Steptoe & Johnson PLLC: Power Line Rights of Way - FERC Approves New Vegetation Management Rules

By Kurt L. Krieger and Nora C. Price 

On March 21, 2013, the Federal Energy Regulatory Commission ("FERC") approved new rules for managing vegetation along power line rights of way.    The purpose of the approved modifications to existing electric reliability standards is to ensure the continued reliable operation of the nation's electric grid, or "bulk-power system."  A recurring cause in many blackouts has been vegetation-related outages.  The revised standard is intended to prevent the risk of vegetation-related outages that could lead to a sustained outage, but it is not designed to address severe weather events and natural disasters. 

FERC's final rule (Order No. 777) approved a proposal submitted to FERC by the North American Electric Reliability Corporation ("NERC") to revise its existing vegetation management reliability standard (Reliability Standard FAC-003-2 [Transmission Vegetation Management]), by expanding the applicability of the existing standard,  incorporating a minimum annual inspection cycle requirement, and incorporating new vegetation management clearance distances.  The final rule takes effect 60 days after publication in the Federal Register.  

            The following are a few of the key features of or statements in FERC Order No. 777: 

• Like the existing standard, the revised one applies to all overhead transmission lines operated at or above 200 kV, but unlike the existing standard, it explicitly applies to any lower voltage overhead transmission line that is either an element of an Interconnection Reliability Operating Limit ("IROL") or an element of a Major WECC Transfer Path.
• The revised standard makesexplicita transmission owner'sobligationto prevent an encroachment into the minimum vegetation clearance distance ("MVCD") for a line subject to the standard, regardless of whether that encroachment results in a sustained outage or fault (but, subject to certain exemptions for conditions or scenarios outside of the transmission owner's control).
• However, FERC directs NERC to conduct or contract testing to develop empirical data regarding the flashover distances between conductors and vegetation to assess the appropriateness and accuracy of the MVCD values in the revised standard, and requires FERC to submit a plan for accomplishing this study within 45 days of the effective date of this final rule.
• FERC agrees with NERC's statement: "prudent vegetation maintenance practices dictate that substantially greater distances [than the applicable MVCD] will be achieved at time of vegetation maintenance." (At P 63)
• "This requirement does not apply to circumstances that are beyond the control of a Transmission Owner subject to this reliability standard, including natural disasters such as earthquakes, fires, tornados, hurricanes, landslides, wind shear, fresh gale, major storms as defined either by the Transmission Owner or an applicable regulatory body, ice storms, and floods; human or animal activity such as logging, animal severing tree, vehicle contact with tree, or installation, removal, or digging of vegetation. Nothing in this footnote should be construed to limit the Transmission Owner's right to exercise its full legal rights on the ROW." (At P 82)
• "[S]hould an encroachment occur as a result of activity by a transmission owner's employee or contractor, a case-by-case analysis is necessary to determine responsibility. . . .[T]ransmission owners may be held liable for the actions of an employee or contractor, while also acknowledging that unpredictable events may occur that are reasonably outside the control of the transmission owner. (At P 84)
• The MVCDs are incorporated into the text of the standard, instead of referencing clearance distances from an outside reference.
• A transmission owner is nowrequiredto annually inspect all transmission lines subject to the standard with no more than 18 months between inspections on the same right-of-way.
• A transmission ownermustcomplete 100 percent of its annual vegetation work plan, allowing for documented changes to a work plan as long they do not allow encroachment into the MVCD.
• Adds new or revised definitions associated with the revised standard: the definition of "Right-of-Way" and "Vegetation Inspection," as well as the addition of the term "Minimum Vegetation Clearance Distance (MVCD)"
• "Right-of-way" is defined as: "The corridor of land under a transmission line(s) needed to operate the line(s). The width of the corridor is established by engineering or construction standards as documented in either construction documents, pre-2007 vegetation maintenance records, or by the blowout standard in effect when the line was built. The ROW width in no case exceeds the Transmission Owner's legal rights but may be less based on the aforementioned criteria." (At P 103)
• FERC states: "We agree with NERC that an encroachment due to vegetation growth into the MVCD that results in a sustained outage would violate Requirements R1 and R2 regardless of the defined right-of-way." (At P 111)
• And: "We agree with NERC that "in all cases" the width of the right-of-way must meet engineering or construction standards and cannot be arbitrarily set by the transmission owner." (At P 112)
• "[T]he fall-in of danger tree from outside the defined right-of-way but within a transmission owner's control would likely merit examination to determine whether the transmission owner is properly conducting the annual Vegetation Inspection . . . and performing the annual work plan. . . . [I]t is not sufficient for a transmission owner simply to demonstrate that it identifies danger trees and has a program for managing the risk of fall-in. Rather, a transmission owner must have a well-managed, danger tree management program as carried out through Requirements R6 and R7." (At P 119)
• Directs NERC to submit a modification assigning a "high" Violation Risk Factor for Requirement R2, which pertains to preventing vegetation encroachments into the MVCD of transmission lines operated at 200 kV and above (but which are not part of an IROL or a Major WECC Transfer Path).
• "As we explained in the NOPR, transmission lines that are not an element of an IROL or Major WECC Transfer Path have contributed to major cascading outages. This fact supports a "high" Violation Risk Factor designation for Requirement R2. Moreover, our Violation Risk Factor guidelines, which require, among other things, consistency within a Reliability Standard (guideline 2) and consistency between requirements that have similar reliability objectives (guideline 3), also support modifying the Violation Risk Factor assigned to Requirement R2 from medium to high." (At P 76)
• Directs NERC to develop a means to assure that IROLs are communicated to transmission owners.
• The revised standard does not contain a training requirement provision; instead, FERC suggests those desiring development of one may develop a Standards Authorization Request ("SAR") and submit it to NERC.

The complete text of Reliability Standard FAC-003-2 is available on the Commission's eLibrary document retrieval system in Docket No. RM12-4-000 and is posted on NERC's web site available here: http://www.nerc.com.%20/

A copy of FERC Order No. 777 is available here.

Kurt Krieger focuses his practice in the area of energy law. He has experience representing interstate natural gas pipeline companies, midstream companies, and public utilities before the Federal Energy Regulatory Commission (FERC), and state and commonwealth public service (or utility) commissions. Norrie Price focuses her practice in the defense of complex civil litigation. She has litigated numerous cases on behalf of energy companies including claims for injunctive relief to prevent the obstruction of or interference with utility rights of way. 

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