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[Senate Hearing 115-485]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 115-485

                     2310 OF S. 1460 AND H.R. 1873



                               BEFORE THE

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE


                             FIRST SESSION




                           SEPTEMBER 19, 2017

                       Printed for the use of the
               Committee on Energy and Natural Resources

        Available via the World Wide Web: http://www.govinfo.gov

26-875                    WASHINGTON : 2019     


                    LISA MURKOWSKI, Alaska, Chairman
JOHN BARRASSO, Wyoming               MARIA CANTWELL, Washington
JAMES E. RISCH, Idaho                RON WYDEN, Oregon
MIKE LEE, Utah                       BERNARD SANDERS, Vermont
JEFF FLAKE, Arizona                  DEBBIE STABENOW, Michigan
STEVE DAINES, Montana                AL FRANKEN, Minnesota
CORY GARDNER, Colorado               JOE MANCHIN III, West Virginia
LAMAR ALEXANDER, Tennessee           MARTIN HEINRICH, New Mexico
JOHN HOEVEN, North Dakota            MAZIE K. HIRONO, Hawaii
BILL CASSIDY, Louisiana              ANGUS S. KING, JR., Maine
ROB PORTMAN, Ohio                    TAMMY DUCKWORTH, Illinois

                      Colin Hayes, Staff Director
                Patrick J. McCormick III, Chief Counsel
                 Kellie Donnelly, Deputy Chief Counsel
   Lucy Murfitt, Senior Counsel and Public Lands & Natural Resources 
                            Policy Director
           Angela Becker-Dippmann, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
        Bryan Petit, Democratic Senior Professional Staff Member
           Spencer Gray, Democratic Professional Staff Member
                            C O N T E N T S


                           OPENING STATEMENTS

Murkowski, Hon. Lisa, Chairman and a U.S. Senator from Alaska....     1
Cantwell, Hon. Maria, Ranking Member and a U.S. Senator from 
  Washington.....................................................     3
Daines, Hon. Steve, a U.S. Senator from Montana..................     4


Casamassa, Glenn, Associate Deputy Chief, National Forest System, 
  U.S. Department of Agriculture.................................     5
Ruhs, John, Acting Deputy Director for Operations, Bureau of Land 
  Management, U.S. Department of the Interior....................     9
Hayden, Mark C., General Manager, Missoula Electric Cooperative..    17
Miller, Scott, Senior Regional Director, Southwest Region, The 
  Wilderness Society.............................................    30
Rable, Andrew, Manager of Forestry and Special Programs, Arizona 
  Public Service Company, on behalf of Edison Electric Institute.    38


Cantwell, Hon. Maria:
    Opening Statement............................................     3
Casamassa, Glenn:
    Opening Statement............................................     5
    Written Testimony............................................     7
    Responses to Questions for the Record........................    58
Daines, Hon. Steve:
    Opening Statement............................................     4
Hayden, Mark C.:
    Opening Statement............................................    17
    USDA Forest Service Notice of Indebtedness Letter for the 
      Record.....................................................    18
    Benton Rural Electric Association Statement for the Record...    23
    Written Testimony............................................    26
    Responses to Questions for the Record........................    70
LaMalfa, Hon. Doug and Hon. Kurt Schrader:
    Letter for the Record........................................    80
Miller, Scott:
    Opening Statement............................................    30
    Written Testimony............................................    32
    Responses to Questions for the Record........................    73
Murkowski, Hon. Lisa:
    Opening Statement............................................     1
NorthWestern Corporation, d/b/a NorthWestern Energy:
    Statement for the Record.....................................    81
Pacific Gas and Electric Company:
    Letter for the Record........................................    84
Rable, Andrew:
    Opening Statement............................................    38
    Written Testimony............................................    40
    Responses to Questions for the Record........................    76
Ruhs, John:
    Opening Statement............................................     9
    Written Testimony............................................    11
    Responses to Questions for the Record........................    64
Western Governors' Association:
    Letter for the Record........................................    88
    Letter to Hon. Rob Bishop and Hon. Raul Grijalva.............    89
    Policy Resolution 2017-10....................................    91

The text for each of the bills which were addressed in this hearing can 
be found on the committee's website at: https://www.energy.senate.gov/



                      TUESDAY, SEPTEMBER 19, 2017

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:49 a.m. in Room 
SD-366, Dirksen Senate Office Building, Hon. Lisa Murkowski, 
Chairman of the Committee, presiding.

                    U.S. SENATOR FROM ALASKA

    The Chairman. The Committee will be back in order as we 
begin the full Committee hearing.
    We are here to examine how the nation's utilities and our 
federal land managers work together to keep the lights on and 
to prevent wildfires.
    We have certainly seen a lot of the wildfires in the news, 
certainly coming out of the State of Montana. It has been a 
tough, tough, tough season.
    To me, this hearing represents the intersection of the 
energy and natural resources components of our Committee's 
jurisdiction. We can see that connection with our panelists. We 
have representatives from the U.S. Forest Service, the Bureau 
of Land Management, the Arizona Public Service Company, the 
Missoula Electric Cooperative and The Wilderness Society with 
us here this morning. Welcome to each of you.
    Hurricanes Harvey and Irma have reminded us of the terrible 
damage that hurricanes can inflict on power lines and the very 
real hardships that people face without electricity.
    I was just reading an article a couple days ago about the 
debate as to whether or not burying our utility lines can save 
us if we have hurricanes with high winds. Yes, it might, but 
then what happens when you have flooding? I think it is just a 
clear and direct reminder to us that natural disasters come in 
various forms and the impact on our power generation is 
something that we need to know and understand and try to do 
everything that we can to ensure a level of resilience.
    We have also spent considerable time examining the ever-
evolving cyber threat to our nation's grid system. But it might 
surprise many to learn that the biggest danger that we might 
face in keeping the lights on is basic vegetation management 
around electricity transmission and distribution lines.
    Back in August 2003, a single tree falling into a power 
line in Ohio started a cascading East Coast blackout that left 
50 million people without power and cost billions in damages. 
It was this blackout event that led to the creation of the 
Electric Reliability Organization in the Energy Policy Act of 
2005 and the imposition of mandatory reliability standards, 
including a vegetation management standard on the utility 
    Failing to keep power lines free of vegetation and so-
called hazard trees can also be a cause of wildfires which, 
again, have burned millions of acres in western states this 
year. With contact, a power line's energy can transfer to the 
vegetation causing sparks and potentially fire. Hundreds of 
wildfires have started on federal lands in this way.
    Out West our federal forests are overstocked and stressed 
by prolonged drought, leaving millions of acres of dead and 
dying trees. And many of our Western forests are tinderboxes 
for wildfire and a result, while maybe predictable, is just 
absolutely devastating.
    Given these public safety concerns, utilities face federal, 
state and local requirements to maintain their lines. At the 
federal level, utilities are subject to fines of up to $1 
million per day for ERO standard violations and are strictly 
liable for damages that occur on federal lands.
    So make no mistake, this is a significant undertaking. With 
90,000 miles of transmission and distribution lines located on 
federal lands, utilities must cooperate with federal resource 
agencies to conduct this important work in a time-sensitive 
manner. Unfortunately the Federal Government is not exactly 
known for its time sensitivity, and we often find inconsistent 
procedures among the various field offices.
    Still, under strict liability, a utility and, really, its 
customers, may have to pay for damages that were preventable.
    Both chambers now have legislation, which we are 
considering today, that aim to facilitate vegetation management 
activities on federal lands in order to enhance electric 
reliability and reduce wildfires. Senator Cantwell and I have 
included text in our energy and natural resources bill. The 
House has passed its own bill, H.R. 1873, the Electricity 
Reliability and Forest Protection Act, with 300 votes from 
members on both sides of the aisle. I should note that then-
Representative Zinke, now our Secretary of the Interior, 
sponsored the House bill in the last Congress, so I think we 
know that he, too, cares about this issue.
    The House and Senate measures seek to bring greater 
certainty and timeliness to the federal process. Both provide 
for emergency situations. While not identical, S. 1460 and H.R. 
1873 direct the agencies to consider the categorical exclusion 
process for routine vegetation management work and attempt to 
bring fairness to the liability question.
    These are significant issues, touching on electric system 
reliability, wildfire prevention, federal land management, 
regulatory compliance, and standards of liability. So, again, I 
want to thank our witnesses that are here to share their 
expertise with us as we consider them.
    Senator Cantwell, thank you for your interest in this, and 
your comments please.

