TITLE
4 - NATURAL RESOURCES AND ENVIRONMENT, CH. 15
CHAPTER
4-1 FISH, WILDLIFE AND RECREATION
CHAPTER 4-2 WATERCRAFT REGISTRATION
CHAPTER 4-3 LAND USE AND DEVELOPMENT
CHAPTER 4-4 CULTURAL RESOURCES PROTECTION
CHAPTER 4-5 ON-SITE WASTEWATER TREATMENT AND
DISPOSAL
CHAPTER 4-6 MINING PRACTICES WATER QUALITY
CHAPTER
4-7 FOREST PRACTICES WATER QUALITY
CHAPTER
4-8 WATER QUALITY STANDARDS
CHAPTER 4-9 HYDRAULICS PROJECT PERMITTING
CHAPTER 4-10 WATER USE AND PERMITTING
CHAPTER
4-11 RANGELAND MANAGEMENT
CHAPTER 4-12 FOREST PROTECTION
CHAPTER 4-13 SOLID WASTE
CHAPTER 4-14 WILD HORSES
CHAPTER
4-15 SHORELINE MANAGEMENT
CHAPTER
4-16 HAZARDOUS SUBSTANCE CONTROL
CHAPTER 4-17 PUBLIC FACILITIES FINANCING
CHAPTER
4-18 INTERIM CONTROL CHAPTER TO REGULATE THE CONSTRUCTION/OPERATION OF
AIR EMISSION SOURCES DECLARATION AND DEFINITIONS
CHAPTER 4-19 FIRE MANAGEMENT
CHAPTER 4-15 SHORELINE MANAGEMENT
4-15-1
Findings
(a) The
Colville Confederated Tribes have a primary interest in the protection,
control, conservation, and utilization of the shoreline resources of
the Colville Indian Reservation. It is the purpose of this Chapter to
establish the shoreline regulatory structure for the management of shoreline
areas within the Reservation through the planning and fostering of all
reasonable and appropriate uses.
(b) The
Tribes, in adopting this Chapter for shoreline management will give
preferences to uses which:
(1) Preserve,
protect, enhance and restore the natural character and ecology of
shoreline
areas, as well as its natural and cultural resources;
(2) Produce
long term over short term ecological and economic benefit;
(3) Encourage
appropriate access to the shoreline of the Reservation; and
(4) Increase
and enhance tribal members' opportunities for traditional cultural
activities in accordance with Tribal and federal law.
(c) The
Colville Confederated Tribes have jurisdiction to enforce this Shoreline
Management Chapter in order to protect the economy, health, safety and
welfare of the Tribes and the Reservation community.
4-15-2 Territory Subject to Shoreline Code
The provisions
of this Chapter, known as the Shoreline Use and Development Chapter
of the Colville Tribal Code, shall apply to all shorelines of all bodies
of water within the exterior boundaries of the Colville Indian Reservation.
Areas subject to regulation under this Chapter shall include all Type
1, Type 2, Type 3, and Type 4 waters (as defined in this Chapter) of
the Reservation and shall include lakes and reservoirs and the shorelines
associated with such lakes and reservoirs, and floodplains and wetlands
(as defined in this Chapter) and the underlying lands associated with
such floodplains and wetlands.
4-15-3 Use of the Shoreline Code
The following
Code sections shall be interpreted and applied in the following manner:
(a) Waters
of the Reservation have been types as either 1, 2, 3, or 4. These waters
are identified on a Water Type Map which is available for public inspection
at the Planning Department of the Colville Tribes. All persons within
two hundred (200) feet of any water within the exterior boundaries of
the Reservation are encouraged to reference the Water Type Map for their
applicable shoreline regulatory conditions and requirements.
Additionally,
sections 4-15-4 and 4-15-5 of this Chapter provide additional water
type information.
(b) All
shoreline uses within the applicable regulatory area for the respective
water type are subject to the General Shoreline restrictions and conditions
outlined in sections 4-15-6 through 4-15-16 of this Chapter.
(c) All
shoreline uses within the applicable regulatory area for the respective
water type are subject to all the applicable shoreline use activity
restrictions and conditions for their respective shoreline use or
activity outlined in sections 4-15-17 through 4-15-31 of this Chapter.
These use activity restrictions and conditions are based in part on
shoreline designations. All persons are encouraged to reference the
Shoreline Designation Maps located at the Planning Department of the
Colville Tribes to determine their applicable shoreline designations
for determining any shoreline management requirements. Note that many
activities and uses will be subject to both general restrictions and
conditions in all shoreline designations and additional restrictions
and conditions within specific shoreline designations.
(d) All
shoreline uses within the applicable regulatory areas for the respective
water type are subject to all the applicable permit requirements and
dimensional requirements identified in the "Use and Activity Chart"
and "Setback, Height, and Dimensional Requirements Chart." The "Use
and Activity Chart" identifies by use activity, which activities require
a shoreline development permit, require a conditional use permit,
are exempt from permit requirements, and are prohibited within each
type of shoreline designation. The "Setback, Height, and Dimensional
Requirements Chart" identifies, by shoreline designation, the applicable
setback, height limits, and dimensional requirements for each type
of shoreline use and activity within each type of shoreline designation.
All persons are encouraged to reference these charts located at the
Planning Department of the Colville Tribes to determine their applicable
use activity shoreline management requirements.
(e) All
uses and activities that are exempt from the permitting requirements
of this Chapter (4-15) remain subject to all permit requirements of
the Colville Tribal Code.
4-15-4 General Definitions
For the
purposes of this section, words used in the present tense shall include
the future; the singular shall include the plural and the plural the
singular; the word "shall" is mandatory and not permissive.
(a) "Accessory
Structure or Use" means a structure or use, incidental, appropriate,
and subordinate to the main structure or use of the property, and which
is located on the same lot or in the same building with the main use.
(b) "Administrator
or Shorelines Administrator" means the person within the Tribal Planning
Department designated to administer this Code.
(c) "Agriculture"
means the tilling of the soil, the raising of crops, horticulture,
gardening, keeping or raising of livestock, including open range grazing
of cattle, and poultry for commercial purposes, and any agricultural
industry or business such as dairies, nurseries, greenhouses, or similar
uses.
(d) "Aquaculture"
means the farming or culturing of food fish, shellfish or other aquatic
plants and animals in lakes, streams, inlets, estuaries and other
natural or artificial water bodies.
(e) "Archaeological/Historical
resources" means any material remains of past human life or activities
which are of archaeological or historic interest and all historic
property. Such material remains shall include, but not be limited
to: pottery, basketry, bottles, weapons, weapon projectiles, tools,
structures or portions of structures, pit houses, rock paintings,
rock carvings, intaglios, talus slide depressions, cairns, graves,
human skeletal remains, or any portion or piece thereof, whether or
not found in an archaeological context. Historic property includes
any prehistoric or historic site, building, structure or object significant
in Tribal history, architecture, culture or religion. The term includes
all artifacts, records, remains, and reburial sites as designated.
No item shall be treated as an archaeological /historic resource unless
such item is at least fifty (50) years of age.
(f) "Archeological/Historical
site" means any location where an archeological/historical resource
is identified. Archeological/historical sites include historic camping
and gathering grounds, traditional fishing sites, sweat lodge locations,
military forts, old settlers' homes, historic buildings, historic
trails, and kitchen middens.
(g) "Average
grade level" means the average of the natural or existing topography
of the portion of the lot, parcel, or tract of real property which
will be directly under the proposed building or structure. Calculation
of the average grade level shall be made by averaging the elevations
at the center of all exterior walls of the proposed building or structure.
(h) "Barnyard"
means that area on a ranch or farm that traditionally and/or presently
is used for the periodic enclosure of less than ten head of livestock
at a density of less than 500 square feet per animal for greater than
six (6) months per year.
