43 USC 1769 - Existing right-of-way or right-of-use unaffected; exceptions; rights-of-way for railroad and appurtenant communication facilities; applicability of existing terms and conditions

Collapse to view only § 1769. Existing right-of-way or right-of-use unaffected; exceptions; rights-of-way for railroad and appurtenant communication facilities; applicability of existing terms and conditions

§ 1761. Grant, issue, or renewal of rights-of-way
§ 1761a. Streamlining the Forest Service process for consideration of communications facility location applications
§ 1762. Roads
§ 1763. Right-of-way corridors; criteria and procedures applicable for designation
§ 1764. General requirements
§ 1765. Terms and conditions
§ 1766. Suspension or termination; grounds; procedures applicable
§ 1767. Rights-of-way for Federal departments and agencies
§ 1768. Conveyance of lands covered by right-of-way; terms and conditions
§ 1769. Existing right-of-way or right-of-use unaffected; exceptions; rights-of-way for railroad and appurtenant communication facilities; applicability of existing terms and conditions
§ 1770. Applicability of provisions to other Federal laws
§ 1771. Coordination of applications
§ 1772. Vegetation managment,

§ 1761. Grant, issue, or renewal of rights-of-way

(a) Authorized purposesThe Secretary, with respect to the public lands (including public lands, as defined in section 1702(e) of this title, which are reserved from entry pursuant to section 24 of the Federal Power Act (16 U.S.C. 818)) and, the Secretary of Agriculture, with respect to lands within the National Forest System (except in each case land designated as wilderness), are authorized to grant, issue, or renew rights-of-way over, upon, under, or through such lands for—

(1) reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, tunnels, and other facilities and systems for the impoundment, storage, transportation, or distribution of water;

(2) pipelines and other systems for the transportation or distribution of liquids and gases, other than water and other than oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom, and for storage and terminal facilities in connection therewith;

(3) pipelines, slurry and emulsion systems, and conveyor belts for transportation and distribution of solid materials, and facilities for the storage of such materials in connection therewith;

(4) systems for generation, transmission, and distribution of electric energy, except that the applicant shall also comply with all applicable requirements of the Federal Energy Regulatory Commission under the Federal Power Act, including part 1 1

1 So in original. Probably should be part “I”.

thereof (41 Stat. 1063, 16 U.S.C. 791a–825r).; 2

2 So in original. The period preceding the semicolon probably should not appear.

(5) systems for transmission or reception of radio, television, telephone, telegraph, and other electronic signals, and other means of communication;

(6) roads, trails, highways, railroads, canals, tunnels, tramways, airways, livestock driveways, or other means of transportation except where such facilities are constructed and maintained in connection with commercial recreation facilities on lands in the National Forest System; or

(7) such other necessary transportation or other systems or facilities which are in the public interest and which require rights-of-way over, upon, under, or through such lands.

(b) Procedures applicable; administration

(1) The Secretary concerned shall require, prior to granting, issuing, or renewing a right-of-way, that the applicant submit and disclose those plans, contracts, agreements, or other information reasonably related to the use, or intended use, of the right-of-way, including its effect on competition, which he deems necessary to a determination, in accordance with the provisions of this Act, as to whether a right-of-way shall be granted, issued, or renewed and the terms and conditions which should be included in the right-of-way.

(2) If the applicant is a partnership, corporation, association, or other business entity, the Secretary concerned, prior to granting a right-to-way 3

3 So in original. Probably should be “right-of-way”.

pursuant to this subchapter, shall require the applicant to disclose the identity of the participants in the entity, when he deems it necessary to a determination, in accordance with the provisions of this subchapter, as to whether a right-of-way shall be granted, issued, or renewed and the terms and conditions which should be included in the right-of-way. Such disclosures shall include, where applicable: (A) the name and address of each partner; (B) the name and address of each shareholder owning 3 per centum or more of the shares, together with the number and percentage of any class of voting shares of the entity which such shareholder is authorized to vote; and (C) the name and address of each affiliate of the entity together with, in the case of an affiliate controlled by the entity, the number of shares and the percentage of any class of voting stock of that affiliate owned, directly or indirectly, by that entity, and, in the case of an affiliate which controls that entity, the number of shares and the percentage of any class of voting stock of that entity owned, directly or indirectly, by the affiliate.

