Bill Text: NJ S1787 | 2022-2023 | Regular Session | Introduced
Bill Title: "Vegetation Management Response Act"; concerns vegetation management related to electric public utility infrastructure.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2022-02-28 - Introduced in the Senate, Referred to Senate Economic Growth Committee [S1787 Detail]
Download: New_Jersey-2022-S1787-Introduced.html
Sponsored by:
Senator STEVEN V. OROHO
District 24 (Morris, Sussex and Warren)
Senator PAUL A. SARLO
District 36 (Bergen and Passaic)
SYNOPSIS
"Vegetation Management Response Act"; concerns vegetation management related to electric public utility infrastructure.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning vegetation management related to electric utility infrastructure, supplementing Title 48 of the Revised Statutes, and amending various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) Sections 1 through 4, 10, and 11 of this act shall be known and may be cited as the "Vegetation Management Response Act."
2. (New section) a. The Legislature finds and declares that:
(1) Unprecedented damage was inflicted on the State and its citizens by Superstorm Sandy, Hurricane Irene, the June 2012 Derecho, and the October 2011 snow storm.
(2) Estimated damage from these storms includes approximately 11,400 downed or damaged utility poles, 155,000 downed trees, 60 flooded substations, and six million customer outages.
(3) Superstorm Sandy alone led to the loss of approximately 116 overhead electric transmission lines and 117,000 trees and damage to over 71 percent of all electric distribution circuits and approximately 5,000 overhead and pad mounted electric transformers. The destruction caused by Superstorm Sandy required assistance from more than 20,000 out-of-State electric public utility workers.
(4) The March 2018 nor'easters left hundreds of thousands of New Jersey residents and businesses without power and, as a result, the Board of Public Utilities ordered the State's four electric public utilities to undertake additional efforts to better prepare electric public utilities for any major weather event in the future.
(5) On August 4, 2020, the effects of Tropical Storm Isaias left more than 1.4 million homes and businesses without power and some power restorations took up to a week after the tropical storm quickly moved across the State. Two of New Jersey's three electric public utilities ranked the tropical storm as one of the top five storms of all time in the State in terms of destruction and power outages.
b. The Legislature therefore determines that it is necessary to authorize electric public utilities to maintain, remove, and replace hazard vegetation to prevent power disruptions and preserve the uninterrupted transmission and distribution of electric light, heat, and power in this State.
3. (New section) As used in sections 1 through 4, 10, and 11 of P.L. , c. (C. ) (pending before the Legislature as this bill):
"ANSI" means the American National Standards Institute.
"Board" means the Board of Public Utilities or any successor agency.
"Distribution line" means a wire, line, pole, and other structure and facility which carries electric light, heat, or power from an electric public utility substation to customers, but not including a service line to an individual customer.
"Electric public utility" or "utility" means a public utility, as that term is defined in R.S.48:2-13, that is under the jurisdiction of the Board of Public Utilities, is investor-owned, and transmits and distributes electric light, heat, or power to end users within this State.
"Hazard vegetation" means a tree, shrub, plant, or any other vegetation growing in the electric public utility's right-of-way and the electric transmission and distribution system, but not including a service line to an individual customer, which is deemed, upon on-site inspection, to pose a high likelihood of failure or in growth within a normal return inspection cycle or maintenance return interval, that the vegetation may fall onto or otherwise affect service with a transmission or distribution line, as determined by the electric public utility forester or local government entity having control of the right-of-way and as confirmed by a licensed tree care operator, licensed tree expert, or licensed landscape architect who is trained and experienced in the evaluation of hazard vegetation.
"Licensed landscape architect" shall have the same meaning as provided in section 5 of P.L.1983, c.337 (C.45:3A-2).
"Licensed tree care operator" shall have the same meaning as provided in section 2 of P.L.2009, c.237 (C.45:15C-12).
"Licensed tree expert" or "tree expert" means a tree expert licensed pursuant to section 7 of P.L.2009, c.237 (C.45:15C-17).
"Transmission line" means a line or cable, including the supporting structures and appurtenant facilities, which carries electric light, heat, or power from a generating plant to an electric substation.
