PAWNEE NATION OF OKLAHOMA
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PAWNEE NATION OF OKLAHOMA
Law and Order Code
TITLE XII
NATURAL RESOURCE PROTECTION ACT
Re-Codification on January 9, 2013
by Resolution 2012-68
TITLE XII
PAWNEE NATION NATURAL RESOURCE PROTECTION ACT
Contents
TITLE XII ................................................................................................................................. 2
PAWNEE NATION NATURAL RESOURCE PROTECTION ACT ..................................... 2
Contents .................................................................................................................................... 2
GENERAL PROVISIONS ....................................................................................................... 7
Section 001. Codification. .......................................................................................................... 7
Section 002. Purpose .................................................................................................................. 7
Section 003. Severability ............................................................................................................ 7
Section 004. Applicability .......................................................................................................... 7
Section 005. Personal Jurisdiction; Territorial Jurisdiction ....................................................... 7
Section 006. Sovereign Immunity .............................................................................................. 8
Section 007. Definitions ............................................................................................................. 8
CHAPTER ONE – DECS and ERC Establishment ................................................................ 11
Section 101. Pawnee Nation Department of Environmental Conservation and Safety ........... 11
Section 102. Pawnee Nation Environmental Regulatory Commission .................................... 12
Section 103. Review of Commission Actions .......................................................................... 13
Section 104. Removal of Commissioners ................................................................................ 13
Section 105. Duties and Responsibilities of the Director and Commission ............................. 14
Section 106. Regulations .......................................................................................................... 14
Section 107. Applications for Permits or other Authorizations ............................................... 14
Section 108. Assumption of Authority ..................................................................................... 14
Section 109. Customer Services and Response ........................................................................ 15
Section 110. Complaint Resolution .......................................................................................... 15
Section 111. Hearing Moderator .............................................................................................. 15
Section 112. Schedules of Fees ................................................................................................ 16
CHAPTER TWO – Natural Resource Protection Policy........................................................ 16
Section 201. Purpose ................................................................................................................ 16
Section 202. Policies and Goals ............................................................................................... 16
Section 203. Implementation .................................................................................................... 17
Section 204. Cooperation of Pawnee Nation Departments and Programs ............................... 17
Section 205. Conformity of Administrative Procedures .......................................................... 18
Section 206. Statutory Obligations ........................................................................................... 18
Section 207. Policy Supplementary.......................................................................................... 19
CHAPTER THREE – General Enforcement Provisions ........................................................ 20
Section 301. Purpose. ............................................................................................................... 20
Section 302. General Enforcement Authority .......................................................................... 20
Section 303. Penalties............................................................................................................... 21
Section 304. Administrative Assessment of Penalties ............................................................. 23
Section 305. Citizen Suits ........................................................................................................ 24
Section 306. Inspections and Records ...................................................................................... 25
Section 307. Pollution Unlawful. ............................................................................................. 26
Section 308. Environmental Regulatory Revolving Fund ........................................................ 26
Section 309. Culpability ........................................................................................................... 26
Section 310. Appeals ................................................................................................................ 26
Section 311. Expedited Enforcement Action-- (Departmental Action) ................................... 26
CHAPTER FOUR – Water Resource Protection.................................................................... 28
Section 401. Declaration of Policy and Authority ................................................................... 28
Section 402. Definitions ........................................................................................................... 30
Section 403. Administration and Authority ............................................................................. 32
Section 404. Water Pollution Control ..................................................................................... 33
Section 405. Cooperative Agreements ..................................................................................... 34
Section 406. In-place Pollutants ............................................................................................... 34
Section 407. Water Quality Certification ................................................................................. 34
Section 408. Unlawful Acts-Penalties ...................................................................................... 34
Section 409. Specific Provisions .............................................................................................. 36
Section 410. Streambed Alteration ........................................................................................... 36
Section 411. Minimum In-Stream Flow. .................................................................................. 36
Section 412. Lakeshore Management ...................................................................................... 37
CHAPTER FIVE – Water Quality Standards ......................................................................... 40
Section 501. Introduction ........................................................................................................ 40
Section 502. Definitions .......................................................................................................... 42
Section 503. Anti-degradation Policy ..................................................................................... 46
Section 504. Mixing Zones and Zones of Passage ................................................................... 47
Section 505. Implementation ................................................................................................... 48
Section 506. Enforcement ....................................................................................................... 51
Section 507. Allowance for Compliance Schedules and Variances ........................................ 52
Section 508. Short-Term Modifications .................................................................................. 54
Section 509. Public Involvement............................................................................................. 56
Section 510. Criteria for the Protection of Surface Water Resources ..................................... 57
Section 511. General Water Use and Criteria Classification .................................................. 73
Section 512. Wetland Water Quality Standard ........................................................................ 76
Section 513. Designated Beneficial of Surface Waters of the Pawnee Nation of Oklahoma . 78
Section 514. Groundwater Standards ...................................................................................... 80
CHAPTER SIX – Aquatic Buffers. ........................................................................................ 84
Section 601. Background ......................................................................................................... 84
Section 602. Intent .................................................................................................................... 84
Section 603. Applications......................................................................................................... 84
Section 604. Plan Requirements ............................................................................................... 85
Section 605. Design Standards ................................................................................................. 85
Section 606. Water Pollution Hazards ..................................................................................... 86
Section 607. Zones ................................................................................................................... 86
Section 608. Buffer Management and Maintenance ................................................................ 87
Section 609. Enforcement and Penalties .................................................................................. 88
Section 610. Application, Waivers/Variances .......................................................................... 89
CHAPTER SEVEN – Water Supply Systems ........................................................................ 90
Section 701. Cooperation with federal agencies and tribal departments ................................. 90
Section 701. Regulations and Standards .................................................................................. 90
Section 702. Waterworks ......................................................................................................... 90
Section 703. Investigations of Sanitary Quality of Water ........................................................ 90
Section 704. Orders .................................................................................................................. 90
Section 705. Water Supply Offense ....................................................................................... 91
CHAPTER EIGHT – Groundwater Resource Protection ....................................................... 92
Section 801. Purpose and Intent ............................................................................................... 92
Section 802. Definitions ........................................................................................................... 92
Section 803. Zones ................................................................................................................... 93
Section 804. Liability ............................................................................................................... 95
Section 805. Water Well Construction Standards ................................................................... 96
Section 806. Well Testing ....................................................................................................... 99
Section 807. Disinfection Requirements ................................................................................. 99
Section 808. Water Well Maintenance; Prevention of Ground Water Contamination ............ 99
Section 809.
Abandonment; Decommissioning of Well ...................................................... 99
Section 810. Water Well Contractor’s License ........................................................................ 99
Section 811. Enforcement and Penalties ................................................................................ 100
Section 812. Wellhead and water supply protection program. ............................................... 101
CHAPTER NINE – Pollutant Discharges............................................................................. 102
Section 901. Duty of Pawnee Nation to promulgate regulations ........................................... 102
Section 902. Permitting .......................................................................................................... 102
Section 903. Authority ........................................................................................................... 103
Section 904. Information ........................................................................................................ 103
Section 905. Discharge without permit unlawful ................................................................... 103
Section 905. Un-authorized Discharge Offence ..................................................................... 104
CHAPTER TEN – Waste Water ........................................................................................... 105
Section 1001. Wastewater treatment. ..................................................................................... 105
Section 1002. Construction, operation and extension of treatment systems. ......................... 105
Section 1003. Sludge .............................................................................................................. 105
Section 1004. Activities requiring permit .............................................................................. 106
Section 1005. Rules - Application .......................................................................................... 106
Section 1006. Penalties for Violations of Act; Procedures .................................................... 107
Section 1007. State Liability .................................................................................................. 109
Section 1008. Wrongful pollutants into Treatment Works .................................................... 109
Section 1009. Compliance Orders. ......................................................................................... 109
Section 1010. Notification of Un-Authorized Discharge-Penalty.......................................... 110
Section 1011. Administrative Provisions ............................................................................... 110
Section 1012. Expedited Enforcement Action-- (Departmental Action) ............................... 111
CHAPTER ELEVEN – Solid Waste Regulation .................................................................. 112
Section 1101. Definitions ....................................................................................................... 112
Section 1102. Findings of the Pawnee Nation ....................................................................... 113
Section 1103. Objectives and Policy of the Pawnee Nation .................................................. 115
Section 1104. Prohibition of Financial Interest-Penalty ........................................................ 116
Section 1105. Solid Waste Prohibited Acts............................................................................ 116
Section 1106. Permit Required ............................................................................................... 116
Section 1107. Permitting Procedures ..................................................................................... 117
Section 1108. Solid Waste Contracts ..................................................................................... 118
Section 1109. Feasibility Studies ........................................................................................... 118
Section 1110. Contingency Plans ........................................................................................... 118
Section 1111. Facility Operation ............................................................................................ 118
Section 1112. Prohibition of Open Dumps-Penalty ............................................................... 118
Section 1113. Record Keeping ............................................................................................... 118
Section 1114. Enforcement Authority .................................................................................... 119
Section 1115. Department and Commission Duties ............................................................... 119
Section 1116. Enforcement Actions ....................................................................................... 119
Section 1117. Compliance Orders .......................................................................................... 122
Section 1118. Penalties........................................................................................................... 122
Section 1119. Knowing Endangerment .................................................................................. 123
Section 1120. Imminent Hazard ............................................................................................. 123
Section 1121. Finances and Revenues ................................................................................... 123
CHAPTER TWELVE – Oil Pollution Control ..................................................................... 125
Section 1200. Purpose ............................................................................................................ 125
Section 1201. Authority ......................................................................................................... 125
Section 1202. Definition......................................................................................................... 125
Section 1203. Adoption of Federal Statute ............................................................................ 125
Section 1204. Pollution Control ............................................................................................. 126
Section 1205. Lease Compliance ........................................................................................... 129
Section 1206. Brine Management .......................................................................................... 129
Section 1207. Transportation of Product and /or Equipment ................................................. 130
Section 1208. General Site Safety .......................................................................................... 130
Section 1209. Fish and Wildlife Protection............................................................................ 131
Section 1210. EPA-UIC ......................................................................................................... 131
Section 1211. Emergency Response / Notification ................................................................ 131
Section 1212. Remediation / Restoration of Contaminated Soil ............................................ 132
Section 1213. Inspections ....................................................................................................... 132
Section 1214. Enforcement .................................................................................................... 132
Section 1215. Expedited Field Enforcement Program ........................................................... 133
CHAPTER THIRTEEN – Underground Storage Tanks ...................................................... 135
Section 1300. Purpose ............................................................................................................ 135
Section 1301. Definitions and Exemptions ............................................................................ 135
Section 1302. Adoption of Federal Statute ............................................................................ 137
Section 1303. Notification and Permit ................................................................................... 137
Section 1304. UST Operational Requirements and Penalty for Violation ............................. 137
Section 1305. Inspections and Information ............................................................................ 148
Section 1306. Enforcement .................................................................................................... 149
Section 1307. Expedited Enforcement Action-- (Departmental Action) ............................... 149
CHAPTER FOURTEEN –Timber Harvesting/Removal...................................................... 151
Section 1401. Prohibition ....................................................................................................... 151
Section 1402. Logging Roads ................................................................................................ 151
Section 1403. Timber Harvesting ........................................................................................... 151
TITLE XII
PAWNEE NATION NATURAL RESOURCE PROTECTION ACT
GENERAL PROVISIONS
Section 001. Codification.
This Chapter shall be codified as the Pawnee Nation Natural Resource Protection Act and
supersedes and supplements all conflicting provisions or laws of the Pawnee Nation.
Section 002. Purpose
The purpose of the Pawnee Natural Resource Protection Act is to provide for the
administration of natural resource protection functions, which will:
(a) Establish the Department of Environmental Conservation and Safety and the
Environmental Regulatory Commission and their perspective duties and responsibilities;
(b) Provide for the development, management, protection, and preservation of the air, land
water, wildlife, and other natural resources of the Pawnee Nation;
(c) Ensure the natural resource and environmental regulatory protection concerns of industry,
the public, and the Pawnee Nation will be addressed in an expedient manner,
(d) Provide for the exercise of the inherent sovereign power to govern by the Pawnee Nation,
and
(e) Ensure due process and fair decision-making procedures for persons or entities seeking
to use, withdraw, divert, store, or take other actions which may affect the waters of the
Pawnee Nation.
Section 003. Severability
The provisions of this Title are severable, and if any part hereof shall be held void, the
decision of any court so holding shall not affect or impair any of the remaining parts or
provisions of this Title.
Section 004. Applicability
(a)
(b)
This Act shall apply to all causes within the territorial jurisdiction of the Pawnee Nation
and shall apply to all Indian persons violating its provisions within the territorial
jurisdiction of the Pawnee Nation., provided, that the provisions of Chapter Four of Title
VI of this Law and Order Code shall apply to all members of the Pawnee Nation and all
Indian residents of the jurisdiction of the Tribe where ever such violations may occur, if
such violation has any actual or intended effect upon the political integrity or the political
or economic security of the Pawnee Nation
This Act shall apply to non-Indians to the extent not inconsistent with federal law and to
the extent that any person found to have violated any provision of this Title may be
banished from the jurisdiction of the Pawnee Nation for a period of not more than ten
years, or for such term and/or penalty or fine as may be imposed by the Section violated,
in a civil proceeding brought by the prosecutor. The non-Indian, in such cases shall have
all the same procedural rights of a criminal defendant, and such cases shall be tried by the
same rules of criminal procedure.
Section 005. Personal Jurisdiction; Territorial Jurisdiction
(a)
For the purposes of enforcement of this Act, the Pawnee Nation shall have jurisdiction
over all persons, who by their actions or negligence, violates any provision of this Act.
(b)
For the purpose of enforcement of this Act, the Pawnee Nation shall have jurisdiction in
the territorial boundaries of the Pawnee Nation and other places determined to be Indian
Country within the Pawnee Nation jurisdiction as provided in Title I, Section 3 of this
Law and Order Code. Because any violations of this Code, its Acts, laws, or any rules or
regulations adopted there-under will demonstrably and seriously impact the environment,
natural resources, public health, safety, welfare, cultural and/or political integrity, and
economic security of the Nation, the Pawnee Nation shall have jurisdiction to regulate
and enforce the provisions of this Act with respect to any activity conducted on trust land
(Tribal and/or individual allotment) , fee land, and in Indian Country within the Pawnee
Nation to the fullest extent allowed by law.
