ORDER NO. 31301 ALLOW NON-CERTIFIED BURN MANAGERS TO PERFORM PRESCRIBED BURNS DURING A BURN BAN Came to be heard this the 11th day of May, 2009, with a motion made by Commissioner Letz, seconded by Commissioner Oehler, the Court unanimously approved by a vote of 4-0-0 to: Approve requiring the Burn Plan be filed with the Commissioners' Court for any burns to be conducted during a burn ban period. l,l~ 3/3 0 l COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF THIS REOUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT MADE BY: Commissioner Letz OFFICE: County Commissioner MEETING DATE: May 11, 2009 TIME PREFERRED: SUBJECT: Consider, discuss and take appropriate action regarding whether or not to allow non-certified burn managers to perform prescribed burns during a burn ban. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Comm. Letz ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter SSl and 552, Government Code, is as follows: Meeting scheduled for Mondays: 5:00 PM previous Tuesday THIS REQUEST RECEIVED BY: THIS RQUEST RECEIVED ON: @ .M. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. ~ZE ~ ., ~„~,,.. KERR COUNTY ATTORNEY REX EMERSON COUNTY COURTHOUSE, SUITE BA-lO3 7OO MAIN STREET KERRVILLE, TEXAS 78028 April 6, 2009 Pat Tinley County Judge RE: TDA -Prescribed Burns Memorandum Dear Pat: Thank you for forwarding the Prescribed Burn Memorandum. The attached Prescribed Burn Plan Worksheet and Checklist are great tools for us to distribute to the volunteer fire departments and public. It is interesting to note that the TDA supports this office's opinion that we cannot generically regulate welding as related to burn liability. See (3)(a) of proposed burn order. The court needs to decide if it wants to allow non-certified burn managers to perform prescribed burns during a bum ban; and if so, what procedures the court shall require as condition thereof. Interestingly, it is my understanding that despite the certified burn managers' exemption from burn ban, the TCEQ routinely informs prescribed burn applicairts that they must defer to the local county orders prior to burning. See KCEH for additional details. The statute allows the county to enact burn bans for up to 90 days so I am unsure of the rationale behind the TDA's proposed order citing 45 days duration. ex Emerson MAIN NUMBER (830) 792-2220 HOT CHECKS (830) 792-2221 FAx (830) 792-2228 Website: http://www.co.kerr.tx.us/attorney TEXAS DEPARTMENT OF AGRICULTURE TODD STAPLES COMMISSIONER March 23, 2009 The Honorable Pat Tinley County Judge Kerr. County 700 Main Kerrville, Texas 78028 Re: Prescribed Burning Issues Dear Judge Tinley: Thank you for the leadership you provide to ensure your communities are protected during extreme weather conditions. I want to take this opportunity to offer our assistance to you as you make critical decisions during this time of drought. Prescribed burning is one of the best tools to prevent wildfire, and this communication is the result of an initiative designed to increase the utilization of this tool in your county. Within this communication, you will find information on four areas of interest: 1. basic information on the Texas Department of Agriculture's (TDA) certified prescribed burn manager (CPBM) program; 2. clarification on how recent disaster proclamations by the Governor do NOT affect TDA's CPBM program; 3. information on TDA's initiative to improve the CPBM program by establishing two categories of certification; and 4. a burn ban template and supporting documentation for you to utilize to broaden the use of controlled burning as a wildfire prevention tool. Overview of TDA's Certified Prescribed Burn Mana er Program As you may know, the Prescribed Burning Board (PBB) administers the certified prescribed burn manager program (the Prescribed Burning Board is established by Chapter 153 of the Natural Resources Code as a board within the Texas Department of Agriculture). During these critical environmental conditions, TDA receives many calls and inquiries regarding prescribed burning. Texas Natural Resources Code, Sec. 153.047, defines prescribed burning as "the controlled application of fire to naturally occurring or naturalized vegetative fuels under specified environmental conditions in accordance with a written prescription plan." Prescribed burning is a valuable land management tool used by foresters, range and wildlife managers, ranchers, and other landowners to provide brush control and rejuvenate wildlife habitat and watersheds by replicating a natural process. It is also an important tool in managing excessive natural fuels under controlled conditions. ~~~.