"Vegetation management" means to prune, trim, clear, move, replace as reasonable and necessary, or cut any hazard vegetation to protect or maintain any structures or fixtures, necessary for the supply of electric light, heat, or power.
4. (New section) a. Notwithstanding the provisions of the "New Jersey Shade Tree and Community Forestry Assistance Act," P.L.1996, c.135 (C.13:1L-17.1 et al.) or any other provision of law, rule, regulation, or order to the contrary, to ensure the continued reliable supply of electric light, heat, or power in this State, an electric public utility is authorized to:
(1) utilize all reasonably available methods according to ANSI A300 tree care standards and pursuant to board rules and regulations, which may include, but not be limited to, clearing, moving, cutting, trimming, or pruning to remove, replace as reasonable and necessary, or maintain hazard vegetation for the purpose of the safe and reliable transmission and distribution of electric light, heat, or power; and
(2) establish, upon receipt of board approval, a program to develop effective strategies to implement the provisions of this section, as appropriate.
b. In addition to the notification requirements provided in section 2 of P.L.1969, c.182 (C.48:3-17.10), an electric public utility shall make a diligent attempt to notify all customers, property owners, and local and other government entities that may be affected by planned vegetation management activity along the utility's distribution or transmission system. This requirement shall be satisfied if the utility provides written notice to customers and property owners pursuant to paragraphs (1) and (2) of this subsection, at least seven days, but not more than 45 days, prior to performing any vegetation management activity, and provides notice to local and other government entities pursuant to paragraph (3) of this subsection.
(1) For a distribution line, the electric public utility shall provide notice to the following customers and property owners by separate direct mailing, door hanger, or any other method approved by the board:
(a) a customer of the utility upon whose property runs any portion of the right-of-way or easement that will be maintained by the utility; and
(b) a property owner where there is no customer of the utility located on the property and the property includes a portion of the right-of-way or easement that will be maintained by the utility.
(2) For a transmission line, the electric public utility shall provide notice as follows:
(a) for persons described in subparagraphs (a) and (b) of paragraph (1) of this subsection, through a direct mailing by certified mail, return receipt requested, or by another method approved by the board; and
(b) by publishing at least seven days, but not more than 45 days, prior to performing any vegetation management activity, a notice in two newspapers that serve the area where the vegetation management activity is to be performed.
For the purposes of subparagraph (a) of this paragraph, a United States Post Office receipt of mailing shall constitute proof of compliance.
(3) (a) An electric public utility shall notify all local and other government entities that may be affected by vegetation management activity. For local and other government entities, a utility shall provide written notice of any pending vegetation management activity to a primary contact at that entity. For a municipality, the mayor, municipal clerk, or other person or position mutually agreed upon by the utility and the municipality shall be the primary contact. For other government entities, the primary contact shall be selected by mutual agreement in writing between the utility and the other government entity.
(b) The electric public utility shall provide written notice to the primary contact, designated pursuant to subparagraph (a) of this paragraph, at least 60 days in advance of the planned vegetation management activity. The notice shall include the planned dates and locations of the vegetation management activity, and shall be written in a manner sufficient to explain the utility's procedures and easement rights. The utility shall provide a telephone number of its vegetation manager to provide answers to any questions from the primary contact relating to the notice. If a utility provides notice, pursuant to this paragraph, through a contractor or agent, the notice shall bear the name and logo of the utility only and not of the contractor or agent. The utility shall maintain a record of the dates, locations, and activities contained in notice provided to municipal and other government entities, pursuant to this paragraph, for a period of five years after notice is sent.
c. (1) An electric public utility shall conduct an annual public education program to inform its customers and local and other government entities in the utility's service territory of the importance of vegetation management and of the utility's role and responsibility in performing vegetation management near distribution and transmission lines. The public education program required pursuant to this paragraph shall be implemented by direct mail or another method approved by the board.