                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Madam Chair.
    I am glad we are holding this hearing to discuss real 
problems of the West, including the issues of wildfires and 
reducing blackouts. I also want to make sure that we are 
recognizing that we do need tools to continue to help us deal 
with some of the most devastating fire seasons that we have had 
over the last several years.
    Earlier this month, when the fire season normally is coming 
to a close in Washington, most of Seattle awoke to find their 
cars covered with ash. So I am working with the Senators here 
and my colleague, Senator Murkowski, and others on what we call 
``fixing the fire-borrowing problem'' and to proactively, under 
the pine pilot, help us do better forest management treatment.
    I also want to make sure that we are looking at smart ways 
to help when fighting fires and when dealing with blackouts, 
and we are going to hear from many experts today about that. I 
still remember the blackout of the Northwest in 1996, and there 
are many issues related to it and other blackouts.
    Operating our electricity grid has some inherent risks, but 
we need to make sure that these risks are minimized.
    In the energy bill that Senator Murkowski and I put 
together, we included language to encourage the Forest Service 
and BLM to coordinate better with utilities. Our bill 
encourages utilities to develop a comprehensive management plan 
for vegetation, to expedite reviews by the Forest Service and 
BLM, and to make clear that trees posing an imminent threat to 
power lines can be cut immediately, with no prior approval 
needed. We apply the same liability standard that oil and 
natural gas pipelines receive on federal lands to power lines.
    On the other hand, the House bill, I think, has some 
problems. For example, it waives all environmental review for 
major cuts in rights-of-way. It also waives liability for 
utilities in some cases, even when they are grossly negligent.
    These issues are incredibly important to get right. I know 
that we can get them right. I am so pleased that we just passed 
out of the Senate the Sandy bill, which was, I consider, a 
related issue--that is FEMA's ability to get lifesaving 
communications up and running after a disaster. These 
communications are critical to first responders affected by 
communities during disaster recovery. We know that phone 
service, broadband and TV access are critical to saving lives 
and protecting property. This Sandy Act paves the way for 
communities to restore those communications and respond more 
quickly, certainly with the help of FEMA, and we know that this 
is one of the additional challenges we see when transmission 
lines burn up during a fire and then we have no communication 
    We need new tools to fight fires. That is clear, and we 
need tools to minimize our risk.
    I look forward to hearing from our colleagues. There are 
ways to address this, and I think my colleagues and I have 
worked on those. We would hope our House colleagues would 
become more serious about the recently passed Senate Energy 
bill and resolve many, many issues, including this one.
    Thank you, Madam Chair.
    The Chairman. Thank you, Senator Cantwell.
    Again, a welcome to you, gentlemen.
    We have before us Mr. Glenn Casamassa, who is the Associate 
Deputy Chief for the Forest Service at the U.S. Department of 
Agriculture. We have Mr. John Ruhs, who is the Acting Deputy 
for the Director of Operations at the Bureau of Land Management 
(BLM) at the Interior. Senator Daines, would you like to 
introduce our witness from Montana, Mr. Hayden, this morning?

                  STATEMENT OF STEVE DAINES, 
                   U.S. SENATOR FROM MONTANA

    Senator Daines. I would, thank you Chair Murkowski, and 
thanks for having this very important hearing on an issue that 
is very near and dear to our hearts out in the West, and 
particularly in Montana, that is providing statutory relief for 
more responsible vegetation management around power lines.
    This hearing, the legislative fixes explored today, cannot 
be more timely as wildfires in my state have burned well over a 
million acres, the equivalent the size of Delaware, and most of 
that has occurred on federal land. Over eight million acres 
across the West have burned this fire season.
    While active treatment could not have prevented every 
wildfire, these wildfires are big, they threaten human life and 
property, and they also threaten habitat for our iconic 
    Tragically, we have lost two brave firefighters in Montana 
this fire season and with about 18,000 miles of electric 
rights-of-way across Forest Service lands nationwide and over 
70,000 miles of transmission distribution lines on BLM land--
these fires and a lack of actively treating these trees also 
being a real risk to the reliability of electricity for Montana 
    I remember we had one of our many large fires burning in 
Montana in August. I spoke to one of our county commissioners 
in Southwest Montana. They were not able to get firefighters 
near one of our transmission lines, a high voltage line, 
because there was so much smoke and carbon in the air it could 
arc from the transmission line down on the ground, posing a 
threat to our firefighters. Once the fire began, we could not 
get in there and try to protect the transmission lines in that 
particular moment because of the threat to our firefighters. 
This is why it makes so much sense to be proactive and 
preventive, and that is why we are here today, one of the 
    I am very happy to have Mark Hayden here today from 
Missoula. He brings firsthand expertise to this issue and will 
speak on the importance of H.R. 1873 today.
    Our electric co-ops bring power to 40 percent of our state. 
Mark's co-op alone brings power to nearly 15,000 members in 
Western Montana and Idaho. Mark is here to speak on the 
importance of H.R. 1873, the Electricity Reliability and Forest 
Protection Act, to bring much needed clarity on vegetation 
treatment and rights-of-way. This bill passed through the House 
on June 21st, as the Chairman mentioned, with 300 votes, 
including 69 House Democrats.
    I look forward to exploring the solution later on today and 
hearing Mark's and other witnesses' testimony.
    Thank you, Chair Murkowski.
    The Chairman. Great. Thank you Senator Daines, and welcome 
to you, Mr. Hayden.
    The Committee is also joined this morning by Mr. Scott 
Miller, who is the Senior Regional Director of the Southwest 
Region for The Wilderness Society. Welcome. And the panel is 
rounded out with Mr. Andrew----
    Mr. Rable. Rable.
    The Chairman. ----Rable, who is the Manager for the 
Forestry and Special Programs at Arizona Public Service.
    We welcome each of you.
    Mr. Casamassa, if you would like to lead off. We ask that 
you try to keep your comments to about five minutes to give us 
plenty of opportunity to ask questions afterwards. Your full 
statements will be included as part of the record.


    Mr. Casamassa. Madam Chair, Ranking Member Cantwell and 
members of the Committee, thank you for the opportunity to 
discuss the efforts of the Forest Service to reduce the threat 
of wildfire to and from electrical transmission and 
distribution facilities on National Forest System lands.
    Reliable delivery of electricity is essential. Fire and 
service disruptions resulting from contact between vegetation 
and power lines threaten public safety. Forest Service 
administers and authorizes for approximately 18,000 miles of 
power lines.
    I know utilities are frustrated as a result of the 
responses from maintenance approvals and inconsistencies across 
our field offices. We are focused on addressing these concerns. 
In the past years, we've created guidance and provided guidance 
to the field on developing vegetative management plans.
    We also completed a master agreement with Pacific Gas and 
Electric for the immediate removal of hazard trees within 
striking distance of their power lines. To date, Pacific Gas 
and Electric has felled 27,000 hazard trees on national forests 
within California.
    We are working on our policy and procedures; however, not 
all the work can be accomplished administratively which is why 
I support the goals of the two pieces of legislation under 
consideration in this hearing, H.R. 1873 and Section 2310 of 
Senate bill 1460.
    Both of these bills address environmental analysis 
requirements related to permits and liability concerns. I'd 
like to work with the Committee to develop appropriate 
liability provisions and ensure that utilities can develop and 
implement operating and maintenance plans efficiently.
    We want to be good neighbors and work collaboratively with 
both the utility companies and the communities we both serve. 
That includes vegetation management agreements that allow 
utilities to provide for reliability, minimize the risk of 
forest fires and comply with applicable federal, state and 
local requirements with minimal agency consultation and 
    I'll continue to look for opportunities to streamline our 
process and become more efficient. Our goal is to make 
decisions that authorize projects in a more timely manner, 
eliminate unnecessary process and steps, and increase the scale 
of our analysis, thereby increasing the amount of on-the-ground 
work covered by our analysis and decision-making.
    Thank you for the opportunity to present the testimony 
today, and I'd be happy to answer any questions you may have.
    [The prepared statement of Mr. Casamassa follows:]
    The Chairman. Thank you. We are pleased you are here.
    Mr. Ruhs, welcome.


