A. Multi-Level Review and Approval of Utility Projects
One possible approach to CEQA as it applies to telecommunications carriers would be to implement a multi-level approach, roughly analogous to the process used by electric projects under our General Order (GO) 131-D.39 Pursuant to GO 131-D, electric transmission projects above 200 kilovolts (kV) require the utility to obtain a CPCN from the Commission, projects between 50 kV and 200 kV require a simpler Permit to Construct,40 and projects under 50kV do not require Commission approval.41
We seek comment as to whether such a multi-level system could be developed for application to the telecommunications industry and request concrete definitions of the various levels. We note that under this rubric, no distribution facilities constructed by an electric utility require Commission approval.42 We believe that it would be instructive for parties to compare the extent of construction of various types of telecommunications projects with the type of electric distribution-level construction done by utilities for which no CEQA review is required. With the advent of fiber optic technologies and the advances in computing technology, many telecommunications facilities are smaller and less intrusive than in the past. Given the nature of telecommunications facilities, it may be the case that the construction of many telecommunications facilities is of a lesser magnitude, and poses less risk of significant harm to the environment, than the distribution-level construction of electric utilities. We ask parties to provide us with information that will assist us in determining whether this is in fact the case.
B. Local Review, Siting and Construction Authority
Another proposal for how to address CEQA requirements would be for the Commission to adopt policies similar to those that we have used for wireless carriers since 1996. The Commission successfully implemented rules regarding the proper process to follow under CEQA for the construction of commercial mobile radio service facilities in California. Since these policies have been in place, we have seen rapid growth in the deployment of wireless facilities resulting in more capacity and greater coverage of wireless carriers. These rules have allowed for the development of a competitive market in wireless service and were in place as several new carriers entered the marketplace.
From 1990 to 1996, we used an advice letter notification procedure as promulgated by GO 159.43 Under this procedure, cellular carriers were required to file advice letters for each cell site, and Commission approval of each filing was required to complete the siting process. The Commission, and almost all parties involved in R.90-01-012, the proceeding to change the rules for siting of cellular facilities, recognized that the advice letter process was too cumbersome and also resulted in the Commission's increased involvement in the interpretation and enforcement of local land use planning regulation and building permit issuance.44
In 1996, the Commission promulgated the current rules related to the construction of commercial mobile radio service facilities in California. GO 159-A states that cellular service providers that are subject to our jurisdiction may not begin construction of a cell site or Mobile Telephone Switching Office (MTSO) in California without first having obtained all requisite land use approvals required by the relevant local government agency. The cellular service provider must give the Commission a notification letter stating that it has obtained the necessary land use approvals or that land use approvals are not required. GO 159-A also requires cellular service providers to give the Commission a tariff list of its facilities on a quarterly basis.
Thus, GO 159-A streamlined the procedure cellular carriers use to notify us of the construction of new facilities or significant modifications to existing facilities. Specifically, GO 159-A replaced the advice letter process with a notification letter. Cellular carriers provide copies of these notification letters to local government authorities. A significant change in GO 159-A from prior practice is that cellular service providers are no longer required to obtain Commission authorization prior to commencing construction.
The Commission also recognized that local governments had many concerns regarding the siting, design, and construction of cell sites and MTSOs, and as a result, the Commission delegated its authority to regulate the location and design of cellular facilities to local agencies in GO 159-A, except in those instances when there is a clear conflict with statewide interests.45 In cases of a clear conflict of state interests, we review the need to preempt local jurisdiction, allowing local agencies and citizens an opportunity to present their positions. The cellular carriers have the burden of proof to demonstrate that accommodating local agency requirements for any specific site would frustrate the Commission's objectives. If the cellular carrier is able to prove this point, the Commission will preempt local jurisdiction pursuant to its authority under Article XII, Section 8 of the California Constitution.46
The rules set forth in GO 159-A have worked well for both the cellular carriers and the consumers in California. GO 159-A strikes a balance in delegating authority to local governments while still preserving state interests. It also recognizes the practicality of delegating certain oversight authority to local governments, and acknowledges that it is not proper for the state to micromanage the siting and construction of cellular facilities, which has primarily localized impacts. In this new rulemaking, we will carefully review both the process by which the rules in GO 159-A were reached, and the specific procedures in these rules. We will examine whether a parallel process and/or procedure would be appropriate for the application of CEQA to other telecommunications utilities under our jurisdiction.
