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to Table of Contents Colville
Tribal Law and Order Code 2001 edition with 2002, 2003 and 2004 supplements TITLE 4 - NATURAL RESOURCES AND ENVIRONMENT, CH. 7
The Colville Confederated Tribes finds that there are approximately 811,000 acres of forest lands within the Colville Reservation, of which 729,000 are in tribal or Indian ownership and 81,000 are in non-Indian fee ownership; that forest land resources are the most important natural resources within the Colville Indian Reservation; that a sustained forest products industry is essential to the economy and welfare of all people of the Colville Indian Reservation; that it is in the public interest that all forest lands be managed based on sound policies protecting natural resources and the Reservation population; that promotion of a profitable forest products industry is compatible with management practices protecting water quality and quantity, fish and wildlife, forest soils, recreation and scenic beauty; and that coordinated management of all forest lands on the Colville Reservation toward these goals is necessary to protect the economy, health, safety and welfare of the population of the Colville Indian Reservation and to protect the authority of the Colville Confederated Tribes to effectively govern the Colville Indian Reservation for these purposes. 4-7-2 Authority and Scope This Chapter is adopted pursuant to the following authority. (b) Any authority delegated to the tribal government by the United States. 4-7-3 Definitions Unless otherwise required by context, as used in this Chapter: (b) "Application" shall mean the forest practices application required pursuant to this Chapter. (c) "Borrow pit" shall mean an excavation site outside the limits of construction to provide material necessary to that construction, such as fill material for the embankments. (d) "Chemical" means substances in liquid, gas or solid form which may be applied to forest lands or timber to accomplish specific purposes and includes pesticides, insecticides, rodenticides, herbicides, plant growth regulators, fungicides, fertilizers, desiccants, fire retardants when used in controlled burning, repellents, oil, dust-control agents (other than water) and salt. In addition, "chemicals" shall include all other materials that may present hazards to the environment. (e) "Commercial tree species" means any species which are capable of producing a merchantable stand of timber on the particular site, or which are being grown as part of a Christmas tree or ornamental tree-growing operation. (f) "Completion of harvest" means the latest of: (2) Scheduled completion of any slash disposal operations where the Department and the applicant agree within six (6) months of completion of yarding that slash disposal is necessary or desirable to facilitate reforestation and agree to a time schedule for such slash disposal, or (3) Scheduled completion of any site preparation or rehabilitation of adjoining lands approved at the time of approval of the application or receipt of a notification; Provided, that delay of reforestation under this subparagraph 4-7-3(f)(3) is permitted only to the extent reforestation would prevent or unreasonably hinder such site preparation or rehabilitation of adjoining lands. (h) "Contiguous" shall mean land adjoining or touching by common corner or otherwise. Land having common ownership divided by a road or other right-of-way shall be considered contiguous. (i) "Conversion to a use other than commercial timber operation" shall mean a bona fide conversion to an active use which is incompatible with timber growing. (j) "Debris" means garbage, trash, leftover cable and equipment, and other non-wood waste material which would reasonably be expected to cause significant damage to a Reservation resource. (k) "Department" shall mean the Colville Tribal Forestry Department. (l) "End
hauling" means the removal and transportation of excavated material,
pit or quarry overburden, or landing or road actively used for a use
which is incompatible with timber growing. (p) "Flood level-twenty-five (25) year." For purposes of field interpretation of these regulations the twenty-five (25) year flood level shall be considered to be a vertical elevation which is the same height measured from the ordinary high water mark as the vertical distance between the average stream bed and the ordinary high water mark, and in horizontal distance shall not exceed two (2) times the channel width measured on either side from the ordinary high water mark, unless a different area is specified by the Department based on identifiable topographic or vegetative features. (q) "Forest land" means all land which is capable of supporting a stand of timber and is not being actively used for a use which is incompatible with timber growing.