Introduced Version House Bill 4394 History

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WEST virginia legislature

2018 regular session


House Bill 4394

By Delegates A. Evans, Hartman, Hamilton, and R.  Romine

[Introduced February 1, 2018; Referred
to the Committee on Agriculture and Natural Resources then the Judiciary.]


A BILL to amend and reenact §20-3-5 of the Code of West Virginia, 1931, as amended, and to amend said code by adding thereto a new section, designated §20-3-5a, all relating to forest fires; clarifying civil and criminal penalties for failure to remove flammable material, failure to create a safety strip, or permitting fire to escape; and creating a prescribed burn program.

Be it enacted by the Legislature of West Virginia:


§20-3-5. Forest fire seasons; prohibited and permissible fires; burning permits and fees; fire control measures; criminal and civil penalties.

(a) Forest fire seasons. — March 1 through May 31, and October 1 through December 31 are designated as forest fire seasons. During any fire season, a person may set on fire or cause to be set on fire any forest land, or any grass, grain, stubble, slash, debris, or other inflammable materials only between 5 p.m. and 7 a.m., at which time the fire must be extinguished.

(b) Permissible fires during forest fire seasons. — The following attended fires are permitted without a burning permit unless there is a burning ban in effect:

(1) Small fires set for the purpose of food preparation, or providing light or warmth around which all grass, brush, stubble, or other debris has been removed for a distance of 10 feet from the fire; and

(2) Burning conducted at any time when the ground surrounding the burning site is covered by one inch or more of snow.

(c) Burning permits. — The director or his or her designee may issue burning permits authorizing fires during forest fire seasons that are otherwise prohibited by this section. The permits shall state the requisite conditions and time frame to prevent danger from the fire to life or property: Provided, That the director or his or her designee shall take final action upon all completed permit applications within 30 days of receipt if the application is uncontested, or within 90 days if the application is contested.

(1) Permit fees. — Entities required to pay a permit fee are those engaged in commercial, manufacturing, public utility, mining and like activities. Agricultural activities are exempt from paying the permit fee. The permit fee is $125 per site and shall be deposited into the Division of Forestry Fund (3081) to be used to administer the provisions of this section. The permit fee covers the fire season during which it is issued.

(2) Noncompliance with any condition of the permit is a violation of this section. Any permit which was obtained through willful misrepresentation is invalid and violates this section.

(3) Permit holders shall take all necessary and adequate precautions to confine and control fires authorized by the permit. Failure to take action is a violation of this section and is justification for the director to revoke the permit.

(d) Fire control. —

(1) With approval of the Governor, the director may prohibit the starting of and require the extinguishment of fire in any designated area, including fires permitted by this section.

(2) With approval of the Governor, the director may designate any forest area as a danger area, prohibit entry, and declare conditional uses and prohibited areas of the forest by proclamation at any time of the year. The proclamation shall be furnished to newspapers, radio stations and television stations that serve the designated area and shall become effective after 24 hours. The proclamation remains in effect until the director, with the approval of the Governor, terminates it. The order shall designate the time of termination, and notice of the order shall be furnished to each newspaper, radio station and television station that received a copy of the proclamation.

(3) Burning is not permitted by this section until all inflammable material has been removed from around the material to be burned and a safety strip of at least ten feet is established to ensure that the fire will not escape It is a violation of this section to burn any material prior to the removal of all flammable material and the creation of at least a 10 foot safety strip. If the fire escapes the safety strip, the person or entity has committed a second violation of this section.

   (e) Criminal and civil penalties. -- A person or entity that violates this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than $100 and not more than $1,000 for each violation. In addition to fines and costs, a person or entity convicted of a violation of this section shall pay a $200 civil penalty to the division within 60 days. The civil penalty shall be collected by the court in which the person is convicted and forwarded to the division and deposited in the Division of Forestry Fund (3081) to be used to administer the provisions of this section.

§20-3-5a.  Prescribed Burn Program.

(a) As used in this section:

(1) “Certified prescribed burn manager” means any person who has successfully completed a certification process established by the director.

(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 the 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.

(3) “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.

(b) Director certification process.-- The director shall develop and administer a certification process and training course for any individual who desires to become a certified prescribed burn manager. The training program shall include the following subjects: the legal aspects of prescribed burning, fire behavior, prescribed burning tactics, smoke management, environmental effects, plan preparation, and safety. A final examination on these subjects shall be given to all attendees. The director may charge a reasonable fee to cover the costs of the course and the examination.

(c) To be certified as a prescribed burn manager, a person shall:

(1) Successfully complete all components of the prescribed burn course developed by the director and pass the examination developed for the course;

(2) Successfully complete a training course comparable to that developed by the director and pass the examination developed for the course; or

(3) Demonstrate relevant past experience, complete a review course and pass the examination developed for the course.

(d) 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: (i) The landowner's name, address, and telephone number, and the telephone number of the certified prescribed burn manager who prepared the plan, (ii) 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, (iii) a summary of the methods to be used to start, control, and extinguish the prescribed burn, and (iv) a smoke management plan. The smoke management plan shall conform to the Department of Environmental Protection’s rules for the open burning of vegetation and land clearing debris, 45 CSR 6.  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 division shall be notified 24 hours prior to the burn.

(e) A prescribed burn manager who conducts a prescribed burn in compliance with the requirements of this article, state air pollution control laws, any rules adopted by the Division of Forestry and the Department of Environmental Protection shall not be liable for damage or injury caused by smoke or fire. This shall not apply whenever a nuisance or damage results from the negligent or improper implementation of the prescribed burn or when the prescribed burn requirements of this section have not been met.

(f)  If the actions of any certified prescribed burn manager or the prescriptions prepared by him or her violate any provision of this article, state air pollution control laws, the Division of Forestry rules, the Department of Environmental Protection rules or laws, or threaten public health and safety, his or her certification may be revoked by the director.

(g) The director shall propose emergency or legislative rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement the provisions of this section.



NOTE: The purpose of this bill is to clarify that there are civil and criminal penalties for failure to remove flammable material, failure to create a safety strip and fire escape.  Further, the bill establishes a prescribed burn program. 

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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