On January 23, 2024, the Board of Forestry’s Management Committee released proposed amendments to the Forest Practice Rules (Proposed Amendments) concerning utility vegetation management performed by electrical utilities and public agencies. 

Over the last few years, PG&E has disputed the applicability of California’s Forest Practice Rules to utility vegetation management activities. It has largely claimed that it does not need to submit notices of exemption for vegetation management work because the trees are not removed for “commercial purposes.”  PG&E proposed modifications to the Forest Practice Rules in 2021 and formally requested in October 2023 that the Board of Forestry open a rulemaking to address these issues. 

The Proposed Amendments create a new “de minimis maintenance and repair” exemption, which is intended to streamline vegetation management operations within rights of way, but which could have a significant and costly impact on landowners attempting to maintain defensible space requirements. 

Under the newly proposed “de minimis exemption,” the cutting and removal of trees within a public or private utility’s legally recorded easement are exempt from landowner notification requirements and fuels management obligations that would otherwise apply under the Forest Practice Rules. This means that utilities that do vegetation management work within a legally recorded right of way would not have to either notify the landowner or remove felled wood even within the landowner’s defensible space perimeter.    

The Proposed Amendments would establish treatment requirements for felled wood outside of the right of way, also negatively impacting landowner ability to maintain defensible space.  In particular, proposed 14 CCR 1114(f)(3) requires fuels over 1” in diameter and brush within 150’ of a legally permitted habitable structure to be chipped, burned, or removed within 45 days.  Slash that is more than 150’ from a legally permitted habitable structure would have to be treated to achieve a maximum post-harvest depth of 18” above the ground within one year. The major problem with these requirements is that they impose clean-up standards around legally permitted habitable structures; however, the landowner is obligated by Public Resources Code Section 4291 to maintain defensible space around all structures, not just those that are both legally permitted and habitable.  This potentially exposes landowners to tens of thousands of dollars in extra costs to clean up after utility vegetation management activities – burdens that the last few years have shown many property owners are unable to bear. 

It should be noted that the de minimis maintenance and repair exemption cannot be claimed for cutting and removal of trees in the additional right-of-way width enhancements as described in the existing 14 CCR 1104.1(d) and (f)). 

The Proposed Amendments also seek to: 

  • Clarify that the removal of trees for purposes with a reasonable nexus to a commercial activity (like providing utility service or transportation along transportation corridors) constitutes a “commercial purpose” and thereby triggers application of the Forest Practice Rules. 

  • Prohibit public or private utilities from materially impairing the ability of the landowner to sell, barter, exchange, or trade felled trees. 

  • Require landowner notification prior to public or private utilities cutting or removing trees located outside a legally recorded easement. 

  • Require utilities to have “danger trees” identified by a Registered Processional Forester, their supervised designee, or a professionally certified arborist. 

The Management Committee’s publication of Proposed Amendments to the Forest Practice Rules is the first step in what is expected to be a long regulatory process.  RCRC will engage on this proposal to ensure that utilities are able to conduct necessary vegetation management while also protecting residents from the legitimization of many of the burdens rural landowners have faced over the last several years. 

For more information, please contact John Kennedy, RCRC Senior Policy Advocate.