Chapter 12. Nibiish Naagdowen “The Care of Water”: Clean Water Act

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4.1201 TITLE

This Act may be cited as the Little Traverse Bay Bands Clean Water Act (“LTBB CWA”).

(Source: WOS 2016-008, September 15, 2016, Section I)

1.1202 PURPOSE

Goals and Objectives

Discharges of pollutants into LTBB Waters from point and non-point sources,

introduction of pollutants by industrial users into publicly owned treatment works, damage to

wetlands, improper management of sewage sludge, and other activities that degrade tribal waters

are threats to the political integrity, economic security, and health, welfare and environment of

the Reservation and its residents. It is the purpose of this Act to address these threats by

providing authorities to prevent, abate, and control pollution of LTBB waters; to research and

plan the development and use (including restoration, preservation, and enhancement) of land and

water resources within the Reservation; and to ensure that degradation of LTBB waters is

minimized and economic growth occurs in a manner consistent with the preservation of existing

clean LTBB water resources. To carry out these purposes, this Act provides for:

in Part 2 of this Act:

the establishment of water quality standards to protect fish and wildlife

and the domestic, cultural, ceremonial, agricultural and recreational uses of LTBB

waters (Subpart A);

water quality monitoring, planning and management activities to achieve

those standards (Subpart B); and

review and certification of federal permits for discharges into LTBB

waters to ensure that permitted discharges will meet tribal water quality standards;

in Part 3 of this Act:

the requirement that every point source (unless specifically exempted)

discharging pollutants into LTBB waters have a valid permit ensuring that present

and future point source discharges comply with applicable effluent limitations

within a specified timeframe (Subpart A); and

the establishment of pretreatment standards to control the introduction of

pollutants by industrial users into publicly owned treatment works (Subpart B);

in Part 4 of this Act, assessment, monitoring and protection of wetlands;

in Part 5 of this Act, regulation of the use, disposal, storage, and transportation of

sewage sludge;

in Part 6 of this Act, procedures for issuing, renewing, revoking, and denying

permits for discharges into LTBB waters;

in Part 7 of this Act, the development of a program to control pollution of LTBB

waters from non-point sources;

in Part 8 of this Act, the development of a program to restore water quality in

Reservation lakes;

in Part 9 of this Act, the development of a program to protect LTBB waters on a

watershed basis;

in Part 10 of this Act, provisions for enforcement of this Act, including

regulations, permits, citations, and other requirements issued pursuant to this Act, and for

issuance of emergency citations in the event of an imminent and substantial

endangerment to public health or welfare or the environment caused by point or nonpoint source discharges; and

10.

in Part 11 of this Act, procedures for promulgating regulations to implement this

Act and obtaining review in Tribal Court of final actions taken by the Program pursuant

to this Act.

Statutory Construction

In general. The provisions of this Act shall be liberally construed to fulfill the

intent and purpose of this Act and so as not to conflict with the applicable laws of the

LTBB and the United States. Nothing contained in this Act shall be construed to abridge

or alter rights of action or remedies in equity under treaties, the common law or statutory

law, nor shall any provisions of this LTBB CWA or any action taken by virtue thereof be

construed as preventing the LTBB or individuals from the exercise of their rights under

treaties, the common law or statutory law to suppress nuisances or to abate pollution.

Water Quantity Rights. The right of the LTBB to certain quantities of water and

the authority of the LTBB to allocate quantities of water within its jurisdiction shall not

be superseded, abrogated or otherwise impaired by this Act.

(Source: WOS 2016-008, September 15, 2016, Section II)

4.1203 DEFINTIONS

For the purposes of this Act –

“Administrator” means the Administrator of the U.S. Environmental Protection

Agency.

Act.

“Applicant” means any person or entity applying for a permit or license under this

“Best management practice” or “BMP” means methods, measures or practices

undertaken to prevent or reduce the pollution of LTBB Waters, including to control,

restrict, or diminish non-point sources of pollution, that are consistent with these

Standards. BMPs include, but are not limited to, structural and nonstructural controls,

treatment requirements, operation and maintenance procedures and practices to control

site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material

storage, and can be applied before, during, or after pollution-producing activities to

reduce or eliminate the introduction of pollutants into LTBB waters.

“Biological monitoring” means the determination of the effects on aquatic life,

including accumulation of pollutants in tissue, in receiving waters due to impacts from

point and non-point sources of pollution: (a) by techniques and procedures, including

sampling of organisms representative of appropriate levels of the food chain/web

appropriate to the waterbody under study, and (b) at appropriate frequencies and

locations.

“Clean Water Act” or “CWA” means the Federal Water Pollution Control Act of

1972, as amended, 33 U.S.C. §§ 1251 - 1387.

“Compliance schedule” means a schedule of remedial measures, including an

enforceable sequence of actions or operations leading to compliance with an effluent

limitation or other limitation, prohibition or standard.

“Conservation Enforcement Officer” means a Tribal Conservation or Law

Enforcement officer authorized by Tribal law to enforce Tribal conservation regulations;

or a federal enforcement agent, including a Special Agent of the U.S. Fish and Wildlife

Service.

“Discharge,” when used without qualification, means a discharge of pollutant(s).

“Discharge of pollutant(s)” means any addition of any pollutant to LTBB waters

from any point source.

10.

“Domestic septage” means either liquid or solid material removed from a septic

tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment

works that receive only domestic sewage. Domestic septage does not include material

removed from a septic tank, cesspool, or similar treatment works that receives either

commercial wastewater or industrial wastewater and does not include grease removed

from a grease trap at a restaurant or other commercial facility.

11.

“Domestic sewage” means waste and wastewater from humans or household

operations that is discharged to or otherwise enters a treatment works.

12.

“Effluent limitation” means any restriction, requirement, or prohibition on

quantities, rates, and concentrations of chemical, physical, biological, and other

constituents that are discharged from point sources, and includes schedules of

compliance.

13.

“Floristic Quality Assessment” means a vegetation-based ecological assessment

approach that is used for wetlands quality monitoring and assessment.

14.

“Fundamentally different factors variance” means a variance from otherwise

applicable technology-based effluent limitations under CWA § 301(b)(1)(A), (b)(2)(A) &

(E), & 301(n).

15.

“High quality wetlands” means those wetlands determined to have exceptional

ecological resources by scientifically accepted methods, such as a Floristic Quality

Assessment, or determined to be a closely connected resource to the Odawa culture.

16.

“Hydric Soils” means soils that are formed under conditions of saturation,

flooding, or ponding that develop an anaerobic condition after a period of time in the

upper 40 inches (1meter) of the soil layer.

17.

“Industrial user” means those industries identified in the Standard Industrial

Classification Manual, Bureau of the Budget, 1967, as amended and supplemented, under

the category “Division D Manufacturing,” and such other classes of significant waste

products as, by regulation, the Administrator deems appropriate.

18.

“LTBB” means the Little Traverse Bay Bands of Odawa Indians.

19.

“LTBB Waters” means all groundwater and surface waters that are within or

border the Reservation. Surface waters include but are not limited to all or portions of

rivers, streams, creeks (including perennial, intermittent and ephemeral streams and their

tributaries), lakes, ponds, dry washes, marshes, waterways, wetlands of all types,

mudflats, sandflats, sloughs, prairie potholes, wet meadows, impoundments, riparian

areas, springs, and all other bodies or accumulations of surface water, natural or artificial,

public or private, including those dry during part of the year. Consistent with federal

requirements, the Program may exclude from LTBB waters certain waste treatment

systems not constructed or located in what would otherwise be LTBB Waters.

20.

“Load allocation” means the portion of a receiving water’s loading capability that

is attributed either to one of its existing or future non-point sources of pollution or to

natural background sources.

21.

“Medical waste” means isolation wastes, infectious agents, human blood and

blood products, pathological wastes, sharps, body parts, contaminated bedding, surgical

wastes and potentially contaminated laboratory wastes, dialysis wastes, and such

additional medical items as the Program may prescribe by regulation.

22.

“National Pollutant Discharge Elimination System” or “NPDES” means the

regulatory program operated under CWA §§ 307, 318, 402, & 405 (including

pretreatment and sludge management) or under Parts 3, 5, and 6 of this Act.

23.

“National pretreatment standard” means any regulation promulgated by the

Administrator in accordance with CWA § 307(b) & (c) that applies to industrial users,

including prohibited discharges.

24.

“New source” means any source (a building, structure, facility, or installation

from which there is or may be a discharge of pollutants), the construction of which is

commenced after publication by the Administrator of proposed regulations prescribing a

standard of performance under CWA § 306 that will be applicable to such sources, if

such a standard is thereafter promulgated in accordance with CWA § 306.

25.

“New source performance standard” means a standard promulgated by the

Administrator or the Program that is applicable to a category of new sources.

26.

“Non-point source” means any source of water pollution that is not a point source,

including airborne deposition of pollutants.

27.

“Person” means any individual, partnership, association, or other entity; public or

private corporation or other business entity, including a tribal entity or enterprise; federal,

tribal (including LTBB), state or local government or any agency or political subdivision

thereof; or interstate or intertribal body or commission, and includes any officer or

governing or managing body of any such entity.

28.

“Point source” means any discernible, confined, and discrete conveyance,

including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete

fissure, landfill leachate collection system, container, rolling stock (except to the extent

excluded from the NPDES program by section 601 of the National and Community

Service Act of 1990, P.L. 101-610, 104 Stat. 3185), concentrated animal feeding

operation (“CAFO”), or vessel or other floating craft, from which pollutants are or may

be discharged. This term does not include agricultural storm water discharges (except

from CAFOs) or return flows from irrigated agriculture.

29.

“Pollutant” means any type of contaminant discharged into water, including but

not limited to toxic substances, hazardous substances, dredge spoil, garbage, solid waste,

industrial, municipal, and agricultural waste, sewage and sewage sludge, manure,

chemicals, biological materials, radioactive materials (except those regulated under the

Atomic Energy Act of 1954, as amended), pesticides, herbicides, fungicides,

rodenticides, fertilizers, incinerator residue, munitions, discarded equipment, rock, sand,

soil, sediment, filter backwash, heat, and oil, regardless of whether in liquid, solid, or

gaseous form. This term does not mean (A) “sewage from vessels” within the meaning

of CWA § 312; or (B) water, gas, or other material which is injected into a well to

facilitate production of oil or gas, or water derived in association with oil or gas

production and disposed of in a well, if the well is used either to facilitate production or

for disposal purposes, is approved by authority of the LTBB, and the LTBB determines

that such injection or disposal will not result in the degradation of ground or surface

water resources.

30.

“Pollution” means any man-made or man-induced alteration of the chemical,

physical, biological, or radiological integrity of the environment.

31.

“Pretreatment program” means a program operated by the LTBB Natural

Resources Department or by a publicly owned treatment works (whose program has been

approved either by the Department or the Administrator) to implement national

pretreatment standards to control pollutants which pass through or interfere with

treatment processes in publicly owned treatment works or which may contaminate

sewage sludge.

32.

“Program” means the LTBB Environmental Services Program, within the Natural

Resources Department.

33.

