12-20-071

WSR 12-20-071

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[ Filed October 3, 2012, 8:42 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 10-12-119.

     Title of Rule and Other Identifying Information: Chapter 16-232 WAC, Use restricted herbicides in certain counties.

     Hearing Location(s): North Willapa Harbor Grange Hall, 3198 State Route 105, Grayland, WA 98547, on November 28, 2012, at 1 p.m.

     Date of Intended Adoption: December 11, 2012.

     Submit Written Comments to: Teresa Norman, P.O. Box 42560, Olympia, WA 98504-2560, e-mail [e-mail], fax [phone], by 5:00 p.m., November 28, 2012.

     Assistance for Persons with Disabilities: Contact WSDA receptionist by November 16, 2012, TTY [phone] or 711.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The Washington state department of agriculture (WSDA), pesticide management division, is proposing to amend chapter 16-232 WAC in order to restrict the use of two insecticides in the Grayland cranberry growing area to prevent water contamination.

     The Grayland cranberry growers instituted the best management practices (BMPs) contained in this rule proposal, voluntarily over the last fifteen years. Most growers, eighty-five percent or more, have already completed the work necessary to comply with this rule. This rule only intends to require the BMPs to all growers, thus creating a fair playing field and preventing further contamination of waterways in Grayland. Continued or greater contamination of waterways in Grayland with these or other pesticides could result in a much greater cost to this industry and their growers through clean up costs and more aggressive restrictions on pesticide use in this area. Further restrictions on this industry could end cranberry growing in this area. The intent of these BMPs is to prevent the further contamination and prevent further more expensive restrictions to growers and the cranberry industry.

     The proposed amendments to this chapter include:

?	Restricting the use of chlorpyrifos and diazinon when applied to cranberries in Grayland.
?	Requiring cribbing and covering of ditches adjacent to cranberry beds in the Grayland area.
?	Requiring protection of source water when chemigating cranberry beds with chlorpyrifos and diazinon.

     Statutory Authority for Adoption: RCW 17.21.030 and chapter 34.05 RCW.

     Statute Being Implemented: RCW 17.21.030.

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

     Name of Proponent: WSDA, governmental.

     Name of Agency Personnel Responsible for Drafting: Robin Schoen-Nessa, Olympia, Washington, [phone]; Implementation and Enforcement: Cliff Weed, Olympia, Washington, [phone].

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement
     SUMMARY OF PROPOSED RULES: WSDA pesticide management division is proposing to amend chapter 16-232 WAC in order to restrict the use of two insecticides in the Grayland cranberry growing area to prevent water contamination.

     The Grayland cranberry growers instituted BMPs contained in this rule proposal, voluntarily over the last fifteen years. Most growers, eighty-five percent or more, have already completed the work necessary to comply with this rule. This rule only intends to require the BMPs to all growers, thus creating a fair playing field and preventing further contamination of waterways in Grayland. Continued or greater contamination of waterways in Grayland with these or other pesticides could result in a much greater cost to this industry and their growers through clean up costs and more aggressive restrictions on pesticide use in this area. Further restrictions on this industry could end cranberry growing in this area. The intent of these BMPs is to prevent the further contamination and prevent further more expensive restrictions to growers and the cranberry industry.

     The proposed amendments to this chapter include:

?	Restricting the use of chlorpyrifos and diazinon when applied to cranberries in Grayland.
?	Requiring cribbing and covering of ditches adjacent to cranberry beds in the Grayland area.
?	Requiring protection of source water when chemigating cranberry beds with chlorpyrifos and diazinon.

     SMALL BUSINESS ECONOMIC IMPACT STATEMENT (SBEIS): Chapter 19.85 RCW, the Regulatory Fairness Act, requires an analysis of the economic impact proposed rules will have on regulated businesses. Preparation of an SBEIS is required when proposed rules will impose more than minor costs on businesses.

     "Minor cost" means a cost that is less than one percent of annual payroll or the greater of either 0.3 percent of annual revenue or $100.

     "Small business" means any business entity that is owned and operated independently from all other businesses and has fifty or fewer employees.

