# STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION (2020) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_umatilla%3A1430de3e5470dfb2 ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text 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 A. 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. B. To this end the purpose of the Water Code is: 1. To provide an orderly system for the sustainable use and development of the water resources of the Umatilla Indian Reservation; 2. To insure that all residents of the Reservation have an adequate quantity of clean water for domestic purposes; 3. 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; 4. To protect and conserve the quality and quantity of the natural and cultural resources in the stream zones of the Reservation; and 5. 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. WATER CODE 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 A. 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.. B. 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. C. 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. D. 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. A. 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. B. 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. C. 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). D. 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. E. 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, WATER CODE PAGE 2 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. F. 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. G. 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. H. 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. I. 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. J. Reserve Water for Human Consumption. Adequate and safe supplies of water shall be reserved for human consumption by residents of the Reservation. K. 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. L. 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. M. 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. N. 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 WATER CODE PAGE 3 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. O. 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. P. 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. Q. 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. R. 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. S. 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. T. 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. A. DEFINITIONS As used in this Code, the following words and phrases shall mean: 1. “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. WATER CODE PAGE 4 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) 2. “Abatement”: generally a lessening or a reduction. 3. “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. 4. “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)). 5. “Aquifer”: an underground geological formation, or group of formations, containing water. 6. “Bank or Stream bank”: the land alongside a stream that is normally immersed or subject to immersion by annual high water flows. 7. “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. 8. “Best Management Practices”: methods that have been determined to be an effective and practical means of preventing or reducing pollution from non-point sources. 9. “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. WATER CODE PAGE 5 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 WATER CODE 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.. WATER CODE PAGE 7 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”: a. b. land or resource-use activities required for: i. 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: i. 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 v. 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”: a. All water arising upon, traversing, or bordering the Umatilla Indian Reservation, whether the water is flowing or stationary, whether it is above or WATER CODE 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 b. all water reserved at any time to the Tribes or the Reservation by the United States and the Tribes; and c. 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. WATER CODE 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. A. B. WATER MANAGEMENT REGIONS Water Management Regions Established. For the purposes of this Code, the Board of Trustees hereby establishes the following Water Management Regions: 1. Mission Basin; 2. South Reservation; 3. North Reservation; 4. Umatilla River Valley; 5. McKay Creek Valley; 6. Blue Mountains; 7. Northeast Foothills; and 8. Johnson Creek. Water Management Region Map: 1. 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. 2. 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. 3. 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. 4. The Water Commission shall use the following criteria for evaluating a request for map amendment and making its recommendation to the Board of Trustees: a. The change is needed to improve water conservation and development for beneficial use on the Reservation as a whole; b. The change will promote the availability of water for the high priority uses in the regions proposed for modification; c. The change is needed to alleviate water management or use problems associated with changes in land use patterns on the Reservation; WATER CODE PAGE 10 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) d. 5. 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. A. 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: 1. 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. 2. 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. 3. 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. 4. Public. Use of water at government buildings; schools; public parks, pools, and campgrounds; churches; and other facilities open to the general public. 5. Agricultural Irrigation. Application of water to the land for the purpose of growing crops. 6. Stock Watering. Diverting water for the purpose of providing livestock with water to drink. 7. General Farm. Use of water for farm activities other than stock watering, agricultural irrigation, or domestic uses. 8. 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. 9. 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. WATER CODE PAGE 11 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) B. 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 A. 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. B. 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. C. 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. D. 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. E. Powers and Authorities. The Water Commission shall have the following general powers and authorities to: 1. 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; 2. Review and make recommendations relating to the enactment, enforcement, or administration of laws, codes, ordinances, standards, and regulations affecting Tribal water resources; 3. Establish and appoint such technical or advisory Committees as the Water Commission deems necessary for the administration and enforcement of this Code; WATER CODE PAGE 12 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) F. 4. Reserve and allocate groundwater and surface water to the beneficial uses established in this Code; 5. Conduct hearings and issue appropriate orders; 6. Grant, deny, modify or revoke any permits required or authorized by this Code; 7. Interpret the provisions of this Code, either on its own motion or at the request of the Director; 8. Make determinations of availability of water and the allocation of water resources to the beneficial uses established in this Code; 9. 