CHAPTER 4-10 WATER RESOURCES USE AND PERMITTING

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CHAPTER 4-10 WATER RESOURCES USE AND PERMITTING

GENERAL PROVISIONS

Declaration of Rights and Purpose

(a) In order to: promote the general welfare of the Confederated Tribes of the Colville Reservation

(“Colville Tribes” or “Tribes”); develop, manage, and preserve the waters and other resources of

the Colville Reservation; facilitate the United States’ compliance with its trust duties to preserve

and protect in perpetuity all waters reserved for the Colville Tribes and the Colville Reservation;

provided for the exercise of the inherent sovereign power of self-government by the Colville

Tribes, acting by and through the Colville Business Council, hereby asserts its prior, exclusive and

supreme rights in, ownership of, and jurisdiction over, the waters of the Colville Reservation and

lands held in trust off-Reservation for all jurisdiction over, the waters of the Colville Reservation

and lands held in trust off-Reservation for all purposes.

(b) The Colville Tribes hereby affirms that the water resources of the Colville Reservation and the

Colville Tribes have been of fundamental importance to the Colville Tribes since time

immemorial and must be preserved and protected in perpetuity for the best interest of the Colville

Tribes. The Business Council finds that the rights and authorities of the Colville Tribes with

respect to the water resources of the Colville Reservation are set forth in the decision in

th

Confederated Tribes of the Colville Reservation v. Walton, 647 F.2d 42 (9 Cir. 1981), and

hereby enacts this comprehensive revision of this Chapter to facilitate the exercise of the Tribes’

authority and to protect and preserve the Tribes’ rights in water resources to the maximum extent

permitted under tribal law and any federal law that may be applicable. Nothing in this Chapter

shall be construed as acknowledging that the Walton case restricts the water rights or regulatory

authority of the Colville Tribes in any way.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Nature of Ownership

(a) The Colville Tribes holds the full equitable title to the rights to the use of all of the water of the

Colville Reservation. The United States holds the legal title to those waters solely as trustee for

the Colville Tribes.

(b) All rights to the use of the waters of the Colville Reservation are held by the Colville Tribes in

perpetuity, for the use and benefit of the Colville Tribes, its members, other persons as authorized

herein, and the lands and other resources of the Colville Reservation. To the maximum extent

permitted by federal law, no right or privilege of any kind, from whatever sources, shall be

recognized or granted unless the same shall be subject to the overriding, prior and supreme right

and interest of the Colville Tribes, and the policy and provisions contained in this Chapter,

amendments hereto, and administrative regulations and determination hereunder. No agent of the

Colville Tribes, the Colville Business Council, or the United States shall take any action or grant

to recognize any right affecting the water resources of the Colville Reservation that in any way

infringe or threatens to infringe the prior and supreme rights and interests of the Confederated

Tribes of the Colville Reservation.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Application of Chapter

It shall be unlawful to divert or withdraw or otherwise make any use of, or take any action of

whatever kind substantially affecting, the waters of the Colville Reservation unless the applicable

provisions of this Chapter and regulations and determinations made hereunder have been complied

with. To the maximum extent permitted by federal law, no water rights, from whatever source,

shall be recognized, except rights obtained under and subject to this Chapter.

Waters of the Colville Indian Reservation Defined

The waters of the Colville Reservation consist of:

(a) All waters located upon or bordering the Colville Reservation, whether flowing or stationary,

whether above or below the surface of the ground, whether above or below the surface of the

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4-10-101

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ground; whether percolating or non-percolationg groundwater, whether subflow, tributary or nontributary groundwater, whether groundwater hydraulically connected with surface water, or

whether groundwater hydraulically of hydrologically connected with surface water; or whether

diffused or contained within a defines water course or water body of any kind;

(b) All waters reserved at any time to the Colville Reservation by the United States or the Colville

Tribes;

(c) All waters which, in the course of nature or as the result of artificial works, flows into or

otherwise enhances such waters;

(d) All precipitation and atmospheric water; and

(e) The Colville Reservation for purpose of this Chapter shall have the definition set forth in

section

1-1-362 of this Chapter.

4-10-5 through 4-10-99 [RESERVED]

WATER ADMINISTRATOR

Water Administrator—Appointment

The Environmental Trust Department (“Department”) shall employ a person to serve as the Water

Administrator (“Administrator”) under this Chapter. The Administrator shall be employed at a

salary to be fixed by the Department.

Water Administrator—Staff

The Administrator may, with approval of the Department, employ additional support staff.

Water Administrator—General Authority

In administering this Chapter, the Administrator may, in addition to other actions:

(a) Enter appropriate orders;

(b) Grant, deny, modify and revoke water use permits;

(c ) File or intervene in any lawsuit arising under this Chapter, with the permission of the Colville

Business

Council, and defend any lawsuit filed against the Administrator with representation by the Office

of Reservation Attorney;

(d) Make determinations of rights;

(ec) Initiate the process for, and make recommendations regarding, determination of availability

and need as provided in the subchapter on Determination of Availability and Need in section 4-10-

240 through 4-10-248 of this Chapter.

(f) Initiate proceedings involving penalties;

(g) With the permission of the Natural Resources Committee (and where required the Colville

Business Council), enter into administrative agreements, exchange information, and otherwise

cooperate with governmental agencies both on and off the Reservation;

(h) Ensure adequate levels in streams and lakes for wildlife conservation and other values;

(1) In cooperation with the Director of the Department, determine existing and foreseeable uses of

and needs for water and other related resources;

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(j) Propose to the Natural Resources Committee, the Reservation of water for utilization in the

future; and

(k) Take other actions provided for under this Chapter.

Water Administrator—General Duties

It shall be the duty of the Administrator together information related to the water administered

under this Chapter. To this end, the Administrator shall:

(a) Collect, organize and catalog existing information and studies available from all sources, both

public and private, pertaining to the water of the Colville Reservation.

(b) Develop such additional data and studies pertaining to water and water resources as are

necessary to accomplish the objective of this Chapter, including but not limited to the

development of a well use database.

(c) Solicit public comment and obtain expert advice when appropriate.

(d) Investigate water uses and other activities affecting the waters of the Colville Reservation to

determine whether they are in compliance with this Chapter and with applicable regulations,

orders, determinations, and permits issued under this Chapter.

(e) Investigate water quality matters whenever appropriate and make referrals to authorize staff for

any action that may be appropriate.

(f) Issue water permits.

(g) Provide an annual report to the Natural Resources Committee (NRC) of the Colville Business

Council.

Water Administrator—Enforcement

It shall be the duty of the Water Administrator to ensure compliance with this Chapter, and with

the conditions of all permits, determinations, orders, regulations, plans and other actions taken

under this Chapter, as well as the policies and guidelines expressed throughout this Chapter. To

this end the Water Administrator may:

(a) Remove, render inoperative, shut down, close, seal, cap, modify or otherwise control methods

of diversion and withdrawal, obstructions to the flow of water, and activities adversely affecting

water quality.

(b) Initiate by citation and other means, as provided herein, proceedings involving penalties for

violations of this Chapter and the actions taken under this Chapter.

(c) Enter upon land, inspect methods of diversion and withdrawal, inspect other activities affecting

water quality and quantity, install and monitor measuring and recording devices when necessary,

and elicit testimony and data concerning actions affecting the quality or quantity of the waters

administered under this Chapter.

(d) Require a water user to install meters and/or other measurement and recording devices at the

cost of the water user.

Water Administrator—Advisory Function

In addition to the duties of the Water Administrator with respect to information and enforcement,

the Water Administrator may, from time to time, make proposals to the Department concerning

the following:

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(a) The advisability of establishing local management areas and subareas for specialized

administration under this Chapter.