“Publicly owned treatment works” or “POTW” means any device or system used

in the treatment (including recycling and reclamation) of municipal sewage or industrial

wastes of a liquid nature which is owned by the LTBB, its entities, or a state,

municipality, or other tribe; this term does not include such a facility owned or operated

by the United States or a federal agency.

34.

“Reservation” means all lands (including submerged lands and banks of lands that

may be dry for part of the year) and waters within the boundaries of the reservations for

the Little Traverse Bay Bands of Odawa Indians as set out in Article I, paragraphs third

and fourth of the Treaty of 1855, 11 Stat. 621; all lands set out in Articles Second and

Third of the Treaty of March 28, 1836, 7 Stat. 491 in the event that the 1836 reservation

is determined to include lands which are not included within the 1855 reservation; and all

lands outside of those boundaries which are now or in the future declared to be Little

Traverse Bay Bands of Odawa Indians reservation by the U.S. Department of the Interior

or are taken into trust for the Little Traverse Bay Bands of Odawa Indians, all

notwithstanding the issuance of any patent and including rights-of-way running through

such lands and waters, and notwithstanding the presence of manmade items like dams,

piers, abandoned boom piers, abandoned logs, bridge supports, or other facilities,

structures or objects that may exist on or in such lands and waters.

35.

“Section 404 permit” means a permit issued by the U.S. Army Corps of Engineers

under CWA § 404 or a permit issued by a tribe or state that is authorized by the U.S.

Environmental Protection Agency to issue Section 404 permits.

36.

“Sewerage system” means pipelines or conduits, pumping stations, and all other

constructions, devices, appurtenances, and facilities used for collecting or conducting

wastes to a point of ultimate disposal.

37.

“Sewage sludge” means solid, semi-solid, or liquid residues generated during the

treatment of domestic sewage in a treatment works. Sewage sludge includes, but is not

limited to, domestic septage, scum or solid removed in primary, secondary, or advanced

wastewater treatment processes, and a material derived from sewage sludge. Sewage

sludge does not include ash generated during firing of sewage sludge in a sewage sludge

incinerator or grit and screenings generated during preliminary treatment of domestic

sewage in a treatment works.

38.

“Storm water” means rain water runoff, snow melt runoff, and surface runoff and

drainage.

39.

“Total maximum daily load” or “TMDL” means the sum of the individual

wasteload allocations for point sources and load allocations for non-point sources and

natural background.

40.

“Toxic pollutant” means those pollutants, or combinations of pollutants, including

disease causing agents, which after discharge and upon exposure, ingestion, inhalation or

assimilation into any organism, either directly from the environment or indirectly by

ingestion through food chains, will, on the basis of information available to the

Administrator, cause death, disease, behavioral abnormalities, cancer, genetic mutations,

physiological malfunctions (including malfunctions in reproduction) or physical

deformations in such organisms or their offspring.

41.

“Treatment works” means any device, system, plant, disposal field, lagoon, dam,

pumping station, incinerator, or other works subject to this Act used for the purpose of

recycling, reclaiming, treating, stabilizing, or holding wastes.

42.

“Treatment works treating domestic sewage” means a POTW or any other sewage

sludge or waste water treatment device or system, regardless of ownership (including

federal facilities), used in the storage, treatment, recycling, and reclamation of municipal

or domestic sewage, including land dedicated for the disposal of sewage sludge. This

definition does not include septic tanks or similar devices. For the purposes of this

definition, “domestic sewage” includes waste and waste water from humans or household

operations that are discharged to or otherwise enter a treatment works. The Program may

designate any person subject to the standards for sewage sludge use and disposal

established by the Administrator as a “treatment works treating domestic sewage.”

43.

“Underground injection” means the subsurface emplacement of fluids by well

injection.

44.

“Waste” means “pollutant,” as that term is defined in this section.

45.

“Wasteload allocation” or “WLA” means the portion of receiving water's loading

capacity that is allocated to one of its existing or future point sources of pollution.

46.

“Wetlands” means land characterized by the presence of water at a frequency and

duration sufficient to support, under natural conditions, aquatic vegetation and/or aquatic

life, and which has hydric soils. This term includes, but is not limited to, swamps,

marshes, bogs and fens, but does not include stormwater control features constructed to

convey, treat, or store stormwater that are created on dry land.

(Source: WOS 2016-008, September 15, 2016, Section III)

4.1204 JURISDICTION

The provisions of this Act and of regulations promulgated under and orders, permits, and

other requirements issued pursuant to this Act shall apply to all persons and all property within

the jurisdiction of the LTBB, as defined in Article IV(B) of the Waganakising Odawa

Constitution.

The provisions of this Act and of regulations promulgated under and citations, permits,

and other requirements issued pursuant to this Act shall apply to any person, and to all property

within the jurisdiction of the LTBB owned or operated by any such person who has submitted an

application for and received a permit pursuant to this Act or has otherwise consented to be

subject to the provisions of this Act.

(Source: WOS 2016-008, September 15, 2016, Section IV)

4.1205 AUTHORITIES AND DUTIES OF THE ENVIRONMENTAL SERVICES

PROGRAM

General Provisions

Except as otherwise expressly provided in this Act, the Environmental Services

Program shall be responsible for administering this Act.

In order to fulfill all obligations under this Act, the Program may:

encourage, participate in, or conduct studies, In order to fulfill all

obligations under this Act, the Program may: investigations, research, and

demonstrations relating to water pollution as necessary for the discharge of duties

assigned under this Act;

hold hearings related to any aspect of or matters within the authorities of

this Act and, in connection therewith, compel the attendance of witnesses and the

production of records;

develop programs for the prevention, control, and abatement of new or

existing pollution of LTBB Waters;

encourage voluntary cooperation by advising and consulting with persons

or affected groups, tribes or states to achieve the purposes of this Act, including

voluntary testing of actual or suspected sources of surface water pollution;

secure necessary scientific, technical, administrative and operational

services, including laboratory facilities, by contract or otherwise, to carry out the

purposes of this Act;

require, as specified in Section XLVIII of this Act, any person subject to

the provisions of this Act to monitor, sample or perform other studies to quantify

effects of pollutants and sewage sludge to the environment and to submit such

plans, specifications, and other information deemed necessary by the Program to

carry out the regulations adopted pursuant to this Act;

represent, consistent with the applicable requirements of tribal law and

after appropriate consultation with appropriate authorities, LTBB in all matters

pertaining to water pollution and its control, abatement, and prevention;

cooperate with federal and state agencies to develop comprehensive

solutions to prevent, reduce and eliminate pollution in concert with programs for

managing water resources; and

perform such other activities as may be necessary and appropriate to carry

out this Act.

Regulations

The Program is authorized to promulgate such regulations as are necessary to

carry out all functions under this Act, pursuant to the provisions of Section LII of this

Act, including, but not limited to, regulations concerning: water quality standards and

planning; discharges of pollutants into LTBB Waters; management and protection of

wetlands; introduction of pollutants by industrial users; disposal of sewage sludge;

construction of new control facilities or any parts of them; modification of existing

control facilities or any parts of them; adoption of other remedial measures to prevent,

control or abate water pollution; clean lakes; non-point sources; and watershed

protection.

In promulgating regulations, the Program shall give consideration to, but shall not

be limited to, the relevant factors prescribed by the Clean Water Act and the regulations

thereunder, except that the regulations prescribed by the Program shall be at least as

stringent as those promulgated under the Clean Water Act if there is an applicable

minimum standard established therein. In promulgating regulations, the Program shall

also give consideration to, but shall not be limited to, the relevant factors prescribed by

tribal law.

All regulations promulgated under this Act shall be subject to review and

approval by the Natural Resources Commission and the Tribal Council, the latter as

provided in the LTBB Administrative Procedures Act, before becoming effective.

Duties

In order to fulfill all obligations under this Act, the Program shall:

enforce regulations that have been promulgated by the Program and have

become effective pursuant to the provisions of this Act and the LTBB

Administrative Procedures Act; and

compile and make available to the public from time to time reports, data

and statistics with respect to matters studied or investigated by or at the direction

of the Program.

(Source: WOS 2016-008, September 15, 2016, Section V)

4.1206 NO WAIVER OF SOVEREIGN IMMUNITY

The Little Traverse Bay Bands of Odawa Indians retain all rights of sovereign immunity. Nothing

in this Act waives the sovereign immunity of LTBB except for the limited waiver provided for

judicial review of final actions of the Program pursuant to Section LIII of this Act.

(Source: WOS 2016-008, September 15, 2016, Section VI)

PART 2. LTBB WATER QUALITY STANDARDS

Subpart A. Water Quality Standards

4.1207 WATER QUALITY STANDARDS

Promulgation of Standards

Water quality standards are one type of regulation authorized under this Act and are

subject to the rulemaking requirements in Section LII. The Program shall promulgate water

quality standards that protect the public health or welfare, enhance the quality of water and

generally serve the purposes of this Act, including by implementing the anti-degradation policy

set forth in Section II(A) of this Act. The standards shall provide for the protection and

propagation of fish, wildlife and livestock and shall protect agricultural, domestic and

recreational uses of water, as well as cultural and ceremonial values and uses of water. The

standards shall consist of the designated uses for LTBB waters and the water quality criteria for

such waters based upon such uses, an anti-degradation policy, and implementation methods, and

shall be applicable to all LTBB Waters. The standards also shall include the methods and

analyses to be used to determine compliance with such standards. The standards also may

include provisions regarding compliance schedules, mixing zones, low flows, variances and such

other matters as may be appropriate.

Designated Uses

The water quality standards shall establish designated uses for LTBB Waters, or

segments thereof, taking into consideration the use and value of such waters for public water

supplies, protection and propagation of fish and wildlife, recreational purposes, and agricultural

(including livestock watering), commercial, industrial, and other purposes, and also taking into

consideration their use and value for navigation and the cultural and ceremonial values and uses

of the water. The Program may remove a designated use that is not an existing use consistent

with the requirements of Section 303(c) of the Clean Water Act and associated federal

regulations.

Criteria

The criteria established by the Program shall protect the designated uses, be based on

sound scientific rationale (which may include criteria documents of the Administrator), and

include sufficient parameters or constituents to protect the designated uses. For LTBB Waters

with multiple uses, the criteria shall protect the most sensitive use. The Program may establish

criteria specifically applicable to wildlife or sediment. The criteria shall include:

Narrative criteria to protect all LTBB Waters from: the discharge of toxics in

toxic amounts; objectionable odors, tastes, color or turbidity in or on the water;

detrimental effects on edible plant or animal life that reside in or on the water; bottom

deposits; floating debris; and any other protections determined by the Program to be

warranted under the goals of this Act.

Numerical criteria for pollutants or pollutant or other parameters, including toxic

pollutants and a thermal component (consistent with the requirements of the Clean Water

Act), the discharge or presence of which in LTBB Waters the Program has determined

could reasonably be expected to interfere with designated uses promulgated by the

Program. The numerical criteria shall support such designated uses. In setting numerical

criteria the Program may consider the effect of local conditions on water quality and may

modify stream standards to reflect actual stream conditions when justified by sufficient

data and need. When numerical criteria are not available and the Program determines it

is appropriate to protect designated uses, the Program shall adopt criteria based on

biological monitoring or assessment methods consistent with information published

pursuant to CWA § 304(a)(8). Nothing in this section shall be construed to limit or delay

the use of effluent limitations or other permit conditions based on or involving biological

monitoring or assessment methods or previously adopted numerical criteria.

