Sisseton- Wahpeton Oyate (2009)

Sisseton- Wahpeton Oyate

of the

Lake Traverse Reservation

CHAPTER 61

ENVIRONMENTAL PROTECTION CODE

CHAPTER 61 SWO Environmental Code

Title I

61-01-01

61-01-02

61-01-03

61-01-04

61-01-05

61-01-06

61-01-07

61-01-08

61-01-09

61-01-10

61-01-11

61-01-12

61-01-13

61-01-14

Title O

61-02-01

61-02-02

61-02-03

61-02-04

61-02-05

61-02-06

61-02-07

61-02-08

61-02-09

61-02-10

Tithe TU

61-03-01

61-03-02

61-03-03

61-03-04

61-03-05

61-03-06

61-03-07

61-03-08

61-03-09

Table of Contents

General and Administrative Provisions

Legal Authority

Purpose

Sovereign Immunity

Definitions for Chapter 6]

Administration

Authority, Duties and Responsibilities of OEP

Authority, Duties and Responsibilities of EPAC

Environmental Hearing Panel

Enforcement

Regulations

Special Provisions for Tribal Departments and Agencies

Appeals

Administrative Hearing

Severability

Tribal Environmental Policy Act (OTEPA”)

Purposes

Definitions for Title TT

General Roles

Types of Land-Use Activities this TEPA applies to

Direct and Indirect Costs of Permit Application Process

Environmental Review Procedure

Permit Limitations, Conditions and Mitigation

Record of Decision

Enforcement

Severability

Water Quality

Scope

Findings, Policy and Purpose

Role of the Office and Environmental Protection

Responsibilities, Authority and Duties of the OEP

Definitions

Unlawful Acts

Effect of Regulations by OEP

Reservation Waters Protected

Permit to Degrade Reservation Waters

bh

61-03-10 Emergencies

61-03-11 Permit for Point Source Discharge

61-03-12 Terms of Permits Issued Under This Title; Relationship of Tribal Permits to EPA

Permits

61-03-13 Compliance with standards and requirements of Irrigation Systems for

Chemigation

61-03-14 Other Requirements Not Superceded; Reserved Provisions

61-03-15 Relationship to National Pollutant Discharge Elimination System

61-03-16 Certification of Compliance with Federal Pollution Control Requirements

61-03-17 Issuance, Revocation or Denial

61-03-18 Action by Other Parties

61-03-19 Severability

Title IV Air Quality

61-04-01 Findings and Purpose

61-04-02 Definitions

61-04-03 Responsibilities, Authority and Duties of the OEP

61-04-04 Rules and Regulations of the Office of Environmental Protection

61-04-05 OEP to Promulgate Ambient Air Quality Standards

61-04-06 OEP to Promulgate Air Emission Control Regulations

61-04-07 Inspection and Entry

61-04-08 Designations of Air Quality Control Regions

61-04-09 Tribal Implementation Plans for National Primary and Secondary Ambient Air

Quality Standards

61-04-10 Preconstruction Requirements

61-04-11 Air Pollution Emergencies Endangering Public Health

61-04-12 Implementation and Enforcement of Standards of Performance

61-04-13 List of Hazardous Air Pollutants

61-04-14 Permit Applications

61-04-15 Permit Requirements and Conditions

61-04-16 Notification to the Administrator of the EPA

61-04-17 Permit Exemptions

61-04-18 Asbestos Policy

61-04-19 Definitions

61-04-20 OEP Promulgation of Rules to Establish an Asbestos Abatement-Training

Program

61-04-21 Violations as Misdemeanor-Civil Penalties

61-04-22 Asbestos abatement certificate

61-04-23 Suspension or Revocation of Contractor’s Certificate-Grounds

61-04-24 Certification Fee Schedule

61-04-25 Severability

Title V Solid Waste

61-05-01 Findings

Ge

61-05-02 Purpose

61-05-03 Definitions

61-05-04 OEP is the Lead Tribal Agency

61-05-05 OEP to Investigate the Activities of any Permittee under this code

61-05-06 Prohibition of Dumping Solid Waste

61-05-07 Prohibition of Burning of Solid or Hazardous Waste

61-05-08 Criminal Penalties

61-05-09 Civil Penalties

61-05-10 Civil Damages

61-05-11 Other Remedies

61-05-12 Required Permits for the Construction and Operation of a Solid Waste Facility

and the Collection and Transportation of Solid Waste

61-05-13 Permits for the Construction and Operation of Solid Waste Facilities

61-05-14 Public Participation and Hearings

61-05-15 Right to Intervene

61-05-16 Oath and Application Filing Fees

61-05-17 Fees and Taxes

61-05-18 Temporary Restraining Orders and Preliminary or Permanent Injunction

61-05-19 Compliance, Abatement and Remedial Action Orders

61-05-20 Compliance with Permits

61-05-21 Civil Penalties and Revocation, Suspension, or Modification of Permit

61-05-22 Severability

Title VI Pesticide Code

61-06-01 Purpose

61-06-02 Definitions

61-06-03 Classifications of Pesticides

61-06-04 Certification of Applicators

61-06-05 Classification of Pesticide Applicators

61-06-06 Registration of Restricted Use Pesticides

61-06-07 Licensing of Restricted Use Pesticide Dealer

61-06-08 Storage and Transport of Pesticides and Containers

61-06-09 Unlawful Acts

61-06-10 Notice of Violation, Cease and Desist Order, Permit Suspension, Permit

Revocation or Modification of Certification

61-06-11 Hearings

61-06-12 Fines

61-06-13 Delegation of Authority

61-06-14 Entry and Inspection

61-06-15 Severability

Title VII Hazardous Waste, Underground Storage Tanks, Lead Based Paint Codes

61-07-01 Purpose and Scope

61-07-02 Short Title

61-07-03

61-07-04

61-07-05

61-07-06

61-07-07

61-07-08

61-07-09

61-07-10

61-07-11

61-07-12

61-07-13

61-07-14

61-07-15

61-07-16

61-07-17

61-07-18

Definitions

Powers and Duties of the Office of Environmental Protection

Promulgate Rules and Regulations

Jurisdiction and Applicability

Enforcement

OEP Authorities, Responsibilities and Duties

Rules and Regulations Governing Hazardous Waste

Enforcement Penalties and Citizen Participation

Lead Based Paint

Lead Surveillance and Occurrence

Paint, Soil, Dust and Drinking Water Lead Analysis

Reporting without Liability

Classification of Data

Property Owner Responsibility

Clearance Inspection

Severability

Sisseton- Wahpeton Oyate

of the

Lake Traverse Reservation

CHAPTER 61

ENVIRONMENTAL PROTECTION CODE

Title I General and Administrative Provisions

61-01-01 Legal Authority

This Code is enacted pursuant to the sovereign tribal powers expressly delegated to the Tribal

Council in Article VII of the Tribe's Constitution, which authorizes the Tribal Council to manage

and otherwise deal with Tribal lands, natural resources and property; to promulgate and enforce

Codes providing for the health, safety, economic well-being and general welfare of the Tribe and

its members and residents; to maintain law and order on the Reservation; to administer justice on

the Reservation; to regulate Tribal committees, boards, agencies, and employees; and to delegate

to Tribal committees, boards, agencies, and employees, the foregoing powers, subject to review

by the Tribal Council. The jurisdiction of the Sisseton-Wahpeton Oyate shall extend to lands

lying in the territory within the original confines of the Lake Traverse Reservation as described

in Article II] of the Treaty of February 19, 1867 15 Stat. 505, and those lands subsequently

acquired by the Sisseton-Wahpeton Oyate. The Sisseton-Wahpeton Oyate reserves the right to

exceed requirements set in certain federal laws for the greatest protection of tribal members.

