WSR 25-04-113

PROPOSED RULES

NOXIOUS WEED

CONTROL BOARD

[Filed February 5, 2025, 8:59 a.m.]

Continuance of WSR 24-20-110.

Preproposal statement of inquiry was filed as WSR 24-14-059.

Title of Rule and Other Identifying Information: Chapter 16-750 WAC, State noxious weed list and schedule of monetary penalties. The Washington state noxious weed control board (WSNWCB) is proposing to amend the state noxious weed list for 2025.

Hearing Location(s): On March 11th, at 1:00 p.m., at the Chelan County Fire Hall, 232 E. Wapato Avenue, Chelan, WA 98816; or via WebEx, meeting link https://agr.webex.com/agr/j.php?MTID=mdce0daa58e8252f269f034648c96e57c; or phone 877-312-2531, Meeting ID 2530 144 4766.

Date of Intended Adoption: March 12, 2025.

Submit Written Comments to: Mary Fee, WSNWCB, P.O. Box 42560, Olympia, WA 98504-2560, email mfee@agr.wa.gov or noxiousweeds@agr.wa.gov, fax 360-902-2053, beginning February 1, 2025, by Monday March 10, 2025.

Assistance for Persons with Disabilities: Contact Mary Fee, phone 360-561-4428, fax 360-302-2053, TTY 800-833-6388, email mfee@agr.wa.gov, by Monday, March 10, 2025.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The Washington state noxious weed list provides the basis for noxious weed control efforts for county noxious weed control boards and other entities. It also provides guidelines for WSNWCB. This proposal updates the noxious weed list in chapter 16-750 WAC. The anticipated effects include having an effective and efficient noxious weed list.

Updates to the noxious weed list: WAC 16-750-015 Class C noxious weed changes and additions; adding English holly, Ilex aquifolium.

English holly, Ilex aquifolium, was first proposed to be added as a class C noxious weed, with the exception for commercially grown, to the state noxious weed list in 2010. English holly was shown to be highly invasive creating infestations in native areas. WSNWCB worked with holly growers to create an exception to help mitigate negative impacts to commercial holly farms. WSNWCB voted to reject the proposal to add English holly as a class C noxious weed (except where commercially grown) for the 2011 noxious weed list. Although there is no dispute that English holly can be spread into forests by birds, there was insufficient scientific research at the present time to indicate that it meets the criteria of a noxious weed as defined in RCW 17.10.010. Specifically, scientific research was lacking at this time to demonstrate that its presence in forests causes detrimental ecological impacts.

Ilex aquifolium was again purposed as a class C noxious weed for the 2022 noxious weed list. Additional scientific data was submitted regarding holly under forest canopies, exponential holly growth in certain forest conditions, and potential holly impacts on forests. WSNWCB worked closely with commercial holly growers to provide verbiage that would help mitigate potential negative impacts to the industry. The word "feral" was introduced to help distinguish invasive holly from Christmas holly or English holly, although they are the same species. The intent was to educate that invasive holly was plants or infestations that had gone "feral" or in unmanaged locations. Additionally, the proposal included the wording "not including holly found in managed landscapes or where commercially or agriculturally grown." WSNWCB facilitated meetings with the commercial holly growers along with a tour of a commercial holly orchard. WSNWCB considered testimony from the hearing for this proposal and were divided on the vote to list feral holly. Due to the tie vote, feral holly, Ilex aquifolium, was not added to the 2022 noxious weed list.

Once again, holly was proposed as a class C noxious weed for the 2025 noxious weed list. Additional scientific data was submitted pertaining to the growth of holly infestations and invasiveness of English holly. WSNWCB worked closely with commercial holly growers to create wording that would help mitigate potential negative impacts to the holly industry in the Pacific Northwest. The word "wild" was used to separate invasive holly from Christmas or English holly and the whole genus, Ilex species, rather than the species-specific Ilex aquifolium. The whole proposed language was "Feral holly, Ilex species, not including holly found in managed landscapes, or where commercially or agriculturally grown.["]

Although there was sufficient scientific data to indicate that Ilex aquifolium meets the criteria of a noxious weed defined in RCW 17.10.010 and has an ecological impact, there was some debate about the wording for this proposal. Some stakeholders agreed with listing Ilex aquifolium but disagreed with listing the whole genus because some species within the genus are native and not invasive. This listing may have had unintended negative impacts on those species. Therefore, WSNWCB voted to postpone this proposal to amend the language to include only the species Ilex aquifolium, which included filing this CR-102. WSNWCB voted to hold the hearing for the new proposed language March 11, 2025, followed by their regular meeting on March 12th at which they will vote on this proposed holly listing.

