AQUATIC LANDS CONSERVATION ORDINANCE

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OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES;

(December 5, 1986)

TABLE OF CONTENTS

Part I. Short Title and Authority

Section 1. Short Title

Section 2. Authority

Part II Findings And Policy

Section 1 Findings

Section 2 Policy

Part III General Provision

Section 1 Definitions

Section 2 Administration

Section 3 Water Rights

Section 4 Regulations

3-5

Part IV Permits

Section 1 Permits Required

Section 2 Permit Fees

Section 3 Application for Permits

Section 4 Evaluation of Proposed Projects

Section 5 Emergencies

Section 6 Modification or Revocation of Permits

Part V Enforcement

Section 1 Inspection

Section 2 Projects in Non-compliance

Part VI Review, Severability, Effective Date

Section 1 Administration

Section 2 Judicial Review

Section 3 Severability

Section 4 Effective Date

Certification

Ordinance No.87-A

AQUATIC LANDS CONSERVATION ORDINANCE

BE IT ENACTED BY THE COUNCIL OF THE CONFEDERATED SALISH AND

KOOTENAI TRIBES THAT:

PART I

SHORT TITLE, AUTHORITY

Section 1. Short Title.

This Ordinance may be referred to as the Aquatic Lands

Conservation Ordinance or "ALCO".

Section 2. Authority.

This Ordinance is enacted pursuant to the Constitution of the

Confederated Salish and Kootenai Tribes of the Flathead Reservation,

Article VI, Section 1, Subsections (a), (1), (n), (t) and (u),

approved by the Secretary of the Interior, October 28,1935.

PART II

FINDINGS AND POLICY

Section 1. Findings.

The Tribal Council finds that:

a. The self-governing capabilities, political integrity, health

and welfare, and economic security of the Tribes will be

protected and enhanced by Tribal governmental control,

regulation, and protection of aquatic lands which are critical

for the perpetuation of Reservation fisheries and wildlife,

the preservation of Reservation water quality, and the

maintenance of the health, safety and welfare of Tribal

members and thereby of all persons residing on the

Reservation.

b. The Treaty of Hellgate July 16, 1855 (12 Stat. 975) reserved

to the Confederated Salish and Kootenai Tribes (hereinafter

the “Tribes”) the exclusive right to hunt and take fish within

the exterior boundaries of the Flathead Reservation. The

exclusive Treaty right to hunt and fish within the Reservation

confers upon the Tribes the right, duty and responsibility to

protect those Tribal interests.

c. Reservation population growth and increased unregulated

utilization of aquatic lands are causing adverse impacts upon

the quality of Reservation waters, fisheries and wildlife

habitat, and therefore, there exists an immediate need to

regulate and manage the use of aquatic lands to preserve and

protect them.

Section 2. Policy.

It is the policy of the Tribal Council to prevent the degradation of

Reservation waters and aquatic lands by regulating construction or

installation of projects upon aquatic lands whenever such project

may cause erosion, sedimentation, or other disturbances adversely

affecting the quality of Reservation waters and aquatic lands.

PART III

GENERAL PROVISIONS

Section 1. Definitions.

For the purposes of this Ordinance the following definitions will

apply:

a. “Adjacent” means bordering, contiguous or neighboring,

Wetlands separated from other Reservation waters by man-made

dikes or barriers, natural river berms and the like are

"adjacent wetlands."

b.”Administrator" means the chief executive officer of the

Shoreline Protection Office of the Confederated Salish and

Kootenai Tribes.

c."Aquatic Lands" means all land below the mean annual high

water mark of a Reservation water body.

d."Board" means the Shoreline Protection Board of the

Confederated Salish and Kootenai Tribes.

e."Discharge of dredged material" means any addition or

placement of dredged materials into Reservation water's or on

aquatic lands whether through direct placement or by

secondary means such as run-off, slumping or overflow from a

disposal site.

f. "Discharge of fill material" means any addition or placement

of fill materials into Reservation waters or onto aquatic

lands.

g."Dredged material,” means material that is excavated,

displaced, or removed from aquatic lands.

h. "Fill material" means any material used for the purpose of

replacing Reservation waters with dry land or dredged

material.

i."Mean Annual High Water Mark" means that line on the shore of

Reservation waters established by the fluctuations of water

and indicated by physical characteristics such as a clear

naturally occurring line impressed on the bank; shelving

changes in the character of soil, paucity or lack of

terrestrial vegetation, or the presence of water borne

litter or debris.

j."Office" means the Shoreline Protection Office of the

Confederated Salish and Kootenai Tribes.

k."Person" means any individual, partnership, association,

corporation, and any other entity composed of individuals, and

governmental entities.

l."Project" means a physical alteration of aquatic lands,

wetlands, or Reservation waters, not otherwise exempted by

this Ordinance or implementing regulations, which has the

potential to cause a material change in the condition of

such lands or water in contravention of the policy of this

Ordinance, and includes but is not limited to dredging,

filling, unregulated access detrimental to aquatic lands,

irrigation diversions and returns, drainage ditches and

construction on aquatic lands, and furthermore, includes

maintenance or repair involving any of the above activities.

m."Reservation waters" means:

(1) All naturally occurring bodies of water with the

exterior boundaries of the Reservation regardless of

alteration by man, including but not limited to lakes,

rivers, streams (including intermittent streams)

mudflats, wetlands, sloughs, potholes and ponds from

which fish and wildlife are or could be taken, but does

not include wholly manmade water bodies.

