Cal. Code Regs. tit. 14 § 1038

Current through Register 2024 Notice Reg. No. 50, December 13, 2024

Section 1038 - [Operative 1/1/2025] Exemption

Timber Operations conducted pursuant to this section are exempt from the Plan preparation and submission requirements (PRC § 4581) and from the completion report and Stocking report requirements (PRC §§ 4585 and 4587) of the FPA. Timber Operations conducted under any notice of exemption described herein shall be limited to one (1) year from the date of receipt by the Director, and shall comply with all operational provisions of the FPA and District Forest Practices Rules applicable to "Timber Harvest Plan", "THP", and "Plan" definitions per 14 CCR § 895.1. In-lieu practices within WLPZs as specified under Article 6 of these Rules, exceptions to the Rules, and alternative practices are not allowed. The following types of Timber Operations are exempt:

(a) Harvesting Christmas trees.

(b) Harvesting dead trees, Dying Trees, or Diseased Trees of any size, fuelwood or split products in amounts less than ten (10) percent of the average volume per acre, or the removal of Slash and Woody Debris that is not located within a WLPZ.

(c) The cutting or removal of trees in compliance with PRC §§ 4290 and 4291, which eliminates the vertical continuity of vegetative fuels and the horizontal continuity of tree crowns for the purpose of reducing flammable materials and maintaining a fuelbreak to reduce fire spread, duration and intensity. The requirements of this subsection shall not supersede the requirements of PRC § 4291.

(1) Only trees within one-hundred-fifty (150) feet from any point of an Approved and Legally Permitted Structure that complies with the California Building Standards Code may be harvested, except as specified in 14 CCR § 1038(c)(6).

(2) The following Silvicultural Methods may not be used: clearcutting, Seed Tree removal step, shelterwood removal step.

(3) All surface fuels created by Timber Operations, within one-hundred-fifty (150) feet of an Approved and Legally Permitted Structure, that could promote the spread of wildfire, including Slash or Woody Debris, exceeding one (1) inch in diameter, and brush, shall be chipped, burned, or removed within forty-five (45) days from the start of Timber Operations.

(4) In addition to the surface fuel treatment described in 14 CCR § 1038(c)(3), the Harvest Area must meet the vegetation treatment standards in PRC § 4584(i)(1) to (2)(A) illustrated in Board Technical Rule Addendum No.4 within one (1) year from the receipt of issuance of notice of acceptance. This paragraph does not apply to 14 CCR § 1038(c)(6).

(5) Timber Operations conducted under this subsection shall conform to the applicable city or county general plans, city or county implementing ordinances, and city or county zoning ordinances within which the notice of exemption is located. The LTO, timberland owner, or if applicable the RPF, shall certify that the city or county has been contacted and the notice of exemption conforms with all city or county regulatory requirements.

(6) Trees that are located from one-hundred-fifty (150) feet up to three-hundred (300) feet from any point of an Approved and Legally Permitted Habitable Structure that complies with the California Building Standards Code may also be cut and removed for the purpose of reducing flammable materials and maintaining a fuelbreak provided the following conditions are met:

(A) The post-harvest stand shall be primarily comprised of healthy and vigorous Dominant and Codominant trees well-distributed throughout the treated area and meet the stocking standards consistent with 14 CCR § 913.2 [933.2, 953.2].

(B) The QMD of trees greater than eight (8) inches dbh in the pre-harvest Harvest Area shall be increased in the post-harvest stand.

(C) All Slash shall be lopped, removed, chipped, piled and burned, or otherwise treated to achieve a maximum post-harvest depth of eighteen (18) inches above the ground within forty-five (45) days from the start of Timber Operations except for the burning of piles, which shall be accomplished not later than April 1 of the year following their creation, or for piles created on or after September 1, not later than April 1 of the second year following creation. Treatment of surface fuels by burning shall be exempt from the one-year time limitations on Timber Operations described under 14 CCR § 1038.

(D) The notice of exemption shall include site class, an estimate of pre- and post-harvest QMD and certification by the RPF that, in their professional judgment, post-harvest Slash treatment and stand conditions will lead to more moderate fire behavior.

(E)14 CCR § 1038(c)(6) shall expire pursuant to PRC 4584(m)(3).

