BILL ANALYSIS
AB 2301
Page 1
ASSEMBLY THIRD READING
AB 2301 (Logue)
As Amended May 28, 2010
Majority vote
NATURAL RESOURCES 9-0 APPROPRIATIONS 17-0
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|Ayes:|Chesbro, Gilmore, |Ayes:|Fuentes, Conway, Ammiano, |
| |Brownley, | |Bradford, Charles |
| |De Leon, Hill, Huffman, | |Calderon, Coto, Davis, |
| |Knight, Logue, Skinner | |Monning, Ruskin, Harkey, |
| | | |Miller, Nielsen, Norby, |
| | | |Skinner, Solorio, |
| | | |Torlakson, Torrico |
| | | | |
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SUMMARY : Specifically, this bill:
1)Defines "qualified organization" to mean a homeowners
association, fire safe council, or other bona fide
organization dedicated to fire protection and prevention, as
determined by a state public lands management agency.
2)Defines "state public lands" to mean lands owned in fee title
by a state public lands management agency.
3)Defines "state public lands management agency" to mean the
Department of Forestry and Fire Protection, Department of
Parks and Recreation, State Lands Commission, Department of
Transportation, Department of Water Resources or any of the
state's land conservancies.
4)Authorizes a state public lands management agency to establish
a discretionary permitting and approval process to consider an
application from a person subject to defensible space
requirements to maintain defensible space on state public
lands if that person's requirements encroach onto state public
lands.
5)Requires the permitting and approval process to include
certain elements such as a publically available application
and permit processing deadlines.
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6)Authorizes a qualified organization to act on behalf of one or
more persons subject to defensible space requirements.
7)Requires the maintenance of the defensible space to comply
with guidelines adopted by the State Board of Forestry and
Fire Protection or the Department of Parks and Recreation, and
restrictions set forth in Government Code Section 51184.
8)Authorizes a state public lands management agency to require
an applicant to maintain liability or other insurance or
bonding, and directs the agency to require an applicant to
indemnify the state from any and all actions or claims filed
against the state as a direct or indirect result of the
issuance of a permit or approval.
9)Authorizes a state lands management agency to impose
conditions or limitations on the maintenance of defensible
space to minimize any other adverse impact to the environment,
including, but not limited to, wildlife habitat, water
quality, and sensitive species, or pursuant to restrictions
set forth in Government Code Section 51184 or subdivision (i)
of Section 15304 of Title 14 of the California Code of
Regulations.
10)Authorizes a state lands management agency, during its review
of an application, to consider other flame ignition or
flammability risk factors such as fuel loading, slope, and the
building materials of a structure or dwelling, and the extent
to which these factors may, individually or cumulatively,
present greater risks than vegetation or fuel on adjacent
state public lands.
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
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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
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, potential one-time costs to Department of Forestry
and Fire Protection (CDF), Department of Parks and Recreation
(DPR), State Lands Commission, Department of Transportation,
Department of Water Resources, and state conservancies to
develop a permitting process. Collectively, these costs may
total between $375,000 and $600,000. Potential ongoing costs of
a minor amount, likely less than $150,000 yearly, to each state
public land management agency, and recoverable through fees paid
by permittees, to evaluate permit requests from individual
landowners.
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
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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."
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.
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. The
April 5 version of this bill permitted 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.
The committee rejected this version of the bill and instead
adopted amendments that required a state public lands management
agency, as defined, to establish a discretionary permitting
process to consider an application from a person to maintain
defensible space on state public lands if that person's
defensible space requirement encroaches onto state public lands.
Maintenance of defensible space must comply with CDF or DPR
guidelines and existing prohibitions on the maintenance of
defensible space on lands managed for sensitive species, as
habitat for wildlife and plant communities, environmentally
sensitive open space lands, and lands having scenic value. An
agency would be permitted to condition a permit to minimize
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adverse impacts to the environment and to ensure that the
issuance of a permit complies with an existing CEQA exemption
for the maintenance of defensible space. Section 15304(i) of
the CEQA Guidelines provides an exemption for:
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
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.
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 ROE permits for this work and
expects to issue a more customized permit in May specifically
for the circumstances contemplated by this bill.
Amendments to this bill in the Assembly Appropriations Committee
include state land conservancies as "state public lands
management agencies" and authorize, instead of mandate, these
agencies to establish a permitting process.
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092
FN: 0004712