    Mr. Ruhs. Good morning, Chairman Murkowski, Ranking Member 
Cantwell and members of the Committee. I am John Ruhs, BLM's 
Acting Deputy Director for Operations. Thank you for the 
opportunity to discuss the very important issue of vegetation 
management requirements for electrical transmission rights-of-
way and the legislation before the Committee today.
    The BLM shares the sponsor's goals of enhancing electricity 
reliability and avoiding fire hazards, and we support both 
bills. We would like the opportunity to work with the sponsors 
on a few technical recommendations.
    The BLM manages about 245 million surface acres and 700 
million subsurface acres located primarily in the 12 Western 
states, including Alaska. In administering this diverse 
portfolio of public lands on behalf of the American people, the 
BLM is guided by its multiple use and sustained yield mission 
which is mandated by the Federal Land Policy and Management Act 
    Under FLPMA, rights-of-way are identified as one of the 
principle uses of the public lands. As a result, the BLM has 
issued thousands of miles of rights-of-way for electricity 
transmission and distribution. Currently, the BLM administers 
almost 16,000 authorizations for such rights-of-way. This 
infrastructure is a significant component of our nation's 
interstate commerce providing power to communities and jobs for 
thousands of Americans.
    In administering electrical rights-of-way, the BLM works to 
meet its obligations for the management and protection of 
natural and cultural resources on the public lands while 
minimizing wildfire risk and ensuring the reliability of the 
    Energy production and transmission are important sources of 
revenue and job growth in rural America, and capitalizing on 
opportunities to reduce permitting times is a major focus of 
this Administration. As directed by Secretary Zinke in 
Secretarial Order 3354, the BLM is committed to improving and 
streamlining its permitting processes, including for rights-of-
    Under existing law the BLM coordinates closely with 
thousands of utility organizations and other federal agencies 
in its administration of electrical rights-of-way. This 
coordination, along with early and ongoing communication and 
planning, is essential for the vegetation management necessary 
to prevent infrastructure damage, power outages and wildfires.
    The BLM has undertaken steps to provide greater 
predictability and clarity for the utilities it works with and 
we believe that thorough vegetation management plans provide 
the best opportunity to streamline the approval process, but 
BLM acknowledges that there may be aspects of the approval 
process that can be streamlined further and we welcome efforts 
to work with the Committee to make these critical improvements.
    Given the volatile fire season impacting the West, working 
closely with our partners in industry to undertake appropriate 
vegetation management in electrical rights-of-way is more 
important than ever before. The reduction of fire risk is a 
high priority for the Secretary, as outlined in the recent 
directive on wildland fire. All of the Department's bureaus, 
including the BLM, have been tasked with adopting more 
aggressive practices to combat the spread of catastrophic 
wildfires through robust fuels reduction and pre-suppression 
    The legislation being considered at this hearing would 
expand the BLM's toolbox to help reduce the threat of 
catastrophic wildfires like those we are currently 
experiencing. The legislation under consideration today shares 
common goals and language for enhancing electric reliability, 
promoting public safety and avoiding fire hazards in electrical 
transmission rights-of-way. To accomplish these goals both 
pieces of legislation would amend FLPMA by adding new 
provisions regarding vegetation management, facility inspection 
and operation and maintenance activities.
    The BLM supports the bill's goals of increasing 
coordination and efficiency regarding vegetation management and 
reducing wildfire risk. As such, we support both bills and 
would like to work with the sponsors on a few technical 
    Thank you again for the opportunity to present this 
testimony. We look forward to working with Congress on the 
efficient protection of public safety and the reliability of 
infrastructure on the public lands.
    I would be glad to answer any questions you may have.
    [The prepared statement of Mr. Ruhs follows:]
    The Chairman. Thank you, Mr. Ruhs.
    Mr. Hayden, welcome.


    Mr. Hayden. Good morning, Chairman Murkowski, Ranking 
Member Cantwell and members of the Committee, and thank you to 
the Senator from Montana for his earlier introduction.
    My name is Mark Hayden, and I'm the General Manager of 
Missoula Electric Cooperative (MEC) in Missoula, Montana.
    MEC is a consumer-owned electric utility serving the 
distribution needs of approximately 15,000 meters in Western 
Montana and Eastern Idaho. We have 41 employees and 
approximately 2,000 miles of distribution line, nearly 300 
miles of which cross federal land. MEC is a proud member of the 
National Rural Electric Co-ops Association, the Montana 
Electric Co-ops Association and the Northwest Public Power 
    Montana's 2017 wildfire season has taken a devastating toll 
on our forests, our residents and our economy. More than a 
million acres have burned, lives and homes have been lost and 
hundreds of residents have been evacuated due to the threat of 
    All of this highlights the importance of this hearing today 
because, while Montana's fires were all lightning-sparked, they 
serve as a vivid reminder of what could occur as a result of 
long delays in permit approvals and inconsistent application of 
policies by federal land managers. These actions place 
unnecessary risk on my cooperative and the entire public power 
community. In fact, the risk of fires as a result of hazardous 
trees is all too real across the West.
    I know of one member-owned electric co-op in New Mexico 
that was held responsible for firefighting costs for a massive 
152,000-acre fire caused by just one Aspen tree that fell on 
the power line in the co-op's Forest Service rights-of-way. The 
Forest Service sent the co-op a bill totaling more than $38.2 
million; however, the co-op has only $20 million of liability 
    Another example of delays and inconsistencies is ongoing at 
Benton Rural Electric Association (BREA) in Washington State. 
BREA has waited 15 months to renew their special use permit for 
lines that have been in place for more than 70 years. Forest 
Service officials have now proposed nothing short of a full-
blown environmental assessment which could cost the Association 
more than $100,000. In addition, BREA staff has historically 
been required to provide a list of danger trees for Forest 
Service inspection prior to their removal. Authorization can 
take three to six months, leaving an unnecessary risk of 
wildfire ignition while they wait.
    Madam Chairman, I would request that two documents, one 
related to the New Mexico fire and the second, the Benton REA 
challenges, be placed into the hearing record.
    The Chairman. Without objection.
    [The information referred to follows:]
    Mr. Hayden. My co-op, like so many parts of the West, has 
been adversely affected by the mountain pine beetle 
infestation. To maintain reliable service, especially to remote 
emergency equipment, MEC at one point had to cut, retrieve and 
deck, at considerable expense, a number of dead trees. MEC has 
never marketed a single log cut on Forest Service land nor 
would profiting from cutting trees ever be a motivating factor.
    Given our beetle kill situation, it was decided in December 
2013 to bury six miles of overhead line, and we were told by 
the Forest Service Office to expect approval in six months. As 
that deadline passed we made an appeal for help from then 
Congressman Daines, who brought our situation to the attention 
of House Committee on Natural Resources, Subcommittee on Water, 
Power and Oceans for later that year.
    In May 2015 I was invited to provide testimony before that 
same Subcommittee regarding our project delay. In preparation, 
I placed one final call to the local district ranger to express 
my frustration and he indicated that if I wanted to see things 
change I should take my issue up with Congress, at which point 
I told him I intended to do so the following week. Two days 
later on a Saturday afternoon, MEC received an unofficial 
notice via email to proceed with our project. We waited nearly 
18 months for approval of a project that qualified for 
categorical exclusion. I can only imagine the number of months 
or years project approval would have taken had more in-depth 
investigations applied.
    We commend the House for recently passing H.R. 1873 that 
received strong, bipartisan support and this Committee for 
proposing meaningful reforms through language changes in the 
current energy bill.
    I also want to recognize the efforts of Senator Daines for 
his continued strong involvement in this issue for the benefit 
of consumer-owned utilities across the nation. While the 
language may vary, some critical elements in the passage of any 
final legislation should include: optionality regarding 
vegetation management plans; firm deadlines on the agencies to 
ensure timely turnaround; categorical exclusion provisions must 
be included; liability relief should be granted for agency's 
failure to respond in a timely manner to utility request for 
authorization; and training provisions should encourage 
    Some have expressed concerns that legislative remedies, 
such as timelines, liability relief, are only setting our 
forests, our federal agencies, up for failure. While I'm not 
here today to pass judgment on current forest management 
practices, I would argue that current fuels reduction efforts, 
initial response plans that allow small fires to grow and long 
delays for agency approvals is only setting electric suppliers 
up for failure as well with devastating consequences to the 
forest and the utility.
    Thank you again for the honor of testifying before this 
Committee, and I will be pleased to answer any questions.
    [The prepared statement of Mr. Hayden follows:]
    The Chairman. Thank you, Mr. Hayden.
    Mr. Miller.


