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The Florida Senate

2016 Florida Statutes

Title XXXV AGRICULTURE, HORTICULTURE, AND ANIMAL INDUSTRY
Chapter 590 FOREST PROTECTION Entire Chapter
SECTION 125
Open burning authorized by the Florida Forest Service.
F.S. 590.125
590.125 Open burning authorized by the Florida Forest Service.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Certified pile burner” means an individual who successfully completes the pile burning certification program of the Florida Forest Service and possesses a valid pile burner certification number.
(b) “Certified pile burning” means a pile burn conducted in accordance with a written pile burning plan by a certified pile burner.
(c) “Certified prescribed burn manager” means an individual who successfully completes the certified prescribed burning program of the Florida Forest Service and possesses a valid certification number.
(d) “Certified prescribed burning” means prescribed burning in accordance with a written prescription conducted by a certified prescribed burn manager.
(e) “Contained” means that fire and smoldering exist entirely within established or natural firebreaks.
(f) “Completed” means that for:
1. Broadcast burning, no continued lateral movement of fire across the authorized area into entirely unburned fuels within the authorized area.
2. Certified pile burning or pile burning, no visible flames exist.
3. Certified pile burning or pile burning in an area designated as smoke sensitive by the Florida Forest Service, no visible flames, smoke, or emissions exist.
(g) “Gross negligence” means conduct so reckless or wanting in care that it constitutes a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.
(h) “Pile burning” means the burning of silvicultural, agricultural, land-clearing, or tree-cutting debris originating onsite, which is stacked together in a round or linear fashion, including, but not limited to, a windrow. Pile burning authorized by the Florida Forest Service is a temporary procedure, which operates on the same site for 6 months or less.
(i) “Pile burn plan” means a written plan establishing the method of conducting a certified pile burn.
(j) “Prescribed burning” means the application of fire by broadcast burning for vegetative fuels under specified environmental conditions, while following appropriate measures to guard against the spread of fire beyond the predetermined area to accomplish the planned fire or land management objectives.
(k) “Prescription” means a written plan establishing the conditions and methods for conducting a certified prescribed burn.
(l) “Smoldering” means the continued consumption of fuels, which may emit flames and smoke, after a fire is contained.
(m) “Yard trash” means vegetative matter resulting from landscaping and yard maintenance operations and other such routine property cleanup activities. The term includes materials such as leaves, shrub trimmings, grass clippings, brush, and palm fronds.
(2) NONCERTIFIED BURNING.—
(a) Persons may be authorized to broadcast burn or pile burn pursuant to this subsection if:
1. There is specific consent of the landowner or his or her designee;
2. Authorization has been obtained from the Florida Forest Service or its designated agent before starting the burn;
3. There are adequate firebreaks at the burn site and sufficient personnel and firefighting equipment for the containment of the fire;
4. The fire remains within the boundary of the authorized area;
5. The person named responsible in the burn authorization or a designee is present at the burn site until the fire is completed;
6. The Florida Forest Service does not cancel the authorization; and
7. The Florida Forest Service determines that air quality and fire danger are favorable for safe burning.
(b) A new authorization is not required for smoldering that occurs within the authorized burn area unless new ignitions are conducted by the person named responsible in the burn authorization or a designee.
(c) Monitoring the smoldering activity of a burn does not require an additional authorization even if flames begin to spread within the authorized burn area due to ongoing smoldering.
(d) A person who broadcast burns or pile burns in a manner that violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(3) CERTIFIED PRESCRIBED BURNING; LEGISLATIVE FINDINGS AND PURPOSE.—
(a) The application of prescribed burning is a land management tool that benefits the safety of the public, the environment, and the economy of the state. The Legislature finds that:
1. Prescribed burning reduces vegetative fuels within wild land areas. Reduction of the fuel load reduces the risk and severity of wildfire, thereby reducing the threat of loss of life and property, particularly in urban areas.
2. Most of Florida’s natural communities require periodic fire for maintenance of their ecological integrity. Prescribed burning is essential to the perpetuation, restoration, and management of many plant and animal communities. Significant loss of the state’s biological diversity will occur if fire is excluded from fire-dependent systems.
