Original Notice.

     Preproposal statement of inquiry was filed as WSR 07-18-076.

     Title of Rule and Other Identifying Information: The Washington state parks and recreation commission has determined the need to amend rules in chapter 352-28 WAC, Tree, plant and fungi cutting, removal and/or disposal.

     Hearing Location(s): Silverdale Community Center, 9729 Silverdale Way N.W., Silverdale, WA 98383, (360) 337-5350, on January 18, 2008, at 9:00 a.m.

     Date of Intended Adoption: January 18, 2008, at 9:00 a.m.

     Submit Written Comments to: Robert Fimbel, Chief, Resource Stewardship, Washington State Parks, HQ Stewardship, 7150 Cleanwater Drive, Olympia, WA 98504, phone (360) 902-8592, fax (360) 902-8517, e-mail robert.fimbel@parks.wa.gov, submit comments by December 21, 2007.

     Assistance for Persons with Disabilities: Contact Pauli Larson by December 21, 2007, TTY (360) 664-3133 or (360) 902-8505.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The Washington state parks and recreation commission has determined the need to amend chapter 352-28 WAC following an agency study on issues related to the management, sale and removal of its natural resources materials, and the collection of fauna as a part of agency approved research permits. The latter pertains to the necessity to implement changes to RCW 79A.05.165 that became effective July 22, 2007.

     Reasons Supporting Proposal: Changes to RCW 79A.05.165 that became effective July 22, 2007, allow for the collection of fauna from state park lands with an approved agency research permit and approved collection permit from the Washington department of fish and wildlife.

     Statutory Authority for Adoption: RCW 79A.05.030, 79A.05.035, 79A.05.070.

     Statute Being Implemented: RCW 79A.05.165.

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The Washington state parks and recreation commission reviewed the draft language changes to chapter 352-28 WAC on November 15, 2007, and support their adoption.

     Name of Proponent: Washington state parks and recreation commission, governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Rob Fimbel, State Park HQ, P.O. Box 42650, Tumwater, WA 98504-2650, (360) 902-8592; and Enforcement: Phil Shave, State Park HQ, P.O. Box 42650, Tumwater, WA 98504-2650, (360) 902-8606.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This chapter of administrative rule does not regulate or have economic impact through regulations on small business. There are no compliance costs to small business as a result of the modifications to these rules.

     A cost-benefit analysis is not required under RCW 34.05.328. Significant legislative rule-making requirements are not imposed on the state parks and recreation commission, nor has the commission voluntarily applied those requirements.

December 5, 2007

Jim French

Administrator of

Statewide Recreation Programs

OTS-1219.3

     (1) "Catastrophic forest event" means a natural or accidental devastation of major proportions that results in drastic alteration of the natural environment by, but not limited to, wind, fire, insect infestation, forest disease, flooding, or landslide.

     (2) "Commission" means the Washington state parks and recreation commission.

     (3) "Conservation" means the professional management of the agency's natural resources to ensure their long-term presence, function and enjoyment by the public.

     (4) "Director" means the director of the Washington state parks and recreation commission.

     (((4))) (5) "Endangered species" means each plant, fungus and lichen species identified as endangered on the list of such species prepared by the department of natural resources Washington natural heritage program and each wildlife species identified as endangered by the Washington department of fish and wildlife in WAC 232-12-014.

     (((5))) (6) "Sensitive species" means each plant, fungus and lichen species identified as sensitive on the list of such species prepared by the department of natural resources Washington natural heritage program and each wildlife species identified as sensitive on the list of such species prepared by the Washington department of fish and wildlife.

     (((6))) (7) "Threatened species" means each plant, fungus and lichen species identified as threatened on the list of such species prepared by the department of natural resources Washington natural heritage program and each wildlife species identified as threatened on the list of such species prepared by the Washington department of fish and wildlife.

[Statutory Authority: RCW 43.51.040(1), [43.51.]045, [43.51.]050, [43.51.]060(1), [43.51.]061 and [43.51.]395. 96-01-078, § 352-28-005, filed 12/18/95, effective 1/18/96. Statutory Authority: RCW 43.51.040. 94-10-012, § 352-28-005, filed 4/25/94, effective 5/26/94. Statutory Authority: RCW 43.51.040 and 43.51.045. 84-08-017 (Resolution No. 76), § 352-28-005, filed 3/27/84.]

