5. Discussion and Conclusions

After review of the documents, we conclude that Level 3's application and final PEA comply with the requirements established in D.98-03-066 for modification of a CPCN to allow fiber optic network construction and operation outside of existing utility ROWs. Level 3's assertions, that construction of the 19 facilities and two workarounds are necessary for its long-planned telecommunications network to function, remain uncontroverted.

These 21 project elements have been subjected to a thorough review under CEQA. Staff have revised the draft Subsequent MND to incorporate and address the concerns voiced by the various comments. We conclude that construction and operation of the project elements in accordance with the terms of the Final Subsequent MND will either avoid environmental impact or reduce the impact to less-than-significant, as CEQA requires.

In view of the foregoing, the recommendations of staff and Level 3's demonstrated efforts to comply with the Commission's permitting process and with CEQA, we conclude modification of the CPCN is warranted. Accordingly, we will grant Level 3's request and authorize the construction and operation of the 21 additional network project elements, subject to the terms and conditions of the Final Subsequent MND, which we adopt. Level 3 must comply with the Mitigation Monitoring Plan to ensure that the mitigation measures are followed and implemented as intended. We note that via the PEA, which is a part of the application in this proceeding, Level 3 has committed to comply.

In Resolution ALJ 176-3018, dated June 24, 1999, the Commission preliminarily categorized this application as ratesetting and determined hearings might be necessary. We confirm the categorization. However, since no protests have been received and since this proceeding can be resolved on the initial pleadings and comments on the Subsequent MND, a public hearing is unnecessary.

Comments on Draft Decision

This is an uncontested matter in which the decision grants the relief requested. Accordingly, pursuant to Pub. Util. Code ยง 311(g)(2) the otherwise applicable 30-day period for public review and comment is being waived.

Findings of Fact

1. Level 3 filed A.99-06-028 on June 16, 1999, for modification of its CPCN to allow construction of 21 specified project elements outside of existing utility ROWs. These project elements comprise the 19 facilities identified in Attachment A and two workarounds, known as Dibble Creek and Cuesta Grade.

2. No protests have been filed.

3. The Commission's staff conducted a review of Level 3's proposed project and issued a Subsequent MND for public review and comment.

4. Following receipt of comments, the Commission's staff prepared a Final Subsequent MND.

5. With the incorporation of the mitigation measures in the Final Subsequent MND, including but not limited to those specifically set out in the ordering paragraphs of this decision, Level 3's proposed project will not have potentially significant adverse environmental impacts.

Conclusions of Law

1. The application meets the requirements established in D.98-03-066 for modification of a CPCN to authorize off-ROW construction and operation.

2. A hearing is not required.

3. The Subsequent MND was prepared in compliance with and pursuant to CEQA.

4. The Subsequent MND should be adopted.

5. In compliance with CEQA, Level 3 must agree to, and is required to carry out, all mitigation measures adopted in the Final Subsequent MND.

6. Level 3's CPCN should be modified to allow construction of the nineteen facilities identified in Attachment A and the Dibble Creek and Cuesta Grade workarounds, subject to the mitigation measures adopted in the Final Subsequent MND.

7. Because of the public interest in fiber optic telecommunications services, the following order should be effective immediately.

ORDER

IT IS ORDERED that:

1. The application of Level 3 Communications, LLC (Level 3) for modification of its Certificate of Public Convenience and Necessity to allow construction of 21 specified project elements outside of the existing utility rights of way is granted, subject to the conditions imposed in the ordering paragraphs below. These project elements comprise the 19 facilities identified in Attachment A and two workarounds, known as Dibble Creek and Cuesta Grade.

2. The Final Subsequent Mitigated Negative Declaration and Initial Study (Subsequent MND) is adopted.

3. Level 3 shall fully implement the mitigation measures and summarized in Table 4.1 of Subsequent MND and described in greater detail elsewhere in that document

4. Level 3 shall enter into a cost reimbursement agreement with the Commission for expenses accrued from implementing the mitigation and monitoring plan described in the Subsequent MND. Compliance with this agreement, including timely payment, is a condition of approval of this decision.

5. The Environmental Projects Unit of the Energy Division shall supervise and oversee construction of the Project insofar as it relates to monitoring and enforcement of the mitigation measures described in the Subsequent MND. The Energy Division may designate outside staff to perform on-site monitoring tasks. The Commission project manager (Environmental Projects Unit, Energy Division) shall have the authority to issue a Stop Work Notice on the entire project, or portions thereof, for the purpose of insuring compliance with the mitigation measures described in the Subsequent MND. Construction may not resume without a Notice to Proceed issued by the Environmental Projects Unit of the Energy Division.

6. Level 3 Applicant shall send a copy of this decision to concerned local permitting agencies not later than 30 days from the date of this order.

7. Resolution ALJ 176-3018 is amended to state that no hearings are necessary on this application.

8. This proceeding is closed.

This order is effective today.

Dated August 3, 2000, at San Francisco, California.

NOTE: See CPUC Formal Files for Attachments A, B-1, & B-2.

ATTACHMENT A

(Level 3 Communications Initial Study)

ATTACHMENT B

The Final Mitigated Negative Declaration was mailed to all parties to the application as well as all who commented on the draft Subsequent Mitigated Negative Declaration and Initial Study. Due to its volume, only the executive Summary and Table 4-1, entitled Additional Mitigation Measure Summary, are attached to this decision.

The final Subsequent Mitigated Negative Declaration will be posted on he Commission's web site at www.cpuc.ca.gov. Click on "CPUC Environmental materials," then "Current Projects," and then "Level 3 Communications Infrastructure Project."

If you are unable to access this document electronically, please call Sue Walker at Aspen Environmental Group at 818/597-3407.

(END OF ATTACHMENT B)

ATTACHMENT B-1

(Level 3 Communications Infrastructure Project
Subsequent Mitigated Negative Declaration and Initial Study)

ATTACHMENT B-2

(Table 4-1 Additional Mitigation Measure Summary)

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