BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF … · 2018. 5. 21. · 8. Assignment of...

213478755 - 1 – Dbp 5/7 1:45

ALJ/ZK1/jt2 PROPOSED DECISION Agenda ID #____ Ratesetting BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Application of the California High-Speed Rail Authority for Approval to Construct Two New Grade Separated Crossings Over the Proposed High-Speed Rail Tracks Operated by California High-Speed Rail Authority at Elkhorn Avenue (MP 210.2) and Fowler Avenue (MP 210.7) Located in the County of Fresno, State of California.

Application 17-09-017

DECISION GRANTING AUTHORIZATION TO THE CALIFORNIA HIGH-SPEED

RAIL AUTHORITY TO CONSTRUCT GRADE-SEPARATED RAILROAD CROSSINGS AT ELKHORN AVENUE (MP 210.2) AND FOWLER AVENUE (MP 210.7) IN FRESNO COUNTY

Summary

Pursuant to Public Utilities Code Sections 1201 and 1202 and the California

Public Utilities Commission (Commission) Rules of Practice and Procedure

Rule 3.7, we grant the California High-Speed Rail Authority authorization to

construct two grade-separated railroad crossings in Fresno County. The crossing

at Elkhorn Avenue, California High-Speed Rail Train System (CHSRTS), Sierra

Subdivision milepost (MP) 210.18, will be identified as Commission Crossing

Number (No.) 135S-210.18-A. The crossing at Fowler Avenue, CHSRTS Sierra

Subdivision MP 210.73, will be identified as Commission Crossing

No. 135S-210.73-A. This proceeding is closed.

A.17-09-017 ALJ/ZK1/jt2 PROPOSED DECISION

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1. Factual Background

The California High-Speed Rail Authority (CHSRA or Applicant) requests

authority to construct two grade-separated railroad crossings, at California

High-Speed Train Rail System (CHSTRS) Sierra Subdivision mileposts

(MP) 210.18 and 210.7. To construct the railroad crossing at CHSTRS Sierra

Division MP 210.18, the County of Fresno plans to modify a section of Elkhorn

Avenue from an at-grade roadway to an overpass, while CHSRA proposes to

install at-grade mainline railroad tracks. Similarly, to construct the railroad

crossing at CHSTRS MP 210.73, the County of Fresno proposes to modify a

section of Fowler Avenue from an at-grade roadway to an overpass while

CHSRA plans to install at-grade mainline railroad tracks. The CHSRA and the

County of Fresno plan to complete construction of the two grade-separated

railroad crossings under the California High-Speed Train Project Cooperative

Agreement: Fresno County.

The two proposed railroad crossings are part of the CHSTRS, which will

connect San Francisco, Sacramento, Los Angeles, Anaheim and San Diego. The

proposed railroad crossings are a small portion of the CHSRA’s Construction

Package 2-3 (CP 2-3), a subset of the CHSTRS located in Fresno, Kings and Tulare

Counties.1 CP 2-3 includes 36 grade separations.2

No current rail operations exist in the immediate vicinity of the Project.

However, the CHSTRS is coincident with the Burlington Northern Santa Fe

Railway Company tracks for a portion of the area encompassed by CP 2-3.

1 Application at 3.

2 Application at 3.


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2. Procedural Background

CHSRA filed its Application on September 22, 2017. On October 26, 2017,

the California Public Utilities Commission (Commission) Safety and

Enforcement Division, Rail Crossings and Engineering Branch (SED) provided a

response to the Application. No parties protested the Application.

On October 31, 2017, the assigned Administrative Law Judge (ALJ) issued

a ruling setting a prehearing conference (PHC). At the November 27, 2017 PHC;

the Applicant, SED, Dragados Flatiron Joint Venture, the County of Fresno and

the assigned ALJ discussed the issues presented by the Application, the schedule

and other relevant procedural matters. Only the Applicant and SED are parties

to the proceeding.

On November 30, 2017, the assigned Commissioner issued a Scoping

Memorandum and Ruling (Scoping Memo). On February 14, 2018, the assigned

ALJ issued a ruling requiring parties to meet and confer and file a joint statement

providing additional information (February Ruling). On March 5, 2018, the

assigned ALJ granted CHSRA’s March 2 request for a 30-day extension to file a

response to the February Ruling by e-mail ruling. On March 12, 208, the

assigned ALJ issued a ruling amending the February Ruling to require separate

party responses to the additional information requested (March Ruling). On

April 16, 2018, CHSRA and SED filed a response to the March Ruling.

