Prescribed burning Requirements
The Natural Resource Code, chapter 153 confirms the LANDOWNER'S RIGHT TO CONDUCT BURNS (https://statutes.capitol.texas.gov/docs/NR/htm/NR.153.htm).
So clearly, as a landowner, I can burn my own place when I have my firebreaks, my equipment, and my helpers prepared, isn’t it?
Yes you can, but there are many additional considerations:
· Legal requirements limit where, what, and when you can burn; they limit smoke; and they prescribe whom to notify.
· Landowner liability may be limited, but only if the burn is conducted according to specific rules (which you are likely not to meet).
· There are many other considerations, such as a burn Ban.
Below are the legal considerations for landowners or operators who conduct prescribed burns on their land in Texas without hiring an Insured and Certified Prescribed Burn Manager.
In Texas prescribed burning is regulated under TITLE 30: ENVIRONMENTAL QUALITY: PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY: CHAPTER 111. CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER: SUBCHAPTER B. OUTDOOR BURNING.
(https://texas-sos.appianportalsgov.com/rules-and-meetings?chapter=111&interface=VIEW_TAC&part=1&subchapter=B&title=30).
Additional legal requirements can be found in Texas Administrative Code: Title 4 – AGRICULTURE: Part 13 - PRESCRIBED BURNING BOARD, in chapters 225 through 231. (https://texas-sos.appianportalsgov.com/rules-and-meetings?interface=VIEW_TAC&part=13&title=4 ).
No person may cause, suffer, allow, or permit any outdoor burning within the State of Texas, except as provided by this subchapter …
Note: Unless an exception applies, you cannot legally burn. There are numerous exceptions. Examples are:
- §111.211 prescribed burning:
- §111.209 (1) domestic waste.
- §111.209 (4) on-site burning of trees, brush, branch trimmings etc. that come from the property.
Beware! In nonattainment areas (i.e. hampered by excessive air pollution) the exception is limited to vegetation generated as a result of right-of-way management or land-clearing operations. In these nonattainment areas there is no exception for the burning of materials resulting from routine property cleanup or from ecological restauration (You will need a prescribed burn for that.) In a county that is not in a nonattainment area, there is an exception for the burning of those materials.
Unfortunately several of the NTXPBA counties are currently in a nonattainment area: Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise counties
Outdoor burning shall be authorized for:
(1) Prescribed burning for forest, range and wildland/wildlife management, and wildfire hazard mitigation purposes, with the exception of coastal salt-marsh management burning.
Such burning shall be subject to the requirements of §111.219 of this title (relating to General Requirements for Allowable Outdoor Burning), and
structures containing sensitive receptors must not be negatively affected by the burn.
When possible, notification of intent to burn should be made to the appropriate commission regional office prior to the proposed burn. Commission notification or approval is not required.
(2) Coastal salt-marsh management burning conducted in… [certain counties with added requirements].
Note: “receptors” can be people or animals; “structures containing sensitive receptors” can be schools, hospitals, dairy operations, etc. The main concern here is people or animals being negatively affected by smoke.
Note: §111.219 contains numerous requirements that apply:
Outdoor burning which is otherwise authorized shall also be subject to the following requirements when specified in any section of this subchapter.
(1) Prior to prescribed or controlled burning for forest management purposes, the Texas Forest Service shall be notified.
(2) Burning must be outside the corporate limits of a city or town except where the incorporated city or town has enacted ordinances which permit burning consistent with the Texas Clean Air Act, Subchapter E, Authority of Local Governments.
(3) Burning shall be commenced and conducted only when wind direction and other meteorological conditions are such that smoke and other pollutants will not cause adverse effects to any public road, landing strip, navigable water, or off-site structure containing sensitive receptor(s).
(4) If at any time the burning causes or may tend to cause smoke to blow onto or across a road or highway, it is the responsibility of the person initiating the burn to post flag-persons on affected roads.
Note: On a two-way road, at least two flag-persons will be needed. Flag-persons may need training approved by the Texas Department of Transportation to direct or control traffic.
