STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION (2020)

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

WATER CODE

CONFEDERATED TRIBES

OF THE

UMATILLA INDIAN RESERVATION

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

WATER CODE

TABLE OF CONTENTS

CHAPTER 1.

SECTION 1.01.

SECTION 1.02.

SECTION 1.03.

SECTION 1.04.

SECTION 1.05.

SECTION 1.06.

SECTION 1.07.

SECTION 1.08.

SECTION 1.09.

SECTION 1.10.

SECTION 1.11.

SECTION 1.12.

SECTION 1.13.

SECTION 1.14.

SECTION 1.15.

SECTION 1.16.

SECTION 1.17.

GENERAL PROVISIONS ................................................................................. 1

Introduction ......................................................................................................... 1

Purpose................................................................................................................ 1

Scope ................................................................................................................... 2

Jurisdiction .......................................................................................................... 2

Statement of Policy ............................................................................................. 2

Administration .................................................................................................... 4

Definitions........................................................................................................... 4

Water Management Regions ............................................................................. 10

Beneficial Uses of Water .................................................................................. 11

Water Commission............................................................................................ 12

Permits and Certifications ................................................................................. 15

Variances........................................................................................................... 17

Appeals ............................................................................................................. 19

Fees ................................................................................................................... 20

Liability ............................................................................................................. 20

Severability ....................................................................................................... 20

Computation of Time ........................................................................................ 20

CHAPTER 2.

SECTION 2.01.

SECTION 2.02.

SECTION 2.03.

SECTION 2.04.

SECTION 2.05.

WATER RESOURCE USE AND DEVELOPMENT...................................... 20

Prior Water rights .............................................................................................. 20

Water System Development and Water Use Permits ....................................... 21

Criteria for Approval of Water System Development Permits ......................... 23

Water Use Permit Renewals ............................................................................. 27

Transfers or Cancellation of Water System Development and Water Use

Permits .............................................................................................................. 27

Modification of Water Right, Water System Development or Water Use

Permits .............................................................................................................. 29

Well Constructor Licensing .............................................................................. 30

SECTION 2.06.

SECTION 2.07.

CHAPTER 3.

SECTION 3.01.

SECTION 3.02.

SECTION 3.03.

SECTION 3.04.

SECTION 3.05.

SECTION 3.06.

SECTION 3.07.

WATER QUALITY PROTECTION ................................................................ 31

Area of Application........................................................................................... 31

Responsibilities ................................................................................................. 31

Anti-degradation Policy and Waters of the Reservation................................... 31

Water Quality Certification and Anti-degradation Review of Tribal

Permits .............................................................................................................. 33

Salmonid Spawning Areas ................................................................................ 35

Certification of Clean Water Act Section 401 Water Quality Permits ............. 35

Water Quality Management Planning ............................................................... 39

CHAPTER 4.

SECTION 4.01.

SECTION 4.02.

SECTION 4.03.

SECTION 4.04.

SECTION 4.05.

SECTION 4.06.

SECTION 4.07.

SECTION 4.08.

STREAM ZONE ALTERATIONS .................................................................. 44

Area of Application........................................................................................... 44

General Provisions ............................................................................................ 45

Minor Alterations .............................................................................................. 46

Major Alterations .............................................................................................. 46

Emergency Alterations...................................................................................... 47

Instream Work Periods for Alterations ............................................................. 47

Stream Zone Alteration Permits........................................................................ 48

Riparian management zones ............................................................................. 50

CHAPTER 5.

SECTION 5.01.

SECTION 5.02.

SECTION 5.03.

SECTION 5.04.

ADMINISTRATION AND ENFORCEMENT................................................ 51

General Provisions ............................................................................................ 51

Citations ............................................................................................................ 53

Hearings and Civil Fines ................................................................................... 56

Temporary Restraining Orders and Preliminary Injunctions ............................ 58

WATER CODE

PAGE i

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

SECTION 5.05.

SECTION 5.06.

SECTION 5.07.

SECTION 5.08.

Bonds ................................................................................................................ 60

Forfeiture........................................................................................................... 62

Other Relief ....................................................................................................... 63

Criminal Actions ............................................................................................... 64

APPENDIX A.

Legislative History

APPENDIX B.

Map of the Umatilla Indian Reservation

WATER CODE

PAGE ii

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

WATER CODE

CHAPTER 1.

GENERAL PROVISIONS

SECTION 1.01.

INTRODUCTION

“Płíx iwá čúuš”

(Water is medicine)

The world of the šiyápu is linear where life begins and ends in a series of separate events. The world

of the natítayt is circular and continuous. Natítaytwít is tamánwit (religion/law), it is láqayxit (light),

it is ha?ášwit (air/breath), it is táatpas (dress/clothing), it is iníit (dwelling/house), it is tkwátat (food),

it is sinwit (speech), it is tiičám (land), it is čúuš (water) and it is the natítayt (Indian). All are one

and inseparable. Tamánwit is both religion and law. It is the respect of all aspects of Indian life and it

is the way of life.

Cúuš is tamánwit and we must teach and live tamánwit. We must share water with all living things. If

we do not share, our greed will harm us. We must not look upon waqíšwit (life) as the šiyápu. We

must take care of the water. Seven generations in the past we had good water. Seven generations in

the future we must give back the same that was lent to us by Aniłá (the Creator); cold, clean water. So

we think of fourteen generations of cold, clean, plentiful water. As we did seven generations back, so

should we be able to do seven generations in the future, go to any stream or river and get cold clean

water to drink.

“Cúušnimna inaknúwiyaša náaman λáaxw wáwnakwšaš” Water keeps all our bodies for us. Čúuš is a

part of everything. It is within natítayt, it is within tiičám, and it is within núsux (the salmon). It is

essential for the survival of all life. Cold, clean, healthy water is the life blood of the land. We drink

water to remind us of who we are. Cúuš cleanses and heals our bodies, “Płíx iwá čúuš”.

SECTION 1.02.

PURPOSE

Water management, allocation, and development shall benefit the Confederated Tribes of the

Umatilla Indian Reservation, its members and residents, and promote the purposes for which

the Umatilla Indian Reservation was created: to provide a permanent homeland for the

members of the Confederated Tribes, protect the exclusive fishing rights as set forth in the

Treaty of 1855, and preserve the cultural and religious integrity of its members.

To this end the purpose of the Water Code is:

To provide an orderly system for the sustainable use and development of the water

resources of the Umatilla Indian Reservation;

To insure that all residents of the Reservation have an adequate quantity of clean water

for domestic purposes;

To protect the water resources of the Reservation from over appropriation, pollution,

contamination, degradation, or other acts injurious to the quantity or quality of the

waters on the Reservation;

To protect and conserve the quality and quantity of the natural and cultural resources

in the stream zones of the Reservation; and

To insure that the water rights reserved pursuant to the Treaty of 1855 receive the

highest priority in use and appropriation, are protected and developed for the benefit

of current and future generations of Tribal members of the Umatilla Indian

Reservation, and that the Confederated Tribes of the Umatilla Indian Reservation

retains full management authority over all reserved water rights sufficient to satisfy

the purpose of the Treaty of 1855, to provide a homeland for the members of the

Confederated Tribes.

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PAGE 1

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

SECTION 1.03.

SCOPE

This Code shall apply to all persons, property, and diversions within the boundaries of the Umatilla

Indian Reservation. See map in Appendix B.

SECTION 1.04.

JURISDICTION

Sovereignty. The Confederated Tribes possesses inherent sovereign authority to govern the

use of water within the Reservation boundaries. The governing body of the Confederated

Tribes, the Board of Trustees, exercises that authority pursuant to Article VI, Section 1 of the

Constitution and Bylaws of the Confederated Tribes..

Authority. The Confederated Tribes is qualified, as of October 2001, to administer the

provisions of the Clean Water Act pursuant to 33 U. S. C. § 1377(e) as the Clean Water Act

relates to waters within the exterior boundaries of the Reservation.

Jurisdiction. The Umatilla Tribal Court is hereby granted jurisdiction to hear, review and

decide issues brought before it pursuant to the provisions of this Code or applicable

regulations.

Civil Authority. In ruling on matters arising under this Code, the Umatilla Tribal Court shall

have authority to assess and collect civil penalties in amounts commensurate with the damage,

danger or risk created by a violation of this Code and shall also have authority to enjoin or

mandate action in the enforcement of this Code.

SECTION 1.05.

STATEMENT OF POLICY

The Board of Trustees hereby establishes and declares the following as the Tribal water policy which

shall govern the interpretation and all administrative functions of this Code.

Use of Waters Permitted by Confederated Tribes. Management, allocation, and development

of water resources shall be pursued subject to the principle that the water resources of the

Reservation belong to Confederated Tribes and that the Confederated Tribes has the sole

authority to permit the development or use of said waters.

Goals of Water Management. The primary goals of water management are to conserve the

quantity and maintain or improve the quality of water resources; protect and restore cold clean

pure water consistent with the Tribal Water Quality Standards; maximize the beneficial use of

water resources; promote diversity and protection of beneficial uses; promote the orderly

economic development of the Reservation; and coordinate water use with land use and other

planning on the Reservation.

Treaty Water Rights. Water management, allocation, and development shall benefit the

Confederated Tribes and its members, and further promote the purposes for which the

Reservation was created, namely to provide a permanent homeland for the members of the

Confederated Tribes. Therefore, in the allocation of water for beneficial use, preference in use

of water resources shall be retained by the Confederated Tribes and Tribal members,

consistent with the Treaty of June 9, 1855 (12 Stat. 945).

Use of Water without Waste. In developing and utilizing water resources, water users shall

appropriate water for beneficial purposes without waste. Regulations shall be developed and

implemented to discourage the misuse or waste of water, and penalties shall be imposed on

persons who misuse water or fail to cease practices that waste water.

Water Conservation Required. All official actions that allow persons to divert and use water

resources shall be promulgated under the principle that the water user appropriates the

minimum quantity of water required to accomplish the purpose of the diversion. To this end,

standards and regulations shall be promulgated which require conservation in the allocation,

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

use, and development of water resources and shall provide incentives for water users to

practice water conservation.

Groundwater Conservation. Groundwater supplies are vitally important to the health and

welfare of the citizens of the Reservation and to the progressive development of the

Reservation economy. Development of water resources shall be controlled and regulated to

prevent the depletion of aquifers and the overdraft of groundwater. Management of water

resources shall protect and improve the quality of the groundwater resources.

Competition for Water; Well Interference. Development of water resources shall be

controlled and regulated to reduce or prevent well interference and competition for water

between users.

Water Use in the Development of the Reservation Economy. It is in the Tribal interest to

direct the allocation and promote the development of water for all beneficial uses which

benefit the overall economic development of the Reservation.

Impoundments and Artificial Obstructions. Impoundments and artificial obstructions to

instream flow shall be constructed in conformance with the standards set forth in the

Confederated Tribes’ statutes and regulations on safety of dams and hydraulic embankments,

stream zone alterations, water quality standards, and any other regulations and standards

promulgated by the Confederated Tribes that may apply. In the planning and construction of

impoundment structures or other artificial obstructions, due regard shall be given to protecting

human health and safety, property, fish and wildlife resources, and the associated aquatic

community. Multipurpose impoundment structures are preferred over single purpose

impoundments, and upstream impoundments are preferred over downstream impoundments.

Impoundments and artificial obstructions shall be designed and sited to minimize the impact

on anadromous fish habitat and to improve water quality and quantity for instream uses. The

Board of Trustees shall review proposals for large dams and shall make the final

determination if the large dams will be approved for construction. Dams or artificial

obstructions extending greater than five feet vertically above the river bed of the main stem

Umatilla River are prohibited.

Reserve Water for Human Consumption. Adequate and safe supplies of water shall be

reserved for human consumption by residents of the Reservation.

Provide Water For Fish And Wildlife Resources. The fish and wildlife populations and

traditional plants of the Reservation are important subsistence, cultural, and recreational

resources, and as such, in managing water resources, the Confederated Tribes shall allocate

water and provide sufficient water quality for the protection and conservation of these

resources. Alterations of physical and vegetative features along streams and wetlands which

degrade wildlife or fish habitat or destabilize soils or stream banks shall be discouraged.

Provide Water for Wetland Resources. Wetlands provide critical habitat for fish and wildlife

populations, traditional plants, and other natural resources of the Reservation; therefore,

wetlands shall be preserved and restored to assure the continued production of these resources

for use by future generations.

Protection of Stream Flows. Streams are an integral and vital element of the culture of the

Confederated Tribes. Protection of streams for their cultural, spiritual, recreational, economic,

and ecological values shall be paramount to the management of water resources. Stream flows

that are required to maintain habitat for anadromous and resident fish, recreational

opportunities, and the integrity of the stream environment shall be established and protected.

Protection of Stream Zones. Protection of stream zones of the Umatilla Indian Reservation is

vital to the preservation of Tribal traditional values and religion, and the Confederated Tribes’

hunting, fishing, and gathering rights and the way of life that depends on them as provided by

the Treaty of 1855. Stream zones are vital to the integrity of the stream environment and the

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

protection and enhancement of beneficial uses. Activities or alterations which promote the

establishment, growth, and protection of riparian vegetation shall be encouraged.

Watershed Protection. Watershed practices which serve to capture water or reduce its rate of

flow from the Reservation shall be promoted. Alterations to watersheds which foster

increased runoff rates, increased water temperatures, and increased sediment delivery to

streams shall be discouraged. Best management practices shall be prepared and implemented

to improve or prevent the degradation of the quality and quantity of water produced by

watersheds that supply water to Reservation streams.

Water Quality. The Water Code will be the primary source of regulation and enforcement for

water quality standards and the TMDL for the Umatilla Indian Reservation. The quality of the

water resources shall be maintained and improved to support the beneficial uses of water

established in this Code. Land use and water development activities shall be regulated to

ensure the improvement of the quality of degraded waters and to implement the antidegradation policy for existing water quality. The Water Quality Standards shall be applied in

a manner that promotes the maximum beneficial use of the water resources of the reservation

and is consistent with Tribal law.

Anti-degradation Policy. The protection of existing instream uses and the level of water

quality and quantity necessary to provide full support to those uses must be maintained and

protected. No provision or conditioned activity is to be interpreted as suspending basic water

quality protection. This policy is not intended to prevent the restoration of instream uses that

existed prior to human caused alteration of a water body.