C. Statutory or Categorical Exemption
Both statutory and categorical exemptions to CEQA may assist us in framing a comprehensive proposal in this proceeding. Statutory exemptions are descriptions of types of projects for which the California Legislature has provided a blanket exemption from CEQA procedures and policies. 47 One statutory exemption that may be applicable in considering approval for some telecommunications projects under our jurisdiction is the exemption for "ministerial projects." A ministerial project involves a decision applying fixed, objective standards that do not require a public agency to use its judgment as to how the project should be carried out.48 The CEQA Guidelines provide that public agencies should decide what constitutes a ministerial project based on an analysis of its own laws.49 Furthermore, a ". . . public agency should make such determination either as a part of its implementing regulations or on a case-by-case basis."50 Actions such as issuing a building permit and issuing a business license are ministerial for CEQA purposes only if the public agency does not exercise any discretion or judgment in taking these actions.51
Categorical exemptions are descriptions of types of projects the Secretary of the California Resources Agency has determined do not have a significant effect on the environment.52 Unlike statutory exemptions, categorical exemptions are not absolute. There are exceptions to the categorical exemptions depending on the nature or location of the project.53
The Commission has utilized categorical exemptions in the past with respect to approvals required for telecommunications network deployment. For example, we have relied on the existing facilities categorical exemption, which applies to "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 beyond that existing at the time of the lead agency's determination . . ."54 In D.04-04-014, we found that the installation of optical fiber and related telecommunications equipment on existing utility structures by third-party telecommunications providers is categorically exempt from environmental review under Section 15301 of the CEQA Guidelines.55
Other categorical exemptions may be relevant to our inquiry as well. These include, but are not necessarily limited to: (1) "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 . . .";56 (2) "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 includes] . . . [w]ater main, sewage, electrical, gas, and other utility extensions, including street improvements, of reasonable length to serve such construction;"57 and (3) "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, [including] . . . [m]inor trenching and backfilling where the surface is restored."58
We seek comment on whether any statutory or categorical exemptions may apply to projects by telecommunications carriers under our jurisdiction. Also, a public agency may file a request with the State's Office of Planning and Research to add a class of projects as a categorical exemption.59 This request must "include information supporting a public agency's position that the class of projects does, or does not, have a significant effect on the environment."60 We therefore ask for proposals on (a) whether we should submit a request for a categorical exemption for certain types of actions by telecommunications carriers under our jurisdiction to the Office of Planning and Research; and (b) if so, what should be the scope of the recommendation to the Office of Planning and Research.
We also seek input from parties regarding the possibility of legislative relief, perhaps in the form of a statutory exemption. Our Broadband Report, issued in May 2005, recommended seeking legislation to streamline CEQA regulations that applied to broadband facilities.61 We ask parties to comment on what type of legislative action would (1) provide the needed streamlining, (2) allow us to ensure compliance with CEQA and protection of the environment, (3) advance the goals of supporting deployment of advanced telecommunications, including broadband, technologies and (4) promote widespread and vigorous competition.
For example, AB 375 (2005-2006 Session) authored by Assemblyman Cogdill sought to craft just such a statutory exemption for telecommunications facilities. The relevant sections of AB 375 were:
(d) The construction and location of a telecommunications utility extension, including the construction of a reasonable length to serve customers from existing facilities, and including a street improvement of reasonable length to serve the construction, so long as the construction consists of limited numbers of new, small facilities or structures, installation of small new equipment and facilities in small structures, or the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.
(e) The construction and location of a telecommunications utility facility, including a street improvement to serve the construction, if the construction is within the public right-of-way or on a publicly owned or maintained right-of-way and where the provision of a telecommunications utility facility has been considered in a prior environmental impact report or initial study. The telecommunications utility facility constructed may be different from that considered in the prior environmental impact report or initial study so long as the difference is negligible or minor in nature.
(f) An action by the Public Utilities Commission on an application for approval of financing transactions by a telecommunications public utility pursuant to Article 5 (commencing with Section 816) and Article 6 (commencing with Section 851) of Chapter 4 of Part 1 of Division 1 of the Public Utilities Code, regardless of the use of the funds raised by the financing transaction.
While this particular legislation seeking to create a statutory exemption did not pass in the Legislature, we seek comment from parties as to whether the Commission should pursue a statutory exemption with respect to telecommunications facilities, and if so we seek further comment on the specifics of such an exemption.
