Is your home or business at risk of being destroyed by a wildfire? If so, how high is the risk? As a result of the recent passage of Senate Bill 762 by the Oregon legislature, Oregon property owners are about to find out how the state views their property. Unfortunately, many people aren’t going to like the state’s answer.
As discussed in the legislative article in this issue, one of the primary bills passed by the 2021 Oregon legislature was Senate Bill 762. SB 762 makes sweeping changes to Oregon wildfire policy, affecting how the state responds to wildfires and potentially mandating activities that property owners must take in order to lower their wildfire risk.
Unlike before, where regulations on property uses relating to wildfire were the primary responsibility of counties, SB 762 shifts control from local governments to four primary state agencies – the Oregon Department of Forestry (ODF), Oregon State Fire Marshal (OSFM), the Oregon Department of Land Conservation and Development (DLCD), and the Oregon Department of Consumer and Business Services (DCBS). SB 762 gives each agency a new role in shaping wildfire policy as it relates to private property.
Under the bill, ODF is in charge of creating a statewide map of wildfire risk. This map will serve as the state’s map for all wildfire risk efforts. ODF is directed to map every Oregon parcel and assign a wildfire risk to the property. From a 10,000 acre ranch in Union County to a condo in Lake Oswego, ODF will classify every parcel in one of five wildfire risk classes – extreme, high, moderate, low, and no risk.
Once ODF completes its risk mapping and assigns a risk category to each individual property, they must then define and map the wildland-urban interface (WUI). As it sounds, the WUI is supposed to consist of those areas where a mix of housing and wildland fuels exist. The mixing of both is the interface.
Using the best available fire science and common sense, the WUI should include areas where a cluster of homes mixes with unkept wild areas. Get too far into town and there’s “urban” but no “wildland”. Get too far out of town and there’s “wildland” but no “urban”. It’s those areas where both clustered development and wildland fuels that can rapidly spread a fire are present that should be mapped as the WUI.
Unfortunately, the environmental industry and some ardent supporters of SB 762 are using the most recent wildfire to create policies that have nothing to do with wildfire prevention. For these groups/legislators, an overly broad definition of WUI is helpful, as it subjects more property to regulation by OSFM, DCBS and DLCD (more on that below) while at the same time, providing more opportunity and money from the state for grants and “studies”. Follow the money and power and you’ll figure out what these folks want.
In fact, the supporters of SB 762 have made their intent clear. Until OPOA and the Oregon Farm Bureau were able to cobble together a bare majority of legislators to reject the proposal, SB 762 contained a definition of WUI that was so broad it would have required ODF to map a single ranch house on a 10,000 acre ranch as “urban” and include it on the maps. Fortunately, the legislature removed that definition from the bill, preventing it from being locked into statute forever.
The jury is still out on whether ODF will map the WUI based on science and logic and whether they’ll adopt maps that capture areas where there is truly an interface between urban development and wildland fuels without going overboard by including rural areas with no urban pressure. ODF has formed a Rule Advisory Committee (RAC) to guide the agency, and OPOA is a member of the RAC. We’re doing our best to keep the agency focused on science and common sense.
Why are the WUI definition and ODF maps important? Because once the maps are created, the other three agencies (OSFM, DCBS, DLCD) prepare rules for some or all of the mapped areas. SB 762 requires OSFM to draft “defensible space” rules for structures on properties within the WUI that are labeled as extreme risk or high risk.
Defensible space regulations are rules that will regulate both new and existing development in the WUI. SB 762 gives OSFM the authority to require removal of wildland vegetation, crops, managed timber, and landscaping. The agency may also regulate building locations, proximities, setbacks, and may require the construction of water retention facilities as a condition of siting a structure.
The potential impact of the OSFM defensible space regulations to property owners is significant and worrisome. Farmers may find themselves being forced to remove crops near a barn, a rural resident may be forced to significantly alter their landscaped yard, a property owner may be prohibited from building a home on their property, and a small woodlot owner may be required to remove (and not replant) a stand of timber near a structure. These rules apply to new and existing development – there is no grandfather clause for existing structures.
Given the potential impact to property owners, the size and location of the WUI is critical, as well as a correct mapping of the extreme and high risk wildfire areas. That risk is heightened based upon the role of DCBS under SB 762.
DCBS is the agency in charge of the state’s residential and commercial building codes. Unlike other states, Oregon has a statewide building code for both homes and non-residential structures. SB 762 requires DCBS to create new amendments to the residential building code for dwellings and accessory structures for high and extreme wildfire risk properties in the WUI. The new building code standards are intended to “harden” homes by using materials and construction techniques that make the structure safer for human occupants during a wildfire event.
The new DCBS rules will apply to both new construction and also to exterior remodeling of existing dwellings/accessory structures. During the hearings on SB 762, experts indicated that the new construction requirements could add as much as $100,000 to the cost of a new home or the remodeling of an existing structure. Given that the high and extreme wildfire risk areas will apply in both urban and rural areas, the DCBS rules could have significant impacts on housing prices, which are already at historic highs.
Finally, SB 762 directs DLCD to review the existing land use laws and recommend needed changes to the 2023 Oregon legislature. Fortunately, the bill does not require DLCD to make changes, only to report to the legislature. But the definition of WUI and the wildfire risk classifications are likely to play a significant role in what changes the agency recommends to the legislature, and will probably lead to a contentious bill in the 2023 session that tries to further erode property rights in Oregon. Having a reasonable definition of WUI and science based risk classifications will better ensure any new restrictions are limited, if they are proposed.
SB 762 is a broad bill with multiple impact points for property owners. OPOA will continue to update you as the agencies undertake their work, and will remain active in opposing proposals that are overbroad and unnecessary.