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HomeMy WebLinkAboutM092316S4�¢SON c�G IN Government -to -Government MINUTES September 23, 2016 Madam Chair Kathleen Kler called the Government -to -Government meeting to order in the presence of Jefferson County Commissioners and staff and Quinault Indian Nation Council members and staff at the appointed time. Jefferson County Representatives: Commissioner District 1: Phil Johnson Commissioner District 2: David Sullivan Commissioner District 3: Kathleen Kler, Madam Chair Department of Community Development (DCD) Director Patty Charnas Associate Planner Joel Peterson Prosecuting Attorney Michael Haas Quinault Indian Nation Representatives: President Fawn Sharp 71h Councilman Thomas Obi Senior Assistant Attorney Karen Allston Assistant Attorney General Peter Crocker Director of Natural Resources Dave Bingaman Director of Planning Charles Warsinske Wildlife Biologist Daniel Ravenel Environmental Health Specialist Rich Bly Staff member Justine James Temporary Planner Carl Smith Madam Chair Kler welcomed the Quinault Indian Nation and thanked President Sharp and members for the courtesy and effort of traveling for the meeting they requested regarding the proposed Kalaloch Cabins. The proposed project is on land currently owned by the Floyd and Marian Dickinson Trust (Sea Crest Land Development, Incorporated). She stated the citizens of Jefferson County love this land and are cooperatively learning ways to keep the waters here healthy. She added that last year, she attended an event at the Quinault Resort where State Representative Derek Kilmer addressed the challenges that face the coastal Tribes such as climate change and tsunami threats. Madam Chair Kler stated that she has read the latest edition of the Quinault Indian Nation newsletter, the Nugguam, where President Sharp wrote of the need to rethink Stewardship Ethics in this country. She noted that Jefferson County's processing of codes and permits is one way that we all can learn to live together on the land. President Sharp thanked Madam Chair Kler for her opening statement and noted the Quinault Indian Nation shares many of the same values. She added that there is value in making good governmental decisions and there are macro -environmental issues we all are facing. She noted that Jefferson County staff has been very kind and helpful. She added that can go a long way to ensure a good working government -to -government relationship. Page 1 Commissioners Meeting Minutes of September 23, 2016( President Sharp stated that the council was briefed on the proposed Kalaloch Cabins project and were alerted to multiple levels of potential County, federal and treaty violations and the implication of many levels of non-compliance. The Quinault Nation Tribal Council Business Committee directed President Sharp and other Quinault Nation members to request a Government -to -Government meeting with Jefferson County to discuss their findings. There were some issues not addressed in the initial comment letter drafted to Jefferson County. President Sharp reviewed the following Quinault Nation's concerns regarding the proposed Kalaloch Cabins. • Findings and analysis from the Oregon Climate Research Institute (OCRI). OCRI's analysis highlights significant concerns regarding: • Increased intensity and frequency of coastal storms. • Erosion potential. • Cascadia subduction zone; earthquake vulnerable setting. • The Tribe is working with their Congressional delegation and have been asked to testify before congress on the Tribal Coastal Resiliency Act which recognizes that resources are very scarce. • The Quinault Nation barely has the ability to serve the community of Queets. They are concerned that the proposed project will put a strain on their already limited resources; adding liability and risk. • The current owners of Sea Crest have been put on notice multiple times that the beach is closed to the public, but there is still advertising for guests to use the beach, which is a defiance of Tribal Law. • Quad tracks are seen all around the lagoon which is a vulnerable ecosystem. The Tribe considers this a prized area and is concerned the quad tracks and public use of the area will lead to its degradation. The Tribe's duty is to be a steward of the land and protect this area. • The Tribe is concerned about the exploitation of an area that means a lot to the Tribe both culturally and historically. They wish to preserve that character. President Sharp stated there are many macro -environmental issues they have no control over. With the ones they do have control over, the Tribe has the absolute responsibility to make good public policy decisions. The Tribe believes their responsibility is heightened on this proposed project. Ms. Allston stated that the Tribe's legal concerns with the proposed Kalaloch Cabins Project were addressed in the initial letter to Jefferson County. She explained that the most significant legal issue concerning the Tribe, is that the area in question has never been zoned by Jefferson County. They question how designations and variances can be applied by the County, when it has not been designated prior to the proposed project. She added that the area is on a Quinault Indian Reservation and is Quinault Indian Nation land. Ms. Allston stated that the ownership of the lagoon is also a significant legal issue. In terms of implicating federal law, ideally they would have the Bureau of Land Management (BLM) conduct a survey to determine if the lagoon was a remnant of the Queets River. If that is the case, which they Page 2 Commissioners Meeting Minutes of September 23, 2016 believe it is, federal case law indicates the lagoon is a part of the Quinault Indian Nation since it was a part of the original bed of the