Commission Agenda Item No. 8
Exhibit A

REGULATIONS REQUIRED OR AUTHORIZED BY LEGISLATION

HOUSE BILL 801 – GENERAL PLAN FOR PRESCRIBED BURNING ON TPWD LANDS

PROPOSAL PREAMBLE

1. Introduction.
         The Texas Parks and Wildlife Department (the department) proposes new §51.170, concerning General Plan for Prescribed Burning on TPWD Lands. The proposed new plan would implement the provisions of House Bill (H.B.) 801, enacted by the 84th Texas Legislature, which added new Subchapter M to Chapter 11 of the Parks and Wildlife Code. Section 11.353, as added by H.B. 801, requires the Parks and Wildlife Commission to adopt by rule and implement a general plan for the use of beneficial prescribed burns in the management of department land.

         Various management practices can be applied to any tract of land to improve its ecological health. An excellent tool for ecological management is prescribed fire. The department employs prescribed burning as a management tool on many state parks, natural areas, and wildlife management areas to improve wildlife habitat and species diversity. Disturbances such as fire are normal events in nature that interrupt plant growth patterns to create plant diversity and varying stages of plant growth. Such a variety is vital to many wild animals, providing food and cover components necessary for their continued existence. Fire disturbance plays a major role in the ecology of most wildlife species and ecological communities. Because fire is otherwise controlled in today’s landscape, fire for ecological management must be prescribed. A good prescribed burn creates a mosaic of burned and unburned vegetation that stimulates new growth for the future while retaining adequate cover for the present. The patchy result of such a burn intersperses a variety of plant species and cover types, increasing floristic diversity and meeting the needs of wildlife. The ideal approach to prescribed burning for habitat improvement is to divide an area into burn units and burn a certain amount each year, using fire at different seasons, primarily from late summer through early spring. Most, if not all, prescribed burning on department lands occurs on either state park land (under the purview of the department’s State Parks Division) or on wildlife management areas (under the purview of the department’s Wildlife Division).

         Under the provisions of H.B. 801, prescribed burns conducted by the department on state land managed by the department must be conducted according to a general prescribed burn plan that meets or exceeds the standards for prescribed burns established in Natural Resources Code, §153.047. The provisions of H.B. 801 also establish additional site-specific burn plan and notification requirements.

         The department has maintained a written Prescribed Fire Policy since 2002. The department has amended the current Prescribed Fire Policy to comply with the requirements of H.B. 801. The resulting document is now designated as the department’s General Prescribed Burn Plan (Plan), to meet the requirements of H.B. 801 and the standards for a prescribed burn set out in Natural Resources Code, §153.047. The proposed new rule would adopt the new General Prescribed Burn Plan by reference.

         The Plan sets forth the primary purpose of prescribed burning on department lands, which is to reintroduce fire as an ecological process and simulate the effects of natural fire events. The application of fire fulfills numerous management objectives, including reduction of excessive fuel loads, encouragement of herbaceous species, increase of available browse, control of invasive species, improved species diversity and richness, and facilitation of the long-term objectives for natural habitat and community restoration and maintenance. Prescribed burns on TPWD lands will be conducted in association with these management objectives and/or other research endeavors in order to document the long-term effects of this practice on habitat quality or habitat restoration.

         The Plan also adopts the Incident Command System (ICS) and firefighting standards set forth by the National Wildfire Coordinating Group (NWCG) as the standard operating procedure for all fire management activities on department lands (with exceptions) and establishes training and fitness requirements for department staff who participate in fire activities. All department personnel participating in fire activities are required to have completed the minimum training requirements for a Fire Fighter Type Two as described in the National Incident Management System (NIMS) Wildland Fire Qualifications System Guide, PMS 310-1. Department staff leading a burn must meet or exceed the training and experience requirements of the Texas Prescribed Burning Board.  Additionally, all personnel participating in wildland fire operations must be screened annually for physical fitness according to the Wildland Firefighter Medical Standards Program adopted by the NWCG.