(5) Burning must be conducted downwind of, or at least 300 feet (90 meters) from any structure containing sensitive receptors located on adjacent properties unless prior written approval is obtained from the adjacent occupant with possessory control.
Note: Burning requires prior written approval for all structure containing sensitive receptors that may be affected by your smoke.
(6) Burning shall be conducted in compliance with the following meteorological and timing considerations:
(A) The initiation of burning shall commence no earlier than one hour after sunrise. Burning shall be completed on the same day not later than one hour before sunset, and shall be attended by a responsible party at all times during the active burn phase when the fire is progressing. In cases where residual fires and/or smoldering objects continue to emit smoke after this time, such areas shall be extinguished if the smoke from these areas has the potential to create a nuisance or traffic hazard condition. In no case shall the extent of the burn area be allowed to increase after this time.
Note: Beware: smoke may behave very differently in the evening and at night.
(B) Burning shall not be commenced when surface wind speed is predicted to be less than six miles per hour (mph) (five knots) or greater than 23 mph (20 knots) during the burn period.
(C) Burning shall not be conducted during periods of actual or predicted persistent low-level atmospheric temperature inversions.
(7) Electrical insulation, treated lumber, plastics, non-wood construction/demolition materials, heavy oils, asphaltic materials, potentially explosive materials, chemical wastes, and items containing natural or synthetic rubber must not be burned.
For further reading: https://agrilifelearn.tamu.edu/s/product/texas-open-burning-rules-and-regulations/01t4x000004OUuuAAG .
Texas uses the ordinary negligence standard for prescribed burning. This imposes liability if you fail to exercise reasonable care under the circumstances of the burn. You may have to convince a judge or a jury that you are educated, that you have experience, and that you took all reasonable precautions.
Natural Resource Code, chapter 153, Section 153.047 lists minimum standards for prescribed burning.
Note: If you do not hire an Insured and Certified Prescribed Burn Manager, you are the ‘Burn Boss’.
The minimum standards include:
(1) ensure that prescribed burning is the controlled application of fire to naturally occurring or naturalized vegetative fuels under specified environmental conditions in accordance with a written prescription plan:
(A) designed to confine the fire to a predetermined area and to accomplish planned land management objectives; and
(B) that conforms to the standards established under this section;
(2) …
(3) establish appropriate guidelines for size of burning crews sufficient to:
(A) conduct the burn in accordance with the prescription plan; and
(B) provide adequate protection for the safety of persons and of adjacent property;
(4) include standards for notification to adjacent land owners, the Texas Commission on Environmental Quality, and local fire authorities; and …
Note: You do need a burn plan. A list of burn plan templates can be found at the website of the Prescribed Burn Alliance of Texas: www.pbatexas.org at https://www.pbatexas.org/burn-plan-templates-info-1 . The NTXPBA prefers to use the Texas Parks & Wildlife template (MS Word). An explanation of the various items in a burn plan is at https://tfsweb.tamu.edu/forest-land/prescribed-fire/prescribed-burning-burn-managers/writing-a-burn-plan/ .
(a) In this section, "burn boss" means an individual responsible for directing a prescribed burn under a written prescription plan described by Section 153.047.
(b) … if a prescribed burn is conducted in accordance with a written prescription plan described by Subsection (d) and Section 153.047, a person may be held liable for property damage, personal injury, or death caused by or resulting from the burn only if the person:
(1) is the burn boss; and
(2) is otherwise liable under other law.
Note: Fortunately the landowner liability can be limited under certain conditions:
(b) Except as provided by Subsection (c), a burn boss is not liable for property damage, personal injury, or death caused by or resulting from the burn in excess of the insurance requirements established by the board for certified and insured prescribed burn managers under Section 153.046 if the burn boss:
(1) has completed an accredited prescribed burning training course approved by the board;
(2) has satisfied the minimum experience requirements prescribed by the board; and
(3) has liability insurance coverage equal to or in excess of the amounts provided by Section 153.082(1).
Sec. 153.082 (1) Liability insurance coverage:
(A) of at least $1 million for each single occurrence of bodily injury or death, or injury to or destruction of property; and
(B) with a policy period minimum aggregate limit of at least $2 million.
