WSR 04-21-102

PROPOSED RULES

PARKS AND RECREATION

COMMISSION

[ Filed October 20, 2004, 11:50 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 04-16-080.

     Title of Rule and Other Identifying Information: The state Parks and Recreation Commission has proposed amendments to chapter 352-37 WAC, Ocean beaches.

     Hearing Location(s): Best Western Lighthouse Suites Inn, 491 Damon Road, Ocean Shores, WA 98559, (360) 289-2311, on December 2, 2004, at 8:00 a.m.

     Date of Intended Adoption: December 2, 2004.

     Submit Written Comments to: Washington State Parks, Attention: Pam McConkey, 7219 Cleanwater Lane, P.O. Box 42650, Olympia, WA 98504-2650, fax (360) 586-5875, by November 15, 2004.

     Assistance for Persons with Disabilities: Contact Pauli Larson by November 29, 2004, TTY (360) 664-3133 or (360) 902-8505.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The state Parks and Recreation Commission conducted its review of chapter 352-37 WAC, Ocean beaches, to ensure the provisions and language reflect changes in the agency's park management and operational practices and to provide greater public safety to state park users. The proposed amendments include definitions for aircraft, director and drivable beach. The amendments update driving and parking limitations, clarify right-of-way privileges for nonmotorized vehicles, extend prohibitions for recreation activities on ocean beaches to various forms of aircraft. These proposed changes will also reflect changes made during the recodification of the authorizing statutes referenced in this chapter and changes to state park names.

     Reasons Supporting Proposal: The review and proposed changes to this chapter are intended to improve public safety and to reduce park visitor use conflicts on the ocean beaches under commission management and to respond to park visitor comments related to the use of wind sand sailing devices. The clarification of park names, definitions and authorizing statutes is intended to improve the clarity of these rules.

     Statutory Authority for Adoption: RCW 79A.05.030, 79A.05.035, 79A.05.055, 79A.05.070, and 79A.05.165.

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

     Name of Proponent: Washington State Parks and Recreation Commission, governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Pam McConkey, 7219 Cleanwater Lane, P.O. Box 42650, Olympia, WA 98504-2650, (360) 902-8595; and Enforcement: Phil Shave, 7150 Cleanwater Lane, P.O. Box 42650, Olympia, WA 98504-2650, (360) 902-8606.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This chapter of administrative rule does not regulate or have economic impact through regulations on small business. There are no compliance costs to small business.

     A cost-benefit analysis is not required under RCW 34.05.328. Significant legislative rule-making requirements are not imposed on the state Parks and Recreation Commission, nor has the commission voluntarily applied those requirements.

October 20, 2004

Jim French

Chief of Policy Research

and Program Development

OTS-7519.3


AMENDATORY SECTION(Amending WSR 90-07-050, filed 3/19/90, effective 4/19/90)

WAC 352-37-010   Purpose.   The purpose of this chapter is to implement the provisions of RCW ((43.51.650)) 79A.05.600 through ((43.51.765)) 79A.05.695 which require local governments which have a portion of the Seashore Conservation Area within their boundaries to prepare recreation management plans for the ocean beaches designating at least forty percent of the beach for use by pedestrians and nonmotorized vehicles from April 15 to the day following Labor Day of each year.

     This chapter sets forth those sections of the plans which the commission has adopted as rules.

[Statutory Authority: RCW 43.51.040. 90-07-050, § 352-37-010, filed 3/19/90, effective 4/19/90.]


AMENDATORY SECTION(Amending WSR 90-07-050, filed 3/19/90, effective 4/19/90)

WAC 352-37-020   Definitions.   Whenever used in this chapter the following terms shall have the meanings herein defined unless the context clearly indicates otherwise:

     (((1))) "Aircraft" shall mean any machine designed to travel through the air, whether heavier or lighter than air; airplane, dirigible, balloon, helicopter, etc. The term aircraft shall not include paraglider or remote controlled aircraft.

     "Campfires" shall mean any open flame from a wood source. Campfires are restricted to within the designated campfire pit, ring or other provided campfire enclosure and the flame must be no higher than two feet, except on ocean beaches where campfires must be at least one hundred feet from the dunes, no more than four feet in diameter and no more than four feet high. No campfires are allowed on any shellfish bed. Park rangers have the authority, as found in RCW 79A.05.165(5), to regulate and/or restrict all fires for the protection of the health, safety and welfare of the public, park visitors or staff, or park resources.

