6. Environmental Review

The CEQA requires the Commission to consider the environmental consequences of its discretionary decisions, such as Section 851 approvals. (Pub. Res. Code § 21000, et seq.) PG&E maintains that environmental review is not required in order for the Commission to approve this application. It states that most of the agreements are categorically exempt from CEQA, while nine of the transactions received environmental review by other agencies, and six of the transactions pre-date the enactment of CEQA and thus are not subject to environmental review requirements. Because most of the agreements submitted for approval as part of this application are several years old, any activity which would have required our timely environmental review has already occurred.

Consequently, for practical purposes meaningful CEQA review at this time would have no effect because we are unable to conduct the review prior to any project or construction activity. Nevertheless, we will address the issue of CEQA exemptions raised by PG&E and determine, where possible, whether the asserted CEQA exemptions apply. For purposes of this decision an agreement will be deemed exempt from CEQA review only if all the activities which took place under the agreement fall within one or more of the CEQA exemptions. Where there is insufficient factual information to determine whether an exemption applies, the agreement will be deemed not exempt. In the case where an application was submitted contemporaneous with our ability to conduct timely CEQA review, we would require additional information to determine the appropriate level of CEQA review. Here, that further inquiry would not be an efficient use of time or resources. Therefore, we merely point out that additional information would normally be expected in this situation.

Finally, we caution that accurate CEQA review, including an assessment of CEQA exemptions requires fact-specific and typically case-by-case analysis. Similar sounding activities may in fact warrant different treatment depending upon the particular project characteristics, scope of work, location and environmental conditions. We prefer a case-by-case review.

6.1. Transactions Subject to Categorical
Exemptions

Pub. Res. Code §§ 21000 et. seq., and Title 14 of the California Code of Regulations Sections 15000-15387 (hereafter "CEQA Guidelines") enumerate various categorical exemptions to the requirement for environmental review under CEQA. PG&E's application lists the following categorical exemptions, either individually or jointly, as applicable to the majority of the 256 transactions (Attachment A).

6.1.1. Guideline 15301 Existing Facilities

CEQA Guideline 15301 exempts from CEQA review "the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use...."

6.1.2. Guideline 15302 Replacement or
Reconstruction

Guideline 15302 exempts from CEQA review the "replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced..."

6.1.3. Guideline 15303 New Construction or
Conversion

Guideline 15303 exempts the "construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure...." This exemption includes the construction of commercial projects such as certain residential dwellings, duplexes, or commercial buildings in residential or urbanized areas. It also exempts accessory (appurtenant) structures such garages, carports, patios, swimming pools and fences.

6.1.4. Guideline 15304 Minor Alterations to Land

Guideline 15304 exempts from CEQA review "minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes." Included under this exemption are certain activities such as grading with a slope of less than 10%, landscaping, and minor trenching and backfilling where the surface is restored.

6.1.5. Guideline 15305 Minor Alterations in Land Use Limitations

Guideline 15305 exempts from CEQA review "minor alterations in land use limitations in areas with an average slope of less than 20%, which do not result in any changes in land use or density." Included under this exemption are minor lot line adjustments and the issuance of minor encroachment permits.

6.1.6. Guideline 15311 Accessory Structures

CEQA Guideline 15311 exempts from CEQA review "construction or placement of minor structures accessory to (appurtenant to) existing commercial, industrial or institutional facilities." On premises signs and small parking lots may be included within this exemption.

6.1.7. Guideline 15316 Transfer of Ownership of Land in Order to Create Parks

Guideline 15316 exempts from CEQA review "the acquisition, sale, or other transfer of land in order to establish a park where the land is in a natural condition or contains historical or archeological resources and either (a) the management plan for the park has not been prepared, or (b) the management plan proposes to keep the area in a natural condition or preserve the historical or archeological resources. CEQA will apply when a management plan is proposed that will change the area from its natural condition or cause substantial adverse change in the significance of the historical or archeological resource."

6.1.8. Guideline 15323 Normal Operations of Facilities for Public Gatherings

Guideline 15323 exempts from CEQA review "normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose. For purposes of this section, "past history" shall mean that the same or similar activity has been occurring for at least three years..."

6.2. Assessment of CEQA Application

6.2.1. Category 1a - Recreational Sites on Hydro-Generation Lands/Individual Uses

PG&E's application contains 131 licenses and leases which allow the recreational use of land by individuals. Of theses 131 transactions, 125 involve the use of pre-existing cabins, cottages, boat docks, etc. No construction or improvements have occurred under these agreements and there has been no change in use of the property or existing facilities. (Transactions 1-15, 17-35, 37-51, 53-81, 83-85, 87-106, 108-131.) PG&E asserts that these agreements are exempt from CEQA review pursuant to CEQA Guideline Section 15301.

As stated above, Section 15301 provides a categorical exemption for "the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures...involving negligible or no expansion of use..." We agree that mere continued use of pre-existing structures such as cabins, cottages, boat docks, etc., with no construction, or change of use, fits within the Section 15301 exemption from CEQA review.

Six of the 131 Category 1a transactions involve licenses or leases which allowed either the construction of a new cottage, or the rebuilding of an existing cottage. Transactions 82 and 16 allowed the construction of new cottages. PG&E asserts the agreements are exempt from CEQA review pursuant to CEQA Guideline Section 15303.

As stated above, Section 15303 provides a categorical exemption for "the construction and location of limited numbers of new, small facilities or structures..." The statute, as confirmed in CEQA Guideline notations to Section 15303¹ is intended to apply to "commercial projects which have available all necessary public services and facilities, and which are not located in an environmentally sensitive area." Examples of exempted projects include one to two single-family residences in a residential zone and up to three residences in an urbanized area. (Section 15301(a).) Also potentially exempted are duplexes (Section 15303(b)), and stores, motels, etc. (Section 15303(c)). The construction in question involves cottages on PG&E's FERC-licensed hydro-generation lands. PG&E points out that the FERC licenses may permit and encourage certain recreational uses of these lands, such as camps or cabins. However, that argument misses the point. PG&E has not established that encouragement of certain recreational uses negates the necessity for environmental review. Further, we are not convinced that constructing recreational cottages and cabins on hydro-generation lands fits within an exemption for commercial projects in residential/urbanized areas, i.e., on land that is not environmentally sensitive. Therefore, we do not agree that the CEQA exemption properly applies.