(i) "Board"
means the Land Use Review Board established by Chapter 4-3 of the
Tribal Code, the Tribes Land Use and Development Code.
(j) "Conditional
Use" means a use or shoreline development which is classified as a
conditional use or is not listed in use chart (providing the proposed
use is substantially similar to an allowed use) classified within
this management plan.
(k) "Confinement
Lot" means any area used for the continuous feeding of less than one
hundred head of livestock, confined at a density of less than of less
than five hundred(500) square feet per head for three (3) months or
more, except for barnyards as defined herein.
(l) "Cultural
Resources" means resources associated with the practice of "Traditional
Cultural Activities" (as defined by this Chapter) by a member of the
Confederated Tribes of the Colville Reservation for the subsistence
of body and spirit.
(m) "Cultural
sites" includes all archeological/historical sites plus all locations
where "traditional cultural activities" take place.
(n) "Department"
means the Tribal Planning Department.
(o) "Development"
means a use or activities consisting of, but not limited to the following:
(1)
Construction or exterior alteration of structures;
(2)
Dredging;
(3)
Drilling;
(4)
Dumping;
(5)
Filling;
(6)
Removal of any sand, gravel, or minerals;
(7)
Bulkheading;
(8)
Driving of piling;
(9)
Placing of obstructions;
(10)
Subdivision of land;
(11)
Any project of a permanent or temporary nature which interferes
with natural or existing flow patterns, historic and cultural uses
and the normal use of the surface of the waters of the Reservation.
(p) "Director"
means the director of the Tribal Planning Department.
(q) "Dwelling,
Multi-Family" means a building containing two or more dwelling units.
(r) "Dwelling,
Single-Family" means a detached building containing one dwelling unit.
(s) "Dwelling
Unit" means a building or portion thereof designed for occupancy by
one family having cooking and toilet facilities.
(t) "Earth
fill" means the filling of a shoreline area or wetland by the intentional
deposition of sand, soil, gravel or other organic debris (excluding
solid waste as defined herein).
(u) "Feedlots"
means any area used for the continuous feeding of one hundred (100)
or more head of livestock, confined at a density of less than 1
five hundred (500) square feet per head for three months or more.
This shall not be interpreted to include dairy operations with a Washington
State Grade A license.
1(note:
"of less than of less than" in original)
(v) "Floodplain"
is synonymous with one hundred (100) year floodplain and means that
land area susceptible to being inundated by stream derived waters
with a one percent (1%) chance of being equaled or exceeded in any
given year. When used herein, said floodplain must be mapped and officially
approved by the appropriate Tribal and/or federal agency/department.
(w) "Floodway"
means those portions of the area of a river valley lying streamward
from the outer limits of a watercourse upon which flood waters are
carried during periods of flooding that occur with reasonable regularity,
although not necessarily annually, said floodway being identified,
under normal condition, by changes in surface soil conditions or changes
in types or quality of vegetative ground cover condition. The floodway
shall not include those lands that can reasonably be expected to be
protected from floodwaters by flood control devices maintained by
or maintained under license from the federal government, the state,
or a political subdivision of the state.
(x) "Guidelines"
means any standards adopted to implement the Code sections contained
in this Chapter. Such standards may also provide criteria for the
department to use in development of updates and/or revisions to this
Shoreline Management Program for the Reservation.
(y) "Local
Government" means any county, incorporated city, or town that contains
within its boundaries any lands or waters subject to this management
program.
(z) "Management
Program" means the comprehensive use plan for a described area, and
the use regulations together with maps, diagrams, charts or other
descriptive material and text, and a statement of desired goals and
standards.
(aa)
"Multifamily Development" means a development with three or more dwelling
units on the same parcel, lot or tract. Such units may be in one or
more structures.
(bb)
"Non-water-oriented use" means upland uses that have little or no
relationship to the shoreline. All uses which do not meet the definition
of water-dependent, water-related or water-enjoyment are classified
as non-water-oriented uses. Adding public access features to a non-water-oriented
use does not automatically change the inherent use to a water-enjoyment
use. Examples may include, but are not limited to, professional offices,
automotive sales or repair shops, mini-storage facilities, multifamily
residential development, convenience stores, and gas stations.
(cc)
"Noxious Weeds" mean plants of foreign origin that can directly or
indirectly injure agriculture, navigation, fish, wildlife, or public
health.
(dd)
"Official Shoreline Environment Maps" mean all maps adopted as part
of this management program delineating the geographic boundaries of
all water bodies and shoreline designations of the Reservation coming
under the jurisdiction of the of this management plan.
(ee)
"One way glazing" means windows or doors that allow those inside the
structure to see out while limiting the ability of those on the outside
to see in.
(ff)
"Permit" means any form of permission required under this management
program or other tribal regulation prior to undertaking activity on
shorelines of the Reservation, including shoreline development permits,
variances, conditional use permits, permits for oil or natural gas
exploration activities, permission which may be required for selective
commercial timber harvesting, livestock grazing, and shoreline exemptions.
(gg)
"Person" means an individual, partnership, corporation, association,
organization, cooperative, public or municipal corporation or agency
of the state or local government unit however designated. This term
shall include both tribal members and non-tribal members.
(hh)
"Public" means of, relating to, or affecting all people including
both tribal members and non-tribal members.
(ii)"Public
Access" means an access to and within the shoreline area that is open
to the public.
(jj)"Shoreline
Areas" means all Type 1, 2, 3 and 4 waters of the Reservation as defined
in this Chapter, including reservoirs, and their associated shorelines,
floodplains and wetlands, together with the lands underlying them.
(kk)"Shoreline
Development" means any development which materially interferes with
normal use of the water or shoreline areas of the Reservation: PROVIDED,
That the following uses shall not be considered Shoreline Developments
for the purpose of this Chapter: PROVIDED FURTHER, That the following
non-Shoreline Developments must still comply with the policies and
provisions of this Chapter:
(1)
Normal maintenance or repair of existing permitted structures or
developments, including damage by accident, fire, or natural elements;
(2)
Normal and routine operation of existing uses (e.g. agriculture)
provided such activity does not constitute an expansion of a non-conforming
use or a significant modification which may have a negative effect
on the shoreline area;
(3)
Emergency construction necessary to protect property from damage
by the elements;
(4)
Construction or modification of navigational aids such as channel
markers and anchor buoys;
(5)
Operation and maintenance of any system of dikes, ditches, drains,
or other facilities existing and operational on January 1, 1997,
which were created, developed, or utilized primarily as a part
of an agricultural drainage or diking;
(6)
The marking of property lines or corners, when such marking does
not significantly interfere with normal use of the surface of
the water;
(7)
The practice of traditional cultural activities by Colville Tribal
members;
(8)
Site exploration and investigation activities that are prerequisite
to preparation of an application for development authorization
under this policy, only if the following conditions are met:
(A)
The activity does not interfere with normal use of the surface
waters; and
(B)
The activity will have no significant adverse impact on the
environment including, but not limited to, fish, wildlife, fish
or wildlife habitat, water quality, and aesthetic values; and
(C)
The activity does not involve the installation of a structure,
and upon completion of the activity the vegetation and land
configuration of the site are restored to conditions existing
before the activity; and
(D)
Any person or entity (public or private) seeking development
authorization under this policy first posts a performance bond
or provides other evidence of financial responsibility to the
local jurisdiction to ensure that the site is restored to preexisting
conditions; and
(E)
The activity is not subject to the permit requirements of this
Chapter.
(ll)
"Shorelines of the Reservation" are the total of all "shorelines"
within the Reservation.
(mm)
"Shoreline Regulatory Area" means those lands subject to this Chapter
and the regulations contained in the Shoreline Management Program
and shall include any floodways and formally mapped and approved
contiguous floodplain areas and all wetlands associated with the
streams and lakes which are subject to the provisions of this Chapter.