Section 006. Sovereign Immunity
(a)
(b)
(c)
(d)
Neither this Law and Order Code, its Acts, Laws, Regulations, or prescribed services, nor
the Tribal programs established for implementation of said Acts, laws, regulations, or
services, nor any action or agreement of the Environmental Regulatory Commission, the
Department of Environmental Conservation and Safety or its Programs shall be construed
as, or is intended to be, a waiver or modification of any sovereign immunity now enjoyed
by the Pawnee Nation, or a consent by the Nation to jurisdiction or suit against it.
The Nation reserves the right to contest the jurisdiction of the Federal Court in any
citizens' suit filed against it (IE, under Section 7002 of the SWDA), except only as such
jurisdiction may be expressly waived by the Pawnee Nation in such suit.
The Pawnee Nation, the Pawnee Business Council and its members; the Pawnee Nation
Environmental Regulatory Commission and its members; the Pawnee Nation Department
of Environmental Conservation and Safety and its Director and employees; and all other
Tribal officers, employees, representatives, or agents thereof, who are performing their
duties by implementing or enforcing any provision of the Law and Order Code, are
immune from suit for monetary damages in any court of law, and they do not waive any
of their sovereign rights or immunities; executive privileges or right to privacy or
confidentiality.
The Pawnee Nation, its Environmental Regulatory Commission, and/or Department of
Environmental Conservation and Safety may enter into such contracts as are authorized
by the Pawnee Business Council, for the purpose of implementing and/or enforcing
provisions of this Code or its Acts therein; provided that such contracts shall not be
construed to be a waiver of the sovereign rights or immunities of the Pawnee Nation, or
any commission, board, agency, entity, officer, employee, representative, or agent
thereof.
Section 007. Definitions
In this Act:
(a)
(b)
(c)
(d)
"Clean Water Act" means the federal Water Pollution Control Act, 33 U.S.C., Section
1251 et seq., as amended;
“Commission” means the Pawnee Nation Environmental Regulatory Commission;
"Department of Environmental Conservation and Safety" hereinafter "DECS" means the
Pawnee Tribal Department of Environmental Conservation and Safety;
“Director” means the Director of the Pawnee Nation Department of Environmental
Conservation and Safety;
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
“Discharge” includes but is not limited to a discharge of a pollutant, and means any
addition of any pollutant to waters within or affecting the Nation’s jurisdiction from any
point source;
"Environment" includes the air, land, wildlife, natural resources, and waters within the
Nation's jurisdiction;
“Environmental Regulatory Commission” hereinafter “ERC” or “Commission” means
the Pawnee Nation Environmental Regulatory Commission;
"Indian" means those persons who are citizens or are eligible for citizenship in a federally
recognized Indian tribe or Nation;
"Indian Country" means lands within the jurisdiction of the Pawnee Nation;
“Natural Resources” means any resource, material, or process on the landscape whether
extracted or left in place
"Non-point source" means the contamination of the environmental with a pollutant for
which the specific point of origin may not be well defined;
"N.P.D.E.S." or "National Pollutant Discharge Elimination System" means the system for
the issuance of permits under the Federal Water Pollution Control Act, 33 U.S.C. §125l et
seq., as amended;
“Officer” means any recognized law enforcement officer of the Pawnee Nation;
"Pawnee Nation Code" hereinafter "PNC" means the Pawnee Nation of Oklahoma Law
and Order Code as established in Constitution and Laws of the Pawnee Indians of
Oklahoma;
"Pawnee Nation" means the Pawnee Nation of Oklahoma or Pawnee Nation or Tribe;
"Pawnee Tribal District Court" means the trial court of the Pawnee Nation of Oklahoma;
“Person” means an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, federally recognized Indian Tribe,
public corporation, government, or governmental subdivision, agency, or instrumentality,
or any other legal or commercial entity;
"Point source" means any discernible, confined and discrete conveyance or outlet
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure
container, rolling stock or vessel or other floating craft from which pollutants are or may
be discharged into waters within the Nation's jurisdiction. The term "point source" shall
not include agricultural storm water discharge and return flows from irrigated agriculture;
"Pollutant" includes but is not limited to dredged soil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agribusiness waste;
"Pollution" means the presence in the environment of any substance, contaminant or
pollutant, or any other alteration of the physical, chemical or biological properties of the
environment or the release of any liquid, gaseous or solid substance into the environment
in quantities which are or will likely create a nuisance or which render or will likely
render the environment harmful or detrimental or injurious to public health, safety or
welfare, or to domestic, commercial, industrial, agricultural, recreational, or other
legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life, or
to property;
“Schedule of Compliance” means schedule of remedial measures including but not
limited to an enforceable sequence of actions or operations leading to compliance with
any regulated limitation, prohibition, or standard;
(v)
(w)
(x)
(y)
(z)
(aa)
"Source" means any and all points or origin of any wastes, pollutants or contaminants
whether publicly or privately owned or operated;
"Storm water" means rain water runoff, snow melt runoff, and surface runoff and
drainage;
“Tribe” means the Pawnee Nation;
"Waste" means any liquid, gaseous or solid or semi-solid substance, or thermal
component, whether domestic, municipal, commercial, agricultural or industrial in origin,
which may pollute or contaminate or tend to pollute or contaminate, any air, land or
waters of the Nation;
"Wastewater" includes any substance, including sewage, that contains any discharge from
the bodies of human beings or animals, or pollutants or contaminating chemicals or other
contaminating wastes from domestic, municipal, commercial, industrial, agricultural,
manufacturing or other forms of industry; and
"Waters of the Pawnee Nation (Nation)" means all streams, lakes, ponds, marshes,
navigable and non-navigable watercourses and waterways, wells, springs, irrigation
systems, drainage systems, storm sewers, wetlands as defined by the Nation, and all other
bodies or accumulations of water including surface and underground, natural or artificial,
public or private, which are contained within, flow through, or border upon the
jurisdiction of the Pawnee Nation, including but not limited to the Pawnee Nation
Reservation as established by the Act of April 10, 1876, or any portion thereof.
CHAPTER ONE – DECS and ERC Establishment
Section 101. Pawnee Nation Department of Environmental Conservation and Safety
(a)
(b)
There is hereby created the Pawnee Nation Department of Environmental Conservation
and Safety, hereinafter referred to as the "DECS," which shall be comprised of one
Program Director and the support staff, adequate for sustainable program activity and
initiatives. The Director shall have executive authority and control of the Department and
its employees to the end that the policies of the Pawnee Business council shall be carried
out in accordance with the laws, resolutions, and proclamations of the Pawnee Business
Council. The Director is empowered to investigate and determine the facts relative to the
condition of any and all natural resources within the Pawnee Nation. Upon determination
of those facts, the Director shall effectuate all policy, laws and regulations of the Pawnee
Nation and work toward the preservation, protection, conservation, perpetuation, and
management of the natural resources within the Pawnee Nation
The DECS is hereby authorized to:
(1)
Act as lead agency for natural resource and environmental management and
enforcement including programs and/or services within its areas of jurisdiction ;
(2) To negotiate cooperative agreements with federal, state, local and tribal authorities
on matters dealing with environmental and/or natural resource management,
provided that, all such negotiations are approved by the President of the Pawnee
Business Council, with final agreements requiring approval of the Pawnee Business
Council;
(3) Utilize the information, facilities, personnel, and other resources of federal agencies
and Pawnee Nation departments as long as it is not in conflict with funding or
service authorizations;
(4) Develop enforcement authority and capacity within the DECS and/or Pawnee
Nation and/or enter cooperative agreements for enforcement of this Act with federal
or state authorities with approval of the Pawnee Business Council.
(5) Pursue assistance from the federal government and from other sources as may be
available to the Pawnee Nation for the planning, development, and operation of
environmental protection, natural resource conservation, and/or regulatory
programs or functions established under this Act;
(6) Develop, propose, and implement environmental and natural resource laws, ,
regulations, and standards for the Pawnee Nation;
(7) Engage in the environmental and natural resource permitting and certification
process as authorized by this Act and/or other Laws of the Pawnee Nation;
(8) Direct the examination and approval of plans and specifications for environmental
facilities and sites and to inspect construction remediation, operation, and closing of
said facilities and other environmentally sensitive site operations, or designate a
qualified agent to do so;
(9) Take complaints, investigate, and enforce the provisions of this Act and other laws
and regulations of the Pawnee Nation including but not limited to environmental
and natural resource laws and regulations, and other laws of the Pawnee Nation;
(10) Conduct environmental and/or natural resource assessments, surveys, site/facility
inspections, and monitoring activities;
(11) Direct inspections of closed or abandoned regulated sites, and determine
compliance rules and regulations for proper protective measures;
(12) Seek injunction against any person in violation of this Act in the Courts of the
Pawnee Nation, and/or in other court of appropriate jurisdiction;
(13) Conduct regulatory inspection and monitoring activities for the Environmental
Regulatory Commission and present its findings and regulatory complaints to the
Commission;
(14) Establish Tribal Implementation Programs (Tribal Authorization) to the extent
allowed by federal law and may, where appropriate, establish programs for which
there is no corresponding federal law or program;
(15) Enforce the laws of the Pawnee Nation regarding the protection of natural
resources, including but not limited to the issuance, modification or revocation of
permits, establish enforcement procedures, investigate, search, seize, detain, issue
citations and/or Notice to Appear, arrest (with/with out warrant), refer complaint for
prosecution or enforcement to the appropriate Tribal, state, and/or federal agency as
applicable to activities and persons subject to the jurisdiction of the Pawnee Nation
as they may deem appropriate to protect the environmental and natural resources,
and public health and welfare.
(16) Issue “Compliance Order/Settlement Agreement” (COSA) as non-judiciary action
to enforce provisions of this Act. The COSA is voluntary and is without appeal. The
order to comply and associated agreement to settle such violation is applicable to all
persons. Failure to comply with the terms of the COSA may result in formal
adjudicated enforcement of the same violation.
(17) Provide review and approval of all NEPA documents applicable within the Pawnee
Nation.
(18) Provide implementation of policy, laws, and regulations concerning the
preservation of life and safety for the use of natural resources for the purpose of
recreation, boating, and harvesting.
Section 102. Pawnee Nation Environmental Regulatory Commission
(a)
(b)
(c)
(d)
(e)
(f)
There is hereby created the Pawnee Nation Environmental Regulatory Commission,
hereinafter referred to as the "ERC”.
The ERC shall be governed by a Board of Commissioners, which shall be composed of
three (3) Commissioners where at least two shall be citizens of the Pawnee Nation.
The Commissioners shall be appointed by the President of the Pawnee Nation. Each
Commissioner shall serve for a term of four (4) years, provided that, in order to stagger
the term of office, one of the original Commissioners shall be appointed for a term of two
(2) years, one for a term of three (3) years, and one for a term of four (4) years. Any
vacancy on the Board, howsoever caused, will be filled by appointment by the President
of the Pawnee Nation with the consent of the Pawnee Nation Business Council, provided
that the replacement serves only the amount of time remaining in the term of the original
appointee.
The Director of the Pawnee Nation Department of Environmental Conservation and
Safety will serve as the Commission Administrator, and may act as a Commissioner in
the event that only one Commissioner is seated, or may act as the Commission in the
event no Commissioners are seated.
The ERC shall elect a Chairperson from among their members.
The business of the Board shall be conducted at a meeting of the Board duly called and
noticed and at which a quorum is present.
(g)
(h)
A quorum shall consist of two (2) Commissioners. Any substantive action of the ERC
must be approved by affirmative vote of at least two Commissioners and must be
recorded in writing.
The Environmental Regulatory Commission is hereby authorized to:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(i)
Act as lead agency for Tribal water quantity allocation, permitting and enforcement,
including, but not limited to, water rights, surface water and underground water
allocation and distribution, planning, contracts, and interstate stream compacts;
Act as lead agency for all regulatory functions requiring administrative review,
authorizations, and/or enforcement as specified by this Act.
Consult, cooperate, and coordinate its operations with the DECS;
Seek injunction against any person in violation of any regulation authorized under
this Act in the Courts of the Pawnee Nation, or court of appropriate jurisdiction;
Direct the examination and approval of plans and specification for waste disposal
facilities and to inspect construction, remediation, operation, and closing of waste
disposal sites, facilities, and other environmentally sensitive site operations, or
designate a qualified agent to do so;
Issue, continue in effect, revoke, amend, modify, condition, deny, renew or refuse
to renew permits, licenses, certifications and other authorizations as specified under
implementing regulations;
Promulgate Regulations and issue, modify, or revoke orders requiring other actions
such as the ERC may deem necessary to enforce the provisions of implementing
regulations of this Act;
The ERC may, pursuant to resolution or written approval in a regular or special
meeting of the ERC, delegate any authority to the Director of the DECS. In the
event where no quorum is established, the Director of the DECS shall act and serve
as the ERC;
Enact the implementing regulations of this Act and other environmental health and
safety regulations including but not limited to the issuance, modification or
revocation of permits, establish administrative enforcement procedures and hold
hearings, issue orders or directives, and promulgate rules applicable to activities and
persons subject to the jurisdiction of the Pawnee Nation as they may deem
appropriate to protect the environmental resources and public health and welfare.
The Environmental Regulatory Commission shall not have administrative authority over
operations and functions of the Pawnee Nation Department of Environmental
Conservation and Safety and/or its staff.
Section 103. Review of Commission Actions
Any affected party may seek review in the District Court of the Pawnee Nation of any final
order or decision of the ERC pursuant to the Administrative procedures Act.
Section 104. Removal of Commissioners
Commissioners may be removed without cause by the Pawnee Business Council.
Section 105. Duties and Responsibilities of the Director and Commission
In addition to the above listed duties and responsibilities, both the DECS Director and the
Commission shall:
(a)
Seek to develop relationships between state, Tribal, regional, local and federal planning,
development, and management programs for the protection of human health and
environment;
(b)
Seek to facilitate cooperation across jurisdictional lines of authority with state, Tribal,
and federal environmental and natural resource agencies to resolve environmental
problems;
(c)
Seek to cooperate with all environmental, human health and safety, and natural resource
agencies(state, local, Tribal, and federal governmental entities) to protect, foster, and
promote the general welfare of human health, and the environmental and natural
resources of the Pawnee Nation and the surrounding jurisdictions;
(d)
Have the authority to engage in environmental and natural resource information
dissemination and education activities within but not limited to their respective areas of
jurisdiction.
Section 106. Regulations
Adoption of Regulations
The Director and Commission are hereby authorized and directed to promulgate regulations
which are deemed necessary to carry out, implement and enforce the goals, purposes and
provisions of this Act. Said regulations may include, without limitation, standards, tests, methods
and procedures to be followed in permitting, permit renewal, inspection, permit revocation or
suspension proceedings, and other enforcement actions pursuant to this Act; the establishment of
administrative fines and/or penalties which may be imposed by the Pawnee Nation for violations
of regulations authorized by this Act, including the revocation and/or suspension of any permit
issued here under the regulations authorized by this Act, orders of the DECS and ERC, and/or
the conditions of any permit issued hereunder; and the rules and procedures to be followed in any
hearings conducted before the DECS and/or ERC. The regulations adopted by the DECS and
ERC pursuant to this section may be amended, modified or replaced from time to time in the
discretion of the DECS and ERC as relevant, subject to the provisions of subsection (b) of this
section.
