TITLE 2. WATER QUALITY ORDINANCE

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TITLE 2. WATER QUALITY ORDINANCE

(Adopted by the Tribe on 04/27/19)

CHAPTER 1. SHORT TITLE, FINDINGS, AND PURPOSE

SECTION 1. Short Title

This Ordinance shall be known as the Tribal Water Quality Ordinance of the Dry Creek Rancheria

Band of Pomo Indians.

SECTION 2. Findings

The Dry Creek Rancheria Tribal Council hereby finds as follows:

(A) Since time immemorial, the creek informally known as Rancheria Creek and the Russian River,

its tributary streams, the streambeds thereof and the riparian areas adjacent thereto, have been natural

resources of profound significance to the Dry Creek Rancheria Band of Pomo Indians and the Dry

Creek Rancheria Pomo people have used these resources for cultural, ceremonial, religious, fishery,

seasonal residential, and other purposes fundamental to the Tribe's way of life.

(B) The people of Dry Creek Rancheria have a primary interest in the protection, control, and

conservation of the water resources which flow into and through the Dry Creek Rancheria and the

quality of such waters must be protected to insure the health, economic, aesthetic, and cultural wellbeing of the Dry Creek Rancheria Pomo People.

with toxic or hazardous materials as a result of previous land use activities, and the contamination at

these sites may pose significant risks to water quality and public health if not properly contained and

cleaned up.

(D) The Dry Creek Rancheria Tribal Council hereby finds that wellhead protection is a proactive

approach to managing public groundwater supplies focusing on preventing contaminants from

entering recharge areas to public water supply well. Protecting wellheads involves: knowing the

location and boundaries of the recharge area; identifying any potential sources of contamination in

the recharge area; controlling those potential sources to prevent the release of contaminants; and

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controlling future land use in the recharge area to prevent activities which are known to threaten

groundwater quality.

(E) The Dry Creek Rancheria Band of Pomo Indians possesses inherent sovereign authority to

regulate on- Rancheria pollution discharges that affect fundamental Tribal interests and public health

and safety, including when such activities are conducted by nonmembers of the Tribe on privately

owned land within the Rancheria.

(F) Under 1988 amendments to the Clean Water Act, 33 U.S.C. §1377, the Dry Creek Rancheria Band

of Pomo Indians is entitled to be certified by the U.S. Environmental Protection Agency as authorized

to exercise exclusive jurisdiction (Tribal primacy) over all on-Rancheria surface and ground water

quality matters, including over on- Rancheria portions of waters, such as those of the creek informally

known as Rancheria Creek, that flow through other jurisdictions.

(G) Regulation or elimination of all discharges of pollutants into the waters of the Dry Creek

Rancheria is necessary at this time in order to maintain the quality of those waters for their beneficial

use by member of the Dry Creek Rancheria Band of Pomo Indians and residents of the Rancheria.

(H) The Tribe has acquired additional lands since the original Tribal Water Quality Ordinance was

adopted by the Tribal Council on July 20, 2002, and the Tribe has successfully transferred land to the

United States to hold in trust for the benefit of the Tribe, and will continue to seek to acquire additional

lands to be placed into trust.

(1) Passage, adoption and implementation of this Ordinance will further the protection of Rancheria

waters.

SECTION 3. Purpose

The purpose of this Ordinance is to exercise comprehensive Tribal regulatory authority over all

surface and groundwater matters, and to protect fundamental Tribal cultural, ceremonial, religious,

fishery, and seasonal residential uses, public health and safety, and water quality by ensuring adequate

water for drinking and other beneficial uses, prohibiting all point source discharges, and restricting

non-point source discharges of pollutants within the exterior boundaries of the Dry Creek Rancheria,

including all lands taken into trust for the benefit of the Tribe in the future.

SECTION 4. Authority and Scope

Authority: This Tribal Water Quality Ordinance is hereby adopted by Dry Creek Rancheria Tribal

Council pursuant to Article VII of the Tribe's Articles of Association authorizing the Tribal Council

to undertake such actions.

Scope: The provisions of this Ordinance shall apply to all existing and proposed point and non-point

pollution discharges into surface or ground waters, and to all activities which have the potential to

affect cultural, ceremonial, religious, fishery, and seasonal residential uses, public health and safety,

water quality, and other fundamental interests of the Tribe, including such activities conducted by

non-members of the tribe or on privately owned lands within the Dry Creek Rancheria. Activities to

be regulated hereunder include but are not limited to:

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(A) Landfills and open dumps;

(B) Storage of animal waste;

(D) Land filling of sludge or septic system waste;

(E) Individual, residential, industrial, commercial, or agricultural sewage treatment facilities;

(F) Individual, residential, industrial, commercial, fire protection, or agricultural water control

devices including but not limited to treatment facilities and systems, dams, reservoirs, ponds, pools,

tanks, wells, pipelines, flumes, canals, and intake or diversion systems;

(G) Underground and above-ground liquid storage containers;

(H) Surface and subsurface removal of mineral resources, overburden, rock or soil, including quarry

operations (borrow pitting) for road surfacing or other uses.

(J) All prospecting activities involving removal of soil or rock materials, including operations

involving the reopening of existing mine pits, tunnels, or quarries.

(J) Sand and gravel operations.

(K) Activities such as suction dredging, that have the potential to affect the riparian area, water

quality, or channel morphology;

(L) Potential non-point source pollution problem areas including agricultural, mining, construction,

urban runoff, silviculture, salt water intrusion, hydrological modification, and residential activities;

(M) Any current or future identified point source pollution problem areas; and

(N) Application of herbicide, insecticide or other pesticide or toxic materials, or fertilizer for nondomestic use.

The provisions of this Ordinance shall apply to all wellhead protection areas within the exterior

boundaries of the Rancheria, to all persons and businesses on the Dry Creek Rancheria, to all land,

trust or fee, and to all activities in areas with the potential to affect water quality, public health and

safety both above ground and below the surface, and other fundamental interests of the Tribe.

