US Forest Service Amends Rule for Powerline Maintenance and Vegetation Management

Electric utilities provide vital energy services to customers. Efficient and environmentally safe powerline maintenance and vegetation management is critical to providing safe and reliable delivery of electricity. Implementing a coordinated and cooperative approach between utilities and agencies before, during, and after powerline maintenance and vegetation management increases maintenance efficiencies.

The US Forest Service has recently published a final rule for developing operating plans that guide powerline maintenance and vegetation management and improve coordination between utilities and National Forests. The intent of the rule is to streamline approvals for utility work on National Forest System (NFS) lands, saving time and money. Logan Simpson can help utilities take advantage of the new streamlined procedures by preparing operating plans, negotiating timelines and work types, and providing NEPA, cultural, and biological resource services.

Rule Content

On July 10, 2020, the US Forest Service published its final rule amending procedures for operating plans for powerline maintenance and vegetation management within and abutting rights-of-way (ROWs) on NFS lands. This rule came into effect on August 10, 2020. The rule was amended in 36 CFR Section 251 Subpart B (https://www.federalregister.gov/documents/2020/07/10/2020-13999/land-uses-special-uses-procedures-for-operating-plans-and-agreements-for-powerline-facility). Two sections of this rule were amended, including Section 251.51 Definitions (https://www.law.cornell.edu/cfr/text/36/251.51), and 251.56 Terms and Conditions (https://www.law.cornell.edu/cfr/text/36/251.56).

The Forest Service amended this rule in response to Section 512 of the Federal Land Policy and Management Act (FLPMA) Consolidated Appropriations Act of 2018 (see 132 STAT. 1068 – 1073 in https://www.congress.gov/115/plaws/publ141/PLAW-115publ141.pdf).

Previous statutory and regulatory requirements addressed operating plans (43 U.S.C. 1761(b)(1); 36 CFR 251.56(a)(1)), but electric utilities experienced delays in obtaining authorization to conduct powerline maintenance and vegetation management under the operating plans. Delays resulted from various issues such as inconsistent application of existing rules and regulations, and the Forest Service requiring review and approval each time work along a powerline was proposed by utilities. The intent of this new Forest Service rule is to streamline approvals for routine and emergency powerline maintenance and vegetation management on NFS lands and minimize case-by-case approvals.

Definitions

The Forest Service rule establishes definitions for multiple industry terms, including defining line maintenance (categorized as emergency maintenance, non-routine maintenance, and routine maintenance), and vegetation management (categorized as emergency vegetation management and non-emergency [routine] vegetation management). It also defines hazard vegetation, minimum vegetation clearance distance (consistent with the federal regulatory standard FAC-003-4), maximum operating sag, and powerline facility.

Some notable considerations regarding these definitions include:

  • The emergency vegetation management definition covers hazard trees that present an imminent danger, but hazard trees that do not present an imminent danger are categorized under routine vegetation management.  
  • The hazard tree definition applies to all types of vegetation that could present a danger, not just trees (e.g. vines); it references the vegetation management regulatory standard FAC-003-4; and it identifies that the owner or operator of the powerline may define what vegetation they designate as a hazard.

Terms and Conditions

The Forest Service rule defines the terms and conditions for preparing, reviewing, approving, and implementing operating plans and agreements. Under these terms and conditions, the rule identifies that existing operating plans and agreements do not require further approval if they are consistent with the final rule. The rule provides an outline of what should go into an operating plan or agreement, timelines for their approval, and describes which types of maintenance and vegetation management activities may proceed without additional written approval after an operating plan or agreement is approved. However, the Forest Service rule does provide that an approved operating plan would require review and approval every five years, and that some activities, such as construction of roads and trails and non-routine maintenance, would require additional prior written approval even when an approved operating plan is already in place.

The Forest Service rule provides examples of activities that may require additional written approval but indicates that the operating plan or agreement would define the specific activities requiring written approval. This aspect of the Forest Service rule could result in inconsistent application among various National Forests or Districts but does provide a means to define work activities that may proceed without additional approval, reducing delays on certain types of work.

The Forest Service rule indicates that timeframes would be established in the operating plan for notifying the Forest Service of upcoming routine maintenance and vegetation management work, and for the agency to respond to these work requests. The rule does not identify specific timeframes for each category of work, however, but it does give utilities a path to negotiate timeframes with the Forest Service in the operating plan or agreement and to hold the Forest Service accountable to the agreed-upon timeframes. This aspect of the rule should aide in reducing the delays that many utilities have experienced when proposing work activities along powerline facilities.

The Forest Service rule provides some limited guidance on National Environmental Policy Act (NEPA); Endangered Species Act (ESA); and National Historic Preservation Act (NHPA) compliance and use of categorical exclusions under NEPA, but does not provide any specifics. Rather, the rule identifies that directives will be proposed in the future, including how NEPA, ESA, and NHPA compliance will be handled. The directives will also provide guidance on which activities may require additional approval, on development of programmatic agreements, and development of Master Operating Plans. Master Operating Plans would cover multiple power lines and facilities in a single document.

Summary

The Forest Service rule provides utilities with a streamlined approach to approving maintenance and vegetation management activities and minimize case-by-case approvals. Utilities may use this rule to negotiate appropriate approval timelines, identify work activities that would not require additional review and approval, and streamline compliance efforts. The rule also provides for immediate response to emergency situations and provides clarity by preventing strict liability from being imposed on an owner or operator under some circumstances. While future directives should provide additional guidance and direction, the Forest Service rule provides a foundation to streamline utility maintenance and vegetation management work approvals on NFS lands.

Logan Simpson can Help!

Logan Simpson can help utilities that cross NFS lands take advantage of the new rule’s streamlined procedures.

We can:

  • Prepare operating plans and agreements. We have staff with the knowledge and expertise to negotiate terms in a plan or agreement that will ensure utilities can conduct maintenance and vegetation management in a timely manner. We can identify routine work types that should not require additional written approval. We are also able to negotiate with federal agencies to define notification procedures for conducting routine and emergency work.
  • Prepare master operating plans that combine multiple powerlines into a single plan. This provides utilities with consistency across regions. We can also prepare operating plans or agreements for a single powerline. We understand that each type of plan has its benefit.
  • Prepare NEPA to support permit renewals, permit applications, and operating plans.
  • Complete NHPA and ESA compliance and conduct biological and cultural surveys. We can do this for a single powerline corridor or provide system wide survey, consultations, and programmatic agreements. Programmatic level compliance for NEPA, ESA, and NHPA can provide long-term coverage and consistency.
  • Work with agencies and utilities to define timelines and terms that minimize case by case approvals and ensure consistent requirements for different utility corridors and different National Forest or Districts.
  • Prepare NEPA compliance and operating plans to cover multiple utilities under a single effort to minimize costs to smaller utilities.

Contact Lisa Young at [email protected] or 480-594-3465 for more information on how we can help!