Transactions 36, 52, 86, and 107 allowed the licensees to use and maintain an existing recreational home site on individual home lots. PG&E's Attachment A indicates that under the agreement cottages were renovated or rebuilt. PG&E asserts these agreements are exempt from CEQA pursuant to CEQA Guideline Section 15302. Section 15320 provides a categorical exemption for "replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced..."

PG&E's application and the respective licenses and leases in question do not explicitly indicate that the reconstructions took place on the same site, or that the reconstructions did not involve any significant increase in capacity. If this application had been submitted contemporaneous with our ability to conduct timely CEQA review, we would seek to verify this information in order to confirm applicability of the exemption. However, for purposes of this decision we believe it is reasonable to conclude that since the reconstructions took place on relatively small, single residential lots, the replaced structures were "located on the same site" and having the "same purpose and capacity" within the meaning of Section 15302.

6.2.2. Category 1b - Recreational Sites on Hydro-Generation Lands/Public and Group Recreational Uses

PG&E's application contains 55 licenses and leases which allow the recreational use of land by the public and/or groups. Of these 55 transactions, 36 involve the use of pre-existing facilities including boat docks, ramps, camp sites, cabins, trails, restrooms, boat houses, parking areas, restrooms, etc. (Transactions 133-139, 142-143, 145, 147, 149-156, 158, 159, 161, 163-179, 182-185.) PG&E represents that no construction or improvements have taken place in association with these agreements and that there has been no change in the pre-existing use of the facilities. PG&E asserts that the agreements are exempt from CEQA review pursuant to CEQA Guideline Section 15301.

Section 15301 provides a categorical exemption for "the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures...involving negligible or no expansion of use..." Consistent with our finding regarding similar Category 1a uses, we agree that mere continued use of pre-existing facilities, with no construction or change of use, fits within the Section 15301 exemption from CEQA review.

Nine of the Category 1b transactions involve licenses or leases which allowed improvements on the property. PG&E asserts that these agreements are exempt from CEQA review pursuant to CEQA Guideline Section 15303.

Transaction 132 is a license agreement which allowed the installation and operation of 20 floating boat docks with associated walkways. In D.02-10-047, the Commission assessed under what conditions licenses which allowed for the installation of floating boat docks may properly fall within the scope of GO 69-C. The GO provides an exception to the Section 851 requirement for prior Commission approval of an encumbrance of utility property. Under the GO, there are three criteria which allow for a utility to grant an easement, license or permit for use or occupancy without Commission approval. Specifically, the interest granted must (1) be for a "limited use" of utility property; (2) be revocable either upon order of the Commission or upon the utility's determination that revocation is desirable or necessary to serve its patrons or consumers; and (3) not interfere with the utility's operations, practices, and service to its customers.

Similar to the license evaluated in D.02-10-047, a review of the Transaction 132 agreement appears to meet the GO 69-C criteria. The boat docks and stairways appear to represent a limited overall use of PG&E's property. The license specifies dock floatation material of styrofoam with rigid outer shell. The docks are anchored to the lake bottom by an anchor device that must not consist of metal barrels or corrosive material. According to Exhibit A of Transaction 132, the dock is substantial enough to accommodate 20 boats. However, it is not permanently affixed to the lake bottom and can be removed if either PG&E or the Commission should so order. In its application, PG&E affirmatively represents that the use of the dock will not interfere with its operations or service. Finally, the license provides that the agreement may be revoked by PG&E and/or by order of the Commission. Accordingly, we find that Transaction 132 fits within the scope of GO 69-C and does not require our approval under Section 851. CEQA, therefore, is not triggered and no finding as to the asserted categorical exemption is necessary.

Transaction 140 involves an agreement for the use of an existing camp and RV park. PG&E's Attachment A indicates that under the agreement, a kitchen facility was reconstructed. PG&E asserts that the agreement is exempt from CEQA review pursuant to CEQA Guideline Sections 15301, 15302 and/or 15323.

Consistent with our above discussion of the scope of Section 15301, we agree that activity under the agreement which involved mere use of existing facilities with no construction or change of use is exempt from CEQA review pursuant to this section. However, although Section 15301 allows for some "minor alteration," we are not convinced that reconstruction of a kitchen facility, absent more information to describe the actual nature of the improvements, readily fits within the "minor alteration" language of Section 15301. Therefore, we do not find Section 15301 applicable to the reconstruction activity. Section 15302 provides an exemption for certain replacement and reconstruction activities which are located on the same site and serve substantially the same capacity or purpose. PG&E's application and attachments do not specify that the reconstruction took place on the same site or did not involve any significant increase in capacity. A diagram attached to the agreement appears to indicate a sizeable property, but without any representation of the existing or replacement structure. For Transactions 36, 52, 86, and 107, we felt it reasonable to apply the exemption due to the limited use of the property (single-family residence/cottage) and the relatively small size of the property. Here, the broader use as RV park and camp suggests the possibility of reconstruction to accommodate greater or differing capacity. Further, the size of the property could allow the possibility to alter the location of reconstruction. It is possible the exemption applies. However, there is not enough information to resolve these uncertainties. We are unable to determine whether the exemption applies. Section 15323 provides a categorical exemption for "the normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose." There is nothing in the language of this section to indicate the exemption would encompass construction, improvement, reconstruction or replacement activities. We do not find Section 15323 applicable.

Transaction 141 involves an agreement for the use of an existing lodge, boat docks, cabins, septic systems, well, kitchen and sports field. Under the agreement, the boat dock and pier were replaced and a new caretaker cabin, mobile home and septic system were built. PG&E asserts that the agreement is exempt from CEQA review pursuant to CEQA Guideline Sections 15301, 15302, and 15323.