     INDUSTRY ANALYSIS: The proposed rule impacts cranberry growers in Grayland, Washington. WSDA has analyzed the proposed rule amendments and has determined that costs are more than minor on regulated businesses.

     INVOLVEMENT OF SMALL BUSINESSES: This rule has been a cooperative effort from the beginning. The industry requested this rule to get all growers on board with protecting the waterways in Grayland from pesticide impacts. The department has been working and meeting with the Grayland Grower Cranberry Board on this rule since 2009. Small businesses have been involved in writing the proposed rules and in providing the department with the expected costs associated with the changes. The growers requested this rule to require all growers to comply with Natural Resource and Conservation Service (NRCS) standards already being instituted by most growers. The need for all growers in the area to crib and cover their ditches is essential to clean up their waterways. Two ditches in Grayland are currently listed for the contaminants diazinon and chlorpyrifos on department of ecology's (DOE) 303(d) list. The Grayland cranberry growers chemigate (apply pesticides through their chemigation systems). The goal of this rule is to clean up these waterways and prevent further contamination by chlorpyrifos and diazinon.

     We met with the Grayland Grower Cranberry Board approximately once per quarter until a draft rule was formulated. In the summer of 2010 we mailed a survey to all Grayland growers to ask about the costs to their industry and individual growers. We had a good response - approximately fifty percent of Grayland Growers returned the completed survey. We also have a 2005 cost analysis of cribbing and covering from WSU at the request of their industry that was done with the expectation of rule making to follow.

     We then had to postpone rule-making efforts due to the Governor's Executive Order 10-06 moratorium on rule making. However, at the beginning of 2012 we received an exception to this executive order to proceed with the rule making to help protect the water in the Grayland area. Since January 2012, we have met with the board almost monthly to finalize the draft rule.

     COST OF COMPLIANCE: RCW 19.85.040 directs agencies to analyze the costs of compliance for businesses required to comply with the proposed rule. Growers will have three choices after this rule is implemented and each choice involves different costs:

     (1) Growers can install cribbing and covering over ditches/drains adjacent to their cranberry beds to protect the ditch.

?

Survey results for estimated costs varied widely from growers who have yet to crib and cover their ditches and drains, from a low of $1.87 per lineal foot to $14.00 per lineal foot. The average cost, according to survey results, is $9.70 per lineal foot. This covers the cost of labor and materials.

?

The 2005 WSU cost analysis found costs of cribbing and covering without cost sharing to be approximately $12.18 per lineal foot or $14,610 per 1200 feet of ditch, the average length of ditch in the Grayland area. Cost sharing for growers from United States Department of Agriculture (USDA) NRCS program will continue to be available to growers after this rule takes effect. The NRCS cost sharing program will greatly help reduce the economic impact to growers. The 2005 WSU cost analysis showed costs with cost sharing to be approximately $2.61 per lineal foot or $3,135 per 1200 feet of ditch average length of ditch in Grayland area). This would be a reduction of approximately $9.57 per foot and $11,000 total reduction for a 1200 foot ditch.

     (2) Growers can bury their drains or build a culvert to protect the ditch.

?

Survey results for approximate costs to install a culvert system also varied widely, from a low of $1.00 per lineal foot to a high of $8.00 per lineal foot. The total costs for this estimated in the 2005 WSU cost analysis was $5.14 per lineal foot or $6,168 total for 1200 feet of ditch. Cost sharing from USDA's NRCS program would reduce the economic impact to the growers installing a drain or culvert to $3.10 per lineal foot or $3,729 per 1200 feet of ditch. This would be a reduction of approximately $2.00 per lineal foot or $2,439 total for 1200 feet of ditch. This covers the cost of labor and materials.

     (3) Growers can use alternate pesticides other than those restricted in this rule and build no covers or culverts for their ditches.

