SENATE, No. 2169

STATE OF NEW JERSEY

214th LEGISLATURE

INTRODUCED JULY 1. 2010

 


 

Sponsored by:

Senator† JAMES BEACH

District 6 (Camden)

Senator† ROBERT W. SINGER

District 30 (Burlington, Mercer, Monmouth and Ocean)

 

 

 

 

SYNOPSIS

†††† Authorizes prescribed burning in certain circumstances.

 

CURRENT VERSION OF TEXT

†††† As introduced.

††


An Act concerning prescribed burns, and supplementing Title 13 of the Revised Statutes.

 

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

 

†††† 1.††† This act shall be known, and may be cited, as the "Prescribed Burn Act."

 

†††† 2.††† The Legislature finds and declares that prescribed burning is a public safety tool the primary purpose of which is to reduce the danger of uncontrolled wildfire; that it is also a resource protection and land management technique which benefits forests and other natural resources, the environment, and the economy of the State; that prescribed burning reduces naturally occurring vegetative fuels within forested areas and other types of ecosystems, and thereby lessens the risk and severity of major wildfire and the possible resulting loss of life and property; that New Jersey's changing population places urban and suburban development directly adjacent to fire-prone lands; and that the use of prescribed fire to manage vegetative fuels in those interface areas would substantially reduce the threat of damaging wildfire in urban and suburban communities.

†††† The Legislature further finds and declares that forested land, agricultural land, grassland, coastal marshland, and other open lands constitute significant economic, biological, and aesthetic resources of Statewide importance; that the ecology of the Pine Barrens region in particular requires periodic fire for maintenance of ecological integrity; that proper prescribed burning on those lands serves to reduce hazardous accumulations of vegetative fuels, prepares sites for both natural and artificial forest regeneration, improves wildlife habitat, controls insects and disease, and perpetuates fire dependent ecosystems; and that proper application of prescribed burning is essential to the existence, continuation, restoration, and management of many plant and animal communities, and the resulting increase in vegetative growth and yield benefits rare, threatened, and endangered species, songbirds, and other game and nongame species.

†††† The Legislature also finds and declares that as New Jersey's population continues to grow, pressures from liability issues and smoke nuisance complaints cause prescribed burn practitioners to limit prescribed burn activity, thereby reducing the above described benefits of these burns to the State; and that public misunderstanding of the benefits of prescribed burning to the ecological and economic welfare of the State inhibits full use of this valuable resource management tool.

†††† The Legislature therefore determines that it is the purpose of this act to authorize and promote the continued use of prescribed burning for public safety, wildfire control, ecological, silvicultural, agricultural, and natural resource management purposes; that it is appropriate and useful to exempt prescribed burning, as authorized by this act, from other State and local laws and regulations prohibiting open burning or the burning of forests and other types of ecosystems; and that prescribed burning of forest fuels is to be considered a property right of a landowner.

 

†††† 3.††† As used in this act:

†††† "Certified prescribed burn manager" means a person who has been certified pursuant to section 4 of this act to conduct prescribed burns.

†††† "Forest fuel" means naturally occurring vegetative material found in forests, fields, grasslands, coastal marshlands, and other open lands.

†††† "Landowner or lessee" means the person responsible for the land upon which a prescribed burn is to be performed who (1) either owns or leases the land, and (2) has full access and control of the land at all times during the prescribed burn.

†††† "New Jersey Forest Fire Service" means the New Jersey Forest Fire Service in the Department of Environmental Protection established pursuant to R.S.13:9-1.

†††† "Prescribed burn" or "prescribed burning" means the controlled application of fire to forest fuels for public safety, wildfire control, ecological, silvicultural, agricultural, or natural resource management purposes, under specified environmental conditions and by following appropriate precautionary measures which cause the fire to be confined to a predetermined area, so as to accomplish planned land management objectives.

†††† "Prescribed burn plan" or "plan" means a written plan prepared in accordance with this act for starting, executing, and controlling a prescribed burn.

†††† "State Firewarden" means the State Firewarden designated as such pursuant to R.S.13:9-7.

†††† "State Forester" means the State Forester designated as such pursuant to section 17 of P.L.1983, c.324 (C.13:1L-17).

 

†††† 4.††† a.† The New Jersey Forest Fire Service shall develop and administer a program for the certification of prescribed burn managers.† The program shall include at least the following subjects:† safety; legal aspects of prescribed burning; fire behavior; prescribed burning tactics; smoke management; environmental effects; and preparation of prescribed burn plans.† The New Jersey Forest Fire Service shall establish the period for which a certification issued pursuant to this section shall be valid and the conditions and requirements for recertification under the program.

†††† b.††† The New Jersey Forest Fire Service may charge a reasonable fee to cover the costs associated with the program.† All such fees collected shall be credited to a special dedicated account in the General Fund and appropriated to the New Jersey Forest Fire Service to help pay for the administration and operation of its programs.

