A5782

An Act concerning forest fire prevention and prescribed burns, and amending and supplementing P.L.2018, c.107.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 3 of P.L.2018, c.107 (C.13:9-44.13) is amended to read as follows:

3. As used in this act:

"Assistant Commissioner" means the Assistant Commissioner of Natural and Historic Resources in the Department of Environmental Protection.

["Certified"] “Certification” or “training certification” means [having completed and received the certification from] a signed statement verifying that an individual has satisfactorily completed the prescribed burn training program operated by the Forest Fire Service, pursuant to subsection d. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), or a similar educational or training program [of education], approved by the department, [about] which addresses the proper design of prescribed burn plans and the safe and proper implementation of prescribed burns [that, upon completion, results in issuance of a certification to the participant. "Certified" shall not mean completion of the training provided by the Forest Fire Service] in accordance therewith.

"Department" means the Department of Environmental Protection."

"Forest Fire Service" means the Forest Fire Service in the Department of Environmental Protection.

"Landowner or lessee" means (1) the person responsible for the land upon which a prescribed burn is to be conducted who (a) either owns or leases the land, and (b) has full access and control of the land at all times during the prescribed burn; or (2) an agent, employee, or other representative of that person who, for the purposes of complying with this act, (a) is authorized to act on the person's behalf, and (b) has full access and control of the land at all times during the prescribed burn.

"Mechanically manage vegetation" means to mow or cut vegetation to reduce wildland fire fuels contained in the forest or other open lands.

"Person" means an individual, trust, partnership, limited partnership, limited liability company, society, association, joint stock company, corporation, public corporation or public authority, estate, receiver, trustee, assignee, referee, fiduciary and any other legal entity.

"Prescribed burn" or "prescribed burning" means the deliberate ignition and controlled open burning of wildland fire fuels, under specified environmental conditions which allow the fire to be confined to a predetermined area and produces the fireline intensity and rate of spread required to attain planned resource management objectives such as public safety, wildfire control, ecological, silvicultural, agricultural, or other natural resource management purposes.

"Prescribed burn plan" or "plan" means a written plan prepared in accordance with this act and the rules and regulations adopted pursuant to section 7 thereof, for starting, executing, and controlling a prescribed burn.

“Properly trained local fire official” means a firefighter or other local fire official who holds and who submits, to the department, a certification verifying the official’s satisfactory completion of a prescribed burn training program operated by the Forest Fire Service, pursuant to subsection d. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), or a similar educational or training program approved by the department.

"Wildland fire fuels" means fuels including herbaceous and other plant life found in forests, fields, grasslands, coastal marshlands and other open lands whether in their natural state or having been cut.

(cf: P.L.2018, c.107, s.3)

2. Section 4 of P.L.2018, c.107 (C.13:9-44.14) is amended to read as follows:

4. a. The Department of Environmental Protection shall develop and administer a program for prescribed burning on public and private lands [under], pursuant to which, the department [may] shall authorize a person to conduct a prescribed burn [pursuant to] in accordance with a prescribed burn plan approved by the department. The prescribed burn program shall provide for authorized persons to utilize fire as a tool for the management of the State's forests, based upon sound science, and shall incorporate, at a minimum:

(1) best practices designed to ensure the safe and effective use of prescribed burning, as a tool, for such purposes;

(2) requirements providing for a prescribed burn plan to be developed and implemented for each appropriate parcel of forested land owned by the State, with priority being given to those State-owned lands that are located in those areas of the State which are determined, by the Forest Fire Service, to be most in danger of wildfire due to the accumulation of wildland fire fuels; and

(3) a process to identify and report, to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature, any legal barriers that may serve to hinder the prompt or effective development of prescribed burn plans or undertaking of prescribed burn operations in accordance therewith, particularly in those areas of the State which are determined, by the Forest Fire Service, to be most in danger of wildfire due to the accumulation of wildland fire fuels.

b. The department may charge a reasonable fee, to each person who submits a plan, for approval, under the prescribed burn program, in order to cover the costs associated with the implementation and enforcement of the program. All such fees collected, pursuant to this subsection, shall be credited to a special, dedicated account in the General Fund and appropriated to the Forest Fire Service to help pay for the administration and operation of its forest fire programs, including, but not limited to, the prescribed burn training program established and operated thereby, pursuant to subsection d. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

c. [A] The department shall be authorized to approve, for implementation, any prescribed burn plan that is submitted, thereto, pursuant to this section, provided that the person submitting such plan also submits a certification verifying the person’s successful completion of prescribed burn training, either under the training program established and operated by the Forest Fire Service, pursuant to subsection d. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), or under a similar educational or training program approved by the department; however, the submission of such training certification shall not be required, for plan approval, in any case where a person [who desires] is seeking approval only to conduct a prescribed burn [only] on land for which the person is the landowner or lessee [shall not be required to become certified].

