BILL NUMBER: AB 2420 CHAPTERED 09/23/04 CHAPTER 712 FILED WITH SECRETARY OF STATE SEPTEMBER 23, 2004 APPROVED BY GOVERNOR SEPTEMBER 23, 2004 PASSED THE ASSEMBLY AUGUST 26, 2004 PASSED THE SENATE AUGUST 25, 2004 AMENDED IN SENATE AUGUST 23, 2004 AMENDED IN SENATE AUGUST 17, 2004 AMENDED IN SENATE JULY 2, 2004 AMENDED IN ASSEMBLY APRIL 27, 2004 INTRODUCED BY Assembly Member La Malfa (Coauthors: Assembly Members Cox, Jackson, and Wolk) FEBRUARY 19, 2004 An act to amend Section 4584 of the Public Resources Code, relating to forest resources, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 2420, La Malfa. Forest resources. (1) The Z'Berg-Nejedly Forest Practice Act of 1973 generally prohibits a person from conducting timber operations unless the person has submitted a timber harvesting plan to the Department of Forestry and Fire Protection and received approval of the plan from the Director of Forestry and Fire Protection. Existing law authorizes the State Board of Forestry and Fire Protection to exempt from the act a person engaged in specified forest management activities, if the exemption is consistent with the purposes of the act. Existing law provides that a willful violation of the act or a regulation of the board is a crime. This bill would authorize, until January 1, 2008, the board to exempt from the act, if the exemption is consistent with the purposes of the act, the harvesting of trees, limited to those trees that eliminate the vertical continuity of vegetative fuels and the horizontal continuity of tree crowns, for the purpose of reducing the rate of fire spread, fire duration and intensity, fuel ignitability, or ignition of tree crowns, if specified requirements are met. The bill would require the department, after timber operations are complete, to conduct an on-site inspection, as specified. Because a willful violation of the exemption requirements would be a crime, the bill would impose a state-mandated local program. The bill would make legislative findings and declarations regarding wildfires. (2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. The bill would provide that no reimbursement is required by this act for a specified reason. (3) The bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature hereby finds and declares all of the following: (a) Past disruptions of natural fire cycles and other activities have resulted in wildfires of increasing intensity and severity that are a threat to the forest ecosystem, air quality, fresh water supplies, private citizens, emergency services personnel, and the overall public health and safety of California. (b) Healthy forests are a common goal for Californians, but overstocked forests cause increased tree mortality resulting in the build up of flammable fuels. The treatment of these hazardous fuels will reduce the impact of wildfires on communities and natural and cultural resources, and will restore health to fire-adapted ecosystems. (c) Under the National Fire Plan, promulgated by the western Governors, the hazardous fuel treatment program has expanded significantly, with a greater focus on treatments intended to protect communities in the wildland urban interface. (d) Opportunities to capture the federal funding available for the reduction of hazardous fuels from unhealthy forests near communities determined to be at risk, by the Department of Forestry and Fire Protection, from catastrophic wildfires are currently available pursuant to the bipartisan passage of Public Law 108-148. (e) To better coordinate with and garner federal funding, California needs to expedite projects to increase safety for the forest ecosystem, air quality, fresh water supplies, private citizens, emergency services personnel, and the overall public health and safety of California, by reducing fire risks where ecosystem and public safety risks are excessive. SEC. 2. Section 4584 of the Public Resources Code is amended to read: 4584. Upon determining that the exemption is consistent with the purposes of this chapter, the board may exempt from this chapter or portions thereof, a person engaged in forest management whose activities are limited to any of the following: (a) The cutting or removal of trees for the purpose of constructing or maintaining a right-of-way for utility lines. (b) The planting, growing, nurturing, shaping, shearing, removal, or harvest of immature trees for Christmas trees or other ornamental purposes or minor forest products, including fuelwood. (c) The cutting or removal of dead, dying, or diseased trees of any size. (d) Site preparation. (e) Maintenance of drainage facilities and soil stabilization treatments. (f) Timber operations on land managed by the Department of Parks and Recreation. (g) (1) The one-time conversion of less than three acres to a nontimber use. No person, whether acting as an individual or as a member of a partnership, or as an officer or employee of a corporation or other legal entity, may obtain more than one exemption pursuant to this subdivision in a five-year period. If a partnership has as a member, or if a corporation or any other legal entity has as an officer or employee, a person who has received this exemption within the past five years, whether as an individual or as a member of a partnership, or as an officer or employee of a corporation or other legal entity, then that partnership, corporation, or other legal entity is not eligible for this exemption. "Person," for purposes of this subdivision, means an individual, partnership, corporation, or any other legal entity. (2) (A) Notwithstanding Section 4554.5, the board shall adopt regulations that become effective and operative on or before July 1, 2002, and do all of the following: (i) Identify the required documentation of a bona fide intent to complete the conversion that an applicant will need to submit in order to be eligible for the exemption in paragraph (1). (ii) Authorize the department to inspect the sites approved in conversion applications that have been approved on or after January 1, 2002, in order to determine that the conversion was completed within the