Section IV first reviews several theories that offer guidance for framing wildfire planning, then introduces the concept of the cyclical, fourstep WUI Wildfire Planning Process. This process is the primary organizing construct of the approach offered here. Included in this section is a discussion of procedural principles that should define wildfire planning processes and a graphic that visualizes the four-step approach. This Section discusses the Cohesive Strategy Goals, which emerged out of a five-year planning process between federal, state and local governments to set national priorities for how the country will live with, and prosper, in fire-prone communities. Because the Cohesive Strategy represents the consensus approach to wildfire, it is the axis around which the proposed WUI Wildfire Planning Process cycle revolves. This Section then evaluates each of the four planning processes.
The first of the four steps is the drafting of a Community Wildfire Protection Plan (“CWPP”), an advisory document that permits interjurisdictional planning at multiple scales relevant to wildfire. This article advocates a broadening of the typical participants in CWPP drafting that would extend beyond the typical fire community to include local officials, local staff in the development-related departments, and a citizens advisory board. The hallmark of a CWPP is identifying risk in the WUI and deciding on mitigation measures to address that risk. Too often, those mitigation measures have simply been about tools needed to fight fire. Here, the suggestion is to utilize planning and other development-based tools to plan for mitigation, as well.
The second of the four steps is for a local community to draft and adopt wildfire regulations, programs and incentives that plan for wildfire at the community, neighborhood-subdivision, project-site, and building scales. This section also provides a selection of practical advice from communities that have adopted significant wildfire planning tools, such as seeking co-benefits of wildfire projects that matter to the local community, like open space or wildlife habitat; utilizing the pique of interest in wildfire after an event; choosing a mix of regulation and incentives commensurate with the local community’s values; and anticipating and planning for after-effects of wildfires, most notably flood and landslides, that take many communities by surprise.
The third of the four steps addresses perhaps the hardest part of wildfire planning: implementation, maintenance and enforcement. One of the tough aspects about wildfire planning is its need for continuous maintenance and readiness, both in terms of vegetation and also the fuels associated with residences and infrastructure in the WUI. The development process is more attuned to enforcing one-time conditions of approval that occur at the time of entitlement. As a result, this section reviews some of common approaches taken — such as Homeowners Association Covenants, Conditions & Restrictions (“HOA CC&R”) provisions — while also looking at other approaches, such as making local governments third-party beneficiaries with a right of enforcement of HOA CC&Rs; making wildfire-prone vegetation a de facto nuisance under local ordinances; using risk information disclosure at the time of building permit issuance; among others.
The fourth of the four steps discusses the kinds of substantial change events that trigger the process to begin again. Most notably, a wildfire itself is a common event that encourages a community to think seriously about planning for future burns. In addition, the passage of time can prove an important reason to re-visit a WUI wildfire plan. This is especially true for fast-growth communities where the WUI itself may change as a rural area urbanizes, or as an environment changes either because of climate change effects or the city’s resource uses. In addition, for those local governments that choose to integrate their CWPPs into county All Hazard Mitigation Plans (“AHMPs”), as is increasingly common in Western states, the CWPPs will need to be updated every five years to maintain compliance with Federal Emergency Management Agency (“FEMA”) standards for AHMPs.
Finally, Section V discusses the on-going educational requirements that are necessary to support the entirety of the wildfire planning process. Often, this educational component falls to the fire community, which has long shouldered the burden of educating the public about wildfire risks. This guide suggests that the educational mandate must be broader, encompassing at least those departments of local governments that address development, which should also include outreach to developers, builders, and the communities that come to live and inhabit WUI communities.
II. The Risk and Cost of Wildfire
In 1995, fire made up 16 percent of the U.S. Forest Service’s annual appropriated budget; in 2015, wildfire consumed more than 50 percent of the agency’s budget, a benchmark reflective of steadily rising costs.4 At the same time, while 91 percent of federal appropriations for wildfire management are allocated to protect federal lands, it is increasingly clear that federal funds are being used to protect private homes and other structures “adjacent to federal lands [that] can significantly alter fire control strategies and raise costs.”5 In a survey of Forest Service land managers, estimates were that “[fifty] to [ninety-five] percent of firefighting costs were attributable to protection of private property.”6 Moreover, a study conducted for the Montana legislature found that firefighting costs are “highly correlated with the number of homes threatened.”7 A recent study of wildfires in Wyoming found that protecting just one isolated home added as much as $225,000 to the overall cost of fighting a fire.8
The rising cost of fighting fires and, in particular, those that threaten private property, has many factors including terrain, fuels, and weather.9 Increasingly, though, attention is being directed to the rapid growth of remote developments — especially those not designed or maintained with wildfire in mind — at the urban periphery often referred to as the “Wildland-Urban Interface,” or WUI. There is good reason why attention is turning to these types of developments. Six of the 10 most expensive fires in the past 100 years were WUI fires, despite the fact that WUI fires account for just a small fraction of overall fires fought in any given year.10
According to one widely used WUI definition, only 14 percent of the WUI is developed.11 If current development patterns continue, development in the WUI will almost certainly grow substantially, resulting in even further increases in wildfire protection costs. With the West perennially ranking as a fast-growth region, WUI development is certain to grow over time. As this growth occurs, certain mismatches in process will be exacerbated. Local governments retain authority to approve WUI development through applications of local zoning, building, fire, and subdivision codes, even though it is typically the federal government that bears the greatest burden in protecting — and has the greatest resources to protect — those developments from wildfire.
In addition, there is growing acknowledgment that the cost of wildfire is not simply the cost of suppression. Rather, many of the most longlasting costs of wildfire arise after the event itself, resulting from lost recreational opportunities, scarred landscapes adjacent to city centers, loss of wildlife habitat, the presence of invasive species, and other hazard events, such as flood and landslides, which commonly occur after wildfires have stripped landscapes of vegetation. Communities considering a response to wildfire must evaluate the costs not only of suppression, but also the long-lasting results of wildfire that stay with the community for years, if not decades, after the fires die down.
III. Defining the Wildland-Urban Interface, and Why It Matters
The “Wildland-Urban Interface” is a term commonly used but seldom precisely understood. There is good reason for that: the meaning of the term varies tremendously. There are at least three important ways to think about the WUI: (1) as a policy definition; (2) as a legal definition; and (3) as a variable concept that changes along with development patterns over time. This variation does not indicate the term is “meaningless”; it does mean, however, that context matters and such context must be closely evaluated throughout the WUI wildfire planning process.
The WUI as a policy definition emerged primarily out of the work of demographers and sociologists that were trying to give form to a development phenomenon happening across the country. People were not just moving from the cities to suburbs, they were moving further out into agricultural lands and, in western states especially, onto the ridgelines of foothills and into areas adjacent to federal lands that previously had little habitation. Different approaches to defining the WUI emerged, which included prioritizing either a designated area on a map or a set of conditions which contributed to wildfire risk.12 In 2001, a federal report adopted a definition of the WUI as “where humans and their development meet or intermix with wildland fuel.”13 In 2006, the Forest Service adopted a similar policy definition that: “The WUI is the area where structures and other human development meet or intermingle with undeveloped wildland. Wildland urban interface is any area containing human developments, such as a rural subdivision, that may be threatened by wildland fires.”14 Since that time, other researchers have sought to quantify that definition, with some researchers offering alternative WUI definitions defined primarily on the basis of residential densities.15
Independent of these policy definitions, there are additional legal definitions of the WUI that are especially important for wildfire planning. Many wildfire-related laws and regulations apply specifically to the WUI, but different laws can have different requirements for how the WUI is defined. For instance, the Healthy Forest Restoration Act of 2003 (“HFRA”) provides a complicated approach to defining the WUI. On the one hand, if a local community drafts a community wildfire protection plan (“CWPP”), that community can define the WUI for purposes of HFRA at a local level and in a manner generous to the community. If the community fails to complete a CWPP, a default definition in the statute will impose a very limited interpretation of the WUI.16 This definition of WUI is very important to wildfire planning under HFRA; indeed, some funding through the law can only go to areas defined as the WUI.
The legal definitions of the WUI can vary by statute or even executive order. For instance, in May, 2016, President Obama signed an executive order that required federal buildings in the WUI to meet certain wildfire standards defined by the order.17 However, the order also stated that, “[w]hen determining whether buildings are located within the wildland-urban interface, agencies shall use the U.S. Department of Agriculture Forest Service’s, ‘The 2010 Wildland-Urban Interface of the Conterminous United States,’ or an equivalent tool.”18 This map varies substantially from the WUI determinations made either in the default rule under HFRA, or as would typically be defined by communities defining their own WUI under HFRA.
The purpose of investigating this difference is to illustrate that legal definitions of the WUI can vary, even among legal tools. In planning for wildfire, it is important to make sure that all relevant legal considerations are addressed in defining the WUI both for compliance with federal and state laws, but also for integrating with planning, building, and fire functions of local governments. For instance, coordinating the CWPP definition of the WUI with a local government’s definition of the WUI in its comprehensive plan and development codes facilitates the alignment of federal, state, and local policies. In particular, it ensures that different departments within larger local governments — such as fire departments, planning departments, and building departments — are working toward a common vision of the areas subject to WUI wildfire risk and thus necessitating additional wildfire preparedness.
Finally, it is important to remember that the concept of the WUI is a fluid one. As development occurs, an area that was once the WUI may become a bona fide suburb or even a town center of its own. Similarly, as properties undertake mitigation efforts such as hazardous fuel treatments or building construction changes, WUI risk levels can change. For this reason alone, WUI wildfire planning requires an ongoing process that responds to the pace and scale of development along the urban fringe.
IV. The WUI Wildfire Planning Process
A. Theorizing the Governance of Wildfire
The goal of this article is to help local communities envision a process for building wildfire into their planning processes that also tiers from, and interfaces with, federal and state partners. On the one hand, it can appear, at first blush, an exercise in piecing together ordinary solutions — the tools that make-up the approach presented here are already available, in one form or another, somewhere else. On the other hand, local communities have long been overlooked in wildfire responses that have been dominated by federal agencies.19 The result has been that there are few publications intended to given local communities a framework for wildfire response that prioritize the types of tools local communities have at their disposal. This is problematic for systematic wildfire efforts because local governments control land use development patterns in the United States, and thus control where, and how, new development is built. By prioritizing local communities, the intent is to fill a vacuum of practical knowledge, while also helping local communities conceptualize their response by regulating and incentivizing new WUI development in the broader context of federal and state actors that maintain the bulk of fire suppression responsibilities. Not only does this approach address a long-standing need of local communities to have a coherent, iterative response framework for wildfire, it also draws upon several theoretical literatures that have investigated management dilemmas, such as wildfire, that cross jurisdictions and require varying responses from different levels of government and significant information to appreciate the scope of the problem and its potential solutions, which occurs sporadically but often with devastating consequences when it arrives.