SECTION 5. Consensual Relations Among Non-members, the Tribe and Tribal Members:

Any non-member who uses land anywhere within the exterior boundaries of the Rancheria, whether

trust or non-trust land, or enters into consensual relationships with the Tribe or its members, through

commercial dealings, contracts leases, or other arrangements, shall be required to comply with this

Ordinance. Such person's discharge of pollutants into or other activities which affect the water quality

of surface or ground waters within the exterior boundaries of the Rancheria will have demonstrably

serious impact upon the environment, natural resources, public health, and safety of the Tribe and its

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members, unless such use is in compliance with the provisions of this Ordinance and any regulations

promulgated hereunder.

CHAPTER 2. DEFINITIONS

For the purposes of this Ordinance, the following words and phrases shall have the following

meanings:

(A) "Aquifer" means any geologic formation capable of yielding a significant amount of

potentially recoverable water.

(B) "Beneficial uses" means all lawful uses of waters identified in the Tribal Water Quality Control

Plan. Uses may include, but are not limited to, domestic, commercial, industrial, agricultural,

traditional, cultural, and recreational, and uses by fish and wildlife for habitat, sustenance or

propagation.

Directors.

(D) "Designated use"’ means a use that is specified in water quality standards as a goal for a water

body segment, whether or not it is currently being attained.

(E) "Existing uses" means all uses actually attained in the water body on or after July 31, 2002,

whether or not they are explicitly stated as designated uses in the water quality standards or presently

existing uses.

(F) "Hazardous materials" means: 1) any substance that poses a threat to human health or the

environment. Typical hazardous substances are toxic, corrosive, ignitable, explosive, or chemically

reactive; or 2) Any substance name by the EPA to be reported if a designated quantity of the substance

is spilled in the waters of the United States or if otherwise emitted into the environment.

(G) "Herbicide" means any chemical compound designed to control or destroy plants, weeds, or

grasses.

(H) "Historical uses" means all uses that have historical significance for the Dry Creek Rancheria

Band of Pomo Indians.

(I) "Insecticide" means any compound designed or used to kill or control the growth of insects.

(J) "Impervious barrier" means any material or structure on, above, or below the ground that does not

allow precipitation or surface water to penetrate directly into the underlying surface.

(K) "Mining" means any activities designed for the extraction of minerals.

(L) "Mitigation" means a measure taken to reduce adverse impacts on the environment.

(M) "Nonpoint source" means any pollution sources which are diffuse and do not have single point

of origin or are not introduced into a receiving stream from a specific outlet.

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(N) "Person" means any individual, corporation, partnership, association, agency, municipality,

commission, or department, including the Dry Creek Rancheria Band of Pomo Indians or other

federally-recognized Tribal government.

(O) "Pesticide" means any substance or mixture of substances intended for preventing, destroying,

repelling, or mitigating any pest. Also, any substance or mixture of substances intended for use as a

plant regulator, defoliant, or desiccant.

(P) "Point source" means any discernible, confined, and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit, culvert, well, discrete fissures, containers, rolling

stock, concentration animal feeding operation, vessel, or other floating craft.

(Q) "Pollutant" means any substance that will alter the quality of the waters of the Rancheria.

(R) "Potential uses" means all uses attainable in the water body, whether or not they are explicitly

stated as designated uses in the water quality standards.

(S) "Quality of the water or waters" means any chemical, physical, biological, bacteriological,

radiological, and other properties and characteristics of water which affect its use.

(T) "Rancheria" means all land, air, and water located within the exterior boundaries of the Dry Creek

Rancheria.

(U) "Riparian" refers to land on the banks of a body of water, such as a lake, river, or stream.

(V) "Recharge area" means any area that collects precipitation or surface water and carries it to

aquifers. Recharge areas may include areas designated as wellhead protection areas.

(W) "Tribal Council" is the voting membership of the Dry Creek Rancheria Band of Pomo Indians.

(X) "Toxic materials" means any chemical or mixture that presents an unreasonable risk or injury to

human health or the environment.

(Y) “Underground Storage Tank” means any one or combination of tanks including connected

underground pipes that is used to contain regulated substances, and the volume of which including

the volume of underground pipes is 10 percent or more beneath the surface of the ground. This does

not include, among other things, any farm or residential tank of 1,100 gallons or less capacity used

for storing motor fuel for noncommercial purposes, tanks for storing for consumption on the premises,

or septic tank.

(Z)"Variance" means an authorized written permission for a delay or exception in the

application of a given law, ordinance, or regulation.

(AA) "Waste" includes waste water and any and all other substances, liquid, solid, gaseous,

radioactive, heat laden, associated with human habitation, or of human or animal origin, or from any

of man's activities including producing, manufacturing or processing operation of whatever nature,

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including such waste placed within containers of whatever nature prior to, and for purposes of,

disposal.

(BB) "Waters of the Rancheria" or "Rancheria waters" means any water, surface or underground,

contained within, flowing through or bordering upon the Dry Creek Rancheria or any portion thereof.

(CC) "Water quality control plan" is a document designating or establishing for the waters within a

specified area: 1) beneficial uses to be protected; 2) water quality objectives; and 3) a program of

implementation needed for achieving and maintaining water quality objectives.

(DD) "Water quality criteria" means specific levels of water quality which, if reached, are expected

to render a body of water suitable for its beneficial use.

(EE) "Wellhead protection area" means the surface and subsurface area surrounding a water well or

well field, supplying a domestic water system, through which contaminants are reasonably likely to

move toward and reach, such water well or well field.

CHAPTER 3 — TRIBAL ENVIRONMENTAL PLANNING DEPARTMENT

SECTION 1. Designation as Lead Tribal Agency

The Tribal Environmental Planning Department shall be the lead department for implementing this

Tribal Water Quality Ordinance.

SECTION 2. Creation of Position of Tribal Water Quality Control Officer

There is hereby created the position of Tribal Water Quality Control Officer. The Tribal Water

Quality Control Officer shall serve under the direction of the Environmental Planning Director and

shall be hired in accordance with the Tribe’s administration Personnel Policies and Procedures. The

Tribal Water Quality Control Officer shall cooperate with the U.S. EPA and other agencies of the

federal government or the State of California, as necessary to carry out the intent of this Ordinance

and implement the Tribal Water Quality Control Plan.

