M16.030 2018-04-18SettleAgmt-FinalVersion

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before the growth management hearings board eastern washington region STATE OF WASHINGTON CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION,Petitioner,v. KITTITAS COUNTY; and STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY,Respondents. No. 16-1-0003 SETTLEMENT AGREEMENTRespondents, Kittitas County (represented by Neil A. Caulkins) and State of Washington, Department of Ecology, (represented by Robert W. Ferguson, Attorney General and Christopher H. Reitz, Assistant Attorney General), and Petitioner, the Confederated Tribes and Bands of the Yakama Nation(represented by Kathryn E. Marckworth and Ethan A. Jones), submit this Settlement Agreement to the Growth Management Hearings Board as a full and final settlement of the above-captioned appeal. BACKGROUND The Kittitas County Board of County Commissioners passed Resolution No 2014-162, stating the intent to adopt and update the Kittitas County Shoreline Master Program (“SMP”) and authorizing submittal of the proposed program update to Ecology. Kittitas County (the “County”) submitted its proposed SMP updates to the State of Washington, Department of Ecology (“Ecology”) on January 2, 2015. Ecology issued a conditional approval of the updated SMP on December 8, 2015, which provided recommended and required changes. Kittitas County responded to Ecology by letter dated February 2, 2016, accepting all the required changes and 16 of the 21 recommended changes, and proposed alternative language for one of the recommended changes. Ecology issued final approval of the updated SMP on February 22, 2016, making the updated SMP effective March 7, 2016. Kittitas County enacted Ordinance No 2016-006 on March 15, 2016 to amend its comprehensive plan and county code to be consistent with the updated SMP. During the public process for development of the updated SMP, the Confederated Tribes and Bands of the Yakama Nation (“Yakama Nation”) submitted written comments and participated in public hearings to voice its concerns about aspects of the proposed SMP. The Yakama Nation petitioned the Growth Management Hearings Board (the “Board”) for review of the SMP, challenging the adequacy of the SMP’s provisions dealing with cultural, historical, and archeological resources. Kittitas County, Ecology, and the Yakama Nation have engaged in a series of settlement negotiations over the past year and half to address the concerns of all parties. Through these negotiations, the parties have developed proposed SMP amendments that address their respective concerns and are acknowledged by all parties to meet or exceed the minimum requirements ofthe Shoreline Management Act and applicable regulations. Therefore, theCounty, Ecology, and Yakama Nation have agreed to resolvethis appeal through the settlement outlined below. SETTLEMENT AGREEMENTThe parties wish to avoid the time and cost associated with further litigation. The parties therefore stipulate and agree as follows: SCOPE This Agreement (which includes and hereby incorporates by reference the above background recitals) constitutes the entire agreement between the parties as to the settlement of this appeal, and settles all issues raised by the Yakama Nation in this appeal. Provided, however, that the Yakama Nation may terminate this Agreement and resume litigation of this appeal as provided in Sections II(C)(3) or II(C)(4) of this Agreement. SETTLEMENT TERMS Kittitas County shall take all administrative and legislative actions necessary topropose, adopt,and submit to Ecology for formal approval the specific amendments to its SMP set forth in Attachment A to this Agreement (the “Proposed Amendments”), subject to changes made in response to public comments. Prior to the finalization of any changes to the Proposed Amendments considered by Kittitas County and Ecology in response to public comments, the parties to this Agreement will meet to confer and discuss the public comments received, and any recommendedresponsive changes. The Parties shall attempt to reach agreement on any such further changes to the Proposed Amendments. If mutually agreed to by all Parties, the changed version shall be the “Updated Amendments”. If the Parties cannot reach agreement regarding such changes, the Yakama Nation reserves the right to terminate this agreement and reinitiate litigation pursuant to Sections II(C)(3) or II(C)(4) of this Agreement. Within forty-five (45) days of the filing of this Agreement with the Board, Kittitas County shall initiate the public process for amending its SMPunder RCW 90.58.090, the optional joint review process outlined in WAC 173-26-104, and applicable local regulations. Following a final approval by Ecology of either the Proposed Amendments or the Updated Amendments, the Yakama Nation shall provide reasonable assistance to the County, as requested, in training County