Reasons Supporting Proposal: Under RCW 17.10.080, WSNWCB is charged with updating the state noxious weed list on an annual basis to ensure it accurately reflects the noxious weed control priorities and noxious weed distribution. Under RCW 17.10.070, WSNWCB is charged with adopting, amending, or repealing rules, pursuant to the Administrative Procedure Act, chapter 34.05 RCW, as may be necessary to carry out the duties and authorities assigned to the board by this chapter.

The proposed addition of English holly, Ilex species, as a C noxious weed species is intended to help control nonnative holly in wilderness, ecosystems, and habitats and to limit its distribution to uninfested areas as well as allow for funding and permitting of control work.

Statutory Authority for Adoption: RCW 17.10.070 and 17.10.080.

Statute Being Implemented: Chapter 17.10 RCW.

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

Name of Proponent: WSNWCB, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Mary Fee, 1111 Washington Street S.E., Olympia, WA 98504, 360-561-4428.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. WSNWCB is not one of the agencies listed in this section.

Scope of exemption for rule proposal:

Is not exempt.

The proposed rule does impose more-than-minor costs on businesses.

Chapter 16-750 WAC

State Noxious Weed List and Schedule of Monetary Penalties

A Rule Concerning 2025 Noxious Weed List and Updates

Date 2/3/2025

SECTION 1:Describe the proposed rule: Chapter 17.24 RCW mandates "a strong system" to protect the forest, agricultural, horticultural, floricultural, and apiary industries of the state from the impact of insect pests, plant pathogens, noxious weeds, and bee pests and infestations. WSNWCB is charged with updating the state noxious weed list annually per RCW 17.10.080. Noxious weeds and invasive species adversely affect Washington's agriculture, natural and human resources, and wildlife habitats both terrestrial and aquatic. Eradication and control of noxious and invasive weed species limits economic loss and minimizes negative impacts to both businesses and the landscape protecting the forest, agricultural, horticultural, floricultural, and apiary industries of the state from noxious and invasive weed invasions.

The Washington state noxious weed list provides the basis for noxious weed control efforts for county noxious weed control boards and other entities. It also provides guidelines for the state noxious weed control board. This proposal makes one amendment to WAC 16-750-015. Specifically, WSNWCB is proposing: WAC 16-750-015 Class C noxious weed addition; English holly, Ilex aquifolium.

English holly, Ilex aquifolium, is a slow-growing evergreen shrub or tree. Birds spread the berries, which has allowed holly to become established in natural areas, such as native lowland forest and riparian zones. New scientific data indicates that in forests, holly can form dense thickets that can suppress native shrubs and young trees. Holly also reproduces by producing suckers, and branches can root where they touch the ground. Holly is tolerant of a wide range of soil, moisture, and light conditions, allowing it to invade a variety of sites. All parts of the plant can be toxic to humans, if ingested in large quantities. Berries are the most likely part to be eaten and can cause gastrointestinal problems in children who have eaten as few as three berries.

A brief description of the probable compliance requirements and the kinds of professional services that a small business is likely to need to comply with the proposed rule:This rule making may affect any businesses that own land infested with wild holly. The listing of English holly means that county noxious weed boards have the option to subsequently select English holly for mandatory control. Control is defined in WAC 16-750-003 as the prevention of all seed production and the prevention of the dispersal of all propagative parts capable of forming new plants. There is not a requirement of plant or tree removal. The noxious weed list is separate from the Washington state department of agriculture (WSDA) quarantine lists (chapter 16-752 WAC), which prohibit the sale and transport of particular species, so the proposed listing of English holly would not prohibit the production or sale of English holly grown for foliage or for horticultural use. A class C listing of English holly does not itself require control by landowners. County noxious weed control boards would have the option of selecting it for mandatory control. The vast majority of county noxious weed control boards polled indicated either an interest in educating the public or taking no regulatory action at all about English holly. Therefore, there are no compliance requirements for this proposed listing.

SECTION 2:Identify which businesses must comply with the proposed rule using the North American Industry Classification System (NAICS) codes and the minor cost thresholds: The businesses listed in this table have the potential to grow and/or sell English holly.