There are three distinct, though often overlapping, theoretical literatures that can assist thinking through wildfire governance, and thus are worth a brief investigation here. Those three are: (1) the literature on governing the commons, (2) governing “wicked” problems, and (3) adaptive planning for resilience. A detailed review of these literatures is beyond the scope of this article. However, a brief review is useful in understanding the background of the proposed WUI Wildfire Planning Process.
The first of the theoretical literatures addresses governing the commons, which gained popularity with the 1968 publication of Garrett Hardin’s Tragedy of the Commons.20 Hardin postulated that there were really two solutions — privatization and governmental regulation — to the over-use of environmental resources, which, in Hardin’s parable, resulted from population growth and increased per capita consumption, as well as the failure of human systems to postulate an adequate response to such challenges.21 While Hardin significantly influenced the environmental movement, empirical research in commons management found that his polarized response did not accurately reflect the nuances of “struggling to govern the commons,”22 which in fact presented a number of other options than what Hardin imagined. Work by Nobel Prizewinning economist Elinor Ostrom, among others, helped to refine these more nuanced principles. In a summary article published in Science, Ostrom and her colleagues highlighted high-level characteristics of effective commons governance. The authors noted:
“Effective commons governance is easier to achieve when (i) the resources and use of the resources by humans can be monitored, and the information can be verified and understood at relatively low cost (e.g., trees are easier to monitor than fish, and lakes are easier to monitor than rivers) …; (ii) rates of change in resources, resource-user populations, technology, and economic and social conditions are moderate …; (iii) communities maintain frequent face-to-face communication and dense social networks — sometimes called social capital — that increase the potential for trust, allow people to express and see emotional reactions to distrust, and lower the cost of monitoring behavior and inducing rule compliance …; (iv) outsiders can be excluded at relatively low cost from using the resource (new entrants add to the harvesting pressure and typically lack understanding of the rules); and (v) users support effective monitoring and rule enforcement …”23
Further, commons research indicates that there are several requirements of adaptive governance in complex systems. The first requirement is ready availability of useful and trusted information.24 Governance of commons requires accurate information relative to the resource governed, as well as the “human-environment interactions affecting those systems.”25 That includes information at the appropriate scale and received at the right time for governing bodies to use it to make effective decisions.26 The second requirement is a healthy approach to creating a conflict resolution mechanism appropriate to the community utilizing the resource.27 The third requirement is an approach to induce rule compliance, especially ones that ensure that the rules of utilizing the resource are generally followed “with reasonable standards for tolerating modest violations” and gradually increasing fines thereafter.28 The fourth requirement is to provide the appropriate physical and technological infrastructure for management of the resource, which often serves as a backbone to facilitate and implement governance choices.29 The fifth requirement is a governance institution that anticipates change, understanding that some current knowledge will be incorrect and that the dynamics of the resource may shift.30 Fixed rules typically fail, which means that they almost certainly require constant engagement and reevaluation to ensure ongoing responsiveness to the status of the resource.31
As for the strategies to meet the requirements of adaptive governance, the commons literature encourages several approaches. The first strategy is a structure that encourages analytical deliberation among “scientists, resource users, and interested publics, and informed by analysis of key information about environmental and humanenvironment systems.”32 If done correctly, the result improves “information and the trust in it that is essential for information to be used effectively, builds social capital, and can allow for change and deal with inevitable conflicts well enough to produce consensus on governance rules.”33 The second strategy is an institutional arrangement that allows for complex, redundant, and “nested” institutions.34 Commons research indicates that one- level, centralized government decision-making has largely failed, and catastrophic failures are often the result when centralized governments exert sole control.35 The third strategy is to purposefully employ institutional variety, with “mixtures of institutional types (e.g., hierarchies, markets, and community self-governance) that employ a variety of decision rules to change incentives, increase information, monitor use, and induce compliance.” Such a variety of rules makes it harder to evade compliance and also accounts for the variety of users that may utilize the resource.36
The second relevant theoretical literature evolves out of an influential article by Horst W. J. Rittel and Melvin M. Webber, Dilemmas in a General Theory of Planning, which defined the “wicked problem” theory.37 The article was premised on the notion that the professionalization of social sciences, such as the evolution of urban planning, had, by the Seventies, found ways to address most of the easy problems that, they argued, were categorized by being “definable, understandable, and consensual.”38 On the other hand, the professional planner had another type of problem, the wicked problem, which was much more intractable.
In seeking to define the wicked problem, Rittel and Weber presented ten definitional aspects. First, “[t]here is no definitive formulation of a wicked problem,” which is important because it means that both the problem, and the knowledge needed to solve it, remain an unknown and variable quality.39 Second, “[w]icked problems have no stopping rule,” meaning that there was no way to know when the job was done or the problem solved.40 Third, “[s]olutions to wicked problems are not true-or-false, but good-or-bad,” meaning that there is no determinable way to know if the “right” result was reached, but only whether some solutions were “better” or “good enough.”41 Fourth, “[t]here is no immediate and so ultimate test of a solution to a wicked problem,” meaning that there are only consequences that play out as a result of a policy choice that do not give a definitive answer as to effect.42 Fifth, “[e]very solution to a wicked problem is a ‘one-shot operation’; because there is no opportunity to learn by trial-and-error, every attempt counts significantly,” meaning that the attempt to solve a wicked problem itself leaves “traces,” which cannot be undone — such as a highway through a neighborhood — and thus means solutions are high stakes affairs.43 Sixth, “[w]icked problems do not have an ennumerable (or as exhaustively describable) set of potential solutions, nor is there a well-described set of permissible operations that may be incorporated into the plan,” meaning that with every such policy choice, the door remains wide open to really any possible outcome that the participants making such decisions are willing to entertain.44 Seventh, “[e]very wicked problem is essentially unique,” which means that even though such problems often have a number of similarities with other decisions, there is some one or two important points that seemingly make the whole process turn on those differentiating factors.45 Eighth, “[e]very wicked problem can be considered to be a symptom of another problem,” which means that every official can envision a way that there is a lower official, or another department, that really owns the problem.46 Ninth, “[t]he existence of a discrepancy representing a wicked problem can be explained in numerous ways” while “[t]he choice of explanation determines the nature of the problem’s resolution.”47 This means that since wicked problems cannot be tested to scientific accuracy, the result and the nature of the argument tends to follow the policy choices of those making the decisions.48 Tenth, “[t]he planner has the right to be wrong,” meaning that the planning enterprise is not based upon a search for truth, but rather in improving lives and the community in which people live.49 Collectively, this theoretical frame offers a way to think through the difficulties of a wildfire response.
Finally, wildfire has much to learn from the worlds of sustainability and resilience theories. For some years, there has been debate as to whether sustainability or resilience is the more proper aim of governance systems given the already occurring effects of climate change.50 Sustainability has famously been defined as “meet[ing] the needs of the present without compromising the ability of future generations to meet their own needs,”51 while resilience has been defined as “the extent to which a system can withstand disruption before shifting into another state,”52 and is often viewed as one of several key factors in the behavior of complex adaptive systems.53 This overview sets aside that theoretical debate between sustainability and resilience in order to focus on what fire-adapted communities — viewed either through the lens of sustainability or resilience theories — might mean for how wildfire is governed.
A recent article by Jesse B. Abrams and colleagues sought to tease out some of the ways resilience scholarship could assist wildfire governance. They argued that three aspects of resilience scholarship are particular relevant to building fire-adapted communities: notably, conditions are favorable for adaptation:
“(1) when scales are appropriately matched, meaning there is an alignment between decisions taken, direct experience with the outcome or consequences of those decisions, and responsibility for adaptive responses; (2) when there is communication and relationship building both across scales and across institutions and actors within scalar levels; and (3) when institutions and organizations are structured in such a way as to be receptive to new information and flexible enough to adapt in response.”54
First, scale matching issues arise when management decisions are made at one scale by one entity and those decisions are felt at or borne at other scales. This often occurs when federal agencies make decisions that inordinately affect local communities, causing many resilience scholars to ascribe to “the subsidiarity principle, which states that governance authority should be ‘vested in the lowest level of social organization capable of solving pertinent problems.’”55
Second, linking within and across scales encourages information sharing; permits for nested institutions; is complicated by determining the roles and authorities between levels and partners; but can also be valuable in building social capital and creating linkages for information sharing.56
Third, institutional flexibility is important, especially in creating “inclusive, scale appropriate, adaptable institutions that incorporate local knowledge,” which is an “essential strategy for fostering resilient social-ecological relationships through cycles of experimentation-as management and observation of environmental variability.”57
While not every component of these theories are addressed in the proposed WUI Wildfire Planning Process, these theoretical impulses guide the process proposed, which is then discussed in greater detail with regard to implementation.
B. The Principles of the WUI Wildfire Planning Process
The WUI Wildfire Planning Process presented here is built on two foundations: an attempt to implement the theories just reviewed in the prior section, and an effort to utilize already proven techniques for wildfire planning. What the Process adds is a contextual procedure for implementing effective, simple approaches to wildfire planning that also allows communities to choose specific tools that fit with local values. Larger communities, as well as those with higher property values, may be likely to favor regulatory or private contractual approaches, while rural communities and those with lower property values may be likely to favor incentives or weed abatement ordinances. No matter the tools used, the procedure that is offered here will help all communities conceptualize an on-going, cyclical engagement with wildfire that can keep the community prepared.
This proposed cycle of wildfire planning seeks to address existing procedural challenges by encouraging a process that embodies the following procedural principles:
- Engage public and encourage public ownership of the WUI wildfire planning process. Even in areas of high wildfire threat, public meetings related to CWPPs or other fire planning often see low attendance. This should not be so. New approaches to engaging the public and encouraging the public to own and drive wildfire preparation and planning is vital to the on-going success of any fire effort.58
- Encourage different levels of government to speak with each other and, especially, in a way that mobilizes the public. Wildfire planning for the WUI has a history of strong collaboration between the fire communities in the federal, state and local governments. This process seeks to build on that collaboration by taking it further and encouraging collaboration beyond the fire community to include disaster preparedness at all levels of government, as well as planning and building departments, local officials and the public.
- Break “silos” at the federal and state level. At the federal and state levels, this inclusiveness requires participation not just of traditional wildfire participants like the U.S. Forest Service and the U.S. Bureau of Land Management, but also disaster preparedness staff from the U.S. Federal Emergency Management Agency, which oversees All Hazard Mitigation Plans. Any state agencies that oversee disaster preparedness should also have representation. Formalized cooperation is also helpful. For instance, in Idaho, a memorandum of understanding, already in place, between Idaho Department of Lands and the state Office of Emergency Management seeks to incorporate CWPPs into county All Hazard Mitigation Plans, a coordination that should yield significant procedural benefits.
