[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
H.R. 2358, ``ELECTRICITY RELIABILITY AND FOREST PROTECTION ACT''
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON WATER, POWER AND OCEANS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, May 20, 2015
__________
Serial No. 114-9
__________
Printed for the use of the Committee on Natural Resources
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Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
94-774 PDF WASHINGTON : 2015
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Jeff Denham, CA Debbie Dingell, MI
Paul Cook, CA Ruben Gallego, AZ
Bruce Westerman, AR Lois Capps, CA
Garret Graves, LA Jared Polis, CO
Dan Newhouse, WA Vacancy
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Vacancy
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Parker, Democratic Deputy Chief Counsel
------
SUBCOMMITTEE ON WATER, POWER AND OCEANS
JOHN FLEMING, LA, Chairman
JARED HUFFMAN, CA, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Robert J. Wittman, VA Jim Costa, CA
Tom McClintock, CA Ruben Gallego, AZ
Cynthia M. Lummis, WY Madeleine Z. Bordallo, GU
Jeff Duncan, SC Gregorio Kilili Camacho Sablan,
Paul A. Gosar, AZ CNMI
Doug LaMalfa, CA Raul Ruiz, CA
Jeff Denham, CA Alan S. Lowenthal, CA
Garret Graves, LA Norma J. Torres, CA
Dan Newhouse, WA Debbie Dingell, MI
Thomas MacArthur, NJ Raul M. Grijalva, AZ, ex officio
Rob Bishop, UT, ex officio
------
CONTENTS
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Page
Hearing held on Wednesday, May 20, 2015.......................... 1
Statement of Members:
Fleming, Hon. John, a Representative in Congress from the
State of Louisiana......................................... 1
Prepared statement of.................................... 2
Gosar, Hon. Paul A., a Representative in Congress from the
State of Arizona........................................... 9
Prepared statement of.................................... 10
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 6
Prepared statement of.................................... 8
Zinke, Hon. Ryan K., a Representative in Congress from the
State of Montana........................................... 2
Prepared statement of.................................... 3
Statement of Witnesses:
Benevento, Doug, Director of Public Policy Development, Xcel
Energy, Denver, Colorado................................... 14
Prepared statement of.................................... 16
Hayden, Mark, General Manager, Missoula Electric Cooperative,
Missoula, Montana.......................................... 27
Prepared statement of.................................... 29
Markham, Dave, President/CEO, Central Electric Cooperative,
Redmond, Oregon............................................ 11
Prepared statement of.................................... 13
Mouritsen, Karen E., Deputy Assistant Director, Energy,
Minerals and Realty Management, Bureau of Land Management,
U.S. Department of the Interior, Washington, DC............ 22
Prepared statement of.................................... 23
Smith, Gregory, Director, Lands and Realty Management, Forest
Service, U.S. Department of Agriculture, Washington, DC.... 18
Prepared statement of.................................... 20
Additional Materials Submitted for the Record:
American Public Power Association, Arlington, Virginia, Susan
N. Kelly, President & CEO, May 19, 2015, Letter in support
of H.R. 2358............................................... 4
Edison Electric Institute, Washington, DC, Thomas R. Kuhn,
President, May 19, 2015, Letter in support of H.R. 2358.... 5
National Rural Electric Cooperative Association, Arlington,
Virginia, Jo Ann Emerson, CEO, May 20, 2015, Letter in
support of H.R. 2358....................................... 4
LEGISLATIVE HEARING ON H.R. 2358, TO AMEND THE FEDERAL LAND POLICY AND
MANAGEMENT ACT OF 1976 TO ENHANCE THE RELIABILITY OF THE ELECTRICITY
GRID AND REDUCE THE THREAT OF WILDFIRES TO AND FROM ELECTRIC
TRANSMISSION AND DISTRIBUTION FACILITIES ON FEDERAL LANDS BY
FACILITATING VEGETATION MANAGEMENT ON SUCH LANDS, ``ELECTRICITY
RELIABILITY AND FOREST PROTECTION ACT''
----------
Wednesday, May 20, 2015
U.S. House of Representatives
Subcommittee on Water, Power and Oceans
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to call, at 2:17 p.m., in
room 1324, Rayburn House Office Building, Hon. John Fleming
[Chairman of the Subcommittee] presiding.
Present: Representatives Fleming, McClintock, Lummis,
Gosar, LaMalfa, Newhouse, MacArthur, Huffman and Torres.
Also Present: Representative Zinke.
STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Dr. Fleming. The Subcommittee on Water, Power and Oceans
will come to order.
The Water, Power and Oceans Subcommittee meets today to
hear testimony on a discussion draft entitled, the
``Electricity Reliability and Forest Protection Act.''
Before we begin, I ask unanimous consent to allow the
sponsor of the bill, Congressman Zinke from Montana, to
participate in our hearing today. Hearing no objection, so
ordered.
We will begin 5-minute opening statements by myself and the
Ranking Member, Congressman Huffman of California. And I yield
myself 2 minutes for my part of the opening statement.
Our hearing today is on bipartisan, common-sense
legislation offered by Mr. Zinke of Montana and Mr. Schrader of
Oregon that promotes Federal agency consistency and timely
decisionmaking. The Electricity Reliability and Forest
Protection Act is simply about helping two Federal agencies
collaborate with electric utilities in order to avoid blackouts
and forest fires on Federal lands. While the bill's sponsors
are from the West, this bill is national in scope since the
U.S. Forest Service has 155 national forests throughout our
country.
In my home state of Louisiana, for example, the Kisatchie
National Forest includes over 15,000 acres of electricity
right-of-ways maintained by seven utilities. And as we learned
from the 1996 and 2003 tree-caused blackouts, electricity
outages have far greater geographic impacts than an instigating
tree.
As a result, I am going to go ahead and yield the remainder
of my time to Mr. Zinke.
[The prepared statement of Dr. Fleming follows:]
Prepared Statement of the Hon. John Fleming, Chairman, Subcommittee on
Water, Power and Oceans
Our hearing today is on bipartisan, common-sense legislation
offered by Mr. Zinke of Montana and Mr. Schrader of Oregon that
promotes Federal agency consistency and timely decisionmaking.
The ``Electricity Reliability and Forest Protection Act'' is simply
about helping two Federal agencies collaborate with electric utilities
in order to avoid blackouts and forest fires on Federal lands.
While the bill's sponsors are from the West, this bill is national
in scope since the U.S. Forest Service has 155 national forests
throughout our country. In my home state of Louisiana, for example, the
Kisatchie National Forest includes over 1,500 acres of electricity
rights-of-way maintained by seven utilities. And as we learned from the
1996 and 2003 tree-caused blackouts, electricity outages have far
greater geographic impacts than an instigating tree.
The Energy Policy Act of 2005 gave Federal land agencies the
authority to allow electric utilities managing vegetation on a right-
of-way to comply with Federal reliability standards. Yet, since then,
this committee has held two hearings--in 2006 and 2014--where witnesses
criticized both Republican and Democrat administrations, respectively,
for not allowing vegetative management policies to be carried out on a
consistent and timely basis.
Electric transmission lines represent a critical part of our
national infrastructure, and while there have been instances of
cooperation between Federal land agencies and utilities, the inability
of the agencies to be consistent is compromising electricity
reliability and affordability and our forest health. This is an
avoidable problem and this bill will help promote common sense and
Federal accountability. I look forward to moving this bill and now
yield the rest of my time to the bill sponsor and our committee
colleague, Mr. Zinke.
______
STATEMENT OF THE HON. RYAN K. ZINKE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MONTANA
Mr. Zinke. Thank you, Chairman Fleming, and thank you for
the opportunity to speak about House Resolution 2358, the
Electricity Reliability and Forest Protection Act. This bill is
a win/win for Montana, for the co-ops, for the collaborative
effort, and it is bipartisan. In Montana, our co-ops service
about 40 percent of the state. And it corrects, as was pointed
out, a Federal inconsistency and indecision that governs the
way our local power companies can provide and cannot service
their lines.
Currently, if a tree falls down on a power line that is on
Federal land, even though it is through a prescribed easement,
the crews have to go through a regulatory labyrinth that in
some cases can take months, if not years. Multiple testimony
throughout the last few months has identified that the West,
and the rest of the country, has an enormous problem with
forest fires; and it is a public-safety issue. Already in
Montana, we have had about 38,000 acres burned, which has cost
about $1.8 million and has put in jeopardy homes and public
safety.
Chairman Fleming, as you noted, this bill doesn't just help
out those of us in the West. It is an issue of forest safety
and national safety and security for our entire country. A lot
of the power lines go through Federal land and we need to
reduce the bureaucracy. And certainly, we should not hold our
co-ops hostage over what has been a Washington problem in
negligence and gridlock. I think this is a meaningful bill.
Mr. Chairman, I would also like to introduce Mark Hayden
from the Missoula Electric Cooperative. Before I yield back my
time, I would just like to point out that Mr. Hayden was the
general manager at Missoula Electric Cooperative, which
provides electric service to nearly 15,000 meters in western
Montana and eastern Idaho. He is an expert in this field and,
Mark, I appreciate you being here. It is a long way from
Montana both culturally and distance, and I hope you find your
stay worthy.
And last, Mr. Chairman, I would like to enter for the
record letters of support from the NRECA, the APPA, and the
EEA, as delivered. Mr. Chairman, I yield back my time.
Dr. Fleming. Hearing no objection, so ordered.
[The prepared statement of Mr. Zinke follows:]
Prepared Statement of the Hon. Ryan K. Zinke, a Representative in
Congress from the State of Montana
Thank you, Chairman Fleming, and thank you for the opportunity to
speak about H.R. 2358, the Electricity Reliability and Forest
Protection Act.
This bill is a win for Montana and our co-ops, who service 40
percent of the state. It corrects Federal inconsistency and indecision
that governs the way our local power providers can, and cannot, service
their lines on federally owned land. Currently, if a tree falls on a
power line that is on Federal land, utility crews must go through
regulatory back flips just to remove the tree. This can take months and
in some cases more than a year, as Mr. Mark Hayden from Missoula notes
in his testimony. It should not take an Act of Congress to remove a
tree. Conditions in our forests are already dangerous. Inaction means
disaster.
Already this wildfire season, Montana has seen over 38,000 acres
burned, costing more than $1.8 million. Montanans deserve reliable
electric service to keep their lights on and an accountable and
consistent Federal Government that will reduce power-line caused fires.
As Chairman Fleming noted, this bill doesn't just help those of us
out West. It's an issue of forest safety and national security for our
entire country when a hazardous tree falls onto power lines. When the
U.S. Forest Service or Bureau of Land Management doesn't let them
address the problem, our entire power grid is jeopardized. We should be
doing whatever we can to empower our co-ops, not blame them for
government negligence. H.R. 2358 helps to meaningfully address these
issues.
Before I yield back my time, I'd like to briefly welcome a fellow
Montanan, Mark Hayden, who is here to testify this afternoon.
Mr. Hayden is the General Manager at the Missoula Electric
Cooperative (MEC), which provides electric service to nearly 15,000
members in western Montana and eastern Idaho. Prior to joining the MEC,
he was the Assistant General Manager of Dunn Energy Cooperative in
Menomonie, Wisconsin, and the General Manager for its propane
subsidiary DEC Energy, Inc.
Mark, I appreciate you being here today. You, along with other
members of the Montana Electric Cooperatives Association, know best why
this bill is an important step forward for our state and country.
[Letters submitted by Mr. Zinke follow:]
National Rural Electric Cooperative Association,
Arlington, VA,
May 20, 2015.
Hon. Rob Bishop, Chairman,
House Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.
Dear Chairman Bishop:
I write in support of H.R. 2358, the Electricity Reliability and
Forest Protection Act of 2015, introduced by Representatives Ryan Zinke
and Kurt Schrader. This common-sense legislation provides opportunities
for electric cooperatives to better enhance safety and ensure the
delivery of affordable, reliable electricity to their members.
As you know, the National Rural Electric Cooperative Association is
the national service organization that represents the nation's more
than 900 private, not-for-profit, consumer-owned electric cooperatives,
which provide service to 42 million people in 47 states. Rural electric
cooperatives across the country are often located in areas on or near
public lands. Therefore, moving electricity from generation facilities
to customers frequently requires transmission lines to cross land that
is federally managed. Access to these lines is essential to perform
routine maintenance, upgrades, and equipment replacement. Further,
vegetation management is of utmost importance to meet state and federal
safety requirements and to ensure electric reliability for our member-
owners.
The Electricity Reliability and Forest Protection Act would give
electric utilities more consistent procedures and a streamlined process
in order to better manage utility rights of way. The bill allows
sensible procedures that would cut through federal bureaucratic red
tape and reduce delays that currently impede our ability to adequately
manage dangerous vegetative overgrowth in existing utility rights of
way. Such delays not only add to the costs our electric consumers pay
for their electricity, but present a major threat to human safety,
wildlife habitat, and the reliable delivery of electricity.
In short, the Zinke-Schrader bill would be a useful tool for
allowing prompt, critical access to utility rights of way and
responding to emergency conditions to help prevent wildfire, power
outages, and threats to the electric grid. We urge the committee to
swiftly move forward on this important legislation.
Sincerely,
Jo Ann Emerson,
Chief Executive Officer.
______
American Public Power Association (APPA),
Arlington, VA,
May 19, 2015.
Hon. Rob Bishop, Chairman,
House Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.
Dear Chairman Bishop:
On behalf of the American Public Power Association (APPA), I am
writing in support of H.R. 2358, the Electricity Reliability and Forest
Protection Act introduced by Congressmen Ryan Zinke (R-MT) and Kurt
Schrader (D-OR). H.R. 2358 would amend the Federal Land Policy and
Management Act of 1976 to enhance the reliability of the electricity
grid and reduce the threat of wildfires to and from electric
transmission and distribution facilities on federal lands by
facilitating vegetation management on such lands. This legislation is
extremely important to ensuring transmission- and, in some cases,
distribution-system reliability and security. As the trade association
representing over 2,000 not-for-profit, community owned electric
utilities in 49 states, whose purpose is to provide affordable,
reliable electricity with the appropriate environmental stewardship,
this legislation is particularly welcome to us.
As noted in the Department of Energy's Quadrennial Energy Review
(QER), investigations following the August 14, 2003, Northeast blackout
revealed that a primary cause of the blackout was flashover caused by
inadequate vegetation management (tree pruning and removal). The
Federal Energy Regulatory Commission (FERC) found that vegetation
management approvals on federally managed rights-of-way are
particularly problematic due to permitting and environmental
requirements that are inconsistent and time-consuming. In the case of
federal lands, the inability of utilities to remove vegetation beyond
their easement presents a major obstacle in protecting the electrical
infrastructure. Not only must long-reaching tree branches be pruned to
avoid contacts with transmission lines, but brush and other ground
vegetation must be periodically cleared from the base of transmission
towers to minimize the effects of fires.
