Process
The ACR stated that: "Carriers should submit a proposal to Commission staff under the ETP for all construction activities they believe are exempt from CEQA." A number of parties pointed out that "all construction activities" encompasses a potentially vast number of activities, including those that unquestionably have no environmental impact. This observation is correct. The scope of the ETP needs to be narrowed. Accordingly, we will exempt certain activities from the ETP.
An approach we have used since 1999, sometimes referred to as "limited facilities-based" authority, exempts specific construction activities from environmental review by the Commission. Under the limited facilities-based approach, installation of equipment in existing buildings or structures, such as placing a switch in an existing building, or pulling fiber through existing conduit, does not require an environmental review. (See, Comments of NextG Networks, pp. 2-3, citing D.03-01-061 and D.06-01-006.) For example, a carrier was granted limited facilities-based local exchange authority, "restricted to the use of unbundled network elements (UNEs) and the placement of equipment within or on previously existing buildings and structures," but was "prohibited from engaging in any construction of buildings, towers, conduits, poles, or trenches." (See, D.01-08-013, citing D.99-10-025.)
There is one ambiguity in this approach, however. The Commission has found that it can be seen with certainty that there is no possibility of adverse environmental impact if construction activity is "limited to installing equipment in existing buildings and structures." (Id., emphasis added.) However, in another part of the same decision10, the Commission states that it is allowing "the placement of equipment within or on previously existing buildings and structures." (Id., emphasis added.)
For purposes of this proceeding, we find that placement of equipment in existing buildings and structures does not require use of the ETP process. The question of whether to also allow placement of equipment on existing buildings and structures outside of the ETP is more difficult, as the answer tends to be more fact-dependent. For example, placement of an 18-inch antenna dish on the side of an existing building would not have the same visual impact as placement of an 18-foot antenna dish on that building. Similarly, stringing new aerial conduit on existing poles through an industrial area is not the same as stringing new aerial conduit on existing poles along coastal stretches of Highway 1 or across sensitive wetlands.
While we do not wish to create a loophole in our CEQA review process that could result in no review of projects that could cause significant environmental impacts, requiring the ETP process for all activities involving placement of equipment on existing buildings and structures would not be appropriate, as it would encompass a massive number of activities that have no significant environmental impact. (See, Comments of AT&T, supra.) It is, however, possible to chart a course between these two obstacles. We will not require use of the ETP for construction activities consisting of the placement of equipment on existing buildings and structures, but only if: 1) that activity results in no significant visual impact, and 2) that activity does not take place on or adjacent to a particularly sensitive environment.11 In addition, construction activity without an environmental review is not allowed when any of the conditions identified in CEQA Guideline 15300.2 are present.12
We agree that requiring the use of the ETP process for all construction activities would put a large and unnecessary burden on both telecommunications providers and Commission staff, as many construction activities do not require environmental review under CEQA. We will use the above criteria to create an exception to the use of the ETP process. Accordingly, if a carrier wishes to place equipment in an existing building or structure, it need not seek Commission approval through the ETP process to do so, and if it wishes to place equipment on an existing building or structure, and meets the more detailed requirements set forth above, it need not seek Commission approval through the ETP process to do so.13
This change makes the construction approval process for telecommunications projects very similar to the process we use for electric projects under General Order 131-D. Under GO 131-D, distribution-level projects generally need no Commission review, smaller transmission-level projects require a Permit to Construct (consisting primarily of a CEQA review), and larger transmission-level projects require a CPCN and accompanying CEQA review. While the dividing lines between categories are necessarily different for telecommunications projects, the general approach is analogous.
AT&T points out that the ACR does not distinguish new construction from routine repair and maintenance in public rights-of-way, such as replacing poles. (Comments of AT&T, p. 13.) The repair and maintenance of existing facilities in general should have less of an environmental impact than the construction of new facilities, but we cannot assume that this is always the case.14 We will apply essentially the same criteria to repair and maintenance activities as we do for new construction; however, we anticipate that more repair and maintenance activities will fall within that criteria than will new construction activities.
To clarify how this will work, carriers need not use the ETP for performing routine repair and maintenance work on existing facilities, including replacement of equipment within existing structures, replacement of above-ground structures with structures the same dimensions or smaller, and replacement of poles with new poles of similar size and capacity. Again, this exception to the ETP is only available if the activity results in no significant visual impact, and 2) that activity does not take place on or adjacent to a particularly sensitive environment. 15 Unless there are existing mitigation measures covering repair and maintenance imposed by an earlier CEQA review, repair and maintenance without an environmental review is not allowed when any of the conditions identified in CEQA Guideline 15300.2 are present.
Some parties appear concerned that incumbent carriers could gain a competitive advantage by upgrading their existing system and offering additional services under the guise of repair, maintenance, and equipment replacement. (See, Comments of Level 3.) According to this argument, the incumbents could essentially get a new system while undergoing less CEQA review than a new entrant. This may, in fact, be true, but our focus here is on equitable application of CEQA. If the construction activities of the incumbents cause no significant environmental harm, while the construction activities of new entrants do cause significant environmental harm, the Commission's CEQA review should reflect those realities. This proceeding is about CEQA, and is not an appropriate forum to redress any and all perceived competitive imbalances.
SCE recommends that instead of requiring the signature of a corporate officer, the ETP proposal should be certified under penalty of perjury by an individual who has first-hand knowledge of the project and who has specific delegated authority to represent the carrier. Under SCE's proposal, that individual may be an officer or another management-level employee. (Comments of SCE, pp. 8-9.) We adopt SCE's recommended change.
10 This particular decision is merely an exemplar - the same language appears in multiple Commission decisions.
11 Examples of particularly sensitive environments include, but are not limited to, endangered species habitat, wetlands, and known cultural heritage sites.
12 Those conditions are: particularly sensitive environments, significant cumulative impacts, significant environmental effects due to unusual circumstances, possible damage to scenic resources within state scenic highways, hazardous waste sites, and possible adverse changes in the significance of a historical resource.
13 This approach relies upon the good faith of carriers to comply with the requirements of the new process. We do, however, anticipate incorporating compliance and enforcement mechanisms in an applicable General Order.
14 For example, replacement of existing poles in a sensitive wetland may have a greater environmental impact than new trenching in a less sensitive area.
15 Examples of particularly sensitive environments include, but are not limited to, endangered species habitat, wetlands, and known cultural heritage sites.