61-01-02 Purpose

The purpose of this Code is to preserve and protect the Sisseton Wahpeton Oyate’s natural

resource and property by establishing the Office of Environmental Protection (“OEP”) and

Environmental Protection Advisory Committee (“EPAC”), to insure that proper and meaningful

consideration of environmental and ecological factors, including the cultural, spiritual and

historical aspects of those factors, is taken by any person, government, district, agency, school,

program or corporate entity prior to approval of Activities within the original boundaries of the

Lake Traverse Reservation which may significantly affect Sisseton Wahpeton Oyate homelands

or the political integrity, economic security and specifically the health and welfare of the

Sisseton Wahpeton Oyate and its members.

61-01-03 Sovereign Immunity

The Sisseton-Wahpeton Oyate and all its constituent parts, including OEP, EPAC, and the

Environmental Hearing Panel, are immune from suit in any jurisdiction, except to the extent that

such immunity has been expressly and unequivocally waived by the Sisseton-Wahpeton Oyate of

the Lake Traverse Reservation (“the Tribe’). Nothing in this Code shall be construed as waiving

the sovereign immunity of the Tribe or any of its constituent parts as stated above. Nothing in

this Code, nor any appeal, action, appeal to Tribal Court, nor any enforcement action taken

pursuant to this Code, shall constitute a waiver of sovereign immunity as to any claim for

damages, attorneys fees or costs, regardless of whether any such claim arises out of the same

transaction or occurrence, or in any other respect. Nothing in this Code shall be construed as a

legislative declaration of tribal liability under tribal, federal or state environmental laws or as a

waiver of tribal sovereign immunity with respect thereto.

61-01-04 Definitions for Chapter 61

(a) “Administrator” means the Administrator of the OEP.

(b) “American Indian Tribe" is defined as any Indian tribe, band, nation, or community

recognized by the Secretary of the Interior and exercising substantial governmental duties

and powers within Indian country and listed in the Federal Register as a federally

recognized Indian Tribe. The term also includes a non-federally recognized and state

recognized Tribe.

(c) “Code” means this entire Chapter 61 and its relating and implementing regulations.

(d) “District Members” or “District Council” means all or one of seven (7) Districts of

the Lake Traverse Reservation. The seven districts are: (1) Heipa/Veblen, (2) Long

Hollow, (3) Buffalo Lake, (4) Enemy Swim, (5) Big Coulee, (6) Old Agency, and (7)

Lake Traverse. Each District Council consists of the adult members of the Tribe

registered on a District voting roster. Each District has an elected Chairman, Vice

Chairman, a Secretary, a Treasurer, and other committees.

(e) “Environmental Protection Advisory Committee (“EPAC”)” means the

Environmental Protection Advisory Committee of the Tribe.

(f) “EPA” or “Environmental Protection Agency: means the United States

Environmental Protection Agency.

(g) “Indian Country” is defined as and shall be construed as defined land as set forth in

the Treaty of February 19, 1867, 15 Stat. 505 between the Sisseton Wahpeton Oyate and

the United States, including such lands as defined in 18 U.S.C. §1151.

(h) “Indian” is defined as any person who: (1) is an enrolled or is enrollable as a member

of a federally recognized American Indian Tribe; or, a member of another non-federally

recognized American Indian Tribe; (2) is a member of a American Indian Tribe that is

recognized as eligible for the special programs and services provided by the United States

to Indians because of their status as Indians; or (3) holds or is recognized by the Secretary

of the Interior as eligible to hold trust or restricted property on the Reservation.

(i) “Office of Environmental Protection (“OEP”)” is defined as the Office of

Environmental Protection of the Tribe.

(j) “Sisseton Wahpeton Oyate Legal Department” (“Legal Department”) means the

Attorney or Attorneys retained or employed by the Tribe as the Tribe’s legal counsel.

(k) “Person” includes any individual over eighteen (18) years of age, partnership, firm,

public or private corporation, association, trust, estate, political subdivision or agency, or

any other legal entity or its legal agents or assignees, including a Department Administer

or Tribal Officer within the Tribe and its agencies, programs, schools, departments,

committees, districts and tribal businesses.

(1) “Reservation” or “Lake Traverse Reservation” is the area of land as set forth in the

Treaty of February 19, 1867, 15 Stat. 505 between the Sisseton Wahpeton Sioux Oyate

and the United States, including all lands, islands, waters, roads, and bridges, or any

interests therein, whether in trust or non-trust status and notwithstanding the issuance of

any patent or right-of-way, and such other lands, islands, water or any interest therein

thereafter added to the reservation.

(m) “Reservation environment” — means the physical and biological resources of the

Tribe within the original boundaries of the Reservation, including but not limited to land,

water, air, minerals, cultural, spiritual or historical sites, objects, humans, animal and

plant life and aesthetic values.

(n) “Tribe” or “tribal” is defined as the Sisseton Wahpeton Oyate and its agencies,

departments, committees and districts.

(o) “Tribal Council” is defined as the elected governing body of the Sisseton Wahpeton

Oyate.

(p) “Tribal Court” is defined as the Tribe’s Judiciary Branch.

61-01-05 Administration

OEP shall administer this Code.

