WSR 04-20-098

PROPOSED RULES

INTERAGENCY COMMITTEE

FOR OUTDOOR RECREATION

[ Filed October 5, 2004, 3:06 p.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule and Other Identifying Information: Nonhighway and off-road vehicle activities (NOVA) program, (1) WAC 286-13-040, program deadlines and waivers; (2) 286-26-020, definitions; (3) 286-26-080, planning eligibility requirements; (4) 286-26-083 (new), long-term rules; (5) 286-26-085 (new), consideration of conversion; (6) 286-26-090, Acquisition projects -- Long-term obligations; (7) 286-26-095 (new), life estates; (8) 286-26-100, Development projects -- Long-term obligations; and (9) 286-26-105 (new), provisions for federal agencies.

Hearing Location(s): Natural Resources Building, Second Floor East, Room 175A & B, 1111 Washington Street S.E., Olympia, WA, on November 18, 2004, at 10 a.m.

Date of Intended Adoption: November 18, 2004.

Submit Written Comments to: Greg Lovelady, Rules Coordinator, 1111 Washington Street, Olympia, WA 98504-0917, e-mail GregL@iac.wa.gov, fax (360) 902-3026, by November 3, 2004.

Assistance for Persons with Disabilities: Contact (see above) by November 4, 2004, TTY (360) 902-1996 or (360) 902-3008.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: (1) Program deadlines, waivers, plan requirements are made consistent with IAC policy (see (3) below); (2) definitions, some terms are deleted as they do not appear elsewhere in the WACs. The definition for an "ORV trail" is modified to correspond to RCW 46.09.020 (18) and (19); (3) planning requirements, WAC is brought into agreement with IAC's reduced planning requirements for education-enforcement and maintenance-operation projects, (nonhighway and off-road vehicle activities (NOVA) program plan, adopted July 11, 2002); (4) long-term rules, conversion provisions are combined from elsewhere in chapter 286-26 WAC into this new WAC section and provisions that address remedies are added; (5) consideration of conversions, conversion provisions from elsewhere in chapter 286-26 WAC are brought into this new WAC section; (6) acquisition projects-long-term obligations, information regarding the contents of required written instrument(s)/documentation is provided and the WAC is brought into agreement with IAC's current policy regarding the time period for leases (NOVA plan); (7) life estates, provisions for "life estates" are added in this new section; (8) development projects-long-term obligations, requirements are made consistent with other IAC programs; and (9) federal agency agreement, IAC's requirement for a federal agency agreement is clarified by changing the term "master agreement" to "committee (IAC)-federal agency agreement," and by making it clear that either that agreement or IAC's more traditional project agreement ("general provisions") must be executed before project funds are released; format, for ease of understanding, throughout, headings are provided in a question and answer format.

Reasons Supporting Proposal: See above.

Statutory Authority for Adoption: RCW 46.09.240.

Statute Being Implemented: Chapter 46.09 RCW (chapter 105, Laws of 2004; SHB 2489).

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

Name of Proponent: Interagency Committee for Outdoor Recreation (IAC), governmental.

Name of Agency Personnel Responsible for Drafting: Greg Lovelady, Box 40917, 1111 Washington Street, Olympia, WA 98504, (360) 902-3008; Implementation and Enforcement: Laura Eckert Johnson, Box 40917, 1111 Washington Street, Olympia, WA 98504, (360) 902-3000.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not applicable. Only affected parties are local governments, state and federal agencies.

A cost-benefit analysis is not required under RCW 34.05.328. IAC is not a listed agency in section 201, and proposed rules are technical, affecting governmental parties only.

October 5, 2004

Greg Lovelady

Rules Coordinator

OTS-7524.1


AMENDATORY SECTION(Amending WSR 01-17-056, filed 8/14/01, effective 9/14/01)

WAC 286-13-040   What are the grant program deadlines(( -- Applications, plans, and matching resources.)) and how can the deadlines be waived?   (1) Applications. To allow time for review, applications must be submitted at least four calendar months before the funding meeting at which the applicant's project is first considered. Applications must be completed in final form and on file with the committee at least one calendar month before this meeting. Excepted are applications for the National Recreational Trails Funding Act, Riparian Habitat, and Youth Athletic Facilities Programs, and programs where the director specifically establishes another deadline to accomplish new or revised statutory direction.