Pollution and Contamination Prohibited. Activities that pollute or contaminate water

resources in a manner that substantially endangers or has a long-term adverse impact on

human health and welfare, safety, and/or the environment are prohibited. No person or entity

shall place, spill, discharge, release or introduce any compound, chemical, contaminant,

product, pollutant or substance either directly or indirectly, into the ground or surface waters

of the Reservation.

Pollution Prevention. To prevent and control the pollution of the waters of the Reservation,

any present or future actions that are likely to cause or contribute to the lowering of water

quality of any waters of the Reservation must, at a minimum, use all known, available, and

reasonable methods of prevention, control and treatment that apply to the action.

Intergovernmental Cooperation and Coordination. The nature of the Clean Water Act

governing the use and protection of water make it necessary for close intergovernmental

cooperation and coordination to ensure successful implementation of the Clean Water Act.

Concurrent jurisdiction between the Confederated Tribes and the State of Oregon over

particular water bodies or courses can be complex. The policy of the Confederated Tribes is

to seek and enter into cooperative agreements with the appropriate state, federal and/or local

governmental bodies to carry out their respective obligations in a cooperative manner.

SECTION 1.06.

ADMINISTRATION

The Director or his designees shall be responsible for administering this Code. The Director shall

perform administrative duties as set forth in this Code.

SECTION 1.07.

DEFINITIONS

As used in this Code, the following words and phrases shall mean:

“401 Certification”: a written declaration by the Confederated Tribes to either grant,

conditionally grant, deny or waive, an applicant’s request to discharge to surface

waters of the Reservation, as part of a federally permitted or licensed activity as per 33

U.S.C. § 1341.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

“Abatement”: generally a lessening or a reduction.

“Actual damages”: includes, but is not limited to the cost of investigations, inspections

or monitoring surveys which lead to the removing, correcting, or terminating any

adverse effects upon human health and the environment resulting from the violative

activity whether or not accidental; and compensation for loss or destruction of

wildlife, fish or aquatic life, or their habitat, or for any other damages caused by the

violative activity, either to the Confederated Tribes or to any residents of the Umatilla

Indian Reservation who are directly aggrieved by the violative activity, or both.

“Animal Feeding Operation (AFO)”: includes an area, location, or operation where

animals have been, or will be stabled or confined and fed or maintained for a total of

45 days or more in any 12 month period, and where crops, vegetation, forage growth,

or post-harvest residues are not sustained in the normal growing season over any

portion of the lot or facility (40 CFR 122.23(b) (1)).

“Aquifer”: an underground geological formation, or group of formations, containing

water.

“Bank or Stream bank”: the land alongside a stream that is normally immersed or

subject to immersion by annual high water flows.

“Beneficial Uses”: the purpose or benefit to be derived from any groundwater or

surface water body or the diversion of water, as designated by the Confederated

Tribes, whether or not it is currently being attained.

“Best Management Practices”: methods that have been determined to be an effective

and practical means of preventing or reducing pollution from non-point sources.

“Board of Trustees” or “Board”: the governing body of the Confederated Tribes of the

Umatilla Reservation of Oregon established by Article VI of the Constitution and

Bylaws of the Confederated Tribes of the Umatilla Indian Reservation.

10.

“Bond”: a written instrument with sureties or personal property guaranteeing faithful

performance of acts or duties contemplated.

11.

“Clean Water Act”: the Federal Water Pollution Control Act, codified at 33 U.S.C. §§

1251 et seq., the objective of which is to restore and maintain the chemical, physical

and biological integrity of the Nation’s waters, and where attainable, to achieve a level

of water quality that provides for the protection and propagation of fish, shellfish, and

wildlife, and for recreation in and on the water.

12.

“Comment Period”: the time provided for the public to review and comment on a

proposed action or rulemaking after notice and publication. Calendar date(s) will be

provided indicating the period provided for public comment.

13.

“Contaminant”: dredge spoil, solid waste, incinerator residue, sewage, garbage,

sewage sludge, munitions, chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock, sand, dirt, and industrial,

municipal, and agricultural waste discharged to water, and includes any pollutant or

other characteristic element which may result in pollution of the waters of the

Reservation.

14.

“Contraband”: property which was or is being used to violate or is possessed in

violation of this Code (or regulation promulgated hereunder) or obtained by violation

of this Code (or regulation promulgated hereunder).

15.

“Confederated Tribes”, “Tribes” or “C.T.U.I.R.”: The Confederated Tribes of the

Umatilla Indian Reservation.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

16.

“Debris”: deadwood, broken vegetation, and foreign matter.

17.

“Defendant": the person against whom an action is filed under this Code.

18.

“Department”: the Department of Natural Resources of the Confederated Tribes.

19.

"Director": the Director of the Department of Natural Resources of the Confederated

Tribes or a designated subordinate to whom he/she has delegated administrative and/or

enforcement responsibilities.

20.

“Discharge”: Flow of surface water in a stream or canal or the outflow of ground

water from a flowing artesian well, ditch, or spring. Can also apply to discharge of

liquid effluent from a facility or to chemical emissions into the air through designated

venting mechanisms.

21.

“Divert”: physically removing or exercising in some other way control over waters of

the Reservation.

22.

“Diversion Works”: a structure, such as a ditch, dam, pump, or well, constructed or

installed to intercept a water source and divert water.

23.

“Effluent”: Wastewater--treated or untreated--that flows out of a treatment plant,

sewer, or industrial outfall. Generally refers to pollutants discharged from any source

into surface waters.

24.

“Enforcement Officer”: the Director, department staff designated by the Director to

serve as an Enforcement Officer and/or a tribal law enforcement officer.

25.

“Emergency”: a situation of any kind, normally unforeseeable and unpreventable by

ordinary prudence, in which either human life or health is endangered, or there is a

clear and imminent threat of damage to or destruction of houses, buildings, roads,

bridges, sewer works, waterworks, public facilities of any kind, livestock, or growing

crops of such nature that only immediate action can prevent such loss of life, threat to

public health, or damage to property.

26.

“Endangered Species”: any species of fish, wildlife, or plant which has been

determined to be endangered under Section 4 of the Endangered Species Act as

amended; listed species are found in 50 CFR §17.11-17.12.

27.

“Fill”: soil, silt, sand, gravel, or rock deposited in the stream zone by artificial means.

28.

“Forfeiture”: the permanent loss of property for failure to comply with the law.

29.

“Groundwater”: the supply of fresh water found beneath the earth’s surface, usually

in aquifers, which supply a source of water to wells and springs.

30.

“Hardship”: a detrimental condition that is beyond the control of the individual(s) and

is not personal or self-inflicted.

31.

“Instream”: the surface water within the stream zone and the land area within the

stream zone that is covered by flowing or standing surface water.

32.

“Instream Flow”: the amount of surface flow in a stream.

33.

“Instream Water Use”: cultural, fish and aquatic life habitat, salmonid fish rearing,

salmonid fish spawning, anadromous fish passage and wildlife habitat uses.

34.

“Irreparable Harm, Injury, Loss or Damage": includes any removal of any water, any

discharge to a water body, or any disturbances in a riparian zone or wetland habitat

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PAGE 6

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

without a required permit or in violation of the terms of a permit approved by the

Director.

35.

“Lien”: a charge, hold, claim or encumbrance upon the property of another as security

for a debt or charge.

36.

“Livestock”: animals of any kind, including fowl, kept or raised for sale, resale,

pleasure, or other purposes.

37.

“Navigable”: waters that are sufficiently deep and wide enough for navigation; such

waters in the United States come under federal jurisdiction and are protected by the

Clean Water Act, 33 U .S. C. §§ 1251 et seq.

38.

“Non-Point Source”: diffuse or unconfined sources of pollution where waste can enter

into or be conveyed by the movement of water into surfaces waters of the Reservation.

39.

“Outstanding Resource Waters”: those waters designated by the Board of Trustees

where existing high quality waters constitute an outstanding Tribal resource based on

their extraordinary water quality, ecological or cultural values, or where special water

quality protection is needed to maintain critical habitat areas.

40.

“Perennial Stream”: a stream that contains flowing water throughout the year, with

the possible exception of drought years.

41.

“Person”: any individual or group or combination thereof acting as a unit, however

associated.

42.

“Point Source”: any discernable, confined, and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,

rolling stock, concentrated animal feeding operation, landfill leachate collection

system, vessel or other floating craft from which pollutants are or may be discharged.

43.

“Pollutant”: can include dredge spoil, solid waste, incinerator residue, filter

backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand,

dirt, and industrial, municipal, and agricultural waste entering, existing in or

discharged into water.

44.

“Pollution” includes such contamination, or other alteration of the physical, chemical,

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

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

liquid, gas, solid, radioactive, or other substance into any waters of the Confederated

Tribes as will or is likely to create a nuisance or impair any beneficial use of such

waters.

45.

“Premises”: land with its appurtenances.

46.

“Reservation”: means the same as Umatilla Indian Reservation.

47.

“Revetment”: any type of artificial facing or reinforcement of a bank.

48.

“Riparian Management Zone”: a Riparian Management Zone is defined as a buffer

area along a stream channel established by the Water Commission for the purpose of

restoration of stream channels and riparian zones.

49.

“Riparian Zone”: Areas adjacent to rivers and streams with a differing density,

diversity, and productivity of plant and animal species relative to nearby uplands It

includes wetlands and those portions of floodplains and valley bottoms that support

riparian vegetation..

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

50.

“Stream”: a natural watercourse, including any seep, creek, or spring, with a definite

bed and banks as it existed under natural conditions. Any act of obliteration of the bed

or banks of a stream does not cancel the existence of the stream, if natural processes

will in the course of time and in the absence of human intervention restore it to a

condition similar to that existing prior to such acts of obliteration.

51.

“Stream Channel”: the bed and banks of a stream.

52.

“Stream Zone”: For purposes of this code, the “stream zone” shall include the bed,

banks and area of riparian vegetation of any stream, natural watercourse, seep, bog,

meadow, pond, spring, or lake, with a definite bed and banks as it existed under

natural conditions. Stream zones also include the bed, banks and area of riparian

vegetation of man-made impoundments and constructed wetlands.

53.

“Stream Zone Alteration”: any change in the course, depth, width, or topography of

the bed or any bank of a stream, or change in the vegetative cover in the defined

stream zone, due to activities other than the results of nature.

54.

“Traditional Tribal Cultural Activities”:

land or resource-use activities required for:

the gathering, harvesting, processing, or preparation of roots, berries,

fruits, herbs, medicinal plants, fish, and wildlife;

ii.

the construction and maintenance of facilities used for the purpose of

religious, spiritual, and other ceremonial activities; and

iii.

any other activity not specifically listed herein which is determined by

the Water Commission to be a traditional Tribal subsistence activity.

Traditional Tribal subsistence activities include, but are not limited to the

following:

digging and gathering roots and plants for ceremonial and subsistence

purposes;

ii.

gathering wood for personal use;

iii.

construction and use of sweathouses;

iv.

erecting structures for drying and curing subsistence foods; and

erecting temporary shelters necessary for religious,

ceremonial, gathering, fishing, and hunting activities.

spiritual,

55.

“Treaty of 1855”: the Treaty of June 9, 1855, 12 Stat. 945, ratified March 8, 1859,

proclaimed April 11, 1859, between the Cayuse, Umatilla and Walla Walla Tribes and

the U.S. Government.

56.

“Trespass”: wrongful interference with or disturbance of the possession of property.

57.

“Tribe” or “Tribal”: of or pertaining to the Confederated Tribes of the Umatilla Indian

Reservation

58.

“Tribal Waters”:

All water arising upon, traversing, or bordering the Umatilla Indian

Reservation, whether the water is flowing or stationary, whether it is above or

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PAGE 8

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

below the surface of the ground, and whether it is diffused or contained within

a defined water course or body of water of any kind; and

all water reserved at any time to the Tribes or the Reservation by the United

States and the Tribes; and

all water which in the course of nature or as a result of artificial works, flows

into or enhances said waters.

59.

“Triennial Review Process”: refers to Section 303(c)(1) of the Clean Water Act, which

requires that the Confederated Tribes shall, from time to time, but at least once every

three years, hold public hearings to review the Water Quality Standards and, as

appropriate, to modify and adopt standards. The public will be notified of proposed

changes and be provided with the opportunity to comment. The Confederated Tribes

will follow guides provided in Chapter 6 “Procedure for Review and Revision of

Water Quality Standards” from EPA’s Water Quality Standards Handbook to conduct

all triennial reviews.

60.

“Turbidity”: the clarity of water or a measure of the transmission of light through a

column of water expressed as nephelometric turbidity units (NTU) and measured with

a calibrated turbidimeter.

61.

“Umatilla Indian Reservation”: all lands within the diminished boundary of the

Umatilla Indian Reservation and all Tribally owned lands and Trust lands located

outside the diminished boundary but within the original treaty boundary.

62.

“Violation”: a transgression of any statute, rule, order, license, permit, certification or

any part thereof and includes both acts and omissions.

63.

“Water Commission”: the governmental body of the Confederated Tribes charged by

the Board of Trustees.

64.

“Water Quality”: the chemical, physical, biological, and radiological characteristics of

a water body which protect and enhance the existing and designated beneficial uses of

waters of the Umatilla Indian Reservation.

65.

“Water Quality Standards”: numeric and narrative criteria used to maintain designated

use(s) for Reservation waters and to protect and restore the physical, chemical and

biological integrity of Reservation waters and protect Tribal health and welfare,

enhance the quality of water and serve the purposes of this Code and the Clean Water

Act.

66.

“Waters of the Reservation”: ground water, deep and shallow alluvial/basalt aquifers

lakes, rivers, ponds, streams (including intermittent and ephemeral streams) wetlands,

ponds, impounding reservoirs, canals, and all other waters, natural or artificial, within

the boundaries of the Reservation.

67.

“Wetlands”: any area that is inundated or saturated by surface or groundwater at a

frequency and duration sufficient to support a prevalence of vegetation typically

adapted for life in saturated soil conditions. Wetlands generally include swamps,

marshes, bogs, swales, riparian zones, and similar areas with hydrophytes and hydric

soils.

68.

“Wildlife Habitat”: the waters and stream zones of the Reservation used by, or that

directly or indirectly provide food, shelter, migration corridors and other support to,

fish, other aquatic life, and wildlife for any life stage or history.

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PAGE 9

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

SECTION 1.08.

WATER MANAGEMENT REGIONS

Water Management Regions Established. For the purposes of this Code, the Board of

Trustees hereby establishes the following Water Management Regions:

Mission Basin;

South Reservation;

North Reservation;

Umatilla River Valley;

McKay Creek Valley;

Blue Mountains;

Northeast Foothills; and

Johnson Creek.