3. Forestland and rangeland constitute significant economic, biological, and aesthetic resources of statewide importance. Prescribed burning on forestland prepares sites for reforestation, removes undesirable competing vegetation, expedites nutrient cycling, and controls or eliminates certain forest pathogens. On rangeland, prescribed burning improves the quality and quantity of herbaceous vegetation necessary for livestock production.
4. The state purchased hundreds of thousands of acres of land for parks, preserves, wildlife management areas, forests, and other public purposes. The use of prescribed burning for management of public lands is essential to maintain the specific resource values for which these lands were acquired.
5. A public education program is necessary to make citizens and visitors aware of the public safety, resource, and economic benefits of prescribed burning.
6. Proper training in the use of prescribed burning is necessary to ensure maximum benefits and protection for the public.
7. As Florida’s population continues to grow, pressures from liability issues and nuisance complaints inhibit the use of prescribed burning. Therefore, the Florida Forest Service is urged to maximize the opportunities for prescribed burning conducted during its daytime and nighttime authorization process.
(b) Certified prescribed burning pertains only to broadcast burning for purposes of silviculture, wildland fire hazard reduction, wildlife management, ecological maintenance and restoration, and agriculture. It must be conducted in accordance with this subsection and:
1. May be accomplished only when a certified prescribed burn manager is present on site with a copy of the prescription and directly supervises the certified prescribed burn until the burn is completed, after which the certified prescribed burn manager is not required to be present.
2. Requires that a written prescription be prepared before receiving authorization to burn from the Florida Forest Service.
a. A new prescription or authorization is not required for smoldering that occurs within the authorized burn area unless new ignitions are conducted by the certified prescribed burn manager.
b. Monitoring the smoldering activity of a certified prescribed burn does not require a prescription or an additional authorization even if flames begin to spread within the authorized burn area due to ongoing smoldering.
3. Requires that the specific consent of the landowner or his or her designee be obtained before requesting an authorization.
4. Requires that an authorization to burn be obtained from the Florida Forest Service before igniting the burn.
5. Requires that there be adequate firebreaks at the burn site and sufficient personnel and firefighting equipment to contain the fire within the authorized burn area.
a. Fire spreading outside the authorized burn area on the day of the certified prescribed burn ignition does not constitute conclusive proof of inadequate firebreaks, insufficient personnel, or a lack of firefighting equipment.
b. If the certified prescribed burn is contained within the authorized burn area during the authorized period, a strong rebuttable presumption shall exist that adequate firebreaks, sufficient personnel, and sufficient firefighting equipment were present.
c. Continued smoldering of a certified prescribed burn resulting in a subsequent wildfire does not by itself constitute evidence of gross negligence under this section.
6. Is considered to be in the public interest and does not constitute a public or private nuisance when conducted under applicable state air pollution statutes and rules.
7. Is considered to be a property right of the property owner if vegetative fuels are burned as required in this subsection.
(c) A property owner or leaseholder or his or her agent, contractor, or legally authorized designee is not liable pursuant to s. 590.13 for damage or injury caused by the fire, including the reignition of a smoldering, previously contained burn, or resulting smoke or considered to be in violation of subsection (2) for burns conducted in accordance with this subsection, unless gross negligence is proven. The Florida Forest Service is not liable for burns for which it issues authorizations.
(d) Any certified burner who violates this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(e) The Florida Forest Service shall adopt rules for the use of prescribed burning and for certifying and decertifying certified prescribed burn managers based on their past experience, training, and record of compliance with this section.
(4) CERTIFIED PILE BURNING.—
(a) Certified pile burning pertains to the disposal of piled, naturally occurring debris from agricultural, silvicultural, land-clearing, or tree-cutting debris originating onsite. Certified pile burning must be conducted in accordance with the following:
1. A certified pile burner must ensure, before ignition, that the piles are properly placed and that the content of the piles is conducive to efficient burning.
2. A certified pile burner must ensure that the authorized burn is completed no later than 1 hour after sunset. If the burn is conducted in an area designated by the Florida Forest Service as smoke sensitive, a certified pile burner must ensure that the authorized burn is completed at least 1 hour before sunset.
3. A written pile burning plan must be prepared before receiving authorization from the Florida Forest Service to burn and must be onsite and available for inspection by a department representative.