†††† c.†††† No person who desires to conduct a prescribed burn only on land for which the person is the landowner or lessee shall be required to become certified as a prescribed burn manager pursuant to this section.

†††† d.††† The State Firewarden, upon issuance of a written notice and after affording the opportunity for a hearing, may revoke a certification issued pursuant to this section if the certified prescribed burn manager or the prescribed burn violates any provision of this act, an approved prescribed burn plan, the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.) or any other State air pollution control law, or any rule or regulation adopted by the Department of Environmental Protection pursuant thereto, or otherwise threatens the public health or safety.† The State Firewarden, for any of those same causes, may immediately suspend a certification until such time as a revocation proceeding may be held and a decision rendered.

 

†††† 5.††† a.† A prescribed burn shall not be conducted on any land unless:

†††† (1)†† a† prescribed burn plan prepared in accordance with this act by a certified prescribed burn manager or the landowner or lessee has been filed with and approved by the State Firewarden, or the State Firewarden's designee, prior to the burn;

†††† (2)†† a copy of the prescribed burn plan is retained at the site throughout the period of the prescribed burn;

†††† (3)†† an authorization to burn is obtained from the State Firewarden, or the State Firewarden's designee, prior to starting the prescribed burn, and the certified prescribed burn manager or the landowner or lessee ensures that the burn is conducted in accordance with the prescribed burn plan and that sufficient personnel and fire control equipment are present throughout the period of the prescribed burn;

†††† (4)†† the fees which may be assessed by the State Firewarden for the review and approval of the prescribed burn plan pursuant to paragraph (1) of this subsection and for the issuance of the authorization pursuant to paragraph (3) of this subsection have been paid in full;

†††† (5)†† the appropriate public notice has been issued in accordance with this act and any rules or regulations adopted pursuant thereto; and

†††† (6)†† the nearest regional office of the New Jersey Forest Fire Service, and the local fire dispatch center, have been notified of the prescribed burn within 24 hours prior to starting it.

†††† b.††† A prescribed burn plan shall include at least the following:

†††† (1)†† the landowner's or lessee's name, address, and telephone number and any other appropriate contact information, including the name, address, and telephone number of the certified prescribed burn manager if applicable;

†††† (2)†† the geographic location of the prescribed burn;

†††† (3)†† the approximate number of acres to be burned;

†††† (4)†† provisions for notifying the public of the prescribed burn in accordance with the requirements of this act and any rules or regulations adopted pursuant thereto; and

†††† (5)†† such other provisions as the State Firewarden may deem necessary or appropriate.

†††† c.†††† The State Firewarden shall approve a properly prepared and filed prescribed burn plan unless the State Firewarden determines that the plan presents an unreasonable risk of (1) uncontrolled wildfire, or (2) harm to public health or safety.

†††† d.††† The State Firewarden may issue an authorization to burn pursuant to paragraph (3) of subsection a. of this section that is valid for an entire season or for such other period as the State Firewarden deems appropriate.

†††† e.†††† The New Jersey Forest Fire Service may charge reasonable fees to review a filed prescribed burn plan and to issue an authorization to burn.† All such fees collected shall be credited to a special dedicated account in the General Fund and appropriated to the New Jersey Forest Fire Service to help pay for the administration and operation of its programs.

 

†††† 6.††† a.† The New Jersey Forest Fire Service may prescribe burn or mechanically replicate a burn in any area of land within the State which is determined by the State Firewarden, or the State Firewarden's designee, to be in reasonable danger of wildfire, provided that, for lands not owned or controlled by the State, the New Jersey Forest Fire Service:

†††† (1)†† describes the areas that will be prescribe burned to the affected local governmental entity;

†††† (2)†† publishes a prescribed burn notice, which shall include a description of the area to be burned, in a conspicuous manner in at least one newspaper of general circulation in the area of the burn;

†††† (3)†† provides prior written notice, by certified mail or personal service, of the proposed prescribed burn to the landowner and lessee, if known, of any land that is included in the area to be prescribed burned, which notice shall be sent at least 30 days prior to the burn unless the State Firewarden makes a written finding that an emergency exists, in which case the prior written notice shall be sent as soon as possible after the finding is made; and

†††† (4)†† considers any landowner or lessee objections to the prescribed burning of the property.† An objecting landowner or lessee may apply to the State Firewarden for a review of alternative methods of forest fuel reduction on the property.† If the State Firewarden does not resolve the objection, the State Forester shall convene a panel composed of the local New Jersey 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.† If the panel's recommendation is not acceptable to the 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 pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

†††† b.††† No fees or costs shall be assessed to a landowner or lessee for a prescribed burn conducted by the New Jersey Forest Fire Service as authorized pursuant to this section.

