# OMAHA TRIBAL CODE (2013)

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- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

OMAHA TRIBAL CODE (2013)

TITLE 47. WATER CODE

CHAPTER 1. Findings and General Provisions ........0..cccccccecceseesesseeseesesscssecseeseceuceuvevecscesseecseas 1
SECTION 46-1-1. Findings oo... ccceccecceecscsseeseeeeseeseseeseeseesssessesesetcessessesavsesatssesevassessessenenecsess l
SECTION 46-1-2. Definitions. 2... cccecccccccecssccseesseeesceseescseeeceeaeesesesseeassussesaesacstseceecsteseeenanees 1
SECTION 46-1-3. PUrpOse. ....cceeccccccecceseeseceeeesesseeseeeeeeesstsecsecsseeecsseeateseesarsassavessessaeesecaseeses 2
SECTION 46-1-4. Scope. ....:.cettieloeecese Se IU itt ca secssussecessesseassossssessceessussusevsucsasesues 2
SECTION 46-1-5. Beneficial Uses Of Water ge ee 2
SECTION 46-1-6. Policies oo... cccccccececcssteretecseestcreseeeerees vecsdetdel sUcdveseseseseeeesaestarseeeaseneases 3

CHAPTER 2. Establishment of the Water Resources Control Board AND The Office of the

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SECTION 46-2-1. Establishment of the Water Resources Control Board .20 tice 4
SECTION 46-2-2. Establishment of the Office of Tribal Water Administration ........0.0.0..... 4

CHAPTER 3. PERMIT SYSTEM FOR WATER USE ON THE OMAHA INDIAN"

RESERVATION .......... Lobos cevacecenpeddlGsvrecesacesceeaeeetsesereaceststlldagensensereetdusescssesedeessavbescosesseipegdaceesees 6
SECTION 46-3-1. Permit or License Required <.......seereeeet eect Bela velesessseetene bebe 6
SECTION 46-3-2. The Permit System oo... cc... pseceesceedbeceecteelgetbaeneesess ide 7
SECTION 46-3-3. The License System. ......... ee eee ee

SECTION 46-3-4. Application Procedure ..0....2.ccccesceec chen veesesunttiess Saeeeee te eeeeetdiaee 9
SECTION 46-3-5. Relinquishment Of Tribal Water Rights: Sole Method Of Acquisitions. 10
SECTION 46-3-6, Prohibited Acts: Violations Of Permit Conditions Or Code ..0..........0:+ 10

‘CHAPTER 4. PROCEEDINGS ON EXERCISE OF TWA'S EMERGENCY POWERS sesead 211
SECTION 46-4-1. Appeal Rights. 22... cccccivisscsccaeseneesessseeererbbbecccecceceeesescercarsesetinesbeseeesets ll

CHAPTER 5. WATER MANAGEMENT PROCEDURES. oe reveceeeceaeeegeneetitd beseelastveberessedes lJ
SECTION 46-5-2. Public Safety Emergencies -.cc...ccccec ccc lisecsslaecscsscescosceeesececssccsesecaesseseeeaes 12
SECTION 46-5-3. Surface Water Resources 2... eee eile ceccececsregbeeedobtreeeeegeeeetereeeeenae ES

CHAPTER 6. APPEALS o00...cccccecccceseeseetsteseneesens cess ib bbesebeagstcsdsesceccecaghvecseneceusseeressessesceeetins 13
SECTION 46-6-1. Review Of TWA Decisions wdipe ides nen 13
SECTION 46-6-2. Court Appeals 0.0. eeeieeres re. er re deagenseceeceenaél aa. 14

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TITLE 47. WATER CODE
CHAPTER 1. FINDINGS AND GENERAL PROVISIONS

SECTION 46-1-1. Findings

(a) The Tribe finds that all Reservation Natural Resources are interconnected; and that
the Water Resource has Cultural, Spiritual, and Economic values that guide the appropriate use,
management, and protection of the resource and that condition all water and land use activities in
the watersheds and drainage basins of the Reservation.

(b) The Tribe finds that surface and ground water are directly interconnected by the
hydrologic cycle of the region of and the Reservation, and therefore water is 4 unitary resource,
whether occurring as ground water, springs, mineral water, soil moisture, precipitation, percolating
water, recharge, drainage waters, surface water, or otherwise.

(c) The Tribe recognizes that clean water is vital to the health and welfare of
Reservation residents and to the vitality of the Reservation economy. Because resource uses may
contribute to the degradation of water supply and quality, it is necessary to protect the
environmental quality and integrity of all surface and ground water.

(d) The Tribe finds that all waters reserved by treaty are held by them in trust for the
benefit of the Reservation public and for certain inalienable public uses and thal, as an essential
attribute of sovereignty; the power to determine the proper ‘uses of said waters and the
management thereof is the Tribes alone.

