Wildfire Map Raises More Questions, Concerns & Appeals: Will Legislature Finally Put An End To The Chaos?

Before we dive into the subject of this article, I know some of you are unfamiliar with our organization and who we are. I’ll take a second to introduce us and explain where we come from on wildfire policy.

Since 1989, our organization has provided free legal services to property owners on matters related to farming, ranching, timber production, housing production, industrial development, land use and more. As practicing land use attorneys, Dave Hunnicutt and I assist private property owners in submitting and obtaining permits from local governments and representing landowners before state and local agencies. You can learn more about the types of cases we take: Why Our Work Matters.

Our advocacy organization Oregon Property Owners Association (formerly Oregonians in Action) works in Salem to pass legislation that supports property rights and kill legislation that threatens property rights.

The information below is what we know to be true from our work on Oregon’s wildfire issue over the last four years. Dave and I were the last two lobbyists in Salem opposing Senate Bill 762 (which created our updated wildfire program) when it made its way through the Oregon legislature in 2021.  Since then, we’ve worked to eliminate the worst parts of the bill, improve other parts of the bill that have value and can help people, and above all – stop this program from being weaponized as a backdoor effort to prevent people from living in rural areas.

That work continues today. You can read my other blog post this week about the various ways rural living is under attack this Legislative Session and how you can help push back on those bills: Rural Oregon Is
Under Attack This Session: Take Action to Protect the Right to Live & Work Outside of Town.

The goal of today’s article is to help landowners understand Senate Bill 762, Senate Bill 80, our concerns with the Wildfire Hazard Map, how this map interplays with insurance, and how Oregon property owners can advocate for themselves.

We know that some people will not agree with our assessments, will not believe some of the things we are saying, and will not think that our advocacy goes far enough. That’s okay.

The purpose of this post is to get information out to property owners so that you are not left in the dark on what is happening with your government, and to do our best to help property owners advocate for themselves in ways that we think (based on our professional experience) will effectively move the needle.  

Let’s dive in.

HISTORY OF SB 762, SB 80 & THE STATE WILDFIRE HAZARD MAP

SB 762 (2021) was a very large piece of legislation with numerous concepts all wrapped up into one bill. Most parts of the bill were generally uncontroversial. There were concepts around using prescribed fire and other landscape treatments to reduce fire risk, mitigating impacts to public health from wildfire smoke, and requiring utility companies to take proactive steps to reduce the risk of fire starts.

With that said, the bill included one extremely controversial requirement – the establishment of a statewide wildfire risk map used to regulate people’s properties. Many people and organizations, including OPOA, hated this part of the bill from the beginning.

The reasons why people were concerned about this map back then are the same reasons people are opposed to it now. Can the state realistically make this map in a way that is accurate? How are you going to regulate people on a map without fact-checking their properties first? What about all the good things people are doing to manage their properties – why aren’t those things considered? What about irrigation? How will this affect property values and insurance?

We asked these questions and demanded answers. We told the legislature that the maps would be extremely controversial and unpopular in rural Oregon. We begged the legislature to reconsider the mapping proposal. But despite these very real and legitimate concerns and opposition from many groups (ours included), the bill passed.

After that, the state got to work on creating the map and implementing the rest of the bill. Shortly after the first round of draft maps were released in July, 2022, all the concerns and questions that people had raised from the beginning came crashing down on the State. After significant public outcry, the Legislature went back to the drawing board with SB 80 to try and fix some of these issues. 

SB 80 made several changes to the statewide wildfire hazard map. One of the key differences is that SB 80 instructed the State Board of Forestry to establish only three classes of wildfire “hazard” categories instead of five “risk” categories. 

Additionally, SB 80 updated the mapping methods to include more detailed geospatial processing and modeling of wildfire hazard components. This includes adjustments for irrigated agriculture and the use of potential burn probability and fire intensity models. The bill also made important clarifications on appeals and greatly increased the level of public notice and process the agencies had to do when rolling out the new map.

You can read in detail how SB 80 changed the maps, and how Oregon State University and the Department of Forestry interpreted SB 80 to create the map we have today:

• Wildfire Hazard Map
• Technical Guide

OUR CONCERNS WITH THE FINAL MAP & OTHER ISSUES:

While SB 80 made the map better, there are still serious issues with the accuracy of the map and some significant policy issues with this whole idea. From our review of the map, conversations with property owners, and understanding of the issues, here’s our concerns on the biggest issues:

1. Parcel-By-Parcel Detail & New Regulations

We have said from the beginning that there is no way the state of Oregon can create a map on a tax lot-by-tax lot basis that is accurate and defensible enough to be used to regulate people and their property.