staffon the Proposed Amendments. STAY AND ANTICIPATED DISMISSAL OF APPEAL; RESERVATION OF RIGHTS Concurrent with the filing of this Agreement with the Board, the parties shall file a joint motion to stay this appeal to allow for the parties’ implementation of this Agreement. Within forty (40) days following Ecology’s final approval of the SMPProposed Amendments attached as Attachment A, or approval by Ecology of the Updated Amendments agreed to by all parties under Section II (B)(2) above, and upon the conditionthat no appeal of the SMP amendment is filed, the County, the Yakama Nation, and Ecology will promptly submit a joint motion tothe Board to dismiss this appeal. If the County’s adoptionand/or Ecology’s final approval of the SMP Proposed Amendments or Updated Amendments is appealed, and such appeal ultimately prevents the approved amendmentsfrom taking effect, the Yakama Nation reserves the right to terminate this Agreement and to resume litigation ofthis appeal. However, if the appeal ultimately fails or otherwise does not prevent the Proposed Amendments or Updated Amendments from taking effect, then the County, the Yakama Nation, and Ecology will promptly submit a joint motion tothe Board to dismissthisappeal. In the event that Ecology does not issue a final approval ofthe SMP Proposed Amendments or Updated Amendments within nine (9) months from the date this Settlement Agreement is filed with the Board, the Yakama Nation reserves the right to terminate this Agreement and to resume litigation of this appeal. SIGNATORIES AUTHORIZED The undersigned representatives for Kittitas County, Ecology, and Yakama Nation certify that they are fully authorized by the party whom they represent to enter into the terms and conditions of this Agreement and to legally bind such party thereto. EXECUTION This document may be executed in counterparts and may be executed by facsimile and/or electronically, and each executed counterpart shall have the same force and effect as the original instrument. [Signature page(s) follow.]STATE OF WASHINGTONCONFEDERATED TRIBES ANDDEPARTMENT OF ECOLOGYBANDS OF THE YAKAMA NATIONGordon WhiteJoDe Goudy, ChairmanShorelands & Envtl. Assistance ManagerYakama Nation Tribal CouncilDated: Dated: ROBERT W. FERGUSONYAKAMA NATION OFFICE OFAttorney GeneralLEGAL COUNSELChristopher H. Reitz, WSBA #45566Kathryn E. Marckworth, WSBA # 46964Assistant Attorney GeneralEthan A. Jones, WSBA # 46911Attorneys for RespondentAttorneys for PetitionerDated: Dated: KITTITAS COUNTYLaura Osiadacz, ChairmanBoard of County CommissionersDated: KITTITAS COUNTY PROSECUTOR’S OFFICENeil A. Caulkins, WSBA #31759Attorneys for RespondentDated: ATTACHMENT APROPOSED AMENDED VERSION OF THE KITTITAS COUNTY SHORELINE MASTER PROGRAM-----------The Proposed Amendments are to Section 3.7, Section 5.1, and the Definitions Section of the Kittitas County Shoreline Master Program.____________________ 3.7Historic/cultural element A.Goal Identify, protect, preserve and restore sites that contain resources of cultural, archaeological, historic, educational, or scientific value or significance. B.Objectives Protect cultural, archaeological, and historic resources in collaboration with appropriate tribal, state, federal, and local governments. Engage in and encourage cooperation between public agencies and private parties in the identification, protection, and management of cultural, archaeological, and historic resources. Consult with the Washington State Department of Archaeology and Historic Preservation (“DAHP”) and affected Native American tribes when developing local policies and regulations for identifying, protecting, and preserving cultural, archaeological, and historic resources Where appropriate, restore unique resources that have cultural, archaeological, historic, educational, or scientific value or significance to further enhance the value of the shorelines. Where appropriate, provide access to cultural, archaeological, and historic resources in a manner that is culturally sensitive and does not degrade the resource or impact the quality of the environment. Incorporate opportunities for education related to cultural, archaeological, and historic resources into public and private programs and development, where appropriate. 