(d) Harvesting dead trees, Dying Trees or Diseased Trees, fuelwood, or split products in response to drought related stress or dead trees which are unmerchantable as sawlog-size timber that are located upon Substantially Damaged Timberlands when the following conditions are met:

(1) The RPF certifies that the notice of exemption is submitted upon Substantially Damaged Timberland when necessary.

(2) Trees eligible for removal when harvesting in response to drought related stress shall meet one (1) or more of the following conditions:

(A) Trees that are dead, or,

(B) Trees with fifty (50) percent or more of the foliage-bearing crown that is dead or fading in color from a normal green to yellow, sorrel, or brown, excluding normal autumn coloration changes, or with evidence of successful bark beetle attacks, through indications of dead cambium and brood development distributed around the circumference of the bole, or;

(C) The RPF, in writing, within the submitted notice of exemption, certifies that trees are designated, by an RPF or Supervised Designee, with a stump mark, as likely to die due to drought related stress within one (1) year.

(3) The Harvest Area shall not exceed five-hundred (500) acres.

(e) The cutting or removal of trees to restore and conserve California black (Quercus kelloggii) or Oregon white (Quercus garryana) oak woodlands and associated grasslands, if all the following requirements are met:

(1) The Harvest Area does not cumulatively exceed, during any five-(5) year period, three-hundred (300) acres per ownership in a Planning Watershed (CALWATER 2.2), for the timberland owner(s) identified pursuant to 14 CCR § 1038.1(a)(2).

(2) Upon submission, the notice of exemption shall include:

(A) Total acreage of the exemption Harvest Area per Planning Watershed (CALWATER 2.2).

(B) A description of the pre-harvest and post-harvest stand structure including an estimate, by species, of diameter distribution, and basal area.

(C) A certification that states:

1. That a minimum of thirty-five (35) square feet of basal area per acre of California black or Oregon white oak, or both, occupy the Harvest Area prior to Timber Operations; and

2. That the proposed Timber Operations are designed to restore and conserve California black oak and Oregon white oak and associated grasslands.

(3) No trees larger than twenty-six (26) inches stump diameter, measured eight (8) inches above ground level may be removed for commercial purposes.

(4) The post-harvest stand shall meet, at a minimum, the following criteria:

(A) A minimum of eighty (80) percent of the pre-treatment basal area of California black oak or Oregon white oak, or both, shall be retained; and

(B) A minimum of thirty-five (35) square feet of basal area of California black oak or Oregon white oak, or both, shall be retained; and

(C) Conifer Stocking, measured in basal area, shall represent less than twenty-five (25) percent of the total onsite Stocking of all trees within the Harvest Area. Decadent and Deformed Trees of Value to Wildlife (excluding hardwoods) shall not count towards this required stocking standard.

(D) All harvested conifers shall be within three-hundred (300) feet of a California black oak or Oregon white oak that is a minimum of four (4) inches dbh.

(E) As well as compliance with applicable Slash requirements pursuant to Table 1 of 14 CCR § 1038.1, all Slash shall be configured in a manner that minimizes risk of fire related mortality to all retained California black oak and Oregon white oak.

(5) A notice of exemption pursuant to this subsection is not applicable within the Southern Sub-District of the Coast Forest District or the Southern Forest District.

(f) [RESERVED]

(g) Harvesting trees which are dead or Dying Trees as a result of wildfire within three-hundred (300) feet from any point of an Approved and Legally Permitted Structure or an Approved and Legally Permitted Structure that was damaged or destroyed by wildfire. The provisions of a notice of exemption submitted pursuant to this subsection supersede the provisions of any other notices of exemption that are submitted in the same Harvest Area. The following conditions apply:

(1) Only trees within three-hundred (300) feet from any point of an Approved and Legally Permitted Structure or an Approved and Legally Permitted Structure that was damaged or destroyed by wildfire may be harvested.

