Note: [Bracketed comments in bold after sections are provided by the website author and are not official government statements]
For general information, see Virginia Department of Forestry's Frequently Asked Questions (FAQ) on burning
Title 18.2 – Crimes and Offences generally (Entire title)
Section 18.2-11. (Punishment for conviction of misdemeanor.)
Section 18.2-88. (Carelessly damaging property by fire.)
Title 10.1 - Conservation
Chapter 11 - Forest Resources and the Department of Forestry (Entire chapter)
10.1-1126.1. (Silvicultural practices; local government authority limited.)
10.1-1141. (Liability and recovery of cost of fighting forest fires.)
10.1-1142. (Regulating the burning of woods, brush, etc.; penalties)
10.1-1150.4. (Prescribed burn elements)
From Virginia’s Smoke Management Guidelines
The State Air Pollution Control Board has established regulations for the control and abatement of air pollution, which was last revised in 1997. Sections of the regulations that refer to and impact prescribed burning are #9 VAC 5-40-5600, 5610, 5620, 5630, and 5631. Section 9 VAC 5-40-5630, #9 specifically states that open burning is permitted for approved forest management practices provided the following conditions are met :
a. The burning shall be at least 1000 feet from any occupied building unless the occupants have given prior
permission, other than a building located on the property on which the burning is conducted; and
b. The burning shall be attended at all times.
Section 18.2-11. (Punishment for conviction of misdemeanor.)
The authorized punishments for conviction of a misdemeanor are:
(a) For Class 1 misdemeanors, confinement in jail for not more than twelve months and a fine of not more
than $2,500, either or both.
(b) For Class 2 misdemeanors, confinement in jail for not more than six months and a fine of not more than
$1,000, either or both.
(c) For Class 3 misdemeanors, a fine of not more than $500.
(d) For Class 4 misdemeanors, a fine of not more than $250.
Section 18.2-88. (Carelessly damaging property by fire.)
If any person carelessly, negligently or intentionally set any woods or marshes on fire, or set fire to any stubble, brush, straw, or any other substances capable of spreading fire on lands, whereby the property of another is damaged or jeopardized, he shall be guilty of a Class 4 misdemeanor, and shall be liable for the full amount of all expenses incurred in fighting the fire.
Section 10.1-1126.1. (Silvicultural practices; local government authority limited.)
A. Forestry, when practiced in accordance with accepted silvicultural best management practices as determined by the State Forester pursuant to §10.1-1105, constitutes a beneficial and desirable use of the Commonwealth's forest resources.
B. Notwithstanding any other provision of law, silvicultural activity, as defined in §10.1-1181.1, that (i) is conducted in accordance with the silvicultural best management practices developed and enforced by the State Forester pursuant to §10.1-1105 and (ii) is located on property defined as real estate devoted to forest use under §58.1-3230 or in a district established pursuant to Chapter 43 (§15.2-4300 et seq.) or Chapter 44 (§15.2-4400 et seq.) of Title 15.2, shall not be prohibited or unreasonably limited by a local government's use of its police, planning and zoning powers. Local ordinances and regulations shall not require a permit or impose a fee for such silvicultural activity. Local ordinances and regulations pertaining to such silvicultural activity shall be reasonable and necessary to protect the health, safety and welfare of citizens residing in the locality, and shall not be in conflict with the purposes of promoting the growth, continuation and beneficial use of the Commonwealth's privately owned forest resources. Prior to the adoption of any ordinance or regulation pertaining to silvicultural activity, a locality may consult with, and request a determination from, the State Forester as to whether the ordinance or regulation conflicts with the purposes of this section. Nothing in this section shall preclude a locality from requiring a review by the zoning administrator, which shall not exceed ten working days, to determine whether a proposed silvicultural activity complies with applicable local zoning requirements.
C. The provisions of this section shall apply to the harvesting of timber, provided that the area on which such harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§10.1-1100 et seq.) of Title 10.1 or is converted to bona fide agricultural or improved pasture use as described in subsection B of §10.1-1163.