61-01-06 Authority, Duties and Responsibilities of OEP

OEP shall have and may exercise the following authorities, duties and responsibilities:

(a) To take all administrative action necessary as provided for in this Code related to the

issuance, modification, renewal or enforcement of permits and/or provisions of this

Code;

(b) To investigate alleged violations of any provisions of this Code, regulations, or

permits and take enforcement actions described in 61-01-07;

(c) To encourage, participate in studies, research, and demonstrations with respect to

environmental pollution and cause, prevention, control and abatement thereof as it

deems necessary;

(d) To provide a work and learning site for interns whose educational goals include

working in the environmental professional area as part of their career training;

(e) To furnish, upon written request of the Tribal Council, and in compliance with

Sisseton Wahpeton Oyate administrative requirements, technical advice and services

relating to environmental pollution problems and control techniques;

(f) The OEP shall consult, provide technical advice and services with the Tribal Council,

Natural Resources Commission, and the Reservation Planning Commission, when

requested to do so, in all matters pertaining to environmental management, issues and

policies;

(g) OEP shall, in consultation with EPAC if warranted, draft and revise, as needed, this

Code, develop an Environmental Management Plan and regularly provide monthly

reports to EPAC on OEP’s activities, issues, and enforcement actions relative to this

Chapter 61. Both, the Code and Environmental Management Plan shall be submitted

to the Tribal Council for their review and approval. Tribal Council may require OEP

to submit the draft to the Tribal Judicial Committee;

(h) To conduct activities with the Reservation community population to provide fair

treatment and meaningful involvement in OEP decisions about proposed activities or

other issues or programs that will affect the Reservation environment and/or health;

(i) The OEP, in consultation with EPAC, shall conduct community education and

information sessions on environmental and natural resource issues. The OEP and

EPAC shall also solicit district and individual concerns, opinions and priorities on

these issues;

G) If OEP finds that any violation of program requirements by a non-Indian was willful,

or that a non-Indian person knowingly made any false statement, representation or

certification, or knowingly falsified, tampered with or rendered inaccurate any

required monitoring device, the OEP may refer the matter to the EPA for

enforcement; and

(k) Have all other authorities, duties and responsibilities as stated hereinafter in the

following Titles of Chapter 61.

61-01-07 Authority, Duties and Responsibilities of EPAC

(a) The EPAC has the duty to report to their respective districts on environmental issues.

EPAC will serve as a liaison between their respective districts and OEP.

(b) EPAC shall consult with and advise OEP on a regular monthly schedule in order to

assist OEP in fulfilling OEP’s duties and responsibilities based on input provided

from their respective districts.

61-01-08 Environmental Hearing Panel

(a) Establishment and Selection of an Environmental Hearing Panel (“EHP”).

1.

There is hereby established an Environmental Hearing Panel, to be composed

of three (3) members selected by Tribal Council. Panel members will consist

of qualified staff of the Sisseton-Wahpeton Oyate. Panel members will be

chosen, but not limited to, the Tribal Legal Department, OEP, THPO, or RPC.

2. Term. The EHP will serve for one (1) year.

3. Compensation. Panel members may receive a stipend, as the budget permits,

and may be reimbursed for any reasonable and documented expenses actually

incurred in connection with his/her performance of duties and responsibilities.

The Panel may establish a proposed budget for Tribal Council approval.

4, Duties.

i. Permit appeals, the issuance of order, the levying of penalties, holding

hearings and the making of any and all related decisions.

ii. Exercise all other authority delegated or conferred by law, or

reasonably necessary in the administration or enforcement of any Tribal

Environmental Law.

iii. Conduct administrative hearings contemplated herein.

61-01-09 Enforcement

(a) In the case of an apparent violation of this Code, with the exception of specifically

stated enforcement processes set forth in the respective Titles and applicable to that

respective Title only, the OEP is authorized to issue a Notice of Violation to the

person(s) apparently responsible for the violation. Both a Notice of Violation and a

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

and/or a Desist Order should also contain how the violation can be remedied.

(b) Should no action be taken from the Notice of Violation and/or Desist order within ten

working days, OEP will issue a Summons to appear at an administrative hearing

conducted by the Environmental Hearing Panel at a specified time and date.

1.

If the action constitutes an emergency OEP may need to take immediate

action in Tribal Court and/or other actions to remedy the situation. In some

instances OEP may also need to contact the EPA. Such instances would

include disaster or other emergency situations.

61-01-10 Regulations

In addition to the requirements of this Code, persons, actions, and activities subject to this Code

10

are required to be in full compliance with regulations enacted in support of and as part of this

Code.

61-01-11 Special Provisions for Tribal Departments and Agencies

In any case in which an entity of the Sisseton Wahpeton Oyate or any Tribal agency or

department is alleged to have violated the terms and conditions of a permit, or to have conducted

activities without a permit, the OEP shall bring the matter to the attention of the Tribal Chairman

who shall take action to resolve the matter informally; or provide OEP with a written procedure

to follow to resolve the matter. In the event a conflict arises with a Tribal Chairman, the full

Tribal Council may need to resolve the matter informally upon request of OEP.

61-01-12 Appeals

Any person claiming to be aggrieved or adversely affected by final administrative action taken

by the OEP may appeal to the Environmental Hearing Panel. The panel will schedule a hearing

within thirty (30) days. Persons requesting an appeal may indicate within their request whether

thirty (30) days would create an unreasonable hardship. All appeals must be provided in writing

to the SWO Legal Department.

61-01-13 Administrative Hearing

(a) Appeal from an Administrative Hearing must be made to Tribal Council within

thirty (30) business days from the date of the Administrative Hearing. All Tribal

Council decisions are final. Appeals made after three (3) business days will result in

an untimely appeal and will be barred.

(b) If the violator does not attend the Administrative Hearing, the violator will be

assumed to waive their opportunity to be heard and appeal to Tribal Council. In this

instance the Administrative Hearing decision will be final.

61-01-14 Severability

Invalidated sections of this code by Tribal Court or any federal court shall not affect other

provisions or applications of this Code, which can be given effect without regard to the invalid

provision, or application, and to this end the provisions of this Code are severable.

1]

Title Lf - Tribal Environmental Policy Act ((TEPA”)

61-02-01 Purposes

There are two primary purposes for this Title I]: a) To insure that proper and meaningful

consideration of environmental factors, is made by any person, government, or corporate entity

prior to approval of activities within the Reservation which may significantly affect Sisseton

Wahpeton Oyate homelands, the political integrity, economic security, specifically the health and

welfare of the Sisseton Wahpeton Oyate; and b) to assure that the groups, individuals, or

institutions potentially affected by the activities are adequately informed about the activity.

61-02-02 Definitions for Title Ti

For the purposes of this Title U, the following terms shall have the meanings set forth below:

(a) “Action” — means a new and/or continuing set of activities, including projects,

programs, and revised codes or regulations entirely or partly financed, assisted,

conducted or approved by a Tribal department. Example: construction of a school, or

housing project.

(b} “Activity” or “activities” — means a portion of an action that includes: (1) any

significant disturbance of land surface or subsurface within the Reservation; and (2)

any other significant disturbance within the Reservation, including research projects;

that impact water, domestic and wild animals, air, plants or humans, their facilities

and/or cultural, spiritual or historical sites and objects.

(c} “Affect” — means for the purposes of this Title {] the same as impact.

(d) “Applicant” — means the person, entity, or agency requesting a permit to conduct an

Activity or Action, as defined in this Act, within the Reservation.

(e) “Environmental documents” - means for the purpose of this Title [J — Tribal

Environment Policy Act, the following definitions:

(1) Environmental assessment (EA) - a document designed to assist in

determining whether impacts of a proposed activity are significant or not.