Water Management Region Map:

The locations of the water management regions are indicated on the Water

Management Region Map of the Reservation dated July 19, 1995, which is hereby

adopted by reference. The water management map shall be certified by the Board of

Trustees as the official Water Management Region Map on the date certain.

The boundaries of water management regions shall be section lines, half section lines,

quarter section lines, centerline of roads and highways, streams, and ridges, bluffs or

other readily recognizable natural features.

The Water Management Region Map shall only be amended by resolution by the

Board of Trustees. A person who wishes to amend the Water Management Region

Map shall submit a complete application for map amendment and the filing fee to the

Department of Natural Resources. Within forty-five (45) calendar days after an

application is filed, the Water Commission shall hold a public hearing on the

application for map amendment. Within forty (40) calendar days after closing the

hearing, the Commission shall transmit its recommendation for approval or denial of

the requested amendment to the Board of Trustees. Within thirty-five (35) calendar

days after receiving the Commission's transmittal, the Board of Trustees shall act on

the Commission's recommendation, by granting or denying the amendment. The

thirty-five (35) day time limitation may be extended an additional thirty-five (35)

calendar days if the Board of Trustees chooses to hold its own public hearing on the

amendment request.

The Water Commission shall use the following criteria for evaluating a request for

map amendment and making its recommendation to the Board of Trustees:

The change is needed to improve water conservation and development for

beneficial use on the Reservation as a whole;

The change will promote the availability of water for the high priority uses in

the regions proposed for modification;

The change is needed to alleviate water management or use problems

associated with changes in land use patterns on the Reservation;

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PAGE 10

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

The Confederated Tribes shall maintain at least two (2) sets of official Water

Management Region Maps. One set shall be located in the office of the Secretary of the

Board of Trustees, and another set shall be located at the Department of Natural

Resources.

SECTION 1.09.

The proposed new boundaries conform to the provisions of paragraph 2 of this

section.

BENEFICIAL USES OF WATER

The Board of Trustees establishes and defines the following beneficial uses of water:

Domestic. Use of water from one supply system for drinking, bathing, culinary,

sanitation and other household purposes at three or fewer dwelling units and for

irrigation of less than one half (0.5) acre of lawn and garden area per dwelling unit.

Community. Use of water from one supply system for drinking, bathing, culinary,

sanitation, and other household purposes at more than three dwellings and for

irrigation of less than one half (0.5) acre of lawn and garden area per dwelling unit.

Municipal. Use of water by a community that is situated on the Reservation or by a

community that has been incorporated under the laws of the State of Oregon outside

the Reservation boundaries, where such water use includes at least community, public,

commercial, and industrial beneficial uses which are served through a single water

supply system that is maintained and operated by the Tribal government or a city

government.

Public. Use of water at government buildings; schools; public parks, pools, and

campgrounds; churches; and other facilities open to the general public.

Agricultural Irrigation. Application of water to the land for the purpose of growing

crops.

Stock Watering. Diverting water for the purpose of providing livestock with water to

drink.

General Farm. Use of water for farm activities other than stock watering, agricultural

irrigation, or domestic uses.

Commercial. The use of water at establishments where goods or services are sold or

exchanged. This use includes such establishments as apartment complexes,

commercial greenhouses, commercial fish hatcheries, restaurants, and private

campgrounds and recreational vehicle parks.

Industrial. Use of water for the purpose of processing or reprocessing raw materials or

agricultural crops; or manufacturing, assembling, or fabricating products.

10.

Fire Protection. The use of water for the purpose of fighting fires.

11.

Cultural. Use of water for practicing traditional tribal religious ceremonies,

subsistence activities, customs, habits, or other tribal activities that transmit traditional

knowledge or social behavior to succeeding generations of tribal members.

12.

Mining. Use of water for the purpose of extracting and processing rock, ore, minerals,

or fossil fuels from the soil or geological formations.

13.

Fish and Aquatic Life Habitat. Use of water for the purpose of providing spawning,

egg incubation, holding, living, rearing habitat and passage conditions for anadromous

and resident fish and other appropriate native resident plant and animal communities.

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PAGE 11

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

14.

Wildlife Habitat. Use of water for the purpose of providing wildlife with drinking

water and providing aquatic and semi aquatic wildlife with resting, denning, nesting,

migrating and foraging habitat.

15.

Pollution Abatement. Use of water for the purpose of preventing or minimizing air or

water pollution.

16.

Recreation. Use of water for the purpose of providing conditions suitable for boating,

fishing, swimming, and other water contact activities.

17.

Power Generation.

mechanical power.

18.

Fish Hatcheries. Use of water for the non-commercial purpose of artificially rearing,

feeding, or spawning of fish or incubation of fish eggs.

Use of water for the purpose of generating electric and/or

No person shall divert, withdraw, or otherwise use waters of the Reservation for purposes

other than the beneficial uses in this section.

SECTION 1.10.

WATER COMMISSION

Water Commission – Establishment. The Board of Trustees hereby establishes the Water

Commission. The Water Commission shall serve as the liaison between the Board of Trustees,

the Department of Natural Resources, and other bodies or agencies having functions relating

to water appropriation, water quality or water management. In addition, the Water

Commission shall establish policies and provide for general oversight for the Department of

Natural Resources in the administration and interpretation of this Code. The Water

Commission shall participate in hearings and such other duties as are delegated by the Board

of Trustees.

Jurisdiction. The territorial jurisdiction of the Water Commission shall coincide with the

territorial jurisdiction of the Confederated Tribes of the Umatilla Indian Reservation and shall

be exercised by the Water Commission as authorized by the Board of Trustees in this Water

Code.

Membership. The Water Commission shall be composed of five (5) members of the General

Council, of whom at least one (1) member of the Commission shall be a member of the Board

of Trustees. A quorum of three (3) members shall be required to conduct the business of the

Water Commission. By-laws for the Commission shall be approved by the Board of Trustees.

Meeting Schedule. The Water Commission shall meet once each month or more often at the

discretion of the Commission. The Commission shall establish its own meeting schedule and

agenda. Minutes shall be prepared and approved for all meetings.

Powers and Authorities. The Water Commission shall have the following general powers and

authorities to:

Promulgate rules and regulations as authorized by this Code or as required to

implement this Code after providing notice and the opportunity for comment upon

said regulations;

Review and make recommendations relating to the enactment, enforcement, or

administration of laws, codes, ordinances, standards, and regulations affecting Tribal

water resources;

Establish and appoint such technical or advisory Committees as the Water

Commission deems necessary for the administration and enforcement of this Code;

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PAGE 12

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Reserve and allocate groundwater and surface water to the beneficial uses established

in this Code;

Conduct hearings and issue appropriate orders;

Grant, deny, modify or revoke any permits required or authorized by this Code;

Interpret the provisions of this Code, either on its own motion or at the request of the

Director;

Make determinations of availability of water and the allocation of water resources to

the beneficial uses established in this Code;

Establish priorities of beneficial uses of water resources within each water

management region established by this Code;

10.

Recommend to the Board of Trustees the purchase or sale of real or personal property

or other interests as they may pertain to the protection of the quality and quantity of

Tribal water;

11.

Serve as liaison between the Board of Trustees and the Department of Natural

Resources, and other bodies or agencies having functions or activities relating to water

use, water quality or water management;

12.

Provide recommendations to the Board of Trustees, regarding administrative or

intergovernmental agreements, exchange of information, cooperation with other

governmental agencies involving the development, use, or management of Tribal

waters;

13.

Take action to insure adequate flows or water levels in streams and lakes for wildlife,

aquatic life, and other resources;

14.

Determine existing and foreseeable uses of and needs for water;

15.

Reserve and set aside water for future utilization;

16.

Coordinate the activities of this Code, as necessary, with other committees and

commissions of the Confederated Tribes;

17.

Reserve and allocate surface water for non-consumptive, instream uses that are

necessary for fish habitat, wildlife habitat, recreation, and pollution abatement

purposes;

18.

Define surface water and/or groundwater local management areas and sub-areas for

specialized administration under this Code and establish standards on development

and use of water resources in those areas;

19.

Direct the preparation of and adopt water conservation plans when necessary to insure

the availability of water resources required to protect the political integrity, economic

security and the health, safety, and welfare of the Confederated Tribes and the

residents of the Umatilla Indian Reservation;

20.

Take any other actions that are permissible under the provisions of this Code.

Rules and Regulations.

The Water Commission is directed to write, adopt, and modify such rules and

regulations as the Commission deems necessary to implement the provisions of this

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PAGE 13

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Code. This directive shall include, but not be limited to, rules, regulations, and

standards to cover the following activities on:

Well construction and maintenance;

Groundwater protection and development;

Construction and maintenance of dams and hydraulic embankments;

Impoundments and other water storage projects;

Water budget for management regions;

Water quality standards;

Water conservation.

Standards for beneficial use of water;

Surface water diversions;

Wetlands protection;

Best Management Practices for non-point source pollution;

Stream zone alterations; and

Any other activities which affect the quantity or quality or the water resources

but have not become apparent at this time.

The above noted topics may be included in one or more documents of rules or

regulations. Such rules and regulations shall not be valid until they have been

approved and adopted by the Water Commission.

Procedures for Promulgating Rules and Regulations.

The Water Commission shall prepare draft rules and regulations and ensure that the

drafts are available for public review and comment.

Notice of the rules and regulations shall be published in a newspaper of general

circulation on the Reservation. The notice shall include a summary of the proposed

rule or regulation, where copies of the proposed rule or regulation may be obtained,

where to submit comments, and the deadline for making comment.

The Water Commission shall provide a public comment period of at least thirty (30)

calendar days.

The final rules and regulations adopted by the Water Commission shall be consistent

with the policies of this Code and take into consideration the public comments

received.

The rules and regulations shall become effective on the date of adoption by the Water

Commission or at a later date as specified by the Water Commission.

Emergency Rule-making Authority.

The Water Commission is authorized to promulgate emergency rules and regulations

governing activities related to water use, water quality or stream zone activities to

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PAGE 14

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

respond to emergencies which threaten the health and safety of the residents of the

Reservation or the Reservation environment.

The emergency rules and regulations shall become effective immediately and shall be

effective for a period not to exceed ninety (90) calendar days.

The Water Commission shall provide for the immediate publication of written notice

of the emergency regulations.

SECTION 1.11.

PERMITS AND CERTIFICATIONS

Permits and certifications authorized under this Code are limited to:

Water System Development Permit: is required this Code for the purpose of

constructing water diversion works for appropriating Tribal water resources.

Water Use Permit: is required under this Code for the purpose of appropriating Tribal

water resources for beneficial use.

Temporary Water Use Permit: is required under this Code for the purpose of

appropriating Tribal water resources for beneficial use for a specified and limited

period of time.

Stream Zone Alteration Permit for Major Alteration: is required under this Code, for

the purpose of performing any activity that alters streamflow, water quality, ground

contours, or perennial vegetation which may cause environmental impacts that are of

general public concern.

Stream Zone Alteration Permit for Minor Alteration: is required under this Code, for

the purpose of performing any activity that alters streamflow, water quality, ground

contours, or perennial vegetation which may cause negligible negative environmental

impacts.

Anti-degradation Review is required under this Code for the purpose of conducting

any activity which may result in any fill, removal, or discharge into the waters of the

Reservation.

§401 Water Quality Certification is authorized under this Code for the purpose of

approving or denying the issuance of a Federal permit which would allow any activity

which may result in any fill, removal or discharge into the navigable waters of the

Reservation.

Form and Content of Permits. The Water Commission shall establish the form and content of

applications, permits, notices, and certifications established under this Code through

administrative rules. Application forms for acquiring Tribal Permits, Permit Renewals or

Certifications administered through this Code shall be available at the Department of Natural

Resources.

Filing Applications. The applicant shall submit a complete application for a Tribal permit or

certification and the appropriate application filing fee with the Director or his representative.

The applicant shall sign and date the application form and shall file the application under oath

that the information provided therein is truthful and accurate. Incomplete applications shall

not be accepted by the Director or his designee. The act of filing an application for a permit or

certification shall not be construed as the issuance of a permit or certification and does not

authorize otherwise regulated action by the applicant.

Application Amendments and Withdrawal.

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PAGE 15

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

An application filed with the Director may be amended or withdrawn only upon

written notice by the applicant to the Director. However, no person shall amend or

withdraw an application after the permit requested if the application has been

approved or denied.

The Confederated Tribes shall promptly refund all of the application filing fee to an

applicant who files the written notice required above prior to the Director granting or

denying the permit and, if the application requires a public hearing, the applicant

makes the withdrawal or all substantial amendments more than twenty (20) calendar

days before a scheduled public hearing on the application. An applicant failing to meet

these requirements shall forfeit the entire fee, and the application shall be canceled.

Substantial amendments include any changes of fact required in a public notice or any

changes, under the control of the applicant, that cause a postponement or cancellation

of a scheduled public hearing.

Development of Rules. Subject to the provisions of this Code, the Water Commission shall

promulgate administrative rules for filing and processing applications for Tribal permits,

renewal of Tribal permits, and Certifications, including but not limited to, information

required on applications, application fees, review period, notification, public hearing

procedures and issuance of permits.

Pre-Application Consultation. Prior to the submission of an application the prospective

applicant shall consult with the Director for determination of the scope of the project and the

necessary documentation or clearances, if any, that are required for approval of a permit or

certification. Such documentation or clearances shall include but are not limited to:

Tribal Planning Office/Zoning clearance;

Cultural Resources clearance for ground disturbing activities;

Tribal Fisheries and/or Wildlife Habitat Report;

A Water Quality Certification;

Any applicable Federal Regulations; and

Any other documents necessary for evaluation of the proposed project.

Reporting and Monitoring.

The Water Commission may establish procedures for inspection, monitoring, and

entry with respect to facilities or activities for which a permit or authorization has

been issued pursuant to this Code.

The procedures discussed in paragraph (1) of this subsection may provide as follows

and shall be delegated to the Director.

WATER CODE

The Director may require the owner or operator of any facility, or the permittee

to any activity for which a permit has been issued, to:

Establish and maintain records;

ii.

Make reports;

iii.

Install, use and maintain monitoring equipment or methods (including

where appropriate biological monitoring methods); and

iv.

Sample effluents.

PAGE 16

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

The Director, upon presentation of credentials:

Shall have a right of entry to, upon, or through, any premises or area for

which a permit has been issued pursuant to this Code or in which any

records are required to be maintained;

ii.