(b)
Consistency with Act; Approval of Implementing Regulations
The regulations, and any amendments, modifications or replacements thereof, shall be
consistent with the goals, purposes and provisions of this Act and the Constitution of the Pawnee
Nation. Provided, however, that prior to becoming effective, such regulations shall be first
submitted to and approved by Resolution of the Pawnee Business Council.
(a)
Section 107. Applications for Permits or other Authorizations
For permits or other authorizations required pursuant to the Pawnee Nation Natural Resource
Protection Act, other laws, codes, and regulations authorized by the Pawnee Nation Business
Council, applicants shall file applications in the form and manner established by the DECS
and/or ERC. The applications shall be reviewed as filed and subsequently amended or
supplemented. Any permit issued or authorization granted may include conditions and fees.
Section 108. Assumption of Authority
(a)
The Nation shall assume regulatory and enforcement authority over all environmental
and/or conservation licenses, permits, certifications or registrations valid and existing
(b)
(c)
(d)
(e)
within the Pawnee Nation's jurisdiction as soon as practicable after the effective date of
this Act, as well as all such documents to be issued after the effective date of this Act;
Unexpired or un-revoked licenses, permits, certifications or registrations issued prior to
the effective date of this Act shall remain valid for stated terms and conditions until
otherwise provided by Pawnee Nation law. Such licenses, permits or registrations shall be
subject to the laws and rules of the Pawnee Nation;
Nothing in the Pawnee Nation Natural Resource Protection Act shall operate to bar or
negate any existing order, claim or cause of action available to any state environmental
agency or the Nation as its respective predecessor, nor shall it operate to affect
enforcement action undertaken by any program, division or service of the state prior to
such transfer to the DECS or ERC. Violations of provisions of law now contained in this
title, and violations of rules, permits or final orders which occurred prior to the transfer of
jurisdiction and authority to the DECS or ERC shall be subject to penalties available and
existing at the time of violation.
Any application pending on the date of activation of this Act before the Oklahoma
Department of Environmental Quality, Oklahoma Water Resources Board or the
Oklahoma State Department of Health for a permit or license over which the DECS or
ERC has assumed jurisdiction is hereby transferred to the DECS or ERC, as relevant, and
shall be subject to the requirements of this Code.
All permit applications filed with the Oklahoma Department of Environmental Quality or
Oklahoma Water Resources Board on or before the effective date of this Act, for which
no permit has yet been issued by the Oklahoma Department of Environmental Quality or
Oklahoma Water Resources Board shall be subject to the requirements of this Law.
Section 109. Customer Services and Response
The DECS and the ERC may engage in timely customer servicing and response. The DECS
and ERC may:
(a)
Establish and maintain an information and referral system to assist the public in
understanding and complying with the Nation's requirements concerning the use of
natural resources and protection of the environment. The system shall provide a
telephone information service and disseminate printed materials;
(b)
Coordinate permitting efforts to standardize permits;
(c)
Provide for the posting of the relevant telephone numbers at all relevant public
information centers; and
(d)
Maintain copies of all current rules of the DECS and ERC for public dissemination upon
request.
Section 110. Complaint Resolution
The DECS and the ERC should develop, implement, and utilize their own complaint
investigation and response process that will ensure complaint resolution. Complaints received
which are not in the jurisdiction of the Pawnee Nation or are shared with another jurisdiction
should be referred to such jurisdiction.
Section 111. Hearing Moderator
The ERC may engage one or more Hearing Moderators to conduct individual hearings,
proceedings, preside over rulemaking and perform such other duties as are assigned to them by
the ERC which are not inconsistent with their statutory duties.
Section 112. Schedules of Fees
(a)
(b)
(c)
The DECS and ERC shall establish schedules of fees to be charged for applications for,
or the issuance of, new, modified or renewed permits, certificates, and other
authorizations and for such other environmental or conservation services as are involved
in the management or regulation of programs authorized by the provisions of this Act.
Such fees shall be subject to the following limitations:
(1) The DECS and ERC shall follow the procedures required by the Pawnee Tribal
Constitution for promulgation of rules in establishing or amending any such
schedule of fees;
(2) The schedule of fees for each environmental function or program shall be based
upon the reasonable costs of operating such environmental functions or programs,
including, but not limited to, the costs of administration, personnel, office space,
equipment, training, travel, inspection and review rendered in connection with each
such function or program;
(3) Any facility exempt from the requirement to obtain a permit based on date of
construction or start-up may be assessed an annual permit renewal fee equivalent;
and
(4) Monies received from permit, license and certification programs, including but not
limited to application, review, inspection, monitoring and operating fees, shall be
expended only on the direct or indirect costs of the specific programs from which
such monies originate.
The DECS and ERC shall establish a schedule of fees to be charged for services
including, but not limited to, searches, compilations, certifications or reproduction of
maps and publications, transcripts, blueprints, computer data, electronic recordings or
documents. Such fees shall be based on the actual cost of materials and labor to the
DECS and ERC for the provision of such services.
The authority to establish fee schedules by rule shall extend to all programs administered
by the DECS and ERC.
CHAPTER TWO – Natural Resource Protection Policy
Section 201. Purpose
The purpose of this chapter is to establish and implement a Pawnee Nation Natural Resource
Protection Policy which will encourage productive and enjoyable harmony between human
beings and their environment; to promote efforts which will prevent or eliminate damage to the
natural resources and the environment; and to enrich the understanding of the ecological systems
and natural resources important to the Pawnee Nation.
Section 202. Policies and Goals
The Pawnee Business Council, recognizing the profound impact of man's activity on the
interrelations of all components of the natural environment, declares that it is the continuing
policy of the Pawnee Nation, in cooperation with federal, state and local governments, to use all
practicable means and measures, including financial and technical assistance, in a manner
calculated to foster and promote the general welfare, to create and maintain conditions under
which human beings and nature can exist in productive harmony, and fulfill the social, economic
and other requirements of present and future generations. In order to carry out the policy set
forth in this Act, it shall be the continuing responsibility of the Pawnee Nation to use all
practicable means, consistent with other essential considerations of Pawnee Nation law, policy,
and customs, to improve and coordinate plans, functions, programs, and resources to the end that
the Pawnee Nation may:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
fulfill the responsibility of each generation of human beings as trustees of the
environment for succeeding generations;
assure for all human beings a safe, healthful, productive and aesthetically and
culturally pleasing surroundings;
attain the widest range of beneficial uses of the environment without degradation
of the Pawnee Nation's natural resources;
preserve important historic, cultural, religious, and natural aspects of Pawnee
Tribal heritage;
analyze the potential environmental effects of proposed actions and their
alternatives;
enhance the quality of renewable resources and achieve their maximum value and
yield;
provide Departmental, administrative, civil and criminal remedies and sanctions
in favor of the Pawnee Nation against any persons who violate this Act or any
regulations adopted hereunder, and, to the maximum extent possible, enforce
these remedies and sanctions against such persons;
prohibit the improper storage, burial or disposal of any solid waste, or nuclear,
hazardous or toxic refuse, by-product, waste or material within the jurisdiction of
the Pawnee Nation, or that could affect natural resources within the jurisdiction of
the Pawnee Nation;
provide for regulation and taxation of interests, actions and omissions that
adversely affect the natural resources of the Pawnee Nation;
promote, develop, and utilize “preventive” strategies as opposed to “ after the
fact” concepts of dealing with environmental and natural resource management
issues;
practice compliance assistance as appropriate to encourage compliance to the laws
and regulations as authorized under this Act. Compliance assistance may be the
use of any departmental process which is intended as an option for adjudication or
other administrative enforcement actions;
adopt and adhere to “continuous monitoring” strategies and concepts for
management and enforcement to assure early detection and/or prevention of cause
to the impairment of natural resources;
utilize whenever possible, means of development, job creation, construction and
resource use that are environmentally friendly and reflective of Tribal culture and
history, and
assure compliance with the standards of the National Environmental Policy Act
(NEPA), and of this Act.
Section 203. Implementation
The Director and/or other authorized representative of the Pawnee Nation are authorized and
directed to prescribe, promulgate as required, implement, and enforce laws and regulations,
which shall be approved by the Pawnee Business Council.
Section 204. Cooperation of Pawnee Nation Departments and Programs
The Pawnee Business Council authorizes and directs that, to the fullest extent possible:
(a)
(b)
The policies, regulations and laws of the Pawnee Nation shall be interpreted and
administered by its Divisions, Departments, programs, and services in accordance with
the policies, procedures, and regulations adopted pursuant to §203 of this Act; and
All Departments of the Pawnee Nation undertaking activities effected by this Act shall:
(1)
utilize a systematic, interdisciplinary approach to ensure the integrated use of
natural and social sciences in planning and in decision making which may have an
impact on the environment, natural resources and public health;
(2)
identify and develop methods and procedures which will ensure that presently unquantified environmental amenities and values may be given appropriate
consideration in decision making along with economic and technical
considerations consistent with the regulations adopted under this chapter; and
(3)
include in all recommendations and reports on proposals for the action, projects
and programs, a statement by the responsible official on:
(i) environmental impacts of the proposed action,
(ii)
any adverse environmental effects on lands of the Pawnee Nation which
cannot be avoided should the proposal be implemented,
alternatives to the proposed action,
(iii)
(iv) the relationship between local short-term use of the environment and the
maintenance and enhancement of long-term productivity, and
(v)
any irreversible and irretrievable commitments of resources which would
be involved in the proposed action should it be implemented.
(4)
study, develop, and describe appropriate alternatives to recommended courses of
action in any proposal which involves unresolved conflicts concerning alternative
uses of available resources;
(5)
make available to other Indian tribes and Nations, states, and federal agencies and
offices advice and information useful in restoring, maintaining, and enhancing the
quality of their environment;
(6)
initiate and utilize ecological information in the planning and development of
natural resource oriented projects; and
(7)
assure DECS review and approval of applicable environmental impact statements
as required by the NEPA, the Pawnee Nation, and/or Federal agencies.
(8)
Violation of this Section may result in an order or preliminary injunction to
temporarily stop the actions by the defendant until it complies with its
responsibilities under the environmental and natural resource policies of the
Pawnee Nation and federal agencies. Violations of this section may result in
criminal or civil prosecution.
Section 205. Conformity of Administrative Procedures
All departments of the Pawnee Nation shall review their present statutory authority,
administrative regulations, and current policies and procedures for the purpose of determining
whether there are any deficiencies or inconsistencies therein which prohibit full compliance
herein, report findings to the DECS, and take all measures as may be necessary to bring their
authority and policies into conformity with the intent, purpose and procedures set forth in this
Article.
Section 206. Statutory Obligations
Nothing in this Act shall in any way affect the specific statutory obligations of any
department:
(a)
(b)
(c)
To comply with criteria or standards of environmental quality;
To coordinate or consult with any other department or intergovernmental agency, or;
To act, or refrain from acting contingent upon the recommendations or certification of
any other department.
Section 207. Policy Supplementary
The policies and goals set forth in this Act are supplementary to those set forth in existing or
future authorizations of divisions, departments, and programs of the Pawnee Nation.
CHAPTER THREE – General Enforcement Provisions
Section 301. Purpose.
The purpose of this Chapter is to provide generalized enforcement provisions for the
implementation of this Act. The General Enforcement Provisions shall apply to all Chapters in
this Act unless media specific enforcement provisions are otherwise provided.
Section 302. General Enforcement Authority
(a)
(b)
General Authority. Whenever, on the basis of any information available to the Director ,
the Director finds that any person (including the Pawnee Nation and any instrumentality
of the Pawnee Nation) has violated, or is in violation of any requirement or prohibition of
this Act, its laws, the regulations promulgated under this Act, or permits, orders, plans,
programs or fees issued or developed pursuant to this Act, the Director may:
(1)
Issue and serve on such person an order requiring such person to comply with
such requirement or prohibition, including an emergency order to comply,
pursuant to the provisions of this section;
(2)
Issue and serve on such person an administrative penalty order in accordance with
section 304 of this Act;
(3)
Issue and serve on such person a criminal citation and/or arrest in accordance to
the Act;
(4)
Issue and serve on such person an “expedited enforcement action” (nonadjudicated action) in accordance to section 311 of this Act;
(5)
Request that the Attorney General bring a civil action, including an action for
injunctive relief in accordance with this Act; and/or
(6)
Request that the Pawnee Nation Prosecutor’s Office bring a criminal action in
accordance with this Act and/or refer any criminal enforcement action or portion
of such action to the appropriate court of jurisdiction.
Requirements for orders to comply.
(1)
An order issued under subsection (a)1 or (a)2 of this section shall state with
reasonable specificity the nature of the violation, shall state that the alleged
violator is entitled to a hearing pursuant to regulations of the Pawnee Nation, if
such hearing is requested in writing within 30 calendar days after the date of
issuance of the order, and shall specify a time for compliance that the Director or
Commission determines is as expeditious as practicable, taking into account the
seriousness of the violation and any good faith efforts to comply with applicable
requirements.
(2)
The order shall become effective immediately upon the expiration of the 30
calendar days if no hearing is requested and, if a timely request for a hearing is
made, upon the decision of the Director or Commission.
(3)
The order may be conditional and require a person to refrain from particular acts
unless certain conditions are met.
(4)
A copy of the order may be sent to the appropriate U.S. EPA region and, if the
order is issued to a corporation, to the appropriate corporate officers and
registered agent of the corporation.
(5)
No order to comply issued under this section shall prevent the Pawnee Nation
from assessing any penalties or otherwise affect or limit the Pawnee Nation’s
authority to enforce under other provisions of this Act, or affect any person’s
(c)
(d)
(e)
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 compliance orders.
(1)
Notwithstanding any permit issued under this Act, if the Director determines that
discharge of, or exposure to a pollutant is presenting an imminent and substantial
endangerment to public health or welfare or the environment and determines, in
consultation with the Attorney General, 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 Director may issue such
orders as may be necessary to protect public health or welfare or the environment.
(2)
Such orders 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 days,
unless the Director brings an action pursuant to subsection (e) of this section
within the 60-day period. If the Director brings such an action, the order shall
remain in effect for an additional 14 days or for such longer period as may be
authorized by the court in which such action is brought.