river. She believes the Quinault Nation has a pretty strong case for ownership. If that is indeed the case, it will change the County's calculous in terms of buffering and use of that area and bluff. Ms. Allston explained that the Kalaloch Cabins application raised other legal issues such as: • The application lacks detail • The application has inadequacies • There are water supply issues concerning the State Water Law • There are federal issues to be addressed regarding the proposed septic system Mr. Ravenel stated the OCRI is a prestigious organization. OCRI conducted a climate adaptation change study on the Quinault Indian Nation and how climate change might affect their resources and ecosystems. One of the key findings of this study is that their coastal habitats will experience increased sea levels, increased storms and the frequency of those storms which lead to erosion. He added that they are already starting to see some of these effects. There have been cabins that have slid off a hillside and onto the beach below. The Tribe would like to see the protection of the hillside and bluff in that area. Mr. Ravenel explained that the coastal lagoon previously mentioned, is one of only two lagoons in the entire Quinault Indian Reservation. He noted that the Pacific Flyway can be seen from the Jefferson County Chamber's window. A question in the SEPA review was if the area is a route for migratory birds? The Pacific Flyway is the largest one in the United States, arguably the largest in the world, and was not addressed during the SEPA review. He explained that when migrating birds are flying over, they are constantly looking for areas to rest and forage. Due to developments, coastal lagoons like the one near the proposed project, are becoming scarce. Mr. Ravenel stated lagoons are not only important ecosystems, but they are also key in the ability for tribal members to hunt waterfowl, which is one of their Treaty Rights. The proposed project calls for a reduced buffer zone which the Tribe believes will have a detrimental impact on the wetland. He added that as a result of ATV use near the lagoon, there is increased garbage and more people walking around which disturbs plants and animals. Madam Chair Kler asked if the ATV -users and public are accessing the wetland area by the road that had been cut into the hillside? Mr. Ravenel replied that seems to be the case since the entire bluff is very steep. Prosecutor Haas asked what kind of tribal law enforcement is being conducted to protect that area? Mr. Bingaman explained that he supervises the Resource Enforcement Department which conducts a lot of fishing enforcement since there is fishing on the ocean, rivers and clam -digging beaches along the entire coast. There are also 200,000 acres of forest land to oversee and wildlife issues on and off the reservation. He added that they employ nine Resource Enforcement Officers. Mr. Bingaman stated that there is an individual who is assigned to a six-month beach patrol duty, who often walks sections of the beach and sometimes uses an ATV. He noted that the previous owner of the proposed project area, called the Jefferson County Sheriff s Office in an attempt to halt their Beach Patrol Officer. The previous owner showed a plat map that indicated he owned all the way down to the ocean, allowing the Deputy to believe he had jurisdiction in that area. Mr. Bingaman stated that type of interaction does not work well for the Tribe, as they are the owners of the beach. Page 3 Commissioners Meeting Minutes of September 23, 2016 Mr. Bingaman reiterated that the Tribe has limited resources to respond to additional developments in the area, and they are about the only ones with the ability to respond with the exception that State Parks has the ability to respond to house fires. He added that the proposed project creates a situation where they would be required to protect a development from which they receive no tax funds. President Sharp stated that the Quinault Indian Nation's entire federal budget for structural fires is only $25,000. The Nation subsidizes to a great extent, those impacts. President Sharp discussed the Public Trust Doctorine which is increasingly used by courts to require local, as well as state, federal regulators and those who grant permits, a heightened fiduciary duty to consider climate -related impacts of their decisions. Courts have recently considered and recognized that the public in general has a public interest in the environmental quality of areas. The Coastal Management Zone is also important. She added that when government entities are sued by private corporations, following the Public Trust Doctorine provides for a very solid defense. The Quinault Indian Nation is very mindful of climate change issues and anticipates more frequent and intense storms and sea level rise. Mr. James stated the Quinault Indian people have been in the area for many generations and he gave a brief history of the Quinault Indian Tribe. They utilize the entire environment for their sustenance need. While they do not have as much land as they used to have, they still use the area for hunting, fishing, shellfish, salmon, berries and roots. There are a lot of burial sites as a result of living in the area for over a thousand years. In the 1900's a University of Idaho professor noted that the entire north bank, near the mouth of the Queets River, had numerous above -ground burial sites. In 1905 the Bureau of Indian Affairs (BIA) created a burial ground on the south side of the river as they didn't like the above -ground burials. Mr. James gave more history on the Quinault Indian Nation's use of cedar trees and fishing in the area. He referenced a survey boundary marker placed in 1861. After 100 years of erosion, the boundary