The Commission has jurisdiction over this Application under Public

Utilities (Pub. Util.) Code Sections 1201 and 1202, and Rule 3.7.3

3 California Code of Regulations, Title 20, Division 1, Chapter 1; hereinafter, Rule or Rules.


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3. Environmental Review and CEQA Compliance

The Fresno to Bakersfield Section of the California High-Speed Train

Project (Fresno-Bakersfield CHST Project) constitutes a project under the

California Environmental Quality Act of 1970 (CEQA) and the National

Environmental Policy Act (NEPA). (Cal. Pub. Resources Code § 21000 et seq.;

42 U.S.C. 4371 et seq.) Under CEQA, the lead agency is either the public agency

that carries out the project, or has the greatest responsibility for supervising or

approving a project, which may have a significant impact on the environment.

(14 Cal. Code Regs. §§ 15050 and 15051.) CHSRA is the lead agency under CEQA

and the Federal Railroad Administration (FRA) is the lead agency under NEPA

for the purposes of identifying environmental impacts from the

Fresno-Bakersfield CHST Project.

CHSRA and the FRA jointly prepared the Final Environmental Impact

Report/Environmental Impact Statement for the Fresno to Bakersfield Section of the

California High-Speed Train Project (Final EIR/EIS), dated April 2014. FRA

reviewed the Final EIR/EIS under NEPA and filed a Notice of Determination

(NOD), which was certified on May 7, 2014. FRA also issued a Record of

Decision on June 27, 2014. Subsequently, the project design of the East Elkhorn

Overcrossing was elongated by 220 feet and the South Fowler Overcrossing was

realigned to the existing alignment of South Fowler Avenue; the alterations did

not require a change under CEQA or NEPA and no supplemental EIS or EIR was

prepared.4

A responsible agency under CEQA “includes all public agencies other than

the lead agency which have discretionary approval power over the project.”

4 CHSRA, Response to Administrative Law Judge Inquiry at 3-4.


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(14 Cal. Code Regs. § 15381.) Since the Commission has the exclusive authority

to approve railroad crossings pursuant to Pub. Util. Code § 1202 and must issue

a discretionary decision in order for the project to proceed, the Commission is a

responsible agency under CEQA.5

As a responsible agency, the Commission must consider the

environmental effects identified in the Final EIR/EIS relating to the portion of

the project that is before the Commission for approval. (14 Cal. Code Regs.

§ 15096(f).) The Commission has authority to mitigate or avoid only the direct

and indirect environmental effects of those parts of the project which it is called

on to carry out or approve. (14 Cal. Code Regs. §§ 15042 and 15096(g).)

The Commission must adopt any mitigation measures within the

Commission’s jurisdiction that avoid or mitigate the part of the project the

Commission approves (14 Cal. Code Regs. §§ 15091(a)(2) and 15096(g)(1).);

unless the changes or alterations are infeasible for specific economic, legal, social,

technological, or other considerations. (14 Cal. Code Regs. § 15096(g)(2).) The

Commission must balance any unavoidable impacts against specific economic,

legal, social, technical or other benefits. (14 Cal. Code Regs. § 15096(h).) Finally,

the Commission must file a NOD with the CEQA Clearinghouse certifying that

the Commission has considered the environmental document. (14 Cal. Code

Regs. § 15096(i).)

The Final EIR/EIS found significant environmental impacts due to the

Bakersfield-Fresno CHST Project which could be mitigated, with some impacts

5 The Commission is not required to review the project under NEPA because it is not a lead or a cooperating agency within the meaning of Title 14 Cal. Code Regs. §§ 1501.5-1501.6. (14 Cal. Code Regs. §§ 1501.5-1501.6.)


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mitigated to below significant environmental impact. Significant environmental

impacts from the Bakersfield-Fresno CHST Project which could not be mitigated

to below significant include the following: 1) noise effects; 2) adverse effects on

socioeconomics and communities; 3) environmental justice; 4) station planning,

land use, and development; 5) agricultural lands; 6) parks, recreation, and open

space; and 7) aesthetics and visual quality.6

The Commission reviewed and considered the Final EIR/EIS as these

documents relate to the two proposed railroad crossings. The Commission

adopts the mitigation measures detailed in the Final EIR/EIS which apply to the

roadway crossings specifically7 and for the entire project.8 No significant

environmental impacts in the Final EIR/EIS are directly associated with the

proposed, grade-separated railroad crossings. The Commission’s Energy

Division will file a NOD with the CEQA clearinghouse stating that the

Commission considered the environmental documents related to the proposed

railroad crossings.

