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HomeMy WebLinkAbout1429&rba llrtl,r- bal's t-& August L4,2017 Brinnon Group Board of County Commissioners and county staff: l'm reading 4 documents into the public record: 1. Letter dated May 9,?:OLG from Jeromy Sullivan, Chairman Port Gamble S'Klallam Tribe, to the BOCC submitting a draft consultation plan to follow up the government to government meeting April 18,2015. 2. Draft Port Gamble S'Klallam Tribe and Jefferson County Government to Government Consultation Process (attached to May 9 letter) 3. Email dated July 18, 2015 from Jeromy Sullivan to the BOCC asking for a written explanation of why the county is rejecting the draft consultation process. 4. Letter dated August9,2Ot7 from Jeromy Sullivan to the BOCC requesting a meaningful consultation process. These documents show that the county has refused to join with the Tribe in a legally mandated and prudent manner. We've been asked recently to talk with local groups interested in learning more about the MPR. When we present the information about the county disrespect of the Tribe and appropriate legal process, your constituents are horrified. This is not what they expect from their elected officials. I was a bureaucrat for many years. When making decisions, we asked ourselves, "How would this look on the front page of the newspaper/' Personally, I would not want my name associated with any article or headline on the front page. hccWt-c@ sl'rln PORT GAMBLE S'KLALLAM TRIBE 31912 Little Boston Rd. NE - Kingstory WA 98345 May 9, 2016 Jefferson County Board of Commissioners: Commlssloner Phil Johnson, Commlssioner Davld Sullivan, Commlsloner Kathleen Kler 1820 Jefferson St. Port Townsend, WA 98368 Dear Commissioners, On behalf of the Port Gamble S'Klallam Tribe, l'd like to thank you for hosting the government-to- government meetirq on April 18, 2016. We appreciate the opportunity to share information about our Tribe's history and orlture, and the consems we have wlth regard to the proposed Pleasant Harbor Master Planned Resort project. The mee0ng was a very worthwhile step in reinforcing our gwernment- to-go\rernment partnenhip. At the meeting, we presented speclfic actions that would help to mltigate potential impacts of the proposed Pleasant Harbor Master Planned Resort project on our treaty rights. We understand that the BOCC supports having technical dirussions between our staff, Jefferson County staff and the proiect developer, as identified in our proposed actlons, to discuss the technical detalls of the project and the best optlons for protecting treaty rlghts and cultural resources. To assist wlth setting a path fonvard, we have enclosed a draft consultation plan for your consideration. We appreciate the opportunity to contlnue worklng wlth you to protect and restore our important cultural and natural resources for future generatlons. Please feel free to contact me with any questions or comments. Thank you. ru Chairman, Port Gamble S'Klallam Tribe DRAFT - May 10,20L6 Port Gamble S'Klallam Tribe and fefferson County Government-to-Government Consultation Process For Proposed Pleasant Harbor Master Planned Resort Prof ect Background The proposed Pleasant Harbor Marina and Golf Resort LLC Master Planned Resort is located within the Port Gamble S'Klallam Tribe's Adjudicated Usual and Accustomed Area and Traditional and Historic Use Area. The proposed project is located in an area of high cultural and historic significance for the Port Gamble S'Klallam Tribe. The Tribe is concerned that the proposed proJect would have a significant adverse effect on Traditional Cultural Properties that meet multiple federal criteria that render t}rem eligible for inclusion on the National Register of Historic Places. The Tribe is concerned that the project would impact heaty rights due to the proposed loss of wetlands and unique kettle ponds; increase in vehicular traffic; increase in the intensity of land use for commercial and residential developmen! alteration of hydrologl; clearing and grading increase in impermeable surface areas; and use of persistent pollutants. We are greafly concerned about project effects on water quality, shellfish resources, wildlife and cultural resources that would directly impact tribal fisheries. Consultafion Process On April L8,20L6, the f efferson County Board of Commissioners and the Port Gamble S'Klallam Tribal Chair and staffmet in a government-to-government meeting to discuss the proposed Pleasant Harbor Master Planned Resort projecL The Tribe presented specific actions that would help to mitigate potential impacts of the proposed Pleasant Harbor Master Planned Resort project on our treaty rights. To set a path forward, consistentwith oursetof mitigation actions, the Tribe proposes the following consultation process in coordination with fefferson County and the project developer: 7. Parties will identiff technical team members and a neutral facilitator for discussions between the Tribe, lefferson County and the project developer. Technical team members may include scienfists, culfural resource specialists, natural resource mangers, legal counsel and project managers. 