March 01, 2013

The Importance of Community in Wildfire Prevention and Hazard Mitigation

Meredith Van Horn

Much of Colorado is vulnerable to wildfires. A serious threat to many Coloradans, wildfires destroy homes and personal property and take lives. Historically, in Colorado a wildfire occurs every six to twenty years. Merrill R. Kaufman, Ayn Shlisky, and Peter Marchand, Good Fire, Bad Fire: How to Think about Forest Land Management and Ecological Process (2005) at 5. Colorado State Forest Service, About Wildfire. The 2012 Aerial Forest Health Survey by the USFS and Colorado State Forest Service (CSFS) revealed that the mountain pine beetle infestation has spread to 3.3 million acres of forests in Colorado. In addition, 741,000 acres of forest have been infected with the spruce pine beetle. In 2012, Colorado’s statewide snowpack was at 52 percent of average, which is the lowest snowpack level in a decade. Natural Resources Conservation Service, NRCS Colorado Snow Survey and Water Supply News Release, Apr. 4, 2012. An assessment by the CSFS in 2007 showed that between 2000 and 2030 the wildland urban interface (WUI) areas will increase by 300 percent in Colorado to 2,161,400 acres. Colorado State Forest Service, Colorado’s Wildland-Urban Interface, Current and Projected.

In 2012, Colorado had one of the most destructive wildfire seasons in its history. The Waldo Canyon Fire outside of Colorado Springs burned 346 homes. Michael Kodas, Living on the Edge of Wildfire,OnEarth Magazine, August 7, 2012. In the Lower North Fork Fire outside of Denver, twenty-three homes were destroyed. Id. The High Park Fire destroyed 259 homes. Kirk Siegler, Two Months on Colorado Wildfire Recovery Slow, KUNC, August 10, 2012. As of the date of writing, insurance companies are estimating they will expend $450 million in insurance claims for the Waldo Canyon and High Park Fires. Ryan Parker, Colorado Wildfire: Insurance Claims Reach nearly $500 Million, The Denver Post, July, 17, 2012. In 2010, the Fourmile Canyon Fire caused $217 million in insurance claims and a total taxable property loss of $125 million. U. S. Department of Agriculture, Rocky Mountain Research Station, Fourmile Canyon Fire Preliminary Findings, October 12, 2011.

Colorado’s natural beauty draws people to live in the forested areas outside of cities and towns known as the WUI. The WUI is where homes are built on mostly undeveloped land, such as the areas that burned during the spring and summer of 2012 and where the wildfire hazard is highest. Prevention is key to avoiding the devastating consequences of wildfire in this area, and municipalities in Colorado use a variety of hazard mitigation tools in order to protect people and property.

Municipal Ordinances

Across the state, Colorado municipalities have implemented various regulations for addressing wildfire hazards in the WUI. Overlay zones, mitigation plans, and development and building standards are a few examples.

In some Colorado counties certain development applications are reviewed for wildfire risk. Boulder County’s Land Use Code § 7-1100 C requires that all development applications be reviewed by wildfire protection experts as a part of the development application review process. In Eagle County, preliminary plans for planned unit developments, special use permits, and subdivisions are referred for comment to the CSFS. Eagle County Code § 2-110. Any recommendations by the CSFS are included as conditions to approval of the applications.

Wildfire hazard mitigation is one way some Colorado municipalities seek to reduce the risk of wildfire. Developers seeking to develop in wildfire hazard areas in Boulder County must mitigate wildfire hazards by removing combustible materials such as fallen trees and brush from home sites and from along roadways. Boulder County Land Use Code § 4-806 A.5. All applicants for new construction in fire hazard areas in Boulder County may be required to submit Wildfire Mitigation Plans as a part of the application. Boulder County Land Use Code §4-804 C.12. These plans must address: the location of buildings on the site, the use of ignition resistant building materials, the reduction of fuels and creation defensible space around homes, and provisions for emergency vehicle access and water supply.