went from being in the southwest corner of a beach, to a mile into the surf. He added that the west banks are getting hit hard with erosion. Mr. Warsinske stated that the Quinault Indian Nation has a good working relationship with the Jefferson County Department of Community Development's Planning Department, who alerted the Tribe that the project application had come in and gave them a chance to review. He reviewed the Tribe's concerns from a Planning Department view and explained they were disappointed with the proposed project's application, SEPA response, lack of detailed wastewater treatment plans and traffic issues. He added that it is clear to the Tribe that the portion of County that overlaps the reservation, is not zoned, land use is not identified and shoreline management is not designated there either. Mr. Smith stated that he has looked at the application for Kalaloch Cabins and stated from a planning and land use perspective, there is no evidence that Jefferson County has ever designated or zoned that section of land. He noted that the sample map on the wall does not cover Quinault Indian Nation Reservation Land either. Mr. Smith added that if this is the case, how can regulations be applied if the land has never been regulated or zoned under County ordinance? Mr. Smith stated that the proposed application has serious deficiencies including the special biological study. For the proposed addition of so many units, they believe a traffic study is warranted. If the Tribe is correct about the County having not previously designated that land, they believe the County cannot regulate or proceed with processing the application until that is proven. Once that is done, then the Tribe Page 4 Commissioners Meeting Minutes of September 23, 2016 °J wishes to work with Jefferson County in applying Quinault Indian Nation zoning regulations. The Tribe feels that is an appropriate way to regulate the land. Mr. Smith stated that an MOU was previously discussed and they provided a model between the Chehalis Tribe and Grays Harbor County. Mr. Smith stated that in regard to a variance previously discussed by the County, he reviewed the code, which only applies if a permit has been denied. To wrap that into a Conditional Use Permit (CUP) that would then go to the Hearing Examiner, the Tribe feels is erroneous. Mr. Smith stated that the real character in the proposed Kalaloch Cabins area is low density and the corresponding designations to the north of the reservation are low density. The Tribe feels that to apply the potential small-scale tourist recreation density is inappropriate. Ms. Charnas stated she is still learning a lot about the previous efforts and history of the comprehensive planning, development standards, land use and environmental protection for Jefferson County. She noted that the County has not issued a final determination under their SEPA process. She explained that typically, SEPA checklists have gaps, but as part of the notice of application process, comment letters can help point out those gaps. Mr. Peterson explained there are different sections of Jefferson County Code under which they are reviewing the proposed project. Each of these sections has within it their own criteria for review and certain benchmarks to meet. He stated he appreciated the great comments that DCD received during the notice of application and on the SEPA checklist, as well as the comments today. At the time DCD initially received the application, they did not have the complete picture in order to apply specific mitigation steps. They began with the process of the threshold determination using the optional Determination of Non -Significance (DNS) process and using the comments to inform them about what the ultimate threshold needs to be. Mr. Peterson added that the Government -to -Government meeting helps DCD understand more about the site and mitigating conditions they can apply to the project. There are a lot of negotiations to continue with the project and how it is being proposed. Mr. Peterson explained how Jefferson County Code applies to the project proposal. The proposed project is located on the West End of Jefferson County where the County has a "planning overlay" which is a type of zoning for the West End. The overlay provides specific provisions for economic development for different resource uses on the West End. In his research, he also found history of in -holdings in the Quinault Indian Nation and how the County zoned those. Mr. Peterson stated he researched past meeting minutes on Comprehensive Plan proposals and discussions held at that time regarding an MOU with the Quinault Indian Nation, and how those changes would be applied to the Comprehensive Plan. Mr. Peterson used an enlarged map of the area in question to explain the current zoning on the West End. He stated that the zoning is typical for Jefferson County and includes residential and forest zoned parcels as well as Rural Residential 1:10, 1:20 and a few 1:5's, rural forests and some in -holding forests. He pointed to the section of map which shows the Quinault Indian Nation land and noted that the Geographic Information Systems (GIS) did not show the individual fee simple parcels. In looking at the Comprehensive Plan, they are called "Undefined Residential." Whatever size they may be, they are considered a residential parcel. This gives the County an entry way into their use table to see if they have an appropriate use for that type of zoning. Page 5 Commissioners Meeting Minutes of September 23, 2016 The area for the proposed Kalaloch Cabins project was a 23-acre parcel that was divided into five 5-acre pieces through a testamentary process between trustees held in a trust. This meets Jefferson County's minimum zoning density which is Rural