(2) Tributaries of waters identified in subpart (1) above;

(3) Wetlands adjacent to Reservation waters.

n."Responsible person" means any person who undertakes a

project or causes a project to be undertaken on aquatic

lands.

o."Tribal Council" means the duly elected governing body of the

Confederated Salish and Kootenai Tribes of the Flathead

Reservation, Montana.

p."Wetlands" means those areas that are inundated or saturated

by surface or groundwater at a frequency and duration

sufficient to support, and that under normal circumstances

do support, a prevalence of vegetation typically adapted for

life in saturated soil conditions. Wetlands generally

include but are not limited to swamp, marshes, bogs and

similar areas.

Section 2. Administration.

The Shoreline Protection Board of the Tribes, as created by

Ordinance 64A (Revised), shall have the powers and duties associated

with implementation of this Ordinance and any regulations

promulgated hereunder. The rights, responsibilities and immunities

of the Board, and the Tribal Council, as specified in Ordinance 64A

(Revised) remain unchanged.

Section 3.

Water Rights.

This Ordinance shall not be construed to diminish or divest any

existing water uses established in accord with applicable law.

Section 4.

Regulations.

The Tribal Council may promulgate regulations to implement the

provisions of this Ordinance upon recommendation of the Board.

Regulations shall be promulgated pursuant to procedures contained in

the Tribal Administrative Procedures Ordinance.

PART IV

PERMITS

Section 1.

Permit Required.

a. No work may commence on a project until the responsible

person has been issued a permit for the project.

b. All work on a project shall be conducted pursuant to the

terms and conditions of the project permit.

c. A permit shall be prominently displayed at the project site

for the duration of construction activities and for two

weeks thereafter.

Section 2.

Permit Fees.

An application for a permit shall be accompanied by payment of a

non-refundable fee to cover some costs associated with permit

issuance and administration. The amount of the fee shall be fixed

from time to time by regulation, shall take into account the scope

of the proposal, and shall be reasonable.

Section 3. Application for Permit.

a. Any person who intends to undertake a project shall present a

written application for the project to the Office.

b. The application shall be on a form provided by the Office and

shall include, but is not limited to, a location map, a

specific description of the proposed project, the purpose and

need for the project, practical alternative methods of

implementing the project, and a plan specifying the type,

quantity and source of materials to be used, means of access

to the project area, the length of time necessary to complete

the project, and the name, address and telephone number of the

responsible person.

Section 4. Evaluation of Proposed Projects.

a. The Administrator of the Office shall review an application

for a permit for adequacy and for project technical

feasibility, shall determine if the proposal constitutes a

project, and may make such on-site investigations as are

necessary to perform these duties.

b. If the Administrator determines that the proposal is not a

project the Administrator shall so state in a written notice

to the person responsible for the project within 14 days of

receipt of the application.

c. If the Administrator determines that the proposal is for

project, the Administrator shall bring the application before

the Board at the next regularly scheduled. Board meeting or

may call a special Board meeting if circumstances so require.

d. The Board shall review all applications. The Board

shall

either approve, approve with modifications or alternatives, or

disapprove an application and shall state its decision in

writing to the responsible person.

e. Upon approval or upon approval with modification or

alternatives, the Administrator shall forward to the

responsible person a permit which shall relate to the plan for

the project approved by the Board, and which may include

provisions for mitigation of adverse impacts associated with

the project.

Section 5. Emergencies.

a. The provisions of this Section do not apply to emergency

actions which are necessary to safeguard life or property

during periods of immediate and substantial endangerment to

life or property. The responsible person under this Section

shall notify the Office in writing of the emergency

undertaking within fifteen (15) days of commencement of such

undertaking.

b. The Administrator shall make an on-site inspection of an

action and cause a written report of such observations to be

filed in with the Office and a copy shall be sent to the

responsible person. The report shall include:

(1) A finding as to whether or not an emergency situation

existed at the time the action was taken.

