Senator Evan J. Vickers proposes the following substitute bill:


1     
FIRE RELATED AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Casey Snider

5     
Senate Sponsor: Evan J. Vickers

6     

7     LONG TITLE
8     General Description:
9          This bill addresses efforts to prevent and prepare for fires.
10     Highlighted Provisions:
11          This bill:
12          ▸     addresses prescribed fires, pile burns, and nonfull suppression events on private
13     land;
14          ▸     provides for transfers to the Wildland-urban Interface Prevention, Preparedness, and
15     Mitigation Fund;
16          ▸     modifies procedures related to closed fire seasons;
17          ▸     addresses when burning is allowed, including addressing when permits are required,
18     notice requirements, criminal penalties, and liability;
19          ▸     addresses the Wildland Fire Suppression Fund;
20          ▸     enacts provisions related to wildland-urban interface fire prevention, preparedness,
21     and mitigation including:
22               •     defining terms;
23               •     creating a funding mechanism;
24               •     permitting the division to create criteria related to a community wildfire
25     preparedness plan; and
26               •     requiring actions related to a community wildfire preparedness plan;
27          ▸     addresses rulemaking by the division;
28          ▸     repeals outdated language; and
29          ▸     makes technical and conforming amendments.
30     Money Appropriated in this Bill:
31          This bill appropriates in fiscal year 2024:
32          ▸      to the Wildland-urban Interface Prevention, Preparedness, and Mitigation Fund, as
33     a one-time appropriation:
34               •     from the Mineral Bonus Account, One-time, $2,000,000.
35     Other Special Clauses:
36          None
37     Utah Code Sections Affected:
38     AMENDS:
39          19-2a-105, as renumbered and amended by Laws of Utah 2020, Chapter 57
40          63I-2-265, as last amended by Laws of Utah 2022, Chapter 219
41          63J-1-314, as last amended by Laws of Utah 2017, Chapter 210
42          65A-8-204, as last amended by Laws of Utah 2021, Chapter 97
43          65A-8-211, as last amended by Laws of Utah 2016, Chapter 174
44          65A-8-213, as enacted by Laws of Utah 2019, Chapter 118
45     ENACTS:
46          65A-8-215, Utah Code Annotated 1953
47     REPEALS:
48          65A-8-214, as enacted by Laws of Utah 2022, Chapter 219
49     

50     Be it enacted by the Legislature of the state of Utah:
51          Section 1. Section 19-2a-105 is amended to read:
52          19-2a-105. Prescribed fires, pile burns, and nonfull suppression events.
53          (1) As used in this section:
54          (a) "Board" means the Air Quality Board.
55          (b) "Burn plan" means the plan required for each fire application ignited by a land
56     manager.
57          (c) "Burn window" means the period of time during which the prescribed fire is
58     scheduled for ignition.
59          (d) "Director" means the director of the division.
60          (e) "Division" means the Division of Air Quality created in Section 19-1-105.
61          (f) "Exceptional event" means one or more prescribed burning or pile burning events
62     and the resulting emissions that affect air quality in such a way that there exists a clear causal
63     relationship between the specific event and the monitored exceedance or violation.
64          (g) "Land manager" means a person who administers, directs, oversees, or controls the
65     use of public or private land, including the application of fire to the land.
66          (h) "Large prescribed fire" means a fire that a land manager ignites to meet a specific
67     objective, including a resource benefit that covers 20 acres or more per burn.
68          (i) "Large prescribed pile fire" means a fire that a land manager ignites to meet a
69     specific objective, including a resource benefit, that exceeds 30,000 cubic feet per day.
70          (j) "Nonfull suppression event" means a naturally ignited wildland fire for which a land
71     manager secures less than full suppression to accomplish a specific prestated resource
72     management objective in a predefined geographic area.
73          (k) "Pile burning" means a fire or fires that a land manager ignites for fuel mitigation
74     designed to reduce the risk of catastrophic fire, improve ecological health, and prevent
75     dangerous wildfires by burning piled or scattered leaves, pine needles, downed trees, natural
76     woody debris, thick vegetation, or similar organic material left behind after logging or other
77     forest treatments.
