SENATE BUDGET AND APPROPRIATIONS COMMITTEE

STATEMENT TO

SENATE, No. 2140

STATE OF NEW JERSEY

DATED:  JUNE 18, 2018

      The Senate Budget and Appropriations Committee reports favorably Senate Bill No. 2140.

      This bill authorizes and promotes the continued use of prescribed burning for public safety, wildfire control, and ecological, silvicultural, agricultural, and natural resource management purposes.

      The bill directs the Department of Environmental Protection (DEP) to develop and administer a program for prescribed burning on public and private lands pursuant to a prescribed burn plan approved by the department.  "Prescribed burn" or "prescribed burning" is defined in the bill as 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. “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.

      The bill authorizes the DEP to charge a reasonable fee to cover the costs associated with the program.  All such fees collected would be deposited into 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.  The bill also provides that a person who desires to conduct a prescribed burn only on land for which the person is the landowner or lessee would not be required to complete and receive certification from a program of education approved by the DEP.

      The bill authorizes the DEP to conduct a prescribed burn or 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.  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 would:

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

      2)   publish a prescribed burn notice, which would include an explanation of the purpose of the prescribed burn and a description of the area 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 personal service, of the proposed prescribed burn to each affected landowner and lessee, if known, of the purpose of the prescribed burn and the description of any land that is included in the area to be burned in the prescribed burn, which notice would 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 would be sent as soon as possible after the finding is made; and

      4)   consider any landowner’s or lessee’s objections to the prescribed burning of the property.

      The bill provides that 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 of Natural and Historic Resources in the DEP or a designee thereof would 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 would review the prescribed burning of the property, objections to the prescribed burn, and the proposed alternative fuel reduction methods, and would recommend a course of action to reduce the wildland fire fuels. If the panel's recommendation is not acceptable to the objecting landowner or lessee, the bill authorizes the landowner or lessee to request further consideration by the Commissioner of Environmental Protection or the commissioner's designee, and the landowner or lessee would be entitled to an administrative hearing as a contested case pursuant to the "Administrative Procedure Act."

      The bill also authorizes the DEP to 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.

      The bill addresses certain liability issues in connection with prescribed burns.  The bill provides that a prescribed burn, including the smoke and ash and other air pollution deriving from the prescribed burn, would be deemed to be in the public interest and would not constitute arson, trespass, or a public or private nuisance if the prescribed burn is conducted in accordance with the requirements of the bill and a DEP approved prescribed burn plan. A landowner or lessee who conducts a prescribed burn in accordance with an approved prescribed burn plan, the requirements of the bill, and any rules and regulations adopted pursuant thereto would not be liable for any damages or injury caused by fire or the resulting smoke or ash, unless it is proven that the landowner or lessee was negligent in starting, executing, or controlling the prescribed burn.  Also, any person who conducts a prescribed burn in accordance with an approved prescribed burn plan, the requirements of the bill, and any rules and regulations adopted pursuant thereto would not be liable for any penalties for violations pursuant to the provisions of the “Air Pollution Control Act (1954).”

      In a private civil action arising from the conducting of a prescribed burn, any damages or injury caused by the fire or the resulting smoke or ash, proof of compliance with the requirements and standards established pursuant to this bill would be admissible evidence that the duty of care for conducting a prescribed burn has been met.  Nevertheless, a landowner or lessee would still be obligated to reimburse the DEP for the reasonable and normal costs associated with the prescribed burn.  If the fire escapes due to the negligence of the landowner or lessee, the landowner or lessee would also be subject to penalties established by the DEP for such negligence. Any reimbursement of costs would be credited to a special dedicated account in the General Fund and appropriated to the Forest Fire Service to pay for the administration and operation of its forest fire programs.  The bill provides that, without affecting any other limitations on liability that may be applicable, the DEP and any designee, agent, or employee thereof would be immune from liability for any damages or injury arising from or related to any act or omission taken in the good faith performance of the DEP and any designee, agent, or employee thereof.

      Finally, the bill, directs the DEP, in consultation with the Department of Agriculture, to adopt regulations necessary to implement the bill.

      As reported, this bill is identical to Assembly Bill No. 1675 (1R), as also reported by the committee.

FISCAL IMPACT:

      The Office of Legislative Services (OLS) estimates that the Department of Environmental Protection (DEP) would incur startup costs and additional operating costs of indeterminate amount that could at least be partially recovered from the various fees that the bill permits. No specific information or data is available to estimate the cost of developing and administering a program for prescribed burning on public and private lands and conducting prescribed burns. 

      The bill allows the DEP to charge fees to cover the costs associated with the program. The State revenue increase from fees is indeterminate. The OLS has no information from which to estimate the frequency with which fees or charges associated with prescribed burns would be imposed, or the fee schedule that would be adopted by the DEP under this bill.

      According to informal information provided by the DEP, at least one additional employee and other material resources would be needed by the department to develop and administer a prescribed burn program and to comply with the other provisions of the bill.