We agree that the use of existing facilities which also involved no construction or change of use is exempt from CEQA review under Section 15301. The other listed activities which took place under the agreement involve replacement as well as new construction activity. PG&E's application provides no factual information regarding the specific nature and scope of the construction or whether any local permitting or CEQA review was required. As previously discussed, there is nothing in the language of Section 15323 to suggest it encompasses construction, improvements or reconstruction. Therefore, we do not agree that Section 15323 is applicable. Section 15302 contemplates reconstruction and replacement but not the new construction which also took place. Therefore, we do not agree that any of the asserted CEQA exemptions apply to the new construction activities.

Transaction 144 involves the use of an existing trailer lot/sites, camp sites and boat dock. PG&E's Attachment A indicates a gravel road was put in as the only improvement under the agreement. PG&E asserts that the agreement is exempt from CEQA pursuant to CEQA Guideline Sections 15301 and 15311. We agree that mere use of the listed facilities without construction or change of use fits within the Section 15301 categorical exemption. At question is whether the gravel road is exempt from CEQA review under Section 15311. Section 15311 provides a categorical exemption for "construction or placement of minor structures accessory to (appurtenant to) existing commercial, industrial or institutional facilities, including but not limited to (a) on-premises signs, (b) small parking lots, and (c) placement of seasonal or temporary use items." We do not see the commonality between constructing a gravel road on hydro-generation land and minor structures appurtenant to commercial, industrial or institutional facilities as specified by the exemption. Accordingly, we do not find Section 15311 applicable to the gravel road.

Transaction 146 involves an agreement for the use of a recreational camp. PG&E's Attachment A indicates that under the agreement there were improvements to the water system, septic system, lodge, cabins, restroom and road. PG&E asserts that the agreement is exempt from CEQA review pursuant to CEQA Guideline Section 15303, which provides an exemption for the construction or conversion of small structures. As previously discussed, the exemption contemplates activities such as the construction of specified residential/commercial structures in residential zones or urbanized areas. (Section 15303(a).) It also includes activities such as water main, sewage, electrical utility system extensions of reasonable length to serve such construction (Section 15303(d)), and accessory structures such as carports, patios and swimming pools (Section 15303(e)). The range of activities which took place under the agreement appears reasonably substantial. However, the application provides only a listing of the activities, without any information regarding the location, nature or scope of those activities. It is not clear if the activities involved any new construction or only reconstruction. We have already expressed concerns regarding construction on the hydro-generation property within the intent of Section 15303, and we see no clear connection between the construction at question here and commercial projects as contemplated under the statute. Accordingly, we do not find the exemption is applicable.

Transaction 148 involves an agreement for the use of lake front property for recreational use. PG&E indicates that improvements under the lease included a boat ramp, docks and a storage area. PG&E asserts the activities are exempt from CEQA review pursuant to CEQA Guideline Sections 15301 and 15303.

We agree that the mere use of existing facilities, or in this case shoreline, with no construction or change of use is exempt from CEQA pursuant to Section 15301. At question is whether the improvements are exempt under Section 15303. Directly above we discussed the types of activities contemplated by Section 15303. We see no commonality between the construction of boat docks and ramp, etc. under this agreement and the construction of small residential or commercial structures in residential/urban areas, or appurtenant structures contemplated by Section 15303. Further, PG&E's application provides no factual information to elaborate on the actual scope of improvement/ construction activity which took place and makes no effort to establish a connection with Section 15303. We find Section 15303 does not apply. We also note that neither the application not the lease agreement itself provide sufficient information to determine if the boat dock improvement is in fact similar to the other floating boat dock agreements which qualify under GO 69-C.

Transaction 157 involves an agreement which allowed the installation and use of floating boat docks, log booms, and associated walkways. PG&E Attachment A also indicates a retaining wall was built under the agreement. PG&E asserts that the agreement is exempt from CEQA review pursuant to CEQA Guideline Sections 15301 and 15303.

With respect to the installation of the floating boat docks and log booms, the agreement appears to be consistent with other agreements which we have stated fall within GO 69-C. Consistent with the GO 69-C criteria, the specifications under the agreement seem to indicate that the agreement is for a limited use of PG&E's property, and the docks and booms are anchored to the lake bottom and are removable. The agreement is revocable by PG&E or upon order of this Commission. And the agreement specifies that the installation and use of these docks must not interfere with PG&E's operations or service. If we were looking solely at the installation of the docks and log booms, we would find that our Section 851 approval is not necessary and that the agreement falls within GO 69-C.

However, as mentioned, PG&E's Attachment A indicates that a retaining wall was also built under this agreement. The application provides no information with respect to the size or nature of the retaining wall, its location, or the scope of construction necessary to build the wall. There is no information provided in the application to connect this activity to the claimed CEQA exemptions. Section 15301 is not applicable to construction of the retaining wall because it is more than mere use of an existing structure with no construction or change of use. Absent facts to demonstrate otherwise, it is arguably more significant than a "minor alteration" as permitted under Section 15301. Further, to qualify as such under the exemption, it must be a minor alteration to an existing structure, which is not established in the application. We also see no commonality between the construction of a retaining wall and the construction of small residential/commercial structures in residential/urbanized areas, or accessory (appurtenant) structures such as patios and carports permitted under Section 15303. PG&E has offered no information or argument to assist in establishing such a connection. Thus, we find Section 15303 does not apply to provide a CEQA exemption.

Transactions 160 and 162 involve agreements for the use of lakeshore facilities for recreational purposes including boat launching, attachment of boat docks, boat and trailer storage, use of restroom, sunbathing and access to Bass Lake. PG&E's Attachment A indicates that improvements made under the lease were a boat dock, boat ramp, and storage area. PG&E asserts that these agreements are exempt from CEQA review pursuant to CEQA Guideline Sections 15301 and 15303.

We find the use of existing facilities on the property which involves no construction or change of use to be exempt from CEQA review under Section 15301. With respect to the attachment of boat docks and ramps, Transaction 160 and 162 do not contain some of the provisions we have found in other agreements that appear to characterize limited use, such as provisions that specify the materials and anchoring methods allowed for the docks. There is no information provided in the application to clarify the scope of construction. Thus here, we cannot readily conclude that the docks are merely anchored and removable, or whether they require more substantial construction such as the installation of wood or concrete pylons, etc. There is also no information provided regarding the scope of improvements necessary for the storage areas. They could potentially fit within the exemption contemplated under Section 15303 for accessory (appurtenant) structures. However, there is no factual information under either the agreements themselves or the application. We are, therefore, unable to determine applicability of Section 15303 to these transactions. If this application had been submitted contemporaneous with opportunity for timely CEQA review, we would require additional information in order to determine whether these activities which took place under the agreements are in fact within the exemption or require CEQA review.

