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HomeMy WebLinkAboutHE Decision MLA18-00105Page 1 of 1 From: David W. Johnson [djohnson@co.jefferson.wa.us] Sent: Friday, May 03, 2019 1:20 PM To: j.pelesky@mchlawoffices.com Cc: David W. Johnson Subject: FW: Rocky Brook Hydro - County Permit Jenny, Please forward to Steve regarciing the Rocky Brook Hydro project IVILA18-00105 and mandated public access to the site. From: Dell Keehn <dek12@isomedia.com> Sent. Friday, May 03, 2019 9:51 AM To: David W. Johnson <djohnson@coJefferson.wa.us>; herrwayne@yahoo.com;'Laura Westervelt' <la uraw@eco-la nd.com> Subject: RE: Rocky Brook Hydro - County Permit David, If you would look at the Recreational Immunity Act for the State of Washington I believe you will be able to logically construct why we can't have language in the agreement that mandates access. If, on the other hand, there is a request that we allow access and it is not mandated (we would agree, naturally) then we relieve under the statute that we have sufficient protection and can continue as we have always done allowing access to the site. Please let me know if this is sufficient to meet our collective desire to give access and limit liability. Thanks, Dell a N" 5/6/2019 0N' j `s8J N TEFF SON COUNTY PoFt TownserrdWA 98368 FILE NO.: MLA 18-00105/SDP 18-00023 TYPE III SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT APPLICANT/PROPERTY Rocky Brook Hydroelectric LP OWNER: Attn: Dell Keehn, Partner 7829 Center Boulevard S. E, Snoqualmie, WA 98065-9096 Ecological Land Services Attn: Laura Westeervelt, Biologist 1157 -3rd Avenue, Suite 220A Longview, WA 98632 David Wayne Johnson, Associate Planner Type III shoreline substantial development permit to upgrade an existing permitted hydroelectric facility adjacent to Rocky Brook. The upgrade includes new turbines in the powerhouse that will decrease the amount of water needed to power the turbines by up to 50 percent, and a new outflow structure at the powerhouse to return the water to the creek. Parcel Number 602282004 in Section 28, Township 26N, Range 02W, TAX 7, WK located at 3020 Dosewallips Road, Brinnon. SUMMARY OF DECISION: Request granted, subject to conditions. •e t, ;� � iw After reviewing the Jefferson County Department of Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows: The hearing was opened on April 23, 2019, at 2:00 p.m. Parties wishing to testify were sworn in by the ExaMiner. The following exhibits were submitted and made a part of the record as follows-. belowThe ffiflnutes of the Public Hearing set forth official record anI ?re provided for the convenience of the parties. The official record is t recording �� the hearing ;� etranscribed �*:. purposes oappeal. DAVID JOHNSON appeared, presented the Department of Community Development Staff Report, and testified that the hydroelectric facility is a nonconforming use located in Rocky Brook. It is a unique project that provides electricity for the Mason County PUD. Few people know about the facility even though it was permitted originally in 1986. Its location is due to the Rocky Brook Falls. The falls are a hot spot for locals during the summer, but they do not realize the existence of the hydro facility in a small building next to the creek. The applicant proposes a maintenance project to bring the facility up to current standards. However, the project does not qualify for a shoreline exemption because the new turbine needs a new outfall. Constructing the new outfall will disturb the shoreline of the creek. The project is north of Dosewallips Road and within the RR1-20 zone classification. Some parcels in the area are developed and some not. The property to the north consists of forest, and the creek itself is within the Natural Shoreline Environment and is also a primary aquatic resource. The County provided proper notice and received two comments, one of which was DOE standard comments regarding water quality and a stormwater permit. A neighbor desires conditions requiring the applicant to provide free access to the falls, which is part of the original permit. Other issues include turbulence in the outfall. No one appealed the SEPA DNS. Concerning the review criteria, DFW will require an HPA and has final authority on the substantial development permit. Staff finds the project consistent with the Comprehensive Plan. The site is located in a geologically hazardous area adjacent to a Type F stream and within the Natural Shoreline Environment. The applicant's Geotechnical Report addresses the landslide area and recommends shoreline mitigation. The applicant has also provided a Habitat Management Plan. Power plants are prohibited in the Natural Environment, but this plant is a nonconforming use, having been properly permitted in 1986. They will need a building permit and HPA. He then discussed the balance of the permit criteria. The applicant attended a preapplication meeting with the County. Staff recommends approval subject to six conditions. 