     (a) Significant trees: Significant trees means living and dead standing trees > 10 inches in diameter at breast height (4.5 feet above the ground). Significant trees in any area under the jurisdiction and/or management of the commission shall((, except in fire)) be removed only after they have been evaluated, rated and marked by a professional forester, certified arborist, or staff member trained in agency-approved tree risk rating and abatement techniques. In addition, except where deemed an emergency tree, or in the event of wildfire, weather, or other natural emergencies, significant trees can be cut or removed only after compliance with (d) of this subsection and subsection (4) of this section, agency review through the tree activity worksheet process and upon the written approval of the director or the ((assistant directors of the operations and resources development divisions when so designated by the director. Except in emergencies and when feasible, significant trees shall be removed only after they have been marked or appraised by a professional forester. Significant trees include all old-growth trees, mature trees, and all other younger trees of ten inches or greater in diameter at four and one-half feet in height. In case of fire, weather, or other natural emergencies, the director or the designee of the director may declare that an emergency exists and thereby authorize the cutting or removal of damaged or down significant trees that are an imminent threat to persons and/or property.

     (b) The cutting or removal of any significant trees in a natural area, natural forest area or a natural area preserve shall, except in emergencies as defined in subsection (1)(a) of this section, be approved only by the director and only after consultation with the Washington department of fish and wildlife and the department of natural resources Washington natural heritage program, the preparation of a mitigation plan for affected resources, and a public hearing on each such proposed cutting or removal conducted in the county/counties in which the cutting or removal is to take place as determined by the director. Prior notice of a hearing shall be published in a newspaper of general circulation in the county/counties in which the park is located. Any person who requests notification of such proposed cutting or removal shall be sent prior notice of a hearing by mail. A summary of the testimony presented at a hearing or received in writing shall be presented to)) designee of the director.

     (((2) Protected species: The cutting or removal of trees, other plants, or dead organic matter in any area known to be inhabited by endangered, threatened, or sensitive species shall, except in emergencies as defined in subsection (1)(a) of this section, follow requirements of the department of fish and wildlife for animals and of the department of natural resources for plants and be approved only by the director after consultation with those agencies, and the preparation of a mitigation plan for affected species.

     (3) Land classification criteria: Trees or other plants)) (b) Emergency trees: Emergency trees means any tree that has already failed (cracked, tipped, diseased, failed or standing dead) or in the judgment of a professional forester, certified arborist, or staff member trained in tree risk rating and abatement techniques approved by the agency, and which due to its location, poses an imminent threat to a target. Imminent means likely to occur at any moment, and target means a structure, facility, or person that has the potential to be hit or impacted by a falling tree or tree part. The park manager or designee trained in tree risk rating and abatement techniques as prescribed by the agency forester or arboriculture manager is authorized to immediately close the target area, and where the target cannot be relocated, cut or remove the emergency tree.

     (c) The cutting or removal of any significant trees in landscapes classified recreation, heritage, or resource recreation by the commission shall, except in the case of emergency trees as defined in (b) of this subsection, occur only after agency review through the tree activity worksheet process and the written approval of the director or the designee of the director.

     (d) The cutting or removal of any significant trees in a natural area, natural forest area or natural area preserve shall, except in emergencies as defined in (b) of this subsection, be approved only by the director and only after consultation with the Washington department of fish and wildlife and the department of natural resources Washington natural heritage program, the preparation of a mitigation plan for affected resources, and a public hearing on each such proposed cutting or removal conducted in the county/counties in which the cutting or removal is to take place as determined by the director. Prior notice of a hearing shall be published in a newspaper of general circulation in such county. Any person who requests notification of such proposed cutting or removal shall be sent prior notice of a hearing. A summary of the testimony presented at a hearing or received in writing shall be presented to the director.