    Mr. Miller. Thank you, Chairman Murkowski, Ranking Member 
Cantwell and members of the Committee for the opportunity to 
testify today.
    At the outset, I wanted to thank you for your comments 
earlier and Senator Heinrich about Senator Domenici. He was the 
Chairman for most of the time I worked for this Committee, and 
I wanted to express my condolences to his staff.
    The Wilderness Society supports efforts to develop needed 
energy resources, where and when appropriate and when conducted 
in a responsible manner, especially the renewable wind, solar 
and geothermal resources found on our public lands.
    As an aside I wanted to thank Senator Heinrich for his 
leadership with Senator Heller on the Public Lands Renewable 
Energy Development Act which is pending in this Committee.
    Since this Committee's important work in the Energy Policy 
Act of 2005, utility vegetation management planning and 
practices have improved substantially. At the same time, the 
importance of strong utility vegetation management practices 
continues to grow as climate change is causing longer wildfire 
seasons; longer growing seasons; larger and more severe 
wildfires; changing plant species distributions; increased 
insect and disease activity; and more intense, more frequent 
and more longer-lasting drought, wetness, and weather events. 
These impacts and the related dynamics on utility vegetation 
management underscore the need for proactive, well-planned and 
adaptable utility vegetation management programs to ensure 
electric reliability and reduce wildfire risk. To do so, it's 
necessary for the utilities and federal land managers to work 
cooperatively to ensure their stewardship obligations are met.
    The Wilderness Society opposes H.R. 1873 because it would 
frustrate rather than facilitate sound utility vegetation 
management, and it would undermine public land stewardship and 
the public interest. For example, as a result of its 
inconsistent, broad and contradictory provisions regarding the 
application of state and local requirements, H.R. 1873 could 
leave federal land managers and utilities in the untenable 
position of having to comply with conflicting, inapplicable or 
inadequate state and local requirements for fire safety and 
electric system reliability. H.R. 1873 provisions on liability 
could leave the agencies and ultimately the taxpayers to cover 
the damages caused by the utility's own negligence or even 
gross negligence. And the bill dramatically compounds its many 
problems by applying its provisions to all lands under the 
jurisdiction of the Secretary of the Interior, including our 
National Parks, National Wildlife Refuges and even trust and 
restricted-fee lands of Native American tribes and individuals.
    Those are just a few of the concerns summarized in our 
written testimony. The BLM and the Forest Service raises still 
others in their testimony given during a hearing in the House.
    Section 2310 of S. 1460, on the other hand, takes a much 
more thoughtful approach that corrects or avoids many of the 
flaws of H.R. 1873. We would like to offer some suggestions to 
clarify and improve Section 2310. Section 2310 authorizes 
utilities to carry out certain activities if the agencies fail 
to respond to their requests in a timely manner. We agree that 
it's reasonable that the utilities ought to be able to expect 
timely responses from the federal land managers; however, we're 
concerned that the provision could have unintended consequences 
such as counterproductively resulting in planned schedules that 
result in unnecessary delays for routine approvals. Instead, we 
recommend that the bill impose a mandatory duty on the 
Secretaries to respond in accordance with the approved 
schedules. Consistent with points made in Mr. Rable's testimony 
and the Forest Service's testimony in the House, we recommend 
that the bill use hazard trees as a reference to clarify the 
scope of Section 2310's provisions relating to vegetation 
management adjacent to utility rights-of-way. And finally, 
clarifying that the authority of the Secretary and the 
utilities to make modifications of approved plans or withdraw 
approval, if necessary, would help to ensure adaptive 
management and that both parties retain the ability to 
effectively and efficiently meet their obligations.
    Again, thank you for your good work on Section 2310 and the 
opportunity to testify on it. We'd welcome an opportunity to 
work with Committee staff on these and a few other suggestions, 
if the legislation moves forward.
    I'd be happy to answer any questions you may have.
    Thank you.
    [The prepared statement of Mr. Miller follows:]
    The Chairman. Thank you, Mr. Miller, I appreciate it.
    Mr. Rable.

