Amended in Senate August 12, 2014

Amended in Senate July 1, 2014

Amended in Assembly April 22, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1867

Introduced by Assembly Member Patterson

(Coauthor: Assembly Member Harkey)

(Coauthors: Senators Cannella, Fuller, Huff, and Vidak)

February 19, 2014

An act to amend Section 4584 of the Public Resources Code, relating to forestry.

LEGISLATIVE COUNSEL’S DIGEST

AB 1867, as amended, Patterson. Timber harvest plans: exemption: reducing flammable materials.

The Z’berg-Nejedly Forest Practices Act of 1973 prohibits a person from conducting timber operations, as defined, unless a timber harvesting plan prepared by a registered professional forester has been submitted to the Department of Forestry and Fire Protection. The act authorizes the State Board of Forestry and Fire Protection to exempt from some or all of those provisions of the act a person engaging in specified forest management activities, begin delete including, end delete begin insert including end insert the cutting or removal of trees in compliance with existing law relating to defensible space 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 no more than 150 feet on each side from an approved and legally permitted structure, as provided.

This bill would, until begin insert no later than end insert January 1, begin delete 2018, end delete begin insert 2019, end insert also authorize the board to exempt from some or all of those provisions of the act a person engaged in forest management whose activities are limited to the cutting or removal of trees on the person’s property in compliance with existing law relating to defensible space 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 no more than 300 feet on each side from an approved and legally permitted habitable structure, as provided. begin insert The bill would require the board to adopt regulations to implement the above provisions no later than January 1, 2016. end insert The bill would require the department to evaluate the effects of these provisions and to report its recommendations, no later than January 1, begin delete 2018, end delete begin insert 2019, end insert to the Legislature based on that evaluation.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

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 of this chapter, 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. A 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, shall not 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 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 other legal entity.

(2) (A) Notwithstanding Section 4554.5, the board shall adopt
regulations that 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 pursuant to this subdivision to expire
if there is a change in timberland ownership. The person who
originally submitted an application for an exemption pursuant to
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 a violation
of the conversion exemption, including a conversion 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 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) (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 Standards 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 shall 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 a 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. This paragraph does not 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.

(6) (A) Notwithstanding paragraph (1), the board may exempt
from this chapter, or portions of this chapter, a person engaged in
forest management whose activities are limited to the cutting or
removal of trees on the person’s property 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 300 feet on each side
from an approved and legally permitted habitable structure, when
that cutting or removal is conducted in compliance with this
subdivision and all of the following conditions are met:

(i) The notice of exemption is prepared, signed, and submitted
by a registered professional forester to the department.

(ii) For the areas between 150 and 300 feet from the habitable
structure, the operations meet all of the following provisions:

(I) The residual stocking standards are consistent with Sections
913.2, 933.2, and 953.2 of Title 14 of the California Code of
Regulations, as appropriate.

(II) Activities within this area will increase the quadratic mean
diameter of the stand.

(III) The residual stand consists primarily of healthy and
vigorous dominant and codominant trees from the preharvest stand,
well distributed though the harvested area.

(IV) Postharvest slash treatment and stand conditions will lead
to more moderate fire behavior in the professional judgment of
the registered professional forester who submits the notice of
exemption.

(V) Any additional guidance for slash treatment and postharvest
stand conditions and any other issues deemed necessary that are
consistent with this section, as established by the board.

(B) For purposes of this paragraph, “habitable structure” means
a building that contains one or more dwelling units or that can be
occupied for residential use. Buildings occupied for residential
use include single family homes, multidwelling structures, mobile
and manufactured homes, and condominiums. For purposes of this
paragraph “habitable structure” does not include commercial,
industrial, or incidental buildings such as detached garages, barns,
outdoor sanitation facilities, and sheds.

(C) The department shall evaluate the effects of this paragraph
and shall report its recommendations, begin delete no later than January 1,
2018, end delete begin insert before the paragraph becomes inoperative, end insert to the Legislature
based on that evaluation. The report shall be submitted in
compliance with Section 9795 of the Government Code.

begin insert

(D) The board shall adopt regulations to implement this
paragraph no later than January 1, 2016.

end insert begin delete

(D)

end delete

begin insert (E) end insert  This paragraph shall become inoperative begin insert three years after
the effective date of regulations adopted by the board pursuant to
subparagraph (D) but not later than end insert begin delete on end delete January 1, begin delete 2018 end delete begin insert 2019 end insert .

(j) (1) 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) Except as provided in paragraph (11), 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 in diameter at breast height,
a minimum of 100 trees over four inches in 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 in 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. In the development of fuel reduction
prescriptions, the registered professional forester should consider
retaining habitat elements, where feasible, including, but not
limited to, ground level cover necessary for the long-term
management of local wildlife populations.