H.R. 2358 will provide the consistency and flexibility needed by
APPA's members to treat danger trees and facilitate access to and
clearance of these transmission lines and associated facilities, while
also protecting our members from liability when the appropriate federal
government agencies fail to allow our members the ability to manage the
vegetation in and around the electricity rights-of-way. Additionally,
the legislation will seek to develop a program to train the appropriate
federal employees in vegetation management practices and procedures to
prevent the problems laid out by FERC.
We understand that you, along with Reps. Zinke and Schrader are
committed to seeing this legislation reach President Obama's desk to be
signed into law. Thank you for your efforts and we look forward to
continuing our work together on this legislation as you move through
the legislative process.
Sincerely,
Susan N. Kelly,
President & CEO.
______
Edison Electric Institute,
Washington, DC,
May 19, 2015.
Hon. Rob Bishop, Chairman,
Hon. Raul Grijalva, Ranking Member,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. John Fleming, Chairman,
Hon. Jared Huffman, Ranking Member,
House Subcommittee on Water, Power and Oceans,
Washington, DC 20515.
Dear Chairmen Bishop and Fleming and Ranking Members Grijalva and
Huffman:
On behalf of the Edison Electric Institute (EEI), I am writing in
support of H.R. 2358, the Electricity Reliability and Forest Protection
Act, introduced by Representatives Zinke and Schrader. We applaud you
for proceeding quickly to a legislative hearing and your intent to
advance H.R. 2358 to the floor this year.
EEI is the association of U.S. investor-owned electric utilities,
international affiliates and industry associates worldwide. Our members
provide electricity for 220 million Americans, directly and indirectly
employ more than one million American workers, and operate in all 50
states and the District of Columbia. With more than $90 billion in
annual capital expenditures, the electric utility industry is
responsible for providing reliable, affordable, and increasingly clean
electricity that powers the economy and enhances the lives of all
Americans.
Managing and clearing vegetation within or near rights-of-way
(ROWs) presents difficult challenges, especially where such ROWs are
located on federal land. While integrated vegetation management (IVM)
and utility vegetation management (UVM) requirements impact ``less than
a fraction of a percent'' of overall federal lands, the consequences of
not effectively managing the ROWs and power line corridors can be
significant and catastrophic. Failure to manage vegetation can cause
wildfires, spark outages, and jeopardize the transmission facilities
themselves. As a consequence, electric utilities are required under
North American Electric Reliability Corporation (NERC) reliability
standard FAC-003-3 to prevent vegetation from growing into and falling
onto transmission lines, and there are state and local safety and fire
requirements as well.
Even so, obtaining timely approvals from the federal land
management agencies to perform IVM and conduct the operation and
maintenance work necessary to meet reliability standards, assure a
proper functioning of the grid, and reduce the potential risk of
catastrophic fire is a constant challenge. This not only includes
management within the ROW, but extends to ``hazard trees'' growing
outside the permitted ROW. In most cases, a federal permit for
vegetation management does not cover off-ROW trees, even if such trees
pose a risk to the power lines, human life or other property. In spite
of this, utilities are often held liable for fire suppression costs and
damages when the off-ROW hazard trees cause a wildfire. In recent
years, utilities have literally paid out millions of dollars to cover
these costs.
We believe that H.R. 2358 will provide an avenue for electric
utilities to obtain more timely approvals while respecting the needs of
the federal land agencies to appropriately manage their respective
lands. The bill provides direction to the Secretaries of Agriculture
and the Interior to expedite permit reviews; move, where possible, away
from case-by-case approvals; and support the long-term, cost-effective,
and timely management of facilities and vegetation within and adjacent
to the ROW. IVM is an important tool for the sustainable management of
vegetation and the provision of quality habitat for pollinators and
wildlife.
We appreciate that H.R. 2358 recognizes the inequities of imposing
strict liability on utilities for the consequences of decisions made
elsewhere. We would like to work with the Committee to address
liability issues associated with off-ROW work that is the
responsibility of the land agencies, but which prevent utilities from
partnering with the land agencies to complete that work to their mutual
benefit.
EEI believes that H.R. 2358 can work to the benefit of the federal
land agencies and electric utilities to assure the timely completion of
work critical to maintaining a reliable grid and catastrophic wildfire
risk reduction, and in manner that is efficient for all parties.
Sincerely,
Thomas R. Kuhn,
President.
______
Dr. Fleming. The Chair now recognizes Mr. Huffman for 5
minutes for an opening statement.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Mr. Chairman. Thanks for the
witnesses joining us today, and thanks for calling this
hearing. Forest health and reliable power transmission are two
areas where I think there is substantial room for bipartisan
agreement and I appreciate very much all of us devoting some
time to this important issue. Now for the most part, I think
trees and power lines have been good neighbors, you might say.
Electric utilities and rural cooperatives have been installing
and maintaining thousands of miles of power distribution lines
for decades through National Forest lands, BLM lands, but as we
have seen over the years, sometimes trees and brush can cause
serious hazards when they come into contact with power lines.
We, obviously, need to prevent that to the greatest degree that
we can.
It has been mentioned that there are some tremendous
blackouts that have occurred because of this. Back in the 1990s
on a hot August day, a power line came into contact with a high
power load line--came into contact with a tree because an
orchard tree had grown too high. The result of that was
millions of people throughout Canada and 10 western states
without power; 7 million people to be precise. In 2003, we had
a similar blackout in the Northeast that affected 50 million
people without power, cost billions of dollars in lost
productivity and in both cases, again, investigators found that
it was a tree coming into contact with high-voltage lines.
And these problems aren't even counting forest fires that
often result from these kinds of contacts, and the extreme
damage and public safety problems that that presents. So it is
in everyone's interest to prevent that kind of harm that can
happen from inadequate vegetation management along these
utility corridors.
The question is, what can we do to address the problem to
improve vegetation management on these rights-of-way? And I
think the first thing we need to be clear about is addressing
the inadequate funding for Federal land management agencies
that is absolutely a part of this problem. We keep talking a
lot about the symptoms of this situation. We had a hearing
earlier today that talked about the problem of the deferred
maintenance backlog on BLM and Forest Service lands, again,
caused by underfunding these agencies. Today we are talking
about some risks and liabilities and problems that are also
manifestations of this chronic underfunding, and fire borrowing
is really the poster child of this problem.
This is the practice of transferring funds away from
resource management accounts to fight wildfire. This is the
root cause of the problem of our Federal agencies being unable
to do the many additional things we are asking of them. In
Fiscal Year 2015 wildfire funding was 52 percent of the Forest
Service's budget. Just back in 1990 that amount was only 13
percent of the Agency's budget.
So the trend is completely unsustainable. When you are
spending more than half of your budget on wildfire management,
you are obviously squeezing out other critical programs and
needs. It has left the Forest Service's field offices without
adequate resources and manpower to carry out all kinds of
management activities, but that certainly includes processing
right-of-way-related requests with neighbors and partners such
as the utilities that we are going to hear from today.
That is why I, and several of my colleagues, support
legislation to allow responses to large forest fires to be
funded like other national disasters. This is a bipartisan
solution that we are putting forward. Doing this would free up
resources to help us address this problem.
Now, the second part of this is that I think moving from a
case-by-case special use permitting situation to a more
systemic planning approach could absolutely improve
coordination and consistency. So that could be a good thing.
But this draft legislation, we believe, is not quite ready for
prime time. One of the problems is that some of its provisions
could have unintended consequences that could damage natural
resources on public lands and not improve consistency in
coordination.
For example, a provision allows utilities the option to
develop and submit plans to Federal agencies, but it doesn't
require that. So you could have the challenging situation of
some utilities having plans, others not having plans, and that
is not the kind of coordination and consistency that we need.
The draft also includes a provision that would dramatically
redefine danger tree to the point that it would potentially
include a large swath of land and trees outside of a narrow
right-of-way, and I think we need to be very careful with
unintended consequences for that provision, among others. There
is a provision that transfers liability for wildfire damage,
loss, or injury from utilities to the taxpayer. We are going to
need to look very closely at that.
But the bottom line, Mr. Chairman, is I think we have lots
of room to work together on this important issue. I hope we can
address that fire borrowing issue where there is so much
bipartisan support. And I look forward to the hearing today.
[The prepared statement of Mr. Huffman follows:]
Prepared Statement of the Hon. Jared Huffman, Ranking Member,
Subcommittee on Water, Power and Oceans
Mr. Chairman, thank you for calling this hearing today. Forest
health and reliable power transmission are two areas where there is
substantial room for bipartisan agreement, and I appreciate you
devoting time to this important issue.
For the most part, trees and power lines have been good neighbors.
Electric utilities and rural cooperatives have been installing and
maintaining thousands of miles of power distribution lines for decades
through National Forest and BLM lands. But, as we have seen over the
years, sometimes trees and brush can cause serious hazards when they
come into contact with power lines.
Back in the mid-1990s during a very hot August day, a power line
with a high power load sagged into an orchard tree that grew too high.
The line blew, causing an outage that extended to Canada and 10 western
states. Seven million people and businesses lost power. In 2003, a
similar blackout in the Northeast left 50 million people without power
and cost billions of dollars in lost productivity. In both cases,
investigators found that the outages were caused by trees coming into
contact with high-voltage lines. Trees making contact with power lines
have also sparked numerous forest fires, causing the destruction of
thousands of acres and endangering many lives.
Clearly it is in everyone's interest to prevent the harm that can
be caused by inadequate vegetation management along our utility
corridors. Everybody loses when there is a power failure or forest
fire. When forest fires are sparked or when the power is out, people's
lives are endangered and we lose control of the technology that makes
our society function. So, what can we do to improve vegetation
management on rights-of-way?
First, I think it's clear we must do something to address the
inadequate funding for Federal land management agencies. `Fire
borrowing', the practice of transferring funds away from resource
management accounts to fight wildfires, is the root cause of this
funding deficiency. In Fiscal Year 2015, wildfire funding was 52
percent of the Forest Service's budget. In the 1990s, wildfire funding
accounted for approximately 13 percent of the agency's budget. It is
clear this trend is unsustainable. Spending more than half of the
Forest Service's budget on wildfire management squeezes out funds
needed for other critical Forest Service programs and has left field
offices without adequate resources and manpower to carry out many
management activities, including processing right-of-way-related
requests.
That is why I and several of my colleagues support legislation to
allow responses to large forest fires to be funded like other national
disasters. Doing this would free up resources and help expedite
approval of right-of-way maintenance, while also ensuring that national
forestry funding can be used to fulfill its original purpose--ensuring
our Nation practices good stewardship of our national forests for the
health and benefit of all Americans.
Second, I think moving from case-by-case special use permitting to
a more systematic process that considers rights-of-way across all U.S.
public lands and requires upfront planning could do a great deal to
improve coordination and consistency in vegetation management and other
right-of-way maintenance. However, the draft legislation we are
discussing today takes a different approach, and some of its provisions
could have unintended consequences that could damage natural resources
on U.S. public lands and not improve coordination and consistency.
For instance, the discussion draft gives utilities the option to
develop and submit plans to U.S. public land management agencies for
right-of-way maintenance activities, but does not require the plans,
creating a situation in which inconsistencies are likely to persist.
Further, land managers would not be able to modify a requirement in the
bill that these plans meet local and state electricity reliability and
fire safety standards--effectively giving control over rights-of-way on
U.S. public lands to the states and localities.
The discussion draft also contains a provision that allows
utilities to remove ``danger trees''--trees that could damage
infrastructure or cause fires if they fall. The bill defines a danger
tree as any tree inside or outside the right-of-way that would come
within 10 feet of a power line or related infrastructure if it fell.
This is a significant expansion of current authority, which defines a
danger tree as one that is in imminent danger of falling onto a line.
This new authority would technically allow for the removal of wide
swaths of forest on either side of a right-of-way, regardless of
potential environmental damage.
The bill also transfers liability for wildfire damage, loss, or
injury--including the costs of fire suppression--from the utilities to
the U.S. Government. This would further stress agency resources and
make the right-of-way management process even less efficient.
Mr. Chairman, it is important that U.S. public land managers work
with utilities to ensure that each right-of-way is cleared of debris
and there is sufficient clearance space for falling trees. I also
believe there are things we can do to improve coordination and expedite
approval of right-of-way maintenance. I hope this hearing can help
elucidate where Federal agencies, utilities, and co-ops are succeeding
and where improvement is needed. There are common-sense solutions to
many of these challenges and I look forward to working with you, Mr.
Chairman, and the rest of the committee on solutions that improve
public safety, transmission reliability, and the health of our forests.
Thank you, I yield back.
______
Dr. Fleming. Great. I thank the Ranking Member.
The Chair now recognizes Dr. Gosar, Vice Chair of the
Subcommittee, for 5 minutes.
STATEMENT OF THE HON. PAUL A. GOSAR, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Dr. Gosar. Thank you, Mr. Chairman. My home state of
Arizona is on the frontline of the issues being discussed
today. The hearing on the bill before us couldn't be better
timed. I thank the committee--my committee's colleagues Mr.
Zinke and Mr. Schrader for their leadership on this bill.
The Arizona Public Service Company testified before this
committee last year on the very need for the legislation being
considered today. The company which serves 11 of Arizona's 15
counties, has power lines crossing 5 national forests, 4 Bureau
of Land Management districts, 4 wildlife refuges, 11 National
Park Service units, and 3 national monuments administered by
the BLM.
It is abundantly clear they are at the forefront of these
issues. The company's witness, Mr. Mike Neal, who manages
forestry and special programs, had the unique opportunity to
testify both during the second Bush administration and the
current administration on the same topic with the same
concerns. Little had changed in between his testimonies,
prompting Mr. Neal to conclude that the legislation was
necessary to, ``ensure that electric utilities are able to
manage power line right-of-ways on Federal land efficiently and
in a timely manner.'' I couldn't agree more.
This is common-sense legislation designed to bring
consistency, accountability, and fairness to a system that is
none of the above. Last year's testimony and this hearing's
witness examples are replete with examples that resemble
something out of a top 10 David Letterman's list of government
red tape, endless delays, and inconsistencies. As opposed to
being funny, though, this is a serious matter. This is as real
as it gets.
On one hand, we had Federal reliability standards that can
lead a utility to be fined up to $1 million a day. But on the
other hand, we have Federal land agencies that are
circumventing utilities for meeting those standards. In the
meantime, the risks of catastrophic fires increases from such
government inaction. A witness from Wyoming said last year that
it was simply luck that beetle-killed trees didn't fall on
power lines during years of bureaucratic delay.
As we have noticed in Arizona, our forests are not so lucky
when it comes to catastrophic fires. To make matters worse, the
Federal land agencies are constantly putting rate pairs at risk
by having them be liable for hazardous and dangerous trees
outside of the right-of-way that threaten power lines in the
forests around them.