(2) Timber Operations conducted pursuant to this subsection shall be permitted if either:

(A) Timber Operations are consistent with, and within the geographic scope of, an existing valid and effective gubernatorial proclamation of a state of emergency or executive order. If the proposed Timber Operations are consistent with, and within the geographic scope of such a proclamation or order, the timberland owner shall submit a copy of the valid and effective gubernatorial proclamation of a state of emergency or executive order with the notice of exemption described within 14 CCR § 1038.1; or

(B) Timber Operations are necessary to remove trees which are dead or Dying Trees as a result of a wildfire which occurred no more than three (3) years prior to the submission of a notice of exemption as described within 14 CCR § 1038.1, but such Timber Operations are not consistent with, or within the geographic scope of, an existing valid and effective gubernatorial proclamation of a state of emergency or executive order. In such an instance, the timberland owner shall submit, to the Director, certification by an RPF that all trees proposed for harvest are dead or Dying Trees as a result of such a wildfire. This certification shall be included with the submitted notice of exemption as described within 14 CCR § 1038.1.

(3) Timber Operations conducted under this subsection shall conform to applicable city or county general plans, city or county implementing ordinances, and city or county zoning ordinances within which the Harvest Area is located. The Timber Operator or timberland owner shall certify that the city or county has been contacted and the Timber Operations conducted under the notice of exemption conforms with all city or county regulatory requirements.

(4) All Slash and Woody Debris greater than one (1) inch but less than eight (8) inches in diameter within one-hundred-fifty (150) feet of an Approved and Legally Permitted Structure or an Approved and Legally Permitted Structure that was damaged or destroyed by wildfire shall be removed, chipped, or piled and burned.

(5) All Slash created between one-hundred-fifty (150) feet and three-hundred (300) feet of an Approved and Legally Permitted Structure or an Approved and Legally Permitted Structure that was damaged or destroyed by wildfire shall be treated by Lopping For Fire Hazard Reduction, removed, chipped, or piled and burned within forty-five (45) days from the start of Timber Operations; except for the burning of piles, which shall be accomplished not later than April 1 of the year following their creation; or for piles created on or after September 1, not later than April 1 of the second year following creation.

Cal. Code Regs. Tit. 14, § 1038

Note: Authority cited: Sections 4551, 4553, 4584 and 4584.1, Public Resources Code. Reference: Sections 4290, 4291, 4516, 4527, 4584, 4584.1 and 4597, Public Resources Code; and EPIC v. California Department of Forestry and Fire Protection and Board of Forestry (1996) 43 Cal. App.4th 1011.

Note: Authority cited: Sections 4551, 4553, 4584 and 4584.1, Public Resources Code. Reference: Sections 4290, 4291, 4516, 4527, 4584, 4584.1 and 4597, Public Resources Code; and EPIC v. California Department of Forestry and Fire Protection and Board of Forestry (1996) 43 Cal. App.4th 1011.