Residential 1:5. Mr. Peterson stated that the project uses a West End planning area overlay as our zoning review. The proposal is a small scale recreation and tourist rental cabins project. There are provisions in the County's code that says you must start with a minimum of a 10-acre parcel to do this type of project. That provides for a certain amount of development by gross square feet of cabin area. Mr. Peterson stated that the proposed project calls for a lot consolidation as part of the process. This would run concurrently with the Use Proposal. If the Use Proposal is approved, the lot consolidation would be approved. The owners do not want to consolidate the lots if the project is not approved. He explained that the project is also a Type III Conditional Use Permit (CUP) which means it requires a quasi-judicial decision made by a Hearing Examiner. The CUP gives the County the ability to add mitigating conditions before the project is approved. As part of the notice of application sent out, a preliminary SEPA determination was also sent out. Mr. Peterson stated that the SEPA gives the County substantive authority which means they can look at the substance of the proposal and apply conditions under the SEPA, outside of the county code, in order to meet the environmental requirements of all regulations. The County is currently working through multiple layers of criteria to address the proposed small-scale recreation and tourism (SSRT) project. Mr. Peterson explained that per SSRT, there needs to be 10 acres to get 6,000 square feet of cabin space, with a maximum of 15 cabins that can share that square footage. The proposal, when consolidated, is to double that figure, which would mean 20 acres and 12,000 square feet of cabin space and a maximum of 30 cabins. The current proposal is to add 24 small cabins with the existing 2 cabins for a total of approximately 11,000 square feet in cabin space on the consolidated 23-acre parcel. The coastal lagoon wetlands and other constraints and setbacks that encumber the proposed project area were outlined on a map by Mr. Peterson. The coastal lagoon has a 200-foot setback and nearby Highway 101 has a standard 50-foot setback. A geotechnical report defined the bluff area and DCD prescribed a 25-foot setback, adding a required 5-foot development setback, resulting in a 30-foot setback. Mr. Peterson explained that the Critical Areas Ordinance (CAO) has a provision to reduce a wetland buffer up to 25% if there is planting done. There is a Habitat Management Plan that compensates for the reduction of a wetland buffer, making the buffer 150 feet. Given the geographic area and including the buffer zones, this leaves 1.8 acres for the proposed project. The applicant, Delaware North, is proposing a reasonable economic use variance. This variance comes from the County's CAO code and first needs to go through the County's mitigation sequence. Mr. Peterson explained if we can't avoid it, then we try to minimize the impacts. If it cannot be avoided or minimized, the next step is mitigation. Delaware North proposes to provide mitigation by addressing an area on the east side of the highway where a previous owner had filled a wetland. The proponent is prepared to remove fill and drainage ditches to restore wetland hydrology in that area. The land was previously owned by two families who put it into a trust, with co -trustees from each family. That trust has been turned over to a legal firm in Seattle, Washington. The property is under one name now. Delaware North does not own the property at this point, they will make an offer when they Page 6 Commissioners Meeting Minutes of September 23, 2016 K know they can move forward with the project. Mr. Peterson explained that the trustees have signed the permit form, stating that Delaware North can move forward with the permit proposal on their property, to see how it turns out. Mr. Peterson stated that a complete analysis has yet to be done. They are still looking into the question "Can rectifying a previous violation be used to compensate for the 1.8 acres of buffering encroachment beyond the administrative reduction?" Mr. Ravenel asked if Jefferson County's first step in environmental review is avoidance, why can't the cabins be placed off the coastal zone not affecting a Category 1 wetland? He suggested the cabins be placed on the east side of Highway 101. Mr. Peterson replied there are areas on the coastal side that are not encumbered by critical areas, and if the proponent wanted to place cabins there, then DCD would be reviewing that proposal. He stated that the proponent wishes to place high -end cabins along the bluff for people's enjoyment of the vista during their short stay. Mr. Peterson stated there is still a lot of analysis left to do, but the anticipated ecological functions to be minimized or reduced near the cabins are loss of vegetation, evapotranspiration and infiltration. These functions would be offset by the proposal with mitigation on the upper side of Highway 101. He added there still is a lot to be worked on at this point with reviewing the current proposal. Standards in SSRT requires that the proposal will not harm neighbors or the environment, and not put undue pressures on public services, as well as other requirements. If DCD cannot say that it meets those requirements, they cannot approve the proposal. Under SEPA, there is a review of any probable adverse significant environmental impacts. They have to think about what is probable. They are still looking into those questions too. Mr. Bingaman asked what is the difference between a small and large scale recreation and tourism zone? Mr. Peterson replied that Jefferson County is considered a rural County, and does not have a large scale recreation and tourism zone. As