     (e) The cutting and/or removal of significant and emergency trees shall be done by park personnel, unless the personnel lack necessary expertise or resources. Trees identified as emergencies will be scheduled for immediate treatment. All emergency and significant trees requiring treatment, when feasible and justifiable, should be considered for pruning, crown reduction, target relocation, or similar practices in an effort to avoid tree cutting or removal. If trees are cut or removed by a contractor, park personnel shall provide on-site supervision to ensure that work and safety standards are met to prevent harm or damage to persons, trees, nontree vegetation, soils, organic matter and other park resources. When feasible, equipment shall be kept on existing roads and parking areas. Areas damaged during cutting or removal shall be restored.

     (2) Nontimber plants, fungi, and dead organic matter: The cutting or removal of any native plant, fungi, or dead organic matter, other than those specified in WAC 352-32-350, 352-28-030 and 352-28-040, will only occur as a part of a resource conservation plan approved by the director or the designee of the director.

     (3) Protected species: Natural resources may be cut and/or removed from areas supporting protected species, or for the purposes of enhancing habitat for protected species, under the following conditions:

     (a) The cutting or removal of trees, other plants, fungi, or dead organic matter in any area known to be inhabited by endangered, threatened, or sensitive species shall, except in emergencies as defined in subsection (1)(b) of this section, follow requirements of the department of fish and wildlife and of the department of natural resources Washington natural heritage program and be approved only by the director after consultation with those agencies, and the preparation of a mitigation plan for affected species.

     (b) The cutting or removal of trees, other plants, fungi, or dead organic matter to enhance the habitat of a sensitive, threatened, or endangered species as defined in WAC 352-28-005 (5) through (7), on lands managed by the commission or on other state lands, will only occur as a part of an interagency agreement or resource conservation plan that involves consultation with the Washington department of fish and wildlife, department of natural resources Washington natural heritage program, and as appropriate, other agencies and groups with expertise with these species, and is approved by the director or the designee of the director.

     (4) Land classification (chapter 352-16 WAC) criteria: Natural resources may be cut and/or removed from the areas listed below for the following reasons only:

     (a) Natural area preserves:

     (i) Maintenance or construction of service roads, boundary fences, or trails, or modification of conditions only as may be required ((to)), and only where absolutely necessary, to meet park management goals and mitigated in a resource conservation plan that involves consultation with the department of natural resources Washington natural heritage program, and as appropriate other agencies and is approved by the director or the designee of the director.

     (ii) Maintain or restore a native plant community, species population, or ecological process as specified in a natural area preserve management plan prepared in consultation with the department of natural resources Washington natural heritage program.

     (((ii))) (iii) Correction of conditions hazardous to persons, properties, and/or facilities on or adjacent to park land.

     (((iii))) (iv) Control of ((forest)) diseases and insect infestations where adjacent ((forests)) lands are severely jeopardized or where a drastic alteration of the natural environment is expected to occur, after consultation with the department of natural resources Washington natural heritage program and other agencies and groups with expertise in ((forest)) ecosystem health as deemed appropriate by the director.

     (((iv))) (v) Prevent the deterioration or loss of historical/cultural resources.

     (((v))) (vi) Maintenance or construction of fire lanes for abatement of fires.

     (vii) Collection of specimens as specified in WAC 352-28-040, including consultation with the department of natural resources Washington natural heritage program.

     (b) Natural areas and natural forest areas:

     (i) Maintenance or construction of trails, trail structures, trail head facilities, interpretive sites, utility easements, or service roads only as may be required, and only where absolutely necessary to meet park management goals and mitigated in a resource conservation plan that involves consultation with the department of natural resources Washington natural heritage program, and as appropriate other agencies and is approved by the director or the designee of the director.

     (ii) Maintain or restore a native plant community, species population, or ecological process as specified in a natural resource conservation plan prepared in consultation with the department of natural resources Washington natural heritage program, and as appropriate other agencies.

     (iii) Correction of conditions hazardous to persons, properties, and/or facilities on or adjacent to park land.

     (((iii))) (iv) Control of ((forest)) diseases and insect infestations where adjacent ((forests)) lands are severely jeopardized or where a drastic alteration of the natural environment is expected to occur, after consultation with the department of natural resources Washington natural heritage program and other agencies and groups with expertise in ((forest)) ecosystem health as deemed appropriate by the director or the designee of the director.

     (((iv))) (v) Prevent the deterioration or loss of historical/cultural resources.