Enforcement of compliance orders. Enforcement actions of the Director shall be enforced
by the Pawnee Nation Department of Environmental Conservation and Safety (Rangers,
Inspectors), Pawnee Nation Law Enforcement Officers,, the Pawnee Nation Prosecutors
Office, and/or Pawnee Nation Environmental Regulatory Commission as authorized by
regulations. Those authorized to enforce the Director’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:
(1)
Entering upon any property or establishment believed to be violating the order
and demanding compliance; and
(2)
Terminating operations at facilities not in compliance.
Injunctive relief. The Director may seek injunctive relief pursuant to 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 any activity affecting the natural resources of
Pawnee Nation.
Section 303. Penalties
(a)
Civil penalties. The Director may request the Attorney General to 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 $100 and not more than $25,000 per day per violation, or be banished from the
Pawnee Nation for a term of not more than ten years, or both in any of the following
instances:
(1)
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;
(2)
Whenever a person has violated, or is in violation of, any duty to allow or carry
out inspection, entry or monitoring activities; or
(3)
Whenever a person is creating an imminent and substantial endangerment to the
public health or the environment, in which case the Director shall request the
Attorney General to pursue injunctive relief but not the assessment of civil
(b)
(c)
(d)
penalties, unless the endangerment is caused by a violation, as specified in
paragraphs 1 and 2.
Criminal penalties.
(1)
Any person who:
(i)
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 or an order issued pursuant to this Act; or
(ii)
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 or an order issued pursuant to
this Act; or
(iii)
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 or an order issued pursuant to this Act; shall, upon conviction,
(2)
be punished by a fine of not less than One Hundred Dollars ($100) nor more than
Twenty Five Thousand Dollars ($25,000) per violation, or imprisonment for not
more than one year, or both, or be subject to any other penalty imposed by the
court that is available under Pawnee Nation law.
(3)
The fine amount for violation of this code is One Hundred Dollars ($100) per
violation unless otherwise specified. Each day a violation occurs is a separate
violation.
(4)
In any instance where the Nation lacks jurisdiction over the person charged, or
where the Director is limited in the amount of the fine that he may impose, the
Director may refer the action to the appropriate Tribal, State, or Federal authority
pursuant to this Act. For the purpose of this subsection, the term “person”
includes any responsible corporate officer.
Jurisdiction and venue. Any action under this section shall be brought in the Pawnee
Nation District Court in Pawnee, Oklahoma, 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
Nation under this Act, and award any other appropriate relief.
Calculation of penalties
(1)
For purposes of determining the number of days of violation for which a penalty
may be assessed under this Act, if the Director 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 Pawnee Nation District
Court that alleges any violation described in subsection (a) of this section.
(2)
(e)
In determining the amount of a penalty assessed under this Act, in addition to the
statutory amounts of penalties and fines provided, the court shall consider 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. For purposes of Chapter IV of this Act (Water Resource Protection), a
single operational upset which leads to simultaneous violations of more than one
pollutant parameter shall be treated as a single violation.
(3)
All penalties collected pursuant to this section shall be deposited into the
Environmental Regulatory Revolving Fund established pursuant to section 308.
(4)
In lieu of or in addition to a monetary penalty, the Director may impose or may
request the Prosecutor or Attorney General to seek from the court a requirement
to remediate the damage caused or to perform community service, or both.
Failure to pay civil penalty.
(1)
If any person fails to pay an assessment of a civil penalty, the Director shall
request the Attorney General to bring a civil action in the Pawnee Nation District
Court to enforce the 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 assessment shall not be subject to review.
(2)
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 Director’s enforcement expenses, including but not limited to attorneys’ fees
and costs of collection proceedings.
(3)
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 Director may
by regulation establish higher penalties to take into account situations where the
prime rate is higher.
Section 304. Administrative Assessment of Penalties
(a)
Basis for penalty.
(1)
The Director or Commission may issue against any person an administrative order
assessing a civil administrative penalty of up to Ten Thousand Dollars ($10,000)
per day per violation whenever the Director finds that a person has violated, or is
in violation of, any provision, requirement or prohibition of any regulation
authorized by this Act. The Director and Commission’s authority under this
subsection, combined with actions under subsection (c), shall be limited to
matters where the total penalty sought does not exceed One Hundred Thousand
Dollars ($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 Director
and/or Commission, and Attorney General jointly determine that a matter
involving a larger penalty or longer period of violation is appropriate for
administrative penalty action.
(2)
The communications required to make such a joint determination and the
method(s) utilized for making such a joint determination shall be privileged, and
(b)
(c)
(d)
(e)
(f)
shall not be subject to judicial review. The Director may compromise, modify or
remit, with or without any conditions, any administrative penalty imposed under
this section.
Hearing requirement. Any person assessed an administrative penalty under this section
may request a hearing, pursuant to the Administrative Procedures Act.
Field citations. The Director may implement a field citation program for minor violations
for which field citations (assessing civil penalties not to exceed One Thousand Dollars
($1,000) per day per violation may be issued by officers or employees designated by the
Director, for any violation for which an administrative order could be issued to the extent
permissible under applicable law. Any person on whom a field citation is assessed may,
pursuant to regulations issued under this section, elect to pay the penalty or request a
hearing on the citation. If a timely request for a hearing is not made, the penalty shall be
final and the opportunity for judicial review shall be waived. Any hearing shall provide a
reasonable opportunity to be heard and to present evidence. Payment of a penalty
required by a field citation shall not be a defense to further enforcement by the Director
to correct a violation or to assess the statutory maximum penalty pursuant to other
authorities in this Act, except as to the days of violation for which the penalty required by
a field citation is paid.
Judicial review. Any person subject to a civil penalty under subsections (a) or (c) of this
section may seek review of such penalty assessment in the Pawnee Nation District Court
pursuant to the Administrative Procedures Act.
Failure to pay penalty. If any person fails to comply with an administrative penalty order
after the order or assessment has become final, the Director shall request the Attorney
General to bring a civil action in the Pawnee Nation District Court to enforce the 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 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
Director’s 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 Director or
Commission 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 Director or the court, as appropriate, shall take into consideration the
factors enumerated in section 303(d) of this Act.
Section 305. Citizen Suits
(a)
Authority to bring civil action; jurisdiction
(1)
Except as provided in subsection (b) of this section, a person may commence a
civil action in the Pawnee Nation District Court on his or her own behalf against
any person (except the Pawnee Nation or any instrumentality of the Pawnee
Nation) who is alleged to be 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.
(2)
(b)
(c)
(d)
(e)
The Pawnee Nation courts shall have jurisdiction to enforce such provision,
prohibition, regulation, plan, permit, order, fee or other requirement, to restrain
such violation, to order such person to take such other action as may be necessary
and to apply any appropriate civil penalties.
Notice. An action may not be commenced under subsection (a)1. of this section fewer
than 60 days after the plaintiff has given notice of the alleged violation to the Director,
the Pawnee Nation and the alleged violator. In addition, an action may not be commenced
if the Director has commenced and is diligently prosecuting a civil action in court to
require compliance with this Act, except that any person may intervene as a matter of
right in such an action.
Venue; intervention; service of complaint
(1)
Any action under this section may be brought only in the Pawnee Nation District
Court.
(2)
The Director, if not already a party, may intervene as of right in any action
brought under this section.
(3)
Whenever any action is brought under this section the plaintiff shall serve a copy
of the complaint on the Attorney General and on the Director. No consent
judgment may be entered in an action brought under this section in which the
Director is not a party prior to 45 days following the receipt of a copy of the
proposed consent judgment by the Attorney General and the Director, during
which time the Attorney General and/or the Director may submit, on behalf of the
Pawnee Nation, their comments on the proposed consent judgment to the court
and parties or the Director may intervene as a matter of right.
Award of costs. The court, in issuing a final order in an action brought under this section,
may award costs of litigation (including reasonable attorney and expert witness fees) to
any prevailing or substantially prevailing party whenever the court determines that such
award is appropriate.
Use of penalties. All penalties collected pursuant to this section shall be deposited into
the Environmental Regulatory Revolving Fund established pursuant to section 310.
Section 306. Inspections and Records
(a)
(b)
(c)
Any duly authorized representative of the Pawnee Nation, DECS, or ERC as relevant
shall have the power to enter at any time upon any private or public property, within the
jurisdiction of the Pawnee Nation, for the purpose of monitoring, sampling, inspecting,
and investigating conditions relating to the condition and/or damage to fish, wildlife,
other natural resources, or the possible pollution or impairment of any air, land, waters, or
any other natural resource of the Pawnee Nation, or the environment or relating to any
other environmental or permitting responsibility authorized by law.
The Pawnee Nation, DECS, or ERC as relevant may require the establishment and
maintenance of records and reports relating to any activity regulated by them. Copies of
such records shall be submitted to the DECS or ERC, as relevant, upon request. Any
authorized representative of the DECS or ERC shall be allowed access and may examine
such reports or records.
The Pawnee Nation, DECS, or ERC as relevant may apply to and obtain from a judge of
the District Court of the Pawnee Nation, or appropriate court, an order authorizing a
warrant to enforce access to premises for sampling, investigation, inquiry and inspection
under the provisions of this Act and regulations promulgated hereunder. Failure to obey
an administrative warrant of the district court may be punished by the district court as a
contempt of court.
(d)
The Pawnee Nation may commission DECS staff and/or appoint commissioned peace
officers to investigate noncompliance and provide criminal enforcement of this Act.
Section 307. Pollution Unlawful.
It shall be unlawful for any person to cause pollution or damage of any air, water, land or
natural resources of the Nation, or to place or cause to be placed any wastes or pollutants in a
location where they are likely to cause pollution of any air, water, land or resources of the
Nation. Any such action is hereby declared, at minimum, to be a public nuisance and may be
subject to the criminal penalties under Title VI Section 605 of this Code and/or other criminal or
civil provisions of this Code.
Section 308. Environmental Regulatory Revolving Fund
There is hereby created a revolving fund for the use by the DECS and ERC, to be designated
the "Environmental Regulatory Revolving Fund." The fund shall be a continuing fund, not
subject to fiscal year limitations, and shall consist of all monies received from appropriations,
administrative penalties, fees, charges, gifts and monies from any other source that are not
designated for deposit to any other fund authorized by this Act. All monies accruing to the credit
of said fund are hereby appropriated and may be budgeted and expended by the DECS for the
purpose of implementing and enforcing this Act.
Section 309. Culpability
Any person(s) who is willfully and, knowingly or unknowingly in violation of this Act shall
be held responsible and liable for their actions whether with or without knowledge of this Act, its
prohibitions, and/or the jurisdiction or ownership of land, air, or water resources potentially
and/or directly impacted as a result of their violation. The Pawnee Nation, ERC, DECS, its staff,
and/or designated agents shall not be held liable for loss of property, time and/or revenues
(earned or lost, actual or estimated), damages, or claims incurred while operating under the
authority of this Act.
Section 310. Appeals
Any party aggrieved by a final order, including the Pawnee Nation, may,
pursuant to the Pawnee Nation of Oklahoma Law and Order Code and Pawnee Nation
Administrative Procedures Act as appropriate, petition for a judicial review
thereof, in the District Court of the Pawnee Nation.
Section 311. Expedited Enforcement Action-- (Departmental Action)
(a)
Any person(s) found in violation of this Act may be served with an expedited
enforcement action also known as a Compliance Order/Settlement Agreement (COSA)
and is issued by enforcement officers of the Pawnee Nation. The COSA is a nonjudicatory action and may be issued for minor violations of provisions of this Act. The
Pawnee Nation will issue a COSA both a compliance order and as a settlement agreement
to the violator. The COSA will identify violation(s), prescribe corrective action, monetary
penalty, and a time line for achieving settlement or compliance with the terms of the
agreement. The COSA cannot be appealed. Persons not accepting the terms of the COSA
may be subject to formal enforcement actions. Penalty shall not exceed $1,000 dollars per
day, per violation.
(b)
The Compliance Order and Settlement Agreement form consist of two parts:
(1)
Part I: Compliance Order
The Compliance Order is not a adjudicatory proceeding under Title III of the
Pawnee Nation Law and Order Code. It is issued solely with reference to the
Settlement Agreement in Part II of the form. The Compliance Order serves to
provide notification of code violation(s) to violator with associated civil penalties.
Upon receiving the Compliance Order, the violator may option to pay the
disclosed penalty amount(s) within the 30 day period in accordance to conditions
indicated in the Settlement Agreement, or be subject to civil action not limited by
the Pawnee Nation for each code violation.
(2)
Part II: Settlement Agreement
The Settlement Agreement provide opportunity for violator to provide
settlement of all violations indicated, avoiding further civil and/or criminal
action by the court for all violations indicated in the Compliance Order and
Settlement Agreement. Failure to provide settlement in accordance to the terms
of the agreement may result in adjudicated action (civil and/or criminal) by the
Pawnee Nation and/or other courts of jurisdiction.
CHAPTER FOUR – Water Resource Protection
Section 401. Declaration of Policy and Authority
(a)
(b)
(c)
The Pawnee Nation is the owner in perpetuity of the full equitable title to the rights to the
use of all waters of the Pawnee Indian Reservation as established by the United States
Congress on April 10, 1876 (19 Stat., 28), and that title resides undiminished in the
Pawnee Nation. The Pawnee Nation holds its prior, exclusive and supreme rights in,
ownership of, and jurisdiction over all waters of the Pawnee Nation for all purposes. No
rights of privilege of any kind, from whatever source, shall be recognized or granted
unless the same shall be subject to the overriding, prior and supreme right and interest of
the Pawnee Nation, and the provisions contained under this law,
Any water permit issued under authority of this law constitutes nothing more than a
revocable permission to the use of the water resource of the Pawnee Nation, subject to the
terms and conditions of the permit, this law, and its regulations. Nothing under this law
shall authorize any permanent, vested right to the use of water resources of the Pawnee
Nation, power authorizing such use being the Pawnee Business Council subject to the
approval by the Secretary of the Interior as provided by federal law.