         The Plan sets forth the planning and notification requirements to be followed by the department for all prescribed burning activities on state-owned lands. House Bill 801 added new §11.353, which requires a site-specific burn plan to be prepared and approved by a person designated by the department’s Executive Director to review prescribed burn plans. Therefore, the Plan requires a site-specific prescribed burn plan to be completed and approved by staff as designated by the Executive Director (to be established in the operating plan of the responsible division) prior to implementing a prescribed burn.

         Section 11.353 also requires each site-specific plan to include the planned start and end dates of the prescribed burn; a map of the designated burn area (including the location of any utility infrastructure within the designated burn area); the names and contact numbers for the prescribed burn manager, the nearest fire departments or emergency service providers, and all landowners whose property neighbors the designated burn area; and written documentation that applicable prescribed burn notification and approval requirements of the Texas Commission on Environmental Quality (TCEQ) have been met.

         In addition, §11.354 requires the department to provide adequate advance notice of the department’s intent to conduct a prescribed burn to each neighboring landowner and appropriate local officials in the vicinity of the designated burn area, including water utility officials with water facilities within two miles of the prescribed burn. The landowner’s notice must include the planned start and end dates of the prescribed burn; any safety precautions the landowner should take to ensure the safety of the landowner’s property before, during, and after the burn; a map of the prescribed burn area, including the location of any utility infrastructure within the designated burn area; the methods proposed for use in conducting the burn; and contact information for the prescribed burn manager and the department. Section §11.354 also requires the department to publish advance notice of a planned prescribed burn in a newspaper of general circulation in the county or counties in which the burn will be conducted.

         The Plan’s notification provisions specifically mandate that the department provide notice of the intent to conduct a prescribed burn to neighboring landowners , local and state officials, and the community at large. The notice to neighboring landowners must include the planned start and end dates of the prescribed burn; any safety precautions the landowner should take to ensure the safety of the landowner’s property before, during, and after the burn; a map of the prescribed burn area, including the location of any utility infrastructure within prescribed burn area; the methods proposed for use in conducting the burn; and contact information for the prescribed burn manager or site manager. The Plan also requires the required notification of state officials to include city or county emergency services dispatch centers; local fire departments; water utility officials with water facilities within a two mile radius of the prescribed burn area, owners of any utility infrastructure within the prescribed burn area; and other parties identified in the division’s operating procedures or the site-specific prescribed burn plan. In addition, the Plan requires the department to notify the Texas Commission on Environmental Quality (TCEQ) and obtain applicable approval documentation in writing as required by 30 TAC §§111.201-221. The Plan further stipulates that the public notification to the community at large shall be published or broadcast in a newspaper of general circulation in the county or counties in the burn will be conducted.  Additional public outreach and notification may be defined in the division’s operating procedures or in the site-specific prescribed burn

         The provisions of H.B. 801 require the Plan to include site–specific prescribed burn plans containing a description of the project area (including fuels and any potential hazards); the purpose and objective of burn; pre-burn notifications, burn prescription parameters, and expected fire behavior; pre-burn considerations and preparation requirements; ignition and holding strategies; required staffing, equipment, and contingency resources; smoke management, contingency plan for escapes; mop up plan; and maps including individual burn units, pre-burn actions, and access routes for contingency actions.  The Plan also stipulates that prescribed burns shall be implemented only when there is an approved prescribed burn plan, the necessary personnel and equipment resources identified in the approved plan are available on the burn site, and the prescription conditions can be met.

         The Plan prescribes the process for implementing a prescribed burn, requiring each burn manager to be responsible for ensuring that all required notifications have been completed; all pre-burn and contingency measures outlined in the prescribed burn plan are complete; that adequate equipment is present and that personal protective gear is utilized; that qualified personnel on site for the burn are trained to levels commensurate with their level of responsibility on the burn crew and for that specific operation; and that the burn crew has been briefed on objectives, fuels, expected weather and fire behavior, and appropriate safety precautions. The Plan further requires that burning be conducted only when observed or forecasted environmental conditions are within the parameters specified in the site-specific plan and that all infrastructure and utilities are protected (i.e., electrical transformers, electrical conduit, phone and fiber optic lines, oil and gas wells, barns and buildings, etc.).