Note: With respect to (2): the minimum experience requirements for a landowner seem to be the same as those for a Certified and Insured Prescribed Burn Manager (CIPBM) namely:
(A) a minimum of three years' experience of prescribed burning;
(B) a minimum of thirty days' experience conducting prescribed burns; and
(C) a minimum of five days' experience as the individual responsible for all aspects of the prescribed burn.
Item (C) requires you to be burn boss before your liability is limited. You can be burn boss under the supervision of a CIPBM.
For further reading: https://agrilife.org/texasaglaw/files/2021/10/Prescribed-Burning-Liability-Considerations.pdf .
The Category Day (CD) system helps determine smoke dispersion potential, with higher categories allowing for better dispersion and lower categories restricting or prohibiting burning to minimize impacts on populated areas and resources.
The Category Day index (CD) is calculated using the Ventilation Rate (VR), which is defined as:
VR = Mixing height (in feet) X transport speed (in mph).
The CD is then determined by:
CD I: VR < 14,500
CD II: 14,500 <= VR < 29,000
CD III: 29,000 <= VR < 58,000
CD IV: 58,000 <= VR < 117,000
CD V: VR > 117,000
Buns are not permitted for Category Day I and Category Day II.
Note: You can get mixing height and transport wind information from the National Weather Service at https://forecast.weather.gov : enter your location; select Go; select Hourly Weather Forecast; under Fire Weather select Mixing Height and Trans. Wind; select Submit. You can find even more detailed fire-related weather information at the Fire Weather Dashboard https://www.weather.gov/dlh/fwd . Use ‘Search’ to enter your location; and scroll down.
Note: There are many other weather-related factors that should keep you from burning that are not discussed here.
A landowner who is not hiring a Certified and Insured Prescribed Burning Manager is not allowed to burn when there is a burn ban. (Some counties have exceptions, but there likely is a good reason for the burn ban.)
Note: you can find burn ban information at https://tfsweb.tamu.edu/wildfire-and-other-disasters/burn-bans-and-information/ .
Many counties have additional regulations.
Note: For example in Wise County one must dial the Fire Marshal's office to check burn ban status (940-627-5870 Option 4) and fill out a controlled burn log at https://app.smartsheet.com/b/form/066f8797da6b4deaa7df8ae1efb4b65b .
Many notifications are required by law, some are optional:
Required, before the burn
· Texas Commission on Environmental Quality (TCEQ), Regional office.
o Region 3, Abilene (32) 698-9674
§ Counties: Archer, Baylor, Brown, Callahan, Clay, Coleman, Comanche, Cottle, Eastland, Fisher, Foard, Hardeman, Haskell, Jack, Jones, Kent, Knox, Mitchell, Montague, Nolan, Runnels, Scurry, Shackleford, Stephens, Stonewall, Taylor, Throckmorton, Wichita, Wilbarger, Young.
o Region 4, Dallas/Fort Worth (817) 588-5800
§ Counties: Collin, Cooke, Dallas, Denton, Ellis, Erath, Fannin, Grayson, Hood, Hunt, Johnson, Kaufman, Navarro, Palo Pinto, Parker, Rockwall, Somervell, Tarrant, Wise.
§ You need to provide information well in advance of the burn. To learn how to submit a prescribed burn application you can call the regional office at the above number or email R4DFWBurn@tceq.texas.gov. A good contact person is Olivia Rigsby, 817-588-5902.
o Region 9, Waco (254) 751-0335
§ Counties: Bell, Bosque, Brazos, Burleson, Coryell, Falls, Freestone, Grimes, Hamilton, Hill, Limestone, Lampasas, Leon, Madison, McLennan, Milam, Mills, Robertson, San Saba, Washington.
· The county commissioners’ court.
Note: You can find the your county’s information by entering your ZIP code or via an interactive map at
https://texascountiesdeliver.org/mycounty/;
Select ‘Learn More’ to find the county’s website Click Visit at the right). The way you can find the commissioners’ court varies by county.
For example, you can find that the Wise county website is https://www.co.wise.tx.us/ ; the commissioners’ site is https://www.co.wise.tx.us/158/Commissioners-Court ; and currently the commissioner for district 3 is Danny Lambert.