                       ELECTRIC INSTITUTE

    Mr. Rable. Chairman Murkowski, Ranking Member Cantwell and 
members of the Committee, my name is Andrew Rable, Manager of 
Forestry and Special Programs for Arizona Public Service (APS). 
I appreciate the opportunity to testify before you today on the 
importance of vegetation management to ensure the safety and 
reliability of energy infrastructure. APS is Arizona's largest 
and longest serving electric company and serves more than one 
million customers in 11 of the state's 15 counties. APS 
administers some 6,000 miles of transmission and 11,000 miles 
of distribution lines throughout Arizona, including federal 
lands managed by the U.S. Forest Service, Bureau of Land 
Management, and National Park Service. I am also testifying on 
behalf of the Edison Electric Institute (EEI), the Association 
that represents all U.S. investor-owned electric companies. 
EEI's members provide electricity for about 220 million 
Americans and operate in all 50 states and the District of 
    Managing vegetation on electric transmission and 
distribution rights-of-way is a key part of electric company 
efforts to protect the security and reliability of the energy 
grid. Failure to properly manage vegetation can cause 
wildfires, lead to cascading power outages and jeopardize the 
physical integrity of energy infrastructure. For example, the 
August 2003 Northeast blackout was initially triggered by a 
contact between a power line and a tree. In response, Congress 
passed legislation in 2005 that established our current regime 
of mandatory and enforceable reliability standards, including 
standards for vegetation management.
    To help reduce these risks, the electric companies need 
timely access to public and private lands on which power line 
rights-of-way are located to perform necessary vegetation 
management on adjacent to the rights-of-way. Particular 
challenges arise when the rights-of-way cross federal lands, 
largely due to significant delays companies face in getting 
multiple approvals from different federal agencies to access 
those rights-of-way or to perform integrated vegetation 
management activities.
    These inconsistencies put utility companies in a tough 
position. Increased wildfire risk has elevated the need for 
companies to comprehensively address vegetation management. 
Courts have found companies liable for wildfire damages 
involving power line contact with vegetation despite their 
extensive, proactive vegetation management efforts offered in 
high hazard conditions. At the same time, companies are subject 
to significant fines or violations of NERC, FERC reliability 
    We continue to seek ways to improve the process for 
accessing federal lands to remove forest debris, decrease fuel 
load and obtain authorizations to perform routine vegetation 
management. For example, in 2016 EEI signed a memorandum of 
understanding (MOU) with federal agencies and other 
stakeholders that will foster better cooperation and 
coordination between companies and federal agencies, especially 
the Forest Service, to manage vegetation within and immediately 
adjacent to existing rights-of-way. While the MOU and other 
tools are positive steps, more needs to be done to ensure that 
federal agencies can and will act in a timely manner. That is 
why we support federal legislation in this area.
    The House has already passed H.R. 1873, the bipartisan 
Electricity Reliability and Forest Protection Act, and we 
appreciate that Chairman Murkowski and Ranking Member Cantwell 
included a vegetation management provision when they 
reintroduced their Energy and Natural Resources Act this year 
as Section 1460. Both the House and Senate bills would provide 
a more streamlined and consistent process for vegetation 
management approvals. The bills are similar in many respects 
with each containing several noteworthy, beneficial features 
outlined in more detail in my written statement.
    Both bills would significantly increase efficiencies and 
the federal review process, allow companies to voluntarily 
develop and file vegetation management plans to expedite 
necessary activities, and authorize categorical exclusions 
under NEPAs for existing rights-of-way. The bills include 
different but potentially complimentary approaches to providing 
limited liability protections to help reduce disincentives for 
companies that want to develop vegetation management plans or 
need to take proactive measures to address threats to 
reliability or unacceptable wildfire risk.
    In conclusion, vegetation management is an important 
priority for EEI and its member companies to ensure the safety 
and reliability of the energy grid. We will continue to work 
with federal land management agencies to achieve effective, on-
the-ground implementation of the MOU. We will also work with 
Congress to pass legislation to establish a better framework to 
promote federal land management consistency, accountability and 
timely decision-making, while respecting the mission of the 
federal management agencies to appropriately manage lands 
within their respective jurisdictions.
    Thank you again for allowing me the opportunity to testify, 
and I look forward to answering any questions you may have.
    [The prepared statement of Mr. Rable follows:]
    The Chairman. Thank you, Mr. Rable, and thank you all for 
your comments this morning. I appreciate that each of you has 
indicated a willingness to work with us on these issues as we 
advance them and recognize the significance of it.
    I would like to ask a question, and I will throw it out to 
the entire panel here. It has been mentioned--the strict 
liability standard that FLPMA imposes on owners and operators 
of power lines that are located on federal lands. I have also 
mentioned the significant penalties for violating the state and 
federal or local requirements to clear the lines. I think it 
gets people's attention when you say it could be up to $1 
million per day, per violation. And then you have your 
consumers effectively paying twice; once under strict liability 
and again for violating the ERO vegetation management standard. 
This can come about even if the utility has been blocked from 
taking preventative steps due to, oftentimes, federal land 
management agency inaction.
    The question to each of you is whether or not strict 
liability is the appropriate standard for those utilities that 
are performing the vegetation management work, and do you agree 
that should be the case even where those damages, potential 
damages, might be preventable where you might have a federal 
agency's inaction in allowing a utility to go on to the federal 
land, to an existing right-of-way, to perform the necessary 
work to remove, whether it is a dead or dying tree, but in 
other words, prevent that utility from clearing the line? If we 
can speak to the standard that is out there right now under 
FLPMA and whether you think that is the appropriate standard 
and whether that holds if the damages could have been 
    I will start with you, Mr. Casamassa.
    Mr. Casamassa. Yeah, thank you, Madam Chair.
    Certainly, we are willing to and are ready to work with the 
Committee on coming up with, perhaps, a more reasonable 
approach in certain situations for the liability and a clearer 
definition of what that would mean both within and outside of 
the right-of-way.
    So I think that there are opportunities for us to look at 
that and then be able to make some modifications to it as well.
    The Chairman. Let me ask you then whether you think it 
should be Congress or the federal agency, in this case, BLM, 
determining the appropriate standard?
    Mr. Casamassa. Well, I think that it's, again, it's a 
combination of the two. I think that certainly there are roles 
for both to provide some frame for it as it relates to what we 
can do administratively and then potentially to look at some 
adjustments being made through legislation.
    The Chairman. Mr. Ruhs?
    Mr. Ruhs. Chairman Murkowski, as my colleague from the 
Forest Service mentioned, we look forward to working with the 
Committee on these kinds of issues. We strongly support these 
bills and I believe that, in regards to liability, there are 
opportunities for us to work together and find solutions.
    The Chairman. The rest of the panel? Mr. Hayden?
    Mr. Hayden. Well Chairman Murkowski, I absolutely agree 
that there should be liability relief for utilities if there 
are delays in the approval of a vegetation management plan. I 
also believe there should be liability relief if we are not 
allowed to work consistently with the plan or if we are not 
allowed to cut hazard trees in accordance with the plan.
    But I would take that one step further. If we are acting in 
accordance with the plan, not negligent in any way, I would say 
that strict liability provisions may be--there should be 
consideration given to removing that strict liability from us 
if we are acting in accordance with the plan because we can't 
be out there 24/7 determining when a new hazard tree crops up.
    The Chairman. But I----
    Mr. Hayden. And to your final question, I would just say 
that Congress should make that determination.
    The Chairman. I appreciate that.
    Mr. Miller.
    Mr. Miller. Thank you, Senator.
    As a general rule, I think that strict liability is an 
appropriate standard for right-of-way holders on public lands; 
but in the context of utility electricity lines, I think it's 
important to recognize the public service that they provide, 
the important public service. And I don't think it's fair for 
Congress to impose standards that they must meet, and then 
prevent them from meeting them, and then impose strict 
liability for not meeting them.
    So, in that case, I would just reiterate that I think the 
House bill's provisions are very troubling because they're 
overbroad and the Senate bill takes a much more thoughtful 
approach to the strict liability issue.
    The Chairman. I appreciate that.
    Mr. Rable.
    Mr. Rable. Yeah so, in agreement with Mr. Hayden and Mr. 
Miller, I would suggest that it would be a Congressional 
decision with input from both federal agencies and utilities. 
And as long as the provisions are being met as far as the 
vegetation management plan and we're following our plan, then 
liability would indeed be considered and waived.
    The Chairman. Very good, thank you. Thank you each for 
    Senator Cortez Masto.
    Senator Cortez Masto. Thank you.
    I appreciate the question, Madam Chair, because that was 
the question that I had. And I agree with you, I think this is 
an area where I am hoping the federal agencies are willing to 
work to address the issue of strict liability, because I do not 
see how we can mandate a standard of strict liability when the 
utilities are prevented from being able to follow their 