- Break “silos” at the local government level. In discussions with Idaho cities and counties conducted by the author,59 cities repeatedly stated that “the county took care of wildfire”; planning and building departments routinely stated that wildfire was the fire department’s job. This article seeks to encourage both counties and cities to participate equally in WUI wildfire preparedness. This article also seeks to encourage equal participation by planning and building department staff, as well as local planning and zoning commissioners and other local officials, which are tasked with approving developments in the WUI.
- Define an on-going and cyclical process. Since wildfire is an ongoing part of many Western landscapes, so too must wildfire planning be an on-going part of life in the West. Wildfire planning is a cycle that learns from mistakes, reevaluates changed circumstances, and puts in place a better strategy for the next time a wildfire threatens a local community.
- Offer a range of alternatives for addressing wildfire. While this article seeks to encourage an on-going, cyclical approach to wildfire planning, it offers a range of strategies, both regulatory and incentive- based, that fit the varied cultures of the West’s big cities and small towns. The process of planning does not dictate the tools used or the implementation.
- Prioritize knowledge-sharing among Western communities. There are a number of excellent resources for communities seeking assistance for their wildfire planning, and increasingly local governments are working together to share insights and experiences in planning efforts.60
In accordance with these principles, the wildfire planning process can be imagined as below:
This illustration of the WUI Wildfire Planning Process, suggests that local planning for wildfires (i) consists primarily of a four-step, cyclical planning sequence that (ii) revolves around the inter-governmental National Cohesive Strategy Vision and Goals61 for wildfire, and (iii) is supported at all times by education and outreach. This should be viewed as a conceptual framework to facilitate learning the relationships between the components of wildfire planning. In practice, effective wildfire planning may not always progress in a steady march through these four steps; rather, implementation of a zoning regulation may yield new insights and require amendment, which could lead to revisiting and amending that ordinance. Alternatively, a comprehensive plan update may lead a community to realize they need to conduct a CWPP, or a wildfire may lead a community to adopt new voluntary measures immediately even if they have not conducted a CWPP. Practice requires adjustment to facts on the ground, and those real world factors will determine how wildfire planning happens in a community. Nonetheless, this conceptual framework is offered in an attempt to give form to the various aspects of a coherent wildfire planning program in a community, especially one that will respond to change over time and adapt accordingly.
C. The Goals of WUI Wildfire Planning: The Cohesive Strategy Goals
The WUI Wildfire Planning Process literally “revolves” around the core principles of the Cohesive Strategy. The Cohesive Strategy resulted from a five-year process (2009 to 2014) in which the federal agencies primarily responsible for fire — the Department of Interior, which includes the Bureau of Land Management, and the Department of Agriculture, which includes the U.S. Forest Service — came together with other federal agencies, state, tribal, and local governments, as well as non-governmental partners, with the idea of building one common vision of how the country would address wildfire.62 The process, mandated by the Federal Land Assistance, Management and Enhancement Act of 2009 (“FLAME Act”), ultimately resulted in the production of The National Strategy: The Final Phase in the Development of the National Cohesive Wildland Fire Management Strategy (the “Cohesive Strategy”).63 The Cohesive Strategy represents the collective approach to wildfire agreed upon by governmental and non- governmental stakeholders. The principles in the Cohesive Strategy are broad, but they are important to understand because they represent the current approach to wildfire planning.
The Cohesive Strategy established three goals:
- Restore and maintain landscapes: Landscapes across all jurisdictions are resilient to fire related disturbances in accordance with management objectives.
- Fire-adapted communities: Human populations and infrastructure can withstand a wildfire without loss of life and property.
- Wildfire response: All jurisdictions participate in making and implementing safe, effective, efficient risk-based wildfire management decisions.64
Most of the planning processes espoused seek to produce fire-adapted communities, but those communities must ultimately also be aware of the broader wildfire picture that affects timberlands, rangelands, as well as other important sectors such as wilderness and agricultural areas. Fire-adapted communities are of special importance at the WUI because it is there that urban populations — lives and high-value property — come face-to-face with the realities of wildfire in the West.
A thorough knowledge of the Cohesive Strategy is not necessary for WUI wildfire planning; indeed, many aspects of the Cohesive Strategy relate to wildfire that occurs in places such as rangelands and timberlands that would not affect the WUI. At the same time, a working understanding of how WUI wildfire planning fits into the spectrum of national wildfire policy is important. It helps to situate the WUI wildfire issues within their broader context, which helps the community to understand the competing interests in federal, state and local wildfire policy.
This article now investigates each of these parts of the WUI Wildfire Planning Process.
D. Step One: Draft and Adopt Community Wildfire Protection Plans (“CWPPs”)
A community wildfire protection plan (“CWPP”) could be viewed as a mere compliance document under HFRA. While it serves that basic purpose, the CWPP process provides numerous additional opportunities that can help overcome structural impediments to planning on an ecological scale, which wildfire demands. Most importantly, the CWPP is a flexible framework that establishes a process of collaboration between different levels of government and local communities that allows those local communities to establish local priorities for wildfire planning that federal and state agencies agree to follow.65 The CWPP is the best place to begin planning for wildfire because the process:
- permits local communities to influence how wildfire is managed on federal and state lands
- identifies and maps wildfire hazards in the local community
- identifies mitigation strategies that reflect the interests and values of the local community; but also have the approval of federal and state agencies managing land near the community
- creates and maintains a broad-based coalition to maintain firepreparedness locally
- enables the community to receive federal HFRA funds
- enables CWPPs’ integration into All Hazard Mitigation Plans to access FEMA funds
One of the powers of the CWPP is that it allows local communities at risk from wildfire to coordinate with federal and state agencies in identifying and planning for fire risk in ways that the local community have the opportunity to guide. The HFRA statute makes clear that a broad array of local governments, and even non-governmental communities, can draft CWPPs. For instance, the statute notes that a “community” at risk from wildfire can be defined as including even “a group of homes and other structures with basic infrastructure and services (such as utilities and collectively maintained transportation routes) within or adjacent to Federal land.”66 This illustrates that CWPPs can be conducted even by non-governmental entities, such as a homeowner’s association, or even a non-associated community that has a common wildfire risk.
HFRA also permits plans to be written by multiple, overlapping levels of local government and non-governmental entities. For instance, a county could have a CWPP, the cities within the county could have their own individual CWPPs, and even individual neighborhoods or developments with special wildfire needs, such as a foothills community adjacent to federal lands with a history of fire, could have their own CWPPs. In other words, CWPPs can exist at different scales and have overlapping planning areas; in fact, the broad definition of “community” is intended to permit precisely this kind of planning at different scales. Several other states have pursued such an approach. For instance, in Colorado, counties with high wildfire risk have written CWPPs, but so have cities within those counties as well as specific neighborhoods and subdivisions with particularly high wildfire risk.67
1. DRAFTING A CWPP THAT GUIDES THE WILDFIRE PLANNING PROCESS
The federal guide to CWPPs is Preparing a Community Wildfire Protection Plan: A Handbook for Wildland — Urban Interface Communities.68 That guide, however, provides only a basic overview of how to meet the technical requirements of CWPPs. Because this article proposes that CWPPs should be the controlling document in a cyclical wildfire planning process, this article offers additional guidance on how to make the CWPP the kind of document that can create a working framework for local government wildfire planning.
2. FOUR PROCESS GOALS: READABLE, RELEVANT, INTEGRATED, AND UPDATED
The process should create a CWPP that is readable, relevant, integrated and updated:
- Readable. The wildfire world is complex and full of jargon. While some of this is necessary to convey important ideas and relate to technical documents, the CWPP should aim to be a document that is readable by the non-fire community as well as the general public. Where technical terms must be used, they should be defined in a glossary to permit engagement with the document by the fire and non-fire communities. This is especially important in core parts of the CWPP that identify risk and offer proposed mitigations. If the non-fire community is to play a role in addressing wildfire before it happens, the non-fire community must be able to understand what those risks and mitigations are.
- Relevant. A CWPP is relevant when it proposes mitigations that the local community can actually support and achieve. For instance, a key component of CWPPs is creating a list of mitigation measures that the community prioritizes. However, if all of the mitigation measures in a CWPP are unfunded or contingent on obtaining a federal or other funding source to achieve, then the CWPP has not adequately identified ongoing measures that the community can do — such as inter- and intra-governmental coordination — that could assist wildfire preparedness. Further, the mitigation measures proposed should also be tailored to the proclivities of how that local community responds to regulations, incentives and voluntary programs.
- Integrated. Many have viewed CWPPs as stand-alone documents solely for purposes associated with HFRA. However, creating the CWPP process intended much more. Indeed, a key goal of the CWPP process was to build a coalition around wildfire protection that was responsive to those risks faced by the local community and the types of responses that the local community preferred. Two types of integration are especially important with CWPPs.
First, CWPPs should be integrated with each county’s All Hazard Mitigation Plan. The Disaster Mitigation Act of 2000,69 required that every state create a standard, FEMA-approved state hazard mitigation plan in order to remain eligible for grant funding in the event of a federally-declared disaster. The Disaster Mitigation Act also requires that communities develop a FEMA-approved local hazard mitigation plan in order to remain eligible for certain types of federal grant funding. AHMPs require an analysis of wildfire and planning for such wildfire-related hazards.
Second, communities should seek to integrate the risks and mitigations identified in the CWPPs into the community’s operative comprehensive plan, local codes, and selected incentives and voluntary efforts publicized. The CWPP is the best place to engage in risk and mitigation identification precisely because it is designed to convene managers of federal and state lands, which are often significant in the Western communities where wildfire is prevalent, along with counties, cities, and private property owners. That said, a robust CWPP that identifies fire and mitigation risks must then become integrated into the community’s land use planning, building regulation, and voluntary and incentive-based plans. It is through this integration that the agreed-upon local solution to managing federal, state, and private property in the CWPP becomes realized in the kinds of development the local community prioritizes with its attendant local risks. Because the local fire department cannot implement this kind of land use and building code regulation and incentives, it is especially important that there be representatives from those officials and staff that govern local development.
- Updated. Like any good planning process, CWPPs need to be updated to reflect changed conditions and development patterns. In addition, CWPPs that are integrated into AHMPs must be reviewed yearly and fully re-written every five years, in accordance with the statutory requirements of AHMPs.70 This five-year cycle ultimately will drive the wildfire planning cycle in states engaging in such integration, encouraging a cyclical planning process that encourages review of not just the CWPP but also the codes, incentives and programs a community pursues to address wildfire. CWPPs may also seek to have a requirement — or at least a recommendation — of annual review to determine how local governments have succeeded in adhering to the plan.
3. CWPP PARTICIPATION
One of the most important, and seldom achieved, goals of the wildfire planning process is to integrate federal, state, and local wildfire policies. In many first-generation CWPPs, that integration of federal, state, and local officials did occur within the fire community, but most CWPPs did not involve participation by local officials, whether in counties or cities, county and city staff not within the fire community, or residents. This made CWPPs an “inside baseball” document of the fire community; it also made them largely ineffective at achieving more broadscale collaboration between levels of government.