2X DELL KEEHN appeared on behalf of the request and testified that he appreciates the cooperation of staff and noted that the project is located entirely on private land and not on County properly. The plant was installed on a private parcel that includes the falls. They will replace the four existing turbines with one, new, updated turbine. The new turbine will use less water than the four turbines that create disturbance in the creek. The present turbines are activated one after the other depending on the power needs, and disrupt flow when they come on line. Such affects the stream. When they purchased the site, they planned for one new turbine. !dater discharges through a 20 foot pipe at an upstream location as the present turbines need back pressure to operate properly. They discharge upstream to obtain the back pressure when necessary. It is not efficient. In 1985 upon permitting the previous owner agreed to provide public access, and both he and they have done so. They now have liability concerns as many people come onto the site. They are concerned about unlimited access to private land, but do not want to modify the 1985 language. They would like to be named as an additional insured on Jefferson County's insurance policy. Their property is not a public park and public access is not required as part of their FERC permit. They are exposed to extreme liability as many visitors come to the stream and some climb the falls. They cannot get liability insurance. The fails are a highlight of the area, but they are on private property. They could lease the area to Jefferson County, but posting the property with no trespass signs is not a solution. WAYNE HERR appeared and testified that he is operator of the plant and has had to call the sheriff's office to rescue climbers stuck on the falls. They needed to be taken off. MR. JOHNSON reappeared and testified that he has reviewed the original permit and agrees with the applicant's testimony that the public has free access and that the applicant has liability issues. This issue needs to be addressed. He did check with Srinnon's Park and Recreation District, but they are not able to help. MR. KEEHN reappeared and testified that another alteration is to remove the language of the 1985 permit agreed to by the former owner. The former owner was also an individual. No one spoke further in this matter and the Examiner took the matter under advisement. The hearing was concluded at 2:40 p.m. NOTE: A complete record of this hearing is available in the office of Jefferson County Department of Community Development. 3X 1. The Nearing Examiner has heard testimony, admitted documentary evidence into the record, and taken this matter under advisement. 2. Following review pursuant to the State Environmental Policy Act (SEPA), the Jefferson County responsible official issued a threshold determination of non- significance (DNS) on April 4, 2019. No appeals were filed. 3. Notice of Application: ® Application submitted to Department of Community Development (DCD): November 28, 2018 Staff determined the application substantially complete: December 20, 2018 Notice of Application mailed to adjacent property owners & agencies: January 9, 2019 ® Posting of Notices by Staff: January 8, 2019 Publication of Legal Notices: January 9, 2019 (Port Townsend -Jefferson County Leader) Comment period was open for 30 calendar days (per JCC 18.40.220) through February 8, 2019 Comments: Notices were sent to adjacent property owners within 300 feet of the subject parcel_ 4. The applicant, Rocky Crook Hydroelectric Limited Partnership and Dell Keehn, own and operate a hydroelectric facility located adjacent to Rocky Brook immediately below Rocky Brook Falls. The applicant desires to upgrade the facility by replacing four old, inefficient turbines with one, new turbine that would require less water to operate and would provide a downstream water discharge. The applicant requests a shoreline substantial development permit to allow the improvement. 5. A previous owner obtained permits for and legally constructed the hydroelectric facility in 1986 when such was an allowed use. Subsequent to its construction and commencement of operation, Jefferson County adopted a Shoreline Master Program (SNIP) that placed Rocky Brook in the Natural Shoreline Environment. The Natural Environment prohibits hydroelectric facilities. However, because the facility was legally constructed prior to adoption of the SNIP, became a legal nonconforming use. The Jefferson County Code (JCC) allows the maintenance and repair of nonconforming uses. an 6. The water that serves the turbines is directed thereto by an intake structure above Rock Brook Falls. A 150 square foot, intake structure placed in the stream connects to a penstock that carries water to a 25 foot by 40 foot powerhouse located below the falls, 200 feet north of Dosewallips Road. At present the water passes through between one and four vertical turbine generators and then exits the powerhouse. The turbines require backflow pressure to operate properly, and the applicant provides such by discharging (pumping) the water uphill at a slight incline in a pipe. The pipe discharges to Rocky Brook upstream near the base of the falls. 