2018 was the second most catastrophic fire year in California’s history. In this year alone, 7,948 wildfires occurred in the state, cumulating in a total of 1.98 million acres burned, 100 deaths, and 24,226 structures damaged. Both the warming and drying effects of climate change and the buildup of fuel due to past logging and fire suppression practices have increased the likelihood of large-scale wildfires in California in recent years.
The California Legislature responded by passing SB 901. SB 901 allocates $1 billion from the state’s Greenhouse Gas Reduction Fund to the Department of Forestry and Fire Protection (CAL Fire): $165 million annually to fund forest fire programs to improve forest health and prevent fires, and $45 million annually to fund prescribed fires and fuel reduction projects. The act also reduces regulatory barriers to make it easier for certain landowners and state agencies to conduct prescribed burns or thinning projects for the purpose of wildfire prevention.
There is an inevitable tension between forest fire prevention, consisting largely of prescribed burn and thinning projects to reduce available fuel loads, and forest conservation and ecological concerns. Several provisions of SB 901 may have consequences on forest management and environmental conservation efforts in the years to come; these include changes in conservation easement law, exemptions from the requirement to obtain a “timber harvest plan,” and exemptions from the California Environmental Quality Act (CEQA) review process. Together, these changes make it more complicated to obtain conservation easements and reduce the regulatory barriers for timber harvest projects for the purpose of wildfire prevention.
Conservation easements are an important method of preserving the natural environment on private lands and have served as a key legal tool to “to protect open space [and] preserve wildlife” in California. SB 901 adds section 815.11 to the CA Civil Code, adding requirements to the purchase of a conservation easement with state funds when the land subject to the easement includes “forest lands.” In such circumstances, section 815.11 requires the landowner to undertake various forest management measures as part of the easement management plan.
These requirements are intended to reduce fire danger through forest health–enhancing measures, though they also make it more difficult for public entities and 501(c)(3) nonprofit organizations to purchase conservation easements. Conservation easements are flexible tools for forest conservation, and not all conservation easements have the single purpose of protecting trees. They are commonly used to otherwise restrict a landowner’s use of their land, such as through preserving open space or reducing development rights. Section 815.11’s additional requirements on land subject to a conservation easement, along with the uncertainty of which lands constitute “forest lands,” may make it more difficult for nonprofit organizations and public entities to purchase or donate conservation easements that can meet these requirements. Particularly in urban-adjacent areas, conservation easements often serve important conservation ends, but it may be infeasible for the lands subject to these easements to adhere to the requirements of section 815.11. It is unclear how these requirements will affect the prevalence of conservation efforts through conservation easements, but it is something for nonprofit organizations and public entities to consider as they attempt to restrict the uses of private land for environmentally beneficial purposes.
SB 901 intends to increase the efficacy of forest thinning and harvesting practices to improve fire resiliency by exempting “a person engaged in forest management” from the statutory requirement to have a timber harvest plan prepared by a registered professional forester. Timber harvest plans are environmental review documents that landowners submit to CAL Fire that provide details regarding the trees that will be harvested, the methods used to harvest, and the “steps that will be taken to prevent damage to the environment.” Timber harvest plans also include inspection requirements and requirements to protect unique areas.
SB 901 amends the CA Civil Code to create important exemptions from the requirement to obtain a timber harvest plan. First, the Small Timberland Owner Exemption exempts private landowners of timberlands less than 100 acres from the requirement to obtain a timber harvest plan when they remove trees from their property for the purpose of reducing flammable materials, if certain conditions are met. Second, the Forest Fire Prevention Exemption exempts harvesting of trees “for the purpose of reducing the rate of fire spread, duration and intensity, fuel ignitability, or ignition of tree crowns” from timber harvest plan requirements, if certain conditions are met. These exemptions also permit the construction of up to 600 feet of temporary roads to treat and thin forests.
These exemptions will expedite the regulatory process for certain timber harvesting projects, making it easier for private landowners and forest planners to build fire resiliency by reducing fuel loads. They will also decrease the transparency and regulatory checkmarks necessary to engage in timber harvesting. According to California’s 2021 “Wildfire and Forest Resilience Action Plan,” the State is planning on “significantly expand[ing] the use of prescribed fires across the State,” and is scaling up its “forest thinning efforts.” In the wake of increased prescribed burning and thinning projects and the timber harvest plan exemptions described above, it may be prudent for forest planners and conservationists to pay attention to the effects of these projects on the health of the corresponding forests.
SB 901 exempts from the CEQA review process certain prescribed burning, tree thinning, and fuel reduction projects undertaken to reduce the risk of high-severity wildfire that have been reviewed under the federal National Environmental Policy Act (NEPA). CEQA is California’s analogue to NEPA, and while the requirements of the two statutes are similar, they are not identical. For example, under CEQA (unlike NEPA), the action agency must “explicitly identify each impact the agency has determined to be significant,” resulting in a more detailed disclosure of environmental impacts than is required by NEPA. Another difference between the two statutes relates to mitigation measures: whereas CEQA requires that feasible mitigation measures that can reduce a significant impact actually be adopted, NEPA only requires the action agency to justify why it is not adopting feasible mitigation measures. If certain timber harvest projects are not subject to CEQA requirements, action agencies may conduct a lesser degree of environmental analysis and adopt fewer mitigation measures than prior to SB 901.
SB 901 was a necessary government response to better align timber management practices with one of the biggest threats facing California’s forests: high-severity wildfires. Going forward, however, it would be prudent for forest planners and nonprofit organizations involved in forest and environmental conservation to take note of the exemptions and regulatory streamlining created by SB 901. Those concerned with the ecological effects of timber thinning and prescribed burning projects, as well as associated road construction, on the environment may need to take additional steps to assure that the environmental impacts of these projects are disclosed to the public and mitigated when possible. Public agencies and nonprofit organizations who utilize conservation easements as a conservation tool will want to clarify the additional requirements imposed by SB 901 on conservation easements in “forest lands,” particularly to ensure that conservation easements whose primary purpose is not forest conservation but another environmentally beneficial purpose can still comply with these additional management requirements. The provisions of SB 901 discussed here hint at the future effects of SB 901 on forest conservation and should be closely monitored by interested parties.