(2) Environmental impact statement (EIS) — an in depth analysis of the proposed

activity which have or may have a significant impact on the Reservation

environment.

(3) Finding of no significant impact (FONSD — a determination that no EA or EIS

is required for the proposed activity or activities and a permit may be issued;

or, that minor special conditions or mitigations may be required and a permit

may be issued with the special conditions or mitigations set forth in the

permit.

(f)

(g)

(h)

(i)

(i)

61-02-03

(a)

(4) List of categorical exclusions (CE) — a list of activities maintained and

published by OEP that have been determined to not have possible significant

environmental impacts and will be excluded from in depth environmental

analysis.

(5) Environmental permit (permit) — the document issued by OEP to applicants

after environmental review that will contain the permission to proceed with

the action and any required special conditions or mitigations; or issued as a

categorical exclusion.

(6) Record of decision — The final decision document issued so that the reader can

understand these major issues without referring to the EA or EIS. The record

of decision is signed by OEP with enough information on reasons for: 1)

disapproving the permit; or 2) the alternatives and their impacts, the rationale

in selecting the chosen alternative, and the extent of mitigation and monitoring

the public can expect.

“Permit applicant” — means any person or Department Administrator, Program

Director or Tribal Officer filing an application with OEP for an Environmental

Permit.

“Person” — means any individual over eighteen (18) years of age, partnership, firm,

public or private corporation, association, trust, estate, political subdivision or

agency, or any other legal entity or its legal agents or assignees, including a

Department Administrator, Program Director or Tribal Officer within the Tribal

Government, its agencies, departments, committees, and sub-entities.

“Pollutant” — means any substance or energy entering the environment as a direct or

indirect result of human activity that alters or has the potential to alter the physical,

chemical, biological, cultural, spiritual or aesthetic properties of the environment.

“Primary Family Residence”- A home where a family lives continuously for a

minimum of six months. This home is recognized as a being the permanent residence

for a family. Primary Family residence status is evidenced by the family calling the

home in question its permanent residence, the family’s ability to receive its mail

there, the family being seen by neighbors and community members as living there on

at least a weekly basis, and by the home being recognized as the primary residence

of the family by tribal programs and/or one of the resident’s employers.

“Tribal Environmental Policy Act” (TEPA) — means this entire Title II.

General Roles

OEP shall draft regulations for the administration and enforcement of this TEPA, and

present to Tribal Council for approval. OEP shall then inform the public.

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(b) OEP shall post in public places, and on the OEP Website a listing of proposed

activities that are: 1) categorically excluded, 2) possibly harmful and in need of an

EA; or 3) to have “low impact” on the environment and not subject to in-depth study.

(c) OEP shall have the administrative responsibility as the initial contact for permit

applicants. Within 30 ‘days of receipt of the permit application, OEP shall provide a

report to EPAC that a permit application has been filed and include a brief description

of the proposed activity. In some instances OEP may find no need for an applicant to

need a permit. OEP will then post such an instance as stated in (b) above.

(d) OEP shall have responsibility for maintaining a reference system of permit

applications filed with OEP and determinations made on permit applications.

(e) Within thirty (30) days of receipt of the permit application, and any draft

environmental documents, the OEP shall make a preliminary determinations whether

a proposed activity based on the nature of the activity: 1) could have “significant”

adverse impacts; 2) is on the list of categorical exclusions; 3) possibly harmful and in

need of an environmental assessment; or 4) probably, more likely than not, has no

significant adverse environmental impact or “low impact” on the environment and is

not subject to in-depth study.

(f) All permits are one (1) year or less in duration. Should a project’s duration exceed

one (1) year, a permit must be renewed prior to the end date of the original permit.

(g) If the OEP’s preliminary determination is that there is no significant impact or need

for in-depth environmental study, OEP shall issue the environmental permit and, if

needed, state any required special conditions or mitigations to be set forth in the

environmental permit.

(h) If the permit applicant is a Department Administrators, Program Director or Tribal

Officer, he/she shall prepare his/her own respective environmental documents based

on their span of authority over their program responsibilities.

(i) If a proposed activity requires an EA or EJS, a public hearing shall be scheduled by

the permit applicant to take place within thirty (30) days of receipt of notification by

the permit applicant that an EA or EIS is required. The permit applicant shall hold

the hearing and the applicant shall be given an opportunity to give a presentation on

the proposed activity for a reasonable amount of time. The notice shall state the time

and place of the hearing and state the subject matter. The notice shall be published in

the tribal newsletter at least fifteen (15) days before the hearing is held.

(j) The permit applicant shall, according to the provisions of this TEPA, write the draft

environmental documents, (that is, the draft EA or EIS, draft Permit, mitigated

FONSI, and draft record of decision) and make the draft environmental documents

available for public review for at least thirty (30) days.

14

(k) Within ten (10) days of receipt of the draft environmental documents from the permit

applicant, the OEP shall make a final decision on whether the environmental

documents are adequate and sufficient to make a final decision on the permit

application. The OEP shall approve, approve with conditions, or disapprove the

permit application. OEP shall issue the environmental permit. The OEP shall advise

the permit applicant of the appeal procedures.

(1) If a non-tribal permit applicant or person contests the OEP’s final decision, the

applicant or person may request a public hearing before the EHP. A request for

hearing must be filed within fifteen (15) days of the date of the OEP’s signature on

environmental documents. The EHP shall conduct the public hearing and issue an

administrative order deciding the matter.

61-02-04 Types of Land-Use Activities this TEPA applies to:

(a) Every person seeking to conduct an activity defined by §61-02-02(b) shall submit a

permit application to OEP.

(b) Structures in existence prior to the adoption of this Title and homes that serve as

Primary Family Residences for SWO tribal members are exempt from the permit

requirements of this Title. Modification to such structures or any new or additional

activities constructed on the structure must have a permit or an exemption letter as

required by this Title.

(c) All persons, entities, or agencies conducting any of the following activities within the

exterior boundaries of the Reservation shall be required to obtain an environmental

permit prior to taking any physical action upon the environment:

(1) Preparation of a site for the construction of a building or area for purposes of

human habitation, business use, or public area;

(2) Construction, placement, or expansion of any structure to be used for

industrial, commercial, or residential purposes;

(3) Construction, placement, or expansion of any public or private road or bridge,

right of way, transportation facility, or public facilities of any nature; or

(4) Other activities such as constructing dams and timber harvest; and

other potential ground or air disturbing activities.

(d) Each issued permit shall contain the following statement to which the permittee must

agree and subscribe for the permit to be complete and as a condition precedent to the

final issuance of any permit:

“Permittee consents to the jurisdiction of the Sisseton Wahpeton

Oyate/Oyate with respect to those activities conducted pursuant to this

15

permit issued by the Office of Environmental Protection pursuant to the

provisions of the Sisseton- Wahpeton Oyate Tribal Environmental

Protection Code. This consent shail be effective when a permit is issued

and may not be withdrawn. This consent shall extend to and be binding

upon all successors, heirs, assigns, employees and agents including

contractors and subcontractors of permittee whose activities fall within

the scope of the issued permit.”

