WSR 97-21-134

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[Filed October 22, 1997, 8:50 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-17-094.

Title of Rule: Noxious weed control.

Purpose: To establish a quarantine on an infestation of yellow nutsedge (Cyperus esculentus) on a parcel of land located in Thurston County, Washington.

Statutory Authority for Adoption: Chapters 17.10 and 17.24 RCW.

Statute Being Implemented: Chapters 17.10 and 17.24 RCW.

Summary: After attempting to secure voluntary compliance with the state noxious weed statute, both the state Noxious Weed Control Board and the Thurston County Noxious Weed Control Board have requested this quarantine.

Reasons Supporting Proposal: Yellow nutsedge is a serious noxious weed of agronomic crops. Soil containing nutlets is the primary mode of spread in cultivated land. Because it is highly invasive, left unchecked the spread of this Class B weed would entail great economic loss to agricultural industries in the state of Washington.

Name of Agency Personnel Responsible for Drafting: Mary Toohey, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1907; Implementation and Enforcement: Diane Dolstad, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-2071.

Name of Proponent: Thurston County Noxious Weed Control Board and the Washington State Noxious Weed Control Board, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The state Noxious Weed Control Board establishes the noxious weed list which includes yellow nutsedge. The state Noxious Weed Control Board requested this rule be adopted.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Yellow nutsedge is a serious noxious weed of agronomic crops. It propagates by seed, rhizomes, bulbs, and nutlets. Soil containing nutlets is the primary mode of spread in cultivated land. This rule would prevent spread through contaminated soil. Because yellow nutsedge is highly invasive, left unchecked the spread of this Class B weed would entail great economic loss to agricultural industries in the state of Washington.

Proposal Changes the Following Existing Rules: This proposal adds an additional site to the existing Cowlitz County quarantine.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The yellow nutsedge quarantine under chapter 17.10 RCW is site specific to a single property at the Port of Olympia. The cost of control of yellow nutsedge, a highly invasive noxious weed, to homeowners, landscapers, and other users of the plants from the nursery on the property and those impacted by secondary infestations, would greatly exceed the impact on the leaseholder.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in section 201.

Hearing Location: Washington State Department of Agriculture, 1111 Washington Street, 2nd Floor, Conference Room 259, Olympia, WA 98504-2560, on December 8, 1997, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact Cathy Jensen by December 1, 1997, TDD (360) 902-1996, or (360) 902-1976.

Submit Written Comments to: Mary Toohey, Assistant Director, Washington State Department of Agriculture, Laboratory Services Division, P.O. Box 42560, Olympia, WA 98504-2560, FAX (360) 902-2094, by December 8, 1997.

Date of Intended Adoption: December 11, 1997.

October 22, 1997

Mary A. Martin Toohey

Assistant Director

AMENDATORY SECTION (Amending Order 2069, filed 1/11/91, effective 2/11/91 WAC 16-752-300 Establishing quarantine. Yellow nutsedge (Cyperus esculentus L.) is a herbaceous perennial that is one of the most serious noxious weeds of agronomic crops. It propagates by seed, rhizomes, bulbs, and nutlets. Soil containing nutlets is the primary mode of spread in cultivated land. It is highly invasive and its unchecked spread would entail great economic loss to the agricultural industries of the state. It is a class B noxious weed designated for control in Cowlitz ((County)) and Thurston counties (WAC 16-750-011(((27))) (33)(a)). Yellow nutsedge infests a dredging spoil site at the Port of Kalama in Kalama, Washington and a plant nursery site at the Port of Olympia in Tumwater, Washington. Movement of material from ((this)) these sites ((has initiated)) initiates additional infestations. RCW 17.10.210 provides that either the director or the county noxious weed control board or a weed district may issue an order for quarantine and restriction or denial of access to land determined to be so seriously infested that control measures cannot be undertaken without quarantine of the land. The director has determined:

(1) That the identified sites ((is)) are so seriously infested as to require quarantine; and

(2) That the movement of contaminated materials from ((this)) these sites presents an immediate threat of infestation to the rest of the county agricultural and nonagricultural areas; and

(3) That the restriction of such spread is critical to control efforts.

[Statutory Authority: Chapter 17.10 RCW. 91-03-045 (Order 2069), 16-752-300, filed 1/11/91, effective 2/11/91; 89-24-090, 16-752-300, filed 12/6/89, effective 1/6/90.]