SECTION 46-1-2.. Definitions.
(a) For the purpose of this Title:
(1) "Council" shall mean the Governing Body of the Omaha Tribe of Nebraska

(2) "Person" shall mean any individual or group or combination thereof acting as a unit
however associated; any organization of any kind, whether organized for profit or not, and
regardless of the manner of form in which it does business, whether as a sole proprietorship,
receiver, partnership, joint venture, trust, estate, firm, unincorporated association, corporation,
or government, including but not limited to, any Chapter, subdivision, or agency of any of the
foregoing; and any combination of individuals or organizations in whatever form, and the
plural as well as the singular number.

(3) "Reservation lands" shall mean all lands within the exterior boundaries of the Omaha
Indian Reservation, including all lands which may hereafter be added to or made a Chapter of

the Reservation
(4) "Tribal Court" shall mean the Omaha Tribal Court of the Omaha Indian Reservation.
(5) "Tribe" shall mean the Omaha Tribe of Nebraska of the Omaha Indian Reservation

(6) "Tribal Water Rights" shall mean those rights to divert or affect Reservation water

which are granted pursuant to the provisions of This Title

(7) "Reservation Water" shall mean any and all waters underlying, flowing through or

otherwise occurring or contained within the Reservation

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(8) "Mean annual flow" shall mean that flow which is calculated using historical average
annual flow data for the period of conception till future unknown

SECTION 46-1-3. Purpose.

The purposes of this Title are:

(a) To provide an orderly system for the use and management of all 1854 tribal water
and 1865 allottee derivative water

(b) To provide effective guidelines and mechanisin for the administration and protection
of tribal and allottee reserved rights, and State-held water rights to Reservation water.

(c) Toensure that Reservation residents have sufficient water for cultural, domestic,
agriculture, stock, instream, and other uses, and that the Tribe have sufficient water for
Reservation economic development =

(d) To conserve, manage, and protect reservation water for future uses by generations to
come ;
(ce). To protect Reservation water from over-appropriation, degradation, contamination,

exploitation, and any acts injurious to the quantity, quality, or integrity of the water

(ay Within the limits of Tribes’ public trust obligations, to encourage optimal
development and multiple use of the water resource, to promote stability of investment in water
use and delivery systems, and to permit all reasonable uses.

(g) To maintain minimum: perennial stream flows and to © promote optimal recharge of
aquifers to.supply beneficial uses :

(h) To protect the health and welfare of Reservation Residents, the political integrity of
the Tribe, and the economic security of the Reservation through | the effective management and
protection of the Reservation's water supply and water auality.© of said supply.

SECTION 46-1-4. Scope.

This Title applies to all persons desiring to-use or using or undertaking activities on Reservation
Lands which effect Reservation water: :

SECTION 46- 1- 5, Beneficial Uses of Water.

(a) ~The uses to which water on the Reservation may beneficially t be applied include but
are not limited to:.

(1) Domestic Use _
(2) Municipal Use
(3) Agricultural Use
(4) Stock Water Use
(5) Industrial Use

(6) instream Flow Use, including instream flow for fisheries, wildlife, and pollution
control, aesthetic and cultural purposes

(7) Mineral Resource Development
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(8) Water Storage, Marketing and Transfer

(9) Ground Water recharge and supply enhancement
(10) Recreational Use

(1 1)Cultural Use

(12) Religious Use

(13) Hydro Power Generation

(14) Pollution Control

(15) Resource Development

(b) No presumption. of preferences of use shall be given to the order in which beneficial
uses are listed above.. ;

SECTION 46-1-6. Policies
The following general policies shall guide the use and management of water on the Reservation:
(a) Existing uses, established duties of water, and relative priorities concerning the use
of Reservation water are to be protected and preserved, subject to the Tribes’ Public Trust
obligations lo protect tribal and allottee derivative water.

(b) Surface water use will be adjusted for the varying water conditions each year, and
overall water use allocation decisions will be guided by the declaration of drought, normal, and
surplus hydrologic conditions that require different water management strategies. .Water
development decisions will recognize hydrologic variability and will consider alternative sources
of supply, should dry conditions prevail. . :

(c) Ground Water will be guided by the overall condition of the aquifer system, the
expected long-term yields, and the cumulative impacts of existing and proposed uses on ground
and surface water supply and quality.

(d) The Planning and development of water and land resources will safeguard against
surface and ground water degradation.

(e) For long-term or carry-over storage, multipurpose impoundment structures are
preferred over single purpose structures.

(fH Land use decisions involving or significantly affecting a stream bank, bed, or
channel, or water storage facility shall seek to maintain and enhance the fishery and wildlife

resource.
(g) Drainage strategies will be developed with due consideration for the conjunctive or

integrated use of surface and ground water.

(h) All land, water, or other resource strategies, decisions, or regulations shall consider
the potential effect on all Reservation natural resources.

(1) Allocation decisions are subject lo periodic consideration and review for their net
effect on trust resources and values and, may require adjustment or existing uses to protect trust

purposes where appropriate.

