Forest Service issues final rule around vegetation management in transmission rights-of-way

The U.S. Forest Service on July 10 published a final rule related to vegetation management on National Forest System (NFS) lands within rights-of-ways for electric transmission and distribution facilities. 

The Forest Service was required to amend its existing vegetation management regulations by a section of the Consolidated Appropriations Act of 2018. 

The law created a new section for the development and approval of plans and agreements for vegetation management on NFS lands within rights-of-ways for electric transmission and distribution facilities. 

The proposed rule was issued on September 25, 2019 and included procedures for developing operating plans/agreements for vegetation management, facility inspection, and operations, as well as maintenance activities on Forest Service lands within and along powerline rights-of-way. 

The intent of the proposed rule was to ensure transmission and distribution owners/operators receive more timely access to facilities to enhance system reliability and mitigate wildfire risks. 

The American Public Power Association and the National Rural Electric Cooperative Association filed joint comments that supported much of the direction provided in the proposed rule. 

The Forest Service, in issuing the final rule, stated it will provide consistent direction to Forest Service staff when coordinating with utility companies for routine removal of dead and dying trees that pose a fire risk to powerline structures.

The agency noted it is also reducing the time it takes to review and approve plans to manage vegetation around lines and facilities on national forests and grasslands as well as on abutting lands within rights-of-way for electric transmission and distribution lines. 

The new rule includes additions and revisions to the definition of terms such as hazard tree; routine, non-routine, and emergency maintenance; and operating plan or agreement. 

It amends and clarifies the terms and conditions for operating plans and agreements for powerline facility maintenance and vegetation management on NFS lands. It also addresses procedures developed jointly with the Bureau of Land Management (BLM) to approve operating plans or agreements within 120 days. 

In addition, the rule provides more clarity  by preventing strict liability from being “imposed on an owner or operator of a powerline facility for injury or damages resulting the authorized officer's unreasonably withholding or delaying approval of an operating plan or agreement or unreasonably failing to adhere to an applicable schedule in an approved operating plan or agreement.”

The Forest Service noted that these conditions on strict liability in tort do not apply to any other type of special use besides powerline facilities. 

APPA and other electric utility trade associations had asked for inclusion of this language in the final rule.

The rule takes effect on August 10, 2020 and can be viewed here