Senate Bill 63 and Assembly Bill 642

Recently, a flurry of wildfire-related legislation has worked its way through the California Legislature, across the desk of Governor Newsom, and over the finish line of being enacted into law.  Two bills in particular, Senate Bill 63 (SB 63) and Assembly Bill 642 (AB 642) are summarized below.  These bills focus on improving California’s wildfire protection efforts through identification of moderate and high fire hazard severity zones; broadened fuel maintenance standards; expanded application of fire safe building standards; Native American tribe involvement and integration of tribal practices (such as prescribed burns); and creation of more robust training and educational outreach programs.

SB 63, chaptered into law on September 28, 2021, requires the Director of California’s Department of Forestry and Fire Protection (Department) to identify areas in the state as moderate and high fire hazard severity zones, and requires a local agency make that information available to the public for review and comment within 30 days of Director notification.  The bill expands the areas where enhanced fire safety building standards apply to include high fire hazard severity zones and to potentially include moderate severity zones.  The bill also includes enhanced vegetation management requirements, would fund fire prevention efforts in existing communities, and would train local organizations in statewide standards for home hardening.

Specifically, SB 63 provides:

• The State Fire Marshal and Department of Housing and Community Development is to propose, and the State Building Standards Commission is to adopt, expanded fire protection building standards for high fire hazard severity zones. The bill would also require the State Fire Marshal and the Department of Housing and Community Development to consider expanding application of these building standards to moderate fire hazard severity zones.
• The definition of “fuel” is modified to include “any combustible material,” such as “cultivated landscape plants, grasses, and weeds.” Further, the State Board of Forestry and Fire Protection, in consultation with the Department, is to develop and periodically update a guidance document on fuel management.  Among other things, that guidance document shall include regionally appropriate suggestions that preserve and restore native species that are fire resistant or drought tolerant (or both), and minimize the spread of flammable nonnative grasses and weeds.
• Fuel modification beyond the property line in a very high fire hazard severity zone or a state responsibility area may be required by law, ordinance, rule or regulation in order to maintain 100 feet of defensible space. As compared to the pre-existing law, fuel modification beyond the property line may now be more easily mandated by state or local agencies without other findings, but a 100-foot limit is placed on the distance beyond the property line.  A local ordinance may include provisions to allocate costs for off-property fuel maintenance.  Further, the Office of the State Fire Marshal is to include a fuel modification beyond the property line component in its model defensible space program.
• The Department is to expand a statewide local assistance grant program to support fire prevention and home hardening education activities. Activities eligible for grant assistance to support the Department’s fire prevention efforts are expanded to include vegetation management along roadways and driveways to reduce fire risk, public education outreach regarding making homes and communities more wildfire resilient, projects to reduce the flammability of structures and communities to prevent their ignition from wind-driven embers, and a risk reduction checklist for communities that includes defensible space criteria, structural vulnerability potential, and personal evacuation plans.
• The Department is to establish a statewide program for a “corps” of certain qualified entities and trained volunteers to support the Department’s defensible space and home hardening assessment and education efforts. Qualified entities shall be authorized to conduct defensible space assessments to assess compliance with defensible space requirements within the state responsibility area, educate property owners about wildfire safety improvements that may be undertaken to harden a structure and make it more resistant to fire, and assess whether wildfire safety improvements have been completed in or on a structure.  This provision would be repealed on January 1, 2026.
• The Department is to develop a training program on defensible space and fire hardening assessment and public education efforts.
• The Department is to report to the Legislature on its moneys spent on forest and fire prevention programs and projects and the outcomes of these projects.

AB 642, also enacted on September 28, 2021, similarly requires the Director of California’s Department of Forestry and Fire Protection to identify areas in the state as moderate and high fire hazard severity zones, and is one bill of several directed at increasing Native American Tribe involvement with state fire protection efforts (see also AB 798 and SB 816).  AB 642 more specifically requires:

• The Director to identify areas in the state as moderate and high fire hazard severity zones (current law requires the Director to identify areas that are considered very high fire hazard severity zones). The appropriate local agency, within 30 days of being notified of these fire hazard severity zones, must make that information available to the public for review and comment.
• The Director to appoint a cultural burning liaison to the State Board of Fire Services to advise the Department on developing increased cultural burning activity.
• The State Fire Marshal, before July 1, 2023, to develop a proposal to establish a prescribed fire training center.
• The Department to establish, before July 1, 2023, an advisory workgroup to consult with the Department to make recommendations for understanding and modeling community wildfire risk.
• The Department to engage in public education efforts regarding fire prevention and public safety with California state universities, California Native American tribes, tribal organizations, and cultural fire practitioners to enhance its public education efforts regarding restoring fire processes and function and cultural burning.
• The Department to engage in recruitment efforts with California Native American tribes, tribal organizations, and cultural fire practitioners to fill vacancies in certain Department positions.

In addition, under existing law, an entity can receive a permit from the Department to use prescribed burning for certain public purposes.  AB 642 would require the Department to consider certain factors so as not to unreasonably restrict prescribed burnings and require the Department to institute an automated system for issuing burn permits.

Overall, SB 63 and AB 642 represent efforts by California to create a more robust fire protection scheme and improve the fire resiliency of development in the wildlands urban interface.  The range of efforts include implementing updated building code requirements, improving defensible space, increasing training and education efforts, and creating liaisons with California Native American tribes.  Moving forward, fire protection and fire risk will likely be at the forefront of any development and planning decisions.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]