BILL ANALYSIS
AB 2301
Page 1
Date of Hearing: April 29, 2010
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2301 (Logue) - As Amended: April 5, 2010
SUBJECT : Fire protection: defensible space.
SUMMARY : Authorizes an insurance company that insures an
occupied dwelling to require defensible space beyond a property
line if approved by a designated fire expert and if the property
is adjacent to state public lands; requires a state public lands
management agency to grant a right of entry boundary permit to a
homeowner or other organization to enter land controlled by the
Agency to perform defensible space work; provides for an
exemption from the California Environmental Quality Act (CEQA).
EXISTING LAW :
1)Requires a person who owns, leases, controls, operates, or
maintains an occupied dwelling or structure in, upon, or
adjoining any mountainous area or land covered in forests,
brush, grass, or any land covered with flammable material to
maintain defensible space of 100 feet from each side of a
structure but not beyond the property line.
2)Provides that a greater distance of defensible space may be
required by state law, local ordinance, rule, or regulation.
Clearance beyond the property line, if authorized by the
adjacent landowner, may only be required if the state law,
local ordinance, rule, or regulation includes findings that
such a clearing is necessary to significantly reduce the risk
of transmission of flame or heat sufficient to ignite the
structure, and there is no other feasible mitigation possible
to reduce the risk.
3)Authorizes an insurance company that insures an occupied
structure to require defensible space greater than a 100 feet
perimeter if a fire expert designated by an applicable fire
official finds that such a clearing is necessary to
significantly reduce the risk of transmission of flame or heat
sufficient to ignite the structure, and there is no other
feasible mitigation possible to reduce the risk of ignition or
spread of wildfire to the structure. The greater distance may
not be beyond the property line unless authorized by state or
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local laws.
4)The California Environmental Quality Act (CEQA) requires lead
agencies with the principal responsibility for carrying out or
approving a proposed project that may have an effect on the
environment to prepare a negative declaration, mitigated
negative declaration, or environmental impact report for this
action, unless the project is exempt from CEQA.
THIS BILL :
1)Authorizes an insurance company that insures an occupied
dwelling or structure to require defensible space beyond a
property line if approved by a designated fire expert and if
the property is adjacent to state public lands.
2)Requires a state public lands management agency (Agency) to
grant a right of entry boundary permit to an owner of a
dwelling to enter land controlled by the Agency to perform
defensible space work.
3)Requires an Agency to grant a right of entry boundary permit
to a homeowners' association, other type of multidwelling
agency, local regional fire safe council, or other organized
fire protection and prevention entity to perform defensible
space work for all applicable residents who are represented by
that entity.
4)Defines "defensible space work" as the clearing that is
necessary to significantly reduce the risk of transmission of
flame or heat sufficient to ignite the structure.
5)Requires the Agency to require a person passing onto and
conducting defensible space work on state public lands to
provide a liability waiver, to ensure that the state is not
liable for any injury incurred during the work.
6)Provides that if a person contracts with a third party to
conduct the defensible space work, the contractor must
maintain insurance, and if the resident is undertaking that
work himself or herself, the resident must maintain
homeowners' or other appropriate insurance. The person
undertaking the defensible work on the public lands must also
be over 18 years of age.
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7)Exempts the defensible space work from the requirements of
CEQA.
FISCAL EFFECT : Unknown
COMMENTS : According to the author's office, despite existing
requirements to maintain defensible space to the edge of a
property line:
"?fire knows no property lines. It is critical to fire safety
that residents are permitted to cross on to state lands to
perform this key fire prevention task. Current administrative
avenues to solving this issue are piecemeal, and affect every
resident of high fire risk areas differently. Currently each
resident must negotiate directly with the state agency in
question and come to a legal agreement that allows for this
work to be accomplished-often at great expense to the state."
1)Background : It is well documented that a home with adequate
defensible space faces a higher probability of surviving a
wildfire. Many examples have been cited of homes with
defensible space withstanding the catastrophic wildfires of
2003 or 2007 while adjacent or neighboring homes without such
protection did not. However, according to Dr. John Keeley, a
research scientist with the U.S. Geological Survey, there is
little evidence that supports the efficacy of defensible space
beyond a 100-foot perimeter. At the same time, Dr. Keeley has
stated that we have placed too much confidence in the notion
that defensible space will act as a infallible barrier to the
spread of large conflagrations, especially when embers can
travel a half mile or more in front of a fire line.
2)Author's intent is not consistent with the bill's authorities :
Current law authorizes an insurance company to require
defensible space greater than 100 feet if a relevant fire
expert makes certain findings and there is no other feasible
mitigation possible to reduce the risk of ignition or spread
of wildfire to the structure. The greater distance may not be
beyond the property line unless authorized by state or local
law. This bill permits an insurance company to require an
occupant to maintain defensible space greater than 100 feet
and beyond a property line, if approved by a fire expert,
solely if the property is adjacent to state public lands. In
addition, the author intended to authorize anyone subject to
defensible space requirements to maintain such space up to the
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100 foot full perimeter or beyond if required by law, even if
the edge of that perimeter goes beyond the property line and
onto state public lands.