As APS Mike Neal had said, ``In recent years utilities have
literally paid out millions of dollars to cover fire
suppression and damage cost. Utilities believe the Federal
agencies as the official land managers have the responsibility
and obligation to manage these outside of right-of-way
hazardous trees. This is no different than protecting the
public from hazardous trees in camp grounds.''
The legislation before us protects rate pairs from such
Federal schemes by allowing them to immediately prune a tree in
imminent danger, or falling on a line, and by changing the
liability standard that the Federal Government blocks them from
pruning dangerous trees. This is a simple, straightforward bill
aimed at improving the way the Federal Government operates. It
is what everybody wants, but it changes the failed status quo
by allowing utilities to do their jobs and make Federal
neighbors and landlords more accountable.
It is good for human safety, for rate payers, for
protecting forest and wildlife, and for protecting power lines
that deliver renewable energy to the market. I commend the
gentlemen from Montana and Oregon, and the witnesses who face
this issue on the frontline every day for being there. I yield
back the balance of my time.
[The prepared statement of Dr. Gosar follows:]
Prepared Statement of the Hon. Paul A. Gosar, Vice-Chairman, Water,
Power and Oceans Subcommittee
Thank you, Mr. Chairman.
My home state of Arizona is on the front line of the issues being
discussed today. The hearing and the bill before us couldn't be better-
timed. I thank our committee colleague, Mr. Zinke, and Mr. Schrader for
their leadership on this bill.
The Arizona Public Service Company testified before this committee
last year on the very need for the legislation being considered today.
The company, which serves 11 of Arizona's 15 counties, has power lines
crossing 5 national forests, 4 Bureau of Land Management districts, 4
wildlife refuges, 11 National Parks Service units and 3 national
monuments administered by the BLM. It's abundantly clear they are at
the forefront of these issues.
The company's witness, Mr. Mike Neal, who manages forestry and
special programs, had the unique opportunity to testify both during the
second Bush administration and the current administration on the same
topic with the same concerns. Little had changed in between his
testimonies, prompting Mr. Neal to conclude that legislation was
necessary to ``ensure that electric utilities are able to manage power
lines right-of-ways on Federal land efficiently and in a timely
manner.'' I couldn't agree more.
This is common-sense legislation designed to bring consistency,
accountability and fairness to a system that is none of the above. Last
year's testimony and this hearing's witness examples are replete with
examples that resemble something out of a Top 10 David Letterman list
of government red-tape and endless delays and inconsistencies.
As opposed to being funny, though, this is a serious matter that is
as real as it gets. On one hand, we have Federal reliability standards
that can lead a utility to be fined up to $1 million a day, but on the
other hand, we have Federal land agencies that are circumventing
utilities from meeting those standards. In the meantime, the risk of
catastrophic fires increases from such government inaction. A witness
from Wyoming said last year that it was simply luck that beetle-killed
trees didn't fall on power lines during years of bureaucratic delay. As
we have noticed in Arizona, the forests are not so lucky from
catastrophic fires.
To make matters worse, the Federal land agencies are constantly
putting ratepayers at risk by having them be liable for hazardous and
dangerous trees outside of the right-of-way that threaten power lines
and the forests around them. As APS's Mike Neal said, ``In recent
years, utilities have literally paid out millions of dollars to cover
fire suppression and damage costs. The utilities believe that the
Federal agencies, as the official land managers, have the
responsibility and obligation to manage these outside the right-of-way
hazard trees. This is no different than protecting the public from
hazardous trees in a campground.'' The legislation before us protects
ratepayers from such Federal schemes by allowing them to immediately
prune a tree in imminent danger of falling on a line and by changing
the liability standard if the Federal Government blocks them from
pruning dangerous trees.
This is a simple, straightforward bill aimed at improving the way
the Federal Government operates. It's not everything everyone wants,
but it changes the failed status quo by allowing utilities to do their
jobs and to make Federal neighbors and landlords more accountable. It's
good for human safety, good for ratepayers, good for protecting forests
and wildlife and good for protecting power lines that deliver renewable
energy to the market.
I commend the gentlemen from Montana and Oregon and the witnesses
who face this issue on the front-lines every day for being here today.
______
Dr. Fleming. The gentleman yields back.
Thank you for our opening statements. And now we will hear
from our panel. Each witness' written testimony will appear in
full in the hearing record, so I ask that witnesses keep their
oral statements to 5 minutes as outlined in the invitation
letter to you under Committee Rule 4(a). If for some reason you
haven't gotten your full testimony out, we will accept it for
the record. So there is no need to try to jam the rest of it in
if you are not quite done with it.
I also want to explain how our timing lights work. Very
simply, you are under a 5-minute light. It will be green for 4
minutes, then yellow for the final minute. If it turns red,
then we want you, if you haven't already, to quickly conclude
your remarks.
Before we begin the testimony, I want to ask for unanimous
consent that Congressman Greg Walden's statement on this bill
and his introduction of our first witness be entered into the
record. Hearing no objection, so ordered.
Now, I recognize Mr. Dave Markham, President and CEO of the
Central Electric Cooperative, Inc., in Redmond, Oregon to
testify. Sir, you have 5 minutes.
STATEMENT OF DAVE MARKHAM, PRESIDENT/CEO, CENTRAL ELECTRIC
COOPERATIVE, REDMOND, OREGON
Mr. Markham. Good afternoon, Chairman Fleming and members
of the subcommittee. As introduced, I am Dave Markham. I am the
President and CEO of Central Electric Cooperative, and we are
headquartered in Redmond, Oregon. In Central Electric we are a
distribution cooperative and we serve 32,500 meters, and that
is over a 5,300-square mile service territory in central
Oregon. And I also serve as the President of the Oregon Rural
Electric Cooperative Association.
I appreciate the opportunity to testify today in support of
the Electricity Reliability and Forest Protection Act and I
commend Congressman Zinke and one of my state's Congressmen,
Kurt Schrader, for their leadership with introducing this bill.
It was just 1 year ago when I was here and testified before
the full House Committee on Natural Resources. At that time
when I testified, I went into the problems that our electric
cooperatives are encountering when working with the BLM and the
Forest Service when it comes to things such as doing routine
maintenance of our facilities, upgrading, or replacing our
aging infrastructure that crosses federally managed lands.
And I shared several stories about the frustrating delays
that we experienced, the lack of consistency, and also the lack
of customer service I think that we experience when dealing
with BLM and the Forest Service. I sit here today wishing that
I could report to you that there has been significant
improvement over the past year, but unfortunately that is not
going to be the case.
It is with a lot of reluctance that I say that as far as
the BLM and the Forest Service are concerned, we continue to
see significant falling short of what I believe are acceptable
cooperatives to ensure safe, reliable, and affordable
electricity to our members. And I want to explain why this
legislation is so important to fulfilling our mission of
providing safe, reliable, and affordable electricity to rural
Oregonians.
The first reason is consistency. We have experienced
differing interpretations and applications of standards, and
this isn't just between the Forest Service and the BLM. This is
within the same districts, the same land agencies, and also
even from ranger to ranger we experience it. This legislation
is going to provide that much needed uniformity and standards.
I believe it will improve consistency and give us some
efficiency.
The second reason is accountability. This one is important
to me. I will tell you, we could stay here all day and I could
tell you stories about the lengthy delays that we experienced
with the Forest Service and the BLM. But I am just going to
give you one story because I am limited to 5 minutes.
Now my co-op, we have been waiting for nearly 2 years now
to replace a short 1.2 mile section of underground cable that
has been in place for 45 years. It is in deteriorating
condition. Now, waiting 2 years on top of that, we have also
been experiencing additional delays because we were recently
informed that we would have to have an archeological study done
on this and that could end up costing our co-op an extra
$87,000. If you take a look at it comparatively, our utility,
we can construct a similar-type project on non-federally
managed lands, we can do that within a month.
So I truly believe that this kind of service is
unacceptable, and I believe that our government can and must do
better.
The third reason that I believe the legislation is so
important is the need for sound forest management. Now, I want
to acknowledge the provisions in this legislation regarding the
removal of danger trees that are within or near the right-of-
ways. And years ago, our neighboring utility to the south,
Midstate Electric Cooperative headquartered in La Pine, Oregon,
they requested approval from the Forest Service to remove some
danger trees near a right-of-way and that request was denied.
I can probably let you finish the story right here and you
will probably guess what happened, right; and, predictably what
happened was, the tree came down, it took down a line and it
started a major wildfire. And because the co-op was held
liable, they ended up having to reimburse firefighting costs
that were in the hundreds of thousands of dollars. In this
legislation, the provision that shifts the liability away from
the utility if the Federal land agencies deny permission to
manage the vegetation, this provision is needed and is long
overdue.
The safety, reliability, and affordability--you have heard
me say it three times now in less than 5 minutes. It is a
pretty important topic and I have been back here in Washington,
DC enough to hear how important that is when you are talking
about the electric grid. While I would love to see this
legislation go much further than the language in this bill, I
understand how the system works and I understand it takes time.
H.R. 2358 is significant progress in the right direction. I am
excited about what we could have here and I really urge the
subcommittee to support this. I want to thank you for the
opportunity to testify today and I would be pleased to answer
any questions.
[The prepared statement of Mr. Markham follows:]
Prepared Statement of Dave Markham, President/CEO of Central Electric
Cooperative, Inc. and President of Oregon Rural Electric Cooperative
Association
Good afternoon Chairman Fleming and members of the subcommittee. I
am Dave Markham, President and CEO of Central Electric Cooperative,
headquartered in Redmond, Oregon. Central Electric is a distribution
cooperative serving more than 32,500 meters across a 5,300 square mile
service territory in central Oregon. I also serve as the President of
the Oregon Rural Electric Cooperative Association, the organization
that represents Oregon's 18 member-owned not-for-profit electric
cooperatives.
I appreciate the opportunity to testify in support of the
Electricity Reliability and Forest Protection Act (H.R. 2358). I
commend Congressman Zinke and one of my state's Congressmen, Kurt
Schrader, for their leadership introducing this bill. One year ago, I
testified before the full House Committee on Natural Resources on the
issues Oregon electric cooperatives have experienced when attempting to
secure approval for routine maintenance, upgrades or replacement of our
power lines with the United States Forest Service (USFS) and the Bureau
of Land Management (BLM). I outlined several stories about frustrating
delays, wildly varying standards and a lack of a customer service ethic
among our Federal land management agencies. I am here again today to
report while incremental progress has been made, it continues to fall
significantly short of what I believe is acceptable to ensure the
safety, reliability and affordability of electricity we provide to our
members.
With 56 percent of the land in Central Electric's service territory
federally managed, it is vitally important the USFS and BLM work
cooperatively with us as we fulfill our mission providing safe,
reliable and affordable electricity to rural Oregonians. Oftentimes, we
believe this mission is threatened due to the actions of these
agencies. We have found huge variations and approaches not only between
the USFS and the BLM, but within the land management agency districts,
and even ranger to ranger. We continue to experience a complete lack of
uniform standards. This legislation will bring much needed consistency
and accountability.
I want to provide a few examples of the issues we face when working
with the USFS and BLM. More than 38 percent of Central Electric's
distribution lines are underground. Some of these underground lines are
reaching the end of their life expectancy and are in the process of
being replaced. We have been waiting for nearly 2 years to receive USFS
approval to replace a short 1.3 mile section of deteriorating
underground line that has been in place for more than 45 years. Adding
to this lengthy delay, we were recently informed this approval process
will now require an archeological study which could cost the
cooperative an additional $87,000--not an insignificant amount of money
for our member-owners. If these delays continue, our construction
opportunity will again be missed due to weather conditions that prevent
accessibility in this location of our service territory. Comparatively,
our utility can construct a similar project on non-federally managed
land within 1 month. The protracted length of time it requires to
receive approval to complete routine maintenance, upgrades or
replacement of our power lines on federally managed lands is having an
impact on the safety and reliability of the electricity we provide to
our members.
As I noted last year, Central Electric's experience with our land
management agencies is not an isolated incident. Another Oregon
electric cooperative is in a 2-year holding pattern over needed
upgrades to transmission lines that will ensure reliability for 15,000
members. As one electric co-op manager told me, ``there are so many
studies, so many processes, and so many hoops to jump through'' the
agencies seem paralyzed to act.
Nor is this experience isolated only to electric service. Many
electric co-ops are involved in the deployment of broadband to rural
areas. Douglas Electric Cooperative in Roseburg, Oregon, informed me
they were forced to wait 18 months to attach fiber optic cable to six
existing power poles, depriving their members of broadband services. I
believe the provisions in the legislation calling for the establishment
of timelines and benchmarks will go a long way toward expediting these
important projects.
I also want to applaud the provisions in this legislation regarding
the removal of ``danger trees'' within rights-of-way. In central
Oregon, forest fires are a common occurrence due to lightning strikes
and we are often at the mercy of Mother Nature. However, Mother Nature
is not always to blame. Oregon electric co-ops have seen the impact
when we are not allowed to properly maintain the rights-of-way.
Years ago, Midstate Electric Cooperative in La Pine, Oregon,
requested the trimming of selective trees along the rights-of-way on
USFS land for fear the trees were a hazard. This request was denied.
Predictably, a tree fell into a power line, sparking a wildfire.
Because the electric cooperative was held strictly liable, they had to
pay firefighting costs of $326,850. This legislation's provision
shifting the liability away from the utility if the agency denies
permission to manage the vegetation is needed and long overdue.
I am not here to denigrate the land management professionals at the
USFS and the BLM although I am aware in certain instances, there has
been a lack of customer service ethic by the agencies as well as
excessive employee turnover that results in inconsistencies and the
lack of accountability. Not all of this can be legislated, but I am
hopeful the training and guidance language in the bill will help
alleviate some of these issues and ensure agency personnel understand
our priority of safety requirements and electrical system reliability.
I will reiterate my comments from last year's testimony. It is
beyond time our Federal land managers work collaboratively with
electric co-ops to develop common-sense reforms of their current
practices. These operational and cultural problems will not be resolved
overnight and must involve long-term solutions, such as this
legislation. We need a streamlined process that will provide some
consistency and accountability. H.R. 2358 is significant progress in
the right direction and I urge the subcommittee to support it.
Thank you for the opportunity to testify. I would be pleased to
answer any questions.
______
Dr. Fleming. Thank you, Mr. Markham.
I now recognize Mr. Doug Benevento, Director of Public
Policy Development for Xcel Energy in Denver, Colorado.
STATEMENT OF DOUG BENEVENTO, DIRECTOR OF PUBLIC POLICY
DEVELOPMENT, XCEL ENERGY, DENVER COLORADO
Mr. Benevento. Thank you for holding this hearing, Mr.
Chairman, Mr. Ranking Member and providing an opportunity to
comment on the Electrical Liability and Forest Protection Act.
