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HomeMy WebLinkAboutLetter - PRK to Hearing Examiner RE Clarification.PDF_5793982CARNEY BARLEY SPELLMAN Parker R. Keehn Attorney May 15, 2019 VIA CERTIFIED MAIL, RETURN RECEIPT REOUESTED Law Offices A Professional Service Corporation Jefferson County Stephen K. Causseaux, Jr. Office of the Hearing Examiner McCarthy & Causseaux Attn: Stephen K. Causseaux, Jr., Hearing 902 South 10th Street Examiner Tacoma, Washington 98405 621 Sheridan Street Port Townsend, Washington 98368 Re: MLA 18-00105/SDP 18-00023 Type III Shoreline Substantial Development Permit Request for Clarification Mr. Causseaux: 701 Fifth Avenue, Suite 3600 Seattle, Washington 98104-7010 T (206) 622-8020 F (206) 467-8215 D (206) 607-4132 Email: keehn@carneylaw.com We represent Rocky Brook Hydroelectric LP ("Rocky Brook"). We are assisting Rocky Brook and its representative, Dell Keehn, in relation to the above -referenced permit and associated public hearing held on April 23, 2019 (the "Hearing"). This letter seeks clarification regarding your May 7, 2019 Report and Decision (the "Report") following the Hearing.' This letter does not seek any modification or amendment to the Report. During the Hearing, Mr. Keehn appeared and testified regarding his and Rocky Brook's concern that the operating permit issued by Jefferson County requires Rocky Brook to allow public access to Rocky Brook's private property. Report at pg. 3. Specifically, Rocky Brook is concerned about potential liability that may arise from this condition imposed by Jefferson County. David W. Johnson appeared and testified that he agreed there is a liability issue that needs to be addressed. Id. Mr. Keehn suggested removing the language of the 1985 permit requiring public access to Rocky Brook's private property. Id. Our review of the Report finds it does not apparently make a decision regarding the liability issue. See, e.g., Report at pg. 7 (Finding No. 11). We see that you added an "Exhibit 17" to the Report. Exhibit 17 is a May 3, 2019 email correspondence between Mr. Keehn and Mr. Johnson regarding Washington State's Recreational Immunity Act, wherein Mr. Keehn advises that, under the Act, the permit here should not have language that mandates access to Rocky Brook's private property. Rather, access should be allowed at Rocky Brook's will. The Act further provides, pertinent to Rocky Brook's concerns, that: ' Enclosed please find a copy of a May 8, 2019 email from David W. Johnson, Associate Planner of Jefferson County, attaching the Report. wwvv CARNEYLAWcom R00017-0001 5792342 Stephen K. Causseaux, Jr. May 15, 2018 Page 2 ... any public or private landowners, hydroelectric project owners, or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation ... without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users. RCW 4.24.21 0(l) (emphasis added). In his May 3, 2019 email, Mr. Keehn suggested the parties treat the access language in the 1985 permit as a request by Jefferson County, rather than mandate, that Rocky Brook allow public access to its property. Mr. Keehn later asked if the suggestion from his email was "acceptable and now part of the record." Mr. Johnson's response seems to indicate that Mr. Keehn's suggestion was acceptable. However, Finding No. 11 from the Report, which recognizes but takes no position of the issue, would remain. Perhaps these two statements are not at odds, but we would prefer to remove any uncertainty while you and others involved in the Hearing and Report have fresh memories. Therefore, it is our understanding, and we would like to confirm, that Jefferson County interprets the original 1985 access requirement (1) in a manner intended to afford Rocky Brook the protections provided by RCW 4.24.2 10 and any other applicable authority and (2) in a manner that does not subject Rocky Brook to increased liability arising from public access over liability that may generally exist for private property owners not subject to such permits. Thank you in advance for your response and clarification of Jefferson County's decision. Please feel free to contact the undersigned should you have any questions. Very truly yours, CARNEY BADLEY SPELLMAN, P.S. Parker R. Keehn cc: David W. Johnson (via email djohnson@co.jefferson.wa.us) R00017-0001 5792342 -----Original Message ----- From: David W. Johnson [mailto:djohnson@co.jefferson.wa.us] Sent: Wednesday, May 8, 2019 12:42 PM To: Dell Keehn Cc: David W. Johnson Subject: RE: Mail from BizHub600 Both. Read Finding number 11. -----Original Message ----- From: Dell Keehn <dek12@isomedia.com> Sent: Wednesday, May 08, 2019 12:40 PM To: David W. Johnson <djohnson@co.jefferson.wa.us> Subject: Re: Mail from BizHub600 Is that acceptable and now part of the record or is his finding stipulate no change from 85. Sent from my iPhone > On May 8, 2019, at 12:38 PM, David W. Johnson <djohnson@co.jefferson.wa.us> wrote: > It's the email from you to me that I forwarded to the HE, which was page 1 of the document that I sent you. > -----Original Message----- > From: Dell Keehn <dek12@isomedia.com> > Sent: Wednesday, May 08, 2019 12:17 PM > To: David W. Johnson <djohnson@co.jefferson.wa.us> > Subject: Re: Mail from BizHub600 > David, > I am up in BC but home tonight. I do not think that exhibit 17 was included in the document you forwarded. If you don't mind could you please send it again. > Thanks, > Dell > Sent from my iPhone >> On May 8, 2019, at 8:40 AM, David W. Johnson <djohnson@co.jefferson.wa.us> wrote: 1 >> Dell, >> Here's the decision. Give me a call if you'd like to discuss. >> Thanks! >> -----Original Message----- » From: J. Pelesky <j.pelesky@mchlawoffices.com> >> Sent: Tuesday, May 07, 2019 2:35 PM >> To: David W. Johnson <djohnson@co.jefferson.wa.us> >> Subject: FW: Mail from BizHub600 >> Mr. Causseaux added an Exhibit 17 (the first page scanned to you). >> Here is the Report and Decision for Rocky Brook. >> The original is on the way to you via USPS. >> Thanks! >> -----Original Message----- » From: mchlawoffices@gmail.com [mailto:mchlawoffices@gmail.com] >> Sent: Tuesday, May 07, 2019 3:00 PM >> To: j.pelesky@mchlawoffices.com >> Subject: Mail from BizHub600 >> Donot Reply to this address. >> <SKMBT_60019050713590.pdf> Page 1 of 1 l 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 Hydra _ County Permit Jenny, Please forward to Steve regarding the Rocky Brook Hydro project iv1LA18-00105 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@co.jefferson.wa.us>; herrwayne@yahoo.com;'Laura Westervelt' <lauraw@eco-land.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 believe 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 5/6/2019 F ON .17,F FERSON COUNIYY IMM-52MON 62-1. She-idan Sheet Port Townsend, VVA 98368 Rocky Brook Hydroelectric LP 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, WM, located at 3020 Dosewallips Road, Brinnon. SUMMARY OF DECISION: Request granted, subject to conditions. ix 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: SEE ATTACHED INDEX LISA' PublicThe Minutes of the are provided for the convenience of the parties. The official record is the recording r that can be transcribed for purposes of appeal. 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. W 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 property, 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. Water 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 falls 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 Brinnon'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 illill: 1 1 1 The Hearing 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 Brook 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 (SMP) 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 SMP, became a legal nonconforming use. The Jefferson County Code (JCC) allows the maintenance and repair of nonconforming uses. EM & 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 falls 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 instrearn structure as set forth in JCC 18.25.100(1) as it has the potential to modify water flow, Instrearn structures include those for hydroelectric generation. To comply with instrearn 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 nonlocal residents come to the falls each day during the summer, and a few visitors attempt to climb the falls. The falls are located on private property owned by the applicant and not a public park owned by a governmental entity. The applicant adviCes 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. er71[a1011-1I0Ti•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 3020 Dosewallips Road, Brinnon, should be granted subject to the following conditions: 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. X 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. The request for a shoreline substantial development permit to allow relocation water outfall/discharge and replacement of existing turbines at I Hydroelectric facility located at 3020 Dosewallips Road, Brinnon, subject to the conditions contained in the conclusions above. STEPHEN K CAUSSEAU)(—,TR. Hearing Examiner ORDERED this 7th day of May, 2019 the Rocky of the Brook is hereby granted 7X