Most wildfire hazard mitigation regulations in Colorado municipalities require the use of defensible space around buildings in wildfire hazard areas. The creation of defensible space requires clearing or reducing fuels and vegetation near buildings. This slows the spread of a wildfire from the surrounding area to the building. The Town of Breckenridge requires all new construction and major remodels to create defensible space around buildings and encourages voluntary creation of defensible space around existing construction. Town of Breckenridge Code, § 9-1-19-22A Policy 22 Absolute Landscaping.

Wildfire overlay zones are utilized for areas of high wildfire risk by Douglas County and Jefferson County. Douglas County Code § 17, Jefferson County Code § 57. For development occurring in the overlay zone, applications are approved only if the developer demonstrates compliance with certain wildfire mitigation standards such as defensible space, fuel reduction, emergency vehicle access, water supply, buildings located on sites to minimize wildfire spread to the home, and fire-resistant materials used for construction.

Larimer County requires new construction and major additions in the wildfire hazard area to meet minimum design standards. Larimer County Code § R325. Buildings must use fire-resistive construction such as a one-hour fire-resistive shell for all exterior walls, including decks and all openings and exterior siding with a flame spread classification of Class II or better. Id. The Town of Vail requires the use of Class A roof assemblies and does not allow wood, shake, wood shingles, or rolled roofing. Vail Town Code § 14-10-5.

In Ouray County, the Board of County Commissioners established a fire safety rating for planned unit developments and for new residential construction and major additions. Ouray County Code § 24. The fire safety rating is a minimum number of points that an application must meet in order to be approved. Applications may meet more than the minimum number of points. Fire safety ratings include an assessment of the location of structures, vegetation management, minimum water supply, and adequate access for emergency vehicles.

Summit County awards grants to eligible homeowner groups under its Hazardous Fuels Reduction Grant Program. Summit County, Wildfire Grants. The grant is a 50/50 split with the recipient, where the County provides funds for half of the fuels reduction work performed. In 2011, the County awarded $247,000 in grants, which helped to treat more than 800 acres in the County.

Colorado State Laws

In 2009, the Colorado General Assembly passed the Colorado Healthy Forests and Vibrant Communities Act, Colo. Rev. Statutes §23-31-313 (HFVC Act). This act provides funding and technical support for communities to the draft Community Wildfire Protection Plans (CWPPs). The HFVC Act established the Healthy Forests Vibrant Communities Fund, which provides funding for the various loan and grant programs.

Communities as small as homeowners associations and as large as counties may prepare CWPPs, which analyze wildfire risk in the community and provide a basis for later mitigation efforts. A CWPP is a collaborative effort among a variety of stakeholders which may include CSFS, local government, utilities in the affected areas, citizens, relevant federal agency representatives, and law enforcement. Under the HFVC Act, communities in Colorado may receive state funds to help them defer some of the cost of preparing the plans. The CSFS provides technical assistance and ensures that the CWPPs meet not only state standards, but federal standards, discussed below, as well.

The HFVC Act also provides that the CSFS should provide “sixty percent cost-share grants” to interested landowners and utility easement holders in the WUI to assist in fuels mitigation. CSFS is also authorized to conduct annual surveys to perform forest assessments, including monitoring of forest disease and insect epidemics. This information must be incorporated into the general analysis of forest conditions and trends.

Under the HFVC Act, CFSF must work to support communities and land managers that are working on “long-term ecological restoration” with grant programs, monitoring of implementation of forest restoration pilot programs, and facilitating the development and implementation of these programs.

An interesting part of the HFVC Act was creation of programs to utilize trees killed by pine bark beetles and other timber removed as a part of fuels reduction treatments. This included a revolving loan fund aimed to “support woody biomass utilization and the development and marketing of traditional and nontraditional timber products,” and a loan program to provide start-up funds for business that removed, used, and market the timber removed.

Partially in response to the horrific 2012 wildfire season, the Colorado General Assembly reorganized fire prevention and control operations, by transferring the operations regarding fire prevention and suppression to the Department of Public Safety and its Division of Fire Prevention and Control (DFPC). House Bill 12-1283, codified in Colo. Rev. Statutes §§ 24-33.5-1217 to 1226. House Bill 12-1283 laid out the responsibility of the DFPC to coordinate and work with federal agencies, state agencies, and counties in “preventing forest fires on state and private lands in the national forests in the state,” and to work with the USFS and BLM on management plans for the federal lands in Colorado. Boards of County Commissioners are also encouraged to “cooperate and coordinate” with federal and state agencies and local municipal agencies in the prevention of wildfires. The DFPC also must determine the areas of forest lands within Colorado over which the state has responsibility.

