WSR 00-21-116



[ Filed October 18, 2000, 11:12 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-17-105.

Title of Rule: Rules relating to wetland and aquatic weeds quarantine, chapter 16-752 WAC.

Purpose: Amendment of existing rule to add species to the list of invasive, nonnative wetland and aquatic weed species that are prohibited from distribution into or within the state. Also, clarification and update of rule language and taxonomy.

Statutory Authority for Adoption: Chapters 17.24, 15.13 RCW, RCW 17.10.074 (1)(c).

Statute Being Implemented: Chapters 17.24, 15.13, 17.10 RCW.

Summary: The amendments would add fifteen invasive, nonnative wetland or aquatic weed species to the list of species that are prohibited from distribution, transportation, sale, purchase, or offer for sale in this state. Many of these species are already subjects of mandatory control under chapter 17.10 RCW, and all have potential to cause grave environmental and economic harm.

Reasons Supporting Proposal: Once established, aquatic weeds are extraordinarily difficult to eliminate, and the control measures available may have environmental consequences that are, in themselves, highly undesirable. Unlike terrestrial weeds, aquatic weed removal and eradication becomes a public project almost immediately, as ownership and responsibility for waterbodies is usually shared and ill-defined.

Name of Agency Personnel Responsible for Drafting: Mary Toohey, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1907; Implementation and Enforcement: Tom Wessels, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1984.

Name of Proponent: Washington State Noxious Weed Control Board, Washington Department of Agriculture, public and governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The existing rule forbids the sale or distribution of seven species of nonnative, invasive wetland or aquatic weeds. Its intention is the exclusion of plant species that are highly undesirable from environmental quality and also economic standpoints. Once established in a waterbody, these species degrade habitat for native plants, fish and animals, frequently crowding out native species and eliminating food sources. They can also form dense stands or mats that obstruct water use and boat traffic, block irrigation systems, and decrease functioning of wetlands. Because these species are extremely aggressive in establishing themselves, any introduction into new habitat is likely to result in infestation. There are few effective tools for eliminating infestations in aquatic or wetlands environments, and, due to public ownership or stewardship of many bodies of water, projects to control or eradicate these weeds usually become a public agency responsibility. The difficulty of carrying out successful eradication makes exclusion doubly important. Without the rule, the rate of introduction and spread of these weeds would be greatly increased.

The proposed amendments would add fifteen additional species to the list of nonnative, invasive wetland or aquatic weeds that cannot be sold or distributed in this state, for the same reasons as the current seven species.

Proposal Changes the Following Existing Rules: Proposal adds fifteen species of wetland and aquatic weeds to the existing list. It gives a fuller explanation of the undesirable characteristics of the quarantined species, adds chapter 15.13 RCW to the list of authorizing statutes, and converts the text to clearer and more readable format.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Analysis indicates a very small portion of the businesses in the relevant classifications would be affected, with no businesses likely to suffer more than minor costs.

Small Business Economic Impact Analysis

Rule Summary: A proposed revision to WAC 16-752-500, the wetland and aquatic weed quarantine, prohibits the sale of fifteen species of aquatic plants in addition to the seven species currently listed. After carefully considering the biology and potential invasiveness of these species the department has determined there is a sufficiently high risk that these species would affect the abundance and diversity of native species if established in Washington waters.

The additional species are Butomus umbelatus (flowering rush), Cabomba carolinia [caroliniana] (fanwort), Epilobium hirsuitum (hairy willow herb), Glossostigma spp. (mud mat), Hydrocharis morsus-ranae (European frogbit), Lagarosiphon major (African elodea), Ludwigia hexapetala (water primrose), Lysimachia vulgaris (garden loosestrife), Murdannia keisak (marsh dew flower or Asian spiderwort), Najas minor (slender-leaf naiad or brittle naiad), Nymphoides peltata (yellow floating heart), Sagittaria graminea (grass-leafed arrowhead), Spartina densiflora (dense-flowered cordgrass), Trapa natans (water chestnut or bull nut) and Utricularia inflata (swollen bladderwort).

These species are nonnative plants and are known to be highly invasive in areas with a latitude and climate similar to that of Washington. The proposed species are or have potential to be sold in the nursery and aquarium trade, often over the Internet. The plants proposed for quarantine have the potential ability to survive in Washington and, if established, could severely affect the ecology of marshes, lakes, rivers and wetlands of Washington.

Affected Groups: The proposed quarantine species are used primarily in aquariums and water gardens. Chapter 15.13 RCW, Horticultural Plants and Facilities Act, requires all businesses with sales of horticultural plants in excess of one hundred dollars annually to obtain a nursery dealer's license; therefore, all affected business would be licensed nurseries. The Directory of Licensed Nursery Dealers 2000 lists all wholesale and retail nurseries. The nurseries affected by this proposal include wholesale nurseries (SIC code 0181) which grow and sell aquatic plants and retail nurseries (SIC code 5261) and/or pet stores (SIC code 5999) that sell aquatic plants.

There are eight hundred and fifty-three wholesale nurseries operating in Washington. Wholesale nurseries dealing in any of the species proposed for quarantine are very unusual; however, after persistent inquiries we were able to identify two of them.

