8. Compliance with the California Environmental Quality Act (CEQA)
The sole remaining issue is whether, as Joint Applicants assert, the proposed transfer and sale qualifies for an exemption from CEQA. Under Public Resources Code § 21080 et seq., known as the California Environmental Quality Act (CEQA) and pursuant to Rule 2.4 of the Commission's Rules of Practice and Procedure, we are required to consider the environmental consequences of projects that are subject to our discretionary approval. While a change of ownership and/or control may result in environmental impacts by altering an existing project, resulting in new projects, or changing facility operations, that does not appear to be the case here.
Joint Applicants state that "[f]or the assets subject to the APA, there will be no change in the operation of the assets serving customers in the Kirkwood area."56 The CEQA Guidelines state that a proposed "activity [that] will not result in a direct or reasonably foreseeable indirect physical change in the environment" is exempt from CEQA.57 Similarly, where "it can be seen with certainty that there is no possibility that the [proposed] activity in question may have a significant effect on the environment, the activity is not subject to CEQA."58
While KMPUD does intend to construct a replacement powerhouse, KMPUD is the lead agency for that project under CEQA, not this Commission. The Joint Applicants state that KMPUD has considered the application of CEQA, and has issued a Notice of Exemption for the construction of the replacement powerhouse on the grounds that the project is statutorily exempt from CEQA as an "emergency replacement of service facilities" necessary to maintain service essential to the public health, safety or welfare.59
Based on the record before this Commission, we uphold the initial ruling in our scoping memo that the proposed project qualifies for multiple exemptions from CEQA, including CEQA Guideline § 15269(b) as an emergency repair of publicly or privately owned service facilities, §15302(c) as a replacement or reconstruction of existing utility systems and/or facilities, and § 15061(b)(3) as having no significant impact upon the environment. Accordingly, the Commission need perform no further CEQA review for this application.
56 Application at 15.
57 CEQA Guideline § 15060(c)(2)
58 CEQA Guideline § 15061(b)(3).
59 Application at 16, referencing CEQA Guideline §§ 15269(b) and (c).
