Expanding Prescribed Fire on Private Lands

Task Forces: Energy, Environment and Agriculture

Draft Disclaimer

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Summary

This model creates a state framework for expanding prescribed fire on private lands through clarification of landowner’s right to burn, permitting reform, certification programs, and liability reform.

Model Policy

Section 1. Legislative Findings and Purpose.
(a) Findings. The Legislature finds that:

  1. Catastrophic wildfire risk has increased due to fuel accumulation and long-term fire exclusion.
  2. Prescribed fire and cultural burning are essential tools for reducing hazardous fuels, improving ecosystem resilience, protecting communities, and restoring fire-adapted landscapes.
  3. Landowners have an interest in and right to actively manage their property to reduce wildfire risk and improve land health, including the use of prescribed fire.
  4. Current legal, financial, insurance, and regulatory barriers discourage landowners, practitioners, nonprofit organizations and tribal entities from conducting prescribed fire.
  5. States have successfully increased prescribed fire activity through certification programs, liability reform, and permitting reform.

(b) Purpose. The purposes of this Act are to:

  1. Improve public safety and wildfire resilience by increasing the pace and scale of prescribed fire.
  2. Reduce legal, financial, and regulatory barriers to conducting prescribed fire by;
  3. Clarifying landowners’ right to burn.
  4. Reforming prescribed fire permitting systems.
  5. Establishing a statewide prescribed fire certification program;
  6. Creating a liability framework that rewards responsible burning;

Section 2. Definitions. For purposes of this Act, the following terms have the following meanings:
(a) “Certified Prescribed Fire Manager” means a person who has successfully completed a prescribed fire manager certification program approved by the Department and who is in good standing with the Department.
(b) “Department” means the Department of (i.e. natural resources and conservation) provided for in (appropriate section).
(c) “Prescribed fire” means an intentionally set fire that meets specific predefined land management objectives and that is done under specific conditions.

Section 3. Right to Burn
(a) Right to Burn. From (appropriate burning season), ignition permitting and smoke permitting is not required for prescribed fires occurring at least 500 feet from a structure that are:

  1. Under 6 acres in forest lands;
  2. Under 8 acres in shrublands;
  3. Under 25 acres in grasslands.

Section 4. Permitting Reform
(a) Streamlined Permitting. The Department, in conjunction with other relevant state agencies, shall establish procedures for expedited and consolidated application and review of ignition and smoke permits associated with prescribed fire not covered in Section 3. The Department may:

  1. Develop standardized burn plans;
  2. Create online permit systems;
  3. Establish general and/or annual permits;
  4. Create consolidated programmatic permits;
  5. Coordinate review across agencies.

(b) Permit Requirements. Any permitting requirements established for prescribed fire shall include:

  1. Clear standards for when permits are necessary;
  2. Clear approval timelines and contingency for permitting delays;
  3. Limited and minimized fees.

(c) Agency Accountability. The Department shall annually report on the number and issuance timeline of prescribed fire permits.

Section 5. Prescribed Fire Manager Certification Program.

(a) Establishment. The Department shall establish a voluntary Prescribed Fire Manager Certification Program. The Department may develop its own training course and shall consider existing third party training courses.

(b) Certification Standards. Certification shall include training in:

  1. Applicable laws and regulations;
  2. Prescribed fire behavior;
  3. Burn planning;
  4. Weather analysis;
  5. Smoke management;
  6. Public communications;
  7. Incident management;
  8. Ignition operations;
  9. Holding operations;
  10. Contingency planning.

(c) Reciprocity. For purposes of certification, the Department shall accept, for full or partial satisfaction of the state’s certification program, substantially equivalent certifications issued by:

  1. Federal agencies;
  2. Other states;
  3. Tribal governments;
  4. Other entities approved by the Department.

(d) Voluntary Participation. Nothing in this Act shall require certification for a person to conduct prescribed fire.


Section 6. Liability.
(a) Certified Prescribed Fire Managers. A Certified Prescribed Fire Manager, or a landowner, nonprofit organization, conservation district, tribal government, or cooperating entity using a Certified Prescribed Fire Manager shall be subject to a gross negligence standard and shall not be liable for damages arising from an escaped prescribed fire unless the claimant proves:

  1. Gross negligence;
  2. Reckless misconduct;
  3. Willful misconduct; or
  4. Intentional misconduct.

(b) Other Prescribed Fire Practitioners. Other prescribed fire practitioners, including landowners, nonprofit organizations, conservation districts, tribal governments, or cooperating entities practicing prescribed fire shall be subject to a simple negligence standard and shall not be liable for damages arising from an escaped prescribed fire unless the claimant proves:

  1. Simple negligence;
  2. Reckless misconduct;
  3. Willful misconduct; or
  4. Intentional misconduct.