WSR 01-08-004


[ Filed March 22, 2001, 8:13 a.m. ]

March 19, 2001

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.


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
Tom Fitzsimmons, Department of Ecology

Washington State Code Reviser's Office