Most of the affected businesses dealing in aquatic plant species are retail nurseries and pet stores. Based on data obtained in WSDA's customer survey completed in February 2000, the number of retail nurseries selling aquatic plants is estimated to be approximately nine hundred and fifty or thirteen percent of the total number of retail plants dealers. Of these, only a handful of retail nurseries are known to be selling any of the proposed quarantine species.

From the above information this proposal will affect less than ten percent of the businesses of any one industry.

Economic Impact on Affected Groups: All of the proposed quarantine species have some commercial potential, either as an aquarium plant, a water garden plant or as a food crop, but with the exception of Cabomba carolinia [caroliniana], they are not widely sold in the state.

The economic loss to any affected business would be through the loss of sales. This revision does not contain additional record keeping or reporting requirements and affected businesses will not have to hire additional professional help to implement the rules. The proposed quarantined species can be readily identified by standard labeling practices of the nursery trade. There is no reason to believe there would be any disproportionate negative impact on small businesses.

Of the fifteen species added in the proposed quarantine revision, only Cabomba carolinia [caroliniana] is sold in significant amounts by aquatic plant dealers in Washington. Although most pet stores dealing with aquarium plants sell this species, the impact on those businesses would likely be minimal since other less invasive species could easily be substituted and selling aquatic plants is a minor part of any such businesses. Hydrocharis morsus-ranae is offered as a water garden plant in some Washington nurseries; however, it does not constitute a significant portion of the aquatic plant trade. If this rules revision is adopted, the most probable loss to any affected business will be disposal of currently existing inventories of regulated species when revised rule becomes effective. However, even in a large pet store losses due to inventories of C. carolinia [caroliniana] would be minor.

Industry Outreach: The agency has discussed the proposal with the Nursery Advisory Committee established in RCW 15.13.335. This committee represents all major aspects of the nursery industry in Washington. An article in a newsletter distributed by the Washington State Noxious Weed Board generated several contacts between WSDA and several businesses that sell aquatic plants. Several retail and wholesale businesses selling both aquarium plants and water garden plants were also contacted directly. Although specific figures were not obtained, none of the contacted businesses felt that the proposed prohibition of the fifteen species would be a significant economic cost to them.

However, most of the contacted businesses are opposed to the revision. Many references were made to the 1992 quarantine of Elodea densa, which one dealer stated costs individual businesses up to $1800 in lost sales annually. Many also stated that these aquatic plants are used in contained environments and have a low risk of moving to natural waters. They felt a greater effort should be made to educate gardeners and aquarium enthusiasts in the proper disposal of discarded aquatic plants, instead of prohibiting the sale of more plant species.

Alternatives to revising WAC 16-752-505: There are currently seven aquatic species listed in the wetlands and aquatic weed quarantine, most of which have infested Washington waters. Adding fifteen additional species to the quarantine will not necessarily entirely prevent their introduction into state waters, but it would lessen the risk. A greater effort could be made to educate the public on the responsible handling and disposal of exotic plants. Alternatively, a comparatively higher risk of infestation of the state's waters could be accepted, and greater efforts to detect and eradicate new infestations of aquatic weeds could be funded and carried out.

Summary: The proposed revision of chapter 16-752 WAC, Wetlands and aquatic weed quarantine, adds fifteen additional species of aquatic plants to the seven species currently under quarantine. If the proposal is adopted the sale of these plants will be prohibited.

All affected groups are licensed nursery dealers and include wholesale nurseries, retail nurseries and pet stores.

A very small portion of the businesses in the relevant classifications will be affected with no businesses likely to suffer more than minor cost, although most of the affected businesses contacted oppose the revision.

Because the proposed revision will not impose more than minor costs on businesses in the industries a small business economic impact statement is not required.

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, Room 271, Olympia, WA 98504-2560, on November 28, 2000, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact Lou Jones by November 21, 2000, TDD (360) 902-1996, or (360) 902-1806.

Submit Written Comments to: Mary Toohey, Assistant Director, Laboratory Services Division, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, e-mail, fax (360) 902-2094, by November 28, 2000.

Date of Intended Adoption: December 6, 2000.

October 18, 2000

Mary A. Martin Toohey

Assistant Director

AMENDATORY SECTION(Amending WSR 92-07-024, filed 3/10/92, effective 4/10/92)

WAC 16-752-500
Establishing wetland and aquatic weed quarantine.

Washington waters and wetlands are threatened by nonnative, aggressive((, perennial)) weeds that destroy the commercial, aesthetic, fish and/or wildlife habitat and recreational value of these areas. ((Parrot's Feather (or parrotfeather or waterfeather),)) African elodea, Brazilian elodea (or egeria), ((e)) Eurasian watermilfoil, fanwort, slender-leaved naiad, and hydrilla((,)) and water chestnut (a different species from the food "water chestnut" commonly sold in grocery stores) are submersed, rooted species that can invade shallow to deep water. Parrotfeather, water primrose and yellow floating heart are rooted plants that invade shallow water and aquatic margins. European frogbit and swollen bladderwort are freely floating species. These species, when established, form dense mats that will clog irrigation systems and waterways, displace native species, alter fish and wildlife habitat, and seriously impact recreational use of the waterways.