a rural County, the project can be referred to as a Rural Recreational Development. If a large scale recreation and tourism area was proposed, it would be considered a Master Planned Resort (MPR) or within an Urban Growth Area (UGA), and would be subject to a different process. Mr. Bingaman asked if the proposed project should be considered an MPR? Mr. Peterson replied that the project fits the criteria of a small scale recreation and tourism development. Mr. Bly asked if the proposed Kalaloch Cabins project is approved, can they then seek to develop the east side of Highway 101? Mr. Peterson replied there is a provision in the code to allow for a small scale project to expand. It would trigger the same type of review process currently being done, but the parcel on the east side of Highway 101 does not meet the size threshold to support a SSRT project. They could probably put a single residential unit with an ADU on that parcel, but he believes that would be its maximum building potential under our current code. Mr. Bly stated that with the proposed septic design, the applicant is seeking to downsize the area of the drainfield by using engineered sand and going into what he assumes will be a partial -level aquifer. His concerns about this type of system is that there will be a large amount of effluent which will make its way down the hill into the lagoon and wetlands below. He noted that per the shallow injection well regulations, since there are more than two homes, all effluent going into the drainfield has to meet primary drinking water quality standards. Page 7 Commissioners Meeting Minutes of September 23, 2016 Madam Chair Kler asked if the cabins previously built on the property are permitted? Mr. Peterson replied that he believes the structures were built under non -conforming use and that he would need to look to see if there is permit information. Madam Chair Kler asked if the cabins would need to be up to standard? She also has concerns about there being a potential to build on top of the filled -in wetland area on the east side of Highway 101. Ms. Chamas reiterated what Mr. Peterson stated in that the County has just started its analysis. After receiving the initial comments on the project, they extended the deadline by 30 days so they could accommodate for the Government -to -Government meeting with the Quinault Indian Nation. Mr. Warsinski asked where can the West End Planning Overlay be found? He noted the map that Mr. Peterson is using during the meeting also does not depict the Quinault Indian Reservation. Mr. Peterson replied that the overlay can be found in the text of the County Code. He added there is a similar overlay in Brinnon, Washington. The West End Planning Overlay is bifurcated from Jefferson County by the Olympic National Park boundary, which is used as a delineator. The West End Planning Overlay would be anything on the West End of the County. Mr. Peterson explained the overlay allows more economic development opportunity. Cottage Industries are allowed to have more employees than typically allowed in East Jefferson County. It is more expansive on some of the uses. With a SSRT project, you can have a small store limited to 5,000 square feet that could serve the general population in that area. Mr. Peterson noted that in listening to comments from individuals living on the West End, they stated they wished to have more economic development opportunities in the area. People are looking for ways to expand their businesses on the West End. The Jefferson County Comprehensive Plan addresses this and the Development Regulations implement it, to provide more opportunity on the West End. Mr. Warsinski asked how many jobs would be related to the proposed cabin project? Mr. Peterson replied that he could find out. He added that 45% of the Kalaloch Lodge employees are from the Quinault Indian Nation. He said one question to think about is how much benefit can the local community gain from having someone develop a project that would also employ and serve the local community? President Sharp asked how Jefferson County plans on moving forward in determining ownership of the lagoon? Mr. Peterson replied that he is unsure about the legal ownership issue with the lagoon itself. He noted there is an old government survey line around the lagoon, which could be a meander line from something further down on the coast. His understanding is that the beach at median high water is the demarcation zone, and below that line is sovereign Quinault Indian Nation land. Mr. Peterson stated that the applicant has not made them aware of any plans below the bluff. If there were such plans, they would need to apply for a shoreline development permit from the County. DCD staff clarified with the applicant during a pre -application conference that they had no plans below the bluff. President Sharp asked if the Quinault Indian Nation makes a claim of ownership on the lagoon, how do you envision the County applying Quinault interest and law? Ms. Chamas replied they do not have the answers yet, but it is a priority question for their office. Mr. Peterson added that he has researched deeds as far back as he could find them and they describe "Government Lot 7," with the exception of 100 feet on the north property line between the ocean and the highway. He is interested in learning more about how that history came into play. How would the former owners know they sold something they didn't own to the next buyer? Ms. Allston stated they could supplement the record and pull the original patents. Page 8 Commissioners Meeting Minutes of September 23, 2016 �J She added that what also may be helpful is to look at old aerial photos of the area. The Queets River originally was further north and has migrated south. In talking to