Selected Florida Prescribed Burning legislation

 

Administrative Code

Chapter 5I (Entire Chapter)

5I-2.004. (Burning Not Allowed)

5I-2.006.  (Open Burning Allowed)

 

State Code

Title XXXV (35). Agriculture, Horticulture, and Animal Industry (Entire Title)

                        Chapter 590. Forest Protection. (Entire Chapter)

Statute 590.14. (Notice of violation; penalties.)

Statute 590.28.  (Intentional or reckless burning of lands.)

Statute 590.125.  (Open burning authorized by the division.)

 

 

Administrative Code 5I-2.004. (Burning Not Allowed)

(1) Listed below are the types of open burning not allowed in Florida:

(a) Any open burning not allowed by Florida Administrative Code Rule (FAC) 5I-2, FAC 62-256, or Florida Statutes (FS) 590, and 403.

(b) Open burning of tires, rubber material, Bunker C residual oil, asphalt, roofing material, tar, railroad cross ties, other creosoted lumber, plastics (except or those authorized in F.A.C. 62-256.700(6) and F.S. 403.707), garbage, or trash other than yard trash and household paper products.

(c) Open burning that reduces visibility at a public airport.

(d) Open burning when the Department of Environmental Protection (DEP) determines that ambient air concentrations of total regulated particulate matter or ozone exceeds or potentially may exceed the primary or secondary standards for these pollutants or DEP issues an air quality/stagnation advisory that pertains to the National Ambient Air Quality Standards (NAAQS).

(e) Open burning during a National Weather Service Air Stagnation Advisory.

(f) Open burning which reduces visibility on public roadways to less than one thousand feet (1000) unless the regulating authorities have given their permission to control traffic.

(g) Burning in smoke sensitive areas between one hour before sunset and 9:00 A.M. the next day.

(h) All open burning when the fire poses a threat to public health, safety, and property protection.

(2) Open burning authorizations will be denied to any burner who repeatedly violates Florida law or agency rules. This denial remains in effect until the concern that caused the denial has been mitigated in consultation with the Division of Forestry field unit manager.

(3) Open burning whenever atmospheric or meteorological conditions indicate improper dispersion of smoke that threaten public health, safety, or general welfare, or which would obscure visibility of vehicular or air traffic, or violates the condition of the authorization, or burning prescription.

[Unless exempted by Chapters 5I or 62 or Statutes 403 or 590 (Forest Protection), all outdoor burning is prohibited.]

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Administrative Code 5I-2.006.  (Open Burning Allowed)

(1) Open Burning in General. Authorization must be obtained from the Florida Division of Forestry for burns relating to agriculture, silviculture and rural land clearing on the same day the burn is to take place or after 4:00 pm of the previous day. The Division of Forestry may set special requirements for authorizations in order to protect public safety, including but not limited to on site inspections. Any authorized burn that goes out of compliance will be allowed a maximum of two hours to be brought into compliance by the person responsible. In the event that the Division determines that there is a threat to life, public safety or property immediate suppression action will be taken.

(a) Non-Certified Daytime Authorizations will be issued for the burning to be conducted from 9:00 a.m. and the fire must discontinue spreading one hour before sunset (except for Certified Prescribed Burn Managers).

(b) Non-Certified Nighttime Authorizations will be issued with a Dispersion Index of 8 (except for Certified Prescribed Burn Managers) for the burning to be conducted between one hour before sunset and 9:00 a.m. Ignition of these fires is authorized up to midnight, however the fire can continue to spread until 9:00 a.m the following day. If additional time is required a new authorization (daytime) must be obtained from the Division.

(2) Open Burning for Certified Prescribed Burn Managers (All burning conducted under this section must relate to Silviculture, Wildlife Management, Ecological Maintenance and Restoration, and Range Management. Burning in accordance with this section entitles the burner to the protection offered in section 590.125(3)(c), Florida Statutes.) Open burning authorizations under this section require the Certified Prescribed Burn Manager's certification number be presented at the time of the request, and that a Certified Prescribed Burn Manager be on site for the entire burn.

(a) Prescription: A prescription for the burn must be on site and available for inspection by a Department representative. The prescription will contain, as a minimum, the following:

1. Stand or Site Description;

2. Map of the area to be burned;

3. Personnel and equipment to be used on the prescribed burn;

4. Desired weather factors, including but not limited to surface wind speed and direction, transport wind speed and direction, minimum mixing height, minimum relative humidity, maximum temperature, and fine fuel moisture;

5. Desired fire Behavior Factors, such as type of burn technique, flame length, and rate of spread;

6. The time and date the prescription was prepared;

7. The authorization date and the time period of the authorization;

8. An evaluation and approval of the anticipated impact of the proposed burn on related smoke sensitive areas;

9. The signature and number of the Certified Prescribed Burn Manager.

(b) Open Burning Hours

1. Daytime Authorizations: will be issued for the burning to be conducted from 9:00 a.m. and the fire must discontinue spreading one hour after sunset.

2. Nighttime Authorizations: will be issued with a Dispersion Index of 6 or above for the burning to be conducted between one hour before sunset and 9:00 a.m the following day. Ignition of these fires is authorized up to midnight, however the fire can continue to spread until 9:00 a.m the following day. If additional time is required a new authorization (daytime) must be obtained from the Division. The Division may issue authorizations at other times, in designated areas, when the Division has determined that atmospheric conditions in the vicinity of the burn will allow good diffusion and dispersement of air pollutants, and the resulting smoke from the burn will not adversely impact critical smoke sensitive areas, e.g., highways, hospitals and airports.