78          (l) "Prescribed burning" means the planned and controlled burning of plant material in
79     order to minimize the risk of catastrophic wildfire or to meet specific land management
80     objectives.
81          (m) "Wildland" means an area in which development is essentially nonexistent other
82     than the existence of a pipeline, power line, road, railroad, or other transportation or
83     conveyance facility or one or more structures that are widely scattered.
84          (2) (a) The division may not permit a land manager to conduct a large prescribed fire or
85     large prescribed pile fire if the land manager does not comply with the rules made by the board
86     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
87          (b) In the rules made by the board under this Subsection (2), the board shall require the
88     land manager to:
89          (i) describe the use of a state, county, or municipal resource in the large prescribed fire
90     or large prescribed pile fire;
91          (ii) provide the division the burn plan for a large prescribed fire or large prescribed pile
92     fire by no later than one week before the day of the burn window; and
93          (iii) notify the division of a nonfull suppression event once a fire becomes a nonfull
94     suppression event.
95          (3) The director shall approve a prescribed burning or pile burning in wildland areas
96     and the prescribed burning or pile burning may be conducted under the following conditions:
97          (a) the United States National Weather Service clearing index in the area of the burn is
98     500 or greater;
99          (b) the United States National Weather Service clearing index in the area of the burn is
100     less than 500, and to maximize the opportunities for prescribed burning or pile burning the
101     director approves a prescribed burning or pile burning after the land manager demonstrates to
102     the director that the planned prescribed burning or pile burning will:
103          (i) not cause an exceedance of a national ambient air quality standard outside the
104     wildland area;
105          (ii) minimize the long range transport of smoke; and
106          (iii) protect visibility in mandatory federal class 1 areas; or
107          (c) the United States National Weather Service clearing index in the burn area is less
108     than 500 and the prescribed burning or pile burning may cause an exceedance of a national
109     ambient air quality standard outside the wildland area if the land manager demonstrates to the
110     director that the prescribed burning or pile burning fuel conditions are optimal to:
111          (i) protect safety of the public and fire staff;
112          (ii) minimize the risk of catastrophic fire;
113          (iii) achieve necessary watershed and ecological conditions; and
114          (iv) establish, restore, or maintain a sustainable and resilient wildland ecosystem or to
115     preserve endangered or threatened species through a program of prescribed burning or pile
116     burning.
117          (4) The director shall approve a prescribed burning or pile burning to reduce hazardous
118     fuels for public safety in areas not defined as wildland and the prescribed burning or pile
119     burning may be conducted under the following conditions:
120          (a) the United States National Weather Service clearing index in the area of the burn is
121     500 or greater; or
122          (b) the United States National Weather Service clearing index in the area of the burn is
123     less than 500, and to maximize the opportunities for prescribed burning or pile burning the
124     director approves a prescribed burning or pile burning after the land manager:
125          (i) provides a demonstration that includes an assessment of the impact to local
126     receptors;
127          (ii) implements measures to notify residents; and
128          (iii) minimizes residents exposure to smoke.
129          (5) The director shall approve a prescribed burning or pile burning for resource
130     management purposes in areas not defined as wildland and the prescribed burning or pile
131     burning may be conducted under the following conditions:
132          (a) the United States National Weather Service clearing index in the area of the burn is
133     500 or greater; or
134          (b) the United States National Weather Service clearing index in the area of the burn is
135     less than 500, and to maximize the opportunities for prescribed burning or pile burning the
136     director approves a prescribed burning or pile burning after the land manager demonstrates that
137     the planned prescribed burning or pile burning will:
138          (i) not cause an exceedance of a national ambient air quality standard;
139          (ii) minimize the long range transport of smoke; and
140          (iii) protect visibility in mandatory federal class 1 areas.
141          (6) The division shall make the necessary filings with the United States Environmental
142     Protection Agency if a prescribed burning or pile burning approved by the director results in an
143     exceptional event.
144          Section 2. Section 63I-2-265 is amended to read:
145          63I-2-265. Repeal dates: Title 65A.
146          [Section 65A-8-214, wildfire prevention and preparedness program and study, is
147     repealed July 1, 2023.]