Any other criteria the Program determines are necessary to protect the designated

uses of LTBB Waters.

Methods Used

The Program, in specifying the methods and analyses to be used to determine compliance

with LTBB water quality standards, may include chemical analyses, physical properties,

biological monitoring and toxicity testing.

Compliance Schedules

The Program may establish by regulation, or on a case-by-case basis, a reasonable period

of time, but no longer than five years, for a person subject to an NPDES permit to comply with a

new or more restrictive water quality-based effluent limitation based upon a water quality

standard. The Program may establish by regulation, or on a case-by-case basis, a reasonable

period of time, but no longer than five years, for any person subject to a mechanism, including a

best management practice applicable to a non-point source, to comply with a new or more

restrictive requirement which implements a water quality standard.

(Source: WOS 2016-008, September 15, 2016, Section VII)

4.1208 REVIEW OF WATER QUALITY STANDARDS

The Program shall from time to time (but at least once each three-year period beginning

with the date of enactment of this Act) hold public hearings for the purpose of reviewing LTBB

water quality standards and, as appropriate, revising and adopting standards. The results of such

review shall be provided to the Administrator. Whenever the Program revises or adopts a new

standard, such revised or new standard shall be submitted to the Administrator.

(Source: WOS 2016-008, September 15, 2016, Section VIII)

4.1209 IMPLEMENTATION OF WATER QUALITY STANDARDS

The water quality standards promulgated under this Act are implemented through issuance

of permits under Part 6 of this Act, mechanisms provided under Part 7 of this Act for non-point

source discharges, mechanisms provided under Part 8 of this Act for the clean lakes program,

certification of federal licenses and permits (including permits issued by the U.S. Army Corps of

Engineers pursuant to CWA § 404), as provided in Section XV of this Act, and participation as an

affected tribe for discharges that may affect LTBB Waters (under CWA § 401(a)(2)). They also

shall serve as clean-up standards for contaminated sites addressed under tribal or federal law.

(Source: WOS 2016-008, September 15, 2016, Section IX)

Subpart B. Water Quality Planning and Management

4.1210 COORDINATED WATER QUALITY PLANNING AND MANAGEMENT

The Program may conduct water quality planning and management activities within the

Reservation in a coordinated fashion. Any such coordination shall be conducted consistent with

this Act and the regulations promulgated hereunder and with applicable minimum federal

requirements and may include, but is not limited to, identification of waters under Section XI of

this Act, development of total maximum daily loads and wasteload allocations/load allocations

under Section XII of this Act, and development of water quality monitoring, management plans

and reports under Section XIII of this Act.

(Source: WOS 2016-008, September 15, 2016, Section X)

4.1211 IDENTIFICATION OF WATERS

Implementation

The Little Traverse Bay Bands of Odawa Indians is committed to identifying waters for

which effluent limitations or controls on thermal discharges are not stringent enough to

implement applicable water quality standards. The Program shall develop regulations to

implement this section and submit them to the Natural Resources Commission and the Tribal

Council for approval, pursuant to the rulemaking requirements in Section LII, provided that

resources are available for implementation of this section.

Effluent Limitations

The Program shall identify those LTBB Waters for which the effluent limitations

required by CWA § 301(b)(1)(A) & (B) are not stringent enough to implement a water quality

standard applicable to such waters. The Program shall establish a priority ranking for such

waters, taking into account the severity of the pollution and the uses to be made of such waters.

Thermal Discharges

The Program shall identify those LTBB Waters for which controls on thermal discharges

under CWA § 301 are not stringent enough to assure protection and propagation of a balanced

indigenous population of fish and wildlife.

Approval by Administrator

The Program shall submit to the Administrator from time to time for approval the

identifications made under this section. If the Administrator approves any such identification, the

Program shall incorporate it into the current plan under Section XIV of this Act. If the

Administrator disapproves such identification and he or she identifies certain LTBB Waters for

which the effluent limitations and controls on thermal discharges are not stringent enough to

implement the water quality standards applicable to such waters, the Program shall incorporate

this identification into the Program’s current plan under Section XIV of this Act. These actions

shall be taken in parallel with actions under Subsection XII(E) of this Act.

(Source: WOS 2016-008, September 15, 2016, Section XI)

4.1212 TOTAL MAXIMUM DAILY LOADS AND WASTELOAD ALLOCATIONS/LOAD

ALLOCATIONS

Implementation

The Little Traverse Bay Bands of Odawa Indians is committed to establishing total

maximum daily loads for waters identified under Section XI. The Program shall develop

regulations to implement this section and submit them to the Natural Resources Commission and

the Tribal Council for approval, pursuant to the rulemaking requirements in Section LII,

provided that resources are available for implementation of this section.

Total Maximum Daily Load

The Program shall establish for the waters identified under Subsection XI(B) of this Act,

and in accordance with the priority ranking, the total maximum daily load for those pollutants

which the Administrator identifies under CWA § 304(a)(2) as suitable for such calculation. Such

load shall be established at a level necessary to implement the applicable water quality standards

with seasonal variations and a margin of safety which takes into account any lack of knowledge

concerning the relationship between effluent limitations and water quality.

Total Maximum Daily Thermal Load

The Program shall estimate for the waters identified in Subsection XI(C)) of this Act the

total maximum daily thermal load required to assure protection and propagation of a balanced,

indigenous population of fish and wildlife. Such estimates shall take into account the normal

water temperatures, flow rates, seasonal variations, existing sources of heat input, and the

dissipative capacity of the identified waters or parts thereof. Such estimates shall include a

calculation of the maximum heat input that can be made into each such part and shall include a

margin of safety which takes into account any lack of knowledge concerning the development of

thermal water quality criteria for such protection and propagation in the identified waters or parts

thereof.

Approval by Administrator

The Program shall submit to the Administrator from time to time for approval the loads

established under this section. If the Administrator approves such loads, the Program shall

incorporate them into the current plan under Section XIV of this Act. If the Administrator

disapproves such loads and himself establishes loads to implement the water quality standards

applicable to such waters, upon such establishment the Program shall incorporate such loads into

the Program’s current plan under Section XIV of this Act. These actions shall be taken in

parallel with actions under Subsection XI(D) of this Act.

Additional Identification

For the specific purpose of developing information, the Program shall identify all LTBB

Waters that were not identified under Subsections XI(B) & (C) of this Act and estimate for such

waters the total maximum daily load with seasonal variations and margins of safety for those

pollutants which the Administrator identifies under CWA § 304(a)(2) as suitable for such

calculation and for thermal discharges, at a level that would assure protection and propagation of

a balanced indigenous population of fish and wildlife.

(Source: WOS 2016-008, September 15, 2016, Section XII)

4.1213 WATER QUALITY MONITORING, MANAGEMENT PLANS AND REPORTS

Monitoring

The Program shall establish and provide for the operation of appropriate devices,

methods, systems, and procedures necessary to monitor, and to compile and analyze data on

(including classification according to eutrophic condition), the quality of LTBB Waters,

including biological monitoring, and provide for periodic updating of such data and the

submission of such data to the Administrator. The Program may provide for such monitoring

through water quality management plans and through regulations promulgated pursuant to the

rulemaking procedures in Section LII of this Act.

Management Plans

The Program may develop water quality management plans consistent with the

requirements of CWA §§ 205(j), 208 and 303 and submit those plans to the Administrator; the

Program may also periodically update those plans.

Reports

The Program may prepare water quality reports consistent with the requirements of CWA

§ 305(b) and submit those reports to the Administrator; the Program may also periodically

update those reports.

(Source: WOS 2016-008, September 15, 2016, Section XIII)

4.1214 CONTINUING PLANNING PROCESS

Plan

The Program shall submit to the Administrator for approval (to the extent that it has not

otherwise already been completed and approved) a proposed continuing planning process which

is consistent with this Act and the Clean Water Act. The Program shall from time to time review

the LTBB’s approved planning process for the purpose of ensuring that such planning process is

at all times consistent with this Act and the Clean Water Act.

Elements of Plan

The continuing planning process shall include, but not be limited to, the following:

Effluent limitations and schedules of compliance at least as stringent as those

required by Sections XIX and XX of this Act, and at least as stringent as any

requirements contained in any applicable water quality standard in effect under authority

of this Act and the Clean Water Act;

All elements of any applicable area-wide waste management plans or applicable

basin plans, established under CWA §§ 208 and 209, for which the LTBB has

jurisdiction;

Act;

Total maximum daily load for pollutants in accordance with Section XII of this

Procedures for revision;

Adequate authority for intergovernmental cooperation;

Adequate implementation, including schedules of compliance, for revised or new

water quality standards, under Subpart A of this Part;

Controls over the disposition of all residual waste from any water treatment

processing;

An inventory and ranking, in order of priority, of needs for construction of waste

treatment works required to meet the applicable requirements of Section XIX of this Act.

(Source: WOS 2016-008, September 15, 2016, Section XIV)

Subpart C. Certificate of Compliance

4.1215 CERTIFICATION OF COMPLIANCE WITH FEDERAL WATER POLLUTION

CONTROL REQUIREMENTS

Certification of Compliance

The Program may grant or deny certification that an applicant requesting federal license

or permit necessary to conduct any activity, (including but not limited to the construction or

operation of facilities), which may result in a discharge into LTBB Waters, must satisfactorily

show that he or she will comply with CWA §§ 301, 302, 303, 306 & 307. If there is no

applicable effluent limitation or other limitation under CWA §§ 301(b) & 302, and there is no

applicable standard under CWA §§ 306 & 307, for the activity in question, the Program shall so

certify. The Program shall submit the application and any certification issued under this section

to the Administrator, pursuant to CWA § 401.

Rules for Grant or Denial of Certification

The Program shall promulgate regulations, consistent with the rulemaking provisions of

Section LII of this Act, establishing the procedures that the Program will follow in granting or

denying certifications under this section. Such rules shall require public notice of an application

for certification, opportunity for public participation in the decision-making process on an

application for certification, and opportunity and procedures for public hearings on applications

for certification. Such rules also shall require an applicant to provide the Program with notice of

proposed changes in the construction or operation of the facility or other activity in question and

with plans for the operation of the facility or conduct of the activity in question. Such rules may

also include fees to be charged by the Program for the review of applications and issuance of

certifications.

Limitations and Monitoring Requirements

In any certification issued under this section, the Program shall set forth effluent

limitations, other limitations and monitoring requirements necessary to ensure that the applicant

will comply with applicable effluent and other limitations under CWA § 301 or 302, standards of

performance under CWA § 306, prohibitions, effluent standards or pretreatment standards under

CWA § 307, and any other appropriate requirement of tribal law. These limitations and

requirements shall become conditions on any permit subject to the provisions of CWA § 401.