Xcel Energy is a Midwest and Western electric and gas utility
with operations in Minnesota, Colorado, Texas, New Mexico,
Wisconsin, North Dakota, South Dakota, and Michigan. Our
combined operations have just over 3 million customers on the
electric side, and just fewer than 2 million gas customers. We
are also the largest wind provider in the United States and the
10th largest solar provider in the United States.
We have 19,000 miles of transmission, including several
hundred miles of hi-voltage transmission, as well as
distribution on land managed by the Federal Government. And
while Colorado has had multiple fires in recent years, we have
been fortunate in that damage to our infrastructure has been
minimal. However, we believe in being proactive with respect to
protecting our customer's reliability.
That is why we have not only spent millions of dollars to
protect our infrastructure on public lands, but we have also
invested in sophisticated mapping systems that allow us to
specifically identify trees which pose a risk to our
transmission, or buildup of vegetation that could increase the
intensity of a fire.
We believe the principles outlined in the Electricity
Reliability and Forest Protection Act would provide additional,
useful tools, some here today, to support this legislation.
While we understand that this legislation has miles to go
before its ultimate approval, we believe that the principles
outlined in the proposal strike a balance between protecting
our public lands and our need to protect our transmission that
rests upon it. We think this legislation captures appropriately
an approach that is productive. It establishes uniform
procedures and practices for management, but does not
micromanage the Agency.
The legislation does, however, establish standards for when
a utility can act that are appropriate. We support the language
in the legislation which allows for the immediate removal of
vegetation that would pose an imminent threat to transmission.
We also believe the use of integrated vegetation management for
planning is appropriate from both a forest health and utility
infrastructure perspective.
While this legislation addresses management on the right-
of-way and the management adjacent to the right-of-way, we have
also been concerned about management issues off of the right-
of-way. Management of vegetation off of our right-of-way,
particularly in remote areas where our transmission lines are
located, is the responsibility of the Federal Government, but
it is often not being done because of constrained budgets and
the fact that this work is done in remote areas which are not
priority areas for the Forest Service. Because we don't have
responsibilities for these areas, we have not dealt with
vegetation management in off right-of-way areas.
But we are concerned about fuel buildup in these areas
resulting in a risk to our infrastructure in the event of a
fire. Targeted and discrete treatment of these areas near our
infrastructure would significantly reduce the risk to our
facilities. The work that needs to be performed is limited,
often less than a quarter of an acre, and is essentially
clearing out fuel on the ground, or thinning trees to reduce
crowding. It should be the exact work that the Federal land
management agencies would do absent other priorities.
We are willing to help treat these very limited areas to
reduce the fire threat and are willing to do so at our cost and
at the direction of the Forest Service. The issue is that if we
were to perform such voluntary work, we would need greater
clarification as to what standard of liability would apply to
us. Because this is voluntary work, work for which we otherwise
are not responsible, we would need assurance that we would be
held at most to a gross negligence standard in the unlikely
event that a fire broke out during off-right-of-way restoration
work.
In contrast to on-right-of-way work where a strict
liability standard is in place, at least for the first $1
million worth of damages regarding the transmission corridor,
we cannot undertake similar liability responsibilities off the
right-of-ways. We believe this helpful clarification will
encourage utilities to partner with the agencies in both
dollars and workforce to address such off-right-of-way fire
concerns.
While we certainly don't anticipate any problems and
haven't had any in recent memory, we believe that changing the
level of liability appropriately reflects the voluntary nature
of this activity. I am going to be clear. This off-right-of-way
work would be absolutely no commercial value to us. And we are
adamant that any work would have to be discussed, reviewed, and
ultimately approved by the Federal Land Management Agency.
Thank you for your time and I am happy to take any questions.
[The prepared statement of Mr. Benevento follows:]
Prepared Statement of Doug Benevento, on Behalf of Xcel Energy
summary of testimony
Xcel Energy is testifying in support of the principles outlined in
the Electric Reliability and Forest Protection Act and to recommend to
the subcommittee an additional approach that will help to protect our
public lands and utility infrastructure.
Xcel Energy has electric and gas infrastructure in remote areas of
public lands throughout our service territory in Colorado. In a time of
constrained budgets and a focus on the wildland urban interface
(``WUI'') Federal land managers have not been able to fully prioritize
management off the right-of-way (``ROW'') in these more remote areas.
While we understand the focus on the WUI we are concerned that a fire
in a more remote area could result in damage to our infrastructure.
In Colorado there are areas off our ROW and adjacent to electric
transmission structures where we and the Forest Service believe
selective clearing would reduce the risk to our infrastructure in the
event of a passing wildfire.
We have proposed to our Federal partners that we would be willing
to perform off ROW work either on a cost-share basis, or at our own
expense. Performing the work with existing contracted resources would
require an additional Special Use Permit (``SUP''), which would include
unacceptable liability provisions.
The existing liability standard for work on our ROW is strict
liability up to $1 million in damages. After that first $1 million is
reached there is a new standard for any additional damages.
Because this off ROW work is proactive, voluntary and would assist
in the management of public lands, we believe that there should be a
different liability standard for work performed off the ROW if that
work is done at the direction and with the approval of the relevant
Federal land manager.
We respectfully suggest that the subcommittee examine whether a
public-private partnership could be incentivized if the standard of
liability for a private entity performing work off its ROW were gross
negligence instead of strict liability or comparative liability.
introduction
Chairman Fleming, Ranking Member Huffman, members of the
subcommittee, thank you for holding this hearing and providing the
opportunity to comment on the draft legislation.
My name is Doug Benevento and I'm here representing Xcel Energy, a
vertically integrated investor-owned gas and electric utility that
provides service to just under 3\1/2\ million electric customers and
just under 2 million gas customers in eight states: Minnesota,
Colorado, Texas, New Mexico, Wisconsin, North Dakota, South Dakota, and
Wisconsin.
Throughout its service territory, Xcel Energy has nearly 19,000
miles of transmission lines. Included in that number are several
hundred miles of high voltage transmission facilities in Colorado on
land managed by the Federal Government.
In order to ensure reliability for our customers, we are committed
to using the most progressive technology available to reduce the risk
of damage or destruction to our infrastructure from wildfire.
Along with spending millions of dollars to reduce wildfire risk on
public lands in Colorado we have also:
Deployed remote sensing technology including Light
Detection and Ranging (LiDAR) and high resolution imagery
from a helicopter which enables Xcel Energy to surgically
identify hazard trees and areas around transmission
structures that are high risk for wildfire damage due to
fuel load on the ground and forest densities off the ROW
that need to be thinned.
Leveraged the output from remote sensing combined with
geospatial risk analysis which has identified approximately
1,600 transmission structures that we've identified as
``high risk'' for damage should a wildfire pass through
these structure sites. Approximately 450 of these high risk
structures are located on Federal lands. At this time,
there is no plan from the U.S. Forest Service to address
over 100 of these high risk structures.
Xcel Energy is also committed to ensuring electric service
reliability for its customers by working with our Federal partners to
reduce the risk from fires to our infrastructure on public land. To
this end, Xcel Energy and the U.S. Forest Service entered into a
memorandum of understanding, allowing us to pay the USFS to perform
necessary off ROW wildfire protection work adjacent to high and medium
risk transmission structures.
electric reliability and forest protection act
We believe that passage of legislation like the Electric
Reliability and Forest Protection Act could help both us and Federal
land managers (``FLM'') protect utility infrastructure.
In particular, we believe that the legislation appropriately gives
discretion to utilities to respond to emergency conditions. We also
believe that the unified vegetation management plan, facility
inspection plan, and operation and maintenance plan will be useful
planning documents for both utilities and Federal land managers.
If the unified management plan is designed properly, approved in a
timely manner and implemented correctly it would provide guidance to
utilities on how to proceed with work on or adjacent to existing ROW.
Additionally it will provide certainty to the utilities and a useful
management tool for the FLM.
We understand that this legislation is just beginning its journey
through the legislative process. However, as it progresses we hope that
this subcommittee and your colleagues on both sides of Capitol Hill
continue to focus on the issue of balancing the important oversight
role played by the Federal land managers with our equally important job
of ensuring reliability for our customers.
liability for off-row work
Today I want to raise an additional issue not addressed in the bill
that we hope the committee will consider. While this is an important
issue for Xcel Energy, we think it is applicable to other utilities as
they consider the need to perform work off existing ROW.
Our concern pertains to off-ROW vegetation management that is
occasionally necessary to protect transmission lines from wildfire
threats originating outside of the ROW.
Our concern focuses on dense forests adjacent to our transmission
structures that can pose an enormous threat to our facilities
survivability from a passing wildfire.
We are under no obligation to manage vegetation off of our ROW. It
is the responsibility of the Federal land management agency to manage
it to protect our facilities. However, lack of resources and a focus on
the WUI areas by Federal land managers has led to a decline in
management in more remote areas where we have important infrastructure.
We routinely manage our ROW and could easily turn our attention to
these small (\1/4\ acre per structure), but highly critical off-ROW
work areas.
There is no debate on whether this work should and can be done in a
fashion that minimizes impacts to the surrounding environment, wildlife
and the surrounding ecosystem. In fact, it can also help develop
pollinator habitat.
While, Xcel Energy is willing to contribute field crew and
financial resources to these off-ROW management efforts, we are
concerned that if we do so we take on unrestricted liability.
That is a standard we are not willing to expose our company and
ratepayers to in order to perform work that is not our responsibility.
Xcel Energy is hopeful Congress will consider legislation clarifying
that a utility doing off-ROW vegetation management work pursuant to an
agency-approved vegetation plan may do so without the fear of a taking
on strict or comparative liability. In these cases we believe a gross
negligence standard with a potential cap on our overall liability is an
appropriate approach for our voluntary efforts to solve these wildfire
threats. In addition to or as an alternative we believe a cap on
liability could also address our concerns.
We believe what we're proposing can be successful at both improving
the health of public lands and protecting our infrastructure if we can
agree on the following principles:
All work must be timely reviewed and approved by the
relevant FLM before it is undertaken;
There can be no commercial value from the management
activity to the utility; and
The liability standard for performing such work should be
gross negligence and/or capped at a set amount.
We are open to discussing other principles and would certainly
welcome the input of the Departments of Agriculture and Interior on
such a proposal. We want to be clear about our goal, improving the
ability of our infrastructure to survive a wildfire in the remote areas
where it is located. We are not seeking a larger opening in the
management of public land that could lead to larger applications of
this language.
What we are suggesting is not unique. In many parts of the country
under state law, private landowners are encouraged to engage in
prescribed fire activity to reduce hazardous fuel conditions. When
performing this work, if the fire were to spread, actions would be
measured by a gross negligence standard.
In other situations, fire fighters from adjacent districts are
urged to be good neighbors and help suppress fires with the assurance
that they will be held harmless.
Similarly here, utilities cannot risk partnering with the Forest
Service on off-ROW fuel reduction activities without accompanying
protections. We are not asking for a complete waiver of liability but
the standard should be one of gross negligence.
Xcel Energy would welcome a dialog with Committee staff and the
agencies in the coming weeks to see how best this partnership could be
expanded and the necessary protections could be incorporated.
______
Dr. Fleming. Thank you, Mr. Benevento.
The Chair now recognizes Mr. Gregory Smith, Director of
Lands at the U.S. Forest Service in Washington, DC.
STATEMENT OF GREGORY SMITH, DIRECTOR, LANDS AND REALTY
MANAGEMENT, FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE,
WASHINGTON, DC
Mr. Smith. Thank you, Mr. Chairman, and thank you for
giving us the opportunity to present the Department of
Agriculture's views on the discussion draft to enhance electric
reliability by facilitating vegetation among the Federal land
managers.
The Department recognizes the reliability of delivery of
electricity is essential to the Nation's welfare and economy
and that fire service disruptions that result from contact
between vegetation and power lines threaten safety, resources,
and places a burden on rate payers. The Forest Service works
collaboratively with holders of electric transmission and
distribution line authorizations to develop appropriate
vegetation management plans that increase reliability, minimize
the risk of forest fires, and directs compliance with the
applicable forest, Federal, state, and local requirements.
These plans should include procedures that allow for routine
emergency removal of vegetation.
The Agency's 2013 vegetation management guide specifies for
field staff the procedures and practices that should be
included in operation and maintenance for power lines. This
plan states that where vegetation conditions inside or outside
the authorized right-of-way pose an imminent threat to the
power line facilities, utility companies may remove those
threats immediately without prior approval from the Forest
Service.
This guide provides for all other vegetation management
activities to be planned and coordinated with the Agency to
ensure utilities and their contractors are aware of any
existing conditions that could present a threat to them or the
public and to ensure that requisite environmental review, if
there is any, is conducted.
Members of my staff communicate regularly with utilities to
address specific issues and to discuss programmatic effects to
improve Agency responsiveness. At many locations, utility
managers and Forest Service field personnel are successful in
timely management of vegetation in corridors. In other places,
we have had some problems. Response times can take longer than
we would like as program staff managers have approximately
70,000 special use permits and 6,000 new special use permits
each year.
Regarding the discussion draft, the Forest Service is eager
to work with the subcommittee on this legislation. However,
some of the draft provisions we think are unnecessary and are
duplicative of existing law and regulation in the Forest
Service's policy.
In addition, the Agency cannot support some provisions as
currently written.
Number one, unduly restrictive requirements that restrict
the Secretary of Agriculture from enforcing National Forest
System regulations.
Two, impose regulations and reviews that approve deadlines
which would be unreasonable for many staffs to meet under the
current resource constraints and would impose a liability if
these conditions are not met.
Three, eliminate the FLPMA strict liability for electric
transmission and distribution facilities which are a high-risk
use and occupancy of Federal land.
And four, allow utilities without involvement of the Agency
to cut trees on National Forest System lands that do not pose
an imminent threat to the electric transmission or distribution
facilities.
To enhance cooperation and efficiency in maintenance of
electric transmission and distribution line right-of-ways, the
Agency encourages utilities to meet with field personnel,
explain the required actions, and work collaboratively with
others to develop plans for getting the work done. We look
forward to assisting the subcommittee with the legislation and
future discussions on the Agency efforts to improve
reliability.
Mr. Chairman and members of the subcommittee, this
concludes my statement and I would be happy to answer any
questions.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Gregory Smith, Director, Lands and Realty
Management, Forest Service, U.S. Department of Agriculture
Chairman and members of the subcommittee, thank you for the
opportunity to present the U.S. Department of Agriculture's views
regarding the discussion draft to enhance the reliability of the
Nation's electricity grid by facilitating vegetation management on
Federal lands.
the discussion draft
The discussion draft would add a new section 512 to the Federal
Land Policy and Management Act of 1976. Section 512(a) would require
Federal land managers to provide direction to ensure that all existing
and future rights-of-way for electric transmission and distribution
facilities on Federal lands include provisions for utility vegetation
management, facility inspection, and operation and maintenance
activities that:
Are developed in consultation with the holders of the
right-of-way;
Enable the holder to operate and maintain these facilities
in good working order and comply with Federal, state and
local electric system reliability and fire safety
requirements;
Minimize the need for case-by-case or annual approvals for
routine and emergency vegetation management activities; and
When review is required, provide for expedited review and
approval.