Transaction 181 involves an agreement which allows the use of cross country ski trails and mountain bike trails. PG&E's Attachment A indicates that under the agreement a rock climbing wall was constructed. PG&E asserts the agreement is exempt from CEQA review pursuant to CEQA Guideline Sections 15301 and 15303.

We agree that the mere use of existing trails with no construction or change of use is exempt from CEQA review under Section 15301. In relevant part, Section 15303 provides an exemption from CEQA review for the construction of limited numbers of new small structures under certain conditions and the installation of appurtenant structures. With respect to the improvements, we note that in addition to construction of a rock climbing "bouldering" wall, the agreement refers to the placement of temporary tents. A letter attachment to the agreement refers to temporary tents that must be removed by November 1 of each year. Temporary placement of a tent would seem to suggest no activity which would trigger CEQA review. However, Term 20 under the agreement refers to the placement of six cabins to act as employees' quarters. There is no information regarding the scope of construction required for the cabins, and whether they are permanent or removable structures. Consistent with our prior reasoning, we do not find that cabins on hydro-generation lands are comparable to the Section 15303 exemption. Similarly, we do not find the construction of a "bouldering" wall consistent with the type of commercial projects contemplated by Section 15303. We do not agree that Section 15303 applies to the agreement.

Transaction 186 involves the use of a group recreational campground, with existing facilities including cabins, a chapel, a dining hall, showers, a dormitory, a store and kitchen/dining area. PG&E's Attachment A indicates that under the agreement, improvements included construction of a new dining hall, cabins and showers. PG&E asserts that the agreement is exempt from CEQA pursuant to CEQA Guideline Sections 15301, 15302 and 15323.

The use of existing facilities, with no construction or change of use is exempt from CEQA under Section 15301. Section 15302 provides a CEQA exemption for the replacement or reconstruction of structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity. The only information in the application which provides some guidance with respect to the actual improvement activities is a diagram attached to the agreement which reflects the existing campground site. The diagram shows a 10-acre site with various buildings and facilities spread throughout. Markings appear to indicate where certain existing structures (unidentified) were to be removed, while new boxes were drawn and designated as the location of a new dining hall, shower and cabins. These new, possibly replacement structures were marked within the same general vicinity as the other buildings, but at differing locations than the structures to be removed. Because the diagram does not identify the use of the removed structures as compared to the new structures, it is not possible to tell whether these were in fact all replacement structures or whether some were simply new/additional structures, beyond the scope of Section 15302. Therefore, we are unable to determine whether Section 15302 applies to this transaction. If this application had been submitted contemporaneous with opportunity for timely CEQA review, we would seek additional information in order to determine the appropriate level of environmental review.

6.2.3. Category 2 - Telecommunications

PG&E's application contains eight licenses and leases which allow for the installation of telecommunications towers, equipment, buildings or vaults on PG&E property. PG&E asserts that all the agreements are exempt from CEQA review pursuant to CEQA Guideline Section 15303.

Of the eight agreements, seven appear to be for the installation of cellular only facilities. (Transactions 187, 188, 189, 190, 191, 193 and 194) The various facilities installed under these agreements include concrete slabs, buildings and radio and microwave towers, a radio communications station, a monopole and vaults. The diagrams attached to the various agreements in some instances reflect fairly substantial towers of up to 150 feet and buildings up to 600+ square feet. Depending upon the location, we would expect that some if not all of these structures may warrant CEQA review and approval. However, the Commission has stated in GO 159-A that it has delegated its authority to regulate the location and design of cellular facilities to local agencies, while retaining oversight jurisdiction in cases of conflict with the Commission's goals and/or statewide interests.² The agreements require that all required governmental permits and approvals must be obtained. To comply with GO 159-A, this must also include CEQA review by the local agencies. Specifically, to comply with GO 159-A, the cellular service provider must provide notification to the Commission that it has obtained the requisite land use approvals or that no such approval is required. Where the agreement is for cellular facilities only and where these GO 159-A requirements are met, the agreements are not subject to further environmental review by this Commission.

Transaction 192 is an agreement that according to its terms, allows the installation of electrical equipment and associated facilities (not described) in a PG&E substation in connection with supplying 600-volt DC power for transit operations. The agreement makes no reference to telecommunications equipment nor does the diagram attached to the agreement illustrate telecommunications equipment. However, PG&E's Attachment A indicates telecommunications equipment (not described) was installed under the agreement. There is insufficient information in the application regarding the equipment actually installed to make any determination regarding CEQA. If this application had been submitted contemporaneous with the opportunity for timely CEQA review, we would require additional information in order to determine the requisite level of CEQA review. We are unable to determine whether the asserted exemption applies to this agreement.

6.2.4. Category 3 - Vehicle Parking

PG&E's application contains 15 licenses and leases which allow for vehicle parking on PG&E property. (Transactions 195-209.) PG&E's Attachment A indicates that various improvements which occurred under those agreements included landscaping, fences, gravel, paving, grading, protective barriers. PG&E asserts these agreements are exempt from CEQA pursuant to CEQA Guideline Sections 15302, 15304 and 15311.