5.1Cultural, archaeological and historical resources The following policies and regulations apply to cultural, archaeological, and historic resources that are either (a) listed on the national, state, or local registers of historic places; (b) recorded by the Washington State Department of Archaeology and Historic Preservation (DAHP), a Native American tribe, and/or a local jurisdiction; or (c) undiscovered, inadvertently uncovered, or yet unrecorded. Archaeological sites located both in and outside shoreline jurisdiction are subject to RCW Chapter 27.44 (Indian graves and records) and RCW Chapter 27.53 (Archaeological sites and records). Shoreline uses or development that may impact such sites shall comply with WAC Chapter 25-48 as well as the provisions of this Shoreline Master Program. Pursuant to RCW 27.53.070, information and documents pertaining to the location of archaeological sites or resources are confidential and not considered public records that require disclosure. A.Policies The County shall take, or cause project applicants to take, all required actions to: Minimize the risk of disturbing cultural, archeological and historic resources within Kittitas County shorelines. Prevent the destruction of or damage to any site having cultural, archaeological, historic, scientific, or educational value as identified by the appropriate authorities, including affected Indian tribes and DAHP. Consult with professional archaeologists, DAHP, and affected Native American tribes, before permitting or otherwise approving the use or development of shoreline areas containing cultural, archaeological, or historic resources. This consultation shall be accomplished through the regulations and procedures provided herein. Consult with professional archaeologists, DAHP, and affected Native American tribes to establish procedures for salvaging cultural, archaeological, or historic resources, and/or for maintaining such resources in an undisturbed condition. Make informed specific land use decisions based upon information provided by DAHP or Native American tribes. Ensure the use of the best available information, technology, and techniques in identifying, protecting, preserving, and restoring cultural, archaeological, and historic resources. Consult with DAHP and affected Native American tribes as appropriate in implementing the cultural, archaeological, and historic resources goals, objectives, policies, and regulations of this SMP. B.Regulations Project Approval Requirements. Prior to issuing a permit, exemption, or other approval for a proposed project in a shoreline area,the County shall determine whether or not a cultural resources review or archaeological survey shall be required under this Section 5.1(B)(1). Exceptions.No cultural resources review or survey shall be required under this Section 5.1(B)(1) where the project applicant can demonstrate one or more of the following conditions is met: The project or use does not include any ground disturbance. Projects that require the insertion of structural elements, but which do not require any excavation and create no spoil piles, shall be considered non-ground-disturbing for purposes of this Section (e.g. driving T-posts, planting tree seedlings with a hoedad). The project is limited to the installation of infrastructure entirely within the same area as an existing project or development. The project’s entire three-dimensional area of proposed ground-disturbance is located within previous fill or previously disturbed earth. A professional archaeologist has surveyed the entire project area within the last ten (10) years, and the survey report(s) show that no cultural, archaeological, or historic resources were found. Cultural Resources Review. The County shall provide electronic notice and a fifteen (15) day comment opportunity to DAHP and affected Native American tribes for all proposed projects in shoreline areas which are not excluded under Section 5.1(B)(1)(a) above. When applicable, the above notification requirement will be included in the Preliminary Site Analysis process. Where the proposed project is already subject to a comment period through shoreline permitting and/or SEPA review, this comment period shall be run concurrently. For shoreline projects that fall under a shoreline exemption permit and have no notification requirement, if not already completed through the Preliminary Site Analysis process, the above notification and cultural resources review requirements will occur prior to the issuance of an exemption permit. Archaeological Survey Requirement. A final archeological survey report for the entire project area shall be required prior to the County’s issuance of a permit, exemption, or other approval where the proposed project is not excepted under Section 5.1(B)(1)(a) above, and one or more of the following conditions exist: The project area is located within one quarter (1/4) mile from either a protected Native American pre-contact site recorded with DAHP, or a protected historic site that is listed or eligible, or potentially eligible and unevaluated, in the DAHP inventory. DAHP or an affected Native American tribe timely comments through the above cultural resources review process (or concurrent permitting or environmental review process, if applicable), and requests an archaeological survey be completed due to the presence of one or more of the following risk-factors: Documented historic feature(s) on the property or located within one quarter (1/4) mile from the project area; Previous positive archaeological survey results from a survey on the