         The Plan also stipulates the limitation of prescribed burning to those periods when atmospheric and wind conditions are within acceptable guidelines (and may be locally specific), which shall be identified in the plan in order to minimize risks associated with the potential effects of smoke on the local population and resources and the development of a smoke management plan (including plotting the expected direction of the smoke plume, identifying all smoke sensitive areas in the vicinity and their distances from the burn unit), identifying critical smoke-sensitive areas (public roads and airports must be considered at risk for smoke, and appropriate precautions must be taken to minimize risks to traffic), and minimizing the risk to adjacent properties and populations). Burn managers will coordinate with county officials in determining the appropriateness of burning during county burn bans and the approval of the appropriate division director must be obtained to conduct a prescribed burn during a burn ban. No fires will be ignited if the Texas Interagency Coordination Center (TICC) has rated the "TFS Regional Fire Risk Level" at a "5 – extreme."

         Finally, the Plan describes the emergency response preparedness measures that department staff are expected to employ and follow and the parameters for burning brush piles or debris on agency lands.

         The complete Plan is also published in the In Addition section of this issue of the Texas Register, and may also be viewed/downloaded on the department’s website at www.tpwd.texas.gov.

2. Fiscal Note.

         Justin Dreibelbis, Director of the Private Lands and Public Hunting Program, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the proposed rule.

3. Public Benefit/Cost Note.

         Mr. Dreibelbis also has determined that for each of the first five years the rule as proposed rule is effect:
         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will the implementation by rule of the general prescribed burn plan required by H.B. 801.  As described in more detail above, there are many benefits to land and wildlife from prescribed fire.  The rule will help ensure that prescribed fire is administered in a safe, appropriate and transparent manner.

         (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, commission considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rule as proposed. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

         (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

4. Request for Public Comment.

Commission Agenda Item No. 8
Exhibit B

General Plan for Prescribed Burning on TPWD Lands

A.  Purpose

Fire is a major ecological force in many terrestrial ecosystems throughout the world. Historically, fire in conjunction with other environmental factors such as topography and climate, has played a major role in determining the distribution of many plants and plant communities worldwide.

This plan establishes minimum standards and requirements for all wildland fire management activities on TPWD managed lands which are essential for the protection of human life, property and for the stewardship and sustainability of Texas’ natural and cultural resources.  Wildland fire is considered any fire that is not a structural or vehicle fire.  Structural and vehicle fires are not covered in this plan.

Four distinct categories of fire management activities may occur on TPWD managed lands:

            Prescribed burn: Any fire intentionally ignited for management actions to meet specific objectives.  A written, approved prescribed burn plan must exist prior to ignition.

            Wildland Fire Use: The use of a naturally-ignited wildfire to accomplish specific resource management objectives in pre-defined areas as outlined in a site specific wildland fire use plan.

            Wildfire: An unplanned wildland fire including unauthorized human-caused fires, escaped prescribed burns, and all other wildland fires where the objective is to extinguish the fire.

            Brush/Debris Pile Burning: The burning of brush and debris, composed entirely of organic matter that naturally grows at a site and exclusive of any man-made or man-modified materials.

Fire has the potential to drastically alter vegetation and wildlife habitat, and may contribute to or hinder the achievement of a site’s resource management objectives.  A site’s fire management plan will be designed to meet resource management objectives, ensure facility protection, and ensure the safety of the public and department personnel. The Incident Command System (ICS) and firefighting standards set forth by the National Wildfire Coordinating Group (NWCG) will be adopted for all fire management activities, except where noted.

Division specific requirements and procedures may be implemented by the Division Director or designee.