Section 15302 provides a CEQA exemption for specified replacement and reconstruction activities. Nothing in the application or agreements indicates that any of the activities involved the replacement or reconstruction of structures and facilities. Based on the information provided, we find that Section 15302 does not apply. Section 15304 provides an exemption for "minor public or private alterations in the condition of land, water, and/or vegetation ..." with certain restrictions. Activities which fall within the exemption include grading with a slope of less than 10% and new gardening (Section 15304(a)) and landscaping (Section 15304(b)). Section 15311 provides an exemption for the "construction or placement of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities." Small parking lots are included among the allowed exemptions. (Section 15311(b).) Though not asserted by PG&E, we also note that Section 15303(e) lists fences as among the appurtenant structures exempted under that section. We find that activities which involved grading and landscaping activity are exempt from CEQA review under Section 15304. In reviewing the agreements in question and the attached diagrams, it appears that the improvements such as paving, gravel, and parking lots is on PG&E property adjacent to PG&E substations or similar facilities. In these areas the land is already disturbed and the PG&E facilities could reasonably be construed as within the meaning of commercial/industrial/institutional under Section 15311. Therefore, we find Section 15311 applies to these activities in this circumstance. Similar activities not appurtenant to such commercial/industrial/institutional facilities would not fit within the exemption. It also appears the fences in question were placed appurtenant to the PG&E facilities. Therefore, we find Section 15303 applies and exempts the fences from CEQA review. All the activities which took place under these agreements fall within one or more of the CEQA exemptions. Therefore, we agree that Transactions 195-209 are exempt from CEQA review.

6.2.5. Category 4 - Storage

PG&E's application contains six licenses and leases which allow the temporary storage of equipment or vehicles on PG&E property. (Transactions 210-215.) PG&E states that none of these agreements allow for the construction of self-storage facilities. PG&E Attachment A lists improvements under the agreements as fences, gates, grading, landscaping and installation of storage containers. PG&E asserts these agreements are exempt from CEQA review pursuant to CEQA Guideline Sections 15303 and 15304.

Under Category 3 we explained the application of Section 15303(e) with respect to fences. As with Category 3, attachments to each of the Category 4 agreements indicate that the improvements occurred on PG&E property adjacent to substations or similar facilities. Accordingly, we find the improvements of fences and gates under Transactions 210-217 are within the Section 15303(e) exemption for such appurtenant structures. Category 3 also discussed the application of Section 15304 to grading and landscaping activity. We similarly find the grading and landscaping under these transactions to be exempt from CEQA review pursuant to Section 15304. With respect to the containers, PG&E indicates these are temporary structures. Due to the nature of the property in question for these transactions (i.e., already disturbed substation or similar facilities), we believe it is reasonable to view the structures as appurtenant structures consistent with the exemption from CEQA review under Section 15303(e). All the activities which took place under these agreements fall within one or more of the CEQA exemptions. Therefore, we agree Transactions 210-217 are exempt from CEQA review.

6.2.6. Category 5 - Miscellaneous

PG&E's application contains 41 licenses and leases which allow miscellaneous uses of PG&E property not falling into any of the other categories.³ These agreements are discussed by grouping or separately below.

Barns, Corrals, Riding Areas

Two licenses in PG&E's application allow for the construction and operation of horse riding facilities. Transaction 216 allows for the construction and operation of a horse stabling business to accommodate up to 64 horses. PG&E's Attachment A indicates that construction under the agreement included stables, fences and corrals. Transaction 217 allows for the construction and operation of a riding center. Construction identified in the license agreement included a barn with paddock, storage shed, riding arena, fences, parking area and driveway. PG&E asserts the construction which took place under both transactions is exempt from CEQA review pursuant to CEQA Guideline Section 15303.

Section 15303 provides a categorical exemption for the construction of "limited numbers of new small facilities or structures..." Section 15303 goes on to state "...the numbers of structures described in this section are the maximum allowable on any legal parcel." As noted in previous discussion, examples of the type of structures contemplated by Section 15303 include one to three single family residences in a residential or urban zone (Section 15303(a)), a duplex or multi-family residential dwelling unit totaling no more than four dwelling units in urbanized areas (Section 15303(b)), and certain commercial buildings in urbanized areas with specific floor area limits. (Section 15303(c).) As discussed in Category 1, CEQA Guideline notations advise that the exemption applies to commercial projects which have all necessary public services and facilities, and which are not located in an environmentally sensitive area. According to diagrams attached to both agreements, both riding centers are located on PG&E substation property. However, the diagrams appear to indicate pasture area where the riding centers are actually located. Thus, even if riding centers could be construed as commercial projects within the meaning of the statute, their location suggests potentially environmentally sensitive areas. Further, there is no indication of what public services or facilities are necessary to service the riding centers and whether the project involved the construction of such facilities. The diagram with Transaction 216 reflects in excess of 14 stables. It is not possible to tell from the diagram for Transaction 217 how many structures are involved. However, the construction under both transactions appears to exceed the number of permissible structures, and be of significantly different type and location than contemplated by Section 15303. The application itself presents no information to resolve these questions or explain why barns and stables in pasture area should qualify for CEQA exemption under a statute that contemplates commercial projects. Therefore, we find that Section 15303 does not apply to the construction under these two agreements.

Fish Hatcheries

Four licenses and leases in PG&E's application allow the operation of fish rearing ponds on PG&E property and/or the impounding of water for fish rearing ponds. (Transactions 219, 220, 221, 222.) PG&E's Attachment A identifies improvements taking place under the agreements as a fish hatchery, fish ponds, and placement of mobile homes. PG&E asserts that these agreements are exempt from CEQA review pursuant to CEQA Guideline Section 15304.

Section 15304 exempts from CEQA review "minor public or private alterations in the condition of land, water and/or vegetation...." In particular, subsection (d) exempts `minor alterations in land, water and vegetation on existing officially designated wildlife management areas or fish production facilities which result in improvement of habitat for fish and wildlife resources or greater fish production." Each of the agreements involves the use of PG&E hydro-generation property. Although it would be helpful to have more information in the application as to the extent of construction involved in each case, it does appear that these agreements are of the nature contemplated under the Section 15304(d). Therefore, for purposes of this application we find the exemption applies to these transactions.

Infrastructure Necessary for Public or Private Use

PG&E's application contains three licenses and leases which allow for miscellaneous public or private use of PG&E property.⁴

Transaction 223 and 233 are similar in that they both appear to allow the use of pre-existing cabins along the shore of Buck's Lake. The diagram attached to the agreements reflect approximately 16 parcels under Transaction 223 and approximately 30 parcels under Transaction 233. Presumably there is a cabin on each parcel. Both agreements indicate that the licensees were allowed to replace individual septic systems with a community septic system and leachfield system. PG&E asserts that Transaction 223 is exempt from CEQA review pursuant to CEQA Guideline Section 15301. PG&E asserts that what appears to be the same activity under Transaction 233 is exempt from CEQA review pursuant to CEQA Guideline Sections 15303 and 15304.

