State of Michigan
JENNIFER M. GRANHOLM governor	DEPARTMENT OF NATURAL RESOURCES Lansing	K. L. COOL director

BILL ANALYSIS

BILL NUMBER: Senate Bill 925

TOPIC: Revise Regulations on Forest Burning

SPONSOR: Senator Michelle McManus

CO-SPONSORS: Senator Ron Jelinek

COMMITTEE: Natural Resources and Environmental Affairs

Analysis Done: 17 February 2004

POSITION

The Department supports Senate Bill 925 in concept, but cannot support the Bill as written.

PROBLEM/BACKGROUND

Over the past several decades, land managers have become increasingly aware of the benefits of prescribed fire as a tool for managing vegetation and wildlife habitats. While the Department and federal land management agencies have used prescribed fire for many years on the lands they administer, its use outside of government agencies has been limited. One of the reasons for this has been the lack of recognition of prescribed fire in Michigan law. A second reason has been the lack of protection from liability issues.

Over time, there has developed a “patchwork quilt” of open burning regulations, especially in Southern Michigan. In some townships, open burning is regulated by Part 515, 1994 PA 451. Many townships have adopted their own ordinances which, according to section 51513, supercede the State law. Prescribed burning must compliment State and local open burning regulations.

DESCRIPTION OF BILL

The bill amends Part 515 of 1994 PA 451, State Forest Fire Law – Natural Resources and Environmental Protection Act to:

· Define prescribed burning, and provide a framework for the Department to regulate this activity through the burn permit process. Create a “Certified Prescribed Burn Manager” program in Michigan.

· Create standards for prescribed burning.

· Provide liability protection (using a gross negligence standard) as long as certain requirements are met. This includes protection from liability to units of government (including the Department) for suppression costs, should the burn escape control and become a wildfire.

· Exclude prescribed burning from the definition of arson.

· Require the Department to adopt rules to govern prescribed burning, and certifying and decertifying prescribed burn managers. These rules must be submitted for public hearing by six (6) months after the law takes effect.

· Prevent local ordinances from preempting the liability protections of the act. However, the bill does not preempt local units of government from enacting ordinances to prohibit prescribed burning altogether.

SUMMARY OF ARGUMENTS

Pro

1. This legislation provides a legal framework for the Department to regulate prescribed burning and to certify prescribed burn managers; something which current law does not provide.
2. The legislation provides liability protection for prescribed burning, providing certain requirements are met.
3. These two provisions are vital to the establishment of prescribed fire as a useful management tool on private lands. Because of this, we support the concepts of this legislation.
4. The legislation increases the requirements for the burning of vegetative land clearing debris, requiring the same standards be met as for prescribed burning. This provides the Department with additional tools to regulate this practice.

Con

1. The legislation only applies to prescribed burning in forested ecosystems. However, most prescribed burning done in Michigan is not done in these systems. The legislation does not address burning done to restore or maintain prairies, wetland communities, or other ecosystems dominated by grasses and forbs.
2. This legislation would make it very difficult for any unit of government (including the Department) to collect suppression costs if required to respond to a prescribed burn that escapes control and becomes a wildfire. This provision of the act would serve as a disincentive to use proper caution to prevent a burn from escaping since the burner would likely never have to pay for the costs of controlling the escaped burn or damages resulting from the escape.
3. This legislation will be difficult to administer. Many local units of government regulate outdoor burning through local ordinances that supercede State law. This legislation maintains this practice. This means that local units of government could find themselves in the position of trying to regulate prescribed burning, something they are ill-equipped to do. Further, while the legislation prevents local ordinances from preempting the liability protections of the act, it does not prevent them from prohibiting prescribed burning altogether, potentially even on Department-administered lands.
4. The inclusion of burning vegetative land clearing debris under the same requirements as prescribed burning.

FISCAL/ECONOMIC IMPACT

(a) Department

Budgetary:

This bill will require additional DNR staff to administer the permits and certification program.

The elimination of liability for suppression costs reduces the incentive for burners to exercise appropriate caution, which could presumably lead to increased wildfire suppression activity and costs by the Department.

Revenue:

The legislation would reduce suppression cost collections from escaped prescribed burns because of the requirement to show gross negligence before the burner becomes liable. Currently, this is not a large source of revenue; however, the revenue loss would presumably increase in the future.

Comments:

None.

(b) State

Budgetary:

The creation of a new program creates demands on budgets that cannot be met under current conditions.

Revenue:

There is no new revenue generated to meet the demands created by this new program. Further, reimbursements from the collection of suppression costs will be reduced.

Comments:

None.

(c) Local Government

Comments:

This legislation would impact the ability of local governments to collect suppression costs even more than it would the Department. Under current law, local units of government do not have to show any negligence on the part of a burner whose burn escapes control. Under this legislation, gross negligence would have to be shown before the burner would be liable for suppression costs; a much higher standard, resulting in less revenue to the local units of government.

OTHER STATE DEPARTMENTS

The Department of Environmental Quality, and Department of Labor & Economic Growth – Bureau of Construction Codes and Fire Safety.

ANY OTHER PERTINENT INFORMATION

Several other states, primarily in the South, have enacted similar legislation. While the details vary, the common threads include the creation of a “Certified Prescribed Burn Manager” program, and liability protection if certain conditions are met.

ADMINISTRATIVE RULES IMPACT

The act specifically directs the Department to promulgate rules, and to submit these proposed rules for public hearing within six (6) months of the effective date of the act.

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K. L. Cool

Director

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Date

FMFM/WLD