4. Filing, Safety and Engineering Requirements

Applications for the construction of public roads across railroads must

meet the requirement of Rule 3.7 as well as the minimum clearance requirements

of General Order (GO) 26-D.

6 Final EIR/EIS at 6-1 to 6-3.

7 Final EIR/EIS at 3.19-7 to 3.19-9.

8 CHSRA, Resolution # HSRA 14-10, Attachment B, Mitigation Monitoring and Reporting Program for the certified FEIR/EIS.


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SED’s response stated that SED staff participated in a diagnostic meeting

regarding the proposed crossing locations on May 4, 2017.9 SED’s independent

review of the Application found that the proposed railroad crossings met the

requirements of Rule 3.7 and GO 26-D.10

Upon review, the Commission finds the CHSRA provided materials in its

Application and its Response to ALJ Inquiry, dated April 16, 2018, sufficient to

satisfy Rule 3.7 and GO 26-D requirements for the proposed railroad crossing, as

detailed in Appendix A.

5. Request for 72-Month Authority to Construct

CHSRA requests authority to complete the two proposed railroad

crossings within 72 months, or six years, “due to the complexity, size and unique

nature of the CP 2-3 Project.”11 As grade-separated railroad crossings, CHSRA

also argues that the “crossing configurations are well defined and not subject to

the variability common for at-grade crossings.”12

The Commission finds CHSRA’s request reasonable. Accordingly, the

Commission approves CHSRA’s request construct the proposed rail crossings

within 72 months of the date of this Decision.

9 Response of the Safety and Enforcement Division to Application of the California High-Speed Rail Authority to Construct Two Proposed High-Speed Rail Tracks and Overpass Grade Separations at Elkhorn Avenue (MP 210.20) and Fowler Avenue (MP 210.70) in the County of Fresno, State of California (Oct. 26, 2017), Attachment A at 1.

10 Response to ALJ Inquiry of the Safety and Enforcement Division (Apr. 16, 2018) at 2-4.

11 Application at 6.

12 Id.


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6. Conclusion

The Application conforms to our rules for granting authority to construct

railroads across public roads, highways or streets. Accordingly, we grant

CHSRA the authority to construct new grade-separated railroad crossings at

CHSTRS Sierra Subdivision MPs 210.18 and 210.73, in the County of Fresno,

subject to compliance with the terms and conditions set forth in the Ordering

Paragraphs.

7. Waiver of Comment Period

This is an uncontested matter in which the decision grants the relief

requested. Accordingly, pursuant to Section 311(g)(2) of the Public Utilities Code

and Rule 14.6(c)(2), the otherwise applicable 30-day period for public review and

comment is waived.

8. Assignment of Proceeding

Michael Picker is the assigned Commissioner and Zita Kline is the

assigned ALJ in this proceeding.

Findings of Fact

1. The proposed railroad crossings meet the requirements of Rule 3.7.

2. The proposed railroad crossings meet the requirements of GO 26-D.

3. With mitigation agreed to by Applicant, a number of environmental

impacts related to the proposed railroad crossing will be mitigated to less than

significant.

4. Environmental impacts which cannot be mitigated to less than significant,

as described in the Final EIR/EIS, do not directly or indirectly impact the

proposed railroad crossings.


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Conclusions of Law

1. The Commission reviewed and considered the environmental compliance

documents submitted by the CHSRA, including the Final EIR/EIS, and made

findings on each significant impact directly or indirectly related to the two

proposed railroad crossings.

2. CHSRA’s request for Commission authorization to construct the railroad

crossing within 72 months is reasonable.

3. The application should be granted.

O R D E R

IT IS ORDERED that:

1. The California High-Speed Rail Authority is authorized to construct the

proposed railroad crossings at California High-Speed Train Rail System, Sierra

Subdivision mileposts 210.18 and 210.73, in the County of Fresno.

2. The railroad crossing at California High-Speed Train Rail System Sierra

Subdivision milepost 210.18 shall be identified as California Public Utilities

Commission Crossing Number 135S-210.18-A (United States Department of

Transportation Crossing Number 973172U).

3. The railroad crossing at California High-Speed Train Rail System Sierra

Subdivision milepost 210.73 shall be identified as California Public Utilities

Commission Crossing Number 135S-210.73-A (United States Department of

Transportation Crossing Number 973173B).


