Mr. Arthur J. Schultheis
Diamond-S Farms Inc.
9451 SR 195
Colton, Washington 99113
Re: Appeal of the January 12, 2001 denial by the Department
of Ecology (the "Department") of that certain Petition for
Adoption, Amendment, or Repeal of a State Administrative
Rule, dated November 11, 2000, filed by Arthur J. Schultheis
(the "Petition")
Dear Mr. Schultheis:
Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal
of the Petition asking that I direct the Department of Ecology to
amend its regulation affecting burning of grass seed fields on
steep slopes, and the relevant statutes and regulations.
It is my policy to intervene in matters presented to me under RCW 34.05.330(3) only when I believe the administrative agency whose
decision is at issue has abused its discretion or acted
arbitrarily or capriciously. It is also my policy not to
second-guess the thoughtful and deliberate decisions of a state
agency, so long as those decisions are well founded and proper
under the law. This is an extremely high standard of review.
After reviewing the record of the Department's actions and the
arguments offered in your appeal, I have determine that the
Department had a good-faith basis for its decision not to amend
the regulation. The Department did not abuse its discretion or
act arbitrarily or capriciously. The Department adopted this
grass seed burning regulation, WAC 173-400-045, in 1998. The
regulation phased out the proportion of fields that could be
burned each year, leaving the longest phase-out for steep slopes,
where potential safety impacts raised concern about reasonable
alternatives. The purpose of the phase-out was to give farmers
an opportunity to adapt to the new regulations. It was expected
that farmers who burned grass seed crop residue on steep slopes
would use the intervening years to gradually shift to other
crops, or methods of residue management other than burning.
The appeal you submitted offers no substantiating evidence that
you have used this transition time to alter practices on your
steep slopes. Instead, it seems to contend that no other
alternatives to those historically used are feasible.
Your conclusion that burning is environmentally desirable because
it reduces erosion impacts on water quality and salmon habitat
discounts the adverse effects of this practice on air quality.
The Department carefully studied the environmental impacts of
burning on both erosion and air quality. While some erosion will
likely occur using mechanical residue management, that must be
weighed against the benefits to air quality of a 73% overall
emission reduction.
I understand that it may be anathema to ask a farmer to quit
farming and rely on government programs such as the Conservation
Reserve Program, and the Department did not suggest you do so.
Your way of life is one to be cherished, and I deeply respect
your desire to maintain it. However, I also note that many
farmers who remain in farming are using the CRP. Mr.
Fitzsimmons's suggestion that you consider enrolling your steep,
erodible acres in the CRP should be construed as an effort to
help you find the best combination of approaches that will enable
you to keep profitably working your 1,150 acre farm.
For these reasons I must deny your appeal. Thank you for your
extensive efforts in the development of new farming techniques
and your and profound commitment to the farmers of our state.
Sincerely,
Gary Locke
Governor
| 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 | |
| Tom Fitzsimmons, Department of Ecology |