B.   Wildland Fire Training and fitness requirements

All TPWD staff participating in wildland fire activities with active fire will have completed the minimum training requirements for a Fire Fighter Type Two as described in National Incident Management System (NIMS) Wildland Fire Qualifications System Guide, PMS 310-1.  TPWD staff leading a burn (Burn Manager or Prescribed Burn Boss) must meet or exceed the training and experience requirements of the Texas Prescribed Burning Board.  Each Division shall be responsible for developing minimum training and experience requirements for burn crew members.

All personnel participating in wildland fire operations must be screened annually for physical fitness according to the Wildland Firefighter Medical Standards Program adopted by the NWCG.

The minimum fitness level required for staff participating in operations position roles on wildland fire operations managed by TPWD shall be “moderate” as measured using the Work Capacity Test (WCT). The fitness level required for staff participating in support position roles on wildland fire operations managed by TPWD will be identified in division operating procedures. The fitness level required for staff participating with cooperators will be guided by NIMS Wildland Fire Qualifications System Guide, PMS 310-1, Federal Wildland Fire Qualifications Supplement or cooperator agreements.

C.  Use of Prescribed Burns

The primary purpose of prescribed burns on TPWD lands is to utilize fire as an ecological process and simulate the effects of natural fire events. The application of fire fulfills numerous management objectives including reduction of excessive fuel loads, increased herbaceous species and available browse, control of invasive species, increasing species diversity and richness, and facilitation of the long-term objectives for natural habitat and community restoration and maintenance.

Prescribed burns on TPWD lands shall be conducted in association with these management objectives and/or other research endeavors in order to document the long-term effects of this practice on habitat quality or habitat restoration.

Prescribed burns are the most effective and efficient method to reduce fuel loadings. Fire hazard is directly correlated to fuel loads, therefore, reducing the fuel loads will not only reduce the fire hazard, but also the impact a wildfire could have on a site, its facilities, and its natural communities.

D.  Prescribed Burn Planning

A site-specific prescribed burn plan must be completed and approved by staff as designated by the Executive Director in the division operating plans, prior to implementing a prescribed burn.

Site–specific prescribed burn plans shall contain: a description of the project area,  including fuels and any potential hazards; purpose and objective of burn; pre-burn notifications, burn prescription parameters, expected fire behavior; pre-burn considerations and preparation requirements; ignition and holding strategies; required staffing, equipment, and contingency resources; smoke management, contingency plan for escapes; mop up plan; and maps including individual burn units, pre-burn actions, and surrounding areas and access routes for contingency actions. Prescribed burn plan templates and formats may be Division specific.

If ground disturbing actions are anticipated or if cultural resources may be impacted, appropriate cultural resources clearance must be obtained in accordance with existing TPWD procedures prior to implementing the prescribed burn. Where there is the potential to impact state or federally listed endangered or threatened species or communities, appropriate concurrence shall be acquired as needed.

      Prescribed burns shall only be implemented when there is an approved prescribed burn plan and the necessary personnel and equipment resources stated in the approved plan are available on the burn site and the prescription conditions can be met.

E.  Outreach and Notifications

In coordination with the prescribed burn manager, site managers shall be responsible for providing adequate advance notice of the intent to conduct a prescribed burn(s) to neighboring landowners, appropriate state and local officials, and the community at large in the vicinity of the prescribed burn area. Notifications will be made as required by HB 801 (Section1 Chapter 11 Parks and Wildlife Code, Subchapter M).

Neighboring landowner notices shall include the planned start and end dates of the prescribed burn; any safety precautions the landowner should take to ensure the safety of the landowner’s property before, during, and after the burn; a map of the prescribed burn area, including the location of any utility infrastructure within prescribed burn area; the methods proposed for use in conducting the burn; and contact information for the prescribed burn manager or site manager.

Notice to local and state officials shall include city or county emergency services dispatch center; local fire departments; water utility officials with water facilities within a two mile radius of the prescribed burn area, owners of any utility infrastructure within the prescribed burn area; and other parties identified in the division’s operating procedures or the site-specific prescribed burn plan.