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4. The two grade-separated railroad crossings shall have the crossing

treatments and configuration specified in Appendix A.

5. The California High-Speed Rail Authority shall comply with all applicable

rules, including California Public Utilities Commission General Orders and the

California Manual on Uniform Traffic Control Devices.

6. The California High-Speed Rail Authority shall notify the California Public

Utilities Commission’s Rail Crossings and Engineering Branch of the Safety and

Enforcement Division at least 30 days prior to the opening of the crossings.

Notification should be made by email to [email protected].

7. Within 30 days after completion of the work authorized by this decision,

the California High Speed Rail Authority shall notify the California Public

Utilities Commission’s Safety and Enforcement Division, Rail Crossings and

Engineering Branch, that the authorized work is completed by submitting a

Standard Form G (Report of Changes at Highway Grade Crossings and

Separations). Form G requirements and forms can be obtained at the California

Public Utilities Commission website at http://www.cpuc.ca.gov/crossings. The

completed report may be submitted via e-mail to [email protected].

8. Within 30 days after completion of the work under this order, the

California High-Speed Rail Authority shall notify the Federal Railroad

Administration of the existence of the public, grade-separated, highway-rail

crossings by submitting United States Department of Transportation Crossing

Inventory Forms (FRA F6180.71). Concurrently, California High-Speed Rail

Authority shall provide a copy of the inventory forms to the California Public

Utilities Commission’s Safety and Enforcement Division, Rail Crossings and

Engineering Branch. Copies of this form may be submitted electronically to

[email protected].

mailto:[email protected]

http://www.cpuc.ca.gov/crossings




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9. This authorization shall expire if not exercised within 72 months of the

issuance of this decision unless time is extended or if the above conditions are

not satisfied. The California Public Utilities Commission may revoke or modify

this authorization if public convenience, necessity, or safety so requires.

10. A request for extension of the 72-month authorization period must be

submitted to the California Public Utilities Commission’s Safety and

Enforcement Division, Rail Crossings and Engineering Branch at least 30 days

before the expiration of that period. A copy of the request must be sent to all

interested parties.

11. The application is granted as set forth above.

12. Application 17-09-017 is closed.

This order is effective today.

Dated , at San Francisco, California.

APPENDIX A


Appendix A

SUMMARY OF FILING REQUIREMENTS

Rule 3.7.

1. Elkhorn Avenue Overcrossing

Rule

3.7(a) California High-Speed Rail Train Rail System, Sierra Subdivision, MP

210.18. The legal location is included in Attachment 1.

3.7(b) At-grade crossing at Conejo Avenue (Commission Crossing No. 002-

982.10/ DOT No. 028442L/ BNSF MP 982.1) to the north of the

crossing.

3.7(c) Not applicable.

3.7(d-f),

3.9 (c)

The required maps and figures are provided in the Application, see

Attachment 2.

2. Fowler Avenue Overcrossing

Rule

3.7(a) California High-Speed Rail Train Rail System, Sierra Subdivision, MP

210.73. The legal location is provided in Attachment 1.

3.7(b) At-grade crossing at Elkhorn Avenue and BNSF (Commission

Crossing No. 002-980.00/DOT No. 028439D/ BNSF MP 980) to the

west of the proposed crossing.

3.7(c) Not applicable.

3.7(d-f) Applicant provided the required maps and figures in the

Application, see Attachment 2.



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General Order (GO) 26-D

1. The proposed vertical clearance of 27 feet (‘) 5 inches (“) for both Elkhorn

and Fowler Avenue railroad crossings meets the GO-26 minimum

overhead clearance requirement of 22.6’. (GO 26-D § 2.1.)

2. The proposed side clearance of 35’ 1”and 33’ 6” from the centerline of the

track to the nearest obstruction for Elkhorn and Fowler Avenue railroad

crossings, respectively, meets the GO 26-D minimum side clearance

requirements of 8’ 6” from the centerline of the track closest to the

obstruction. (GO 26-D § 3.2)

3. The side clearance between parallel tracks of 16’ 6” for both proposed

railroad crossings is greater than the minimum clearance of 15‘. (GO 26-D

§ 5.2)

Appendix A

Attachment 1

LEGAL DESCRIPTION OF THE PROPOSED RAILROAD CROSSINGS



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Appendix A

Attachment 2

MAPS AND FIGURES OF PROPOSED RAILROAD CROSSINGS


(End of Appendix A)

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