SECTION 3. Powers and Duties of Tribal Water Quality Control Officer

The Tribal Water Quality Control Officer shall be responsible for:

(A) Designating beneficial uses for the waters of the Rancheria;

(B) Developing a Water Quality Control Plan for the waters of the Rancheria. The Water Quality

Control Plan shall set out water quality standards and contain sections pertaining to beneficial uses,

water quality criteria, and anti-degradation policy;

(D) Establishing and overseeing the Tribe's point and non-point source permit review system;

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(E) Conducting biannual assessments of the Tribe's Water Quality Control Plan for review by the

Board of Directors;

(F) Developing regulations to further the purpose of this Ordinance;

(G) Reviewing the Biannual Water Quality Assessment, National Pollution Discharge Elimination

System Permits, and other permits and review procedures, as set forth in this Ordinance;

(H) Specifying document submission and record keeping requirements to be adhered to by all

potential dischargers and applicants for permits;

(I) Overseeing the operation, maintenance, inspection and permitting of all underground storage tanks

located beneath the surface of Tribal trust lands;

(J) Establishing criteria for the assessment of application and processing fees;

(K) Issuing permits, as required by this Ordinance, after approval by the Tribal Council. The Tribal

Water Quality Control Officer shall provide a recommendation with proposed findings on each permit

for Board of Directors approval;

(L) Entering and inspecting (with or without notice) any property, premises or facility involved in

any activity that may affect water quality on any lands within the exterior boundaries of the Rancheria.

Such inspections may include, but are not limited to:

(1) Obtaining samples of soil, rock, vegetable, air, water, or other substances deemed

necessary; and

(2) Setting up and maintaining monitoring equipment for the purpose of assessing compliance

with beneficial uses, water quality criteria, antidegradation policy, applicable regulations, best

management practices, or health or safety hazards; and

(3) Inspections of underground storage tanks to ensure that the tank is not leaking and it is

maintained according to the manufacturer’s standards and according to the requirements of

40 CFR Part 280 and 281.

(4) Inspections of a tribal vehicle used to transport septage to the wastewater treatment facility

located on the Rancheria.

(M) Obtaining from the Tribal Court a warrant or other order which may be necessary to carry out

his or her responsibilities under this Ordinance: and

(N) Reviewing and recommending regulations for Board of Directors approval to further the purposes

of this Ordinance, following notice and hearings or written opportunity for public comment.

SECTION 4. Enforcement

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The provisions of this Ordinance shall be enforced by the Public Works Department. A person

officially appointed to the Board of Directors in consultation with the Department of Environmental

Protection may issue the following for violations:

(A) Cease and Desist Orders or Notices of Violation: Upon a determination, pursuant to an

investigation as outlined in Chapter 9, Section 3 of this Ordinance, that any person is discharging,

causing to be discharged, or is about to discharge into any Rancheria waters, directly or indirectly,

any pollutant which constitutes a violation of this Ordinance, a Cease and Desist Order or Notice of

Violation shall be served upon the responsible parties and the owner/operator.

(B) It shall be a civil offense, for which a fine of not less than $5,000 shall be assessed, to obstruct or

otherwise interfere with investigative or other activities of any agent or officer of the Tribe carrying

out this Ordinance.

CHAPTER 4. ANTIDEGRADATION POLICY AND IMPLEMENTATION PLAN

SECTION 1. Anti-degradation Policy

(A) Existing uses shall be protected. The level of water quality necessary to protect existing uses shall

be maintained.

(B) Where existing water quality exceeds levels necessary to support propagation of fish and wildlife

and recreation in and on the water, that level of water quality shall nonetheless be maintained and

protected unless it is found, after full satisfaction of governmental and public participation

requirements, that a lower level of water quality is acceptable in order to accommodate important

economic or social development in the area in which the waters are located. In allowing such

degradation of water quality, the Tribe shall impose the highest statutory and regulatory requirements

for point sources and shall impose best management practices for non-point sources.

exceptional recreational or ecological significance, the water quality and uses of those water bodies

shall be maintained and protected.

(D) In those cases where potential water quality impairments associated with thermal discharge are

involved, the anti-degradation policy and implementation method shall be consistent with Section

316 of the Clean Water Act, as amended (33 U.S.C.§1326).

SECTION 2. Implementation Plan

Acting under authority delegated by Board of Directors, the Tribal Water Quality Control Officer

shall implement the Tribe's Water Quality Control Plan, including the antidegradation policy, by

establishing and maintaining controls on the introduction of pollutants into surface waters of the

Rancheria. More particularly, the Tribal Water Quality Control Officer shall do the following:

(A) Establish and maintain controls on the introduction of pollutants in surface waters of the

Rancheria;

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(B) Monitor water quality to assess the effectiveness of pollution controls and to determine whether

water quality standards are being attained;

(D) Review the adequacy of the existing data base and obtain additional data when required;

(E) Assess the probable impact of effluents on receiving waters in light of designated uses and

numeric and narrative standards;

(F) Require the highest and best degree of wastewater treatment practicable and commensurate with

protecting and maintaining designated uses and existing water quality:

(G) Develop water quality based effluent limitations and comments on technology-based effluent

limitations, as appropriate, for inclusion in any federal permit issued to a discharger pursuant to

Section 402 of the Clean Water Act (33 U.S.C. §1342);

(H) Require that these effluent limitations be included in any such permit as a condition for Tribal

certification pursuant to Section 401 of the Clean Water Act (33 U.S.C. §1341).

(1) Coordinate water pollution control activities with other constituent agencies and other local, state,

and federal agencies, as appropriate;

(J) Develop and pursue inspection and enforcement programs in order to ensure that dischargers

comply with requirements of the Water Quality Control Plan and any requirements promulgated

thereunder, and in order to support the enforcement of federal permits by the U.S. EPA;

(K) Provide continuing technical training for wastewater treatment facility operators through training

and certification programs;

(L) Provide funds to assist in the construction of publicly owned wastewater treatment facilities

through the construction grants and revolving funds program authorized by the Clean Water Act (33

U.S.C. §1281), and other federal funds available for such purpose; and

(M) Encourage, in conjunction with other agencies, voluntary implementation of best management

practices to control non-point sources of pollutants to achieve compliance with the standards set out

in the Water Quality Control Plan.

CHAPTER 5 —- SURFACE WATER QUALITY STANDARDS

The water quality standards described in this section apply to all waters of the Rancheria.

Water quality standards described in this section designate beneficial uses and water quality for waters

of the Rancheria. Any subsequent standards that may be described in the Water Quality Control Plan

must be at least as stringent as the standards provided below.