The objective of this Chapter is to protect and improve the chemical, physical, and
biological integrity of the waters within Pawnee Indian Country. Whereas the pollution of
the waters within Pawnee Indian Country constitutes a menace to public health and
welfare, creates public nuisances, is harmful to wildlife, fish and aquatic life, and impairs
domestic, agricultural, industrial, recreational, cultural, and other legitimate beneficial
uses of water, it is hereby declared to be the public policy of the Pawnee Nation to
recognize, conserve, and utilize the water resources within Pawnee Indian Country and to
protect, maintain, and improve the quality and quantity thereof for public water supplies,
for the propagation of wildlife, fish and aquatic life and for domestic, agricultural,
industrial, recreational, cultural, and other legitimate beneficial uses. In order to achieve
this objective it is hereby declared that:
(1)
It is the Nation’s goal to insure an adequate quantity of clean water resources to
provide for its current needs and uses, and all reserved rights and future uses of
water resources to sustain the economic security, political integrity, cultural, and
domestic health and welfare of a sovereign nation for the benefit of its current and
future generation
(2)
it is the Nation’s goal that the introduction of pollutants into the waters within
Pawnee Indian County be eliminated;
(3)
it is the Nation’s goal that wherever attainable, an interim goal of water quality
and quantity which provides for the protection and propagation of fish, shellfish,
and wildlife and provides for recreational or cultural use in and on the water be
achieved;
(4)
it is the Nation’s goal to protect the public health, welfare, and safety from
drilling, construction, and alteration of wells within the Pawnee Nation that affect
the quantity and quality of ground water of the Pawnee Nation;
(5)
it is the Nation’s policy that the discharge of toxic pollutants in significant
amounts be prohibited;
(6)
it is the Nation’s policy to actively participate in the federal regulatory process for
the purpose issuing and enforcing discharge permits within Pawnee Indian
(d)
Country to assure adequate control of water quality of the waters within Pawnee
Indian Country;
(7)
it is the Nation’s policy that programs for the control of point sources and nonpoint sources of pollution be developed and implemented in an expeditious
manner so as to enable the goals of this Chapter to be met through the control of
both point and non-point sources of pollution; and
(8)
it is further the policy of the Nation that the President of the Pawnee Business
Council shall take such action as may be necessary to insure that to the fullest
extent possible all surrounding states and Tribes take meaningful action for the
prevention, reduction, and elimination of pollution into the waters within Pawnee
Indian Country and for the achievement of goals regarding the elimination of
discharge of pollutants and the improvement of water quality to at least the same
extent as the Nation does under its laws.
This Chapter asserts the authority of the Pawnee Nation to implement the goals and
policies of the Nation to:
(1)
Protect the water resources of the Pawnee Nation from over appropriation,
pollution, contamination, degradation, or other acts injurious to the water
resources.
(2)
Restore, maintain and improve the chemical, physical and biological integrity of
water resources of the Pawnee Nation.
(3)
Utilize area-wide planning and management to control sewage and other
discharges.
(4)
Assert and defend the Pawnee Nation legal rights and claims to surface waters,
wetlands, ground waters and related natural resources including fish, wildlife,
plants, critical habitats, and ecological processes to support these aquatic
resources.
(5)
Monitor and ensure that the United States and surrounding states and nations take
meaningful action to protect water quality and quantity, and comply with
applicable laws for the protection of resources, whenever their actions or inaction
may harm the Nation’s waters or resources.
(6)
Establish provisions for the regulation and licensing of well contractors and
operators and for the regulations of well design and construction.
(7)
Hold anyone who has, without authorization, used or damaged the Nation’s
waters, aquatic life or its habitat, or related natural resources accountable for
restoring the same to their original condition or compensating the Nation for such
damage or unauthorized use.
(8)
Identify and protect waters and resources of the Nation with special cultural or
historical significance, and develop and enforce such standards and antidegradation provisions as may be appropriate for such purposes.
(9)
Identify, protect, preserve, or restore water resources to support both existing and
reserved uses.
(10) Engage in planning and participate in decision-making to assure that the Nation’s
waters and related natural resources are developed in a manner consistent with the
goal of long-term, sustainable use and protection for future generations.
(11) Prohibit the discharge of toxic pollutants in toxic amounts and, to the extent
practicable eliminate, or effectively control, the discharge of pollutants from any
source.
(12)
(13)
(14)
Require environmental review of proposed activities which may cause individual
or cumulative adverse impacts to water quality, natural resources, public health,
lands, recreation, cultural or historical values, air, quality of life, or other aspects
of the Nation’s environment;
Require projects to be modified to avoid adverse impacts if possible, to minimize
unavoidable impacts, and provide full mitigation for unavoidable impacts.
Prohibit or regulate activities which may cause or contribute to a violation of this
Chapter and applicable water quality standards, or a violation of federal law.
Section 402. Definitions
For the purpose of this article:
(a)
"Agency" means any executive department, division, bureau, or other unit of the federal,
state, or Tribal government, or political subdivision of the state, or a regional water
quality entity, which has been granted lawful authority to enter into contracts or
agreements and which has been assigned or is subject to legal obligations to restore,
maintain, or protect water quality in the drainage of the watersheds within Pawnee Indian
Country.
(b)
“Agricultural resources” means soil, livestock, crops, water resources, or any part of
which is of agricultural use.
(c)
“Best Management Practices” (BMP) means schedules of activities, operational practices,
maintenance procedures, and other management practices adopted by rule or incorporated
by an agency as a condition of a permit or contract to prevent or reduce the pollution of
Pawnee waters. BMPs may also include treatment requirements, operating procedures,
and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or
drainage from raw material storage, and includes the definition found in 40 CFR Section
122.2.
(d)
“Commission” means the Pawnee Environmental Regulatory Commission.
(e)
“Concentrated animal feeding operation” means a confined commercial facility
containing livestock or birds fed by means other than grazing, and which facility is a
point source subject to effluent standards and limitations as provided by rule.
(f)
“Concentrated aquatic animal production facility,” means a fish hatchery, fish farm,
beaver farm, or other facility, which may be designated by rule as a point source upon
determining that it is a significant contributor of pollution to Pawnee waters.
(g)
"Contamination" means impairment of the quality of water by pollutants, creating a
hazard to human health, agricultural resources, aquatic life, wildlife, and plant life.
(h)
"Department" or “DECS” means the Pawnee Nation Department of Environmental
Conservation and Safety.
(i)
“Director” means the Director of the Pawnee Nation Department of Environmental
Conservation and Safety or its designee.
(j)
“Discharge of a pollutant" or "discharge" means any addition of a pollutant or
combination of pollutants to Pawnee waters from any point source.
(k)
"Disposal system" means a system for disposing of sewage, industrial wastes, or other
pollutants and includes sewage systems and treatment works.
(l)
"Effluent limitation" means any restriction or prohibition established under this Chapter
or by the Environmental Protection Agency on quantities, discharge rates, and
concentrations of chemical, physical, and biological constituents which are discharged
from point sources into Pawnee waters, including, but not limited to, standards of
performance for new sources, and schedules of compliance.
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
“Nation” means the Pawnee Nation of Oklahoma.
"Nonpoint source" means Pollution that is generated by distributed land use activities
rather than from an identifiable or discrete source and is conveyed to waterways through
natural processes, such as rainfall, storm water runoff, or groundwater seepage rather
than direct discharges.
"Owner or operator" means any person who owns, leases, operates, controls, or
supervises:
(1)
a source, or
(2)
real property, the operation or maintenance of which is subject to the application
of best management practices.
“Pawnee Indian Country” means all areas of Land under Pawnee Nation jurisdiction.
“Pawnee reservation” means all land, air, water, and mineral resources (all individual and
tribal trust lands and fee land) within the original boundary of the Pawnee nation as
established by the Act of April 10, 1876. See 19 Stat., 28.
“Pawnee water” means all the waters, surface and ground, supplying, arising upon,
occurring within, flowing through, and bordering upon, the boundaries of the Pawnee
Reservation as established in 1876.
"Permit" means a permit issued pursuant to Section 611 of this Chapter or by the Federal
government
“Person” means an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, government, governmental
subdivision, agency, or instrumentality, public corporation, or any other legal or
commercial entity.
"Point source" means any discernible, confined, and discrete conveyance, including any
pipe, ditch, channel, tunnel, conduit, container, casing, dam gate or spillway, well,
discrete fissure, container, rolling stock, or vessel or other floating craft, confined animal
feeding operations and landfill leachate collection systems, petroleum production lease
lines or underground injection system lines from which pollutants are or may be
discharged.
“Pollution” or “pollutant” means any contamination or alteration of the physical,
chemical, or biological properties of any waters that will render the waters harmful or
detrimental to:
(1)
Public health, safety, or welfare
(2)
Domestic, commercial, industrial, agricultural, recreational, or other legitimate
beneficial uses
(3)
Livestock, wild animals, or birds
(4)
Fish or other aquatic life
"Schedule of compliance" means a schedule of remedial measures and times including an
enforceable sequence of actions or operations leading to compliance with any Tribal or
federal regulation of discharges by point sources or pollution by nonpoint sources.
"Source" means any building, structure, facility, devise, vessel, container, or installation
from which there is or may be a discharge of pollution.
"Standard of performance" means a standard adopted by rule for the control of the
discharge of pollutants which reflects the greatest degree of effluent reduction achievable
through application of the best available demonstrated control technology, processes,
operating methods, or other alternatives, including, a standard permitting no discharge of
pollutants.
(z)
(aa)
"Treatment works,” means works or facilities installed for treating or holding sewage,
industrial wastes, or other wastes.
"Water quality standard" means any standard adopted pursuant to this Chapter or the
CWA.
Section 403. Administration and Authority
(a)
(b)
The provisions of this Chapter will be administered and enforced by the Pawnee Nation
through its Department of Environmental Conservation and Safety (DECS), which is
hereby designated as the Tribal Water Resource Protection Agency for all purposes of the
United States Clean Water Act, 33 U.S.C. §1251 et seq. (hereafter " CWA"). The Pawnee
Nation Environmental Regulatory Commission is hereby responsible for the development
and administration of regulations as authorized in this Chapter.
Authority of the Department of Environmental Conservation and Safety.
The DECS shall have the authority and the responsibility of the following:
(1)
Carry out the implementation and enforcement provisions of this Chapter,
including enforcement of civil penalty provisions, criminal prosecution of
violators and such other administrative and judicial relief as may be appropriate;
(2)
Administer waste discharge permit system as provided in this Chapter;
(3)
Monitor waste discharges and the water resources of the Pawnee Nation;
(4)
Recommend to the Pawnee Business Council the adoption, modification, or repeal
of laws and regulations; and recommend to the Commission the adoption,
modification, or repeal of regulations, to accomplish the goals of this act;
(5)
To enter and inspect at any time and in any manner any open property, premise,
or place for the purpose of investigating any activity causing, threatening or
allowing water pollution, or ascertaining compliance or noncompliance with any
rule or order promulgated under this Chapter. Such entry is also authorized in
regulated businesses for the purpose of inspecting and copying records required to
be kept concerning any effluent source;
(6)
To obtain from the Tribal Court or other appropriate court a warrant to enter and
inspect any private property, premise, or place, prior to entry and inspection;
(7)
To stop or detain any vehicle, instrument, or person(s) observed or suspected to
be in violation of this Chapter, with or without warrant for the purpose of
investigation, enforcement, arrest, inspection, issuance of citation, notice to
appear order, or detainment on behalf of other local, state, tribal, or federal
agency;
(8)
To issue emergency orders and to bring or defend enforcement action in Tribal
Court or appropriate court to enforce the provisions of this Chapter;
(9)
Issue swimming, fishing, or other advisories related to human and animal health
hazards;
(10) To conduct or cause to be conducted studies, research, and demonstrations with
respect to the reduction or prevention of water pollution;
(11) To furnish technical advice and services relating to water pollution problems and
control techniques;
(12) To advise, consult, cooperate, and, with Council approval, to enter into
agreements with agencies, private nonprofit corporations, and owners or operators
affected by the provisions of this Chapter; but any agreement involving,
authorizing, or requiring compliance within the Pawnee Indian Country with any
standard, rule or regulation of another jurisdiction shall not be effective unless or
until the Department or the Council have provided approval;
(13)
(c)
(d)
To certify facilities or activities subject to Tribal or federal licensing
requirements;
(14) To issue, modify, or revoke permits pursuant to this Chapter, and to grant or deny
variances;
(15) Develop comprehensive programs for the prevention, control and abatement of
new or existing pollution of the waters of this Nation;
(16) Require or conduct monitoring and testing of waters and discharges, and the
submission of reports or laboratory analyses performed by laboratories or
operators;
(17) Require the submission of plans, specifications and other data in connection with
the issuance of permits or certifications required pursuant to this article;
(18) Issue, modify, or revoke orders requiring other actions such as the Pawnee
Business Council or Commission may deem necessary to enforce the provisions
of this article, and the laws and regulations promulgated there-under.
Authority of the Environmental Regulatory Commission
The Commission shall have the Authority and Responsibility pursuant to this act to:
(1)
Develop comprehensive regulatory process for the management of sufficient
water resources to fulfill the beneficial water needs of the Pawnee Nation as
necessary in order to sustain the social and economic advancement of the Nation;
(2)
Require the submission of plans, specifications and other data in connection with
the issuance of regulatory permits required pursuant to this law;Issue, continue in
effect, revoke, amend, modify, condition, deny, renew, or refuse to renew permits,
licenses, water quality certifications and other authorizations as issued by the
commission;
(3)
Establish a schedule of fees for permits, studies, laboratory services or technical
assistance and for recovering copy and other costs in response to open records
requests;
(4)
Issue, modify, or revoke orders requiring the construction of new disposal or
treatment systems or the modification or extension of existing systems, or the
adoption of other remedial measures to prevent, control or abate pollution; and
(5)
Issue, modify, or revoke orders requiring other actions such as the Commission
may deem necessary to enforce the provisions of this article and regulations
promulgated there-under.
Emergencies.
Whenever the Director determines, after investigation, that any person is engaged in an
activity causing, threatening, or allowing the discharge or contamination of a pollutant
onto the land or into Pawnee waters, which pollution, in the opinion of the Director,
constitutes a clear, present, and immediate danger to human health or to the livelihood of
Pawnee people, the Director shall issue a verbal or written order to said person that he
must immediately cease or prevent the discharge of such pollutant into such waters and
thereupon such person shall immediately discontinue such discharge. Concurrently with
the issuance of such order, the Department shall initiate appropriate enforcement action
against the responsible party.
Section 404. Water Pollution Control
The DECS shall develop comprehensive programs for preventing, reducing, or eliminating
the pollution of the waters and ground waters of the Nation. DECS shall make reasonable efforts
to cooperate with neighboring jurisdictions and persons that are affected by the programs. In the
development of such programs due regard shall be given to the improvements which are
necessary to conserve such waters for the protection and propagation of fish and aquatic life and
wildlife, recreational purposes, and the withdrawal of such waters for public water supply,
agricultural, industrial, and other purposes. Programs may include Dredge or Filled Material
(CWA 404 Permits), National Permit Discharge Elimination System (CWA 402 Permits), joint
NPDES Permitting, or Tribal Certification of Federal Permits and Licenses. The Director is
authorized to initiate or make joint investigations with any such agencies of the condition of any
waters in any state or Tribe affecting the waters of the Nation, and of the discharges of any
sewage, industrial wastes, or any substance derived from point source or non point source
pollutants which may adversely affect such waters.