Such lands shall be further typed by associated water type to include
the following:
(1)
For shorelines of Type 1 waters, the applicable regulatory area
shall include those lands extending landward two hundred (200)
feet on a horizontal plane from the ordinary high water mark (as
defined in this Chapter) of the Type 1 water;
(2)
For shorelines of Type 2 waters, the applicable regulatory area
shall include those lands extending landward two hundred (200)
feet on a horizontal plane from the ordinary high water mark (as
defined in this Chapter) of the Type 2 water;
(3)
For shorelines of Type 3 waters, the applicable regulatory area
shall include those lands extending landward two hundred (200)
feet on a horizontal plane from the ordinary high water mark (as
defined in this Chapter) of the Type 3 water;
(4)
For shorelines of Type 4 waters, the applicable regulatory area
shall include those lands extending landward one hundred (100)
feet on a horizontal plane from the ordinary high water mark (as
defined in this Chapter) of the Type 4 water.
(nn)
"Solid Waste" means all putrescible and nonputrescible solid and semisolid
wastes, including but not limited to garbage, rubbish, ashes, industrial
wastes, swill, demolition and construction wastes, abandoned vehicles
or parts thereof, and discarded commodities. This includes all liquid,
solid and semisolid, materials that are not the primary products of
public, private, industrial, commercial, mining, and agricultural
operations. Solid waste includes but is not limited to sludge from
wastewater treatment plants and septage, waste from septic tanks,
woodwaste, dangerous waste, and problem wastes.
(oo)
"Subdivision" means any subdivision or redivision of a subdivision,
tract, parcel, or lot of land into two (2) or more parts by means
of mapping, platting, conveyance, change or rearrangement of boundaries.
All subdivisions are also developments.
(pp)
"Subdivision - Major" means any subdivision other than a minor subdivision.
(qq)
"Subdivision - Minor" means a subdivision that does not include
any of the following:
(1)
The creation of more than a total of three (3) lots;
(2)
The creation of any new public streets;
(3)
The extension of a public water or sewer system.
(rr)
"Traditional Cultural Activities" mean any activity by a member
of the Confederated Tribes of the Colville Reservation that has
been traditionally practiced by the indigenous members of this region
for the subsistence of body and spirit, such as food gathering practices
of root digging, berry picking, hunting, fishing, medicine gathering,
the assembly of and use of sweat lodges, the use of spiritual/vision
quests areas, and the retrieval of plants, trees, rocks, water,
skins/hides and feathers which are within the cultural tradition
of the membership.
(ss)
"Tribes" means the Confederated Tribes of the Colville Reservation.
(tt)
"Tribal Member" means a person who is listed as a member of the
Confederated Tribes of the Colville Reservation in the official
enrollment records of the Tribes.
(uu)
"Uplands" means that land area lying outside of the shoreline jurisdiction
or shoreline area as defined herein.
(vv)
"Use" means the purpose for which land or a structure is primarily
designed, occupied, maintained, or arranged or intended for.
(ww)
"Variance" is a means to grant relief from the specific bulk, dimensional
or performance standards set forth in the management program; however,
this term does not apply to uses of shoreline areas.
(xx)
"Water-dependent use" means a use or portion of a use that cannot
exist in any other location and is dependent on the water by reason
of the intrinsic nature of its operations. Examples of water-dependent
uses may include marinas, water intake systems and sewer outfalls.
(yy)
"Water-related use" means a use or portion of a use which is not
intrinsically dependent on a waterfront location but whose operation
cannot occur economically without a shoreline location. Water-related
uses may include fish hatcheries.
(zz)
"Water-enjoyment use" means a use that provides for recreational
use or aesthetic enjoyment of the shoreline for a substantial number
of people as a primary character of the use and which, through location,
design and operation assures the public's ability to enjoy the physical
and aesthetic qualities of the shoreline. Additionally, in order
to qualify as a water-enjoyment use, the use must be open to the
public and the shoreline oriented space within the project must
be devoted to the specific aspects of the use that foster shoreline
enjoyment. Examples of "water-enjoyment uses" may include shoreline
parks, piers, and other improvements facilitating public access
to shoreline areas.
(aaa)
"Water-oriented use" means any one or a combination of water-dependent,
water-related or water-enjoyment uses.
(bbb)
"Wetlands" means areas that contain hydric soils and/or are inundated
or saturated by surface water or ground water at a frequency and
duration sufficient to support, and that under normal circumstances
do support, a prevalence of vegetation typically adapted for life
in saturated soil conditions. Wetlands generally include swamps,
marshes, bogs, and those artificial wetlands intentionally created
from nonwetland areas to mitigate for the conversion of wetlands
that are approved by the Tribes or the federal government. Wetlands
do not include non-tribal and non-federally approved artificial
wetlands intentionally created from nonwetland sites, including
but not limited to, irrigation and drainage ditches, grass-lined
swales, canals, detention facilities, wastewater treatment facilities,
farm ponds, and landscape amenities, and those wetlands created
after January 1, 1997, that were unintentionally created as a result
of the construction of a road, street, or highway.
4-15-5 Water Type Definitions
(a) "Critically
sensitive water resource" means a water resource that is necessary for
the management, utilization, or protection of Reservation lands or waters
including, but not limited to:
(1) Lake,
pond and stream bank protection;
(2) Major
domestic water supplies;
(3) Tribal
and/or public recreation;
(4) Fish
spawning, rearing or migration;
(5) Wildlife
habitat and uses;
(6) Protection
of water quality; and
(7) Capital
improvements.
(b) "Intermittent
stream" means those segments of streams that go dry for a portion of
the calendar year.
(c) "Natural
waters" means all waters except water conveyance systems that are artificially
constructed and maintained for the sole purpose of irrigation.
(d) "Ordinary
high water mark" means the mark on the shores of all waters which will
be found by examining the beds and banks and ascertaining where the
presence and action of waters are so common and usual, and so long continued
in all ordinary years, as to mark upon the soil a condition distinct
from that of the abutting upland, with respect to vegetation. This applies
to that soil condition that exists on January 1, 1998, as it may naturally
change thereafter, or as it may change thereafter in accordance with
permits issued by the department.
(e) "Seasonal
low flow" and "seasonal low water" mean the conditions of the seven
day, two year low water situation, as measured or estimated by accepted
hydrologic techniques recognized by the Tribes Environmental Trust Program.
(f) "Temperature
sensitive water resource" means those waters included with the waters
identified on the "Water Type Map," the temperature of which may be
adversely affected by the removal of shade producing vegetation to the
extent that fishery resources, water quality, and/or other Reservation
resources may be severely damaged.
(g) "Type
1 Water" means all waters, within their ordinary high water mark,
identified as a "temperature sensitive" or a "critically sensitive"
water resource.
(h) "Type
2 Water" means all segments of natural waters which are:
(1) Not
typed as a "Type 1" water"; and
(2) Perennial
or intermittent streams which have a well defined channel greater
that eight (8) feet in width between the ordinary high water marks
long the majority of the length of the stream segment; or
(3) Impoundments
having a surface area greater than 0.5 acre at seasonal low water.
(i) "Type
3 Water" means all segments of natural water that are:
(1) Not
typed as "Type 1 Water" or "Type 2 Water;" and
(2) Perennial or intermittent streams which have a well defined channel
less than eight (8) feet in width and greater than four (4) feet in
width, between the ordinary high water marks along the majority of the
length of the stream segment; or
(3) Impoundments having a surface area greater than 0.2 acre and less
than 0.5 acre at seasonal low water.