?	The costs of using alternate pesticides other than those restricted in this rule are unknown. Alternate products may have a higher cost up front as they are newer chemistries; they also may have to be used more often. However, the amount used would be much smaller (likely ounces per acre versus pounds per acre of older chemistries) so it may equal out.
?	There are no fees for inspections or services;
	no additional recordkeeping,
	no additional required reporting, and
	no loss of sales revenue, so growers will have no increased costs related to recordkeeping,
	reporting, inspections or sales due to this rule.

     JOBS CREATED OR LOST: Under RCW 19.85.040, agencies must provide an estimate of the number of jobs that will be created or lost as the result of compliance with the proposed rules. In collecting information from representative small businesses through the industry survey and focus group meetings the program estimates that no jobs will be lost or created a result of small businesses complying with the rules. Most of the industry has already cribbed and covered their ditches. Most growers do their own labor and very little acreage is still in need of cribbing and covering, less than fifteen percent. In addition, growers can choose to use other chemicals instead of the restricted chlorpyrifos and diazinon in this rule. In which case, there is no cost to the grower related to jobs or labor.

     DISPROPORTIONATE IMPACT TO SMALL BUSINESSES: RCW 19.85.040 directs agencies to determine whether the proposed rule will have a disproportionate cost impact on small businesses by comparing the cost of compliance for small business with the cost of compliance for the ten percent of the largest businesses required to comply with the proposed rules.

     The costs small businesses will incur to comply with the proposed rules are not disproportionate between small and large businesses. Costs will be comparable whether the business is small or large. The costs will be proportional to the size of the business: The larger the field, the bigger the business, the larger the cost; the smaller the field, the smaller the business, the smaller the cost.

     CONCLUSION: To comply with chapter 19.85 RCW, the Regulatory Fairness Act, the WSDA's pesticide management division has analyzed the economic impact of the proposed rules on small businesses and determined that although some costs to small businesses are evident, they have been minimized through the many meetings with industry in the area, NRCS grant funding, the ability of growers to alternately use pesticides not restricted by this rule, and the very low percentage of growers that still need to finish cribbing and covering ditches voluntarily.

     Please contact Robin Schoen-Nessa if you have any questions at [phone] or e-mail at [e-mail].

     A copy of the statement may be obtained by contacting Robin Schoen-Nessa, WSDA, 1111 Washington Street S.E., P.O. Box 42560, Olympia, WA 98504-2560, phone [phone], fax [phone], e-mail [e-mail].

     A cost-benefit analysis is not required under RCW 34.05.328. WSDA is not a listed agency under RCW 34.05.328 (5)(a)(i).

October 2, 2012

Ted Maxwell

Acting Assistant Director

OTS-5031.1

NEW SECTION
WAC 16-232-400   What areas of Grays Harbor and Pacific counties are under order for use restricted pesticides?   The area under order shall include all lands in Grays Harbor and Pacific counties lying within Township 15 North, Range 11 West, Sections 5, 6, 7, 8, 17, 18, 19, 20, 29, 30, and 32; Township 16 North, Range 11 West, Sections 19, 30, 31, and 32; and Township 16 North, Range 12 West, Sections 24 and 25.

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NEW SECTION
WAC 16-232-410   What pesticides are restricted in the area under order?   All formulations containing the active ingredient O,O-diethyl O-(3,5,6-trichloro-2-pyridinyl) phosphorothioate, commonly known as chlorpyrifos or the active ingredient O,O-diethyl O-(isopropyl-6-methyl-4-pyrimidinyl) phosphorothioate, commonly known as diazinon are use restricted pesticides when applied to cranberries in the area under order.

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NEW SECTION
WAC 16-232-420   What standards are adopted by WSDA?   (1) The department adopts the United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) Practices Standards "Drainage Water Management" CODE 554 (Sept. 2011); "SubSurface Drain" CODE 606 (Sept. 2011); "Surface Drain, Main or Lateral" CODE 608 (Nov. 2010); and "Underground Outlet" CODE 620 (Nov. 2010) as requirements for and restrictions on the use of pesticides containing chlorpyrifos or diazinon when applied to cranberries in the area under order.

     (2) Copies of the adopted USDA NRCS Practice Standards can be requested by mail from: U.S. Department of Agriculture, 1400 Independence Ave., S.W., Washington, D.C. 20250 or from your local NRCS Office or can be found on the WSDA web site at: http://www.agr.wa/gov/pestfert/.