     "Camping" shall mean erecting a tent or shelter or arranging bedding, or both, or parking a recreation vehicle or other vehicle for the purpose of remaining overnight.

     "Commission" shall mean the Washington state parks and recreation commission.

     (((2))) "Director" shall mean the director of the Washington state parks and recreation commission or ((his/her)) the director's designee.

     (((3) "Persons" shall mean all natural persons, firms, partnerships, or combinations of persons whenever acting for themselves or by an agent, servant, or employee.

     (4) "Ocean beaches" shall mean all lands fronting on the Pacific Ocean between Cape Disappointment and Leadbetter Point; between Toke Point and the south jetty on Point Chehalis; and between Damon Point and the Makah Indian Reservation, and occupying the area between the line of ordinary high tide and the line of extreme low tide, as these lines now are or may hereafter be located, and, where applicable, between the Seashore Conservation Line, as established by survey of the Washington state parks and recreation commission and the line of extreme low tide, as these lines now are or may hereafter be located, or as defined in RCW 43.51.655, provided, that the ocean beaches shall not include any lands within the established boundaries of any Indian reservation.

     (5) "Long Beach Peninsula" shall mean that area of the ocean beaches as defined in subsection (4) of this section lying between Cape Disappointment on the south and Leadbetter Point on the north.

     (6) "South Beach" shall mean that area of the ocean beaches as defined in subsection (4) of this section lying between Toke Point on the south and the south jetty on Point Chehalis on the north.

     (7) "North Beach" shall mean that area of the ocean beaches as defined in subsection (4) of this section lying between Damon Point on the south and Cape Flattery on the north.

     (8) "Hard sand area" shall mean that area over which the tide ebbs and flows on a daily basis; and which is sufficiently hard or firm to support the weight of, and to provide unhindered traction for, an ordinary passenger vehicle.

     (9) "Dry sand area" shall mean that area lying above and to the landward side of the hard sand area as defined in subsection (8) of this section.

     (10) "Driveable beach" shall mean that area of the ocean beaches lying between the upper or landward limit of the hard sand area and the clam beds.

     (11) "Motor vehicle" shall mean any self-propelled device capable of being moved upon a public highway, and in, upon, or by which any persons or property may be transported or drawn, and shall include, but not be limited to, automobiles, trucks, motorcycles, motor bikes, motor scooters, mopeds, jeeps, or similar type four-wheel drive vehicles, buses, camper trucks, motor homes, and other self-propelled recreational vehicles. A motor vehicle must have a means of propulsion associated or attached directly to the device, and not receive motive power from a source independent or outside of the device. A motor vehicle must be certificated and licensed according to the provisions of chapter 46.12 RCW (Certificates of ownership and registration), and chapter 46.16 RCW (Vehicle licenses).

     (12) "Wind/sand sailer" shall mean a wheeled, wind-driven recreational conveyance.

     (13) "Parasail" shall mean a parachute-type device attached to a rope pulled by a motor vehicle, resulting in the participant being lifted from the ground by the force of the wind.

     (14) "Hovercraft" shall mean a powered vehicle supported by a cushion of air capable of transporting persons.)) "Driveable beach" shall mean that area of the ocean beaches lying between the upper or landward limit of the hard sand area and the clam beds.

     "Dry sand area" shall mean that area lying above and to the landward side of the hard sand area as defined in this section.

     "Fire" shall mean any open flame from any source or device including, but not limited to, campfires, stoves, candles, torches, barbeques and charcoal. Park rangers have the authority, as found in RCW 79A.05.165(5), to regulate and/or restrict all fires for the protection of the health, safety and welfare of the public, park visitors or staff or park resources.

     "Hard sand area" shall mean that area over which the tide ebbs and flows on a daily basis; and which is sufficiently hard or firm to support the weight of, and to provide unhindered traction for, an ordinary passenger vehicle.

     "Hovercraft" shall mean a powered vehicle supported by a cushion of air capable of transporting persons.

     "Long Beach Peninsula" shall mean that area of the ocean beaches as defined in this section lying between Cape Disappointment on the south and Leadbetter Point on the north.

     "Motor vehicle" shall mean every vehicle that is self-propelled. For the purposes of this chapter, a motor vehicle must be approved for highway use in accordance with Title 46 RCW.