House Bill 12-1283 created five funds for use in the prevention and response to wildfires: the Emergency Fire Fund, the Wildland Fire Equipment Repair Fund, the Wildland Fire Cost Recovery Fund, the Wildfire Emergency Response Fund, and the Wildfire Preparedness Fund. These funds will be used to fund emergency responses to wildfires, repair and maintain wildfire fighting equipment, reimburse local municipalities for their costs to respond to wildfires, and provide funding for actions taken to prepare for wildfires. The DFPC will be developing regulations and directives for the implementation and disbursement of the money in the funds. One important provision in House Bill 12-1283 allows the governor to issue a proclamation in times of extreme fire danger to “close such land as he or she may find to be in such condition of extreme hazard to the general public and prohibit or limit burning thereon to such a degree and in such ways as he or she deems necessary to reduce the danger of forest fire.”

Colorado has enacted a wildfire mitigation tax credit, which provides that landowners, on calculating their state income tax, may subtract 50 percent of the costs incurred in performing wildfire mitigation measures from their federal taxable income. Colo. Rev. Statutes § 39-22-104(4)(n). Wildfire mitigation measures include creating and maintaining defensible space and reducing fuels around homes. All the mitigation work must be completed in the years 2009–2013, and the maximum credit is $2,500.

Colorado law provides that all “sales, storage, and use of wood from salvaged trees killed or infested in Colorado by mountain pine beetles or spruce beetles, including but not limited to products such as lumber, furniture built from the salvaged trees, and wood chips or wood pellets generated from the salvaged trees” are exempt from all sales and use taxes imposed by the state. Colo. Rev. Statutes § 39-26-723. Incorporated towns, cities, and counties may prohibit the imposition of the municipal sales and use taxes on those wood products. Colo. Rev. Statutes § 29-2-105 and § 29-2-109.

Federal Laws

The Healthy Forest Restoration Act (HFRA), 16 U.S.C. §§ 6501–6591, was passed in response to the 2002 wildfire season, in which there were catastrophic wildfires in many western states, including Colorado. The goal of HFRA was to streamline and accelerate the process of removing hazardous fuels in National Forests. Of particular importance to communities were its provisions for reducing the risk of wildfire. CWPP, Forests and Rangelands. HFRA provided a framework for the USFS and BLM to work with communities to develop CWPPs in high risk areas. CWPPs provide an opportunity for local communities near federal lands to provide input or recommendations to USFS and BLM on where they perform hazards fuel reduction projects. Similarly, the Tribal Forest Protection Act of 2004 authorizes USFS and BLM to enter into agreements with Indian tribes to carry out activities on federal lands that meet federal land management goals and that reduce the risk of fire on adjacent Indian lands. 25 U.S.C. § 3115a.

The Federal Land Assistance, Management, and Enhancement Act of 2009, Pub. L. No. 111-88, (FLAME Act) was enacted as part of the 2010 appropriations bill for the Department of the Interior and other agencies. The FLAME Act was passed to establish two funds meant to provide for wildfire suppression costs and end the need for agencies to transfer funds from other programs to pay for wildfire suppression as had been done in the past. Council of Western State Foresters, Briefing Paper on the Federal Land Assistance, Management and Enhancement (FLAME) Act, Nov. 3. 2009. A key provision of the FLAME Act requires that the U.S. Department of Agriculture (USDA) and Department of the Interior (DOI) submit a report that details a “cohesive wildfire management strategy.” FLAME Act, Sec. 503. This report must be revised at least once every five years and address seven topics: “(1) the identification of the most cost-effective means for allocating fire management budget resources; (2) the reinvestment in non-fire programs by the Secretary of the Interior and the Secretary of Agriculture; (3) employing the appropriate management response to wildfires; (4) assessing the level of risk to communities; (5) the allocation of hazardous fuels reduction funds based on the priority of hazardous fuels reduction projects; (6) assessing the impacts of climate change on the frequency and severity of wildfire; and (7) studying the effects of invasive species on wildfire risk.” Id.

