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September 8, 2021  |  Written by Michelle E. Chester

How Promoting Prescribed Burns May Improve Water Quality in the Long Term

The California Legislature recently passed Senate Bill 332 (SB 332), which would increase legal protections for professionals responsible for setting prescribed burns – or “the planned application and confinement of fire” to a specified area for the prevention of high-intensity fires and related ecosystem management.  (Pub. Resources Code, § 4464.)  The accepted practice of setting controlled lower-intensity fires breaks down potential kindling to reduce the ignition and spread of major fire events and prevent the loss of life, property, and resources during hot, dry summer months.

Under existing law, anyone who personally, negligently, or in violation of the law sets fire to public or private property is liable to the property owner for any damages, and is liable for the cost of investigating the fire and related administrative costs.  (Health & Saf. Code, §§ 13007, 13008, § 13009.1.)  Those liable for damages under this ordinary negligence standard include “burn bosses,” or professionals certified to carry out a prescribed burning operation.  Under the new standard, burn bosses and any private landowner upon whose property the burns take place are not liable for any damage or injury to property or persons caused by an authorized prescribed burn, unless the prescribed burn is carried out in a “grossly negligent” manner – or a significant departure from how a reasonable, careful person would act.

It is rare for legislation to provide immunity from civil liability as an incentive to carry out a hazardous activity.  However, like the Good Samaritan statute, in which civil liability is lifted to incentivize individuals to take lifesaving action, SB 332 is intended to promote the practice of prescribed burning by removing legal obstacles to participation.  While California’s fire management policy has predominately been to suppress all fire, this legislation furthers Governor Newsom’s agenda, as reflected in his allocation of $512 million to landscape scale resilience projects – including prescribed burning.

Prescribed burning is touted not only as an effective method of reducing the number and intensity of large wildfires and the corresponding costs of suppression and repair, but also as an option to maintain water quality in managed watersheds by reducing smoke and ash, decreasing erosion, and protecting desired plant communities.  As Californians are unfortunately experiencing this fire season, smoke and ash can have a dramatic effect on water quality – one example being the aftermath of the Caldor fire on the famously blue waters of Lake Tahoe.  Whether such impacts can be avoided by promoting prescribed burning without risking large losses of life and property under the reduced liability standard is yet to be seen.

The bill now goes to the Governor for his signature. For more information about SB 332, see https://trackbill.com/bill/california-senate-bill-332-civil-liability-prescribed-burning-operations-gross-negligence/2021566/.  You may also contact Michelle Chester at mchester@somachlaw.com.

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