(3) The Secretary of Agriculture shall have the authority to administer all rights-of-way granted or issued under authority of previous Acts with respect to lands under the jurisdiction of the Secretary of Agriculture, including rights-of-way granted or issued pursuant to authority given to the Secretary of the Interior by such previous Acts.

(1) Upon receipt of a written application pursuant to paragraph (2) of this subsection from an applicant meeting the requirements of this subsection, the Secretary of Agriculture shall issue a permanent easement, without a requirement for reimbursement, for a water system as described in subsection (a)(1) of this section, traversing Federal lands within the National Forest System (“National Forest Lands”), constructed and in operation or placed into operation prior to October 21, 1976, if—

(A) the traversed National Forest lands are in a State where the appropriation doctrine governs the ownership of water rights;

(B) at the time of submission of the application the water system is used solely for agricultural irrigation or livestock watering purposes;

(D) the originally constructed facilities comprising such system have been in substantially continuous operation without abandonment;

(E) the applicant has a valid existing right, established under applicable State law, for water to be conveyed by the water system;

(F) a recordable survey and other information concerning the location and characteristics of the system as necessary for proper management of National Forest lands is provided to the Secretary of Agriculture by the applicant for the easement; and

(G) the applicant submits such application on or before December 31, 1996.

(2)

(A) Nothing in this subsection shall be construed as affecting any grants made by any previous Act. To the extent any such previous grant of right-of-way is a valid existing right, it shall remain in full force and effect unless an owner thereof notifies the Secretary of Agriculture that such owner elects to have a water system on such right-of-way governed by the provisions of this subsection and submits a written application for issuance of an easement pursuant to this subsection, in which case upon the issuance of an easement pursuant to this subsection such previous grant shall be deemed to have been relinquished and shall terminate.

(B) Easements issued under the authority of this subsection shall be fully transferable with all existing conditions and without the imposition of fees or new conditions or stipulations at the time of transfer. The holder shall notify the Secretary of Agriculture within sixty days of any address change of the holder or change in ownership of the facilities.

(C) Easements issued under the authority of this subsection shall include all changes or modifications to the original facilities in existence as of October 21, 1976, the date of enactment of this Act.

(D) Any future extension or enlargement of facilities after October 21, 1976, shall require the issuance of a separate authorization, not authorized under this subsection.

(3)

(A) Except as otherwise provided in this subsection, the Secretary of Agriculture may terminate or suspend an easement issued pursuant to this subsection in accordance with the procedural and other provisions of section 1766 of this title. An easement issued pursuant to this subsection shall terminate if the water system for which such easement was issued is used for any purpose other than agricultural irrigation or livestock watering use. For purposes of subparagraph (D) of paragraph (1) of this subsection, non-use of a water system for agricultural irrigation or livestock watering purposes for any continuous five-year period shall constitute a rebuttable presumption of abandonment of the facilities comprising such system.

(B) Nothing in this subsection shall be deemed to be an assertion by the United States of any right or claim with regard to the reservation, acquisition, or use of water. Nothing in this subsection shall be deemed to confer on the Secretary of Agriculture any power or authority to regulate or control in any manner the appropriation, diversion, or use of water for any purpose (nor to diminish any such power or authority of such Secretary under applicable law) or to require the conveyance or transfer to the United States of any right or claim to the appropriation, diversion, or use of water.

(C) Except as otherwise provided in this subsection, all rights-of-way issued pursuant to this subsection are subject to all conditions and requirements of this Act.

(D) In the event a right-of-way issued pursuant to this subsection is allowed to deteriorate to the point of threatening persons or property and the holder of the right-of-way, after consultation with the Secretary of Agriculture, refuses to perform the repair and maintenance necessary to remove the threat to persons or property, the Secretary shall have the right to undertake such repair and maintenance on the right-of-way and to assess the holder for the costs of such repair and maintenance, regardless of whether the Secretary had required the holder to furnish a bond or other security pursuant to subsection (i) of this section.

(d) Rights-of-way on certain Federal lands

(Pub. L. 94–579, title V, § 501, Oct. 21, 1976, 90 Stat. 2776; Pub. L. 99–545, § 1(b), (c), Oct. 27, 1986, 100 Stat. 3047, 3048; Pub. L. 102–486, title XXIV, § 2401, Oct. 24, 1992, 106 Stat. 3096.)

