STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC UTILITIES COMMISSION
505 VAN NESS AVENUE
SAN FRANCISCO, CA 94102-3298
July 15, 2004
TO: ALL PARTIES OF RECORD IN APPLICATION 03-05-012
Decision 04-07-021 is being mailed without the Concurrence of Commissioner Kennedy and the Dissent of Commissioner Wood. The Concurrence and Dissent will be mailed separately.
Very truly yours,
/s/ ANGELA K. MINKIN by PSW
Angela K. Minkin, Chief
Administrative Law Judge
ANG:sid
Attachment
ALJ/GEW/sid Mailed 7/15/2004
Decision 04-07-021 July 8, 2004
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Application of Pacific Gas and Electric Company (U 39 M) for an Order Under PUC Section 851 Approving the Leases and Licenses of Certain Public Utility Properties. |
Application 03-05-012 (Filed May 8, 2003) |
O P I N I O N
TABLE OF CONTENTS
Title Page
`
O P I N I O N 2
1. Summary 2
2. Factual and Procedural Background 3
3. Transactions Subject to This Proceeding 5
4. Descriptions of the Transactions 6
4.1. Category 1 - Recreational Sites on Hydro- Generation Lands 6
4.2. Category 2 - Telecommunications 7
4.3. Category 3 - Vehicle Parking 8
4.4. Category 4 - Storage 8
4.5. Category 5 - Miscellaneous 9
4.6. Transactions for Which Environmental Review
Was Performed 10
4.7. Transactions That Pre-Date CEQA 10
5. Ratemaking Treatment 10
6. Environmental Review 11
6.1. Transactions Subject to Categorical Exemptions 13
6.1.1. Guideline 15301 Existing Facilities 13
6.1.2. Guideline 15302 Replacement or Reconstruction 13
6.1.3. Guideline 15303 New Construction or Conversion 13
6.1.4. Guideline 15304 Minor Alterations to Land 14
6.1.5. Guideline 15305 Minor Alterations in Land
Use Limitations 14
6.1.6. Guideline 15311 Accessory Structures 14
6.1.7. Guideline 15316 Transfer of Ownership of Land
in Order to Create Parks 14
6.1.8. Guideline 15323 Normal Operations of Facilities
for Public Gatherings 15
6.2. Assessment of CEQA Application 15
6.2.1. Category 1a - Recreational Sites on Hydro-Generation Lands/Individual Uses 15
6.2.2. Category 1b - Recreational Sites on Hydro-Generation Lands/Public and Group Recreational Uses 17
6.2.3. Category 2 - Telecommunications 27
6.2.4. Category 3 - Vehicle Parking 30
6.2.5. Category 4 - Storage 31
6.2.6. Category 5 - Miscellaneous 32
6.2.7. Transactions That Pre-Date CEQA 47
6.2.8. Transactions for Which Environmental Review was Performed 48
7. Discussion 50
7.1. Do the Leases and Licenses Serve the Public Interest? 50
7.2. Applicability of GO 69-C Requirements 54
8. Conclusions 55
9. Comments on Draft Decision 57
10. Assignment of Proceeding 60
Findings of Fact 60
Conclusions of Law 63
O R D E R 65
EXHIBIT A
1. Summary
Pacific Gas and Electric Company (PG&E) seeks Commission approval pursuant to Pub. Util. Code § 851 of certain licenses and leases of PG&E property already in effect (the "agreements" or "transactions"). In total, PG&E seeks approval of 256 transactions. Most of these agreements were entered into several years ago. Each permits various uses of PG&E property by third parties. The transactions did not have prior approval of the Commission pursuant to Pub. Util. Code § 851. PG&E states that it discovered many of these agreements in various branch office files while conducting an extensive search in the PG&E bankruptcy proceeding. Because the 256 transactions may implicate environmental review or may not meet the criteria for General Order (GO) 69-C transactions, PG&E states that it decided it would be prudent to seek formal approval of the transactions under Section 851. In addition, PG&E asserts that Commission environmental review under the California Environmental Quality Act (CEQA) is unnecessary because the majority of the transactions fit within CEQA exemptions, nine received adequate local CEQA review, and six pre-date CEQA and are thus not subject to its requirements. This decision grants Section 851 approval for 255 of the transactions on a prospective basis. We note one of the transactions fits within recent Commission decisions finding agreements allowing floating boat docks as appropriate under GO 69-C. Therefore, our approval here is not required. We decline to impose a penalty for failure to obtain prior approval of the transactions. With respect to CEQA, we note that because all of the agreements are several years old, any activity which may have warranted our environmental review has long since occurred.
Accordingly, our CEQA review at this time has little value for practical purposes. Nevertheless, we will address the CEQA issues raised by PG&E and determine where possible, the applicability of the claimed exemptions. We decline to address as part of this decision, statements by PG&E regarding transactions it states have not been submitted as part of this application because in PG&E's view they are GO 69-C transactions. Finally, we take this opportunity to clarify that Section 851 and CEQA are separate statutory requirements. CEQA is triggered as one element of Commission Section 851 review. However, the fact that an activity may be exempt from CEQA does not negate the Section 851 review and approval requirement. The Office of Ratepayer Advocates (ORA) concluded that PG&E's allocation of the transactions' revenues to ratepayers and shareholders is appropriate. This proceeding is closed.