SECTION 3:Analyze the probable cost of compliance: There will be no increase in licensing, inspections, or other fees for the proposed listings.

Currently, many entities are controlling English holly on a voluntary basis. These entities have chosen to do so because of English holly's negative impact on the ecosystem and native habitat reducing native vegetation and wildlife. Additionally, some entities control English holly because it impacts their forestry product quality. English holly, if not controlled, can impede tree growth and lessen the quality of forest products. Examples of the cost of control (this is not an all-inclusive list, there are many more entities controlling holly in the state of Washington):

King County's noxious weed control program has helped control over 600 gross acres of holly at over 30 sites, totaling a cost of $583,214 over a five-year period.

The Bainbridge Island Land Trust has contributed over $20,000 over seven properties for holly control. This includes EZ-jet treatments, manual control, and follow-up foliar control. Control costs are more per acre in dense infestations.

The Green Seattle Partnership, which manages forested parklands, has spent an estimated $1,200 per acre for holly removal on an estimated 360 acres, totaling an estimated cost of $432,000.

The 10,000 Year Institute utilizes several weed management techniques to control holly including, but not limited to, cut-stump and chainsaw crews, cutting and treating stems and stumps.

Listing English holly as a class C noxious weed species may have the benefit of allowing these entities to apply for funding and obtain the correct permitting to control holly.

Because so many noxious weeds are former or present ornamental species, the horticultural industry has the potential to be impacted by additions of new noxious weed species, as their noxious weed status could reduce demand by consumers. However, it is unlikely that these changes will directly cause these businesses to lose sales, revenue, or jobs. The noxious weed list is separate from the WSDA quarantine list (chapter 16-752 WAC), which prohibits the sale and transport of particular species, thus these potential noxious weed changes would not directly prohibit the sales of English holly. To help assess whether there could be an indirect economic impact to nurseries and businesses, WSNWCB developed a survey through SurveyMonkey (https://www.surveymonkey.com/r/JBX9N3H). A summary of the previously proposed changes to the 2025 noxious weed list, along with a link to the online survey, was emailed on August 26, 2024, to approximately 4,800 nurseries that had provided emails when applying for their WSDA nursery licenses. Additionally, the survey was forwarded to Washington State Nursery and Landscape Associations channels, the Northwest Holly Growers Association, Friends of Farms and Forest, the Cattlemen's Association, and several other email lists. A total of 39 electronic responses were received from nurseries and businesses.

Survey Results:Proposed addition of wild holly, Illex species, as a class C species.

A total of 25 (65.79 percent) nurseries or businesses that answered this question indicated that they do not stock Illex species as part of their inventory or have it on their land, 13 (34.21 percent) indicated that they did have holly as part of their inventory or on their land, and zero were not sure. Of the nurseries or businesses that answered this question, 18 total nurseries or businesses answered the follow-up question pertaining to any resulting economic loss, either due to a reduction in revenue or lost jobs. A total of 13 (72.22 percent) nurseries or businesses indicated that this class C addition would not cost their businesses in lost revenue or lost jobs, one (5.56 percent) was not sure, and four (22.2 percent) indicated that it would. Of the four, holly growers indicated an indirect negative impact to their businesses and loss of jobs due to the negative perception of holly species as a noxious weed. This ruling would not restrict the sales or exportation of holly. One holly grower indicated an indirect cost for marketing to respond to and counteract the perception of holly as a noxious weed, undesirable and harmful. The estimated cost of loss of sales due to this perception from this holly grower is 20 percent, plus $66,000 annually for marketing. Another response indicated a different loss per year for the concerns regarding the perception of holly if listed, estimated at around 30 percent loss in sales, or $2,100, with the anticipation that each year sales will decline. One out of state holly grower responded from Oregon (OR) indicating an indirect loss of $100,000 and 10 jobs. Additionally, one respondent noted a loss of $3,000 but did not indicate the reason. Businesses were also asked if they sell one or more comparable species. A total of 17 nurseries or businesses responded with 10 stating no, six stating yes, and one that were unsure. One respondent noted the negative economic impact of controlling holly infestations if not listed.

On January 28th, WSNWCB requested additional data from commercial holly growers pertaining to the potential impacts on their commercial operation if English holly is listed as a class C noxious weed. Holly growers were contacted via phone calls and emails.

