HomeMy WebLinkAbout050PORT GAMBLE S'I(LALLAM TRIBE
31912 Little Boston Rd. NE - Kingston, WA 98346
March 15,2016
Jefferson County Planning Commission
621 Sheridan Street,
Port Townsend, WA 98368
Ernail : PlanCornm@co jefferson.wa.Lls
David Wayne Johnson
Pleasant Harbor FSEIS c/o Jefferson County DCD
621 Sheridan Street
Port Townsend WA 98368
Ernail: dwj ohnson@co.i efferson.wa.us
Subject: Pleasant Harbor Final Supplemental Environmental Impact Statement,
December 2015, Case No's: MLA08-00188, ZON08-00056
Dear Planning Commission Members and Mr. Johnson,
On behalf of the Port Gamble S'I(lallarn Tribe (PGST), the following comments are provided
with regard to the Final Supplernental Environmental Impact Statement (FSEIS) and Intent to
Amend the Unified Development Code for the Pleasant Harbor Marina and Golf Resort LLC
Master Planned Resort (MPR). We request that Jefferson County continue to work with PGST
staff to irnplement the actions described below. These actions are intended to serve as
mitigation for the potentially significant effects of the proposed project on cultural resoLrrces
and the Tribe's treaty rights and are also consistent with the conditions required under
Ordinance No. 0 I -0 128-08.
The Port Gamble S'I(lallam Tribe is the successor in interest to Indian bands and tribes
signatory to the 1855 Treaty of Point No Point, 12 Stat. 933.1 Today the Tribe retains deep
cultural and economic ties to the surrounding waters and to their fisheries in its usual and
accustomed grounds and stations (U&A). More than a century of federal court decisions have
fleshed out the components of the treaty right, including the right of access to places, the right
to a share of harvest to meet tribal moderate living needs, and the right to protection of fish
habitat. Maintaining access to the entire terestrial and marine landscape that was used by
tribal ancestors is also of critical cultural importance, and helps to define the Tribe's identity.
The proposed Pleasant Harbor project is located within the Tribe's U&A, in an area where
tribal members depend on fish, shellfish and wildlife.
In 2008, the Jefferson County Board of County Commissioners (BOCC) adopted Ordinance
No. 01-0128-08, listing 30 special conditions to be required for development approval under
the Comprehensive Plan arnendment to allow a Master Plan Resort within an area zoned
Rural Residential. "Consultation with the Tribes regarding cultural resources, and possibly
one kettle preserved as a cultural resource," is included as a requirement in the list of
conditions for development approval. The BOCC ordinance also requires a document to be
executed or recorded with the County Auditor, reflecting the developer's written
' United States v. Ilashington, 459 F. Supp, 1020, 1039 (W.D. Wash. 1978) (hereinafter Boldt II).
PORT GAMBLE S'KLALLAM TRIBE
31912 Little Boston Rd. NE - Kingston, WA 98346
understanding with and among the local tribes, as well as other entities, in order to maintain
site integrity and to assure traditional tribal access to cultural properties and activities. The
BOCC ordinance also requires the applicant to develop a wildlife management plan focused
on non-lethal strategies in the public interest in consultation with the Department of Fish and
Wildlife and local tribes. The other special conditions for development approval focus on
additional measures for environmental protection and other issues also of concern to the
Tribe.
With the release of the FSEIS for this project, it is questionable as to whether Jefferson
County's Comrnunity Deveiopment Department (DCD) made a good faith effort to consult
with the Porl Gamble S'I(lallam Tribe. In order to meet the BOCC special conditions in
Ordinance No. 0l -0128-08, we understood that Jefferson County would work directly with
PGST during the development of the FSEIS, including the supporting documents in the
appendices. However, the Tribe was not consulted during the development of the FSEIS and
olrr comments were not incorporated. The FSEIS Volume 2 Appendix O includes a Proposed
PIan for Archeological Monitoring and lnadverlent Discovery Protocol, DAHP Response to
the Cultural Resource Plan and the Skokornish Tribe's Response to the Cultural Resource
Plan. However, this section does not go nearly far enough to resolve PGST's concerns and to
rnitigate project effects with regard to cultural resoLrrces and tribal treaty right impacts.