(r) "Forest landowner" shall mean any person in actual control of forest land, whether such control is based either on legal or equitable title, or on any other interest entitling the holder to sell or otherwise dispose of any or all of the timber on such land in any manner; Provided, that any lessee or other person in possession of forest land without legal or equitable title to such land shall be excluded from the definition of "forest landowner" unless such lessee or other person has the right to sell or otherwise dispose of any or all of the timber located on such forest land. (s) "Forest practice" means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to: (2) Harvesting, final and intermediate; (3) Precommercial thinning; (4) Reforestation; (5) Fertilization; (6) Prevention and suppression of diseases and insects; (7) Salvage of trees, and; (8) Brush control. (u) "Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any tree, bush, weed or algae and other aquatic weeds. (v) "Improved stock" means seed or seedlings resulting from a tree improvement program, tested and verified. (w)
"Intermittent stream" shall mean a stream or stream segment that normally
goes dry for a portion of a calendar year. Such stream shall have
a discrete and readily identifiable bed which demonstrates the annual
flow of water along such bed. (x)
"Insecticide" means any substance or mixture of substances intended
to prevent, destroy, repel, or mitigate any insect, other arthropods
or mollusks. (y)
"Key wildlife habitat" means the habitat of wildlife species which
depends on maintenance of water quality in the streamside management
zone and adjacent areas or any habitat where a wildlife species helps
maintain water quality. (AA) "Load bearing portion" means that part of the road, landing, etc., which is supportive soil, earth, rock, or other material directly below the working surface and only associated earth structure necessary for support. (Bb) "Major tractor road" means a road which involves extensive sidecasting or similar disturbance of soil which may cause material damage to a Reservation resource or would destroy the integrity of a Streamside Management Zone. (Cc) "Merchantable stand of timber" means a stand of trees that will yield logs and/or fibre: (2) Of sufficient value at least to cover all the costs of harvest and transportation to available markets. (EE) "Operator" shall mean any person engaging in forest practices except an employee with wages as his sole compensation. (ff) "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 character distinct from that of the abutting upland, in respect to vegetation. (gg) "Partial cutting" means the removal of a portion of the merchantable volume in a stand of timber so as to leave a well-distributed stand of residual, healthy trees that will reasonably utilize the productivity of the soil. (hh) "Perennial stream" shall mean a stream or stream segment which normally maintains a surface flow of water year round. (Ii) "Person" shall mean any individual, partnership, private, public, tribal or municipal corporation, tribal enterprise, county, the Department or any tribal, state or local governmental entity, or association of individuals of whatever nature. (jj) "Pesticide" means any insecticide, herbicide, or rodenticide but does not include nontoxic repellents or other chemicals. (kk) "Plantable area" is an area capable of supporting a commercial stand of timber excluding lands devoted to permanent roads, utility right-of-way, that portion of Streamside Management Zones where scarification is not permitted, and any other area devoted to a use incompatible with commercial timber growing. (ll) "Power equipment" means all machinery operated with fuel burning or electrical motors, including but not limited to heavy machinery, chain saws, portable generators, pumps, and powered backpack devices. (mm) "Rehabilitation" means that act of renewing or making useable and reforesting forest land which was poorly stocked or previously nonstocked with commercial species. (nn) "Relief culvert" means a structure to relieve surface runoff from roadside ditches to prevent excessive buildup in water volume and velocity. (oo) "Reservation population" shall mean all people residing on any lands, whether trust or fee, within the exterior boundaries of the Colville Indian Reservation. (pp) "Reservation resources" means land, water, fish, and wildlife and in addition shall mean capital improvements on the Colville Indian Reservation. (qq) "Residual old-growth" means the old-growth of timber remaining after harvest of a portion of an old-growth stand. (rr) "Rodenticide" means any substance or mixture of substances intended to prevent, destroy, or mitigate rodents or any other vertebrate animal which may be declared a pest. (ss) "Salvage" means the removal of snags, down logs, windthrow, or dead and dying material. (tt) "Scarification" means loosening the topsoil and/or disrupting the forest floor in preparation for regeneration. (uu) "Side casting" means the act of moving excavated material to the side