     (((v))) (vi) Maintenance or construction of service roads for abatement of fires.

     (((vi) Modification of conditions only as may be required to maintain or restore a native plant community, species population, or ecological process.)) (vii) Collection of edibles as specified in WAC 352-28-030 or specimens as specified in WAC 352-28-040.

     (c) Recreation areas, resource recreation areas, and heritage areas:

     (i) Area clearing necessary for park maintenance, and/or park development projects for day use and overnight recreation facilities, road and utility easements, and administrative facilities.

     (ii) Correction of conditions hazardous to persons, properties, and/or facilities on or adjacent to park land.

     (iii) Cleanup of trees fallen, tipped, or damaged by the weather, fire, or other natural causes where they directly interfere with park management activities.

     (iv) Creation of ((diversity of tree)) diverse native trees and other plants, coarse woody debris, and fungi sizes, ages, and species to achieve visual aspects that resemble a formal landscape, natural or historical setting, or to improve wildlife habitat.

     (v) ((Daylighting as appropriate to the site.

     (vi))) Maintenance or creation of a regenerating natural environment that will sustain low ground cover, shrubs, and understory and overstory trees to provide screening, wind, and sun protection.

     (((vii))) (vi) Control of ((forest)) diseases and insect infestations where adjacent ((forests)) lands are severely jeopardized or where a drastic alteration of the natural environment is expected to occur.

     (((viii))) (vii) Prevent the deterioration or loss of historical/cultural resources.

     (((ix))) (viii) Maintenance or construction of service roads for abatement of fires.

     (((x))) (ix) Modification of conditions to maintain or restore a desired plant community, species population, or ecological process.

     (((xi))) (x) Grazing, hay removal, or other similar activities when performed under authority of a permit from the commission or director.

     (((4) Hazard tree review: At least two persons, one being a qualified professional in forestry or arboriculture, shall examine potentially hazardous trees and rate such trees in accordance with department of natural resources, report number 42, detection and correction of hazard trees in Washington's recreation areas. The rating of each tree examined shall be recorded on a hazard tree form by each of the two persons who examine such trees. For trees identified as hazardous and when feasible, action such as, but not limited to, pruning, topping, crown reduction, and relocation of a target facility, shall be taken prior to tree cutting or removal.

     (5) Tree cutting and removal operations: Tree cutting or removal shall be done by park personnel, unless the personnel lack necessary expertise. If tree cutting or removal work is done by a contractor, park personnel shall provide daily on-site supervision to ensure that work and safety standards are met to prevent harm or damage to persons, trees, shrubbery, soils, and other park resources. When feasible, trees shall be felled in sections with the tops and limbs lowered first by guy wires and ropes in order to protect adjacent old-growth trees and the integrity of the remaining stand. Only skid trails premarked by park personnel may be used and equipment shall be kept on existing roads and parking areas to the fullest extent possible. When feasible, all trees damaged during cutting or removal shall be repaired.

     (6))) (xi) Collection of edibles as specified in WAC 352-28-030 or specimens as specified in WAC 352-28-040.

     (5) Use of fallen trees: Except where they may create safety hazards and/or interfere with the normal operation of a park, fallen trees shall be left on the ground when deemed environmentally beneficial or used for park purposes such as, but not limited to, approved building projects, trail mulching, and firewood. In natural area preserves, natural forest areas ((and)), natural areas, and resource recreation areas first consideration shall be given to leaving trees on the ground for natural purposes.

[Statutory Authority: RCW 79A.05.030, 79A.05.035, 79A.05.055, 79A.05.070, and 79A.05.075. 05-17-105, § 352-28-010, filed 8/16/05, effective 9/16/05. Statutory Authority: RCW 43.51.040(1), [43.51.]045, [43.51.]050, [43.51.]060(1), [43.51.]061 and [43.51.]395. 96-01-078, § 352-28-010, filed 12/18/95, effective 1/18/96. Statutory Authority: RCW 43.51.040. 94-10-012, § 352-28-010, filed 4/25/94, effective 5/26/94. Statutory Authority: RCW 43.51.040 and 43.51.045. 84-08-017 (Resolution No. 76), § 352-28-010, filed 3/27/84; Order 7, § 352-28-010, filed 4/1/70.]