Quinault Indian Nation staff, they did not have access to the old photos and maps, but anecdotal information suggests that the lagoon is a remnant of the Queets River. Madam Chair Kler asked if there is anything specifically stated in the application that occupants of the cabins do not have access to the beach? Mr. Peterson replied that he will need to review the project description again to see. Madam Chair Kler stated that she has concerns about the road that leads down to the beach. It was built without permit by the previous owner and she asked if that road could be removed? She added that removal of the road would seem to be a clear indication there is no beach access. Ms. Chamas replied that option could be in the spectrum of everything they need to analyze. President Sharp stated the owner of the property has put up signs indicating that guests have full access to the beach and has even used the use of the beaches in advertisements. She added that the Tribe put the owners of Sea Crest on notice regarding violation of beach use, which they disregarded. The Quinault Indian Nation has very detailed records of their rights to the beach. Mr. Peterson asked if there is a process for an individual to gain a permit to access to the beach? President Sharp replied yes, if they are with a tribal citizen. Mr. Bingaman added they put signage on the beach that explains this, but those signs are torn down shortly after they are put up. They have made the effort to let people know that it is a closed beach. Commissioner Johnson agrees with closing the road blocking access to the beach, but noted that no matter how steep the bluff is, he believes people will find their way down. Commissioner Sullivan explained that on the East Side of Jefferson County, there is a proposed MPR where similar issues have surfaced. Port Gamble S'Klallam Tribe is working with the applicant to manage certain areas of cultural significance to the Tribe. He suggested a possible collaboration outside of the government meeting, to take place between the Quinault Indian Nation and applicant Delaware North. He also suggested that if a tribal member needs to be present with someone to gain access to the beach, maybe the Tribe can charge for that service? Mr. James noted that the Quinault Indian Nation ultimately wishes to preserve the spiritual and sacredness of their beach areas and is one reason for asking people to keep off them. Mr. Ravenel stated that Section 13 of the SEPA, under subsection C it discusses "Consultation with the Tribes." He noted that consultation with Tribes is listed in the first part of that section, but yet there was no consultation. Mr. Peterson replied that their responsibility in SEPA is to send SEPA notices to all the Tribes and notice was sent to the Quinault Tribe. Ms. Chamas added that there was some preliminary communication submitted to the Quinault Tribe as well. President Sharp stated that on September 26, 2016 the Quinault Indian Nation is meeting with the President of the United States Barack Obama who made a pre -election commitment to meet with tribal nations every year. Tribal consultation has been a cornerstone to his presidency. Tribes have been advocating that "consultation" is more than simply talking to Tribes and giving notice. They believe that Government -to -Government means there is an underlying relationship where there is political equality. There is an assumption that you have an equal position at the table. She explained that means when there is an issue of dispute, there is a meaningful discussion. Under no circumstance should agencies take unilateral action affecting tribal lands, territories and resources. She added that the lack of consultation with Tribes is at the heart of the Dakota Access Pipeline dispute. Page 9 Commissioners Meeting Minutes of September 23, 2016 Mr. Peterson stated that per statutory requirement, the SEPA Threshold Determination submittal needs to go back out to interested parties by October 19, 2016. He noted that the DCD has a lot of work to do before the full report is available. He explained that the SEPA Threshold Determination needs to be completed prior to the hearing, so that the SEPA review can be addressed during the hearing. He added that the hearing could take place in November or December, 2016 and will be held at the Clearwater School on the West End. A 15-day hearing notice is the standard, but Mr. Peterson suggests a 3 week notice to accommodate individuals who may have to make arrangements to attend the hearing. Mr. Smith asked if DCD is anticipating receiving the additional information and studies requested from the applicant prior to the SEPA decision on October 19, 2016? Mr. Peterson replied yes, partially. Ms. Allston asked if there would be an opportunity to comment on the new materials? Mr. Peterson replied yes, that is part of changing a threshold determination. He explained that it goes back out again, as the original, and receives the same review. There will be another notice of the determination of non - significance. Ms. Charnas added that we really do not know at this point. They scheduled the Government -to -Government meeting and were able to grant a 30-day extension. There are lots of moving parts and information sought, analyzed collectively and comprehensively. She apologized for not having calendar dates, but stated that this issue does not lend itself to that right now. Mr. Warsinske stated the applicant is conducting a traffic study. He asked what else are they doing? Mr. Peterson replied that the applicant has been asked to provide more data on traffic analysis, to follow up with the wetland violation to learn more about those wetlands and what they previously were. He added that cultural resources require a cultural resource