(j) "Type
4 Water" means all segments of natural water that are:
(1) Not
typed as "Type 1, 2, or 3 waters;" and
(2) Perennial
or intermittent streams which have a well defined channel less than
four (4) feet in width between the ordinary high water marks along
the majority of the length of the stream segment; or
(3) Impoundments
having a surface area greater than 0.2 acre at seasonal low water;
or
(4) Areas
of perennial or intermittent seepage, ponds, marshes, bogs, and drainage
ways having short periods of seasonal or storm run-off.
4-15-6 Water Type Designations
(a) Channel
width shall be measured over a representative section of a least five
hundred (500) lineal feet with at least ten (10) evenly spaced measurements
points along the normal stream channel.
(b) Waters
have been designated within the Reservation boundaries as type 1,2,3,
or 4. The applicable shoreline regulatory area for each water type is
a follows:
(1)
For type 1 waters (which includes all lakes and wetlands), the applicable
regulatory area is 200 feet from the ordinary high-water mark;
(2) For type 2 waters, the applicable regulatory area is 200 feet from
the ordinary high-water mark;
(3) For type 3 waters, the applicable regulatory area is 200 feet from
the ordinary high-water mark;
(4) For type 4 waters, the applicable regulatory area is 100 feet from
the ordinary high-water mark.
(c) Water
types within the exterior boundaries of the Colville Reservation have
been identified on a "Water Type Map." Copies of the water type map
shall be available for public inspection at the Planning Department
of the Colville Tribes.
(d) Streams,
stream segments, and other waters may be added to or deleted from the
Water Type Map upon evaluation by Natural Resource Department staff.
(e) Additional
water type 1 waters may be identified and added to the water type map
based upon the recommendation of the Environmental Trust Program, but
such change shall not affect any pending application. Such lakes, ponds,
streams, or stream segments shall be added as type 1 waters when the
Colville Tribes determine that they constitute a critically sensitive
resource requiring maximum protection and management.
(f) When
so requested by landowners, applicant, or person affected by any recommended
addition to type 1 waters, the Natural Resource Department shall make
available informal conferences, which shall include an Environmental
Trust Program representative, and those contesting the adopted water
type.
4-15-7 General Shoreline Restrictions and Conditions
(a) The
following Chapter sections, organized by topical areas, and including
sections 4-15-7 through 4-15-16, are rooted in the Tribes' Holistic
Goal, the goals and policies in the Shoreline Management Plan, the Integrated
Resources Management Plan, and the Tribal Comprehensive Plan.
(b) The
following Code sections apply to all shoreline uses and activities:
(1) Shoreline
uses and development, and shoreline modification activities, whether
it requires a permit or not must be consistent with the goals, policies,
Code sections and intent of the Shoreline Management Plan and the applicable
Shoreline Code sections.
(2) Shoreline
modifications must be in support of a permissible shoreline use activity
or development and must conform with the provisions of this Code Chapter.
Unless otherwise noted herein, all shoreline modification activities
not associated with a permissible shoreline use activity or development
are prohibited and shall not be eligible for a variance or conditional
use permit.
(3) All
shoreline development shall be designed in accordance with all applicable
Tribal land use and environmental protection Codes.
(4) Existing
nonconforming uses and development are permitted to continue subject
to the nonconforming use and structure provisions of Chapter 4-3 of
the Tribal Code, however, current uses and activities are permitted
to continue providing such uses and activities are in compliance with
all applicable tribal and federal laws and regulations other than
this management plan. As leases are renewed, range management or landscape
plans approved, structures destroyed or other conditions exist that
result in a change of practice, any continued use must be done in
compliance with this management program.
(5) All
shoreline developments and uses shall utilize best management practices
(BMPs) to minimize any increase in surface water run off and to control,
treat and release runoff so that receiving water quality and shore
properties and features are not adversely affected. Such practices
may include but are not limited to dikes, berms, catch basins or settling
ponds, installation and required maintenance of oil/water separators,
grassy swales, interceptor drains and landscaped buffers.
(6) All
shoreline development shall be located, designed, constructed, and
maintained to minimize removal of native vegetation and interference
with beneficial natural shoreline processes such as water circulation,
sand and gravel movement, accretion (accumulation of sand, etc.),
depletion, and erosion.
(7) All
development shall be located, designed, constructed and managed to
protect and/or not adversely affect those natural features which are
valuable, fragile or unique to the region, including but not limited
to:
(A)
Wetlands, marshes, bogs, swamps, and river deltas;
(B)
Natural resources including but not limited to, sand and gravel
deposits, timber, or natural recreational beaches;
(C)
Fish, shellfish and wildlife habitats, migratory routes and spawning
areas;
(D)
Accretion shore forms; and
(E)
Natural or man-made scenic vistas or features.
(8) All
development shall be located, designed, constructed and managed to
protect and preserve both cultural resources and archeological/historical
resources.
(9) Where
provisions of this Chapter conflict, the more restrictive of the provisions
shall apply unless specifically stated otherwise.
(10)
The location, design, construction and management of all shoreline
uses and activities shall protect and/or enhance the quality and quantity
of surface and ground water adjacent to the site and shall adhere
to the guidelines, policies, standards and regulations of applicable
water quality management programs and related regulatory agencies.
(11)
Solid and liquid wastes and untreated effluents shall not be allowed
to enter any bodies of water or to be discharged onto land.
(12)
The release of oil, chemicals or hazardous materials onto land or
into the water is prohibited. Equipment for the transportation, storage,
handling or application of such materials shall be maintained in a
safe and leakproof condition. If there is evidence of leakage, the
further use of such equipment shall be suspended until the deficiency
has been satisfactorily corrected.
(13)
All shoreline uses and activities shall utilize effective erosion
control methods during project construction and operation.
(14)
Herbicides and pesticides shall not be applied or allowed to directly
enter water bodies or wetlands unless approved for such use by the
Tribal Natural Resources Department.
(15)
When a development site encompasses environmentally sensitive areas
(wetlands, steep slopes and fish and wildlife habitat), these features
shall be left intact and maintained as open space or buffers. All
development shall be set back from these areas to prevent hazardous
conditions and property damage as well as to protect valuable shoreline
features and resources.
(16)
Areas with either existing or high potential for aquaculture activities
shall be protected from degradation by other types of uses which are
located or are proposed to be located within one mile of adjacent
uplands. A conclusive finding that such an adjacent use would result
in irreparable damage to or destruction of an existing aquaculture
enterprise shall be grounds for denial of such use or activity.
4-15-8 Archeological/Cultural/Historic
(a) One
of the most crucial functions of Tribal Government is the protection
and preservation of, and education about, the Tribes history and culture.
Due to the fact that most camps, villages and other settlements were
located close to water, the protection and preservation of these significant
resources is one of the highest priorities of this shoreline Code.
(b) The
following Code sections apply to all shoreline uses and activities:
(1) Developers
shall immediately stop work and notify the Tribes' History and Cultural
Department if any cultural resource or archeological/historical resource
is uncovered during excavations. In such case, the developer shall
be required to allow site inspection and evaluation by a tribally
designated and approved archeologist to ensure that all valuable cultural
and archeological area are protected and any data are properly preserved.
(2) Significant
cultural, archeological and historic sites shall be protected from
any damage resulting from shoreline uses and activities. When the
Tribes determines scientific, cultural or historical value, no permit
will be issued which would pose a threat to the site. The Tribes may
require that development be postponed in such areas to allow investigation
of Tribal acquisition potential and/or retrieval and preservation
of significant artifacts.
(3) In
the event that unforeseen factors constituting an emergency as defined
in Chapter 4-4 of the Tribal Code and/or Section 106 of the National
Historic Preservation Act of 1996 necessitate rapid action to retrieve
or preserve artifacts or data identified above, the project may be
exempted from the permit requirement of this Chapter.