AMENDATORY SECTION (Amending Order 2069, filed 1/11/91, effective 2/11/91 WAC 16-752-305 Quarantine area. The quarantine area shall encompass the dredge spoil site at and owned by the Port of Kalama, located along Hendrickson Drive, Kalama, Washington, and the Port of Olympia, located at the Olympia Airport, Tumwater, Washington, and more particularly described ((as follows:

The following described real estate, situated in the county of Cowlitz, state of Washington:)) in subsections (1) and (2) of this section.

Real estate situation in the counties of Cowlitz and Thurston, state of Washington:

(1) Cowlitz County parcel - containing twenty-three acres, more or less.

A tract of land in the Jacob Ahles D.L.C. No. 44 in Section 20, Township 6 north, Range 1 west of the Willamette Meridian, more particularly described as follows:

Beginning at a point on the north line of a tract of land leased to the North Pacific Grain Growers, Inc., said point being north 2374.49 feet, and north 88 degrees 46'22" west parallel with the south line of said Ahles D.L.C., 263.94 feet from the southeast corner of said Section 20; thence north 1 degree 12'00" west 612.50 feet; thence north 20 degrees 23'00" west 186.52 feet to a point 30.00 feet westerly when measured at right angles from the westerly line of the Northern Pacific Railway right of way; thence parallel with and 30.00 feet from said right of way north 37 degrees 24'37" west 1325.90 feet; thence south 61 degrees 05'28" west 344.47 feet to the inner harbor line as shown on the Plat of Kalama Tidelands; thence south 27 degrees 54'56" east along said inner harbor line 1045.78 feet to the one mile limit as shown on said plat; thence south 62 degrees 05'04" west 100 feet to the low water line of the Columbia River; thence south 22 degrees 48'46" east along said low water line 751.17 feet to said north line of the North Pacific Grain Growers, Inc. lease; thence south 88 degrees 46'22" east parallel with said south line of the Ahles D.L.C. 492.48 feet to the true point of beginning.

(2) County of Thurston, state of Washington:

Parcel number 12711230000 - a portion of this parcel containing twenty-two acres of nursery production, more or less and three access roads one of which begins at 85th Avenue SW, the other two begin at Old Highway 99 SW.

A tract of land in Section 11, Township 17 north, Range 2 west of the Willamette Meridian, more particularly described as follows:

A portion of the Southeast Quarter of the Southwest Quarter and the Southwest Quarter of the Southeast Quarter, Section 11, Township 17 North, Range 2 West, W.N., Thurston County, Washington.

Beginning at the South Quarter corner of Section 11; thence north 0153'09"E, along the center of the section line 77.6 feet to the southerly edge of the infestation, said point being 75 feet northerly of the center of taxiway 5 and the point of beginning; thence south 8814'46"E parallel to and 75 feet northerly of taxiway 5, 1254.2 feet to coordinate pair N 604966 E 1043268 North American Datum 83/91, Washington State Lambert projection South Zone; thence north 0132'43"E parallel to and 75 feet westerly of taxiway 5, 256.1 feet (N 605222 E 1043275); thence north 7444'42" W, parallel to and 200 feet southerly of runway 8-26, 2031.7 feet (N 605757 E 1041315); thence south 1253'58"W, parallel to and 75 feet easterly of taxiway 4, 744.6 feet (N 605031 E 1041148); thence south 8814'46"E parallel to and 75 feet northerly of taxiway 5, 866.5 feet to the point of beginning. TOGETHER WITH: Two (2) 50 foot easements for ingress and egress described as follows: Beginning at the centerline of Old Highway 99 at coordinate pair N 605688 E 1044159; thence south 6213'04"W, 337 feet (N 605531 E 1043861); thence south 3734'07"W, 66 feet (N 605479 E 1043821); thence south 1534'51"W, 432 feet (N 605063 E 1043705); thence south 5650'31"W, 90 feet (N 605014 E 1043630); thence north 7342'21"W, 135 feet (N 605052 E 1043500); thence south 7331'23"W, 47 feet (N 605031 E 1043429).

Beginning at the coordinate pair N 605479 E 1043821; Thence north 1018'17"W, 78 feet (N 605556 E 103807); Thence north 5223'38"W, 93 feet (N 605613 E 1043733); Thence north 7434'40"W, 331 feet (N 605701 E 1043414); Thence north 2431'11"W, 63 feet (N 605758 E 1043388); Thence north 058'36"W, 352 feet (N 606110 E 1043382).