148          Section 3. Section 63J-1-314 is amended to read:
149          63J-1-314. Deposits related to the Wildland Fire Suppression Fund and the
150     Disaster Recovery Funding Act.
151          (1) As used in this section, "operating deficit" means that, at the end of the fiscal year,
152     the unassigned fund balance in the General Fund is less than zero.
153          (2) Except as provided under Subsections (3) and (4), at the end of each fiscal year, the
154     Division of Finance shall, after the transfer of General Fund revenue surplus has been made to
155     the Medicaid Growth Reduction and Budget Stabilization Account, as provided in Section
156     63J-1-315, and the General Fund Budget Reserve Account, as provided in Section 63J-1-312,
157     transfer:
158          (a) to the Wildland Fire Suppression Fund created in Section 65A-8-204 an amount
159     equal to the lesser of:
160          (i) $4,000,000; or
161          (ii) an amount necessary to make the balance in the Wildland Fire Suppression Fund
162     equal to $12,000,000; [and]
163          (b) if no money is transferred to the Wildland Fire Suppression Fund under Subsection
164     (2)(a), to the Wildland-urban Interface Prevention, Preparedness, and Mitigation Fund created
165     in Section 65A-8-215 an amount equal to the lesser of:
166          (i) $4,000,000; and
167          (ii) the amount necessary to make the balance in the Wildland-urban Interface
168     Prevention, Preparedness, and Mitigation Fund equal to $12,000,000; and
169          [(b)] (c) an amount into the State Disaster Recovery Restricted Account, created in
170     Section 53-2a-603, from the General Fund revenue surplus as defined in Section 63J-1-312,
171     calculated by:
172          (i) determining the amount of General Fund revenue surplus after the transfer to the
173     Medicaid Growth Reduction and Budget Stabilization Account under Section 63J-1-315, the
174     General Fund Budget Reserve Account under Section 63J-1-312, and the transfer to the
175     Wildland Fire Suppression Fund as described in Subsection (2)(a);
176          (ii) calculating an amount equal to the lesser of:
177          (A) 25% of the amount determined under Subsection [(2)(b)(i)] (2)(c)(i); or
178          (B) 6% of the total of the General Fund appropriation amount for the fiscal year in
179     which the surplus occurs; and
180          (iii) adding to the amount calculated under Subsection [(2)(b)(ii)] (2)(c)(ii) an amount
181     equal to the lesser of:
182          (A) 25% more of the amount described in Subsection [(2)(b)(i)] (2)(c)(i); or
183          (B) the amount necessary to replace, in accordance with this Subsection [(2)(b)(iii)]
184     (2)(c)(iii), any amount appropriated from the State Disaster Recovery Restricted Account
185     within 10 fiscal years before the fiscal year in which the surplus occurs if:
186          (I) a surplus exists; and
187          (II) the Legislature appropriates money from the State Disaster Recovery Restricted
188     Account that is not replaced by appropriation or as provided in this Subsection [(2)(b)(iii)]
189     (2)(c)(iii).
190          (3) (a) Notwithstanding Subsection (2), if, at the end of a fiscal year, the Division of
191     Finance determines that an operating deficit exists, the division shall reduce the transfer to the
192     State Disaster Recovery Restricted Account by an amount necessary to eliminate the operating
193     deficit, up to the full amount of the transfer.
194          (b) If, after reducing the transfer to the State Disaster Recovery Account to zero under
195     Subsection (3)(a), the Division of Finance determines that an operating deficit still exists, the
196     division shall reduce the transfer to the Wildland Fire Suppression Fund by an amount
197     necessary to eliminate the operating deficit, up to the full amount of the transfer.
198          (4) Notwithstanding Subsection (2):
199          (a) for the period beginning July 1, 2015, and ending June 30, 2020, the Division of
200     Finance shall transfer to the Local Government Emergency Response Loan Fund 25% of the
201     amount to be transferred into the State Disaster Recovery Restricted Account as provided in
202     Subsection [(2)(b)(ii)] (2)(c)(ii); and
203          (b) on and after July 1, 2020, the Division of Finance shall transfer to the Local
204     Government Emergency Response Loan Fund 10% of the amount to be transferred into the
205     State Disaster Recovery Restricted Account as provided in Subsection [(2)(b)] (2)(c).
206          Section 4. Section 65A-8-204 is amended to read:
207          65A-8-204. Wildland Fire Suppression Fund created.
