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HomeMy WebLinkAbout080519_ra01Regular Agenda 10:00am JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of County Commissioners Philip Morley, County Administrator FROM: David Wayne Johnson, Associate Planner - Lead DATE: August 5, 2019 SUBJECT: Public Hearing on Draft Development Agreement for the Rocky Brook Hydroelectric Facility Addressing Mandated Public Access STATEMENT OF ISSUE: The Rocky Brook Hydroelectric Facility (Rocky Brook), located on the Rocky Brook tributary, near the Dosewallips River, proposes a development agreement between Jefferson County and Rocky Brook to address a 1986 permit condition mandating public access to the Rocky Brook trail and falls. A public hearing is required for all development agreement approvals. ANALYSIS: Background: In 1986, the Jefferson County Board of County Commissioners (BoCC) approved a Shoreline Substantial Development Permit (SH85-15) under the Shoreline Master Program authorizing the construction of a hydroelectric facility on the Rocky Brook tributary. Condition # 4 of the 1986 permit required that "[t]he public shall be permitted free and unencumbered access to Rocky Brook Falls at all times except during active maintenance, repair, or removal of the facility." In 2018, Rocky Brook proposed repairs and renovations to the existing hydroelectric facility, including relocating the outfall into a new location along the tributary. This proposal was processed at Jefferson County as a Shoreline Substantial Development Permit (MLA18-00105/ SDP 18-00023) under the Shoreline Master Program. The 2018 permit was approved by the Jefferson County hearing examiner on May 7, 2019. The 2019 permit affirmed the 1986 permit conditions, including the public access mandate. During and after the hearing, Rocky Brook objected to a public access mandate as recent Washington case precedents interpreting Washington's Recreational Immunity Act make it arguable that the immunities provided under the Recreational Immunity Act do not apply when public access is mandated. The hearing examiner's decision in the 2019 permit affirmed the public access mandate stating that liability was outside the jurisdiction of the hearing examiner. Rocky Brook sought clarification from the hearing examiner on the 2019 permit condition and their liability assertions. The hearing examiner affirmed the 2019 permit decision and the 1986 permit condition holding that the hearing examiner lacked the jurisdiction to amend a permit condition originally enacted by the BoCC. Page 1 of 2 Regular Agenda 10:00am Under the Recreational Immunity Act landowners in lawful possession and control of their lands, who allow the public to use them for the purposes of outdoor recreation, without charging a fee, are immune from liability for unintentional injuries to the users. Rocky Brook's location along a tributary, the trail, and the falls present substantial negligence liability risk to Rocky Brook's owners without the protections afforded under the Recreational Immunity Act. In Camicia v. Howard S. Wright Const. Co., 179 Wn.2d 684, 696, 317 P.3d 987, 993 (2014), the Washington Supreme Court, held that to avail yourself to the Recreational Immunity Act property owners must have the ability to close the land to the recreating public. Washington courts have not addressed the issue of mandated public access through a development permit condition in or after the 2014 Camicia decision. The potential liability risk presented to Rocky Brook is currently uninsurable. In response to the mandated public access permit condition and potential inapplicability of the Recreational Immunity Act, Rocky Brook proposes a development agreement authorized under RCW 36.70B.170 and Article XI of Chapter 18.40 JCC to address the mandated public access issue. This proposed draft development agreement resolves potential claims against Jefferson County or the potential closure of the Rocky Brook facility. Overview of Proposed Draft Development Agreement: The proposed draft development agreement, which has been reviewed by the Prosecuting Attorney's Office, removes the mandatory public access permit condition of the 1986 and 2019 permits and replaces it with a voluntarily commitment to maintain public access. Under the proposed draft development agreement if Rocky Brook disallows or substantially impairs public access without timely curing the default, the 1986 and 2019 permits will terminate. Further, if the proposed draft development agreement is terminated by Rocky Brook the 1986 and 2019 permits will terminate. This proposed draft agreement maintains public access while allowing Rocky Brook to