The Centennial Accord (1989) ancl the New Millennium Agreement (1999)2 established a
basic framework and provide the general foundation for relations between the Tribes and
Washington State. The Government-to-Government Implementation Guidelines3 were
developed in order to provide a consistent approach for state agencies and tribes to follow in
implementing the Accord, and are applicable to local governments. In the context of the
government-to-government consultation process, we expected the Jefferson County DCD to
work with us to address the concerns raised at the February 2015 meeting and in our written
comments. Yet PGST was not consulted after the February meeting and was not provided
with any schedule or notification of the FSEIS prior to its release. We find the Jefferson
Counfy DCD consr.rltation process with the Port Gamble S'I(lallam Tribe to have been both
inadequate and negligent.
As stated in our previotrs comments in 2001, 2006,2007 and 2015 regarding this project, we
are concerned abor.rt the potential for adverse effects on cultural resources and treaty rights
from the loss of wetlands and rare keftle ponds, increased traffic, intensity of land use for
commercial and residential development, significant alteration of hydrology, clearing and
grading, increased irnperrneable surface, use of persistent pollutants, and other proposed
project effects.
The MPR project would be located in an aquifer recharge area and would significantly impact
kettle ponds and wetlands. The project proposes to remove 20,700 sq. ft. of wetland and
associated buffers in and around the largest kettle, I(ettle Pond B, for the purpose of creating a
control pond for storing stormwater and treated wastewater. The I(ettle Pond B wetland
2 Governor's Office of Indian Affairs: http://www.goia.wa.gov/government-to-government/data./agreement.htm
3 Governor's Office of Inclian Affairs Implementation Guidelinei: http://www.goia.wa.gov/govemment-to-
government/Data/guidelines.htm
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PORT GAMBLE S'KLALLAM TRIBE
31912 Little Boston Rd. NE - Kingston, WA 98346
wollld be cleared of vegetation, filled and lined. The proposal provides inadequate
compensatory mitigation for these effects with the plan to manufacture a wetland in existing
Kettle Pond C that wor.rld also serve as a stormwater runoff basin for the project. Impacts to
flora and fauna in the l(ettle Ponds and wetlands would likely have significantly adverse
effects on both culfural and natural resources.
Additionally, we are very concerned about the effects of persistent pollutants on water quality
in groundwater, wetlands and streams from the proposed use of pesticides, fungicides and
other chemicals in the project area, and potentially the Hood Canal, Duckabush and
Dosewallips River systems during overflow events. The project would remove 55% of
existing trees and native vegetation replacing it with impermeable surfaces and landscaping.
The project also has the potential to irnpact wildlife, including a migrating elk herd in the
project area. It would increase vehicular traffic along highway, roads and parking lots and
would degrade water qLrality in Hood Canal through stormr.vater runoff, impacting the Tribe's
fish and shellfish resources. The developer commissioned a sturdy of the number ofjobs
expected to be created as a direct or indirect resr"rlt of the MPR. However, an analysis of the
risks to fisheries, an existing economic base in the area for tribal members and others, was not
incorporated into the study. The proposed compensatory rnitigation in the FSEIS does not
effectively and sufficiently offset these effects.
Due to the potential for significant impacts to tribal fisheries and cultr"rral resources we request
that Jefferson County work with the developer and PGST staff to irnplernent the following
rnitigation actions, and meet the requirements of Ordinance No. 01-0128-08.
A. Cutlural Resources Protection and Stewardship
Action 1: Preserve I(ettle Ponds B and C and adjacent wetlands for a traditional
properfy evaluation and the protection of cultural resources. Conduct a traditional
cultural property evaluation to detennine the eligibility of the kettle ponds and
wetlands to the National register. Evaluate the impacts of the proposed project on the
cultural integrity of the area and its eligibility to be listed on the National Register of
Historic Places. Redesign stormwater and wastewater management plans to avoid the
destruction of wetlands and the alteration and use of Kettle Ponds B and C for
stormwater and treated wastewater storage.
Action 2: Schedule a site visit with PGST staff to view the kettle ponds and other
areas of cultural significance.
Action 3: Provide a biological inventory of plants, amphibians, birds and other species
that are currently present in I(ettle Ponds B and C and those that were likely present
prior to timber harvesting and other disturbances.
Action 4: Consult with PGST Cultural Resource Dept. staff to schedule site
monitoring, particularly dr.rring ground disturbing activities,
Action 5: Develop a Stewardship Plan that provides for the restoration of traditional
plants in the project area and the opportunities for tribal access to cultural resoLlrces.