     "North Beach" shall mean that area of the ocean beaches as defined in this section lying between Damon Point on the south and Cape Flattery on the north.

     "Ocean beaches" shall mean all lands fronting on the Pacific Ocean between Cape Disappointment and Leadbetter Point; between Toke Point and the south jetty on Point Chehalis; and between Damon Point and the Makah Indian Reservation, and occupying the area between the line of ordinary high tide and the line of extreme low tide, as these lines now are or may hereafter be located, and, where applicable, between the Seashore Conservation Line, as established by survey of the Washington state parks and recreation commission and the line of extreme low tide, as these lines now are or may hereafter be located, or as defined in RCW 79A.05.605, provided, that the ocean beaches shall not include any lands within the established boundaries of any Indian reservation.

     "Parasail" shall mean a parachute-type device attached to a rope pulled by a motor vehicle, resulting in the participant being lifted from the ground by the force of the wind.

     "Person" shall mean all natural persons, firms, partnerships, corporations, clubs, and all associations or combinations of persons whenever acting for themselves or by an agent, servant, or employee.

     "South Beach" shall mean that area of the ocean beaches as defined in this section lying between Toke Point on the south and the south jetty on Point Chehalis on the north.

     "Wind/sand sailer" shall mean a wheeled, wind-driven recreational conveyance.

[Statutory Authority: RCW 43.51.040. 90-07-050, § 352-37-020, filed 3/19/90, effective 4/19/90.]


AMENDATORY SECTION(Amending WSR 92-19-098, filed 9/17/92, effective 10/18/92)

WAC 352-37-030   Vehicular traffic -- Where permitted -- Generally.   Subject to the restrictions set forth in subsequent sections of this chapter, and except at the point of intersection of any access road and the beach, the use of motor vehicles on and along the ocean beaches shall be permitted only on that area between the extreme upper or landward limit of the hard sand area and the clam beds, ((and)) defined as the "driveable beach" in WAC 352-37-020. The operation((, or parking,)) of any vehicle is prohibited above and on the landward side of the driveable beach. The provisions of this section shall not apply to official vehicles engaged in authorized law enforcement, maintenance, or sanitary patrol activities or emergency vehicles while engaged in the performance of any necessary service.

     ((Areas identified within)) The Long Beach Peninsula, South Beach, and North Beach Recreation Management Plans, as referenced in RCW ((43.51.650)) 79A.05.600 through ((43.51.765)) 79A.05.695, as adopted by local governments located on the same beach and approved by the commission, identify those areas where the operation or parking of any vehicle is prohibited. Exceptions that allow for the use of any vehicles in these areas identified as exclusive pedestrian/nonmotorized use areas are found in WAC 352-37-070. Except as provided in WAC 352-37-220, any violation of this section is an infraction under chapter 7.84 RCW.

[Statutory Authority: RCW 43.51.040 and 43.51.180(7). 92-19-098, § 352-37-030, filed 9/17/92, effective 10/18/92. Statutory Authority RCW 43.51.040. 90-07-050, § 352-37-030, filed 3/19/90, effective 4/19/90.]


AMENDATORY SECTION(Amending WSR 90-07-050, filed 3/19/90, effective 4/19/90)

WAC 352-37-040   Long Beach Peninsula.   (1) Leadbetter Point exclusive pedestrian/nonmotorized vehicle use area is described as the area from the northern tip of Leadbetter Point to the north side of the Oysterville beach access road.

     (a) Motor vehicles are not allowed year round in the area located between the northern tip of Leadbetter Point and the southern boundary of Leadbetter Point State Park.

     (b) Motor vehicles are not allowed in the area located between the southern boundary of Leadbetter Point State Park to the north side of the Oysterville beach access road, from April 15 to the day following Labor Day of the same year.

     (2) Long Beach/Seaview exclusive pedestrian/nonmotorized vehicle use area is described as the area from the south side of the Bolstad Avenue beach access road south to the north side of the Seaview beach access road at 38th Avenue.

     Motor vehicles are not allowed from April 15 to the day following Labor Day of the same year.

     (3) Ft. Canby unit exclusive pedestrian/nonmotorized vehicle use area is described as the area from the north jetty of the Columbia River located in ((Ft. Canby)) Cape Disappointment State Park to north head/south boundary of Beard's Hollow ((State Park)).

