43 U.S.C. § 1772 (PUBLIC LANDS)
§ 1772. Vegetation managment, facility inspection, and operation and maintenance relating to electric transmission and distribution facility rights of way
(a) Definitions
In this section:
(1) Hazard tree
The term “hazard tree” means any tree or part thereof (whether located inside or outside a right-of-way) that has been designated, prior to tree failure, by a certified or licensed arborist or forester under the supervision of the Secretary concerned or the owner or operator of a transmission or distribution facility to be—
(A) dead, likely to die within the routine vegetation management cycle, or likely to fail within the routine vegetation management cycle; and
(B) if the tree or part of the tree failed, likely to—
(i) cause substantial damage or disruption to a transmission or distribution facility; or
(ii) come within 10 feet of an electric power line.
(2) Owner; operator
The terms “owner” and “operator” include contractors or other agents engaged by the owner or operator of an electric transmission or distribution facility.
(3) Plan
The term “plan” means a vegetation management, facility inspection, and operation and maintenance plan that—
(A) is prepared by the owner or operator of 1 or more electric transmission or distribution facilities to cover 1 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 abutting Federal land, including hazard trees, to enhance electric reliability, promote public safety, and avoid fire hazards.
(4) Secretary concerned
The term “Secretary concerned” means—
(A) the Secretary, with respect to public lands; and
(B) the Secretary of Agriculture, with respect to National Forest System land.
(b) Guidance
(1) In general
To enhance the reliability of the electric grid and reduce the threat of wildfire damage to, and wildfire caused by vegetation-related conditions within, electric transmission and distribution rights-of-way and abutting Federal land, including hazard trees, the Secretary concerned shall issue and periodically update guidance to ensure that provisions are appropriately developed and implemented for utility vegetation management, facility inspection, and operation and maintenance of rights-of-way, regardless of the means by which the rights-of-way are established (including by grant, special use authorization, and easement).
(2) Limitation
The guidance issued under paragraph (1) shall be compatible with mandatory reliability standards established by the Electric Reliability Organization.
(3) Considerations
The guidance issued under paragraph (1) shall take into account—
(A) 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); and
(B) the Memorandum of Understanding on Vegetation Management for Powerline Rights-of-Way between the Edison Electric Institute, Utility Arborist Association, the Department of the Interior, the Department of Agriculture, and the Environmental Protection Agency signed in 2016.
(4) Requirements
The guidance issued under paragraph (1) shall—
(A) be developed in consultation with the owners of transmission and distribution facilities that hold rights-of-way;
(B) seek to minimize the need for case-by-case approvals for—
(i) routine vegetation management, facility inspection, and operation and maintenance activities; and
(ii) utility vegetation management activities that are necessary to control hazard trees; and
(C) provide for prompt and timely review of requests to conduct vegetation management activities that require approval of the Secretary concerned, especially activities requiring 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 shall provide owners and operators of electric transmission or distribution facilities located on public lands and National Forest System land, as applicable, with the option to develop and submit a plan.
(2) ERO standards
Owners and operators subject to mandatory reliability standards established by the Electric Reliability Organization (or superseding standards) may use those standards as part of the plan.
(3) Plan requirements
A plan developed under paragraph (1) shall—
(A) identify the applicable transmission or distribution facilities to be maintained;
(B) take into account operations 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 applicable owner or operator to notify the Secretary concerned about routine and major maintenance;
(ii) the applicable 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 by an owner or operator under clause (ii); and
(E) describe processes for—
(i) identifying changes in conditions; and
(ii) modifying the approved plan, if necessary.
(4) Review and approval process
(A) In general
The Secretary concerned shall jointly develop a consolidated and coordinated process for the review and approval of plans submitted under paragraph (1) that—
(i) includes timelines and benchmarks for—
(I) the submission of agency comments on the plans and schedules for final decision; and
(II) the timely review of modifications of the plans in cases in which modifications are necessary;
(ii) is consistent with applicable law; and 1
(iii) includes a process for modifications to a plan in a prompt manner if changed conditions necessitate a modification to a plan; and
(iv) ensures, to the maximum extent practicable, a prompt review and approval process not to exceed 120 days.
