Jefferson commissioners approve Rocky Brook agreement change

Move preserves public access at Brinnon site, extends liability protection

PORT TOWNSEND — The Jefferson County commissioners have approved a resolution to change the development agreement for the Rocky Brook Hydroelectric Facility.

The development agreement, a Shoreline Development Permit, was approved in 1986 by Jefferson County commissioners and allowed for construction of a hydroelectric facility at the Rocky Brook tributary near the Dosewallips River in Brinnon, according to Jefferson County Associate Lead Planner David Johnson.

The commissioners approved the resolution at its regular meeting Monday morning.

The resolution amends the wording of one of the four conditions that was determined at the time of the original agreement, which said that “[t]he public shall be permitted free and unencumbered access to Rocky Brook Falls at all times except during active maintenance, repair or removal of the facility.”

The state Supreme Court determined in the Camicia v. Howard S. Wright Construction Co. decision that public land that can by protected by the Recreational Immunity Act must have the ability to close off the land from the public — regardless if it is for maintenance, repair or other construction needs of the premises.

The commissioners were the only ones who could amend the agreement, as they were the ones who originally made it in 1986.

The mandated public access condition made it so Rocky Brook did not qualify for the protection offered by the Recreational Immunity Act, which only covers private land used publicly by voluntary means.

The Recreational Immunity Act says that landowners who open their land for outdoor recreational use, at no charge to the public, are free from liability from any injuries accidentally sustained while using the property, according to Johnson.

Rocky Brook is owned by the Rocky Brook Hydroelectric LP company and an individual named Dell Keehn, who are collectively known as “Rocky Brook” in the original agreement.

With this resolution, the agreement allows Rocky Brook to close when needed and fall under the qualifications of the Recreational Immunity Act, but will not close the facility from the public use, Johnson said.

During proposed repairs and renovations in 2018 at Rocky Brook, the facility relocated the outfall to a different spot on the tributary and upheld the four conditions of the Shoreline Development Permit of 1986, but the amendment was sought to keep the original agreement, but to also fall in line with the immunity act.

Rocky Brook’s location with the tributary, trail and falls were a point of concern for the county because until the property falls under the immunity act, the county could possibly be liable for injuries sustained by the public there, Johnson said.

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Jefferson County reporter Zach Jablonski can be reached at 360-385-2335, ext. 5, or at [email protected].

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