management plan or they are blocked from doing so.
    I am hoping that the federal agencies are willing to work 
through this issue and help us identify and figure out how we 
can maneuver through this issue of liability, because I think 
there has to be some liability, obviously. Somebody has to be 
held accountable to make sure that we are preventing any type 
of forest fires or that we are addressing and doing the cleanup 
that is necessary. But I also understand and have dealt with 
some of the federal agencies locally in the State of Nevada, 
and there is a frustration level.
    And I appreciate, Mr. Hayden, your comments, because I have 
heard that from some of our similar utilities and agencies 
about asking for approval and not getting it and the delay, 
delay, delay that happens. So I am hoping there is more 
conversation regarding this issue, and that we can figure this 
out. I appreciate that.
    One of the other areas, though, that there has been 
discussion is categorical exclusions for NEPA. I am hoping, Mr. 
Hayden, if you would be willing, and Mr. Rable, to talk a 
little bit more about that--what do you identify as categorical 
exclusions that you are seeking?
    Mr. Hayden. Well, to address that question I would go back 
to--in my written testimony I provide an example of a six-mile 
plow, burying six miles of overhead line and converting it to 
underground. You know, that's a commonsense example of how we 
can get out of the forest into road right-of-way, but that's 
very expensive and we can't do that in every case.
    The Forest Service absolutely needs a categorical exclusion 
to process these requests for vegetation management or burying 
a power line because, number one, I don't think the resources 
that they would need to go through full-blown assessments every 
time we submit one are possible.
    And to the fact that a categorical exclusion isn't just 
signing a piece of paper and sending that off. With our 
categorical exclusion, we were also billed $8,800 and 23 days 
was spent on that; 2.3 days for ten people, on average, at a 
cost of $8,800, but it took 18 months to get that. So if we 
didn't have categorical exclusion, just think of the 
consequences of that.
    Senator Cortez Masto. Thank you.
    And Mr. Rable and Mr. Miller as well, I'd be curious to 
hear your thoughts on it.
    Mr. Rable. Yeah, so just to reiterate that the categorical 
exclusion would not limit or hold the utilities unaccountable 
for the work that we're planning to do. What we're trying to do 
with the categorical exclusions is create significant 
efficiencies, create consistencies and additional flexibilities 
within the agencies and how they react to the work plans that 
we have identified annually.
    Mr. Miller. Thank you, Senator.
    I would just comment that, to make clear, that there are a 
number of categorical exclusions that the agencies already have 
and use for routine vegetation management, and I think the 
benefit of the Senate bill would be that it encourages long-
term planning. And most of these activities can and should be 
planned months and years ahead and that could facilitate 
appropriate environmental review.
    Our main concern, again, is that the House bill would give 
a blanket categorical exclusion to everything and that's 
unnecessary and, I think, could lead to significant adverse 
effects on the environment.
    Thank you.
    Senator Cortez Masto. Thank you. Thank you, gentlemen. And 
thank you, Madam Chair, for this conversation. I really 
appreciate it.
    The Chairman. Thank you.
    Senator Heinrich.
    Senator Heinrich. Thank you, Madam Chair.
    Mr. Ruhs, I know we are here to discuss safe maintenance of 
our rights-of-way for electric lines today. I think it is an 
incredibly important issue. I want to especially thank the 
Chair and the Ranking Member for the work that they have put 
into the existing language in the Energy bill. I think we are 
making good progress on this.
    However, with yesterday's news about the Secretary's 
recommendations to the President regarding national monuments, 
including two BLM monuments in New Mexico, I have to take the 
opportunity to raise a couple of questions with you.
    I was incredibly concerned in reading the report summary on 
the two monuments in New Mexico. I note that there were more 
than a few simple, factual errors included. For example, there 
is a claim that roads have been closed in Rio Grande del Norte 
National Monument. I confirmed with BLM staff that that is not 
accurate. And there is a claim that ranchers have stopped 
ranching there because of those non-existing road closures. 
Also not true.
    The report says that the Organ Mountains-Desert Peaks 
National Monument is on or abuts the U.S.-Mexico border. That 
is also not true, because on the recommendation of the U.S. 
Customs and Border Patrol, the boundary of the monument was 
actually established five miles north of the international 
border, actually north of New Mexico State Highway Nine. 
Finally, it says that both proclamations need to be amended to 
protect hunting and fishing rights when nothing could be 
further from the truth. I have had the opportunity, in fact, to 
hunt everything from Mearns' quail to javelina in the Organ 
Mountains-Desert Peaks National Monument. In addition, 
Petersen's Hunting magazine, just last month, listed that 
monument as one of the top ten public land destination hunts in 
the nation for quail.
    As for the Rio Grande del Norte, I confirmed this morning 
with the largest membership sportsman's organization in New 
Mexico that hunting and fishing access have actually improved 
post-monument designation and that the monument even hosts a 
bighorn sheep hunt that did not exist before the monument 
    These are some pretty basic facts to get wrong.
    So I have to ask you, were the local BLM staff, who 
actually manage these two monuments on the ground on a daily 
basis, consulted by the Secretary's office regarding the facts 
on the ground in these monuments that they manage as part of 
that Secretarial process?
    Mr. Ruhs. Senator, I can assure you that I, myself, and the 
Bureau of Land Management were not part of the writing of the 
reports. We did answer questions and provide data as necessary. 
I haven't seen the report so I can't answer the questions up 
front, but I would be willing to take those questions and 
concerns back with me to the Department and ask.
    Senator Heinrich. I would appreciate that.
    So you were actually not asked to fact check that document 
before it was shared with the White House?
    Mr. Ruhs. Correct, Senator. We provided information as 
requested and again, that's the limit of our----
    Senator Heinrich. The Secretary's office might ask you a 
specific question, but you were not given an opportunity to 
review that document for accuracy?
    Mr. Ruhs. Correct.
    Senator Heinrich. Okay.
    So there is no way for you to know the sources of 
inaccurate facts in that report?
    Mr. Ruhs. Correct, sir.
    Senator Heinrich. Okay.
    Do you have any idea if there is going to be a process to 
correct factual errors in that report and potentially change 
recommendations based on inaccurate information?
    Mr. Ruhs. Again, Senator, I am not involved with the 
development of the report, but my understanding, I guess, would 
be that, you know, our Secretary is pretty thorough on things 
and so I'm sure that if we've identified that there are 
inconsistencies and I take that information back, why, I'm sure 
that there would be an opportunity to fix those.
    Senator Heinrich. I look forward to putting together a fact 
sheet that is more consistent with the conditions on the 
ground. I will be happy to share that with you so that you can 
take it back to the Secretary.
    I have to say that my constituents are incredibly upset by 
the fact that the future of their monuments could be determined 
by people sitting in offices in Washington, DC, who have not 
been out on the ground in those places, and at this point, 
seemingly, did not get their basic facts right. So I look 
forward to working with you. I look forward to working with the 
Secretary. And I certainly hope that before the President acts 
on any of these recommendations, the Secretary makes sure that 
he can get his facts straight.
    The Chairman. Thank you, Senator Heinrich.
    Senator Daines.
    Senator Daines. Thank you, Madam Chair.
    I was going to ask about liability relief, but it sounds 
like that was covered. And all witnesses, especially the 
agencies, want to find a solution through legislation. So it is 
great to be of consensus here.
    I was also going to talk about categorical exclusions. It 
sounds like Mr. Hayden has also spoken to the importance of 
categorical exclusions.
    So given that those items have been covered very well prior 
to my questions, I am going to continue to move down this path 
of CE authority, though in a little more depth.
    Mr. Casamassa, I have a question for you. Our witnesses 
have attested to the importance of the use of categorical 
exclusions for environmental review. Could you speak to the 
value of a CE, and is public input incorporated in a review 
under a CE?
    Mr. Casamassa. Yeah, Senator.
    Certainly, based on the routine and minor nature of some 
actions associated with the work that is being proposed by 
utility providers, there's an opportunity to potentially expand 
what kind of work they can do and work within the frame of the 
National Environmental Policy Act. So certainly a categorical 
exclusion that goes beyond the scope of what we have right now 
would be advantageous for the agency.
    Senator Daines. Yes, and I think it is an important point 
that a categorical exclusion does not mean that public input is 
    Mr. Casamassa. Well certainly there is some level of 
notification and input that would be provided from communities 
of interest and constituents who are interested in that kind of 
    Senator Daines. Yes.
    Mr. Casamassa. I do want to point out though, that one of 
the things would be is that this would not be a categorical 
exclusion where we would exclude this from analysis. It's just 
a category within the analysis process that we do.
    Senator Daines. Alright. Thank you.
    Mr. Rable, could you shed some light on the penalties 
utilities face to keep the grid reliable and how the lack of 
vegetation treatment poses a significant financial risk that 
you may ultimately pass on to ratepayers?
    Mr. Rable. Yeah.
    So to build on what Chairman Murkowski mentioned earlier, 
the utilities are indeed based on FAC-003-4, subject to 
penalties up to and including $1 million per day, per 
violation. That, of course, is dependent on a couple of 
factors: the violation severity levels and the violation risk 
factors. So depending on the magnitude of the severity and the 