D. Program and Master EIRs
There are several types of EIRs a lead agency may utilize depending on the scope and specificity of the project, and the decision-making process involved. The most common type of EIR, the Project EIR, examines the environmental impacts of a specific development project. A Project EIR focuses on the changes in the environment that would result from the development project, and examines all phases of the project including planning, construction, and operation.62
A review of two other types of EIRs, a Program EIR and a Master EIR, may be fruitful in our effort to develop a plan to apply CEQA to telecommunications carriers under our jurisdiction. A Program EIR "may be prepared on a series of actions that can be characterized as one large project and are related either: (1) Geographically, (2) As logical parts in the chain of contemplated actions, (3) In connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program, or (4) As individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways."63
There are advantages to using a Program EIR over a Project EIR, as enumerated in the CEQA Guidelines. These benefits include: "(1) Provid[ing] an occasion for a more exhaustive consideration of effects and alternatives than would be practical in an EIR on an individual action, (2) Ensur[ing] consideration of cumulative impacts that might be slighted in a case-by-case analysis, (3) Avoid[ing] duplicative reconsideration of basic policy considerations, (4) Allow[ing] the Lead Agency to consider broad policy alternatives and program wide mitigation measures at an early time when the agency has greater flexibility to deal with basic problems or cumulative impacts, and (5) Allow[ing] reduction in paperwork."64 A Program EIR can also be used as a foundation for a determination of whether further environmental review is necessary for subsequent actions.65
The CEQA Guidelines encourage the use of a Program EIR, noting that it "can be used effectively with a decision to carry out a new governmental program or to adopt a new body of regulations in a regulatory program."66 Furthermore, "[t]he program EIR enables the agency to examine the overall effects of the proposed course of action and to take steps to avoid unnecessary adverse environmental effects."67
In 1993, the Legislature adopted a procedure for a new type of EIR, the Master EIR.68 A Master EIR "is intended to streamline the later environmental review of projects or approval included within the project, plan or program analyzed in the Master EIR . . . [and] . . . a Master EIR shall, to the greatest extent feasible, evaluate the cumulative impacts, growth inducing impacts, and irreversible significant effects on the environment of subsequent projects."69 If the Commission acts as lead agency for a particular project, it may prepare Master EIR for the following types of projects as they relate to telecommunications carriers:
(1) A general plan, general plan update, general plan element, general plan amendment, or specific plan. (2) Public or private projects that will be carried out or approved pursuant to, or in furtherance of, a redevelopment plan. (3) A project that consists of smaller individual projects which will be carried out in phases. (4) A rule or regulation which will be implemented by later projects. (5) Projects that will be carried out or approved pursuant to a development agreement . . . 70
A lead agency is required to provide a "description of anticipated subsequent projects that are within the scope of the Master EIR, including information with regard to the kind, size, intensity, and location of the subsequent projects . . ." in order to be able to use this streamlined process.71
There are significant benefits to using a Master EIR. A certified Master EIR can serve as the environmental analysis for subsequent projects that are within its scope and which do not have project-specific effects that were not previously discussed.72 The lead agency conducts a limited environmental review for subsequent projects, which includes an initial study analyzing "whether the subsequent project was described in the Master EIR and whether the subsequent project may cause any additional significant effect on the environment which was not previously examined in the Master EIR."73 If the lead agency finds that the subsequent project will not have any additional significant environmental impacts, then the subsequent project will be considered within the scope of the Master EIR, and no further review is required.74 If the lead agency determines that the subsequent project does have significant environmental impacts not considered in the Master EIR, the lead agency must incorporate all feasible mitigation measures and alternatives for the subsequent project in the Master EIR.
There are some limitations to a Master EIR. For example, a Master EIR must be reviewed at least every five years, or if there are changing circumstances, to determine whether it still contains an adequate analysis of the significant environmental effects of the project for which it was prepared. However, a Master EIR may be a useful tool for us as we determine what is the best way to implement CEQA for telecommunications carriers under our jurisdiction.
We request comments on the appropriateness and feasibility of using the Program EIR and/or the Master EIR for CEQA review for telecommunications carriers. Commenting parties should make any distinctions they deem appropriate as to whether there are certain policies and programs that they believe are appropriate for a Program and/or Master EIR, and other policies and programs that they deem not suitable for a Program and/or Master EIR.
39 See D.94-06-014, Opinion in Investigation on the Commission's own motion into the rules, procedures and practices which should be applicable to the Commission's review of transmission lines not exceeding 200 Kilovolts, 1994 Cal. PUC LEXIS 453, modified by D.95-08-038, 1995 Cal. PUC LEXIS 644.
40 Review for a permit to construct ". . . focuses solely on environmental concerns, unlike the CPCN process which considers the need for and economic cost of a proposed facility." (D.94-06-014, 1994 Cal. PUC LEXIS 453, *2.)
41 We relied on the following reasoning in our conclusion that lines under 50 kV are exempt from our active regulation, and therefore, do not require a CPCN or permit from the Commission for construction of or modification to these lines: "1. Distribution lines are almost always located on public and private rights of way as needed to supply all qualifying requests for electric service. In most cases, only one route is possible and only one type of construction is feasible. 2. At this time, there are no significant problems or concerns in the construction of these distribution facilities that would justify the extent of regulation set forth in GO 131-D for 50- to 200-kV power lines. 3. Distribution line extensions number into the thousands every year. Meeting GO 131-D requirements would add a large administrative burden and excessive cost for all parties involved. 4. Service requests have short lead times, generally only a few weeks. Delaying construction of the needed distribution facilities would cause major inconvenience and financial loss to those awaiting service." (D.94-06-014, 1994 Cal. PUC LEXIS, *25-*26.)
