Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-19-134.

     Title of Rule and Other Identifying Information: The agency has completed a review of chapter 352-28 WAC, Protection and conservation of state park natural resources, and intends to amend this chapter to facilitate future natural resources sales (WAC 352-28-020) and lend further clarification/consistency to existing WAC language (WAC 352-28-005 - 352-28-020).

     Hearing Location(s): Water and Conservation Center, Walla Walla Community College, 500 Tausick Way, Walla Walla, WA 99362, on June 24, 2010, at 9:00 a.m.

     Date of Intended Adoption: June 24, 2010.

     Submit Written Comments to: Robert Fimbel, Chief, Resource Stewardship, Washington State Parks, Headquarters Stewardship, 1111 Israel Road S.W., Olympia, WA 98504, phone (360) 902-8592, fax (360) 902-8517, e-mail robert.fimbel@parks.wa.gov. Submit comments by June 10, 2010.

     Assistance for Persons with Disabilities: Contact Pauli Larson by June 10, 2010, 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 sale, leasing or management of its lands and natural resources materials. The commission intends to remove specific procedural language relating to natural resources sales from the WAC, and to replace them with procedures adopted through specific commission action items. These procedures will then be added to the agency's lands manual, which currently contains sales-related language based on previous commission procedural actions. This will ensure that all natural resources-related sale guidelines reside in a single agency document.

     Reasons Supporting Proposal: The entire chapter was reviewed for clarity and consistency of business practices with an emphasis on qualifications, procedures, and general provisions pertaining to the sale of, or leasing of lands containing tree, plant or fungi resources from commission owned or managed lands. Evolution in resource stewardship, the emergence of new technologies, and the agency's desire to complete sale transactions efficiently (including having a single lands manual for all natural resources sales), suggests that procedures relating to the sale of natural resources are better placed in agency procedures than WAC.

     Statutory Authority for Adoption: RCW 79A.05.035, 79A.05.070, 79A.05.075, and 79A.05.165.

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

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The agency supports these revisions.

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

     Name of Agency Personnel Responsible for Drafting and Implementation: Rob Fimbel, State Park Headquarters, P.O. Box 42650, Tumwater, WA 98504-2650, (360) 902-8592; and Enforcement: Robert Ingram, State Park Headquarters, P.O. Box 42650, Tumwater, WA 98504-2650, (360) 902-8615.

     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.

May 7, 2010

Jim French

Chief of Policy Research

and Program Development

OTS-3097.2

AMENDATORY SECTION(Amending WSR 08-05-009, filed 2/7/08, effective 3/9/08)

WAC 352-28-005   Definitions.   When used in this chapter the following words and phrases shall have the meanings designated in this section unless a different meaning is expressly provided or unless the context clearly indicates otherwise.

     (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.

     (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.

     (6) "Natural resource(s)" includes biological organisms, their processes, dead or organic matter, soils, and geologic materials.

     (7) "Resource conservation plan" means a plan that advances the stewardship of that resource. The plan may address, although not be limited to, resource conservation, protection, restoration or mitigation.

     (8) "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.

     (((7))) (9) "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 79A.05.030, 79A.05.035, 79A.05.055, 79A.05.070, 79A.05.075, and 79A.05.165. 08-05-009, § 352-28-005, filed 2/7/08, effective 3/9/08. 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). Except in emergencies and when feasible, significant trees in any area under the jurisdiction and/or management of the commission shall be removed only after they have been evaluated, rated, appraised 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 designee of the director.

     (b) Emergency trees: Emergency trees means any tree that has already failed (cracked, tipped, diseased, ((failed)) or standing dead) or ((in)) that poses an imminent threat, based on 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) Worksheet: 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) Consultation: 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)) in the case of emergency trees, be approved only by the director or designee 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)) resource conservation plan for affected natural 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 or by an alternative method prescribed by the commission deemed to yield equal or better public notice. 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)) Native plants, fungi, and dead organic matter: The cutting or removal of ((any native plant, fungi, or dead organic matter)) natural resources, other than trees or 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)) natural resources 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 or designee 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)) natural resources 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, 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.

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

     (iv) Control of diseases and insect infestations where adjacent 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 ecosystem health as deemed appropriate by the director.

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

     (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 boundary fences, 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.

     (iv) Control of diseases and insect infestations where adjacent 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 ecosystem health as deemed appropriate by the director or the designee of the director.

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

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

     (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 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) 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.

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

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

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

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

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

     (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)) When feasible, 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, natural areas, and resource recreation areas first consideration shall be given to leaving trees on the ground for natural purposes)), or where the tree has no economic values contributed to a state managed resource conservation effort. In natural area preserves, natural forest areas, natural areas, and resource recreation areas first consideration shall be given to leaving trees on the ground for natural purposes.

     (6) Parks use: Subject to the guidelines of this section, the commission may authorize the use of natural resources within recreation areas, resource recreation areas, and heritage areas for park purposes.

[Statutory Authority: RCW 79A.05.030, 79A.05.035, 79A.05.055, 79A.05.070, 79A.05.075, and 79A.05.165. 08-05-009, § 352-28-010, filed 2/7/08, effective 3/9/08. 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.]

     (1) Subject to the limitations set forth under WAC 352-28-010(4), 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 and are surplus to the parks needs. ((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 a sale of natural resources ((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, unless such natural resources are for use by the park or qualify for direct sale under subsection (4) of this section.

     (((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)) such trees 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).

     (3) 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.

     (4))) (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.

     (5))) (4) Sales where the appraised value of the materials is less than or equal to twenty-five thousand dollars shall require approval by the director or designee. All 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.

     (6) 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.

     (7) 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.

     (8) 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.

     (9) 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.

     (10) 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 or lease 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 or lease may occur only upon the approval of the director or the designee of the director.

     (11) 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.

     (12) 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)) pursuant to procedures approved by the commission.

[Statutory Authority: RCW 79A.05.030, 79A.05.035, 79A.05.055, 79A.05.070, 79A.05.075, and 79A.05.165. 08-05-009, § 352-28-020, filed 2/7/08, effective 3/9/08. 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.]

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