~ of q e e~ ~ "r3 ago. as >EXAS~ P.O. Box 12847 Austin, Texas 78711 (512) 463-7476 Fax: (888) 223-8861 For the Hearing Impaired: (800) 735-2989 (TT'1') www.tda.state.tx.us The Honorable Pat Tinley March 23, 2009 Page 2 Local Government Code (Code), Section 352.081, provides authority for counties to regulate outdoor burning, e.g. issue burn bans, during certain drought conditions. Prescribed burn managers certified by TDA are exempt from county regulation in their conduct of prescribed burns under Section 352.081(f)(2) of the Code. However, as you know, counties have the discretion to allow prescribed burning during a burn ban by non-CPBMs through an exception to the burn ban or on a case-by-case basis. Recent Gubernatorial Proclamations do NOT affect CPBMs Past gubernatorial proclamations concerning fire or fire hazard have been construed by some to require institution of a statewide burn ban, overriding county authority; however, discussions with the Governor's office have confirmed that has never been the intention of the Governor's proclamations. The recent Extreme Fire Hazard Proclamation, issued by the Governor on January 30, 2009, resurfaced these questions. Once again TDA contacted the Governor's legal office and was advised that the proclamation was not a statewide burn ban, but, was issued to set up a process for requesting federal assistance and for allowing for quick response in the event it is necessary to suspend state laws or regulations in an emergency situation. Therefore, local discretion relating to burn bans and the ability of CPBMs licensed by TDA to burn in accordance with established regulations is not restricted by the Governor's January 30`" proclamation or subsequent proclamations issued to date. Two New Categories of Certified Prescribed Burn Managers TDA is working to ensure better communication of the statutory and regulatory framework relating to CPBMs, as well as facilitate more communication of not only the importance of prescribed burning in land management but also its role as a fundamental tool in the prevention and management of wildfires. Currently, TDA has 20 CPBMs throughout the state. We are working to increase this number through the establishment of two certification categories: a Commercial Certified Prescribed Burn Manager (today's CPBM) and a Private Certified Prescribed Burn Manager (PCPBM), which will ensure the same liability protections but allow for burning only on a specific property that is owned by PCPBM or his/her employer. County Burn Ban Template TDA has also developed literature for counties and landowners to utilize in making decisions related to prescribed burning. Included are four additional documents: 1. a written discussion of items to consider in a county burn ban; 2. a sample burn ban order which could be adopted by a Commissioners Court; 3. a worksheet for individuals developing a prescribed burn plan; and 4. a checklist to help determine if a planned prescribed burn can proceed under existing conditions. The Honorable Pat Tinley March 23, 2009 Page 3 The sample burn ban order was developed with examples of county burn bans that have been successful in bringing local counties and landowners together to establish meaningful utilization of prescribed burning as a resource to counties and landowners during difficult times. I look forward to working together as we address the needs of this state. Please do not hesitate to contact TDA with any questions by e-mailing or calling Mike McMurry at Mike.McMurra~TexasAgriculture.gov or (512) 475-1678. ~erely yo , Todd Staples TS/SWR/lsm Attachments Tr~c Protecting Our Resources '~ y Prescribed Burn Management ~~r During County Burn Bans Overview Prescribed burning is a management tool widely used by foresters, parks departments, range and wildlife managers, ranchers and other landowners to manage excessive natural fuels under very specific and safe conditions. Many states across the United States have a large percentage of public land, making statewide coordinated prescribed burn plans feasible. However, 98 percent of Texas' land is privately held, which makes having a statewide plan more difficult. In Texas, better utilization of prescribed burning as a management tool will require state, local and landowner collaboration to ensure we are managing over resources in a way that will actually reduce wildfires, rejuvenate wildlife habitat, provide control of invasive brush and improve watersheds. As a result of discussions with stakeholders, as