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HomeMy WebLinkAboutSHB95-44 Settlement Agreement - SHX Letters / Memos - 11/13/1995 SETTLEMENT AGREEMENT DOUGLAS J. NEYHART V. DEPARTMENT OF ECOLOGY, TAHUYA RIVER BASIN ORGANIZATION AND SKOKOMISH TRIBE SHB No. 95-44 This settlement agreement is by and between Douglas J. Neyhart, the Washington State Department of Ecology, the Tahuya River Basin Organization and the Skokomish Indian Tribe, all parties to the adjudicative proceeding before the Washington State Shorelines Hearings Board in SHB No. 95-44 . RECITALS 1. In August 1995, Douglas J. Neyhart, Appellant (Neyhart) was served with an Order and Notice of Penalty Incurred (Order) , Ecology No. 94-SH-217 , for alleged development on the shorelines of the state in violation of chapter 90. 58 RCW, the Shoreline Management Act, and the Mason County Shoreline Management Master Program (MCSMP) . The order alleges that Neyhart constructed a dike or berm on the main channel of the Tahuya River by filling within the floodway and floodplain of the river, and within 200 feet of the ordinary high water mark without a required permit. 2 . On September 11, 1995 Neyhart filed a Request for Review and Request for Stay of Order and Notice of Penalty with the Shorelines Hearings Board which become SHB No. 95-44 . 3 . On October 3 , 1995 the Tahuya River Basin Organization (TRBO) , by its President and Registered Agent, Mr. Vern Rutter, moved to intervene, which Motion was granted by the SHB on October 16, 1995 at the pre-hearing conference. 1 4 . On November 1, 1995 the Skokomish Indian Tribe filed and served a motion to intervene, which motion was granted by the SHB on November 21, 1995. 5 . The SHB scheduled an evidentiary hearing for March 7 and 8 , 1996 in Belfair, Washington. 6 . The parties have used their best efforts to resolve their differences and having done so enter into this settlement agreement resolving those differences. NOW THEREFORE, in consideration of the mutual promises set forth below, the parties agree as follows: 1 . The parties agree to the General Principles and Specific Limitations set out below. 2 . The General Principles are statements of intent which may be used, if necessary, for interpretation to resolve any dispute between the parties which might arise from this agreement. 3 . General Principles. A. Much of the Neyhart farm is within the floodway and floodplain of the Tahuya River. B. While Neyhart has a right to maintain agricultural activities on the property, such activity occurs in a shoreline area which historically has been and will likely continue to be subject to periodic flooding. C. All the parties seek to preserve and protect the river and its estuary from contamination by manure and other by-products of the farm. 2 D. The specific limitations set out below in Section 4 are intended to: (1) Allow the river to establish or re-establish overflow channels and meanders which it is expected may interfere with and make impossible grazing and farming on a portion of the Neyhart farm at some time in the future. (2) Allow Neyhart to protect and maintain the three existing farm buildings which are adjacent to the bridge over the river and between the river and Winter Creek. ' (3) Allow and require Neyhart to replace his manure storage building with a new structure in the location known as the Gravel Pit which is above the 100 year floodplain. (4) Allow Neyhart to use the existing manure storage shed to park a truck with which to haul manure after collections. (5) Allow Neyhart to continue to graze, train and board horses on the property but place strict seasonal limits on the number of horses and the areas suitable for grazing, exercise or boarding. (6) It is expected that eventually the river will reclaim parts of the property between the current '"Winter Creek" is the label used by the parties for the stream which _ joins the Tahuya River about a mile downstream from the Neyhart Bridge. 3 exercise track and the current main channel. Neyhart agrees not to interfere with the river's natural tendency to overflow across and channelize this floodplain area by filling, diking or any other mechanical or physical fortification. In exchange, Neyhart expects and the parties agree that he will continue to use and maintain the exercise track. 4 . Specific Limits and Prohibitions. A. Neyhart agrees not to maintain the dike or add fill material to it, except as specifically permitted by paragraph 114-B. " B. Neyhart may maintain the dike only in the area upstream of the bridge for 150 feet for the purpose of protecting the 3 existing farm buildings. C. Neyhart may plant live willows or other native species on the faces of the dike in an effort to protect the dike from erosion. To facilitate planting, jute, burlap or other organic matting may be laid on the dike. D. Neyhart may protect the current exercise track from flooding or washout. Neyhart agrees to apply for and obtain any required permit prior to undertaking "substantial development" to protect the track.2 Other parties will not object to this development if authorized by permit. E. Eventually the road from the barns to the track adjacent to the dike may be breached, subverted or eroded by z"Substantial Development" is defined in RCW 90.58.030(3) (e) . 