10. Assignment of Proceeding
Susan P. Kennedy is the Assigned Commissioner and Glen Walker is the assigned ALJ in this proceeding.
1. In A.00-06-010, PG&E sought approval under Section 851 of 110 lease transactions.
2. In that application, PG&E stated that it would later seek approval of a number of leases and licenses for recreational use of PG&E property subject to FERC hydro-generation leases.
3. As part of its bankruptcy proceeding, PG&E was required to do an extensive search in order to list all outstanding leases and licenses.
4. In A.03-05-012, PG&E seeks Section 851 approvals of 256 transactions.
5. Nine of the transactions received environmental review under CEQA by local agencies.
6. Six of transactions pre-date the enactment of CEQA in 1970.
7. CEQA Guideline Section 15301 exempts from CEQA review the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures and facilities involving negligible or no expansion of use.
8. CEQA Guideline Section 15302 exempts from CEQA review the replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site and having substantially the same purpose and capacity.
9. CEQA Guideline Section 15303 exempts from CEQA review the construction or location of limited numbers of new small facilities and structures; installation of small new equipment and facilities in small structures; and the conversion of existing structures from one use to another where only minor modifications are made to the exterior.
10. CEQA Guideline Section 15304 exempts from CEQA review minor public or private alterations in the condition of land, water, and/or vegetation.
11. CEQA Guideline Section 15305 exempts from CEQA review minor alterations in land use limitations.
12. CEQA Guideline Section 15311 exempts from CEQA review construction or placement of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities.
13. CEQA Guideline Section 15316 exempts from CEQA review the transfer of ownership of land to create parks.
14. CEQA Guideline Section 15323 exempts from CEQA review the normal operations of facilities for public gatherings.
15. CEQA Guideline Section 15096 requires a responsible agency under CEQA to review the environmental documents prepared by a lead agency prior to approval and construction of a project.
16. Pub. Res. Code § 21169 is a grandfather clause to exempt from CEQA requirements projects constructed prior to the enactment of CEQA in 1970.
17. All of the 256 transactions involve licenses or leases that permit various uses of PG&E property by third parties.
18. Many of the transactions allow both the use of existing facilities and structures and also allow some construction or improvement on PG&E property.
19. The transactions are categorized into those that involve recreational uses on hydro-generation lands, telecommunications, vehicle parking, storage, and miscellaneous.
20. All of the transactions are several years old and any activities which took place that required CEQA review are already completed.
21. In GO 159-A, the Commission delegated its authority to regulate the location and design of cellular facilities to local agencies, while retaining oversight and jurisdiction in cases of conflict with the Commission's goals and/or statewide interests.
22. Agreements which meet the criteria of GO 69-C do not require Commission approval.
23. An unidentified number of transactions which may qualify for GO 69-C treatment were not submitted as part of this application.
24. In D.02-10-047, the Commission found that specified floating boat dock agreements are within GO 69-C and do not require Commission approval.
25. Much of the revenue from the licenses and leases will be treated as other operating revenue for the benefit of ratepayers on PG&E's general rate case.
26. Revenue from uses of FERC jurisdictional transmission property will be subject to FERC accounting and ratemaking treatment.
27. ORA does not challenge PG&E's proposed revenue allocation.
1. CEQA Guideline Section 15301 applies to exempt all the activities under the following transactions from environmental review: 1-15, 17-35, 37-51, 53-81, 83-85, 87-106, 108-131, 133-139, 142, 143, 145, 147, 149-156, 158, 159, 161, 163-179, 182-185, 238, 239, 244.
2. Where an agreement involves the use of existing facilities pursuant to CEQA Guideline Section 15301 as well as certain construction activity, Section 15301 provides only a partial exemption for that portion of the agreement allowing use of the existing facilities.
3. A transaction is deemed exempt from CEQA review only if all the activities allowed under the agreement fall within one or more of the CEQA exemption statutes.
4. CEQA Guideline Section 15302 applies to exempt the following transactions from environmental review: 36, 52, 86, 107, 228.
5. CEQA Guideline Section 15303 applies to exempt the following transactions from environmental review: 195-209 (for specified activities), 210-215 (for specified activities).
6. CEQA Guideline Section 15304 applies to exempt the following transactions from CEQA review: 195-209 (for specified activities), 210-215 (for specified activities, 219-222.
7. CEQA Guideline Section 15305 applies to exempt Transaction 236 from CEQA review.
8. CEQA Guideline Section 15311 applies to exempt the following transactions from environmental review: 195-209 (for specified activities), 237.
9. Pursuant to GO 159-A, no further environmental review is required by the Commission for the following transactions: 187, 188, 189, 190, 191, 193, 194.
10. Pursuant to Pub. Res. Code § 21169 the following transactions are not subject to CEQA requirements: 241, 218, 226, 229, 230, 252.
11. CEQA lead agency review was conducted by local agencies for the following transactions: 180, 224, 225, 227, 231, 232, 234, 235, 243.
12. We make no finding regarding the applicability of GO 69-C to transactions that were not submitted as part of this application.
13. The CEQA exemptions reviewed in this decision, either individually or in conjunction, do not provide a CEQA exemption for the following transactions: 16, 82, 140, 141, 144, 146, 148, 157, 160, 162, 181, 186, 192, 195-209, 216, 217, 237, 240, 242, 245-251, 253, 254, 255, 256.
14. The transactions included in this application do not impair PG&E's ability to serve its customers.
15. The transactions reserve to PG&E the rights necessary for PG&E to fulfill its public utility functions.
16. The public interest is served when utility property is used for other productive purposes without interfering with the utility's service.
17. PG&E has met its burden of showing that the transactions at issue are not adverse to the public interest.
18. PG&E's application for approval of 255 of the 256 transactions at issue should be granted.
19. Transaction 132 is consistent with D.02-10-047 and GO 69-C and does not require Commission approval.
20. The authority granted should apply prospectively, and not on a retroactive basis.
21. The 255 transactions approved today should be exempted from Section 851 approval pursuant to Section 853(b) for the period of time that they were in effect prior to the date of this decision.
22. No penalty should be assessed for PG&E's failure to obtain prior approval of the transactions under Section 851.
23. Our order should grant PG&E authority to enter into extensions and minor modifications of the transaction in this application without applying to the Commission for approval of the changes.
IT IS ORDERED that:
1. The application of Pacific Gas and Electric Company (PG&E) for approval under Pub. Util. Code § 851 of 256 transactions set forth in Exhibit A of this decision is approved.
2. The 255 of the 256 transactions set forth in Exhibit A of this decision are approved prospectively from the date of this decision.
3. The 255 transactions approved today are exempted from Section 851 approval pursuant to Section 853(b) for the period of time that they were in effect prior to the date of this section.
4. PG&E is authorized to enter into extensions and minor modifications of the transactions set forth in Exhibit A without applying to the Commission for approval of the changes.
5. No penalty is assessed against PG&E for failure to obtain advance approval of the Commission before executing the 256 transactions set forth in Exhibit A of this decision.
6. Application 03-05-012 is closed.
This order is effective today.
Dated ______________, at San Francisco, California.