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. 1. 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 WATER CODE 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: 2. G. H. a. Well construction and maintenance; b. Groundwater protection and development; c. Construction and maintenance of dams and hydraulic embankments; d. Impoundments and other water storage projects; e. Water budget for management regions; f. Water quality standards; g. Water conservation. h. Standards for beneficial use of water; i. Surface water diversions; j. Wetlands protection; k. Best Management Practices for non-point source pollution; l. Stream zone alterations; and m. 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. 1. The Water Commission shall prepare draft rules and regulations and ensure that the drafts are available for public review and comment. 2. 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. 3. The Water Commission shall provide a public comment period of at least thirty (30) calendar days. 4. 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. 5. 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. 1. The Water Commission is authorized to promulgate emergency rules and regulations governing activities related to water use, water quality or stream zone activities to WATER CODE 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. 2. The emergency rules and regulations shall become effective immediately and shall be effective for a period not to exceed ninety (90) calendar days. 3. The Water Commission shall provide for the immediate publication of written notice of the emergency regulations. SECTION 1.11. A. PERMITS AND CERTIFICATIONS Permits and certifications authorized under this Code are limited to: 1. Water System Development Permit: is required this Code for the purpose of constructing water diversion works for appropriating Tribal water resources. 2. Water Use Permit: is required under this Code for the purpose of appropriating Tribal water resources for beneficial use. 3. 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. 4. 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. 5. 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. 6. 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. 7. §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. B. 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. C. 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. D. Application Amendments and Withdrawal. WATER CODE PAGE 15 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) 1. 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. 2. 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. E. 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. F. 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: G. 1. Tribal Planning Office/Zoning clearance; 2. Cultural Resources clearance for ground disturbing activities; 3. Tribal Fisheries and/or Wildlife Habitat Report; 4. A Water Quality Certification; 5. Any applicable Federal Regulations; and 6. Any other documents necessary for evaluation of the proposed project. Reporting and Monitoring. 1. 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. 2. The procedures discussed in paragraph (1) of this subsection may provide as follows and shall be delegated to the Director. a. 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: i. 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) b. 3. The Director, upon presentation of credentials: i. 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: a. Shall, in the case of effluent data, be related to any applicable effluent limitations, toxic, pretreatment, or new source performance standards, and b. 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. H. 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. I. 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 A. 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: B. Variances in General. 1. A variance may be granted only in the event all of the following circumstances exist: a. 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; WATER CODE PAGE 17 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) C. b. 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; c. 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; d. Granting the variance will not violate any other provision of Tribal (or federal) law; e. The variance requested is the minimum variance which would alleviate the hardship; and f. Granting the variance will not adversely impact threatened or endangered species or their critical habitat. 2. 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. 3. 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. 4. 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. 5. 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. 1. 2. Criteria for Variance. The Water Commission may grant a variance to the approved Water Quality Standards provided the variance meets the following requirements: a. The variance will be pollutant and source specific, and b. 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: a. The concentration of a naturally occurring pollutant prevents the attainment of the water quality standard, or b. The natural physical (substrate cover, depth, pools, or riffles) or flow conditions of the water prevent attainment of the water quality standard, or c. 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 WATER CODE PAGE 18 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) d. 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 e. 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 f. Controls more stringent than technology-based effluent limitations would result in substantial and widespread economic and social impact. 3. 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. 4. 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. a. 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. b. 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. 5. 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. 6. Variances to the Water Quality Standards approved by the Water Commission shall be submitted to EPA for review and approval. SECTION 1.13. APPEALS A. 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. B. 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. C. 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. D. 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: 1. The time, date, and nature of the action being appealed; 2. The reasons why the appealing party feels the Director's or the Water Commission's decision is not in accordance with Tribal law; and 3. any requested relief. WATER CODE PAGE 19 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) E. 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. F. 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. G. 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 A. 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. B. 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. C. 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. A. B. 