(2) A finding as to whether or not the action constitutes a

project and

(3) If the findings required in subparagraphs (1) and (2)

above are affirmative, and a permanent solution is

feasible, recommend in writing that the responsible

person put the solution into effect within a specified

reasonable amount of time pursuant to a duly issued

permit. Failure of the responsible person to put the

solution into effect is not a violation of this Section

unless a substantially similar action arises from such

failure to act.

Section 6. Modification or Revocation of Permit.

The Board may, upon a finding of non-compliance or upon a finding of

necessity, either modify or revoke a permit after the responsible

person has been afforded notice and an opportunity to be heard.

PART V

ENFORCEMENT

Section 1. Inspection.

The Administrator or his duly authorized agent may inspect any

project for the purpose of determining compliance with this

Ordinance, its implementing regulations, or permit terms and

conditions.

Section 2. Projects in Non-compliance.

a. Except for emergency actions, a project engaged in by any

person without a valid permit or in non-compliance with the

terms of a valid permit shall be subject to proceedings

brought by the Administrator for immediate abatement of a

public nuisance.

b. Upon a finding that a non-complying project constitutes a

public nuisance the Tribal Court may penalize the responsible

person in an amount not less than twenty five ($25) dollars or

more than five hundred ($500) dollars for each day that the

responsible person continues to engage in or maintains a

non-conforming project at, in, or on aquatic lands.

c. In addition to any financial penalty imposed, the responsible

person may be ordered by the Court to restore at his own

expense the damaged lands and waters within such time as the

Court may deem reasonable.

PART VI

REVIEW, SEVERABILITY, EFFECTIVE DATE

Section 1. Administrative Appeal of Board Action.

A person aggrieved by a final action of the Administrator or the

Board may seek review of such action pursuant to procedures

contained in the Tribal Administrative Procedures Ordinance

Ordinance 86A. For purposes of administrative review a decision of

the Board shall constitute final agency actions appealable to an

administrative law judge.

Section 2. Judicial Review.

a. The Tribal Court of the Confederated Salish and Kootenai

Tribe shall have jurisdiction to hear and decide all causes

arising under this Ordinance and implementing regulations and

to hear appeals from agency actions upon exhaustion of

administrative remedies.

b. The decision of the Tribal Court shall be final.

Section 3. Severability.

If any provision of this Ordinance or the applicability thereof is

held invalid by any court of competent jurisdiction, the remainder

of this Ordinance shall not be affected thereby.

Section 4. Effective Date.

This Ordinance shall become effective, pursuant to the terms

of Article VI, Section 2 of the Tribes Constitution, upon

promulgation of implementing regulations by the Tribes.

CERTIFICATION

The foregoing ordinance was adopted by the Tribal Council on December

13, 1985, with a vote of 9 for and 0 opposed, and 0 not voting,

pursuant to the authority vested in it by Article VI, Sections 1(a),

(1), (n), (t) and (u) of the Tribes Constitution and Bylaws, said

Constitution adopted and approved under Section 16 of the Act of June

18, 1934, (48 Stat. 984), as amended.

Chairman, Tribal Council

Attest:

Executive Secretary

APPROVAL:

Title:

Bureau of Indian Affairs

Date:

APPROVED:

Superintendent

Received Office of

Superintendent

FINAL

REGULATIONS

FOR THE

AQUATIC LANDS CONSERVATION ORDINANCE

OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES;

(December 5, 1986)

TABLE OF CONTENTS

PART I. GENERAL PROVISIONS

Section 1.1 Authority. ...............

Section 1.2 Severability ..............

Section 1.3 Other Law. ...............

Section 1.4 Definitions. ..............

11-13

PART II. PERMIT ADMINISTRATION

Section 2.1 Application Procedures .........

Section 2.2 Application Review ...........

Section 2.3 Public Hearings. ............

13-14

PART III. PROJECT REVIEW CRITERIA

Section 3.1 Preliminary Review ...........

Section 3.2 Record Maintenance ...........

Section 3.3 Exempted Activities. ..........

Section 3.4 Standard of Review . . . . ... . . ....

Section 3.5 Impacts Upon Fish, Wildlife and Plants .

Section 3 6 Construction Activities

(a) General Requirements. .......

(b) Specific Requirements .......

Section 3.7 Variances. ......:.........

Section 3.8 Supplemental Review Criteria ......

15-19

PART IV. EMERGENCY SITUATIONS

Section 4.1 Emergency. ...............

Section 4.2 Notification of Emergency Action ....

Section 4.3 Review of Emergency Action . .... . . .

PART V. ENFORCEMENT

Section 5.1 violations ...............

Section 5.2 Notice of Non-Compliance ........

Section 5.3 Answer ..................

Section 5.4 Contested Cases. ............

Section 5.5 Penalties. ...............

Section 5.6 Actions to Enforce ...........

Section 5.7 Revocation of Permit and Restoration of

Permit Area. ..............

Section 5.8 Failure to Comply With an Order to Remove

Section 5.9 Fines. .................