Faith, Frace, and Gritt Farms, LLC [Faith Grace & Grit Farms, LLC] located in Salem, Oregon stated concerns about losing their livelihood, farm status, and productive holly crop if the government forces the removal of holly trees. This farm does insist on maintaining holly as a cultivated crop. No dollar amount reflecting potential losses was reported.

Columbia Gorge Holly Farms reported a potential loss of 20 percent to orchard production and revenue amounting to $66,000, plus an additional $1,000 in marketing costs associated with a class C listing. This farm also reported experiencing a negative economic impact from previous proposed listing of holly but did not report a dollar amount from previous impacts. Columbia Gorge Holly Farms also has concerns that a class C listing would place their entire orchard and investment at risk valued at more than $2,000,000 if their farm becomes subject to provisions of RCW 17.10.140. Please note that WAC 16-750-003 states the control requirements for the classes of noxious weeds. There are no state regulations for class C noxious weeds. However, a county noxious weed program may select a class C for required control within that county. Control is defined as the prevention of all seed production and the prevention of the dispersal of all propagative parts capable of forming new plants, not the removal of trees.

Four B's Farm state concerns about the negative perception of holly if listed and about landowners cutting down holly trees.

Four B's Farm also stated they did not have a way to prove loss of future sales and recommended that WSNWCB contact other states about prohibiting the sale of Washington state listed noxious weed species. Four B's Farm did report that holly farms have invested 70 to 100 years into their products and has concerns that a class C listing would lead to a loss of sales first in Washington state and then in other states and Canada.

Holly Hill Orchards has reported a loss of over $20,000 over the past five years which they partially contribute to the previous class C proposed listing of holly. Holly Hill Orchard also predicts a potential loss of 20 percent ongoing from the negative perception of holly if listed as a noxious weed. They also have concerns about the potential of a county noxious weed control board requiring control of commercial holly, therefore requiring this farm to close their business. Holly Hill Orchards reported that they purchased this farm right after the 2010 holly proposed listing. The previous owner estimated a total of $80,000 in annual sales, but they have not achieved that. They believe this is partially due to the previous listing proposals. Additionally, Holly Hill Orchards have received threats and heckling within the last few years as English holly has been in the media as an invasive species.

Hurd Holly Farm and A Knot In Thyme farm did not report any financial impacts but do not want to see the negative association with listing holly as a class C noxious weed.

Lynch Creek Farm, which uses holly grown locally in their products, reported an increase in sales of holly products from 2023 to 2024. However, they also do not want to see a negative perception of holly due to a class C listing.

SECTION 4:Analyze whether the proposed rule may impose more-than-minor costs on businesses in the industry: English holly is being proposed as an addition to the class C noxious weed species list. Class C noxious weed species are not designated for control at the state level. The intent in adding wild holly to the class C noxious weed list is to educate and provide outreach on the concern of the threat to both native habitats, forests, and agriculture. This may also give individuals and agencies the ability to get and provide funding for on the ground control work. Many funding sources will only provide funds for listed species. Additionally, a class C listing will allow for permitting for the removal of English holly along shorelines and in sensitive areas.

Potentially commercial holly sales may be indirectly impacted. The Northwest Holly Growers Association and additional commercial holly farms have concerns that listing English holly as a class C noxious weed will give the perception that holly is a "bad plant" which in turn may reduce their sales of English holly used in Christmas wreaths and ornaments. The Northwest Holly Growers Association and members have self-reported costs associated with the proposed English holly listing. These costs include loss of sales and marketing totaling over an estimated $86,000 to counteract the perception of holly as a noxious weed, undesirable and harmful. Concerns about the loss of these farms' livelihoods and investments have also reported estimating over $1,000,000 if these farms are required to cut down their trees. However, there is no regulatory compliance associated with the listing of English holly at this time. Based on the potential for indirect reputational effects that decrease demand for commercial holly, this SBEIS assumes that the proposed rule may impose more-than-minor costs on commercial growers of holly.

Additionally, entities controlling holly have reported the cost of voluntary control to total over an estimated $1,000,000 for previous control work. A class C listing may help to provide funding and permitting for the control of holly in shoreline and sensitive areas.

Also, consider, based on input received, whether compliance with the rule will cause businesses to lose sales or revenue: Overall, there is insufficient data to calculate the disproportionate impacts to small businesses. Thus, for purposes of this SBEIS, we assume there will be disproportionate impacts. The proposed rule changes will not result in any costs to comply. However, commercial holly growers may potentially be impacted by the negative perception of holly as a "bad plant" reducing their sales.