2. Neutral facilitator will schedule technical meetings regarding project effects on cultural resources, water quality, shellfish resources, and wildlife. 3. In technical meetings, teams will discuss alternatives for protecting resources and will reach agreement on best possible approach to proJect design and mitigation of impacts to cultural resources and treaty rights. 4. Technical staffwill present final recommendatlons for project design and mitigation to leadership, including PGST Tribal Council, for approval. 5. |efferson County and the Port Gamble S'Klallam Tribe will develop an interagency agreement on ffnal recommendations and implementation. DRAFT - May L0,20L6 GoaI of Consultation Process The goal of the consultation process is to agree on mitigation strategies for protectlng cultural resources and Eeaty rights from the adverse effects of the proposed Pleasant Harbor Master Planned Resort proJect Agreement The partles agree to implement the consultatlon process as outlined above. The parties agree thatthe intended outcome of the consultation process is an interagency agreement to be negotiated in good faith and executed once the mitigation plan is agreed upon and approved. Any changes to the process may be made by mutual written agreement of the parties. By entering into this conzultation process, no partywaives its rights or responsibilities as may otherwise be available or required by applicable law. Port Gamble S'Klallam Trlbe By: feromy Sullivan, Chair, Port Gamble S'Klallam Tribe Date: lefferson County Board of Commlssloners By: Commissioner Kathleen Kler, Chair, Jefferson Co. Board of Commissioners Date: Commissioner David Sullivan,lefferson Co. Board of Commissioners Date By: By: 2 Date: Commissioner Phil f ohnson, fefferson Co. Board of Commissioners Barbara Moore-Leuris From:Jeromy Sullivan <jeromys@pgst.nsn.us > Monday, July 18, 2O16 4:34PM jeffuocc@co jefferrcn.wa.u s djohnson@cojefferson.wa.us; Romac@pgst.nsn.us Blackpoint PGST Letter and Consultation Process PGST_LetteOs0g 1 6.pdt Consultation_Process_Blackpoint05 1 01 6.pdf Scnt To: Cc: Subject Attachments Dear Commissioners, I am writing as a follow up to Commissioner Sullivan and my meeting. As I understand the Commissioners request The Tribe would have follow up meetings with the County and the Developer, then in some cases, we would meet with just the County separately and sometimes with the Developer separately. l'm not sure that would be the process that the Tribe would want to go with. I would like to see something in writing what kind of process we will try to move fonvard with. lt would be good to have everyone be on the same page. Attached are the two documents that we sent to you before the Government to Government meeting. The process that is proposed has been rejected verbally, however, not formally. I am requesting, in writing, an explanation of why this will not work. I don't mean to be pushy on this but I would like to be productive and use the best process available to all of us. I really appreciate the efforts being made to help the Tribes protect Our Treaty Rights as well as protect Our Culture and the Environment. I look fonrard to having more discussion on these very important issues. Jeromy Sullivan Port Gamble S'Klallam Tribe 1 PORT GAMBTE S'KLALLAM TRIBE 3'1972 Little Boston Rd. NE - Kingston, W A98346 August 9,2017 Board of Commissioners, Jefferson County I 820 Jefferson Street, Port Townsend, WA 98368 j efTbocc@co j efferson.wa. us Subject: Pleasant Harbor Master Planned Resort Project Dear Board of Commissioners, On behalf of the Port Gamble S'Klallam Tribe (Tribe), this letter is to inform the Board of County Commissioners (BOCC) of our ongoing concerns with the proposed Pleasant Harbor Marina and Golf Resort LLC Master Planned Resort (MPR). We understand that the proposed MPR and developer agreement will be discussed at BOCC's August l4 meeting and want to make you aware that Government-to-Government consultation between Jefferson County and the Tribe regarding the proposed MPR is not yet complete. We request that the BOCC anange for a meaningful tribal consultation process in response to the Tribe's concerns before making any decision with regard to the developer agreement or regulations for the proposed MPR. The Port Gamble S'Klallam Tribe is the successor in interest to Indian bands and tribes signatory to the 1855 Treaty of Point No Point, 12 Stat. 933.r 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 terrestrial and marine landscape that was used by tribal ancestors is also of critical cultural importance, and helps to define the'fribe'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. MP3lurpestilgluLuralResources Ordinance No. 0l-0128-0E requires 30 special conditions including consultation with the Tribes reganding cultural resources, and potentially