SECTION 1. Designated Uses

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For the purposes of this Code, there are hereby established the following designated uses for the

waters of the Rancheria. A water body that is not listed in Chapter 5, Section 2 but that is a tributary

to a listed water body shall be protected by the water quality standards that have been established for

the nearest downstream water body listed in Section 2. Water bodies within the Rancheria which do

not have beneficial uses designated for them are assigned wildlife habitat designations. These wildlife

habitat designations in no way affect the presence or absence of other beneficial use designations in

these water bodies. Further classification will be based on the size of the water body and its historic

and environmental significance. Further, if a water body has more than one designated use listed in

Section 2, the applicable water quality criterion for a pollutant is the most stringent of those prescribed

to protect the designated uses of the water body.

The codes used in Section 502 are as follows:

(A) Municipal and Domestic Supply (MUN) includes usual uses in community water systems and

domestic uses from individual water supply systems.

(B) Agricultural Supply (AGR) includes crop, orchard and pasture irrigation, stock watering, support

of vegetation for range grazing, and all uses in support of farming and ranching operations.

as mining, cooling water supply, hydraulic conveyance, gravel washing, and fire protection.

(D) Industrial Process Supply (PROC) includes process water supply and all uses related to the

manufacturing of products.

(E) Groundwater Recharge (GWR) includes natural or artificial recharge for future extraction for

beneficial uses.

(F) Hydropower Generation (POW) means used for hydropower generation.

(G) Cold Freshwater Habitat (COLD) includes uses of water that support cold water ecosystems

including but not limited to preservation or enhancement of aquatic habitats, vegetation, fish, or

wildlife, including invertebrates.

(H) Water Contact Recreation (REC-1) includes all recreational uses involving actual body contact

with water, such as swimming, wading, water-skiing, skin-diving, surfing, sport fishing, uses in

therapeutic spas and other uses where ingestion of water is reasonably possible.

(1) Non-Contact Water Recreation (REC-2) includes recreational uses which involve the presence of

water but do not require contact with water, such as picnicking, sunbathing, hiking, beach combing,

camping, pleasure boating, hunting, and aesthetic enjoyment.

(J) Preservation of Areas of Special Biological Significance (BIOL) includes aquatic and wildlife

refuges, ecological reserves, and designated areas of special biological significance.

(K) Wild Life Habitat (WILD) includes water bodies that provide a water supply and vegetation

habitat for the maintenance of wildlife.

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(L) Preservation of Threatened and Endangered Species (T&E) provides an aquatic habitat necessary,

at least in part, for the survival of certain species established as being threatened and endangered

species.

(M) Fish Migration (MGR) provides a migration route and temporary aquatic environment for

anadromous or other fish species.

(N) Fish Spawning- (SPWN) provides a high-quality aquatic habitat especially suitable for fish

spawning.

(O) Cultural (CUL) has religious, ceremonial, or subsistence significance or provides a role in Dry

Creek Rancheria Band of Pomo Indians Tribal culture.

SECTION 2. Use Classification Key

The use classification key is as follows:

P = Potential Use

E = Existing Use

H = Historical Use

N/A = Not Applicable

Full protection will be afforded to existing, potential and historical uses of the Rancheria waters.

Unit Inter- | MUN | AGR | IND | PROC GW POW | COL | REC-1

State? R D

[Name of | [Y/N] | [P, E,H

Water Body] or N/A]

[Name of [Y/N] [P, E,H

Water Body] or N/A]

SECTION 3. General Water Quality Criteria

The following criteria set forth limits or levels of water quality characteristics for surface waters to

ensure the reasonable protection of beneficial uses from degradation or unreasonable effect of point

and non-point pollution which may be a result of any cause including agricultural, mining,

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construction, urban runoff, silviculture, salt water intrusion, hydrological modification and residential

activities. The water quality standards included in this Ordinance are developed on a Rancheria-wide

basis.

(A) Color: Waters shall be free of coloration that causes nuisance or adversely affects beneficial uses.

(B) Tastes and Odors: Waters shall not contain taste or odor-producing substances in concentrations

that impart undesirable tastes or odors to fish flesh or other edible products of aquatic origin that

cause nuisance or adversely affect beneficial uses.

scum in concentrations that cause nuisance, adversely affect beneficial uses, or degrade water quality.

(D) Suspended Material: Waters shall not contain suspended material in concentrations that cause

nuisance or adversely affect beneficial uses.

(E) Settleable Material: Waters shall not contain substances in concentrations that result in deposition

of materials, which cause nuisance or adversely affect beneficial uses.

(F) Oil and Grease: Waters shall not contain oils, greases, waxes, or other materials in concentrations

that result in a visible film or coating on the surface of the water or on objects in the water, that cause

nuisance or that otherwise adversely affect beneficial uses.

(G) Biostimulatory Substances: Waters shall not contain biostimulatory substances in concentrations

that promote aquatic growths to the extent that such growths cause nuisance or adversely affect

beneficial uses.

(H) Sediment: The suspended sediment load and suspended sediment discharge rate of surface waters

shall not be altered in such a manner as to cause nuisance or adversely affect beneficial uses.

(1) Turbidity: Turbidity shall not be increased more than 20% above naturally occurring background

levels.

(J) pH: The pH shall not be depressed below 6.5 nor raised above 8.5.

(K) Dissolved Oxygen: Dissolved concentrations shall not be reduced below the following minimum

levels at any time.

(1) Waters designated COLD 6.0 mg/l

(2) Waters designated SPWN 7.0 mg/l

(3) Waters designated SPWN during critical spawning and egg incubation periods

9.0 mg/l

(L) Bacteria: The bacteriological, quality of waters of the Rancheria shall not be degraded beyond

natural background levels. In waters designated for contact recreation (REC-1), the median fecal

coliform concentration based on a minimum of not less than five samples for any 30-day period shall

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not exceed 50/100 ml., nor shall more than 10% of total samples during any 30-day period exceed

400/1 00 ml.

(M) Temperature: The natural receiving water temperature of intrastate waters shall not be altered

unless it can be demonstrated to the satisfaction of the Board of Directors that such alteration in

temperature does not adversely affect beneficial uses. At no time or place shall the temperature of any

water be increased by more than 5 degrees Fahrenheit above natural receiving water temperature.