(2) Plans. ((For purposes of project evaluation, all nonhighway and off-road vehicle program, park, recreation, or habitat)) Plans required for participation in committee grant programs must be complete and on file with the committee at least three calendar months before the funding meeting at which the applicant's project is first considered. On the director's acceptance of the plan, the applicant shall be granted eligibility to submit applications for a period of up to six years.

(3) Matches. To allow time for development of funding recommendations, written assurance must be provided whenever matching resources are to be considered as a part of an application. This assurance must be provided by the applicant to the committee at least one calendar month before the meeting at which the project is to be considered for funding.

(4) Project agreement. An applicant has three calendar months from the date of the committee's mailing of the project agreement to execute and return the agreement to the committee's office. After this period, the committee or director may reject any agreement not signed and returned and reallocate the grant funds to another project(s).

(5) Waivers. Compliance with these deadlines is required for eligibility unless a waiver is granted by the director. Such waivers are considered based on several factors which may vary with the type of waiver requested, including:

(a) When the applicant started the application/planning process (for application and plan deadline waivers);

(b) Progress made;

(c) When final plan adoption will occur (for plan deadline waivers);

(d) The cause of the delay (procedural or content related, etc.);

(e) Impact on the committee's evaluation process;

(f) Equity to other applicants; and

(g) Such other information as may be relevant.

[Statutory Authority: RCW 34.05.370, 46.09.240(1), 79A.25.210, 79A.15.070, 79A.25.080, chapter 42.17 RCW. 01-17-056, 286-13-040, filed 8/14/01, effective 9/14/01. Statutory Authority: RCW 43.98A.060(1), 43.98A.070(5), 43.99.080(2), 46.09.240(1) and 77.12.720. 98-08-014, 286-13-040, filed 3/18/98, effective 4/18/98; 97-17-004, 286-13-040, filed 8/7/97, effective 9/7/97; 96-08-044, 286-13-040, filed 3/29/96, effective 4/29/96. Statutory Authority: RCW 43.98A.060(1), [43.98A].070(5), 43.99.080, 46.09.240 and 77.12.720. 94-17-095, 286-13-040, filed 8/17/94, effective 9/17/94.]

OTS-7525.2


AMENDATORY SECTION(Amending WSR 98-08-014, filed 3/18/98, effective 4/18/98)

WAC 286-26-020   What definitions((.)) apply to this chapter?   For purposes of this chapter, the following definitions shall apply:

"Management" means the action taken in exercising control over, regulating the use of, and operation and maintenance of ORV trails and ORV areas.

(("Nonhighway road" (NHR) as provided in RCW 46.09.020.

"Nonhighway vehicle" as provided in RCW 46.09.020.))

"NOVA" means the committee's nonhighway and off-road vehicle activities program described in chapter 46.09 RCW((, and related policy manuals for planning, acquisition, development and management of recreation areas and trails)).

"NOVA advisory committee" as provided in RCW 46.09.280, means the panel of ((NHR recreationists, organized ORV recreational groups, and agency)) representatives chosen to advise the director in the development of the statewide NOVA plan, the development of a project priority rating system, the suitability and evaluation of NOVA projects submitted to the committee for funding, and other aspects of NOVA recreation as the need may arise, in accordance with chapter 46.09 RCW.

"Off-road vehicle" (ORV) as provided in RCW 46.09.020.

"ORV ((trail)) sport park" as provided in RCW 46.09.020, ((and including, competition sites for)) means a facility that accommodates racing two, three, and/or four-wheel ORVs, and four-wheeled vehicles over forty inches width which are equipped with four-wheel drive or other characteristics such as nonslip drive trains and high clearance. Such courses ((will be designed to)) include ORV trail or area characteristics such as sharp turns, jumps, soft tread material, dips, or other obstacles found in more natural settings. Race courses which are paved and designed primarily for other vehicles, such as go-karts and formula cars, are not eligible for funds from the NOVA ((funds)) program account.

(("ORV use area" as provided in RCW 46.09.020.))

[Statutory Authority: RCW 46.09.240(1). 98-08-014, 286-26-020, filed 3/18/98, effective 4/18/98. Statutory Authority: RCW 43.98A.060(1), 43.98A.070(5), 43.99.080(2), 46.09.240(1) and 77.12.720(4). 96-08-044, 286-26-020, filed 3/29/96, effective 4/29/96. Statutory Authority: RCW 43.98A.060(1), [43.98A].070(5), 43.99.080, 46.09.240 and 77.12.720. 94-17-095, 286-26-020, filed 8/17/94, effective 9/17/94. Statutory Authority: Chapter 43.99 RCW. 86-23-038 (Order 86-2), 286-26-020, filed 11/17/86; 84-17-029 (Order 84-2), 286-26-020, filed 8/8/84. Statutory Authority: RCW 43.99.010, 43.99.110, 43.99.080, 43.99.120, 43.99.060, 42.17.370, 46.09.020, 46.09.170 and 46.09.240. 83-01-030 (Order IAC 82-1), 286-26-020, filed 12/8/82. Statutory Authority: Chapter 43.99 RCW. 78-03-032 (Order 78-1), 286-26-020, filed 2/17/78; Order 3, 286-26-020, filed 7/31/73.]