and depositing such material within the limits of road construction or dumping over the side and outside the limits of construction. (vv) "Skid trail" means a route used by tracked or wheeled skidders to move logs to a landing or road. (ww) "Slash" means nonmerchantable woody material resulting from forest practice activities. (xx) "Spoil" means excess material removed as overburden or generated during road or landing construction which is not used within limits of construction. (yy) "Stocking" or "acceptable stocking" shall mean the minimum number of well distributed, vigorous seedlings, saplings or trees per acre of approved species as shall be defined and determined by the Colville Forestry Department and as contained in any approved application adopted pursuant to this Chapter. (zz) "Stop work order" means the "stop work order" described in section 4-7-15, and may be issued by the Department to stop violations of this Chapter to prevent damage and/or to correct and/or compensate for damages to Reservation resources or harm to the health, safety or welfare of the Reservation population resulting from forest practices. (aaa) "Streamside Management Zone" means a specified area alongside natural waters where specific attentions must be given to the measures that can be taken to protect water quality. These zones shall be measured from the ordinary high water mark of the body of water and measure, at a minimum: (2) One-half chain (33 feet) in width on each side of a Type 3 and Type 4 Water. (bbb) "Temperature sensitive waters" 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 would be severely damaged. (ccc) "Timber" shall mean forest trees, standing or down, of a commercial species, including Christmas trees. (ddd) "Timber owner" shall mean any person having all/or any part of the legal interest in timber. Where such timber is subject to a contract of sale, "timber owner" shall mean contract purchaser. (eee) "Water bar" means a diversion ditch and/or hump in a trail or road for the purpose of carrying surface water runoff into the vegetation duff, ditch, or other dispersion area so that it does not gain volume and velocity which causes soil movement and erosion. (fff) "Weed" is any undesirable plant which tends to overgrow or choke out more desirable vegetation. (ggg) "Windthrow" means a natural process by which trees are uprooted or sustain severe trunk damage as a result of wind action.
(b) Forest
practice regulations shall be administered and enforced by the Department
except as otherwise provided in this Chapter. Enforcement shall be exclusively
by civil proceeding. 4-7-5 Classes of Forest Practices There are four (4) classes of forest practices created by this Chapter. These classes include all activities conducted on forest land, in groupings that recognize their potential environmental impact on Reservation resources and the health and welfare of the Reservation population. All forest practices, regardless of whether or not they require an application for approval, must be conducted in accordance with this Chapter. (2) Removal of live trees, shrubs and plants for personal, noncommercial use, where the root system is attached, so long as removals are not conducted below the ordinary high water mark of any waters. (3) The removal of minor forest products (including live, dead and down material) for personal, noncommercial use (i.e., firewood, fence posts, poles, fern, etc.), providing that heavy equipment shall not be used. (4) Emergency fir control and suppression. (5) Normal road maintenance except: (B) movement, placement, or replacement of materials which have a direct potential for entering Types 1, 2, 3 and 4 waters. (7) Construction of landings less than one (1) acre in size, if not within the Streamside Management Zone of a Type 1 through 4 water. (8) Construction of a driveway for residential, personal noncommercial use, if the limits of construction are not within the Streamside Management Zone of a Type 1 through 4 water. (9) Construction of less than six hundred (600) feet of road or spur if the limits of construction are not within the Streamside Management Zone of a Type 1 through 4 Water. (10) Loading and hauling timber from landings or decks. (11) Slash control and site preparation (other than by chemical means) not involving off-road use of tractors within the Streamside Management Zone of a Type 1 through 4 Water. (2) Renewal of a previously approved Class III Forest Practice application where: (A) No modification of the uncompleted operations is proposed, and (B) No Notice to Comply, Stop Work Orders, or other tribal enforcement actions are outstanding with respect to the prior application. (4) Opening a new rock or gravel pit of, or extending an existing pit by, less than 1 acre, if none of the operation takes place within the Streamside Management Zone of a Type 1 through 4 Water. (5) The removal of minor forest products such as shakes, poles, posts, etc., for commercial