REGULATIONS FOR

AQUATIC LANDS CONSERVATION ORDINANCE

PART I.

GENERAL PROVISIONS

Section 1.1 Authority.

These regulations are adopted under authority of Ordinance 87A of

the Confederated Salish and Kootenai Tribes, the Aquatic Lands

Conservation Ordinance.

Section 1.2 Severability.

If any word, phrase, clause, sentence, paragraph, section, or other

part of these regulations is held invalid by the Tribal Court of the

Confederated Salish and Kootenai Tribes, such judgment shall affect

only that portion held invalid.

Section 1.3 Other Law

These regulations in no manner supersede or negate the necessity of

obtaining other permits as may be required by federal or Tribal

agencies with jurisdiction over a project. Where any provision of

these regulations imposes more stringent regulations, requirements

or limitations than imposed or required by 'any other applicable

regulation, resolution, ordinance or statute, these regulations

shall govern.

Section 1.4 Definitions.

a.“Adjacent" means bordering, contiguous or neighboring Wetlands

separated from other Reservation waters by man-made dikes or

barriers, natural river berms and the like are "adjacent

wetlands."

b."Administrator" means the chief executive officer of the

Shoreline Protection Office of the Confederated Salish and

Kootenai Tribes.

c. "Aquatic environment" means Reservation waters, aquatic lands,

wetlands, and fish, wildlife and plant life existent in or

dependent upon such lands and waters.

d. "Aquatic lands" means all land below the mean annual high water

mark of a Reservation water body.

e. "Board" means the Shoreline Protection Board of the

Confederated Salish and Kootenai Tribes.

f. "Discharge of dredged material" means any addition or placement

of dredged materials into Reservation waters or on aquatic lands

whether through direct placement, or by secondary means such as

run-off, slumping or overflow from a disposal site.

g. "Discharge of fill material" means any addition or placement of

fill materials into Reservation waters or onto aquatic lands.

h. "Dredged material" means material that is excavated, displaced,

or removed from aquatic lands.

i."Fill material" means any material used for the purpose of

replacing Reservation waters with dry land or dredged material.

j. "Mean Annual High Water Mark" means that line on the shore of

Reservation waters established by the fluctuations of water and

indicated by physical characteristics such as a clear, naturally

occurring line impressed on the bank; shelving changes in the

character of soil; paucity or lack of terrestrial vegetation; or

the presence of water borne litter or debris.

k."Mitigate" or "Mitigation" includes:

(a)Precluding the impact altogether by not taking a certain

action or parts of an action.

(b)Minimizing impacts by limiting the degree or magnitude of the

action and its implementation.

restoring the impacted environment.

(d) Reducing or eliminating the impact over time by preservation

and maintenance operations during the life of the action.

(e) Compensating for the impact by replacing or providing

substitute resources or environments.

l."Office" means the Shoreline Protection Office of the

Confederated Salish and Kootenai Tribes.

m. "Person" means any individual, partnership, association,

corporation, and any other entity composed of individuals, and

governmental entities.

n."Project" means a physical alteration of aquatic lands, wetlands,

or Reservation waters, not otherwise exempted by this Ordinance

or implementing regulations, which has the potential to cause a

material change in the condition of such lands or water in

contravention of the policy of this Ordinance, and includes but

is not limited to dredging, filling, unregulated access

detrimental to aquatic lands, irrigation diversions and returns,

drainage ditches, and construction on aquatic lands, and

furthermore, includes maintenance or repair involving any of the

above activities.

o."Reservation waters" means:

(1) All naturally occurring bodies of water within the exterior

boundaries of the Reservation regardless of alteration by

man, including but not limited to lakes, rivers, streams

(including intermittent streams), mudflats, wetlands,

sloughs, potholes and ponds from which fish and wildlife

are or could be taken, but does not include wholly manmade

water bodies.

(2) Tributaries or waters identified in subpart (1) above.

(3) Wetlands adjacent to Reservation waters.

p."Responsible person" means any person who undertakes a project or

causes a project to be undertaken on aquatic lands.

q. "Tribal Council" means the duly elected governing body of the

Confederated Salish and Kootenai Tribes of the Flathead

Reservation, Montana.

r. "Wetlands" means those areas that are inundated or saturated by

surface or groundwater at a frequency and duration sufficient to

support, and that under normal circumstances do support, a

prevalence of vegetation typically adapted for life in saturated

soil conditions. Wetlands generally include but are not limited

to swamps, marshes, bogs and similar areas.

PART II.

PERMIT ADMINISTRATION

Section 2.1 Application Procedures.

a. The responsible person for a project shall submit a written

application and plan for a proposed project to the Office on a

form provided by the Office. Such plan shall contain, at a

minimum, the following information:

(1) Name, address and telephone number of the applicant.