Section 405. Cooperative Agreements
The DECS may negotiate with the U. S. Environmental Protection Agency for the purpose of
establishing and entering into a Cooperative Agreement, Joint Permitting, Permitting, or
Certifications for administration of NPDES programs and water pollution control programs
including but not limited to monitoring, inspections, certifications, and enforcement.
Section 406. In-place Pollutants
The DECS is authorized to identify the location of in place pollutants with emphasis on toxic
pollutants in Pawnee Nation waters, and is authorized, subject to Pawnee Business Council
approval, to negotiate contracts for the removal and appropriate disposal of such materials in
order to assure protection of both surface and ground water resources.
Section 407. Water Quality Certification
The Pawnee Nation Business Council hereby establishes the Pawnee Nation Water Quality
Certification program and authorizes the Director to develop, direct, administer, and enforce all
Certifications issued pursuant to this Chapter. Upon fulfillment of all federal conditions for
approval of its certification program, the Director may certify compliance with all applicable
water quality requirements by an applicant for a federal license or permit to conduct any activity
within Pawnee Indian Country which may result in a discharge into Pawnee waters. Such activity
may include the construction or operation of facilities pursuant to such federal permit or license.
Section 408. Unlawful Acts-Penalties
(a)
Unlawful acts: The following unlawful acts are each a crime and subject to enforcement
provisions of this Law and other laws of the Pawnee Nation, unless the proper entity has
first obtained a permit or written authorization from the Pawnee Nation as authorized
under this Law:
(1)
(2)
(3)
(4)
It is unlawful for any person to divert, withdraw, or otherwise make any use of, or
take any action of what ever kind substantially affecting, the waters of the Pawnee
Nation unless authorized to do so pursuant to the provision of this law;
It is unlawful to for any person to cause pollution to be introduced into any waters
within Pawnee Indian Country or to place or cause to be placed any contaminant
or waste in a location upon the lands where they are likely to cause pollution of
any water within Pawnee Indian Country;
It is unlawful to violate any provision set forth in any permit or certification
issued within Pawnee Indian Country;
It is unlawful to violate any provision set forth by any order issued pursuant to
this Chapter;
(5)
(b)
(c)
It is unlawful to cause a violation of any numeric or narrative criteria established
within the Pawnee Nation Water Quality Standard or Pawnee Nation Ground
Water Quality Standard, or any provision of any other applicable water quality
standard;
(6)
It is unlawful to violate any provision of this Chapter or any control regulation or
rule promulgated pursuant to this Chapter;
(7)
It is unlawful to construct, modify, or operate any pollution disposal system
within Pawnee Indian Country without having a current permit authorizing such
activity;
(8)
It is unlawful to construct or use without permit any outlet for the discharge of
sewage, industrial waste, petroleum waste, brine water, or any other pollutant or
wastes onto the lands or into any waters within Pawnee Indian Country;
(9)
It is unlawful to construct, use, or operate any outlet used for draining secondary
containment of spilled product or contaminated storm water in a manner which is
not permitted or otherwise authorized under 40 CFR Part 112 and the laws and
regulations of the Pawnee nation.
(10) It is unlawful to conduct dredge and fill activities in or adjacent to waters of the
Nation or violate any permit provision or condition thereof.
(11) It is unlawful to land apply or dispose of any waste, waste water or sludge without
permit.
(12) It is unlawful to operate any motor vehicle (agricultural, off road, or highway),
water craft, or machinery upon any air, land, or water in any unsafe or illegal
manner that may have potential for release or results in a release of any pollutant
onto the lands or into any waters within Pawnee Indian Country (including
railway crossing violation, bridge crossing violations, and other moving violations
such as careless or reckless operations, speed restrictions and other posted signage
violations);
(13) It is unlawful to violate any Tribal Notice of Violation, Corrective Action, Order,
Certification or permit issued under the authority of this Chapter, or any other Act
or code of the Pawnee Nation for the purpose of water quality protection.
(14) It is unlawful to discharge any pollutant on to the land or into Pawnee waters
without having first obtained a permit from the Pawnee Nation or USEPA for
such discharge. Neither a permit issued pursuant to this Chapter nor an
application therefore creates or recognizes a right in the permit holder or applicant
to use Pawnee waters for beneficial purposes or any other property right or
interest.
The Director may establish specific exemptions to the requirements of this section by
regulation pursuant to the Administrative Procedures Act.
Penalties:
(1)
Any person suspected by an investigating enforcement officer to be in violation of
this section may be issued a citation for such offence.
(2)
Violations may be remedied by either civil or criminal damages or sanctions. The
maximum criminal penalty per violation for violators subject to the criminal
jurisdiction of the Pawnee Nation shall be $1000.00 per violation or up to one
year imprisonment, community service, or any combination thereof.
(3)
The maximum civil penalty for any person in violation of this section is $1000.00
per violation, injunctive relief, or banishment from the jurisdiction of the Pawnee
Nation for up to one year, or any combination thereof.
(4)
(5)
(6)
(7)
Maximum monetary penalty shall not exceed $5,000 for criminal or civil penalty
per violation.
The Court may also award actual and punitive damages.
Continuing violations shall be considered a new violation for each 24 hour period.
Enforcement of provisions of this section does not diminish the Pawnee Nation’s
ability to enforce and seek penalty as prescribed in other sections of this Act.
Penalties for violation of this section are as established in Chapter III of Title XII
of this Law and Order Code.
Section 409. Specific Provisions
The provisions given in Sections 410, 411, 412, 413, and 414 are protective of the natural
and cultural resources of the Pawnee Nation and shall require authorization or permit by the
Pawnee Nation. Any person not having lawful authorization or Pawnee Nation permit and are
suspected by an investigating enforcement officer to be in violation of these provisions may be
subject to arrest, citation, notice to appear, expedited enforcement action, or other order by the
enforcement officer for such offence. Persons having authorization or permit but are found in
violation of the authorization or permit may be subject to penalties less than as stated. Violations
may be remedied by either civil or criminal damages or sanctions. Maximum monetary penalty
shall not exceed $5,000 for criminal or civil penalty per violation. Continuing violations shall be
considered a new violation for each 24 hour period. The Court may also award actual and
punitive damages. Enforcement of provisions of this section does not diminish the Pawnee
Nation’s ability to enforce and seek penalty as prescribed in other sections of this Chapter.
Section 410. Streambed Alteration
(a)
(b)
It shall be unlawful to disturb earth or vegetation within the high water mark of any
stream without receiving a permit or authorization from the Pawnee Nation. Any person
proposing the project shall submit a work plan to the Director for review at least 30 days
before disturbing a stream bed. As a part of the review process, the Director may consult
the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, U.S.
Army Corp. of Engineers, and the Bureau of Indian Affairs for recommendations. On this
basis, the Director may issue a permit, deny a permit, or request further review.
Streambed alteration offences shall be punishable by a fine not less than two hundred
fifty dollars ($250.00) nor more than five thousand dollars ($5,000), or by imprisonment
of not exceeding one year, or both, or as provided in Chapter Three of this Title.
Section 411. Minimum In-Stream Flow.
(a)
(b)
(c)
(d)
(e)
It shall be unlawful to alter or interfere with minimum in stream flow in any stream or
river without lawful authority and a permit from the Pawnee Nation.
Under this Section, minimum in-stream flow for cultural and traditional uses, fish and
aquatic life, groundwater recharge for public water supply, recreation and aesthetic
purposes are legitimate beneficial uses.
Any person proposing to remove water from streams and waterways for any purposes or
use must demonstrate to the Pawnee Nation that the proposed activities will not reduce
stream-flow by more than ten (10) percent of its base flow.
A minimum stream flow of 10 cfs shall be retained in all other streams at all times, unless
the natural flow, due to natural conditions, is less than 10 cfs.
Minimum in-stream flow offences shall be punishable by a fine not less than two hundred
fifty dollars ($250.00) nor more than five thousand dollars ($5,000), or by imprisonment
of not exceeding one year, or both, or as provided in Chapter Three of this Title.
Section 412. Lakeshore Management
(a)
(b)
(c)
(d)
(e)
It shall be unlawful to alter, diminish, or otherwise change an existing lakeshore without
lawful authority and a permit from the Pawnee Nation.
A permit is required by any person who proposes to do any work which will alter or
diminish the course, current, or cross sectional area of a lake or its lakeshore. Without
limitation, the following activities are, when conducted below mean annual high water
elevation, examples of work for which a permit is required. Construction of channels and
ditches; dredging of lake bottom areas to remove muck, silt, or weeds; lagooning; filling;
constructing breakwaters or pilings, wharves, and docks.
Any person proposing work within a lakeshore area shall submit a work plan to the
Director for review. The Pawnee Nation will make the final decision on whether or not
and how any work is accomplished, with the aid of the U.S. Environmental Protection
Agency, U.S. Fish and Wildlife Service, and the Bureau of Indian Affairs where
appropriate. Factors to be considered during the review process are that the work will
not, during either its construction or utilization:
(1) materially diminish water quality;
(2) materially diminish habitat for fish or wildlife;
(3) interfere with navigation or other lawful recreation;
(4) create a public nuisance;
(5) create a visual impact discordant with natural scenic values where such values
form the predominant landscape elements; or
(6) materially impair cultural or traditional uses of lakes and lakeshore areas.
A person who performs work in a lake without a permit for that work shall restore the
lake to within ten (10%) of its condition before it was disturbed, and is subject to the
provisions for violations, remedies, and penalties under this Act.
Lakeshore Management offences shall be punishable by a fine not less than two hundred
fifty dollars ($250.00) nor more than five thousand dollars ($5,000), or by imprisonment
of not exceeding one year, or both, or as provided in Chapter Three of this Title.
Section 413. Obstructions to Fish Passage.
(a)
It shall be unlawful to place or build any object in or across a stream that will block or
inhibit the free passage of fish past that point.
(b)
Any person proposing such work must submit a written project proposal to be reviewed
by the Director in conjunction with the U.S. Environmental Protection Agency, U.S. Fish
and Wildlife Service, Bureau of Indian Affairs, or other appropriate parties. If approval
is received, and a permit granted, permit conditions must be adhered to which will
facilitate the passage of fish.
(c)
Obstruction to fish passage offences shall be punishable by a fine not less than two
hundred fifty dollars ($250.00) nor more than five thousand dollars ($5,000), or by
imprisonment of not exceeding one year, or both, or as provided in Chapter Three of this
Title.
Section 414. Timber Harvesting/Removal.
(a)
It shall be unlawful to harvest and/or remove timber within an area within one (1)
chain(66 feet) of the bank of any perennial stream determined by the Director to have the
potential to support a population of native fishes or which serves as a spawning ground
for the same.
(b)
(c)
(d)
(e)
Logging roads shall be prohibited within the area described in subsection (a) except for
permitted activities under subsection (c).
Any person proposing access roads or trails or stream crossings along or over streams
determined by the Director to have the potential to support a population of native fishes
or which serves as a spawning ground for the same shall submit a written project
proposal to the Director for a permit to conduct such activities. The Director shall make
the final decision as to whether such activities will be permitted and what conditions shall
be required in order to preserve the species or species habitat.
Any person who seeks to harvest/remove timber must submit a written project proposal
to the Director for a Timber harvest permit. In addition, any timber harvesting /removal
activity occurring within 1 chain of any stream identified under this Act shall possess a
valid permit as required under the Pawnee Nation Aquatic Buffer Regulations. The
Director shall make the final decision whether such activities will be permitted and under
what conditions such activity will be permitted in order to:
(1) preserve the resulting water quality in order to meet the standards of that
particular watershed, as established by the Nation pursuant to its Water Quality
Standard; and
(2) avoid general deterioration of water quality through erosion from the practice of
clear cutting of timber.
Timber harvest/removal offences shall be punishable by a fine not less than two hundred
fifty dollars ($250.00) nor more than five thousand dollars ($5,000), or by imprisonment
of not exceeding one year, or both, or as provided in Chapter Three of this Title.
Section 415. Oil and Gas Recovery Activities, Surface Mining.
(a)
(b)
(c)
(d)
Oil and gas exploration and recovery activities including underground injection and
surface mining activities shall be prohibited within an area 1000 feet from the banks of
any stream or lake determined by the Nation to have the potential to support a population
of native fishes of which serves as a spawning ground for the same.
Any person seeking to engage in such activities covered under subsection (a) within onefourth mile of a tribally designated stream under that subsection must submit a written
project proposal to the Director for a permit to conduct such activities. The Director shall
make the final decision as to whether such activities will be permitted and what
conditions shall be required to preserve the species or species habitat.
Oil and gas exploration and recovery activities, including underground injection, and
surface mining activities, which will affect Pawnee Nation streams and lakes will require
a tribal permit.
Any person seeking to engage in such activities covered under subsection (c) of this
section must submit a written project proposal to the Director for a permit to conduct
such activities. In addition, any oil and gas recovery and/or surface mining activity
occurring within 2 chain of any stream identified under this Act shall possess a valid
permit as required under the Pawnee Nation Aquatic Buffer Regulations. The Director
shall make the final decision as to whether such activities will be permitted and what
conditions will be required to:
(1) assure that the resulting water quality will meet the standards of that particular
watershed as established by the Nation; and
(f)
(2) assure that all resulting effluent discharges from such operations shall be retained or
treated in a proper manner so as to protect the watershed from degradation from the
tribal standard for that stream or watershed.
Oil and gas recovery and surface mining offences shall be punishable by a fine not less
than two hundred fifty dollars ($250.00) nor more than five thousand dollars ($5,000), or
by imprisonment of not exceeding one year, or both, or as provided in Chapter Three of
this Title.
Section 516
(a)
(b)
(c)
(d)
Oil and Hazardous Substance Liability
It shall be unlawful for any person to discharge oil, brine, or hazardous substances into
or upon the lands or waters of the Pawnee Nation, or into or upon the waters of the
contiguous zone, or which may affect natural resources belonging to, appertaining to, or
under the jurisdictional or management authority of the Pawnee Nation.
In carrying out this paragraph, the DECS may:
(1)
remove or arrange for the removal of a discharge, and mitigate or prevent a
substantial threat of a discharge, at any time;
(2)
direct or monitor actions to remove a discharge; and
(3)
remove and, if necessary, destroy a vessel discharging, or threatening to
discharge, by whatever means are available.
Nothing in this Section shall be construed as affecting or modifying any existing
authority of any Federal department, agency, or instrumentality, relative to onshore
facility under this Chapter or any other provision of law, or to affect any State or local
law not in conflict with this Section.
Oil and hazardous substance offence shall be punishable by a fine not less than two
hundred fifty dollars ($250.00) nor more than five thousand dollars ($5,000), or by
imprisonment of not exceeding one year, or both, or as provided in Chapter Three of this
Title.