42 D.94-06-014 provides that "[l]ines under 50 kV, which serve distribution functions, are usually built in existing rights of way and are generally noncontroversial. The Commission's complaint procedure insures that if there is a problem it will be addressed." (1994 Cal. PUC LEXIS 453, *5.)
43 See D.90-03-080, Interim Opinion in Order Instituting Rulemaking on the Commission's own motion to develop revisions to General Orders and Rules applicable to siting and environmental review of cellular mobile radiotelephone utility facilities, 1990 Cal. PUC LEXIS 1423, which promulgated GO 159. This decision was issued in R.90-01-012. In D.90-03-080, the Commission adopted GO 159 as interim rules, and continued its rulemaking to examine whether this GO has served its stated purposes and to consider whether this GO must be revised to reflect technological changes in cellular facilities. Ultimately, the Commission revised GO 159 in D.96-05-035, and issued GO 159-A.
44 D.96-05-035, Order Instituting Rulemaking on the Commission's own motion to develop revisions to General Orders and Rules applicable to siting and environmental review of cellular mobile radiotelephone utility facilities, Opinion Adopting General Order 159-A Rules Relating to the Construction of Cellular Radiotelephone Facilities in California, 1996 Cal. PUC LEXIS 288; see also D. 94-11-018, 1994 Cal. PUC LEXIS 1090; D.94-11-019, 1994 Cal. PUC LEXIS 1089.
45 This is a continuation of a policy established by GO 159.
46 Article XII, Section 8 of the California Constitution provides: "A city, county, or other public body may not regulate matters over which the Legislature grants regulatory power to the Commission. This section does not affect power over public utilities relating to the making and enforcement of police, sanitary, and other regulations concerning municipal affairs pursuant to a city charter existing on October 10, 1911, unless that power has been revoked by the city's electors, or the right of any city to grant franchises for public utilities or other businesses on terms, conditions, and in the manner prescribed by law."
47 Because CEQA is legislative statute, the Legislature has the authority to exempt activities from CEQA review. A comprehensive source of statutory exemptions is found in the CEQA Guidelines, 14 Cal. Code Reg., §§ 15260-15285.
48 Pub. Res. Code, § 21080(b)(1); CEQA Guidelines, 14 Cal. Code Reg., §§ 15268, 15369.
49 CEQA Guidelines, Cal. Code Reg., § 15268.
50 Id.
51 Id; see also, CEQA Guidelines, Cal. Code Reg., § 15357.
52 Pub. Res. Code, §§ 12080(b)(9), 21084. Categorical exemptions are found in the CEQA Guidelines, 14 Cal. Code Reg., §§ 15300-15333.
53 Pub. Res. Code, §§ 21084(b), (c), (e); CEQA Guidelines, 14 Cal. Code Reg., § 15300.2.
54 CEQA Guidelines, Cal. Code. Reg., § 15301.
55 D.04-04-014, Opinion Granting Pacific Gas and Electric Company's Petition for Modification of Decision 03-05-077, In the Matter of the Application of Pacific Gas and Electric Company (U 39 E) for Commission Approval for Irrevocable Lease for Metromedia Fiber Network Services, Inc. to User Fiber Optic Cable on Certain PG&E Transmission Facilities Under Terms of an Optic Fiber Installation and IRU Agreement, 2004 Cal. PUC LEXIS 142.
56 CEQA Guidelines, 14 Cal. Code. Reg., § 15302.
57 Id., § 15303.
58 Id., § 15304.
59 Pub. Res. Code, § 21086(a); see also Pub. Res. Code, § 21084.
60 Id.
61 Broadband Deployment in California, California Public Utilities Commission, May 2005, p. 89, http://www.cpuc.ca.gov/PUBLISHED/REPORT/45539.htm
62 CEQA Guidelines, Cal. Code Reg., § 15161.
63 Id., § 15168(a).
64 Id., § 15161(b).
65 Id., § 15168(c).
66 Id., § 15168, Discussion.
67 Id.
68 Pub. Res. Code, §§ 21156-21158.1; Cal. Code Reg., § 5175.
69 CEQA Guidelines, Cal. Code Reg., § 15175(a).
70 Id., § 15175(b).
71 Id., § 15176(a).
72 Id., § 15177(a), (b).
73 Id., § 15177(b)(2).
74 Id., § 15177(b)(3).