May at reasonable times have access to and copy any records, inspect

monitoring equipment or method required and sample any effluents,

which the owner or operator of such facility is required to sample.

Any records, reports, or information obtained under this section for the purposes of

compliance with Water Quality Standards or certifications issued under this Code:

Shall, in the case of effluent data, be related to any applicable effluent

limitations, toxic, pretreatment, or new source performance standards, and

Shall be available to the public, except upon a satisfactory showing to the

Director, by any person that records, reports, or information, or a particular

part thereof (other than effluent data), to which the Director has access under

this section, if made public would divulge methods or processes entitled to

protection as trade secrets of such person. The Director shall then consider the

record, report or information, or particular portion thereof confidential.

Authorized representatives of the Director who knowingly or willfully publish,

divulge, disclose, or make known in any manner or to any extent not

authorized by law any information which is required to be considered

confidential under this subsection will be subject to civil remedies provided by

Tribal law or otherwise. The Director or his/her authorized representative are

not prohibited from disclosing records, reports, or information to other officers,

employees, or authorized representatives of the Confederated Tribes charged

with carrying out this Code or when relevant in any legal proceeding under this

Code.

Conditions. All permits and permit renewals issued under this Code shall be conditioned to

conform with all the applicable standards for the beneficial use of water, the protection of

water quality and any other standards relevant to the protection of water, stream zones, and

any other water related resources established by this Code. The Water Commission and the

Director shall impose any other special conditions necessary to fulfill the purposes of this

Code and Tribal Water Policy.

Validation of Permits and Certifications. To be valid, any Permit or Certification issued

under this Code must bear the signature of the Director and the date of validation by the

Director. Permits must also include their expiration date.

SECTION 1.12.

VARIANCES

Any person may request a variance from one or more requirements of this Code by submitting

a written request to the Water Commission. The variance request must specify the section(s)

of the Code and/or associated standards or regulations adopted in reference to this Code the

applicant wants a variance from. The request must address and satisfy all of the circumstances

listed below:

Variances in General.

A variance may be granted only in the event all of the following circumstances exist:

Special circumstances or conditions affecting the water body, water source or

the property surrounding the water source which make strict application of the

provisions of this Code or associated standard and regulations impracticable or

unreasonable;

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PAGE 17

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Strict compliance with the requirements of this Code or associated standard

and regulations would result in extraordinary hardship to the applicant because

of unusual conditions over which the applicant has no control or would result

in inhibiting the achievement of the goals of this Code;

Granting the variance will not be detrimental to the public welfare or injurious

to other property in the area in which the variance is granted;

Granting the variance will not violate any other provision of Tribal (or federal)

law;

The variance requested is the minimum variance which would alleviate the

hardship; and

Granting the variance will not adversely impact threatened or endangered

species or their critical habitat.

Upon receipt of a completed variance request application, application fee, and any

supporting documents, The Director shall conduct a staff review of the variance

request.

Upon completion of the staff review, the variance request shall be subject to a public

hearing before the Water Commission following the public hearing process set forth in

the Administrative Rules of this Code.

Upon the granting of a variance, the Water Commission may attach conditions which

it finds necessary to protect the interests of affected parties or would otherwise achieve

the purposes of this Code.

The Director of the Department of Natural Resource shall be responsible for enforcing

or carrying out the decision of the Commission.

Variances for Water Quality Standards. The Water Commission is responsible for

determining if a variance to any specific water quality standard will be permitted. Any such

variance shall be consistent with the variance requirements of the Water Quality Standards.

Criteria for Variance. The Water Commission may grant a variance to the approved

Water Quality Standards provided the variance meets the following requirements:

The variance will be pollutant and source specific, and

The applicant demonstrates that meeting the standard is unattainable.

A Water Quality Standard may be deemed unattainable and eligible for a variance by the

Water Commission if the applicant for a variance demonstrates one or more of the

following:

The concentration of a naturally occurring pollutant prevents the attainment of

the water quality standard, or

The natural physical (substrate cover, depth, pools, or riffles) or flow

conditions of the water prevent attainment of the water quality standard, or

Pre-existing conditions or sources of pollutants prevent the attainment of the

water quality standard and cannot be remedied or would cause more

environmental damage to correct than to leave in place, or

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PAGE 18

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Man-made hydrologic modifications (dams, diversions, levees, etc.) preclude

water quality attainment and cannot be modified to operate in a manner that

would achieve the water quality standard, or

Physical conditions related to the natural features of the water body, unrelated

to water quality such as lack of proper substrate cover, depth, pools, or riffles

preclude attainment of the standard, or

Controls more stringent than technology-based effluent limitations would

result in substantial and widespread economic and social impact.

The discharger must submit to the Tribes documentation that treatment more advanced

than required by technology-based effluent limitations were considered and that

alternative effluent control strategies were evaluated.

A variance shall not exceed a five (5) year period and the Water Commission shall

limit the variance to as short a time as feasible.

Upon expiration of the five-year time period or permit, the applicant must

either meet the water quality standard or must re-apply for the variance

according to this section.

In considering a re-application for a variance, the Water Commission will

require the applicant to demonstrate reasonable progress toward meeting the

water quality standard.

Any variance request from the Tribal Water Quality Standards shall be subject to the

public hearing process set forth in the Administrative Rules of this Code.

Variances to the Water Quality Standards approved by the Water Commission shall be

submitted to EPA for review and approval.

SECTION 1.13.

APPEALS

Any decision of the Director or the Water Commission on an application for a Tribal Permit

or Certification may be appealed to the Umatilla Tribal Court by the applicant or any person

with a direct interest in or who is otherwise directly and adversely affected by the decision

made under the provisions of this Code.

Persons intending to appeal a decision must file a Statement of Appeal with the Umatilla

Tribal Court within fifteen (15) calendar days after the date of the decision by the Director or

the Water Commission. Any decision that is not appealed within the fifteen (15) day time

limitation shall be final and binding as rendered by the Director or Water Commission.

The appeal to the Umatilla Tribal Court is limited to the question of whether the decision of

the Director or the Water Commission is in accordance with Tribal law. The appeal of the

Water Commission's decision shall be heard on the record of the hearing unless the Court

directs the parties to submit written briefs and/or present oral argument on the issues.

In order to file an appeal the party appealing shall pay the designated fee and file a Statement

of Appeal with the Court which sets forth:

The time, date, and nature of the action being appealed;

The reasons why the appealing party feels the Director's or the Water Commission's

decision is not in accordance with Tribal law; and

any requested relief.

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PAGE 19

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Upon receipt of a Statement of Appeal, the Umatilla Tribal Court shall direct the Water

Commission to transmit a copy of the hearing record to the Court. If it is an appeal of the

Director's decision, the Court shall specify the documents or information the Director must

submit to the Court.

The court shall render a decision on the appeal no later than thirty (30) days from the date the

Statement of Appeal is filed and the Court's decision shall be final and binding.

Any decision rendered by the Court shall set forth findings of fact and conclusions of law

justifying the decision. If necessary, the Court shall remand the case to the Director or the

Water Commission to act in accordance with its decision.

SECTION 1.14.

FEES

The Board of Trustees hereby establishes a fee schedule for licenses, permits, certifications,

registration statements, and the review of applications required by this Code. The Water Commission

shall develop and have the authority to determine the fee schedule (including the establishment or

deletion of fee categories and to increase or decrease the fee amounts) as is necessary to carry out the

administration of this Code. The fee schedule shall be adopted through administrative rule. The

Director shall prepare and maintain a current fee schedule which is available for public inspection.

SECTION 1.15.

LIABILITY

All Tribal employees, Tribal bodies or branches of government shall be immune from any civil or

criminal liability for their actions in the administration and enforcement of this Code. Water

administrators and enforcement officers shall have the authority to enter upon private property for the

purpose of inspections and enforcement and shall incur no liability there from.

SECTION 1.16.

SEVERABILITY

If any provision of this Code or application thereof to any person or circumstance is held invalid, this

code shall be given effect without the invalid provision or application. Accordingly the provisions of

this Code are declared to be severable.

SECTION 1.17.

COMPUTATION OF TIME

Whenever a time period is specified within this Code where action is required within a specified

number of days, such reference shall mean calendar days, except where specified as working days,

unless the final day falls upon a weekend or holiday in which case the specified action shall be due on

the next working day.

CHAPTER 2.

WATER RESOURCE USE AND DEVELOPMENT

SECTION 2.01.

PRIOR WATER RIGHTS

The Confederated Tribes of the Umatilla Indian Reservation shall have the sole authority for

permitting or authorizing the withdrawal or use of water within the boundaries of the

Reservation.

All water rights granted to any person or entity, or for any property, within the boundaries of

the Reservation by the Oregon Water Resources Board, the Office of the State Engineer or

any other agent or authority of the State of Oregon are hereafter null and void.

Any water right with a priority date prior to August 5, 1981 obtained under the authority of

the State of Oregon, whether for surface or ground water, shall be recognized as valid until

such time as the status of the Confederated Tribes’ reserved water right is resolved.

WATER CODE

PAGE 20

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

SECTION 2.02.

Actions Requiring a Water System Development or Water Use Permit. Any person seeking to

divert, use, or initiate any action to divert or use Reservation water resources which use or

uses have been allowed and defined as a beneficial use under this Code shall file an

application for a Water System Development Permit or Water Use Permit. No person shall:

Divert or use any water unless pursuant to a Water Permit issued in accordance with

the provisions of this Code. A permit shall be required for each beneficial use and for

each diversion works.

Drill any new well, whether domestic, irrigation or otherwise, or construct or install a

diversion works to divert surface water unless done pursuant to a Water Permit issued

in accordance with the provisions of this Code.

Drill for the purposes of extending or deepening an existing well unless pursuant to a

Water Permit issued in accordance with the provisions of this Code.

Permits Required for Developing and Using Water.

WATER SYSTEM DEVELOPMENT AND WATER USE PERMITS

Except for the exemptions specified in this Code below,

Development Permit is required prior to:

a valid Water System

Beginning construction of new water diversion works or enlarging, deepening,

relocating, or performing any alteration of an existing well; or

Changing one or more of the following:

point of diversion,

ii.

place of use,

iii.

beneficial use,

iv.

rate of diversion,

rate of application of water, or

vi.

water source.

Except for the exemptions specified in this Code below, a valid Water Use Permit is

required prior to the appropriation of any Tribal water resources for beneficial use.

Except for the exemptions specified in this Code below, a Temporary Water Use

Permit is required, in lieu of a Water Use Permit, by any person who appropriates

Tribal water resources for beneficial use for a period of three (3) years or less.

Exemptions to Requirement for Acquiring a Water System Development or Water Use

Permit.

Prior Water Rights. Exempt wells drilled or users holding a valid Oregon State Permit

issued prior to the adoption of the original Interim Water Code, August 5, 1981, shall

not be required to obtain a Tribal Water Permit until the water user changes any of the

original Oregon State permit conditions.

Emergencies. The following uses of water are allowed without a Water Permit

provided the user notifies the Director within 48 hours of diverting water and obtains

the permission of the owner of the diversion works.

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PAGE 21

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Water from any source may be diverted to control fire in case of emergency.

Water from any source may be diverted for domestic or community use for a

period not to exceed thirty (30) calendar days when water is unavailable due to

drought or other emergency or during the construction or alteration of a

permitted diversion works.

Water from any source may be diverted for stock watering for a period not to

exceed thirty (30) calendar days in time of drought or other emergency which

renders water unavailable for stock purposes. The diversion shall be the

minimum necessary to alleviate the emergency.

Effect of Permits. Water System Development or Water Use Permits issued under the

provisions of this Code do not create, recognize, or convey and shall not be construed as

creating or recognizing, or conveying ownership of water to the permittee.

Any Water System Development Permit issued in accordance with the provisions of

this Code is authorization by the Confederated Tribes for the permittee to develop,

construct, alter, or prepare a diversion works for operation of a water use system or to

effect a change in use, subject to the terms and conditions of the permit, this Code and

any amendments hereto, and to actions taken pursuant to this Code.

Any Water Use Permit and Temporary Water Use Permit issued in accordance with

the provisions of this Code is authorization by the Confederated Tribes for the

permittee to use water resources, subject to the terms and conditions of the permit, to

this Code and amendments hereto, and to actions taken pursuant to this Code.

Duration of Permits. Subject to renewal, modification, and cancellation procedures of this

Code, Water System Development of Water Use Permits shall have the following terms:

A Water System Development Permit validated by the Director shall be valid for a

period not to exceed three (3) years.

A Water System Development Permit validated by the Water Commission shall be

valid for a period not to exceed five (5) years.

Temporary Water Use Permits shall have a term not to exceed three (3) years.

Valid permits for non-temporary domestic, community, and municipal use shall have a

term of thirty (30) years. This provision is retroactive to all domestic, community, and

municipal permits issued since adoption of the original Interim Water Code on August

5, 1981.

Valid non temporary permits that are approved by the Director for all other uses shall

have a term of ten (10) years.

Valid non-temporary permits that are approved by the Water Commission for uses not

covered above shall have a term not to exceed thirty (30) years. If the Water

Commission approves a permit with a term of greater than ten (10) years, the permit

shall contain a condition that the Director shall periodically review the use authorized

by the permit. Periodic review of a permit shall occur at least once every ten (10) years

as specified by the Water Commission on the permit. The purpose of the periodic

review is to determine compliance of the use with the conditions of the permit, the

provisions of this Code and amendments hereto, and with rules and regulations

adopted hereunder.

Restricted Applicants for Specific Beneficial Uses. Only the Confederated Tribes or its

agencies, committees or commissions shall be authorized to apply for and receive any Water

Permit to use water for fish habitat, wildlife habitat, or noncommercial fish hatchery

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PAGE 22

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

beneficial uses, or for instream flows for pollution abatement, recreation or power generation

beneficial uses. The Water Commission is authorized to approve or deny requests for Water

System Development Permits for these uses.

Water Conservation Plans. The Director and the Water Commission may require applicants

for Water System Development or Water Use Permits and permit holders to prepare and

implement water conservation plans for water use authorized under this Code. The Water

Commission shall adopt regulations which establish the procedures and standards for

preparing water conservation plans.

Entry on Land as a Condition of Permits. All Water System Development or Water Use

Permits shall contain consent by the permittee for access by Tribal representatives upon

permittee's land and appurtenances for the purpose of administration and enforcement of

permits issued under the provisions of this Code.

