IV. CEQA

The parties contend that the project is categorically exempt from CEQA pursuant to Section 15305 of the CEQA Guidelines (14 Cal. Code Regs., §§ 15000, et seq.) and has been found statutorily exempt by the project's lead agency, JPB, pursuant to Section 21080(b)(10) of the Public Resources Code and Section 15275 of the CEQA Guidelines.

The CEQA Guidelines, adopted by the Commission in Rule 17.1(a) of the Commission's Rules of Practice and Procedure, include a list of categories of projects that have been determined not to have a significant effect on the environment and that are therefore exempt from the provisions of CEQA. (Id., §§ 15300, et seq.) Among the listed exemptions is an exemption for the "[i]ssuance of minor encroachment permits." (Id., § 15305, subd.(b).)

In our opinion, not only does the Encroachment Agreement qualify as a "minor encroachment permit," but also, the lead agency in this case has already made a determination that the proposed Improvements are statutorily exempt from CEQA. The CEQA Guidelines set out rules concerning which entity will act as the lead agency under CEQA when more than one public agency will issue discretionary permits for a project. (Id., § 15051.) All other agencies with discretionary approval over the project are "responsible agencies." (Id., § 15381.) In accordance with those rules, JPB is the lead agency in this case, and the Commission is a responsible agency. JPB has found the project statutorily exempt pursuant to Section 21080(b)(1) of the Public Resources Code and Section 15275 of the CEQA Guidelines, which states:

CEQA does not apply to the following mass transit projects: (a)  The institution or increase of passenger or commuter service on rail lines or high-occupancy vehicle lanes already in use, including the modernization of existing stations and parking facilities.

JPB's Notice of Exemption, dated March 29, 2004, is attached to the application.

By our granting an exemption from § 851, we are holding that PG&E does not require Commission approval for the project. Since our approval is not required, neither is CEQA review. (D.01-06-006, pp. 8-9.) We find that we need not perform CEQA review as part of our § 853(b) review.