61-02-05 Direct and Indirect Casts of Permit Application Process

(a) An application fee shall be paid by the permit applicant prior to processing the

application in an amount determined by OEP and set forth in regulations approved by

Tribal Council.

(b) The permit applicant may be required to pay for the direct and indirect costs of

environmental review, including costs of necessary studies, consultants, and

preparation of any required environmental documents including the EA or E[S and

record of decision.

(c) If the action is a tribal activity or project and the Department Administrator, Program

Director or Tribal Officer has submitted the permit application, the Tribe shall fund

the cost of the direct and indirect costs of environmental review, including costs of

necessary studies, consultants, and preparation of any required environmental

documents including the EA or EIS and record of decision.

61-02-06 Environmental Review Procedure

(a) In addition to requirements set forth in regulations implementing this Title, the

general content to be included in the ETS includes:

(1) The environmental impacts of the proposed activity or activities;

(2) Any adverse environmental effects which cannot be avoided should the

project be implemented;

(3) Alternatives to the proposed action; and

(4) Environmental impacts of the proposed alternatives.

(b) Tribal regulations implementing this Title provides specific EIS format requirements

which include:

(1) Cover sheet; Summary page; Purpose and Need Statement; Description of the

proposed activity and alternatives; Description of the affected environmental

areas; Environmental consequences; List of preparers; and an Appendix.

(c) EIS analysis requirements are specifically set forth in regulations which generally

include:

(1) Use of a systematic, interdisciplinary approach that insures the use of natural

and social sciences;

(2) Application of best available science to the proposed activity and alternatives;

(3) Examination of the relationship between local, short-term uses of the

environment and the maintenance and enhancement of long-term productivity;

(4) Any irreversible and irretrievable commitments of resources which would be

involved if the proposed action were to occur;

(5) The analysis of cumulative impacts;

(6) The analysis of social, cultural, and economic impacts; and

(7) Any beneficial impacts the project may produce.

(d) An activity may be deemed to have a significant environmental impact if any of the

following conditions (but not limited to the following conditions) stated below, exist:

(1) The proposed activity has been determined by a federal, local, or state agency,

to have a significant environmental impact;

(2) The proposed activity may significantly affect the pattern and type of land use

(industrial, commercial, agricultural, recreational, residential) or growth

and/or distribution of the significant percentage of the population of the

Reservation;

(3) The effects resulting from any structure or facility constructed or operated

under the proposed activity may conflict with Tribal, local, regional, Federal

or State land use plans or policies;

(4) The proposed activity may significantly affect wetlands, including indirect

and cumulative effects, or any major part of a structure or facility constructed

or operated under the proposed action may be located in wetlands;

(5) The proposed activity or any structure or facility constructed or operated

under the proposed activity may significantly affect threatened and

endangered species or their habitats identified by the Department of Interior’s

list or the Tribe’s list;

(6) Implementation of the proposed activity may directly cause or induce changes

that significantly displace population; adversely affect the character of

17

existing residential areas; adversely affect a floodplain; or adversely affect

significant amounts of important farmlands;

(7) The proposed activity may, directly, indirectly or cumulatively have

significant adverse effects on parklands, preserves, or other public lands or

areas of recognized scenic, recreational, archaeological, cultural, spiritual or

historic value; and/or

(8) The proposed activity may, directly or through induced development, have a

significant adverse effect upon local ambient air quality, local ambient noise

levels, surface water or groundwater quality or quantity, water supply, fish,

shellfish, wildlife, and their natural habitats.

61-02-07 Permit Limitations, Conditions and Mitigation

(a) After a final determination by OEP, upon finding no significant environmental

impact, determining whether a categorical exclusion applies, or upon the completion

of an EA or EIS, OEP will issue the permit.

(b) In issuing a permit, OEP may include conditions and mitigation requirements to

reduce, prevent, or mitigate significant adverse impacts and to protect the Reservation

environment from degradation. Mitigation may include monetary compensation to

the Tribe or others for adverse impacts to the Reservation environmental and natural

resources, and may also include requirements of replacement or restoration of

impacted resources.

61-02-08 Record of Decision

(a) In addition to requirements set forth in regulations implementing this Title, within

fifteen (15) days of the OEP’s decision to sign the final EA or EIS, to issue a permit,

to deny a permit, or to issue a permit subject to conditions, the OEP shall write a

record of decision which shall briefly state:

(1) The reason(s) in support of the decision;

(2) Advise the applicant of the procedure to be followed if the applicant chooses

to appeal the decision;

(3) Inform the applicant of what the conditions are, if the permit is issued subject

to conditions;

(4) If the permit is denied, advise the applicant whether the OEP would

reconsider the applicant if certain changes were made; and

(5) Advise the applicant that failure to comply with the order may be grounds for

enforcement and penalties under this Title.

18

(6) Advise the applicant of the appeals process under this Title.

(7) Post the permit information on the OEP website.

61-02-09 Enforcement

(a) OEP shall enforce this Title, with the assistance of the Tribe’s law enforcement

officials in emergency situations. OEP shall have the authority to bring emergency

actions in Tribal Court when necessary. Such actions against the Sisseton-Wahpeton

Oyate, its agencies, departments, committees, or other sub-entities shall be limited to

the issuance of declaratory and/or injunctive relief and shall be brought to the Tribal

Chairman for resolution.

(b) Any person who fails to comply with any provision of this Title shall be subject to

penalties as well as any other remedies set forth herein or in implementing

regulations. In the event of non-compliance, the OEP shall serve the alleged violator,

in person or by certified mail, with a notice of non-compliance. The notice of noncompliance shall further state which provisions of this Title are allegedly not being

complied with. The notice of non-compliance shall further specify the remedial

action(s) that must be taken to correct such non-compliance, as well as the Title

provisions or regulations mandating that such action(s) shall be taken.

(c) Any permit issued by the OEP may, after an opportunity for a hearing, be modified,

suspended, or revoked, in whole or in part, for cause, including but not limited to:

(1) Violation of any terms or conditions of the permit or this Title;

(2) Misrepresentation or failure to disclose fully all relevant information; or

(3) A change in any condition that requires either a temporary or permanent

modification or cancellation of the permit.

(d) Whenever, on the basis of any information available to it, the OEP finds that there is

cause for modifying, suspending, or revoking a permit, in whole or in part, the OEP

shall notify the permittee by certified mail or personal service of its intention to

modify, suspend, or revoke the permit, in whole or in part. Such notice shall specify

the information upon which the OEP relies, and, if OEP intends to modify the permit,

shall explain the modifications that OEP intends to make in the permit. Such notice

shall be both published and posted in one or more public places in a timely manner.