According to oral tradition and knowledge, the Brinnon area, including Pleasant Harbor, holds
cultural resources of great value to the Port Garnble S'Klallam people. Uncommon geological
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PORT GAMBLE S'I(LALLAM TRIBE
31912 Little Boston Rd. NE * Kingston, WA 98346
features, such as kettle ponds, are often linked to spiritual and cultural knowledge that is
passed throurgh the generations. The area was known as an imporlant place for gathering and
processing traditional foods and materials needed to supporl a prodr.rctive livelihood. The area
was known for its abundant provisions of reeds and other thrush materials.
The Port Garnble S'Klallam'Iribal Historic Preservation Officer (T'HPO) has provided a
separate letter describing the significance of the site as a traditional cultural properly and
challenging the DAHP determination, which did not involve any consultation with the Porl
Gamble S'I(lallam Tribe's TPHO officer. The proposed action wor-rld impact the integrity of
this site, which by oral accounts has cultural and spiritual significance and contributes to
regional Native American history. Based on historic Native American place names, camping
locations, and oral traditions regarding spiritual entities associated with the landscape, the site
has the potential to yield more information about the unique history and use of the area by the
S'I(lallam people, The site is representative of unique geology and unique plant communities
and has been actively used within living memory for traditional plant gathering and cultural
practices.
We have great concern with the continued diminution of cultural resources Iinking the Tribe's
ancestral ties to the land and water. To see its natural resources, such as the rare kettle ponds,
forever changed is deplorable to tribal members. The Tribe seeks to preserve and restore its
natural landscapes in order to reserve the ability to teach its children and futr.rre generations
the traditional knowledge and culture that defines it. The County should work with tribal staff
to plan and implement the stewardship of these resources.
B. Shellfish Resources Protection and Manasement
Action 6: Consult with PGST Natural Resources Dept. staff to develop and implement
a plan for the protection and restoration of tribal shellfrsh resources. This will include
the following:
a) Protection oftidelands adjacent to the project area,
b) Shellfish seeding and enhancement on Durckabush and Dosewallips River
beaches where tribal rnembers harvest, and
c) Response plans in the event of any water quality incidents or other project-
related activities that would result in a downgrade of shellfish harvesting
areas by the Washington State Department of Health.
The Black Point Resort will be located between two public beaches (the Duckabr-rsh and the
Dosewallips) which provide both significant commercial and ceremonial/subsistence harvest
opportunities to the Tribes with Usual and Accustomed fishing rights in the area. The two
delta flats are two of the three most important intertidal areas to Tribal harvesters based on
acreage available, habitat available and existing natural manila clam and pacific oyster
production. The Duckabush and Dosewallips tidelands combined supply over 75o/o of tribal
resource for pacific oysters from pr.rblic tidelands.
The increase in visitors, both temporary and permanent residents, is expected to increase the
harvest pressure on the Duckabush and Dosewallips tidelands. Natural recruitment of bivalves
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PORT GAMBLE S'KLALLAM TRIBE
31912 Little Boston Rd. NE - Kingston, W A 98346
in Hood Canal is sporadic and increased pressure frorn additional harvesters without an
annual enhancement will resr.rlt in a decline in the existing resource over time. ln addition,
both tidelands have areas of concern to the Washington Department of Health (DOH). In
2015, DOH reported that one water sampling location on Dosewallips and fwo locations on
Duckabush were in Threatened status and an additional location on each tideland were falling
into Concerned status. Additional system overflows into the Duckabush or contaminated
stormwaterrunoff from the increase in impervious areas could result in poorwaterquality in
the rivers leading to problerns with shellfish on the tidelands. A closure of these tidelands by
DOH due to water qualify issues would have a cultural and economic impact on the Port
Garnble S'I(lallam Tribe.
C. Wildlife Protection and Habitat Management Plan
Action 7: Consult with PGST/Point No Point Treaty Council wildlife biologist to
develop and implernent a plan for the protection of wildlife and the restoration of
wildlife habitat. The pr"rrpose of the plan is to provide protective actions for wildlife,
including keeping the elk herd frorn crossing the highway to enter the project area.
The plan will also provide information regarding vegetation and habitat preservation
in natural areas.
We are concerned about impacts to the elk herd that forages to the West of this project area in
the lower end of the Duckabush River Valley and the development of an "attractive nlrisance"
in the form of highly alluring elk and deer forage opportunities. The construction of lawns and
fairways proposed as part of this MPR will create an "attractive nuisance" that will increase
the frequency at which elk cross highway 101 . Coupled with the projected increase of more
than 4,000 vehicle trips per day, the "attractive nuisance" poses a significant risk to human
health and the viability of the elk herd.