d. The department shall adopt rules and regulations, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), as necessary to finalize and establish its prescribed burn program, and shall commence the administration of its prescribed burn program, as required by subsection a. of this section, within 18 months after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.2018, c.107, s.4)

3. Section 5 of P.L.2018, c.107 (C.13:9-44.15) is amended to read as follows:

5. a. The department [may] shall conduct a prescribed burn or shall mechanically manage vegetation in any area of land within the State which is determined by the Forest Fire Service to be in [reasonable] danger of wildfire due to the accumulation of wildland fire fuels.

b. For lands not owned or controlled by the State, which are determined by the Forest Fire Service to be in [reasonable] danger of wildfire due to the accumulation of wildland fire fuels, the Forest Fire Service shall:

(1) provide written notice to each affected local governmental entity within which the affected land is located [that describes], which written notice shall describe the purpose of the prescribed burn and [describes] the areas to be burned in the prescribed burn;

(2) publish a prescribed burn notice, which shall include an explanation of the purpose of the prescribed burn and a description of the [area] areas to be burned, in at least one newspaper of general circulation in the area of the prescribed burn;

(3) provide prior written notice, by certified mail, return receipt requested, or by personal service, [of the proposed prescribed burn] to each affected landowner and lessee, if known, [of] identifying the date, location, and purpose of the proposed prescribed burn and [the] providing a description of [any] the land [that is] included [in] within the [area to be burned in the] proposed prescribed burn area, which notice shall be sent at least 30 days prior to the prescribed burn unless the department makes a written finding that an emergency exists, in which case, the prior written notice shall be sent as soon as possible after [the] that finding is made; and

(4) consider any landowner or lessee objections to the prescribed burning of the property, pursuant to subsection c. of this section.

c. An objecting landowner or lessee may apply to the Forest Fire Service for a review of alternative methods of wildland fire fuel reduction on the property. If the Forest Fire Service does not resolve the objection, the Assistant Commissioner or designee thereof shall convene a panel composed of the local Forest Fire Service manager, the fire chief of the jurisdiction, and a local official designated by the municipality in which the land is located, or any of their designees. The panel shall review the prescribed burning of the property, objections to the prescribed burn, and the proposed alternative fuel reduction methods, and shall recommend a [course] plan of action to reduce the wildland fire fuels [that specifies], which plan of action shall specify the minimum amount of land required for treatment. If the panel's recommendation is not acceptable to the objecting landowner or lessee, the landowner or lessee may request further consideration by the Commissioner of Environmental Protection or the commissioner's designee, and shall thereafter be entitled to an administrative hearing as a contested case pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

d. The department may assess, against a landowner or lessee, reasonable fees and costs for a prescribed burn conducted by the Forest Fire Service for any wildland fuel hazard that poses an extraordinary threat to life, property, or a natural resource as

authorized pursuant to this section.

(cf: P.L.2018, c.107, s.5)

4. (New section) a. The department shall establish a yearly program goal of ensuring that prescribed burns occur on a minimum of 50,000 acres in the pinelands area, as defined pursuant to section 3 of P.L.1979, c.111 (C.13:18A-3), and on an additional 10,000 acres Statewide, regardless of whether such burns are conducted by the department, by the federal government, or by landowners or lessees pursuant to the “Prescribed Burn Act,” P.L.2018, c.107 (C.13:9-44.11 et seq.).

b. The department shall require all prescribed burns in the State to be conducted and completed between the months of November and March of each year, prior to the annual commencement of wildfire season in New Jersey. The department shall publish, on its Internet website, a prescribed burn calendar that:

(1) identifies the scheduled date and location of each prescribed burn that is planned and approved for the coming prescribed burn season; and

(2) includes a hyperlink to an electronic list or form, or provides another electronic means, by which properly trained local fire officials may sign-up or otherwise volunteer to participate in each scheduled prescribed burn. A fire official who volunteers to participate in a prescribed burn, pursuant to this paragraph, shall be authorized by the department to participate in the prescribed burn, provided that the fire official first submits a certification, to the department, verifying the official’s successful completion of a prescribed burn training course offered by the Forest Fire Service, pursuant to subsection d. of this section, or otherwise approved by the department.