Guidance from both states71 and the federal government72 has long encouraged broad participation in CWPPs; nonetheless, there has not been broad engagement of the non-fire community in most of the West. In part, this is likely because there has not been a clear reason articulated for non-fire involvement in the CWPP process. This article proposes that there are four groups of individuals necessary to include in any CWPP process. The reason for including these groups is that every member of these groups will, at some point, take the lead in the Wildfire Planning Process Cycle. In order for these other officials to take the lead in their part of the Wildfire Planning Process Cycle, they must understand the origin of these ideas from the beginning and have a feeling of ownership in them:
- The Fire Group. This group represents the typical participants in CWPPs up to this day, including those statutory officers required to participate in CWPPs. This includes representatives of federal agencies, including the Bureau of Land Management and the U.S. Forest Service. In addition, a representative of the U.S. Federal Emergency Management Agency may also be invited if a state is integrating its CWPPs into FEMA-approved county All Hazard Mitigation Plans. At the state level, attendees will include those agencies entrusted with the fire functions. If the CWPPs are integrated in AHMPs, a representative of the state agency charged with overseeing that state’s compliance with AHMPs may be appropriate. At the local level, this includes all of the local fire response teams. That could include county fire departments, city fire departments, rangeland fire protection associations, fire districts, and other paid and volunteer locally-focused fire protection entities.
- The Local Official Group. This group consists of local officials at all levels that have jurisdiction in the area for which the CWPP is prepared. If it is a neighborhood CWPP, it may be just a city council member with a special tie to that neighborhood. If it is a city-wide CWPP, it may be several city council members. If it is a county-wide CWPP, it may be a county commissioner as well as city council members from each city. If it is a CWPP that crosses county lines, it may be county commissioners from each county and city council members from relevant cities. In all cases, appointed officials from relevant jurisdictions should also be invited; in fact, some county commissioners and city council members may wish to have appointed officials, such as those from the planning and zoning commission, attend in their place. It is very important, however, that local officials, both elected and appointed, that are responsible for approving new development and maintaining existing development are involved from the early stages and understand the basics of the CWPP. If they are not involved in this first phase, these local officials will not understand wildfire sufficiently to take the steps necessary to address wildfire through local regulatory documents like the comprehensive plan and codes, as well as through voluntary programs. Moreover, they will not understand how to apply those plans, codes, incentives, and programs to individual projects.
- The Local Staff Group. In addition to local fire departments, representatives from the planning and building departments from all relevant cities and counties in the CWPP area should be involved from the earliest possible time. It should be made clear that they are equal participants in drafting the CWPP because it will fall primarily to these staff departments to implement many of the best wildfire prevention strategies available. If the planning and building departments do not understand the CWPP and do not understand how it supports and informs the regulations and voluntary programs that they implement, it is very unlikely that a community will move beyond just fighting wildfire and toward living with, and protection from, wildfire.
- The Citizen Advisors Group. Very few of the CWPPs in the West have any active engagement from those living within the community. This has to change for CWPPs to become effective planning mechanisms for both governments and communities. To that end, there should be a Citizen Advisors Group that would commit to regular attendance and participation in the wildfire meeting. This group could include locally prominent individuals, such as developers, builders, business people, homeowners threatened by wildfire, religious leaders, homeowner’s association presidents, and beyond. The goal, however, should be to create an ongoing citizen presence in the process that is encouraged not only to attend, but to ask questions and engage the wildfire process from its very beginning.
These four groups — fire, local officials, local staff, and citizens — together create a cross-section of the community that will live with the types of policies that the CWPP puts into place. Each group will help to implement the provisions of the agreed upon wildfire plan as the Wildfire Planning Process Cycle moves through its phases.
4. IDENTIFY AND MAP WILDFIRE RISKS IN MEANINGFUL WAYS
Perhaps the most important step in the CWPP process is identifying and mapping the wildfire risks. This identification and mapping exercise has two functions. The first is that it permits the local community to identify and map the Wildland-Urban Interface for purposes of HFRA. As discussed previously, this is a legal definition of the WUI that influences the availability of funding under HFRA and thus is of great significance.
However, a second important reason to engage a robust mapping exercise in the CWPP process is that it permits the local community to better reflect fire risks in the next phase of regulations, incentives and programs that will apply to existing and new development. This requires a forward-looking process that will be assisted especially by the local officials, local staff, and citizens involved in the process.
Mapping of the wildfire risks can prove a valuable, and influential, mechanism for considering the impacts of wildfire on federal, state, and private lands. As an example of the kinds of wildfire risks that can be mapped, consider the Boulder County, Colorado CWPP, which had maps that included: a map of all previous wildfires in the county; a map of all of the local, sub-county CWPPs located within the county; maps of burn severity for recent fires; maps of landownership patters (federal, state, and private); maps of wildfire area concern, crown fire potential, flame length, wildfire intensity index, conditional burn probability, community values at risk, communities, homes, watersheds, historic areas, ecological areas, roads, major fire paths, and areas of wildfire concern.73 Taking all of these factors into consideration, the county then created specific districts in which they would engage projects.
Of course, this represents a highly advanced mapping project for an urbanized Western county. Not all CWPPs need such extensive mapping. However, some states have web-based mapping portals, such as those already available in Colorado (COWRAP)74 and Texas (TXWRAP),75 that can be used to map individual, local, county, and state risk.
Different states utilize a variety of approaches to determining appropriate planning regions for CWPPs. For example, Idaho now recommends that local communities engage fire risks based upon watersheds rather than political boundaries. Watersheds are mapped in hydrological unit sub-regions.76 Idaho Department of Lands specifically recommends that local communities utilize a map of watersheds at a level of specificity called the “HUC 12” level. Mapping wildfire risk at the HUC 12 level is important because it reflects ecological considerations of fire rather than arbitrary political subdivisions. It permits a more realistic account of the various ecologies of the watersheds — for instance, the relative prevalence of grasslands, timberlands, hydrology, and so on — that can permit a more nuanced approach to the WUI across a county or city. Local communities will often be able to group together HUC 12 watersheds for similar treatment as “grasslands” or “timberlands.” In those cases, the HUC 12 units give a rationale for where various wildfire treatments should begin and end that can then be implemented in districts as illustrated by the Boulder County example. This regional approach to defining the WUI permits for a more fine-grained fire response that also can better be integrated into the types of regulations, incentives and programs that apply to existing and new development. The HUC 12 approach is also useful because Idaho’s state agencies also engage a variety of other research utilizing the HUCs, which permits broader access to other data sets that could be relevant.
In contemplating the kinds of information and data necessary to produce an effective cycle of wildfire planning, it is valuable to consider the types of regulations, incentives, and programs the community might engage in response to wildfire risk. A recent California wildfire planning guide provides excellent guidance for contemplating a wide range of such risks.77
5. CHOOSING REALISTIC AND IMPLEMENT-ABLE MITIGATION MEASURES
The CWPP risk identification and mapping exercise carries special weight: it will inform all of the rest of the regulatory and voluntary responses employed by local governments (Step 2), and it will affect how they choose to implement and maintain those programs (Step 3). For those reasons, the risk identification and mapping should not be taken lightly.
The importance of this risk identification and mapping to the entire cycle of wildfire planning is another reason to involve relevant local officials, staff, and citizens from the earliest point. If there is not acceptance and agreement on the wildfire risk identification and mapping, it will be very hard to gain acceptance for subsequent regulations and voluntary programs local governments or non-governmental communities may seek to implement.
When mitigation measures are proposed, they should adhere to three principles. First, mitigation measures should not be specifically assigned to one agency or department. The problem in so doing is that, typically, it is easiest to simply make the relevant fire personnel the one tasked with compliance. This leads to the “silo” effect in which the fire department is the only agency thinking about fire and there is not meaningful engagement between agencies and inside local governments. Second, collective responsibility between agencies and departments means that there must be a procedural mitigation measure that establishes a process for coordination and engagement of on-going efforts. Third, local communities should only prioritize mitigation measures that they are ready to support, implement, and enforce. For instance, it may look nice on paper to establish a robust regulatory approach to wildfire; however, if the local community will not support such an enforcement approach, or the local government will not commit resources to enforcing the rules, then there is a problem: Not only are the rules meaningless in preventing wildfire, but they also will undercut the power of the local community, whether governmental or non-government, such as a homeowner’s association. As a result, mitigation measures should fit the local community’s values, while also encouraging wildfire protection and making the dangers clear to all.
6. SCALING THE CWPP UP AND DOWN: FROM THE COUNTY TO THE CITY TO THE NEIGHBORHOOD
CWPPs can be nested — a neighborhood CWPP might tier from both a county-wide CWPP and a city-wide CWPP. The reason for doing so is that CWPPs at different scales achieve different objectives. For instance, a CWPP at a county-wide scale, especially in the West where counties can be as big as some eastern states — cannot adequately address all of the nuances within its boundaries. The county-wide CWPP will necessarily be focused on the broad-scale wildfire issues. A neighborhood CWPP, however, could address the fine-grained issues that affect high-risk communities. Countywide CWPPs may also seek to encourage this type of local engagement in the CWPP process by, for instance, drafting model regulatory language that could be adopted by cities, model CC&R provisions that could be adopted by HOAs, and guidance on voluntary programs that could be implemented at the neighborhood level.78 For an example of CWPPs at the city and neighborhood level supported by a county-wide CWPP, consider this map of Boulder County in Colorado in the jurisdictions of sub-county CWPPs are outlined.79 Collectively the Boulder county CWPPs illustrate one of the West’s best examples of how CWPPs at different scales within the same county can be used to achieve a robust wildfire planning effort.80
As another example, Deschutes County, Oregon adopted the Greater Bend CWPP through Project Wildfire, a community organization created by Deschutes County Ordinance 8.24.010, which helped coordinate and develop seven local CWPPs in central Oregon.81 The Greater Bend CWPP’s last update in February, 2016, incorporated planning into the CWPP process. Facilitated through a multi-disciplinary stakeholder committee, including Project Wildfire, the Greater Bend CWPP identifies and assesses eight communities at risk (Core Bend, Greater Bend, North, Northeast, Northwest, Southeast, Southwest, and West).82 Core Bend is within city limits, and Greater Bend has a number of WUI areas within the City limits.
The Greater Bend CWPP identifies priorities and strategies for reducing hazardous wildland fuels while improving forest health, supporting local industry, and improving fire protection capabilities. The CWPP also references community planning throughout the document, including an overview of the Bend Area General Plan and Oregon’s planning process, an update of the Urban Growth Boundary expansion project, and actions related to city planning coordination from the Deschutes County Multi-Jurisdictional Natural Hazards Mitigation Plan.83
E. Step Two: Draft and Adopt Wildfire Regulations, Programs and Incentives at the Community, Neighborhood-Subdivision, Project-Site, and Building Scales
Once a local community has engaged the CWPP process in a robust fashion as described above, the wildfire risks, and mitigations available to reduce those risks, should be identified for federal, state, and private lands in the community. The community then faces four main questions:
- Will the local community permit new development in the WUI where there is an identified wildfire risk? It may be that a community, on a policy level, will decide that wildfire risk is too high to permit development in the WUI. For most communities, that will not be the case, however, and in those cases, additional questions must then be asked.