avail itself to the protections afforded to it under the Recreational Immunity Act. Attachments: • Proposed Draft Development Agreement FISCAL IMPACT: No fiscal impacts are anticipated from the proposed draft development agreement RECOMMENDATION: Having been duly noticed on July 17, and July 24, 2019, conduct a public hearing on the draft development agreement to obtain citizen input and revise the draft development agreement, if appropriate, and take action to adopt the draft development agreement. REVIEWED BY: l �P ' ip Morley, C unt Administrator Date Page 2 of 2 Draft: 7/3/2019 JEFFERSON COUNTY DEVELOPMENT AGREEMENT WITH ROCKY BROOK HYDROELECTRIC LP and DELL KEEHN 1.0 Parties. This Development Agreement ("the Agreement") entered into by and between Jefferson County ("the County"), a political subdivision of the State of Washington, and Rocky Brook Hydroelectric LP, a Washington limited liability entity and Dell Keehn, an individual (collectively "Rocky Brook"), collectively referred to hereinafter as "the Parties." 2.0 Recitals. 2.1 Rocky Brook is a unique project that provides electricity for the Mason County PUD. It was originally permitted in 1986. Under the original permitting, Rocky Brook was mandated to open the Property, as defined below, to public access. 2.2 In light of its natural beauty and location, Rocky Brook is visited by thousands of locals and tourists during the year. The number of visitors has increased over time as opportunities for cost-free recreation in the State have decreased. 2.3 The public use mandate has put Rocky Brook in an untenable position; namely, it bears substantial, if not unlimited, legal exposure arising out of possible injuries suffered by visitors. This risk is uninsurable, and because public use is mandated by the original permit, it has become arguable under recent legal precedent that applicable immunities do not apply. 2.4 The exposure is sufficiently broad that Rocky Brook determined that it had no choice but to close down and fence off the Property, such that the public would be precluded from using or enjoying it in any manner. This would be a loss for the public as a whole—which would be denied both a unique recreational opportunity and a source of green energy—as well as Rocky Brook, which desires to operate its facility. 2.5 The County desired to protect the public's interests, which led to discussions and good faith negotiations. 2.6 The Parties agreed to the terms below, which will allow the Property to remain open for recreational use, while at the same time permitting Rocky Brook to avail itself to Recreational Land Use Immunity under Ch. 4.24 et seq. RCW, thereby limiting its exposure in the event of injuries and harms on its land. ROCKY BROOK DEVELOPMENT AGREEMENT - 1 6864662.1 Draft: 7/3/2019 3.0 Property Description. The legal description for the real property that is the subject of this Development Agreement is set forth in Exhibit A, attached hereto and incorporated by this reference as though fully set forth herein. 4.0 Modification of Permitting Conditions 4.1 The Recitals above are hereby incorporated into the Agreement. It is the Parties' express intention that Rocky Brook be opened for the purpose of cost-free recreational use by the public, and further, that Rocky Brook be permitted to avail itself to Ch. 4.24 et seq. RCW, to the maximum extent permitted under the law. 4.2 All permitting conditions and approvals under SH15-85 (1986), Exhibit B, and MLA 18-00105 (2019), Exhibit C, except as discussed below in 4.3, remain in force. 4.3. All permitting conditions and other requirements, including Condition # 4 under SH 15-85, imposed by the County mandating that Rocky Brook be opened to the public are hereby repealed and rescinded. 4.4. Rocky Brook shall voluntarily open the Property for recreational use by the Public. Such public access shall remain for the duration of this Agreement. 5.1 Miscellaneous. 5.1 Termination. Either party may unilaterally terminate this Agreement. If the Agreement is terminated by Rocky Brook, hydroelectric operations shall cease and associated permits under SH15-85 and MLA18-00105 shall be void. 5.2 Default. If Rocky Brook disallows or substantially impairs public access, the County shall provide Rocky Brook written notice of default and, if Rocky Brook fails to cure the default within ten (10) days of receipt of the notice (or commence to so cure with diligent prosecution thereafter when curing is not reasonably possible within said ten (10) days), the agreement shall terminate and the associated permits under SH15-85 and MLA18-00105 shall be void, unless the County obtains a specific performance remedy. 