DAR File No. 41013

Natural Resources, Forestry, Fire and State Lands

Rule R652-121

Wildland Fire Suppression Fund

Notice of Proposed Rule

(Amendment)

DAR File No.: 41013
Filed: 11/15/2016 02:23:07 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule implements Article XVIII of the Utah Constitution and Section 65A-8-204 and provides for administration of the Wildland Fire Suppression Fund under the authority of Section 65A-8-207.

Summary of the rule or change:

This rule is amended to implement changes to the Wildland Fire Suppression Fund pursuant to S.B. 212 and S.B. 122 from the 2016 General Session, which creates a source of funding for the Wildland Fire Suppression Fund, modifies the structure of the fund, and authorizes entities to enter into cooperative agreements for wildland fire suppression.

Statutory or constitutional authorization for this rule:

• Section 65A-8-207
• Section 65A-8-204

Anticipated cost or savings to:

the state budget:

With the implementation of S.B. 122 and S.B. 212 (2016) from which this rule is derived, it is anticipated over time that wildfire risks and suppression and management costs should be reduced, resulting in a cost savings to the state, citizens and taxpayers. The cost savings to state budget is unknown since the participation commitment has not yet been determined.

local governments:

It is anticipated there could be a cost savings to eligible local government entities that enter into a cooperative agreement, as they may be eligible to have catastrophic wildfire suppression costs paid by the state. The cost savings is unknown since the participation commitment has not yet been determined.

small businesses:

Small businesses are not affected by this amendment, as this rule does not apply to small businesses.

persons other than small businesses, businesses, or local governmental entities:

Eligible entities, meaning a county, municipality, special service district, local district, or service area, may be affected by this amendment as the division will determine a participation commitment, which is derived from historic jurisdictional fire suppression cost averages and a jurisdictional Wildland Fire Risk Assessment, for each eligible entity with a cooperative agreement participating in the Wildland Fire Suppression Fund. The cost to affected persons is unknown since the participation commitment has not yet been determined.

Compliance costs for affected persons:

The Division will determine a participation commitment, which is derived from historic jurisdictional fire suppression cost averages and a jurisdictional Wildland Fire Risk Assessment, for each eligible entity with a cooperative agreement participating in the Wildland Fire Suppression Fund. The cost to affected persons is unknown since the participation commitment has not yet been determined.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no impacts to businesses, as this rule does not apply to businesses.

Michael Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Natural Resources
Forestry, Fire and State Lands
1594 W NORTH TEMPLE STE 3520
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Jamie Phillips-Barnes at the above address, by phone at 801-538-5421, by FAX at 801-533-4111, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/03/2017

This rule may become effective on:

01/10/2017

Authorized by:

Brian Cottam, Director

R652. Natural Resources; Forestry, Fire and State Lands.

R652-121. Wildland Fire Suppression Fund.

R652-121-100. Authority.

This rule implements Article XVIII of the Utah Constitution and Section 65A-8-204 and provides for administration of the Wildland Fire Suppression Fund under the authority of Section 65A-8-207.

 

R652-121-200. [Normal Fire Suppression Costs]Wildland Supression Fund.

1. [Under the terms of a cooperative fire protection agreement, the state forester shall file an annual budget for operation of a cooperative district with each participating county. The county shall budget an amount for actual fire suppression costs determined to be normal by the state forester.]The Wildland Fire Suppression Fund may be used to pay the costs of wildland fire suppression on state-owned land and for wildland fire suppression costs except initial attack costs on non-federal land within the jurisdiction of a county, municipality, or other eligible entity that has entered into a cooperative agreement with the Division and is complying with the terms of the cooperative agreement.

2. [Normal fire suppression costs are defined as the actual costs identified by annual audits of a participating county's financial records and costs paid by the state in the county's behalf under the terms of Sections 65A-8-203 and 65A-8-205. The most recent seven-year record will be used. The highest year and lowest year will be deducted and the remaining five years averaged.]A county, municipality, or other eligible entity without a cooperative agreement or one with a revoked cooperative agreement shall be responsible to pay for all wildland fire suppression costs on non-federal land within its jurisdiction within 90 days after receiving a bill from the Division for such costs, subject to a right to an informal appeal to the State Forester. Any appeal must be submitted to the Division in writing within 90 days of receiving the bill. The State Forester may conduct an investigation, hold an informal hearing, or request additional information before making a final decision.

[3. The seven years of fire suppression costs will be in constant dollars, which allows for the effect of inflation.

4. The minimum county budget for fire suppression costs shall be $5,000. The effect of inflation will be considered every three years. An amount equal to the accumulated inflation over this period will be added to this base budget for fire suppression. This time period began January 1, 1999.]

 

R652-121-300. [Annual Sign Up, Effective Payment Period, Annual Assessment Payments and Capitalization.]Payment of Wildland Fire Suppression Fund Costs.