one keBle preserved as a cultural resource (Ordinance 0l-0128-08 [63jl).The Port Gamble S'Klallam Tribal Historic Preservation Officer (THPO)2 has notified Jefferson County &at the proposed action would impact the integrity of Kettles B and C, which by oral accounts have cultural and spiritual significance and contribute to regional Native American history. The Traditional Cultural Properties at this site meet multiple federal criteria that render them eligible for inclusion on the National Register of Historic Places. The MPR would be located in an area with high probability for I United States v. l{ashingron,459 F. Supp. 1020, 1039 (W.D. Wash. l97E) (hereinafter Boldt lt). ' ln lgyz the U.S. Congress adopted amendmcnts to the National Historic Preseryation Act (P.L. 102-575) that allow federally rtcognized lndian tribes to takc on more formal responsibility for the prcservation of significant historic properties on tribal lands. Specifically, Section I 0 I (dxz) allows tribes to assume any or all of the functions of a State Historic Preservation Officer(SHPO) with respect to tribal land. www.achp.gov/thpo.html PORT GAMBTE S'KLALLAM TRIBE 31912 Little Boston Rd. NE - Kingstory WA 98346 encountering cultural resources accoding to the Washington Department of Archeology and Historic Preservation (DAHP) WI SAARD database. The Tribe has great concern with the County and developer's plans to remove 2A,70A sq. ft. of wetland and assmiated buffers in and around the largest kettle, Kettle B, for the purpose of creating a control pond for storing stormwater and treated wastewater. The Kettle B wetland would be cleared of vegetation, filled and lined, eliminating any opportunrty to evaluate cultural resources linking the Tribe's ancestral ties to the land and water. The proposal provides inadequate compensatory mitigation for these effects with the plan to manufacture a wetland in existing Keftle C that would also serve as a stormwater runoffbasin for the MPR. We do not consider this plan to be acceptable for compensating impacts to cultural and natural resources and we do not in anv wav consider this to be a preservation of the Kettle. MPR Impqgts to Water Qualitv The Federal Clean Water Act and Federal Rivers and Harbors Act require authorization from the U.S. Army Corps of Engineers (Corps) for impac* to waters of the U.S. The jurisdictional determination (JD) from the Corps for the pmposed MPR expired on March 27,2A12, and we are not aware of any efforts to obtain & new JD. Proceeding without authorization from the Corps would be in violation of federal law. Ordinance No. 0l-0128-08 (63 h,i,o,p,q,r) requires a detailed review to ensure that water quality issues are addressed. In multiple letters to the County, the Tribe has provided comments concerning the potential for water quality degradation from the proposed MPR project for surface and groundwater. The dcveloper proposcs to remove existing trees and vegetation replacing it with impermeable surfaces and landscaping. The MPR would increase vehicular traffic along highway, roads and parking lots, resulting in water quality impacts in Hood Canal through stormwater runoff, which has an impact on the Tribe's fish and shellfish resourc.es. The proposed MPR project would be located in an aquifer recharge area and would significantly impact kettle ponds and wetlands, in addition to potentially impacting the adjacent marine waters. Our May 1,2017 comments included recommendations for changes to the draft waterquality monitoring plan and for the development of a response plan to be carried out in the event of a water quality issue. The Tribe has not received any response from the Counf or the developer regarding how they will address these concems and whether the recommendations would be implemented. The proposed MPR would be located in an area of importance for tribal fisheries and any water quality degradation would have an impact on tribal ftaty rights. The economics analysis for the MPR did not incorporate risks of impacts to fisheries, an existing economic base in the area for tribal members and others. MPR Impacts to Adjaeent.Properties Jefferson County's Unified Development Code Title 18, Chapter 18.15 for master planned resorts requires a description of how the MPR relates to surrounding properties, and how its design and arrangement minimize adverse impacts and promote compatibility among land 2 PORT GAMBLE S'I(LAILAM TRIBE 31912 Little Boston Rd. NE - Kingston, WA 98346, uses within the development and adjacent to the development (18.15.126 (tXg)).The County and the developer have not provided any such description for the proposed MPR. On multiple occasions the Tribe has commented on the potential impacts of the proposed MPR on adjacent shellfish harvesting areas. The proposed MPR would be located just minutes from two adjacent public beaches, on the Duckabush and the Dosewallips Riverc, which provide both significant commercial and ceremonial/subsistence hanest opportunities to the Tribes