(4) Archeological
excavations are permitted in shoreline areas subject to these General
Regulations and other applicable Tribal and Federal law.
(5) Commercial
developments focusing on archeological/historical sites and cultural
sites are subject to the Code sections for Commercial Development
contained herein.
4-15-9 General Parking Use Restrictions and Conditions
(a) The
location and development of parking facilities in shoreline areas creates
the potential for adverse environmental impacts due to leaking fluids
and deposition of road grime and sedimentation as well as degradation
of shoreline views. The regulation of parking within the shorelines
is intended to minimize or eliminate potential adverse impacts.
(b)
The following Code sections apply to all shoreline uses and activities:
(1) Parking
as a primary use is prohibited over water or within the shoreline
area.
(2) Parking
in shoreline areas must directly serve a shoreline use.
(3) Parking
facilities within shoreline areas shall be designed and landscaped
to minimize adverse impacts upon adjacent shorelines and abutting
properties. The landscaping shall consist of native vegetation, to
be established within one year after completion of construction and
provide an effective screening three (3) years after planting.
(4) Developed
shoreline uses shall provide safe and convenient pedestrian circulation
within the parking area and to the shorelines.
(5) Commercial
parking facilities shall not be permitted over water or in shoreline
areas.
(6) Parking
facilities serving permitted shoreline uses shall be located landward
from the principal building or use being served, except when the parking
facility is within or beneath a structure and adequately screened
or in cases when an alternate orientation would have less adverse
impact on the shoreline.
(7) Parking
facilities shall provide provisions to control surface water runoff
to avoid contamination of water bodies.
4-15-10 General Utilities Use Restrictions and Conditions
(a) The
installation or construction of new utility facilities (e.g. water,
sewer, power, cable, telephone, etc.) and the maintenance and operation
of existing facilities may cause adverse environmental impacts. Since
much of the population of the reservation resides in or near shoreline
areas, it is highly likely that utilities will be constructed or expanded
to meet their needs.
(b) All
proposed utilities, whether stand-alone projects or part of another
project, are subject to the following Code sections:
(1) Applications
for installation of utility facilities shall include the following:
(A)
Description of the proposed facilities;
(B)
Reason(s) why the utility facility requires a shoreline location;
(C)
Alternative locations considered and reasons for their elimination
when the utility is not serving existing or proposed shoreline uses;
(D)
Location of other utility facilities in the vicinity of the proposed
project and any plans to include the facilities of other types of
utilities in the project;
(E)
Plans for reclamation of areas disturbed by construction;
(F)
Plans for control of erosion and turbidity during construction;
and
(G)
Identification of any possibility for locating the proposed facility
within an existing utility right-of-way.
(2) Utility
development shall, through coordination with tribal and local government
agencies, provide for compatible, multiple use of sites and rights-of-way.
Such uses include shoreline cultural resource protection, access points,
trail systems and other forms of recreation and transportation, providing
such uses will not unduly interfere with utility operations, or endanger
public health and safety.
(3) The
following utility facilities, which are not essentially water-oriented,
are prohibited in shoreline areas unless authorized by conditional
use permit (in all shoreline designations) where it can be shown that
no reasonable alternatives exist or a significant hardship is created:
(A)
Water and sewer system treatment plants;
(B)
Utility substations and control facilities; and
(C)
Accessory uses and administrative structures for utilities.
(4) Power
generating facilities shall comply with all Code sections contained
in this Chapter and shall require approval of a conditional use permit
in all shoreline designations.
(5) In
shoreline areas, utility transmission lines, pipelines, and cables
shall be placed underground unless demonstrated to be not feasible
or will result in greater damage to the shoreline environment. Further,
such lines shall utilize existing rights-of-way, corridors and/or
bridge crossings whenever possible. Proposals for new corridors in
shoreline areas involving water crossings must fully substantiate
the unfeasibility of existing routes.
(6) Utility
facilities shall be located and designed to avoid destruction of or
damage to marshes, bogs and swamps, cultural resources, archeological/historical
resources, important wildlife areas, and other unique and fragile
areas.
(7) Necessary
underwater pipelines that transport material intrinsically harmful
to aquatic life or potentially injurious to water quality, including
sewer lines, shall be provided with automatic shut off valves at each
end of the underwater segments.
(8) Where
major utility facilities must be placed in a shoreline area, the location
and design shall be chosen so as not to destroy or obstruct existing
scenic views.
(9) Utility
development allowed in shoreline areas shall utilize required setback
areas (see "Setback, Height, and Dimensional Requirements Chart")
for screening of facilities from water bodies. Additional screening
may be required as determined on a case-by-case basis.
(10)
Clearing for the installation or maintenance of utilities shall be
kept to a minimum and upon project completion any disturbed area shall
be restored as nearly as possible to preproject conditions including
seeding and planting with native species and maintenance care until
the newly planted vegetation is established.
4-15-11 General Shoreline Access Use Restrictions and Conditions
(a) Appropriate
public access to the shoreline areas of the Reservation is an important
part of this management program.
(b) All
proposed shoreline uses and activities shall be subject to the following
Code sections:
(1) Development
shall not block or interfere with existing, lawful access to the shorelines
and water bodies of the Reservation.
(2) Shoreline
access shall be required for all shoreline development provided that
access may not be required where it is demonstrated by the applicant
and determined by the Tribes in its findings that one or more of the
following provisions apply:
(A)
The shoreline development is primarily for cultural preservation,
single family residential or agricultural/ranching activities -
excluding tribal range units which may require access if appropriate;
(B)
Unavoidable hazards exist which cannot be prevented by any practical
means;
(C)
Inherent security requirements of the use cannot be satisfied through
the use of alternative design features or other solutions;
(D)
The cost of providing the access, easement, or an alternative amenity,
is unreasonable disproportionate to the total cost of the proposed
development;
(E)
Unacceptable environmental harm will result from the access which
cannot be mitigated; or,
(F)
Significant undue and unavoidable conflict between the proposed
access and adjacent uses would occur and cannot be mitigated. PROVIDED
FURTHER, that the applicant has first demonstrated and the Tribes
have determined in its findings that all reasonable alternatives
have been exhausted, including but not limited to:
(i)
Regulating access by such means as maintaining a gate and/or limiting
hours of use;
(ii)
Designing separation of uses and activities, i.e. fences, terracing,
use of one-way glazings, hedges, landscaping, etc.;
(iii)
Provision of an access at a site geographically separated from
the proposal such as a street end or trails system.
(3) Development
located in shoreline areas may be required to provide view corridors,
public access ways, recreational trail easements or other amenities
upon a determination by the Tribes that the action would enhance enjoyment
of the shoreline and not unduly conflict with the proposed use, adjacent
uses or public safety nor adversely impact the shoreline environment.
(4) Any
required public access easements shall be of a size and design appropriate
to the site, size and general nature of the proposed development.
Such easements shall be recorded on a property deed or face of a plat
as a condition running in perpetuity with the land.
(5) Signs
which indicate the public's right of access shall be installed and
maintained by the developer in conspicuous locations at required public
access sites. Public use may be limited to daylight hours.
(6) Public
access sites shall have direct and easy access from a public road.
(7) Required
shoreline access sites shall be available for public use at the time
of occupancy of the development.
4-15-12 General
Signage Use Restrictions and Conditions
(a) The
location, design and maintenance of signage within shoreline areas can
have an adverse visual and potentially physical impact.
(b) All
signs to be placed in shoreline areas are subject to the following Code
section.
(c) The following types of signs are permitted in any shoreline environment:
(1) Water
navigational signs, and highway or railroad signs necessary for direction,
safety, public information or direction.
(2) Public
information signs directly relating to a permitted local shoreline
activity.
(3) Off-premise,
free standing signs for community identification, information, or
directional purposes.
(4) On-premise
commercial signs subject to this Chapter.