(N) Toxicity: All waters shall be maintained free of toxic substances in concentrations that are toxic

to, or that produce detrimental physiological responses in, human, plant, animal, or aquatic life.

Compliance with this objective will be determined by use of indicator organisms, analyses of species

diversity, population density, growth anomalies, bioassays of appropriate duration, or other

appropriate methods as specified by the Tribal Water Quality Control Officer.

(1) The survival of aquatic life in surface waters subjected to waste discharge or other

controllable water quality factors shall not be less than that for the same water body in areas

unaffected by the waste discharge, or when necessary for other control water that is consistent

with the requirements for “experimental water" as described in Standard Methods for the

Examination of Water and Waste Water, latest edition. At a minimum compliance with this

objective as stated in the previous sentence shall be evaluated with a 96-hour bioassay.

(2) Effluent limits based upon acute bioassays of effluents will be prescribed where

appropriate, additional numerical receiving water standards for specific toxicants will be

established as sufficient data become available, and source control toxic substances will be

encouraged.

(O) Pesticides: No individual pesticide or combination of pesticides shall be present in concentrations

that adversely affect beneficial uses. There shall be no bioaccumulation in pesticide concentrations

found in bottom sediments or aquatic life.

(P) Radioactivity: Radionuclides shall not be present in concentrations which are deleterious to

human, plant, animal, or aquatic life nor which result in the accumulation of radionuclides in the food

web to extents which present a hazard to human, plant, animal, or indigenous aquatic life.

Constituent Maximum Contaminant Level, pCi/I

Combined Radium-226 and Radium-228

Gross Alpha particle activity ; 15

(Including Radium-226 but excluding

Radon and Uranium)

Tritium 20,000

Strontium-90 8

Gross Beta particle activity 50

Uranium 20

SECTION 4. Managing Discharges Attributable to Point and Non-point Sources

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Water quality standards shall be the basis for managing discharges attributable to point and nonpoint

sources of pollution. Water quality standards are not used to control, and are not invalidated by,

natural background phenomena or acts of God.

SECTION 5. Water Quality Criteria for Toxic Pollutants

The potential benefits to human health of establishing toxic criteria include: (1) reducing the fish

contaminated with toxic pollutants; (2) reducing the potential health risks to persons drinking

contaminated drinking water; and (3) reducing the potential health risks to swimmers from dermal

exposure to contaminated surface waters. The criteria listed below consist of two measures. The

"Water and Organisms" measure represents the maximum ambient water concentration for

consumption of both contaminated water and fish or aquatic organisms and to all water designated

MUN. The "Organisms Only" measure represents the maximum ambient water concentration for

consumption of fish or other aquatic organisms and applies to all waters without a MUN designation.

Specific Water Quality standards shall be developed by the Tribe and approved by EPA.

SECTION 6. Biological Criteria

The following biological criteria shall apply to the waters of the Rancheria.

(A) All surface waters shall be of sufficient quality to support aquatic biota without detrimental

changes in the resident aquatic communities.

(B) Waters of the Rancheria shall be free from substances, whether attributable to point source

discharges, nonpoint sources, or instream activities, in concentrations or combinations which would

impair the structure or limit the function of the resident aquatic community as it naturally occurs.

assessment methods.

(D) Determination of impairment or limitation of the resident aquatic community may be based on

comparison with the aquatic community found at an appropriate reference site or region.

SECTION 7. Wildlife Criteria

All surface waters shall be of sufficient quality to protect and support all life stages of resident or

migratory wildlife species which lie in, on, or near the waters of the Rancheria.

SECTION 8. Wetlands Criteria

The following wetlands criteria shall apply to all waters of the Rancheria:

(A) Water quality in wetlands shall be maintained at naturally occurring levels, within the natural

range of variation for individual wetlands.

(B) Physical and biological characteristics shall be maintained and protected by:

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(1) Maintaining hydrological conditions, including hydroperiod, hydrodynamics, and natural

water temperature variations;

(2) Maintaining the natural hydrophitic vegetation; and

(3) Maintaining substrate characteristics necessary to support existing and characteristic uses.

SECTION 9. Modification of Standards to Reflect Attainability

In the event that water quality monitoring identifies areas where attainable water quality is less than

what is required by the standards set out in the Tribal Water Quality Control Plan, the Dry Creek

Rancheria Band of Pomo Indians may modify the Tribal Water Quality Control Plan to reflect

attainability. Such modification shall be within the sole discretion of the Dry Creek Rancheria Band

of Pomo Indians, but shall be subject to the provisions of the Clean Water Act, and shall be carried

out in accordance with the use attainability analysis procedures set forth in the Clean Water Act.

SECTION 10. Revision of Standards and Errors

(A) Revisions: The Tribal Water Quality Control Plan and standards promulgated thereunder may be

revised from time to time, as the need arises or as the result of updated scientific information.

(B) Errors: Errors in the Tribal Water Quality Control Plan resulting from inadequate and erroneous

data or human or clerical oversight will be subject to correction by the Dry Creek Rancheria Band of

Pomo Indians. The discovery of such errors does not render the remaining and unaffected provisions

of the Tribal Water Quality Control Plan and standards set forth in the Plan invalid. If any provision

of the Tribal Water Quality Control Plan, or the application of any provision of the Plan including

any standards set out in the Plan, to any person or circumstance, should be held to be invalid, the

application of such provision to other persons and circumstances and the remainder of the Tribal

Water Quality Control Plan shall not be affected thereby.

CHAPTER 6. SAMPLING AND ANALYSIS

SECTION 1. Sample Collection, Preservation and Analysis to Determine Water Quality and

Maintain Standards

Sample collection, preservation, and analysis used to determine water quality and to maintain the

standards set forth in the Tribal Water Quality Control Plan shall be performed in accordance with

procedures prescribed by the latest EPA authoritative analytical reference, including but not limited

to the latest editions of any of the following authorities: (1) American Public Health Association,

Standard Methods for the Examination of Water and Wastewater; (2) "Methods for Chemical

Analysis of Water and Wastes"; or (3) "EPA Guidelines Establishing Test Procedures for the Analysis

of Pollutants."