(b) The advisability of making determinations of availability and need as provided in the

subchapter on

Determination of Availability and Need and Water Management Plans in section 4-10-240

through 4-10-248 of this Chapter;

(c) The advisability of taking other actions and adopting other plans and methods in order to

optimize available water supplies and minimize pollution and thermal degradation;

(d) The advisability of purchasing and selling any interest including integrate in real or personal

property;

(e) The advisability of participating in litigation and other actions;

(f) The advisability of the Colville Business Council entering into administrative agreements and

other cooperative ventures with various agencies;

(g) The advisability of amending or otherwise changing various sections of this Chapter or adding

new sections;

(h) The advisability of establishing flow levels or water levels to maintain or restore a healthy

riparian and aquatic environment, and/or provide for navigation or other beneficial uses;

(i) The advisability of taking any other action to further other purposes and increase the

effectiveness of this Chapter.

GUIDELINES FOR ADMINISTRATION

General Policy Provisions

In taking any action under this Chapter, the Administrator shall be guided by the following basic

policy guidelines:

(a) Whenever practicable, actions taken should benefit the Colville Tribes and its members, and

further the objective for which the Colville Reservation was created, namely, to provide a

permanent home and abiding place for the Colville Tribes and their members both now and in the

future. Alternatives to existing and proposed water uses to be considered shall include the option

to restrict or prohibit entirely any further use of water for any reason. If there is presented to the

Administrator a conflict between the Colville Tribes or any of its members with non-Tribal

projects or uses, the Administrator will follow policy guidelines prescribed elsewhere in

subsection (d) of this section and in sections 4-10-131 and 4-10-132 below.

(b) In taking any action under this Chapter which may impose substantial economic hardship on

persons or entities presently using water, or which threatens degradation of other economic,

cultural historic, aesthetic, natural and environmental values, the Administrator shall in reaching

any decisions, carefully consider and give weight to:

(1) The economic dislocation and hardship that would be imposed by its action;

(2) The investment in time, money and other resources made by the parties

affected in reliance upon the existing system of distribution and use of water;

(3) Such other burdens as may be imposed by the actions;

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(September 2010 version of Chapter 4-10)

(4) And the nature and extend of degradation of other economic, cultural,

historic, aesthetic, natural and environmental values.

(c) The Administrator when considering a proposed action, shall balance these adverse effects

against the benefits to Tribal and other interests which are advanced as justifying the proposed

action consider alternatives to the proposed action which will lessen adverse effects, and, shape

any final action so that its adverse effects will be minimized.

(d) Unless otherwise provide, the following uses shall, when conflicting, be given preference in

the order in which they are listed:

(1) Cultural and Religious uses: The ceremonial! use of water by the Colville Tribes or its

membership to express and exercise their traditional religion or cultural customs;

(2) Domestic uses: Includes water for normal household purposes, such as drinking, food

preparation, bathing, washing clothes and dishes, flushing toilets, and watering lawns and

gardens;

(3) Municipal uses: Water withdrawn by public and private water suppliers and delivered

to multiple users for domestic, commercial, and industrial uses, including public and

private water systems that furnish water to at least 25 people, or that have a minimum of

15 connections;

(4) Stock watering: Water for livestock, feedlots, dairies, fish farms, managed wildlife

and other on-farm or rangeland livestock water needs;

(A) On-stream: Stream access is granted for stock watering.

(B) Off-stream: Stream access is denied for stock watering.

(5) Fish, wildlife, ecosystem function: Water needed to protect, preserve or enhance

habitat needed for the life cycle of fish and wildlife resident on, but not necessary native

to, the Colville Reservation; Provided that nothing in this section shall be construed to

waive any claim that the Colville Tribes possesses an instream water right for fisheries

purposes with a priority date under federal law of time immemorial as against any other

party;

(6) Agriculture: All irrigation water artificially applied to farm and horticultural crops

including, but not limited to, hard wood and soft wood timber growing. Irrigation water

can be self supplied or supplied by irrigation companies or districts. Includes water

associated with the production of red meat, poultry, eggs, milk, and wool; and animal

specialties water use, which is defined as water use associated with the production of fish

in captivity;

(7) Recreation: In-stream and out of stream public uses for outdoor activities and scenic

attraction; including water used to irrigate public parks, game fields, campgrounds,

swimming pools and ponds, and public and private golf courses.

(8) Industry: Water for such purposes as processing, washing, and cooling in facilities

that manufacture products. Major water using industries include, but are not limited to,

steel, chemical and allied products, lumber, paper and allied products, and petroleum

refining. Includes water associated with the production of red meat, poultry, eggs, milk,

and wool; animal specialties water use, which is defined as water use associated with the

production of fish in captivity; and water used for dust control and soil stabilization at

construction sites and roads;

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(9) Power: Water used for hydroelectric power generation is classified as an instream use

and refers to the water used in the generation of electricity at plants where the turbine

generators are driven by falling water. Also includes water used in the generation of

electric power with fossil-fuel, nuclear, or geothermal energy;

(10) Mining: Water for the extraction of naturally occurring minerals; solids, such as coal

and ores; liquids, such as crude petroleum; and gases, such as natural gas. The category

includes quarrying, milling (crushing, screening, washing, and flotation), and other

operations as part of mining activity;

(11) Other uses: Water use not defined above and deemed beneficial by the Administrator

and the Department.

Guidelines for Making Most Effective Use of Available Resources

In addition to the policy guidelines contained in the previous section, the Administrator may take

appropriate actions, in his or her discretion, to:

(a) Ensure an adequate supply;

(b) Maintain water levels for diversion and withdrawal systems;

(c) Maintain head and pressure in surface and underground water;

(d) Prevent or reduce obstruction of surface and ground water flow;

(e) Increase efficiency of diversion and withdrawal, increase efficiency in application, increase

return flow, prevent waste and maximum use of the available supply;

(f) Create and enhance the efficiency of natural and artificial surface and underground storage;

(g) Insure optimum recharge of aquifers;

(h) Prevent or reduce loss from losing streams and aquifers;

(i) Define and limit interbasin transfers from shifting aquifer boundaries;

(j) Provide for exceeding safe yield determinations from groundwater sources on a short term basis

during drought or for other reasons determined sound by the Administrator, including where

possible guidelines or a schedule for restoration of groundwater elevations to pre-mining, or pre-

drought levels.

(k) Prevent or reduce interference between competing users of water sources, whether above or

below ground;

(1) Prevent or reduce pollution or the effects of pollution;

(m) Prevent or reduce thermal degradation or the effects of thermal degradation;

(n) Shape use of available supplies to promote economic, scenic aesthetic, historical, cultural,

natural or domestic values, consistent with the priorities of subsection 4-10-130(d) above;

(o) Provide for long-term development;

(p) Penalize misuse;

(September 2010 version of Chapter 4-10)

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(q) Prevent interference with Tribal administration of water;

(r) Otherwise insure conformity with the provision of this Chapter.

Additional Policy Guidelines

(a) Rivers and streams of the Reservation shall be retained with sufficient flows necessary to

provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values and

navigational values. Withdrawals of water that would conflict therewith should be authorized only

in those situations where it is clear that overriding considerations of the public interest will be

served.

(b) Multiple-purpose impoundment structures are to be preferred over single-purpose structures.

Due regard shall be given to means and methods for protection of fishery resources in the planning

for and construction of water impoundment structure and other artificial obstructions.

(c) Individuals, corporations, groups, associations and other entities shall be encouraged to carry

out practices of conservation and environmental protection as they relate to the use of the water of

the Colville Reservation.

APPLICATIONS FOR PERMITS

Description of Use and Application for Permit—Required

All persons desiring to initiate new uses of water, change existing water uses that have been

previously permitted under this Chapter, or take other actions substantially affecting the waters of

the Colville Reservation must file a Description of Use and Application for Permit as required by

this subchapter. It shall be unlawful to make any use or take any other action substantially

affecting the waters of the Colville Reservation except as authorized by this Chapter.

