WSR 00-03-064


[ Filed January 18, 2000, 4:07 p.m. ]

January 18, 2000


Mr. T. Wade Clegg III

No. 7 Organic Farm

P.O. Box 367

163 Wills Road

Glenoma, Washington 98336

Re: Appeal of the November 4, 1999 denial by the Department of Natural Resources Forest Practices Board (the "Board") of that certain Petition for Adoption, Amendment, or Repeal of a State Administrative Rule, dated April 1998, filed by T. Wade Clegg III, seeking amendment of rules related to pesticides (the "Petition")

Dear Mr. Clegg:

Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal of the Petition and the relevant statutes and regulations, and after careful consideration, hereby deny the appeal. The Board denied the Petition in good faith after substantial review and consideration. The actions of the Board in denying the Petition are not such that intervention by the Governor is appropriate.

It is apparent that, as an organic farmer, you are wholeheartedly committed to providing produce free from any chemical contamination from whatever sources. This is evident from your communications with the Department of Transportation regarding roadside vegetation management and your extensive correspondence with the Department of Agriculture. Your objective is worthwhile, and it seems likely that your customers would appreciate your efforts.

When an executive branch agency adopts regulations, it must do so under statutory direction from the legislature. This was re-emphasized specifically in the Regulatory Reform Act of 1995, which states:

(a) Unless otherwise authorized, substantial policy decisions affecting the public [should] be made by those directly accountable to the public, namely the legislature, and that state agencies [should] not use their administrative authority to create or amend regulatory programs;

(Section 1, chapter 403, laws of 1995). The statute also spells out a number of tests an agency must apply before it can adopt a rule; these include coordination with other federal, state and local laws (RCW 34.05.328 (1)(h)).

Accordingly, the Board was acting appropriately within its discretion to consult with the Department of Agriculture, which regulates the use of pesticides and which also certifies organic farms. The letter sent to you by Mary Beth Lang of the Agriculture Department describes that agency's reasons for believing that current law (controlling pesticide applicator obligations), labeling requirements, and procedures for handling pesticide drift are adequate to address many of the issues raised in your proposal.

You have clearly recognized the absence of statutory authority for stronger protection of organic farms from chemical intrusion. This is apparent from the bill "to address the needs of Organic Farms as Highly Sensitive Areas" that you drafted and sent to Representative Richard DeBolt on June 4, 1999. Your proposal has not yet been considered by the legislature.

Since the legislative session has just begun, you may want to contact Representative DeBolt to determine his willingness to promote the legislation you suggested. I believe the legislative process is the most appropriate avenue for you to establish the kinds of controls and protections you are seeking for yourself and other organic farmers.

Thank you for your extensive efforts to protect the integrity of organically grown crops in our state.


Gary Locke


cc: Dennis W. Cooper, Code Reviser
Tim Martin, Co-Chief Clerk, House of Representatives
Cindy Zehnder, Co-Chief Clerk, House of Representatives
Tony Cook, Secretary of the Senate
John Daly, Forest Practices Board
Mary Beth Lang, Department of Agriculture

Washington State Code Reviser's Office