Metering of Water Use. All Water System Development or Water Use Permits that are

approved by the Director or the Water Commission for non-domestic uses that pump or divert

more than twenty-five (25) gallons per minute shall contain a condition requiring the

installation and maintenance of a flow and totalizing metering system. The Director or Water

Commission may exempt the totalizing feature of a metering system if the permit authorizes a

non-consumptive use of water.

Construction of Diversion Works. All diversion works, including but not limited to wells,

pumps, canals, and head gates authorized by Water System Development Permits shall be

constructed to comply with Tribal standards for the development and construction of wells

and surface water diversions.

Prior Permitted Uses.

Any water user who possesses a valid permit issued prior to August 5, 1981, must

apply for and obtain a Water System Development Permit approved by the Director, if

the user intends to deepen, enlarge or recondition an existing well. If the only action is

the alteration of the structure of an existing well, a Water Use Permit is not required.

Any water user who possesses a valid permit issued prior to August 5, 1981, must

obtain a Water System Development Permit and a Water Use Permit, in accordance

with the provisions of this Code, if the user intends to change one or more of the

following: the beneficial use, rate of diversion, rate of application, or water source.

Any water user who possesses a valid permit issued prior to August 5, 1981, must

obtain authorization from the Director prior to changing the point of diversion or the

place of use of the permit. Persons intending to change the point of diversion or place

of use shall file an application with the Director for a modified Water System

Development Permit. The Director shall approve the proposed change and issue the

permit only if the request conforms to the provisions Modifications of Water Rights,

Water System Development, or Water Use permits as specified below in this Code.

SECTION 2.03.

CRITERIA FOR APPROVAL OF WATER SYSTEM DEVELOPMENT

PERMITS

Director’s Authority and Criteria.

The Director shall have the authority to approve or deny Water System Development

Permit requests for:

WATER CODE

Domestic use withdrawing water from any water source,

PAGE 23

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Community use withdrawing water from any groundwater source provided the

requested pumping or diversion rate is less than two hundred (200) gallons per

minute,

Any temporary beneficial use withdrawing water from:

The basalt aquifer provided the maximum rate of diversion is twentyfive (25) gallons per minute and the maximum annual usage is two (2)

acre feet if the point of diversion is located in the Mission Basin Water

Management Region; or a maximum rate of diversion of one-hundred

fifty (150) gallons per minute and maximum annual usage of ten (10)

acre feet if the point of diversion is located in any Water Management

Region other than the Mission Basin,

ii.

The alluvial aquifer or surface water source provided the maximum rate

of diversion is one-hundred fifty (150) gallons per minute and the

maximum annual usage is five (5) acre feet,

Agricultural irrigation withdrawing water from:

the basalt aquifer provided the maximum rate of diversion is twentyfive (25) gallons per minute and the maximum annual diversion is five

(5) acre feet if the point of diversion is in the Mission Basin Water

Management Region; or a maximum rate of diversion of one-hundred

fifty (150) gallons per minute and a maximum annual usage of forty

(40) acre feet if the point of diversion is located in any Water

Management Region other than the Mission Basin,

ii.

the alluvial aquifer provided the maximum rate of diversion is fifty (50)

gallons per minute and the maximum annual usage is ten (10) acre feet,

Cultural use withdrawing water from any water source provided the maximum

rate of diversion is twenty-five (25) gallons per minute and the maximum

annual usage is five (5) acre feet,

Stock watering use withdrawing water from:

the basalt aquifer provided the maximum rate of diversion is fifteen

(15) gallons per minute and the maximum annual usage is one (1) acre

foot if the point of diversion is located in the Mission Basin Water

Management Region; or a maximum rate of diversion of twenty-five

(25) gallons per minute and maximum annual usage of two (2) acre feet

if the point of diversion is located in any Water Management Region

other than the Mission Basin,

ii.

the alluvial aquifer or surface water source provided the maximum rate

of diversion is fifteen (15) gallons per minute and the maximum annual

usage is one (1) acre foot,

General farm use withdrawing water from any groundwater source provided

the maximum rate of diversion is twenty-five (25) gallons per minute and the

maximum annual usage is one (1) acre foot if the point of diversion is located

in the Mission Basin Water Management Region; or a maximum rate of

diversion of fifty (50) gallons per minute and maximum annual usage of three

(3) acre feet if the point of diversion is located in any Water Management

Region other than the Mission Basin,

WATER CODE

PAGE 24

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Fire protection use from any source provided the applicant and proposed user

is a fire protection district or Tribal Fire Department and the maximum

pumping rate or rate of diversion is three-hundred (300) gallons per minute,

Pollution abatement use, for dust control only, withdrawing water from any

water source provided the maximum diversion rate is twenty-five (25) gallons

per minute and the maximum annual usage is two (2) acre feet,

Public, commercial, and industrial uses withdrawing water from any

groundwater source provided the maximum rate of diversion is fifty (50)

gallons per minute and the maximum annual usage is five (5) acre feet if the

point of diversion is located in the Mission Basin Water Management Region;

or a maximum rate of diversion of one hundred (100) gallons per minute and

maximum annual usage of ten (10) acre feet if the point of diversion is located

in any Water Management Region other than the Mission Basin.

Upon receiving a complete application and the filing fee, the Director shall approve a

Water System Development Permit provided the applicant demonstrates that all of the

criteria listed below are met. The Director shall deny the request if the request fails to

comply with one or more of the review criteria.

The requested use is a beneficial use of water as defined in this Code;

The request conforms to the standards for beneficial uses;

The request conforms to the Director’s criteria for approval as specified in this

Code;

The requested development and beneficial use supports a land use that is

consistent with the policies and standards of the Confederated Tribes’ Land

Development Code;

Construction activities associated with the requested development do not

discharge pollutants into the waters of the Reservation in violation of the

Water Quality Standards;

If the request is for developing a new diversion works to replace an existing

diversion works or for altering an existing diversion works, that the existing

diversion works is unable to provide the needed quantity or quality of water to

support the requested beneficial use; and

The applicant demonstrates that the owner(s) of the land where the point of

diversion and place of use are located approves the filing of the application;

There is water available from the proposed water source for the requested

development and beneficial use.

Water Commission's Criteria.

Upon receiving a complete application and the filing fee, the Water Commission shall

hold a public hearing and evaluate the request for a Water System Development

Permit based on the following criteria.

The requested use is a beneficial use of water as defined in this Code;

The request conforms to the standards for beneficial uses;

The requested development and beneficial use supports a land use that is

consistent with the policies and standards of the Land Development Code;

WATER CODE

PAGE 25

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Construction activities associated with the requested development do not

discharge pollutants into the waters of the Reservation in violation of the

Water Quality Standards;

If the request is for developing a new diversion works to replace an existing

diversion works or for altering an existing diversion works, that the existing

diversion works is unable to provide the needed quantity or quality of water to

support the requested beneficial use;

The applicant demonstrates that the owner of the land where the point of

diversion and place of use are located approves the filing of the application;

There is water available from the proposed water source for the requested

development and beneficial use;

The request is consistent with the policies and purposes of this Code;

The quantity, diversion rate, point of diversion, place of use, and season of use

of the proposed development will not interfere with higher priority uses, either

permitted or reserved; and

The request utilizes the minimum amount of water to accomplish the purposes

of the proposed development.

When rendering a decision the Water Commission may:

Approve the request without conditions if the request conforms to all of the

criteria 1(a) through 1(j) above;

Approve the request with conditions if condition(s) are needed to satisfy

criteria 1(h), 1(i), and 1(j) above;

Deny the request if the request does not conform to one or more review criteria

1(a) through 1(g) above; or

Deny the request if no condition(s) will satisfy one or more of the criteria 1(h),

1(i), and 1(j).

Obtaining a Water Use Permit.

Upon the approval of the Water System Development Permit, the permit holder shall

complete construction and put water to beneficial use in accordance with the terms and

conditions of the permit prior to the expiration date on the permit. If water has not

been put to beneficial use prior to the specified expiration date, the Director shall

cancel the Water System Development Permit in accordance with the provisions of

this Code.

If water is put to beneficial use in accordance with the terms and conditions of the

Water System Development Permit, the applicant shall register the development and

the Director shall issue the Water Use Permit.

Registration and filing for a Water Use Permit requires the permittee to:

Show proof of completion of the appropriation pursuant to the approved

permit;

Obtain and return a completed registration statement form for the water

development authorized for each Water System Development Permit to the

Department of Natural Resources;

WATER CODE

PAGE 26

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Each registration statement shall be in a form prescribed through the

administrative rules and shall be under oath (except for domestic use);

Each registration statement shall be accompanied by such maps and drawings

and other data as the Department of Natural Resources deems necessary;

The Department of Natural Resources may require that any registration

statement be supplemented after any diversion works is fully completed by a

statement containing such additional information as the Department of Natural

Resources deems necessary.

SECTION 2.04.

WATER USE PERMIT RENEWALS

The Director of the Department of Natural Resources shall have the authority to approve or

deny the renewal of any non-temporary Water Use Permit with a term of more than three (3)

years. All Temporary Water Use Permits shall be cancelled automatically upon the expiration

of the permit and shall not be renewable by the Director.

Within thirty (30) calendar days after the expiration date of a Water Use Permit, the permittee

or water user shall either file a request for renewal of the permit or voluntarily cancel the

permit.

The Director shall notify the permittee of the expiration or pending expiration of a Tribal

Water Use Permit issued pursuant to the Code. The notification shall be sent to the permittee

via certified mail at the address last known to the Director.

SECTION 2.05.

TRANSFERS OR CANCELLATION OF WATER SYSTEM DEVELOPMENT

AND WATER USE PERMITS

Transfer of Water System Development or Water Use Permits. Any valid Water System

Development or Water Use Permit issued in accordance with the provisions of this Code may

be transferred to another person or persons without any other change as a result of the sale of

land upon which the water is permitted for use, or the final distribution of an estate. Transfers

must conform to the permit conditions, standards, and policies of this Code and regulations

and amendments hereto.

Subdivision and Apportionment. Water System Development or Water Use Permits issued

under the provisions of this Code may be subdivided or apportioned subject to the conditions

of the permit and provided there is no change in the beneficial use, place of use, pumping rate,

flow rate, or rate of application from a permitted diversion works. Water permit subdivisions

or apportionments shall be subject to approval by the Director.

Authorization to Cancel Permits. The Director, Water Commission, and the Umatilla Tribal

Court are hereby and severally authorized to cancel Water System Development or Water Use

Permits in accordance with the provisions of this Code.

Reasons for Cancellation. A Water System Development or Water Use Permit may be totally

or partially cancelled for the following causes:

Failure to comply with any terms and conditions of the permit, a provision of this

Code, or with any order or decision of the Director, Water Commission or the

Umatilla Tribal Court,

Nonuse of water as specified in this Code,

Expiration of time for permits issued with a specified time limit,

Any misrepresentation of a material fact in an application for permit, or in any other

statement made as part of the application, modification, or cancellation process,

WATER CODE

PAGE 27

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Voluntary relinquishment of a Water System Development or Water Use Permit.

Voluntary Relinquishment of Water Permits. Any person holding a Water System

Development of Water Use Permit may voluntarily cancel all or a portion of the permit at any

time by filing a Voluntary Cancellation of Water System Development or Water Use Permit

form with the Director. Upon receiving a completed Voluntary Cancellation of Water System

Development or Water Use Permit form from the permit holder, the Director shall cancel the

portion of the permit relinquished by the holder.

Cancellation of Water System Development Permits.

If water has not been diverted for beneficial use in conformance with permit

conditions, prior to the expiration date of the Water System Development Permit, the

Director shall notify the permit holder, by certified mail, that permit cancellation

proceedings are being initiated. The notice shall include, at a minimum, the permit

number, permit expiration date, beneficial use of water, the general cancellation

procedure, the deadline for submitting a written response, and the permit holder’s

recourse. The holder shall be given twenty (20) calendar days to show, in writing, that;

Failure to put water to beneficial use was due to factors beyond the control of

the permit holder; and

The holder intends to complete project work and put water to beneficial use

within one year after the expiration date on the permit.

The Director shall extend the permit expiration date by one year if the permit holder

shows that the failure to use water was not self inflicted and that water will be put to

beneficial use within one (1) year. The Director shall cancel the permit, effective on

the expiration date as stated on the Water System Development Permit, if the permit

holder fails to respond, in writing, within the twenty (20) day deadline, or if the reason

for failure to put water to use was self inflicted, or if the holder does not intend to put

water to use within one (1) year. Appeals of the Director's decision shall be made to

the Umatilla Tribal Court. The expiration date on a Water System Development permit

may not be extended more than once.

Cancellation of Water Use Permits.

Any permit authorizing the use of water resources shall become void to the extent of

nonuse or abandonment when the permit holder wholly or partially abandons the use

permitted, or voluntarily ceases, without sufficient cause, to use all or a portion of the

water authorized under the permit for a period of five (5) consecutive years.

Any permit authorizing the use of water resources shall not become void to the extent

of nonuse or abandonment when the permit holder wholly or partially abandons the

use permitted with sufficient cause. Sufficient cause shall include:

Drought or other unavailability of water,

Active service in the armed forces of the United States during military crisis,

Non-voluntary service in the armed forces of the United States,

The operation of legal proceedings,

The application of any laws restricting water use,

Incarceration in a penal institution,

Confinement in a mental institution, whether voluntary or not,

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PAGE 28

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Other causes of nonuse determined by the Water Commission to be beyond the

control of the holder of the permit.

Non-Use or Abandonment. Before any portion of a Water Use Permit is cancelled because of

non-use or abandonment, the Director shall notify, by certified mail, the holder of the permit

that the Department of Natural Resources is initiating proceedings to cancel the permit. The

Director shall follow procedures established by administrative rule. The cancellation of the

Water Use Permit for nonuse or abandonment shall become effective thirty (30) calendar days

after notice has been provided to the permit holder unless said permit holder appeals the

decision to the Umatilla Tribal Court.

Loss by Adverse Possession, Prescription, Estoppels or Acquiescence. No Water Permit may

be acquired or lost by adverse possession, prescription, estoppel or acquiescence.

Loss by Outside Proceedings. No Water System Development or Water Use Permit granted

under this Code may be reduced or otherwise affected in any procedure or determination or

adjudication except as provided in this Code.

SECTION 2.06.