Section 512(b)(2)(A)(i) and 512(b)(4) would require Federal land
managers to review and approve vegetation management, facility
inspection, and operation and maintenance plans within 30 days, and
would require that the Secretary use the agency's categorical exclusion
process under National Environmental Policy Act of 1969 to exclude from
documentation in an environmental assessment or environmental impact
statement any vegetation management plans developed for existing
rights-of-way. Under Section 512(b)(1), plans would not have to cover
the entire right-of-way.
Section 512(b)(5) would provide that once the vegetation management
plan is approved, the holders of the right-of-way would have to provide
the Federal land manager with only notification of anticipated
activities in the coming year, a description of those activities, and
certification that the activities are in accordance with the plan. If
vegetation on or adjacent to a right-of-way does not meet clearance
requirements under Federal, state , or local standards, the affected
Federal land manager would have only 3 business days, even in non-
emergency situations, to approve the holder's request to conduct
vegetation management activities to meet those requirements. If
approval is not given within that time frame, the holder may take
action after providing notice to the Federal land manager.
Under section 512(f) holders of a right-of-way would be shielded
from liability if the affected Federal land manager failed to authorize
vegetation management activities that are required to comply with
Federal, state, or local system reliability and fire safety
requirements. Section 512(g) would encourage development of training
for employees and section 512(h) would mandate implementing
regulations.
The Department recognizes that reliable delivery of electricity is
essential to the America's welfare and economy, and that fire and
service disruptions that result from contact between vegetation and
power lines threaten public safety and resources and place a potential
burden on rate payers. The Forest Service is eager to work with the
subcommittee on this legislation. However, some of the discussion
draft's provisions are unnecessary to the extent they duplicate
existing requirements in Forest Service policies and special use
authorizations. In addition, the Agency cannot support provisions that,
as currently written, would:
Unduly restrict the Secretary's ability to exercise
appropriate management authority over the National Forest
System;
Impose review and approval deadlines, which would be
unreasonable for many field staffs to meet under current
resource constraints, and which would expose the Agency to
liability if unmet; and
Eliminates strict liability for electric transmission and
distribution facilities, which are a high-risk use and
occupancy of Federal land, and eliminates liability for
negligence.
The Forest Service also cannot support provisions that would allow
utilities without Agency involvement to cut trees on National Forest
System lands that do not pose an imminent threat to electric
transmission and distribution facilities, particularly when those trees
are outside of authorized rights-of-way.
the current program
The Forest Service administers approximately 70,000 special use
authorizations, including 2,700 authorizations for power lines,
covering about 18,000 linear miles. Those facilities serve as critical
links in the national electricity grid. Helping to ensure structures
and adjacent natural resources are maintained in a way that protects
them from damage or destruction is an important and challenging part of
Agency operations. Program staff manages approximately 70,000 special
use authorizations and processes nearly 6,000 proposals for new uses
annually. This makes it imperative for utilities planning maintenance
work to contact the responsible field office as far in advance as
possible. The Agency's response time varies depending on the
capabilities of each field office, the level of work planned, and
conditions in the planned area.
The Forest Service works collaboratively with holders of electric
transmission and distribution line rights-of-way to develop appropriate
vegetation management plans that allow holders to provide for
reliability, minimize the risk of forest fires, and comply with
applicable Federal, state, and local requirements. These plans should
include procedures that allow for emergency removal of trees that pose
an imminent threat without prior approval from the Forest Service. The
Agency's 2013 vegetation management guide specifies for field staffs
the procedures and practices that should be included in operation and
maintenance plans for power lines. This guide states that where
vegetation conditions inside or outside the authorized right-of-way
pose an imminent threat to power line facilities, utility companies may
remove those threats immediately without prior approval from the Forest
Service. The guide provides for all other vegetation management
activities to be planned and coordinated with the Agency to ensure
utilities and their contractors are aware of any existing conditions
that could present a threat to them or to the public and to ensure that
the requisite environmental review, if any is conducted.
The Agency is well aware of the frustrations experienced by some
utilities due to delayed responses for maintenance approvals and
inconsistency across field offices, and is taking steps to address
these concerns. Members of my staff communicate regularly with
utilities to address specific issues and to discuss programmatic
efforts to improve agency responsiveness. Staff members attended the
Western Utilities Group meeting this month in Washington, DC and
discussed the Agency's efforts to improve procedures for transmission
line maintenance, including enhancing vegetation management directives
and permit clauses, completing review of the Federal vegetation
management MOU with the Edison Electric Institute (EEI), developing
web-based special uses training, conducting reviews of special uses
business practices, and holding an Agency executive energy forum,
scheduled for June of this year.
To enhance cooperation and efficiency in maintenance of electric
transmission and distribution line rights-of-way, the Agency encourages
utilities to meet with field personnel, explain required actions, and
work collaboratively to develop plans for getting work done. The
Department recently embarked on an initiative to look at reducing fire
risk beyond the right-of-way limits. The Secretary of Agriculture
convened the Western Utilities Summit in 2013 with power company
executives to explore partnership opportunities for increasing the pace
and scale of forest restoration and fire mitigation work. Pilot
projects where utilities are contributing to reducing their risk and
the fire risk within fire-derived ecosystems have begun. As an example,
Xcel Energy, in partnership with national forests of the Colorado Front
Range, has provided funding for treating the live and dead fuel
component of stands outside of the corridor. A 5-year operating plan
was completed and signed in June 2014 for a 5-year investment of $1.2
million. The 5-year plan outlines reducing hazardous fuels on 3,350
acres and addresses 326 of 400 high priority structures across three
national forests. In addition, a fire science analysis by USFS and Xcel
scientists has been published. The document discusses the joint science
to guide vegetation clearance standards and vegetation treatments for
prevention of damage to lines and other infrastructure.
We look forward to assisting the subcommittee with the legislation
and future discussions on Agency efforts to improve reliability.
Chairman and members of the subcommittee, this concludes my statement
and I would be happy to answer any questions you may have.
______
Dr. Fleming. Thank you, Mr. Smith.
The Chair now recognizes Mrs. Karen Mouritsen, Deputy
Assistant Director for Energy, Minerals, and Realty Management
at the Bureau of Land Management in Washington, DC.
STATEMENT OF KAREN E. MOURITSEN, DEPUTY ASSISTANT DIRECTOR,
ENERGY, MINERALS AND REALTY MANAGEMENT, BUREAU OF LAND
MANAGEMENT, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Ms. Mouritsen. Thank you, Chairman Fleming, Ranking Member
Huffman, and members of the subcommittee. Thank you for the
opportunity to provide the Department of the Interior's views
on H.R. 2358, the Electricity Reliability and Forest Protection
Act. This bill amends the Federal Land Policy and Management
Act, or FLPMA, by adding new provisions regarding vegetation
management and electric transmission rights-of-way.
The Department supports the bill's vision of early and
frequent communication with the holders of these rights-of-way
to plan for and address their needs, including the development
of plans for management of vegetation. The Department opposes,
however, the bill's automatic authorizations and extremely
constrained review time frames for these plans.
The BLM works closely with thousands of utility
organizations to manage rights-of-way for the transmission and
distribution of electrical power. We always appreciate the
opportunity to work collaboratively with our stakeholders and
partners and in managing rights-of-way, we believe that
advanced planning is critical to ensuring that both the BLM and
the utilities can respond to vegetation management requirements
in a timely and effective manner.
The BLM also recognizes that the approval of thoughtfully
cited rights-of-way is crucial to the economic vitality of our
Nation. Currently, the BLM administers over 15,000
authorizations for electric transmission and distribution
facilities.
To support the efforts needed to improve transmission
reliability and increase capacity in this country, the
President's Fiscal Year 2016 budget for the BLM includes a $5
million increase to allow the BLM to continue to work to
identify and designate energy corridors in the areas of low
conflict which should expedite future permitting processes for
new lines.
As currently written, the bill would apply to thousands of
existing rights-of-way, some of which were approved decades ago
and will soon expire. Before the enactment of FLPMA in 1976,
the BLM issued a significant number of rights-of-way under
various authorities, often for terms of 40 to 50 years, and
these rights-of-way typically do not contain vegetation
management or reliability standards which are standard
provisions of the post-FLPMA rights-of-way.
In addition, the BLM is aware that the Federal Energy
Regulatory Commission recently issued an order designed to
improve the reliability of electric transmission systems by
preventing or minimizing outages from vegetation located on or
near the transmission rights-of-way.
BLM supports these standards and appreciates and supports
the work of the utility companies to comply with these
standards. BLM currently provides opportunities for right-of-
way grant holders to establish plans of operation that address
vegetation management and other operating procedures. Routine
vegetation management activities generally do not require
separate BLM approvals, nor do true emergency actions. Most of
the right-of-way grants issued in the past 20 years include
such plans of operations.
The Department believes that the bill's mandatory approval
time frame of 30 days for new vegetation management plans is
not realistic given the potential scope of such plans and the
number of rights-of-way they could cover. Additionally, the
bill does not provide any flexibility for the BLM to work with
the utility to address inadequate or incomplete plans, nor
would it allow time for the BLM and the utility to coordinate
with local communities.
Likewise, the Department believes that the time frame of 3
business days to respond to requests for treatments is
problematic as it would preclude the BLM's ability to work with
utility companies to modify requests when and where
appropriate, to ensure treatments satisfy the BLM resource
management responsibilities, and also address utility needs in
a manner that is safe given current on-the-ground conditions.
The BLM values our partnerships with the holders of the
electrical transmission and distribution rights-of-way, and we
will continue to work toward further collaboration to meet our
shared goals. We appreciate the subcommittee's attention to
this issue, and thank you for the opportunity to be here.
[The prepared statement of Ms. Mouritsen follows:]
Prepared Statement of Karen E. Mouritsen, Deputy Assistant Director,
Energy, Minerals, and Realty Management, Bureau of Land Management,
Department of the Interior
introduction
Thank you for the opportunity to provide the Department of the
Interior's views on H.R. 2358, the Electricity Reliability and Forest
Protection Act, which amends the Federal Land Policy and Management Act
(FLPMA) by adding new provisions regarding vegetation management,
facility inspection and operation, and maintenance of electric
transmission and distribution facility rights-of-way (ROWs). The Bureau
of Land Management (BLM) works closely with thousands of public,
private, and cooperative utility organizations to manage ROWs for the
transmission and distribution of electrical power. The Department
values these partnerships and the vital services that electric
utilities provide for local communities and the Nation. We also value
our shared relationships and responsibilities with our Federal utility
partners, the Federal Power Marketing Administrations.
The Department notes that the draft legislation was provided to us
about 1 week before the hearing date and the bill was introduced late
last week, less than a week prior to the hearing, leaving little time
for analysis of the introduced bill's provisions. We will provide
preliminary views on the bill in this statement, but the Department
reserves the right to submit additional comments about the introduced
bill to assist in developing the Administration's position if
necessary. We also would be glad to engage in further discussion with
the sponsor and the subcommittee on the bill. As it is currently
written, however, the Department opposes the bill's automatic
authorizations and extremely constrained review time frames.
The BLM manages roughly 245 million acres of Federal land
consistent with its mission to sustain the health, diversity, and
productivity of America's public lands for the use and enjoyment of
present and future generations. As part of that mission, the BLM has
issued thousands of miles of ROWs for electricity transmission and
distribution under FLPMA and other applicable authorities. The BLM
recognizes that the approval of ROWs that are thoughtfully sited are
crucial to the economic vitality of our Nation. Congress reinforced
this in Section 103 of FLPMA which defines ROWs as one of the principal
or major uses of the public lands. Currently, the BLM administers over
15,000 authorizations for electric transmission and distribution
facilities, ranging from low-voltage 12 kilovolt (kV) lines to high-
voltage 500 kV lines and related infrastructure.
The BLM is committed to ensuring public safety and reliability with
respect to the electricity transmission ROWs it administers. The BLM
takes its responsibility for the administration of these ROWs
seriously, values the opportunity to work with utility companies to
serve our communities, and works simultaneously to meet its obligations
for the management and protection of natural and cultural resources on
the public lands as well as protection of public health and safety. To
support the necessary upgrades needed to improve reliability and
increase capacity, the President's Fiscal Year 2016 budget includes a
program increase of $5.0 million in the Cadastral, Lands and Realty
Management program to enhance the BLM's ability to identify and
designate energy corridors in low conflict areas and to site high-
voltage transmission lines, substations, and related infrastructure in
an environmentally sensitive manner.
Before the enactment of FLPMA in 1976, the BLM issued a significant
number of ROWs under various authorities. These earlier ROWs were often
issued for terms of 40 to 50 years and typically do not contain
vegetation management and reliability standards. Because FLPMA repealed
the prior authorities, the BLM can only address reauthorization under
Title V of FLPMA. Reauthorization generally requires analysis under the
National Environmental Policy Act (NEPA) and other laws that were not
in existence when the original authorizations were granted. This
process represents a substantial workload for the BLM, but ultimately
leads to the issuance of ROWs with clear and consistent terms and
conditions that address, among other topics, maintenance issues such as
vegetation management.
In addition, the BLM is aware that the Federal Energy Regulatory
Commission (FERC) issued an order in September 2013 approving updated
transmission vegetation management standards. Those standards, which
became enforceable for transmission owners in July 2014, were
implemented to improve the reliability of electric transmission systems
by preventing outages from vegetation located on transmission ROWs and
minimizing outages from vegetation located adjacent to ROWs. The
standards also address maintaining clearances between transmission
lines and vegetation on and along transmission ROWs and reporting
vegetation-related outages to the Regional Reliability Organizations
(RRO) and the North American Electric Reliability Council (NERC). The
BLM appreciates FERC's issuance of these standards and their emphasis
on improving transmission safety and reliability. The BLM also
appreciates the work of utilities which have increasingly sought to
conduct vegetation management treatments within and adjacent to ROWs on
BLM-administered public lands to comply with these new standards. In
some situations, the current ROW authorizations may not be consistent
with the updated NERC standards; in those situations the BLM works with
the individual ROW holders to address their concerns.
cooperative approach
Under the Energy Policy Act of 2005, which directed Federal land
managing agencies to expedite approvals necessary to allow the owners
or operators of electric transmission or distribution facilities to
comply with standards for vegetation management that imminently
endanger the reliability or safety of the facilities, the BLM and other
Federal agencies work to increase their collaboration with utilities.