§ 1761a. Streamlining the Forest Service process for consideration of communications facility location applications

(a) DefinitionsIn this section:

(1) Communications facilityThe term “communications facility” includes—

(A) any infrastructure, including any transmitting device, tower, or support structure, and any equipment, switches, wiring, cabling, power sources, shelters, or cabinets, associated with the licensed or permitted unlicensed wireless or wireline transmission of writings, signs, signals, data, images, pictures, and sounds of all kinds; and

(B) any antenna or apparatus that—

(i) is designed for the purpose of emitting radio frequency;

(ii) is designed to be operated, or is operating, from a fixed location pursuant to authorization by the Federal Communications Commission or is using duly authorized devices that do not require individual licenses; and

(iii) is added to a tower, building, or other structure.

(2) Communications site

(3) Communications use

(4) Communications use authorization

(5) Covered land

(6) Forest Service

(7) Organizational unitThe term “organizational unit” means, within the Forest Service—

(A) a regional office;

(B) the headquarters;

(D) a ranger district office.

(b) RegulationsNotwithstanding section 1455 of title 47 or section 606 of the Repack Airwaves Yielding Better Access for Users of Modern Services Act of 2018 (Public Law 115–141), not later than 1 year after December 20, 2018, the Secretary shall issue regulations—

(1) to streamline the process for considering applications to locate or modify communications facilities on covered land;

(2) to ensure, to the maximum extent practicable, that the process is uniform and standardized across the organizational units of the Forest Service; and

(3) to require that the applications described in paragraph (1) be considered and granted on a competitively neutral, technology neutral, and non-discriminatory basis.

(1) Procedures for the tracking of applications described in subsection (b)(1), including—

(A) identifying the number of applications—

(i) received;

(ii) approved; and

(iii) denied;

(B) in the case of an application that is denied, describing the reasons for the denial; and

(C) describing the amount of time between the receipt of an application and the issuance of a final decision on an application.

(2) Provision for minimum lease terms of not less than 15 years for leases with respect to the location of communications facilities on covered land.

(3) A structure of fees for—

(A) submitting an application described in subsection (b)(1), based on the cost to the Forest Service of considering such an application; and

(B) issuing communications use authorizations, based on the cost to the Forest Service of any maintenance or other activities required to be performed by the Forest Service as a result of the location or modification of the communications facility.

(4) Provision for prioritization or streamlining of the consideration of applications to locate or modify communications facilities on covered land in a previously disturbed right-of-way.

(d) Additional considerationsIn issuing regulations under subsection (b), the Secretary shall consider—

(1) how discrete reviews in considering an application described in subsection (b)(1) can be conducted simultaneously, rather than sequentially, by any organizational units of the Forest Service that must approve the location or modification; and

(2) how to eliminate overlapping requirements among the organizational units of the Forest Service with respect to the location or modification of a communications facility on covered land administered by those organizational units.

(e) Communication of streamlined process to organizational unitsThe Secretary shall, with respect to the regulations issued under subsection (b)—

(1) communicate the regulations to the organizational units of the Forest Service; and

(2) ensure that the organizational units of the Forest Service follow the regulations.

(f) Deposit and availability of fees

(1) Special account

(2) Requirements for fees collectedFees collected by the Forest Service under subsection (c)(3) shall be—

(A) collected only to the extent provided in advance in appropriations Acts;

(B) based on the costs described in subsection (c)(3); and

(C) competitively neutral, technology neutral, and nondiscriminatory with respect to other users of the communications site.

(3) Deposit of fees

(4) Availability of feesAmounts deposited in the special account for the Forest Service shall be available, to the extent and in such amounts as are provided in advance in appropriation Acts, to the Secretary to cover costs incurred by the Forest Service described in subsection (c)(3), including the following:

(A) Preparing needs assessments or other programmatic analyses necessary to designate communications sites and issue communications use authorizations.

(B) Developing management plans for communications sites.

(D) Obtaining or improving access to communications sites.

(5) No additional appropriations authorized

(g) Savings provisions

(1) Real property authorities

(2) Effect on other laws

(Pub. L. 115–334, title VIII, § 8705, Dec. 20, 2018,

§ 1762. Roads

(a) Authority to acquire, construct, and maintain; financing arrangements

(b) Recordation of copies of affected instruments

(d) Fund for user fees for delayed payment to grantor

(Pub. L. 94–579, title V, § 502, Oct. 21, 1976, 90 Stat. 2777.)