PG&E's application offers no explanation why the two transactions are not alike, or to reconcile why different exemptions were asserted for what appears to be the same activity. This information is necessary to reach a determination regarding these two transactions. In addition, we do not see any obvious commonality between the activities in question and the particular exemptions that would allow us to conclude any one of them applies. Specifically, Section 15301 provides an exemption most readily applied to the continued use existing structures or facilities where there is no construction or change of use. Section 15301 does allow for "minor alterations...involving negligible or no expansion of use...," however, no project information is presented to establish that conversion of individual to community septic systems is a minor alteration as contemplated within the exemption. Section 15303 provides an exemption for the construction of limited numbers of new small facilities or structures, and specifically specifies certain residential or commercial structures (Section 15303 (a)(b)(c)) and certain appurtenant structures (Section 15303(e)). Subsection (d), though allowing for certain utility system extensions, including sewage system extension, is phrased to limit the exemption to apply only to extensions of reasonable length to support the residential or commercial construction enumerated under the preceding subsections.⁵ Finally, Section 15304 provides an exemption for minor alterations to land such as grading, landscaping, minor trenching or dredging, etc. Nothing in the statute suggests it exempts the construction or conversion of facilities. For these reasons, we find none of the asserted CEQA exemptions apply to Transactions 223 and 233.

Transaction 228 is a license to Plumas County Airport. PG&E's Attachment A indicates that the only improvement which took place under the agreement was the reconstruction of a small part of the airport runway. PG&E asserts that the agreement is exempt from CEQA review pursuant to CEQA Guideline Section 15302.

Section 15302 provides an exemption for the "replacement or reconstruction of existing structures and facilities ...located on the same site... will have substantially the same purpose..." We agree that reconstruction of a portion of the runway would appear to fall within this exemption and we find that Section 15302 applies to that activity. We note, however, that the underlying agreement seems to be broader in that it may have allowed for the construction of a new airport runway and roads. We would consider those activities to be beyond the scope of Section 15302 and we would require further inquiry to determine the appropriate level of environmental review.

Minor Encroachments

Transaction 236 is an agreement which allows the licensees to maintain an existing single family dwelling and backyard fencing within the premises. PG&E's Attachment A indicates that no improvements took place under the lease, but that an encroachment permit was obtained for the house, yard and fencing. PG&E asserts this agreement is exempt from CEQA review pursuant to CEQA Guideline Section 15305.

Section 15305 provides an exemption for "minor alterations in land use limitations...which do not result in any changes in land use or density." Included in the type or permissible exemptions is the "issuance of minor encroachment permits. (Section 15305(b).) We agree Section 15305 applies to this transaction.

Office Space in Existing Buildings

Transaction 237 is an agreement to allow the Fall River Valley Library to use PG&E's Fall River Mills business office for a library. PG&E's Attachment A indicates the only improvement which took place under the agreement was placement of an exterior sign. PG&E asserts the agreement is exempt from CEQA review pursuant to CEQA Guideline Sections 15301 and 15311.

Section 15301 provides an exemption for the use of existing public or private structures and facilities with negligible or no expansion of use. We agree that the mere use of the building by the Fall River Library, with no construction and no change of use, is exempt from CEQA review under Section 15301. Section 15311 provides an exemption for the "placement of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities." Subpart (a) specifically allows for the placement of on-premise signs. It is reasonable to view the PG&E office building as within the meaning of contemplated commercial, industrial or institutional buildings under the exemption. Accordingly, we agree that Section 15311 exempts from CEQA review the placement of the exterior sign.

Transaction 238 is an agreement which allows the San Joaquin Power Employees Credit Union serving PG&E employees and their spouses to use a portion of the PG&E building located at 650 O Street. PG&E's Attachment A and attachments to the agreement indicate that the only improvement to the building under the agreement was the placement of office workstations. PG&E asserts that the agreement is exempt from CEQA review pursuant to CEQA Guideline Sections 15301 and 15302.

We agree the mere use of the building by the Credit Union, with no construction and no change of use, is exempt from CEQA review under Section 15301. Section 15302 provides for the replacement or reconstruction of existing structures or facilities. Examples under the statute include replacement or reconstruction of existing schools and hospitals (Section 15302(a)), replacement of a commercial structure (Section 15302(b)), replacement or reconstruction of utility systems/facilities with negligible or no expansion of capacity (Section 15302(c)). We do not find any connection between the placement of internal workstations and the replacement and reconstruction activity contemplated by Section 15302. We do not agree that Section 15302 provides an exemption for this activity. However, we do view the placement of workstations as reasonably within the language of Section 15301 which exempts the "minor alteration of existing public or private structures...involving negligible or no expansion of use..." Accordingly, we agree Section 15301 applies to exempt Transaction 238 from CEQA review.

Plant Nurseries

Transaction 239 is an agreement which allows the operation and maintenance of a wholesale nursery business on approximately 15.5 acres of PG&E property. PG&E's Attachment A appears to indicate that the nursery was pre-existing and that no improvements or construction took place under the agreement. PG&E asserts that the agreement is exempt from CEQA review pursuant to CEQA Guideline Section 15301.

Section 15301 provides an exemption for the use of existing public or private structures or facilities with negligible or no expansion of use. Assuming as indicated by PG&E's submission, the nursery was existing at the time the agreement was entered, and there has been no construction or change of use Section 15301 applies to exempt the transaction from CEQA review. However, we also caution that if a new wholesale business were constructed under an agreement to use PG&E property, further inquiry would be necessary to identify the scope of construction and the appropriate level of our environmental review.

Recreational Uses - Non-Hydro-Generation Lands

The application contains four transactions which allow recreational uses on non-hydro-generation PG&E property.⁶

Transaction 240 is an extension to an agreement with the East Bay Regional Park District for the use of PG&E property in Lafayette and Moraga. PG&E's Attachment A indicates the improvement under the agreement was a walking trail. PG&E asserts the agreement is exempt from CEQA review pursuant to CEQA Guideline Section 15316.

