traditional trenching and installation of underground conduit in existing rights-of-way and utility easements. In addition, in limited instances, ATC construction plans may also call for replacing existing utility poles (performed at a utility's request or to meet applicable engineering and safety standards), installing new poles where existing ones are not available and installing underground vaults to accommodate communications equipment where such installment 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. ATC submits that the above activities have been ruled categorically exempt from CEQA.

11.2. Discussion

We agree with ATC that the above construction activities are similar to those undertaken by other carriers that the Commission recently has ruled are categorically exempt from CEQA. (See, e.g., D.06-04-063. (ClearLinx Network Corporation); D.06-04-067 (CA-CLEC-LLC).) In addition, the Commission also has found that boring and installation of new conduit in an existing right-of-way is exempt from CEQA. (D.08-12-017 (Zephyr).) Therefore, ATC need not request CEQA exemption review for these activities.

Nevertheless, in light of its application for full facilities-based authorization, ATC requests authorization of a CEQA exemption review procedure for proposed full facilities-based construction that it believes may be exempt from CEQA review. ATC states that it does not know at this time all of the specific areas where it may have to undertake construction. ATC therefore requests approval to utilize a procedure for expedited review of ATC proposed construction activity involving full facilities-based construction once ATC is aware of a specific instance in which it plans construction.

As requested by ATC, we set forth below a procedure whereby ATC may request the Commission's Energy Division to make a determination whether a project is categorically exempt from the requirements of CEQA review.

Procedure for Obtaining Expedited
Review of CEQA Exemption Request

· Applicant reviews proposed project to determine that no conditions exist to warrant exceptions to an exemption pursuant to CEQA Guidelines § 15300.2.

· Applicant submits the following information to the Energy Division:

· A detailed description of the proposed project, including:

1. Utility distribution system to be served.

2. The precise locations of any proposed trenching, any new surface structures (a taller utility pole that is installed to replace an existing utility pole in order to accommodate additional attachments shall not be considered a "new" structure; nor shall broadband-over-powerline (BPL) equipment (i) mounted on existing utility poles or taller replacement poles or (ii) installed within existing utility vaults, transformer enclosures, substations, or similar facilities, be deemed to be "new" structures), and any aerial BPL equipment installation, pole replacement, or aerial fiber optic cabling requiring overland access for installation (i.e., not via an existing roadway or other previously-improved surface), and the precise route of any aerial fiber optic cabling.

3. Regional map showing route of aerial systems upon which facilities will be installed; and local site maps of any locations identified in the Energy Division's Preconstruction Survey Checklist - Archaeological Resources (Checklist), including locations of aerial fiber optic cable routes not requiring overland access for installation, or poles or BPL equipment not deemed to be new structures).

· A description of the environmental setting, to include at a minimum for locations identified in the Checklist (but not including settings of aerial fiber optic cable routes not requiring overland access for installation, or poles or BPL equipment not deemed to be new structures).

· Cultural, historical, and paleontologic resources.

· Biological resources.

· Current land use and zoning.

· A construction workplan, to include:

· Pre-Construction Survey Checklist - Archaeological Resources for appropriate locations identified in the Checklist.

· Pre-Construction Survey Checklist - Biological Resources for appropriate locations identified in the Checklist.

· A detailed schedule of construction activities, including site restoration activities for locations identified in the Checklist, but not including aerial fiber optic cable not requiring overland access for installation or poles or BPL equipment not deemed to be new structures).

· 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 for locations identified in the Checklist, (but not including aerial fiber optic cable not requiring overland access for installation or poles or BPL equipment not deemed to be new structures).

· A list of permits required for the proposed project.

· A statement of the CEQA exemptions(s) applicable to the proposed project.

· Documentation and factual evidence sufficient to support a finding that the claimed exemption(s) is (are) applicable.

· Energy Division will review the Applicant's submission for the proposed project to confirm that the claimed exemption(s) from CEQA are applicable.

· Within 21 days from the date of Applicant's submittal 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 exemptions (s) are not applicable to the proposed project. (D.08-04-018.)

· If Energy Division denies the proposed exemption, Applicant could discuss with the staff the reason for the denial and, if possible, provide additional information and/or modify the proposed construction activity so that it would be categorically exempt. If the conclusion is that the construction simply is ineligible for categorical exemption and Applicant still desires to move forward, Applicant would follow standard Commission CEQA procedures in place at the time.

Each project may involve the installation of equipment in or on existing structures (limited facilities-based construction or LFB) as well as in underground trenches (full facilities-based construction or FFB). Under previous decisions, the Commission has determined that the installation of LFB equipment presents no possibility of affecting the environment. As a result, the Commission has customarily allowed the bearers of LFB authority to proceed with the installation of equipment in or on existing structures without Energy Division notification or further CEQA review.

However, CEQA prohibits the piecemealing of projects into smaller segments as a means of disaggregating the overall impacts of the project. Because a project may include both LFB and FFB segments, the Energy Division must consider the whole action when contemplating the approval of a categorical exemption for any project.

Local governments may be concerned that the expedited review process would permit the installation of utility poles in areas designated as underground districts. Local ordinances often grant exceptions to utilities for aerial construction in those districts for communications services. Thus, the procedure we adopt here will apply to installing utility poles in underground districts where local jurisdictions grant such exceptions.

The Commission is reviewing CEQA issues affecting telecommunications providers on a broader, policy level in Rulemaking (R.) 06-10-006. Applicant may utilize the above process for obtaining Commission review, and approval or disapproval of, proposed CEQA exemptions unless the Commission adopts different requirements applicable to Applicant in R.06-10-006 or a subsequent proceeding.