DOI and USDA have also been tasked under the FLAME ACT to submit a report on a cohesive wildfire management strategy. The process is called the National Cohesive Wildland Fire Management Strategy (Cohesive Strategy) and is defined as “a collaborative effort to identify, define, and address wildland fire management problems and opportunities for successful wildland fire management in the three regions of the United States: the Northeast, the Southeast, and the West.” United States Department of Agriculture and Department of the Interior, National Cohesive Wildland Fire Management Strategy Phase II – National Report (May 2012), at 1. The agencies have divided the development of the Cohesive Strategy into three phases: Phase I provided an overview of the challenges, issues, and identifying overarching goals; Phase II developed regional risk analyses and alternatives; and Phase III will translate the qualitative information gathering during the first two phases into actual models that may be used for planning and preparation “on the ground” in areas affected by wildfires. Id. at 11–12. A key component of the Cohesive Strategy is its inclusion of federal, tribal, state, and private lands in its planning and analysis. Id. at 13.

As of 2012, three reports have been released in the development of the Cohesive Strategy. Each of these reports details the importance of “collaboration” and planning with a variety of stakeholders: not only USDA and DOI and the respective federal agencies managing federal lands, Indian tribal governments, municipal governments, state government, nongovernmental organizations, fire planners and responders, businesses, residents in the WUI and other landowners. United States Department of Agriculture and Department of the Interior, National Cohesive Wildland Fire Management Strategy: Western Regional Assessment and Strategy, Sept. 30, 2011, at 3. Out of the reports produced thus far, three main elements have been discerned as being of primary importance: resilient landscapes, fire-adapted communities, and response to wildfire. United States Department of Agriculture and Department of the Interior, The Federal Land Assistance, Management, and Enhancement Act of 2009 Report to Congress, 2011, at 1. Federal agencies deomonstrate a recognition of the importance of working with communities to create wildfire adapted communities in stating that one of the goals of the cohesive strategy is that “human populations and infrastructure can withstand a wildfire without loss of life and property.” Western Regional Assessment, at 4.

The FLAME Act provided the statutory framework for this type of collaborative process, but USFS and BLM have recognized the need to incorporate and work with private landowners and municipalities in their decision-making for some time.

Best Practices and Recommendations

The reduction of hazards to persons and property from wildfire begins with the community and the private landowners. The common thread is the need to address hazards property-by-property and community-by-community, starting small and working to the larger landscapes. Federal land managers and state land managers recognize this as is demonstrated by the passage of the FLAME Act at the federal level and the passage of House Bill 12-1283 and the use of tax incentives in Colorado.

Three important best practices may be gleaned from this interwoven local, state, and federal legislation: (1) working with communities to analyze their wildfire risk and educate homeowners about that risk; (2) encouraging those communities, whether they are municipalities or counties, to develop CWPPs and to pass ordinances that regulate building in the WUI and require the use of fire-resistant materials, require new homes and subdivisions to create defensible space and reduce fuels surrounding homes, and provide grant funds or other incentives to existing homeowners to create defensible space; and (3) cooperation, consultation, and engagement of all levels from the local to the federal in managing wildfire risk before there is a fire, as well as in fire suppression.

What is most important is education. Any new statute or ordinance will not work unless the homeowners in the WUI and other landowners at high risk understand why the use of fire-resistant materials is needed for their homes or why trees and brush should be cleared for defensible space. The plans and strategies made at the state and national levels will remain plans, untethered and not useful, unless communities on the ground understand and seek to become actively engaged in mitigating the risks.

Wildfire is not going away. With the combined effects of climate change and more people moving into the WUI, the risks of wildfire to people and property will not diminish. Addressing this risk in Colorado and across the West depends on the communities that are on the front lines and the support they receive from the state and federal land managers caring for the lands nearby.

Meredith Van Horn

Ms. Van Horn is an associate at Heil Law & Planning, LLC in Denver, Colorado.