(Source: WOS 2016-008, September 15, 2016, Section XV)

PART 3. SURFACE WATER DISCHARGE AND PRETREATMENT REQUIREMENTS

4.1216 IMPLEMENTATION

The Little Traverse Bay Bands of Odawa Indians is committed to developing surface

water discharge and pretreatment requirements. The Program shall develop regulations to

implement this Part and submit them to the Natural Resources Commission and the Tribal

Council for approval, pursuant to the rulemaking requirements in Section LII, provided that

resources are available for implementation of this Part. Subsection XVIII(A) (“Prohibitions”)

shall be in full force and effect immediately upon adoption of this Act.

(Source: WOS 2016-008, September 15, 2016, Section XVI)

4.1217 REGULATIONS REQUIRED

Any regulations developed for surface water discharges and pretreatment requirements shall

meet the minimum criteria as set forth in this Part.

(Source: WOS 2016-008, September 15, 2016, Section XVII)

Subpart A. Surface Water Discharges

4.1218 PERMIT REQUIRED TO DISCHARGE INTO SURFACE WATER

Prohibitions

Except as provided in this Act or regulations promulgated hereunder, it is

unlawful for any person to discharge a pollutant from a point source into LTBB Waters

without a valid permit or to violate any term or condition of such permit. Any such

action is a public nuisance, as well as being subject to enforcement under Part 10 of this

Act.

A valid permit is one issued consistent with rules promulgated pursuant to this

part and Part 6 of this Act or, if no such permit program has been established, by the

Administrator under CWA § 402, for which the term has not expired.

It is unlawful for any person, without first securing a permit, to construct, install,

modify, or operate any treatment works or part of any treatment works or any extension

or addition to any treatment works, the operation of which could likely result in a

discharge due to runoff, flow or usage.

Exemptions

The following discharges do not require NPDES permits:

Discharges into LTBB Waters of dredged or fill materials that are regulated under

CWA § 404.

Any discharge in compliance with the instructions of an on-scene coordinator

pursuant to 40 C.F.R. Part 300.

Grounds for Issuance of Permit

The Program may, after notice and opportunity for public hearing, issue a permit for the

discharge of any waste, pollutant or combination of pollutants into LTBB Waters, for a period

not to exceed five years, upon condition that such discharge meets or will meet, subject to

authorized schedules of compliance, all applicable LTBB, affected tribe or state, and federal

water quality standards and effluent standards and all other requirements of this Act and

regulations promulgated under this Act.

Grounds for Denial of Permit

The Program shall deny a permit where:

The permit would authorize a discharge that would not meet the requirements

specified in subsection C of this section;

The permit would authorize the discharge of any radiological, chemical, or

biological warfare agent, any high-level radioactive waste, or any medical waste into

LTBB Waters;

The permit would, in the judgment of the Secretary of the Army acting through

the Chief of Engineers, result in the substantial impairment of anchorage and navigation

of any LTBB Waters;

The permit is objected to in writing by the Administrator pursuant to any right to

object provided to the Administrator by CWA § 402(d);

The permit would authorize a discharge from a point source which is in conflict

with a plan developed under Section XIV of this Act and approved by the Administrator

under CWA § 208(b), and for which the submitting government entity had jurisdiction;

The issuance of the permit would otherwise be inconsistent with the applicable

requirements of other LTBB statutes or regulations; or

The issuance of the permit would otherwise be inconsistent with applicable

requirements of the Clean Water Act or regulations promulgated thereunder.

General Permit

The Program may issue a general permit within a geographical area to cover (1) storm

water point sources, (2) a category of point sources, or (3) a category of treatment works treating

domestic sewage. A facility covered by a general permit shall be subject to all provisions of this

Act and regulations promulgated hereunder, except as otherwise provided by the Program by

regulation in the case of certain application requirements.

(Source: WOS 2016-008, September 15, 2016, Section XVIII)

4.1219 EFFLUENT LIMITATIONS ENFORCED IN ISSUANCE OF PERMITS

Permit Conditions

The Program shall require as permit terms, limitations and conditions the achievement of:

Effluent limitations based upon the application of such levels of treatment,

technology and processes as are required under the Clean Water Act for which the

Administrator has promulgated regulations under CWA §§ 301, 304, 306 & 318 for

industrial or municipal dischargers and aquaculture projects;

Effluent limitations, best management practices, requirements for cooling water

intake structures, alternative limitations for coal re-mining under CWA § 301(p), and a

determination of maximum extent practicable, based upon the application of best

professional judgment, in the absence of formally promulgated standards and limitations

by the Administrator under the Clean Water Act, based upon the appropriate criteria

contained in CWA §§ 301, 304(e), 316(b) & 402(a)(1)(B);

Toxic pollutant effluent standards or prohibitions promulgated by the

Administrator under CWA § 307(a), currently contained in 40 C.F.R. Part 129, within the

time frame for compliance provided by the Administrator, as well as the authority to

modify existing permits to require compliance with such toxic pollutant effluent

standards;

Effluent limitations, standards, or prohibitions on discharges from publicly owned

treatment works and requirements of a pretreatment program based upon the

requirements of CWA § 307 and the Administrator’s implementing regulations;

For those treatment works treating domestic sewage and required to obtain a

permit under Section XVIII of this Act, appropriate conditions that are required in order

to comply with regulations for sludge use and disposal promulgated by the Administrator

under CWA § 405;

Any more stringent effluent limitations necessary to meet water quality standards

established pursuant to any LTBB, affected state or tribe, or federal law or regulation,

including water quality-related effluent limitations established by the Administrator

under CWA § 302; and

Any more stringent effluent limitations necessary to comply with the continuing

planning process approved by the Administrator under CWA § 303(e).

Time for Compliance

Effluent limitations prescribed under this section shall be achieved in the shortest

reasonable period consistent with LTBB law and the Clean Water Act, and with any regulations

or guidelines promulgated or issued thereunder.

Variances

The Program may grant or deny requests for variances from effluent limitations

proposed for the control of thermal pollution, based on the criteria specified in CWA §

316(a). The Program may implement any alternative limitations, terms or conditions

established in a final decision on such a variance request.

The Program may deny, forward to the Administrator with a written concurrence,

or submit to the Administrator without a recommendation, completed requests for

variances under CWA § 301(c), (g), or (n) (including fundamentally different factors

variance requests from best practicable control technology currently available effluent

limitations guidelines) or 302(b)(2). To the extent that the Program has forwarded a

request to the Administrator with a written concurrence or without a recommendation, the

Program may implement any alternative limitations, terms or conditions established by

the Administrator in a final decision on such a variance request.

(Source: WOS 2016-008, September 15, 2016, Section XIX)

4.1220 COMPLIANCE SCHEDULES

The Program may set and revise compliance schedules and include such schedules within

the terms and conditions of permits for discharge of wastes or pollutants or for sludge use and

disposal, consistent with LTBB law, the Clean Water Act and implementing regulations. The

Program may establish interim compliance schedules in such permits which are enforceable

without showing a violation of an effluent limitation or harm to water quality.

(Source: WOS 2016-008, September 15, 2016, Section XX)

4.1221 EXTENSION OF TIME TO MEET WATER QUALITY AND EFFLUENT

STANDARDS

Required Findings

The Program may issue a reasonable extension to a point source discharger, industrial

user, or treatment works treating domestic sewage, which extension shall not conflict with the

Clean Water Act, in which to meet water quality standards or other applicable effluent

limitations or standards of the LTBB or an affected state or tribe (to the extent allowable under

the state or tribal law or regulations), if the Program determines that:

The violation was the result of actions or conditions outside the control of the

discharger;

The discharger, industrial user, or treatment works treating domestic sewage has

acted in good faith;

The extension would not result in the imposition of any additional controls on any

point or non-point source; and

Facilities necessary for compliance are under construction and will be completed

at the earliest date possible.

No Excuse for Noncompliance

Any extension of time granted under this section will not compromise any right for

enforcement available under Part 10 which exists before the extension is granted.

(Source: WOS 2016-008, September 15, 2016, Section XXI)

4.1222 RECORDING, REPORTING, AND INSPECTION CONDITIONS

The Program may prescribe terms and conditions for permits or other controls on

industrial users to assure compliance with applicable LTBB, affected state or tribe, and federal

effluent standards and water quality standards (as set forth in Section XIX of this Act), including,

but not limited to, requirements concerning recording, reporting, monitoring, entry, and

inspection (as provided in Section XLVIII of this Act).

(Source: WOS 2016-008, September 15, 2016, Section XXII)

4.1223 DISPOSAL OF POLLUTANTS INTO WELLS

The disposal of pollutants into wells shall be prohibited, unless the disposal is authorized

by the federal underground injection control (“UIC”) program authorized under the Safe

Drinking Water Act, 42 U.S.C. § 300f et seq., or by any LTBB UIC program approved by the

Administrator. The Program shall regulate any such discharges that are subject to the NPDES

program through NPDES permits that incorporate appropriate federal or LTBB UIC

requirements.

(Source: WOS 2016-008, September 15, 2016, Section XXIII)

Subpart B. Pretreatment Requirements

4.1224 PRETREATMENT STANDARDS

The Program may promulgate rules specifying pretreatment standards to be applied to all

industrial users of publicly owned treatment works for the introduction of pollutants into publicly

owned treatment works, including pollutants which interfere with, pass through, or otherwise are

incompatible with such treatment works. Such standards shall not conflict with any pretreatment

standard established under CWA § 307(b).

(Source: WOS 2016-008, September 15, 2016, Section XXIV)

4.1225 CONDITIONS IN PERMITS ISSUED FOR PUBLIC OWNED TREATMENT

WORKS

Compliance with Clean Water Act

The Program or the owner or operator of a publicly owned treatment works (“POTWs”),

if it has an approved pretreatment program, shall implement all provisions of CWA § 307,

including issuing pretreatment industrial user permits or controlling discharges from significant

industrial users by other appropriate means, such as discharge fees.

Other Conditions

The Program shall include the following requirements as conditions in permits for the

discharge of pollutants from POTWs:

The identification, in terms of character and volume of pollutants, of any

significant source introducing into such POTWs pollutants subject to pretreatment

standards under CWA § 307(b);

A program to assure compliance by each such source with pretreatment standards

promulgated under CWA § 307(b) and Section XXIV of this Act;

Adequate notice to the Program of:

New introductions into POTWs of pollutants from any source which

would be a new source as defined in CWA § 306 if such source were discharging

pollutants;

New introductions of pollutants into POTWs from a source which would

be subject to CWA § 301 if it were discharging such pollutants; or

A substantial change in volume or character of pollutants being introduced

into POTWs by a source introducing pollutants into such works at the time of

issuance of the permit.

Such notice shall include information on the quality and quantity of effluent to be

introduced into such POTWs and any anticipated impact of such change in the quantity or

quality of effluent to be discharged from such POTWs;

Compliance with any system of user charges required under LTBB law or the

Clean Water Act or regulations promulgated thereunder; and

Compliance with recordkeeping, reporting, sampling, monitoring and inspection

requirements under CWA § 308 and Section XLVIII of this Act.