1. Amendment filed 8-9-83; designated effective 10-1-83 (Register 83, No. 37).
2. Amendment of subsection (b) filed 10-3-88; operative 11-2-88 (Register 88, No. 41).
3. New subsection (d) filed 1-21-93 as an emergency; operative 1-21-93 (Register 93, No. 4). A Certificate of Compliance must be transmitted to OAL 5-21-93 or emergency language will be repealed by operation of law on the following day.
4. New subsection (e) filed 4-5-93; operative 4-5-93 (Register 93, No. 15).
5. Change without regulatory effect amending subsection (e) filed 4-16-93 pursuant to section 100, title 1, California Code of Regulations (Register 93, No. 16).
6. Subsection (d) repealed by operation of Government Code section 11346.1 (Register 94, No. 20).
7. New subsection (d) filed 10-20-94 as an emergency; operative 10-20-94 (Register 94, No. 42). A Certificate of Compliance must be transmitted to OAL by 2-17-95 or emergency language will be repealed by operation of law on the following day.
8. New subsection (d) including amendment of Note refiled 2-15-95 as an emergency; operative 2-15-95 (Register 95, No. 7). A Certificate of Compliance must be transmitted to OAL by 6-15-95 or emergency language will be repealed by operation of law on the following day.
9. Reinstatement of section as it existed prior to emergency amendment filed 6-16-95 by operation of Government Code section 11346.1(f) (Register 95, No. 31).
10. Amendment of subsections (b)(3) and (e) and new subsections (d)-(d)(5)(C) filed 7-31-95; operative 7-31-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 31).
11. New subsection (f) filed 12-28-95; operative 12-28-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 52).
12. Amendment of subsection (f)(13) filed 11-7-96; operative 1-1-97 (Register 96, No. 45).
13. Amendment of subsection (b)(10) filed 11-26-96; operative 1-1-97 pursuant to Public Resources Code section 4554.5 (Register 96, No. 48).
14. Change without regulatory effect amending subsection (d)(1) filed 9-26-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 39).
15. Amendment of subsections (f) and (f)(12) filed 11-26-97; operative 1-1-98 pursuant to Public Resources Code section 4554.5 (Register 97, No. 48).
16. Amendment of section and Note filed 2-17-2000; operative 7-1-2000 pursuant to Public Resources Code section 4554.5 (Register 2000, No. 7).
17. Amendment of subsection (f)(15) filed 11-29-2000; operative 1-1-2001 pursuant to Public Resources Code section 4554.5 (Register 2000, No. 48).
18. New subsection (g) filed 2-21-2001 as an emergency; operative 2-21-2001 (Register 2001, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-21-2001 or emergency language will be repealed by operation of law on the following day.
19. New subsection (g) refiled 6-18-2001 as an emergency, including further amendments; operative 6-18-2001 (Register 2001, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-16-2001 or emergency language will be repealed by operation of law on the following day.
20. Certificate of Compliance as to 6-18-2001 order, including further amendment of subsections (d) and (g), transmitted to OAL 8-24-2001 and filed 9-25-2001 (Register 2001, No. 39). Pursuant to Public Resources Code section 4551.5, the emergency regulation is repealed effective 9-25-2001; regulatory language adopted in the Certificate of Compliance is operative 1-1-2002.
21. Amendment of first paragraph and new subsections (h)-(h)(2)(C) filed 11-16-2001; operative 1-1-2002 pursuant to Public Resources Code section 4551.5 (Register 2001, No. 46).
22. Repealer of subsection (f)(15) filed 11-21-2002; operative 1-1-2003 pursuant to Public Resources Code section 4551.5 (Register 2002, No. 47).
23. Amendment of subsection (e) and new subsections (i)-(i)(14) filed 1-7-2005 as an emergency; operative 1-7-2005 (Register 2005, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-9-2005 or emergency language will be repealed by operation of law on the following day.
24. Amendment of subsection (e) and new subsections (i)-(i)(14) refiled 4-25-2005 as an emergency, including amendment of Form RM-73 (1038i) (incorporated by reference) and subsection (i)(3); operative 5-10-2005 (Register 2005, No. 17). A Certificate of Compliance must be transmitted to OAL by 9-7-2005 or emergency language will be repealed by operation of law on the following day.
25. Amendment of first paragraph, subsections (f), (f)(2)-(4), (f)(7), (f)(9) and (f)(12)-(13) and Note filed 6-21-2005 as an emergency; operative 6-21-2005 (Register 2005, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-19-2005 or emergency language will be repealed by operation of law on the following day.