1. [The annual sign up period will be from November 1 through January 10 of the following year.]After an eligible entity has entered into a cooperative agreement with the Division, all wildland fire suppression costs beyond initial attack within the jurisdiction of the eligible entity will be paid by the Wildland Fire Suppression Fund.

2. [The effective period for payments out of the Wildland Fire Suppression Fund will be June 1 through October 31 of each year. Should the state forester determine the need to extend the fire season as specified in Section 65A-8-211 due to fire severity, all suppression costs incurred during that extension period will be eligible. A participating county may petition the state forester in writing requesting use of the Wildland Fire Suppression Fund to cover wildland fire suppression costs incurred outside the normal fire season.]Area managers will verify to the state forester in writing that an eligible entity has a cooperative agreement.

3. [A participating county shall make its assessment fee and any required equity payment by March 15 of each year.]Each participating entity must make a good faith effort to recover suppression costs for negligently-caused wildland fires. If the participating eligible entity refuses to make a good faith effort to recover suppression costs from a negligent party for a wildland fire without approval from the State Forester, the suppression costs for that fire shall not be eligible for payment from the Wildland Fire Suppression Fund. The State Forester will determine if a good faith effort has been made to recover suppression cost.

4. Wildland fire suppression costs recovered under Section 65A-3-3 will be repaid to the Wildland Fire Suppression Fund.

 

[R652-121-400. Determination of Unincorporated Acreage.

1. The unincorporated acreage to be used in determining a portion of the assessment fee for participation in the Wildland Fire Suppression Fund will be the private acreage provided by the county from its ownership records. The acreage figure will be updated by the county every three years.

2. A county shall report all of the unincorporated private acreage within the county in order to participate in the Wildland Fire Suppression Fund.

 

R652-121-500. Determination of Property Values.

1. The taxable value of property in the unincorporated area of a county will be the locally assessed value of real property provided by the county to the Utah State Tax Commission, Property Tax Division on an annual basis.

2. Value of real property means:

(a) the value of real estate, including patented mining claims as reported pursuant to Section 59-2-322.

(b) the value of improvements as reported pursuant to section 59-2-322.

3. The county must adhere to Utah State Tax Commission policy for periodic reassessment of property. A county that is found to be in arrears on meeting this requirement will be penalized by increasing the current taxable value of property by 25% in determining the county's assessment fee.

 

R652-121-600. Determination of Equity Payments.

1. Unless waived by the legislature, an equity payment is required if a county elects to participate in the Wildland Fire Suppression Fund after the initial sign up period or to reestablish participation in the fund after a county's participation was terminated at the county's choice or for revocation by the state forester. The initial sign up period ended on May 31, 1998.

2. The equity payment is based on what the county's annual assessment fee would have been for the previous three years. In no case will the equity payment exceed three years of assessment.

3. If a county elects to join the suppression fund for the first time after May 31, 2000, an equity payment will be required that is equal to the previous three years' assessment fees.

4. If a county elects to withdraw from the fund or participation is revoked by the state forester, the county may request permission in writing to re-establish participation. Upon acceptance, the county must make an equity payment equal to what its assessment fees would have been for each year it was out of the fund, not to exceed three years.

 

R652-121-700. Definition of Eligible Suppression and Presuppression Costs.

1. After the County's approved fire suppression budget has been depleted, all fire suppression costs that occur during the fire season, as defined in R652-121-300, directly related to the control of wildfires on forest, range and watershed lands within the unincorporated area of a participating county are eligible for coverage by the Wildland Fire Suppression Fund. The costs of resources directly involved in fire suppression efforts that are paid from the county's wildland fire suppression account are eligible. The county must notify the state forester in writing when the county's budget for normal fire suppression costs has been expended. Area managers will verify to the state forester in writing that a county's fire suppression budget has been depleted.

2. A good faith effort must be made by the counties to recover suppression costs for human caused fires. If the county has evidence that indicates a responsible party for a fire and chooses not to proceed, suppression cost for that fire is not eligible for reimbursement from the Wildland Fire Suppression Fund. After consultation between the county and state, the state forester will determine if a good faith effort has been made to recover suppression cost.

3. Wildland Fire suppression costs recovered under Section 65A-3-4 will be repaid to the Wildland Fire Suppression Fund.

4. Presuppression projects may be funded from the Wildland Fire Suppression Fund when approved in advance by the state forester.

 

R652-121-900. Clarification of The State's Financial Obligation For Suppression Costs.

If the Wildland Fire Suppression Fund is not adequate to pay all eligible fire suppression costs, prorated expenditure payments will be made to affected counties. The remaining county liability will be shared between the county and state as provided by the current agreement.

 

R652-121-1000. Agreement For County Participation in Fund.

Pursuant to Section 65A-8-205 a county legislative body may enter into a written agreement with the state forester to participate in the Wildland Fire Suppression Fund. The written agreement to authorize a county's participation in the fund may be an addendum to the current cooperative wildland fire agreement between a county and the state forester.]