MODIFICATION OF WATER RIGHT, WATER SYSTEM DEVELOPMENT

OR WATER USE PERMITS

Modification of Water Permits by the Water Commission. Water Rights or Water System

Development/Water Use Permits may be modified by the Water Commission where:

The permitted or allowed water use creates conditions that cause a hardship on the

surrounding water users,

A change of conditions requires a modification of the permit,

All applicable requirements of this Section have been satisfied.

Hardship on Surrounding Water Users. Where one or more permitted water use(s), whether

granted prior or subsequent to the adoption of this Code, creates a hardship upon the

surrounding water users, that water right or permit may be modified, temporarily or

permanently, by the Water Commission in such manner as may be necessary to alleviate the

hardship. For purposes of Section 2.05, "hardship" shall be defined as a detrimental condition

that is beyond the control of the individual(s) and is not personal or self-inflicted.

The Water Commission, upon finding that a hardship exists, and that such hardship

may be relieved by temporarily modifying one or more permits, may order a

temporary modification of a permitted water use(s) for a period not to exceed onehundred eighty (180) calendar days in any calendar year. Such order shall be enforced

by the Director. Failure of the permittee(s) to comply with the order shall be a

violation of this Code.

The Water Commission shall conduct a public hearing prior to permanently modifying

a water right or permit. A permit may be permanently modified provided that the

Water Commission finds that:

A hardship exists;

The use or uses experiencing the hardship are higher priority uses than the uses

proposed for modification;

The act of using water, as authorized under the permits or rights which are

subject to modification, is causing the hardship; and

A permanent modification is needed to alleviate the hardship.

WATER CODE

PAGE 29

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

The Water Commission shall order a modification of the permit or water right only to

the extent necessary to alleviate the hardship. The Director shall carry out such order.

Failure of a permittee to comply with the order shall be a violation of this Code.

Modification of Water Permits by the Director. The Director of the Department of Natural

Resources may modify existing Water Permits or prior permits either temporarily or

permanently provided that:

There is no change in the beneficial use of water;

There is no increase in the allocation (rate and/or duty) of water;

The proposed modification is consistent with the remaining condition(s), except for

the Point of Diversion and Place of Use as specified in items five (5) and six (6)

below, of the original permit;

The proposed modification is consistent with the provisions of this Code;

There is no evidence of an adverse impact on surrounding water users in the

modification of the Point of Diversion (POD) provided that the applicant or permittee

provides proof of authorization to use water and of access to the Point of Diversion;

If the modification is a change in the Place of Use provided that the applicant or

permittee provides proof of authorization to use water and of access to the Place of

Use and, if the beneficial use is irrigation, that there shall be no increase in the

irrigated acres as authorized in the original permit.

Procedures for Water Permit Modification. A modification of and existing permit may be

requested by submitting an application to the Director of the Department of Natural

Resources. The application form shall be promulgated by the Director. Any request for a

modification pursuant to subsection (c) above of this Code shall be acted upon within thirty

(30) calendar days after receipt of a completed application. Any modification to an existing

water permit that is not specifically defined in the subsections above may only occur by

applying for a new water permit as specified in this Code.

SECTION 2.07.

WELL CONSTRUCTOR LICENSING

Well Constructor License.

No person shall be authorized to construct wells within the boundaries of the

Reservation unless licensed to do so by the Confederated Tribes.

No well constructor shall commence constructing any well on the Reservation until all

the permit requirements of this code have been complied with.

Any well constructor operator intending to drill wells on the Reservation shall obtain a

well constructor’s license upon application and execution of a sworn document

agreeing to abide by this Code and upon successfully completing qualification and

experience requirements and a written examination as adopted by the Water

Commission. In addition, the well constructor must execute a bond, insuring

compliance with this Code, in favor of the Confederated Tribes. The bond shall be in

the amount of five thousand dollars ($5,000.00).

Any well constructor must notify the Department of Natural Resources five (5) days

prior to constructing any well within the boundaries of the Reservation.

Well Constructor Standards and Regulations. The Water Commission shall establish rules

and standards for Well Constructor’s License procedures and well construction on the

Umatilla Indian reservation through Administrative Rules.

WATER CODE

PAGE 30

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

CHAPTER 3.

WATER QUALITY PROTECTION

SECTION 3.01.

AREA OF APPLICATION

The Water Quality Standards apply to all waters of the Umatilla Indian Reservation.

SECTION 3.02.

RESPONSIBILITIES

The Board of Trustees delegates the responsibility for implementing this chapter as follows:

The Water Commission. The Water Commission is responsible for policy direction and

implementation of the Water Quality Standards, Beneficial Uses and Treatment Criteria and

for interpreting narrative water quality criteria.

The Fish and Wildlife Committee. The Fish and Wildlife Committee is responsible for

reviewing information on fish and wildlife species, habitat and critical life stages to determine

the specific stream reach designations. The Fish and Wildlife Committee will assist the Water

Commission in ensuring that the fish and aquatic resources of the Reservation are protected

by the adopted Water Quality Standards and Treatment Criteria.

The Director of the Department of Natural Resources. The Director is responsible for

monitoring and managing the water resources of the Umatilla Indian Reservation and for

providing technical assistance to the Board of Trustees, the Water Commission and the Fish

and Wildlife Committee.

The Umatilla Tribal Court. The Umatilla Tribal Court is responsible for hearing appeals of

administrative actions and for adjudicating cases under the civil and/or criminal penalty

provisions of this Code.

SECTION 3.03.

ANTI-DEGRADATION POLICY AND WATERS OF THE RESERVATION

Purpose of the Anti-degradation Policy. The purpose of the anti-degradation policy is to

provide for the maintenance and protection of the waters of the Reservation by the prevention

of any further degradation of the quality of the water in its present state. The anti-degradation

policy will be used to guide decisions that affect water quality such that degradation from

point and non-point sources of pollution are prevented, and to protect, maintain and enhance

surface water quality to protect all existing and designated beneficial uses.

Anti-degradation Policy. The protection of existing instream uses and the level of water

quality and quantity necessary to provide full support to those uses must be maintained and

protected. No provision or conditioned activity in this chapter is to be interpreted as

suspending basic water quality protection; also, this provision is not intended to prevent the

restoration of instream uses that existed prior to human caused alteration of a water body.

Anti-degradation Policy and Classification of Tribal Water. The Water Commission may

classify the surface waters of the Reservation as “Water Quality Limited” or as “High Quality

Waters”. The Board of Trustees may classify waters of exceptional quality as “Outstanding

Resource Waters”. The classification of Tribal waters into one of these three classifications

enables the application of Tier I, II, or III, protections respectively. The Water Commission

will establish tiered levels of protection for classified waters, in addition to those specifically

listed in the Water Quality Standards, Beneficial Uses and Treatment Criteria and shall

establish water quality requirements for water bodies, where determined necessary, to provide

support for existing uses.

Tier I Protection of “Water Quality Limited” Waters.

No further lowering of quality is allowed for water quality parameters not

currently meeting standards in any or all waters of the Reservation. These

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

“Water Quality Limited” (or Tier I) waters are governed at a Tier I level of

protection, allowing no further degradation.

Except where directly authorized in this Code, where a water quality parameter

is not meeting narrative or numeric criteria established to protect designated or

existing beneficial uses, no new or expanded actions will be allowed that will

contribute to loading or concentrations in the water body for that parameter or

other parameters that in combination have a detrimental effect on the beneficial

uses.

For parameters not meeting water quality standards, the Water Commission

will take appropriate and definitive steps, through development of Total

Maximum Daily Loads (TMDL) with associated controls and water quality

management, and/or implementation plans, to bring the water quality back to

levels which meet the water quality standards and provide full support for

existing and designated beneficial uses.

Where numeric and narrative water quality criteria are not attained due to

natural conditions, human actions and influences are not allowed to further

lower the water quality for those parameters except where specifically

provided for in a criterion itself.

Tiers II and III Level of Protection – Maintaining High Quality Water The degrading

of existing water quality to lower water quality, as determined by a potential change in

any parameter(s) by any action, either point or non-point, is prohibited except when all

of the following criteria are met:

The Water Commission determines, after review of all relevant alternatives,

that allowing a lowering of water quality is necessary to provide benefits that

are in the overriding public interest. In that case, the entity proposing the action

must adopt the alternative identified under an Anti-degradation Review that

minimizes the lowering of water quality to the greatest degree;

All wastes or other materials and substances from new and existing point

sources that drain or are discharged into those waters are provided with all

known, available, and reasonable methods of prevention, control, and

treatment before they drain or discharge;

All actions which result in the pollution of waters from non-point sources are

provided with all known, available, and reasonable best management practices

which are approved by the Water Commission;

In the case of an entity having planning, managerial, or operational control

over multiple actions affecting a water body, the entity has evaluated and

documented in writing whether better controls on those other actions can be

established to offset any lowering of water quality from the new or expanded

action. In addition, the entity must ensure those other actions are meeting, or

are on a formal schedule, fully enforceable by this Code, to meet all applicable

Water Quality Standards;

The lowered water quality would still be of high enough quality to meet

established numeric standards and narrative criteria and provide full support

for all existing and designated instream uses taking into account the cumulative

effect of foreseeable increases in water withdrawals and uncontrolled

degradation by unregulated sources, and taking into account the additive effect

of multiple pollutants; and

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

The Water Commission determines how much assimilative capacity remains

and what portion of the remaining assimilative capacity may be allocated to

this proposed action.

Where a distinction cannot be made between tier classifications of surface water,

wetlands, or groundwater, the applicable standards will depend on the existing and

designated beneficial use(s) that may be adversely affected. When two or more

classifications apply in one area, the more stringent water quality standards shall

prevail. If the designated beneficial use of more than one resource is affected, the most

protective criteria shall apply.

Anti-degradation Implementation.

The support of designated and existing uses, along with numeric water quality

standards and narrative criteria, set the minimum level of protection required for

beneficial uses.

No existing or planned actions may be allowed to cause water quality conditions to

violate Tribal water quality standards established for water bodies, except where

specific allowances have been otherwise provided in this Code.

Clean Water Act Compatibility. In cases where potential water quality impairments

associated with thermal discharge are involved, the Anti-degradation Policy and

implementing methods shall be consistent with Section 316 of the Clean Water Act, as

amended.

SECTION 3.04.

WATER QUALITY CERTIFICATION AND ANTI-DEGRADATION REVIEW

OF TRIBAL PERMITS

Water Quality Certification Required. Any applicant for a Tribal permit to conduct any

activity which may result in any discharge into the waters of the Reservation must provide the

Tribal permitting program or department with a Water Quality Certification from the Director

that any such activity will comply with this Code, regulations implementing this Code, and

the Water Quality Standards. The certification is obtained through the completion of an antidegradation review.

Anti-degradation Review Process.

A completed Anti-degradation Review application with all necessary supporting

documentation shall be filed with the Director. Anti-degradation applications may be

obtained from the Department of Natural Resources.

The Water Commission will determine, through administrative rules, the information

required on the Anti-degradation Review application.

Each Anti-degradation Review application submitted must be accompanied by the

appropriate fee based upon the fee schedule maintained through administrative rules.

The Director is authorized to require an applicant to submit any additional information

necessary to complete an anti-degradation review or to assist the Director to

adequately evaluate the impacts of the project on water quality.

Director’s Evaluation. In order to make findings for certification, the Director’s evaluation of

an application for an anti-degradation review shall include but need not be limited to the

following:

Existing and potential beneficial uses of surface or groundwater which could be

affected by the proposed facility;

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Potential water-related impacts from the generation and disposal of waste chemicals or

sludge at a proposed facility;

Potential modification of surface water quality or water quantity as it affects water

quality;

Potential modifications of groundwater quality;

Potential impacts from the construction of intake or outfall structures;

Potential impacts from waste water discharges;

Potential impacts from construction activities;

The project’s compliance with water quality related to standards established by the

Water Commission.

Director’s Determination.

Upon completion of the Anti-degradation Review, the Director shall make a finding

that either:

The proposed activity probably meets the Tribal Water Quality Standards; or

The proposed activity probably does not meet the Tribal Water Quality

Standards.

The Director shall render a determination as to whether or not the request will meet

the Tribal Water Quality Standards based upon the following review criteria:

The proposed activity will affect the existing and potential beneficial uses

listed in Table 1 of the Tribal Water Quality Standards;

The proposed activity will affect water quantity, or flows, as it relates to water

quality;

Any activity related to the construction or operation of the proposed project

will or potentially will discharge pollutants into surface or groundwaters of the

Reservation;

The proposed activity complies with the Tribal Anti-degradation policy of the

Water Quality Standards;

The proposed activity complies with the biological and wildlife criteria of the

Tribal Water Quality Standards; and

The proposed activity complies with the numeric and/or narrative criteria of

the Tribal Water Quality Standards.

Upon a finding that the proposed activity probably does meet the Tribal Water Quality

Standards, the Director will issue a Water Quality Certification so stating that

conclusion.

Upon making a finding that the proposed activity probably does not meet the Tribal

Water Quality Standards, but could meet Standards with modifications to the request,

the Director may issue a Water Quality Certification provided that certain conditions

are met. These conditions may include but are not limited to:

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Limitations on effluent discharges;

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Monitoring, by the applicant of effluent discharge on a regular basis;

Minimum stream flow conditions;

Criteria and use restrictions necessary to advance the Tribal anti-degradation

policy;

Any other water quality protective measures deemed necessary by the Director

to maintain and protect water quality on the Reservation; or

Termination of the operation upon evidence that such operation violates or

threatens to violate the Water Quality Standards.

Upon a finding of that the proposed activity probably does not meet the Tribal Water

Quality Standards and will result in a violation, the Director will so certify and deny

the certification. The Director shall notify the applicant and/or the Tribal agency

issuing the permit of the his findings in writing.

A Tribal permit shall not be granted until the certification required by this chapter has

been obtained or has been waived as provided below. A permit will not be granted if

certification has been denied by the Director.

If the Director fails to act on a request for a certification within 60 days after receipt of

a completed Anti-degradation Review Application, the review and certification

requirements of this section shall be waived with respect to the application for a Tribal

permit.

Certifications granted pursuant to these rules are valid for the applicant only and are

not transferable to another person or entity without prior approval of the Director or

his designated representative.

SECTION 3.05.

Review of Information. The Director working in conjunction with the Water Commission

and the Fish and Wildlife Committee, will review and update the information available from

Fisheries and Water Resources Programs to identify the following:

Water bodies where cold-water aquatic life and cool-water aquatic life exists;

Specific reaches within individual water bodies where salmonid spawning, rearing,

holding and migration take place;

If there is insufficient information available, further information shall be developed

and specific water bodies will be designated and approved by the Water Commission

with recommendations from the Fish and Wildlife Committee;

Water Quality Standards for these stream reaches will be reviewed and modified, if

necessary, in the triennial review process.