(2) An electric public utility shall post materials of its public education program, developed pursuant to paragraph (1) of this subsection, on its website. The posted materials shall include illustrations of typical configurations of transmission lines and easements, as necessary to comply with the requirements of this section, to inform the public regarding the utility's responsibilities in performing vegetation management pursuant to this section.
(3) (a) In the event of an objection or disagreement by a customer, property owner, or governmental entity that may be affected by the planned vegetation management activity of an electric public utility, the utility shall first attempt to resolve the dispute. In the event that the dispute cannot be resolved, then any party to the dispute may appeal the dispute to the board. Upon receiving the appeal, the board shall randomly select a licensed tree expert with demonstrable understanding of utility vegetation management from a list of tree experts that the board shall maintain and update on a continuing basis. The board shall divide the list of tree experts into eight geographic districts based upon the location of the address of the tree experts. The board shall randomly select a tree expert from the geographic district where the property that is the subject of the dispute is located. The tree expert shall then review the issue in dispute and make a determination as to what action, if any, should be taken. The board shall adopt procedural rules, pursuant to section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill), as the board deems appropriate in order to implement the provisions of this paragraph.
(b) Vegetation management activity of an electric public utility shall not be performed on any property of the New Jersey Turnpike Authority or the South Jersey Transportation Authority without the approval of those authorities.
5. Section 5 of P.L.1996, c.135 (C.13:1L-17.5) is amended to read as follows:
5. a. There is established in the department a Community Forestry Council, which shall consist of 20 members, appointed by the State Forester, all of whom shall be citizens with expertise or interest in trees, forestry, or tree or forest management, maintenance, or care. Upon the occurrence of a vacancy on the council after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the State Forester shall appoint a New Jersey electric public utility employee who is an electric public utility approved forester to represent the electric public utility on the council until such time as there are at least two members serving on the council meeting that description. Each of the members appointed shall serve for a term of three years and until a successor is appointed and qualified, except that of the members first appointed, seven shall serve terms of one year and seven shall serve terms of two years. All vacancies, except those created through the expiration of term, shall be filled for the unexpired term only, and in the same manner as the original appointment. Each member shall be eligible for reappointment, but may be removed by the commissioner or the State Forester for cause.
b. A majority of the membership of the council shall constitute a quorum for the transaction of council business. Action may be taken and motions and resolutions adopted by the council at any meeting thereof by the affirmative vote of a majority of the full membership of the council.
c. Members of the council shall serve without compensation, but may be reimbursed for expenses necessarily incurred in the discharge of their official duties.
d. The State Forester shall appoint a chairperson and vice-chairperson and the council may elect such other officers as may be necessary. The council may appoint such staff or hire such experts as it may require within the limits of appropriations made for these purposes.
e. The council may call to its assistance such employees as are necessary and made available to it from any agency or department of the State or its political subdivisions.
f. The council may adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), and in consultation with the department, any rules and regulations necessary to carry out its responsibilities pursuant to P.L.1996, c.135 (C.13:1L-17.1 et al.).
g. The council shall advise the State Forester, the Division of Parks and Forestry, and the department on issues concerning community forestry and assist with such other functions as may be authorized pursuant to P.L.1996, c.135 (C.13:1L-17.1 et al.) or any other law.
h. Except as provided in section 10 of P.L. c. (C. ) (pending before the Legislature as this bill), the council, a shade tree commission, and any entity empowered pursuant to this chapter, shall not interfere with or restrict an electric public utility's removal, replacement, or maintenance of hazard vegetation pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
(cf: P.L.1996, c.135, s.5)
6. R.S.40:37-5 is amended to read as follows:
40:37-5. Except as hereinafter provided and as provided in subsection h. of section 5 of P.L. c. (C. ) (pending before the Legislature as this bill), the shade tree commission may exercise exclusive control over the regulation, planting, and care of shade and ornamental trees and shrubbery now situate or which may hereafter be planted [in] along any public road, street, highway, [park] or parkway , or upon, or in any public park or other property owned, controlled, or managed by or of the county, including:
a. The planting, trimming, spraying, care, and protection thereof;
b. The regulation and control of the use of the ground surrounding the same so far as may be necessary for their proper growth, care, and protection;
c. The moving or requiring the removal of any tree or part thereof, dangerous to public safety;
d. The care and control of the parks and parkways; and
e. The encouragement of arboriculture.