two-year period described in subparagraph (B) of paragraph (2) of subdivision (a) of Section 1104.1 of Title 14 of the California Code of Regulations. (iii) Require the exemption under this subdivision to expire if there is a change in timberland ownership. The person who originally submitted an application for an exemption under this subdivision shall notify the department of a change in timberland ownership on or before five calendar days after a change in ownership. (iv) The board may adopt regulations allowing a waiver of the five-year limitation described in paragraph (1) upon finding that the imposition of the five-year limitation would impose an undue hardship on the applicant for the exemption. The board may adopt a process for an appeal of a denial of a waiver. (B) The application form for the exemption pursuant to paragraph (1) shall prominently advise the public that violations of the conversion exemption, including conversions applied for in the name of someone other than the person or entity implementing the conversion in bona fide good faith, is a violation of this chapter and penalties may accrue up to ten thousand dollars ($10,000) for each violation pursuant to Article 8 (commencing with Section 4601). (h) Easements granted by a right-of-way construction agreement administered by the federal government if any timber sales and operations within or affecting these areas are reviewed and conducted pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.). (i) The cutting, removal, or sale of timber or other solid wood forest products from the species Taxus brevifolia (Pacific yew), if the known locations of any stands of this species three inches and larger in diameter at breast height are identified in the exemption notice submitted to the department. Nothing in this subdivision is intended to authorize the peeling of bark from, or the cutting or removal of, Taxus brevifolia within a watercourse and lake protection zone, special treatment area, buffer zone, or other area where timber harvesting is prohibited or otherwise restricted pursuant to board rules. (j) (1) The cutting or removal of trees in compliance with Sections 4290 and 4291, that eliminates the vertical continuity of vegetative fuels and the horizontal continuity of tree crowns for the purpose of reducing flammable materials and maintaining a fuel break for a distance of not more than 150 feet on each side from an approved and legally permitted structure that complies with the California Building Code, when that cutting or removal is conducted in compliance with this subdivision. For purposes of this subdivision, an "approved and legally permitted structure" includes only structures that are designed for human occupancy and garages, barns, stables, and structures used to enclose fuel tanks. (2) (A) The cutting or removal of trees pursuant to this subdivision is limited to cutting or removal that will result in a reduction in the rate of fire spread, fire duration and intensity, fuel ignitability, or ignition of the tree crowns and shall be in accordance with any regulations adopted by the board pursuant to this section. (B) Trees may not be cut or removed pursuant to this subdivision by the clearcutting regeneration method, by the seed tree removal step of the seed tree regeneration method, or by the shelterwood removal step of the shelterwood regeneration method. (3) (A) Surface fuels, including logging slash and debris, low brush, and deadwood, that could promote the spread of wildfire shall be chipped, burned, or otherwise removed from all areas of timber operations within 45 days from the date of commencement of timber operations pursuant to this subdivision. (B) (i) All surface fuels that are not chipped, burned, or otherwise removed from all areas of timber operations within 45 days from the date of commencement of timber operations may be determined to be a nuisance and subject to abatement by the department or the city or county having jurisdiction. (ii) The costs incurred by the department, city, or county, as the case may be, to abate the nuisance upon any parcel of land subject to the timber operations, including, but not limited to, investigation, boundary determination, measurement, and other related costs, may be recovered by special assessment and lien against the parcel of land by the department, city, or county. The assessment may be collected at the same time and in the same manner as ordinary ad valorem taxes, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as is provided for ad valorem taxes. (4) All timber operations conducted pursuant to this subdivision shall conform to applicable city or county general plans, city or county implementing ordinances, and city or county zoning ordinances. Nothing in this paragraph is intended to authorize the cutting, removal, or sale of timber or other solid wood forest products within an area where timber harvesting is prohibited or otherwise restricted pursuant to the rules or regulations adopted by the board. (5) (A) The board shall adopt regulations, initially as emergency regulations in accordance with subparagraph (B), that the board considers necessary to implement and to obtain compliance with this subdivision. (B) The emergency regulations adopted pursuant to subparagraph (A) shall be adopted in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The adoption of emergency regulations shall be deemed to be an emergency and necessary for the immediate preservation of the public peace, health, and safety, or general welfare. (k) (1) Until January 1, 2008, the harvesting of trees, limited to those trees that eliminate the vertical continuity of vegetative fuels and the horizontal continuity of tree crowns, for the purpose of reducing the rate of fire spread, duration and intensity, fuel ignitability, or ignition of tree crowns. (2) The board may authorize an exemption pursuant to paragraph (1) only if the tree harvesting will decrease fuel continuity and increase the quadratic mean diameter of the stand, and the tree harvesting area will not exceed 300 acres. (3) The notice of