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: 1. 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. 2. 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. 3. 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. 1. C. 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 a. Beginning construction of new water diversion works or enlarging, deepening, relocating, or performing any alteration of an existing well; or b. Changing one or more of the following: i. point of diversion, ii. place of use, iii. beneficial use, iv. rate of diversion, v. rate of application of water, or vi. water source. 2. 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. 3. 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. 1. 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. 2. 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. WATER CODE PAGE 21 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) D. E. F. a. Water from any source may be diverted to control fire in case of emergency. b. 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. c. 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. 1. 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. 2. 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: 1. A Water System Development Permit validated by the Director shall be valid for a period not to exceed three (3) years. 2. A Water System Development Permit validated by the Water Commission shall be valid for a period not to exceed five (5) years. 3. Temporary Water Use Permits shall have a term not to exceed three (3) years. 4. 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. 5. Valid non temporary permits that are approved by the Director for all other uses shall have a term of ten (10) years. 6. 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 WATER CODE 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. G. 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. H. 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. I. 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. J. 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. K. Prior Permitted Uses. 1. 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. 2. 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. 3. 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. A. CRITERIA FOR APPROVAL OF WATER SYSTEM DEVELOPMENT PERMITS Director’s Authority and Criteria. 1. The Director shall have the authority to approve or deny Water System Development Permit requests for: a. 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) b. Community use withdrawing water from any groundwater source provided the requested pumping or diversion rate is less than two hundred (200) gallons per minute, c. Any temporary beneficial use withdrawing water from: d. i. 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: i. 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, e. 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, f. Stock watering use withdrawing water from: i. 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, g. 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) 2. B. h. 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, i. 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, j. 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. a. The requested use is a beneficial use of water as defined in this Code; b. The request conforms to the standards for beneficial uses; c. The request conforms to the Director’s criteria for approval as specified in this Code; d. 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; e. Construction activities associated with the requested development do not discharge pollutants into the waters of the Reservation in violation of the Water Quality Standards; f. 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 g. 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; h. There is water available from the proposed water source for the requested development and beneficial use. Water Commission's Criteria. 1. 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. a. The requested use is a beneficial use of water as defined in this Code; b. The request conforms to the standards for beneficial uses; c. 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) 2. C. d. Construction activities associated with the requested development do not discharge pollutants into the waters of the Reservation in violation of the Water Quality Standards; e. 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; f. 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; g. There is water available from the proposed water source for the requested development and beneficial use; h. The request is consistent with the policies and purposes of this Code; i. 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 j. The request utilizes the minimum amount of water to accomplish the purposes of the proposed development. When rendering a decision the Water Commission may: a. Approve the request without conditions if the request conforms to all of the criteria 1(a) through 1(j) above; b. Approve the request with conditions if condition(s) are needed to satisfy criteria 1(h), 1(i), and 1(j) above; c. Deny the request if the request does not conform to one or more review criteria 1(a) through 1(g) above; or d. 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. 1. 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. 2. 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. 3. Registration and filing for a Water Use Permit requires the permittee to: a. Show proof of completion of the appropriation pursuant to the approved permit; b. 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) c. Each registration statement shall be in a form prescribed through the administrative rules and shall be under oath (except for domestic use); d. Each registration statement shall be accompanied by such maps and drawings and other data as the Department of Natural Resources deems necessary; e. 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 A. 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. B. 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. C. 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 A. 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. B. 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. C. 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. D. Reasons for Cancellation. A Water System Development or Water Use Permit may be totally or partially cancelled for the following causes: 1. 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, 2. Nonuse of water as specified in this Code, 3. Expiration of time for permits issued with a specified time limit, 4. 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) 5. Voluntary relinquishment of a Water System Development or Water Use Permit. E. 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. F. Cancellation of Water System Development Permits. 1. 2. G. 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; a. Failure to put water to beneficial use was due to factors beyond the control of the permit holder; and b. 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. 1. 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. 2. 