SECTION 2. Bacteriological Surveys

The monthly geometric mean used in assessing attainment of standards when a minimum of five

samples is collected in a 30-day period. When less than five samples are collected in a 30-day period,

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no single sample shall exceed the applicable upper limit for bacterial density set for in Chapter 5,

Section 3(L).

SECTION 3. Sampling Procedures

(A) Streams: Strewn monitoring stations below waste discharges shall be located a sufficient distance

downstream to ensure adequate vertical and lateral mixing.

(B) Reservoirs: Sampling stations in reservoirs shall be located at least 250 feet from a waste

discharge, but otherwise, where the attainment of a water quality standard is to be assessed. Water

quality measurements shall be taken at intervals in the water column at a sampling station. For toxic

substances and nutrients, the entire water column shall be made in the epilimnion. In nonstratified

lakes, measurements will be made at intervals throughout the entire water column.

CHAPTER 7. NOTICE OF DISCHARGES

SECTION 1. Notice of Discharge

Except as permitted pursuant to this Ordinance, any person that discharges any pollutant into the

waters of the Rancheria shall immediately notify the Tribal Water Quality Control Officer of such

discharge and shall fully disclose the information regarding the discharge including the type of

pollutant, the amount, the location and other information required by the Water Quality Control

Officer.

CHAPTER 8 —- PERMIT AND INSPECTION PROGRAM

SECTION I. Permits Required

No person shall discharge any pollutant into any Rancheria water from a point source or conduct

dredge and fill activities in any designated wetland area of the Rancheria without first having applied

for and obtained a permit from the Department of Environmental Protection after approval by the Dry

Creek Rancheria Board of Directors. Any person who intends to alter or enlarge an existing activity

described in Chapter 1, Section 4 of this Ordinance, or who intends to cause or direct such alteration

or enlargement of any such activity, shall, prior to alteration, or enlargement of any such activity,

apply for and obtain a valid permit from the Department of Environmental Protection after approval

by the Board of Directors.

[See Appendix A for a sample application form.]

(A) Contents of Application. Permit applications will include the following information:

(1) Identification and address of the owner and operator of the activity, facility, or process for

which the discharge permit is sought;

(2) Location, quantity and quality characteristics of the discharge to be permitted;

(3) Effluent limitations and requirements for treatment prior to discharge;

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(4) Identification of equipment and procedures necessary to comply with for all applicable

mandatory monitoring and record-keeping and reporting requirements;

(5) Schedules of compliance;

(6) Procedures to be followed by tribal personnel for entering and inspecting the premises:

(7) Submission of pertinent plans and specifications for the facility, process, or activity which

is the source of the discharge;

(8) Restrictions on transfer of the permit;

(9) Procedures to be followed in the event of expansion or modification of the facility, process

or activity from which the discharge occurs or the quantity, quality, or frequency of the

discharge; and

(10) Duration of the permit and renewal procedures.

(B) Application Under Oath. Each applicant shall sign the permit application under oath, certifying

the truth and accuracy of the information contained in the permit application, in a form approved by

the Environmental Planning Director.

Environmental Planning and approved by the Board of Directors, shall be paid to the Tribe at the time

of filing an application. All fees collected shall be used for costs associated with administering the

Water Quality Control Plan.

(D) Review of Application by Tribal Departments. Upon receipt of four (4) copies of an application

and any proposed mitigation plans, the Department of Environmental Protection will review each

application to determine if it contains all information requested consistent with Section 1(A) herein.

If the Department of Environmental Protection determines that the application is correct and

complete, the Department shall Department of Environmental Protection transmit one copy to the Dry

Creek Rancheria Board of Directors and Tribal Historic Preservation Office, for their written

recommendations. Failure of the departments to respond in writing to the Department of

Environmental Protection within thirty (30) days of receipt shall be deemed a lack of objection to the

application by the department.

(E) ). If Department determines that an application is not correct and complete, it shall return it to

the applicant for correction and resubmission. A corrected application may be re-submitted to the

Department within 30 days and shall not require a new application fee. However, if the application is

resubmitted after 30 days, the application will be considered to be a new application, thus requiring a

new application fee.

Except as otherwise provided in this Ordinance, permit applicants shall demonstrate that the proposed

alteration, enlargement, or new regulated activity will not adversely affect water quality and is

designed to avoid substantial disturbance of the soils, topography, drainage, vegetation, and other

water related natural characteristics of the site.

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(F) Public Notice and Hearing on Permit Application. Public notice of every correct and complete

application for a discharge permit shall be circulated in a manner designed to inform interested and

potentially interested persons of the proposed discharge and of the proposed determination to issue

or deny a permit. Procedures for the circulation of public notice shall be established by the Tribe and

shall include at least the following:

(1) Notice shall be circulated within the geographical areas of the proposed discharge.

(2) Notice shall be mailed to any person or group upon request.

(3) Upon request, the Tribe shall add the name of any person or group to a mailing list to

receive copies of notices for all discharge applications within the Rancheria or within a certain

geographic area.

(4) The Tribe shall promulgate such regulations as are necessary and appropriate to provide

an opportunity for public hearing, when appropriate, prior to granting or denying a discharge

permit.

(G) Permit applications, any required environmental documents, and mitigation plan proposals must

demonstrate compliance with applicable Tribal regulations including but not limited to those

pertaining to water quality, hazardous substances, environmental impact evaluations, and riparian

protection.

(H) Nothing in any permit shall ever be construed to prevent or limit the application of any emergency

power of the Tribe.

SECTION 2. Categorical Exclusions and Variances

The Dry Creek Rancheria Board of Directors may by regulation exclude categories of uses, activities

or projects from requirements of this Ordinance for one or more of the following reasons:

(A) Naturally occurring pollution;

(B) Natural low-flow conditions;

(D) Substantial and widespread economic and social impacts.

A variance to establish water quality objectives may be granted by the Water Quality Control Officer

after approval by the Board of Directors, only when the applicant satisfactorily demonstrates that:

(A) Water quality will not be permanently impaired;

(B) Public health will not be threatened;

proposed activity;

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(D) A mitigation plan approved by the Tribal Water Quality Control Officer demonstrates that all

discharges will be below established water quality standards as set forth in the Water Quality Control

Plan before the expiration of the variance;

(E) The variance does not exceed one year from the date of issuance; and

(F) A 30-day public review period has passed with at least one public meeting.