Application of Standards. The information provided above will be utilized to determine

which Water Quality Standards apply in each specific water body on the Reservation.

SECTION 3.06.

SALMONID SPAWNING AREAS

CERTIFICATION OF CLEAN WATER ACT SECTION 401 WATER

QUALITY PERMITS

Director’s Authority. The Confederated Tribes has the delegated authority under the Clean

Water Act to conduct Section 401 Water Quality Certification (hereinafter “Section 401

Certification”) of federal permits issued on the Umatilla Indian Reservation. The Director of

the Department of Natural Resources, under the oversight of the Water Commission, shall be

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

responsible for collecting, reviewing, evaluating, processing, approving, or denying all

applications for certification pursuant to §401 of the Clean Water Act.

Certification Required.

Any application for a federal permit to conduct any activity which may result in any

discharge into the waters of the Reservation must obtain a certification from the

Director that any such activity will comply with the Clean Water Act, this Code,

regulations implementing this Code, and the Water Quality Standards of performance

for new sources, and toxic and pretreatment effluent standards.

All correspondence and notifications with regard to Section 401 Certification

applications are to be delivered to the Director. Completed applications for

certification shall be filed directly with the Director.

Forms and Documents.

A completed Section 401 Certification application with all necessary supporting

documentation shall be filed with the Director. Section 401 Certification application

forms may be obtained from the Department of Natural Resources.

The Water Commission will determine, through administrative rule, the information

required on the Section 401 Certification application.

Each Section 401 Certification application submitted must be accompanied by the

appropriate fee based upon the fee schedule maintained by the Director in this Code.

The Director is authorized to require an applicant to submit any additional information

necessary to complete a Section 401 Certification or to assist the Director to

adequately evaluate the impacts of the project on water quality.

Director’s Evaluation. In order to make findings required for a Section 401 Certification, the

Director’s evaluation of an application for project certification may include but need not be

limited to the following:

Existing and potential beneficial uses of surface or groundwater which could be

affected by the proposed facility;

Potential water related impacts from the generation and disposal of waste chemicals or

sludge at a proposed facility;

Potential modification of surface water quality or water quantity as it affects water

quality;

Potential modifications of groundwater quality;

Potential impacts from the construction of intake or outfall structures;

Potential impacts from waste water discharges;

Potential impacts from construction activities;

The project’s compliance with water quality related to standards established by the

Water Commission.

Section 401 Certification Procedures.

Within 120 days after an application is deemed complete pursuant to this chapter the

Director shall serve written notice on the applicant that the certification is granted or

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

denied or that a further specified time period is required to process the application.

Written notice shall be served by sending such notice by certified mail to the address

of the applicant as shown in the application except that granting of certification may

be by regular mail. Any extension of time shall not exceed one year from the date of

filing a completed application.

In order to inform potentially interested persons of the application, the Director shall

prepare and circulate a public notice announcement of each certification request in a

manner approved by the Water Commission. Notice shall be mailed to all parties

known to be interested in the matter, including but not limited to adjacent property

owners as cited in the application. If the Water Commission deems that mailed notice

is impracticable such public notice may be provided in a newspaper of general

circulation in the area where the activity is proposed to be conducted. The notice shall

inform interested parties of an opportunity to comment on the certification request in a

manner that the Tribal Water Committee deems appropriate, shall encourage

comments by interested parties, and shall tell of any related documents available for

public inspection and copying. The Director shall provide a period of not less than 30

days following the date of the public notice during which time interested persons may

submit written views and comments. All comments received during the 30 day period

shall be considered in formulating the Director’s position. The Director will add the

name of any person or group upon request to a mailing list to receive copies of public

notice.

The Director shall provide an opportunity for the applicant or any interested agency,

person, or group of persons to request or petition for a public hearing with respect to

certification applications. If the Director determines that new information may be

produced thereby, a public hearing will be held prior to the Director’s final

determination. Instances of doubt shall be resolved in favor of holding a hearing.

There shall be public notice of such a hearing. All interested and affected parties will

be given reasonable opportunity to present evidence and testify at the public hearing.

If, after considering the completed application, the record of a hearing, if any, and

such other information and data as the Director deems relevant, the Director

determines that there is a reasonable assurance that the proposed activity will not

result in a violation of the Water Quality Standards, or the Water Quality Standards

are not applicable to waters which may be affected by the proposed activity, the

Director will so certify. If the Director determines that the Water Quality Standards

are not applicable to waters which might be affected by the proposed activity, the

Director will notify the applicant and the federal licensing or permitting agency in

writing and will provide the federal licensing or permitting agency with advice,

suggestions, and recommendations with respect to conditions to be incorporated in any

permit to maintain compliance with the purposes of the Clean Water Act. In such

case, certification will not be required.

Conditions for Certification Approval. The Director’s certification for a project shall

include but need not be limited to the following conditions:

Limitations on effluent discharges;

Requirements that the applicant monitor effluent discharge on a regular basis;

Termination of the operation upon evidence that such operation violated or

threatens to violate Water Quality Standards;

Minimum flow conditions;

Turbidity criteria;

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Criteria and use restrictions necessary to advance the Confederated Tribes’

anti-degradation policy; and

Any other established water quality standard deemed necessary by the Water

Commission to maintain and protect water quality on the Reservation.

Request for Public Hearing. If the applicant is dissatisfied with the conditions of any

granted certification, the applicant may request a hearing before the Water

Commission. Such requests for a hearing shall be made in writing to the Director

within 20 days of the day of mailing the certification. Any hearing shall be conducted

pursuant to the Public Hearing procedures established by the Water Commission

through administrative rule.

Waiver of Certification. If the Director fails or refuses to act on a request for

certification within one year after receipt of such request, the certification

requirements of this chapter and section 401 of the Clean Water Act shall be waived

with respect to the application for a federal permit. A permit will not be granted until

the certification required by this chapter has been obtained or has been waived as

provided above. A permit will not be granted if certification has been denied by the

Confederated Tribes.

Certification Non-Transferable. Certifications granted pursuant to these rules are valid

for the applicant only and are not transferable without prior approval of the Director or

his designated representative.

Denial of Section 401Certification. If the Director proposes to deny certification for a project, a

written notice setting forth the reasons for the denial shall be served upon the applicant in the

manner set forth in Subsection (c)(1) above. The written notice shall advise the applicant of

appeal rights and procedures. A copy shall also be provided to the federal licensing or permitting

agency. The denial shall become effective 20 days from the date of mailing of the notice unless

within that time the applicant requests a hearing before the Water Commission. A request for a

hearing shall be made in writing to the Director and shall state the grounds for the request.

Revocation or Suspension of Section 401 Certification.

Cause for Revocation or Suspension. Certification granted pursuant to these rules may

be suspended or revoked if the Director determines that:

The application contained false information or otherwise misrepresented the

project; or

Circumstances related to approval of the certification have changed since the

application was filed; or

The conditions, limitations, or standards of the certification are being violated.

Notification of Revocation or Suspension. Written notice of intent to suspend or

revoke shall be served upon the applicant following the procedures set forth above.

The suspension or revocation shall become effective 20 days from the date of mailing

the notice. The applicant may appeal the revocation/suspension as provided in Chapter

Inspection Before Operation.

Purpose of Inspection. Where a facility or activity has received certification pursuant

to this Code in connection with the issuance of a federal permit for construction or any

other activity that affects the Water Quality Standards, or where such a facility or

activity is not required to obtain an operating permit, the Director shall be afforded the

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

opportunity to inspect such facility or activity for the purpose of determining the

manner in which such facility or activity will be operated or conducted if the activity:

May result in any discharge to waters of the Reservation; or

Will violate applicable the Water Quality Standards.

Notice of Deficiency. If the Director, after an inspection pursuant to the paragraph

above, determines that operation of the proposed facility or activity may result in any

discharge to waters of the Reservation or will violate the Water Quality Standards, the

Director shall notify the applicant and the federal licensing or permitting agency. Such

notice shall include the Director’s recommendation as to remedial measures necessary

to bring the operation of the proposed facility or activity into compliance with such

standards.

SECTION 3.07.

Goals and Objectives.

The goals and objectives of the Water Quality Management Plan, hereinafter the

WQMP, are to achieve compliance with Tribal water quality standards for the waters

of the Umatilla Indian Reservation. The WQMP is designed to be adaptive in nature as

more information and knowledge is gained regarding pollutants, allocations for

pollutant loading of water bodies, management measures, and other related

parameters. Watershed planning and management involve a number of activities,

including:

Identifying water quality problems in a watershed;

Targeting priority problems for resolution;

Promoting involvement by interested and affected parties;

Developing solutions to problems through the use of the expertise and

authority of multiple agencies and organizations; and

Measuring success through monitoring and other data gathering.

The Water Commission shall prepare and review, every five years, a WQMP for all

waters of the Reservation.

The WQMP shall be designed to protect the quality of water resources consistent with

this Code.

WATER QUALITY MANAGEMENT PLANNING

The WQMP shall focus on priority issues and impaired water bodies.

The WQMP shall have a watershed focus, yet also identify specific stream

reaches that are impaired.

The WQMP shall draw upon water quality assessments to identify point and

non-point source water quality problems, recommend control measures and

best management practices, and consider alternative solutions, including the

financial and institutional measures necessary for implementing recommended

solutions.

The Water Commission shall have the authority to approve and modify WQMP’s.

Elements of the Water Quality Management Plan. The following elements shall be included

in the WQMP or referenced as part of the Plan if contained in separate documents when

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

needed to address water quality problems. The WQMP will be developed using the best

information that is available at the time and is not intended to be an exhaustive study of

watershed systems.

Goals and Objectives. The WQMP shall include a statement of the water quality

improvement and protection goals and objectives including the intent, policy and

desired outcome or future condition of the water body.

Condition Assessment and Problem Description. The WQMP shall include:

A description of the Water Quality Standards and criteria of concern, including

the beneficial uses being impaired;

A list of water bodies on the Reservation that do not meet the water quality

standards without application of additional pollution controls. This list shall be

ranked by priority and shall be called the List of Water Quality Limited

Streams;

ii.

a).

The data or analysis used by the Water Commission to list the

water is shown to be inaccurate or inadequate;

b).

The water quality standard violated by the water body is

changed so that the water body is no longer in violation. This

includes the possibility that local conditions may be officially

recognized as the local standards (e.g., allowing a higher stream

temperature in a particular water body in recognition of

“natural” conditions);

c).

Water quality improves to meet standards;

Water bodies may be re-listed by the Water Commission any time the

Commission becomes aware of anything that weakens, compromises,

cancels, or otherwise reduces the effectiveness of the WQMP below the

level necessary to make adequate progress toward achieving the Water

Quality Standards.

The WQMP shall include objectives which quantify the desired change in

water quality, pollution loading or other measurable indicators of a water body

or watershed condition. These objectives shall be realistic, achievable,

measurable and shall include:

A systematic identification of pollution problems;

ii.

Links to watershed characteristics and management practices;

iii.

Objectives for water quality improvement; and

iv.

The identification of implementation measures and mechanisms to

achieve water quality objectives in the form of a Total Maximum Daily

Load (TMDL) or similar plan;

Elements of a TMDL or similar plan shall include:

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Water bodies may only be removed from the List of Water Quality

Limited Streams in the following ways:

The identification of pollutants causing water quality impairments;

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

ii.

Sources of pollution in terms of location, land management practices,

natural causes, or other sources, and the relative contribution of each

source;

iii.

The identification of maximum permissible loading capacities for

specific water bodies for the pollutants of concern; and

iv.

The assignment, for each relevant pollutant, of load allocations to each

source, point and non-point, in the Reservation watershed.

Proposed Management Measures.

Management measures that improve the watershed shall include specific

activities to control the pollution problem and achieve the plan’s goals and

objectives. Management measures shall include:

A demonstration of the effectiveness of each measure in addressing the

pollution problem;

ii.

What mechanisms will be used, and by whom, to ensure each measure

will be applied;

iii.

The time frame in which each measure is expected to be successful in

attaining the Water Quality Standards for a specific water body; and

iv.

A tracking plan for evaluating the implementation and effectiveness of

each measure.

A decision making process shall be developed to determine how future

management measures will be selected, how monitoring and evaluation will be

factored into the selection of future management measures, and how interested

parties will be involved in future decisions.

Adaptive Management Plans shall be developed through the periodic analysis

and review of monitoring data for the future refinement of management

strategies, water quality management plans, source-specific implementation

plans, and/or TMDL.

Effluent limitations, including water quality based effluent limitations and

schedules of compliance.

Non-point source management and control.

The plan shall describe the regulatory and non-regulatory programs,

activities, and Best Management Practices (BMP) which have been

selected as the means to control non-point source pollution where

necessary to protect or achieve approved water uses. Economic,

institutional, and technical factors shall be considered in a continuing

process of identifying control needs and evaluating and monitoring the

BMP’S as necessary to achieve water quality goals.

ii.

When the Water Commission determines that regulatory programs are

necessary to attain or maintain an approved beneficial use, or that nonregulatory approaches are inappropriate in accomplishing that

objective, the Water Commission shall identify those programs.

iii.

BMP’s shall be specified for the non-point sources as follows:

a).

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Control of the disposition of residual waste;

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

b).

Control of the disposal of pollutants on land or in subsurface

excavations;

c).

Control of agricultural sources of pollution;

d).

Control of silvicultural sources of pollution;

e).

Control of construction related sources of pollution;

f).

Control of urban stormwater runoff;

g).

Control of runoff and erosion from transportation systems;

h).

Control of mine-related sources of pollution.

Identification and development of programs for control of groundwater

pollution, if groundwater quality is identified as a water quality problem.

Programs for groundwater pollution control should include identification of

assessment and monitoring issues, time frames, technical assistance needs, and

financial requirements.

Identification of anticipated municipal and industrial waste treatment works,

including facilities for treatment of stormwater-induced combined sewer

overflows; programs to provide necessary financial arrangements for such

works; establishment of construction priorities and schedules for initiation and

completion of such treatment works including an identification of open space

and recreation opportunities from improved water quality.

Timeline for Implementation. Identification of when implementation will occur; when

various tasks or action items will begin and end; when mid-term and final objectives

will be met; establishment of target dates for meeting water quality goals; and

identification of strategies for maintaining implementation and a commitment to

improving water quality over the long term.