7. The new turbine will not require backflow pressure and pumping water upstream. The applicant therefore proposes to replace the outfall at the base of the fails to a new location 300 feet downstream. While the applicant could replace the existing turbines with a new turbine without triggering the need for a shoreline permit, the relocation of the outfall will disturb the Rocky Brook shoreline and therefore the project requires a shoreline substantial development permit- The new discharge will consist of a 24 inch diameter pipe that will extend from the powerhouse underground to a three -sided, concrete, flow dispersion channel that will measure ten feet wide, seven feet tall, and 15 feet long. 8. The applicant's parcel has a irregular shape, is approximately ten acres in size, and abuts the north side of Dosewallips Road, Rocky Brook runs generally through the center of the parcel and includes the waterfall. The applicant's parcel is located within the Rural Residential (1:20) zone classification of the JCC and is abutted by parcels within the same zone to the south, east, and west. The parcel to the north is within the Olympic National Forest, Abutting uses are limited to single-family residential dwellings and unimproved parcels, 9. The project satisfies the goals and criteria of the SMP as set forth on pages 4 and 5 of the Staff Report. Of particular note, the site is located in a potential geological hazardous area and the applicant has submitted a Geotechnical Report that the County has accepted. The site is also located within a Fish and Wildlife Conservation Area. The JCC maps Rocky Brook as a Type F fish bearing stream. Such streams require a buffer of 150 feet in width. However, the applicant has submitted a Shoreline Mitigation Plan that complies with JCC 18.22.440. Once again, the applicant's project is a nonconforming use. 10. The relocation of the outfall meets the definition of an instream structure as set forth in JCC 18.25.100(1) as it has the potential to modify water flow. Instream structures include those for hydroelectric generation. To comply with instream criteria the applicant must apply for and receive a professionally engineered, building permit as well as a Hydraulic Project Approval (HPA) from the Washington State Department of Fish and Wildlife. In addition the applicant must comply with recommended mitigation in the Shoreline Mitigation Plan. Such will ensure compliance with JCC 18.25,390(i)(iii). W 11. The principal issue raised at the hearing concerns liability of the applicant for injuries to persons visiting the site. Such is beyond the scope of the present shoreline permit application. Upon its licensing in 1986 the previous owner agreed to allow the public unrestricted access to Rocky Brook and Rocky Brook Falls. As a result many local and nonfocal residents come to the falls each day during the summer, and a few visitors attempt to climb the fails. The falls are located on private property owned by the applicant and not a public park owned by a governmental entity. The applicant advises that it cannot obtain liability insurance and has significant exposure should an injury occur. At the hearing the applicant proposed that he and the partnership be included as additional insureds on Jefferson County's insurance policy; that Jefferson County agree to lease the property; or that the County eliminate the 1986 permit language allowing unrestricted public access. Subsequent to the hearing the applicant proposed permit language that would comply with the State Recreational Immunity Act. The applicant does not believe that the simply posting the property with "No Trespassing" signs will help. Again, however, the liability issue and public access to the falls are not part of the shoreline permit. r 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The applicant has shown that the request for a shoreline substantial development permit to allow replacement of the older, inefficient turbines with one, new, modern turbine and to relocate the outfall from the hydroelectric facility into Rocky Brook at a site located at 3620 Dosewallips Road, Brinnon, should be granted subject to the following conditions: 1. Conditions of approval issued under existing permit SH15-85 are still valid. 2. The applicant shall be required to obtain a professionally engineered building permit from DCD including review and approval of stormwater pollution prevention, prior to land disturbing activities. 3. An HPA approval from the Department of Fish & Wildlife shall be required prior to land disturbing activities. 4. The applicant shall implement the Shoreline Mitigation Plan prepared by Ecological Land Services dated November 28, 2018, specifically the Restoration and Annual Monitoring Plans. 5. Work within jurisdiction of the Shoreline Master Program other than as described above shall receive separate review from this Department. ma 6. Any future permits on this site are subject to review for consistency with applicable codes and ordinances and does not preclude review and conditions, which may be placed on future permits. MWIRIM The request for a shoreline substantial development permit to allow relocation of the water outfall/discharge and replacement of existing turbines at the Rocky Brook Hydroelectric facility located at 3020 Dosewallips Road, Brinnon, is hereby granted subject to the conditions contained in the conclusions above. ORDERED this 7t" day of May, 2019 7X