OEP shall hold a public hearing and give public notice of the date, time, and place of

the public hearing on a proposed permit modification, suspension, or revocation

within thirty (30) days of the public hearing.

(e) In the event of non-compliance with any notice of non-compliance, the OEP may

order the cessation of such activity without additional notice to the alleged violator if

19

(f)

the non-compliance is not remedied within five (5) days of the public hearing. The

alleged violator shall be served with a statement of the reason(s) for the cessation

order, and the actions the alleged violator must take before the order will be lifted. A

copy of this cessation order and a statement of reasons(s) for the order shall be

promptly delivered to the Chairman of the Sisseton Wahpeton Oyate.

In the event an alleged violator fails to take action in accordance with a cessation

order served pursuant to this Title, the OEP may pursue one or more of the following

remedies:

(1) Continue its cessation order;

(2) Impound vehicles and equipment after written notice to the alleged violator;

(3) Request the Secretary of the Interior to serve notices of intent to cancel any

relevant lease pursuant to federal law for using the leased premises for

unlawful conduct or for an unlawful purpose, specifying the basis for the

notice; and/or

(4) Assess penalties as set forth in this Title and take any other action deemed

appropriate so long as the rights of due process guaranteed by the Indian Civil

Rights Act, 25 U.S.C. §§ 1301 et seg., and the Constitution of the Sisseton

Wahpeton Oyate are not infringed upon.

(g) Civil Penalties — Any person found violating this Title shall be subject to civil

penalties of up to five thousand dollars ($5,000.00) per day for each day of such

violation or continued violation of an order to cease Activity. The OEP shall

personally, or via certified United States mail, first class, serve the alleged violator

with notice of the penalty. The penalty shall be due and payable to the OEP within

twenty (20) days of such notice. Failure to pay any penalties imposed shall be

considered an additional violation of this Title.

(h) Any person aggrieved by any enforcement action taken by the OEP may appeal to the

61-02-10

Environmental Hearing Panel and request a hearing for consideration and

determination of whether OEP’s enforcement action is fair, just and supportable by

the circumstances. The filing of an appeal shall not stay any order to cease an

activity, impound vehicles or equipment or both and/or restrict access to the site of

any operation, or pay penalties.

Severability

The provisions of this Code are severable. If any provision or part is held invalid,

unconstitutional, or inapplicable to any person or under any circumstances, such invalidity,

unconstitutionality, or inapplicability shall not affect or impair the remaining provisions of the

Code.

20

Tithe 1 ~ Water Quality

61-03-01 Scope

This Code applies to all Reservation waters and all persons, Indian or non-Indian, and entities

that are subject to the Tribe’s jurisdiction under Sisseton-Wahpeton Oyate Law and Order Code

Chapter 20 Jurisdiction - Civil and Criminal Jurisdiction.

61-03-02 Findings, Policy and Purpose

The Tribe finds that the pollution of Reservation waters is detrimental to the political integrity,

economic stability and specific Sealy the health and welfare of tribal members and the best interests

of the Tribe are served by vigorous efforts to protect and improve the water quality of the Lake

Traverse Reservation. The Sisseton Wahpeton Oyate assumes primary responsibility for the

regulation of water quality on Reservation waters. Water Rights are inherent rights which the

Sisseton-Wahpeton Oyate holds. Therefore, the declared as public policy of the Sisseton

Wahpeton Oyate to preserve, enhance and maintain reasonable standards of purity of the waters

on the Lake Traverse Reservation as the permanent homeland of the Sisseton Wahpeton Oyate

by providing a comprehensive program for the prevention, abatement, and control of water

pollution within the original 1867 Lake Traverse Reservation boundaries. Additionally, the

Tribe finds that all waters reserved by Treaty are held by them in Trust for the benefit of the

Reservation public and for certain inalienable public uses and that as an essential attribute of

sovereignty, the power to determine the proper uses of said waters and the management is the

Sisseton Wahpeton Oyate’s alone. It is therefore declared as public policy of this Title to

(a) Preserve, enhance and maintain reasonable standards of purity of the waters of the

Reservation as the permanent homeland of the Sisseton Wahpeton Oyate and provide

for public water supplies, and propagation of wildlife, preserve wetlands, and fish and

other aquatic life, and for domestic, recreational, agricultural, industrial, cultural and

other beneficial uses;

(b) Eliminate the discharge of all unpermitted and untreated pollutants into Reservation

waters, and prohibit the discharge of toxic pollutants;

(c) Provide for public participation in the development, revisions, and enforcernent of

any regulation, standard, effluent limitation, or plan established under this Title;

(d) Cooperate with, and, where appropriate, enter into agreements with federal, state,

regional, local and other tribal agencies, private organizations, and individuals to

improve or restore the quality of Reservation waters; and,

(e) Assume primary responsibility for the regulation of water quality on Reservation

waters, pursuant to the federal Clean Water Act.

NO

61-03-93 Role of the Office of Exvironmental Protection

The Office of Environmental Protection shall administer and enforce this Code and any

applicable regulations, rules, standards, permits or order issued pursuant to this Code. The OEP

shall be designated as the Sisseton Wahpeton Oyate water pollution control agency for all

primary functions of management and protection of water resources for Reservation waters as set

forth in the CWA and related federal laws.

61-03-04 Responsibilities, Authority and Duties of the OEP

The OEP shall have the following responsibilities, authorities and duties:

(a) Recommend to Tribal Council and notify the EPAC for adoption:

(1) Cade revisions, regulations, water quality standards, effluent standards and

limitations, new source performance standards and related criteria for the

Lake Traverse Reservation waters:

(2) The classification of Reservation waters, the types of classes and the particular

class into which any discrete segment of Reservation waters is placed;

(3) Regulations controlling discharges by point sources, providing for the testing

and measuring of sewage, industrial wastes, or other wastes, at their outlet

into classified Reservation waters:

(4) A point source and non-point source management plan to be incorporated into

the comprehensive water quality management plan;

(3) A comprehensive water quality management plan for public hearing; and

(6) Rules or regulations providing for the certification of facilities or activities

subject to federal Hcensing requirements.

(b) To manage and protect the water resources of the Reservation by:

(1) Setting requirements for the owner or operator of a point source ta keep

records, provide information and conduct monitoring and sampling;

(2) Entering and inspecting at any reasonable time any Reservation property,

premise, or place to investigate any activity causing, threatening or allowing

water pollution or to ascertain compliance with any permit, rule or order

promulgated under this Code;

(3) Investigating through on-site inspection, at any reasonable time any

Reservation property, to ensure compliance with the water quality standards,

permit, rule or order;

61-03-05

(4) Systematically monitoring the quality and quantity of Reservation waters by

sampling and testing for the presence of pollutants and for compliance with

water quality standards and related permit(s), rule(s), or order(s);

(5) Encouraging voluntary cooperation by all persons in preventing and abating

pollution of Reservation waters through public information campaigns or

other information distribution programs;

(6) Issuing, suspending, revoking, modifying or denying National Pollution

Discharge Elimination System (NPDES) permits;

(7) Issue a Notice of Violation and/or a Cease and Desist Order for violations of

this Code, permit(s), regulations(s), rule(s) or order(s); and,

(8) Bring an enforcement action against the alleged violator in Tribal court in

emergency situations. In situations that do not require emergency action OEP

will notify the alleged violator of appearance before the Environmental

Hearing Panel.