(5) Signs
with "changing messages" as long as the information is limited to
time-temperature-date or public messages.
(6) National,
Tribal, site and institutional flags or temporary decorations customary
for special holidays and similar events of a public nature.
(7) Temporary
directional signs to public or quasi-public events. Such signs shall
be removed and properly disposed of within ten (10) days following
the event.
(d) The
following types of signs are prohibited in any shoreline environment:
(1) Signage
in view corridors which impair visual access.
(2) Off
premises detached outdoor advertising signs are prohibited.
(3) Spinners,
streamers, pennants, flashing lights used for commercial purposes
(excepting flashing highway and railroad signs) and other attention
getting devices.
(4) Signs
placed in trees or other natural features.
(5) Commercial
signs for products, services or facilities located off-site.
(e) All
signs shall be located and designed to minimize interference with vistas,
viewpoints, and visual access to the shoreline. When feasible, signs
shall be flush mounted against existing buildings.
(f) All sign
plans and designs shall be submitted for review and approval at the time
of shoreline permit approval.
(g) On
premise signs related to specific on-site activities shall not exceed
thirty-two (32) square feet in surface area. FURTHER, on premise signs
that are freestanding shall not exceed six (6) feet in height.
(h) Lighted
signs shall be hooded, shaded or aimed so that direct light of lamps
will not result in glare when viewed from surrounding properties, rights-of-way,
or watercourses.
(i) Temporary
or obsolete signs shall be removed and properly disposed of within ten
(10) days of elections, closures of business, or termination of any
other intended function. Examples of temporary signs include: real estate
signs, directions to events, political advertisements, event or holiday
signs, construction signs.
(j) Overwater
signs or signs on floats or pilings shall be related to water-dependent
uses only.
4-15-13 General Clearing and Grading Use Restrictions and
Conditions
(a) The
clearing, grading, filling of shoreline areas and alteration of natural
drainage features within shoreline jurisdiction can cause immediate
adverse impacts to water quality and quantity, native vegetation and
fish and wildlife habitat. Such activities may also result in long term,
irreparable environmental degradation.
(b) All
proposed shoreline uses and activities that require or include clearing,
grading, filling or alteration of natural drainage features are subject
to the following:
(1) Land
clearing, grading, filling and alteration of natural drainage features,
landforms
and vegetation shall be limited to the minimum necessary for development.
(2) When
surfaces cleared of vegetation are not to be developed they must be
replanted as soon as possible.
(3) Surface
drainage systems or substantial earth modifications shall be designed
to prevent maintenance problems or adverse impacts on shoreline features
and shall be replanted with native vegetation as soon as practical.
(4) Clearing
and grading within required shoreline setback areas shall not exceed
the following maximums (all measurements are taken parallel to the
OHWM):
(A)
Lots, parcels with up to two-hundred (200) feet of shoreline frontage:
thirty (30) feet of lot frontage maximum.
(B)
Lots, parcels with between two hundred one (201) feet and five hundred
(500) feet of shoreline frontage: maximum of fifteen (15) percent
of the lot frontage along the shoreline.
(C)
Lots, parcels with over five-hundred (500) feet shoreline frontage:
maximum of fifteen (15) percent of total lot frontage, provided
clearing occurs in two or more segments separated by at least one-hundred
(100) feet of undisturbed area where no one segment exceeds seventy-five
(75) feet in length along the shoreline.
(5) When
applying clearing and grading standards the following plant communities
shall determine in descending order of preference where clearing and
grading may be allowed. The first plant community listed indicates
the most preferred location for clearing and grading:
(A)
Grass;
(B)
Shrub/scrub;
(C)
Forest.
(6) All
permitted clearing and grading shall be designed with the objective
of maintaining natural diversity in vegetation species, age and cover
density.
(7) For
extensive clearing and grading proposals, a clearing and grading plan
addressing species removal, seeding and planting, irrigation, erosion
and sedimentation control and other methods of riparian corridor protection
shall be required conforming to the maximum percentage of site clearing
permitted.
(8) Negative
environmental and shoreline impacts of clearing and grading shall
be avoided wherever possible through proper site planning, construction
timing and practices, bank stabilization, bioengineering and use of
erosion and drainage control methods as well as adequate maintenance.
(9) Land
clearing, grading, filling or alteration that involves greater than
five-hundred (500) cubic yards of material shall be professionally
designed to prevent maintenance problems or adverse impacts to adjacent
properties or shoreline features.
(10)
Normal nondestructive pruning and trimming of vegetation for maintenance
purposes shall not be subject to these clearing and grading regulations.
In addition, clearing by hand held equipment of invasive nonnative
shoreline vegetation or plants listed on the Tribe, County or State
Noxious Weed List is permitted in shoreline areas if native vegetation
is promptly reestablished in the disturbed area.
(11)
Wherever possible, development of commercial, industrial, residential
and/or recreational uses that involve clearing and grading shall be
located away from shorelines that have been identified as unstable
and/or sensitive to erosion.
4-15-14 General Environmentally Sensitive Areas Use Restrictions
and Conditions
(a) One
of the basic tenets of the Holistic Goal is the protection of the environment
with the acknowledgment of its importance to the quality of life for
tribal members. Environmentally sensitive areas include: geological
hazard areas; wetlands; and, salmon and steelhead habitats.
(b) All
shoreline uses and activities that take place within environmentally
sensitive areas are subject to the following Code sections.
(c) Geological
Hazard Areas:
(1) Geological
hazard areas are areas susceptible to severe erosion or slide activity,
such as unstable bluffs, and include areas with high potential for
earthquake activity. In general, they are not suitable for placing
structures or locating intense activities or uses due to the inherent
threat to public heath and safety and potential adverse environmental
impacts.
(2) A
person desiring to use or develop the shoreline area shall be required
to delineate any potential geological hazardous area.
(A)
Development shall be permitted only in locations where no slope
protection is necessary or where nonstructural protection is sufficient
for the life of the project. Construction activity shall not increase
or result in slope instability or sloughing.
(B)
Foundations and septic systems shall be of 2:1 slope area, unless
a soil engineer report indicates that slope stability will not be
affected.
(C)
Subdivision of lots on bluffs shall allow sufficient lot depth for
development to occur without the need for bulkheading or other structural
stabilization.
(D)
Surface drainage down the face of the bluff shall be contained in
a tight line (closed, nonleaking pipe) for discharge at the shoreline
in such a way that erosion will not occur.
(E)
Surface drainage away from the bluff shall also use a tight line
or some other approved method for discharge into a natural drainage
course.
(F)
Storm water retention systems will be discouraged unless designed
by a licensed civil engineer and a soil or geology engineering report
verifies that slope stability shall not be affected.
(G)
Proposals for developments on or immediately adjacent to unstable
bluffs shall include the following information in their application
and site plan:
(i)
Soils, topography and existing vegetation;
(ii)
Existing drainage patterns and how they may be changed;
(iii)
Proposed vegetation removal and grading plan together with an
erosion control plan; and
(iv)
Proposed structure and use locations.
(H)
A geotechnical report shall be required when:
(i)
Activity is within 200 feet of a bluff classified as unstable
or having intermediate stability; or
(ii)
Activity is within 200 feet of the shoreline when the vertical
height of the bank exceeds 20 feet; or
(iii)
Activity is within the 2:1 slope of the toe of the bluff;
(iv)
FURTHER, The geotechnical report shall contain:
(a)
Soils information and erosion rates;
(b)
Drainage;
(c)
Vegetation management options;
(d)
Recommended setback to avoid need for building
bulkhead
during life of project;
(e)
Evaluation and statement on stability and safety of structure;
and
(f)
Evaluation and statement on stability of bluff.