Garden loosestrife, hairy willow herb, grass-leaved arrowhead, mud mat, marsh dew flower and flowering rush are rooted plants which invade wetlands, shallow water and aquatic margins. When established, their dense stands displace native vegetation and harm wildlife habitat.

Salt meadow cordgrass, common cordgrass, and smooth cordgrass are noxious weeds that have invaded ((a small part of the)) salt water estuarine areas on the Washington coast displacing native species, threatening bird and mammal habitats and the shellfish industry. Dense-flowered cordgrass, a closely related species, has potential to duplicate this invasion.

The director of agriculture, pursuant to the powers provided in chapters 17.10, 15.13 and 17.24 RCW, finds that the regulation and exclusion of these plants and plant parts are necessary to preserve Washington waters and wetlands, both fresh water and estuarine, from new or additional infestation. These requirements and restrictions, contained in WAC 16-752-500 through 16-752-525, are in addition to the requirements contained in WAC 232-12-271, "Criteria for planting aquatic plants and releasing wildlife," administered by the Washington state department of fish and wildlife.

[Statutory Authority: RCW 17.10.235 and chapter 17.24 RCW. 92-07-024, 16-752-500, filed 3/10/92, effective 4/10/92.]

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 92-07-024, filed 3/10/92, effective 4/10/92)

WAC 16-752-505
Wetland and aquatic weed quarantine -- Regulated articles.

All plants and plant parts of the following are regulated articles under this chapter: ((Eurasian watermilfoil (Myriophyllum spicatum); hydrilla (Hydrilla verticillata); salt meadow cordgrass (Spartina patens); common cordgrass (Spartina anglica); smooth cordgrass (Spartina alterniflora); Parrot's Feather, parrotfeather or waterfeather (Myriophyllum aquaticum also known as M. brasiliense or M. proserpinacoides); and Brazilian elodea or egeria (Egeria densa or Elodea densa).))

Scientific Name Common name
Butomus umbelatus flowering rush
Cabomba caroliniana fanwort
Egeria densa Brazilian elodea
Epilobium hirsutum hairy willow herb
Glossostigma diandrum mud mat
Hydrilla verticillata hydrilla
Hydrocharis morsus-ranae European frog-bit
Lagarosiphon major African elodea
Ludwigia hexapetala water primrose
Lysimachia vulgaris garden loosestrife
Murdannia keisak marsh dew flower, Asian spiderwort
Myriophyllum aquaticum parrotfeather
Myriophyllum spicatum Eurasion watermilfoil
Najas minor slender-leaved naiad, brittle naiad
Mymphoides peltata yellow floating heart
Sagittaria graminea grass-leaved arrowhead
Spartina alterniflora smooth cordgrass
Spartina anglica common cordgrass
Spartina densiflora dense-flowered cordgrass
Spartina patens salt meadow cordgrass
Trapa natans water chestnut, bull nut
Utricularia inflata swollen bladderwort

[Statutory Authority: RCW 17.10.235 and chapter 17.24 RCW. 92-07-024, 16-752-505, filed 3/10/92, effective 4/10/92.]

AMENDATORY SECTION(Amending WSR 92-07-024, filed 3/10/92, effective 4/10/92)

WAC 16-752-515
Wetland and aquatic weed quarantine -- Exemptions.

The prohibition on transporting plants or plant parts in WAC 16-752-510 shall not apply to plants or plant parts collected for herbariums, research in control methods, creation of pressed specimens for educational or identification purposes and other scientific activities, except ((: Provided, T)) that all activities requiring live plants, except pressed specimens, are conducted under permit from the director and are conducted in such a way that no infestation is created. No permit is required to transport plants or plant parts, as a part of a noxious weed control activity, to a sanitary landfill, to be burned, or otherwise for disposition, if((: Provided, That)) such activities are conducted under the supervision of an official weed control agency or other public agency with management responsibilities for the control efforts and are conducted in such a manner that seed dispersal or dispersal of propagative materials to uninfested areas is ((are)) prevented. No permit is required for ((L)) live plants for educational or training purposes, if the ((shall not require a permit provided that)) specimens are disposed of in such a manner as to prevent infestation.

[Statutory Authority: RCW 17.10.235 and chapter 17.24 RCW. 92-07-024, 16-752-515, filed 3/10/92, effective 4/10/92.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 92-07-024, filed 3/10/92, effective 4/10/92)

WAC 16-752-520
Wetland and aquatic weed quarantine -- Disposition of regulated articles.

Any plants or plant parts transported, bought, sold, offered for sale, or planted in violation of this order shall be subject to destruction or shipment ((back)) out-of-state if the ((director)) department determines that such shipment may be done without danger of infestation. Any action will ((shall)) be at the expense of the owner or the owner's agent and without compensation.

[Statutory Authority: RCW 17.10.235 and chapter 17.24 RCW. 92-07-024, 16-752-520, filed 3/10/92, effective 4/10/92.]

Washington State Code Reviser's Office