(Source: WOS 2016-008, September 15, 2016, Section XXV)

4.1225 OTHER AUTHORITY OF PROGRAM REGARDING PUBLIC OWNED

TREATMENT WORKS

In addition to other provisions specifically authorized in this Act, the Program shall have,

but not be limited to, the following authority regarding POTWs:

Issue decisions on requests by POTWs for pretreatment program approval;

Act on requests for removal credits under CWA § 307(b);

Act on categorical determination requests;

Deny or make recommendations on requests for fundamentally different factors

variances under CWA § 301(n);

Make decisions on compliance deadline extension requests based on innovative

technology under CWA § 307(e); and

Join a POTW as a defendant in an enforcement action under this Act against an

industrial user.

(Source: WOS 2016-008, September 15, 2016, Section XXVI)

PART 4. PROTECTION AND MANAGEMENT OF WETLANDS

4.1227 WETLANDS PROTECTION PROGRAM

Establishment of Wetlands Protection Program and Effective Date

The Little Traverse Bay Bands of Odawa Indians is committed to establishing a Wetlands

Protection Program to monitor, assess and protect wetlands to ensure that their ecological

services are maintained; to designate and protect High Quality Wetlands for Tribal uses; and to

establish a permitting process for discharge of dredged or fill material into a wetlands or other

alteration or modification of an existing wetlands. This Act shall repeal and replace

Waganakising Odawak Statute (WOS) 2006-016 and any previous wetlands statute. The

Program shall develop regulations to implement this Part, including wetlands permit regulations,

and submit them to the Natural Resources Commission and the Tribal Council for approval,

pursuant to the rulemaking requirements in Section LII, provided that resources are available for

implementation of this Part. Notwithstanding the preceding sentence, the Wetlands Protection

Program shall be effective immediately upon adoption of this Act on lands held in trust for

LTBB by the Secretary of Interior.

Authorities and Duties of Program

The Program shall have the following authorities and duties under this Part:

Enforce regulations promulgated pursuant to this Act;

Issue wetlands permits and require monitoring of wetlands activities;

Serve as a liaison between Tribal, Federal, County, State and local units of

government on wetlands protection issues;

Review and comment on CWA § 404 permits issued by U.S. Army Corps of

Engineers or Part 303 permits issued by Michigan Department of Environmental Quality

pursuant to the Michigan Natural Resources and Environmental Protection Act;

Encourage education and proper uses of wetlands to reduce over-harvesting of

natural and cultural resources.

Coordinate with and support Tribal, State and Federal entities in the enforcement

of any applicable Tribal, State, or Federal statutes, ordinances or regulations involving

wetlands protection and enhancement.

Establish standards and procedures for monitoring permitted activities.

Issue citations for violations of this Act and recommend a schedule of fines that

may be imposed by the Tribal Court.

(Source: WOS 2016-008, September 15, 2016, Section XXVII)

4.1228 APPLICABILITY

This Part applies to wetlands that meet any one of the following criteria:

Connected to one of the Great Lakes.

Located within 1,000 feet of one of the Great Lakes.

Connected to an inland lake, pond, river, or stream.

Located within 500 feet of an inland lake, pond, river or stream.

Not connected to one of the Great Lakes, or an inland lake, pond, stream, or river,

but more than 5 acres in size, regardless of the size of the impacted area.

Classified as a High Quality Wetlands, regardless of the size of the impacted area.

At least 1/3 acre in size and within lands held in trust for LTBB by the Secretary

of Interior, regardless of the size of the impacted area.

This Part does not apply to manmade structures designed for drainage or stormwater

management. Consistent with federal requirements, the Program may exclude from LTBB

waters certain waste treatment systems not constructed or located in what would otherwise be

LTBB waters.

(Source: WOS 2016-008, September 15, 2016, Section XXVIII)

4.1229 WETLANDS VERIFICATION

The Environmental Services Program and Geographic Information System, along with any

other departments or staff assigned by the Tribal Administrator, shall maintain a composite

wetlands map and inventory of all wetlands to which this Act applies using United States

Department of Agricultural Soil surveys; Wetlands Criteria as established by the Army Corps of

Engineers; field inspections; topographical maps; aerial photography; and other similar resources.

The inventory and map shall include and indicate the location of all High Quality Wetlands.

(Source: WOS 2016-008, September 15, 2016, Section XXIX)

4.1230 PERMIT REQUIREMENT

Wetland Modification

Anyone who wishes to alter or modify an existing wetlands covered by this Part,

including but not limited to undertaking any activity involving the discharge of dredged or fill

material into a wetlands, is required to apply for a permit pursuant to regulations promulgated

under this Part, consistent with the rulemaking requirements in Section LII.

Delineation Requirement

Any applicant proposing activity within a wetlands covered by this Part must perform a wetland

delineation. The delineation of wetlands shall be done in accordance with the Wetland Criteria as

established by the United States Army Corps of Engineers. The delineation shall be a component

of all Permit applications and shall be verified by the Environmental Services Program prior to

permit approval.

(Source: WOS 2016-008, September 15, 2016, Section XXX)

4.1231 WETLAND MITIGATION

Mitigation

The Program can consider wetland mitigation as a condition of permit approval, such as

the types of actions described in Subsection (B) of this section, only if all of the following

conditions are met:

The wetlands impacts are otherwise eligible for permits pursuant to regulations

promulgated under this Part.

No feasible and prudent alternative is available to avoid impacts on the wetlands.

An applicant has used all practical means to minimize the impact to the wetlands.

This may include the permanent protection of wetlands on the site that are not directly

impacted by the proposed activity.

Mitigation Determinations

The Program shall take into consideration the following when making wetlands mitigation

determinations:

The ability to create or restore wetlands of equal or greater in size and of equal or

greater quality.

The ability to create or restore other wetlands contiguous to existing wetlands

The ability to create or restore High Quality Wetlands.

The ability to create or restore other wetlands within the same United States

Geological Survey Hydrologic Unit Code watershed (12-digit or greater) as the permitted

activity.

Whether the wetlands mitigation project provides the same level of access to the

area as was previously enjoyed by the public or Tribal Citizens.

(Source: WOS 2016-008, September 15, 2016, Section XXXI)

PART 5. SEWAGE SLUDGE

4.1232 REGULATION OF THE USE AND DISPOSAL OF SEWAGE SLUDGE

Establishment of Program

The Little Traverse Bay Bands of Odawa Indians is committed to establishing a program

to regulate the use and disposal of sewage sludge. The Program shall develop regulations to

implement this Part and submit them to the Natural Resources Commission and the Tribal

Council for approval, pursuant to the rulemaking requirements in Section LII, provided that

resources are available for implementation of this Part.

Content of Regulations

In establishing a sewage sludge program, the Program shall:

Regulate all sludge use and disposal methods within the Reservation;

Regulate the transportation and storage of sewage sludge in the Reservation;

Ensure compliance with applicable sludge standards by all users or disposers of

sewage sludge; and

Regulate the issuance of permits under Sections XVIII & XXXIV of this Act for

the disposal of sewage sludge, which regulations shall require the application to sewage

sludge disposal of each criterion, factor, procedure and requirement applicable to a permit

issued under Section XVIII of this Act.

(Source: WOS 2016-008, September 15, 2016, Section XXXII)

4.1233 BLANK SECTION

4.1234 PERMITS

Permit Requirement

In any case where the disposal of sewage sludge resulting from the operation of a

treatment works (including the removal of in-place sewage sludge from one location and its

deposit at another location) would result in any pollutant from such sewage sludge entering

LTBB Waters, such disposal is prohibited except in accordance with a permit issued under

Section XVIII of this Act or, if no such permit program has been established, by the

Administrator under CWA § 402.

Consistency With Sewage Sludge Regulations

Any permit issued under Section XVIII to a POTW or any other treatment works treating

domestic sewage shall include requirements for the use and disposal of sludge that implement the

regulations promulgated pursuant to Section XXXII of this Act.

Applicability to All Treatment Works

In the case of a POTW or other treatment works treating domestic sewage that is not

subject to Section XVIII of this Act, the Program may issue a permit to such treatment works

solely to impose requirements for the use and disposal of sludge that implement the regulations

established pursuant to Section XXXII of this Act. The Program shall establish procedures for

issuing permits pursuant to this subsection.

(Source: WOS 2016-008, September 15, 2016, Section XXXIV)

4.1235 RECORDKEEPING, REPORTING, AND INSPECTIONS

Any treatment works treating domestic sewage is subject to applicable provisions of

regulations issued by the Program regarding recordkeeping, reporting and inspections, including

provisions of Section XLVIII of this Act. The Program may prescribe terms and conditions for

permits issued under this Part to assure compliance with applicable LTBB and federal effluent,

solid waste, and water quality standards, including requirements concerning recordkeeping,

reporting, monitoring, entry and inspection, to the extent provided under this Act. The Program

may establish regulations specifically establishing terms, limitations and conditions, including

notification requirements, applicable to septage haulers.

(Source: WOS 2016-008, September 15, 2016, Section XXXV)

PART 6. PERMIT PROCEDURES

4.1236 IMPLEMENTATION

The Little Traverse Bay Bands of Odawa Indians is committed to developing requirements

for issuance of permits under this Act. The Program shall promulgate regulations to implement

this Part and submit them to the Natural Resources Commission and the Tribal Council for

approval, pursuant to the rulemaking requirements in Section LII, provided that resources are

available for implementation of this Part.

(Source: WOS 2016-008, September 15, 2016, Section XXXVI)

4.1237 CONDITIONS OF PERMITS

Submission of Implementation

The Program may, by issuing regulations and on a case-by-case basis, prescribe

conditions for and require the submission of plans, specifications, and other information from a

permittee, applicant, or person discharging without a permit, in connection with applications for

or otherwise related to the issuance of permits, introduction of pollutants by an industrial user

into a publicly owned treatment works, or activities of a treatment works treating domestic

sewage.

Consent to Jurisdiction

All permit applications and permits, including general permits, as well as regulations or

other mechanisms issued by the Program for direct implementation of requirements for industrial

users and treatment works treating domestic sewage that are not otherwise required to apply for

permits, shall contain the following statement to which the applicant must agree and subscribe for

the application to be complete and as a condition precedent to the issuance of any permit or

coverage by direct implementation mechanism:

“Applicant hereby consents to the jurisdiction of the Little Traverse Bay Bands of

Odawa Indians in connection with all activities conducted pursuant to, in

connection with, or directly affecting compliance with, any permit issued pursuant

to this application or to which the provisions of the LTBB Clean Water Act

otherwise apply. This consent shall be effective when a permit is issued and may

not be withdrawn. This consent shall extend to and be binding upon all successors,

heirs, assigns, employees and agents, including contractors and subcontractors, of

the applicant.”

The applicant shall include the foregoing statement as a term and condition of any

contract or other agreement it executes for services to be performed or goods to be

provided within the Reservation in connection with any permit issued under this Act, or

to which the provisions of the Act otherwise apply. Each party to any such contract or

other agreement must agree and subscribe to said statement, substituting the name of the

party for “applicant” as appropriate and substituting the phrase “this agreement” in place

of the phrase “any permit issued pursuant to this application.” Failure by the applicant to

include such statement, or of any party to agree and subscribe to such statement, may

result in denial of the permit and subject the applicant to civil penalty in accordance with

this Act.