well as federal, state and local governments, the Texas Department of Agriculture (TDA) has created a template for landowners and local governments to utilize in establishing burn bans or allowing exceptions to burn bans. The template provides for prescribed burning under specific criteria to ensure natural fuels can be managed when conditions are often most favorable to safely, achieve the desired results. Recommended Requirements for Exceptions to a Burn Ban When possible, criteria for exceptions should be included in the original burn ban order. This is more desirable than amending a burn ban already in place. A template should include the minimum requirements necessary for an individual or group to conduct a prescribed burn within a burn ban including: Education/Training The county should indicate if any specific education or training requirements are necessary for an individual or group to conduct a prescribed burn. Some counties require a specific course of instruction while others may require more specific experience and training requirements. If specific requirements are adopted by the county, the requirements should be included in the county burn ban order. Written Burn Plan The county should require a written burn plan prepared by an appropriately trained and experienced individual, association or entity. Examples include but are not limited to: an appropriately trained individual with the Natural Resources Conservation Service (MRCS), Texas Forest Service (TFS), Texas Parks and Wildlife Department (TPWD), Texas Agri-Life Extension Service or Texas Agri-Life Research; an individual who holds a private or commercial certified prescribed burn manager license issued by TDA or a local prescribed burn association; or any individual determined by the county to have significant experience in prescribed burning. Page 2 of 2 Counties are also encouraged to utilize state and federal staff expertise when evaluating burn plans if the county does not have the resources to determine if a burn plan meets prescribed burn standards. A written burn plan should at minimum include the following (see attached example): • Purpose of the burn • Prescribed burn manager information • Burn site information (location, directions, etc.) • Personnel requirements for conducting the burn • A description of areas to be burned (fuel types, typography and previous treatments, number of acres to be burned, etc.) • Preburn factors (fireguards, pumpers, crew size, tools and equipment, weather monitors, smoke sensitive areas, special precautions, etc.) • Safety and contingency plans addressing smoke intrusions • A detailed notification list that includes notification requirements for: the Texas Commission of Environmental Quality, local law enforcement, local fire marshal, local emergency coordinator, Department of Public Safety fire coordinator, neighbors, local volunteer fire department, and/or other appropriate entities • A "Burn/Do Not Burn Checklist" (see attached) • Demonstration of fire suppression ability, proving the ability to have proper fire suppression equipment and manpower to manage the burn Exception categories The burn ban exceptions should be clearly identified in the Commissioners Court Order establishing the bum ban. It is also recommended that the burn ban clearly articulate that the ban does not apply to already exempted activities as outlined in the Chapter 352 of the Local Government Code. Counties should consider establishing a category of exception for federal and state agencies and institutions of higher education to ensure park and other state managed lands can be adequately managed during burn bans. Additionally, many of these entities conduct research and demonstration projects throughout the year to educate landowners about properly developing a burn plan and conducting a prescribe burn. An exception for these activities would also be useful. Examples of entities include: NRCS, TPWD, TFS, U.S. Fish and Wildlife Service, Texas Agri-Life Extension Service and Texas Agri-Life Research There are many challenges facing counties during the extreme weather and drought conditions that precipitate a countywide burn ban. However, prudent use of prescribed burning can be an extremely beneficial tool for counties to help mitigate the impact of wildfires, which can devastate communities across this state. Through cooperation and coordination at the landowner and local, state and federal government levels, we can create an opportunity to ensure better communication and understanding of prescribed burning and its