(9) Within 90 days of passage of this Chapter 61 Environmental Code by SWO

Tribal Council, issue an emergency contingency plan to implement authority

in agreement with Title I] until regulations submitted by OEP to the EPAC

and the Tribal Council in accordance with this Title have been passed into

law.

Definitions

Where no specifically defined terms are set forth in this Code, the definitions contained in the

Clean Water Act and its implementing regulations shall be applied. When used in this Code, the

following words shall have the meanings ascribed to them.

(a) “Agency” is defined as any governmental executive department, division, bureau, or

(b)

other unit of the tribal, federal, local, or state government or a regional water quality

entity, which has been granted lawful authority to enter into contacts or agreements

and which has been assigned or is subject to legal obligations to restore, maintain, or

protect water quality or water quantity within the boundaries of the Reservation.

“Best management practices” (“BMP”) is defined as schedules of activities,

operational practices, maintenance procedures, or other management practices

adopted by regulation, rule or incorporated by an agency as a condition of a permit,

contract or order to prevent or reduce the pollution of waters. BMP’s 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.

23

(c)

“Chemigation” means any process whereby fertilizers or pesticides are added to

irrigation water applied to land or crops or both through an irrigation system.

(d) “Clean Water Act” (or “CWA”) (formerly referred to as the Federal Water Pollution

(e)

(f)

(g)

(h)

(i)

Gj)

(k)

(1)

Control Act or Federal Water Pollution Control Act Amendments of 1972) Pub. L.

No. 92-500, as amended by Pub. L. No. 95-576, Pub. L. No. 96-483, and Pub. L.

No.97-117, 33 U.S.C. § 1251 ef seq. as in effect on January 1, 1992.

“Degradation”- refers to the polluting of a water body where condition, quality or

level of the water is lowered.

“Discharge” or "discharge of pollutant" is defined as any addition of an identifiable

substance or a pollutant or combination of pollutants to waters from any point source.

“Effluent limitation” is defined as any restriction or prohibition established under

this Code, by the OEP or EPA on quantities, rates, and concentrations of chemical,

physical, biological, and other constituents which are discharged from point sources

into Reservation waters, including but not limited to: standards of performance for

new sources, and schedules of compliance.

“NPDES” is defined as National Pollution Discharge Elimination System.

“Owner” or “Operator” is defined as any person who owns, leases, rents, operates,

controls, or supervises a source, or real property, which is subject to the application of

best management practices.

“Person” or “Persons” is defined as any individual, public or private corporation,

political subdivision, government agency, district, program, school, tribal business,

municipality, industry, co-partnership, association, firm, trust, estate or any other

legal entity.

“Point Source” is defined as any discernable, confined and discrete conveyance,

including but not limited to any pipe, ditch, channel, conduit, dam gate or spillway,

well, discrete fissure, container, rolling stock, concentrator animal feeding operation,

or vessel or other floating craft from which pollutants are or may be discharged.

“Pollutant” or “Pollutants” is defined as dredged soil, slurry, solid waste, incinerator

residue, garbage, sewage sludge, munition, chemical wastes, biological material,

radioactive material, heat, wrecked or discarded equipment, rock, cellar dirt and

industrial, municipal, or agricultural waste discharged into water.

(m)“Pollution” is defined as any contamination, or other alteration of the physical,

chemical or biologic properties, of any Reservation waters, 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 Reservation waters as

will or is likely to create a nuisance or render such waters harmful, detrimental or

24

injurious to public health or safety, or to domestic, commercial, industrial,

agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild

animals, birds, fish or other aquatic life.

(n) “Reservation Waters” or “Waters” is defined as all waters, surface or subsurface,

arising upon, occurring within or flowing through the Lake Traverse Reservation

lands including, without limitation, all waters within the jurisdiction of the Sisseton

Wahpeton Oyate under the 1867 Treaty, including all streams, lakes, ponds,

impounding reservoirs, marshes, watercourses, waterways, wells, springs, irrigation

systems, drainage systems and all other bodies or accumulations of water, surface and

underground, natural or artificial, public or private, situated wholly or partly within or

bordering upon the Lake Traverse Reservation, but not waste treatment systems,

including treatment ponds or lagoons designed to meet the requirements of the CWA

other than cooling ponds as defined in 40 CFR § 423.11(m) Quly 1,1991).

(o) “Water Quality Standard” means any standard adopted pursuant to this Code or

contained within any regulation(s), rule(s), which defines the water quality goals of a

water body, or portion thereof, by designating the use or uses to be made of the water,

or by setting criteria necessary to protect the uses, or by protecting water quality

through anti-degradation provisions.

61-03-06 Unlawful Acts

Except as may be permitted under this Title, no person shall cause or allow the discharge of any

pollutant from a point source or nonpoint source that reduces the quality of the waters of the

Lake Traverse Reservation to below the standards established pursuant to established OEP

regulations and this Title. No person shall violate the terms and conditions of any pollution

discharge or activity permit or regulation issued pursuant to Title III.

61-03-07 Effect of Regulations by OEP

Upon promulgation of regulations, pursuant to Title II], no person who complies with those

regulations may be found liable for illegal pollution as the result of an activity conducted

consistent with such regulations.

If conduct of an operation consistent with the regulations results in a violation of the water

quality standards established here, including its antidegradation policy, the OEP shall order the

person responsible for the violation to alter his operation in a manner to prevent the violation and

shall give him a reasonable time to bring his operations into compliance. At the end of that

reasonable time, the person responsible shall be fully liable for illegal pollution under the terms

of this title.