4. The specific consent of the landowner or his or her agent must be obtained before requesting authorization to burn.
5. An authorization to burn must be obtained from the Florida Forest Service or its designated agent before igniting the burn.
6. There must be adequate firebreaks and sufficient personnel and firefighting equipment at the burn site to contain the burn to the piles authorized.
(b) If a burn is conducted in accordance with paragraph (a), the property owner and his or her agent are not liable under s. 590.13 for damage or injury caused by the fire or resulting smoke, and are not in violation of subsection (2), unless gross negligence is proven.
(c) A certified pile burner who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(d) The Florida Forest Service shall adopt rules regulating certified pile burning. The rules shall include procedures and criteria for certifying and decertifying certified pile burn managers based on past experience, training, and record of compliance with this section.
(5) WILDFIRE HAZARD REDUCTION TREATMENT BY THE FLORIDA FOREST SERVICE.—The Florida Forest Service may conduct fuel reduction initiatives, including, but not limited to, burning and mechanical and chemical treatment, on any area of wild land within the state which is reasonably determined to be in danger of wildfire in accordance with the following procedures:
(a) Describe the areas that will receive fuels treatment to the affected local governmental entity.
(b) Publish a treatment notice, including a description of the area to be treated, in a conspicuous manner in at least one newspaper of general circulation in the area of the treatment not less than 10 days before the treatment.
(c) Prepare and send a notice to all landowners in each area designated by the Florida Forest Service as a wildfire hazard area. The notice must describe particularly the area to be treated and the tentative date or dates of the treatment and must list the reasons for and the expected benefits from the wildfire hazard reduction.
(d) Consider any landowner objections to the fuels treatment of his or her property. The landowner may apply to the director of the Florida Forest Service for a review of alternative methods of fuel reduction on the property. If the director or his or her designee does not resolve the landowner objection, the director shall convene a panel made up of the local forestry unit manager, the fire chief of the jurisdiction, and the affected county or city manager, or any of their designees. If the panel’s recommendation is not acceptable to the landowner, the landowner may request further consideration by the Commissioner of Agriculture or his or her designee and shall thereafter be entitled to an administrative hearing pursuant to the provisions of chapter 120.
(6) FLORIDA FOREST SERVICE APPROVAL OF LOCAL GOVERNMENT OPEN BURNING AUTHORIZATION PROGRAMS.—
(a) A county or municipality may exercise the authority of the Florida Forest Service, if delegated by the Florida Forest Service under this subsection, to issue authorizations for the burning of yard trash or debris from land-clearing operations. A county’s or municipality’s existing or proposed open burning authorization program must:
1. Be approved by the Florida Forest Service. The Florida Forest Service may not approve a program if it fails to meet the requirements of subsections (2) and (4) and any rules adopted under those subsections.
2. Provide by ordinance or local law the requirements for obtaining and performing a burn authorization that complies with subsections (2) and (4) and any rules adopted under those subsections.
3. Provide for the enforcement of the program’s requirements.
4. Provide financial, personnel, and other resources needed to carry out the program.
(b) If the Florida Forest Service determines that a county’s or municipality’s open burning authorization program does not comply with subsections (2) and (4) and any rules adopted under those subsections, the Florida Forest Service shall require the county or municipality to take necessary corrective actions within 90 days after receiving notice from the Florida Forest Service of its determination.
1. If the county or municipality fails to take the necessary corrective actions within the required period, the Florida Forest Service shall resume administration of the open burning authorization program in the county or municipality and the county or municipality shall cease administration of its program.
2. Each county and municipality administering an open burning authorization program must cooperate with and assist the Florida Forest Service in carrying out the powers, duties, and functions of the Florida Forest Service.
3. A person who violates the requirements of a county’s or municipality’s open burning authorization program, as provided by ordinance or local law enacted pursuant to this subsection, commits a violation of this chapter, punishable as provided in s. 590.14.
(7) DUTIES OF AGENCIES.—The Department of Education shall incorporate, where feasible and appropriate, the issues of fuels treatment, including prescribed burning, into its educational materials.
History.—s. 9, ch. 99-292; s. 41, ch. 2002-295; s. 21, ch. 2005-210; s. 56, ch. 2011-206; s. 61, ch. 2012-7; s. 25, ch. 2013-226; s. 150, ch. 2014-150.