 

R652-121-400[1100]. Revocation of Participation in Fund.

1. [A county's eligibility to p]Participat ion[e] in the Wildland Fire Suppression Fund may be revoked for failure to:

(a) enter into a cooperative agreement with the Division,[pay the required assessment or equity fees when due after being notified by the state forester as specified in Subsection R652-121-1100(2).]

(b) [provide documented unincorporated acreage figures for assessment determination]comply with the terms of the cooperative agreement with the Division; or

(c) [provide total taxable value of unincorporated property as provided annually to the Utah State Tax Commission, Property Tax Division for the assessment determination]fulfill its participation commitment.

2. The division[state forester] will [apprise]notify a participating entity[county] in writing of any [deficiency]breach of the cooperative agreement[in Subsection R652-121-1100(1) within 30 days following the due date. Deficiencies not remedied ]

3. Failure to remedy a breach may [within 60 days shall ]result in revocation of [a county's]the entity's cooperative agreement pursuant to the terms of the cooperative agreement which shall preclude participation in the Wildland Fire Suppression Fund.

4. The revocation decision may be informally appealed to the State Forester within 30 days of the notice. The State Forester may conduct an investigation, hold an informal hearing, or request additional information. The final decision of the State Forester will be sent to the entity.

 

R652-121-500. Withdrawal from Participation in Fund.

1. An entity may withdraw from participation in the fund by revoking its cooperative agreement the end of the agreement's term by:

(a) informing the division, in writing, of the eligible entity's intention to revoke the cooperative agreement; or

(b) failing to sign and return it annual financial statement as described in R652-120-400(5)(e), unless an extension has been granted by the Division.

 

R652-121-600. Reinstatement of Participation in Fund.

1. An eligible entity that voluntarily withdrew participation in the Wildland Fire Suppression Fund pursuant to R652-121-500 may enter into a new cooperative agreement with the Division and become a participating entity.

2. An eligible entity whose participation in the Wildland Fire Suppression Fund was revoked by the division pursuant to R652-121-400 may enter into a new cooperative agreement with the Division and become a participating entity only after remedying the breach that resulted in the revocation. If the revocation was due to failure to fulfill the participation commitment for one or more years, the eligible entity shall agree to fulfill the previous participation commitments during the first three-year term of the new cooperative agreement in addition to the participation commitments for each year of the cooperative agreement.

 

[R652-121-1200. Definition of Presuppression Activities.

Presuppression activities are those activities related to wildfire prevention, preparedness and mitigation to reduce hazard or risk on eligible lands. Presuppression activities include fuel treatment, fuel breaks, defensible space, codes and ordinances, presuppression plans, wildland fire protection capability, wildland fire suppression training and other practices which reduce hazards or risks in the eligible areas.

 

R652-121-1300. Application Process For Presuppression Projects.

1. Presuppression project proposals must be submitted to the state forester in writing prior to implementation. The written proposal shall detail:

(a) the location of the project,

(b) the purpose of the project,

(c) the methods of accomplishing the project,

(d) the time line for completion of the project,

(e) the resources needed and their availability,

(f) itemized estimated cost for the project, and

(g) other data required by the state forester.

2. Presuppression project proposals may be submitted by the counties to the state forester from March 1 through April 1 and August 1 through September 1 of each year. The counties will be notified by May 1 or October 1 of the state forester's decision on the proposed projects.

 

R652-121-1400. Limitation on Presuppression And Fire Management Incentives.

1. The cost of a county's approved presuppression projects shall not exceed 75% of that county's annual assessment fee for the Wildland Fire Suppression Fund.

2. Presuppression projects may be cost shared at a rate between 25% and 75% of the total cost of the project. The cost share rate will be determined by the state forester for each project category on an annual basis. These cost share rates will be communicated to the counties by January 30 of each year

3. Presuppression projects may be proposed for multi-year funded projects. These multi-year funded projects may not exceed three years. Annual cost share payments to a county for a multi-year project may not exceed 75% of that county's annual assessment fee. Project proposals will be developed to reflect annual work plans and payments to complete the project over a specified number of years.

4. The costs that may be reimbursed for presuppression projects may be limited by legislative appropriation. The Division shall not authorize payments for presuppression projects that exceed 75% of the total annual assessment fees paid into the fund by participating counties.

 

R652-121-1450. Payment for Presuppression Projects.

1. Cost share payment for presuppression projects will be made to the counties when:

(a) the project is completed, inspected and certified by the area manager; and

(b) the county makes a written request for reimbursement with documented costs.

 

R652-121-1600. State Land Exclusion.

Wildland fire suppression costs on state-owned lands are not eligible to be covered from the Wildland Fire Suppression Fund.]

 

KEY: administrative procedures, wildland fire fund

Date of Enactment or Last Substantive Amendment: [January 4, 2002]2017

Notice of Continuation: September 25, 2012

Authorizing, and Implemented or Interpreted Law: 65A-8-207