5.2 Vesting. This Agreement shall not vest Rocky Brook to any development regulations. The County has the authority to impose new or different regulations to the extent required by a serious threat to public health and safety. 5.3 Covenants Run with the Land. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation, or otherwise) and ROCKY BROOK DEVELOPMENT AGREEMENT - 2 6864662.1 Draft: 7/3/2019 assigns, devisees, administrators, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns. 5.4 All Other Conditions, Entitlements and Legal Rights. Nothing in this Agreement is intended to modify any condition, entitlement, right, responsibility, or duty, other than as expressly indicated above. 5.5 Relationship of Parties. Nothing contained herein or in any document executed in connection herewith shall be construed as making County and Rocky Brook joint venturers or partners. 5.6 No Third -Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 5.7 Further Actions and Instruments. Should additional documents or agreements be necessary to effectuate the intention of this Agreement, the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 5.8 Specific Performance. The parties specifically agree that damages are not an adequate remedy for breach of this Agreement and that the parties are entitled to compel specific performance of all material terms of this Agreement by any party in default. 5.9 Severability. If any phrase, provision, or section of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of this Agreement shall remain valid and unaffected. 5.10 Applicable Law and Attorney's Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. If litigation is initiated to enforce the terms of this Agreement, each party bears its own attorney's fees and costs. Venue for any action shall lit in Jefferson County Superior Court or the U.S. District Court for Western Washington. ROCKY BROOK DEVELOPMENT AGREEMENT - 3 6864662.1 Draft: 7/3/2019 5.11 Entire Agreement. This Agreement contains all the terms and conditions agreed upon by the parties. No other understanding, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either of the parties. 5.12 Changes, Modifications, and Amendments. This Agreement may be changed, modified, or amended only by written agreement executed by both parties. 5.13 Effective Date, Record. This Agreement shall be effective when filed with the Jefferson County Auditor in accordance with the provision of RCW 36.70B.190. All costs of recording shall be borne by Rocky Brook. SEAL: ATTEST: Carolyn Gallaway, Date Deputy Clerk of the Board ROCKY BROOK DEVELOPMENT AGREEMENT - 4 6864662.1 JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS Kate Dean, Chair David Sullivan, Member Greg Brotherton, Member APPROVED AS TO FORM: Philip C. Hunsucker, Date Chief Civil Deputy Prosecuting Attorney ROCKY BROOK Managing Partner Dated: 2019 Draft: 7/3/2019 DELL KEEHN wo Dated: .2019 ROCKY BROOK DEVELOPMENT AGREEMENT - 5 6864662.1 Draft: 7/3/2019 EXHIBIT A Parcel Number 602282004 in Section 28, Township 26N, Range 02W, TAX 7, WM, located at 3020 Dosewallips Road, Brinnon, WA 98325 6864662.1 EXHIBIT B 6864662.1 Draft: 7/3/2019 JEFFERSON COUNTY -CITY OF PORT TOWNSEND SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT ADMINISTERING AGENCY: Jefferson County DATE ISSUED: March 17, 1986 APPLICATION DATE: December 26, 1985 APPLICATION NUMBER: SH15-85 TYPE OF PERMIT ACTION: General TYPE OF USE: Primary Pursuant to the Washington State Shoreline Management Act (RCW 90.58), a permit is hereby issued to ROCKY BROOK HYDROELECTRIC LIMITED PARTNERSHIP to to construct a hydroelectric facility on Rocky Brook, a tributary of the Dosewallips River. The project is located in Sections 21 and 28, Township 26 North, Range 2 West, WM. The facility consists of a 150 square foot intake structure placed in the stream that is connected to a penstock. The penstock carries water to a 25 by 40 foot powerhouse located 200 feet north of the Dosewallips Road, near the base of the falls. The water passes through from one to four vertical turbine generators; a fifth is possible. A surge tank is placed in line with the penstock. The total head is 447 feet. Water exits the powerhouse and runs up a slight incline in an outfall pipe and is discharged near the base of the falls. Electrical lines connect the system to an intertie owned by Mason County Public Utility District No. 1. This development shall be within Rocky Brook and/or its associated wetlands; and not within a shoreline of state-wide significance. The site is an aquatic shoreline designation. The following sections of the Jefferson -Port Townsend Shorelne Management Master Program apply to the proposed project: 1.20, "Purposes"; 4.101, "Aquatic"; 4.103, "Conservancy"; 4.201, "Primary Use"; 5.200, "Utilities"; and 7.20, "Administrative Variances." Development pursuant to this permit shall be undertaken subject to the applicable policies and performance standards of the Jefferson -Port Townsend Shoreline Management Master Program and the following conditions: I. All provisions of the erosion control plans submitted for this project shall be strictly followed. 