Description of Use and Application for Permit—Content

Description of Use and Application for Permit shall be on forms provided by the Administrator

and shall include the following information, in addition to any other information deemed

necessary by the Administrator :

(a) The name and mailing address of the applicant;

(b) The name of if available or a description of the source or sources from which water is or will

be diverted or withdrawn;

(c) The quantity of water which is or will be used during each month of the year;

(d) A legal description if such is readily available and other description reasonably describing the

point or points of diversion or withdrawal;

(e) A description of the method or methods of diversion or withdrawal;

(f) The purpose or purposes for which water is or will be used;

(g) A description of how water will be applied or consumed, including acreage and crop if the

water is for irrigation and the kind and number of stock if water is for stock watering.

(h) The best estimate reasonably possible of how much water will be returned to the source or

sources, how, when, at what point or points, and with what charges in quality and temperatures;

(i) The estimated date on which the use or uses were commenced or will be commenced;

(j) Ifa use is an existing use, the history of the use, including the names of any predecessors in

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title and the dates of their ownership, if known, and including a description of their uses of water;

(k) If any pre-existing right is claimed, sufficient documentation to meet the applicant’s burden of

demonstrating the basis of such right, including but not limited to: a description of any documents

or programs upon which it is based, any statute or statutes or legal doctrine upon which the claim

is based and any pertinent litigation creating or affecting the claim;

(1) If a pre-existing use or uses described, an indication whether problems of water levels and

supply or problems or declining quality have been encountered in the past;

(m) The user’s plan for future development of his water use or uses and related activities.

(n) The location and description of any existing or proposed water measuring, monitoring, or

recording device.

Temporary Permits

Temporary Use and Application for Permits may be issued on forms prepared by the

Administrator for time periods not to exceed one year authorizing the use of a reasonable quantity

of water for the uses described and actually made while the application is pending. Approval of a

Temporary Permit does not create a vested or permanent approval to use the resource(s) at

reference. The Administrator may modify a Temporary Permit at his or her discretion in

conformance with this Chapter.

Fees

Each Description of Use and application for Permit shall be accompanied by a processing fee as

set forth in a Fee Schedule to be developed by the administrator and approved by Resolution of the

Colville Buisness Council and attached as an appendix to this Chapter.

Fees for other uses will be established by and at the discretion of the Administrator and made

payable upon submission of the Description of Use and Application for Permit to the

Administrator. The criterion for establishing the fees will be the relative departmental expense

incurred, or expected to be incurred, in processing the permit. The fees are one time payable, and

do not represent a charge for the water used. The purpose of the fees is to help offset the cost of

maintaining a water permit and use recording system for the Colville Tribes. Fees shall not be

refunded if the permit is denied or held in pending status for any reason.

Fees for Description of Use and Application for Permit for Tribal members, tribal departments, or

tribal enterprises may be waived on request to the Administrator.

Public Notice of and Objections to Descriptions of Use and Applications for Permits

(a) The Administrator shall publish in the Tribal Tribune, on a monthly basis, a notice of all

pending applications and a statement that the application(s) described in the listing have applied

for permits under this Chapter. The notice shall further state that any persons claiming that their

rights may be adversely affected by the issuance of such permits may object to their issuance in

accordance with the provisions for objection, notice and hearing provided elsewhere in this

Chapter, and that other interested persons may also comment on the application. The

Administrator may require an applicant to publish any notice of application in appropriate local

weekly newspapers, to provide proof of such publication. The Administrator may also post notice

of applications in the four districts of the Reservation.

(b) The Administrator shall consider all public comments received and shall make all written

comments part of the administrative record.

(c) Any person or entity whose interests are or may be affected by a water use described and

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applied for may within thirty (30) days from the publishing, posting, and mailing of notice that

such use has been applied for file a formal objection to the issuance of the permit applied for.

(d) Objections and comments may be on forms prepared and made available by the Administrator.

Objections shall include the name and mailing address of the party objecting, the name of the

applicant whose application is objected to, a description of the water use objected to, a short and

plain statement of reasons why a permit should not be issued or should be issued in a form

different from that applied for, and any suggested conditions or other provisions which should be

included in any permit granted. No written objections or comments shall be rejected if they are

not on forms provided by the Administrator, so long as such objections and comments reasonably

identify the proposed permit on which the comment or objection is made.

(e) Any applicant for a permit whose use is objected to may reply in writing or orally in the same

manner as provided herein for objections.

(f) In addition to written objections any person or entity may comment eraly-er orally at any

hearing scheduled by the Administrator upon the proposed issuance of any permit under this

Chapter, provided that such person or entity shall have submitted a written comment or objection._

Investigation and Review of Permit Applications; Issuance of Permits

(a) In addition to gathering information from the objections, comments and hearings provided

above, the Administrator shall conduct an investigation of the facts and circumstances surrounding

the permit application, and shall provide notice to other tribal programs by routing any and all

applications to all relevant tribal programs in accordance with the Tribes’ Project Proposal Process

(3P) as determined by the 3P Coordinator. The Administrator shall initiate such routing not later

than five (5) days after the submission of an application. All programs receiving such notice shall

provide a written response, within thirty (30) days of receipt of such notice from the

Administrator; such written response shall identify other permits that may be required for the

activity for which a water permit is sought, and may also recommend appropriate conditions for

any permit that may be granted under this Chapter. The notice and routing procedure set forth in

this subsection shall be used to comply with section 4-9-14 of this Code (Hydraulic Practices). No

permit shall be issued under this Chapter unless and until the requirements of this subsection have

been met.

(b) The Administrator may also solicit comments and information from the public and from

appropriate governmental agencies in addition to those required under the Project Proposal

Process referred to in subsection (a) above, and may otherwise gather information which will

assist in issuing or denying a permit in accordance with the provisions of this subchapter.

Issuance or Denial of Permits

As soon as possible after objections and hearings and after a reasonable period for public comment

shall have passed, as provided above, and not more than ninety (90) days after the filing of a

Description of Use and Application for Permit, the Administrator shall review the comments and

information gathered with respect to a specific application and then deny a permit or issue a permit

in the form provided for in the subchapter on Water Permits under this Chapter dealing with the

form and effect of permits.

4-10-167 through 4-10-199 [RESERVED]

WATER PERMITS

Form

Water permits issued in accordance with this Chapter shall be on a form standardized by the Water

Administrator.

Information Contained

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Each permit shall include:

(a) The name and mailing address of the permittee;

(b) The name of if available or a description of the water source(s) from, and Resources

Management Units (RMU’S) from which water is or will be diverted or withdrawn;

(c) The quantity of water which may be used during each month of the year and the maximum

instantaneous rate of diversion or withdrawl if appropriate;

(d) The legal description if such is readily available or other description reasonably describing the

point or points of diversion or withdrawal;

(e) A description of the method or methods of diversion or withdrawal;

(f) The purpose or purposes for which water is or will be used;

(g) A description of how water may be applied or consumed, including acreage and crop if the

water is for irrigation and the kind and number of stock if water is for stock watering;

(h) The approximate date upon which the use (or uses) permitted has been or will be commenced;

(i) Acknowledgement of amount of fees paid;

(j) In addition, the water permit may contain such other information as is deemed necessary and

appropriate.

Conditions

Each water permit issued pursuant to this Chapter shall contain whatever conditions are necessary

to insure adequate quality and quantities of water to otherwise further the purposes, policies and

guidelines contained within this Chapter, and to assist in the effective administration of this

Chapter. These may include among other things conditions concerning:

(a) The source from which water may be withdrawn;

(b) The quantity of water which may be withdrawn during any particular time;

(c) The point(s) of diversion or withdrawal;

(d) The method(s) of diversion or withdrawal;

(e) The purposes for which water may be used;

(f) The method of water application;

(g) The location and purpose of application, including acreage for crops and number of stock for

stock watering;

(h) The quantity and quality of return flow;

(1) The time period(s) in which water may be used;

Gj) Schedules for withdrawal or diversion, including optional rotation schedules;

(k) Provisions for surface or ground water storage of surplus flows;

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(1) Provisions for increasing the efficiency of diversion or withdrawal and application;

(m) Provisions for maintaining minimal levels for fish, wildlife, recreational and aesthetic values;

(n) Provisions for insuring minimum pumping and diversion levels with respect both to surface

and underground water;

(0) Provisions designed to maintain head and pressure in surface and underground water;

(p) Provisions designed to prevent or reduce obstruction or surface and underground water;

(q) Provisions designed to prevent or reduce obstruction of fish runs;

(r) Provisions designed to minimize pollution and thermal degradation;

(s) Provisions designed to insure optimum recharge of aquifers;

(t) Provisions designed to prevent or reduce loss from losing streams and aquifers;

(u) Provisions designed to define the limit interbasin transfers from shifting aquifer boundaries;

(v) Provisions for exceeding safe yield determination from groundwater sources on a short term

basis during drought of for other reasons by the Administrator, including where possible

guidelines or a schedule for restoration of groundwater elevations to pre-mining, or pre-drought

levels;

(w) Provisions designed to prevent or reduce interference between competing users or water

sources whether above or below ground;

(x) Provisions to insure long term development.

