43 U.S.C. § 1772 — Vegetation managment,1 facility inspection, and operation and maintenance relating to electric transmission and distribution facility rights of way

This section sets Federal rules for managing vegetation, inspecting facilities, and operating and maintaining electric transmission and distribution rights-of-way. It requires guidance and provides optional plans or agreements, emergency authority, approval rules, liability limits, reporting, training, and implementation deadlines.

(a) Definitions. In this section:

(1) “Hazard tree” means any tree or part of a tree, whether inside or outside a right-of-way, that a certified or licensed arborist or forester has designated before the tree fails. The arborist or forester must be working under the supervision of the Secretary concerned or the owner or operator of a transmission or distribution facility. The tree or part of the tree must be—

(A) dead, likely to die during the routine vegetation-management cycle, or likely to fail during that cycle; and

(B) if it failed, likely to—

(i) cause substantial damage to or disruption of a transmission or distribution facility; or

(ii) come within 10 feet of an electric power line.

(2) “Owner” and “operator” include contractors or other agents engaged by the owner or operator of an electric transmission or distribution facility.

(3) “Plan” means a vegetation-management, facility-inspection, and operation-and-maintenance plan that—

(A) the owner or operator of one or more electric transmission or distribution facilities prepares to cover one or more electric transmission and distribution rights-of-way; and

(B) provides for the long-term, cost-effective, efficient, and timely management of facilities and vegetation within the width of the right-of-way and on adjoining Federal land, including management of hazard trees, to improve electric reliability, promote public safety, and avoid fire hazards.

(4) “Secretary concerned” means—

(A) the Secretary, for public lands; and

(B) the Secretary of Agriculture, for National Forest System land.

The supplied text uses other quoted terms, including “electric transmission or distribution facility,” “National Forest System land,” “public lands,” and “vegetation management,” but does not define them in this section.

(b) Guidance.

(1) In general. To improve electric-grid reliability and reduce wildfire damage to, and wildfires caused by, vegetation-related conditions within electric transmission and distribution rights-of-way and adjoining Federal land, including hazard trees, the Secretary concerned must issue and periodically update guidance. The guidance must ensure that provisions are properly developed and carried out for utility vegetation management, facility inspection, and operation and maintenance of rights-of-way. This applies regardless of how a right-of-way was established, including by grant, special-use authorization, or easement.

(2) Limitation. The guidance must be compatible with mandatory reliability standards established by the Electric Reliability Organization.

(3) Considerations. The guidance must take into account all applicable law, including fire-safety and electric-system reliability requirements, including reliability standards established by the Electric Reliability Organization under section 824o of title 16. It must also take into account the 2016 Memorandum of Understanding on Vegetation Management for Powerline Rights-of-Way between the Edison Electric Institute, Utility Arborist Association, Department of the Interior, Department of Agriculture, and Environmental Protection Agency.

(4) Requirements. The guidance must be developed in consultation with owners of transmission and distribution facilities that hold rights-of-way. It must seek to minimize case-by-case approvals for routine vegetation management, facility inspection, operation and maintenance, and utility vegetation management needed to control hazard trees. It must provide prompt and timely review of requests for activities needing the Secretary concerned's approval, especially activities needing expedited or immediate action.

(c) Vegetation management, facility inspection, and operation and maintenance plans.

(1) Development and submission. Consistent with subsection (b), the Secretary concerned must give owners and operators of electric transmission or distribution facilities on public lands and National Forest System land, as applicable, the option to develop and submit a plan.

(2) ERO standards. Owners and operators subject to mandatory reliability standards of the Electric Reliability Organization, or superseding standards, may use those standards as part of the plan.

(3) Plan requirements. A plan must—

(A) identify the applicable transmission or distribution facilities to be maintained;
(B) take into account operation and maintenance plans for the applicable transmission or distribution line;
(C) describe the vegetation-management, inspection, and operation-and-maintenance methods that may be used to comply with all applicable law, including fire-safety requirements and reliability standards established by the Electric Reliability Organization;
(D) include schedules for—
(i) the owner or operator to notify the Secretary concerned about routine and major maintenance;
(ii) the owner or operator to request approval from the Secretary concerned about undertaking routine and major maintenance; and
(iii) the Secretary concerned to respond to a request under clause (ii); and
(E) describe processes for identifying changes in conditions and modifying the approved plan, if necessary.

(4) Review and approval process. (A) In general. The Secretary concerned must jointly develop a consolidated and coordinated process for reviewing and approving plans submitted under paragraph (1). The process must include timelines and benchmarks for agency comments on the plans and schedules for final decisions, and for timely review of plan modifications when modifications are necessary. It must be consistent with applicable law, include a prompt process for modifying a plan if changed conditions require it, and ensure, to the maximum extent practicable, a prompt review and approval process that does not exceed 120 days. (B) Plan modification. After giving an owner or operator reasonable advance notice of changed conditions that warrant a plan modification, the Secretary concerned must give the owner or operator an opportunity to submit a proposed modification, consistent with the process for prompt modifications, to address the identified changed condition; consider the proposed modification under the review process; and allow the owner or operator to continue implementing any approved-plan element that does not directly and adversely affect the condition that caused the need for modification.