CHAPTER FIVE – Water Quality Standards
Section 501. Introduction
(a)
The Pawnee Nation of Oklahoma hereby establishes these water quality standards
covering all surface water and ground water within its jurisdiction, including but not
limited to the Pawnee Nation Reservation as established by the Act of April 10, 1876.
The Pawnee Nation recognizes all lands which have been validly set apart for the use and
benefit of the Pawnee Indian(s), including, but not limited to, any lands or interest in
lands of the Pawnee Nation or an individual Pawnee Indian held “reserved” in trust by
the United States, or which is subject to Federal restrictions against alienation, including
mineral resources and mineral estates reserved to Pawnee Indian(s) in the conveyance of
a surface or non-mineral estate. These lands shall be statutorily defined as Pawnee
Reservation and are referred to as Pawnee Indian Country. Further, the Pawnee Nation
recognizes its ownership and jurisdictional authority over the corpus of the waters
(surface and ground) within its original boundaries as established on April 10 1876 (see
19 Stat., 28). The Pawnee Nation through its sovereign powers, rights, privileges and
ability, recognizes the need to assert these standards throughout its jurisdiction in part
under the authorization as supported by U.S. Congress under the approval of the
Constitution of the Pawnee Nation of Oklahoma on April 27, 1998 (Secretarial Order #
3177). Article II of the Pawnee Nation Constitution reads:
ARTICLE II-PURPOSE
Section 1. To secure for the Pawnee Nation of Oklahoma and its members rights, powers, privileges, and
benefits of a sovereign nation.
Section 2. Establish its Jurisdiction and Powers.
i.
ii.
iii.
The governmental powers of the Pawnee Business Council, acting for the sovereign Pawnee
Nation of Oklahoma shall extend to all persons and to all real and personal property including
lands and other natural resources, and to all waters and air space, within the Indian Country over
which the Pawnee Nation of Oklahoma has jurisdiction. The governmental powers of the Pawnee
Nation of Oklahoma shall also extend outside the exterior boundaries of Indian Country to any
persons or properties which are, or may be included within the jurisdiction of the Pawnee Nation
of Oklahoma.
The Pawnee Nation of Oklahoma is empowered to maintain under any laws of the U.S. and/or
Pawnee Nation of Oklahoma’s law and order, and judicial systems to protect the peace, safety,
health, and welfare of the members of the Pawnee Nation of Oklahoma, provided the concepts of
separation of powers is maintained.
The Constitution is the supreme law of the Pawnee Nation of Oklahoma and all persons subject to
its jurisdiction. The Pawnee Business Council shall exercise its power consistent with the
provisions of this Constitution and the Corporate Charter of the Pawnee Nation of Oklahoma
These standards shall provide a mechanism for managing and regulating the quality and
use of waters resources by establishing the water quality goals for specific water bodies
and/or resources, and providing a legal basis for regulatory controls.
(b)
(c)
(d)
(e)
(f)
These standards have been adopted by the Pawnee Nation as law and shall serve to
protect the public health and welfare, enhance the quality of water within Pawnee Indian
Country and serve the purposes of the Clean Water Act, pursuant to Sections 303 and 518
of the Clean Water Act.
The purposes of these water quality standards are to restore, maintain and protect the
chemical, physical, biological, and cultural integrity of the surface waters within the
jurisdiction of the Pawnee Nation; to promote the health, social welfare, and economic
well-being of the Pawnee Nation, its people, and all the residents within Pawnee Indian
Country; to achieve a level of water quality that provides for all cultural uses of the
water, the protection and propagation of fish and wildlife, for recreation in and on the
water, and all existing and designated uses of the water; to promote the integrated
watershed approach to management of these waters; and to provide for protection of
threatened and endangered species and their habitat.
These standards are designed to establish the uses for which the waters of the Pawnee
Nation shall be protected, to prescribe water quality standards (narrative and numeric) to
sustain the designated uses, and to protect existing water reserve resources for future
uses.
The water use and quality criteria set forth herein are established in conformance with
water uses of the surface waters of the Pawnee Nation and are established with
consideration of the inherent water quality potential and limitations of those waters.
The Pawnee Nation recognizes its reserved water rights and its ability to establish uses of
the water resources. The designated uses as established in this Standard shall not impede
the reserved rights of the Pawnee Nation and its access to, and use of its water resources
for the benefit of the Pawnee Nation.
Section 502. Definitions
The following definitions are intended to facilitate the use of this chapter.
"Acute toxicity" is a short-term lethal or other adverse effect to an organism caused by
pollutants, and usually defined as occurring within 4 days for fish and large invertebrates and
shorter times for smaller organisms.
"Appropriate reference site or region" means a site on the same water-body or within the same
basin or eco-region that has similar habitat conditions and which is expected to represent the
water quality and biological community attainable. Selected reference locations will represent
natural conditions in which indigenous aquatic communities are healthy and can produce fertile
off-springs.
"Aquatic species" means any plant or animal which lives at least part of their life cycle in water.
"Background conditions" means the biological, chemical, and physical conditions of a water
body, outside and up-gradient of the area of influence of the point source discharge, non point
source, or in-stream activity under consideration.
"Best management practices (BMP)" means physical, structural, and/or managerial practices that,
when used singularly or in combination, prevent or reduce pollution.
"Bioaccumulation" means the process by which a compound is taken up by and accumulates in
an aquatic organism, from water, food, and sediments.
"Biological assessment" is an evaluation of the biological condition of a water body using
surveys of aquatic community structure, function, diversity, presence or absence, or other direct
measurements of resident biota in surface waters.
"Biological criteria" means numerical values or narrative expressions that describe the biological
integrity or aquatic communities inhabiting waters of a given designated aquatic life use.
Biological criteria serve as an index of aquatic community health.
"Carcinogen" means any substance or agent that produces or tends to produce cancer in humans.
"Chapter" means the Water Quality Standards of the Pawnee Nation as set forth within this
regulation.
"Chronic toxicity" means a long-term adverse effect to an organism (when compared to the life
span of the organism) caused by or related to changes in feeding, growth, metabolism,
reproduction, genetic mutation, etc. Short-term test methods for detecting chronic toxicity may
be used.
"Constructed wetlands" means those wetlands intentionally created from non-wetland sites for
the sole purpose of wastewater or storm-water treatment.
"Created wetlands" means the wetlands intentionally created from non-wetland sites to produce
or replace natural wetland habitat.
"Critical conditions" means the physical, chemical, and biological characteristics of the receiving
water and point source discharge, nonpoint source, or in-stream activity that interact to produce
the greatest potential adverse impact on aquatic biota and existing or designated water uses.
"Cultural water use" means waters which are used to support and maintain the way of life of the
Pawnee People including, but not limited to: use for in-stream flow, habitat for fisheries and
wildlife, and preservation of habitat for berries, roots, medicines and other vegetation significant
to the values of the Pawnee People. Cultural water use shall be protected by Primary Body
Contact Recreation in Section 511 part e of this Standard.
"CWA" means the federal Clean Water Act (33 USC 1251 et seq.), as amended.
"Damage to the ecosystem" means any demonstrated or predicted stress to aquatic or terrestrial
organisms or communities of organisms which the department concludes may interfere with the
health or survival success or natural structure and functioning of such populations. This stress
may be due to alteration in habitat or changes in water temperature, chemistry, or turbidity, or
other causes. In making a determination regarding ecosystem damage, the department shall
consider the cumulative effects of pollutants or incremental changes in habitat which may create
stress over the long term.
"Department" means the Pawnee Nation Department of Environmental Conservation and Safety.
"Director" means the Director of the Pawnee Nation Department of Environmental Conservation
and Safety.
"Designated use" means a use that is specified in water quality standards as a goal for a water
body segment, whether or not it is currently being attained.
"EPA" means the United States Environmental Protection Agency.
“Ephemeral streams” means a water coarse that flows briefly only in direct response to
precipitation in the immediate locality , and whose channel is at all times above the water table.
"Existing uses" means all uses actually attained in the water body on or after November 28,
1975, whether or not they are explicitly stated as designated uses in the water quality standards
or presently exist.
"Fecal coli form" means that portion of the coli form group which is present in the intestinal
tracts and feces of warm-blooded animals as detected by the product of acid or gas from lactose
in a suitable culture medium within twenty-four hours at 44.5 plus or minus 0.2 degrees Celsius.
"Hardness" means a measure of the calcium and magnesium salts present in water. For the
purpose of this chapter, hardness is measured in milligrams per liter and expressed as calcium
carbonate (CaCO3).
"Intermittent stream" means a waterway which flows only at certain times of the year or does not
flow continuously.
“Marketing” is the transfer of water where one entity gains water and the other gains a monetary
value.
"Mean detention time" is the mean amount of time that water remains in a basin. The time is
computed by dividing a reservoir's mean annual minimum total storage by the thirty-day, tenyear, low flow from the reservoir.
"mg/L" means milligrams per liter.
"Migration or translocation" means any natural movement of an organism or community of
organisms from one locality to another locality.
"Mixing Zone" means that portion of water body adjacent to an effluent outfall where mixing
results in the dilution of the effluent with the receiving water. Water quality numeric criteria
may be exceeded in a mixing zone as conditioned and provided for in section 511.
“Natural causes” means source of contamination which is not man induced.
"Natural conditions" means surface water quality that was present before human-caused
pollution. When assessing natural background conditions in the headwaters of a disturbed
watershed it may be necessary to use the natural background conditions of a neighboring or
similar watershed as a reference condition.
"Near Instantaneous and Complete Mix" means no more than a 10 percent difference in bank-tobank concentrations within a longitudinal distance not greater than 2 stream/river widths.
"Non point source" means pollution that enters any waters from any dispersed land-based or
water-based activities, including but not limited to, atmospheric deposition; surface water runoff
from agricultural lands, urban areas or forest lands; subsurface or underground sources; or
discharges from boats or marine vessels not otherwise regulated under the National Pollutant
Discharge Elimination System program.
“Normal Stream Flow” means flow corresponding to low gradient areas in the hydrograph.
"NPDES" means National Pollutant Discharge Elimination System, the national program for
issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and
imposing and enforcing pretreatment requirements, under sections 307, 402, 318, and 405 of the
CWA.
“Operator” means any person, facility, or intity who owns, leases, or otherwise is in charge of an
operation, activity, or service subject to the laws and regulations of the Pawnee Nation.
“Pawnee Indian Country” means all land, air, water, and/or minerals which have been validly set
apart for the use and benefit of the Pawnee Indian(s), including, but not limited to, any lands or
interest in lands of the Pawnee Nation or an individual Pawnee Indian owned under fee status,
held in trust by the United States, or which is subject to Federal restrictions against alienation,
including mineral resources and mineral estates reserved to Pawnee Indian(s) in the conveyance
of a surface or non-mineral estate, both within and beyond the exterior boundaries of the Pawnee
Nation as established by the Act of April 10, 1876.
"ppm" means parts per million.
"Permit" means a document issued pursuant to tribal code or federal laws (such as NPDES,
CWA, Section 401; CWA, Section 404) specifying the waste treatment and control requirements
and waste discharge conditions.
"Persistent pollutant" means a pollutant which is slow to or does not decay, degrade, transform,
volatilize, hydrolyze, or photolyze.
"Person" means 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 form in which it does business, whether as a sole proprietorship, partnership, joint venture,
trust, unincorporated association, corporation, government, including any part, subdivision, or
agency of any of the foregoing, or otherwise; and any combination of individuals or
organizations in whatever form, and the plural as well as the singular number.
"pH" means the negative logarithm of the hydrogen ion concentration.
"Point source" means any discernible, confined and discrete conveyance, including, but not
limited to, any pipe, ditch, channel, sewer, tunnel, conduit, well, discrete fissure, container,
concentrated animal feeding operation, or vessel or other floating craft, from which pollutants
are or may be discharged.
"Pollutant" includes dredged spoil, solid waste, incinerator residue, filter backwash, sewage,
garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials
(except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et
seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water.
"Pollution" includes such contamination, or other alteration of the physical, chemical or
biological properties, of any waters of the Nation, including change in temperature, taste, color,
turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or
other substance into any waters of the Nation as will or is likely to create a nuisance or impair
any beneficial use of such waters.
"Primary body contact recreation" means activities involving direct body contact with the water
where a possibility of ingestion exists.
"Receiving waters" means any water course or water body that receives treated or untreated
wastewater.
"Reservation” [Pawnee Nation] means all lands and waters within the exterior boundaries of the
Pawnee Nation as established by the Act of April 10, 1876.
"Resident aquatic community" means aquatic life expected to exist in a particular habitat for a
specific eco-region, basin, or water body. This shall be established by accepted bio-monitoring
techniques.
“Sample standard” means an average of the last five years of available data plus two standard
deviation of the mean.
“Storage” of water is the capture of water resources for one’s own beneficial use.
"Storm water" means that portion of precipitation that does not naturally percolate into the
ground or evaporate, but flows via overland flow, interflow, pipes, and other features of a storm
water drainage system into a defined surface water body, or a constructed infiltration facility.
"Surface waters of the tribe" includes lakes, rivers, ponds, streams (including intermittent and
ephemeral streams), wetlands, inland waters, and all other surface waters and water courses
within the exterior boundaries of the reservation.
"Temperature" means water temperature expressed in degrees Celsius (o C).
"Threatened or endangered species (listed species)" means any species of fish, wildlife, or plant
which has been determined to be endangered or threatened under section 4 of the Endangered
Species Act. Listed species are found in 50 CFR 17.11.-17.12.
"Toxicity test" means a test using selected organisms to determine the acute or chronic effects of
a chemical pollutant or whole effluent.
"Toxic pollutant" means those pollutants, or combinations of pollutants, 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 EPA or the department, cause death, disease, behavioral abnormalities, cancer,
genetic mutations, physiological malfunctions (including malfunctions in reproduction) or
physical deformations, in such organisms or their offspring.
“Transfer” of water is the exchange of water that changes from one party to another for a
specified amount of time.
"Tribal Council" means the governing body of the Pawnee Nation exercising those powers
granted by the Constitution and By-Laws of the Pawnee Nation of Oklahoma.
"Tribe" means the Pawnee Nation and/or Nation.
"Turbidity" means the clarity of water expressed as nephelometric turbidity units (NTU) and
measured with a calibrated turbidimeter.
"µg/L" means micrograms per liter.
"Wastes" include sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, or
other substances which will or may cause pollution or tend to cause pollution of any water body.
"Water quality" means the chemical, physical, biological, and cultural characteristics of a water
body.
"Wetland" means any area that is inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal circumstances does support,
a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas.