§ 1763. Right-of-way corridors; criteria and procedures applicable for designation

In order to minimize adverse environmental impacts and the proliferation of separate rights-of-way, the utilization of rights-of-way in common shall be required to the extent practical, and each right-of-way or permit shall reserve to the Secretary concerned the right to grant additional rights-of-way or permits for compatible uses on or adjacent to rights-of-way granted pursuant to this Act. In designating right-of-way corridors and in determining whether to require that rights-of-way be confined to them, the Secretary concerned shall take into consideration national and State land use policies, environmental quality, economic efficiency, national security, safety, and good engineering and technological practices. The Secretary concerned shall issue regulations containing the criteria and procedures he will use in designating such corridors. Any existing transportation and utility corridors may be designated as transportation and utility corridors pursuant to this subsection without further review.

(Pub. L. 94–579, title V, § 503, Oct. 21, 1976, 90 Stat. 2778.)

§ 1764. General requirements

(a) Boundary specifications; criteria; temporary use of additional lands

(b) Terms and conditions of right-of-way or permit

(d) Submission of plan of construction, operation, and rehabilitation by new project applicants; plan requirements

(e) Regulatory requirements for terms and conditions; revision and applicability of regulations

(f) Removal or use of mineral and vegetative materials

(g) Rental payments; amount, waiver, etc.

(h) Liability for damage or injury incurred by United States for use and occupancy of rights-of-way; indemnification of United States; no-fault liability; amount of damages

(1) The Secretary concerned shall promulgate regulations specifying the extent to which holders of rights-of-way under this subchapter shall be liable to the United States for damage or injury incurred by the United States caused by the use and occupancy of the rights-of-way. The regulations shall also specify the extent to which such holders shall indemnify or hold harmless the United States for liabilities, damages, or claims caused by their use and occupancy of the rights-of-way.

(2) Any regulation or stipulation imposing liability without fault shall include a maximum limitation on damages commensurate with the foreseeable risks or hazards presented. Any liability for damage or injury in excess of this amount shall be determined by ordinary rules of negligence.

(i) Bond or security requirements

(j) Criteria for grant, issue, or renewal of right-of-way

(Pub. L. 94–579, title V, § 504, Oct. 21, 1976, 90 Stat. 2778; Pub. L. 98–300, May 25, 1984, 98 Stat. 215; Pub. L. 99–545, § 2, Oct. 27, 1986, 100 Stat. 3048; Pub. L. 104–333, div. I, title X, § 1032(a), Nov. 12, 1996, 110 Stat. 4239.)

§ 1765. Terms and conditions

Each right-of-way shall contain—

(a) terms and conditions which will (i) carry out the purposes of this Act and rules and regulations issued thereunder; (ii) minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment; (iii) require compliance with applicable air and water quality standards established by or pursuant to applicable Federal or State law; and (iv) require compliance with State standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance of or for rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards; and

(b) such terms and conditions as the Secretary concerned deems necessary to (i) protect Federal property and economic interests; (ii) manage efficiently the lands which are subject to the right-of-way or adjacent thereto and protect the other lawful users of the lands adjacent to or traversed by such right-of-way; (iii) protect lives and property; (iv) protect the interests of individuals living in the general area traversed by the right-of-way who rely on the fish, wildlife, and other biotic resources of the area for subsistence purposes; (v) require location of the right-of-way along a route that will cause least damage to the environment, taking into consideration feasibility and other relevant factors; and (vi) otherwise protect the public interest in the lands traversed by the right-of-way or adjacent thereto.

(Pub. L. 94–579, title V, § 505, Oct. 21, 1976, 90 Stat. 2780.)

§ 1766. Suspension or termination; grounds; procedures applicable

Abandonment of a right-of-way or noncompliance with any provision of this subchapter condition of the right-of-way, or applicable rule or regulation of the Secretary concerned may be grounds for suspension or termination of the right-of-way if, after due notice to the holder of the right-of-way and, and 1

