Routine Operations and Maintenance to Reduce Fire Risk on Electric Utility Rights-of-Way and Required Fire Prevention and Control Stipulations

Both FLPMA and BLM regulations use the term “operating plans”. The more common term is operations and maintenance plan (O&M Plan) which is used throughout this PIM to mean both “operating plans” and “agreements” as defined at 43 CFR 2805.21 (agreements are with smaller electric utilities (43 CFR 2805.12(g)). Electric transmission and distribution ROW holders have the authority to conduct routine O&M activities within their ROW, 43 CFR 2805.14(a) and (d). ROW holders must do everything reasonable to prevent and suppress wildfires on or adjacent to the ROW area, 43 CFR 2805.12(a)(4), and must comply with project-specific terms, conditions, and stipulations that require the holder to control or prevent damage to property, and public health and safety (43 CFR 2805.12(a)(8)(iii)). 

In taking such actions, ROW holders are responsible for ensuring their activities comply, to the maximum extent practicable, with all applicable state and Federal laws and 43 CFR 2805.12(a)(1).

Section 512 of FLPMA, as amended, acknowledges that it may be necessary to address conditions outside a ROW to prevent wildfire (43 CFR 2805.22). The Standard Stipulations included in this policy were collaboratively developed between the BLM Fire and Aviation Directorate; the Energy, Minerals and Realty Management Directorate; and State, District, and Field Office staff. These stipulations are to be used as provided in this PIM and are not to be modified in any way, except as specified in this IM.

Routine (Non-Emergency) O&M: Routine O&M activities, as defined in 43 CFR 2801.5(b), include repair or replacement of components and hardware due to ordinary wear and tear, scheduled replacement of in-kind poles and towers, ground patrols, and inspections. The BLM requires ROW holders to provide the BLM Authorized Officer with written or oral notification a minimum of one day prior to initiating routine O&M activities. With the benefit of this notification requirement, the BLM Authorized Officer can ensure activities are compliant with laws and regulations and will not conflict with other land uses. Notification also provides the BLM Authorized Officer with information that allows them to better respond to inquiries from the public. Oral notifications received will be documented in the official casefile using the attached Conversation Record template. The BLM Field Office will share the notification with the Fire Management Officer for awareness.

Actions already authorized in a grant or approved Operating Plan (O&M Plan) or Agreement, including those required under 43 CFR 2805.12(a)(4) or 43 CFR 2805.12(a)(8)(iii), or authorized under 43 CFR 2805.14(d), do not require a notice to proceed or other form of prior approval but do require a notification to the appropriate BLM Authorized Officer. In conducting all O&M activities, holders are bound by terms and conditions of their ROW grant and the regulations at 43 CFR 2805.12. Holders are also subject, in all cases, to the liability provisions at 43 CFR 2807.12. 

Non-routine O&M activities include realigning, upgrading, rebuilding, recontouring, or replacing a segment of or an entire powerline facility (e.g., change to higher voltage, changing from wood to metal poles, significantly increasing the pole height, adding additional lines, or change from above ground to buried). When non-routine activities are proposed, the BLM requires the holder to receive prior written approval. In certain circumstances, after further review and approval by the Authorized Officer, non-routine activities may be handled under established approaches as defined in the approved O&M Plan or Agreement. In some cases, an amendment to the authorization may be needed, in which case the BLM should ensure the holder submits an application to amend the authorization on Form SF-299. BLM approval must comply with the National Environmental Policy Act (NEPA) and other applicable law, which may require additional environmental analysis and studies or surveys. 

O&M Plans or Agreements: Section 512 of FLPMA and the BLM’s implementing regulations at 43 CFR 2805.21 provide for O&M Plans and Agreements to address vegetation management.  

An O&M Plan or Agreement is required for all new, renewed, and amended electric transmission and distribution ROW applications. They may also be submitted on a voluntary basis by existing holders of electric transmission and distribution ROWs and holders of other types of ROWs. Holders subject to mandatory reliability standards established by the appropriate Electric Reliability Office (ERO) or superseding standards may incorporate them as part of the O&M Plan or Agreement. 

An O&M Plan or Agreement must identify and include: 

1. the applicable transmission or distribution facilities to be maintained,  

2. the holder’s O&M plans for the ROW,  

3. plans for vegetation management and inspection,  

4. fire prevention plans, 

5. the holder’s plans for compliance with applicable laws, such as fire safety requirements and reliability standards established by the ERO, 

6. schedules for the holder to notify the BLM, and to request approval from the BLM; and for the BLM to respond to a request by a holder to undertake routine and major O&M, 

7. an explanation of how the holder will identify changes in conditions,  

8. the process for modifying the approved Operating Plan or Agreement, and 

9. the holder’s plan for disposing of cut trees and branches and for the sale of forest products. 

