By Rich Heidorn Jr.

The Trump administration sided with utility witnesses Tuesday on legislation to streamline approvals for managing vegetation near power lines on federal land, an effort to reduce wildfire risks.

Witnesses from the Bureau of Land Management, the National Forest Service and two utilities endorsed separate House and Senate bills to amend the Federal Land Policy and Management Act (FLPMA) and provide authority to exempt existing rights of way (ROWs) from reviews under the National Environmental Policy Act (NEPA).

The Wilderness Society, however, said it opposed the House bill, the Electricity Reliability and Forest Protection Act (H.R. 1873), because it would impose “counterproductive limitations and obligations on both utilities and federal land managers, inappropriately shift costs from utilities to taxpayers and agencies, and undermine the public interest in the management of their public lands.”

The group told a Senate Energy and Natural Resources Committee hearing Tuesday that it prefers Section 2310 of the Energy and Natural Resources Act of 2017 (S. 1460), a comprehensive energy bill cosponsored by committee Chair Lisa Murkowski (R-Alaska) and ranking member Maria Cantwell (D-Wash.).

Blackout Prompted Standards

It was the August 2003 Northeast blackout — triggered by contact between a power line and a tree — that led Congress to enact mandatory reliability standards as part of the 2005 Energy Policy Act. FERC, which deputized NERC to develop the standards, approved the corporation’s vegetation standards in 2013.

Both bills pending before Congress would provide authority to exempt existing ROWs from reviews under NEPA. They also would allow utilities to trim vegetation within ROWs or “hazard” trees adjacent to ROWs that have contacted or are in imminent danger of contacting transmission lines as long as they notify the appropriate agency within 24 hours, according to summary attached to BLM’s testimony.

Testifying for the Edison Electric Institute, Andrew Rable, manager of forestry and special programs for Arizona Public Service, laid out utilities’ difficulties in employing integrated vegetation management (IVM), which combines the planting of low-growth vegetation in ROWs with pruning and use of herbicides to ensure sufficient distance between plants and electric facilities.

“Transmission line ROWs crossing federal lands face multiple layers of jurisdiction and decision-making, which can hamper electric companies’ ability to manage vegetation and reduce wildfire risk in a timely manner,” he said.

Rable said that although the two bills are largely similar, the House’s is preferable because it sets shorter deadline for approval of vegetation management plans (90 days versus 180 days) and provides “more flexible and less burdensome” rules.

The two bills both provide limited liability protections. According to the BLM summary, the House version protects a utility from wildfire liability to the U.S. when federal agencies blocks it from addressing hazard trees or vegetation in imminent danger of contact with power facilities. The Senate’s would protect utilities from strict liability following a land agency’s “unreasonable delay or failure to approve or adhere to a vegetation management plan or an MOU,” BLM said.

Mark Hayden, general manager of the Missoula Electric Cooperative, which has about 15,000 customers in western Montana and eastern Idaho and 300 miles of distribution lines crossing federal land, told the committee the 2017 wildfire season has devastated his region’s economy.

“I fully recognize that the fires burning in Montana today were all lightning sparked. But for me, these fires serve as a vivid reminder and warning of what could occur as a result of long delays in permit approvals and inconsistent application of policies by federal land managers,” said Hayden, who said the ability of utilities to develop relationships with federal officials is hampered by frequent turnover at Forest Service district offices.

Examples Cited

Hayden cited a New Mexico cooperative that received a $38.2 million bill from the Forest Service — almost twice the co-op’s $20 million in liability insurance — for the costs of fighting a 152,000-acre fire caused when a tree fell onto a power line.

The Benton Rural Electric Association in Prosser, Wash., applied to renew its ROW permit in August 2015, four months before it was due to expire. “After waiting 15 months, Forest Service officials have now proposed nothing short of a full blown environmental assessment for which costs could exceed $100,000 for facilities that have been in place for more than 70 years,” Hayden said.

In 2009, when the Missoula co-op felled trees killed and weakened by an insect infestation, the Forest Service required it to remove the timber “using an expensive, labor-intensive method to minimize impact to ‘flora and fauna’ from mechanical equipment,” Hayden said. “Ironically, the Forest Service conducted a timber sale on the same tract later in the year using the exact mechanical forestry techniques that we were prohibited from employing. In essence, we were held to a higher standard than they held themselves.”

When the co-op requested permission to bury about 6 miles of overhead lines on Forest Service land, approval took 18 months — granted just days before Hayden was to testify before Congress regarding the delay.

BLM Committed to Streamlining Process

John Ruhs, acting deputy director of operations for BLM, said his agency supports both bills and “is committed to improving and streamlining its permitting processes.”

The agency, which administers almost 16,000 authorizations for electricity transmission and distribution facilities, allows utilities to conduct “minor trimming, pruning and weed management” after notifying the agency, Ruhs explained. Trees that present an imminent hazard can be removed without BLM pre-approval. “For actions that fall outside the scope of the ROW grant and do not present an imminent threat, BLM approval is needed, and additional analysis may be required.”

Ruhs said the legislation “would expand the BLM’s toolbox to help reduce the threat of catastrophic wildfires like those we are currently experiencing.”

Glenn Casamassa, associate deputy chief of the Department of Agriculture’s National Forest System, said his agency supports most of the language of both bills. But Casamassa said some provisions duplicate existing requirements in Forest Service policies.

“USDA is aware of the frustrations some utilities experience as a result of delayed responses for maintenance approvals and inconsistency across agency field offices and has been actively taking steps to address these concerns under existing authorities,” he said. The Forest Service has 2,700 authorizations for 18,000 linear miles of power lines.

Climate Change Impact

Scott Miller, senior director for The Wilderness Society’s Southwest region, said utility vegetation management (UVM) practices have improved substantially since 2005. “At the same time, the importance of strong UVM practices continues to grow as climate change is causing longer wildfire seasons, larger and more severe wildfires, longer growing seasons, changing plant species distributions, increased insect and disease activity, and more intense, more frequent and longer-lasting drought, wetness and weather events,” he said.

Miller said the society, which claims more than 1 million members, opposes H.R. 1873 because it “fails to appropriately recognize the federal land management agencies’ obligations or the public’s interest in federal land management and because it fails to provide for the necessary cooperation that will improve effective and sustainable UVM on federal lands.”

The Senate bill, in contrast, provides “a thoughtful framework for legislation to advance UVM on public lands” and “corrects the many flaws” of the House bill.

“H.R. 1873 would prevent utilities and land managers from including activities in vegetation management plans that would require anything beyond annual notice, description and certification by the utility for its planned activities. It also would give utilities (including those without approved plans) blanket approval to conduct vegetation management activities to meet clearance requirements, leaving the agencies with no authority but to allow such activities, and leaving the utilities with little incentive to cooperate or even prepare a vegetation management plan.”

Granting a blanket exemption for vegetation management from NEPA “would undermine sound stewardship of our public lands,” he continued. “We note that both the Forest Service and BLM have already established a number of categorical exclusions that apply to many routine UVM activities, and those authorities are routinely utilized by the agencies in the context of UVM.”

The Senate bill, in contrast, would encourage cooperation between utilities and federal land managers, he said.

The group said the House bill’s provisions on liability are “overbroad and unclear.”

“Nothing in the bill states that the release of liability is limited to situations where the secretaries’ decisions are an actual and proximate cause of the damages, potentially leaving the agencies (and ultimately, taxpayers) to cover the damages caused by the utilities’ negligence (or even gross negligence).”