CHAPTER 2. ESTABLISHMENT OF THE WATER RESOURCES CONTROL BOARD
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AND THE OFFICE OF THE TRIBAL WATER ADMINISTRATOR

SECTION 46-2-1. Establishment of the Water Resources Control Board

(a) There is hereby established the Omaha Tribe of Nebraska's Water Resources Control
Board ("Board") as the primary enforcement and management agency responsible for controlling
water resources on the Reservation. The Omaha Tribal Council shall appoint Six (6) members of
the Board. Three (3) members of the initial Board to serve for a term of Three (3) years and Three
(3) members of the Board to serve for.a.term.of Two (2) years. Each Board member appointed, or
reappointed after serving the initial term, shall serve for a term of Two (2) years and until his or
her successor is duly appointed and qualified. The Council who appointed the Board member,
whose term has or is expiring, also shall appoint such member's successor, No Board member
shall vote.on,a-decision.which could have a material financial effect personally or directly upon
such member or his or her business. A member shall-disclose to the Board any such financial
effect at the time of such vote and may participate in the discussion of: the matter without voting
upon it. Six (6) members of the Board shall constitute a quorum,

(b) The duties and authority of the Board are to:

(t) Oversee the development of water r. resource management plans and suipervise the
execution and enforcement of Code provisions and Tegulations there-under,

(2) Approve or Disapprove of water use permits im accordance with the principles and
procedures set forth in: this Title, — :

(3) Conduct hearings regarding water permit applications and hear disputes regar ding ©
» the actions of the Tribal Water Engineer and/or water development/management statf in
accordance with the procedures adopted pursuant to: Board regulations,

(4) Compel production of documents, or tother things a and compel attendance of witnesses
before the Board, ee a

(5) Adopt.such rules, regulations, permit forms, and additional materials, and propose
amendments to the Code, as necessary to interpret and execute its authority:and.to implement
the objectives and purposes ofthis Title,

(6): Establish and maintain a technical staff qualified by training’ ind’ experience to
paforce and administer this Title, :

(7) Research and define, based on the best available data, the most effective ways of
managing, ‘conserving, and protecting Reservation Water, :

(8) Hire and Supervise the Tribal Water Engineer,
(9) Advise the Council on all aspects « of the: Code and Reservation Water,

(10) Organize and Operate its offices j in “order to discharge its duties and responsibilities

effectively.

SECTION 46-2-2. Establishment of the Office of Tribal Water Administration

(a) ESTABLISHMENT: There is hereby created the office and position of Tribal Water
Administrator ("TWA"). The TWA is the executive arm of the Board for water management, is
responsible directly to the director of the Natural Resources Department, and has the authority to
administer the water laws of the Tribe according to this Title, its regulations, and the general

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instructions of the Board and the Director of the Natural Resources Department. The TWA shall
be qualified by training or experience in the fields of hydrology, water rights engineering,
irrigation, water development, watersheds management, and water supply.

(b) STANDARD FOR CARRYING OUT DUTIES: Regulation of water being the
lifeblood of the Tribe and Critical to the conservation and enhancement of its resources, thee TWA
shall equally guard all interests involved in carrying out the duties and authorities of his office.

(c) DUTIES AND AUTHORITIES: The TWA shall have the following duties and
authorities:

(1) Administrative and Enforcement Functions:

(A)... To administer Tribal Water Rights, and Ensure maximum compliance with this
Title and with the conditions of all permits, determinations, orders, regulations, plans,
~ policies, guidelines, and other actions taken’by the Board.

(B) To enter upon lands within the Reservation to inspect methods of diversion,
withdrawal, and other activities affecting Reservation waters, to install measuring devices
for the purpose of enforcing and administering This Title, and to monitor water use on the
Reservation or that may affect the Reservation.

(C) In an Emergency, to remove, render inoperative, shut down, close, seal, cap,
modify, or otherwise control methods of diversion and withdrawal, obstructions to the
flow of water, and activities adversely affecting Reservation waters, subject to expedited
appeal by the affected person as provided in This ‘Title.

(D) . To initiate, by citation and other lawful means, enforcement proceedings before

the Board or in Tribal Court, or other Court of competent jurisdiction for violations of
This Title, including injunctive relief.

(E) To monitor and report all uses of Trial water and to provide an annual report to
the Board on the status and use of Tribal Resources.

(F) To give notice to the State of new uses of the Tribal water right as provided in a
a compact, and to appear on behalf of the Tribe in any proceedings involving such use.
(2) Advisory Functions;

(A) To advise the board on all water resource related development planning issues,
provide the Board with an annual report on water quantity and the status of water use on

the Reservation, and provide suggestions, alternatives, and recommendations for water
management.

(B) To recommend to the Board changes to This Title and to its regulations.

(C) To develop and submit an annual budget and office policies and procedures to
the Board for approval.

(D) To recommend certain land areas and waters on the Reservation to the Board as
suitable for dedication to certain permitted uses.

(E) To recommend designation of surface and groundwater regions on the
Reservation as "critical management areas" and to propose specialized provisions for
management within those areas.

TITLE 47. WATER CODE
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(3) Fact-Finding and Information Functions;

(A) To research and determine water supply characteristics and development
possibilities by hydrologic basin.

(B) To collect all data and to prepare all reports as required by the Compact or the
Act.