risk that the utility has assumed, those fines could be up to 
and including $1 million per day.
    Senator Daines. Thank you.
    That is big money, real money, particularly thinking about 
the co-ops and so forth out in Montana that, you know, a lot of 
Montanans find out there is a longer month than there is a 
paycheck, and that is a very important point.
    I made this point earlier when I was introducing Mr. 
Hayden, but let me just conclude by saying when I was here that 
first week of August, in fact, right here at this dais--on that 
particular day, Montana had 30 of the top 30 fires in the 
nation burning in our state. I had just gotten off the phone 
with one of our county commissioners from Southwest Montana 
where there is a very large BPA transmission line running near 
one of the fires, and the carbon that is emitted from the fire 
and the particulate in the air was such that it presented a 
risk to the firefighters on the ground from arcing from the 
high voltage line to the ground. At that point we could not 
even think about vegetation management along these power lines. 
We could not even get firefighters near the power lines to even 
fight the fire.
    I think it highlights the importance that we need 
preventive measures and good, responsible, sound timber 
management practices here to ensure that we can keep the forest 
healthy and to protect these important assets that when the 
fire burns, it is often too late. That is why, I think, what we 
have here with this bill is good, commonsense forest 
    Thank you for your thoughtful testimony today from all the 
    The Chairman. Thank you, Senator Daines, and thank you for 
your leadership on the forestry reform issues.
    You know, you never want to have tragedy bring about the 
impetus to advance good policy and good legislation, but 
certainly the loss of property, the tragic loss of life that 
you have seen in your state alone this summer, has been 
something that reminds us all--there is responsibility that we 
can put forth from a policy perspective, that we might not be 
able to stop forest fires altogether, but hopefully working 
with smart initiatives, we can reduce some of that risk.
    You have proposed doing so much of that with your 
initiative, and we really look forward to working with you to 
advance those.
    Senator Daines. Thank you, Chair Murkowski.
    The Chairman. Senator Barrasso.
    Senator Barrasso. Well, thank you very much, Madam 
Chairman, and thank you for your continued leadership on this 
very timely matter. I agree exactly with what you said and the 
role of this Committee working to advance good policy and hate 
to see tragedy at play that brings about these sorts of 
    The EPW will be holding a hearing on some of the things 
that Senator Daines is proposing with his legislation next 
week, and I look forward to continuing to work with you closely 
on this. But every year this Committee grapples with forest 
management and preventing catastrophic fires like those that we 
have seen in Montana this year.
    While we are not necessarily here today to discuss the 
larger issue of general forest management, I think it is worth 
noting that if federal forests were in better health, we may 
not be facing such an urgent need to actively, so actively, 
protect our electric grid. To be clear, this is not just a 
rural issue. One downed tree, one interrupted line, one fire 
could cause dramatic and drastic sweeping effects across wide 
areas of the country.
    Mr. Ruhs, on September 12th Secretary Zinke issued a 
department-wide memorandum on wildland fire instructing your 
agency to ``use the full range of existing authorities'' and 
``use your existing policies more aggressively to combat the 
ever-growing threat of catastrophic wildfire.'' In practical 
terms, what does this mean for how the BLM will engage more 
with partners, like electric co-ops, to manage forested lands 
outside of rights-of-way?
    Mr. Ruhs. Senator, thank you for the question.
    The BLM and our other federal partners work pretty hand-in-
hand with the industry folks since the development of the 
Edison MOU in 2016. I think we've seen some improvements in our 
abilities to develop vegetative management plans and work 
together to support those. And I think that's one of the 
primary things that's going to carry us forward as we work 
together on those things.
    I believe that the items that are in these bills, both of 
them, provide us with additional tools that will help us permit 
and process things faster.
    So I think all those things help us to be more responsive 
and support our customer base better.
    Senator Barrasso. Mr. Casamassa, while Secretary Zinke's 
most recent memo does not apply to Forest Service staff, he, as 
well as Agriculture Secretary Purdue, did issue an earlier memo 
in June outlining the need to work more collaboratively on 
managing forests and preventing catastrophic wildfire.
    In Wyoming, rural utilities are concerned that they are 
unable to adequately manage for risks to the power lines 
because the agency has not removed potentially hazardous trees 
outside of the right-of-way. If you have a tree outside of the 
right-of-way that is taller than the distance from the right-
of-way boundary to the power line, obviously there is a risk to 
that power line.
    So falling trees do pose a real risk because we have 
significant winds in Wyoming to say nothing of the risk posed 
by fast, hot, moving fires. Your agency has cited issues with 
disposal of these trees as a barrier to helping mitigate the 
    In your testimony you mentioned that some provisions in 
this language are duplicative, but it seems there is a need to 
reinforce some of the Forest Service's tools. So in situations 
where utilities are under threat by conditions outside of the 
right-of-way, does the Forest Service have the tools it needs 
to address those conditions itself or to allow the utility to 
act in a timely manner?
    Mr. Casamassa. Yeah, thank you, Senator.
    We do have some tools available to us, certainly not within 
the context of what one would consider something categorically 
    I know, based on the work that has been done in parts of 
Wyoming, that a large area associated with the Medicine Bow and 
the Routt National Forests within Colorado and other forests in 
Colorado, we have taken a larger look at that landscape and 
provided for an opportunity for co-ops and large-scale utility 
providers to clear inside the right-of-way and then adjacent to 
the right-of-way, those trees that have been deemed hazards.
    So there are some tools that are available and certainly 
there could be, and some additional tools that would be made 
available to the agency.
    Senator Barrasso. Thank you.
    Finally for Mr. Rable and Mr. Hayden. The liability 
utilities face caused by poor vegetation management outside of 
the rights-of-way truly can be astounding. The way communities 
experience a blackout or other interruption in electric 
service, the impacts are swift. They are apparent. Hospitals, 
schools, grocery stores and homes lose power; loss of power in 
this scale can be, obviously, disruptive but also dangerous.
    Senator Daines asked about the real cost of outages in 
terms of the fines, but what impact does this have for your 
ratepayers, you know, on a different scale?
    Mr. Hayden. Well, in our community, fire was very nearby 
this year. And I'll tell you one dramatic impact is the 
firefighters, the property owners that were trying to protect 
their own homes, if we have to shut off power or power is 
interrupted, they can't fight fires with the water they need in 
certain cases. So that would be a direct impact.
    But it's the cost of--we can't cover enough, we can't have 
enough insurance to cover some of these bills that have been 
sent out. So----
    Senator Barrasso. Mr. Rable?
    Mr. Rable. Yeah, thank you for the question.
    To build on what Senator Daines mentioned earlier in the 
tracking of particulates and fires that are in and around our 
utility corridors, we have a number of examples at Arizona 
Public Service where we have de-energized lines in order to 
protect firefighter wildland safety and the protection of our 
customers as well. So we have de-energized lines in order for 
them to get access to our corridor.
    Senator Barrasso. Thank you.
    Thank you, Madam Chairman.
    The Chairman. Thank you, Senator Barrasso.
    There has been a fair amount of discussion about the 
categorical exclusions and to follow on that, this is directed 
to both Mr. Casamassa and Mr. Ruhs. From your perspective, are 
there some types of vegetation management activities that are 
routine enough, we just see enough of them, that they could be 
categorically excluded under NEPA? I guess that is the first 
part of the question, and if you can identify what those might 
be, why haven't the agencies acted to specifically exclude them 
    Mr. Casamassa. Madam Chair, certainly there are some, I'd 
say, vegetative community types that we think----
    The Chairman. What does that mean, ``vegetative 
    Mr. Casamassa. Well, it's just a classification of the type 
of trees or vegetation----
    The Chairman. Okay.
    Mr. Casamassa. ----that are at a particular location.
    The Chairman. Okay.
    Mr. Casamassa. So I think that there are opportunities to 
ensure that that is the kind of activity that could be--
clearing that vegetative community type could be an activity 
that should be provided to the utility companies. And 
certainly, that's a part of it.
    The Chairman. So if it should be and it could be, why 
haven't you?
    Mr. Casamassa. And we have, up to this point, been working 
within the context of the categories that we have done 
administratively and also looking at the full suite of CEs that 
are available to us through other pieces of legislation. But 
recognizing this is, I think, one of the areas that, given the 
large scale of insect outbreaks that have been occurring, 
particularly in the interior West, and the need for active 
management adjacent to or within the rights-of-way, there's an 
opportunity here to go beyond what we have presently, 
administratively, or what has been provided through legislation 
in terms of categorical exclusions.
    The Chairman. It sounds like you are saying that you do 
have--you can clearly identify those types of activities that 
would be routine enough.
    Mr. Casamassa. Yeah.
    The Chairman. You just need to do it.
    What about you, Mr. Ruhs, within BLM?
    Mr. Ruhs. Madam Chairwoman, I guess that I would say the 
same, kind of, holds for BLM.
    We have, I think we've been focused primarily on developing 
vegetative management plans and working together along those 
lines and trying to streamline the processes that way.
    And we do have some tools in the toolbox, categorical 
