November 25, 2019
Daniel
James Jiron
Acting
Deputy Under Secretary, Natural Resources and Environment
USDA
Forest Service
201 14th Street SW, Mailstop 1124
Washington,
DC 20250-1125
Re:
Docket Number FS-2019-0019; Procedures for Operating Plans and Agreements for
Vegetation Management Within and Along Powerline Rights-of-Way
Dear
Mr. Jiron:
Pursuant to the Federal Register notice
published at 84 FR 50698, the western electric utility organizations[1]
respectfully provide joint comments on the U.S. Forest Service’s proposed rule
to update its vegetation management regulations in section 512 of the Federal
Land Policy and Management Act of 1976 (the Act).
We are trade associations and joint action
agencies representing over 155 electric utilities in the Western United States
and Canada. In the United States, our
members include electric utilities in Alaska, California, Idaho, Montana,
Nevada, Utah, Wyoming, Oregon, and Washington.
In order to provide retail electric
service to their communities, our utility members operate electric facilities
on or near U.S. Forest Service lands. In all cases, these utilities are
responsible for ensuring that rights-of-way (ROW) are clear of vegetation that
could potentially encounter electric transmission and distribution lines for
the safe and reliable operation of electric systems. Challenges arise
when approval of special use authorizations to implement integrated vegetation
management on or near ROW are delayed, when application of standards for
approving such work are inconsistently applied, or when requests to cut hazard
trees that are in danger of falling onto ROW are held up or denied. In addition to the serious impacts for human
safety when wildfires occur, utilities are routinely held liable for fire
suppression costs and damages resulting from vegetation encountering electric
lines.
We appreciate the U.S. Forest Service’s
efforts to propose vegetation management regulations per the deadline set by
Congress in the Act. As you are aware,
wildfires in western states pose a significant risk to the reliability of our
members’ electric systems and to the safety of their employees and the
communities they serve. In fact, liability for catastrophic wildfires
represents the largest financial risk for many of our electric utility members.
As a result, we were outspoken advocates of congressional efforts to improve
the federal process for approving special use authorizations for management of hazardous
trees and vegetation on or near ROW, and the limitation on liability for fire
suppression costs contained in the Act.
Our members have highly anticipated these proposed regulations and
believe, if implemented as intended by Congress, these rules will play a
significant role in protecting electric systems and our nation’s forests and
grasslands from wildfires.
With that in mind, it is imperative that
the U.S. Forest Service implement its new authority in the following manner.
1. Regulations
and Guidelines must closely align with the primary intent of the underlying law.
House Report 115-165 filed by the House Natural Resources Committee contains
clear objectives for this vegetation management law. The report states
that the legislation “seeks to reduce such wildfires, in part, by promoting
federal consistency, accountability, and timely
decision-making as it relates to protecting electricity transmission and
distribution lines on some federal lands from hazard trees.” Therefore,
in implementing this law, it is imperative that the U.S. Forest Service
establish procedures with robust timelines and milestones that promote
efficiency, accountability, and consistency in approving special use
authorizations to manage vegetation on ROW, facilitate coordination between
federal land managers and ROW owner/operators, and promote responsible
management of USFS lands that are immediately adjacent to ROWs to enable
operators to address hazard trees and fuel loads on federal lands that are a
threat to infrastructure within and adjacent to the ROW.
2. Prioritize establishment of joint
guidelines with the Bureau of Land Management as mandated under the Act. In section 512(b) of the Act, Congress
mandated “the Secretary[s] . . . shall issue and periodically update guidance
to ensure that provisions are appropriately developed and implemented for
utility vegetation management, facility inspections, and operation and
maintenance of rights-of-way . . .”
These guidelines must eliminate or minimize the need for case-by-case
approvals for routine operations and for utility vegetation management
activities that are necessary to control hazard trees. Delays in development of these guidelines
will delay development and approvals of vegetation management plans, threatening
the safe operation of electric systems and the prevention of wildfires.
3. Establish a culture at the U.S.
Forest Service that prioritizes review of utility vegetation management plans
and collaboration with ROW operators. Often, our members find various
inconsistencies working with federal agency personnel, as outcomes vary based
on individual federal employees’ decisions and timelines. For example, a
single utility that provides service in an area overseen by two separate
district offices may receive differing guidance and cooperation in approving
special use authorizations for utility management of vegetation on or near the
utility’s ROW. In other instances, decision making is delayed while in
other locations, decisions are made in a more reasonable and timely manner.