benefits to communities during difficult times. TEMPLATE, COUNTY BURN BAN TO INCLUDE PRESCRIBED BURN CRITERIA COUN'T'Y OF STA"hE OF TEXAS ORDER PROHIBITING OUTDOOR BURNING WHEREAS, Section 352.0$1 of the Local Government Code provides that the commissioners court of a county, by order, may prohibit outdoor burning in the unincorporated area of the county if the commissioners court makes a finding that circumstances present in the unincorporated area create a public safety hazard that would be exacerbated by outdoor burning; and, WHEREAS, the County Commissioners Court does hereby find that circumstances present in the unincorporated areas of County create a public safety hazard that would be exacerbated by certain outdoor burning; and, WHEREAS, Section 352.081 of the Local Government Code provides for exemptions from county burn bans for certified prescribed burn managers meeting the requirements of Natural Resources Code, Ch. 153, and the County Commissioners Court believes that additional exceptions are warranted to reduce the likelihood of dangerous and uncontrolled wildfire. BE IT THEREFORE ORDERED that the following emergency regulations are hereby established for portions of the unincorporated areas of County. Texas not subject to public ownership or stewardship for the duration of the above mentioned declaration.: (l) Actions Prohibited: Except as described hereinafter, a person violates this order if he/she ignites, or causes ignition of any combustible or vegetative material outside of an enclosure which serves to contain all flames and/or sparks, or orders such burning or ignition by others. (2) Enforcement: (a) Under notification of suspected outdoor burning, the fire department assigned to the location of the fire shall respond to the scene and take immediate measures to contain and to extinguish the fire. (b) If reduested by a fire official, aduly-commissioned peace officer, when available, shall be sent to the scene to investigate the nature of the fire. (c} In accordance with Section 352.081 ofthe Local Government Code, a person who knowingly or intentionally violates this order commits a Class C Misdemeanor, ptmishable by a fine up to $500. (d} If the responding peace officer finds that the person responsible for the fire is in violation of (1) above, a citation shall be issued for: Violation of 3urn Ban Order. (3) Exceptions: (a) This order shall not apply to the outdoor burning of vegetative material. caused by welding or by other causes relating to the act of welding, if such burning is not .malicious or intentional. (b) This order shall not apply to a prescribed burn conducted by burn personnel of a federal or state agency, or an institution of higher education for prescribed burns on agency owned or managed properties, or for purposes of training local fire department personnel or prescribed burn managers. (c) This order shall not apply to a prescribed burn conducted for the purpose of research or demonstration by burn personnel of a federal or state agency, or institution of higher education. (d) This order shall not apply to burning of vegetative material when such burning is performed by an individual with appropriate training and experience in conducting burns atld in accordance with a prescribed burn plan which: i. addresses the useful nature of such activity as a land and natural resource management tool; ii. includes appropriate safet}~ and protective measures; and iii. is submitted and approved by the County Office of Emergency Management (OEM) and/or the Fire Chief of the Volunteer Fire Department or Emergency Services District where the burn site is located. The County OEM shall promulgate rules and procedures for the submission and approvals of such activities. {This section could be used to firrtlZer identify anv specific needs the county would like addressed within the prescribed burn plan.} (e) 'I11is order shall not prohibit other lawful burning as may be permissible by rules established by the Texas Commission on Environmental Quality. (f) This order shall not prohibit prescribed burning by a commercial or private prescribed burn manager certified by the Texas Department of Agriculture, or by other individual or entities exempted by Section. 