Comments on Draft Decision of the ALJ

Section 311(g)(3) of the Pub. Util. Code and Rule 77.7(f)(8) of the Rules of Practice and Procedure provide for reduction or waiver of the 30-day period for public review and comment for decisions subject to California statutes that provide for extensive public review and comment and set a deadline for Commission decisionmaking. The draft decision of ALJ Cooke in this matter was mailed to the parties in accordance with Rule 77.7(f)(8) with a shortened period for comments. Comments were filed on May 14, 2001 by PG&E and EBRPD, and reply comments were filed on May 21, 2001 jointly by the City of Pleasanton and the Kottinger Ranch Homeowner's Association (City/KRHA). In addition, PG&E's May 16 opposition to EBRPD's petition to intervene contains its reply to EBRPD's comments.

PG&E has made recommendations to add findings and conclusions to this order. We have made minor revisions to the text of the order as a result of these comments. We make no changes based on the reply comments of City/KRHA.

EBRPD asserts that one of the alternatives in the FEIR will have a potentially significant visual impact on Shadow Cliffs Regional Recreation Area and therefore that the Commission must recirculate the EIR before certifying the FEIR. EBRPD relies on Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, 29 Cal. App. 4th 1597 (1994) (Quail) and Appendix G of the CEQA Guidelines for the criteria by which we should evaluate significance. EBRPD's reliance on Quail and Appendix G is misplaced. Quail addresses a case wherein the court found that Encinitas should have prepared an EIR in the first instance in order to assess the impacts of a subdivision on an adjacent park, rather than a negative declaration. Quail used the "fair argument" standard to determine whether or not an EIR should be prepared. The fair argument standard was expressly rejected by the California Supreme Court in Laurel Heights Improvement Assn. v. Regents of the University of California, 6 Cal. 4th 1112 at 1135 (1993) (Laurel Heights II), for use in determining whether or not an EIR should be recirculated. Appendix G of the CEQA Guidelines deals specifically with criteria that should be reviewed by a lead agency when assessing whether to prepare an EIR or negative declaration. In this case, the Commission has prepared an EIR, so these arguments are not on point with respect to whether the recirculation of the EIR is required.

CEQA Guidelines § 15088.5 states that a "lead agency is required to recirculate an EIR when significant new information is added to the EIR after public notice is given of the availability of the draft EIR for public review under § 15087 but before certification." Significant new information is specifically described in the Guidelines. Recirculation is only required if the new information results in a new significant environmental impact occurring. EBRPD asserts that the visual impact of the new alternative identified in the FEIR is significant and attaches photographs to the Declaration of Brad Olson that purport to demonstrate this impact. The record demonstrates that the photos included as Exhibit 1 to the Declaration of Brad Olson are misleading as to the existing visual setting and potential impact of the new alternative. The S5 alternative does not result in a new significant environmental impact and thus no recirculation is required.

Exhibit 1 of EBRPD's declaration purports to show the existing visual setting of Shadow Cliffs Regional Recreation Area in the "Before Project" photo. Exhibit 1000, Figure C.12-6 of the DEIR depicts a portion of this same viewshed and clearly demonstrates the scale of existing transmission facilities and quarry operations. The left third of EBRPD's photo coincides with the right half of Figure C.12-6. Mr. Olson specifically states that this figure is an "accurate depiction of the visual impacts" of the current setting and new transmission lines along Stanley Boulevard (a portion of both the S1 and S5 alternatives). (See p. 3, Declaration of Brad Olson, May 14, 2001.) Thus it is clear, at least with respect to the "After Project" photo, that EBRPD's depiction of the visual impact is deceptive and overstated.

EBRPD argues in its comments on the draft decision and its reply to PG&E's opposition, that a new visual simulation is required to demonstrate the impacts of the S5 alternative. We disagree.

Exhibit 1003 (the FEIR) describes the S5 route (which borders Shadow Cliffs on its eastern boundary) on pages C-7 through C-9. On page C-9, the FEIR describes the existing visual setting and how a new transmission line would affect the views from Shadow Cliffs, given the existing visual setting. This narrative description, in conjunction with the simulations in Exhibit 1000, make clear that the viewshed from Shadow Cliffs is of a highly disturbed landscape and an industrial structural context. While it might have been useful for an additional visual simulation to be prepared, to dispose of EBRPD's argument we find that the FEIR accurately describes the setting and the potential impacts of the S5 alternative and supports the finding that the S5 alternative would cause adverse but not significant visual impacts. Consistent with CEQA Guidelines § 15088.5, and Laurel Heights II, this does not meet the definition of significant new information and thus recirculation is not required.

Findings of Fact

1. The Commission is the lead agency under CEQA with respect to the environmental review of the project and preparation of the FEIR.

2. The Commission has conducted an environmental review of the project pursuant to CEQA.

3. The FEIR consists of the DEIR, revised to incorporate comments received by the Commission from the proponent, agencies, and the public, and the responses to comments.

4. The FEIR has been completed in accordance with CEQA Guidelines, Sections 15120 through 15132.

5. The FEIR accurately describes visual setting and potential visual impacts of the S5 alternative.

6. The view from Shadow Cliffs Regional Recreation Area is of a highly disturbed landscape and an industrial structural context.

7. The photos included as Exhibit 1 to the Declaration of Brad Olson of EBRPD are misleading as to the existing visual setting and potential visual impact of the S5 alternative.

8. The S5 alternative results in an adverse but not significant visual impact.

Conclusions of Law

1. The notification procedures employed for this project more than meet the requirements of CEQA.

2. The processing of the DEIR, and the FEIR, in this proceeding comply with the requirements of CEQA.

3. The contents of the FEIR comply with the requirements of CEQA and represent the Commission's independent judgement.

4. The FEIR should be certified for the project in accordance with CEQA.

5. The S5 alternative results in an adverse but not significant visual impact.

6. Because the S5 alternative does not result in a significant visual impact, recirculation of the EIR is not required.

7. EBRPD's petition to intervene should be granted.

ORDER

IT IS ORDERED that:

1. The Final Environmental Impact Report is certified as the Environmental Impact Report for the project which is the subject of this application and is certified for use by responsible agencies in considering subsequent approvals for the project, or for portions thereof.

2. The petition to intervene by the East Bay Regional Park District is granted.

This order is effective today.

Dated May 24, 2001, at San Francisco, California.

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