(y) Notice of penalties for misuse or violation of permit terms or of this Chapter, which shall be

set forth in the Liquidated Damage Schedule;

(z) Provisions to prevent interference with Tribal administration of water;

(aa) Provisions for monitoring, measuring, and reporting;

(bb) Other provisions necessary to ensure conformity with this Chapter and actions taken

hereunder.

(cc) Every permit issued under this Chapter shall contain the condition that no use or other action

affecting the waters in question may be made unless the applicant consents to such reasonable

entry upon his land as is necessary for the purpose of administering this Chapter.

Effect

A water permit issued under this Chapter constitutes Tribes’ permission to use the waters of the

Colville Reservation, subject to the terms and conditions of the permit, to this Code, and to actions

taken pursuant to this Code. No water permit issued hereunder shall be construed as creating or

recognizing any right than Tribal permission to use water nor shall any permit ripen into any

interest other than such permission.

Revocability

(a) Unless otherwise indicated, water permits issued under this Chapter are revocable in

accordance with the policies, purposes, guidelines and procedures established in this Chapter.

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(b) Notwithstanding subsection (a) above, the Administrator may, at his option or upon

application, propose for approval by the full Colville Business Council the granting of permits for

specific periods of time, permits revocable or terminable only upon stated conditions, and other

forms of permits providing varying degrees of permanence. Such permits may be conditioned

upon payment or consideration and contain other Contractual terms.

Modification

Water permits may be modifiable in accordance with the procedures provided in this Chapter.

WELL DRILLING

Well Drilling

(a) Purpose: The drilling, making or constructing of wells within the Colville Reservation is an

activity of vital interest to the public. This subchapter, sections 4-10-206 through 4-10-221, is

adopted to protect the public health, welfare, and safety by providing for the regulation,

permitting, and approval of well contractors and operators and for the regulation of well design

and construction.

Definitions

The definitions in this section apply throughout this chapter unless the context clearly requires

otherwise.

(a) “Abandoned well” means a well that is unused, unmaintained, and is in such disrepair as to be

unusable.

(b) “Constructing a well” or “construct a well” means:

(1) Boring, digging, drilling, or excavating a well;

(2) Installing casing, sheeting, lining, or well screens, in a well;

(3) Drilling a geotechnical soil boring; or

(4) Installing an environmental investigation well.

(c) “Constructing a well” or “construct a well” includes the alteration of an existing well.

(d) “Decommission” means to fill or plug a well so that it will not produce water, serve as a

channel for movement of water or pollution, or allow the entry of pollutants into the well or

aquifers.

(e) “Dewatering well” means a cased or lined excavation or boring that is intended to withdraw or

divert ground water for the purpose of facilitating construction, stabilizing a landslide, or

protecting an aquifer.

(f) “Environmental investigation well” means a cased hole intended or used to extract a sample or

samples of ground water, vapor, or soil from an underground formation and which is

decommissioned immediately after the sample or samples are obtained. An environmental

investigation well is typically installed using direct push technology or auger boring and uses the

probe, stem, auger, or rod as casing. An environmental investigation well is not a geotechnical soil

boring.

(g) “Geotechnical soil boring” or “boring” means a well drilled for the purpose of obtaining soil

samples or information to ascertain structural properties of the subsurface.

(h) “Ground water” means all waters that exist beneath the land surface or beneath the bed of any

12

(September 2010 version of Chapter 4-10)

stream, lake or reservoir, or other body of surface water whatever may be the geological formation

or structure in which such water stands or flows, percolates or otherwise moves, including those

groundwaters defined in section 4-10-4 (a). There is a recognized distinction between natural

ground water and artificially stored ground water

(i) “Instrumentation well” means a well in which pneumatic or electric geotechnical or

hydrological instrumentation is permanently or periodically installed to measure or monitor

subsurface strength and movement. Instrumentation well includes borehole extensometers, slope

indicators, pneumatic or electric pore pressure transducers, and load cells.

(j) “Monitoring well” means a well designed to obtain a representative ground water sample or

designed to measure the water level elevation in either clean or contaminated water or soil.

(k) “Observation well” means a well designed to measure the depth to the water level elevation in

either clean or contaminated water or soil.

(1) “Operator” means a person who (a) is employed by a well contractor; (b) is licensed by the

State of Washington; or (c) who controls, supervises, or oversees the construction of a well or who

operates well construction equipment.

(m) “Owner” or “well owner” means the person, firm, partnership, copartnership, corporation,

association, or other entity who owns the property on which the well is or will be constructed.

(n) “Pollution” and “contamination” means such contamination, or other alteration of the physical,

chemical or biological properties, of any waters of the Colville Reservation, including change in

temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous,

solid, radioactive, or other substance into any waters of the Colville Reservation as will or is likely

to create a nuisance or render such waters harmful, detrimental or injurious to the public health,

safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other

legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life

(o) “Remediation well” means a well intended or used to withdraw ground water or inject water,

air (for air sparging), or other solutions into the subsurface for the purpose of remediating,

cleaning up, or controlling potential or actual ground water contamination.

(p) “Resource protection well” means a cased boring intended or used to collect subsurface

information or to determine the existence or migration of pollutants within an underground

formation. Resource protection wells include monitoring wells, observation wells, piezometers,

spill response wells, remediation wells, environmental investigation wells, vapor extraction wells,

and instrumentation wells.

(q) “Resource protection well contractor” means any person, firm, partnership, copartnership,

corporation, association, or other entity, licensed and bonded, engaged in the business of

constructing resource protection wells or geotechnical soil borings.

(r) “Water well” means any excavation that is constructed when the intended use of the well is for

the location, diversion, artificial recharge, observation, monitoring, dewatering, or withdrawal of

ground water.

(s) “Water well contractor” means any person, firm, partnership, copartnership, corporation,

association, or other entity, licensed and bonded, engaged in the business of constructing water

wells.

(t) “Well” means water wells, resource protection wells, dewatering wells, and geotechnical soil

borings. Well does not mean an excavation made for the purpose of obtaining or prospecting for

oil, natural gas, geothermal resources, minerals, or products of mining, or quarrying, or for

13

(September 2010 version of Chapter 4-10)

4-10-208

4-10-209

inserting media to repressure oil or natural gas bearing formations, or for storing petroleum,

natural gas, or other products.

(u) “Well contractor” means a resource protection well contractor and a water well contractor.

Compliance Enjoined

It is unlawful:

(a) For any person to supervise, construct, alter, or decommission a well without complying with

the provisions and the rules for well construction adopted pursuant to this subchapter;

(b) For any person to cause a well to be constructed in violation of the standards for well

construction established by this section and rules adopted by the Administrator pursuant to this

section;

(c) For a prospective water well owner to have a water well constructed without first obtaining a

water use permit under this Chapter;

(d) For any person to construct, alter, or decommission a well unless the fees required by section

4-10-213 have been paid;

(e) For a person to tamper with or remove a well identification tag except during well alteration;

and

(f) For any person to contract to engage in the construction of a well or to act as a well operator

without first obtaining a permit pursuant to this subchapter.