- If the local community decides to permit development in the WUI where there is wildfire risk, is the community willing to adopt and enforce regulations related to wildfire? Regulations are often the most clear-cut way to ensure that a development is built to withstand wildfire. However, building a consensus for regulation takes work. Moreover, the local community must also be willing to enforce those regulations.
- If the local community decides to permit development in the WUI where there is wildfire risk, what incentives or voluntary programs does the community want to offer or encourage to support, or stand in place of, regulations? Even if a community decides to embrace a regulatory structure to wildfire planning, that community may also seek to compliment those regulations through a collection of incentives and voluntary programs. In some local communities where regulation is not preferred, such communities may choose instead to offer a robust collection of incentives and voluntary programs, and perhaps even templates for private contractual agreements that could be used by private parties, such as homeowner’s associations, that are particularly sensitive to wildfire.
- If there is existing development in the WUI subject to wildfire risk, what regulations, incentives and programs should the local community adopt or offer that would reflect the local community’s values? In many communities, there is already a substantial amount of existing building in the WUI. In those cases, local communities will need to decide what, if any, regulation, incentives or programs should be offered.
This four-part framework does not mandate to any local community what measures to adopt. For that reason, it can be a useful rubric for thinking through the myriad variety of potential approaches to wildfire. As communities engage this, they should keep in mind several key goals of local community regulation, incentives, and programs learned by communities throughout the West.
- Seek co-benefits. Almost all local communities throughout the West that have adopted robust wildfire planning—whether regulatory, incentive or voluntary in nature—have coupled wildfire planning with co- benefits that matter to the local community.84 This could be enhancing and protecting natural features that provide wildlife corridors or open space that matter locally, but it could also mean tying educational efforts to efforts that draw community involvement, such as farmers’ markets or HOA meetings.
- Seize upon interest after wildfires. Research indicates that there is special interest in wildfire-related programs approximately the first six months after a wildfire occurs. Local communities should be ready to seize upon that opportunity if — and when — it occurs. In communities where wildfire recurs often, that can mean being prepared in advance of fire season with the types of programs that the community wants to propose. Once a wildfire occurs and the heightened sense of awareness is present, the local community can then present the prepared options for discussion at the time when the community interest is high.
- Choose an approach the local community will support. The most important aspect of wildfire planning is community support; a wildfire regulatory approach that is not supported by the community will not be enforced. A broad-based discussion with the local community about wildfire risks and what mitigation measures make sense is essential to the viability of even volunteer or incentive programs.
- Anticipate and plan for wildfire’s after-effects, especially flood, landslide, aesthetic harm, and economic development issues. As devastating as a wildfire can be for a community, the after-effects can be even worse and longer-lasting. For instance, many wildfires are followed by substantial floods and landslides. An excellent case study of the after-effects of wildfire is A September to Remember, which illustrates how numerous Colorado communities suffered devastating floods and landslides resulting from a summer of extreme wildfires in 2013.85 Anticipating and planning for the foreseeable after-effects of wildfire is as equally important as planning for wildfire itself. This is true even in non-landscape effects, such as the loss of tourism that can result after wildfires affect regions with tourism-based economies.
1. THE SIMPLE EFFECTIVE SOLUTION
There are numerous things that local communities can do to protect property in the WUI from wildfires. Many of these, however, are necessary in only the most dense and urban WUI areas. For remote and rural places, taking simple steps can be extremely effective in protecting against wildfire. The most basic approach includes: defensible space, a weed abatement ordinance, and fire-resistant roofs.
- Defensible space is typically divided into three treatment zones, typically totaling 100 to 200 feet, depending on slope and geography, which increase in intensity the closer to a home or infrastructure.86 In Zone 1, attention is paid to non-flammable roofing, enclosing soffits and overhangs, removing debris from roofs and gutters, and identifying flammable items such as patio furniture, brooms, flowerboxes, and doormats.87 In Zone 2, the priority is ensuring the landscaping is well-watered and maintained in accordance with established guidelines, such as maintaining islands of vegetation surrounded by rock or brick retaining walls and wellwatered turf.88 In Zone 3, which is typically deemed beyond 100 feet, focuses on retaining native vegetation that is maintained and thinned, especially prioritizing less-fire-prone species.89 The Firewise program has done an excellent job of popularizing this approach, often referred to as the “vegetative zone” approach.90
- Weed ordinances. Where vegetative zone approach is not tenable, some communities have simply adopted a “weed ordinance,” which is used in many rural Western communities. Weed ordinances typically apply to all properties in the jurisdiction (or some defined area) and state not only that properties must be kept free of weeds but that vegetation is also not allowed to become a wildfire hazard. Vegetation that is deemed a wildfire hazard is typically declared a nuisance and the landowner will be given a warning or citation and given a fixed time to reduce their vegetation, usually consistent with the defensible space requirements above. For instance, the City of Fern Village, Idaho has a provision that provides:
Accumulations of noxious weeds and grasses and other growths upon property within the city limits constitute a source of fire hazard and shall be removed, cut and destroyed by the owner or agent of the ground or premises on which the same is located.91
Sometimes development agreements will also provide for vegetation management that reduces wildfire hazards, such as the Sun Valley Company’s development agreement with the City of Ketchum, Idaho.92 This illustrates how these simple solutions can be integrated with more sophisticated entitlement strategies, such as development agreements, that permit negotiation between developers and local governments. For local governments where wildfire is at issue, including wildfire in the terms of a development agreement checklist can be a useful way to address both wildfire implementation and enforcement.
- Fire-Resistant Roof. The NFPA Guide notes that many wildfires are spread by embers landing on flammable roofs that ignite structures.93 Wood shingle roofs are particularly flammable and should be avoided. A good practice is to require Class A or B roofs in the highest risk areas, Class B in moderate risk areas, and Class C in lowest risk areas.94 Some communities ban all wood roofing materials even though Class A wood shake roofs are available. Several Western governments that have drafted substantial code provisions related to roofs include Boise, Idaho and Blaine County, Idaho.95
2. REGULATORY TOOLS
Sometimes the simple approach — defensible space and a metal roof — is not enough. That is particularly true in areas with high property values, or in the case of larger rural or foothills developments where wildfires would be too large for urban fire departments to protect all buildings and structures. In these cases, the NFPA Guide suggests that communities consider regulations at the community, neighborhood/ subdivision, site/ project, and building scales.96 Regulations at each of these scales serve different purposes and produce differing results. They can also be used in combination, or separately, depending on the approach that the local community finds most compelling.
a. Community Scale Regulations
In most states, there are two primary tools for implementing community-scale wildfire regulations: comprehensive plans and zoning codes. The community-scale regulations suggested by the NFPA Guide also include hazard mapping, zoning overlays, and restrictions of sensitive or hazardous uses, such as hospitals, stadiums, or gas stations in wildfire risk areas.97 This section investigates some of these, and other, community-scale approaches.
i. Comprehensive Plans Comprehensive plans may be the most important, if underutilized, planning process to address wildfire. Comprehensive plans are important for two reasons. First, comprehensive plans are a mandated policy planning tool required in most wildfire-prone states.98 Many of these statutory enabling provisions, but certainly not all, mandate that local governments evaluate their natural hazard risks. Where there is no mandate to engage in comprehensive planning for wildfire, it is generally permissible to do more evaluation of hazards in comprehensive planning that required by the enabling statute. Despite the requirement of comprehensive plans, many people in the development world tend to discount their importance because comprehensive plans remain advisory in many states.99 As a result, many discount the importance of the comprehensive plan, viewing it as a chore without relevance. That is a mistake, especially in the wildfire realm. Even in states where wildfire a comprehensive plan is deemed an advisory document, almost all cities require discretionary permits — subdivisions, planned unit development, or conditional use permits — for the types of development that are at the highest risk of wildfire. Conditional use permits in most local jurisdictions require the local planning and zoning commission to make a finding of compliance with a local government’s comprehensive plan. As a result, comprehensive plans can prove especially powerful with regard to those permits. For instance, the Boise, Idaho zoning code requires conditional use permit decisions to include a finding that “the proposed use is in compliance the Comprehensive Plan.”100 These finding requirements embedded in conditional use permits and related discretionary permits are not advisory; rather, the findings of compliance and compatibility are legal requirements that must be met in order for the local government to grant the permit. The importance of this distinction is often overlooked, but its importance cannot be overstated: while the comprehensive plan itself is an advisory document, findings of compliance or compatibility for issuing of non-ministerial permits are legal in nature. That means that a failure to show compliance with the comprehensive plan in general is not an actionable legal claim. However, failure to show that a project complies with the comprehensive plan when it is a legal requirement for issuance of a permit is an actionable legal claim. In the latter case, the local government would be said to have failed to exercise its responsibility to exercise reasoned decision making because it has not stated what constitutes compliance.
The importance of the legal requirement of compliance or compatibility becomes very important where a local government has integrated its findings of identified wildfire risks and mitigations from the CWPP into the comprehensive plan. If a local government has done so, then there must be a finding of compliance or compatibility with those wildfire risks and mitigations as evidenced by the goals, policies, and land use map of the local government’s comprehensive plan.
For these reasons, comprehensive plans can play an important role in signaling the long-term development goals of a community and, in particular, its intention to address the risk of wildfire in the planning process.101 For those communities seeking a rigorous approach to wildfire comprehensive planning documents, the California Fire Hazard Planning: General Plan Technical Advice Series102 provides numerous examples of policy statements that are applicable to most states where wildfire occurs. While California is one of the few states where comprehensive plans are legally actionable documents, the planning techniques for wildfire that the guide proposes are applicable to many states and, where implemented into comprehensive plans, also legally actionable for compliance against specific projects in findings for discretionary permits.
ii. Zoning and Land Use Codes In the general understanding, zoning and land use codes — sometimes referred to as development codes — are the implementing mechanisms that translate the goals and policies of comprehensive plans into legal requirements applicable to specific parcels of land.103 In the case of wildfire, zoning regulations are most often applied through overlay districts or zones that apply additional requirements — and incentives — related to wildfire management.