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: a. Drought or other unavailability of water, b. Active service in the armed forces of the United States during military crisis, c. Non-voluntary service in the armed forces of the United States, d. The operation of legal proceedings, e. The application of any laws restricting water use, f. Incarceration in a penal institution, g. Confinement in a mental institution, whether voluntary or not, WATER CODE PAGE 28 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) h. Other causes of nonuse determined by the Water Commission to be beyond the control of the holder of the permit. H. 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. I. Loss by Adverse Possession, Prescription, Estoppels or Acquiescence. No Water Permit may be acquired or lost by adverse possession, prescription, estoppel or acquiescence. J. 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. A. B. 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: 1. The permitted or allowed water use creates conditions that cause a hardship on the surrounding water users, 2. A change of conditions requires a modification of the permit, 3. 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. 1. 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. 2. 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. A hardship exists; b. The use or uses experiencing the hardship are higher priority uses than the uses proposed for modification; c. The act of using water, as authorized under the permits or rights which are subject to modification, is causing the hardship; and d. 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) 3. C. D. 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: 1. There is no change in the beneficial use of water; 2. There is no increase in the allocation (rate and/or duty) of water; 3. 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; 4. The proposed modification is consistent with the provisions of this Code; 5. 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; 6. 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. A. B. WELL CONSTRUCTOR LICENSING Well Constructor License. 1. No person shall be authorized to construct wells within the boundaries of the Reservation unless licensed to do so by the Confederated Tribes. 2. No well constructor shall commence constructing any well on the Reservation until all the permit requirements of this code have been complied with. 3. 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). 4. 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: A. 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. B. 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. C. 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. D. 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 A. 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. B. 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. C. 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. 1. Tier I Protection of “Water Quality Limited” Waters. a. No further lowering of quality is allowed for water quality parameters not currently meeting standards in any or all waters of the Reservation. These WATER CODE PAGE 31 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. 2. b. 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. c. 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. d. 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: a. 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; b. 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; c. 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; d. 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; e. 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 WATER CODE PAGE 32 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) f. 3. D. E. 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. 1. 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. 2. 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 A. 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. B. Anti-degradation Review Process. C. 1. 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. 2. The Water Commission will determine, through administrative rules, the information required on the Anti-degradation Review application. 3. Each Anti-degradation Review application submitted must be accompanied by the appropriate fee based upon the fee schedule maintained through administrative rules. 4. 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: 1. Existing and potential beneficial uses of surface or groundwater which could be affected by the proposed facility; WATER CODE PAGE 33 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) D. 2. Potential water-related impacts from the generation and disposal of waste chemicals or sludge at a proposed facility; 3. Potential modification of surface water quality or water quantity as it affects water quality; 4. Potential modifications of groundwater quality; 5. Potential impacts from the construction of intake or outfall structures; 6. Potential impacts from waste water discharges; 7. Potential impacts from construction activities; 8. The project’s compliance with water quality related to standards established by the Water Commission. Director’s Determination. 1. 2. Upon completion of the Anti-degradation Review, the Director shall make a finding that either: a. The proposed activity probably meets the Tribal Water Quality Standards; or b. 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: a. The proposed activity will affect the existing and potential beneficial uses listed in Table 1 of the Tribal Water Quality Standards; b. The proposed activity will affect water quantity, or flows, as it relates to water quality; c. 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; d. The proposed activity complies with the Tribal Anti-degradation policy of the Water Quality Standards; e. The proposed activity complies with the biological and wildlife criteria of the Tribal Water Quality Standards; and f. The proposed activity complies with the numeric and/or narrative criteria of the Tribal Water Quality Standards. 3. 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. 4. 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: a. WATER CODE Limitations on effluent discharges; PAGE 34 STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 20-090 (September 28, 2020) b. Monitoring, by the applicant of effluent discharge on a regular basis; c. Minimum stream flow conditions; d. Criteria and use restrictions necessary to advance the Tribal anti-degradation policy; e. Any other water quality protective measures deemed necessary by the Director to maintain and protect water quality on the Reservation; or f. Termination of the operation upon evidence that such operation violates or threatens to violate the Water Quality Standards. 5. 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. 6. 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. 7. 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. 8. 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. A. B. 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: 1. Water bodies where cold-water aquatic life and cool-water aquatic life exists; 2. Specific reaches within individual water bodies where salmonid spawning, rearing, holding and migration take place; 3. 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; 4. 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. A. SALMONID SPAWNING AREAS CERTIFICATION OF CLEAN WATER ACT SECTION 401 WATER [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_umatilla%3A1430de3e5470dfb2. Public record. Not legal advice.