Section 15316 provides an exemption for the "acquisition, sale or other transfer of land in order to establish a park where the land is in a natural condition or contains historical or archaeological resources and either (a) the management plan for the park has not been prepared, or (b) the management plan proposes to keep the area in a natural condition or preserve the historic or archaeological resources." However, the statute also states that "CEQA will apply when a management plan is proposed that will change the area from its natural condition..." The application contains no information to assess whether there is a management plan consistent with either subsection a or subsection b. Nor is there any information in the application describing the original condition of the land. While this transaction may fit within the exemption, we are also cognizant that it is a narrow exemption and more information would be required to properly assess its application. We make no determination whether Section 15316 applies. If this application had been submitted contemporaneous with the opportunity for timely CEQA review we would require further information to determine the appropriate level of CEQA review.

Transaction 241 is an agreement which allows operation of a trap shooting range on PG&E property. PG&E's Attachment A identifies the construction of a trap shooting building under the lease, but states that the building was constructed pre-CEQA. PG&E asserts the transaction is exempt from CEQA review pursuant to CEQA Guideline Section 15301.

Section 15301 provides an exemption for the use of existing facilities and structures and we agree it would apply to the agreement to the extent it allows continued use of the existing facilities. It would not apply to the original construction of the trap shooting building. However, Pub. Res. Code § 21169 "Grandfather Clause" provides that any project defined in Section 21065 which is undertaken or carried out or approved before the effective date of CEQA is confirmed and declared legally effective. Because the building was constructed before the enactment of CEQA, it is exempt from CEQA.

Transaction 242 is an agreement which allows the operation and maintenance of a rifle and pistol range. PG&E's Attachment A indicates the only improvement which occurred under the agreement was the addition of sanitary facilities. PG&E asserts the transaction is exempt from CEQA review pursuant to CEQA Guideline Sections 15301 and 15302.

Section 15301 provides an exemption for the use of existing structures and facilities with negligible or no expansion of use. The exemption also allows for the "minor alterations...involving negligible or no expansion of use." Assuming the rifle and pistol range was pre-existing at the time the agreement was entered into, Section 15301 would apply to exempt from CEQA review the mere use of those facilities. However, nothing in the application provides information regarding the scope and location of construction. For example, it is not possible to determine whether the sanitary facilities may be a minor alteration of an existing facility or whether it is a new and separate structure. Section 15301 may apply, but there is not enough information to make that determination. Section 15303 provides an exemption for construction of limited numbers of new small facilities and contemplates commercial projects (Section 15303(a)(b)(c)) as well as certain appurtenant structures. (Section 15303(d).) It is possible the sanitary facilities could be viewed as an appurtenant structure within the exemption, however, again, there is insufficient information to make that determination. Therefore, we are unable to determine whether Section 15303 applies.

Transaction 244 is an agreement that allows the use of the Bear River Campgrounds, including the use of a caretaker's mobile home, shed, restrooms, water system, hiking trails and campsites. PG&E's Attachment A indicates no improvements or construction has taken place under the agreement. PG&E asserts the transaction is exempt from CEQA review pursuant to CEQA Guideline Section 15301.

Consistent with our prior reasoning, we agree this transaction for the use of existing structures and facilities, with no construction or change of use is exempt from CEQA review pursuant to Section 15301.

Signs

PG&E's application contains six agreements which allow the placement of signs on PG&E property.⁷ (Transactions 245 - 251) Each of the agreements indicates that the signs are advertising structures ("billboards"), some illuminated, and of varying sizes. PG&E asserts that these agreements are exempt from CEQA review pursuant to CEQA Guideline Section 15311.

As previously discussed, Section 15311 provides an exemption for "minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities..." Subpart (a) includes on-premise signs within the exemption. PG&E submitted diagrams with each of the agreements reflecting the general location of the advertising structures. There is no information regarding the condition of the land where the signs are located. However, the billboards appear to be stand-alone structures not in any proximity to any existing commercial, industrial, or institutional facilities. We also questions whether advertising billboards are within the scope of minor accessory structures intended by this exemption. We do not believe Section 15311 applies to provide a CEQA exemption for these agreements.

Small Accessory Structures - Minor Improvements

Four agreements in PG&E's application involve licenses or leases which allow the construction of various structures on PG&E property. As discussed below, in each instance there is not enough factual information in the application to make a determination regarding the applicability of the asserted CEQA exemptions.

Transaction 253 is an agreement which allows the development and maintenance of a canine exercise facility on 42,000 square feet of PG&E property. PG&E Attachment A indicates that the only improvement which took place under the agreement was the installation of fencing. PG&E asserts the agreement is exempt from CEQA review pursuant to CEQA Guideline Section 15303.

As previously discussed, Section 15303 provides an exemption for specified new small structures and facilities, and includes an exemption for accessory (appurtenant) structures such as garages, patios and fences. It is possible that Section 15303 applies to the fence in this instance. However, the Application does not contain enough information to reach that conclusion. PG&E did not discuss the agreement in the application, and it is not possible to determine from the diagram attached to the agreement whether the fence is free-standing or an accessory/appurtenant structure, its size, the nature of the property where it is located, etc. We make no finding regarding the applicability of this exemption here.

Transaction 254 is an agreement which allows the installation of stairways, sidewalks and associated rock work on PG&E property and adjacent to Lake Almanor. PG&E asserts the agreement is exempt from CEQA review pursuant to CEQA Guideline Sections 15303 and 15304. As discussed, Section 15303 is applicable to specified small new structures (mainly residential and commercial) and specified appurtenant structures. Section 15304 is applicable to certain minor alterations to land including grading, gardening and landscaping, and minor trenching and backfilling. The application contains no information to describe the scope of work, the size of the areas and installed facilities, or the nature of the property, etc. However, the diagram attached to the agreement appears to reflect a fairly substantial area of new concrete sidewalk, a concrete landing and stairs, and new rockwork. While it is possible these structures could be appurtenant structures as contemplated by Section 15303, the diagram does not so indicate and the application does not clarify. Further, we note that the exemptions as mentioned under Section 15304 (grading, landscaping, etc.) do not allow us to readily conclude that laying concrete and rockwork is appropriate within that exemption. Accordingly, based on the information provided we are unable to determine whether either of these CEQA exemptions applies.