As one example, Couer d’Alene, Idaho’s Hillside Overlay District provides detailed wildfire protection standards, but also couples them with detailed standards related to potential secondary effects of wildfire like flood and landslide.104 These provisions cover grading and erosion control; surface and ground water drainage; and maintenance of the development that includes wildfire readiness.105 Before developing in the hillside overlay zone, the city must determine wildfire mitigation goals for the area according to the Kootenai County WUI Fire Mitigation Plan and NFPA standards as guidelines.106
b. Neighborhood/Subdivision Scale Regulations
A significant proportion of development in the WUI requires subdivision of land. For that reason, subdivision regulations — especially those that govern large-scale subdivisions that create wholly-new neighborhoods — can be a tremendous source of effective wildfire planning by essentially building in wildfire preparedness from the inception of the proposed project. The NFPA Guide suggests that neighborhood/ subdivision scale WUI tools include: residential clustering requirements; mandating water supply, such as a year round water source of 4,000 – 5,000 gallons; density reductions in high hazard areas; taxing or assessment districts to fund fire mitigation districts; as well as road width and signage requirements.107
Most WUI development involves subdivision of land, which provides an opportunity to consider how that process can be altered to reduce wildfire threat. For instance, Flagstaff, Arizona reduced subdivision ignitability by respectively requiring firebreaks and clustering lots away from fire hazards.108 Clustering can be balanced to preserve the desired density in a subdivision while avoiding high risk fire areas, which results in the developed area being denser than would otherwise be possible.109 Communities seeking to improve fire response in subdivisions often require additional access roads and water supply.110
The Lemhi County, Idaho code provides that subdivisions or any other multiple unit development must thin timber on, and remove dead fuel from, the site, and provide appropriate perimeter and, in larger developments, internal fuel breaks.111 A fuel break is defined as a “strategically located strip of land in which the timber has been thinned and fuel removed to create an open ‘park-like’ appearance.112 Fuel breaks either include roads or are accessible to firefighting apparatus. Fuel breaks are generally at least twelve (12) feet in width, with the width increasing on slopes over ten (10) percent.”113
Kootenai County, Idaho offers a bonus density for conservation-oriented subdivision, which must preserve at least twenty percent of property within the subdivision.114 The use of this clustering, and its commensurate open space, is guided in part by compliance with the substantial wildfire preparedness terms in the section, which require substantial pre-planning of the community for wildfire. It also requires the subdivision proposal to show short and long term plans for eliminating dangerous vegetative and fuel conditions in and around proposed building sites and requires canopy cover in these areas to be less than 50 percent, with lower branches pruned, the ground should be relatively free of debris, and ladder fuels and dead and dying trees removed.115 Further, the proposal must verify that power lines will be installed underground and confirm that there will be safe and adequate emergency access for residents.116
c. Individual Sites or Project Scale Regulations
Some wildfire regulations are more appropriate to individual sites, especially those that perhaps apply only to the most extreme wildfire hazard areas. In such cases, while the regulations must still be generally applicable to all parcels that fit within the generally-applicable requirements, they can be drafted in such a way that there are alternatives for compliance that can be sensitive to specific needs of development on a site or the nature of the wildfire risk. The NFPA Guide recommends that site scale WUI tools include site-specific hazard assessments; requiring accessory structures to be separated from other uses; requiring fences to be made of non-flammable material or a minimum distance from the structure; and encouraging or requiring fire-resistant landscaping.117
The Power County, Idaho Development Code118 provides that individual structures, including single-family dwellings, that are located in or adjacent to forested areas, or areas of flammable brushy vegetation, must provide defensible space of at least 30 feet around the home or structure and maintain that defensible space, which is defined as one in which trees are thinned so that crowns do not overlap or touch, woody brush is removed or substantially thinned, and dead fuel is removed.
d. Building Scale Regulations
While regulation at the community, neighborhood/ subdivision, and lot/ site scales is typically the duty of the planning department, regulation of the building scale typically falls to the building department and the building codes implemented therein, as well as the fire code and the provisions therein. The NFPA Guide recommends that regulatory tools at the building scale could include: siding that has one-hour fire resistant materials; double-paned windows; requiring eaves or soffits to be boxed in or covered; as well as other potential mitigations for attics, chimneys, and decks.119
At the lot and building scale, communities often focus on building ignitability reduction by requiring 30 feet of defensible space (e.g., modifications to vegetation, such as tree removal, thinning and pruning). This may sometimes be enacted regardless of property boundaries, so neighbors may be required to cooperate to mitigate their shared fire hazard.120 Blaine County, Idaho has written one of the most extensive codes aimed at wildfire protection at the lot and building scale.121 Eagle County, Colorado uses site-specific hazard assessments to specify mitigation requirements that the developer must satisfy as a condition before obtaining a building permit.122
In Yakima County, Washington, informal discussions began in 1999 regarding who, why, and how they could adopt a WUI code. In June, 2000, a fatal auto accident started a wildfire, which quickly threatened the Hanford nuclear reservation and burned at least 25 homes in neighboring Benton County.123 Stakeholders and citizens alike came forward to support the idea of a County WUI code, and elected officials adopted one in 2001. Yakima County’s current InternationalWildland-Urban Interface Code (Chapter 13.12) adopts the 2015 International Code Council’s International WUI Code with local amendments.124 These local amendments tailor it to the community — an important ingredient for maintaining buy-in. The county reviews the code every three years. Any proposed changes receive input, and adopting the newest version of the code is not always required. The county utilizes its inspectors and local contractors as boots on the ground to receive feedback on how the WUI code is achieving its objectives.125
In Wenatchee, Washington, some communities have unique land uses that require specialized ordinances or codes to mitigate WUI risks. Located in the Okanagan Valley, the City of Wenatchee has an economy that continues to include fruit-packing warehouses. Warehouses throughout the city store wooden crates and other combustible materials as part of their seasonal operations. During recent years, wildfires throughout the region have threatened or destroyed similar warehouses when firebrands landed on flammable materials and ignited. To mitigate the threat to these structures and nearby properties, Wenatchee requires that all empty wood boxes, bins, pallets, cartons or trays are stored a specified distance from buildings and electric lines. In addition, there are requirements to limit the height of piles and stacked bins.126
There are a number of standard codes that apply in whole or in part to the building scale that can prove useful for adoption, or reference. These include the following, all of which are readily available online:
- 2015 International Code Council International Wildland-Urban Interface Code127
- NFPA 1141, Standard for Fire Protection Infrastructure for Land Development in Suburban and Rural Areas128
- NFPA 1142: Standard on Water Supplies for Suburban and Rural Fire Fighting129
- NFPA 1143: Standard for Wildland Fire Management130
- NFPA 1144: Standard for Reducing Structure Ignition Hazards from Wildland Fire131
E. Non-Regulatory Tools
In addition to regulatory tools, there are already a wide variety of incentives and voluntary programs well-established to prevent wildfire. Communities that engage in regulation may also use incentives or voluntary efforts while other communities may skip regulatory approaches altogether and instead rely just upon these measures. In either case, the local community should be sure to refer back to the wildfire hazards identified in the CWPP and the mitigation measures proposed there. The way that these incentives and voluntary programs are bundled and deployed should be tailored to address the particular kinds of risks that the local community is facing. For instance, one part of a community may face timberland fire risks while another may face grassland fire risks. These fires burn differently and require different types of preparation. Incentives and voluntary programs can also be tailored to areas of highest risk or, alternatively, to places where there is lower risk but where there are high-value properties or important infrastructure. This means that the useful deployment of incentives and voluntary programs requires planning to be effective, and that planning should be based upon the kinds of wildfire risks identified and mitigation measures discussed in the CWPP.
Firewise Communities may be the best known non-regulatory wildfire prevention tool; it is also widely misunderstood. At its core, Firewise is a program for communities that focuses upon establishing a vegetation plan for the community that is fire-resistant, ensuring an ongoing presence of fire awareness in the community, and ensuring maintenance of the vegetation plan and development in the community over time.132 This on-going commitment program is known as the Firewise Communities program, which is administered by the nongovernmental National Fire Protection Association.
Firewise is a voluntary program that encourages homeowners and neighbors to work together to minimize their wildfire risk. To become a recognized Firewise Community, a community goes through a fivestep process.133 This often occurs at the time of project application and is conducted by the developer, but it can occur later on. First, the project applicant or community must obtain a wildfire risk assessment from the state forestry agency or a fire department.134 Second, they must convene a working group and create an action plan based on the assessment.135 Third, they or a subsequently created fire board must conduct community outreach events promoting wildfire education or the action plan on an ongoing basis.136 Fourth, the community must invest two dollars per member annually in Firewise activities.137 Fifth, the development must submit an application for approval to the state Firewise liaison.138
Most of Firewise Communities are also governed by homeowner’s associations that provide additional structure and regulation to the community beyond that required by the local government. That said, Firewise is not available only to private common-interest developments; in fact, neighborhoods without homeowner’s associations, as well as entire cities, can become Firewise Communities. McCall, Idaho has taken this step: the entire city is certified as a Firewise Community.139 For those cities that face consistent wildfire threat, becoming a certified Firewise Community at the city level may be a smart move independent of whether the city also pursues regulatory approaches.
At the same time, local governments will routinely hear developers tout their projects as “Firewise” when seeking a project approval. In most of those cases, what the developer means is that the developer plans to use Firewise- pproved vegetation, which generally adheres to the three-zone strategy discussed above and prioritizes local fireresistant plants. The important distinction for local communities to understand, however, is that the planting of Firewise vegetation at the outset of a project does not guarantee that the community will retain, or properly maintain, that Firewise vegetation over time. It also does not ensure that the community will maintain an on-going wildfire planning presence. That on-going maintenance and education component only arises in a certified Firewise Community. As a result, while the initial planting of Firewise vegetation by a developer is a great beginning step, it does not guarantee that the community will have an ongoing fire-resistant vegetation and maintenance plan.
In addition, local governments should be aware that even in a Firewise Community, there is no supervision of the fire board or the activities that they coordinate. For instance, one Firewise Community fire board may choose to spend its money on a “meet-and-greet” with hot dogs at the fire station, while another Firewise Community fire board may choose to spend its money on a chipper and sponsoring a brush clean-up day. As a result, if local governments approving projects want certainty as to how a community will maintain Firewise vegetation planted over time, or certainty with regard to the types of programming or activities that will occur to promote wildfire preparedness, they will need to do more than simply require Firewise vegetation at the outset of a development or that a community maintain a Firewise Community recognition.
This lack of certainty with Firewise is important for local governments to understand. At the same time, that lack of certainty should also not diminish the important role that Firewise has played as an educational tool in helping to popularize the important role of defensible space and how to achieve it relative to the varied ecosystems around the West.
Those contemplating using Firewise as a voluntary measure for new developments would do well to review Safer from the Start: A Guide to Firewise-Friendly Developments, which provides a number of model codes and CC&Rs from communities that have integrated Firewise into private management agreements.140
Using insurance to indirectly regulate wildfire development is attractive to those that favor a market-based approach to development. This theory argues that where there is high wildfire risk, insurance costs will be prohibitively high and that will prevent development in the most wildfire-prone areas. To the extent that development continues in spite of insurance costs, it could do so only if the insurance companies do not have accurate information about wildfire risk and thus are improperly calculating their risk.