Powers of Administrator

The Administrator shall have the power:

(a) To issue, deny, suspend or revoke permits pursuant to the provisions of this subchapter;

(b) At all reasonable times, to enter upon lands for the purpose of inspecting, taking measurements

from, or tagging any well, constructed or being constructed;

(c) To call upon or receive professional or technical advice;

(d) To adopt rules governing well construction and permitting of operators. The rules adopted by

the Administrator may include, but are not limited to:

(1) Standards for the construction and maintenance of wells and their casings;

(2) Methods of capping, sealing, and decommissioning wells to prevent contamination of

ground water resources and to protect public health and safety;

(3) Methods of artificial recharge of ground water bodies and of construction of wells

which insure separation of individual water bearing formations;

(4) Requirements for the filing of notices of intent, well reports, and the payment of fees;

(5) Reporting requirements of operators and well contractors;

(6) Limitations on well construction in areas identified by the department as requiring

intensive control of withdrawals in the interests of sound management of the ground

water resource;

14

(September 2010 version of Chapter 4-10)

4-10-210

4-10-211

4-10-212

4-10-213

(e) To require the operator in the construction of a well and the property owner in the maintenance

of a well to guard against waste and contamination of the ground water resources;

(f) To require the operator to place a well identification tag on a new well and on an existing well

on which work is performed after the effective date of rules requiring well identification tags and

to place or require the owner to place a well identification tag on an existing well;

(g) To require the well owner to repair or decommission any well:

(1) That is abandoned, unusable, or not intended for future use; or

(2) That is an environmental, safety, or public health hazard.

Prior Notice of Well Construction, Reconstruction, or Decommissioning

A property owner or the owner's agent shall notify the Administrator of his or her intent to begin

well construction, reconstruction, or decommissioning procedures at least seventy-two hours in

advance of commencing work. The notice shall be submitted on forms provided by the

Administrator and shall be accompanied the fees referenced in section 4-10-213. The notice shall

contain the name of the owner of the well, location of the well, proposed use, approximate start

date, well contractor's or operator's name and license number, company's name, and other

pertinent information as prescribed by rule of the Administrator. Rules of the Administrator shall

also provide for prior telephonic notification by well contractors or operators in exceptional

situations. The Administrator shall issue a receipt indicating that the notice required by this section

has been filed and the fees required have been paid not later than three business days after the

Administrator has received the notice and fees.

Modification of construction standards

The Administrator by rule shall adopt procedures to permit a well operator to modify construction

standards

to meet unforeseen circumstances encountered during the construction of a well.

Reports of Well Construction or Alteration

(a) A well contractor shall furnish a well report to the Administrator within thirty days after the

completion of the construction or alteration of a well by the contractor. The Administrator, by rule,

shall prescribe the form of the report and the information to be contained therein. (b) In the case

of a dewatering well project:

(1) A single well construction report may be submitted for all similar dewatering wells

constructed with no significant change in geologic formation; and

(2) A single well decommissioning report may be submitted for all similar dewatering

wells decommissioned that have no significant change in geologic formation.

Fees

(a) Effective ninety (90) days after the effective date of this subchapter, a fee is hereby imposed on

each well constructed on the Colville Reservation. The Administrator shall provide a receipt for

all fees paid.

(b) The fee for one new water well, other than a dewatering well, with a minimum top casing

diameter of less than twelve inches is one hundred dollars.

(c) The fee for one new water well, other than a dewatering well, with a minimum top casing

diameter of twelve inches or greater is two hundred dollars.

(d) The fee for a new resource protection well, except for an environmental investigation well, is

forty dollars for each well.

15

(September 2010 version of Chapter 4-10)

4-10-214

4-10-215

4-10-216

(e) The fee for an environmental investigation well in which ground water is sampled or measured

is forty dollars for construction of up to four environmental investigation wells per project, ten

dollars for each additional environmental investigation well constructed on a project with more

than four wells. There is no fee for soil or vapor sampling purposes.

(f) The combined fee for construction and decommissioning of a dewatering well system shall be

forty dollars for each two hundred horizontal lineal feet, or portion thereof, of the dewatering well

system.

(g) The fees imposed by this section shall be paid at the time the notice of well construction is

submitted to the Administrator. The Administrator by rule may adopt procedures to permit the fees

required for resource protection wells to be paid after the number of wells actually constructed has

been determined. The Administrator shall refund the amount of any fee collected for wells,

borings, probes, or excavations as long as construction has not started and the Administrator has

received a refund request within one hundred eighty days from the time the Administrator received

the fee. The refund request shall be made on a form provided by the Administrator.

Violations—Cease and Desist Orders

Notwithstanding and in addition to any other powers granted to the Administrator, whenever it

appears to the Administrator that a person is violating or is about to violate any of the provisions

of this section, the Administrator may cause a written regulatory order to be served upon said

person either personally, or by registered or certified mail delivered to the addressee only with

return receipt requested and acknowledged by him or her. The order shall specify the provision of

this chapter, and if applicable, the rule adopted pursuant to this section alleged to be or about to be

violated, and the facts upon which the conclusion of violating or potential violation is based, and

shall order the act constituting the violation or the potential violation to cease and desist or, in

appropriate cases, shall order necessary corrective action to be taken with regard to such acts

within a specific and reasonable time. An order issued under this chapter shall become effective

immediately upon receipt by the person to whom the order is directed, and shall become final

unless review thereof is requested as provided in this section.

Remedies for Non-complying Wells

(a) The Administrator may order a well contractor or well operator to repair, alter, or

decommission a well if the Administrator demonstrates that the construction of the well did not

meet the standards for well construction in effect at the time construction of the well was

completed.

(b) The Administrator may not issue an order pursuant to this section:

(1) For wells for which construction has been substantially completed before the effective

date of this subchapter, more than six years after construction has been substantially

completed; or

(2) For wells for which construction has been substantially completed before the effective

date of this subchapter, more than three years after construction has been substantially

completed. For purposes of this subsection, “construction has been substantially

completed” shall mean the state of completion reached when an improvement upon real

property may be used or occupied for its intended use.

(c) Subsection (b) of this section shall only apply to a well for which the notice of construction

and the report have been filed with the Administrator.

Water Well Driller’s Qualifications and Well Construction Permit

A person shall be qualified to drill wells when they possess a Washington State well driller’s

license. Well drillers shall submit copies of their licenses to the Water Administrator upon request

16

(September 2010 version of Chapter 4-10)

4-10-217

4-10-218

and upon license renewal thereafter. Upon receipt of a license the Water Administrator shall issue

within five working days a permit to engage in well construction activities on the Colville

Reservation. Persons who perform labor or services for a well driller are exempt from permit

requirement so long as they are under the direct supervision of the permitted well driller. Each

well driller or contractor shall possess an individual permit. A person shall be qualified to drill

wells, and the Administrator shall issue a permit therefore, only when the person:

(a) Has submitted a completed permit application to the Administrator on forms provided by the

Administrator and has paid to the Administrator the application fee determined by rule adopted

pursuant to this section; and

(b) Has the field experience and educational training required by rule adopted by the

Administrator pursuant to this section. The Administrator may require an applicant an to

demonstrate to field experience and training by means of a field examination.

Permits—Duration—Renewal—Failure to renew, procedure—Conditional licenses

(a) Permits issued pursuant to this chapter shall be renewed every two years. A permit shall be

renewed upon payment of a renewal fee and completion of continuing education required by rule

adopted by the Administrator. If a permittee fails to submit an application for renewal, the renewal

fee, an

d proof of completion of the required continuing education, the permit shall expire at the end of its

effective term.

(b) A person whose permit has expired must apply for a new permit as provided in this chapter.

The Administrator may waive any requirement for a written examination and on-site testing for a

person whose person has expired.

© The Administrator may refuse to renew a permit if the permittee has not complied with an order

issued by the department or has not paid a penalty imposed in accordance with this chapter, unless

the order or penalty is under appeal.