(Source: WOS 2016-008, September 15, 2016, Section XXXVII)

4.1238 TERMS OF PERMITS

Fixed Term

Each permit shall have a fixed term not exceeding five years. Upon expiration of

a permit, a new permit may be issued by the Program after notice and opportunity for

public hearing and upon condition that the discharge or disposal (including of sludge)

meets or will meet, subject to authorized compliance schedules, all applicable

requirements of this Act, including the conditions of any permit issued by the Program.

Renewals

When the permittee has made a timely and sufficient application for a renewal in

accordance with rules promulgated under this Act, an existing permit for an activity of a

continuing nature shall not expire until the application for renewal has been finally

determined by the Program.

(Source: WOS 2016-008, September 15, 2016, Section XXXVIII)

4.1239 NOTICE OF ACTIONS

The Program shall issue and implement rules to ensure:

That the public, appropriate government agencies, and any other tribe or

state the waters of which may be affected, receive notice of each application for a

permit; be provided an opportunity for public hearing and comment before ruling

on each such application; and be provided an explanation in writing of the reasons

why any recommendations submitted with regard to such application were not

adopted;

That the public, appropriate government agencies, and any other tribe or

state the waters of which may be affected, receive appropriate notice of activities

of the pretreatment program, when applicable, and be provided an opportunity for

public hearing and comment before the Program rules on such activities, as

provided by CWA § 307 and the Administrator’s implementing regulations; and

That the Administrator receives notice and a copy of each application for a

permit.

(Source: WOS 2016-008, September 15, 2016, Section XXXIX)

4.1240 ISSUANCE, REVOCATION, OR DENIAL OF PERMITS

Authority

The Program shall issue, suspend, revoke, modify, or deny permits consistent

with provisions of this Part and with rules issued by the Program consistent with the

provisions of this Act.

Grounds for Revocation, Modification or Suspension

Any permit issued under this Part may be revoked, modified, or suspended in

whole or in part, during its term or upon request of the permit-holder or any interested

person, for cause, including but not limited to the following:

Violation of any condition of the permit;

Obtaining a permit by misrepresentation or failure to disclose fully all

relevant facts; or

Change in condition that requires either a temporary or permanent

reduction or elimination of the permitted discharge or disposal operation, where

“condition” does not include statutory or regulatory effluent limitations or

standards enacted or adopted during the permit term, other than for toxic

pollutants.

Notice and Hearing

The Program, applicant, permittee or any interested person may request that the

Program hold a public hearing on a permit decision. If requested, or if required by the

Program, a public hearing shall be held within 30 calendar days after receipt of written

request or written notice issued by the Program, or as soon thereafter as reasonably

practical.

Environmental Appeals Board Review

If the Program recommends issuance or denial of an application for a permit, or

revokes, suspends, or modifies a permit, the Program shall give written notice of its

decision to the applicant or permittee, any interested person who has requested to be

notified, and other entities as provided by this Act. The applicant, permittee or any

interested person may appeal the Program’s permit decision to the Environmental

Appeals Board within 30 days of issuance of the decision. The EAB may affirm, modify

or reverse the decision of the Program based upon the evidence presented at the hearing.

Failure to appeal to the EAB will preclude judicial review of the permitting decision by

the Tribal Court.

Effective Date

Issuance, modification, revocation, or suspension of a permit shall be effective 30

calendar days after issuance of the Program’s decision, unless a later date is specified. If

the permit decision is appealed to the EAB, an order of modification, revocation or

suspension shall be effective 60 calendar days after the issuance of the EAB’s decision.

Any additional duties and/or responsibilities of the EAB shall be delineated by

statute.

(Source: WOS 2016-008, September 15, 2016, Section XL)

4.1241 CONFLICT OF INTEREST

No Program employee shall participate in a permit action that involves himself or

herself, any discharger, industrial user or treatment works treating domestic sewage with

which he or she is connected as a director, officer or employee, or in which he or she has

a direct personal financial interest. Direct financial interest is defined as receiving, or

having received during the previous two years, a significant portion of income directly or

indirectly from permit holders or applicants for permits.

To the extent not prohibited by Subsection (A) of this section, no employee of the

Program shall participate in any proceeding as a consultant or in any other capacity on

behalf of any discharger, industrial user or treatment works treating domestic sewage,

except to the extent otherwise allowed under LTBB law. In no case shall a Program

employee participate as a consultant or in any other capacity on behalf of any discharger,

industrial user or treatment works treating domestic sewage in any proceeding that was

instituted or ongoing during the employee’s tenure with the Program.

(Source: WOS 2016-008, September 15, 2016, Section XLI)

4.1242 FUNDING OF PERMIT PROGRAM

The Program may, by rulemaking pursuant to Section LII, charge fees for permit

applications, renewals, and other permitting actions. Such fees shall be designed to cover

administrative costs of implementing the permit program. The Little Traverse Bay Bands

of Odawa Indians recognizes the importance of the permit program in implementing and

enforcing the LTBB Water Quality Standards and, when funding programs under this

Act, the Tribal Council will consider revenues collected by the Program through fees,

penalties, and other sources, when making budgetary decisions.

(Source: WOS 2016-008, September 15, 2016, Section XLII)

PART 7. NON-POINT SOURCE MANAGEMENT PROGRAM

4.1243 NON-POINT SOURCE ASSESSMENT REPORT

Content of Report

The Program shall, after notice and opportunity for public comment, prepare and

submit to the Administrator for approval (to the extent that it has not otherwise already

been completed and approved), a report which:

Identifies those LTBB Waters which, without additional action to control

non-point sources of pollution, cannot reasonably be expected to attain or

maintain applicable water quality standards or the goals and requirements of this

Act or the Clean Water Act;

Identifies those categories and subcategories of non-point sources or,

where appropriate, particular non-point sources which add significant pollution to

each portion of the LTBB Waters identified under Paragraph (A)(1) in amounts

which contribute to such portion not meeting such water quality standards or such

goals and requirements;

Describes the process, including intergovernmental coordination and

public participation, for identifying best management practices and measures to

control each category and subcategory of non-point sources and, where

appropriate, particular non-point sources identified under Paragraph (A)(2) and to

reduce, to the maximum extent practicable, the level of pollution resulting from

such category, subcategory, or source; and

Identifies and describes LTBB and local programs for controlling

pollution added from non-point sources to, and improving the quality of, each

such portion of LTBB Waters, including but not limited to those programs which

are receiving federal assistance under CWA § 319(h) & (i).

Basis for Report

In preparing the report required by this section, the Program may use all available

information and applicable U.S. EPA guidance.

(Source: WOS 2016-008, September 15, 2016, Section XLIII)

4.1244 NON-POINT SOURCE MANAGEMENT PROGRAM

Program Submission

The Program shall, after notice and opportunity for public comment, prepare and

submit to the Administrator for approval a management program for controlling pollution

added from non-point sources to LTBB Waters and improving the quality of such waters,

which program the LTBB proposes to implement in the first four fiscal years beginning

after the date of submission of the program. The Program may periodically revise the

submission.

Program Contents

The management program proposed for implementation under this section shall

address applicable guidance published by U.S. EPA and include the following:

An identification of the best management practices and measures which

will be undertaken to reduce pollutant loadings resulting from each category,

subcategory, or particular non-point source designated under Section XLIII(A)(2)

of this Act, taking into account the impact of the practice on groundwater quality.

An identification of programs within the LTBB and affected tribes and

states (including, as appropriate, non-regulatory or regulatory programs for

enforcement, technical assistance, financial assistance, education, training,

technology transfer, and demonstration projects) designed to achieve

implementation of the best management practices by the categories,

subcategories, and particular non-point sources designated under Paragraph (B)(1)

of this section.

A schedule containing annual milestones for (a) utilization of the program

implementation methods identified in Paragraph (B)(2) of this section, and (b)

implementation of the best management practices identified in Paragraph (B)(1)

of this section by the categories, subcategories, or particular non-point sources

designated under Section XLIII(A)(2) of this Act. Such schedule shall provide

for utilization of the best management practices at the earliest practicable date, but

no later than the time period provided in Section VII(E) of this Act.

Any other information required by CWA § 319(b) and regulations and

guidance promulgated thereunder.

Utilization of Local and Private Experts

In developing and implementing a management program under this section, the

Program shall, to the maximum extent practicable, involve local public and private

agencies and organizations which have expertise in control of non-point sources of

pollution.

Development on Watershed Basis

The Program shall, to the maximum extent practicable, develop and implement a

management program under this Part on a watershed-by-watershed basis within the

Reservation.

(Source: WOS 2016-008, September 15, 2016, Section XLIV)

PART 8. CLEAN LAKES PROGRAM

4.1245 BIENNIAL REPORT

The Program may initiate a Clean Lakes program under this Part. If the Program

decides to develop a Clean Lakes program, the Program shall prepare and submit to the

Administrator for approval a report containing the following information:

an identification and classification according to eutrophic condition of all

lakes or portions of lakes within or adjacent to the Reservation;

a description of procedures, processes and methods (including land use

requirements) to control sources of pollution of such lakes;

a description of methods and procedures, in conjunction with appropriate

federal agencies, to restore the water quality of such lakes;

methods and procedures to mitigate the harmful effects of high acidity,

including innovative methods of neutralizing and restoring buffering capacity of

such lakes and methods of removing from such lakes toxic metals and other toxic

substances mobilized by high acidity;

a list and description of such lakes which are known to be impaired,

including those lakes which are known not to meet applicable water quality

standards or which require implementation of control programs to maintain

compliance with applicable standards and those lakes in which water quality has

deteriorated as a result of high acidity that may reasonably be due to acid

deposition; and

an assessment of the status and trends of water quality in such lakes,

including but not limited to the nature and extent of pollution loading from point

and non-point sources and the extent to which the use of such lakes is impaired as

a result of such pollution, particularly with respect to toxic pollution.

This report shall be updated and submitted to the Administrator every two years,

for so long as the Program continues to operate a Clean Lakes program. Any Clean

Lakes program developed under this Part shall be carried out in such a way that would

not impede or interfere with the Great Lakes Protection Statute, Tribal Code Sections

4.601-4.606.

(Source: WOS 2016-008, September 15, 2016, Section XLV)

4.1246 CONTRACTS AND INTERAGENCY AGREEMENTS

The Program is authorized to enter into agreements with other public agencies and to

contract with public and private agencies, organizations and individuals to develop and

demonstrate new or improved methods for the prevention, removal, reduction and

elimination of pollution in lakes, including the undesirable effects of nutrients and

vegetation.

(Source: WOS 2016-008, September 15, 2016, Section XLVI)

PART 9. WATERSHED PROTECTION PROGRAM

4.1247 DEVELOPMENT OF PROGRAM

The Little Traverse Bay Bands of Odawa Indians is committed to developing a

Watershed Protection program to protect surface and groundwater from pollution. The

Environmental Services Program may conduct studies regarding watershed protection

within the Reservation, develop guidelines and procedures to protect such watersheds,

and develop regulations to implement this Part and submit them to the Natural Resources

Commission and the Tribal Council for approval, pursuant to the rulemaking

requirements in Section LII, provided that resources are available for implementation of

this Part. The Program may develop the Watershed Protection Program on a watershed

basis, taking into account impacts on water quality from a variety of sources and

considering cumulative impacts as well as discrete instances of contamination. In

developing the Watershed Protection program, the Program shall consult with other

LTBB agencies and departments and with state and federal agencies and other entities

having authority over activities which may impact water quality within the Reservation

(such as agriculture, livestock grazing, fisheries, mining and timber operations and

business development).