(2) A location map for the proposed project.

(3) A specific description of the proposed project, including:

(A) Need for the proposed project.

(B) Types and extent of construction activities involved.

to be utilized.

(D) A description of the types of vehicles and

construction equipment to be used in construction of

the project.

(E) Methods of ingress and egress to the proposed project

and frequency of crossing or entry into Reservation

waters and aquatic lands.

(F) A time frame for initiation and completion of the

project and any seasonal constraints imposed upon

construction.

(G) Plans to minimize or preclude adverse environmental

impacts from the proposed project in conformity with

these regulations. The Administrator may request of the

applicant any additional information necessary to

clarify or evaluate information contained in an

application. In the event that additional information

is requested from the responsible person the time

constraints specified in this Part shall not commence

until such time as the responsible person submits the

requested information in writing to the Office.

b. An application fee of twenty-five dollars ($25) will be charged

upon submission to the Administrator of a completed application.

Section 2.2 Application Review.

a. The Administrator shall review an application for a project,

conduct the necessary research, investigation, and consultation

to satisfy the requirements of these regulations and elicit

additional technical assistance to aid his review. The applicant

may participate in study and investigation of an application.

b. The Administrator shall review an application within fourteen

(14) days of receipt of such proposal and shall determine if the

proposed activity constitutes a project pursuant to guidelines

contained in these regulations.

c. (1) If the Administrator determines that the proposal is not a

project, the Administrator shall send a written finding of

"no project" to the applicant within fourteen (14) days of

receipt of an application.

(2) Should the applicant, upon receipt of a written finding of

“no project”, commence implementation and subsequently

determine that the activity will require a change from the

original proposal submitted to the Office he shall stop work

and immediately submit an amended application. An amended

application shall be processed as a new application.

d. If the Administrator does not make a finding of “no project" he

shall bring the application, together with all comments from

scientific and technical staff with expertise in the matters

involved, before the Board at the next regularly scheduled Board

meeting or if the circumstances so merit, may request a special

meeting of the Board. Within thirty (30) days of submission of a

complete application and supporting scientific and technical

information to the Board for review by the Administrator, the

Board may approve, disapprove, or approve with modification or

alternatives, an application. The Board shall either issue a

permit or state its reasons for denial of a permit in writing to

the applicant.

e. The Board may, upon written notice to an applicant extend the

time limitations contained in this Section for an additional

forty five (45) days upon a determination that the time provided

is insufficient to carry out consultation and technical review of

an application.

f. No work on a project may commence unless the Board has issued a

permit for the project.

Section 2.3 Public Hearings.

a. The Board may direct the Administrator to conduct a public

hearing for the purpose of soliciting comment relative to an

application that has the potential to cause substantial adverse

impacts to the aquatic environment or if the application is for a

project that has the potential to adversely affect the public or

if the application is for a project without precedent.

b. If the Board finds that a public hearing is necessary it will

direct the Administrator to conduct a hearing. The Administrator

shall then cause a public notice to be published in at least two

newspapers of general circulation within the Reservation once a

week for two weeks prior to the hearing. At the hearing the

Administrator shall explain the application. Any member of the

public may present oral or written comment at the hearing.

Comments shall be compiled by the Administrator for review by the

Board at the next scheduled Board meeting.

c. If a public hearing is called, time frames for review of an

application contained in the Ordinance and these regulations

shall be held in abeyance from the date the Board calls for such

hearing until such time as the Board is presented with the

compilation of public comments.

PART III.

PROJECT REVIEW CRITERIA

Section 3.1 Preliminary Review.

The Administrator shall initially review proposals for projects for

satisfactory compliance with the terms and conditions of these

regulations. Should the Administrator determine that the

application is deficient or in need of further information he shall

then notify the responsible person of such deficiencies in writing,

and inform him or her of the additional information that will be

necessary to bring the application into compliance.

Section 3.2 Record Maintenance.

The Administrator shall maintain a record of all correspondence,

consultation, conferences, scientific and technical findings, and

Board meetings relative to each application.

Section 3.3 Exempted Activities.

The following activities, when conducted in such a manner as to

minimize or preclude adversely impacting the natural or existent

condition of Reservation waters and aquatic lands shall not

constitute a project for which a permit is required.

a. Regular operation and maintenance of an existing project that

involves no pollutants, toxins, dredging, filling, excavation

or other similar agents or activities.

b. Environmentally sound agricultural practices of cropping,

cultivation or grazing.

Section 3.4.Standard of Review.

The Board shall deny a permit if it finds, after consideration of

applicable mitigation measures, that a proposed project fails to

minimize or preclude potential adverse impacts to the aquatic

environment.

Section 3.5 Impacts Upon Fish Wildlife and Plants.

