# AQUATIC LANDS CONSERVATION ORDINANCE

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- **Document type:** Tribal code

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AQUATIC LANDS CONSERVATION ORDINANCE
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

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Part II Findings And Policy
Section 1 Findings
Section 2 Policy

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Part III General Provision
Section 1 Definitions
Section 2 Administration
Section 3 Water Rights
Section 4 Regulations

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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

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Part V Enforcement
Section 1 Inspection
Section 2 Projects in Non-compliance

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Part VI Review, Severability, Effective Date
Section 1 Administration
Section 2 Judicial Review
Section 3 Severability
Section 4 Effective Date

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Certification

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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.

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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.

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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.

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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.

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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
a
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

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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

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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.

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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

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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. ..............

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PART II. PERMIT ADMINISTRATION
Section 2.1 Application Procedures .........
Section 2.2 Application Review ...........
Section 2.3 Public Hearings. ............

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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 ......

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PART IV. EMERGENCY SITUATIONS
Section 4.1 Emergency. ...............
Section 4.2 Notification of Emergency Action ....
Section 4.3 Review of Emergency Action . .... . . .

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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. .................

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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.

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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.
(c) Rectifying the impact by repairing, rehabilitating, or
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

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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:

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(A) Need for the proposed project.
(B) Types and extent of construction activities involved.
(C) Types, quantity, and source of construction materials
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.

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(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

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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

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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.

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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

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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

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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:

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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.

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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.

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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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_salish_and_kootenai%3A02ad57ac7df94275. Public record. Not legal advice.