(cf: P.L.1958, c.41, s.2)
7. R.S.40:37-6 is amended to read as follows:
40:37-6. [The] a. Except as provided in subsection b. of this section, the shade tree commission, with the consent of the board of chosen freeholders, may make rules and regulations for the protection and care of the trees, shrubbery, or ornamental material planted or growing naturally within the highways and parks under its jurisdiction, as provided in this article, and with the consent of the board may prescribe a suitable fine for the violation of each rule or regulation, in an amount not exceeding [$200.00] $3,000 for each violation.
b. Any public utility, as defined pursuant to R.S.48:2-13, that clears, moves, cuts, trims, or prunes any trees, shrubs, or plants for the purpose of protecting or maintaining any structures or fixtures, necessary for the supply of electric light, heat, or power, upon any lands in which it has acquired an easement or right-of-way or upon a public right-of-way, shall not be required to receive the permission of a commission to undertake such work or be subject to any penalty imposed by a shade tree commission pursuant to subsection a. of this section. This subsection shall not exempt any such public utility from any penalty or replacement assessment imposed as a result of damage to a tree, shrub, or plant caused by the public utility's non-compliance with any such rule or regulation of the shade tree commission, provided that such rule or regulation does not interfere with or restrict any vegetation management work conducted by the public utility to comply with any federal law, rule, regulation, any vegetation management rule, regulation, or order of the board, or any national or federal standard applicable to a public utility in this State. A public utility that is acting in good faith, with due diligence and reasonable judgement, in its performance of vegetation management pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) and any board rules or regulations, shall not be held liable, penalized, or otherwise subject to undue hardship by a governing body of a county or a commission.
A shade tree commission may require a permit for vegetation management work by a public utility but shall not prohibit a public utility from performing vegetation management within a public utility right-of-way. A permit may be waived by a shade tree commission in the case of a declared state of emergency by the Governor or the federal government, pursuant to law, to expedite the restoration of electric light, heat, or power and to restore conditions protecting the public health, safety, and welfare.
As used in this subsection, "vegetation management" means to prune, clear, move, cut, replace as reasonable and necessary, or trim any hazard vegetation to protect or maintain any structures or fixtures, necessary for the supply of electric light, heat, or power.
(cf: P.L.1958, c.41, s.3)
8. R.S.40:64-5 is amended to read as follows:
40:64-5. [A] Except as provided in subsection h. of section 5 of P.L. c. (C. ) (pending before the Legislature as this bill) a shade tree commission organized under this chapter shall have power to:
a. Exercise full and exclusive control over the regulation, planting, and care of shade and ornamental trees and shrubbery now located, or which may hereafter be planted [in] along any public road, street, highway, [park] or parkway, or upon or in any public park or other property owned, controlled, or managed by or of the municipality, except such as are excluded pursuant to section 40:64-1 of this Title in the municipality for which it was created, including the planting, trimming, spraying, care, and protection thereof;
b. Regulate and control the use of the ground surrounding the same, so far as may be necessary for their proper growth, care, and protection;
c. Move or require the removal of any tree, or part thereof, dangerous to public safety;
d. Care for and control such parks and parkways; encourage arboriculture; make, alter, amend, and repeal, in the manner prescribed for the passage, alteration, amendment, and repeal of ordinances by the governing body of the municipality, any and all ordinances necessary or proper for carrying out the provisions hereof; and
e. Administer treatment to, or remove, any tree situate upon private property which is believed to [harbour] harbor a disease or insects readily communicable to neighboring healthy trees in the care of the municipality and enter upon private property for that purpose, with the consent of the owner thereof, provided the suspected condition is first confirmed by certificate issued by or on behalf of the Department of Agriculture.