Transaction 255 is an agreement which allows the installation of a radio-reporting weather station on PG&E property. PG&E asserts that the agreement is exempt from CEQA review pursuant to CEQA Guideline Section 15303. Consistent with our reasoning above, here we are also unable to determine whether the radio-reporting weather station fits within the exemption. Neither the application nor agreement contains any description of the property and related placement of the station. There are three diagrams attached to the agreement. The first (marked Exhibit A) appears to be an assessor's map indicating a rectangular grid with circles drawn in each square of the grid. It is impossible to interpret without some accompanying explanation. The second shows the structure to be a 10-foot high metal pipe (diameter not provided) on a prefabricated concrete slab of unidentified size, and the third shows the general station placement across a road from a sub-station yard. Simply based on these diagrams, it is not possible to determine whether this structure could be considered under Section 15303.

Transaction 256 is an agreement which allows the construction of a cinder block building on PG&E property. PG&E asserts the agreement is exempt from CEQA review pursuant to CEQA Guideline Section 15303.

Again, neither the Application nor the agreement contain any description of the scope of construction, the size of the structure, the location of the structure, or the character of the land where it is located. A diagram attached to the agreement appears to show that it is a fairly substantial structure of 30 feet x 30 feet, and that it is free standing near railroad tracks in the relative vicinity of Lake Almanor. While it is possible a CEQA exemption could apply, more information would be required to make such a determination.

6.2.7. Transactions That Pre-Date CEQA

PG&E's application contains six licenses and leases that PG&E states pre-date the enactment of CEQA and are thus are not subject to environmental review. (Transaction 178 under Category 1(b) and Transactions 218, 226, 229, 230, and 252 under Category 5.)

Although not mentioned by PG&E in its application, Pub. Res. Code § 21169 "Grandfather Clause" provides that any project as defined in Section 21065 that was undertaken, carried out or approved prior to the date CEQA became effective is confirmed and declared legally effective. Accordingly, we agree that these agreements which pre-date CEQA are not subject to environmental review.

6.2.8. Transactions for Which Environmental Review was Performed

PG&E's application contains nine licenses and leases which allowed various construction activity subject to environmental review under CEQA. (Transaction 180 under Category 1(b) and Transactions 224, 225, 227, 231, 232, 234, 235, and 243 under Category 5.) PG&E says in each case environmental review was performed by local entities and copies of the relevant environmental review documents were attached with the respective agreements in Exhibit B. In particular, the transactions and related activities and documents are as follows:

· Sky Mountain Christian Camp (Transaction 180). Recreational facilities were expanded by the addition of cabins, restrooms and a chapel. A conditional use permit for the improvements was obtained from Placer County, and a negative declaration was adopted on May 21, 1981 which found that the project would not result in a significant environmental effect.

· Bucks Lake Permitees and Homeowners Association (Transaction 224). The Plumas County Zoning Administrator issued a special use permit. In March 1997 the Plumas City Planning Department adopted a negative declaration finding that the project would not have a significant effect on the environment.

· Chester Sanitary District (Transaction 225). Effluent ditch was included in the wastewater treatment facilities covered by Chester Sanitary District's Environmental Report dated July 20, 1976 (State Clearinghouse # 75033144), adopted August 19, 1976.

· Mega Renewables (Transaction 227). A use permit with a mitigated negative declaration, adopted September 26, 1985 by Shasta County, was obtained for a small hydroelectric power project. The Shasta County Planning Commission resolution (No. 6625) adopting the mitigated negative declaration approved the project with 44 conditions.

· Shasta County Fire Department (Transaction 231). A use permit with a negative declaration, adopted November 9, 1995 by Shasta County, was obtained in relation to a fire station. The Shasta County Planning Commission adopted the negative declaration and approved the project with specified conditions.

· Shell Oil Company (Transaction 232). Electrical substation was included in the land-use permit and Environmental Impact Report for Shell's fuel processing facilities, adopted by Contra Costa County on October 12, 1983 (State Clearinghouse # 92093028).

· Calaveras Cement (Transaction 234). Continued mining activities are being conducted pursuant to a use permit and a Mining and Reclamation Plan with mitigated negative declaration adopted on October 7, 1993, by Shasta County. The Board of Administrative Review adopted Resolution 94-055 and 94-055, both approving the project with conditions.

· Hat Creek Construction (Transaction 235). Continued mining activities are being conducted pursuant to a Mining and Reclamation Plan with negative declaration. The Shasta County Planning Department filed a Notice of Determination approving the project and adopting the negative declaration in March 1993. By Resolution 93-160 the Board of Administrative review also approved the Reclamation Plan and adopted the negative declaration in March 1993.

· Millbrae Racquet Club (Transaction 243). Recreation facilities are being operated pursuant to a negative declaration, adopted February 5, 1975, by the City of Millbrae as part of a rezoning to accommodate these facilities.

Because CEQA applies to discretionary projects to be carried out or approved by public agencies and because the Commission must act on the Section 851 application and issue a discretionary decision, the Commission must act as either a lead or responsible agency under CEQA. The lead agency is the public agency with the greatest responsibility for supervising or approving the project as a whole (CEQA Guidelines Section 15051(b)). A responsible agency is required to consider the lead agency's environmental documents and findings before acting on or approving the project. (CEQA Guidelines Section 15050(b).) The specific activities that must be conducted by a responsible agency are contained in CEQA Guideline Section 15096.

In this application, PG&E has submitted documents to establish that various local agencies acted as the lead agency under CEQA for the projects which took place under each of the nine agreements. Therefore, the Commission is a responsible agency for each of these projects. Commission review as a responsible agency should occur prior to construction of the projects. Here, the projects have all been completed. Nevertheless, we have reviewed the submitted environmental documents and find that in each instance the documents are adequate for our decision-making purposes. We also find that it appears the lead agencies reasonably found the respective projects to warrant either mitigated negative declarations or environmental impact reports requiring the adoption of mitigation measures. Thus, while we were not able to timely act as responsible agency, we do agree that lead agency CEQA was performed for these projects.