(d) Wetlands:
(1) Wetlands
serve many important ecological and environmental functions and values,
and help protect public health, safety and welfare by providing flood
storage and conveyance; erosion, pollution and sediment control; fish
and shellfish production; fish and wildlife habitat; recreation; water
quality protection; water supply; education and scientific research.
Wetlands should be preserved and protected to prevent their continued
loss and degradation.
(2) All
shoreline uses and activities that take place in or near a wetland
under the jurisdiction of this management program, in coordination
with the Integrated Resource Management Plan (IRMP), shall be subject
to the following regulations:
(A)
All wetlands identified by the Tribes' Natural Resources Department
shall be protected from alterations that adversely impact them so
that there is no net loss of wetland acreage, functions, and values.
(B)
The greatest wetland protection should be provided to wetlands of
exceptional resource value, defined as those wetlands that include
rare, sensitive or irreplaceable systems such as:
(i)
Documented or potential habitat for an endangered, threatened
or sensitive species;
(ii)
High-quality native wetland systems.
(Iii)
Significant habitat for fish or aquatic species.
(iv)
Diverse wetlands exhibiting a high mixture of wetland classes
and subclasses as defined by the Tribes Natural Resources Department
based on the Tribes resource inventory and analysis and the U.S.
Fish and Wildlife Service and state Department of Ecology classification
systems; and
(v)
Mature forested swamp communities.
(C)
A wetland buffer zone of adequate width, as recommended by the Tribes'
Natural Resources Department, shall be maintained between a wetland
and any adjacent development to protect the functions and integrity
of the wetland. The width of the established buffer zone shall be
based upon the functions, values and sensitivity of the wetland,
the characteristics of the existing buffer and the potential impacts
associated with the adjacent land use.
(D)
All activities that potentially affect wetland ecosystems shall
be controlled within both the wetland and the buffer zone to prevent
adverse impacts.
(E)
Development or activities shall not be authorized in a wetland except
where it can be demonstrated that:
(i)
The impact is both unavoidable and necessary;
(ii)
Unavoidable and necessary impacts are minimized, and any remaining
impacts are offset through the deliberate restoration, creation
or enhancement of wetlands of equivalent or greater resource value,
including acreage and function;
(iii)
The restored, created or enhanced wetland will be as persistent
as the wetland it replaces; and
(iv)
The applicant demonstrates sufficient scientific expertise, supervisory
capability and financial resources to carry out the proposed replacement
activity.
(F)
Wetland restoration, creation and enhancement projects shall result
in no net loss of wetland acreage, functions, and values. Where
feasible, wetland quality should be improved
(G)
Wetlands that are impacted by activities of a temporary nature shall
be restored immediately upon project completion.
(H)
In-kind replacement of functions and values is preferred. Where
in-kind replacement is not feasible or practical due to the characteristics
of the existing wetland, substitute resources of equal or greater
ecological value shall be provided.
(I)
On-site replacement of wetlands is preferred. Where on-site replacement
is not feasible or practical due to characteristics of the existing
location, replacement shall occur within the same watershed and
proximity.
(J)
Wetland restoration, creation and enhancement projects shall be
completed prior to wetland alteration, where possible. In all other
cases, replacement shall be completed prior to use or occupancy
of the activity or development.
(K)
Applicants shall develop comprehensive mitigation plans in order
to ensure long term success of the mitigation project. Such plans
shall provide for sufficient monitoring and contingencies to ensure
wetland persistence.
(L)
Applicants shall demonstrate sufficient scientific expertise, supervisory
capability and financial resources to complete and monitor the mitigation
project.
(M)
Proposals for restoration, creation or enhancement of wetlands shall
be coordinated with appropriate resource agencies to ensure adequate
design and consistency with other regulatory requirements.
(N)
Activities shall be discouraged in wetland buffer zones except where
such activities have no adverse impacts on wetland ecosystem functions
or values.
(O)
Wetland buffer zones shall be retained in their natural condition.
Where buffer disturbance has occurred during construction, revegetation
with native vegetation may be required. Developments and activities
shall not be allowed within the buffer except for:
(i)
Minor activities which are found to have no adverse impact on
the wetland functions or integrity;
(ii)
Storm water management facilities having no feasible alternative
location outside of the buffer.
(P)
The location of all required buffer zones shall be clearly and permanently
marked on any project site prior to initiation of site work.
(Q)
Wetland buffer zones shall be reserved as common open space and
designated as "native growth protection areas" where multiple ownership
is involved and cooperative management is possible.
(R)
For identifying and delineating a marsh, bog or swamp, applicants
shall use the 1989 Federal Manual for Identifying and Delineating
Jurisdictional Wetlands.
(S)
No development or activity including removing or disturbing soil,
filling, changing the water level, placing obstructions, constructing
a structure, destroying or altering vegetation or introducing pollutants
may be permitted within a wetland or its buffer unless authorized
by a conditional use permit.
(T)
For wetlands of exceptional resource value, the applicant, in addition
to complying with the provisions above, shall demonstrate that there
is a compelling public need for the proposed activity or that denial
of the permit would impose an extraordinary hardship on the applicant
brought about by circumstances peculiar to the subject property.
(U)
Wetland functions and values shall be determined by the Tribes'
Natural Resources Department.
(V)
Except as noted in subpart (23) below, at a minimum, wetland acreage
shall be replaced at a ratio of acreage replaced to acreage lost
of 1.25:1. For wetlands of exceptional resource value, the minimum
acreage replacement ratio shall be 6:1. Actual replacement acreage
will be determined case-by-case, based on the following criteria:
(i)
Projected losses or gains in wetland functions, structures, and
value;
(ii)
Location of replacement wetlands;
(iii)
The time required to reestablish lost functions;
(iv)
The uncertainty of the probable success of the project;
(v)
The type of compensation (enhancement proposals shall require
twice the acreage replacement as restoration and creation proposals);
and
(vi)Variety
of the wetland type being impacted.
(W)
Acreage replacement may be authorized at 1:1 where it is found through
special studies coordinated with agencies with expertise, or through
advance compensation, that no net loss of wetland functions and
values results.
(X)
A compensation plan shall be required for developments or activities
that result in unavoidable and necessary wetland alterations. The
plan shall include the following elements:
(i)
Baseline information for the impacted wetland and the proposed
replacement site;
(ii)
Environmental goals and objectives describing the purposes of
the mitigation measures, a description of the site selection criteria
and identification of target evaluation species and resource functions;
(iii)
Performance standards including specific criteria for fulfilling
goals and objectives and for beginning remedial action or contingency
measures;
(iv)
Detailed construction plan including work schedule, revegetation
information, buffers, estimated cost, site plan with contours
and elevation and other information;
(v)
Monitoring program outlining the approach for assessing a completed
project over a five-year period. A report shall be submitted annually,
at a minimum documenting milestones, success, problems and contingency
actions; and
(vi)
A contingency plan identifying potential courses of action and
any corrective measures to be taken when monitoring or evaluation
indicates project performance standards are not being met.
(Y)
Where restoration, creation or enhancement activities are proposed,
the applicant shall be required to:
(i)
File a performance bond in an amount to enable the regulatory
authority to carry out the compensation plan should the applicant
fail to do so; and
(ii)
Demonstrate that such compensation areas shall be permanently
protected through appropriate measures. (e.g. conservation easements,
purchase, deed restrictions, etc.)
(Z)
A wetland buffer zone of 200 feet shall be required adjacent to
wetland areas identified by the Tribes as having exceptional resource
functions and values, unless a greater distance is required by other
provisions of this program.
(e) Threatened
and Endangered Fish Habitats:
(1) Fish,
particularly salmon, are very important to the Tribes. The protection
and enhancement of threatened and endangered fish spawning and rearing
habitat and restoration of former habitat is critical to the maintenance
and improvement native fish runs.