c. The department, in conjunction with the Department of Agriculture, the Highlands Water Protection and Planning Council, the Pinelands Commission, the State Planning Commission, and any other relevant State entity, shall incorporate the annual goals established pursuant to subsection a. of this section into all applicable environmental and land management plans, programs, and surveys, and any updates thereto.

d. The department, acting through its Forest Fire Service, shall:

(1) establish and annually operate a prescribed burn training program that is designed to provide private landowners, local fire officials, other appropriate government officials, and relevant non-profit operators, employees, and volunteers, with educational instruction and up-to-date information on the best practices that are to be used both in developing a prescribed burn plan pursuant to the “Prescribed Burn Act,” P.L.2018, c.107 (C.13:9-44.11 et seq.), and in undertaking and conducting prescribed burn operations, pursuant to a department-approved prescribed burn plan, at any location in the State;

(2) establish Mobile Prescribed Burn Units operating within, and under the jurisdiction of, the Forest Fire Service, and composed of Forest Fire Service officials or properly trained local fire officials, for Statewide deployment pursuant to paragraphs (3) and (4) of this subsection, in order to facilitate the development of prescribed burn plans, and the more effective undertaking of prescribed burn operations pursuant thereto, by private landowners, local fire officials, other appropriate government officials, and relevant non-profit operators, employees, and volunteers throughout the State;

(3) annually deploy, between the months of November and March prior to each year’s peak fire season, the Mobile Prescribed Burn Units established pursuant to paragraph (2) of this subsection, to those areas of the State which are determined by the Forest Fire Service to be most in danger of wildfire due to the accumulation of wildland fire fuels, and require such deployed mobile units to: (a) provide private landowners, local fire officials, other appropriate government officials, and non-profit operators, employees, and volunteers, in such fire-prone areas, with training under the program developed pursuant to paragraph (1) of this subsection, and with other appropriate information, educational materials, and instructional guidance on the best practices that are to be used, and the nature of any special concerns or considerations that are to be addressed, when planning for and undertaking prescribed burns in such fire-prone areas; (b) engage in the direct monitoring and oversight of prescribed burn operations being undertaken in such fire-prone areas; and (c) provide other direct assistance, to relevant individuals in such fire-prone areas, as may be necessary and appropriate to facilitate and ensure the timely and effective development and prescribed burn plans and the safe and effective undertaking of prescribed burn operations therein; and

(4) annually deploy, during each year’s peak fire season, the Mobile Prescribed Burn Units established pursuant to paragraph (2) of this subsection, to those areas of the State which are determined by the Forest Fire Service to be most in danger of wildfire due to the accumulation of wildland fire fuels, and require such deployed mobile units to monitor the ongoing wildfire risk in those fire-prone areas and to otherwise evaluate the results and effectiveness of the prescribed burn plans that have been implemented, and the prescribed burn operations that have been undertaken, in such areas during the immediately preceding prescribed burn period lasting from November to March.

5. This act shall take effect immediately.

STATEMENT

This bill would amend and supplement the State’s “Prescribed Burn Act,” P.L.2018, c.107 (C.13:9-44.11 et seq.), in order to clarify the goals, requirements, and timeframes that are applicable to prescribed burn planning and the undertaking of prescribed burns across the State. A prescribed burn occurs when there is a deliberate ignition and controlled open burning of wildland fire fuels to attain resource management objectives, such as public safety, wildfire control, ecological, silvicultural, agricultural, or other natural resource management goals.

Under existing law, a prescribed burn may be conducted by the State, the federal government, or a landowner or lessee, in accordance with a prescribed burn plan adopted thereby and approved by the Department of Environmental Protection pursuant to the “Prescribed Burn Act,” P.L.2018, c.107 (C.13:9-44.11 et seq.). Although the Prescribed Burn Act, when enacted in 2018, provided for the department to establish and administer a prescribed burn program to facilitate the safe and proper undertaking of prescribed burns in the State, that law did not specify the timeframe within which such program should be commenced. Accordingly, this bill would amend the Prescribed Burn Act to expressly require the department to develop and adopt rules and regulations relevant to prescribed burns, and to establish and commence the administration of its prescribed burn program, within 18 months after the date of this bill’s enactment.