exemption, which shall be known as the Forest Fire Prevention Exemption, may be authorized only if all of the conditions specified in paragraphs (4) to (10), inclusive, are met. (4) A registered professional forester shall prepare the notice of exemption and submit it to the director, and include a map of the area of timber operations that complies with the requirements of paragraphs (1), (3), (4), and (7) to (12), inclusive, of subdivision (x) of Section 1034 of Title 14 of the California Code of Regulations. (5) (A) The registered professional forester who submits the notice of exemption shall include a description of the preharvest stand structure and a statement of the postharvest stand stocking levels. (B) The level of residual stocking shall be consistent with maximum sustained production of high quality timber products. The residual stand shall consist primarily of healthy and vigorous dominant and codominant trees from the preharvest stand. Stocking shall not be reduced below the standards required by any of the following provisions that apply to the exemption at issue: (i) Clauses 1 to 4, inclusive, of subparagraph (A) of paragraph (1) of subdivision (a) of Section 913.3 of Title 14 of the California Code of Regulations. (ii) Clauses 1 to 4, inclusive, of subparagraph (A) of paragraph (1) of subdivision (a) of Section 933.3 of Title 14 of the California Code of Regulations. (iii) Clauses 1 to 4, inclusive, of subparagraph (A) of paragraph (1) of subdivision (a) of Section 953.3 of Title 14 of the California Code of Regulations. (C) If the preharvest dominant and codominant crown canopy is occupied by trees less than 14 inches diameter at breast height, a minimum of 100 trees over four inches diameter at breast height shall be retained per acre for Site I, II, and III lands, and a minimum of 75 trees over four inches diameter at breast height shall be retained per acre for Site IV and V lands. (6) (A) The registered professional forester who submits the notice shall include selection criteria for the trees to be harvested or the trees to be retained. (B) All trees that are harvested or all trees that are retained shall be marked by or under the supervision of a registered professional forester before felling operations begin. (7) (A) The registered professional forester submitting the notice, upon submission of the notice, shall provide a confidential archaeology letter that includes all of the information required by any of the following provisions that apply to the exemption at issue: (i) Paragraphs (2) and (7) to (11), inclusive, of subdivision (c) of Section 929.1 of Title 14 of the California Code of Regulations, and include site records if required pursuant to subdivision (g) of that section or pursuant to Section 929.5 of Title 14 of the California Code of Regulations. (ii) Paragraphs (2) and (7) to (11), inclusive, of subdivision (c) of Section 949.1 of Title 14 of the California Code of Regulations, and include site records if required pursuant to subdivision (g) of that section or pursuant to Section 949.5 of Title 14 of the California Code of Regulations. (iii) Paragraphs (2) and (7) to (11), inclusive, of subdivision (c) of Section 969.1 of Title 14 of the California Code of Regulations, and include site records if required pursuant to subdivision (g) of that section or pursuant to Section 969.5 of Title 14 of the California Code of Regulations. (B) The director shall submit a complete copy of the confidential archaeological letter and two copies of all required archaeological or historical site records, to the appropriate Information Center of the California Historical Resource Information System within 30 days from the date of notice submittal to the director. Before submitting the notice to the director, the registered professional forester shall send a copy of the notice to Native Americans, as defined in Section 895.1 of Title 14 of the California Code of Regulations. (8) Only trees less than 18 inches stump diameter, measured at eight inches above ground level, may be removed. However, within 500 feet of a legally permitted structure, or in an area prioritized as a shaded fuel break in a community wildfire protection plan approved by a public fire agency, if the goal of fuel reduction cannot be achieved by removing trees less than 18 inches stump diameter, trees less than 24 inches stump diameter may be removed if that removal complies with this section and is necessary to achieve the goal of fuel reduction. A fuel reduction effort shall not violate the canopy closure regulations adopted by the board on June 10, 2004, and as those regulations may be amended. (9) Ladder and surface fuels shall be removed to achieve a minimum clearance distance of eight feet, measured from the base of the live crown of the postharvest dominant and codominant trees to the top of the surface fuels. Surface fuels in the harvest area, including logging slash and debris, low brush, and deadwood, that could promote the spread of wildfire, shall be treated to achieve the goal of an average of four foot maximum flame height under average severe fire weather conditions. This goal shall be achieved on approximately 80 percent of the treated area. The treatment shall include chipping, removing, or other methods necessary to achieve the goal, and shall be done within 120 days from the start of timber operations or by April 1 of the year following surface fuel creation if the surface fuels are piled and burned. (10) Timber operations shall comply with the requirements of paragraphs (1) to (10), inclusive of subdivision (b) of Section 1038 of Title 14 of the California Code of Regulations. (11) After the timber operations are complete, the department shall conduct an on-site inspection to determine compliance with this subdivision and whether appropriate enforcement action should be initiated. SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. SEC. 4. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order for this act to apply during the fire season beginning in 2004, it is necessary that this act take effect immediately.