(d) The Administrator may issue a conditional permit to enable a former permittee to comply with

an order to correct problems with a well.

(e) No permit under this chapter shall be required of:

(1) Any individual who personally constructs a well on land which is owned or leased by

the individual or in which the individual has a beneficial interest as a contract purchaser

and is used by the individual for farm or single-family residential use only. An individual

who constructs a well without a permit pursuant to this subsection shall comply with all

other requirements of this section and rules adopted by the Administrator, including but

not limited to, well construction standards, payment of well construction fees, and

notification of well construction required this section. An individual without a permit

may construct not more than one well every two years pursuant to the provisions of this

subsection.

(2) An individual who performs labor or services for a well contractor in connection with

the construction of a well at the direction and under the supervision and control of a

permitted operator who is present at the construction site.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Actions against permits—Grounds—Duration

(a) In cases other than those relating to the failure of a permittee to renew a permit, the Water

Administrator may suspend or revoke a well construction permit issued pursuant to this section for

any of the following reasons:

17

(September 2010 version of Chapter 4-10)

4-10-219

4-10-220

4-10-221

(1) For fraud or deception in obtaining the well construction permit;

(2) For fraud or deception in reporting;

(3) For violating the provisions of this section, or of any lawful rule or regulation of the

Administrator.

(b) The Administrator shall determine the length of well construction permit suspension.

(c) No person whose well construction permit is revoked shall be eligible to apply for a well

construction permit for one year from the effective date of the final order of revocation.

Complaints against contractors or operators—Administrator's response—Review

Any person with an economic or noneconomic interest may make a complaint against any well

contractor or operator for violating this section or any regulations under it to the Administrator.

The complaint shall be in writing, signed by the complainant, and specify the grievances against

the permittee. The Administrator shall respond to the complaint by issuance of an order it deems

appropriate. Review of the order shall be subject to the General Hearings Provisions, sections 4-

10-320 through 4-10-327.

Appeals

Any person aggrieved by an order of the Administrator including the granting, denial, revocation,

or suspension of a license issued by the Administrator pursuant to this section shall be entitled to

an appeal pursuant to the subchapter Appeals From Water Administrator Actions, sections 4-10-

400 through 4-10-406.

Civil penalties—Amount and disposition

As provided in section 4-10-360 and the Liquidated Damage Schedule, the Administrator may

assess a civil penalty for a violation of this section or rules or orders of the Administrator adopted

or issued pursuant to it for:

(1) Failure to submit completed start cards and well reports within the required time;

(2) Failure to submit variance requests before construction;

(3) Failure to submit well construction fees;

(4) Failure to place a well identification tag on a new well; and

(5) Minor or reparable construction problems.

(6) Improper well construction;

(7) Intentional and improper location or siting of a well;

(8) Construction of a well without a required permit;

(9) Violation of decommissioning requirements;

(10) Repeated minor violations; or

(11) Construction of a well by a person whose well construction permit has expired or

has been suspended for not more than ninety days.

(12) Without a well construction permit; or

18

(September 2010 version of Chapter 4-10)

4-10-240

4-10-241

4-10-242

4-10-243

(13) After the person's well construction permit has been suspended for more than ninety

days or revoked.

(b) The penalty for a violation shall be not less than one hundred dollars and not more than five

thousand dollars. In determining the appropriate penalty under subsection (3) of this section the

Administrator shall consider whether the person.:

(1) Has demonstrated a general disregard for public health and safety through the number

and magnitude of the violations;

(2) Has demonstrated a disregard for the well construction laws or rules in repeated or

continuous violations; or

(3) Knew or reasonably should have known of circumstances that resulted in the violation

(c) For informational purposes, a copy of the notice of violation, resulting from the improper

construction of a well, that is sent to a water well contractor or water well construction operator,

shall also be sent by the Administrator to the well owner.

4-10-222 through 4-10-239 [RESERVED]

DETERMINATION OF AVAILABILITY AND NEED

When Proceeding Available

Whenever the Administrator determines that a water supply common to a particular area is or will

be used beyond its capacity, or otherwise adversely affected, the Administrator shall initiate and

prepare a Determination and Availability of Need for water in one or more Resource Management

Units (RMU’s) or Watershed Management Units (WMU’s) as determined by the Administrator in

accordance with the provisions of this subchapter.

Purposes

The purpose of proceeding to determine availability of and need for water under this subchapter

should be: to evaluate existing and future needs dependent upon a particular supply, to compute

with reasonable certainty the characteristics of a particular supply, including quantity, surface and

underground levels, rates and directions of flow, rates of recharge, out-of-basin sources, pollution,

thermal degradation, and other characteristics, at particular locations and times; to explore various

methods for increasing supply such as storage, increased efficiency, alternatives to present uses,

alternatives to activities presently requiring the consumption of water; to assist in land use

planning in accordance with be policies and actions of the Confederated Tribes of the Colville

Reservation; and to make available to various Tribal and other agencies and to members of the

public information concerning the water in question.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Water Administrator—Information Gathering

The Administrator shall initiate an investigation to gather and evaluate all available and pertinent

data from whatever sources concerning the water supply and needs for water in question, to

formulate proposals concerning the use of the water in question and to provide other information,

alternatives, and recommendations. Such information, alternatives, and recommendations shall be

contained in the report of the Administrator provided in this subchapter.

Administrator’s Report of Determination of Availability and Need

Following investigation as provided for in this subchapter, the Administrator shall issue a report

concerning the availability of and need for water in the particular area(s) at reference. Such report

shall be known as a proposed Determination of Availability and Need Report, and may include the

following, either as pertinent information, recommendations or mandatory provisions:

19

(September 2010 version of Chapter 4-10)

4-10-244

4-10-245

(a) A description and map of the affected areas including a geographic and geologic description of

the area studied, setting out as precisely as possible the boundaries of the area;

(b) A general description of the water supply in the affected area, including a description of all

sources and the various characteristics of the supply which are especially pertinent to present and

proposed water uses and other actions within that area;

(c) A computation of the water supply available at particular times and places;

(d) A description of possible methods for increasing available supply;

(e) A description of the various present and future needs for using or affecting.the water supply in

the area.

(f) A description of present and proposed uses of and other actions affecting the water in question;

(g) A description and evaluation of the need for each such present or proposed use or other action;

(h) Alternatives for present uses which will minimize adverse effects of water use described in

section 4-10-130;

(i) A list of priorities to be observed within the affected areas;

(j) A list of storage methods which are or may be proposed and implemented;.

(k) A description of economic and technical methods which may be implemented to increase the

efficiency of use;

(1) A description of possible inter-basin transfers;

(m) Assessment including quantification of water supply within the area which, although they may

be subject to existing uses on an interim basis, are set aside for future Tribal and other needs;

(n) Other information and recommendations or requirements reasonably calculated to inform the

affected parties concerning the future management of the water in question.

Public Notice of Determination of Availability of Need

As soon as possible, and not more than thirty (30) days after the drafting of a proposed

Determination of Availability and Need provided in section 4-10-243 above, the Administrator

shall provide notice in the Tribal Tribune of a public meeting at which interested persons may

comment concerning the proposed Determination of Availability and Need. Included in the notice

shall be a description or map of the affected area, a description of related proceedings to date, and

a clear statement pointing out that copies of the proposed Determination of Availability and Need

shall be reasonably available to interested persons. The notice shall state that a meeting shall be

held at a particular time and place not less than thirty (30) nor more than sixty (60) days after the

date notice is completed.

Public Meeting of Determination of Availability of Need

The Administrator shall conduct a public meeting with respect to every proposed Determination of

Availability and Need. Whenever possible such meeting shall be held in the affected District at an

hour which is reasonably convenient. At such meetings, the Administrator shall provide a brief

oral statement of the purposes of the hearing and description of the proceeding to date, including

the proposed Determination. After the presentation is made by the Administrator, public comment

shall be allowed. The Administrator shall ensure the affected public has an opportunity for full

comment. Meetings may be continued to such times and places as are deemed appropriate upon

adequate notice.