The provisions of this section shall not apply to land that has been rezoned or converted at the request of the owner or previous owner from an agricultural or rural to a residential, commercial or industrial zone or use.
Nothing in this section shall affect any requirement imposed pursuant to the Chesapeake Bay Preservation Act (§10.1-2100 et seq.) or imposed by a locality pursuant to the designation of a scenic highway or Virginia byway in accordance with Article 5 (§33.1-62 et seq.) of Chapter 1 of Title 33.1.
[A Right to Forestry law, based on following the state’s BMP’s. Certain local beauty ordinances supercede this Section.]
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Section 10.1-1141. (Liability and recovery of cost of fighting forest fires.)
The State Forester in the name of the Commonwealth shall collect the costs of fire fighting performed under the direction of a forest warden in accordance with §10.1-1139 from any person who, negligently or intentionally without using reasonable care and precaution starts a fire or who negligently or intentionally fails to prevent its escape, which fire burns on any forestland, brushland, grassland or wasteland. Such person shall be liable for the full amount of all expenses incurred by the Commonwealth, for fighting or extinguishing such fire. All expenses collected shall be credited to the Forestry Operations Fund. It shall be the duty of the Commonwealth's attorneys to institute and prosecute proper proceedings under this section, at the instance of the State Forester.
The State Forester may institute an action and recover from either one or both parents of any minor, living with such parents or either of them, the cost of forest fire suppression suffered by reason of the willful or malicious destruction of, or damage to, public or private property by such minor. No more than $750 may be recovered from such parents or either of them as a result of any forest fire incident or occurrence on which such action is based.
[If a fire escapes, the burner is liable for state fire suppression costs.]
Section 10.1-1142. (Regulating the burning of woods, brush, etc.; penalties)
A. It shall be unlawful for any owner or lessee of land to set fire to, or to procure another to set fire to, any woods, brush, logs, leaves, grass, debris, or other inflammable material upon such land unless he previously has taken all reasonable care and precaution, by having cut and piled the same or carefully cleared around the same, to prevent the spread of such fire to lands other than those owned or leased by him. It shall also be unlawful for any employee of any such owner or lessee of land to set fire to or to procure another to set fire to any woods, brush, logs, leaves, grass, debris, or other inflammable material, upon such land unless he has taken similar precautions to prevent the spread of such fire to any other land.
B. Except as provided in subsection C, during the period February 15 through April 30 of each year, even though the precautions required by the foregoing subsection have been taken, it shall be unlawful, in any county or city or portion thereof organized for forest fire control under the direction of the State Forester, for any person to set fire to, or to procure another to set fire to, any brush, leaves, grass, debris or field containing dry grass or other inflammable material capable of spreading fire, located in or within 300 feet of any woodland, brushland, or field containing dry grass or other inflammable material, except between the hours of 4:00 p.m. and 12:00 midnight. The provisions of this subsection shall not apply to any fires which may be set on federal lands.
C. Subsection B shall not apply to any fire set between February 15 and March 1 of each year, if:
1. The fire is set for "prescribed burning" that is conducted in accordance with a "prescription" and managed by a "certified prescribed burn manager" as those terms are defined in §10.1-1150.1;
2. The burn is conducted in accordance with §10.1-1150.4;
3. The State Forester has, prior to February 1, approved the prescription for the burn; and
4. The burn is being conducted for one of the following purposes: (i) control of exotic and invasive plant species that cannot be accomplished at other times of the year; (ii) wildlife habitat establishment and maintenance that cannot be accomplished at other times of the year; or (iii) management necessary for natural heritage resources.
The State Forester may on the day of any burn planned to be conducted pursuant to this subsection revoke his approval of the prescription for the burn if hazardous fire conditions exist. The State Forester may revoke the certification of any certified prescribed burn manager who violates any provision of this subsection.