(cf: P.L.1958, c.42, s.4)
9. R.S.40:64-12 is amended to read as follows:
40:64-12. a. The commission may prescribe a fine for the violation of each of its ordinances in an amount not exceeding [$1500.00] $3,000 for each violation, and the courts which now or hereafter shall have jurisdiction over actions for the violation of ordinances of the municipality in which the commission has been or shall be appointed shall have jurisdiction in actions for the violation of such ordinances as the commission shall enact. The ordinances shall be enforced by like proceedings and process and the practice for the enforcement thereof shall be the same as that provided by law for the enforcement of the ordinances of the municipality in which the commission exists. The officers authorized by law to serve and execute process in the aforementioned courts shall be the officers to serve and execute any process issued out of any court under this chapter. A copy of any ordinance of the commission, certified to under the hand of its secretary [,] or chairman shall be received in any court of this State as full and legal proof of the existence of the ordinance, and that all requirements of law in relation to the ordaining, publishing, and making of the same, so as to make it legal and binding, have been complied with, unless the contrary be shown.
b. In addition to the penalties authorized by subsection a. of this section, the commission may require a person who removes or otherwise destroys a tree in violation of a municipal ordinance to pay a replacement assessment to the municipality. The replacement assessment shall be the value of the tree as determined by the appraisal of a trained forester [or Certified Tree Expert], licensed tree expert, or licensed landscape architect who is trained and experienced in the appraisal of the value of vegetation and retained by the commission for that purpose. In lieu of an appraisal, the commission may adopt a formula and schedule based upon the number of square inches contained in a cross section of the trunk of the tree multiplied by a predetermined value per square inch, not to exceed [$27.00] $27 per square inch. The square inch cross section shall be calculated from the diameter at breast height and, if there is a multiple stem tree, then each trunk shall be measured and an average shall be determined for the tree. For the purposes of this section, "diameter at breast height" shall mean the diameter of the tree taken at a point 4-1/2 feet above ground level. The commission shall modify the value of the tree based upon its species variety, location, and its condition at the time of removal or destruction.
c. Any public utility, as defined pursuant to R.S.48:2-13 [or cable television company], providing electric light, heat, or power that clears, moves, cuts, prunes, or [destroys] trims any trees, shrubs, or plants for the purpose of [erecting, installing, moving, removing, altering] protecting or maintaining any structures or fixtures, necessary for the supply of electric light, heat, or power [, communication, or cable television services] upon any lands in which it has acquired an easement or right-of-way or upon a public right-of-way, shall not be required to receive the permission of a commission to undertake such work or be subject to any penalty imposed by a commission pursuant to subsections a. or b. of this section. This subsection shall not exempt any such public utility [or cable television company] from any penalty or replacement assessment imposed [for negligent actions] as result of damage to a tree, shrub, or plant caused by the public utility's non-compliance with any such rule or regulation of the commission, provided that such rule or regulation does not interfere with or restrict any vegetation management work conducted by the public utility to comply with any federal law, rule, regulation, any vegetation management rule, regulation, or order of the board, or any national or federal standard applicable to a public utility in this State. A public utility, that is acting in good faith, with due diligence and reasonable judgement, in its performance of vegetation management pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) and any board rules or regulations, shall not be held liable, penalized, or otherwise subject to undue hardship by a governing body of a municipality or a commission.
A shade tree commission may require a permit for vegetation management work by a public utility but shall not prohibit a public utility from performing vegetation management within a public utility right-of-way. A permit may be waived by a shade tree commission in the case of a declared state of emergency by the Governor or the federal government, pursuant to law, to expedite the restoration of electric light, heat, or power and to restore conditions protecting the public health, safety, and welfare.
As used in this subsection, "vegetation management" means to prune, clear, move, cut, replace as reasonable and necessary, or trim any hazard vegetation to protect or maintain any structures or fixtures, necessary for the supply of electric light, heat, or power.
(cf: P.L.1991, c.396, s.1)
10. Sections 1 through 4 and section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply to any municipality having enacted an ordinance pursuant to law, before or after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), concerning the performance of vegetation management on hazard vegetation or the enforcement of such an ordinance by that municipality.
11. The board shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary to effectuate the provisions of sections 1 through 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).