The FSEiS Habitat Management Plan was not developed in consultation with the Tribe and
does not fulfillthe wildlife safety and damage control objectives of the 2008 BOCC ordinance
(Ordinance No, 0l-0128-08, 63.1). Although the Habitat Management Plan describes the
placement of an exclusion fence to discourage elk from utilizing the site, a more
comprehensive Wildlife Management Plan is required, An adequate Wildlife Management
PIan must describe how the elk will be discouraged or prevented from crossing the highway.
GPS and other elk rnonitoring records reveal that highway 101 is not a barrier to dispersal to
the Dr.rckabr-rsh elk herd. We know that the elk readily cross the highway just north of
McDonald Creek and in the vicinity of Triton Head/Triton Cove. The wildlife management
plan should also describe the location, size, and other specifications of the fence or any other
deteruents constructed to reduce risks to the elk. Additionally, we need a legitimate Wildlife
Management Plan that describes what actions can and will be taken in the event that the fence
doesn't work-i.e. what will be done if the elk still manage to get on the properfy and start
damaging greens and fairways. Such actions must NOT include lethal control or state-
subsidized monetary compensation.
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PORT GAMBLE S'KLALLAM TRIBE
31912 Little Boston Rd, NE - Kingston, WA 98346
D. Water Ouali8 Protecti and Monitorine PIan
Action 8: Contact U.S. Army Corps representatives to request a new detennination of
wetlands jurisdiction for the purposes of USCOE permit review. The2007
determination (FSEIS Vol.2 Appendix J.A) expired in2012 and the document is no
longer a valid determination that the wetlands in qr.restion are not Waters of the U.S.
Action 9: Consult with PGST Natural Resources Dept. staff to develop and implement
a plan for the protection of water quality in the project area and in waters adjacent to
the project area or amend the existing Draft Water Quality Monitoring Plan to include
these protections. This will incorporate the following:
a) Water qurality monitoring in waters connected to tribal fisheries and
shellfish harvesting areas, including rnonitoring for pollutants, and
b) An evaluation of alternatives for constructing additional swales and
contours near roadways to redirect stormwater runoff away fronr Hood
Canal, particularly in the areas of Phase 1 construction.
Action 10: Revise project management plan to elirninate the use of persistent
pollutants and replace them with substances allowed for use under the agricultural
national organic program. Provide the draft revised management plan to PGST Natural
Resources staff for review and comment.
The urbanization of Black Point by the development of the proposed Master Planned Resort
(MPR) will increase the prevalence of toxic heavy metals, persistent organic pollutants and
other contaminants of emerging concern in this rural area. The increase in the prevalence of
these pollutants will likely have a negative effect on fish and shellfish resources inhabiting
Black Point and the surrounding areas, including the Dosewallips and Duckabush River
Estuaries.
Developing a stormwater and wastewater remediation system may reduce the effects of these
pollutants. To ensure the functionality of this type of system, extensive and regular, discharge,
ambient water and biota tissue rnonitoring will be required. Unfortunately, we are unaware of
any working examples of this type of system, Our concern with regard to the construction of
an urban development in this rural area is clearly illustrated by the pollution related loss of
-36,000 acres ofshellfish beds throughout Puget Sound.
The geochernical processes occurring at the seawater/groundwater interface form a critical
transition zone, which provides essential ecological fi;nctions driven by sediment-associated
biota. A reduction in the hydraulic conductivity between the wetlands located within the
proposed MPR and the nearshore environment surrounding Black Point will likely affect the
chemical constituents available to biota inhabiting this area. For instance, an increase in
salinity could negatively affect the productivity of Pacific oysters (C. gigas).
E. Unified Development Code and Development Agreement
Action 11: Include the above actions in the Jefferson County Code as an amendment
to the Unified Developrnent Code.
Action 12: Inclurde the above actions as a requirement in the development agreement.
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PORT GAMBLE S'KLALLAM TRIBE
31912l,ittle Boston Rd. NE - I(ingston, WA 98346
Action l3: Include the final compilation of the plans and measures described in the
above actions as an appendix to the FSEIS.
Although FSEIS covers potential environmental effects to some extent, we are concemed that
it does not go nearly far enourgh to resolve the potentially significant impacts to tribal treaty
rights and cultural resources. We look forward to working with yor.r to address these concerns.
Please contact me with any questions at (360) 297-6293.
Thank you.
Sincerely,
Rorna Call
Envirorunental Prograrn Manager
Port Gamble S'Klallam Tribe
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