4 the river. Neyhart shall not add fill to the road to delay this event or for any other reason. Neyhart agrees not to add culverts, ditches or other bypasses designed to protect the road or the dike, nor seek hydraulic permits which would authorize such repairs. Neyhart shall not remove, nor seek any HPA to remove any logjam, the purpose or justification for which is to protect or preserve this road. F. Neyhart may twice annually maintain the road by levelling with a harrow pulled by a pickup truck. No heavy equipment or bladed vehicle may be used for grading. G. If and when the road becomes impassable by farm vehicles, it shall be abandoned and no longer maintained as a road. H. The current manure storage building is neither adequate in size nor properly located. This building shall be converted into a vehicle storage shed (garage) for any farm vehicle including a truck or trailer used to haul manure off-site or to another authorized storage area. No manure shall be stored in the building except as contained in a truck or trailer after collection and before transport to another storage area outside the floodplain. All manure shall be removed from the building weekly. I . A new manure storage building may be built in the gravel pit area or other upland location above the 100 year floodplain. Any such structure must meet plans and specification of the Soil Conservation Service and have: 1) an impervious floor and roof; 5 2) at least three walls; 3) adequate capacity for storage of manure generated by 50 horses over 6 months time. J. Neyhart may install a bridge over Winter Creek to provide vehicle access to the gravel pit if authorized by a hydraulic permit and shoreline permit (if required) . K. The parties shall not oppose construction of the new storage building or access bridge. L. Parties may have access to Winter Creek and the gravel pit area to "grab" water samples upon reasonable notice and during regular business hours. M. If water samples indicate that location or construction of the manure storage shed causes contamination of Winter Creek or waters leading to Winter Creek, then Neyhart shall immediately either repair any structural cause of contamination or discontinue all future storage. If repairs do not prevent contamination, future storage shall be prohibited. N. During the "wet season, " from October 1 to April 1, Neyhart shall not have more than 50 horses on the 31 acre property described in the order. O. Between November 15 and March 1, no horses shall be grazed, confined or otherwise kept in the area between the exercise track and the Tahuya River. Paddocks may be located only inside the track or on the upland above the floodplain. No paddocks shall be located in the area described on the Attached Conservation Plan Map as 112A, 2B, 2C, 2D or 2E. " 6 P. Horses shall not be kept or permitted anywhere within 50 feet of Winter Creek. Q. After the river establishes any new channel, no horses shall be kept or confined within 50 feet of such channel at any time. R. Manure may be spread on pastures for fertilizer only in the amount capable of being taken up by new growth, and as permitted by the June 1993 Conservation Agreement (Farm Plan Waste Utilization) only after March 1 during dry periods or before iifIIvd�er- 1 S. No horses shall be kept in Field Numbers 4 and 5 during the period between November 15 and March 1. T. Paddock Numbers 117A, 7B and 7C" shall not be used to keep or confine animals between November 15 and March 1. 5 . This agreement is made in settlement of the dispute between the parties. Nothing in the Agreement shall be construed as an admission by any party of any contention of fact or law at issue in the SHB appeal. 6. The penalty in the amount of $5, 000 is suspended for a period of three years from the entry of the Agreed Order of Dismissal of SHB No. 95-44 . If terms of the agreement are performed for three full years after entry of the order, the penalty shall be vacated. A notice of satisfaction will be delivered upon satisfactory completion of the three year suspension. If the terms of the agreement are materially violated, the penalty shall become due and payable upon demand by Ecology. 7 7 . The parties wish to resolve any potential future dispute before any harm to the environment, and before seeking judicial or quasi-judicial enforcement of this agreement. To this end, the parties agree that prior to initiating any enforcement by any agency or court they will notify the party which is thought to be in violation of the agreement and attempt to resolve the dispute privately. 8 . The parties represent and warrant that the signatories below have the proper authority to enter this agreement and to bind their respective parties in accord with these terms. 9 . Simultaneous with the execution of this Agreement, the parties agree to take such steps as are necessary to dismiss the appeal entitled Douglas J. Neyhart v. Department of Ecology, Tahuya River Basin Organization and Skokomish Tribe, SHB No. 95-44 . RESPONDENT APPELLANT DEPARTMENT OF ECOLOGY DOUGLAS J. NEYHART GALE BLOMSTROM, Ecology SWRO DOUGLAS J. NEYHART Regional Section Supervisor Appellant Water Resources and Shorelands DATE: DATE: INTERVENOR INTERVENOR TAHUYA RIVER BASIN ORGANIZATION SROROMISH INDIAN TRIBE VERN RUTTER, President GORDON JAMES, Chairperson DATE: DATE: C:A...ASjt\neyhart.Sag 8