exclusions, but I don't think they get specific enough for some 
of the areas that we have.
    So I think working together we can find those things if we 
continue to work with industry as well as with the Committee. I 
think we can refine what our needs are.
    The Chairman. Well, let me ask the question because there 
has been some discussion brought up, primarily from Mr. Hayden 
and Mr. Rable, about inconsistent practices or procedures that 
lead to delays and planning difficulties. I guess the 
question--it certainly seems to me that from the utility side 
they are saying that these delays are real. We don't think many 
of them are reasonable. How do you respond to that? You say you 
are trying to work with everybody, but do you think that more 
needs to be done to ensure, not only streamlining, but a 
greater consistency to allow for better planning to best reduce 
the delay?
    Mr. Casamassa. Well, Madam Chair, I agree.
    I think that there has to be a bit of--there has to be more 
consistency in our approach to the way that we manage the areas 
within and outside of the rights-of-way. That certainly is 
something that we are working on.
    I think it has to do not only with some of the clarity 
around some of the policy and procedures, but then also the 
recognition by the agency that a stance around leadership when 
it comes to these kinds of issues is really important that we 
recognize the value of ensuring that we're stewarding all of 
the lands for all of the uses in and outside of these rights-
of-way. We're looking for, we want to look for opportunities 
for us to work better across this landscape.
    The Chairman. Let me ask about that because you are saying 
all the right things. I don't think anyone would disagree with 
you but I think what you hear is the frustration saying, well 
the agency is saying the right thing, yet we are not seeing 
that translate. We are still continuing to see the delay; we 
are still continuing to see a conflict. Is there anything going 
on administratively right now or are you waiting for Congress 
to, kind of, sort things out and basically to tell you to do 
the right thing?
    Mr. Casamassa. Well, certainly we are taking action in some 
areas as it relates to some routine removal of vegetation 
inside the rights-of-way. And so, that is, you know, there is 
some active management actually going on right now across the 
landscape. Is it consistent across every single district office 
or forest in the agency? I would say, no, and they're working 
toward that. But there is a considerable amount of work that's 
being done in cooperation with the utility companies.
    The Chairman. Let me ask if Mr. Rable or Mr. Hayden agree? 
Are you seeing a change in relationship, a willingness to work 
with our land management, the local land managers, working with 
the federal land managers, or is it still the same old, same 
    Mr. Rable. It continues to be fairly inconsistent. So the 
answer to your question is sometimes yes and sometimes no. And 
oftentimes that's dependent on change in staff, so you may have 
staffing levels that at certain times are in agreement with 
routine vegetation management and what your prescription is 
that's been long established on existing corridors; and then 
with turnover in staff, they may have a difference of opinion 
about your approach.
    The Chairman. Mr. Hayden, would you agree?
    Mr. Hayden. I would completely agree and I would lean back 
to the Benton Rural Electric example that just hit my desk a 
couple days ago, that talks about their inconsistency.
    I'd like to add that, you know, one of the greatest 
strengths of working with the Forest Service for us is this 
decentralized decision-making. Local people that are in our 
communities, they understand our struggles, are making 
decisions; but one of the greatest weaknesses is that same 
decentralized decision-making because they may have different 
interpretations of the rules. They may be afraid to make 
decisions at that local level, but we have this struggle where 
it's really great to be able to work locally with these people, 
and we struggle with that. So I would say that the 
inconsistency is still there.
    The Chairman. Well, I think this is important for our 
agency folks, Mr. Casamassa and Mr. Ruhs, to hear and 
understand that we have a ways to go here to gain these 
efficiencies that we are all hoping for.
    Senator Cantwell.
    Senator Cantwell. Thank you, Madam Chair. Again, I 
apologize for stepping out. We have had a couple of other 
hearings this morning, as you well know, and are balancing 
various things.
    I wanted to go back to the BLM focus because last Congress 
BLM testified that it was concerned about the then-House 
legislation that was sponsored by then-Congressman Zinke, now 
Secretary Zinke. And BLM noticed that waiving the liability 
might conflict with the standard terms and conditions of the 
rights-of-way grants. The House bill still has these same 
    In your time at BLM, Mr. Ruhs, have you ever been in a 
situation where non-emergency issues had to wait longer than 
three days while you were dealing with a real emergency like a 
    Mr. Ruhs. Ranking Member Cantwell, I would say that in my 
time with the agency, I have seen times when we haven't been as 
efficient with our processes as we should be. I believe 
oftentimes we have competing laws and regulations, if you will, 
that we have to follow and sometimes they get in our way.
    I think one of the things that we've seen since the 
previous Congress where we've testified on this, on the 
previous bill from the House, since that time we have a new MOU 
that, I think, has given us some new direction. I think that 
our agency is also working on some updated policy that will 
hopefully bring better consistency across the agency. Also, we 
have ongoing training that we're starting to do for our folks.
    So I think all those things will help us as we better 
understand the issues and streamline our processes. Are we 
where we need to be? We aren't yet, but I believe we're getting 
    Senator Cantwell. So is that a yes or no on your seeing 
something take longer than three days when there was a real 
    Mr. Ruhs. Yes, ma'am, I've seen things take longer than 
three days when they shouldn't have.
    Senator Cantwell. When it was a real emergency?
    Mr. Ruhs. Yes.
    Senator Cantwell. Okay, if you could get us that 
information I would so appreciate it.
    Does it make sense to release utilities from liability if 
it takes BLM, for example, four days to respond to a non-
emergency request?
    Mr. Ruhs. Yes, and I believe that if we're working together 
on a vegetative management plan that hopefully we won't see 
those kind of situations as we go forward. I would like to 
think that as we work with the Committee that we can deal with 
those liability issues and certainly make them better for all 
    Senator Cantwell. Well, I think we have over here--in the 
Senate bill. At least that's my opinion, so I think we have a 
lot of flexibility.
    I wanted to ask about tribal issues. Obviously BLM covers a 
lot of land, but all lands under the jurisdiction of the 
Secretary of the Interior, including national parks and 
wildlife refuges and tribal lands could be eligible--the bill 
would require state and local governments to basically trump 
tribal requirements on some of those lands. Is that a problem, 
Mr. Miller or Mr. Hayden?
    Mr. Miller. Yeah, from my perspective it would be entirely 
inconsistent with the United States' trust responsibility to 
those tribes.
    Senator Cantwell. Mr. Hayden, any concerns there?
    Mr. Hayden. Currently, I think tribal entities, as well as 
other entities, are consulted on many of the projects that take 
place in any case, correct? And I don't know how the Senate 
bill would influence that or impact that because as part of our 
categorical exclusion process today, tribal entities are 
consulted as it is.
    Senator Cantwell. Yes, we are talking about mostly the 
House bill.
    Mr. Ruhs or Mr. Casamassa, do your agencies want to force 
tribes to accept emergency and fire policies of the state or 
counties which they are located in?
    Mr. Casamassa. No.
    Senator Cantwell. Mr. Ruhs?
    Mr. Ruhs. I would agree with that.
    Senator Cantwell. Thank you.
    Thank you, Madam Chair.
    The Chairman. Thank you.
    I just have one question that was prompted by reference to 
the memorandum of understanding with EEI, the Edison Electric 
Institute. There was a promise that within 18 months they would 
emphasize laws, regulations, and policies associated with 
vegetation management for power line rights-of-way on federal 
lands. And the agency also promises to work with non-
governmental parties to develop a process for coordinating 
management of power rights-of-way on federal lands. This 18-
month deadline, I understand, is up February of '18. Where are 
we in terms of the ability of the agencies to meet the 
deadline? Is this process underway? Just give me a quick update 
    Mr. Casamassa. Yeah, Madam Chair, from the perspective of 
the Forest Service, we are making some advancements when it 
comes to working with and under that memorandum of 
understanding. And I think that in the very near future we'll 
see some of those advancements come to fruition.
    The Chairman. Mr. Ruhs?
    Mr. Ruhs. Madam Chair, we also are making progress. I can't 
tell you exactly where we're at, but again, we've--are in the 
process of developing new policy that takes the information out 
of the MOU and puts it in place so that we can be consistent 
across the agency, as well as implementation training for our 
folks so that they know exactly what it is we've committed to.
    The Chairman. So you figure you are on track, insofar as 
meeting that deadline?
    Mr. Ruhs. Yes, ma'am.
    The Chairman. Good, good. Thank you.
    Gentlemen, thank you for your appearance here this morning 
and for the work that you are doing, certainly from the 
utilities' perspective, oversight perspective, and within our 
agencies. This is an issue that, I think, the Ranking Member 
and I, along with many of our colleagues here, particularly 
from the West, are trying to understand how we do better by our 
policies to ensure that we can move efficiently, effectively 
and without delay when it comes to things like vegetation 
management, keeping not only property better protected and 
safe, but also in an effort to ensure that lives are not at 
risk. Wildfires are unpredictable and we saw that play out 
certainly this last season.
    Thank you for your participation, and I thank you each for 
your willingness to work with the Committee as we work to 
further enhance and build on these initiatives.
    With that, the Committee stands adjourned.
    [Whereupon, at 11:06 a.m. the hearing was adjourned.]