The BLM is a party, along with other Departmental agencies, the
Environmental Protection Agency, the Forest Service, and the Edison
Electric Institute (an association of shareholder-owned electric
companies), to an interagency Memorandum of Understanding (MOU) that
formalizes a cooperative approach to streamline the management of
vegetation near utility facilities. The MOU facilitates a variety of
mutually accepted goals, including maintaining reliable electric
service, improving safety, reducing the likelihood of wildfires,
reducing soil erosion, reducing environmental risk, streamlining
administrative processes, and incorporating integrated vegetation
management (IVM) where appropriate. Under the MOU, the parties agreed
to a set of IVM practices intended to protect human health and the
environment and also agreed to the principles of cooperation, timely
communication, and consistent management. The current MOU has expired,
but its operational principles are still in use and the parties are
currently working toward approving a new MOU.
The BLM works closely with utilities that hold many BLM ROWs, such
as Arizona Public Service, NV Energy, and Idaho Power, to establish
master agreements that provide standard terms and conditions that can
be applied to multiple ROW grants. These agreements enhance consistency
across BLM offices and create greater predictability and efficiency for
the utility operators as they conduct business with the BLM. In Idaho,
this cooperation has led to increased efficiency approving operations
and maintenance proposals for transmission ROWs and associated
infrastructure. Another way the BLM collaborates with utilities is
through offering training to BLM employees with the assistance of
industry experts.
The BLM appreciates any opportunity to work collaboratively with
all our stakeholders and partners, including utility companies, and
recognizes the value of advance planning for future maintenance needs
when possible. Ongoing communication and coordination are also critical
to ensuring that both the BLM and the utility can respond to vegetation
management requirements in a timely manner.
vegetation management in rights-of-way
The growth of vegetation within utility ROWs can, in some cases,
pose risks to the infrastructure needed to provide a continuous supply
of electrical power. Trees can fall or otherwise make contact with
overhead power lines, resulting in power outages or fires, which pose
threats to public safety, private property, and natural resources.
Ground fires can create heat damage to facilities or burn wooden power
poles. Thus, to provide a dependable supply of electricity, utilities
must manage vegetation near their transmission and distribution lines
to prevent blackouts and wildfires; a goal shared by the BLM. Plans of
development incorporate various information elements, including health
and safety standards and maintenance actions needed to ensure that the
ROW grant holders and the BLM know what to expect when vegetation
management is undertaken. Advance planning is critical for the BLM to
expedite any approvals necessary to allow ROW grant holders to conduct
vegetation management activities.
When issuing or renewing a ROW grant to a utility company, the BLM
completes an analysis required by NEPA and other statutes, including
consideration of activities necessary for the ongoing maintenance and
operation of those lines. The analysis may also consider other
resources or activities appropriate for the location or management
needs of a particular ROW. The BLM includes standard terms and
conditions for the management of vegetation, agreed upon by both the
agency and the ROW grant holder, when issuing the ROW grant. Under the
terms and conditions typically included in ROW grants, a utility
company may conduct minor trimming, pruning, and weed management to
maintain the ROW or facility after simply notifying the BLM. Further
BLM authorization is typically not required.
In some cases, BLM approval is needed prior to ground disturbance
and the cutting and removal of any timber or vegetative resources that
have market value. The utility company can often obtain BLM approval
for the removal of hazard trees through a streamlined process (e.g.,
utilizing categorical exclusions). For an emergency situation causing
an imminent hazard, no BLM pre-approval would be necessary. For other
actions within the ROW, but beyond its scope, BLM approval is needed.
These actions may require additional environmental analysis. In
general, the degree of analysis required for a specific vegetation
removal action depends on the resources affected, the scope of the
action to be taken, and the environmental analysis that had been
previously completed. To facilitate efficiency, the BLM encourages
early and ongoing communication with our utility partners regarding
vegetation management needs and concerns.
hazardous fuels management
The National Cohesive Wildland Fire Management Strategy represents
a collaborative approach to restoring and maintaining resilient
landscapes, creating fire-adapted communities, and managing wildfire
response in a complex environment. The BLM is committed to protecting
people, property, and resources from wildland fire, and uses a
proactive approach to treat hazardous fuels. The BLM regularly
completes hazardous fuels reduction treatments, including thinning,
salvage, and prescribed burns.
The BLM routinely works with partner organizations to engage in
land and watershed restoration, community preparedness, and hazardous
fuels reduction activities. Departmental agencies employ an integrated
approach to wildland fire management, including the prioritization of
hazardous fuels treatments to mitigate the potential risk of wildfires.
Utilities that hold ROW grants are an important partner in this
approach. Hazardous fuels reduction projects that protect vital
infrastructure can also help the Department of the Interior to protect
rural communities from wildland fire, and the presence of important
infrastructure is one of the factors that the Department considers in
prioritizing hazardous fuels projects.
Electrical transmission ROWs can often provide significant
potential for the establishment of fuel breaks and for linking
hazardous fuels reduction projects ultimately creating a stronger
network of fuel breaks, which contributes to landscapes that are more
resilient to fire. Such projects help the BLM to protect communities
and natural resources from wildland fire, and the utilities to ensure
protection of their electricity transmission and distribution
infrastructure. The Cohesive Strategy highlights the importance of
working with communities to identify community values and
infrastructure, including electricity transmission facilities, to be
prioritized for proactive mitigation of wildfire risk.
h.r. 2358, electricity reliability and forest protection act
H.R. 2358 amends FLPMA by adding new provisions regarding
vegetation management, facility inspection and operation, and
maintenance of electric transmission and distribution facility ROWs.
Specifically, it requires the Secretary of the Interior and the
Secretary of Agriculture to provide ROW grant holders the option of
developing plans to conduct such activities to comply with applicable
system reliability and fire safety requirements. The bill specifies
that the Secretaries would not have the authority to modify the
reliability and safety requirements, and that the Secretaries must
jointly develop a process to review and approve within 30 days the
vegetation management plans and any amendments to them. The review and
approval process would have to include a way for the agencies to notify
ROW grant holders of any changed conditions that warrant modifications
to the plans, provide grant holders with the opportunity to submit
proposed plan amendments to address the changed conditions, and allow
the grant holders to continue implementing the portions of approved
plans that do not adversely affect the conditions causing the need for
modifications.
The bill mandates that the Secretaries apply the categorical
exclusion process under NEPA to the vegetation management plans. The
plans, which could cover one or more ROWs, would become part of the
authorizations governing the covered ROWs and danger trees adjacent to
the ROWs. Danger trees are defined as any trees inside the ROWs or
trees outside the ROWs that would come within 10 feet of power lines or
related structures if they fell. Once a plan is approved, the ROW grant
holder would notify the granting agency of vegetation management
activities it anticipates undertaking in the coming year, describe the
activities, and certify that the activities conform to the plan.
In cases where vegetation within ROWs or danger trees adjacent to
ROWs have contacted or are in imminent danger of contacting electric
transmission lines, H.R. 2358 provides authority for grant holders to
prune or remove the vegetation as long as they notify the appropriate
agency within 24 hours afterwards. Similarly, in cases that are not
deemed as hazardous but where vegetation within or adjacent to ROWs
does not meet NERC, state, or local standards, grant holders may
conduct vegetation management activities to meet those clearance
requirements if the agency fails to allow such activities within 3
business days after receiving a request for authorization to undertake
them. The bill requires the Secretaries to annually report on requests
and actions under both of these situations. If either Secretary fails
to allow ROW grant holders to conduct vegetation management in order to
comply with Federal, state, or local reliability and fire safety
requirements, the bill relieves the ROW grant holders of liability if
the vegetation causes or contributes to wildfire damage, loss, or
injury.
Finally, H.R. 2358 requires the Secretaries to take additional
steps regarding implementation. The bill encourages both Secretaries to
develop training programs for relevant employees regarding electric
system reliability standards and fire safety requirements. It also
directs the Secretaries to propose implementing regulations within 1
year of enactment and finalize them within 2 years.
analysis
As currently written, H.R. 2358 would apply to thousands of
existing ROWs, some of which were approved decades ago and will soon
expire. The Department supports early and frequent communication with
the holders of these ROWs to plan for and address their needs,
including the incorporation of plans for maintenance and vegetation
management. The Department opposes, however, the bills's automatic
authorizations and extremely constrained review time frames. The BLM
already provides opportunities for ROW grant holders to establish plans
of operation that address vegetation management, and routine activities
generally do not require separate BLM approvals. Most of the ROW grants
issued within the past 20 years include such plans of operation, which
address vegetation management. The bill's mandatory approval time frame
of 30 days for vegetation management plans is not realistic given the
potential scope of such plans and the number of ROWs they could cover.
Additionally, H.R. 2358 does not provide any flexibility for the
agencies to address inadequate or incomplete plans, including such
matters as cultural and natural resource needs, emergency or routine
maintenance procedures, or procedures for treatment of vegetation
adjacent to the ROW. The Department also notes that such a time frame
would not allow time for important coordination with local communities.
Likewise, the Department believes that the time frame of 3 business
days to respond to requests for treatments is problematic. The
mandatory approval required under this provision would preclude the
BLM's ability to work with utility companies to modify requests when
and where appropriate to ensure treatments satisfy BLM resource
management responsibilities and address utility needs in a manner that
is safe given current conditions. Furthermore, the Department believes
the language in the bill should be clarified in several other ways. For
example, the term ``adjacent'' is not adequately defined.
The Department defers to the Department of Justice regarding the
waiver of liability, but notes that this provision may conflict with
the Department's existing regulatory authority regarding strict
liability, which is a standard term and condition of numerous existing
ROW grants. The Department also notes that FLPMA and existing
regulations provide the BLM with significant latitude to administer
ROWs, and new regulations may not be necessary.
conclusion
The BLM values our partnerships with the holders of electrical
transmission and distribution ROWs, and we will continue to work toward
further collaboration to accomplish our shared goals. We believe that
early and coordinated planning and communication are essential to
ensure that vegetation management can occur expeditiously and that ROW
holders can comply with standards for vegetation management. We
appreciate the opportunity to continue to work closely with ROW
holders, and the committee's attention to this issue. Thank you for the
opportunity to be here, and I would be glad to answer any questions.
______
Dr. Fleming. Thank you, Ms. Mouritsen.
The Chair now recognizes Mr. Mark Hayden, the General
Manager of the Missoula Electric Cooperative in Missoula,
Montana.
STATEMENT OF MARK HAYDEN, GENERAL MANAGER, MISSOULA ELECTRIC
COOPERATIVE, MISSOULA, MONTANA
Mr. Hayden. Good afternoon, Chairman Fleming and members of
the subcommittee, and thank Congressman Zinke for his earlier
introduction. Thank you also for the opportunity to testify in
support of H.R. 2358, the Electricity Reliability and Forest
Protection Act of 2015. MEC is a member of the Montana Electric
Cooperatives Association and of the Northwest Public Power
Association and my comments here today are representative of
their views as well.
By way of background, MEC serves the electric distribution
needs of approximately 15,000 meters in western Montana and
eastern Idaho. The nearly 2,000 miles of distribution line that
we maintain deliver energy to some of the most wild and scenic
locations in the country, over 280 miles of which cross Federal
land. At MEC we are consistently working to improve safety and
system reliability, and vegetation management is a critical
component of our program. We strive continually to keep our
rights-of-way clear and the adjacent property free from danger
trees.
We also work diligently to maintain good relations and open
communications with the various Forest Service offices and
ranger districts with which we interact. In many cases those
offices and the people that staff them live locally, and have a
vested interest in the health and welfare of the forest, and it
shows.
But this positive situation is not found on all of our
rights-of-way managed by the Forest Service. In some cases it
can take months and even a year or more to obtain approval on
major operations and maintenance activities. These
inconsistencies and delays adversely impact our ability to make
good, timely decisions locally and place our co-op at
unnecessary risk.
In fact, the risk of forest fires as a result of hazard
trees is all too real for the West. For example, I know of one
member-owned electric cooperative in New Mexico that today
faces the very real prospect of bankruptcy as a result of a
massive 152,000 acre fire. This fire was caused by just one
Aspen tree that fell onto the co-op's Forest Service right-of-
way. The Forest Service held this co-op responsible for the
cost of fighting the fire, sending the co-op a bill totaling
more than $38.2 million. The co-op has $20 million in liability
coverage.
Mr. Chairman, I would ask permission to have two documents
related to this fire entered into the hearing record.
Dr. Fleming. Hearing no objection, so ordered.
Mr. Hayden. Our service area in Montana, like so many parts
of the West, has been adversely affected by the mountain pine
beetle infestation and the dead and dying trees left in their
wake. One of the areas hardest hit is in the Swan Valley, north
of Seeley Lake, Montana. In fact, during 2012, 94 percent of
the outage minutes at this delivery point were caused by tree
failure outside of the right-of-way and contact with overhead
lines. Obviously, one of the most effective ways to improve
service reliability and mitigate fire risk is to bury that
line.
However, converting overhead distribution lines to
underground is an expensive prospect, and especially for a
small co-op like MEC. So this cannot be standard practice.
After considerable discussion, an application was submitted
to the appropriate Forest Service district to bury just over 6
miles of distribution line. However, as the months progressed,
our hopes dimmed. Eventually we made an appeal for help from
then-Congressman Steve Daines, who brought our situation to the
attention of this subcommittee.
As of last week, our request was still not approved, and I
called the local Forest Service office to express my
frustration. These local officials indicated that the hold up
in processing our request was getting a bill to us for cost
recovery; and if I wanted to see things change, I should take
up my issue with Congress. Two days later, on Saturday, May 16,
we received unofficial notice via email that our project was
approved and we were authorized to begin construction.
The system is broken. H.R. 2358, as introduced by
Congressman Zinke and Congressman Schrader, is a meaningful
step toward fixing the problem. The legislation addresses some
of my concerns and the concerns of others in Montana about
inconsistent Federal agency actions, lengthy delays in response
to applications by electric utilities, and accountability for
delays relating to eliminating hazard trees and other
vegetation and utility rights-of-way.
This is a tremendous first step. I hope that one day the
same level of consistency, flexibility, and accountability can
be incorporated into the process to amend existing special use
permits on Forest Service rights-of-way, especially when system
reliability and fire protection are driving factors.
Thank you again for the honor of testifying before this
subcommittee and I will be pleased to answer any questions.
Thank you.
[The prepared statement of Mr. Hayden follows:]
Prepared Statement of Mark C. Hayden, General Manager, Missoula
Electric Cooperative
Good Afternoon Chairman Fleming and members of the subcommittee, my
name is Mark Hayden, and I am the General Manager of Missoula Electric
Cooperative (MEC) in Missoula, Montana.
Thank you for the opportunity to testify in support of H.R. 2358,
the Electricity Reliability and Forest Protection Act of 2015. Missoula
Electric Cooperative is a member of the Montana Electric Cooperatives'
Association, and the Northwest Public Power Association and my comments
are representative of their positions as well.