     Motor vehicles are not allowed on Benson Beach in front of ((Ft. Canby)) Cape Disappointment State Park for the entire year. Motor vehicles may not be used on the beach in front of the state park for any clam season at any time of the year.

[Statutory Authority: RCW 43.51.040. 90-07-050, § 352-37-040, filed 3/19/90, effective 4/19/90.]


AMENDATORY SECTION(Amending WSR 90-07-050, filed 3/19/90, effective 4/19/90)

WAC 352-37-070   Conditions under which motor vehicles may be used in the exclusive pedestrian/nonmotorized use areas.   Unless specifically excepted in the description of the times during which motor vehicles are not allowed for each exclusive pedestrian/nonmotorized vehicle use area, motor vehicles may be used in the pedestrian/nonmotorized vehicle use areas under the following circumstances:

     (1) Motor vehicles may be used in the areas during any recreational razor clam digging seasons designated by the department of fisheries which take place partially or entirely during the period when motor vehicles are otherwise not allowed to use the area.

     (2) Motor vehicles may also be used in the areas during special events approved by the commission as set forth in WAC 352-37-200 Special group recreation event permit, which specifically allows the use of motorized vehicles. The vehicle may be used for access or in the event.

     (3) As provided by RCW ((43.51.720)) 79A.05.660, public vehicles operated in the performance of official duties and vehicles responding to an emergency can use the areas at any time.

     (4)(a) Motor vehicles may be used to remove sand from a beach access, gap road, or other area provided that all required permits have been obtained and the removal complies with all applicable requirements.

     (b) On the Long Beach Peninsula pursuant to RCW 4.24.210, ((43.51.045)) 79A.05.035(5), and ((43.51.715)) 79A.05.655(3), the Pacific County planning department and the city of Long Beach may issue permits for wood debris removal during any period of closure to vehicular traffic, in their respective jurisdictions, if in the opinion of said jurisdiction the amount, size, and location of such wood debris is determined to constitute a hazard to the general public and/or impede the movement of public vehicles on the ocean beach. Said permits shall be valid for twenty-four hours only. Persons seeking permits for removal of wood debris within the seashore conservation area must apply to the director or ((his)) designee for a wood debris removal permit.

     (5)(a) Motor vehicles may be used to remove wood debris under RCW 4.24.210 and ((43.51.045)) 79A.05.035(5) provided that all required permits have been obtained and the removal complies with all applicable requirements.

     (b) On the Long Beach Peninsula in accordance with RCW ((43.51.715)) 79A.05.655(4), the Pacific County planning department and the city of Long Beach may issue permits, on their respective jurisdictions, for the removal of sand on the ocean beach during periods of closure to vehicular traffic. Said sand removal shall occur only on beach access roads and private property under the terms of a covenant, easement, or deed that allows such activity. The local jurisdictions shall exercise good judgment in setting the terms of such sand removal permits. Such terms should prohibit sand removal during weekends, holidays, festivals, and other occasions when and where there is increased use of the ocean beach by the public. The hours of sand removal shall also be specified and shall prohibit this activity from occurring too early or too late in the day in order to minimize disturbance of nearby businesses, residents, and visitors.

     (6) In case of an emergency, motor vehicles may be used to maintain and construct erosion control devices, including bulkheads, provided that all required permits have been obtained and the operation of the vehicles and the construction complies with all applicable requirements.

[Statutory Authority: RCW 43.51.040. 90-07-050, § 352-37-070, filed 3/19/90, effective 4/19/90.]


AMENDATORY SECTION(Amending WSR 92-19-098, filed 9/17/92, effective 10/18/92)

WAC 352-37-090   Pedestrians to be granted right of way.   Vehicular and equestrian traffic shall at all times yield the right of way to pedestrians and nonmotorized vehicles on the ocean beaches. Except as provided in WAC 352-37-220, any violation of this section is an infraction under chapter 7.84 RCW.

[Statutory Authority: RCW 43.51.040 and 43.51.180(7). 92-19-098, § 352-37-090, filed 9/17/92, effective 10/18/92. Statutory Authority RCW 43.51.040. 90-07-050, § 352-37-090, filed 3/19/90, effective 4/19/90.]


AMENDATORY SECTION(Amending WSR 92-19-098, filed 9/17/92, effective 10/18/92)

WAC 352-37-100   Parking.   Parking of vehicles shall be permitted only in an area extending one hundred feet westerly from the upper or landward limit of the hard sand area, or driveable beach area (WAC 352-37-020) or where otherwise specifically designated by the Washington state parks and recreation commission. Beach parking shall only be allowed in areas open for beach driving. Except as provided in WAC 352-37-220, any violation of this section is an infraction under chapter 7.84 RCW.