The following list of considerations shall be evaluated by the

Administrator, in consultation with scientific and technical

staff, in determining if an application constitutes a project and

by the Board in determining whether to disapprove, approve, or

approve with modifications or alternatives, an application brought

before it. Such evaluation will address the immediate impacts

reasonably foreseeable long-term impacts, and cumulative impacts of

the proposed project on:

1. Fish, wildlife, and plant life of any dredge or fill

activities on aquatic lands.

2. Fish, wildlife, and plant life of construction upon aquatic

lands.

3. Changes to, or creation of, flow patterns, currents,

turbidity, and volume of Reservation waters resulting from

construction of the proposed project.

4. Disruptions of life cycles, seasonal uses, and populations of

fish, wildlife, and plant life existent on or in or dependant

upon aquatic lands.

Section 3.6 Construction Activities.

a. General Requirements. The following list of considerations will

be evaluated by the Administrator, in consultation with

scientific and technical staff, in determining if an application

constitutes a project and by the Board in determining whether to

disapprove, approve, or approve with modifications or

alterations, an application brought before it. Such evaluation

will address the immediate impacts, any reasonably foreseeable

longterm impacts, and cumulative impacts as follows:

1. The proposed project will be designed and constructed in such

a manner as to provide for the smallest, least obtrusive

structure that will satisfy the stated need for the project.

2. All construction activities shall be accomplished in such a

manner as to minimize or preclude adverse impacts on the

human and natural environment.

3. If the application is for a permanent structure it shall be

designed and constructed in such a manner as assure

permanence.

4. The project will pass reasonably anticipated water flows

currents or fluctuations in surface elevation without

creating erosional situations upstream, downstream or on the

project location.

5. The project will minimize or preclude adverse impacts upon

fish, wildlife and plants existent in or dependent upon

Reservation waters and aquatic lands.

6. The project will minimize or preclude adverse impacts of

turbidity or other water quality problems.

7. The project will be constructed in such a manner as to

minimize or preclude use of gravels and other materials

constituting aquatic lands as construction or fill material,

and further, that such materials are to the extent possible

left in an undisturbed condition during the course of

construction and during the life of the project.

b. Specific Requirements. In furtherance of the concerns and

considerations discussed in Subsection (a) above, the following

list of construction regulations will apply:

1. Wetlands shall not be filled, dredged, drained or otherwise

impacted unless no feasible alternative exists and such

action, after consideration of all relevant factors, is

necessary for the completion of a project that has been

determined by the Board to satisfy all other requirements of

these regulations.

2. No construction equipment shall be operated below the

existing water surface without specific authorization

contained in a permit.

3. All temporary methods of ingress and egress crossings, bridge

supports, cofferdams, culverts or other structures that will

be needed during the period of construction shall be designed

to satisfactory pass and withstand high water conditions and

to minimize or preclude siltation, turbidity and the

introduction or reactivation of pollutants or toxic

substances into Reservation waters. All such temporary

structures shall be removed upon conclusion of construction

and the affected areas shall be restored to their

preconstruction condition, subject to any conditions placed

upon restoration during the permitting process.

4. All technically feasible steps shall be taken to minimize or

preclude removal, relocation, siltation or other adverse

impacts to aquatic lands.

5. Heavy equipment used in construction of projects or portions

thereof, when occurring in or on wetlands, shall be placed on

industrial strength mats to minimize or preclude adverse

impacts to such wetlands if required by the terms of a

permit.

6. Construction of roads, bridges, culverts, and similar methods

of crossing or channeling Reservation waters and aquatic

lands, shall be designed and constructed in such a manner as

to allow free and unrestricted passage of flowing waters and

to accommodate and interfere to the least degree technically

possible with any current or bed load patterns or erosional

and depositional characteristics of Reservation waters at or

near the project location. Such structures will be designed

and constructed so as to cause the least change in sediment

load and turbidity of Reservation waters and to minimize or

preclude adverse impacts to aquatic lands.

7. Riprap of banks and shorelines will be allowed upon a showing

of no or minimal adverse impact to riparian lands, aquatic

lands, and Reservation waters due to changes in velocity

sediment load, current and wave pattern or channel

readjustment, and then only as a last alternative solution to

resolve the matter the proposed project has been formulated

to address.

8. Diversions to obtain water for agricultural purposes shall be

designed and constructed in such a manner as to minimize or

preclude adverse impacts to aquatic lands. Furthermore,

diversions shall be constructed in such a manner as to

minimize or preclude loss of fish from the source waters.

Diversions may involve, depending upon technical feasibility,

screening of open diversions, construction of a return flow

structure of sufficient quality to provide an avenue for fish

that enter an open diversion to return to the source water in

a healthy condition, or pumping in lieu of open diversion.

9. Use of explosives in or near Reservation waters or aquatic

lands shall be evaluated on a case by case basis and shall

take into account alternatives to blasting, the impact upon

resident fish, wildlife or plants, and any special seasonal

requirements such as spawning or nesting.