Under RCW 19.85.030(2), each agency must consider, without limitation, each of the following methods of reducing the impact of the proposed rule on small businesses: To mitigate the perceived cost to holly growers from the proposed English holly listing, WSNWCB's education committee has discussed including statements in specific brochures and educational materials that will provide information promoting the sustainable farming for English and/or Christmas holly and education on control for holly that is found in unmanaged forests, wildlands, and landscapes. WSNWCB will work closely with WSDA and Washington invasive species council to promote a campaign educating about the benefits of commercial holly and the impacts of invasive holly.

WSNWCB staff have contacted several states including New York and California and British Columbia, Canada regarding import laws. Listing English holly as a noxious weed in Washington state will not impede the importation of holly into those states and Canada. However, if a state or Canadian province lists holly to their own invasive species list, then it may not be allowed to be imported into that state or province.

A class C listing will not impose state requirements to cut down commercial holly trees or require any commercial business to stop growing, selling, or producing English holly. WSNWCB staff have surveyed county noxious weed control programs and none are planning on requiring control of English holly at the local level. If a county were to select English holly for control, control is only defined as the prevention of all seed production and the prevention of the dispersal of all propagative parts capable of forming new plants and not cutting down or removal of any trees. Harvesting English holly while in fruit could potentially meet any county required control.

Stakeholder contact events:

WSNWCB had taken into consideration letters from individual holly growers as well as the Northwest Holly Growers Association pertaining to the perceived cost and impacts to commercial holly businesses and their recommendations for the proposed rule wording. WSNWCB did consider written and verbal testimony at the November 5th open public hearing regarding the 2025 proposed noxious weed list changes. WSNWCB voted on November 6th to postpone the decision on listing holly as a class C to adjust the proposed wording to only include the species Ilex aquifolium rather than the whole genus. There were testimonies given with concern that a genus listing would impact native holly and noninvasive holly populations. Many species within the genus are not invasive and do not pose a threat to Washington agriculture, native habitats, or ecosystems.

On January 28, 2025, WSNWCB requested additional data from holly growers pertaining to the potential impacts on their commercial operation if English holly is listed as a class C noxious weed. Holly growers were contacted via phone calls and emails.

WSNWCB has gained additional information from holly growers pertaining to the potential impacts of listing holly as a class C noxious weed. Agencies and other entities also gave information regarding the cost for controlling holly.

SECTION 8:Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule: One out-of-state grower suggested 10 jobs will be lost due to the perception of holly as harmful or undesirable. However, it is estimated that no jobs will be lost due to compliance requirements of the proposed rule. There is no state mandated regulatory compliance for the proposed listing of English holly.

SECTION 9:Summarize the results of the analysis, including the determination if costs are disproportionate: English holly is known to invade riparian and sensitive areas as well as grow in forested understories. Noxious weeds are very invasive species that when left uncontrolled outcompete agricultural crops and native species. Noxious weed infestations negatively impact both terrestrial and aquatic habitats as well as farming and grazing lands.

Overall, there is insufficient data to calculate the disproportionate impacts to small businesses. Thus, for purposes of this SBEIS, we assume there will be disproportionate impacts. However, the proposed rule changes will not result in any costs to comply. Holly growers anticipate an indirect negative economic impact to English holly sales due to the perception of English holly as an undesirable plant if listed. The WSNWCB staff has contacted several other states pertaining to the importation of a Washington state listed noxious weed species. None of the states contacted will have any restrictions on importing English holly as a class C noxious weed. Those states would regulate the importation of the English holly if it were listed on their own state's noxious weed or quarantine lists.

WSNWCB has taken measures to help mitigate indirect costs to holly growers associated with this listing. If English holly is listed, WSNWCB will work with both the WSDA and Washington invasive species council to promote a campaign to educate about the benefits of commercial holly and the impacts of invasive holly. If English holly is selected for control by a county noxious weed control program (if listed), then control is defined in WAC 16-750-003 as the prevention of the spread of seeds and propagating parts. There is no requirement of removal of trees or requirement of stopping sales of commercial holly.

A copy of the statement may be obtained by contacting Mary Fee, P.O. Box 42560, Olympia, WA 98504-2560, phone 360-561-4428, fax 360-902-2094, TTY 800-833-6388, email mfee@agr.wa.gov.

February 2, 2025

Mary Fee

Executive Secretary

RDS-6163.1