survey for any grounds broken, which is something that is typically written in as a condition of approval. That doesn't have to be done prior to the SEPA Threshold Determination or hearing. He noted there will most likely be cultural resources work to be done and they will have an on -site coordinator for that. Madam Chair Kler asked if whoever conducts the cultural survey, is it in conjunction with the tribal nation most affected, or is it done by a state agency? Mr. Peterson replied that the Washington State Department of Archaeology and Historic Preservation (DAHP) has a standard Inadvertent Discovery Plan, and they work with the affected Tribe in approval of that plan. It is a 3-way coordination with DAHP, the Tribe and the County. Madam Chair Kler asked if a tribal member is present during the survey? Mr. James replied the Tribe has been invited to monitor work on prior surveys. Commissioner Sullivan stated that Jefferson County ran into a similar situation with Beckett Point property owners. He explained that during a community drainfield project, they found Native American remains. The County coordinated with the Skokomish and Jamestown S'Klallam Tribes who worked with the community as they were also concerned about water quality in that area. He added that everyone had archaeological, historical and water quality in mind as they worked on the project. He stated that he previously testified in favor of past Washington State Representative Lynn Kessler's bill in support of the archaeological remains process. Mr. James noted that he does not want to hinder development, but he wants to see it done in a way that protects resources. Mr. Crocker asked if the Cultural Resource Survey (CRS) does not typically precede the SEPA Determination? Mr. Peterson replied that they put the CRS in as a condition of approval. It becomes a performance requirement for the applicant to complete. He added that this would be an activity that would be conducted early in the process. Page 10 Commissioners Meeting Minutes of September 23, 2016 1' Mr. Warsinske stated he has concerns in reviewing how the applicant plans to mitigate the wetland violation that occurred. He explained that the plan seems very minimal and did not state the amount of plants, the depth the site would be excavated or address the hydrology issues of the site. He asked how can the proposed plain wetland mitigation project be used to reduce a special buffer for such a special lagoon? He believes that it does not adequately address the impacts of removing a special buffer. Mr. Peterson replied that the parcel used to be a forested parcel, and was cut under the Forest Practice Act permit. DCD will be looking at the amount of mitigation that is proposed to see if its commensurate with the impacts we would see on the bluff. Mr. Warsinske stated that the lagoon is special and the buffer is there for a reason, and asked how could we mitigate for cutting that in half. Whereas the proposed mitigation site on the east side of Highway 101 is currently like a gravel parking lot. How does a Category 3 wetland mitigate for the loss of the special buffer? Mr. Ravenel stated he agreed with Mr. Warsinske's concerns. He noted that the lagoon below is a Category 1 wetland, it's not at the same magnitude as a ditch. He explained he understands that the proposed cabins will be tucked into the trees, approximately 100 feet from the wetlands. With the addition of people walking around, it creates noise and light disturbance to wildlife, migratory birds and waterfowl, which the Quinault Indian Nation has subsistence rights to. He added that light disturbance has effects on the migratory routes of birds. Mr. Peterson explained that the proposal for waste management is to install a few holding tanks on the backside of the cabins and plumb them to a drainfield on the south side of the property. Their proposal is to dig out a drainfield and fill it with sand. Mr. Bly replied that is where he has the most concerns. He stated that in the proposed drainfield area, the soils there are more towards "Type C", and the application rate you would typically see is around one gallon per square foot. In the soils located on the upper part of the property, an application rate of around .2 gallons per square foot would be used, making the drainfield about five times smaller. The drainfield would be outside of the evapotranspiration and aerobic zones. The effluent would enter the sand and gravel drainfield with little to no treatment. Mr. Bly explained that the main treatment for a septic system is not done in the septic tanks, but in the drainfield. His concerns are that the effluent would make its way into the groundwater and into the lagoon below. Mr. Bly stated that per the federal Class 5 Shallow Injection Rule, which applies anywhere, when there are more than two homes on a septic system, it applies. The rule states that effluent going into the drainfield has to be primary drinking water standards. He added that people who rent cabins tend to take longer than normal showers since it's not costing them extra. He is concerned about what chemicals will be used in the showers and the potential herbicides and pesticides used for landscaping, and where those chemicals will end up. Mr. Bly stated that what is proposed is a large environmental footprint for this type of development. He noted that per the Environmental Protection Agency (EPA), standard -type septic systems should not be used on parcels less than 2.5 acres. Mr. Warsinske stated that the Tribe will be asking for the sanitary engineer to show them the design of the proposed septic system and how it addresses Mr. Bly's concerns. Commissioner Sullivan stated that the County always tries to follow all federal and state laws and get something