208          (1) There is created an expendable special revenue fund known as the "Wildland Fire
209     Suppression Fund."
210          (2) The [fund] Wildland Fire Suppression Fund shall be administered by the division to
211     pay wildfire suppression costs on eligible lands, as wildfire suppression costs are defined by
212     the division by rule made in accordance with Title 63G, Chapter 3, Utah Administrative
213     Rulemaking Act, including for an eligible entity that has entered into a cooperative agreement,
214     as described in Section 65A-8-203.
215          (3) Subject to Section 65A-8-213, the contents of the [fund] Wildland Fire Suppression
216     Fund shall include:
217          (a) interest and earnings from the investment of fund money;
218          (b) money appropriated by the Legislature;
219          [(c) costs recovered from successful investigations;]
220          [(d)] (c) federal funds received by the division for wildfire management costs;
221          [(e)] (d) suppression costs billed to an eligible entity that does not participate in a
222     cooperative agreement;
223          [(f)] (e) suppression costs paid to the division by another state agency;
224          [(g)] (f) costs recovered from settlements and civil or administrative actions related to
225     wildfire suppression;
226          [(h)] (g) restitution payments ordered by a court following a criminal adjudication;
227          [(i)] (h) the balance of the fund as of July 1, 2016;
228          [(j)] (i) money deposited by the Division of Finance, pursuant to Section 59-21-2; and
229          [(k)] (j) money transferred by the Division of Finance, pursuant to Section 63J-1-314.
230          (4) Fund money shall be invested by the state treasurer with the earnings and interest
231     accruing to the [fund] Wildland Fire Suppression Fund.
232          Section 5. Section 65A-8-211 is amended to read:
233          65A-8-211. Closed fire season -- Notice -- Violations -- Red Flag Warnings --
234     Burning permits -- Personal liability -- Exemptions from burning permits.
235          (1) As used in this section:
236          (a) "Applicable public safety answering point" means a public safety answering point
237     or dispatch center, as those terms are defined in Section 63H-7a-103, for the jurisdiction where
238     a burning occurs.
239          (b) "Cultivated land" means land that is not enrolled in a conservation reserve program
240     that is readily identifiable as:
241          (i) land whose soil is loosened or broken up for the raising of crops;
242          (ii) land used for the raising of crops; or
243          (iii) pasturage that is artificially irrigated.
244          (c) "Field" means land where grass, grain, stubble, or hay may be burned in accordance
245     with this section.
246          (d) "Red Flag Warning" means a weather forecast issued by the National Weather
247     Service on a publicly available website or notification system indicating that weather
248     conditions associated with the outbreak of wildfires are occurring.
249          [(1)] (2) (a) The period from June 1 to October 31 of each year is a closed fire season
250     throughout the state.
251          (b) The state forester may advance or extend the closed season wherever and whenever
252     that action is necessary.
253          (c) [The] The state forester shall notify the public of the alteration of the closed season
254     [is done] by posting the appropriate proclamation [in the courthouse of each county seat] on the
255     division's website and on the Utah Public Notice Website, created in Section 63A-16-601, for
256     at least seven days in advance of the date the change is effective.
257          [(2)] (3) During the closed fire season [it is], an individual is guilty of a class [B] C
258     misdemeanor [to set] if the individual sets on fire, or [cause] causes to be set on fire[, any
259     flammable material on any]:
260          (a) (i) a forest[,];
261          (ii) brush[,];
262          (iii) range[, grass, grain, stubble, or hay land];
263          (iv) a field;
264          (v) cultivated land; or
265          (vi) a debris pile; and
266          (b) without:
267          [(a)] (i) first securing a written permit from the state forester or a [designated] deputy
268     designated by the state forester; [and]
269          [(b)] (ii) complying fully with [the terms and conditions prescribed by] the permit[.]
270     described in Subsection (3)(b)(i); and
271          (iii) subject to Subsection (10), first notifying the state forester, the state forester's
272     designee, or the applicable public safety answering point of the approximate time the burning
273     will occur.