10. Creation of impoundments may be permitted if the impacts to

flora and fauna, Reservation waters and aquatic lands is

otherwise acceptable under these regulations and such

impoundment is the only technically feasible method to

achieve the purposes of the project.

11. Scientific devices such as staff gauges, recording devices

and fish weirs will necessitate application to the Office

prior to commencing placement.

12. Pipelines and other similar structures either buried or

placed above ground shall be constructed in such a manner as

to preclude the potential for leakage of the transported

substance into or on Reservation waters and aquatic lands and

shall be built to incorporate the highest degree of

technologically available safety and environmental standards.

13. Power lines, utility lines, guy lines and similar

structures shall be located as to incorporate the most direct

and fewest number of crossings over or under Reservation

waters and aquatic lands so as to minimize or preclude

interference or other disturbance or destruction of flyways

for avian species and to minimize or preclude the potential

for adverse impacts upon the natural, scenic, and esthetic

values of Reservation waters and aquatic lands;

14. Docks, weirs, breakwaters, jetties and similar structures not

otherwise subject to regulation under Ordinance 64A (Revised)

of the Confederated Salish and Kootenai Tribes, the

Shoreline Protection Ordinance, shall be constructed in such

a manner as to minimize or preclude interference with

navigation, fish, wildlife and plant life cycles and habitat,

natural and scenic values, existent water flow patterns and

sediment loads, public health, and property interests.

Section 3.7 Variances.

The Board may grant variances from these regulations upon the motion

of the Applicant when it is presented with clear and convincing

evidence that due to unusual circumstances a strict enforcement of

these regulations would result in undue hardship and the Board

determines that no reasonable alternatives exist to meet the

standards herein.

Section 3.8 Supplemental Review Criteria.

The Administrator or the Board may, in furtherance of review of an

application, utilize project criteria contained in either the

Technical Guide for Statewide Standards and Specifications of the

Soil Conservation Service or Fact Sheets of the Army Corps of

Engineers that outline compliance with the Clean Water Act and

related federal law.

PART IV

EMERGENCY SITUATIONS

Section 4.1 Emergency.

The provisions of this Part apply to emergency situations, which are

defined as an unforeseeable circumstance not of the, responsible

person's making or cause that poses an immediate and substantial

endangerment to life or property of the person and in response to

which the person undertakes an action otherwise subject to these

regulations and Ordinance SPA on aquatic lands without a permit.

Section 4.2 Notification of Emergency Action.

A person who engages in an activity otherwise subject to the

permitting requirements of these regulations under a claim of

emergency without first obtaining a permit shall notify the Office

in writing within 15 days of such undertaking. The notification

shall include the following information:

1. Name, address and telephone number of the responsible person.

2. A map showing the location of the action taken.

3. The circumstances that precipitated the emergency action.

4. A description of the action taken, including type of action,

materials used, size of action, and affected lands and waters.

5. The responsible person's determination of whether or not the

action taken will constitute a permanent solution.

6. An application for a project if the responsible person deems

further work is necessary to either permanently resolve the

problem or stabilize the action taken under this Part.

Section 4.3 Review of Emergency Action.

Upon receipt of a notice of emergency action the Administrator shall

conduct an on-site investigation of the claimed emergency action and

compile a written report within ten (10) days from the date of such

inspection. Such report will include the following information, and

any additional information deemed necessary by the Administrator:

1. A finding of whether or not an emergency situation existed at

the time the action was taken, supported by relevant facts and

evidence.

2. A finding of whether or not the action engaged in under a

claim of emergency would constitute a project.

3. If the action constitutes both an emergency and a project and

a permanent solution is feasible, recommend that the

responsible person put the solution into effect within a

specified reasonable amount of time pursuant to a duly issued

permit. Failure of the responsible person to put the solution

into effect is not a violation of this Part unless a similar

subsequent emergency action results from such failure to act.

4. If the action taken is determined to constitute a project and

there is a finding made of no emergency, the Administrator

shall issue a Notice of Non-Compliance for a project in noncompliance with Ordinance 87A.

PART V

ENFORCEMENT

Section 5.1 Violations.

The following actions shall constitute an act of non-compliance with

these regulations and Ordinance 87A:

1. Commencement or initiation of a project without the

responsible person first obtaining a permit.

2. Continuation of work on an unpermitted project by any person.

3. Failure to comply with the terms or conditions or a permit.

4. Failure to comply with the terms and conditions of Ordinance

87A and these regulations.