(B) All trees that are harvested or all trees that are retained shall
be marked or sample marked by or under the supervision of a
registered professional forester before felling operations begin.
The board shall adopt regulations for sample marking for this
section in Title 14 of the California Code of Regulations. Sample
marking shall be limited to homogenous forest stand conditions
typical of plantations.

(7) (A) The registered professional forester submitting the
notice, upon submission of the notice, shall provide a confidential
archaeology letter that includes all 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 in 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 in stump diameter, trees less than 24 inches in 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) (A) This subparagraph applies to areas within 500 feet of
a legally permitted structure and in areas prioritized as a shaded
fuel break in a community wildfire protection plan approved by a
public fire agency. The board shall adopt regulations for the
treatment of surface and ladder fuels in the harvest area, including
logging slash and debris, low brush, small trees, and deadwood,
that could promote the spread of wildfire. The regulations adopted
by the board shall be consistent with the standards in the board’s
“General Guidelines for Creating Defensible Space” described in
Section 1299.03 of Title 14 of the California Code of Regulations.
Postharvest standards shall include vertical spacing between fuels,
horizontal spacing between fuels, maximum depth of dead ground
surface fuels, and treatment of standing dead fuels, as follows:

(i) Ladder and surface fuels shall be spaced to achieve a vertical
clearance distance of eight feet or three times the height of the
postharvest fuels, whichever is the greater distance, measured from
the base of the live crown of the postharvest dominant and
codominant trees to the top of the surface fuels.

(ii) Horizontal spacing shall achieve a minimum separation of
two to six times the height of the postharvest fuels, increasing
spacing with increasing slope, measured from the outside branch
edges of the fuels.

(iii) Dead surface fuel depth shall be less than nine inches.

(iv) Standing dead or dying trees and brush generally shall be
removed. That material, along with live vegetation associated with
the dead vegetation, may be retained for wildlife habitat when
isolated from other vegetation.

(B) This subparagraph applies to all areas not described in
subparagraph (A).

(i) The postharvest stand shall not contain more than 200 trees
over three inches in diameter per acre.

(ii) Vertical spacing shall be achieved by treating dead fuels to
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 dead surface fuels.

(iii) All logging slash created by the timber operations shall be
treated to achieve a maximum postharvest depth of nine inches
above the ground.

(C) The standards required by subparagraphs (A) and (B) shall
be achieved on approximately 80 percent of the treated area. The
treatment shall include chipping, removing, or other methods
necessary to achieve the standards. Ladder and surface fuel
treatments, for any portion of the exemption area where timber
operations have occurred, shall be done within 120 days from the
start of timber operations on that portion of the exemption area or
by April 1 of the year following surface fuel creation on that
portion of the exemption area if the surface fuels are 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. Timber
operations in the Lake Tahoe region shall comply instead with the
requirements of paragraphs (1) to (16), inclusive, of subdivision
(f) of Section 1038 of Title 14 of the California Code of
Regulations.

(11) A notice of exemption, which shall be known as the Forest
Fire Prevention Pilot Project Exemption, may be authorized if all
of the following conditions are met:

(A) The conditions specified in paragraphs (2), (4), (6), (7), and
(10) are met.

(B) Only trees less than 24 inches in stump diameter, measured
at eight inches above ground level, may be removed. 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.

(C) (i) 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.

(ii) 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. Where
present prior to operations, the overstory canopy closure for trees
greater than 12 inches in diameter at breast height shall not be
reduced below 50 percent. Stocking shall be met with the largest
trees available prior to harvest and 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.

(iii) If the preharvest dominant and codominant crown canopy
is occupied by trees less than 14 inches in diameter at breast height,
a minimum of 100 trees over four inches in 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 in diameter at breast height
shall be retained per acre for Site IV and V lands. The retained
trees shall be the largest trees available prior to harvest.

(D) The activities conducted pursuant to this paragraph occur
in the Sierra Nevada Region as defined in subdivision (f) of Section
33302, in Modoc, Siskiyou, or Trinity Counties, or in any
combination of these areas.

(E) All activities conducted pursuant to this paragraph occur
within the most recent version of the department’s Fire Hazard
Severity Zone Map in the moderate, high, and very high fire threat
zones.

(F) The department shall maintain records regarding the use of
the exemption granted in this paragraph in order to evaluate the
impact of the exemption on fuel reduction and natural resources
in areas where the exemption has been used.

(G) This paragraph shall become inoperative three years after
the effective date of regulations adopted by the board implementing
this paragraph.

(12) After the timber operations are complete, the department
shall conduct an onsite inspection to determine compliance with
this subdivision and whether appropriate enforcement action should
be initiated.