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Trade groups win yearslong push to ease power line maintenance in federal areas

Scoring a big victory for the power industry, a newly enacted spending bill from Congress will ease U.S. electric utilities' ability to manage trees and other vegetation around power lines on public lands.

Among other things, the bill contained a provision allowing utilities to immediately remove trees and other vegetation around transmission lines along federal rights of way if the vegetation is at risk of causing electric service disruptions or is a fire or safety hazard. The language was included in a fiscal-year 2018 omnibus package that President Donald Trump signed into law March 23.

The vegetation management provisions "recognize the need for timely decision-making, while respecting the role of federal agencies to manage lands and preserve sensitive habitat," the American Public Power Association, Edison Electric Institute, National Rural Electric Cooperative Association and the Northwest Public Power Association said in a joint letter supporting the proposals.

The omnibus legislation directed the secretaries of the U.S. Department of Interior and other agencies overseeing federal lands to issue guidance ensuring appropriate utility vegetation management, facility inspection, and asset operation and maintenance within federal rights of way. The guidance must be compatible with mandatory reliability standards established by the North American Electric Reliability Corp. and seek to minimize the need for case-by-case approvals of routine vegetation management and other utility operations on public lands.

The bill also allows transmission and distribution asset owners to submit a plan for managing vegetation and conducting other operations in those rights of way. Federal agencies would aim to complete their review of the plan within 120 days and must identify categories of actions that do not require either an environmental impact statement or environmental assessment under federal law.

In general, any work carried out under the plan first must receive approval from the relevant federal agency head, unless the secretary fails to respond to the request within the time frame included in the plan.

Transmission and distribution line owners that have sold less than or equal to 1 million megawatt-hours of electricity for purposes other than resale in each of the prior three calendar years or that are not subject to mandatory reliability standards can opt out of forming a management plan. Those facility owners instead can enter into an agreement with the relevant federal agency that reflects "the relative financial resources" of those entities compared with other transmission and distribution facility owners.

One crucial piece of the bill will allow owners and operators of transmission and distribution lines to immediately prune or remove trees and other vegetation if that vegetation has contacted, or presents an "imminent danger" of contacting, power lines within or adjacent to federal rights of way. However, the asset owners will have to notify a local agent of the applicable federal agency within one day of responding to the emergency conditions.

Another key piece of the bill will prevent the concerned secretary from imposing strict liability for damages or injury resulting from the secretary "unreasonably withholding or delaying" approval of a management plan or agreement or failing to adhere to work schedules contained in the plan or agreement. The legislation also will cap liability at $500,000 per incident for damages or injury resulting from activities carried out under maintenance agreements with the smaller asset owners and operators. The liability cap will remain in place for 10 years following enactment of the bill.

Relevant agency secretaries must finalize new regulations or amend existing ones to comply with these provisions within two years.

Inclusion of the vegetation management provisions in the omnibus was a big win for electric utility groups, which have pushed for years to enact such reforms. The U.S. House of Representatives passed a broad energy bill in late 2015 that included vegetation management language, but the bill stalled out in a bicameral conference committee in 2016.

The House passed standalone legislation in 2017 to ease utility work to control trees near assets on federal rights of way, and the U.S. Senate Energy and Natural Resources Committee held a hearing in September 2017 to consider possible companion legislation.