While this theory is seductive, there are several major problems with it in practice. First, a recent study by Headwaters Economics indicates that insurance costs are increasing and more companies are requiring adherence to fire-safe standards.141 On the other hand, home-building on fire-prone lands continues at a rapid pace.142 The study notes that, according to one estimate, since 1990, 60 percent of new single-family homes in the United States have been built in the wildland-urban interface (WUI).143 This is because the cost of defending homes from wildfires is typically a state and federal burden; as a result, there is little incentive for local governments to build on safer lands. Further, the insurance company only bears the cost of damaged homes, while the cost of protecting homes is born by federal and state governments and their taxpayers. For instance, the recent wildfire that broke out in the foothills above Boise, Idaho required substantial firefighting resources, but only one home was lost to the fire.144 For the insurance companies, the only liability was the lost home, not any of the costs of fighting the wildfire, or any of the after-effects of the fire that may lessen the home’s value or otherwise affect tourism or economic development in a community. For these reasons, the insurance market is unlikely to ever fully reflect the true cost of wildfire.
At the same time, some local governments are also looking at ways to provide additional incentives to property owners who perform mitigation. Boulder County, Colorado’s Wildfire Partners program, which is administered by the county and run on state and federal grants, offers in-depth property assessments by mitigation specialists to help residents understand their structural and property vulnerabilities.145 Property owners who successfully perform all required mitigation receive a certificate. The program has two unusual benefits: (1) a financial rebate to cover mitigation costs (e.g., tree removal) and (2) the certificate’s acceptance by several insurance companies as proof of adequate fire mitigation sufficient to reduce rates or retain coverage.146
3. HOMEOWNERS ASSOCIATIONS (HOAS)
Homeowner’s associations, or HOAs, are private organizations of homeowners typically associated with the same development. Once a rarity of exclusive communities, by 2012, the number of units in some kind of HOA constituted roughly 24 percent of the national housing stock and more than 60 percent of all new construction.147 Estimates of residents living in an HOA climbed from 2.1 million in 1970 to 63 million in 2012.148 Notably, much of the development in the WUI includes an HOA.
The rise of HOAs has many drivers. From the developer’s perspective, an HOA placed on a development at its inception can be useful for several reasons. In a large subdivision, the developer wants to maintain a nice appearance in the first phases of a development to assist with the sale of the later phases. In such a case, the developer will maintain control of an HOA until such time as all or most of the lots in the subdivision are sold. In addition, developers like HOAs because they can make the HOA liable for assessments or fees that the city imposes to pay for infrastructure and maintenance that is mandated by the city. Since the property tax revolutions of the 1970s, most Western cities cannot use property taxes to fully fund infrastructure and maintenance that serves a community. Without access to property taxes, the cities must demand that the new development pay its own way, and an easy way to do that is make the HOA responsible for upkeep of roads and infrastructure that, in the days of higher property taxes, were paid for by the city. In addition, despite some concern about the controlling nature of some overbearing HOAs, the majority of residents in HOAs appear to prefer the very local level of control of their living environment, perhaps in part because surveys show that homes in HOAs have higher re-sale value than comparable homes not in HOAs.
Regardless of their merits, HOAs are an established part of life in Western communities and often accompany development in the most wildfire-prone areas. For that reason, where government regulations are not preferred, a local community may instead offer potential guidelines for private covenants that local communities can adopt themselves if they choose to do so.
For instance, Hidden Springs, a large planned community located well into the foothills above Boise, Idaho, was developed with extensive wildfire planning built into both its entitling documents, as well as its HOA documents. The Town Plan, in the case of Hidden Springs, was adopted as part of the Ada County Zoning Ordinance.149 With regard to wildfire, the ordinance provides extensive regulations of the c ommunity, which includes seven “primary criteria” used to establish a wildfire prevention program for the project. Available water requirements included a fire protection minimum storage of 550,000 gallons with fire flow to exceed the minimum 1,500 gallons per minute, as well as hydrant specifications.150 A fire station had to be constructed on-site. Primary roads within the community had to be designed to provide access for emergency vehicles. Site planning at the perimeter of the residential neighborhoods as well as local protection for individual home sites required a comprehensive system of roads, trails, riparian greenways and open preserves to provide strategic emergency access points and firebreaks at the neighborhood perimeters that allow firefighters to confine a fire to a small area. Noncombustible materials, such as tile/ slate, asphalt composition shingles, and standing seam metal, were required for roofing materials. Landscape planting guidelines for Hidden Springs included provisions for wildfire prevention to reduce fuel volume in the common and perimeter areas, and second, to provide individual home sites with a framework for fuel modification. These guidelines focused on planting fire resistant plant materials; establishing irrigated landscape envelopes within each home site; developing vegetation buffers that provide transition to adjacent native vegetation; and establishing criteria for clearance between buildings and plantings within each site. Finally, the Town Plan required that “ongoing maintenance, management and enforcement of the wildfire prevention program will be the responsibility of the community association and governed by the covenants, codes and restrictions for the Hidden Springs community.”151
In turn, the CC&Rs for Hidden Springs provide as follows:
18.104.22.168 Wildfire Prevention. Establish, implement and enforce all programs, services, activities, restrictions, rules and regulations necessary or appropriate to achieve the "Wild Fire Prevention Strategy" identified in Section 3, 3-19, of the Town Plan, including any and all steps necessary to minimize disruption of wildlife habitat in the form of native ground cover vegetation and existing soil and drainage patterns.152
Thus, Hidden Springs provides an example of how a zoning ordinance and HOA CC&Rs can work together to provide both standards for wildfire protection that are enforceable through the enforcement mechanism of the county’s zoning ordinance, while also permitting the HOA and the local community to bear the primary responsibility for ongoing maintenance without the necessity of governmental involvement.
Another HOA in Idaho, Wilderness Ranch, which is located in Idaho Highway 21 between Boise and Idaho City, has received significant attention for its efforts in wildfire prevention, which resulted in large part through the HOA choosing to become a Firewise Community. Before and after pictures on the HOA’s website illustrate the dramatic changes the community has made of its own volition without any government regulation.153 The CC&Rs for the Wilderness Ranch community provide as follows:
15) Fire Hazard:
Owners will not use the property, nor permit others to use said property, in any way that will increase the fire hazard on the property or surrounding property, or any parts thereof, nor shall owners maintain or permit to be maintained in or about the premises any article which may increase said fire hazard. Owners, at owners’ sole cost and expense, shall comply with any and all requirements pertaining to said property of any insurance organization or company, United States Forest Service, Boise County, or the State of Idaho necessary for fire protection for use of said lands.154
Communities integrating Firewise into HOAs will find the Firewise Safer From the Start publication useful, as it contains several examples of Firewise-friendly HOA CC&Rs.155
F. Step Three: Implementation, Maintenance and Enforcement
Step Three of the wildfire planning cycle is implementation and maintenance of the regulations, incentives, and voluntary programs that the local community has chosen to adopt in Step Two in response to the identified wildfire risks and mitigations arising from the CWPP process in Step One. Of the entire wildfire planning cycle, this step has proven to be the hardest for several reasons. First, maintenance is on-going, whereas many processes, such as permitting, are intended to be one-time reviews. Second, enforcement of regulations requires confronting offenders that are creating wildfire hazards. If the community has not been trained to see the wildfire risk and understand its severity, enforcement may encounter resistance and push-back on the entire wildfire preparedness plan. This is why education is a constant need in the wildfire planning cycle, and why a citizen board is necessary for involvement as early as the Step One CWPP process. Enforcement and on-going maintenance is hard, requires vigilance, and requires residents to take time from their lives to prepare for an abstract, but very real threat. While there is no easy solution to implementation, maintenance, and enforcement, this Section suggests several strategies that are potentially valuable in ensuring that wildfire preparedness goes from plan to implementation.
1. IMPROVING COMMUNICATION
When a project comes up for approval to a planning and zoning commission, if it is located in an area of wildfire risk, it will typically have a letter from the local fire chief attached to the staff report stating that the project complies with the local government’s fire requirements. The fire chief will typically offer up some standard conditions that the staff planner will incorporate into the conditions of approval. For most planning department staff, that letter fulfills their obligation to consult with the fire staff on wildfire for the project.
In practice, this process often yields little real coordination between the fire chiefs and the planners. Moreover, the fire chiefs are often applying codes that are primarily based upon urban fire needs, not wildfire needs, which may not appear in the code. Planners may not understand wildfire issues and thus defer to the fire chief. Planning and zoning commissions may simply defer to the planning staff or fire chief assuming that this complicated issue has been resolved. Seldom do commissions ever, of their own accord, decide to take up the wildfire issue, much less defer a hearing on the proposal to consider additional conditions of approval. Local governments should consider taking several steps to ensure a smoother planning process with regard to applying regulations, incentives and programs to specific projects.
First, local governments should follow the steps outlined in this wildfire planning cycle, which includes having planning and building staff, as well as local officials and citizens engage the wildfire process as early as possible, and in an ongoing manner. That means having all of those participants included in the CWPP process, as well as the creation of the local community’s mix of regulations, incentives and programs.
Second, local governments should consider coordinating meetings at the beginning of an application process that would bring together planning, building, and fire staff to meet with a project applicant that is considering a WUI project. Such meetings are already common in a number of jurisdictions; they should be extended, and they should specifically ensure that some portion of the meeting is not just about explaining compliance with regulations to the developer, but also how incentives or voluntary programs could increase wildfire preparedness while also permitting the developer to build a project that is in line with the community’s land use regulations.
Third, the local government should consider some aspect of what is often referred to as a “chief resilience officer,” a term that simply means a staff member that is charged with ensuring that all of the silos of a local government — in the particular case of wildfire, the fire, planning and building departments — are talking with each other and working towards a common vision of wildfire protection.
Fourth, the local governments should be sure to train volunteer officials, such as local planning and zoning commissioners, on the basics of wildfire regulation, incentives, and programs. Such commissioners often are the most visible decision makers in a community on whether to approve a wildfire-prone project; ironically, they often know the least about the issue. While such planning and zoning commissioners, and ultimately the local city council members and county commissioners, will always need to rely upon the expertise of staff, they must also be aware of, and have the capacity to, deploy the full range of regulations, incentives, and voluntary programs that the local community has decided to adopt in accordance with the identified wildfire risks that the community faces.