(5) Categories of actions not requiring environmental analysis. For developing and approving plans and for actions carried out under those plans, the Secretary concerned must identify categories of actions for which neither an environmental impact statement nor an environmental assessment is required under section 1508.4 of title 40, Code of Federal Regulations, or a successor regulation.

(d) Certain owners and operators.

(1) In general. The owner or operator of an electric transmission or distribution facility that is not subject to the mandatory reliability standards established by the Electric Reliability Organization, or that sold no more than 1,000,000 megawatt hours of electric energy for purposes other than resale during each of the 3 calendar years immediately before March 23, 2018, may enter into an agreement with the Secretary concerned instead of a plan under subsection (c).

(2) Minimum requirements. The Secretary concerned must ensure that the minimum requirements for an agreement reflect the applicable owner or operator's financial resources compared with those of other owners or operators of an electric transmission or distribution facility; include the schedules described in subsection (c)(3)(D); are subject to the modification requirements described in subsection (c)(4)(B); and comply with applicable law.

(e) Emergency conditions. If vegetation or hazard trees have contacted, or present an imminent danger of contacting, an electric transmission or distribution line from within or next to an electric transmission or distribution right-of-way, the owner or operator of the lines—

(1) may prune or remove the vegetation or hazard tree to avoid disruption of electric service and eliminate immediate fire and safety hazards; and

(2) must notify the appropriate local agent of the Secretary concerned no later than 1 day after responding to the emergency conditions.

(f) Activities that require approval.

(1) In general. Except as provided in paragraph (3), the owner or operator of an electric transmission or distribution facility may conduct vegetation-management activities that require the Secretary concerned's approval under a plan approved under subsection (c) or an agreement entered into under subsection (d) only with the Secretary concerned's approval.

(2) Requirement to respond. The Secretary concerned must respond to a request for approval to conduct vegetation-management activities according to the applicable schedules in a plan approved under subsection (c) or an agreement entered into under subsection (d).

(3) Authorized activities. The owner or operator may conduct vegetation-management activities that require the Secretary concerned's approval under a plan approved under subsection (c) or an agreement entered into under subsection (d) without that approval if—

(A) the owner or operator submitted a request to the Secretary concerned according to the applicable schedule in the approved plan or agreement;
(B) the proposed vegetation-management activities, including removal of hazard trees, follow the approved plan or agreement; and
(C) the Secretary concerned failed to respond to the request according to the applicable schedule.

(g) Liability.

(1) In general. The Secretary concerned may not impose strict liability for damages or injury resulting from the Secretary concerned unreasonably withholding or delaying approval of a plan, unreasonably withholding or delaying entry into an agreement, or unreasonably failing to follow an applicable schedule in an approved plan or agreement.

(2) Damages. During the period ending 10 years after March 23, 2018, the Secretary concerned may not impose strict liability of more than $500,000 per incident for damages or injury resulting from activities conducted by an owner or operator in accordance with an approved agreement under subsection (d).

(3) Rule of construction. Nothing in paragraph (2) affects any liability imposed by the Secretary concerned under section 251.56(d) of title 36, Code of Federal Regulations, as in effect on March 23, 2018, and section 2807.12 of title 43, Code of Federal Regulations, as in effect on March 23, 2018, for activities conducted by an owner or operator in accordance with an approved plan under subsection (c).

(h) Reporting requirement.

(1) Activities that require approval. The Secretary concerned must annually report requests and actions made under subsection (f) on the Secretary concerned's website.

(2) Liability. No later than 4 years after March 23, 2018, the Secretary concerned must prepare and submit a report to the Committee on Natural Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate describing the effect on the Treasury of the strict-liability limitation established by subsection (g)(2).

(i) Training and guidance. In consultation with the electric utility industry, the Secretary concerned is encouraged to develop a program to train Department of the Interior and Forest Service personnel involved in vegetation-management decisions relating to electric transmission and distribution facilities. The program should ensure that the personnel—

(1) understand electric-system reliability requirements as they relate to vegetation management of transmission and distribution rights-of-way on Federal land, including reliability standards established by the Electric Reliability Organization and fire-safety requirements;
(2) assist owners and operators of electric transmission and distribution facilities in complying with applicable electric-reliability and fire-safety requirements;
(3) encourage and assist willing owners and operators to voluntarily use vegetation-management practices that enhance habitat and forage for pollinators and other wildlife, if the practices are compatible with the integrated vegetation-management practices needed for reliability and safety; and
(4) understand how existing and emerging unmanned technologies can help electric utilities, the Federal Government, State and local governments, and private landowners—
(A) identify vegetation-management needs more efficiently;
(B) reduce the risk of wildfires; and
(C) lower ratepayer energy costs.

(j) Implementation. The Secretary concerned must—

(1) no later than 1 year after March 23, 2018, propose regulations, or amend existing regulations, to implement this section; and
(2) no later than 2 years after March 23, 2018, finalize regulations, or amend existing regulations, to implement this section.

(k) Existing vegetation management, facility inspection, and operation and maintenance plans. Nothing in this section requires an owner or operator to develop and submit a new plan if a plan consistent with this section was already approved by the Secretary concerned before March 23, 2018.