5. Failure to comply with orders of the Board.

Section 5.2 Notice of Non-compliance.

a. When the Administrator has reason to believe that a violation of

Ordinance 87A, these regulations, or any permit or order issued

pursuant thereto has occurred, he shall issue a Notice of NonCompliance. A Notice of Non-Compliance shall serve as a summons

and compliant for purposes of the violation.

b. A Notice of Non-Compliance shall advise the person to whom issued

of the following information:

(1) there may exist an opportunity to cure alleged acts of

non-compliance, and if so, the method and time for cure.

(2) that an Answer to the Notice must be made in writing and

received by the Office within fifteen days of receipt of a

Notice.

(3) the consequences of failing to Answer.

(4) the nature of each alleged violation.

(5) the type and amount of any fine or penalty that may be

assessed for each alleged violation.

(6) the date and place at which a hearing on each alleged

violation will be held, if not cured, which shall not be

less than thirty (30) days nor more than sixty (60) days

after the date of issuance of a Notice.

c. A Notice of Non-Compliance shall be served either personally or

by registered or certified mail.

Section 5.3 Answer.

a. A person to whom a Notice of Non-Compliance has been issued shall

answer within fifteen (15) days of the date of receipt of the

Notice of Non-Compliance. Answer shall be made by mail and may be

accompanied by a personal appearance before the Board or its

designated agent.

b. An Answer shall admit or deny the violation, raise all

affirmative defenses, and state whether or not the person in noncompliance will undertake curative measures, if any, specified in

the Notice of Non-Compliance.

c. If an Answer states that a person will undertake curative

measures that may be specified in the Notice, the hearing

scheduled in the Notice may be held in abeyance for a reasonable

amount of time to enable the curative measures to be completed.

If curative measures are completed in a reasonable amount of time

and to the satisfaction of the Administrator the hearing may be

cancelled at the discretion of the Administrator. Satisfactory

completion of curative measures does not obviate imposition of

other fines or penalties if a reasonable basis exists for their

imposition.

Section 5.4 Contested Cases.

a. A hearing for the resolution of a contested case shall be held

pursuant to the procedures contained in Ordinance 86A of the

Confederated Salish and Kootenai Tribes, the Tribal

Administrative Procedures Ordinance (hereafter called "TAPO").

As applied to this Ordinance the "chief executive officer”

referenced in PART VI Section 23 of TAPO shall be the Board.

b. The provisions of TAPO shall provide the procedures for

administrative and judicial review of all contested cases arising

under this Ordinance.

c. If a contested case involves a significant public interest the

Board may, on its own motion, solicit public comment. The Board

may condition or limit public comment as is necessary for prudent

administration of these regulations. In the event that the Board

determines public input is necessary it may toll any time frames

contained in these regulations for the duration of the public

comment period.

Section 5.5 Penalties.

Upon a finding that the person served with a Notice of NonCompliance has committed a violation of Ordinance 87A, these

regulations, a condition of a permit, or an order of the Board, any

or all of the following penalties may be assessed and ordered:

(1)revocation of an applicable permit.

(2)removal of the project and restoration of the underlying

property.

(3)imposition of a monetary fine.

(4)prescription of remedial measures.

Section 5.6

Actions to Enforce.

The Administrator may institute in Tribal Court, under the

procedures there applicable, a civil action to collect against any

person who has been ordered to pay a penalty or perform remedial

measures pursuant to these regulations and who has not appealed such

decision or who has not paid an assessed fee cost or penalty.

Section 5.7 Revocation of Permit and Restoration of Permitted Area

a. In addition to revocation of a permit the responsible person may

be ordered to remove a project and to restore the area

surrounding and underlying the project.

b. Removal of a project and restoration of the surrounding area must

be accomplished within sixty (60) days of an order directing such

action, except that the Board or Court may, on its own

initiative, or upon application of the responsible person, delay

the removal and restoration for up to twelve months if it is

determined that such delay would reduce the likelihood of

environmental damage resulting from such removal and restoration.

Section 5.8 Failure to Comply With an Order to Remove.

a. In the event that a person responsible for a project fails to

comply with an order directing removal and restoration, the

Board, after the lapse of a sixty-day grace period, may

undertake the removal of the project and restoration of the

underlying property on its own initiative, and may assess the

responsible person for the costs of such work.

b. The Administrator must notify the responsible person by mail at

least five (5) days in advance of the planned enforcement

action that it plans to remove the project and perform any

necessary restoration.

Section 5.9 Fines.

a. Any person responsible for a project constructed or maintained

contrary to the provisions of Ordinance 87A, these regulations,

or the terms of a permit shall be subject to a penalty of not

less than twenty-five dollars ($25) or more than five hundred

dollars ($500) for each act of non-compliance.

b. Each day during which an act of non-compliance shall continue

shall be considered a separate violation of these regulations and

of Ordinance 87A.

c. Nothing in these regulations will be interpreted to deny the use of

other civil remedies available under Tribal or federal law.

Ref.:ALCO ord regs scan03and corrected.doc

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.