The bill would further clarify that the prescribed burn program is to provide for authorized persons to utilize fire, as a tool, for the management of the State's forests, based upon sound science, and is to incorporate, at a minimum:

(1) best practices to ensure the safe and effective use of prescribed burning, as a tool, for such purposes;

(2) requirements providing for the development and implementation of a prescribed burn plan for each appropriate parcel of forested land owned by the State, with priority being given to those State-owned lands that are located in those areas of the State which are determined, by the Forest Fire Service, to be most in danger of wildfire due to the accumulation of wildland fire fuels; and

(3) a process to identify, and to periodically report to the Governor and the Legislature on, any legal barriers that may serve to hinder the prompt or effective development of prescribed burn plans or undertaking of prescribed burn operations in accordance therewith, particularly in those areas of the State which are determined by the Forest Fire Service to be most in danger of wildfire due to the accumulation of wildland fire fuels.

Because the State Forest Fire Service generally provides for prescribed burns to be conducted during the late winter months, both in order to reduce the amount of smoke produced and in order take advantage of more predictable weather conditions, as necessary to ensure safer and more controlled fires, this bill would require all prescribed burns to be undertaken between the months of November and March, prior to the start of prime wildfire season in New Jersey, which typically occurs during the months of April and May. The department would be required, under the bill, to annually establish a Statewide goal of conducting prescribed burns on a minimum of 50,000 acres in the pinelands area, and on an additional 10,000 acres elsewhere in the State, and the bill would additionally require relevant State agencies, which are involved in environmental planning and land use management, to incorporate these annual Statewide prescribed burn goals into all relevant environmental plans, programs, and surveys.

The bill would further require the department, acting through its Forest Fire Service, to:

(1) establish and annually operate a prescribed burn training program that is to provide private landowners, local fire officials, other appropriate government officials, and relevant non-profit operators, employees, and volunteers, with educational instruction and up-to-date information on the best practices that are to be used, both in developing a prescribed burn plan and in undertaking and conducting prescribed burn operations pursuant thereto;

(2) establish Mobile Prescribed Burn Units operating within and under the jurisdiction of the Forest Fire Service, and composed of Forest Fire Service officials or properly trained local fire officials, in order to facilitate the development of prescribed burn plans and the more effective undertaking of prescribed burn operations by private landowners, by local fire officials and other appropriate government officials, and by relevant non-profit operators, employees, and volunteers, throughout the State;

(3) annually deploy, between the months of November and March prior to each year’s peak fire season, the Mobile Prescribed Burn Units, established pursuant to the bill, to those areas of the State which are determined by the Forest Fire Service to be most in danger of wildfire due to the accumulation of wildland fire fuels, and require such mobile units to: a) provide private landowners, local fire officials, other appropriate government officials, and relevant non-profit operators, employees, and volunteers, in such fire-prone areas, with training and other relevant information on prescribed burn best practices and on the special concerns or considerations, if any, that are to be addressed when planning for, or undertaking, prescribed burn operations in such areas; b) engage in the direct monitoring and oversight of prescribed burn operations being undertaken in such fire-prone areas; and c) provide other direct assistance, to relevant individuals in such fire-prone areas, as may be necessary and appropriate to facilitate and ensure the timely and effective development and prescribed burn plans and the safe and effective undertaking of prescribed burn operations therein; and

(4) annually deploy, during each year’s peak fire season, the Mobile Prescribed Burn Units established pursuant to the bill, to those areas of the State which are determined by the Forest Fire Service to be most in danger of wildfire due to the accumulation of wildland fire fuels, and require such deployed mobile units to monitor ongoing wildfire risk in those fire-prone areas and to otherwise evaluate the results and effectiveness of the prescribed burn plans that have been implemented, and the prescribed burn operations that have been undertaken, in such areas during the immediately preceding prescribed burn period lasting from November to March.

The bill would additionally require the department to create and to publish, on its Internet website, a prescribed burn schedule and calendar, identifying the dates and locations of all prescribed burns that are planned in the State for the upcoming year. Each prescribed burn calendar would also be required to contain a hyperlink to an electronic list or form, or would be required to provide another electronic means, by which properly trained local fire officials can volunteer to participate in the scheduled prescribed burn activities being undertaken across the State. A local fire official would be deemed to be “properly trained,” for the bill’s purposes, so long as the official holds and submits, to the department, a certification verifying the official’s satisfactory completion of a prescribed burn training course offered by the Forest Fire Service, pursuant to the bill’s provisions, or a similar educational or training course approved by the department.

The department would similarly be authorized, under the bill, to approve, for implementation, any prescribed burn plan that is submitted thereto, provided that the person submitting such plan also submits a certification verifying the person’s successful completion of prescribed burn training, either under the training program established and operated by the Forest Fire Service, pursuant to the bill, or under a similar educational or training program approved by the department. However, the submission of such training certification would not be required for plan approval in any case where a person is seeking approval only to conduct a prescribed burn on land for which the person is the landowner or lessee.