Identification of Responsible Participants.

Identification of Tribal departments, programs and/or staff necessary to

develop and carry out the plan.

Identification of the roles, responsibilities and commitments of all participants,

including those outside the Confederated Tribes, if desirable.

Identification of relationship to any applicable basin TMDL or water quality

management plans.

Reasonable Assurance of Implementation. The WQMP shall identify the authorities,

regulations, permits, contracts, agreements, education efforts, or other commitments to

ensure that implementation will occur.

Monitoring and Evaluation. A monitoring program shall be developed to track

elements of the WQMP to ensure implementation. The monitoring program shall

provide for the collection and analysis of data to measure the effectiveness of BMP’S

and other implementation tools used in achieving water quality goals. The analysis

shall be used in the periodic updates provided for in this Chapter. The monitoring

program should include:

The goals and objectives of the monitoring program;

What measurable indicators will be monitored and why;

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

The monitoring program tasks; who is responsible for those tasks; and the

timeline for those tasks;

Sampling methods that will be employed;

Quality assurance and quality control procedures;

Protocol for how and by whom data will be handled, stored and made available

for review;

Analytical methods used;

How the information that is collected will be used to improve the effectiveness

of the overall Water Quality Management Plan; and

Funding.

Public Involvement Plan. The WQMP will be developed with input from the Tribal

membership, Tribal staff, reservation residents, affected parties, interested agencies

and others in an effort to maximize the success of the plan. It is the responsibility of

the Water Commission to determine the appropriate level of public involvement.

Maintenance Over Time. The WQMP will have a strategy for maintenance over time

resulting in water quality improvements in the long term, a demonstration of an

ongoing commitment to the long-range plan implementation and how this will be

assured over the lifetime of the plan. The commitments to ongoing implementation

shall also be reflected in the number of the WQMP elements and the responsible

parties for fulfilling these requirements.

10.

Costs and Funding.

Identification of potential and realistic costs associated

implementation of the Water Quality Management Plan;

with

the

Committed funding sources which will support implementation of the plan

during the first three years;

Potential funding sources for the support of the plan in the long term.

Approval. The WQMP, and any updates or modifications, shall become effective when

approved by the Water Commission.

Updates. The WQMP shall be updated as needed to reflect changing water quality conditions,

results of implementation actions, new or revised policies, or new requirements.

Consistency.

All permits issued under this Code will be consistent with the Water Quality

Management Plan.

The Water Quality Management Plan will be developed so as to be consistent with the

provisions of this Code, and all applicable Tribal law and regulations.

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STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

CHAPTER 4.

STREAM ZONE ALTERATIONS

SECTION 4.01.

AREA OF APPLICATION

This chapter applies to any person conducting construction or earth-moving work, debris placement

or removal, or vegetation removal or modification within the named Stream Zones within the external

boundaries of the Umatilla Indian Reservation as named below.

Any intermittent or perennial stream, lake, pond, spring, or any naturally occurring water

body located in the G-1, Big Game Winter Grazing Zone, or the F-2, Restricted Indian Forest

Zone, as described in the Umatilla Indian Reservation Land Development Code of the

Umatilla Indian Reservation.

Mid-Umatilla River Drainage.

Main-stem Umatilla River

Spring Creek,

Mission Creek,

Cottonwood Creek,

Moonshine Creek,

Coonskin Creek,

Buckaroo Creek,

Squaw Creek, and

Meacham Creek.

Wildhorse Creek Drainage.

Main-stem Wildhorse Creek,

Eagle Creek, and

Spring Hollow Creek.

McKay Creek Drainage.

Main-stem McKay Creek,

South Fork McKay Creek,

North Fork McKay Creek, and

Spring Hollow Creek.

Tutuilla Creek Drainage.

Tutuilla Creek,

North Coyote Creek,

South Coyote Creek,

WATER CODE

PAGE 44

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Main-stem Patawa Creek, and

South Patawa Creek.

SECTION 4.02.

GENERAL PROVISIONS

Permits Required. Any person who performs any activity that alters streamflow, water

quality, ground contours, or perennial vegetation or that introduces or displaces debris in the

above named stream zones on the Reservation shall first obtain a valid Stream Zone

Alteration Permit, issued by the Director.

Permit Conditions. Any permit issued for a stream zone alteration project may be made

subject to such terms and conditions that will fulfill the policies, procedures, and provisions of

this Code, Administrative Rules, Water Use standards, Water Quality Standards, and any

other applicable Tribal codes.

Displaying Permit at Project Site. A copy of the permit shall be present at the project site

during all phases of construction or alteration work. The permit shall be made available to the

Director, or his representative, upon request.

Conduct of Work. All stream zone alteration activities shall be performed in a manner that

avoids damage or minimizes and mitigates damage, both temporary and permanent, to water

quality and fish and wildlife habitat.. Mitigation measures including re-vegetation must be

done in accordance with appropriate tribal specialists recommendations and approval.

Traditional Activities. Tribal members who alter stream zones or wetlands while engaged in

traditional tribal subsistence activities (excluding the grazing of livestock and the operation of

animal feeding operations) are exempted from obtaining Stream Zone Alteration permits.

Endangered Species Act and Federal Regulations. Where applicable, all Stream Zone

Alteration Permits shall be conditioned to comply with the Endangered Species Act of 1973as

amended. It shall be the responsibility of the applicant to provide proof of clearance and/or

compliance with any Federal regulations.

Water Quality Certification. All Stream Zone Alteration Permits shall require Water Quality

Certification showing compliance with Tribal Water Quality Standards, as provided for in this

Code, prior to the approval or issuance of the permit.

Cultural Resources Clearance. All Tribal Stream Zone Alteration Permits must have clearance

for ground disturbing activities from the Cultural Resource Protection Program of the

Confederated Tribes prior to the approval and issuance of the permit.

Waiver of Permit Requirements.

Management Plans. The permit procedures of this chapter may be waived by the

Director provided that the proposed activities are consistent with of an approved

Tribal Management Plan, including Tribal Water Quality Management Plans, Tribal

Range Management Plans, Tribal Forest Management Plans, or Tribal Agricultural

Management Plans. Proof must be provided to the Director that the project meets or

exceeds the requirements set forth in the Stream Zone Alteration Standards.

Flood Hazard Sub-District. Activities which occur in the Flood Hazard Sub-District,

as defined in the Tribal Land Development Code and which require a permit from the

Tribal Planning Office for those activities, may be exempted from obtaining a Stream

Zone Alteration Permit provided that the project is approved and a permit is issued by

the Tribal Planning Department in consultation with the Director of the Department of

Natural Resources. Proof must be provided to the Director that the project meets or

exceeds the requirements set forth in the Stream Zone Alteration Standards.

WATER CODE

PAGE 45

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

SECTION 4.03.

MINOR ALTERATIONS

Alterations causing negligible negative impacts, both temporary and permanent, on water

quality and fish and wildlife habitat are hereinafter termed "minor alterations".

To qualify as a minor alteration, the proposed work must conform to all the following criteria:

The time period for completion of work in the stream channel falls within the standard

work period, as defined below, for the particular stream or reach of stream proposed

for alteration;

The anticipated negative impacts on water quality last no more than a (cumulative)

total of 24 hours during and after the alteration activities are performed. Negative

impacts on water quality include:

Increases in stream turbidity;

Increases in water temperature; and

Increases in chemical, mineral, or organic content.

The proposed activity does not increase streambank erosion in the reach of stream

proposed for alteration; and

The proposed activity does not stop streamflow, except as necessary to temporarily

divert flow around a work site.

Permit requests for minor alterations shall be subject to review and action by the Director.

Any proposed alteration that does not qualify as a minor alteration shall be a major alteration.

SECTION 4.04.

MAJOR ALTERATIONS

Proposed stream zone alterations which involve activities or changes in land use which may

cause significant environmental impacts or that are of a general public concern are hereinafter

termed "major alterations".

Stream Zone Alteration Permit requests for major alterations shall be approved or denied by

the Water Commission and shall be made subject to public hearings conducted by the Water

Commission.

Major Alterations may include, but are not limited to:

Construction of permanent roads or railroads;

Construction of any new bank-stabilization or flood control structure extending more

than 1 foot above the elevation of the natural banks or extending more than 1000 feet

along a stream bank;

Construction of canals or flumes or installation of pipelines or casings;

Relocation of stream flow outside the existing stream channel;

Diverting streamflow from one drainage to another;

Establishment of new or continued operation of existing, animal feeding operations in

any stream zone that is not otherwise regulated under the Tribal Land Development

Code or the Tribal Environmental Health Code;

WATER CODE

PAGE 46

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Extraction of sand, silt, clay, or rock for the primary purpose of commercial use that is

not regulated under the Tribal Land Development Code;

Construction of new bridges or relocation of existing bridges;

The operation of equipment in the stream bed or below the water table in the stream

bank during periods outside the standard and/or preferred work periods for Minor

Stream Zone Alterations;

10.

Any alteration which the Director determines to be of general public concern.

SECTION 4.05.

EMERGENCY ALTERATIONS

Emergency Alterations. Emergency stream zone alterations may only be performed without a

permit in the event of an existing or imminent threat to life or property. Emergency stream

zone alterations must be limited to the minimum amount of work necessary to protect against

the threat to life or property. Any person performing an emergency stream zone alteration

must contact and obtain approval from the Water Code Administrator prior to commencing

work. Depending on the nature of the threat, the Water Code Administrator may either

provide immediate verbal approval, or if time allows, may require a site visit and written

approval by the Director.

Mitigation. The Director may require additional alteration activity under a new Stream Zone

Alteration Permit to bring the emergency alteration into compliance with the provisions of

this Code.

Violation. Any emergency stream zone alteration activity performed without compliance

with this Section is a violation of this Code. Violations of this section and any subsequent

appeals are subject to Chapter 5 of this Code.

SECTION 4.06.

INSTREAM WORK PERIODS FOR ALTERATIONS

All Stream Zone Alteration permits shall be conditioned such that all work must be conducted

within the following work periods. Stream alterations may only be conducted outside of these

standard work periods for:

Emergency alterations performed in compliance with Section 4.05;

For Major Stream Zone Alterations, where an alternative work period is requested and

approved by the Water Commission following a public hearing;

For Minor Stream Zone Alterations, where an alternative work period is approved by

the Director in response to the applicant providing clear evidence that harm to life or

property is reasonably foreseeable if action is not taken outside of the standard work

period; or

Where the Director approves an extension of the instream work period pursuant to

Section 4.07(E) below.

Standard Work Periods.

established as follows:

The standard work periods for stream channel alterations are

For the main stem Umatilla River, Meacham Creek, and McKay Creek - July 1

through October 31, annually;

For all other streams - July 1 through October 31, annually, and other periods when no

surface flow is present.

WATER CODE

PAGE 47

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

Preferred Work Periods. The preferred work periods for in-stream alterations are established

as follows:

For the Umatilla River; West Reservation Boundary to Buckaroo Creek - July 1

through October 15, annually;

For the Umatilla River; Buckaroo Creek to East Reservation Boundary - July 1

through August 15, annually;

For Meacham Creek - July 1 through August 15, annually.

SECTION 4.07.

STREAM ZONE ALTERATION PERMITS

Determination of Minor or Major Alteration. Within 10 working days of receipt of a complete

application and the necessary supporting documents the Director shall determine whether or

not the request is a major alteration and shall notify the applicant of his decision. Any

application not classified as a Major Alteration shall be classified a Minor Alteration.

Minor Alterations.

Upon receipt of a complete application with the necessary supporting documents for a

minor alteration, the Director shall mail a notification of application for a permit to

persons owning property adjacent to the proposed project site. Letters of notification

shall be mailed within 5 working days after acceptance of a completed application by

the Director.

Any person who has property or interests that may be affected by the implementation

of the proposed stream zone alteration project may file a written protest, along with

the appropriate fee, with the Director. Protests must be submitted to the Director

within 15 days after the date specified on the notification of application for a permit.

In the event a protest is filed on an application for a minor alteration, the application

shall be subject to the hearing provisions established for major alterations.

If no protest is filed within 15 days after notification of property owners, the Director

shall take action on the permit request and inform the applicant of the decision.

In making a decision on an application for a minor alteration, the Director shall

consult with the Tribal technical staff and base his decision on the following criteria:

The request is consistent with Tribal policy and the policies of this Code;

The request conforms to the preferred or standard work periods for stream

zone alterations as specified above;

The request conforms to standards for Stream Zone Alterations as adopted by

the Water Commission;

The request conforms to the Tribal Water Quality Standards and provisions

developed under the Water Quality Standards;

The request has the necessary approvals and certifications (e.g. cultural

resources clearance).

The decision of the Director on a request for a minor stream zone alteration may be

appealed following the provisions for appeals in this Code.

Major Alterations.

WATER CODE

PAGE 48

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION

As Amended Through Resolution No. 20-090 (September 28, 2020)

After receiving a complete application, supporting documents, and the application

review fee for a major alteration, the Director shall, within ten (10) days, notify the

applicant and commence a staff review of the proposed action.

The staff review shall be completed no less than ten (10) days prior to the public

hearing and shall consist of a staff report and a fish and wildlife habitat report on the

proposed alteration. The fish and wildlife report shall constitute an appendix to the

staff report.

The Director shall notify, by mail, persons owning property adjacent to the proposed

project site. The notification shall include information about the proposed project and

where and when a public hearing will be held for the requested alteration.

The Director shall publish a notice of public hearing in the local newspaper at least to

(10) days prior to the public hearing date. Such notice shall specify the matters for

consideration at the hearing. The Director shall provide the applicant with notice of

the date, time and place of the hearing at which the subject application will be

considered.

The request shall be subject to action by the Water Commission through the public

hearing process provided for in the Administrative Rules. The request shall be placed

on the Commission's agenda, and the public hearing shall be scheduled and held in

chronological sequence with other matters referred to the Commission.

The Water Commission shall evaluate and render decisions to approve, approve with

conditions, or deny Major Stream Zone Alteration requests based upon the following

criteria:

The request is consistent with Tribal policy and the policies of this Code;

The request conforms to the Standards for Stream Zone Alterations as adopted

by the Water Commission;

The request conforms to the Tribal Water Quality Standards and provisions

developed under the Water Quality Standards.

The Director shall notify the applicant, in writing, of the decision of the Water

Commission.

The decision of the Water Commission may be appealed following the provisions for

appeals in this Code.

Duration of Perm

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