SECTION 3. Issuance of Permit; Final Environmental Determination

(A) Upon compliance with this Ordinance, the Water Quality Control Officer may make findings and

issue the permit as provided in this Ordinance. The permit shall specify the person authorized to

operate the facility and the boundaries of the facility. The permit shall contain such conditions as are

necessary to protect the public health, safety, and the environment.

(B) Copies of the permit (including conditions specified therein), findings, and any documents setting

forth the Water Quality Control Officer’s final environmental determination shall be made available

for inspection and copying to any person so requesting.

following occur:

(1) The Tribal Water Quality Control Officer determines that the proposed discharge is not

consistent with this Ordinance or other applicable tribal or federal laws.

(2) The Tribal Water Quality Control Officer determines that it will be impossible to identify

a set of permit conditions that will be mutually satisfactory to the Officer and the discharger.

(3) Any other circumstances provided by law.

(D) Upon denial of a permit, the Tribal Water Quality Control Officer shall give written notice of the

denial to the applicant and any other person who has requested in writing that such notice be given.

Notice to the applicant shall be accompanied by a form request for re-hearing.

(E) An applicant who desires an appeal of the denial of a permit shall file with the Department of

Environmental Protection a written request for a re-hearing before the Board of Directors within

fifteen (15) days after receiving notice of the denial of the permit. The hearing procedures will be the

same as the administrative process set out herein.

SECTION 4. Monitoring and Records; Inspections

(A) Monitoring and Records: The permittee shall monitor the discharge pursuant to the conditions of

the permit. Sampling and measurements taken for the purpose of monitoring shall be representative

of the monitored activity. The permittee shall retain records of all monitoring information, including

calibration, and maintenance records and copies of all reports required by the permit. The permittee

shall submit duplicate copies of monitoring information to the Public Works Department. Records

for monitoring shall include:

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(1) The date, exact place, and time of sampling or measurement;

(2) The individual(s) who performed the sampling or monitoring;

(3) The date analysis was performed;

(4) The analytical techniques or methods used;

(5) The results of such analysis; and

(6) Chain - of - custody for all samples.

(B) Inspections and Entry: The permittee shall allow an authorized agent of the

Tribal Environmental Planning Department or its designated enforcement officer, upon presentation

of credentials, to:

(1) Enter upon the permittee's premises at reasonable times during business hours, where a

regulated facility, activity or process is located, or where records must be kept under the

conditions of the permit;

(2) Have access to and copy, at reasonable times, any records that must be kept under the

conditions of the permit;

(3) Inspect at reasonable times during business hours, any facilities, equipment (including

monitoring and control equipment, practices, or operations regulated or required under the

permit; and

(4) Sample or monitor at reasonable times during business hours, for the purposes of assuring

permit compliance or as otherwise authorized by the appropriate Tribal ordinance, any

substances or parameters at any location.

(5) In the case of exigent or emergency conditions, the requirement that entry, copying

sampling and inspection be conducted “at reasonable times during business hours” may be

waived at the discretion of the Tribal Water Quality Control Officer.

CHAPTER 9. ENFORCEMENT PROGRAM/ADMINISTRATIVE PROCEDURES

SECTION 1. Enforcement Policy

It is the policy of the Department of Environmental Protection to encourage informal, practical, resultoriented resolution of alleged violations and actions needed to prevent damage to Rancheria resources

or harm to the health, safety, or welfare of the Rancheria population. It is also the policy of the Public

Works Department, consistent with the principles of due process, to provide effective procedures for

enforcement.

SECTION 2. Enforcement Agency

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The Department of Environmental Protection shall be responsible for enforcing the provisions of this

Code. Specifically, the Tribal Department of Environmental Protection shall conduct investigations

when a complaint is received by the Tribal Water Quality Control Officer, or where the Tribal Water

Quality Control Officer or other Tribal department believes that a violation of this Ordinance has

occurred.

SECTION 3. Enforcement Activities

If a written and verified complaint is filed with the Tribal Water Quality Control Officer and reviewed

by the Department of Environmental Protection alleging, or where the Tribal Water Quality Control

Officer otherwise has cause to believe, that any person is violating any discharge regulation or permit

condition, the Department of Environmental Protection shall conduct a prompt investigation.

SECTION 4. Notice of Violation; Cease and Desist Order

If the Department of Environmental Protection finds after an investigation pursuant to Chapter 9

Section 3 of this Ordinance that a violation of any regulation or permit condition exists, the

Department of Department of Environmental Protection of Environmental Protection shall promptly

notify both the alleged violator and the Board of Directors in writing.

In the case of an apparent violation of this Ordinance, the Department of Environmental

Planning is authorized to issue a Notice of Violation to the person(s) apparently responsible for the

violation, and, if the apparent violation occurred on property owned by a person other than the alleged

violator, a Notice of Violation shall also be issued to the owner/operator.

In the case of a continuing violation or a threatened violation, the Department of Department of

Environmental Protection of Environmental Protection is authorized to issue a Cease and Desist Order

to prevent the violation from continuing or occurring.

Failure to comply with a Cease and Desist Order shall constitute a violation of this Ordinance. Both

a Notice of Violation and Cease and Desist Order may be issued for a single incident. A Notice of

Violation will include a Summons to appear before the Board of Directors at an enforcement hearing

at a specified date and time, and shall advise the alleged violator that failure to appear may result in

the imposition of civil penalties.

If a Cease and Desist Order is issued without an accompanying Notice of Violation, the Order will

inform the recipient that failure to comply with the Order will constitute a violation of this Ordinance

which will result in the issuance of a Notice of Violation and may result in the imposition of civil

penalties.

SECTION 5. Informal Conferences

The Department of Environmental Protection shall afford the violator owner/operator or his or her

representative reasonable opportunities to discuss proposed enforcement actions at an informal

conference prior to taking further enforcement action, unless the Department of Environmental

Protection determines that there may be either imminent environmental damage to a Rancheria

resource or adverse impact on the health, safety, or welfare of the Rancheria population. Informal

conferences may be used at any stage in the enforcement proceedings, except that the Department of

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Environmental Protection may refuse to conduct informal conferences with respect to any matter then

pending before the Board of Directors.

SECTION 6. Reports Required

The Department of Environmental Protection shall keep written notes of the date and place of the

conference, the persons in attendance, the subject matter discussed, and any decisions reached with

respect to further enforcement action.