12. This act shall take effect immediately, but shall remain inoperative for 90 days following the date of enactment.
STATEMENT
This bill broadens the authority of electric public utilities to engage in vegetation management relative to electric public utility (utility) infrastructure. Specifically, the bill authorizes a utility to utilize all available methods per ANSI A300 tree care standards, in accordance with Board of Public Utilities (board) rules and regulations, which may include, but not be limited to, clearing, moving, cutting, trimming, pruning, or maintaining to remove, replace as reasonable and necessary, or maintain hazard vegetation for the purpose of the safe and reliable transmission and distribution of electric light, heat, or power. The bill permits a utility, upon receipt of board approval, to establish a program to develop effective strategies to effectuate the broadened authority provided under the bill. In addition to existing statutory notification requirements, a utility is required to make a diligent attempt to notify all customers, property owners, and government entities that may be affected by planned vegetation management activity, including, for government entities, providing notice at least 60 days of the planned dates and locations of the vegetation management activity and written in a manner sufficient to explain the utility's procedures and easement rights. Lastly, a utility is required to conduct an annual public education program to inform its customers and government entities of the importance of vegetation management and of its role and responsibility in performing vegetation management.
The bill provides that the term "hazard vegetation" means a tree, shrub, plant, or any other vegetation growing in the utility's right-of-way and the electric transmission and distribution system, but not including a service line to an individual customer, which is deemed, upon on-site inspection, to pose a high likelihood of failure or in growth within a normal return inspection cycle or maintenance return interval, that the vegetation may fall onto or otherwise affect service with a transmission or distribution line, as determined by the utility forester or the local government entity having control of the right-of-way and as confirmed by a licensed tree care operator, licensed tree expert, or licensed landscape architect who is trained and experienced in the evaluation of hazard vegetation.
The bill provides that the Community Forestry Council (council), as well as a county or municipal shade tree commission, cannot restrict a utility's removal, replacement, or maintenance of hazard vegetation when the utility is doing so in an acquired easement or right-of-way and shall not be required to receive permission or be subject to penalty as long as the work is done by the utility to comply with any federal law, rule, regulation, any vegetation management rule, regulation, or order of the board, or any national or federal standard applicable to a utility in this State and the utility is acting in good faith, with due diligence and reasonable judgement. In the event of a vacancy on the council occurring after the date the bill is enacted into law, the State Forester is to appoint a utility employee who is a utility-approved forester to represent the utility on the council until such time as there are at least two members serving on the council who meet that criteria.
A utility is not exempt from any penalty or replacement assessment imposed as a result of damage to a tree, shrub, or plant caused by non-compliance with any rule or regulation of a county or municipal shade tree commission, provided that the rule or regulation does not interfere with or restrict any vegetation management work conducted by the utility to comply with any federal rule, regulation, or law, any vegetation management rule, regulation, or order of the board, or any national or federal standard applicable to a utility. A utility, acting in good faith with due diligence and reasonable judgment in its performance of vegetation management pursuant to the bill's provisions and the board's rules and regulations, cannot be held liable, penalized, or otherwise subject to undue hardship by a governing body of a county or municipality or a shade tree commission
The bill also increases the maximum size of penalties and fines that a shade tree commission may impose to $3,000 for violations of commission rules, regulations, or ordinances. The bill also provides the ability for a municipality to opt out of allowing a utility to perform vegetation management by clarifying that the protections provided to utilities in this bill for vegetation management are not to alter or supersede the provisions of an ordinance enacted pursuant to law by a municipality concerning the performance of vegetation management on hazard vegetation by that municipality.
The bill also provides for a process to resolve any dispute between a public utility and a customer, property owners, or government entity over planned vegetation management activity. In the event of an objection or disagreement by a customer, property owner, or governmental entity that may be affected by the planned vegetation management activity of a utility, the utility is to first attempt to resolve the dispute. In the event that the dispute cannot be resolved, then any party to the dispute may appeal the dispute to the board.
The bill prohibits a utility from performing vegetation management on any property of the New Jersey Turnpike Authority or the South Jersey Transportation Authority without the approval of those authorities.