D. Any person who builds a fire in the open air, or uses a fire built by another in the open air, within 150 feet of any woodland, brushland or field containing dry grass or other inflammable material, shall totally extinguish the fire before leaving the area and shall not leave the fire unattended.
E. Any person violating any provisions of this section shall be guilty of a Class 3 misdemeanor for each separate offense. If any forest fire originates as a result of the violation by any person of any provision of this section, such person shall, in addition to the above penalty, be liable to the Commonwealth for the full amount of all expenses incurred by the Commonwealth in suppressing such fire. Such amounts shall be recoverable by action brought by the State Forester in the name of the Commonwealth on behalf of the Commonwealth and credited to the Forestry Operations Fund.
[Firelanes must be established. During 15 Feb-30 April, fires may only be set between 4 p.m. and midnight. If the fire is conducted by a state-certified burn manager, is approved by the Department of Forestry before 1 Feb, and has a prescription incorporating the state’s smoke management guidelines, there are no timing restrictions 15 Feb-1 March. Allowing a fire to escape is a Class 3 misdemeanor.]
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Section 10.1-1150.1. (Definitions.)
As used in this article unless the context requires a different meaning:
"Certified prescribed burn manager" means any person who has successfully completed a certification process established by the State Forester under §10.1-1150.2.
"Prescribed burning" means the controlled application of fire or wildland fuels in either the natural or modified state, under specified environmental conditions, which allows a fire to be confined to a predetermined area and produces the fire behavior and fire characteristics necessary to attain planned fire treatment and ecological, silvicultural, and wildlife management objectives.
"Prescription" means a written statement defining the objectives to be attained by a prescribed burning and the conditions of temperature, humidity, wind direction and speed, fuel moisture, and soil moisture under which a fire will be allowed to burn. A prescription is generally expressed as an acceptable range of the prescription elements.
Section 10.1-1150.4. (Prescribed burn elements)
Prescribed burning shall be performed in the following manner:
1. A prescription for the prescribed burn shall be prepared by a certified prescribed burn manager prior to the burn. The prescription shall include:
[a] the landowner's name, address, and telephone number, and the telephone number of the certified
prescribed burn manager who prepared the plan;
[b] a description of the area to be burned, a map of the area to be burned, the objectives of the prescribed
burn, and the desired weather conditions or parameters;
[c] a summary of the methods to be used to start, control, and extinguish the prescribed burn; and
[d] a smoke management plan. The smoke management plan shall be based on guidelines presented in the Virginia Department of Forestry publication, "Voluntary Smoke Management Guidelines for Virginia," and the U.S. Forest Service's technical publication, "A Guide to Prescribed Fire in Southern Forests." A copy of the prescription shall be retained at the site throughout the period of the burning;
2. Prescribed burning shall be conducted under the direct supervision of a certified prescribed burn manager, who shall ensure that the prescribed burning is in accordance with the prescription; and
3. The nearest regional office of the Virginia Department of Forestry shall be notified prior to the burn.
[Requirements are a prescription incorporating state smoke guidelines, a state-certified burn manager, and prior notification to the DOF.]
Section 10.1-1150.5. (Liability)
A. Any prescribed burning conducted in compliance with the requirements of this article, state air pollution control laws, and any rules adopted by the Virginia Department of Forestry shall be in the public interest and shall not constitute a nuisance.
B. Any landowner or his agent who conducts a prescribed burn in compliance with the requirements of this article, state air pollution control laws, and any rules adopted by the Virginia Department of Forestry shall not be liable for any damage or injury caused by or resulting from smoke.
C. Subsections A and B of this section shall not apply whenever a nuisance or damage results from the negligent or improper conduct of the prescribed burn or when the prescribed burn elements described in §10.1-1150.4 have not been complied with.
[Liability protection based on section 10.1-1150.4 requirements. Standard is simple negligence.]
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Website was last updated 17 August 2006 by D. Marshall, UGA
Important disclaimer: The content and opinions expressed on this web page do not necessarily reflect the views of nor are they endorsed by the University of Georgia or the University System of Georgia