     (j) All contracts shall be of a form approved by the attorney general with special provisions to tailor a contract to the particular needs of a park site.)) The following qualifications, procedures, and general provisions pertain to the sale of, or leasing of lands containing, tree, plant or fungi resources from commission owned or managed lands:

     (1) The sale of natural resources associated with commission owned or managed lands, or the lease of lands containing natural resources to be sold, will be undertaken only where they advance a commission approved capital development, are part of a resource conservation plan or interagency agreement approved by the director or the designee of the director, or are deemed by the director or the designee of the director to advance agency stewardship goals. Sales of natural resources from lands owned, leased or managed by the commission, are limited to lands classified as resource recreation, recreation, or heritage as defined in chapter 352-16 WAC, and must be consistent with criteria specified in WAC 352-28-010. Resources from other land classes must meet the criteria specified in WAC 352-28-010 prior to their consideration for sale.

     (2) Prior to resource sales from lands owned, leased or managed by the commission, qualified park personnel or their designated agent shall conduct an inventory or cruise of the materials, appraise the value of such materials, and establish a minimum acceptable bid.

     (a) Where trees are to be sold, the following qualifications must be met:

     (i) Only timber which qualifies for cutting and removal under RCW 79A.05.035(2), WAC 352-28-010, and which is surplus to the needs of the park may be sold.

     (ii) The timber significantly hinders the public use or operation of a park and is of such a quantity that park personnel cannot dispose of it in a timely manner.

     (iii) The timber is cut or removed as part of a commission approved park maintenance or development project, or road or utility easement; a plan to address blown-down, burned, or damaged trees resulting from a catastrophic forest event; part of a resource conservation plan to maintain or restore a native plant community, species population, or ecological processes; or an agency approved maintenance or development project that contains a resource conservation plan.

     (iv) Timber shall be appraised using methods consistent with those applied by the Washington department of natural resources. Complete records of the methods and assumptions used to make the timber appraisal and estimated minimum acceptable bids shall be maintained.

     (b) Where nontimber resources are to be sold from lands owned, leased or managed by the commission, the following qualifications must be met:

     (i) The removal of natural resources from commission owned or managed lands will only occur where the sale is part of a resource conservation plan to maintain or restore a native plant community, species population, or ecological processes.

     (ii) The commission cannot achieve its stewardship goals without selling the resources or leasing the lands designated in the conservation plan noted in WAC 352-28-020(2).

     (2) A public meeting on each proposed sale or lease shall be conducted in the county in which the sale or lease is to take place. Prior notice of a hearing shall be published in a newspaper of general circulation in such county. Any person who requests notification of proposed sale or lease shall be sent prior notice of a meeting by mail. A summary of the testimony presented at a meeting or received in writing shall be presented to the director.

     (3) Sales or leases where the appraised value of the materials is in excess of twenty-five thousand dollars in appraised value or the value specified for direct sales in RCW 79.15.050, whichever is larger, shall require approval by a majority of the commission. Public testimony related to the sale or lease will be presented to the commission. Sales or leases where the appraised value of the materials is less than or equal to twenty-five thousand dollars, or the direct sale value specified in RCW 79.15.050, shall require approval by the director. Public testimony related to the sale or lease will be presented to the director.

     (4) Sales or leases shall be conducted through an agreement with the department of natural resources pursuant to RCW 43.30.530 or by the director or the designee of the director in accordance with subsections (6) through (11) of this section. Director approved sales may use a direct sales approach as specified in RCW 79.15.050.

     (5) Sales or leases shall be granted on the basis of competitive, sealed bids or public auction made by responsible qualified bidders. At least three qualified bidders shall be invited to bid and an advertisement for bids shall be published in a newspaper of general circulation in the county in which the sale or lease is to take place. Reasonable efforts shall be made to invite bids from prospective contractors operating or living in or near the general location of the sale.

     (6) All sales or leases shall be granted on the basis of the highest bid from a responsible qualified bidder. No materials shall be sold for less than the minimum acceptable bid established by park personnel. Any bid shall be rejected if the prospective contractor is deemed unqualified. To qualify for bidding, a contractor must be of good character and reputation with demonstrated abilities and capacities sufficient to perform the contract and must not have failed to perform satisfactorily on any current or previous products sale contract with the state.