25

61-03-08 Reservation Waters Protected

Under no circumstances may the degradation of the water quality of unique Lake Traverse

Reservation waters be allowed. These Reservation waters are found within the original 1867

treaty boundaries of the Sisseton Wahpeton Oyate Lake Traverse Reservation. Such unique

reservation waters shall be identified as, but not limited to, the following reservation waters:

Common Name

(a) Anderson Lake

(b} Big Coulee Creek

(c) Big Sioux River

(d} Big Spring Creek

{e) Bitter Lake

(f) Biluedog Lake

(g) Bois de Sioux River

(h) Buffalo Lake

G) Campbell’s Slough

(j) Clear Lake

(k) Cottonwood Lake

G) Crystal Lake

{m) Dobberstein’s Lake

(n) Dry Wood Lake

(o} Dumarce Lake

(p) Enemy Swim Lake

(q) Flat Lake

(rt) Goodwill Creek

(s) Gray’s Lake

Dakota Name

lyapkaptapi Wakpadan

Cankasdeca; Wakpa [paksan

Canzi Mde

Sunka Totawa

Can intpa wakpa

Canowan Nasapi

Waga Hde Hde

Mde Izuza

Can Sica Ozu

Toka Nuwan Yapi

Headman Slough

Hill Lake

Hillebrand Slough

Hurricane Lake

Island Lake

Jim Creek

Jorgenson River

Knebel Slough

LaBelle Creek

} Lake Bde-Saka

Lake Emma

Lake Traverse

Lake Whipple

Little Minnesota River

Lonesome Lake

Martha Lake

Mud Lake

Munson Creek

Nollie Lake

(mm)One Road Lake

(nn)

(00)

(pp)

Owl Lake

Pearson Slough

Pickerel Lake

Made Itancan

Bde-Saka

Mde Hdakinyan

Wakpa Minisota

Mde Inkpa

Mde Canku Wanca

Hinhankaga Ota

Tamahe Hansha Ocapa

(qq) Piyas Lake

(rr) Red Iron Lake

(ss) Road Lake

(tt) Shortfoot Creek

(uu) Spring Lake

(vv) Summit Lake

(ww) Tahana Lake

(xx) White Lake

(yy) Whiterock Reservoir

(zz) Wild Rice River

(aaa) Whitestone Lake

Mazaska Mde

Mde Canku

Kandi Kasta Ktepi

Mde Tahan

Psin Hu Wakpa

61-03-09 Permit to Degrade Reservation Waters

Upon petition in accordance with this title, the OEP shall, in agreement with the public hearing

procedures, decide whether to issue a permit to conduct an activity that will cause or allow the

discharge of a pollutant into any body of reservation water for which water quality standards are

established. If an applicant seeks a point source discharge permit, he shall include the request for

water quality degradation in the permit application.

61-03-10 Emergencies

Whenever the OEP determines, after investigation, that a person is engaged in an activity

causing, threatening, or allowing the discharge of a pollutant into Reservation waters, which the

OEP reasonably believes to constitute a clear, present, and immediate danger to human health,

safety or Reservation waters, the OEP shall issue a written order to the person to immediately

cease or prevent the discharge of the pollutant into the waters.

Upon application to and upon a determination by OEP that an emergency exists, the OEP may

authorize short term degradation of water quality (not to exceed 30 days) in any body of water

for which water quality standards are established, in particular, Lake Traverse Reservation

waters. If the applicant seeks a point source discharge permit, he shall include the request for

short term water quality degradation in the petition.

(a) An emergency is defined as circumstances that threaten the public health or welfare

or prevents essential activities from proceeding.

28

(b) The OEP may permit such short term degradation only if it determines that clear and

convincing evidence demonstrates that the degradation will not cause long term

injury or interference with water quality and the designated beneficial use is for the

affected water body.

(c) In cases involving emergencies, the OEP shall, at a minimum, provide notice of his

action to the tribal council and post notice in local tribal newspaper, the Sota Iya Ye

Yapi. In addition, the OEP shall provide the closest approximation to the informal

hearing procedures set forth, taking into account the nature of the emergency.

(d) In circumstances the OEP determines to be emergencies, the OEP may shorten the

time within which the permit becomes effective unless the OEP or the permittee acts

to stay the decision upon appeal.

61-03-11 Permit for Point Source Discharge

(a) Federal and Tribal permits required.

(1) Any point source discharge of pollutants into the waters of the reservation

requires a permit from the federal Environmental Protection Agency. No

person may discharge any pollutant from a point source into waters of the

reservation without having first obtained a permit from the EPA.

(2) Further, no person may discharge any pollutant from a point source into

waters of the reservation without first having obtained a permit from the

Tribal OEP.

(b) Tribal permit for point source discharge.

(1) In lieu of petition for permit as required in §61-03-09, the applicant shall

provide to the OEP a complete and full copy of his petition to the federal EPA

at the same time as it is supplied to the EPA.

(2) Upon receipt of a complete permit application, the OEP shall immediately

contact the appropriate federal EPA office and advise it of the OEP’s intent to

review and provide public participation concerning the permit. The OEP shall

request that the EPA not act prior to the conclusion of the tribal process.

(3) Within 10 days of having first received petition for the permit, the OEP may

request the applicant to supply within a reasonable time such additional

information as he deems necessary to permit a thorough review of the petition.

If the applicant fails to submit the requested information within the reasonable

time established in the OEP’s request, the director may reject the petition for

such failure.

29

(4) Upon receipt of a complete permit petition/application, the OEP shall, in

accordance with hearing procedures, determine whether to issue the requested

permit. The OEP shall grant the permit only if it finds, by clear and

convincing evidence, that, the discharge will not result to a violation of the

water quality standards set forth by the OEP (under established water quality

standards), the discharge will not interfere with or injure existing beneficial

uses, and that the discharge does not have a direct, detrimential effect on

wildlife, vegetation (such as native plants), sacred sites and other

environmental features that the Sisseton Wahpeton Oyate continue to hold in

reverence under their tribal belief system and as an integral part of their

cultural heritage.

(5) If the federal EPA has not yet issued a permit, the OEP shall urge the EPA to

act consistently with the decision on the tribal permit. Ifthe EPA has issued

the permit, the OEP shall insure that the OEP’s permit conditions are at least

as stringent as those in the EPA permit.

(6) Each issued permit shall contain the following statement to which the

permittee must agree and subscribe for the permit to be complete and as a

condition precedent to the final issuance of any permit:

“Permittee consents to the jurisdiction of the Sisseton Wahpeton

Oyate/Oyate with respect to those activities conducted pursuant to this

permit issued by the Office of Environmental Protection pursuant to

the provisions of the Sisseton- Wahpeton Oyate Tribal Environmental

Protection Code, in particular Title III. This consent shall be effective

when a permit is issued and may not be withdrawn. This consent shall

extend to and be binding upon all successors, heirs, assigns,

employees and agents including contractors and subcontractors of

permittee whose activities fall within the scope of the issued permit.”

61-03-12 Terms of Permits Issued Under This Title; Relationship of Tribal Permits to

EPA Permits

A permit granted under this title shall have the same term as and shall expire at the same time as

any EPA permit granted for the same discharge. In the absence of an EPA permit, the term of

the tribal permit shall govern. In no event shall a tribal permit issued under this title be deemed

to reduce conditions contained in an EPA permit for the same discharge; however, where

conditions contained in the tribal permit are more protection on the reservation environment than

those contained in the EPA permit, the conditions contained in the tribal permit shall govern.

61-03-13 Compliance with standards and requirements of Irrigation Systems for

Chemigation

Any person who utilizes an irrigation system for chemigation shall comply with any standards

and requirements that are established by the OEP. The OEP will promulgate rules and standards

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