purposes. (Note: The removal and transportation of these materials requires an operator's permit and other approvals. Applicant must contact the Department for information before any activity is commenced.) (6) Road maintenance, rocking, or rerocking on existing road, wherein the movement, placement or replacement of materials has the direct potential for entering Type 4 Water. (7) Replacement of culverts across Type 4 Water. (8) Slash control and site preparation involving off-road use of tractors or other heavy mobile equipment if none of the operation takes place within the Streamside Management Zone of a Type 1 through 4 Water. (9) Ground or mechanical application of chemicals outside of Streamside Management Zones. (1) All forest practices not listed under Class II, IV forest, or I practices. (2) Any aerial application of chemicals, including insecticides, herbicides, pesticides, fertilizers, etc. (3) Application of chemicals within the Streamside Management Zone. (4) Cable yarding systems, tractors, or other heavy logging equipment except where classed as Class I, II, or IV forest practices. (5) All road construction and reconstruction except as listed in Class I, II, and IV forest practices. (6) Road maintenance and rocking or rerocking an existing road wherein the movement, placement, or replacement of materials has the direct potential for entering Type 1, 2, and 3 Waters, except as classed under Class IV forest practices. (7) Replacement of bridges or culverts across Type 1, 2, and 3 Water. (8) Opening new rock or gravel pits or extension of existing pits over one (1) acre. (9) Slash control and site preparation involving off-road use of tractors, helicopters, or other heavy mobile equipment except as classed under Class I, II and IV forest practices. (10) Construction of fire trails if the construction crosses or enters the Streamside Management Zone of a Type 1 through 4 Water. (1) All forest products harvesting, road construction, site preparation, aerial or ground application of chemicals, slash control, and pit development on lands identified as follows: (A) all lands zoned as residential, commercial, tourist, or industrial zone pursuant to the Colville Comprehensive Zoning Ordinance, as it now exists or may be afterward be amended, (B) all forest lands within two hundred (200) feet of Omak, Okanogan, Nespelem, Keller, Inchelium, Coulee Dam, (C) all lands within two hundred (200) feet of any park or campground, (D) all lands being or declared to be converted to a non-forest use, (E) other critical or unique resources such as cultural, religious, or historical resources under Tribal or federal law which may be identified from time to time prior to the approval or disapproval of a forest practices application.
(3) Timber harvesting, road construction, pit development, site preparation, or aerial or ground application of chemicals within the Streamside Management Zone of all water identified as Type I Waters, (4) Timber harvesting, road construction, pit development or aerial or ground application of chemicals on lands identified as follows: (1) Pursuant to this Chapter, forest practices shall be included in each of the four (4) classes. (2) Further refinement of four (4) classes may be necessary as additional experience develops under this Chapter. Therefore, the Department is requested to report to the Colville Environmental Quality Commission at least annually on any categories of forest practice which, in the opinion of the Department, should be reclassified: (B) to provide greater clarity and certainty for potential applicants and others as to which forest practice activities are in Classes I, II, III and IV forest practices. 4-7-6 Water Categories (a) The Colville Tribes have established four types of waters in streams, lakes, and ponds within the Reservation boundaries. These waters have been defined as Type 1, 2, 3, or 4 Waters. Streams, stream segments, and other waters may be added to or deleted from the Water Type Map from time to time by the Tribal Council as conditions warrant. "Type 1 Waters" have been further identified on a "Water Type Map." Copies of the stream type classification map shall be available for public inspection at the Department or at the Department Hydrology. Additional "Type 1 Waters" may be identified and added to the stream classification map from time to time upon the recommendation of the Department of Hydrology, 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. When so requested by landowners, applicant, or person affected by such recommended addition to Type 1 Waters, the Department shall make available informal conferences which shall include a Department of Hydrology representative and those contesting the adopted water type. (b) Type 1 Water" means all waters, within their ordinary high water mark, identified by the Tribal Council as "temperature sensitive" or "critically sensitive" water resource. These Type 1 Waters are identified on the