 

†††† 7.††† a.† The State Firewarden may enter into a written agreement with a landowner, or a lessee with the landowner's written permission, to conduct a joint prescribed burn or mechanically replicate a burn on the landowner's property.† The agreement shall include, but need not be limited to, a prescribed burn plan for the property and a delineation of the respective roles of the New Jersey Forest Fire Service personnel, the landowner, the lessee, and the landowner's and lessee's agents and employees in carrying out the prescribed burn.

†††† b.††† If the prescribed burn is conducted by the New Jersey Forest Fire Service at the request of a landowner or lessee as authorized pursuant to subsection a. of this section, the New Jersey Forest Fire Service may assess the reasonable and normal costs thereof against the landowner or lessee, which shall be payable within 90 days after assessment.† If the landowner or lessee does not pay the assessed costs within 90 days, the costs may be deemed to be a penalty collectable in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).

†††† c.†††† All costs and penalties paid pursuant to this section shall be credited to a special dedicated account in the General Fund and appropriated to the New Jersey Forest Fire Service to help pay for the administration and operation of its programs.

 

†††† 8.††† a.† (1)† A prescribed burn conducted in accordance with the requirements of this act, an approved prescribed burn plan, the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.) and any other applicable State air pollution control law, and the rules and regulations adopted by the Department of Environmental Protection pursuant thereto shall be deemed to be in the public interest and shall not constitute arson, trespass, or a public or private nuisance.† The provisions of this paragraph shall also apply to smoke and ash caused by or arising from a prescribed burn.

†††† (2)†† No landowner or lessee, certified prescribed burn manager, or agent or employee thereof who conducts a prescribed burn in accordance with the requirements of this act, an approved prescribed burn plan, the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.) and any other applicable State air pollution control law, and the rules and regulations adopted by the Department of Environmental Protection pursuant thereto shall be liable for any damages or injury caused by fire or resulting smoke or ash unless it is proven that such person or entity was grossly negligent in starting, executing, or controlling the prescribed burn.

†††† (3)†† A landowner, lessee, or certified prescribed burn manager who allows a fire to escape from a prescribed burn and which fire requires intervention by the New Jersey Forest Fire Service shall reimburse the New Jersey Forest Fire Service for the reasonable and normal costs associated therewith.† Any reimbursement of costs paid pursuant to this paragraph shall be credited to a special dedicated account in the General Fund and appropriated to the New Jersey Forest Fire Service to help pay for the administration and operation of its programs.

†††† b.††† Without affecting any other limitations on liability that may be applicable, and notwithstanding the provisions of any other law, neither the State Firewarden nor any designee, agent, or employee thereof or of the New Jersey Forest Fire Service shall be personally liable for any damages or injury arising from or related to any act or omission of the State Firewarden or any designee, agent, or employee thereof or of the New Jersey Forest Fire Service when acting in an official capacity to carry out the provisions of this act.

†††† c.†††† Notwithstanding any State or local law, rule, regulation, ordinance, or resolution to the contrary, a prescribed burn conducted pursuant to this act, any rules and regulations adopted pursuant thereto, and an approved prescribed burn plan shall be deemed to not (1) be a source operation or source of an air contaminant, (2) be or tend to be injurious to human health or welfare, animal or plant life, or property, or (3) unreasonably interfere with the enjoyment of life or property, as those terms are used in the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.), and any rules or regulations adopted pursuant thereto, or any similar provision of any municipal or county ordinance, resolution, or regulation.† The provisions of this subsection shall also apply to smoke and ash caused by or arising from a prescribed burn.

 

†††† 9.††† Within 180 days after the date of enactment of this act, the Department of Environmental Protection and the New Jersey Forest Fire Service, in consultation with the Department of Agriculture, shall develop and adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), such rules and regulations as may be necessary to implement this act, which shall include, but need not be limited to, rules and regulations implementing the certification program for prescribed burn managers set forth in section 4 of this act and establishing any additional requirements concerning prescribed burns, prescribed burn plans, and the issuance of appropriate notice to the public of prescribed burns.

 

†††† 10.† This act shall take effect immediately.

 

 

STATEMENT

 

†††† This bill would establish a process for certifying individuals, and for allowing landowners and lessees, to conduct prescribed burns of forested and other undeveloped lands in order to prevent uncontrolled and damaging wildfires and to accomplish various land management objectives.† The bill would establish the procedures to be followed in conducting such burns, and it would authorize the New Jersey Forest Fire Service (NJFFS), under certain conditions, to conduct prescribed burns on any area of land within the State which is determined by the State Firewarden or designee thereof to be in reasonable danger of wildfire.† Finally, the bill would provide to landowners and lessees, certified prescribed burn managers, their agents and employees, and State employees and agents certain immunities against potential liability for damages or injury possibly resulting from a prescribed burn.