(B) Plan modification
Upon reasonable advance notice to an owner or operator of an electric transmission or distribution facility of any changed conditions that warrant a modification to a plan, the Secretary concerned shall—
(i) provide an opportunity for the owner or operator to submit a proposed plan modification, consistent with the process described under subparagraph (A)(iii), to address the changed condition identified by the Secretary concerned;
(ii) consider the proposed plan modification consistent with the process described under paragraph (4)(A); and
(iii) allow the owner or operator to continue to implement any element of the approved plan that does not directly and adversely affect the condition precipitating the need for modification.
(5) Categories of actions not requiring environmental analysis
With respect to the development and approval of plans submitted under paragraph (1), as well as with respect to actions carried out under such plans, the Secretary concerned shall identify categories of actions for which neither an environmental impact statement nor an environmental assessment shall be 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 less than or equal to 1,000,000 megawatt hours of electric energy for purposes other than resale during each of the 3 calendar years immediately preceding March 23, 2018, may enter into an agreement with the Secretary concerned in lieu of a plan under subsection (c).
(2) Minimum requirements
The Secretary concerned shall ensure that the minimum requirements for an agreement under paragraph (1)—
(A) reflect the relative financial resources of the applicable owner or operator compared to other owners or operators of an electric transmission or distribution facility;
(B) include schedules as described in subsection (c)(3)(D);
(C) are subject to modification requirements as described in subsection (c)(4)(B); and
(D) 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 adjacent to an electric transmission or distribution right-of-way, the owner or operator of the electric transmission or distribution lines—
(1) may prune or remove the vegetation or hazard tree—
(A) to avoid the disruption of electric service; and
(B) to eliminate immediate fire and safety hazards; and
(2) shall notify the appropriate local agent of the Secretary concerned not later than 1 day after the date of the response to emergency conditions.
(f) Activities that require approval
(1) In general
Except as provided under paragraph (3), the owner or operator of an electric transmission or distribution facility may conduct vegetation management activities that require approval of the Secretary concerned in accordance with a plan approved under subsection (c) or an agreement entered into under subsection (d) only with the approval of the Secretary concerned.
(2) Requirement to respond
The Secretary concerned shall respond to a request for approval to conduct vegetation management activities in accordance with 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 of an electric transmission or distribution facility may conduct vegetation management activities that require approval of the Secretary concerned in accordance with a plan approved under subsection (c) or an agreement entered into under subsection (d) without the approval of the Secretary concerned if—
(A) the owner or operator submitted a request to the Secretary concerned in accordance with the applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d);
(B) the vegetation management activities, including the removal of hazard trees, proposed in the request under subparagraph (A) are in accordance with a plan approved under subsection (c) or an agreement entered into under subsection (d); and
(C) the Secretary concerned fails to respond to the request under subparagraph (A) in accordance with the applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d).
(g) Liability
(1) In general
The Secretary concerned shall not impose strict liability for damages or injury resulting from—
(A) the Secretary concerned unreasonably withholding or delaying—
(i) approval of a plan under subsection (c); or
(ii) entrance into an agreement under subsection (d); or
(B) the Secretary concerned unreasonably failing to adhere to an applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d).
(2) Damages
For the period ending 10 years after March 23, 2018, the Secretary concerned shall not impose strict liability in an amount greater 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) shall be construed to effect 1 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 shall report requests and actions made under subsection (f) annually on the website of the Secretary concerned.
(2) Liability
Not later than four years after March 23, 2018, the Secretary concerned shall 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 that describes 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 personnel of the Department of the Interior and the Forest Service involved in vegetation management decisions relating to electric transmission and distribution facilities to ensure that the personnel—
(1) understand electric system reliability requirements as the requirements 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 of electric transmission and distribution facilities to incorporate on a voluntary basis vegetation management practices to enhance habitats and forage for pollinators and for other wildlife if the practices are compatible with the integrated vegetation management practices necessary 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) to more efficiently identify vegetation management needs;
(B) to reduce the risk of wildfires; and
(C) to lower ratepayer energy costs.
(j) Implementation
The Secretary concerned shall—
(1) not later than 1 year after March 23, 2018, propose regulations, or amend existing regulations, to implement this section; and
(2) not 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 under this section if a plan consistent with this section has already been approved by the Secretary concerned before March 23, 2018.
(Pub. L. 94–579, title V, § 512, as added Pub. L. 115–141, div. O, title II, § 211(a), Mar. 23, 2018, 132 Stat. 1068.)