done right the first time. If someone does not believe that the County did get it right the first time, or disagrees with a decision made by the hearing examiner, is there an appeal process? Ms. Charnas replied yes, the appeal process takes place within 14-30 days after the hearing examiner has Page 11 FCommissioners Meeting Minutes of September 23, 2016 made a decision. Commissioner Sullivan requested that the public should be made aware of the appeal information. Madam Chair Kler stated in researching this issue, it was interesting to see how many Memorandums of Understanding (MOU)'s have been signed, partially signed or expired. She asked if there is a present MOU in effect? What needs to be done to establish an MOU? Ms. Allston replied that the Quinault Business Committee rescinded and nullified their signature almost 10 years ago on an MOU. At that time, she believes that a tri-party MOU was proposed and a letter went out to Grays Harbor, who didn't sign, and Jefferson County. She stated she will research her records and forward her findings to Jefferson County, but she knows that the Quinault Indian Nation rescinded the MOU. President Sharp added that the Tribe has reopened negotiations with Grays Harbor. She noted that it is beneficial to reach an MOU prior to an issue to adopt rules of engagement, understanding and recognition. The Quinault Indian Nation is very interested in completing MOUs with both Grays Harbor and Jefferson County. Commissioner Sullivan stated that a similar topic is Jefferson County's Comprehensive Plan, which is currently undergoing an update. Any input would be very timely right now to deal with some of the issues that have been discussed during this meeting. Ms. Allston stated that she would expect more than the Quinault Indian Nation being offered the ability to give input. Jefferson County may or may not take consideration to their input, therefore she believes there should be Government -to -Government consultation. Ms. Allston stated there is a conflict in regulatory governmental functions and a potential conflict in zoning. She suggested an all -day workshop to sit down and compare zoning and laws and how they apply. President Sharp agreed and also urged for that level of a work session to understand not only the regulatory letter of the law, but also the spirit and intent. She added that the body of water affected by the proposed project is most likely a historical remnant of one of their major river systems. How is Jefferson County not going to just simply talk to us about that, but really factor in the Tribe's interests in their decision making process? She does not believe this issue is something that can be simply discussed in correspondence as there is a mix of legal, technical and policy issues to discuss. This is unfinished work that should have been completed a decade ago. Madam Chair Kler agreed noting that a lot of work went into a previous MOU, and then it went into limbo until now. Now everyone is working on digging up records that show things were discussed but not resolved. Ms. Allston provided a copy of an Interlocal Agreement between the Confederated Tribes of the Chehalis Reservation and Grays Harbor County. She asked if there will be an opportunity to supplement the record? Mr. Peterson replied yes. Mr. Smith asked for confirmation that when additional studies are submitted by the applicant they will be forwarded to the interested parties, including the Quinault Indian Nation and will be given the opportunity for comment prior to Jefferson County's October 19, 2016 deadline? Mr. Peterson replied that October 19th is when he will be sending it back out again for review. He added that he has put the entire project on a County web portal and asked if it has been helpful? Ms. Allston stated that she is unsure why, but two items were non-downloadable. Mr. Peterson replied that the items in question could have been from a video that was submitted by a member of the public. He stated he will work with them to get them that information. Madam Kler Chair asked if the communication between both governments is going well? Mr. Warsinske replied that communication between both Planning Departments are good. Madam Chair Kler added that Ms. Allston and Mr. Crocker will be able to communicate with Prosecutor Haas as well. Page 12 Commissioners Meeting Minutes of September 23, 2016 President Sharp thanked Jefferson County on behalf of the Quinault Indian Nation for holding the Government -to -Government meeting. They appreciate the opportunity to speak with Jefferson County. She noted that she appreciated Madam Chair Kler's opening statement as it goes to a lot of the heart of the reasons she had coming into this discussion- She added that a lot can be accomplished when governments sit down with a sense of political equality to talk about mutual interests and recognize the history and values of the Quinault citizenry that has been here for centuries, making good informed decisions that we all can be proud of. Looking back on history is our judge on how we made decisions. It will be history defined by leaders as well as elected officials and staff who looked at all the information and science, and took into consideration all of the cultural and spiritual implications of these very important decisions. President Sharp thanked Jefferson County for the hospitality. Madam Chair Kier thanked everyone for their effort in coming to the Government-to-Govemment meeting and for staff who has worked on this issue. NOTICE OF.A,DJOURNMENT. Madam Chair Kier adjourned the meeting at 3.54 p.m. JEFFERSON COUNTY BOARD OF COINiMISSIONERS Kathleen Kler, Cj3pir ;,� ' •, `4 1� •gip LA ATTEST eov� Carol A er m y Deputy Clerk of the Board Page 13 QUINAUL INDIAN NATION Fawn Sharp, President SEAL: