B. Background

The procedural history of this proceeding shows significant back-and-forth communication between WilTel and Commission staff in an attempt to conform this application to the currently existing Commission interpretations of its CEQA obligations.

WilTel first filed its application on May 3, 2004. On June 2, 2004, the assigned Administrative Law Judge (ALJ) asked WilTel to supplement its application with more detail about the location and type of construction WilTel planned. On July 9, 2004, WilTel filed the requested supplement. WilTel explained the delay in supplementation on the ground that it "ha[d] not be[en] able to obtain detailed information about its planned construction until only recently."¹ In the supplement, WilTel asked for blanket approval - without Commission CEQA review - of spurs directly or indirectly connecting WilTel's fiber optic network to new locations so long as 1) all construction is no more than five miles in length, 2) all construction is done inside existing rights of way, 3) WilTel notifies the Commission staff of each qualifying construction project prior to commencing construction, and 4) WilTel fully complies with any CEQA review required by local permitting agencies.²

On January 21, 2005, WilTel sent a letter to the Commission stating that,

based on recent discussions with [Commission] staff, WilTel determined that it should file a Second Supplement to its Application to modify its request for relief. Specifically, WilTel will modify its request for relief to adopt programmatic mitigated negative declarations (PND) previously issued by the Commission.³

WilTel filed the Second Supplement to its application on January 27, 2005.⁴ While it has since withdrawn the Second Supplement, in it WilTel proposed to enable the Commission to comply with CEQA by agreeing to conditions the Commission had imposed on other carriers in prior decisions. Thus, in the Second Supplement, WilTel proposes to adopt and comply with the Yipes Enterprise Services, Inc. (Yipes) and IP Networks, Inc. programmatic mitigated negative declarations (PND) already approved Decision (D.) 04-12-011 and D.03-01-069.

We described the PND approach in D.04-12-011, the Yipes decision:

To adapt to this type of project, the Commission developed the last mile [mitigated negative declaration] MND as a process-oriented approach that sets performance standards for analyzing potential impacts, and identifying and implementing required mitigation measures within the geographic areas studied. . . .

Because the specific locations within the geographic areas studied are not known, the last mile MND takes the conservative approach of presenting all possible impacts and required mitigation measures within those areas. This process provides CEQA compliance for the Commission and responsible agencies, but does not limit the authority of responsible agencies to issue permits and approvals for future project routes. When Applicant knows the precise location of the customers it will serve, it will submit a project description and construction work plan to the Commission, which must demonstrate that it was coordinated with all lead and responsible agencies, obtained all local permits, and complied with the local public notification process. The Commission will review the construction work plan, and if all requirement and performance criteria are met, it will issue a Notice to Proceed with Construction.⁵

However, on March 8, 2005, WilTel sent another letter to the ALJ withdrawing its Second Supplement and indicating that it wished the Commission to render a decision solely on WilTel's original application and the July 9, 2004 First Supplement.⁶ We analyze the application on that basis below.