property or within one quarter (1/4) mile from the project area; or A tribally-recorded site located within one quarter (1/4) mile of the project area. DAHP and an affected Native American tribe timely comment through the above cultural resources review process (or concurrent permitting or environmental review process, if applicable), and both DAHP and the affected Native American tribe request that an archaeological survey be completed due to a professional archaeologist’s determination that the project area is in an area that is at high-risk for the presence of archaeological resources (e.g. in an area with high-risk soil deposit types such as historic high-energy soil deposits, or soils with multiple depositional contexts). The County determines that an archaeological survey is otherwise warranted. Archaeological Survey & Reporting Standards.Archaeological surveys shall be completed by a professional archaeologist. Archaeological survey reports shall conform to DAHP’s then-current reporting standards. Both DAHP and affected Native American tribes shall receive copies of completed archaeological survey reports, and have a reasonable opportunity (in no case less than fifteen days) to comment on their sufficiency before such reports shall be considered final. Final archaeological survey reports shall be filed with DAHP prior to the County’s issuance of a permit, exemption, or other approval where the proposed project is not exempt under Section 5.1(B)(1)(a). Monitoring Alternative. Despite the requirements of Section 5.1(B)(1)(c), above, an archaeological survey shall not be required where the project proponent, the County, DAHP, and any affected Native American tribes, all approve a written plan for on-site project monitoring by a professional archaeologist throughout all project phases that include ground-disturbing work. This monitoring plan shall be drafted by a professional archaeologist at the applicant’s expense. Project Modification Alternative. Despite the requirements of Section 5.1(B)(1)(c), above, an archaeological survey shall not be required where the project is modified so that it no longer triggers the risk factor(s) under 5.1(B)(1)(c) that would have resulted in the need for an archeological survey under these regulations. Inadvertent Discoveries. Developers and property owners shall immediately stop work and notify the local government, DAHP, and affected Native American tribes if archaeological resources are discovered. Construction may recommence pursuant to RCW 27.44.040, RCW 27.53.040 and WAC 25-48-030. A notification stating this requirement shall be included on County shoreline permits, exemptions, and other project approval documents. Resource Management. If significant cultural, archaeological, or historic resources are identified in the project area, the project proponent shall engage a professional archaeologist (or a historic preservation management professional, where appropriate) to prepare a resource management plan. The resource management plan shall, at a minimum, conform to DAHP’s then-current management standards. In addition, a permit or other requirement administered by DAHP pursuant to RCW 27.44 and RCW 27.53 may apply. Definitions to Add: "Archaeological object" means an object that comprises the physical evidence of an indigenous and subsequent culture, including material remains of past human life, including monuments, symbols, tools, facilities, and technological by-products. "Archaeological site" means a geographic locality that contains archaeological objects. “Archaeological survey” means a formal archaeological study completed by a professional archaeologist that conforms to, and is reported consistent with, DAHP’s then-current archaeological survey and reporting standards; and which at a minimum includes background research and a field investigation that includes appropriate sub-surface methodology. "Cultural resources" means archaeological and historic sites and artifacts, as well as those traditional food, medicine, fibers, and objects that sustain the religious, ceremonial, and social activities of affected Native American tribes. "Historic resources" or “Historic site” means those properties which are listed in or eligible for listing in the Washington State register of historic places (RCW 27.34.220) or the national register of historic places as defined in the national historic preservation act of 1966 (Title 1, Sec. 101, Public Law 89-665; 80 Stat. 915; 16 U.S.C. Sec. 470) as now or hereafter amended. “Professional archaeologist” means an archaeologist who meets the requirements set forth in RCW 27.53.030(11), and has at least a master’s degree in Anthropology or a related field and two years professional experience in archaeological fieldwork. “Project area” means any and all areas that may be affected by a project’s construction and operation. Both temporary and permanent effects must be considered.