(C) To perform ongoing research regarding the overall capacity of the Reservation's
watercourses and aquifers, with a.view.in particular to discovering and reporting the
levels above or below which specific water use impairs or affects overall water
availability and use, and to determine the extent of potential effects on existing water
uses, given hydrologic conditions, from Proposed uses of Reservation Water.

(D) To conduct public educational programs and materials regarding water and
water rights. : ’ :
(E) . To determine watershed- wide rotation schedules for water diversion to meet

demands in water short years.

(F) - To recommend appropriate water duties for adoption by the Board for
Reservation lands and watersheds and to recommend technological-changes or
modifications to improve water use and efficiency.

(G) To coordinate with other Tribal Departments regarding water quality and
quantity issues. :

(4) Research and Development Functions,

(A) |. To initiate and undertake research:and development activilies directed toward
identifying financial support.for water management and. development.

(B) To identify new or analyze existing uses and means of developing, managing,
conserving, and otherwise protecting” Tribal. Water Resources. _

(C) To identify promising research areas regarding Trial Water Resources and to
solicit research proposals by government, university, or private sources;

(D) To develop the internal Tribal Technical and managerial capabilities {0 promote
the direct involvement of Tribal staff in the development and construction of, Water
_ Resources supply, distribution, and management facilities and devices.

(BE) To conduct hydrological investigations to determine water needs.

(F) To study the feasibility of and make recommendations concerning a
Reservation-based \ waler quality labor atory. _

CHAPTER 3. PERMIT SYSTEM FOR WATER USE ON THE OMAHA INDIAN
RESERVATION

SECTION 46-3-1. Permit or License Required

(a) (1) No person shall divert Treaty-based water or undertake an activity affecting or
involving such water without first obtaining a permit or license under this Chapter. Except when
such diversion or activity is preemptively allowed by federal law, a permit or license is required
for any of the following activities:

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(1) Diversion of water from any stream course, spring or well,

(2) Drilling of any new well or modification of any existing well, including domestic,
irrigation, industrial, municipal, or oil and gas development-related wells,

(3) Discharging, injecting, or depositing any waste, wastewater, or other contaminate
into Reservation Water,

(4) Changing the point of water diversion, whether of surface or groundwater,

(5) Changing the use of waters, or the place of use or the method of diversion or
application of waters,

(6) Transferring Reservation water outside the watershed origin,

(7). Altering any stream course or stream bank for any purpose, including but not limited
to road construction and repair,

(8) Developing groundwater recharge projects,

(9) Generating hydropower,

(10) Storing or impounding water, and

(11) Dedicating water to instream flow.

(b) The issuance of a permit or license allows the activity therein described and
constitutes an undertaking by the permittee or licensee to comply with the conditions therein
stated and all tribal laws and regulations of general application covering such activity.

(c) __ For purpose of This Title, any person possessing appropriative rights under Nebraska
Law may réceive a General Water Permit. Proof of appropriative rights under Nebraska Law shall
be submitted to the TWA in accordance with regulations of the Board.

(d) Any person proposing to undertake an activity which may affect Reservation Water
may apply to the TWA for a statement of No Permit Required, and the TWA may issue such a
statement if he/she finds the activity will have a minimal impact on Reservation water or that the
activity or diversion is preemptively allowed by federal law. The statement shall be limited to the
facts represented by the applicant. No fee shall be required for such application.

(e) All permits and licenses issued under This Title are provisional and shall not be
construed to create an entitlement in the user beyond the provisional period or to allow reliance
thereon by any other person.

SECTION 46-3-2.. The Permit System
(a) The Permit System recognizes six (6) categories of permits. Any two or more
categories may be combined into a single permit, as appropriate. Any permit may be made subject
to such conditions and stipulations as the Board may deem necessary in the Public interest.
(b) Categories of Permits
(1) 1865 Water Permit. Grants or confirms a right to use a share of 1865 tribal water or
1865 allotee derivative water to a user, and guides the present and future use and
appropriation of the 1865 water right. The permit applies to surface water and groundwater.
There shall be three (3) types of 1865 Water Permit, as follows;

TITLE 47. WATER CODE
OMAHA TRIBAL CODE (2013)

(A) | TYPE I: 1865 tribal water permit, granted to a tribal member, Indian Allotee, or
Tribal entity, enterprise or political subdivision.

(B) TYPE II: 1865 allotee derivative water permit, granted to a successor in interest
of an allotee.

(C) TYPE ILI: 1865 tribal water lease permit, granted to a person to use 1865 tribal
water, upon payment to the Tribes rates to be established by the Board, hi addition to any
applicable O&M charges.

(2) Permit for Changing Place of Method of Use, or Method of Application, or Point of
Diversion. Grants the right to change the location or purpose of water use, method of
application, or method or point of diversion

(3) ‘Instream-Flow. Permit. Grants the right to the: Tribes.to maintain specified instream
flows:and/or lake levels in reaches of or-the entire streams or reservoirs on the Reservation.

(4) Watershed Transfer Permit. Grants the right to transfer treaty-based water outside the
watershed of origin.

