Vegetation removal bill cut back after concerns raised about letting utilities off the hook

Two state House committees have decided to defer action on a Senate bill that would, among other things, require private and public property owners to trim grass within certain proximities of public rights of way and utility lines.

Senate Bill 11 Draft 2 is aimed at preventing dry vegetation from being ignited by a downed power line in strong winds — very much like the beginning of the deadly chain of events that investigators say started a catastrophic Aug. 8, 2023, wildfire that killed at least 102 people and destroyed much of historic Lahaina town.

While the intent of the measure is laudable — preventing brush and wildfires — questions are being raised about whether it’s the best approach and whether more study is needed.

The bill was deferred by the House committees on Water & Land and Public Safety.

Under the bill, the Department of Land and Natural Resources would be required to create and annually update a wildfire hazard map. The state fire marshal would enforce the vegetation-trimming law for state-owned lands, and county fire departments would be responsible for enforcement on privately owned lands. Electric utilities companies would be authorized to enter public or private property to trim or remove hazardous vegetation.

Board of Land and Natural Resources Chair Dawn Chang submitted public testimony in strong opposition to the bill.

“The department opposes this measure’s attempt to shift the responsibility of vegetation management away from utility companies, which have an obligation to ensure their infrastructure does not pose a threat to public health and safety, and onto the department and other landowners,” she said. “When a utility company is granted an easement by the state, it assumes the duty to maintain the easement area in a clean, sanitary and orderly condition and its infrastructure in a good and safe condition. This includes trimming and maintaining all vegetation in the easement area so that it does not present a threat to public safety.”

Chang said the easement requires the utility company to indemnify and defend the state from all claims for damage, injury or death; assume all risk associated with the easement; and provide general liability insurance.

“Shifting these obligations from the utility company – which benefits from holding the easement and voluntarily agreed to its terms – onto the state is neither equitable nor in the public interest,” she said.

Chang added that “requiring the department to identify and map wildfire hazard areas, remove vegetation on behalf of the utility, and enforce against landowners who fail to do so, creates an excessive and unsustainable burden on the department’s staff and financial resources.”

“The department also opposes any provision that would absolve a utility company from liability that may be incurred as a result of its infrastructure causing damage, injury or death,” she said. “Utility companies should be responsible for mapping and maintaining the hazardous vegetation on the easements where their power lines are located, and should not be shielded from any liability that may result from any fire that their lines ignite including any damage to property or to threatened and endangered species habitat due to a fire that the utility is determined responsible for.”

Utility companies should install power lines underground where feasible to reduce chances of fires starting in wind-exposed, high fire danger areas, Chang said.

“The tragedy and devastation of the Aug. 8, 2023 wildfires on Maui must be prevented from reoccurring,” said testimony submitted by the state Department of Commerce and Consumer Affairs’ Division of Consumer Advocacy. However, the department said more investigation is needed to determine best practices for vegetation management to prevent wildfires.

“The most appropriate entities for ensuring compliance with best practices for vegetation management to prevent wildfire risk and to have responsibility for undertaking vegetation management action should be determined as part of this investigation,” the department said. “Any investigation into best practices for vegetation management should also consider the wildfire mitigation actions that were proposed as part of the Hawaiian Electric Company’s Climate Adaptation Transmission and Distribution Resilience Program in Docket No. 2022-0135 and the electric utilities’ (including Kauaʻi Island Utility Cooperative (KIUC)) hazard mitigation plans that were filed with the Public Utilities Commission (Commission) on Aug. 22, 2024.”

The department also noted that Hawaiian Electric has submitted its Wildfire Safety Strategy for the Public Utilities Commission and department review in a separate docket.

“The department believes that it is important to incorporate the results of this review into best practices for vegetation management near electrical lines.”

In testimony submitted by the PUC, the commission said there were recent amendments to the measure removing language that exempted electric utilities from the obligation to manage vegetation in its easements.

“The commission concurs with this amendment and further believes electric utilities, not private and public property owners, should be responsible for managing vegetation located adjacent to electric facilities, whether within or outside of the utility’s easements,” the PUC said.

It added removing other language in the bill that would shift responsibility from the utility onto the property owner.

Testimony in support of the bill, as written, came from the Hawaiʻi Climate Change and Health Working Group.

“This bill addresses an urgent need to reduce the risk of wildfires, particularly after the catastrophic events in Maui in August 2023,” the group said.

It praised the bill’s “proactive approach” in establishing a comprehensive vegetation management program that focuses on utility lines within public rights of way and both public and private lands.

“It aims to mitigate the risk of wildfires igniting from hazardous vegetation near utility lines, which is crucial for safeguarding homes, businesses, and the health of Hawai’i’s residents,” the group said. “This bill is an important step in protecting the health of the people of Hawai’i.”

The group pointed out that the effects of smoke from wildfires can cause respiratory irritation, reduced lung function, bronchitis and exacerbation of asthma and heart failure.