"Wildlife habitat" means the waters of the Nation used by, or that directly or indirectly provide
food support to, fish, other aquatic life, and wildlife for any life history stage or activity.
“Yearly mean standard” means an average of the last five years of available data plus one
standard deviation of the mean (also moving yearly mean standard).
Section 503. Anti-degradation Policy
(a)
(b)
(c)
(d)
(e)
Existing uses and the level of water quality necessary to protect the existing uses shall be
maintained and protected.
Where the quality of the waters exceeds levels necessary to support propagation of fish
and wildlife and recreation in and on the water, that quality shall be maintained and
protected unless the Pawnee Nation finds, after the Nation's intergovernmental
coordination and public participation provisions have been met, that allowing lower water
quality is necessary to accommodate important economic or social development in the
area in which the waters are located. In allowing such degradation or lower water
quality, the Nation shall assure water quality adequate to fully protect existing uses.
Further, the Nation shall assure that there shall be achieved the highest statutory and
regulatory requirements for all new and existing point sources and all approved, costeffective, and reasonable best management practices for non point source control.
Outstanding Resource Waters. Waters meeting one or more of the following criteria shall
be considered for outstanding resource water designation:
(1)
Outstanding national or tribal resource;
(2)
Documented critical habitat for populations of threatened or endangered species;
(3)
Waters of exceptional recreational, ceremonial, cultural, or ecological
significance; or
(4)
Waters supporting priority species as determined by the Nation.
Where waters constitute outstanding resource water, the water quality and uses shall be
maintained and protected and pollutants that will reduce the existing quality thereof shall
not be allowed to enter such waters. To accomplish this, the department may require
water quality controls, maintenance of natural flow regimes, protection of in-stream
habitats, and pursuit of land use practices protective of the watershed.
In those cases where potential water quality impairments associated with thermal
discharge are involved, the Anti-degradation Policy and implementing methods shall be
consistent with Section 316 of the Clean Water Act, as amended.
Section 504. Mixing Zones and Zones of Passage
a.
Mixing Zones
(1)
In streams, the chronic regulatory mixing zone extends downstream a distance
equivalent to thirteen (13) times the width of the water within the receiving
stream at the point of effluent discharge and encompasses 25% of the total stream
flow of the 7Q2 or 1 cfs, whichever is larger, immediately downstream of the
point of effluent discharge.
(2)
Acute toxicity within the mixing zone is prohibited.
(3)
The acute regulatory mixing zone is encompassed by the R = 0.01 (cfs-1)
isopleths. R is the ratio of concentration to waste load
(4)
Mixing zones in lakes are prohibited and shall be designated on a case-by-case
basis.
(5)
Where overlapping mixing zones occur because of multiple outfalls, the total
length of the mixing zone will extend thirteen (13) stream widths downstream
from the downstream discharge point.
(b)
Zones of Passage
(1)
All discharges permitted for any criteria listed for protection of fish and wildlife
propagation, but not for consumption of fish flesh shall be regulated to insure that
a zone of passage shall be maintained within the stream at the outfall and adjacent
to the mixing zone that shall be no less than seventy-five percent (75%) of the
volume of flow.
(2)
Water quality standards shall be maintained throughout the zone of passage.
(3)
Zones of passage in lakes shall be designated on a case-by-case basis.
Section 505. Implementation
Implementation Policies for the Anti-degradation Policy Statement
(a)
The following provisions set forth exceptions to the limitations for additional protection
of certain waters of the Pawnee Nation:
(1)
The limitations for additional protection of Outstanding Resource Waters shall
apply to all discharges from point sources except such limitations do not apply to
discharges of storm-water from temporary construction activities. Discharges of
storm-water from point sources after June 15, 1992 are prohibited any new point
source discharges. Storm water discharges in existence prior to June 15, 1992 are
prohibited from increased load of any pollutant.
(2) The limitations for additional protection of High Quality Waters, and Sensitive
Public and Private Water Supplies, shall apply to discharges from all point
sources except point source discharges of storm-water.
(b)
The term “specified pollutants” means:
(1)
Oxygen demanding substances, measured as Carbonaceous Biochemical Oxygen
Demand (CBOD) and/or Biochemical Oxygen Demand (BOD);
(2)
Ammonia Nitrogen and/or Total Organic Nitrogen;
(3)
Phosphorus;
(4)
Total Suspended Solids (TSS);
(5)
Substances or water quality parameters not listed may be determined by the
DECS.
(c)
The following limitations for additional protection apply to various waters of the Nation:
(a.)
Outstanding Resource Waters (ORW).
(i.) Outstanding Resource Waters (ORW) are those waters of the Pawnee
Nation which constitute outstanding resources or are of exceptional
recreational, cultural, religious, and/or ecological significance
(ii.)
Outstanding resource waters are prohibited from having any new point
source discharge(s) of any pollutant or increased load of any pollutant
from existing point source discharge(s).
(b.)
High Quality Waters (HQW).
(i.) HQW (High Quality Waters) is intended to protect those waters of the
Pawnee Nation which possess existing water with quality higher than the
healthiest or least impaired waters that meets and/or exceeds Pawnee
Nations water Quality Standards. These waters are rated as excellent based
on chemical, biological and physical characteristics through monitoring or
the detection of reference conditions. Additionally, HQWs support
propagation of fishes, shellfishes, wildlife, and recreation, and/or are in
areas which are inhabited by federally listed, threatened or endangered
species.
(ii.)
High Quality Waters (HQW) are those waters of the Pawnee Nation which
possess existing water quality which exceeds that necessary to support
(iii.)
(iv.)
(v.)
propagation of fishes, shellfishes, wildlife, and recreation, and/or are in
areas which are inhabited by federally listed, threatened or endangered
species.
All water-bodies designated with the limitation indicated by the letters
“HQW” are prohibited from having any new point source discharge(s) of
any pollutant or increased load or concentration of specified pollutants
from existing point source discharge(s), provided however that new point
source discharge(s) or increased load of specified pollutants may be
approved by the DECS in those circumstances where the discharger can
demonstrate to the satisfaction of the DECS and USEPA that a new point
source discharge or increased load from an existing point source discharge
will result in maintaining or improving the level of water quality which
exceeds that necessary to support recreation and propagation of fishes,
shellfishes, and wildlife of the direct receiving water and downstream
water-bodies designated HQW. No discharge of any pollutant to water
bodies designated HQW may lower existing water quality.
New discharges or increased loading from existing discharges may be
allowed under such conditions that ensure that the recreational and
ecological significance of these waters will be maintained.
Discharges or other activities associated with those waters containing
Federally listed threatened or endangered species may be restricted
through agreements between appropriate regulatory agencies and the
United States Fish and Wildlife Service.
(c.)
Sensitive Public and Private Water Supplies (SWS).
(i.) Waters designated “SWS” are those waters of the Pawnee Nation which
constitute sensitive public and private water supplies and are listed as
“SWS” waters.
(ii.)
All water-bodies designated with the limitation indicated by the letters
“SWS” in Section 513 are prohibited from having any new point source
discharge(s) of any pollutant or increased load of specified pollutants from
existing point source discharge(s), provided however that new point
source discharge(s) or increased load of specified pollutants may be
approved by the DECS in those circumstances where the discharger can
demonstrate to the satisfaction of the DECS that a new point source
discharge or increased load from an existing point source discharge will
not lower water quality of either the direct receiving water or downstream
water-bodies designated SWS.
(4)
Prioritization of Limitations.
In situations where more than one beneficial use limitation exists for waterbodies, the more stringent limitation shall apply.
(5)
Non-Point Source Discharges.
Best management practices for control of nonpoint source discharges shall be
implemented in watersheds of water-bodies protected under this Standard. Development
of conservation plans shall be required in sub-watersheds where discharges from
nonpoint sources are identified as causing, or significantly contributing to, degradation in
a water-body.
(6)
Exceedances Guidelines.
Any violation of this standard is an indicator of non supported use and shall be cause
for an ‘origin and cause” investigation. The results of the origin and cause investigation
shall determine the level (supportive, moderately or non-supportive) of beneficial use
support.
Section 506. Enforcement
(a)
The Pawnee Nation Water Quality Standards are approved as law by the Pawnee Nation
and are fully enforceable under the laws of the Pawnee Nation.
(b)
All waters within the exterior boundaries of the Pawnee Nation as established by the Act
of April 10, 1876 are protected by these Standards.
(c)
Pawnee Nation Water Quality Standards approved by the Pawnee Nation shall be
applicable to all activities which may affect the water quality of waters of the Pawnee
Nation and shall be utilized by all appropriate environmental and natural resource
agencies in implementing their respective duties to abate and prevent pollution to waters
of the Pawnee Nation.
(d)
All methods of sample collection, preservation, and analysis used in applying any of the
standards may be in accordance with The Guidelines Establishing Test Procedures for the
Analysis of Pollutants as provided by 40 Code of Federal Regulations, part 136 (40
CFR:136); “Methods of Measuring the Acute Toxicity of Effluent to Freshwater and
Marine Organisms,” “Short Term Methods for Estimating the Chronic Toxicity of
Effluents and Receiving Waters to Freshwater Organisms,” “Test Methods for
Escherichia coli in Water by the Membrane Filter Procedure,” or other procedures
approved by the Pawnee Nation Department of Environmental Conservation and Safety
and/or U.S.E.P.A.
Section 507. Allowance for Compliance Schedules and Variances
(a)
(b)
NPDES and other permits, certifications, orders and directives of the Department issued
under tribal authority for existing discharges or activities may include a schedule for
achieving compliance with water quality criteria contained in this chapter. Such
schedules of compliance shall be developed to ensure final compliance with all water
quality criteria in the shortest practicable time, but not to exceed five years. Decisions
regarding whether to issue schedules of compliance will be made on a case-by-case basis
by the permitting agency and must be approved by the Department. Schedules of
compliance may not be issued for new discharges or activities.
(1)
Schedules of compliance may be issued to allow for:
(i.) construction of necessary treatment capability;
(ii.)
implementation of necessary best management practices;
implementation of additional best management practices for sources
(iii.)
determined not to meet water quality criteria following implementation of
an initial set of best management practices;
(2)
For the period of time during which compliance with water quality criteria is
deferred, interim limitations and/or other conditions may be formally established,
based on the best professional judgment of the permitting agency and the
Department.
(3)
Prior to establishing a schedule of compliance, the permitting agency shall require
the permittee to evaluate the possibility of achieving water quality criteria via
non-construction changes (e.g. facility operation, pollution prevention).
A variance from the Pawnee Nation Water Resource Protection Act and this Standard
may be granted at the discretion of the Department and USEPA on a case by case basis.
(1)
A variance from the Pawnee Nation’s criteria may be allowed in certain cases
where the appropriateness of the specific criteria is questionable.
(2)
The variance shall provide a period of time during which the issues concerning
the appropriateness of the criteria may be resolved.
(3)
A variance shall be valid for no more than three (3) years.
(4)
Variances are not renewable but may be reissued upon adequate justification.
(5)
A variance shall be granted only after appropriate public participation, review and
approval from USEPA and the Pawnee Nation as required.
(6)
A variance from criteria may be allowed for anticipated non-attainment of water
quality standards due to one or more of the reasons listed in 40CFR 131.10(g).
(7)
A variance from criteria shall be for a specific pollutant, time limited, and shall
not forego the currently designated uses.
(8)
Variances are to be issued instead of removing a designated use for a water body
where such use is not currently attainable but can be expected with reasonable
progress towards water quality.
Section 508. Short-Term Modifications
(a)
The criteria established in these standards may be modified for a specific water body on a
short-term basis in order to respond to emergencies, to accommodate essential activities,
or to otherwise protect the public health and welfare, even though such activities may
result in a temporary reduction of water quality conditions below those criteria
established by this regulation. Such modifications shall be issued in writing by the
Director, subject to such terms and conditions as he/she may prescribe.
(b)
Short-term modifications shall not exceed a 60 day period and shall be kept as short as
feasible.
(c)
In no case will any degradation of water quality or aquatic habitat be allowed if this
degradation could interfere with, or becomes injurious to, existing water uses or causes
long-term harm to the environment or cultural resources. No short-term modification
may be issued where it could adversely impact threatened or endangered species or their
critical habitat.
(d)
A request for a short-term modification shall be made, in writing, to the department.
Such requests shall be made at least thirty days prior to the start of the activity impacting
water quality, unless the modification is in response to an emergency requiring
immediate attention in which case notification shall be provided within twenty-four hours
of the response decision.
(e)
Aquatic application of all pesticides shall require a short-term modification be granted
prior to application. These modifications shall include, at a minimum, the following
conditions:
(1)
Such pesticide application shall be in accordance with all federal, tribal and local
regulations;
(2)
Such application shall be in accordance with label provisions promulgated by
EPA under the Federal Insecticide, Fungicide, and Rodenticide Act, as amended
(7 U.S.C. 136, et seq.);
(3)
Such application shall not result in conditions injurious to indigenous aquatic
biota, wildlife, humans, cultural resources, or other existing or designated uses of
the water body;
(4)
Public notice, including identification of the pesticide, applicator, location where
the pesticide will be applied, proposed timing and method of application, and any
water use restrictions shall be provided by the applicator; and
(5)
The Department shall be notified 96 hours prior to pesticide application.
(6)
Any additional conditions required by the department.
(f)
In the event of any fish kills or other harm to indigenous aquatic dependent resources, the
department shall be notified immediately upon discovery.
(g)
Short-term modifications do not supersede any USEPA, Tribal, or state permit.
Section 509. Public Involvement
Periodically, the Department shall hold public hearings for the purpose of reviewing the
water quality standards and, as appropriate, modifying and adopting standards. The Department
will issue public notice of proposed changes and provide opportunity for public comment as
directed by the Pawnee Nation Business Council. A minimum of 30 day notice shall be give
prior to the public hearing on proposed changes to the Standard. A minimum of 30 days shall be
given for public review and/or comment.
Section 510. Criteria for the Protection of Surface Water Resources
(a.)
General Criteria
The following criteria shall apply to the water bodies and beneficial uses.
(1.)
All waters shall be free from pollutants in concentrations or combinations that do
not protect the most sensitive use of the water body.
(2.)
Whenever the ambient conditions of surface waters of the Nation are of a lower
quality than the criteria assigned, the Department may determine that the natural
conditions shall constitute the water quality criteria. If an ambient condition
varies with time, the natural condition will be determined as the highest quality
prevailing condition measured during an annual, seasonal, or shorter time period
prior to influence of human-caused pollution. The Department may, in its
discretion, determine the natural condition for one or more seasonal or shorter
time period(s) to reflect variable natural conditions. Ambient conditions should
not have any anthropogenic sources.
(3.)
At the bo
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