1 So in original.

with respect to easements, an appropriate administrative proceeding pursuant to section 554 of title 5, the Secretary concerned determines that any such ground exists and that suspension or termination is justified. No administrative proceeding shall be required where the right-of-way by its terms provides that it terminates on the occurrence of a fixed or agreed-upon condition, event, or time. If the Secretary concerned determines that an immediate temporary suspension of activities within a right-of-way for violation of its terms and conditions is necessary to protect public health or safety or the environment, he may abate such activities prior to an administrative proceeding. Prior to commencing any proceeding to suspend or terminate a right-of-way the Secretary concerned shall give written notice to the holder of the grounds for such action and shall give the holder a reasonable time to resume use of the right-of-way or to comply with this subchapter condition, rule, or regulation as the case may be. Failure of the holder of the right-of-way to use the right-of-way for the purpose for which it was granted, issued, or renewed, for any continuous five-year period, shall constitute a rebuttable presumption of abandonment of the right-of-way except that where the failure of the holder to use the right-of-way for the purpose for which it was granted, issued, or renewed for any continuous five-year period is due to circumstances not within the holder’s control, the Secretary concerned is not required to commence proceedings to suspend or terminate the right-of-way.

(Pub. L. 94–579, title V, § 506, Oct. 21, 1976, 90 Stat. 2780.)

§ 1767. Rights-of-way for Federal departments and agencies

(a) The Secretary concerned may provide under applicable provisions of this subchapter for the use of any department or agency of the United States a right-of-way over, upon, under or through the land administered by him, subject to such terms and conditions as he may impose.

(b) Where a right-of-way has been reserved for the use of any department or agency of the United States, the Secretary shall take no action to terminate, or otherwise limit, that use without the consent of the head of such department or agency.

(Pub. L. 94–579, title V, § 507, Oct. 21, 1976, 90 Stat. 2781.)

§ 1768. Conveyance of lands covered by right-of-way; terms and conditions

If under applicable law the Secretary concerned decides to transfer out of Federal ownership any lands covered in whole or in part by a right-of-way, including a right-of-way granted under the Act of November 16, 1973 (87 Stat. 576; 30 U.S.C. 185), the lands may be conveyed subject to the right-of-way; however, if the Secretary concerned determines that retention of Federal control over the right-of-way is necessary to assure that the purposes of this subchapter will be carried out, the terms and conditions of the right-of-way complied with, or the lands protected, he shall (a) reserve to the United States that portion of the lands which lies within the boundaries of the right-of-way, or (b) convey the lands, including that portion within the boundaries of the right-of-way, subject to the right-of-way and reserving to the United States the right to enforce all or any of the terms and conditions of the right-of-way, including the right to renew it or extend it upon its termination and to collect rents.

(Pub. L. 94–579, title V, § 508, Oct. 21, 1976, 90 Stat. 2781.)

§ 1769. Existing right-of-way or right-of-use unaffected; exceptions; rights-of-way for railroad and appurtenant communication facilities; applicability of existing terms and conditions

(a) Nothing in this subchapter shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted. However, with the consent of the holder thereof, the Secretary concerned may cancel such a right-of-way or right-of-use and in its stead issue a right-of-way pursuant to the provisions of this subchapter.

(b) When the Secretary concerned issues a right-of-way under this subchapter for a railroad and appurtenant communication facilities in connection with a realinement of a railroad on lands under his jurisdiction by virtue of a right-of-way granted by the United States, he may, when he considers it to be in the public interest and the lands involved are not within an incorporated community and are of approximately equal value, notwithstanding the provisions of this subchapter, provide in the new right-of-way the same terms and conditions as applied to the portion of the existing right-of-way relinquished to the United States with respect to the payment of annual rental, duration of the right-of-way, and the nature of the interest in lands granted. The Secretary concerned or his delegate shall take final action upon all applications for the grant, issue, or renewal of rights-of-way under subsection (b) of this section no later than six months after receipt from the applicant of all information required from the applicant by this subchapter.

(Pub. L. 94–579, title V, § 509, Oct. 21, 1976, 90 Stat. 2781.)

§ 1770. Applicability of provisions to other Federal laws

(a) Right-of-way

(b) Highway use

(1) Nothing in this subchapter shall be construed as exempting any holder of a right-of-way issued under this subchapter from any provision of the antitrust laws of the United States.

(2) For the purposes of this subsection, the term “antitrust laws” includes the Act of July 2, 1890 (26 Stat.1

1 So in original. Probably should be followed by “209”.

15 U.S.C. 1 et seq.); the Act of October 15, 1914 (38 Stat. 730, 15 U.S.C. 12 et seq.); the Federal Trade Commission Act (38 Stat. 717; 15 U.S.C. 41 et seq.); and sections 73 and 74 of the Act of August 27, 1894 [15 U.S.C. 8, 9].