274          (4) During a period when a Red Flag Warning is issued, an individual is guilty of a
275     class C misdemeanor if the individual sets on fire, or causes to be set on fire:
276          (a) (i) a forest;
277          (ii) brush;
278          (iii) range;
279          (iv) a field;
280          (v) cultivated land;
281          (vi) a fence line;
282          (vii) a canal; or
283          (viii) an irrigation ditch; and
284          (b) without:
285          (i) first securing a written permit from the state forester or a deputy designated by the
286     state forester;
287          (ii) complying fully with the permit described in Subsection (4)(b)(i); and
288          (iii) subject to Subsection (10), first notifying the state forester, the state forester's
289     designee, or the applicable public safety answering point of the approximate time the burning
290     will occur.
291          [(3)] (5) [The county fire warden, or the county sheriff in a county that has not entered
292     into a cooperative agreement as described in Section 65A-8-203,] The state forester or the state
293     forester's designee shall issue burning permits using the form prescribed by the division.
294          [(4)] (6) (a) The burning permit does not relieve an individual from personal liability
295     [due to neglect or incompetence] as a result of damage caused by the fire.
296          (b) A fire escaping control of the permittee that necessitates fire control action or does
297     injury to the property of another is prima facie evidence that due care was not used in the
298     burning and that the fire was not safe.
299          [(5)] (7) [The state forester, the state forester's designees, and the county sheriffs] The
300     following may refuse, revoke, postpone, or cancel [permits when they find it] a permit if the
301     person finds that it is necessary in the interest of public safety[.]:
302          (a) the state forester;
303          (b) a state forester's designee; or
304          (c) a county sheriff if there is no cooperative agreement with the division as described
305     in Section 65A-8-203.
306          [(6)] (8) (a) [A] Except for during a Red Flag Warning as described in Subsection
307     (4)(a), a burning permit is not required:
308          (i) for the burning within 10 feet of:
309          (A) fence lines on cultivated lands[,];
310          (B) the banks of canals[,]; or
311          (C) the banks of irrigation ditches; and
312          (ii) if:
313          [(i)] (A) the burning does not pose a threat to forest, range, or watershed lands;
314          [(ii)] (B) due care is used in the control of the burning; and
315          [(iii)] (C) [the individual notifies the nearest fire department of the approximate time
316     the burning will occur] subject to Subsection (10), the individual notifies the state forester, the
317     state forester's designee, or the applicable public safety answering point of the approximate
318     time the burning will occur.
319          (b) [Failure] For a burning with or without a permit, an individual is guilty of a class C
320     misdemeanor if the individual fails to notify, subject to Subsection (10), the [nearest fire
321     department] state forester, the state forester's designee, or the applicable safety answering point
322     of [the] a burning as required by this section [is a class B misdemeanor].
323          [(7)] (9) A burning conducted in accordance with Subsection [(6)] (8) is not a reckless
324     burning under Section 76-6-104 unless the fire escapes control and requires fire control action.
325          (10) (a) The state forester or state forester's designee shall annually determine the
326     notification process for a jurisdiction after receiving approval from the following for the
327     jurisdiction:
328          (i) the applicable municipal chief, county fire warden, or state forester's designee; and
329          (ii) the governing body of the one or more applicable public safety answering points.
330          (b) On June 1 of each year, beginning with June 1, 2023, the state forester or state
331     forester's designee shall publish for each jurisdiction the notification process adopted under
332     Subsection (10)(a) on the division's website and on the Utah Public Notice Website created in
333     Section 63A-16-601.
334          (c) If the state forester or state forester's designee cannot determine the notification
335     process for a jurisdiction, a person is required to notify the applicable public safety answering
336     point.
337          Section 6. Section 65A-8-213 is amended to read:
338          65A-8-213. Creation of the Wildland Fire Preparedness Grants Fund --
339     Awarding of grants -- Rulemaking.
340          (1) (a) There is created an expendable special revenue fund known as the "Wildland
341     Fire Preparedness Grants Fund."
342          (b) The Wildland Fire Preparedness Grants Fund shall consist of:
343          (i) voluntary contributions received;
344          (ii) appropriations the Legislature makes to the Wildland Fire Preparedness Grants
345     Fund;
346          (iii) 10% of the costs recovered annually related to wildfire suppression described in
347     Subsections [65A-8-204(3)(g) and (h)] 65A-8-204(3)(f) and (g); and
348          (iv) interest or other earnings accrued in accordance with Subsection (1)(c)(ii).