Beginning at the end of 85th Avenue SE; Thence north 1436'57"W, 44 feet; Thence north 144'13"E, 103 feet; Thence north 144'13"E, 122 feet; Thence north 42'36"E, 103 feet; Thence north 144'13"E, 140 feet; Thence north 331'10"E, 134 feet; Thence north 144'13"E, 146 feet; Thence north 643'41"W, 141 feet; Thence north 63'35"W, 92 feet; Thence north 144'13"E, 128 feet; Thence north 1558'50"W, 96 feet; Thence south 8533'49"W, 113 feet; Thence north 8815'39"W, 100 feet; Thence north 8538'49"W, 133 feet; Thence north 8815'36"W, 137 feet; Thence north 8528'20"W, 125 feet; Thence south 8935'45"W, 162 feet; Thence north 8815'32"W, 129 feet; Thence north 8815'30"W, 200 feet; Thence north 8815'28"W, 150 feet; Thence north 8543'23"W, 137 feet; Thence north 8838'45"E, 113 feet; Thence north 8356'12"W, 242 feet; Thence north 4038'52"W, 25 feet; Thence north 406'3"W, 25 feet.

[Statutory Authority: Chapter 17.10 RCW. 91-03-045 (Order 2069), 16-752-305, filed 1/11/91, effective 2/11/91; 89-24-090, 16-752-305, filed 12/6/89, effective 1/6/90.]

AMENDATORY SECTION (Amending Order 2069, filed 1/11/91, effective 2/11/91 WAC 16-752-310 Articles whose movement is restricted. The movement of all plants and parts of plants of yellow nutsedge and soil contaminated with propagules (((nutlets or seeds))) of the plant, including soil in nursery pots, is covered by this quarantine. The movement of all balled and burlap nursery stock is covered by this quarantine.

[Statutory Authority: Chapter 17.10 RCW. 91-03-045 (Order 2069), 16-752-310, filed 1/11/91, effective 2/11/91; 89-24-090, 16-752-310, filed 12/6/89, effective 1/6/90.]

AMENDATORY SECTION (Amending Order 2069, filed 1/11/91, effective 2/11/91 WAC 16-752-315 Regulations. Use of the property identified in WAC 16-752-305 is restricted as follows:

(1) All removal of sand or soil, potted nursery plants and other plants from the quarantine site, except as provided in subsection (6) of this section, is prohibited without a permit from the Cowlitz or Thurston County noxious weed control board that details the end use and exact geographic destination.

(2) All land disturbing operations including excavation, utilities work, and similar activities require a one time, no fee permit from the weed board that obligates the operator to thoroughly hose down all equipment before leaving the quarantine area and record the next two areas where the equipment is used after leaving the quarantine area.

(3) All off-road vehicles are banned in the quarantine area without the written permission of the Cowlitz or Thurston County noxious weed control board, except in designated parking areas.

(4) All weed control measures and irrigation practices in the quarantine area are to be ((undertaken in consultation with)) conducted at the direction of the Cowlitz or Thurston County noxious weed control board.

(5) Yellow nutsedge control shall take precedence over all other land uses in the quarantine area.

(6) The Cowlitz or Thurston County noxious weed control board may designate and clearly mark portions of the site as free from infestation and allow removal of sand or soil from these areas without specific permit to nonagricultural sites: Provided, That adequate precautions are taken to prevent commingling of infested and noninfested soils and equipment used in the infested area is thoroughly cleaned before use in the area designated as uninfested.

[Statutory Authority: Chapter 17.10 RCW. 91-03-045 (Order 2069), 16-752-315, filed 1/11/91, effective 2/11/91; 89-24-090, 16-752-315, filed 12/6/89, effective 1/6/90.]

AMENDATORY SECTION (Amending Order 2069, filed 1/11/91, effective 2/11/91 WAC 16-752-320 Costs of quarantine. The costs of serving the notice required by RCW 17.10.210(2) shall be borne by the department. The costs of control work shall be borne by the landowner unless otherwise determined by the Cowlitz or Thurston County noxious weed control board or the director in consultation with the Washington state noxious weed control board.

[Statutory Authority: Chapter 17.10 RCW. 91-03-045 (Order 2069), 16-752-320, filed 1/11/91, effective 2/11/91; 89-24-090, 16-752-320, filed 12/6/89, effective 1/6/90.]

AMENDATORY SECTION (Amending Order 2069, filed 1/11/91, effective 2/11/91 WAC 16-752-330 Violation and penalty. Any person who violates this quarantine shall have committed a civil infraction and shall be subject to the provisions of RCW 17.10.310 and 17.10.350 and WAC ((16-750-900(3))) 16-750-020 which provides ((a)) monetary ((penalty)) penalties of up to one thousand dollars per infraction.