As noted before, enforcement of wildfire provisions may be the hardest part of the wildfire planning cycle, but also the most important. Wildfire preparedness is not a one-time occurrence. Rather, it requires maintenance of conditions that can become hazardous on a yearly, or even twice-yearly basis. In cases where local communities are not engaging in the up-keep, the question of whether to enforce, and whether the local community has the power to enforce, compliance with wildfireready maintenance is an ongoing matter of concern. For those communities seeking alternatives, here are some in use throughout the West.
a. HOA CC&Rs
Because so much of development is now subject to HOAs, perhaps the most common means of on-going enforcement remains the CC&Rs of those communities. As discussed previously, these terms often include both substantive standards that require certain vegetation management plans, as well as specifications related to materials in the built environment, that permit the HOA development to retain a level of wildfire preparedness without being subject to government overview.
b. Local Governments as Third-Party Beneficiaries of Maintenance Agreements
It is increasingly common for local governments to leave maintenance of vegetation and housing materials in wildfire-prone areas to HOAs that govern such WUI communities. However, some local governments, while ceding that responsibility to the HOAs as a primary source of enforcement, also want to retain the ability to enforce the agreed-upon wildfire provisions at the time the HOA was approved if the HOA then fails to maintain the association’s development in the agreed-upon wildfire-ready manner. The easiest way for local governments to achieve this is to require, at the time of entitlement, that the city or county retain a “third party beneficiary status with right of enforcement” for the wildfire provisions in the CC&Rs. This legal term simply means that if the HOA fails to perform its obligations regarding wildfire in a community, the local government has the power to enforce the wildfire terms and then send the bill to the HOA.
As an example, the Laguna Beach, California CWPP included draft language for a third-party beneficiary with right of enforcement term that it suggested for adoption by local governments. The detailed provision covers a number of important points beginning with these terms, but at its core is defined by empowering the city to enforce the CC&Rs related to wildfire in these terms:
In furtherance thereof, the City shall have the right, but not the obligation, to enforce the performance by the Association of its duties and any other fire prevention requirements, which were imposed by the City or other Public Agency as a condition of approval for the Development (e.g., prohibition of parking in fire lanes, maintenance of the blue reflective markers indicating the location of fire hydrants, etc.) and shall also have the right, but not the obligation, to enforce compliance by any Owner with any Fuel Modification Zone or designated interior/ manufactured slopes restrictions applicable to his Lot (or Condominium) as set forth in the Fuel Modification Plan.156
For local governments that are serious about ensuring that HOAs’ wildfire provisions are maintained over time, this type of provision is invaluable. It gives the local government the opportunity to enforce, but still gives the HOA the primary obligation, and opportunity, to engage the wildfire preparedness.
Other cities facing severe wildfire risk have engaged similar tools. For instance, San Diego, California imposes fines, and liens, on properties that do not comply with regulatory requirements for defensible space, hires a contractor to do the mitigation work and sends the bill to the homeowner.157
c. Development Agreements
Many large-scale developments in the WUI are governed by development agreements. Developers and local governments both like development agreements because they permit both private and public parties to negotiate for terms that are not otherwise addressed by existing codes and plans or that might otherwise be deemed exactions. Because of this, both developers and the local government can ask for, and potentially receive, valuable concessions that matter to the respective parties.
For local communities that are at a high wildfire risk, savvy negotiation of a development agreement may be the best way to ensure, not only that a development meets wildfire preparedness goals for the identified wildfire risks in the community, but that the community maintains that wildfire preparedness, especially in its vegetation management and its building materials approved, over time. For instance, a city or county may require the reservation or dedication of land for public purposes and may include conditions and restrictions for subsequent discretionary actions. For example, the city or county may require dedication of emergency access easements, dedication of land for firefighting facilities, on-going maintenance of those facilities, and subsequent review of fire safety plans before later phases of development can begin.158
d. Zoning Maintenance Requirements
Several local governments in Idaho also have zoning ordinances that require an approved project to maintain wildfire preparedness. For instance, developments in the Coeur d’Alene Hillside Overlay District are subject to the following requirements outlined in the zoning code:
Maintenance requirements and responsibility shall be clearly identified for all projects where best management practices are employed, including those for erosion and sedimentation control, storm water management, and fuel modification for wildfire mitigation. When a storm water system is designed to service more than one lot, a maintenance agreement between all parties that benefit from the system must be established, including assurance of adequate funding. Easements across private property for maintenance access to community storm water systems shall also be required where necessary. All private maintenance agreements and required easements must be executed prior to issuance of certificate of occupancy, recordation of final plat, or similar approvals of the city.159
McCall, Idaho has substantial requirements for mitigation fire hazards in its zoning codes, which include terms related to the maintenance of yards; requirements of homeowner’s associations to remove “woody material” from common spaces; and upkeep of vacant lots, among other requirements.160
The virtue of placing on-going mitigation requirements in the zoning code is that they are subject to the enforcement provisions of zoning codes, which in most jurisdictions, offer the local government a number of ways to compel compliance all of which are well within the ambit of police power regulations.
e. Nuisance Abatement for Wildfire Hazards
Many communities have nuisance ordinances, and it is important to ensure they support wildfire mitigation in addition to other public health and safety objectives. In 2014, Sisters, Oregon updated its Municipal Code with an ordinance that includes language to define a nuisance as including wildfire- related conditions and includes definitions for terms such as brush, fuel break, ladder fuel, and extreme risk land.161 For those properties subject to wildfire risk reduction requirements within city limits, they must create and maintain fuel breaks, remove ladder fuels, keep roofs free of leaf litter, and keep specified areas as fuel-free or be subject to nuisance abatement procedures.162
Another approach now popular, especially among jurisdictions that do not have the inclination or resources to engage in wildfire regulation is simply to use a disclosure of wildfire risk. As one example, McCall, Idaho has created a GIS mapping system that permits users to see the last fifteen years’ worth of fires, which show how the city has been virtually encircled by fire within that time frame.163 This map image is an evocative way to convey fire danger to build a community awareness and willingness to act.164
Similarly, Nez Perce County, Idaho provides an informational report on all hazards, including wildfire, to all applicants. This informational report, while not affecting regulation, does make it clear to applicants when they are about to build in a high wildfire risk area. That disclosure of risk then permits the county to begin a conversation about what incentives and voluntary programs the developer may choose to reduce the risk that the development will face in that location.165
G. City Work for Private Owners with Maintenance Agreements
As part of Kootenai County, Idaho’s FireSmart program, the county will assist property owners in creating fuel breaks designed to protect themselves and their community from wildfire.166 For landowners whose property qualifies for treatment as a fuel break, the initial hazardous fuel treatment work is paid for through the FireSmart program.167 Participants agree to maintain the work for a period of 10 years, or until they sell the property, whichever comes first.168
H. Step Four: A Substantial Change Occurs
The final step in the wildfire planning cycle — at least conceptually — is when one of two events occurs: a wildfire happens or five years passes from the completion of the CWPP. In some communities, wildfires happen every year and, of course, the wildfire planning process cannot be completed on a yearly basis. However, there are some wildfires that really cause the community to take note and pique the interest. Studies have shown that, in those instances, a local community has about a six-month window in which to re-consider how it will address wildfire. It is at those windows of opportunity that it is important to begin the wildfire planning process anew, harness the renewed interest and make a better long-term plan for the future of the community.
Alternatively, the passage of time will mandate that the process begin again for one of several reasons. First, in fast growth communities, the location of the WUI will change because development may urbanize existing WUIs and thus re-define the community’s WUI. Similarly, the change of time may also change the local environment, such as water availability or effects of climate change.
Second, an increasing number of states are seeking to integrate their CWPPs into their county All Hazard Mitigation Plans, which are used for compliance with Federal Emergency Management Agency disaster preparedness regulations. For states where that integration occurs, CWPPs will need to be updated every five years to comply with AHMP regulations. The State of Idaho is one of the first to try this integration, which is memorialized in a memorandum of understanding between the Idaho Office of Emergency Management and the Idaho Department of Lands.169
I. The Cyclical Nature of Wildfire Planning
The wildfire planning process proposed here is conceptual in nature; it is recognized that not all communities will start with a CWPP, then launch into drafting regulations, incentives and voluntary programs, proceed to implement and enforce them, all before a wildfire strikes. Indeed, in many communities, wildfire strikes yearly, and in some communities, it is the inability to enforce a provision that encourages the local government to start from scratch and revise the CWPP. Nonetheless, the proposal for a cyclical planning process, built on a five-year rotation, is a valuable approach to an ever- changing wildfire risk. This is especially so in rapidly growing communities where the WUI is an ever-changing concept and where the nature of regulations, and the regions where such regulations need to be imposed, may change dramatically in a five-year period. By embracing a cycle of wildfire planning, local communities can feel confident that they have a procedural mechanism in place to continually rethink this evolving risk as their communities also evolve over time.
J. The Constant Need for Education
In the conceptual framework, the wildfire planning process is surrounded by education. Education is a constant need in wildfire preparation. There are a number of excellent education components already available, such as the numerous publications available from the U.S. Forest Service.170 Numerous state and local fire departments around the West also engage in significant wildfire education and outreach. However, the education needs to support the cyclical planning process provided here demand that the education processes be broadened to include the full cycle of the development process, as well as residents that live in WUI communities. That could mean more educational opportunities about wildfire for land use lawyers — on both the developer and local government sides — as well as planners, building officials, and the banks, developers, and builders who finance and construct our new communities.
V. Concluding Remarks
Local governments seeking to implement this process may need to reimagine how they work with consultants, many of whom are just now beginning to understand the importance of linking the CWPP process with local planning and building code processes. If a county — or city or neighborhood — wants to try the wildfire planning cycle approach proposed here, that community will need to make clear to the consultant that they want something new. That will need to be reflected in Requests for Proposals, as well as in very specific guidelines to the consultant. It may be incumbent on agencies or scholars to ultimately provide to local communities the tools to do the CWPP work themselves, or else to include guidance on selecting an appropriate consulting firm through a well-written RFP; managing the consultant through a scope of work that ensures deliverables and the final product are collaborative and include multi-stakeholder input; and providing an implementation and maintenance plan for the community. Until that time, however, local communities will need to understand that the wildfire planning process has not yielded the results it could, and something new needs to be tried. Part of that is inclusion of citizens and local planning and building staff, along with local officials, from the very beginning of the wildfire planning process. That continuum of knowledge, from risk and mitigation identification to adoption of regulations, incentives and programs to implementation, enforcement and maintenance can only occur where staffs of various departments are working together and have equal ownership in planning for wildfire.
This article offers a wide array of planning tools for wildfire. One of the goals of the article is to make clear that wildfire planning does not necessarily have to be “anti-development.” While some communities will choose to forego development in high-risk wildfire areas, the seemingly perpetual rapid growth of the West means that, in many locations, there will be simply no choice but to grow into areas prone to wildfire risk. When development happens, there are relatively easy solutions that can significantly reduce wildfire risk. Given what is at stake, communities should seek to utilize these tools and the process described here to take ownership of wildfire risk and mitigate it where possible. That risk is on-going and requires continuous planning and maintenance to reduce fire risk. With some vigilance, however, communities can live in wildfire landscapes with less fear and a better sense that their homes and infrastructure are protected from wildfire and its after- effects, which often include floods and landslides. Engaging the cycle of planning proposed by this article will hopefully prove a start towards attaining that peace of mind.