26. Amendment of first paragraph, subsections (f), (f)(2)-(4), (f)(7), (f)(9) and (f)(12)-(13) and Note refiled 10-13-2005 as an emergency; operative 10-13-2005 (Register 2005, No. 41). A Certificate of Compliance must be transmitted to OAL by 2-10-2006 or emergency language will be repealed by operation of law on the following day.
27. Reinstatement of section as it existed prior to 4-25-2005 emergency amendment by operation of Government Code section 11346.1(f) (Register 2005, No. 45).
28. Amendment of subsection (e) and new subsections (i)-(i)(15) filed 11-9-2005; operative 1-1-2006 (Register 2005, No. 45).
29. Amendment of first paragraph, subsections (f), (f)(2)-(4), (f)(7), (f)(9) and (f)(12)-(13) and Note refiled 2-10-2006 as an emergency; operative 2-10-2006 (Register 2006, No. 6). A Certificate of Compliance must be transmitted to OAL by 6-12-2006 or emergency language will be repealed by operation of law on the following day.
30. Reinstatement of section as it existed prior to 2-10-2006 emergency amendment by operation of Government Code section 11346.21(f) (Register 2006, No. 24).
31. Amendment of first paragraph, subsections (f), (f)(2)-(4), (f)(7), (f)(9) and (f)(12)-(13) and Note refiled 6-16-2006 as an emergency; operative 6-16-2006 (Register 2006, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-16-2006 or emergency language will be repealed by operation of law on the following day.
32. Certificate of Compliance as to 6-16-2006 order transmitted to OAL 9-7-2006 and filed 10-11-2006. Further amendments to emergency language effective 1-1-2007 pursuant to Public Resources Code section 4554.5(a) (Register 2006, No. 41).
33. Amendment of subsections (i)(3), (i)(6) and (i)(8)-(i)(8)(A), repealer of former subsection (i)(10), new subsections (i)(10)(A)-(i)(10)(B)(iii) and amendment of subsections (i)(11), (i)(13) and (i)(15) filed 11-13-2007; operative 1-1-2008 (Register 2007, No. 46).
34. Amendment of subsections (i)(9), (i)(10)(A)-(i)(10)(A)(ii) and (i)(10)(B)-(i)(10)(B)(ii) and new subsection (i)(10)(C) filed 11-7-2008; operative 1-1-2009 pursuant to Public Resources Code section 4554.5(a) (Register 2008, No. 45).
35. Change without regulatory effect amending subsection (i)(3) filed 2-25-2009 pursuant to section 100, title 1, California Code of Regulations (Register 2009, No. 9).
36. Amendment of subsection (e) and new subsections (j)-(j)(18) filed 11-25-2014; operative 1-1-2015 pursuant to Public Resources Code section 4554.5 (Register 2014, No. 48).
37. Change without regulatory effect amending subsections (i), (i)(7) and (i)(10)(B)(i) filed 12-10-2014 pursuant to section 100, title 1, California Code of Regulations (Register 2014, No. 50).
38. Amendment of subsections (c)-(c)(1) and (c)(3)-(c)(5)(B), new subsections (c)(6)-(c)(6)(F) and amendment of Note filed 6-22-2015 as an emergency; operative 6-22-2015 (Register 2015, No. 26). A Certificate of Compliance must be transmitted to OAL by 12-21-2015 or emergency language will be repealed by operation of law on the following day.
39. New subsections (k)-(k)(8) filed 7-13-2015 as an emergency; operative 7-13-2015 (Register 2015, No. 29). A Certificate of Compliance must be transmitted to OAL by 1-11-2016 or emergency language will be repealed by operation of law on the following day.
40. Certificate of Compliance as to 6-22-2015 order, including new subsection (c)(6)(F), subsection relettering and amendment of Note, transmitted to OAL 10-14-2015 and filed 11-3-2015; amendments operative 1-1-2016 pursuant to Public Resources Code section 4554.5(b) (Register 2015, No. 45).
41. Amendment of subsections (i)(3), (i)(7) and (i)(8)(A), repealer of subsection (i)(15), new subsections (j)(5)(A)-(j)(5)(A)4., subsection relettering, amendment of newly designated subsection (j)(5)(B), redesignation of former subsections (j)(5)(A)(i)-(iv) as new subsections (j)(5)(B)1.-4. and amendment of subsection (j)(7) filed 11-23-2015; operative 1/1/2016 pursuant to Public Resources Code section 4554.5 (Register 2015, No. 48).
42. New subsections (k)-(k)(8) refiled 12-29-2015 as an emergency; operative 1-12-2016 (Register 2016, No. 1). A Certificate of Compliance must be transmitted to OAL by 4-11-2016 or emergency language will be repealed by operation of law on the following day.
43. New subsections (k)-(k)(8) refiled 4-6-2016 as an emergency; operative 4-12-2016 (Register 2016, No. 15). A Certificate of Compliance must be transmitted to OAL by 7-11-2016 or emergency language will be repealed by operation of law on the following day.