As provided in Section 512(c)(4)(A)(iv) of FLPMA and 43 CFR 2805.21(d), the BLM will, to the extent practicable, review and decide whether to approve an O&M Plan or Agreement within 120 days after submission. The BLM may notify a holder that changed conditions warrant a modification to an Operating Plan or Agreement and request the holder submit a modification to address the changed conditions. As provided in Section 512(c)(4)(B)(ii) of FLPMA and 43 CFR 2805.21(e)(3), the BLM will, to the extent practicable, review and approve modifications in the same 120-day timeframe that applies to the initial submission of an O&M Plan or Agreement. The holder may continue to implement any element of an approved O&M Plan or Agreement that does not directly and adversely affect the condition precipitating the need for modification. 

As provided in Section 512(d)(1) of FLPMA and 43 CFR 2805.21(f)-(g), holders of an electric transmission or distribution ROW are eligible to enter into an Agreement with the BLM in lieu of an O&M Plan if they are not subject to the mandatory reliability standards established by the ERO or if they sold no more than 1,000,000 megawatt hours of electric energy for purposes other than resale during each of the 3 calendar years prior to submitting a request to enter into an Agreement to the BLM. 

In addition to the regulatory requirements listed above, all O&M Plans should include a full description of routine O&M activities.  The BLM offices will work with the utility company(s) to develop a class structure for those activities based on the potential wildfire threats in their territory.  For example, Class I activities would be minor impact activities such as patrols and inspections, or clearing vegetation from around poles, and notification and approval is provided for these activities at annual meetings between the utility company(s) and BLM Field Offices. Class II activities would be those with the potential to cause adverse environmental impacts, but for which those impacts can be avoided or sufficiently minimized through the application of agreed upon best management practices. Examples of Class II activities would include pole replacement inside the ROW boundary, non-emergency vegetation management, and access road grading. Class III activities should be activities not identified in the O&M Plan and that require further review and approvals before work can proceed. Class III activities may be identified as future Class I or Class II at the Authorized Officer’s discretion after appropriate reviews. Field Offices may identify and address office-specific issues, such as special designations, sensitive resources, and specific land use plan requirements, in an appendix to the O&M Plan.  

All O&M Plans should also include a communication structure for when and how the Utilities are required to notify or request approval from the BLM and how the BLM will respond to those requests, depending on the class the activity falls into.  For example, under the Master Operations and Maintenance and Consolidation (MOMAC) pilot project described below, for a Class II activity, notification and approval are provided through the submission of a work request package five days prior to the activity taking place.  

Access: If a ROW holder identifies a need for new access or improvements to existing access that result in a substantial change in use or location to their existing ROW grant and submits a ROW amendment application to the BLM, the BLM will complete the appropriate NEPA analysis for a short- or long-term ROW that accommodates the new or improved access. The application must be approved, with or without modification, before the BLM authorizes any ground-disturbing activities. The BLM Authorized Officer should direct that disturbed areas not needed for the purposes of the authorization be reclaimed or restored as provided by the ROW terms and conditions unless they determine that reclamation or restoration is not necessary or appropriate.  

When the BLM receives a proposal from a ROW holder for cross country travel or use of a legacy route (the BLM will work with the utilities to identify permanent routes upon ROW amendment or renewal) or an existing road that is designated as limited or closed to access a ROW, and if a Travel Management Plan is in place, the BLM Authorized Officer may approve the proposed access by issuing a Travel Variance. The BLM should issue such Variances within 30 days of a request. Areas containing sensitive resources should be avoided for cross country travel and areas that have been previously disturbed or are degraded may generally be preferred. The BLM Authorized Officer may request in the Travel Variance that the ROW holder propose a different route, provide a Reclamation Plan, or include special stipulations to protect a known resource or for reclamation. If no Travel Management Plan is in place or if the proposed cross-country travel would use an existing road or legacy route without the need for additional ground disturbance, the BLM may allow the use without any additional authorization. A legacy route is a route that was used previously to access the ROW but was not covered in a travel planning effort or ROW. The BLM will work with ROW holders to identify existing legacy routes in the authorization upon renewal or in response to requests, 43 CFR 2805.11(b).  

Temporary Staging Areas: If a ROW holder proposes a temporary staging area for materials and equipment that does not require ground disturbance (i.e., blading or clearing of vegetation), the BLM Authorized Officer will determine on a case-by-case basis if the proposed staging activities constitute routine O&M, or if a short-term ROW or authorization amendment is needed. Factors to consider may include whether the temporary staging area is proposed on lands carrying a special designation or where sensitive resources are present and could be adversely affected.  

Vegetation: Vegetation management methods (i.e., brushing, trimming, felling hazard trees) may lead to fuel loading in the vicinity of the ROW. Timely and proper removal or treatment of the vegetation fuel load is an important element of reducing fire risk on public lands. Vegetation management for electric transmission and distribution ROWs, including to address hazard trees, is subject to Section 512 of FLPMA and the regulations at 43 CFR part 2800. In most situations, FLPMA requires that the United States receive fair market value for vegetative resources; a vegetative sale contract (forms 5450-003, 5450-004 or 5450-024) may need to be prepared before or after work has been completed if the treatment results in marketable timber being cut. 