     (7) All timber sold shall be measured, graded, and counted by a scaling bureau. When a scaling bureau is not located in the vicinity of a log buyer, such measuring, grading, and counting shall be performed according to standard log grading practices by a log buyer agreed to by a contractor and the director or the designee of the director.

     (8) All sales or leases shall require sufficient liability and property damage insurance and also sufficient security bonding by the contractors to ensure protection of the state and satisfactory contract compliance and completion.

     (9) All sales or leases shall require contract validation by the director or the designee of the director. The quantity of material which may be added to an approved sale, lease or donation shall be no more than four percent of the total material included in an approved sale or lease. The addition of materials to an approved sale, lease or donation may occur only upon the approval of the director or the designee of the director.

     (10) All sales shall require authorization by the state of Washington, department of general administration, division of purchasing as provided in RCW 43.19.1919; also, all sales or leases shall be granted, subject to approval of any governing agency as may be required by legal condition of land title and/or timber ownership and/or by state or federal statute.

     (11) All contracts shall be of a form approved by the attorney general with special provisions to tailor a contract to the particular needs of a park site.

[Statutory Authority: RCW 43.51.040 and 43.51.045. 84-08-017 (Resolution No. 76), § 352-28-020, filed 3/27/84; Order 26, § 352-28-020, filed 6/16/76; Order 7, § 352-28-020, filed 4/1/70.]

     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 05-17-105, filed 8/16/05, effective 9/16/05)

WAC 352-28-030   Harvest of edibles.   Nonmarine edible plants and edible fruiting bodies, including mushrooms, shall be managed by the agency in accordance with WAC 352-28-010. The commercial harvest of edibles is not allowed on park lands. The harvest of edibles for personal consumption, or scientific or educational projects, is subject to the following conditions:

     (1) Personal consumption: The recreational harvest, possession, or transport of edible plants and edible fruiting bodies including, but not limited to, mushrooms, berries, and nuts, is allowed up to an amount of two gallons per person per day, unless otherwise posted at the park. The harvest amount may be comprised of one or more species. The harvest may occur within the following park classification areas: Recreation, resource recreation, natural, natural forest, heritage, or in parks not yet classified. No harvest of edible plants or edible fruiting bodies, including mushrooms, is allowed within a natural area preserve. This rule is not intended to limit federally reserved tribal rights, including treaty rights.

     (2) Scientific or educational projects: The harvest of edible plants and/or edible fruiting bodies, including mushrooms, for scientific or educational projects is subject to ((the prior written approval of the director or designee)) an approved agency research permit as described in WAC 352-28-040. The approval shall specify a harvest amount not to exceed the minimum quantity necessary for the purposes of the project. The harvest may occur within all park classification areas.

     (3) Harvest techniques that involve raking or other techniques that have the potential to degrade park natural or cultural resources are prohibited.

     (4) The director or the designee of the director may close, temporarily close, or condition public access to certain park areas for recreational harvesting of edibles upon finding that the activity degrades or threatens to degrade the park's natural or cultural resources, or to protect public health, safety, and welfare. Such closure shall be posted at the entrance to the park area affected and at the park office.

[Statutory Authority: RCW 79A.05.030, 79A.05.035, 79A.05.055, 79A.05.070, and 79A.05.075. 05-17-105, § 352-28-030, filed 8/16/05, effective 9/16/05.]

[]

     (1) A significant resource is deemed at risk of degradation from human activities;

     (2) A conservation plan, involving consultation with the department of natural resources Washington natural heritage program and other agencies and groups with expertise in ecosystem health as deemed appropriate by the director or the designee of the director, has been developed to protect, restore, or rehabilitate the significant resources; and

     (3) A public meeting on all closures destined to exceed one year is conducted in the county in which the affected park lands occur. Prior notice of a hearing shall be published in a newspaper of general circulation in such county. Any person who requests notification of the proposed closure shall be sent prior notice of the meeting by mail. A summary of the testimony presented at a meeting or received in writing shall be presented to the director.

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