IV. Adopted Modifications to D.03-05-077

To bring D.03-05-077 in line with unambiguous Commission precedent, the Commission should delete Finding of Fact No. 9, Conclusion of Law No. 1, and the following language in the body of the Decision:

At D.03-05-077, mimeo, pp. 8-9:

PG&E claims that the San Mateo Bridge line is subject to a categorical exemption from CEQA on the ground it is a "minor alteration of existing facilities." CEQA Guideline Section 15301 and Commission Rule 17.1(h)(1)(A)(2) provide for a CEQA exemption for minor alterations of existing facilities. However, we believe this exemption may only be properly applied to an electric utility for minor alterations to and for the purpose of its own electric service. We do not believe the modification of electric facilities to install new telecommunications lines constitutes negligible or no expansion of existing use. Indeed, the change PG&E made to its facilities is not related to existing use of the facilities, but rather enables telecommunications modernization. Thus, the exemption does not apply here. On balance, however, we are satisfied that the BCDC's determination, coupled with PG&E's contacts to the other agencies we list above, ensured that no environmental harm would come from the fiber optic cable's installation.

At D.03-05-077, mimeo, pp. 15-16:

However, each of the decisions - D.92-07-007, decided in 1992, D.96-07-038, decided in 1996, and D.00-01-014, decided in January 2000 - predate changes in the Commission's approach its to CEQA obligations that we have acknowledged openly in decisions. For example, in D.02-08-063, decided in August 2002, we explained that, "The Commission has been compelled to reevaluate its requirements under CEQA to ensure sound environmental practices by regulated utilities. The Commission for the past two years has begun taking a more active role in environmental oversight."

Implicit in our foregoing statements is an acknowledgement that our prior CEQA decisions are no longer fully relevant. We believe it is better to comply fully with CEQA than to adhere to prior policies and decisions that did not take full account of our obligations to protect the environment. Even the 2000 decision relied on old precedent that is no longer in conformity with our more in-depth approach to environmental review.

Therefore, we believe that the cases PG&E cites are not applicable, and that where PG&E allows third parties to install facilities on PG&E's transmission lines, primarily for the third party's own use and not for PG&E's purposes, the "minor alteration of existing facilities" exemption does not apply. Such an installation adds new facilities with an entirely new usage, rather than altering existing facilities. In view of our stepped-up enforcement of CEQA requirements, it is preferable that we interpret CEQA exemptions narrowly.

The deleted language above is replaced with the following:

At D.03-05-077, mimeo, pp. 8-9:

Above and beyond the BCDC's review of the San Mateo Bridge line, we find in our capacity as a Responsible Agency reviewing this Section 851 Application that this portion of the installation identified in the Application is categorically exempt from CEQA. We find that it can be seen with certainty that there will be no significant effect on the environment as a result of our granting the requested authorization, and that installation constitutes but a minor alteration to existing facilities. (14 Cal. Code of Regulations §§15061 and 15301.) We have approved similar installations of fiber optic cable and related communications equipment on existing utility structures in previous decisions and found that such installations are exempt from CEQA. (See D.00-01-014, D.96-07-038, D.94-06-017, D.93-04-019, and D.92-07-007.)

We agree that the Commission should continue to uphold the CEQA exemptions for minor installations to existing facilities and for activities for which it can be seen with certainty that there will be no significant impact on the environment. We have recognized these CEQA exemptions in previous Commission decisions and continue to do so here because it furthers the very purposes of CEQA, that is, to ensure governmental review of potential significant environmental impacts. Moreover, the joint use of utility property is a policy that the Commission continues to promote. Therefore, the installations conducted pursuant to the Agreement should be exempt from CEQA as minor alternations to existing facilities and because it can be seen with certainty that there is no possibility that the activities in question will have a significant effect on the environment.

Proposed new Conclusion of Law 1:

1. The aerial installation of fiber optic cable across the San Francisco Bay on existing Pacific Gas and Electric Company transmission towers parallel to the San Mateo Bridge is categorically exempt from CEQA as a minor alteration to existing facilities and because it can be seen with certainty that this installation will have no significant effect on the environment.