349          (c) The state treasurer shall:
350          (i) invest the money in the Wildland Fire Preparedness Grants Fund described in
351     Subsection (1)(a) following the procedures and requirements of Title 51, Chapter 7, State
352     Money Management Act; and
353          (ii) deposit all interest or other earnings derived from each investment described in
354     Subsection (1)(c)(i) into the Wildland Fire Preparedness Grants Fund.
355          (2) (a) The state forester shall make one or more grants from the Wildland Fire
356     Preparedness Grants Fund to one or more local fire departments or volunteer fire departments
357     to assist in building capacity for the suppression of wildland fire.
358          (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
359     division shall make rules establishing criteria for receiving a grant under this section.
360          Section 7. Section 65A-8-215 is enacted to read:
361          65A-8-215. Wildland-urban interface fire prevention, preparedness, and
362     mitigation.
363          (1) As used in this section:
364          (a) "Prevention, preparedness, and mitigation fund" means the Wildland-urban
365     Interface Prevention, Preparedness, and Mitigation Fund created in this section.
366          (b) "Suppression fund" means the Wildland Fire Suppression Fund created in Section
367     65A-8-204.
368          (c) "Wildland-urban interface" means the zone where structures and other human
369     development meets, or intermingles with, undeveloped wildland.
370          (2) (a) There is created an expendable special revenue fund known as the
371     "Wildland-urban Interface Prevention, Preparedness, and Mitigation Fund."
372          (b) The prevention, preparedness, and mitigation fund shall consist of:
373          (i) interest and earnings from the investment of money from the prevention,
374     preparedness, and mitigation fund;
375          (ii) money appropriated by the Legislature; and
376          (iii) money transferred to the prevention, preparedness, and mitigation fund under
377     Section 63J-1-314.
378          (c) The division shall administer the prevention, preparedness, and mitigation fund to:
379          (i) pay costs of prevention and preparedness efforts on wildland-urban interface within
380     the state, as defined by the division by rule made in accordance with Title 63G, Chapter 3, Utah
381     Administrative Rulemaking Act, including costs of an eligible entity that has entered into a
382     cooperative agreement, as described in Section 65A-8-203;
383          (ii) issue fire department assistance grants, which in the aggregate may not exceed 10%
384     of the money in the prevention, preparedness, and mitigation fund each fiscal year; and
385          (iii) in cases of catastrophic need as determined by the state forester, pay costs that
386     could be paid from the suppression fund under Section 65A-8-204.
387          (d) Disbursements from the prevention, preparedness, and mitigation fund may only be
388     made upon written order of the state forester or the state forester's authorized representative.
389          (3) (a) The division may by rule, made in accordance with Title 63G, Chapter 3, Utah
390     Administrative Rulemaking Act, establish criteria for community wildfire preparedness plans
391     addressing wildland-urban interface. The criteria shall require action that is:
392          (i) qualitative and quantitative; and
393          (ii) leads to reduced wildfire risk.
394          (b) An eligible entity, as defined in Section 65A-8-203, shall agree to implement
395     prevention, preparedness, and mitigation actions identified in a community wildfire
396     preparedness plan addressing wildland-urban interface that is approved by the division.
397          Section 8. Repealer.
398          This bill repeals:
399          Section 65A-8-214, Wildfire prevention and preparedness program -- Study.
400          Section 9. Appropriation.
401          The following sums of money are appropriated for the fiscal year beginning July 1,
402     2023, and ending June 30, 2024. These are additions to amounts previously appropriated for
403     fiscal year 2024. Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures
404     Act, the Legislature appropriates the following sums of money from the funds or accounts
405     indicated for the use and support of the government of the state of Utah.
406     ITEM 1
407     To Wildland-urban Interface Prevention, Preparedness, and Mitigation Fund
408          From Mineral Bonus Account, One-time
2,000,000

409          Schedule of Programs:
410               Wildland-urban Interface Prevention, Preparedness, and
411                Mitigation Fund                              2,000,000