(Pub. L. 94–579, title V, § 510, Oct. 21, 1976, 90 Stat. 2782.)

§ 1771. Coordination of applications

Applicants before Federal departments and agencies other than the Department of the Interior or Agriculture seeking a license, certificate, or other authority for a project which involve a right-of-way over, upon, under, or through public land or National Forest System lands must simultaneously apply to the Secretary concerned for the appropriate authority to use public lands or National Forest System lands and submit to the Secretary concerned all information furnished to the other Federal department or agency.

(Pub. L. 94–579, title V, § 511, Oct. 21, 1976, 90 Stat. 2782.)

§ 1772. Vegetation managment,1

1 So in original. Probably should be “management,”.

facility inspection, and operation and maintenance relating to electric transmission and distribution facility rights of way

(a) DefinitionsIn this section:

(1) Hazard treeThe term “hazard tree” means any tree or part thereof (whether located inside or outside a right-of-way) that has been designated, prior to tree failure, by a certified or licensed arborist or forester under the supervision of the Secretary concerned or the owner or operator of a transmission or distribution facility to be—

(A) dead, likely to die within the routine vegetation management cycle, or likely to fail within the routine vegetation management cycle; and

(B) if the tree or part of the tree failed, likely to—

(i) cause substantial damage or disruption to a transmission or distribution facility; or

(ii) come within 10 feet of an electric power line.

(2) Owner; operator

(3) PlanThe term “plan” means a vegetation management, facility inspection, and operation and maintenance plan that—

(A) is prepared by the owner or operator of 1 or more electric transmission or distribution facilities to cover 1 or more electric transmission and distribution rights-of-way; and

(B) provides for the long-term, cost-effective, efficient, and timely management of facilities and vegetation within the width of the right-of-way and abutting Federal land, including hazard trees, to enhance electric reliability, promote public safety, and avoid fire hazards.

(4) Secretary concernedThe term “Secretary concerned” means—

(A) the Secretary, with respect to public lands; and

(B) the Secretary of Agriculture, with respect to National Forest System land.

(b) Guidance

(1) In general

(2) Limitation

(3) ConsiderationsThe guidance issued under paragraph (1) shall take into account—

(A) all applicable law, including fire safety and electric system reliability requirements (including reliability standards established by the Electric Reliability Organization under section 824o of title 16); and

(B) the Memorandum of Understanding on Vegetation Management for Powerline Rights-of-Way between the Edison Electric Institute, Utility Arborist Association, the Department of the Interior, the Department of Agriculture, and the Environmental Protection Agency signed in 2016.

(4) RequirementsThe guidance issued under paragraph (1) shall—

(A) be developed in consultation with the owners of transmission and distribution facilities that hold rights-of-way;

(B) seek to minimize the need for case-by-case approvals for—

(i) routine vegetation management, facility inspection, and operation and maintenance activities; and

(ii) utility vegetation management activities that are necessary to control hazard trees; and

(C) provide for prompt and timely review of requests to conduct vegetation management activities that require approval of the Secretary concerned, especially activities requiring expedited or immediate action.

(1) Development and submission

(2) ERO standards

(3) Plan requirementsA plan developed under paragraph (1) shall—

(A) identify the applicable transmission or distribution facilities to be maintained;

(B) take into account operations and maintenance plans for the applicable transmission or distribution line;

(C) describe the vegetation management, inspection, and operation and maintenance methods that may be used to comply with all applicable law, including fire safety requirements and reliability standards established by the Electric Reliability Organization;

(D) include schedules for—

(i) the applicable owner or operator to notify the Secretary concerned about routine and major maintenance;

(ii) the applicable owner or operator to request approval from the Secretary concerned about undertaking routine and major maintenance; and

(iii) the Secretary concerned to respond to a request by an owner or operator under clause (ii); and

(E) describe processes for—

(i) identifying changes in conditions; and

(ii) modifying the approved plan, if necessary.

(4) Review and approval process

(A) In generalThe Secretary concerned shall jointly develop a consolidated and coordinated process for the review and approval of plans submitted under paragraph (1) that—

(i) includes timelines and benchmarks for—(I) the submission of agency comments on the plans and schedules for final decision; and(II) the timely review of modifications of the plans in cases in which modifications are necessary;

(ii) is consistent with applicable law; and 1

1 So in original.

(iii) includes a process for modifications to a plan in a prompt manner if changed conditions necessitate a modification to a plan; and

(iv) ensures, to the maximum extent practicable, a prompt review and approval process not to exceed 120 days.