3)Agencies should have discretion to approve a request : The
bill requires an Agency, without exception, to grant a right
of entry (ROE) permit to an occupant to maintain defensible
space without any guidance or limitation. Removing discretion
from an agency to permit fuel modification without any
guidance can lead to environmentally damaging consequences,
especially if there are sensitive resources at risk. There
are also circumstances where defensible space less than 100
feet, which may preclude encroaching onto state lands, may be
appropriate (e.g., 30 feet in grasslands is considered
sufficient) and where such work would not marginally improve
fire resistance given the presence of flammable fuel or
building materials (e.g., a wood fence, wood shingle roof).
Agencies should have the discretion to issue a permit on a
case-by-case basis if the conditions warrant.
Additionally, available evidence suggests that most people
subject to defensible space requirements live adjacent to or
near federal lands. According to CDF, while there are
approximately 14 million acres of lands within the
wildland-urban interface (WUI) in State Responsibility Areas
(SRA), which includes state-owned lands, 99 percent of lands
within SRAs are privately-owned. There are approximately 7
million acres of WUI in Federal Responsibility Areas, the
large majority of which are publicly-owned. Thus, despite the
lower acreage, the probability that a homeowner abuts federal
public lands is significantly higher than state public lands.
Moreover, according to geospatial data compiled by CDF, there
are twice the number of "communities at risk of wildfire," on
federal lands than on non-federal lands.
The sponsor of this bill was only able to cite permitting
concerns with one state agency, the Department of Parks and
Recreation (DPR). (State Lands Commission is unaware of any
lease or permit request to perform defensible space, and the
Department of Water Resources and Department of Fish and Game
did not respond to committee inquiries.) DPR currently
permits fuel modification on its lands under certain
circumstances including if park vegetation 130 feet from a
non-DPR habitable structure is capable of generating
sufficient heat when burning to ignite it. DPR issues generic
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ROE permits for this work and expects to issue a more
customized permit in May specifically for the circumstances
contemplated by this bill. At the same time, there may be
legitimate concerns about the time and effort it takes to
secure a permit.
Finally, the bill does not specify how this work or what
degree of clearance is to be performed nor does it impose any
qualifications on the person performing the work. According
to Dr. Anne Fege, former Forest Supervisor of the Cleveland
National Forest, over-aggressive brush management may increase
fire (and environmental) risk by encouraging the growth of
weedy annual plants, which are considered "flashy" fuels due
to their ease of ignition.
4)Increasing development in SRAs increases fire risk and cost :
This bill also provides a perverse incentive to cite
development in SRAs. According to the Legislative Analyst
Office, local land use decisions are responsible for an
increasing density of homes in the WUI but the consequences of
those decisions-increased fire risk and medical
emergencies-are borne at both the state and local levels. In
its analysis of the 2008-09 budget, the LAO found that CDF's
budget has increased 150% since 1997-98. One of the drivers
of this is increasing development in the WUI.
5)No need for two definitions : Existing law defines "defensible
space" as "the area adjacent to a structure or dwelling where
wildfire prevention or protection practices are implemented to
provide defense from an approaching wildfire or to minimize
the spread of a structure fire to wildlands or surrounding
areas." This bill defines "defensible space work" as "the
clearing that is necessary to significantly reduce the risk of
transmission of flame or heat sufficient to ignite the
structure." The committee and author may wish to consider
whether another and more limited definition is necessary.
6)CEQA exemption already provided: The CEQA Guidelines already
provide for an exemption for the maintenance of defensible
space. Section 15304(i) of the Guidelines provides:
Fuel management activities within 30 feet of structures to
reduce the volume of flammable vegetation, provided that
the activities will not result in the taking of endangered,
rare, or threatened plant or animal species or significant
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erosion and sedimentation of surface waters. This exemption
shall apply to fuel management activities within 100 feet
of a structure if the public agency having fire protection
responsibility for the area has determined that 100 feet of
fuel clearance is required due to extra hazardous fire
conditions.
Thus, the committee and author may wish to consider deleting
the statutory exemption in the bill.
7)Suggested amendments : In response to the above concerns, the
author and committee staff have agreed to delete the contents
of the bill and instead require state land management agencies
(those with substantial numbers of adjacent or nearby
residences) to establish a standardized ROE permit process
consistent with the above CEQA exemption to authorize the
maintenance of defensible space on state-owned lands.
Maintenance would be carried out consistent with CDF or DPR
guidance and as conditioned by an agency. Permit processing
deadlines would also apply.
REGISTERED SUPPORT / OPPOSITION :
Support
Regional Council of Rural Counties (sponsor)
Opposition
California Native Plant Society
California State Parks Foundation
Center for Biological Diversity
Forests Forever
Planning and Conservation League
Sierra Club California
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092