†††† Specifically, the bill would direct the New Jersey Forest Fire Service (NJFFS) to develop and administer a program for the certification of prescribed burn managers.† The program would include at least the following subjects: safety; legal aspects of prescribed burning; fire behavior; prescribed burning tactics; smoke management; environmental effects; and preparation of prescribed burn plans. †A landowner or lessee who wishes to conduct a prescribed burn on their own land would not have to become certified as a prescribed burn manager. †Under the billís provisions, a prescribed burn would not be conducted on any land unless:

†††† (1)†† a prescribed burn plan prepared by a certified prescribed burn manager or the landowner or lessee has been filed with and approved by the State Firewarden, or the State Firewarden's designee, prior to the burn;

†††† (2)†† a copy of the plan is retained at the site throughout the period of the prescribed burn;

†††† (3)†† an authorization to burn is obtained from the State Firewarden, or the State Firewarden's designee, prior to starting the prescribed burn, and the certified prescribed burn manager or the landowner or lessee ensures that the burn is conducted in accordance with the plan and that sufficient personnel and fire control equipment are present throughout the period of the prescribed burn;

†††† (4)†† the fees which may be assessed by the State Firewarden for the review and approval of the prescribed burn plan and for the issuance of the authorization to burn have been paid in full;

†††† (5)†† the appropriate public notice has been issued; and

†††† (6)†† the nearest regional office of the NJFFS, and the local fire dispatch center, have been notified of the prescribed burn within 24 hours prior to starting it.

†††† Under the bill, the State Firewarden would be directed to approve a properly prepared and filed prescribed burn plan unless the State Firewarden determines that the plan presents an unreasonable risk of (1) uncontrolled wildfire, or (2) harm to public health or safety.† The bill would also authorize the NJFFS to prescribe burn or mechanically replicate a burn on any area of land within the State which is determined by the State Firewarden, or the State Firewarden's designee, to be in reasonable danger of wildfire, provided that, for lands not owned or controlled by the State, the NJFFS:

†††† (1)†† describes the areas that will be prescribe burned to the affected local governmental entity;

†††† (2)†† publishes a prescribed burn notice, which would include a description of the area to be burned, in a conspicuous manner in at least one newspaper of general circulation in the area of the burn;

†††† (3)†† provides prior written notice, by certified mail or personal service, of the proposed prescribed burn to the landowner and lessee, if known, of any land that is included in the area to be prescribed burned, which notice would be sent at least 30 days prior to the burn unless the State Firewarden makes a written finding that an emergency exists, in which case the prior written notice shall be sent as soon as possible after the finding is made; and

†††† (4)†† considers any landowner or lessee objections to the prescribed burning of the property.

†††† Any such objecting landowner or lessee would be able to apply to the State Firewarden for a review of alternative methods of forest fuel reduction on the property. †If the State Firewarden does not resolve the objection, the State Forester must then convene a panel composed of the local NJFFS manager, the fire chief of the jurisdiction, and a local official designated by the municipality in which the land is located. †If the panel's recommendation is not acceptable to the landowner or lessee, the landowner or lessee may request further consideration by the Commissioner of Environmental Protection, and would thereafter be entitled to an administrative hearing pursuant to the "Administrative Procedure Act." †No fees or costs would be assessed to a landowner or lessee for a prescribed burn conducted by the NJFFS in these situations.

†††† The bill would also provide that the State Firewarden may enter into a written agreement with a landowner, or a lessee with the landowner's written permission, to conduct a joint prescribed burn or mechanically replicate a burn on the landowner's property.† If the prescribed burn is conducted by the NJFFS at the request of a landowner or lessee, the NJFFS may assess the reasonable and normal costs thereof against the landowner or lessee, which would be payable within 90 days after assessment.† If the landowner or lessee does not pay the assessed costs within 90 days, the costs may be deemed to be a penalty collectable in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999."

†††† All fees, costs, and penalties that are paid in accordance with the requirements and provisions of the bill would be credited to a special dedicated account in the General Fund and appropriated to the NJFFS to help pay for the administration and operation of its programs.

†††† Finally, the bill would provide to landowners, lessees, certified prescribed burn managers, their agents and employees, and State employees and agents certain immunities against potential liability for damages or injury possibly resulting from a prescribed burn.† The bill would also declare that a properly conducted prescribed burn would be deemed to be in the public interest, would not constitute arson, trespass, or a public or private nuisance, and would not be considered to be illegal air pollution.

†††† Prescribed burning is a resource protection and land management tool which promotes public safety and benefits the environment and the economy of the State.† Prescribed burning reduces naturally occurring vegetative fuels within forested and other undeveloped areas, and thereby lessens the risk and severity of major wildfire and the potential for resulting loss of life and property.† This bill would help authorize and promote the continued use of prescribed burning for these important purposes.