AMENDATORY SECTION(Amending WSR 97-08-003, filed 3/20/97, effective 4/20/97)

WAC 286-26-080   Does this program have planning eligibility requirements((.))?   Yes. To be eligible for grant consideration under this chapter, applicants must complete a plan in accordance with WAC 286-13-040(2), except that such a plan is not required to support a funding request for education -- enforcement and/or maintenance -- operation projects. At minimum the plan must include:

(1) A statement of the applicant's long-range goals and objectives;

(2) An inventory, or description of the planning area;

(3) An analysis of demand and need, that is, why actions are required;

(4) A description of how the planning process gave the public ample opportunity to be involved in development of the plan;

(5) A current capital improvement program of at least ((five)) six years;

(6) Evidence that this plan has been approved by the applicant's governing entity most appropriate to the plan's scope. For example, a city or county-wide plan must be approved at the council or commission level. Plans with a different scope will be approved by department heads, district rangers, regional managers/supervisors, etc.

[Statutory Authority: RCW 43.98A.060(1), 43.98A.070(5), 43.99.080(2), 46.09.240(1) and 77.12.720. 97-08-003, 286-26-080, filed 3/20/97, effective 4/20/97. Statutory Authority: RCW 43.98A.060(1), 43.98A.070(5), 43.99.080(2), 46.09.240(1) and 77.12.720(4). 96-08-044, 286-26-080, filed 3/29/96, effective 4/29/96. Statutory Authority: RCW 46.09.240(1). 94-24-044, 286-26-080, filed 12/2/94, effective 1/2/95. Statutory Authority: RCW 43.98A.060(1), [43.98A].070(5), 43.99.080, 46.09.240 and 77.12.720. 94-17-095, 286-26-080, filed 8/17/94, effective 9/17/94.]


NEW SECTION
WAC 286-26-083   What long term rules apply?   (1) Without prior approval of the committee, land, natural resources and/or facilities purchased and/or developed with committee administered NOVA funds shall not be converted to uses other than those for which the funds were originally approved.

(2) The committee is entitled to pursue and obtain remedies that assure the substitution or replacement of natural resources or facilities in accordance with this chapter.

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NEW SECTION
WAC 286-26-085   When considering approval of a conversion, what rules apply?   The committee shall only approve conversions when:

(1) All practical alternatives to the conversion have been evaluated and rejected on a sound basis; and

(2) Another resource(s) will serve as a replacement. The replacement resource(s) must:

(a) (If a land acquisition) be real property(ies) of at least equal fair market value and public benefit at the time of conversion;

(b) (If a development) provide a facility of at least equal fair market value and public benefit as that which existed at the time of the original investment;

(c) Be of reasonably equivalent or greater recreation usefulness and location;

(d) Be administered by the same political jurisdiction as the converted property and/or development;

(e) Satisfy need(s) identified in the committee's or sponsor's plan; and

(f) Include only elements eligible under the committee's program from which funds were originally allocated.

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AMENDATORY SECTION(Amending WSR 94-17-095, filed 8/17/94, effective 9/17/94)

WAC 286-26-090   For land acquisition projects(( -- Deed of right, conversions, leases and easements.)), are there long term obligations?   ((For acquisition projects)) Yes. Sponsors must execute an instrument(s) ((or instruments which contain)) containing:

(1) For fee((, less-than-fee, and easement)) or perpetual property rights acquisition projects:

(a) A legal description of the property acquired;

(b) A conveyance to the state of Washington ((of)) for the right to use the described real property ((forever)) for outdoor recreation purposes forever unless a term is specified in the project agreement; and

(c) A ((restriction)) prohibition on conversion of use of the land((.

That is, without prior approval of the committee, a facility acquired with money granted by the committee shall not be converted to a use other than that for which funds were originally approved. The committee shall only approve such a conversion under conditions which assure the substitution of other land of at least equal fair market value at the time of conversion, and of as nearly as feasible equivalent usefulness and location)) to a principal use other than that for which funds were originally approved without prior approval of the committee.