SB 762 and SB 80 require property owners who are mapped both High-Hazard and in the wildland urban interface (WUI) to comply with defensible space regulations and fire-hardening standards if they build or remodel homes. Those regulations are applied not at the local level and not after a site inspection where conditions found on the property may warrant those measures. They are applied based solely on this map.

Now, this is where some folks are not going to agree with us, but we see value in the substance of defensible space and home hardening, and we’ve written about that before. We would both voluntarily do those things on our properties because the science as to how they protect homes is solid and protects the property owner. But we would much rather see a process where the government (state or federal) provided incentives for property owners to voluntarily do the work, rather than a mandate that they do so. We believe in the carrot over the stick.

Now, if the state wants to mandate compliance with defensible space and home hardening requirements, we think (1) the state should provide assistance to people who are unable (financially or physically) to comply; and (2) people should never be fined if they cannot comply or can’t afford to comply.

Property owners should not be penalized, fined, or harassed by the government if they can’t meet those standards, especially when the government is not maintaining their own public lands. 

From a policy standpoint, home hardening and defensible space are important tools to push back on groups who curry favor in the Oregon legislature and demand that no homes should ever be built in areas of high wildfire hazard.

Oregon property owners need to understand – there are prominent groups and legislators in the Oregon legislature that support the idea that people should not be allowed to live in areas mapped as high hazard on the state maps.  In a state where the state legislature is typically hostile to the voices of rural Oregonians, that is a very real threat we are fighting against.

Check out this piece of Legislation proposed this session in the Senate Wildfire Committee: Senate Bill 79.  

And this report where advocates are openly stating that they do not want new homes or structures in wildfire risk areas or the WUI at all: 1000 Friends of Oregon Wildfire Report:

Avoid development in high risk areas. New development should be kept out of forests, rangelands, farmlands, and the wildland-urban interface.

Minimize structures in high risk areas to those necessary for farm and forest use. In high risk areas, structures should be limited to those necessary for forest or agricultural use. Do not allow new non-farm and non-forest uses in resource zones where these uses will increase wildfire risk or hazard. 

Again, while no one likes regulations (especially us), being able to argue that we can build fire hardened homes and property owners can do things to protect their properties through defensible space helps us push back against those who don’t want any people living (or rebuilding) in high-hazard areas.

Our goal is to make sure that rural Oregonians can continue to live and use their properties in rural areas, despite wildfire risk.

2. Accuracy of Fire Hazard & WUI

While I could write a long technical paragraph raising issues with the underlying modeling, the reality is that this map doesn’t pass the “sniff test” for most folks, and I agree.

First, because of how the bills were drafted, OSU and ODF (the map creators) can’t consider all the factors that truly affect fire hazard and the risk of significant structural loss for any particular property.   If the state wants to regulate property on a parcel-by-parcel basis, shouldn’t the state look at the parcel and examine what the property owner has done to safeguard it from fire?

For example, the map does NOT factor in whether people have fire-hardened their homes, done defensible space, or any other proactive steps to reduce the risk of fire starts and ember spread on their properties. There is no consideration of how close properties are to fire stations or water sources. You could be next door to a fire station and be labeled as the same hazard as someone who is 30 minutes away from the nearest fire station.

Second, the map does not use real-time data (because it can’t) and there is no requirement for anyone to visit the property and do a site inspection before it is mapped. Simply put, the map creates a snapshot in time based on limited data and factors to identify fire hazard, without considering real-time conditions and actions people are doing to change that hazard. The map is updated every five years, but that’s a long time between updates.

Third, some of it just doesn’t make sense. How is it that one house in a subdivision is High-Hazard, but the house 10-ft away Moderate-Hazard?  We know there’s a technical explanation, but it doesn’t make sense to the public.

Last, how the WUI (wildland urban interface) is modeled and displayed is crazy. It looks like an amoeba, has holes and gaps, and is applied on a tax lot by tax lot basis, leaves some properties where only a tiny corner is in the WUI, but the rest of the property isn’t. The WUI layer raises so many questions about how that is supposed to be interpreted, and where the regulations apply and don’t apply.

Creating law is both an art and a science. There are points where art must supersede science. How can you create a map of fire hazard that does not give people credit for the good work they do on their properties, even if science suggests that’s the best approach? How can you tell people they are in perpetual wildfire risk no matter what they do or no matter what changes? How can you regulate people with a map that doesn’t make sense and people can’t read?

The map doesn’t make sense to most people, so people don’t trust it, which means people will never agree with it.