(5) Storage Permit. Grants the right.to impound surface or groundwater-for beneficial
use. Ss Sy as :
(6) General Water Permit, Grants or recognizes rights of use, appr opriation, or
development of water not otherwise covered by another per! mit.

SECTION 46-3-3.. The License System

={a) The License System recognizes four (4) categories of licenses. Any two or more —
categories may be combined into a single license, as appropriate. Any license may be made
subject to such conditions and stipulations as the Board may deem necessary in the Public Interest.

(b) . . Categories of Licenses

(1) Drillers License. Grants a license to drill or cause to be drilled a well within the
Reservation, to persons meeting tribal requirements for technical capability and bonding. The
issuance of a Driller's License is contingent upon the applicant's providing a satisfactory
description of his technical competence and financial stability, including a description of
relevant training x and experience; procedures and equipment, current financial condition, and
disclosure of prior or existing claims; upon the posting of a bond in favor of the Tribe in an
amount, established pursuant to Board regulations, conditioned upon the-faithful performance
and completion of all conditions and stipulations of the license; and.upon the applicant's
written undertaking to comply with tribal laws and regulations regarding record-keeping,
logging, well development, supervision and inspection: by the TWA.

(2) Stream Zone Alteration License. Grants the right to alter the streambed or banks. A
Steam Zone Alteration License is required for all person engaging in activity that affects the
bed or banks of Reservation streams, including but not limited to construction of temporary
diversion structures, road and culvert construction and repair, logging operations, grazing
activities on the stream bank, and other activities affecting the stability of the stream channel.

(3) Discharge License. Grants the right to discharge waste, or wastewater, or other
contaminant into the surface or groundwater of the Reservation, through the point discharge
of any substance, through the non-point discharge through landfills, septic tanks, or disposal

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pits, or through injection into groundwater.

(4) Well Construction License. Grants the right to construct a new well or modify an

existing well, and requires the submission of specific technical data, including construction
plans, effects on aquifer level and water quality, well pump test data, and lithologic logs.

SECTION 46-3-4. Application Procedure

(a) Application for any license or permit under this Chapter shall be made on forms
developed by the TWA, including particular information of facts that in the judgment of the TWA
is required for the proper processing of such applications.

(b) An application fee for permits and licenses shall be established in the regulations
promulgated hereunder and shall be paid in advance to and collected by the Office of the TWA.
The fee may be waived by thé Board in the case of financial hardship: Such fees shall be used in
Chapter to defray the cost of reviewing the application and conducting a hearing.

(c) The TWA shall provide public notice of the requirements of this Chapter and shall
allow continued historic water uses pending processing of the applications.

(d) The TWA shall assist each applicant in the collection of data and the preparation of
the application to the extent the applicant, through lack of resources or technical knowledge,
requires such assistance.

(e) Within sixty (60) days of receipt of the application, the TWA shall: review each
permit application; perform investigations; prepare a report.on each application; and recommend
approval or denial to the Board, which shall have the authority to grant or deny the permit. Every
decision of the Board must include factual findings which justify the decision, and must be
consistent with tribal water and land use laws, and Nebraska state water law when applicable.

(f) ‘The Board shall review all applications to determine whether the proposed use or
activity adversely affects tribal resources or other tribal interests, whether the proposed use or
activity is technically feasible, and whether the proposed use or activity is consistent with the
policies, purposes, and procedures described by This Title, and Nebraska State water law when

applicable.
(g) All applicants shall on request receive a hearing before the Board to provide an

opportunity for a full factual presentation and for public comment and testimony on the proposed
use or activity.

(1) Notice of such hearing will be published at the Boards expense in a newspaper of
general circulation within the Reservation at least one week prior to the date of hearing.
Notice shall also be posted in the Tribal and BIA offices and such other areas as may be
deemed appropriate by the TWA.

(2) After the hearing, the Board shall promptly render a wrillen decision on the
application:

(A) Approving the permit without conditions,

(B) Approving the permit with conditions,

(C) Denying the permit, or

(D) Tabling action pending receipt of additional data or information

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(3) All proceedings of the hearing shall be recorded, and, if an appeal is sought, a
transcript of the hearing may be requested by the applicant or any other affected party at his
sole cost and expense.

(h) If the Board approves the application, the TWA shall issue the appropriate permit or
license in conformity with the Boards decision.

SECTION 46-3-5. Relinquishment of Tribal Water Rights: Sole Method of Acquisitions

(a) Voluntary Relinquishment of Claims or Rights. Any holder or claimant of any right
in or to the waters of the Reservation may voluntarily relinquish all or a portion of such right to
the Tribe by any affirmative act including an intent to relinquish.

(b) No loss by Adverse Possession, Prescription. Estoppel, or Acquiescence:
Nontransferability.