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NEW SECTION
WAC 16-232-430   What are the restrictions on the use of pesticides containing chlorpyrifos or diazinon for ditches?   (1) Chlorpyrifos or diazinon shall not be applied to cranberries unless all ditches immediately adjacent to the application and all other ditches that will be contacted by the application are adequately protected to prevent entry of chlorpyrifos or diazinon at the time of application.

     (2) For the purpose of subsection (1) of this section, "adequately protected" means:

     (a) Ditches are cribbed and covered according to USDA NRCS Practice Standards "Drainage Water Management" CODE 554 (Sept. 2011); "SubSurface Drain" CODE 606 (Sept. 2011); "Surface Drain, Main or Lateral" CODE 608 (Nov. 2010); and "Underground Outlet" CODE 620 (Nov. 2010), or one of the functional equivalents below.

     (i) A functional equivalent for ditch side walls is the installation of side walls with rigid material capable of maintaining ditch integrity for a period of no less than ten years.

     (ii) A functional equivalent for ditch coverings is the installation of ditch coverings using rigid material capable of preventing entry of chlorpyrifos or diazinon either through chemigation activities or run-off from irrigation activities into ditches as described in subsection (1) of this section.

     (b) Drainage culverts are installed and constructed according to USDA NRCS Practice Standard "Underground Outlet" CODE 620 (Nov. 2010).

     (3) All ditches and culverts shall be maintained and kept in good repair as needed in order to achieve the requirements of subsection (1) of this section.

     (4) Upon request, the department shall be provided with all available information related to the design, construction, and materials used to protect the ditch as described in subsection (2) of this section.

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NEW SECTION
WAC 16-232-440   What are the restrictions on the use of pesticides containing chlorpyrifos or diazinon near source water?   (1) All source water used for chemigation including, but not limited to, open reservoirs, ponds, or sumps must be protected from contact with chlorpyrifos or diazinon during an application unless the source water is demonstrated to have no hydraulic connection with drainage ditches or culverts.

     (2) For the purpose of subsection (1) of this section, "hydraulic connection" means, water can flow between one source (either ground or surface water) to another source (either ground or surface water). Connection can be natural or manmade.

     (3) For the purpose of subsection (1) of this section, "protected" means:

     (a) Placement of a barrier or covering system over the source water in a manner that ensures spray from the nozzles do not contact the source water; or

     (b) Design, placement, operation, and maintenance of irrigation sprayheads or nozzles in a manner that ensures spray from the nozzles does not contact the source water.

     (4) Hydraulic connections will be determined as needed, by the department upon review of the source water system design.

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NEW SECTION
WAC 16-232-450   Can a variance to the requirements of this order be obtained in an emergency?   (1) In the event of an emergency, as determined by the director, the department may issue permits for the use of chlorpyrifos or diazinon in the use restricted area in variation of any restrictions as defined in WAC 16-232-430 or 16-232-440. An emergency under this section may be declared if the director determines that the situation is:

     (a) Urgent and unexpected; and

     (b) The risk and amount of economic harm to the crop substantially outweighs the risk and amount of damage likely to occur to the environment if a variance permit is issued.

     (2) Application for a permit may be made to [e-mail] or by mail, fax, or in person to the Washington State Department of Agriculture, Pesticide Management Division, 1111 Washington St. S.E., P.O. Box 42589, Olympia, WA 98504-2560, FAX: [phone]. Permits will not be granted by telephone.

     (3) The department may make on-site monitoring of the application a condition of any permit. A representative of the department may condition, deny, or revoke a permit at any time, if the representative determines that the situation at the application site creates an unreasonable risk. In determining whether the situation at the application site creates an unreasonable risk, the representative may consider all relevant factors such as temperature, tides, precipitation, application type, pesticide formulation and application equipment, ditch cover condition, endangered species restrictions, air inversions, time of day, burning restrictions, wind direction, wind velocity, topography, and type and condition of application equipment.

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