(c) Burn Manager Certification Process. Certification to become a Certified Prescribed Burn Manager is accomplished by:

1. Satisfactory completion of the Division of Forestry's Prescribed Fire Correspondence Course and direct experience in three prescribed burns prior to taking the course or;

2. Satisfactory completion of the Florida Inter-Agency Basic Prescribed Fire Course and direct experience in three prescribed burns.

3. In order to continue to hold the Division of Forestry Prescribed Burn Manager Certification the burner must comply with 5I-2.006(2)(d) F.A.C. or Division Certification will terminate five years from the date of issue.

(d) Certification Renewal.

1. Participation in a minimum of eight hours of training every five years relating to the subject of prescribed fire, or participation in a North/Central Prescribed Fire Council or South Florida Fire Council Meeting, and

2. The Certified Prescribed Burn Manager has submitted their certification number for two completed prescribed burns in the preceding five (5) years, or

3. Participation in five (5) burns and have this documented and verified by a current Certified Prescribed Burn Manager, or

4. Retaking either the Prescribed Fire Correspondence Course or the Inter-Agency Basic Prescribed Fire Course.

(e) Decertification. The Commissioner of Agriculture will revoke any Certified Prescribed Burn Manager's certification if they demonstrate that their practices and procedures repeatedly violated Florida law or agency rules or is a threat to public health, safety, or property.

[If the burn manager loses control of the fire, the state expects the situation to be resolved within two hours or the Division will cancel the authorization and take suppression action.  If the situation is serious enough, the Division will take immediate action.] 

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Statute 590.14. (Notice of violation; penalties.)

(1) If a division employee determines that a person has violated chapter 589 [general duties of Commission] or this chapter, he or she may issue a notice of violation indicating the statute violated. This notice will be filed with the division and a copy forwarded to the appropriate law enforcement entity for further action if necessary.

(2) In addition to any penalties provided by law, any person who causes a wildfire or permits any authorized fire to escape the boundaries of the authorization or to burn past the time of the authorization is liable for the payment of all reasonable costs and expenses incurred in suppressing the fire or $150, whichever is greater. All costs and expenses incurred by the division shall be payable to the division. When such costs and expenses are not paid within 30 days after demand, the division may take proper legal proceedings for the collection of the costs and expenses. Those costs incurred by an agency acting at the division's direction are recoverable by that agency.

(3) The department may also impose an administrative fine, not to exceed $1,000 per violation of any section of chapter 589 or this chapter. The fine shall be based upon the degree of damage, the prior violation record of the person, and whether the person knowingly provided false information to obtain an authorization. The fines shall be deposited in the Incidental Trust Fund of the division.

(4) The penalties provided in this section shall extend to both the actual violator and the person or persons, firm, or corporation causing, directing, or permitting the violation.

[For non-compliance onsite fires, escaped fires, or fires that burn past deadline, both the landowner and burn manager is responsible for a minimal of $150 of suppression costs]

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Statute 590.28.  (Intentional or reckless burning of lands.)

(1) Whoever intentionally burns, sets fire to, or causes to be burned or causes any fire to be set to, any wild land or vegetative land clearing debris not owned by, or in the lawful possession of, the person setting such fire or burning such lands or causing such fire to be set or lands to be burned without complying with s. 590.125, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever recklessly burns, sets fire to, or causes to be burned any wild lands not owned by, or in the lawful possession of, the person setting the fire or burning the lands or causing the fire to be set or lands to be burned, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

[First section deal with arson while second is unintentional burning.  The use of the word “recklessly” suggests the use of simple negligence as the standard for guilt.]

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Statute 590.125.  (Open burning authorized by the division.)

(1) DEFINITIONS.--As used in this section, the term:

(a)  "Prescribed burning" means the controlled application of fire in accordance with a written prescription for vegetative fuels under specified environmental conditions while following appropriate precautionary measures that ensure that the fire is confined to a predetermined area to accomplish the planned fire or land-management objectives.

(b)  "Certified prescribed burn manager" means an individual who successfully completes the certification program of the division and possesses a valid certification number.

(c)  "Prescription" means a written plan establishing the criteria necessary for starting, controlling, and extinguishing a prescribed burn.

(d)  "Extinguished" means that no spreading flame for wild land burning or certified prescribed burning, and no visible flame, smoke, or emissions for vegetative land-clearing debris burning, exist.

(2) NONCERTIFIED BURNING.--

(a) Persons may be authorized to burn wild land or vegetative land-clearing debris in accordance with this subsection if:

1.  There is specific consent of the landowner or his or her designee;

2.  Authorization has been obtained from the division 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 control of the fire;

4.  The fire remains within the boundary of the authorized area;

5.  Someone is present at the burn site until the fire is extinguished;

6.  The division does not cancel the authorization; and

7.  The division determines that air quality and fire danger are favorable for safe burning.

(b) A person who burns wild land or vegetative land-clearing debris in a manner that violates any requirement of 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 division 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. 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 from ignition of the burn to its completion.

2.  Requires that a written prescription be prepared before receiving authorization to burn from the division.

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 division before igniting the burn.

5.  Requires that there be adequate firebreaks at the burn site and sufficient personnel and firefighting equipment for the control of the fire.

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 his or her agent is neither liable for damage or injury caused by the fire or resulting smoke nor considered to be in violation of subsection (2) for burns conducted in accordance with this subsection unless gross negligence is proven.

(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 division 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) WILDFIRE HAZARD REDUCTION TREATMENT BY THE DIVISION.--The division 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 the county tax collector shall include with the annual tax statement, a notice to be sent to all landowners in each township designated by the division 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 division 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.

(5) 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.

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