(B) Plan modificationUpon reasonable advance notice to an owner or operator of an electric transmission or distribution facility of any changed conditions that warrant a modification to a plan, the Secretary concerned shall—

(i) provide an opportunity for the owner or operator to submit a proposed plan modification, consistent with the process described under subparagraph (A)(iii), to address the changed condition identified by the Secretary concerned;

(ii) consider the proposed plan modification consistent with the process described under paragraph (4)(A); and

(iii) allow the owner or operator to continue to implement any element of the approved plan that does not directly and adversely affect the condition precipitating the need for modification.

(5) Categories of actions not requiring environmental analysis

(d) Certain owners and operators

(1) In general

(2) Minimum requirementsThe Secretary concerned shall ensure that the minimum requirements for an agreement under paragraph (1)—

(A) reflect the relative financial resources of the applicable owner or operator compared to other owners or operators of an electric transmission or distribution facility;

(B) include schedules as described in subsection (c)(3)(D);

(D) comply with applicable law.

(e) Emergency conditionsIf vegetation or hazard trees have contacted or present an imminent danger of contacting an electric transmission or distribution line from within or adjacent to an electric transmission or distribution right-of-way, the owner or operator of the electric transmission or distribution lines—

(1) may prune or remove the vegetation or hazard tree—

(A) to avoid the disruption of electric service; and

(B) to eliminate immediate fire and safety hazards; and

(2) shall notify the appropriate local agent of the Secretary concerned not later than 1 day after the date of the response to emergency conditions.

(f) Activities that require approval

(1) In general

(2) Requirement to respond

(3) Authorized activitiesThe owner or operator of an electric transmission or distribution facility may conduct vegetation management activities that require approval of the Secretary concerned in accordance with a plan approved under subsection (c) or an agreement entered into under subsection (d) without the approval of the Secretary concerned if—

(A) the owner or operator submitted a request to the Secretary concerned in accordance with the applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d);

(B) the vegetation management activities, including the removal of hazard trees, proposed in the request under subparagraph (A) are in accordance with a plan approved under subsection (c) or an agreement entered into under subsection (d); and

(C) the Secretary concerned fails to respond to the request under subparagraph (A) in accordance with the applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d).

(g) Liability

(1) In generalThe Secretary concerned shall not impose strict liability for damages or injury resulting from—

(A) the Secretary concerned unreasonably withholding or delaying—

(i) approval of a plan under subsection (c); or

(ii) entrance into an agreement under subsection (d); or

(B) the Secretary concerned unreasonably failing to adhere to an applicable schedule in a plan approved under subsection (c) or an agreement entered into under subsection (d).

(2) Damages

(3) Rule of construction

(h) Reporting requirement

(1) Activities that require approval

(2) Liability

(i) Training and guidanceIn consultation with the electric utility industry, the Secretary concerned is encouraged to develop a program to train personnel of the Department of the Interior and the Forest Service involved in vegetation management decisions relating to electric transmission and distribution facilities to ensure that the personnel—

(1) understand electric system reliability requirements as the requirements relate to vegetation management of transmission and distribution rights-of-way on Federal land, including reliability standards established by the Electric Reliability Organization and fire safety requirements;

(2) assist owners and operators of electric transmission and distribution facilities in complying with applicable electric reliability and fire safety requirements;

(3) encourage and assist willing owners and operators of electric transmission and distribution facilities to incorporate on a voluntary basis vegetation management practices to enhance habitats and forage for pollinators and for other wildlife if the practices are compatible with the integrated vegetation management practices necessary for reliability and safety; and

(4) understand how existing and emerging unmanned technologies can help electric utilities, the Federal Government, State and local governments, and private landowners—

(A) to more efficiently identify vegetation management needs;

(B) to reduce the risk of wildfires; and

(j) ImplementationThe Secretary concerned shall—

(1) not later than 1 year after March 23, 2018, propose regulations, or amend existing regulations, to implement this section; and

(2) not later than 2 years after March 23, 2018, finalize regulations, or amend existing regulations, to implement this section.

(k) Existing vegetation management, facility inspection, and operation and maintenance plans

(Pub. L. 94–579, title V, § 512, as added Pub. L. 115–141, div. O, title II, § 211(a), Mar. 23, 2018, 132 Stat. 1068.)