Emergency O&M Activities: There are three types of emergencies: declared emergencies (e.g., a flood or earthquake emergency situation declared by a State Governor), situational emergencies (e.g., a ROW holder responding to a facility pole that has been struck by a vehicle and started a wildfire), and imminent danger. If a hazard tree or other vegetation has contacted or presents an imminent danger of contacting an electric transmission or distribution line from within or adjacent to an electric transmission or distribution ROW, the ROW holder may prune or remove the hazard tree or other vegetation to avoid the disruption of electric service or to eliminate immediate fire and safety hazards. As provided by 43 CFR 2805.22(a)(2), the holder will notify the BLM Authorized Officer not later than 1 day after the date of any action taken to respond to emergency conditions.  

Standard fire stipulation 7, on Attachment 5, will be used in all new and amended electric utility rights-of-way authorized. For existing authorizations, the BLM will encourage the utility company to include similar language to stipulation 7 in documentation when submitting an O&M Plan or Agreement for approval. 

The BLM Authorized Officer may direct the reclamation of all temporary construction or improvements involved in responding to emergency conditions. Post-emergency restoration should be addressed through the ROW O&M Plan. 

Prescribed Fire: The BLM Authorized Officer may approve proposals to conduct prescribed fire operations after considering the feasibility and safety of the proposed activities, following all BLM policies and procedures for using prescribed fire on public land, and with concurrence by the District or Regional Fire Management Officer.  All holder-requested prescribed fire operations will be documented in the ROW administrative record.  

Fire Communication: If the BLM determines that a ROW holder is responsible for causing a wildfire, that fire trespass and the current disposition of the fire trespass will be documented in the ROW administrative record. Each BLM State Office will establish a process for communicating any wildfire-related activities associated with a ROW to the Fire Management Officer, BLM Authorized Officer, and Realty Specialist for documentation in the ROW administrative record. An example form for documenting wildfire-related activities is attached and may be filled out by the District Fire Trespass Coordinator and provided to the Realty Specialist for documentation. Alternatively, the District Fire Trespass Coordinator may provide a copy of the Case Summary from the Fire Trespass Case Management System.  

Standard Fire Prevention and Control Stipulations: The standard fire prevention and control stipulations in Attachment 5 must be included in electric transmission and distribution ROW grants. Stipulations 4 and 5, which concern strict liability, should only be included if the BLM specifically finds that the facilities or activities that the ROW will authorize present a foreseeable hazard or risk from fire or other damage. If such a risk is identified, the strict liability stipulation will be included in the authorizing grant.  

These stipulations identify and impose appropriate fire prevention and control measures, consistent with the general obligation imposed on holders by 43 CFR 2805.12(a)(4) to “do everything reasonable to prevent and suppress wildfires on or adjacent to their ROW,” and with other mandatory terms and conditions imposed by 43 CFR 2805.12. The BLM Authorized Officer’s immediate supervisor must concur with any decision to include an additional stipulation, omit a standard stipulation, or deviate from the standard stipulation language with regard to the stipulations in Attachment 5, after coordination with the Headquarters Rights-of-Way Branch and the Solicitor’s Office.  

Master Operations and Maintenance and Consolidation (MOMAC): The MOMAC pilot project was an effort to streamline the management of electric transmission and distribution ROWs on BLM-managed public lands. This project began in the Bakersfield Field Office and is now being replicated and implemented throughout all BLM California Field Offices with electric transmission and distribution ROWs. The project was developed in consultation with Pacific Gas & Electric and Southern California Edison.  

• The MOMAC pilot was initiated in response to applications from the Utilities to renew, amend, and consolidate their existing electric transmission and distribution ROW grants on BLM-administered lands. In conjunction with those applications, the Utilities and the BLM developed a Master O&M Plan outline that would apply to all facilities subject to the Utilities’ applications. The existing grants in each Field Office are being consolidated, where feasible, into one Field Office-wide distribution and one Field Office-wide transmission ROW. The Master O&M Plan will apply to the consolidated ROW grant.   

The BLM offices will work with utility company(s) to determine if a similar approach is warranted, and if so, work with the utilities to develop a Master O&M plan covering all lines within the consolidated grant.  The consolidation of the existing grants will include the completion of any required NEPA, NHPA, ESA, Tribal consultation, or other processes. 

• Reference Attachment 2 – Master O&M Plan Outline (based on MOMAC Plan) that can be used by BLM offices in other states for their utility customers. The MOMAC Plan use the activity class structure described above. 

• Use is not mandatory but is recommended to streamline similar projects. 

• Additional templates and resources will be distributed in the future. 

• The Outline provides the structure for development of a project similar to MOMAC and includes a place for the FO specific appendices.