By way of background, MEC serves the electric distribution needs to
approximately 15,000 meters in western Montana and eastern Idaho. The
nearly 2,000 miles of distribution line that we maintain deliver energy
to some of the most wild and scenic locations in the country--286 miles
of which cross Federal land.
At MEC we are constantly working to improve system reliability, and
vegetation management is a critical component of our program, both on
and off Federal land. We strive constantly to keep our rights-of-way
clear and the adjacent property free from danger trees. The cornerstone
of this effort is our System Maintenance and Reliability Taskforce or
SMART. The SMART program is an integrated maintenance program focused
on proactive vegetation management, system-wide installation of
wildlife protection wherever possible, and routine equipment inspection
and maintenance.
We also work diligently to maintain good relations and open
communications with the various Forest Service Offices and Ranger
Districts with which we interact. In many cases, those district offices
and the people that staff them live locally and have a vested interest
in the health and welfare of the forest, and it shows.
A great example of this level of cooperation occurs regularly
during the clearing of danger trees outside of our rights-of-way during
routine Operations and Maintenance activities. Representatives from MEC
and local Forest Service Officials communicate periodically and
expectations are understood. As a result, managers and crews can
adequately plan for the time and financial resources necessary to
complete a project. Another positive example occurred during the summer
of 2014 when a power line river crossing was toppled during spring
runoff. Once emergency power restoration was complete, we requested
burial of the line and approval was granted within hours, as it should
be in the case of Emergency Operations and Maintenance activities.
But this positive situation is not found on all our rights-of-way
managed by the Forest Service.
In some cases, it can take months or a year or more to obtain
approval on Major Operation and Maintenance activities. Such approvals
are necessary to assuring electricity service is not jeopardized as a
result of work needed on rights-of-way. It is this inconsistency and
the unnecessary financial risk placed on my cooperative and other
cooperatives that causes me and other co-op managers in the state of
Montana significant concern.
In fact, the risk of fires as a result of hazardous trees is all
too real across the West. For example, I know of one member-owned
electric cooperative in New Mexico that today faces the very real
prospect of bankruptcy as a result of a massive 152,000-acre fire. This
fire was caused by just one aspen tree that fell onto the power line in
the co-op's Forest Service right-of-way. The Forest Service held this
co-op responsible for the costs of fighting this fire, sending the co-
op a bill totaling more than $38.2 million. The co-op has $20 million
in liability insurance coverage.
Mr. Chairman, I would like to ask permission to have two government
documents related to this fire entered into the hearing record.
For my co-op in Montana, our service area, like so many parts of
the West, has been adversely affected by the Mountain Pine Beetle
infestation and the dead and dying trees left in its wake. One of the
areas hardest hit is in the Swan Valley north of Seeley Lake, Montana.
In fact, during 2012 the substation serving this remote country
recorded the worst performance of all our delivery points and,
according to our records, 94 percent of our outage minutes were caused
by tree failure from outside of our rights-of-way and contact with
overhead lines. In 2013, that total was 86 percent when excluding
severe storms.
One complicating factor for our lines on Federal land in this area
is that the Forest Service has required that many of them be
constructed out of view using vegetative screening, and thus far off
the road when originally installed. This means lack of visibility,
inaccessibility, and heavily forested rights-of-way are the norm.
Obviously, one of the most effective ways to improve service
reliability and mitigate fire risk is to bury the power line. As you
can imagine, each instance of tree/power line contact can pose
significant risk of wildfire ignition under the right environmental
conditions. However, converting overhead distribution lines to
underground is an expensive proposition, especially for a small
cooperative like MEC, so this cannot be standard practice. But after
considerable internal discussions regarding our situation in the Swan
Valley, the decision was made to be proactive by requesting permission
to bury approximately 6.1 miles of overhead line on Forest Service
land.
In addition to reliability, a major contributing factor in our
decision to bury this line was a 2011 Montana Supreme Court decision
relating to fire damages. In that ruling the court indicated that a
utility could be held liable for restoring unimproved property to its
pre-fire condition, including the replacement of mature trees. This
ruling had the potential to bankrupt any utility and solidified our
decision to move forward.
On December 2, 2013, an application was submitted to the Forest
Service district office having jurisdiction over the proposed project,
and, just 1 month after submittal, we were notified that approval of
our request was expected by June of 2014.
However, as the months progressed our hopes dimmed. Eventually, we
made an appeal for help from then-Congressman Steve Daines, who brought
our situation to the attention of this subcommittee last year. In
preparation for my testimony here today, I spoke with the local Forest
Service office regarding my frustration. These local officials
indicated that the hold-up in processing our request was getting us a
bill for cost recovery, and if I wanted to see things change I should
take up my issue with Congress! This comment was made even though they
were unaware of my pending testimony on this very issue.
Two days later, on Saturday, May 16, at 4:06 p.m. we received
unofficial notice via email that all associated field work has been
completed on our project, that our co-op has paid the Forest Service
for all associated costs, and that we were authorized to begin
construction.
The system is broken, and H.R. 2358 as introduced by Congressman
Zinke and Congressman Schrader is a meaningful step toward fixing the
problem. The legislation addresses some of my concerns and the concerns
of others in Montana about inconsistent Federal agency actions, lengthy
delays in response to applications by electric utilities, and
accountability for delays related to eliminating problems with
hazardous trees and other vegetation on utility rights-of-way.
I hope that one day the same level of consistency, flexibility, and
accountability can be incorporated into our process to amend existing
special use permits on existing rights-of-way, especially when system
reliability and fire prevention are driving factors.
Thank you again for the honor of testifying before this
subcommittee and I will be pleased to answer any questions.
The following documents were submitted for the record by Mr. Hayden and
are being retained in the Committee's official files:
--Confidential Report by Unified Investigations & Sciences, Inc.
prepared for Jemez Mountain Electric Cooperative, Espanola,
New Mexico regarding a fire that occurred on June 26, 2011
--Letter to Jemez Mountain Electric Cooperative on January 31, 2013
from the U.S. Forest Service, Albuquerque, New Mexico
regarding a notice of indebtedness for a fire that occurred
on June 26, 2011
______
Dr. Fleming. OK. Thank you, and thank you for your
testimony.
At this point we will begin our questions for witnesses. To
allow our Members to participate and to ensure we can hear from
all of our witnesses today, Members are limited to 5 minutes
for their questions.
However, if Members have additional questions, we can
always have additional rounds. I now yield myself the first 5
minutes.
This question is to Mr. Markham, Mr. Benevento, and Mr.
Hayden. We hear today, and we often hear this from the other
side of the aisle, sort of this reflexive response that if
there is a problem with the Federal Government, it is because
we are not funding the government enough. Of course, we all
know that in the last 6 to 7 years the budget deficit has
accelerated to the fastest pace in the history of this Nation.
So it is not like we have a lot of extra money in order to
throw at problems.
I, on the other hand, believe that the problem is more
often poor management and poor accountability. I think we see
in the VA a recent example of exactly what I am talking about.
We passed a huge bill increasing the funding after all of the
scandals at the VA, only to find out virtually nothing has been
fixed, and virtually nobody has been fired. So I just simply
don't believe that throwing money at the problem is ever, or
rarely if ever, the solution.
So my question is this: the Federal agencies before us
today discussed their view that inadequate funding is part of
the problem. Yet the Forest Service discussed its funding
agreement with Xcel. Aren't there also things called cost
recovery agreements where the utilities pay up front, or
reimburse the agencies for clearing trees?
Mr. Hayden. Chairman Fleming, I will address that question.
With our application for burial of that line, the response that
we received was that getting us the bill for cost recovery was
the hold up. Now, we are paying those costs, and my argument to
them was get us the bill. We will gladly, not gladly, but we
will pay those costs that we owe you to get the job done. That
is all we were asking for.
There is inconsistency between that application and the one
prior to that that was processed in a relatively efficient
fashion. So this notion of cost recovery, yes, it is there. We
will pay that bill. The problem was getting us the bill, and
that just didn't make sense to me.
Dr. Fleming. Well, again, I think that makes my point. That
underlines and underscores my point that the Federal
bureaucracy seems to feel that it is being underfunded, but it
doesn't have any problem allowing its inefficiency to run costs
up for the private enterprise, or private businesses, or
private utilities in this case. So, better management and
faster response would have saved you a lot of time, effort,
headaches, and money, would it not?
Mr. Hayden. That is exactly correct and so that was after
about 9 or 10 months, and much of the field work on our project
had actually been completed before the cost recovery agreement
was even sent to us, and I guess what troubled me even more was
the fact that upon getting that cost recovery agreement and
paying the bill, my call last week indicated that they hadn't
received the money or it had gotten parked on somebody's desk,
apparently, because they had the check for 40 days. Somebody
looked for it, found it, and gave us a call and said, you are
good to go. So----
Dr. Fleming. Well, perhaps we should fund the Agency more
money so that they have more desks for the check to get stuck
on.
Mr. Hayden. Right.
Dr. Fleming. How about the other two members?
Mr. Markham. I would like to respond to that, Chairman.
There are two parts of that. First one, the cost recovery
agreement, and you heard my testimony where I talked about an
archeological study that we are paying for that we expect could
be around $87,000. We have to cut a check for that and it has
to be done before any approvals for our project are done.
The other thing, years ago with the BLM, we never had to
pay for renewing our permits. Just in the last 2 years, we
renewed 31 permits with the BLM and we have cut a check for
$40,000 for that. So we are paying a lot of money to have our
infrastructure on the property.
The other thing, going into your question about, is funding
part of the problem, I guess my biggest concern about that is
that we are talking about infrastructure that has been in place
for 40, 50, 60 years. We just want to take care of it.
If it was a new line going in, we can understand the hoops
that you have to jump through for that, but this is existing,
existing facilities that need maintaining. They are getting
outdated, and so from that standpoint, that shouldn't cost
anything just to let us maintain our infrastructure.
Dr. Fleming. A great point. Mr. Benevento, do you have
anything to add?
Mr. Benevento. I would echo their statements and just say
we have a cost recovery agreement with our Federal partners and
often there are issues about whether paying up front or paying
after the work is done, and checking to make sure that the work
is done correctly, which causes us some time and difficulty,
and I think causes them some issues as well. So----
Dr. Fleming. Thank you. My time is up. I yield to the
Ranking Member for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman. I just want to
respectfully push back a little bit on this idea that because
we have had a deficit over the past decade, there must be
plenty of money to go around the Federal Government, so that
can't be part of the discussion or part of the solution. These
agencies we are talking about now were not part of what landed
us in a $17 trillion national debt, or the deficits we have
been dealing with. I think if you asked them about their non-
fire-related budgets over the last 7 years, decade or so, you
would find that it has been pretty tight.
What did land us in this problem, of course, is that we
launched a couple of wars, and for the first time in our
country's history, the good folks here in Congress decided
instead of raising taxes to pay for the wars that they
authorized, we would for the first time cut taxes while going
to war, turning any semblance of fiscal conservatism or fiscal
responsibility on its head. That is why we are here today, not
because these agencies have had plenty or too much money to
spend.
But I do want to ask you, Mr. Smith, with respect to your
agency, what are the impacts of fire borrowing on your
resources and how has that impacted your ability to put people
in the field to process right-of-way maintenance requests?
Mr. Smith. Congressman, I think that you hit a sensitive
point there. Certainly, we want to appreciate all of the money
that Congress appropriates to us, but, certainly, we have to
make decisions in terms of when we are fighting fires it
certainly affects resource budgets. If we are called upon to
transfer funds, certainly, that is going to affect projects
that we might have been doing, whether it is a fuels treatment
or something else. So it has a tremendous effect on us when we
have to pull those resources from stuff that we have already
planned. And that certainly affects staffing capacity as well
as having enough authority to get those cost recoveries that we
have been talking about here later.
Mr. Huffman. I would ask you also, Mr. Smith, about the
danger tree provision in this bill. Do you have concerns that
that definition of danger tree, the new definition as proposed,
would be broad and could lead to unnecessary removal of
valuable vegetation and potentially have unintended
consequences?
Mr. Smith. Yes, we think that if a tree is imminent, or
what we call an imminent danger, we allow them to cut that down
even without prior approval and then they can come back and
tell us later that that has been done. The danger tree
provision--we want to make sure that the utilities are talking
to us so that we can make a determination as to whether there
are some problems that we are having with that tree, whether
there are some public safety concerns, or whether there is some
type of sensitivity in that area.
We would like a little more flexibility so that we can
manage that. If it is certainly a danger tree, we will
certainly give them the opportunity to make those corrections
and remove those trees.
Mr. Huffman. Thank you. I know you have expressed some
concern as well about the liability shift as proposed in this
legislation. But I believe I heard Mr. Benevento say something
that caught my attention. I found it potentially very
significant. I think I heard you say that at the very least you
should have a gross negligence standard for these projects that
you might do on your own dime in coordination with the Forest
Service.
Did I hear you correctly that you could accept a gross
negligence standard as opposed to a straight shift of
liability?
Mr. Benevento. For off-right-of-way work is what I was
discussing. So when we are doing--the off-right-of-way work is
a responsibility of the Federal land managers to clear and
manage, because for a variety of reasons that is not occurring.
So we are willing to volunteer--it is like a Good Samaritan
Law, Senator Udall had a Good Samaritan Law several years ago.
This is sort of similar to that in the sense that we would be
willing to do it. We would be willing to pay for it. We would
be willing to take direction and get approval from the Federal
land managers, but the liability standard, in order to incent
us to do that would have to be a gross negligence standard.
Mr. Huffman. Understand. Thank you. I found that to be
significant and very productive and maybe something folks can
work on as this goes forward. But I just want to ask my last
question of Ms. Mouritsen. You spoke to the lack of flexibility
in your agency's ability to collaborate and work with utilities
once they submit a plan to you under this bill. Could you
elaborate a little bit on that? Do you feel like some
improvements are needed in that regard?
Ms. Mouritsen. Yes, we agree with the intent of this bill
to develop these plans. We were just afraid when we read this,
where it said they would turn the plan in and we would have to
approve it in 30 days----
Mr. Huffman. Right.
Mr. Mouritsen [continuing]. That there wouldn't be time. We
might have some really good comments that we would like to
discuss with the company and we----
Mr. Huffman. You might be able to make the plan better.
Ms. Mouritsen. Make the plan better, and that is what we
would be afraid wouldn't be able to happen.
Mr. Huffman. In my 5 seconds left--from the two government
officials here, we currently handle rights-of-way and special
use permitting in that manner, which does create
inconsistencies. Will both of you agree that if we can get this
right, some programmatic approaches to managing these issues
might be beneficial for everyone?
Mr. Smith. We would agree with that.
Ms. Mouritsen. Sure, yes.
Mr. Huffman. All right, thank you, and thank you Mr. Chair.
Dr. Fleming. Mr. McClintock is recognized.