20

(September 2010 version of Chapter 4-10)

4-10-246

4-10-247

4-10-248

4-10-280

Proposed Final Determination of Availability and Need

(a) As soon as possible, and no more than thirty (30) days after the public meeting provided for in

this subchapter, the Administrator shall prepare a final Determination of Availability and Need.

The Administrator shall provide notice in the Tribal Tribune of this final Determination in the

saine manner as provided in this subchapter and shall indicate that copies of the Determination are

reasonably available for public use.

(b) Subsequent to the issuance of a Final Determination of Availability and Need the

Administrator may make a finding that revision of the final Determination of Availability and

Need is required in response to information not available at the time of the original investigation.

Implementing Actions

(a) Upon completion of the above proceeding, the Administrator shall make reasonably available

to parties requesting the same, copies of the Determination of Availability and Need made under

the provisions of this subchapter.

(b) The Administrator shall prepare a Water Management Plan based on the Determination of

Availability and Need; and the Water Management Plan shall be implemented upon adoption by

the Business Council. The Water Management Plan for the affected Resource Management Unit

(RMU) or Watershed Management Unit (WMU) shall:

(1) clearly establish goals of water quality and quantity management of surface water,

precipitation and atmospheric water, and groundwater;

(2) provide specific actions for protection, preservation, enhancement and restoration of

surface water, precipitation and atmospheric water, and groundwater;

(3) specify in-stream flows;

(4) specify surface water and groundwater normally allocable to withdrawal and use;

(5) identify specific measures to be taken in the management of surface waters and

groundwaters to address drought including, but not limited to:

(A) limitations on the withdrawal of groundwater to maintain pumping within

safe yield;

(B) forecasts, annually or as otherwise required, of water available for stream

diversion;

(c) The Administrator shall grant, revoke, deny or modify permits in accordance with such the

Water Management Plan; shall enter appropriate orders and take other actions authorized by this

Chapter to prevent overuse and pollution in accordance with such Water Management Plan; and

shall take whatever other actions are necessary and authorized by this Chapter to assist in the

implementation of the Water Management Plan and of the policies set out in this Chapter.

Appeal

Any action taken pursuant to a decision by the Administrator pursuant to this Chapter, including

Final Determination of Availability and Need, shall be in accordance with the administrative

appeal procedures set for in sections 4-10-400 through 4-10-406.

TRANSFER AND LOSS OF RIGHTS

Transfer, Assignment and Creation of Security Interest

Permits issued under this Chapter shall not be subject to transfer, assignment, or creation of any

21

(September 2010 version of Chapter 4-10)

4-10-281

4-10-282

4-10-283

4-10-284

4-10-285

security interest, without an approved water permit change as described in this subchapter.

Application for transfer, assignment, or creation of a security interest shall be made on forms

prepared and made available by the Administrator. Such forms shall be designed to obtain

information concerning any substantial changes that will or may occur as a result of the transfer,

assignment or creation of a security interest. Every attempt shall be made to conform with the

purpose of the subchapter on Applications for Permits under this Chapter, dealing with

Description of Use and Application for permits.

Exchange of Claims for Permits Under this Chapter

Any person claiming any right in or to the waters of the Colville Reservation may relinquish such

claim to the Colville Tribes in favor of a water permit issued under this Chapter, and the

Administrator is empowered to undertake all negotiations and other actions necessary to execute

such an exchange; Provided that nothing in this section shall be construed as recognizing or

validating any claim to the use of any of the water of the Colville Reservation other than the right

created under this Chapter.

Voluntary Relinquishment of Claims or Rights

Any holder or claimant of any right in or to the waters of the Colville Reservation may voluntarily

relinquish all or a portion of such right to the Colville Tribes by any affirmative action indicating

his intent to relinquish.

Loss by Nonuse

Any right to use or otherwise affect in any way the waters of the Colville Reservation, regardless

of its origin, shall become void and revert, to the extent of the abandonment or nonuse, to the

Colville Tribes when the holder of such right wholly or partially abandons the same, or fails,

without sufficient cause, to use all or a portion of the water available under such right for a period

of five consecutive years. This section shall be retroactive. “Sufficient cause” shall include:

(a) Drought or any other unavailability of water;

(b) Active services in the armed forces of the United States during military crisis;

(c) Confinement in a mental institution, whether voluntary or not;

(d) Incompetence by reason of age or mental incapacity;

(e) Provision for future use as provided in this Chapter;

(f) Other causes of nonuse beyond the control of the holder or holders of the right claimed.

Before such water rights may be deemed lost by nonuse or abandonment, the Water Administrator

shall serve notice on the holders of such rights to appear at a hearing to be held before the Colville

Environmental Quality Commission (CEQC) not less than thirty (30) days after the mailing or

personal services of such notice and show cause why their rights should not be deemed void.

Such notice shall set forth the basis on which a determination of nonuse or abandonment is sought.

Such hearing shall be conducted in accordance with the procedures for contested cases set forth in

the Administrative Procedures Act, Chapter 2-4 and Chapter 4-23 of this Code. The

Administrator shall have the burden of proof by a preponderance of the evidence.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Loss by Adverse Possession, Prescription, Estoppel, or Acquiescence

No rights to use water may be acquired by adverse possession, prescription, estoppel or

acquiescence.

Outside Proceedings

No right granted under this Chapter may be reduced or taken or otherwise affected in any

22

(September 2010 version of Chapter 4-10)

4-10-320

4-10-321

4-19-322

4-10-323

4-10-324

4-10-325

4-10-326

4-10-327

4-10-360

procedure or determination or adjudication except as provided in this Chapter.

GENERAL HEARING PROVISIONS

Hearings and Notice of Hearings

Whenever not otherwise provided for in this Chapter hearings shall be held before the CEQC in

the manner provided for in Chapter 2-4 Administrative Procedures Act governing notice and

hearing, and Chapter 4-23 of the Colville Tribal Code. The CEQC shall be impaneled in

Conformance with Chapter 4-23 of the Colville Tribal Code.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Time and Place of Hearing

Whenever possible hearings shall be held in the affected District, at a time and place which is

convenient for a major portion of the parties affected.

Continuances

Continuance shall be granted by the Administrator or the CEQC, as the case may be, when

reasonably necessary to ensure adequate notice and opportunity to be heard. The granting of a

continuance under this section shall not necessarily continue any stay of an enforcement action by

the Administrator, and any continuance of any stay shall be evaluated in accordance with section

4-10-403 below.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

[Reserved]

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

[Reserved]

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Consolidation of Hearings

Whenever possible hearings concerning proposed or existing actions, in a particular RMU or area

shall be consolidated to prompt efficiency, minimize expense or hardship, and prevent duplication.

Recording

Whenever possible, hearing shall be recorded by mechanical means, provided, that any person

may provide at his own expense for stenographic record. Requirements for contested case hearings

and appeals before the CEQC are set forth in the Administrative Procedures Act.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Decision

Whenever a decision is required in accordance with the provisions of this Chapter following a

public hearing, the Administrator shall cause such decision to be published and served upon the

parties.

VIOLATIONS, ENFORCEMENT AND CIVIL PENALTIES

Civil Penalties

Any person or government agency who diverts and uses or withdraws any waters of the

Reservation without first having obtained a permit from the water administrator, or any person or

government agency who fails to follow or carry out any of the requirements or conditions as are

made part of such permit, or otherwise violates the provisions of this Chapter, is subject to a civil

penalty of up to $500 per day for each such violation, to be assessed proportionately to the

severity of the violation. In the case of non-payment, the Administrator may levy an additional

penalty of not more than $500 after 30 days of non-payment and may take all necessary steps to

ensure collection subject to the penalty appeal process as described in this subchapter. The

Administrator shall develop a schedule of penalties for violations of the various provisions of this

ore

(September 2010 version of Chapter 4-10)

4-10-361

4-10-362

4-10-363

4-10-364

4-10-365

4-10-400

4-10-402

4-10-402

Chapter, which is subject to approval of the Colville Business Council.