SECTION 7. Enforcement Hearings

If the owner/operator and the Department of Environmental Protection are unable to resolve the

matter via an informal conference, the Board of Directors is authorized to conduct adjudicatory

hearings to determine if a violation of this Ordinance has occurred. In such a hearing the Director of

Environmental Planning, in cooperation with the Tribal Quality Control Officer, shall present the case

to the Board of Directors to establish that the person(s) charged has (have) committed a violation of

this Ordinance. Any person so charged shall be entitled, at his or her own expense, to be represented

by an attorney or other representative.

(A) Burden of Proof. The Department of Environmental Protection shall have the burden of proving

that a violation of this Ordinance has occurred and that a person charged was responsible for the

violation. The Board of Directors may determine that a violation of this Ordinance has occurred if it

finds that the charges are supported by substantial evidence that supports a finding that a violation

has occurred.

(B) Enforcement Orders. Within thirty (30) days after the date of any enforcement hearing, the Board

of Directors shall issue a written decision. If the Board determines that a violation has occurred and

that the person(s) charged was (were) responsible for the violation, the Board’s decision shall include

an Enforcement Order.

SECTION 8. Civil Penalties and Corrective Action

An Enforcement Order shall direct any person(s) found to have committed a violation of this

Ordinance to take whatever corrective action the Board of Directors deems appropriate under the

circumstances. An Enforcement Order may impose civil penalties in accordance with a schedule of

civil penalties prescribed in the Board's rules. Alternatively, an Enforcement Order may impose civil

penalties in the event that a person found to have committed a violation of this Ordinance does not

take corrective action in accordance with the Order within a prescribed time frame. If a person who

has been found to have committed a violation does not take corrective action within the prescribed

time frame, an appropriate department or agency of the Tribal government may take the necessary

corrective action, in which case, the amount of any civil penalty shall be increased by twice the

amount of the cost incurred by the Tribal department or agency in taking the corrective action.

(A) Emergency Orders. Notwithstanding any other provision of this Ordinance, the Board of

Directors may issue an emergency order if the Board determines that noncompliance with this

Ordinance presents an imminent and substantial threat to the public health, welfare, or environment,

and further determines, in consultation with the Tribe's attorney(s), that it is not practicable to

otherwise assure prompt protection of the public health, welfare, or environment. Any such order

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shall be effective immediately upon issuance and shall remain in effect for a period not to exceed

sixty (60) days.

(B) Revocation of Permit. Failure of any person to comply with any Enforcement Orders will result

in an immediate revocation of his or her permit. In order to obtain a reinstatement of such permit,

the person(s) against whom the Enforcement Order was issued must first demonstrate compliance

with the Order and pay all outstanding penalties and then petition for reinstatement of the permit

with the Public Works Department.

SECTION 9. Judicial Enforcement

The Tribal Court shall have jurisdiction over all cases and controversies arising under this Ordinance.

(A) The Department of Environmental Protection may request the Board of Directors to authorize the

Department of Environmental Protection to file an action in Tribal Court pursuant to this Ordinance

for a temporary restraining order, a preliminary injunction, a permanent injunction, or any other relief

provided by law, including the assessment and recovery of civil penalties and clean up and

administrative costs associated with the enforcement of this Ordinance (except that any suit against

the Tribe, a tribal department, or agency shall be for injunctive relief only and not for penalties or

other money damages, to which the Tribe does not waive its sovereign immunity), in any of the

following instances:

(1) whenever a person has violated, or is in violation of, any provision of this Ordinance,

including but not limited to a regulation, permit, or order issued pursuant to this Ordinance;

(2) whenever a person submits false information under this Ordinance or regulations

promulgated under this Ordinance; or

(3) whenever a person is creating an imminent and substantial endangerment to the public

health, welfare, environment, or cultural resources of the Tribe, in which case the Board of

Directors shall request the Department of Environmental Protection to pursue injunctive relief

but not the assessment of penalties, unless the endangerment is caused by a violation, as

specified in paragraphs (1) and (2) above.

(B) Any person who in violation of this Ordinance discharges any pollutant into the waters of the

Rancheria shall be liable for all costs associated with or necessary to clean up, abate, or remove said

pollutants from the waters of the Rancheria and restore the quality of the waters of the Rancheria to

their condition as they existed immediately prior to the discharge.

enforcement of this Ordinance, including, but not limited to, court costs.

SECTION 10. Special Provisions for Tribal Departments and Agencies

In such case that an allegation of a violation committed by the Board of Directors or any Tribal agency

or department is presented to the Department of Environmental Protection, the Department shall

inform the Board and the Chairperson of the Board shall convene a special meeting of the Board to

consider the initiation of action to ensure compliance with this Code.

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CHAPTER 10. APPEALS

SECTION 1. Judicial Review

Any person, who is aggrieved by the issuance or denial of a discharge permit without respect to

whether that person, corporation, or other entity is a party to such permit application, or who is the

subject of an Enforcement Order, may file an appeal with the Tribal Court. The Court is authorized

to hear such appeal.

CHAPTER 11. OTHER PROVISIONS

SECTION 1. Severability

If any provision of this Ordinance, or the application thereof, is held invalid, the remainder of this

Ordinance, or applications of such provisions, shall not be affected.

SECTION 2. Sovereign Immunity Preserved

Nothing in this Ordinance is intended to, nor should be interpreted as a waiver of the Tribe's sovereign

immunity from unconsented lawsuit, or as authorization for a claim for monetary damages from the

Tribe.

APPENDIX A

PERMIT APPLICATION FORM

(Request Application from the Dry Creek Rancheria Department of Environmental Protection)

APPENDIX B

DRY CREEK RANCHERTA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

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Title 2. Water Quality Ordinance - Adopted by Tribe 04/27/19

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CERTIFICATION

The foregoing Water Quality Ordinance was presented at a General Membership Meeting held on

April 27, 2019, and was approved with a quorum present and such Ordinance has not been rescinded

or amended in any way.

amt 27-2019

Chris Wright Date

Chairman

A me 4 -2T1- 2O1F

Margie Rojes Date

Secretary/Treasurer

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Title 2. Water Quality Ordinance — Adopted by Tribe 04/27/19

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