'These measures shall be completed prior to the issuance of a final occupancy certificate and full operation of the project. Additional erosion control measures may be required by Jefferson County at any time erosion is found to be impacting fisheries resources, project facilities, or public improvements such as the Dosewallips Road. 2. Should the project become damaged, immediate provisions shall be made to protect life and property, and the project shall be promptly repaired or abandoned. 3. Should the project be abandoned, the remaining improvements shall be removed and the site restored as closely as possible to its original condition. 4. The public shall be permitted free and unencumbered access to Rocky Brook Falls at all times except during active maintenance, repair, or removal of the facility. This permit may be rescinded by Jefferson County or the Washington State Shorelines Hearings Board upon thy; finding the permittee has not complied with the conditions stated herein, pursuant to RCW 90.58.140(8). The permittee is liable for all damages to public and private property aris- ing from violation of any provisions of the permit hereby granted, including the cost of restoring the affected area to its condition prior to violation and possi- ble court costs that my ensue from violation, pursuant to RCW 90.58.230. Development pursuant to this permit will not begin nor is it authorized until thirty (30) days from the date of filing as defined in RCW 90.58.140(6) and WAC 173-14-090, or until all review proceedings initiated within thirty days from the date of such filing have terminated, except as provided in RCW 90.58.140(5.a -c). Development or substantial progress toward development of the permitted activity shall begin within two (2) years from the date of this permit and completion of the permitted activity shall be accomplished within five (5) years from the date of this permit, unless an extension is requested by the permittee prior to these expiration dates. Nothing in this permit shall excuse the permittee from complying with any tither federal, state, or local statutes, ordinances, or regulations applicable to this project, but consistent with RCW 90.58. John L. Pitts, Chairman Jefferson County Board of Commissioners ref: SH15-85 EXHIBIT C 6864662.1 Draft: 7/3/2019 0N' /k ' IQ NGC �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 i., � � 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 MEMORANDUM TO: Parties of Record, Parker R. Keehn, Attorney at Law Austin Watkins, Civil Deputy Prosecuting Attorney, Jefferson County Prosecuting Attorney's Office FROM: Stephen K. Causseaux, Jr. Jefferson County Hearing Examiner RE: CASE NO: MLA 18-00105/SDP 18-00023 TYPE III SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT APPLICANT: ROCKY HYDROELECTRIC LP and DELL KEEHN DATE: June 3, 2019 By Report and Decision dated May 7, 2019, the Examiner conditionally approved a shoreline substantial development permit that allowed the relocation of a water outfall/discharge and replacement of existing turbines at the Rocky Brook Hydroelectric facility located at 320 Dosewallips Road, Brinnon, subject to six conditions of approval. By letter dated May 15, 2019, Parker R. Keehn, attorney at law requested clarification of Finding 11 of the Report and Decision. Mr. Keehn requested confirmation that Jefferson County interprets the original 1985 access requirement in a manner consistent with the protections provided for the applicant by RCW 4.24.210 and in a manner that does not subject the applicant to increase liability arising from public access. Mr. Keehn points out that Finding 11 does not take a position on the liability issue, and requests that the Examiner amend Finding 11 to provide such assurance. The Examiner questions his authority to exempt the applicant from liability based upon RCW 4.24.210. Furthermore, even if he has the authority, such would not prohibit injured visitors from attempting to recover damages from the applicant. The Examiner has no authority to change or remove the language of the 1985 permit regarding public access, as such is within the jurisdiction of the Jefferson County Board of Commissioners. Therefore, Finding 11 will remain as written.