Notice of Violation

If the Water Administer determines that a person has violated a provision of this Chapter or any

conditions of an approved permit, he or she shall immediately issue a notice in writing describing

the nature of the violation including steps that must be taken to remedy the violation and the

amount of any civil penalty imposed, and serve the notice either by certified mail or personally on

the alleged violator.

Appeal

Any person incurring any penalty under this subchapter may appeal the same to the Commission

as set forth in the subchapter on Appeals. An appeal shall be filed within thirty (30) days after

receipt of a notice imposing any penalty. The penalty imposed shall become due and payable

thirty (30) days after receipt of the notice imposing the penalty unless an appeal is filed.

Whenever an appeal of any penalty incurred under this subchapter is filed, the penalty shall

become due and payable only upon completion of all review proceedings and the issuance of a

final order confirming the penalty in whole or in part.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Public Nuisance

If a civil penalty is imposed pursuant to the provisions of this subchapter and the person incurring

the penalty continues to operate a diversion or other such works or projects utilizing the waters of

the reservation without fully complying with the provisions of this Chapter, the diversion, its

works or projects are hereby declared a public nuisance and shall be subject to abatement as such.

Action to Collect Penalty

If the amount of any penalty is not paid within thirty (30) days after it becomes due and payable,

the Office of the Reservation Attorney, upon request of the Administrator, with concurrence of the

Director of the Environmental Trust Department, shall bring an action in the name of the

Confederated Tribes of the Colville Reservation in the Colville Tribal Court to recover such

penalty

Liability for Damages

Any person or governmental agency operating a diversion or using waters of the reservation

without a permit as required by this Chapter or in violation of any term of any permit issued

pursuant to this Chapter shall be liable in a civil action brought by the Colville Tribes in the

Colville Tribal Court for any damage the Tribes may incur because of the illegal action, including

any costs of monitoring, investigation, laboratory and any other fees which shall include attorneys

fees.

APPEALS FROM WATER ADMINISTRATOR ACTIONS

Filing

Any person subject to a final order of the Administrator may appeal such order to the Colville

Environmental Quality Commission (CEQC). An appeal is taken by filing with the Commission a

written notice of appeal specifying the grounds therefor. A notice of appeal shall be considered

filed with the CEQC when it is delivered to the Secretary of the CEQC at which time the date and

time of filing shall be entered on the notice by the Secretary.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Time For Filing

An appeal must be filed as provided in section 4-10-400 within thirty (30) days of the date of the

decision or order appealed from, or it shall be dismissed by the CEQC.

Transmittal of Record

Whenever an appeal is filed the Administrator shall transmit to the Secretary of the CEQC all

papers and other material constituting the records relating to the action appealed from to the

24

(September 2010 version of Chapter 4-10)

4-10-403

4-10-404

4-10-405

4-10-406

4-10-440

4-10-441

4-10-470

4-10-471

CEQC.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Stay

An appeal stays all actions by the Water Administrator seeking enforcement of or compliance with

the order or decision appealed from, unless the Administrator demonstrates to the CEQC that a

stay would , imminent peril to life or property. In that case, the Administrator’s action shall not be

stayed except by order of the CEQC or the Colville Tribal Court, issued upon application of the

party seeking the stay and due cause shown, after notice to the Administrator.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Decision

The CEQC shall make its decision within thirty 30) days after it receives written notice ofa

timely administrative appeal provided that the CEQC may reasonably extend the time for a

decision with the consent of the parties to the appeal or upon a finding of fact that such an

extension is necessary for proper consideration of the appeal.

Procedures

Any appeal filed pursuant to this section shall follow the procedures for contested cases under

sections 2-4-12 through 2-4-17 of Chapter 2-4, the Colville Administrative Procedure Act and

Chapter 4-23 of the Colville Tribal Code.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Finality

Every decision or order of the Water Administrator that is reviewable by the CEQC under section

4-10-400 shall not be considered a final order or decision subject to judicial review. Exhaustion of

all available administrative remedies, including any administrative appellate review, is a

jurisdictional requirement to judicial review.

JUDICIAL REVIEW

Decisions Subject to Review

Any party to a decision of the CECQ arising under this Chapter may obtain review by the Colville

Tribal Court by filing a timely petition for review pursuant to the procedure set forth in section 2-

4-20 of Chapter 2-4, the Colville Administrative Procedure Act and Chapter 4-23 of the Colville

Tribal Code. The petition for review shall briefly set forth that portion of the decision appealed

from, the statutory reference(s) relied upon to support the relief requested and which standard of

review set forth in CTC 2-4-20(g) provides the basis for the petition.

(Amended 9/2/10, Certified 9/9/10, Resolution 2010-624)

Contents of Petition

The petition for review shall briefly set forth that portion of the decision appealed from, the

statutory reference(s) relied upon to support the relief requested and which standard of review set

forth in CTC § 2-4-20(g) provides the basis for the petition.

PROHIBITED ACTS

Waste of Water Prohibited

No waters of the Colville Reservation shall be wasted, including those that have been withdrawn,

diverted or otherwise used in compliance with this Chapter. The diversion or withdrawal of

reasonable quantities of water in connection with construction, development, testing or repair of

diversion and withdrawal works shall not be construed as waste. In the event of inadvertent loss

of water owing to defects in equipment for diversion and withdrawals, such shall not be construed

a waste if reasonable diligence is shown by the permittee in effecting necessary repair.

Additional] Penalties

In addition to the penalties imposed under section 4-10-360, violations of this subchapter shall

subject the person(s) or entity(ies) responsible to forfeiture of all rights to water administered

under this Chapter.

The Administrator shall develop a schedule of penalties for all violations of this Chapter, subject

25

(September 2010 version of Chapter 4-10)

4-10-474

4-10-500

4-10-501

4-10-502

4-10-503

4-10-504

4-10-505

4-10-540

to approval of the Colville Business Council.

Overstatement of Use

Any person or entity who shall willingly, when providing information required by this Chapter,

with respect to Descriptions of Use and Applications for Permits or otherwise, misstate material

facts, shall be liable for a civil offense and subject to forfeiture of all rights thereunder, and to a

fine not more than $500.00.

MISCELLANEOUS PROVISIONS

Severability

If any provision of this Chapter or the application thereof to any person or circumstance is held

invalid, the remaining provisions of this Chapter shall be given effect to the maximum extent

possible without the invalid provision or application.

Construction

Doubtful provisions or applications of this Chapter shall be reasonably construed so as to give

effect to its purposes.

Rules and Regulations

The Administrator is authorized and directed to adopt such rules and regulations as he or she

deems necessary to implement the objectives and purposes of this Chapter. Such rules and

regulations shall not be valid until they have been submitted to and approved by the Colville

Business.

Review of Authority

The Administrator shall, from time to time, review the authority granted under this Chapter and

propose amendments and additions hereto to the Colville Business Council in order to improve

administration under this Chapter.

Optional Charge

The time limits provided in various places of this Chapter may be extended, for good cause

shown, by the agency before whom the proceeding is pending when the ends of justice so require.

Time limitations established in other Chapters, including but not limited to the Administrative

Procedures Act, may only be modified in accordance with the provisions of the other Chapters.

Representation

Parties appearing at hearings and other proceedings provided for in this Chapter may be

represented by legal counsel if they desire.

4-10-506 through 4-10-539 [RESERVED]

PARTICIPATION BY THE DEPARTMENT OF THE INTERIOR

Enforcement Assistance

The Administrator or Director of Environmental Trust may seek funding support and technical and

staff assistance from the Department of Interior in the administration and enforcement of this

Chapter and permits issued hereunder.

(Chapter 4-10 Amended 6/15/06, Certified 6/19/06, Resolution 2006-301)

(Chapter 4-10 Adopted 5/17/90, Resolution 1990-306)

26

(September 2010 version of Chapter 4-10)