(2) For lease ((acquisition projects, a binding agreement which contains a legal description of the property and rights acquired and which meets the following criteria. The interest:

(a) Must be for at least fifty years unless precluded by state law;

(b) May not be revocable at will;

(c) Must have a value supported through standard appraisal techniques;

(d) Must be paid for in lump sum at initiation;

(e) May not be converted, during the lease period, to a use other than that for which funds were originally approved, without prior approval of the committee)), less than fee, or nonperpetual property rights, a binding agreement which:

(a) Contains a legal description of the property and rights acquired;

(b) Contains a conveyance to the state of Washington for the right to use the described real property for outdoor recreation purposes for the period of the lease;

(c) Contains a prohibition on conversion of use of the land/natural resource to a principal use other than that for which funds were originally approved without prior approval of the committee;

(d) Is for at least twenty-five years unless precluded by state law;

(e) Is not revocable at will;

(f) Has a value supported through appraisal requirements approved by the committee;

(g) Is paid for in lump sum at initiation.

[Statutory Authority: RCW 43.98A.060(1), [43.98A].070(5), 43.99.080, 46.09.240 and 77.12.720. 94-17-095, 286-26-090, filed 8/17/94, effective 9/17/94.]


NEW SECTION
WAC 286-26-095   When considering approval of a life estate, what rules apply?   The committee may approve an acquisition that includes a life estate ("estate") so long as:

(1) The estate does not wholly limit public use of the site;

(2) The value of the estate is not included in the property's appraisal;

(3) The estate's provisions are approved in writing by the director.

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AMENDATORY SECTION(Amending WSR 99-16-009, filed 7/22/99, effective 8/22/99)

WAC 286-26-100   For development projects(( -- Conversion to other uses.)), are there long term obligations?   (((1) Without prior approval of the committee, a facility developed with money granted by the committee shall not be converted to a use other than that for which funds were originally approved.

(2) The committee shall only approve such a conversion under conditions which assure that:

(a) All practical alternatives to the conversion have been evaluated and rejected on a sound basis;

(b) A new development, in the spirit of WAC 286-13-080 ("...aid through the committee is intended to supplement the existing capacity of a sponsor..."), will serve as a replacement which:

(i) Is of reasonably equivalent recreation utility and location;

(ii) Will be administered by the same political jurisdiction as the converted development;

(iii) Will satisfy need(s) identified in the sponsor's NOVA plan (see WAC 286-26-080); and

(iv) Includes only elements eligible under the committee's program from which funds were originally allocated.

(3) A master agreement signed by the parties shall control the provision of funds granted by the committee for facility developments to any federal agency sponsor.)) Yes.

(1) Properties and facilities assisted with money granted by the committee shall not be converted (WAC 286-26-083(1)).

(2) Properties and facilities assisted with money granted by the committee shall be:

(a) Built, operated, used, and maintained according to federal, state, and local laws and regulations, including public health standards and building codes;

(b) Built, operated, used, and maintained in a reasonably safe condition for the project's intended use;

(c) Operated and maintained throughout its estimated life so as to prevent undue deterioration;

(d) Built and operated in compliance with all federal and state nondiscrimination laws, regulations, and policies.

(3) Facilities open to the public must:

(a) Be built, operated, and maintained according to state and federal accessibility guidelines.

(b) Appear attractive and inviting to the public except for brief installation, construction, or maintenance periods.

(c) Be available for use at reasonable hours and times of the year, according to the type of area or facility.

[Statutory Authority: RCW 46.09.240. 99-16-009, 286-26-100, filed 7/22/99, effective 8/22/99. Statutory Authority: RCW 43.98A.060(1), 43.98A.070(5), 43.99.080(2), 46.09.240(1) and 77.12.720(4). 96-08-044, 286-26-100, filed 3/29/96, effective 4/29/96. Statutory Authority: RCW 43.98A.060(1), [43.98A].070(5), 43.99.080, 46.09.240 and 77.12.720. 94-17-095, 286-26-100, filed 8/17/94, effective 9/17/94.]


NEW SECTION
WAC 286-26-105   What provisions apply to federal agencies?   A committee-federal agency agreement signed by the parties shall control the provision of funds granted by the committee for facility developments to federal agency sponsored projects. Absent this agreement, the "general provisions" of committee's project agreement shall control.

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