Mr. McClintock. Thank you, Mr. Chairman. It has been
observed that one of the many differences between the private
and public sectors is that the private sector attracts capital
by becoming more efficient and more innovative. The more
productive they become, the more capital they attract.
The public sector works exactly the opposite. They attract
capital by being less efficient, less innovative, and then
coming here and demanding more money to cure these
inefficiencies.
My observation has been, particularly with respect to the
National Forest Service, that as the staff and spending keep
going up, and up, and up, the performance and efficiency keeps
going down, and down, and down. It seems that the more
bureaucrats we add, the more cumbersome the bureaucracy
becomes. I would like to ask Mr. Markham, Mr. Benevento, and
Mr. Hayden for their observations on this phenomenon.
Mr. Markham. Well, I will go ahead and jump in first. I
think what is important for us, or what has happened with us
is, again, our infrastructure is aging. Infrastructure across
the country is aging, and so----
Mr. McClintock. Are you finding the bureaucracy becoming
more responsive or less responsive to the need for removal of
these trees?
Mr. Markham. It is definitely, the bureaucracy has gotten
worse here.
Mr. McClintock. Mr. Benevento, better or worse?
Mr. Benevento. I hesitate to over-generalize. I would go
with about the same.
Mr. McClintock. Mr. Hayden?
Mr. Hayden. I would qualify it by saying I am concerned
that there isn't turnover at so many levels at our local
staffing positions that I am worried about the lack of
consistency as we move forward. And one other----
Mr. McClintock. Do you think that the bureaucracy behavior
would change if we went for a pay-for-performance system----
Mr. Hayden. I can tell you this----
Mr. McClintock [continuing]. Or whether they are paid based
upon the applications they process?
Mr. Hayden. Production might go up not----
Mr. McClintock. Mr. Benevento?
Mr. Benevento. Well, that is the way we do it at Xcel, and
it works for me.
Mr. McClintock. Mr. Markham?
Mr. Markham. Absolutely.
Mr. McClintock. We were just told that, hey, no big deal,
you can get rid of the danger trees. Just come back and tell us
later. Is that so, Mr. Markham?
Mr. Markham. I am sorry, I didn't catch the question.
Mr. McClintock. The Forest Service just testified, that you
can get rid of the danger trees. Just come back and tell us
later. Is that the way it works?
Mr. Markham. No.
Mr. McClintock. Mr. Benevento?
Mr. Benevento. I think I am going to show you why there is
inconsistency. We actually have an arrangement where we can get
rid of our danger trees and then notify them afterwards, but
apparently that is not the case nationally.
Mr. McClintock. OK. How about Mr. Hayden?
Mr. Hayden. Yes.
Mr. McClintock. During the last 30 years, we have seen an
80 percent decline in the timber harvests from the National
Forest Service lands. Those are public assets that the National
Forest Service, by the way, under the Department of Agriculture
is responsible for managing for the good of the American
people, as well as the good of our national forests.
As we have seen that decline in timber harvest, we have
seen a concomitant increase in acreage destroyed by
catastrophic fire. I wonder if we returned to sustainable
yields that we had 30 years ago, where we were removing excess
timber from the public lands before it burned in catastrophic
fires, and we are generating revenues from those sales, I would
like to know from the National Forest Service, how much money
would that mean to the Service to manage our public lands
better?
Mr. Smith. Congressman, I am not sure I have a definite
answer for that, but we would be willing to look at it.
Mr. McClintock. Well, you are responsible for the
management of these resources. I would hope that you would know
how much those resources were worth. I mean, we were harvesting
at sustainable levels 30 years ago. We had a steady stream of
revenue as a result of those activities. The Forest Service was
a net income generator for the U.S. Treasury, and we had much
healthier forests as a result.
Mr. Smith. I agree with that. I will certainly look into
that and get back to you. I don't have those figures.
Mr. McClintock. I would like to ask one final question of
the utilities representatives. You work with the public land;
on the Federal Lands Subcommittee, we have received reams of
testimony over the deterioration of the health of our national
forests over the past 30 years, not coincidentally the same 30
years that the environmental left has dominated our policy, our
laws, and our litigation on this subject.
Would you say our national lands are healthier or less
healthier than they were 30 years ago? One word answer from
each of the utilities.
Mr. Markham. I will answer less.
Mr. McClintock. Mr. Benevento?
Mr. Benevento. I don't know what shape they were in 30
years ago, but we know that in Colorado, we have a lot of
issues with respect to the health of our forest.
Mr. McClintock. Mr. Hayden?
Mr. Hayden. Less.
Mr. McClintock. Thank you.
Dr. Fleming. The gentleman yields. The Chair recognizes
Mrs. Lummis.
Mrs. Lummis. Thank you, Mr. Chairman. Mr. Hayden, Mr.
Markham, and Mr. Benevento, a question for you. Can you
describe the differences between the Federal Government and
state or local governments with regard to how well they handle
vegetation management?
Mr. Markham. Well, I believe we have a much quicker
response from the local level or the state level on something
like this than working with the Federal level.
Mrs. Lummis. And why is that, do you think?
Mr. Markham. Well, it is my opinion that we can get in
contact and have better communication, and if something is not
going good with my people that handle this, they could come to
me and I can make some contacts with the people I know at the
local or the state level.
Mrs. Lummis. Mr. Benevento, what has your experience been?
Mr. Benevento. I think the local level is where we get the
best response.
Mrs. Lummis. Let me ask Mr. Benevento while I have you. Are
there instances where Federal land management agency partners
with a utility to assist in vegetation management off of
rights-of-way on Federal land?
Mr. Benevento. We do. We have been talking with our Federal
partners about doing that and one of the arrangements we have
discussed is paying them, again, to do the work, or what we
prefer is have them do the work and then we reimburse them for
it, which is a partial solution to it.
But it is more efficient, we think, if we do it. We have
crews out there. We have crews working. We can do the work more
efficiently. And there is also a question of payment. One of
the issues we have had is they want to be paid up front, and we
would prefer to pay them after the work is done and then
reimburse them.
So again, we would prefer to do the work and we are willing
to accept some level of liability for it in order to try and
get it done more effectively.
Mrs. Lummis. Would you choose to pay them to do it because
of the liability standard? Is that the main driver?
Mr. Benevento. At this point, yes. At this point what we
believe is strict liability if we go off the right-of-way and
it is a little unclear--the law is a little unclear in this
area, but we are unwilling to go off the right-of-way based
upon what we believe is a strict liability standard if we do
so. If that were to change, we would be willing to do the work
at our cost.
Mrs. Lummis. So is it fair for me to assume that the
liability standard may in some instances at least, deter
utilities from assisting Federal land management agencies in
clearing fire hazards?
Mr. Benevento. Off of the right-of-way, it certainly acts
as a disincentive for us to do it, yes.
Mrs. Lummis. Again, for Mr. Markham, Mr. Hayden, and Mr.
Benevento: under current law, even if the Forest Service or the
BLM negligently failed to do their job by not allowing
utilities to eliminate hazard trees and something goes wrong,
do you or your customers have to pick up the tab for it if it
is actually the Federal agency that is negligent?
Mr. Markham. Any costs like that come right back into our
rate base and, ultimately, they are paid for those costs by our
members.
Mrs. Lummis. So you do assume those costs, even if the
Federal agency is negligent.
Mr. Markham. Right now, and I cited the example with
Midstate Electric Cooperative. It requested removal of a danger
tree that was near the right-of-way, and the tree caused a
forest fire and they were denied a request from the Forest
Service. They ended up having to pay several hundreds of
thousands of dollars.
Mrs. Lummis. Mr. Hayden, can you jump in on this? Do you
have an opinion about this line of questioning?
Mr. Hayden. I don't know that I can, I assume that we would
be held liable. In Montana, we are especially concerned. The
Montana State Supreme Court has issued a ruling in 2011 that
stated that utilities would have to replace the forest as it
was, so put mature trees to replace the forest. So obviously,
we are very, very concerned about that. It has had the effect
of possibly bankrupting one of our co-ops in the state of
Montana.
In the legislative session that just ended in the state of
Montana, we were successful in getting language in a bill that
said that the value could not exceed the pre-fire fair market
value of unimproved property. So the question of liability is
huge to us in the state of Montana, especially given the fact
that they were requiring the replacement of mature trees, not
small trees.
Mrs. Lummis. Well, Mr. Chairman, I will yield back. If we
have another line of questioning, I do want to ask about the
fairness of this and what might be a better system. Thank you,
Mr. Chairman.
Dr. Fleming. Mr. Newhouse.
Mr. Newhouse. Thank you, Mr. Chairman. And thanks to
everybody on the panel for being in this discussion. It seems
like we are legislating common sense. I would think that
everybody here would be in agreement that no one wants to see
fires, no one wants to see power interruptions and we have a
common goal. And I hope that is a goal of everybody that is
shared.
For Mr. Smith and Ms. Mouritsen, excuse me if I butcher
your name, both of you testified that each of your agencies
have field guides or handbooks for government employees to
follow when it comes to the electricity rights-of-way on
Federal land. But just in the last couple of discussions, we
have heard that there seems to be a little inconsistency
between existing agencies.
So will you tell me about these documents? Are they
discretionary? Are they hard and fast? Could you talk, both of
you, a little bit about that.
Mr. Smith. Congressman, with the desk guide for the Forest
Service, we recently have that out, that is the guideline
telling the field how to deal with utilities, how to deal with
right-of-ways. It is simply a guide right now. It will
eventually be put into an interim directive for permanent
manual direction, but right now it is a guide.
But we certainly work with the field. And we think
everybody has a good idea what this is about. My staff has
certainly been working with the staff around the regions, in
the forests, to help them understand what that guide is about
and what that is. We have done extensive training working with
the utility companies as well as the Forest Service itself.
Mr. Newhouse. So there is some discretion allowed within
that?
Mr. Smith. It is a guide right now, yes.
Mr. Newhouse. Thank you.
Ms. Mouritsen. We have a similar situation. We have
policies and guidance, and they contain procedures for working
with the right-of-way holders. But there is some room for
discretion and exactly how to craft, say, the vegetation
management plan because conditions are different in each area.
So it depends a little bit on the local situation.
We also do a lot of training. We partner with the industry
in training and with the Forest Service and try to train our
people and bring as much consistency as we can.
Mr. Newhouse. Thank you. So, Mr. Markham, Hayden, and
Benevento----
Mr. Benevento. Benevento.
Mr. Newhouse. Benevento, excuse me. The Administration is
insinuating that the policies in these field guides--I forget
the term you called them, Mr. Smith--are in place, both
agencies have guidelines available. So, my take is that the
position is that this bill is a duplication, and is not
necessary. Could you describe or help me understand what
positive things that this bill would provide you and what kinds
of consistency that could be brought about by passing this
legislation?
Mr. Benevento. I think you have used the word that is most
appropriate which is consistency. You know, we were just
talking here about the ability to take down a danger tree that
could potentially come into contact or arc with a power line.
And we can do that right now. We can immediately go in and get
that tree down. Then we just have to inform the Forest Service
afterwards. I don't think that is true of all of us on the
panel.
So I think one of the things it would do is establish
policies and procedures that could be undertaken and that would
make them sort of common-sense policies and procedures that are
nationally applicable.
Mr. Hayden. I would just add to that that this turnover
that I talk about at the local level at Forest Service offices,
the training requirement within the bill is very important
because that will allow for consistency across all offices and
not just certain areas.
Mr. Newhouse. Good point. Thank you.
Mr. Markham. Yes, that was my similar answer. The training
is what is really critical there, so that we have the
consistency. There are a lot of different interpretations of
the standards.
Mr. Newhouse. Thank you. With that, Mr. Chairman, I will
yield back my time.
Dr. Fleming. The gentleman yields back. I have a couple
more questions. Would you like to do another round? It may only
be you and I.
Mr. Huffman. As you wish.
Dr. Fleming. OK. Sure. Again, I recognize myself for 5
minutes. Mr. Markham, Benevento, and Hayden, the Forest Service
and BLM say that parts of this bill are redundant with actions
already going on at the local Forest Service and BLM levels.
Then why is this bill necessary?
Mr. Benevento. I think to bring about the consistency in
the management of the forest and to take some of the good
practices, as I have talked about, our ability to deal with,
for example, danger trees. I think that the potential use of
integrative vegetation management also provides some benefit
that could be legislated that could be productive.
Mr. Markham. Well, the way I would answer this is, again,
consistency, we have to have consistency. I talked about the
differing interpretations and application of the standards;
this legislation gives us consistency. It gives us
accountability also, and that is pretty significant.
The other thing is that we deal with different areas across
the state. They deal with different standards. In one area they
can do things one way, and then you come down into our area and
it is done completely different. So that is why I support and
believe this legislation is really needed.
Mr. Hayden. In my opening comments, I mentioned that I
think this is a great first step. We have been looking to
modify our special use permit to bury some line. I should have
brought this up from the earlier question about this transfer
of liability. If the Forest Service hasn't acted upon our
request, I know of nothing that eliminates liability from us.
So we have submitted an application for a modification to our
special use permit.
I think this is one of those things that if there are
inefficiencies, if there is lack of responsiveness, it is not
meshing with what they are saying is happening within their
respective departments.
Dr. Fleming. OK. I yield my time to the Ranking Member.
Mr. Huffman. Thanks, Mr. Chairman. For my final thoughts or
questions, I guess my takeaway here is that I definitely am
hearing the elements of a consensus. They are all here in this
conversation. Some of them are in this bill, and there are some
pieces in this bill that I think need more work and are perhaps
needlessly controversial and not necessarily even essential to
getting us to this possible solution. The idea of the
programmatic approach to what is currently being done on a
case-by-case, patchwork basis makes a lot of sense. That ought
to be something we can work on together.
So my hope is that we can go forward from here, take these
elements of consensus and build something that could be a
strong bipartisan product and not let the wedge issues and,
just frankly, some of the ideological crossfire that you,
unfortunately, were subjected to get in our way.
We are going to have to address the fact that at some point
when we direct the government to do things, even coming up with
a programmatic new solution, it costs money. In fact,
programmatic approaches cost more money up front than the case-
by-case type of approach. So we have to start giving these
public agencies the funding they need to do the many things we
ask of them, instead of letting wildfires consume not only
their trees but their budgets. My hope is we can continue to
draw the connection between the fire borrowing solution and all
these other things that we would like to see happening on the
ground.
Thank you for the hearing, Mr. Chairman. And thanks to the
witnesses.
Dr. Fleming. I would like to thank our witnesses for their
valuable testimony. Members of the subcommittee may have
additional questions for our witnesses. We would ask you to
respond to these in writing. The hearing record will be open
for 10 business days to receive these responses.
If there is no further business, without objection, the
subcommittee stands adjourned.
[Whereupon, at 3:39 p.m., the subcommittee was adjourned.]
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