3. Property Values

We have also been concerned from the beginning about how this map will affect property values. There is no homeowner or property owner in the world who wants their property labeled as “high wildfire hazard.”  Doing so inherently devalues property.

Many people have been posting, writing, and talking about how their properties have been devalued from this and how they have struggled to sell homes based on the designation. This becomes impossibly frustrating when property owners are told they can never change their hazard rating, no matter how well they care for their property.

There is no fix that can be made to the map to solve this issue. The only way to solve this problem is to eliminate a map that identifies properties on a parcel-by-parcel basis.   

4. Insurance

Please read this part carefully. We know that properties are being dropped from insurance because of wildfire risk. This is 100% fact. HOWEVER, insurance companies are not using the State Wildfire Hazard Map to make that decision. Insurance companies in Oregon have their OWN maps. They have their OWN modeling. They have for a long time. It is also illegal for any insurance company to use the State Wildfire Hazard Map when making decisions about insurance.

We know people believe that their insurance premiums have been raised as a result of the state maps, or they’ve lost their insurance.  We understand this.  To help explain this issue, we asked the Executive Director of the NW Insurance Council, which is the trade association that represents all the insurance companies, to write a guest blog a few months ago. You can read his article here: Guest Post: The Oregon Wildfire Hazard Map Is Back – And It Can’t Affect Your Insurance! – Oregon Property Owners Association.

Please read this whole article. He explains in detail what insurers use to help determine where they will sell or renew property policies and set premiums. He also reiterates, insurance companies do not use – and have never used – the state Wildfire Hazard Map to make decisions about which properties to insure.

Please don’t misread what we are saying.  We are not saying that wildfire hazard is not used by insurance companies to make decisions on issuing insurance.  We all know they do.  What we are saying is that insurance companies are not using the state’s wildfire map to make those decisions, because they have their own maps, and have had them for years.  They don’t need the state map.

I tell all of you this not because insurance isn’t important – it’s actually the most important issue of all and the one that concerns us the most – but we need to focus energy in the right places. If the State Wildfire Hazard Map was eliminated tomorrow, insurance would still be a problem. This is because insurers have their own maps and modeling.

HOW TO ADVOCATE & PROTECT YOUR LAND:

1. APPEAL, APPEAL, APPEAL!

Do not listen to anyone who tells you not to appeal. If you receive a notice that your property is in the WUI and High-Hazard, and you disagree with that designation, appeal. Do not miss your window to protect and preserve your right to appeal. According to ODF’s rules (see OAR 629-044-1041), your appeal must be made within 60 days of the following events, whichever is later:

(a) The date that the wildfire hazard map or an update to the hazard map is posted on Oregon Explorer Map Viewer website; or

(b) The date that a correctly addressed notice is deposited with the postal service for mailing to the affected property owner.

This means that your appeal deadline is going to fall somewhere near the end of February or early March – make sure you know the exact date when an appeal must be filed!  If you miss this window to appeal, you will not be able to challenge the designation. Please do not miss your chance to appeal if you want to.

1. ASK FOR LEGISLATIVE CHANGES! (Most Important)

The real action that is going to move the needle on this issue is demanding legislative changes to the bills that created the map. As we just said, make sure to appeal your designation, but know that the battle to win a contested case on this will be very difficult and likely extremely expensive. This is why we have been focusing our energy on trying to convince legislators to change the language of the bills.

Here is how you can help:

1. Contact your legislator and other legislators of importance. If you do not know your legislator, you can find them here: FIND MY LEGISLATOR. You can find which legislators are on the Senate Wildfire Committee and House Emergency Management Committee and get their contact info by clicking their names here: Senate Wildfire Committee + House Emergency Management Committee.

2. Write to the Legislators with respect. Please do not name-call or use profanity. They will not listen to you if you use personal attacks or profanity. Your power is in the facts and how this is affecting your property. Be sure to touch on:
   • Where you live and if your property is in the WUI and High Hazard.
   • How this affects your property values. For most of you, your home and property are your most valuable asset. No one should take that from you. Explain if you have had trouble selling your home because of this. Provide documentation if possible.
   • Express your concerns about the costs of compliance with some of these regulations.
   • Express concerns about the accuracy of the map. Provide documentation if possible.
   • Explain how complicated and expensive the appeals process will be. Explain the costs of having to hire an attorney.
   • Ask them to please amend SB 762 to eliminate the parcel-by-parcel hazard map that is used to regulate properties and to focus on protecting homes and people with incentives and voluntary compliance!

Again, please write with respect and avoid any personal attacks. They know how frustrated people are and they understand that this is scary for people. If you use personal attacks, your email will be disregarded, and they will not take this seriously.

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.