(dl) No right to use.or otherwise affect the quantity, level, flow, pressure, quality, or
_ temperature of water may be acquired by adverse possession, ‘prescription, estopped, or
acquiescence,

(2) No right granted under This Title may be transferred, exchanged, sold, or otherwise
conveyed except as provided by This Title : “oe

SECTION. 46-3-6. Prohibited Acts: Violations of Permit Conditions or r Code nth
: (a) Prohibited Acts:

(1) Forcibly, or by bribery, aticinpicd bribery, ‘threat or-other corrupt practice, obstruct
or impede the due administration of This Title:

(2) Commit fraud, or knowingly assist another in the commission of fraud, with the
intent to evade or defeat the administration of his Code or costs imposed or assessed;

(3) F alsely verify by written declar ation any permit, form, or other document, or to
intentionally withhold data required to be submitted by law;

(4). Violate the conditions or stipulations of his permit or license including taking more
water than is allowed by permit;

(5) Willfully take, alter, or damage treaty-based water quality or water rights.

(b) Any Indian who commits any of the above prohibited acts, upon: conviction thereof,
shall be sentenced to a term of imprisonment not to exceed six (6) months, or be ordered to pay a
fine not to exceed $1, 000. 00, or both. .

(c) Any person who commits.any_ of the above prohibited acts, or whose employees or
agents in the course of their employment or agency commit any of the above prohibited acts, shall
be subject to civil proceedings before the Board on citation by the TWA. On a finding of violation,
the Board may impose any of the following sanctions, or combination thereof:

(1) Money damages,
(2) Restitution,

(3) Cancellation of the holder's lease, if the lands to which the permit applies or on
which the violation occurred are tribal lands,

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(4) Injunctive relief,
(5) Affirmative remedial action,

(6) Additional conditions or limitations upon the holder's permit or license, including
limitation of the amount of water permitted to be diverted,

(7) Suspension of the permit or license for certain term, .

(8) Exclusion from the territory of the Reservation, if the violator is subject to exclusion
under federal law,

(9) Forfeiture of any permit or license

(10) Temporary or permanent disqualification from eligibility for any permit or license.

(11) Costs.

(d) Appeal from a decision of the Board may be had by the affected person to Tribal
Court in accordance with the provisions of Chapter 6. The interest of the Tribe shal! be
represented by the TWA or legal counsel of the Tribe.

(e) In the cases of criminal prosecutions of any Indian, proceedings for penalties under
this section shall be brought in the name of the Omaha Tribe of Nebraska by the Tribal Court, by
the Tribal Prosecutor.

CHAPTER 4. PROCEEDINGS ON EXERCISE OF TWA'S EMERGENCY POWERS
SECTION 46-4-1. Appeal Rights.

(a) When in the exercise of his/her authority under Section 46-2-2(c) (1) (C), the TWA
removes renders inoperative, shuts down, closes, seals, caps, or otherwise controls any method of
diversion or withdrawal, any obstruction to the flow of water, or any activities adversely affecting
the quality or quantity of treaty-based or tribally permitted water, the affected person shall have
the following appeal rights:

(1) Upon petition, files with the Board not later than 14 days from the date of the TWA's
action, the Board within Three (3) days of filing such petition, will conduct a hearing to
receive evidence from the person affected adversely by the TWA's action. The TWA shall
provide to the Board on its request certified copies of all documents, things, or other
information which formed the basis for his/her action. The Board may modify or reverse such
action of the TWA only where such action is not supported by hydrologic fact, tribal policy,
or law, or is clearly arbitrary and capricious. The Board shall within forty-eight (48) hours
issue a written decision stating the grounds therefore.

CHAPTER 5. WATER MANAGEMENT PROCEDURES

(a) Declaration of Hydrologic Conditions. At the beginning of each irrigation season, the
TWA shall prepare a water supply forecast, and shall declare the existence of surplus, normal, and
drought conditions and the approximate extent of time in which each condition will exist each
year. As a result of widely-varying hydrologic conditions, the TWA may designate one portion of
the Reservation in surplus and another n drought condition. These designations shall be based on
hydrologic evidence, in consideration of total demand, as follows;

11

TITLE 47. WATER CODE
OMAHA TRIBAL CODE (2013)

(1) Normal Condition: a condition in which the mean flow for the watershed is achieved

(2) Surplus Condition: a condition in which the mean annual flow of the watershed is
exceeded and there is excess water above demand on an entire stream or a specific reach of
stream including the needs of downstream users, for purposes of determining demand under
this paragraph, appropriative rights under state permits shall be limited to 2 cfs/70 acres.

(3) Drought Condition: a condition in which the mean annual flow of the watershed is
not achieved and insufficient water exists to satisfy the demand on tan entire stream or a
specified reach of stream, including the needs of downstream users. For purposes of
determining demand-tinder this paragraph, appropriative rights under State permits shall be
limited to 1 cfs/70 acres.

(b) Water Allocation
(1) Guidelines

(A) ~..Water is to.be allocated according to priority date andin accordance with
historic practices of rotation and scheduling

_{B) — Water delivery systems:on the Reservation shall divert only that quantity of
water to which they are legally entitled exerpl during surplus and drought conditions as
specified in this Chapter

(2) Surplus. Surplus water that may be used beneficially and efficiently will be allocated
» -by the Board, based on the recommendation of the TWA, ratably among 1865 users first; later
by priorities are then allocated a proportionate share of the remainder; ;

(3), Drought. In Drought conditions, water will be allocated on a priority basis, unless
special agreements between the T ribe and other entities provide for a temporary change of”
water allocation formulas.

