Committee gives conditional approval to interim DNCR fire rules after debate over Category 3 authority

The Joint Legislative Committee on Administrative Rules on May 16 gave conditional approval to interim fire-safety rules proposed by the Department of Natural and Cultural Resources (DNCR), after members questioned whether the agency exceeded statutory authority by regulating kindling size for "category 3" fires.

The committee’s conditional approval came after agency staff acknowledged an outstanding question about a section of the rule text (listed in the packet as NCR 5601.04) that sets kindling-size limits for Category 1, 2 and 3 fires. Patrick Hackley, director for the Division of Forest and Lands, told the committee the agency would return on May 16 to address the concern and left a written explanation with members. “These are the rules that we promulgate under our authority,” Hackley said.

Committee staff and members said the heart of the objection is whether the statute authorizes the agency to regulate kindling for Category 3 fires. An OPLC attorney, Attorney Muniz, told members the committee could either remove the disputed section via conditional approval or approve the interim rules and allow the agency’s already-underway regular rulemaking to resolve the issue. “You could do a conditional approval to remove that section,” Muniz said, while also noting the agency has draft language for the regular rulemaking process.

Members pressed the agency on near-term enforcement. Hackley said forest rangers currently lack the clear authority to enforce some burn-permit requirements while the old rules have expired and the new rules are not finalized. He said DNCR will continue to operate under that constraint until final rules are adopted. “We really need to get them approved as soon as possible,” Hackley said, adding that the gap affects private landowners seeking to burn brush more than state parks operations.

Committee members asked about the timeline to finish formal rulemaking. An attorney estimated the process would take “at a minimum, we’ll take 3 months.” Members also noted that civil liability under statute for damaging another’s property by a fire would remain in force even if the interim rules were delayed.

Representative McGuire moved to approve the interim rule; Representative Lynn seconded. After discussion and an objection by at least one member who said rules must be consistent with statute even on an interim basis, the committee recorded a conditional approval for interim rule 25-1.

The committee record shows the agency will revisit the disputed kindling provision and proceed with regular rulemaking to resolve statutory-interpretation questions before final adoption. The conditional approval allows interim enforcement language to be in place while attorneys and the agency refine the wording.

The committee also noted practical consequences: without finalized rules, local fire wardens and forest rangers have less formal enforcement authority over permits, and DNCR staff emphasized the agency will return with revised language addressing the committee’s concern.

Implementation notes: the committee’s action is a conditional approval requiring DNCR to address the specific authority question in subsequent rulemaking; the agency projected formal rulemaking would take months, and DNCR told the committee it will return with a focused amendment addressing NCR 5601.04.