(Source: WOS 2016-008, September 15, 2016, Section XLVII)

PART 10. ENFORCEMENT

4.1248 RECORDS, INSPECTIONS, MONITORING AND ENTRY

Recordkeeping, reporting and monitoring

In order to carry out the purposes of this Act, including but not limited to developing or

enforcing any water quality standard, water quality management plan, continuing

planning process or best management practice under this Act, issuing certifications,

granting approvals, and issuing permits or otherwise regulating point sources, treatment

works and industrial users of POTWs under this Act, the Program may require, as

appropriate, any person subject to the requirements of this Act to:

Establish and maintain records;

Prepare and submit reports;

Install, calibrate, use and maintain monitoring equipment or methods,

including, where appropriate, biological monitoring;

Sample effluents and receiving waters (in accordance with such

procedures or methods, at such locations, at such intervals, during such periods

and in such manner as the Program shall prescribe); and

Provide such other information as the Program may reasonably require.

Entry and Inspections

The Program or its authorized representative (including an authorized contractor acting as

a representative of the Program), upon presentation of his/her credentials,

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

implement and enforce the provisions of this Act and the regulations promulgated

hereunder, and

Shall have access to and the right to copy any records, inspect any

monitoring or sampling equipment or method under Subsection (A) above,

inspect any treatment processes or equipment, sample any effluents which are

being discharged into LTBB Waters or are required to be or are sampled under

Subsection (A), and perform any other inspection necessary to ensure compliance

with this Act and the regulations promulgated hereunder. Such access and

inspections shall be conducted at reasonable times, with or without notice, and

shall be completed with reasonable promptness. Such access and inspections may

be made at any time if the Program determines there is a threat of endangerment

to the environment or public health.

Any records, reports or information obtained under this section shall, in the case

of effluent data, be related to any applicable effluent limitations, toxic, pretreatment or

new source performance standards.

Availability of Information to Public

Trade secrets. Any records, reports or other information obtained under

this section shall be available to the public, except that upon a showing

satisfactory to the Program by any person that records, reports or other

information or any particular part thereof (other than effluent data) to

which the Program has access under this section would, if made public,

divulge methods or processes entitled to protection as trade secrets of such

person, the Program shall consider such record, report or other information

or portion thereof confidential, except that such material may be disclosed

to other officers, employees or authorized representatives of the LTBB

and of the United States concerned with carrying out this Act or when

relevant to any proceeding under this Act. The Program shall deny claims

of confidentiality for the name and address of any permit applicant or

permittee; copies of permit applications and permits; inspection reports,

and effluent data.

Culturally sensitive information. Any information as to the

location of LTBB waters used for traditional cultural practices, or other

culturally sensitive information that LTBB or LTBB elders withhold from

the general public for traditional or cultural reasons, shall be protected by

the Program and shall not be made available to the public under any

conditions, except that such information may be disclosed to other

officers, employees or authorized representatives of the LTBB and of the

United States concerned with carrying out this Act or when relevant to a

proceeding under this Act, provided that such information continues to be

protected from public disclosure.

Confidential Information

Any authorized representative of the Program (including an authorized contractor acting

as a representative of the Program) who discloses confidential information, as defined in

Paragraphs (C)(1) & (2) of this section or in other applicable tribal or federal statutes and

regulations, including the LTBB Public Documents Statute and Regulations, in a manner

contrary to those provisions and laws, may be subject to dismissal, suspension, or other adverse

personnel action. Any authorized representative of the Program (including an authorized

contractor acting as a representative of the Program) who knowingly or willfully publishes,

divulges, discloses, or makes known in any manner or to any extent not authorized by law any

information that is required to be considered confidential under this subsection and subsection

fined not more than $500. Nothing in this subsection shall prohibit the Program or an authorized

representative of the Program (including any authorized contractor acting as a representative of

the Program) from disclosing records, reports, or information to officers, employees, or

authorized representatives of the United States concerned with carrying out this Act or when

relevant in any proceeding under this Act; provided that such disclosure will be performed in

compliance with the Tribal Public Documents Statute and applicable regulations. In any instance

where the LTBB lacks jurisdiction over the person charged, the Program may refer the action to

the appropriate U.S. EPA Regional Administrator and/or U.S. Department of Justice official.

(Source: WOS 2016-008, September 15, 2016, Section XLVIII)

4.1249 GENERAL ENFORCEMENT AUTHORITY

In General

Whenever, on the basis of any information available to the Program, the Program

finds that any person (including the LTBB and any instrumentality of the LTBB, but only

with regard to their role as a point or non-point source, industrial user of a publicly

owned treatment works or a treatment works treating domestic sewage) has violated, or is

in violation of, any requirement or prohibition of this Act, the regulations promulgated

under this Act, or permits, orders, plans, programs or fees issued or developed pursuant to

this Act, the Program may:

Issue and serve on such person a citation requiring such person to comply

with such requirement or prohibition, including a citation requiring compliance on

an emergency basis, pursuant to the provisions of this section;

Issue and serve on such person a citation imposing penalties, in

accordance with this section and Section LI of this Act;

Request that the LTBB bring a civil action, including an action for

injunctive relief, in accordance with Section L(A) of this Act; and/or

Request that the LTBB Prosecutor’s Office bring a criminal action in

accordance with Section L(B) of this Act, bring an action under the Clean Water

Act, and/or refer any criminal enforcement action or portion of such action to the

U.S. Environmental Protection Agency Regional Administrator for Region 5.

Requirements for Citations

A citation, including a penalty citation, issued under Paragraph (A)(1) or

(2) of this section shall:

state with reasonable specificity the nature of the violation;

state that the alleged violator is entitled to a hearing in Tribal

Court, if such hearing is requested in writing within 30 calendar days after

the date of issuance of the citation; and

specify a time for compliance that the Program determines is as

expeditious as practicable, taking into account the seriousness of the

violation and any good faith efforts to comply with applicable

requirements.

The citation shall become effective immediately upon the expiration of 30

calendar days after the date of issuance of the citation if no hearing is requested

and, if a timely request for a hearing is made, upon the decision of the Court,

except as provided under Subsection (C) for emergency citations.

The citation may be conditional and require a person to refrain from

particular acts unless certain conditions are met.

If appropriate, a copy of the citation shall be sent to U.S. EPA Region 5

and, if the citation is issued to a corporation, to the appropriate corporate officers

and registered agent of the corporation.

No citation issued under this section shall prevent the LTBB from

assessing any penalties or otherwise affect or limit the LTBB’s authority to

enforce under other provisions of this Act, or affect any person’s obligations to

comply with any section of this Act or with a term or condition of any permit or

other requirements promulgated or approved under this Act.

Emergency Situations

Notwithstanding any permit issued under this Act, if the Program

determines that discharge of pollutants into LTBB Waters or into a POTW or a

treatment works treating domestic sewage, or that pollution from a non-point

source, or a combination of such sources, is presenting an imminent and

substantial endangerment to public health or welfare or the environment and

determines, in consultation with the General Counsel, that it is not practicable to

assure prompt protection of public health or welfare or the environment by

commencement of a civil action pursuant to Subsection (E) of this section, the

Program may issue an emergency citation to protect public health or welfare or

the environment.

An emergency citation may prohibit, restrict or condition any and all

activities that contribute or may contribute to the emergency, shall be effective

immediately upon issuance and shall remain in effect for a period of not more

than 60 calendar days, unless the Program brings an action pursuant to Subsection

(E) of this section within the 60-day period. If the Program brings such an action,

the citation shall remain in effect for an additional 14 calendar days or for such

longer period as may be authorized by the court in which such action is brought.

Any person subject to an emergency citation may file with the Tribal

Court, with a copy provided to the Program, a written request for a hearing on the

citation within 30 calendar days of issuance of the citation. If a timely request for

a hearing is not made the citation shall be final and not subject to judicial review.

The request for a hearing may be combined with a request for a stay pending the

outcome of the hearing. The Tribal Court shall grant or deny the request for a

stay within five business days of receipt of the request.

Enforcement of Citations and Orders

Citations and orders, including emergency and penalty citations and orders, may

be enforced by the LTBB Natural Resources Department Conservation Enforcement

Division, the LTBB Prosecutors Office, and the Law Enforcement Division. Those

authorized to enforce the Program’s actions may take reasonable steps to assure

compliance, consistent with the requirements established by this Act (including rights of

appeal), including but not limited to:

Entering upon any property or establishment believed to be violating the

citation or order and demanding compliance; and

Terminating operations at facilities not in compliance.

Injunction Relief

The Program may seek injunctive relief pursuant to Section L(A) of this Act to

restrain any person who causes or contributes to an imminent and substantial threat to the

public health or welfare or environment due to a discharge or other activity affecting the

quality of LTBB Waters.

(Source: WOS 2016-008, September 15, 2016, Section XLIX)

4.1250 JUDICIAL ENFORCEMENT

Civil Judicial Enforcement

The Program may request that the LTBB file an action 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 of not less than $500 and

not more than $25,000 per day per violation, in any of the following instances:

Whenever a person has violated, or is in violation of, any provision,

requirement or prohibition of this Act, including, but not limited to, a regulation

or plan adopted pursuant to this Act, a permit or an order issued pursuant to this

Act or a fee assessed under this Act;

Whenever a person has violated, or is in violation of, any duty to allow or

carry out inspection, entry or monitoring activities; or

Whenever a person is creating an imminent and substantial endangerment

to the public health or the environment, in which case the Program shall request

the LTBB to pursue injunctive relief but not the assessment of civil penalties,

unless the endangerment is caused by a violation, as specified in Paragraphs (1) &

(2).

Criminal Penalties

Any person who intentionally:

Violates any provision, requirement or prohibition of this Act, including

but not limited to a regulation or plan adopted pursuant to this Act or a permit,

citation, or order issued pursuant to this Act;

Makes any false material statement, representation or certification in, or

omits material from, or alters, conceals or fails to file or maintain any notice,

application, record, report, plan or other document required to be filed or

maintained pursuant to this Act, regulations or plans adopted pursuant to this Act

or a permit, citation, or order issued pursuant to this Act; or

Falsifies, tampers with, renders inaccurate or fails to install any

monitoring device or method required to be maintained or followed under this

Act, regulations or plans adopted pursuant to this Act or a permit, citation, or

order issued pursuant to this Act;

shall, upon conviction, be punished by a fine of not less than $500 and not more than

$5,000 per day of violation or imprisonment for not more than one year, or both, or such

greater amounts and lengths of time as may be permissible under applicable law, or be

subject to any other penalty imposed by the court that is available under LTBB law. In

any instance where LTBB lacks jurisdiction over the person charged, or where the

Program is limited in the amount of the fine that he may impose, the Program may refer

the action to the U.S. EPA Regional Administrator for Region 5, pursuant to Section

XLIX(A)(4) of this Act, for criminal prosecution in federal court. For the purpose of this

subsection, the term “person” includes, in addition to the entities referred to in Section

III(A)(27) of this Act, any responsible corporate officer.