44. Certificate of Compliance as to 4-6-2016 order, including amendment of first paragraph, new subsections (k)(4) and (k)(10), subsection renumbering, amendment of subsection (k) and its subsections and amendment of Note transmitted to OAL 6-6-2016 and filed 7-18-2016; amendments effective 7/18/2016 pursuant to Government Code section 11343.4(b)(3) (Register 2016, No. 30).
45. Change without regulatory effect amending subsections (j)(8) and (j)(15), adopting new subsection (j)(18), renumbering subsections and amending newly designated subsection (j)(19) filed 4-18-2017 pursuant to section 100, title 1, California Code of Regulations (Register 2017, No. 16).
46. Amendment of subsection (h)(2) and amendment of Note filed 6-2-2017; operative 1/1/2018 pursuant to Public Resources Code section 4554.5(a) (Register 2017, No. 22).
47. Change without regulatory effect amending subsection (j)(4) filed 9-7-2017 pursuant to section 100, title 1, California Code of Regulations (Register 2017, No. 36).
48. Amendment of subsection (e) and new subsections (l)-(l)(8) filed 11-15-2017; operative 1/1/2018 pursuant to Public Resources Code section 4554.5 (Register 2017, No. 46).
49. New subsections (m)-(m)(8)(A) and amendment of Note filed 1-25-2018 as an emergency; operative 1-25-2018 (Register 2018, No. 4). A Certificate of Compliance must be transmitted to OAL by 7-24-2018 or emergency language will be repealed by operation of law on the following day.
50. Change without regulatory effect amending subsection (m)(6) filed 2-6-2018 pursuant to section 100, title 1, California Code of Regulations (Register 2018, No. 6).
51. Change without regulatory effect amending Technical Rule Addendum No. 4 filed 3-27-2018 pursuant to section 100, title 1, California Code of Regulations (Register 2018, No. 13).
52. New subsections (m)-(m)(8)(A) and amendment of Note refiled 7-5-2018 as an emergency; operative 7/25/2018 (Register 2018, No. 27). A Certificate of Compliance must be transmitted to OAL by 10-23-2018 or emergency language will be repealed by operation of law on the following day.
53. New subsections (m)-(m)(8)(A) and amendment of Note refiled 10-16-2018 as an emergency; operative 10/24/2018 (Register 2018, No. 42). A Certificate of Compliance must be transmitted to OAL by 10-23-2018 or emergency language will be repealed by operation of law on the following day.
54. New subsections (n)-(n)(7)(A) filed 10-29-2018 as an emergency; operative 10/29/2018 (Register 2018, No. 44). A Certificate of Compliance must be transmitted to OAL by 4-29-2019 or emergency language will be repealed by operation of law on the following day.
55. Amendment of section filed 11-13-2018; operative 1/1/2019 pursuant to Public Resources Code section 4554.5 (Register 2018, No. 46).
56. Repeal of 10-24-2018 emergency amendment by operation of Government Code section 11346.1(f) (Register 2019, No. 4).
57. Amendment filed 2-19-2019 as an emergency; operative 2/19/2019 (Register 2019, No. 8). Pursuant to Statutes 2018, chapter 626, section 46 (SB 901), this amendment is deemed an emergency and shall remain in effect until revised by the Board of Forestry and Fire Protection.
58. Readoption of 10-29-2018 order filed 3-29-2019 as an emergency; operative 3-29-2019 (Register 2019, No. 13). A Certificate of Compliance must be transmitted to OAL by 6-27-2019 or emergency language will be repealed by operation of law on the following day.
59. Readoption of 3-29-2019 order filed 6-27-2019 as an emergency; operative 6-27-2019 (Register 2019, No. 26). A Certificate of Compliance must be transmitted to OAL by 9-25-2019 or emergency language will be repealed by operation of law on the following day.
60. Readoption of 2-19-2019 order refiled 8-1-2019 as an emergency, including further amendments; operative 8-1-2019 (Register 2019, No. 31). Pursuant to Statutes 2018, chapter 626, section 46 (SB 901), the amendment shall remain in effect until revised by the Board of Forestry and Fire Protection.
61. New subsections (g)-(g)(5) filed 11-14-2019; operative 1/1/2020 pursuant to Public Resources Code section 4554.5(a) (Register 2019, No. 46).
62. Change without regulatory effect amending subsection (c)(6)(E) filed 1-10-2022 pursuant to section 100, title 1, California Code of Regulations (Register 2022, No. 2).
63. New subsection (d)(3) and repealer of subsections (f)-(f)(12) filed 11-20-2024; operative 1/1/2025 (Register 2024, No. 47).