(2) All
proposed shoreline uses and activities are subject to the following:
(A)
Structures that prevent the migration of fish shall not be allowed
in the portions of water bodies used by these fish. Fish bypass
facilities shall allow upstream migration of adult fish. Fish bypass
facilities shall prevent fry and juveniles migrating downstream
from being trapped or harmed.
(B)
Unless the applicant demonstrates that bioengineering techniques
will not be successful, bulkheads and other shoreline protection
structures (includes rip-rap) are prohibited in habitat used by
threatened and endangered species.
(C)
Bulkheads, groins, rip-rap and other shoreline protection structures
may intrude into salmon and steelhead habitats only where the proponent
demonstrates all of the following conditions are met:
(i)
Alternative alignment or location is not feasible;
(ii)
The project is designed to minimize its impacts on the environment;
(iii)
The facility is in the resource's best interest;
(iv)
If the project will create significant avoidable adverse impacts,
the impacts are mitigated by creating in-kind replacement habitat
near the project. Where in-kind replacement mitigation is not
feasible, rehabilitating degraded habitat may be required as a
substitute.
(D)
Docks, piers, pilings and floats may be located in water areas used
by salmon and steelhead for migration corridors, rearing, feeding
and refuge, provided the facilities use open piling construction.
Approach fills shall be located landward of the OHWM. Docks, piers,
pilings and floats shall not be located in potential salmon and
steelhead spawning habitats.
(E)
Open pile bridges are the preferred water crossing structures over
salmon and steelhead habitats. If a bridge is not feasible, one
of the following water crossing structures may be approved if the
impacts are acceptable: temporary culverts, bottomless arch culverts,
elliptical culverts or round culverts. These structures are listed
in priority order, with the first having the highest preference
and the last the lowest preference.
(F)
Bridges and in-water utility corridors may be located in salmon
and steelhead habitat provided the proponent shows that all of the
following conditions are met:
(i)
An adverse alignment is not feasible;
(ii)
The project is located and designed to minimize its impacts on
the environment;
(iii)
Any adverse impacts are mitigated;
(iv)
Any earth fill (the placement of fill) is located landward of
the OHWM. Open pilings and piers required to construct the bridge
may be placed waterward of the OHWM, if no alternative method
is feasible, PROVIDED, that when installing in-water utilities,
the installer may place native material on the bed and banks of
the water body or wetland to reestablish the preconstruction elevation
and contour of the bed. The project shall be designed to minimize
its impacts on the environment.
(G)
Projects which propose water withdrawals or diversions shall maintain
adequate flows within the water body to maintain threatened and
endangered habitat, taking into account existing and likely future
withdrawals and diversions.
(H)
Landfilling, channelization and other activities which negatively
impact habitat values are prohibited in wetlands, ponds and side
channels which provide refuge or other habitat for salmon, steelhead
and/or other fish species.
(I)
Within salmon and steelhead habitats, permanent channel changes
and realignments are prohibited.
(J)
Aquaculture uses shall not be established in or expanded in salmon
and steelhead habitat, except for areas that are only used for migration
corridors. This regulation only applies to in-water aquaculture
uses, not upland aquaculture uses.
(K)
The removal of aquatic and riparian vegetation within or adjacent
to salmon and steelhead habitats shall be minimized. Shaded side
channels, streams, rivers, ponds and wetlands used by salmon and
steelhead shall be protected. Areas of disturbed earth shall be
revegetated.
(L)
Unless removal is needed to prevent hazards to life and property
or to enhance fish habitat, large woody debris below the ordinary
high water mark shall be left in the waterway to provide salmon
and steelhead habitat as determined by the Tribes' Fish and Wildlife
Department.
(M)
Outfalls (pipes discharging to surface waters) within or upstream
of salmon or steelhead spawning areas shall be designed and constructed
to minimize disturbance of salmon and steelhead spawning beds.
4-15-15 General Vegetation Management Use Restrictions and
Conditions
(a) Vegetation
management involves a variety of management strategies. The overall
intent of the following Code section is to minimize habitat loss and
lessen the impact of invasive plants, erosion, sedimentation and flooding.
(b)
The following Code subsections apply to all shoreline uses and activities:
(1) The
use of herbicides and pesticides shall be prohibited to remove noxious
plants in streams, lakes and wetland areas except where no reasonable
alternatives exist and it is demonstrated that such activity is in
the public interest. A conditional use permit (CUP) shall be required
in such cases.
(2) Mechanical
removal of noxious weeds shall be timed and carried out in a manner
to minimize any disruption of wildlife or habitat.
(3) All
unique and fragile shorelines identified by the Tribes' Natural Resources
Department shall be protected from degradation caused by modification
of the land surface within the shoreline area and/or the adjacent
uplands.
(4) Restoration
of any shoreline that has been disturbed or degraded shall use native
plant materials with a diversity and type similar to that which originally
occurred on-site.
(5) Stabilization
of exposed erosion prone surfaces along shorelines including but not
limited to river, lake and stream systems shall, wherever feasible
utilize soil bioengineering techniques. (E.g. stabilization using
vegetation and other natural mechanisms)
(6) The
use of commercial nursery stock in the restoration of disturbed or
degrading shorelines shall emulate natural, native vegetation in size,
structure and diversity.
(7) Beach
enhancement is prohibited in the following circumstances:
(A)
Within spawning, nesting or breeding habitat identified by the Tribes'
Fish and Wildlife Department;
(B)
Where littoral drift (movement of materials by water currents) of
the enhancement materials will adversely effect adjacent spawning
grounds or other areas of biological significance;
(C)
When such enhancement will interfere with the normal public use
of the navigable waters of the Reservation; and/or
(D)
Where the activity is in support of a nonconforming use unless such
activities are necessary to maintain shoreline stability and the
natural ecology;
(E)
Within identified cultural resource areas.
(8) Aquatic
weed control shall only occur when native plant communities and associated
habitats are threatened or where an existing water dependent use is
restricted by the presence of weeds. Aquatic weed control shall occur
in compliance with all other applicable laws and standards.
(9) The
control of aquatic weeds by hand pulling, mechanical harvesting, or
placement of aquascreens, if proposed to maintain existing water depth
for navigation, shall be considered normal maintenance and repair
and therefore exempt from the requirement to obtain a shoreline substantial
development permit.
(10)
The control of aquatic weeds by derooting, rotovating or other method
which disturbs the bottom sediments and related aquatic life shall
be considered development for which a substantial development permit
is required, unless it will maintain existing water depth for navigation
in an area covered by a previous permit for such activity. In this
case it shall be considered normal maintenance and repair and therefore
exempt from the requirement to obtain a substantial development permit.
(11)
Where large quantities of plant material are generated by control
measures, they shall be collected and disposed of in an appropriate,
identified upland location.
4-15-16 General View Protection Use Restrictions and Conditions
(a) Visual
access to shoreline areas is an important part of the beauty of the
Reservation. Protection and enhancement of existing views and provision
of new shoreline views are important components of this shoreline management
plan.
(b) All
uses and activities shall be subject to the following:
(1) Shoreline
uses and activities shall be designed and operated to avoid blocking,
reducing, or adversely interfering with the public's visual access
to the water and shorelines.
(2) In
providing visual access to the shoreline, the natural vegetation shall
not be excessively removed either by clearing or by topping. Such
activities shall comply with the provisions of this section.
(3) Development
on or over the water shall be constructed as far landward as possible
to avoid interference with views from surrounding properties to the
shoreline and adjoining waters.
(4) Marinas
with covered boathouses shall limit their height as required in the
Specific Use Activity sections.
(5) Development
on the water shall be constructed of nonreflective materials that
are compatible in terms of color and texture within the surrounding
area.
(6) Visual
access shall be maintained, enhanced and preser