· The county judge.
Note: you can find the name and address for the county judge in your county via
https://www.sos.state.tx.us/elections/voter/judges.shtml . For example you can find that currently the county judge for Wise County is J.D. Clark, P.O. Box 393, Decatur 76234.
· Emergency dispatch (911).
· An “occupant with possessory control” for each “structure containing sensitive receptors” within 300 feet from the burn area. A written approval must be obtained for each such structure.
Required, before and after the burn
· By law, you are required to notify Texas A&M Forest Service prior to conducting any prescribed burning for forest management purposes. However, anyone is encouraged to notify the Forest Service prior to any prescribed burning.
Note: For day-of notification, download the Rx Burn Notification Form (https://survey123.arcgis.com/share/694075d1872046e08b127cf8a2fb1503 )
and email it to rxburns@tfs.tamu.edu.
· The county sheriff’s office.
Note: You should be able to find the sheriff’s office on the county website. For example in Wise county that information is at https://www.co.wise.tx.us/270/Sheriff .
The Wise county website has a very handy directory for how to contact the various entities at https://www.co.wise.tx.us/Directory.aspx .
Optional- but encouraged - before the burn
· Your volunteer Fire Department.
Note: search at https://fireconnect.tfs.tamu.edu/SearchFireDepartments/Index .
· Neighbors that may see the flames or smell the burn.
Optional- but encouraged - after the burn
· Texas Prescribed Burn Reporting System, Survey123 platform, to report your burn activities and treatments. https://survey123.arcgis.com/share/1c8c1c2f1a2f46be90852fcc7c689510 .
· Nationwide research: report anonymously at www.ok-pba.org. The form is at https://docs.google.com/forms/d/e/1FAIpQLSf01u-KlLgLxKt5fhX2wvzogQDYI44OQ5Cb0wnszPG-zHQ7qw/viewform
For further reading: Useful information on how to communicate about prescribed burning can be found at https://agrilifelearn.tamu.edu/s/product/prescribed-burning-communication-kit/01t4x000002dFW9AAM .
TCEQ regions can be found at https://www.tceq.texas.gov/downloads/publications/m/areas-regions-watermasters-m-70.pdf or looked up at https://www.tceq.texas.gov/agency/directory/region/county.html
If you want NTXPBA to support a prescribed burn on a property you own or operate, you will want to follow the following guidelines:
You are strongly encouraged to attend formal training prior to conducting a prescribed burn on their ranch.
You need a prescribed burn plan prepared by yourself or someone such as NRCS , Texas Agricultural Extension Service, or Texas Parks and Wildlife, using a standard template available for the State of Texas burn plan.
The burn plan should be available for review by the NTXPBA no less than thirty (30) days prior to the anticipated date for conducting the prescribed burn.
Your prescribed burn plans shall be reviewed by the NTXPBA Board of Directors or persons so designated to do so by the Board of Directors.
You, as the landowner/operator, will be burn boss when carrying out a prescribed burn on his property unless such designation is given in writing to some other capable person by the landowner/operator.
A burn boss must have attended a prescribed burn training prior to conducting his own or any other prescribed burn.
A critical number of trained personnel needed to conduct each prescribed burn will be determined by the size and complexity of the prescribed burn. This number of personnel and their duties will be designated in your prescribed burn plan.
You, as the landowner/operator, will be liable for fires on your property. Proof of liability insurance shall be required as part of the prescribed burn plan before the NTXPBA will assist with a prescribed burn.
You, as the landowner/operator, will be responsible for having fire lines prepared in advance of his prescribed burn.
Fire lines shall meet the specifications outlined in the prescribed burn plan and shall be inspected by county chapter directors or their designee prior to review of the prescribed burn plan.
NTXPBA members are encouraged to participate in as many prescribed burns as possible. Participation provides members with burning experience, helps them become acquainted with other members having similar goals and objectives, and builds an experienced team. The fire boss, or his appointee, shall be responsible for recording member participation for his prescribed burn and shall supply this information to the NTXPBA secretary for record keeping. Exceptions shall be made for members not physically able to actively participate in prescribed burns.