[Statutory Authority: RCW 43.51.040 and 43.51.180(7). 92-19-098, § 352-37-100, filed 9/17/92, effective 10/18/92. Statutory Authority RCW 43.51.040. 90-07-050, § 352-37-100, filed 3/19/90, effective 4/19/90.]


AMENDATORY SECTION(Amending WSR 90-07-050, filed 3/19/90, effective 4/19/90)

WAC 352-37-190   Excluded/limited recreation activities.   The following forms of public outdoor recreation activities or devices are prohibited on the ocean beaches unless specifically designated therefore or authorized by the director as a special recreation event.

     (1) Vehicles not licensed and certificated pursuant to chapters 46.12 and 46.16 RCW.

     (2) Wind/sand sailers.

     (3) Parasails.

     (4) Hovercraft.

     (5) Powered parasail.

     (6) Ultra-light aircraft.

     (7) Powered hang gliders.

[Statutory Authority: RCW 43.51.040. 90-07-050, § 352-37-190, filed 3/19/90, effective 4/19/90.]


AMENDATORY SECTION(Amending WSR 95-22-067, filed 10/30/95, effective 1/1/96)

WAC 352-37-200   Special group recreation event permit.   (1) Any person or group desiring to make use of a portion of the ocean beaches for a group recreation event which will require the closure of the area to certain conflicting recreational uses, may apply to the director for a special group recreation event permit. The director, or his/her designee, may issue such a permit after consultation with the appropriate local government, if the event does not unduly interfere with normal public recreation. Such authorization shall include the closure of the specified area to recreational activities, including motor vehicle traffic, which are determined to have the potential to interfere with the event or which could risk the safety of the recreating public or the special event participants. However, no such authorization may result in the unreasonable exclusion of pedestrian recreationists from the specified portion of the ocean beach; all events authorized under this permit shall be open to public participation and/or observation.

     (2) In determining whether to issue the permit, the director or designee will review the proposal for consistency with established approval criteria developed by the agency, which are designed to ensure the appropriateness of the event to the ocean beaches, and the basis for any associated public recreation restrictions. The criteria are available upon request from the agency.

     (3) A special group recreation event permit shall be issued only for recreational events where there is a reasonable expectation that a minimum of twenty persons will participate. The event must be oriented towards a recreational pursuit. Not more than three permits will be issued to a given applicant for the same event during a one-year period. The group recreation activity must be consistent with the seashore conservation area (RCW ((43.51.650)) 79A.05.600 through ((43.51.685)) 79A.05.630), and may include an activity otherwise excluded under this chapter. Special group recreation events shall not exceed three days or seventy-two hours.

     (4) Persons or organizations that desire to conduct a special group recreation event on the ocean beaches shall submit a permit application provided by the director and appropriate fees to the:


          Washington State Parks and

          Recreation Commission

          7150 Cleanwater Lane

          P.O. Box 42650

          Olympia, WA 98504-2650


     Such application shall be submitted at least fifteen days in advance of the proposed date of the event, to allow for necessary internal review and analysis, consultation with local governments, public notice, establishment of permit conditions, and required agency preparations and coordination. The director or his/her designee shall approve or disapprove a permit application and establish the conditions for an approved application. The permittee must pay any fees published by state parks for the use of park lands or facilities. The director or the designee shall determine the need for any fees necessary to cover costs incurred by the agency, as well as the need for any bond, damage deposit, or liability insurance arising from any potential hazards associated with the character of the event. Any such fees, bond, damage deposit, or liability insurance shall be provided prior to the issuance of the permit.

     (5) If additional costs are incurred by the commission resulting from the event, the applicant shall reimburse the commission for such costs in a timely manner. If the additional costs are not paid, the director may recover such costs from the bond or damage deposits provided if previously required. Any funds remaining from the bond or damage deposit shall be returned to the applicant.

[Statutory Authority: RCW 43.51.040 and [43.51.]060. 95-22-067, § 352-37-200, filed 10/30/95, effective 1/1/96. Statutory Authority RCW 43.51.040. 90-07-050, § 352-37-200, filed 3/19/90, effective 4/19/90.]

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