(A) 1865 water rights will receive first priority for water, with all later rights
honored as supply is available

(B) All nghts later than 1865 are than satisfied,

(C): Ifa drought condition prevails such that not enough water exists to satisfy even
1865 ‘claims, all 1865 water users will have water-claims met, but ata lesser‘diversion
rate than the specified in the 1865-water:permit. The diversion rate shall be set according
to the specified demands in relation to overall supply. The Board may set temporary use
priorities during periods of.drought after notice and hearing.

SECTION 46-5-2. Public Safety Emergencies

To prevent or to cope with an emergency involving water quality, water quantity, water supply,
drought, flood, or potentially dangerous environmental conditions, the Board is authorized to take
any steps necessary to secure prompt and effective assistance and corrective action to protect the
health and welfare of the Tribe and Reservation Natural Resources. Such action includes, but not
limited to:

(a) (1) Seeking assistance from federal and state emergency management agencies for
contamination clean up, flood, or other emergency situations involving public safety;

(b) (2) Developing the internal tribal capabilities for emergency response teams,
including training and equipment purchases;

12

TITLE 47. WATER CODE
OMAHA TRIBAL CODE (2013)

(c) (3) Developing an emergency communications network for Reservation lands and

people for the purpose of flood or other emergency warnings; and

(d) (4) Developing additional groundwater or authorizing additional storage facilities for
Reservation residents and activities and establishing specific waste-prevention or conservation
incentives for Reservation water users

SECTION 46-5-3. Surface Water Resources
(a) Use and Transfer
(1) In evaluation of a new use or transfer of surface water use within the Reservation or
off Reservation, the TWA shall consider:
(A) The impact of the surface diversion on other existing surface water users;

(B) . The impact of the surface diversion on groundwater recharge and the overall
water balance, including return flow, in the immediate and relevant area;

(C) The impact of the surface water use upon the capture zone of any existing well
in the immediate and relevant area, the size of the capture zone being determined by
regulation;

(D) The impact on the surface water use and return flow upon surface or alluvial
groundwater quality.

(2) In evaluation of the use or transfer of alluvial-groundwater, within the Reservation or
off Reservation, the TWA shall consider: :

(A) The impact of the Groundwater pumping upon surface water resources;

(B) — Overall proposed'use-in comparison to hydrologic availability of water for each
watershed as prescribed in the Code;

(C) — The impact of proposed alluvial groundwater use upon surface or groundwater
quality

(3) Any use of surface or groundwater off the Reservation must be approved by the
tribal council.

CHAPTER 6 APPEALS

SECTION 46-6-1. Review of TWA Decisions

(a) Request for Hearing. Unless sooner required by other provisions of This Title,
within thirty (30) days after issuance of a decision of the TWA, any affected person may file a
written request for a hearing before the Board, which shall review and hear the matter.

(b) Finality of TWA Decision. If no request for a hearing before the Board is made with
the time allowed, the decision of the TTA shail be final and not be subject to appeal to the Board
or lo any court.

(c) Hearing before the Board. Upon the proper and timely filing of an appeal, the Board
will conduct a recorded hearing to receive evidence from the appellant and the TWA. The Board
will issue a writlen final decision. Appeals from final decisions of the Board shall be made only to
the Tribal Court pursuant lo Section 46-6-2 of this Chapter.

13

TITLE 47. WATER CODE
OMAHA TRIBAL CODE (2013)

SECTION 46-6-2. Court Appeals

(a) Tribal Court Review. The Tribal Court is empowered to hear appeals from any final
decisions or ruling of the Board.

(b) Filing of Appeal. Appeals of Board decisions or rulings shall be filed with the Tribal
Court no later than Thirty (30) days from issuance of such decision or ruling of the Board.

(c) Exhaustion. No person may seek review by the Tribal Court of a decision or ruling
of the TWA or Board unless such person has first exhausted his administrative appeal rights
provided by This Title.

(d) Standard of Review. Unless otherwise provided by This Title, appeals to the Tribal
Court shall be limited to review of the record of the Boards administrative décision or ruling. The
Tribal Court may modify, reverse, or remand a decision or ruling of the Board only where such
decision or ruling is without substantial basis in fact, is contrary to tribal policy or tribal law, or is
clearly. arbitrary or capricious. : :

(e) Administrative Record: Upon receipt by the Board of notice that an appeal-has been
filed with the Tribal Court, the Board shall certify and transmit to the Clerk of Tribal Court the
administrative record, including all documents, things, transcripts, and other information, which