Establishing a culture within the U.S. Forest Service that prioritizes review
of vegetation management plans and collaboration with ROW operators will aid in
the timely review and approval of those plans and the safe operation of
electric systems.
4. Implement tools provided by Congress
including use of categorial exclusions to NEPA and a training program for
agency staff. We also urge full
implementation of the tools Congress provided to the U.S. Forest Service in the
Act including use of categorical exclusions for routine and regular work on or
near ROW, and development of a training program for agency staff involved in vegetation
management decisions.
The U.S. Congress provided the U.S. Forest
Service with discretion to identify categories of actions for exclusion from
the National Environmental Policy Act (NEPA) in section 512(c)(5) of the
Act. We support implementation of the
agency’s discretion to categorically exclude actions in development of
vegetation management plans and in implementation of those plans from
NEPA. Actions such as routine vegetation
management, hazard tree removal, and operations and maintenance of electrical
equipment on ROW should fall within the agency’s discretion to categorically
exclude from NEPA.
Training agency staff is another tool
encouraged by the U.S. Congress in section 512(i) of the Act. Delays in approval of special use authorizations
for vegetation management on or near ROW often occur due to frequent agency
staff turnover. Frequent turnover
results in loss of experience and expertise on the issue. Use of this important
training tool in consultation with electric utilities and sharing of utility
employees with federal agencies to help educate agency staff on reliability
standards and requirements in maintaining and operating distribution and
transmission lines in ROW can help meet the goals of the Act for a more
efficient, consistent and timely approval of integrated utility vegetation
management plans.
Finally, the Act, if implemented as
intended, will authorize two important provisions: efficient removal of
trees identified as hazards (Section 512(c)); and, limitations on liability for
ROW owners/operators (Section 512(g)).
A key provision of the Act was a process by which ROW owners/operators
can identify hazard trees – trees that are dead or likely to fail and cause
substantial damage or disruption of electrical systems and take action to
remove that tree while notifying the U.S. Forest Service. This provision is vital to quick and decisive
action to protect electric systems, prevent wildfires and ensure public safety. The Act also provides reasonable liability
limits for damages that may result from activities conducted in accordance with
the operation and maintenance plans established and submitted pursuant to this
Act. Utilities, and ultimately their customers, bear the cost of
maintaining ROWs as well as the cost of liability for damages. Limiting
strict liability for utilities is a key to success as it empowers ROW
owners/operators to remove hazardous trees and quickly address other urgent
threats to power lines in order to avert potential crises.
Our members are environmental stewards who
support responsible forest management because they are led by people who live
in the communities served. Many are in areas that have seen devastating
wildfires in recent years and are actively engaged in ROW management to reduce
this threat. We support the various elements of this rulemaking that will
provide more uniform guidelines for operating and maintaining utility ROWs on
federal land, that will establish a process to enable our members to address
emergency hazards quickly and effectively, and that will fully implement the
limitations on strict liability established in the Act.
We look forward to working with the U.S.
Forest Service towards a more efficient and consistent vegetation management
program that ensures the safe and reliable operation of the electric utility
system and prevents wildfires on our nation’s lands.
Sincerely,
Scott Corwin
Executive Director
Northwest Public Power Association
on behalf of NWPPA and
Utah
Associated Municipal Power Systems
Northern
California Power Agency
Washington
Rural Electric Cooperative Association
Oregon
Rural Electric Cooperative Association
Oregon
Municipal Electric Utilities Association
Wyoming
Rural Electric Association
Montana
Electric Cooperatives’ Association
Golden
State Power Cooperative
Nevada
Rural Electric Association
Alaska
Power Association
Idaho
Consumer-Owned Utilities Association
Oregon
People’s Utility District Association
California
Municipal Utilities Association
Washington
Public Utility Districts Association
x
[1]
Northwest Public Power Association, Utah Associated Municipal Power Systems,
Northern California Power Agency, Washington Rural Electric Cooperative
Association, Oregon Rural Electric Cooperative Association, Oregon Municipal
Electric Utilities Association, Wyoming Rural Electric Association, Montana
Electric Cooperative Association, Golden State Power Cooperative, Nevada Rural
Electric Association, Alaska Power Association, Idaho Consumer-Owned Utilities
Association, California Municipal Utility Association, Oregon People’s Utility
District Association, Washington Public Utility District Association.