with Usual and Accustomed fishing rights in the area and to the public. The proposed MPR u'ould create an increase in visitors, both temporary and permanent residents, intensifying the harvest pressure on the Duckabush and Dosewallips tidelands. Natural recruitrnent of bivalves in Hood Canal is sporadic and increased pressure from additional harvesters without an annual enhancement would result in a decline in the existing resource over time. In 2015, the Washington State Dept. of Health (DOH) reported that one water sampling location on Dosewallips and two locations on Duckabush were in Threatened status and additional locations on each tideland were falling into Concerned status. ln 2017, we received notice from DOH regarding Hood Canal #3 Growing Area on the Duckabush River.In response to DOH marine sampling near the mouth of the Duckabush River, failing the 90rh p€rcentile fecal coliform NSSP standard in 2016 and 2017, DOH will be downgrading a portion of the Hood Canal #3 Growing Area to Conditionally Approved status. The area will h closed to shellfrsh harvest seasonally, when fecal coliform levels are highest (May through October). Additional MPR system overflows or contaminated stormwater runofffrom the increase in impervious areas in these sensitive areas could result in poor water quality in the Duckabush and Dosewallips Rivers leading to additional downgrades in status or area in regards to shellfish in the tidelands. Closures and downgrades of these tidelands due to water quality issues have a cultural and economic impact on the Port Gamble S'Klallam Tribe. The Tribe has not received any response from the County or the developer addressing these significant concerns. MlBllqpssEle_lvifdlife Ordinance No. 0l-0128-08 (63L) requires the applicant to develop a Wildlife Management Plan focused on non-lethal strategies in the public interest in consulktion with the Department of Fish and Wildlife and local tribes. The Tribe is 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 nuisance" in the form of highly alluring elk and deer forage opporttrnities. The construction of lawns and fairways proposed as part of this MPR rrill create an "attactive nuisance" that will increase the frequency at which elk cross highway l0l . 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 contractor that produced the recent Wildlife Management Plan did not do so in consultation with our tribe. We were not even awarc that the Wildlif€ Management Plan was being developed until August2,2017, when the final edition was forwarded to us by the County's Dept. of Community Development. While the new plan promises some J PORT GAMBLE S'KLALLAM TRIBE 31912 Little Boston Rd. NE - Kingston, WA 98345 improvements in reducing vehicle collisions, it still does not address our concems regarding preventing elk from shifting their home range ea* of highway 101. The plan takes a passive approach to protecting the elk herd by proposing to take action only after the elk have entercd ttrc property. Our wildlife expert has recommended scientifically credible preventative measures that have not been incorporated into ttre plan. Our requests for the developer and the County to meet wittr Tribal and WDFW staffto discuss wildlife management issues have been ignored. Tribal Consultation Jefferson County's tribal consultation p(rcess for the proposd MPR over more than a decade has been and continues to be seriously flawed. The Centennial Accord (1989) and the New Millennium Agreement (1999)3 established a basic framework and provide the general foundation for relations between the Tribes and Washington State, and are applicable to local governments. A meaningful tribal consultation involves much morc than scheduled *technical meetings" with no follow up, no response to the Tribe's concems, and very limited communication with rcgard to the dcveloper agrcement and code amendment process. It is very conceming that the Tribe has not been invited to review the developer agreanent or participate in its development, even though the document includes information rcgarding the Tribe and its treaty rights. More appropriate fibal consultation would involve close coordination with the Tribe on the developer agreement language and other documents before moving forward" particularly those documenB that attempt to describe the Tribe's history and treaty rights. We would expect an immediate response to these conoerns and clarification of the County's process. In addition, we nequest that BOCC arange for a more meaningful government-to- government consultation process with the Port Gamble S'Klallam Tribe before any decision is made to move forward with the proposed MPR project. Please contact me at (360)797-6342 or jeromys@pgst.nsn.us. Thank you. W t-*y Sullivan Chair, Port Gamble S'Klallam Tribe Cc: Phillip Morley, Jefferson County Administrator Patty Charnas, Director, Jefferson DCD 3 Govcrnor's Oflice of lndian Affairs: hnp://www.goiawagov/governmcnt.to-governmenVdata/agreemenr.htm 4