Jurisdictional and Venue of Tribal Court

Any action under this section shall be brought in the LTBB Tribal Court, and such

court shall have jurisdiction to restrain such violation, require compliance, assess civil

and criminal penalties up to the amounts provided in this section, collect any fees or

noncompliance penalties owed the LTBB under this Act, and award any other appropriate

relief.

Calculation of Penalties

For purposes of determining the number of days of violation for which a

civil penalty may be assessed under this section or Section LI, if the Program has

notified the source in writing of the violation and the plaintiff makes a prima facie

showing that the conduct or events giving rise to the violation are likely to have

continued or recurred past the date of notice, the days of violation shall be

presumed to include the date of such notice and each day thereafter until the

violator establishes that continuous compliance has been achieved, except to the

extent that the violator can prove by a preponderance of the evidence that there

were intervening days during which no violation occurred or that the violation

was not continuing in nature. Notice under this section shall be accomplished by

the issuance of a written notice of violation or written order to comply or by filing

a complaint in the Tribal Court that alleges any violation described in Subsection

(A) of this section.

In determining the amount of a penalty assessed under this section or

Section LI, the following factors shall be considered: the history, seriousness and

duration of the violation; any good faith efforts to comply with the applicable

requirements; the violator’s full compliance history, including the severity and

duration of past violations, if any; the economic impact of the penalty on the

violator; as an aggravating factor only, the economic benefit, if any, resulting

from the violation; and any other factors that the court deems relevant.

In lieu of or in addition to a monetary penalty, the Program may impose or

may request the LTBB to seek from the court a requirement to remediate the

damage caused or to perform community service, or both.

Failure to Pay Penalty

If any person fails to pay a civil penalty, the Program shall request the LTBB to

bring a civil action in the Tribal Court to enforce the penalty order or recover the amount

ordered or assessed plus interest, from the date of the final order or decision or the date of

the final judgment, as the case may be. In such an action the validity, amount and

appropriateness of the order or the amount of the penalty shall not be subject to review.

Any person who fails to pay on a timely basis a civil penalty ordered or assessed under

this section shall be required to pay, in addition to such penalty and interest, the

enforcement expenses, including but not limited to attorneys’ fees and costs of collection

proceedings. Such person shall also pay a quarterly nonpayment penalty for each quarter

during which such failure to pay persists. The nonpayment penalty shall be no less than

ten percent of the aggregate amount of the person’s outstanding penalties and

nonpayment penalties accrued as of the beginning of the quarter; the Program may by

regulation establish higher penalties to take into account situations where the prime rate

is higher.

Seizure of Property

Any officer authorized pursuant to Section XLIX(D) to enforce citations or orders

under this Act may seize the property of any person who commits and is charged with a

violation of any of the provisions of this Act, the regulations promulgated hereunder, and

permits, citations and orders issued hereunder, if such property is located within the

Reservation. Such property shall be seized as security for the payment of any civil or

criminal penalties or damages and is subject to forfeiture to LTBB to accomplish such

payment.

(Source: WOS 2016-008, September 15, 2016, Section L)

4.1251 ADMINISTRATIVE ASSESSMENT OF PENALTIES

Basis for Penalty Citation

The Program may issue against any person a penalty citation assessing a civil

administrative penalty of up to $10,000 per day per violation whenever the Program finds

that a person has violated, or is in violation of, any provision, requirement or prohibition

of this Act, including, but not limited to, a regulation or plan adopted pursuant to this Act,

a permit, citation or order issued pursuant to this Act, or a fee assessed under this Act.

The Program’s authority under this subsection, combined with actions under Subsection

(C), shall be limited to matters where the total penalty sought does not exceed $100,000

and the first alleged date of violation occurred no more than one year prior to the

initiation of administrative action, except where the Program and the General Counsel

jointly determine that a matter involving a larger penalty or longer period of violation is

appropriate for administrative penalty action. The communications required to make

such a joint determination and the method(s) utilized for making such a joint

determination shall be privileged and shall not be subject to judicial review. The

Program may compromise, modify or remit, with or without any conditions, any

administrative penalty imposed under this section.

Hearing Requirement

The Program shall assess an administrative penalty under this section by issuing a

citation pursuant to Section XLIX(B) of this Act. Before issuing a penalty citation, the

Program shall give written notice of the proposed citation to the person on whom the

penalty is to be assessed and provide such person an opportunity to request a hearing

within 30 calendar days of receipt of the notice.

Failure to Pay Penalty

If any person fails to comply with a penalty citation after the citation has become

final, the Program shall request the LTBB to bring a civil action in the Tribal Court to

enforce the citation or recover the amount ordered or assessed plus interest, from the date

of the final citation or decision or the date of the final judgment, as the case may be. In

such an action the validity, amount and appropriateness of the citation or penalty

assessment shall not be subject to review. Any person who fails to pay on a timely basis a

civil penalty ordered or assessed under this section shall be required to pay, in addition to

such penalty and interest, the enforcement expenses, including but not limited to attorneys’

fees and costs of collection proceedings. Such person shall also pay a quarterly

nonpayment penalty for each quarter during which such failure to pay persists. The

nonpayment penalty shall be no less than 10 percent of the aggregate amount of the

person’s outstanding penalties and nonpayment penalties accrued as of the beginning of

the quarter; the Program may by regulation establish higher penalties to take into account

situations where the prime rate is higher.

Calculation of Penalty

In determining the amount of any penalty to be assessed under this section, the Program

or the court, as appropriate, shall take into consideration the factors enumerated in

Section L(D) of this Act.

(Source: WOS 2016-008, September 15, 2016, Section LI)

PART 11. RULEMAKING AND JUDICIAL REVIEW

4.1252 RULEMAKING

Public Notice and Comment

Notice of any proposed regulation shall be published in a newspaper of general

circulation on the Reservation and shall be posted on the LTBB website for seven

working days. The notice shall specify the period available for public comment, which

must be at least 30 calendar days, and the date, time and place of any public hearing, and

shall state how the public may review and obtain a copy of the proposed regulation. Not

later than the date of proposal of the regulation in question the Program shall establish a

rulemaking docket and shall make the docket available to the public for inspection and

copying during regular business hours. The Program shall allow any person to submit

written comments, data or documentary information; shall in addition give interested

persons an opportunity to present orally at a public hearing, in Anishinaabemowin or

English, their views, data or arguments; and shall keep the rulemaking record open for at

least ten calendar days after the public hearing to provide an opportunity for submission

of rebuttal and supplementary information.

Final Rule

The final regulation shall be based on the record of the rulemaking proceeding

contained in the docket, and shall be accompanied by an explanation of the reasons for

any major changes from the proposed regulation and a response to each of the significant

comments submitted in written or oral presentations during the comment period. The

final regulation shall become effective upon approval by the Natural Resources

Commission and the Tribal Council, except that if the Tribal Council takes no action

within 30 days the regulation shall be deemed approved, pursuant to the LTBB

Administrative Procedures Act. The final regulation, together with significant comments

and the responses, shall be published on the LTBB website within seven working days

after approval of the regulation, express or implied, by the Tribal Council.

(Source: WOS 2016-008, September 15, 2016, Section LII)

4.1253 REVIEW IN TRIBAL COURT

Petitions for Review of Final Actions of the Program

Anyone seeking to challenge a final action taken by the Program under this Act

must file a petition for review of the action in Tribal Court. If the challenge is to a

regulation, the petition shall be filed within 60 calendar days from the date of the

regulation’s approval by the Tribal Council, pursuant to Section LII(B). Challenges to a

permit decision must be filed within 60 calendar days of the date of issuance of a final

decision by the EAB. Permitting decisions that have not been appealed to the EAB will

not be reviewed by the Tribal Court. For challenges to any other type of final action, the

petition shall be filed within 60 calendar days from the date that notice of such final

action is first published or, if notice is not published, first served upon the alleged

violator or such other person required to be served under this Act, except that if the

petition is based solely on grounds arising after the sixtieth day, then the petition shall be

filed within 60 calendar days after such grounds arise. The Tribal Court, in reviewing the

final action, shall limit its review to the issues and evidence that were before the Program

at the time of the final action from which the appeal is taken.

Review of Regulations

With respect to any regulations promulgated under this Act or other notice and

comment actions taken pursuant to this Act, only an objection that was raised with

reasonable specificity during the public comment period may be raised during judicial

review. If the person raising an objection can demonstrate to the Program that it was

impracticable to raise the objection within such time or if the grounds for the objection

arose after the public comment period (but within the time specified for judicial review),

and if the objection is of central relevance to the outcome of the regulation or other action,

the person may request the Program to reconsider the regulation or other notice-andcomment action and the Program may convene a proceeding for reconsideration of the

regulation or other action and provide the same procedural rights as would have been

afforded had the information been available at the time the regulation or other action was

proposed. If the Program declines to convene such a proceeding, the person may seek

review of such refusal in the Tribal Court. Such reconsideration shall not postpone the

effectiveness of the regulation or other action, although its effectiveness may be stayed by

the Program or the court for up to three months.

Other Limitations on Review

If judicial review of a final action of the Program could have been

obtained under subsection (A) of this section that action shall not be subject to

judicial review in judicial proceedings for enforcement.

Review of citations may be obtained only if a hearing was requested

pursuant to Subsections XLIX(B) or (C) and LI(B). In that case a petition for

review shall be brought in the Tribal Appellate Court.

Except as otherwise expressly allowed by LTBB law, no interlocutory

appeals shall be permitted with regard to determinations made by the Program

under this Act. In reviewing alleged procedural errors, the court may invalidate

the regulation or other action only if the errors were so serious and related to

matters of such central relevance to the regulation or permitting action that there

is a substantial likelihood that the regulation or other action would have been

significantly changed if such errors had not been made.

Standards for Review

In reviewing any final action of the Program or determination by the EAB

undertaken pursuant to this Act, the court may reverse any such action that it finds to be:

Arbitrary, capricious, an abuse of discretion or otherwise not in

accordance with the law;

In excess of statutory jurisdiction, authority, or limitations or short of

statutory right;

Without observance of procedure required by law; o

Unsupported by substantial evidence.

Relief Available

In any action brought pursuant to the provisions of this section, relief shall be

limited to declaratory relief and the Court shall have no jurisdiction to grant any other

relief.

(Source: WOS 2016-008, September, 15, 2016, Section LIII)

4.1254 SEVERABILITY

If any section, subsection, paragraph, sentence, phrase or portion of this Statute is,

for any reason, held invalid or unconstitutional by any court of competent jurisdiction,

such portion shall be deemed a separate, distinct and independent provision and such

holding shall not affect the validity of the remaining portions thereof.

(Source: WOS 2016-008, September, 15, 2016, Section LIV)

4.1255 EFFECTIVE DATE

Effective upon signature of the Executive or 30 days from Tribal Council

approval whichever comes first or if the Executive vetoes the legislation, then upon

Tribal Council override of the veto.

(Source: WOS 2016-006, September 15, 2016, Section LV)

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.