352.081 oi'the Local Government Code. Be it also ORDERED that the purpose of this order is the mitigation of the public safety hazard posed by wildfires du1-ing the current dry weather period, by curtailing the practice of outdoor burning without specific approval of the commissioners' court or without appropriate licensing from the state. T71is order prohibiting outdoor burning shall remain in effect for a period of forty-five (45) dates, and shall expire at the end of said period or upon the date the County Commissioners Court, by order, determines that the circumstances present in the unincorporated areas of County no longer create a public safety hazard that would be exacerbated by outdoor burning, whichever occurs earlier. ORDERED THIS DAY OF _ _. 2009 Commissioner, Pct 1 Commissioner, Pct. 3 COUlYTY COMMISSIONERS COURT County Judge Commissioner, Pct. 2 Commissioner, Pct. 4 Prescribed Burn Plan Worksheet The following is designed to assist you in developing a burn plan during a hurn ban. Page 2 oJ'6 Name Ranch/Site Name ^ Texas Commission on Name Environmental Quality ^ County Sheriff Name ^ Texas Forest Service Name ^ Regional Fire Coordinator Name ^ Other Name ^ Other Name Live fuels Type Density Size Dead fuels Description Moisture Time-la Typography/elevation Previous treatments Page 3 q/~6 Name Ranch/Site Name Fire guards: specify width (attach map). plow ^ other ^ mow ^ wet line ^ blackline ^ Crew size: Minimum number required: Pumpers (number/names): ]gnition crew: Hand tools: Weather monitor: `~~ Equipment needs:(describe) Protection needs:(buildings, powerlines, oil/gas facilities, hunting blinds, etc.; see map) [gnition Procedures (see map): Smoke sensitive areas: (see map) No ^ Yes ^ Special Precautions: (see map) No ^ Yes ^ Date of burn (Blacklines) ~. ... ___ Time of burn (Blacklines) Date of burn: Temperature (F) Time of burn: Relative Humidity Wind Direction Wind Speed Fuel Load (lbs/acre) Fuel Load (tons/acre) Page d of 6 Name Ranch/Site Name Dead Fuel Moisture (1-hr) Dead Fuel Moisture (10-hr) Dead Fuel Moisture (100-hr) Live Fuel Moisture Temperature Relative Humidity Wind Direction Wind Speed Fuel Load (lbs/acre) Fuel Load (tons/acre) Dead Fuel Moisture (1-hr) Uead Fuel Moisture (10-hr) Dead Fuel Moisture (100-hr) Live Fuel Moisture Mixing Height Transport Wind Speed ~'~ :`urn- , Maintain close observation of the burned area until the fire is com letely extin uished Maintain contact with weather station until the fire is extin uished Take immediate positive action to ensure safety of the fire should a dangerous change in the weather occur or be forecast Check perimeter for firebrand sources such as trees, posts, cow chi s, to s, etc Page ~ of~6 Name Ranch/Site Name Consider not burning log-littered areas if the weather forecast is for strong winds within three days following a burn. Consider not burnin within 12 hours of a redicted wind shift. When graded or bladed strips are used as fireguards, rolls of soil should be left on the side of the area next to the fence or awa .from area to be burned. Continuous) monitor weather factors affectin fire behavior. Puge 6 of fi Name Map(s) of Area to be Burned Ranch/Site Name Include items such as legend, magnetic north, water sources, roads, gates, safety zones, escape routes, fire guards, areas to be protected, ignition area, smoke sensitive areas, special precautions etc. 5 Burn/Do Not Burn Checklist **For prescribed burns conducted during a burn ban with express authorization of the county.** The following questions should be completed before conducting a prescribed burn. 1. Is the individual a roved to conduct the rescribed burn on site? U Yes U No 2. Is an a roved written rescribed burn tan established for the ro osed burn? ^ Yes ^ No 3. Are safe re uirements met for the ro osed burn? ^ Yes ^ No 4. Are tanned burn ersonnel and a ui ment on site? ^ Yes ^ No 5. Have the followin entities in the coon where the burn is to take lace been notified: Coon 'ud e ^ Yes ^ No Coun commissioners court ^ Yes ^ No Local volunteer fire de artment(s) ^ Yes ^ No Coun sheriff s office ^ Yes ^ No Texas Forest Service re Tonal fire coordinator ^ Yes ^ No Texas Commission on Environmental Quali (TCEQ) ^ Yes ^ No 6. Slave all necessa fire su ression units been briefed on the burn tan`? ^ Yes ^ No 7. Have risks been determined to be acce table? ^ Yes ^ No 8. Has a current weather forecast been obtained? ^ Yes ^ No 9. Is current weather within the burn tan arameters? ^ Yes ^ No 10. Is fire behavior ro'ected to be within the burn tan arameters? ^ Yes ^ No 1 1. Are ro~ected fire effects acce table? ^ Yes ^ No ] 2. Does smoke management adhere to TCEQ uidelines? ^ Yes ^ No Any "NO" responses create a DO NOT BURN situation Burn Unit Date of fire / / month day year Printed Name (Signature These are recommendations only and not inclusive of all considerations and factors affecting a prescribed horn.