- formed the basis for the decision or tuling being appealed. —

14

TITLE 47. WATER CODE
Executive Officers

Leander Merrick, Chairman
Cheyenne Robinson, Secretary
Jazelle Miller, Treasurer

Primo Hallowell, Vice-Chairman

OMAHA TRIBE OF NEBRASKA

Members

Jason Sheridan
Alan Harlan
Jerome Hamilton

RESOLUTION NO. 23-64
OF THE
OMAHA TRIBE OF NEBRASKA

RE: Resolution amending Title 47 Chapter 5 of the OMAHA TRIBAL CODE

WHEREAS:

WHEREAS:

WHEREAS:

WHEREAS:

WHEREAS:

WHEREAS:

the Omaha Tribe of Nebraska is a Federally recognized Indian Tribe organized under a

constitution and bylaws pursuant to Section 16 of the Indian Reorganization Act of 1934,

(25 U.S.C. § 5123); and,

pursuant to Article III, Section 1 of the Constitution of the Omaha Tribe of Nebraska, the
governing body of the Omaha Tribe shall be known as the Tribal Council; and,

pursuant to Article IV, Section 1 (j) of the Constitution of the Omaha Tribe of Nebraska,
the Tribal Council has the authority to safeguard, promote, and enforce the peace,

economy, safety, law and order, and general welfare of the Tribe and the Omaha Indian

Reservation; and,

pursuant to Article IV, Section 1 (m) of the Constitution of the Omaha Tribe of Nebraska,
the Tribal Council has the authority to adopt resolutions regulating the procedure ... and

of other Tribal agencies and Tribal officials.

an amendment to the Tribal Code is needed to complete the Consent Decree with the EPA

concerning our Water Utility. And;

the Tribal Council finds that Title 47. Of the Tribal code should be amended to add section

1{Paege of 4

Resolution No. 23-64
46-5-4 as attached.
WHEREAS: the Tribal Council direct the Water Utility to add this to their records.
WHEREAS: the Tribal Council further finds the Council’s administrative assistants shall update this in

all paper tribal codes and the Electronic Tribal Code.

NOW THEREFORE, BE IT RESOLVED THAT: The Omaha Tribal Council hereby adopts the
addition of 46-5-4 to chapter 47 of the OMAHA TRIBAL CODE.

2{Paeze of 4
Resolution No. 23-64
CERTIFICATION

This is to certify that the foregoing resolution was considered at a duly called meeting of the Omaha Tribal
Council on the _,7_ day of. , 2023, and was adopted by a vote of: Lo for; O against;
abstaining; with the Chairperson ndt voting, A quorum of * ]_was present.

MEMBERS VOTE: YES NO ABSTAIN/ABSENT

Leander Merrick A sta in

Cheyenne Robinson
Jazelle Miller

Jerome Hamilton

Alan Harlan

HROEM Ta son ~Sandad

Submitted by: oh
pe

x

x

X

Primo Hallowell y
x

A

Cheyenne Robinson, Secretary Date
Omaha Tribal Council

Attest:
ZO KAR 22-23
"Leander Merrick, Chairman Date

Omaha Tribal Council

3|Pave of 4
Resolution No, 23-64
Resolution No. 3. LA

A RESOLUTION TO REQUIRE THAT CUSTOMERS OF THE WATER DISTRIBUTION SYSTEM INSTALL BACKFLOW
PREVENTION DEVICES.

BE iT ORDAINED BY THE Omaha Tribe of Nebraska Tribal Council:

Section 1. That Title 47 Chapter 5 Section 46-5-4 of the Tribal Code of the Omaha Tribe of Nebraska be
established to read as follows:

TRIBAL UTILITIES DEPARTMENT; BACKFLOW PREVENTION DEVICES REQUIRED; CUSTOMER INSTALLATION AND
MAINTENANCE; TESTING. A customer of the Tribal Utilities Department may be required by the Utilities Director
to install and maintain a properly located backflow prevention device at customer expense appropriated to the
potential hazards set forth in Title 179, Nebraska Department of Health, and approved by the Utilities Director.

The customer shall make application to the Utilities Director to install a required backflow prevention
device on a form provided by the Utilities Department. The application shall contain at a minimum the name and
address of the applicant, the type of backflow device to be installed including brand and model number.

The Utilities Director shall approve or disapprove the application based on whether such installation will
protect the municipal water distribution system from potential backflow and backsiphonage hazards.

The installation of the device shall be subject to all other sections of this code dealing with installation of
plumbing including the use of a licensed plumber if applicable.

Such customer shall also certify to the Utility Department at least one (1) time annually that the
backflow prevention device has been tested by a Nebraska Department of Health Grade VI Certified Water
Operator if the device is equipped with a test port.

Any decision of the Utilities Director may be appealed to the Utility Commission and Commission
Chairperson.

Section 2. That any other ordinance or section passed and approved prior to the passage and approved prior to
the passage, approval, and publication or posting of this ordinance and in conflict with its provisions, is hereby

repealed.
Section 3. This ordinance shall take effect and be in full force from and after its passage, approval, as required.

Passed and approved this Lk day of Faby , 2023.

4|Page of 4
Resolution No. 23-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aomaha_of_nebraska%3Ac3986d61276a0c3b. Public record. Not legal advice.