Water Type Map. A "critically sensitive" water resource, as determined by the Tribal Council is a water resource that is necessary for the management, utilization, or protection of Reservation lands or waters including, but not limited to:(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. (2) are perennial or intermittent streams which have a well defined channel 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; and (3) are impoundments having a surface area greater than 0.5 acre at seasonal low water. (2) are 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; and (3) are impoundments having a surface area greater than 0.2 acre, and less than 0.5 acres, at seasonal low water. (2) are 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; (3) are impoundments having a surface area greater than 0.2 acre at seasonal low water; and (4) are areas of perennial or intermittent seepage, ponds, marshes, bogs, and drainage ways having short periods of seasonal or storm run-off. (2) "Seasonal Low Flow" and "Seasonal Low Water" mean the conditions of the seven-day (7 day), two-year (2 year) low water situation, as measured or estimated by accepted hydrologic techniques recognized by the Department. (3) Channel width shall be measured over a representative section of at least five hundred (500) lineal feet with at least ten (10) evenly spaced measurement points along the normal stream channel. (4) "Intermittent Stream" means those segments of streams that normally go dry for a portion of the calendar year. 4-7-7 Applications and Notification; Policy (a) No Class II, III, or IV forest practices shall be commenced unless the Department has received a notification for Class II forest practices, or approved or, conditionally approved an application for Class III or IV forces practices pursuant to this Chapter. Where the time limit for the Department to act on the application has expired and no action thereon has been taken by the Department, and none of the conditions in section 4-7-9(e) exist, the operation may commence, providing that such operations shall comply in all respects with the requirements of this Chapter and other applicable tribal and federal laws. (b) At the option of the applicant, applications or notifications may be submitted to cover a single forest practice or any number of forest practices within reasonable geographic boundaries as specified by the Department. Long range plans may be submitted to the Department for review and consultation. (c) The Department shall prescribe the form and contents of the notification and application which shall specify what information is required for the Department to approve or disapprove the application. (d) Applications and notifications for operations not converting to another use shall be signed by the landowner, the timber owner and the operator; or the operator and accompanied by a consent form signed by the timber owner and the landowner. A consent form may be another document if it is signed by the landowner(s) and it contains a statement acknowledging that he is familiar with this Chapter, including the provisions dealing with conversion to another use. Where the application is not signed by the landowner, the application previously approved without the landowner's signature the new timber owner or operator may be required to submit a bond securing compliance with the requirement of the Forest Practice Regulations as determined necessary by the Department. If an application or notification indicates that the landowner or timber owner is also the operator, or an operator signed the application, no notice need be given regarding any change in subcontractors or similar independent contractors working under the supervision of the operator of record. (e) Applications and notifications must be delivered to the Department at the appropriate office. Delivery should be in person or by registered or certified mail. (f) Applications and notifications shall be considered received on the date and time shown on any registered or certified mail receipt, or the written receipt given at the time of personal delivery, or at the time of receipt by general delivery. Applications or notifications that are not complete or are inaccurate will not be considered officially received until the applicant furnishes the necessary information to complete the application. If a notification or application is delivered in person or by mail to the Department by the operator or his authorized agent, the Department shall promptly but not later than twenty-four (24) hours provide a dated receipt. In all other cases, the Department shall promptly mail a dated receipt to the applicant. Every receipt will indicate the file number assigned to the notification or application. (g) The information required by the Department on a notification or application may include but shall not be limited to: (2) Description of the proposed forest practice or practices to be conducted; (3) Legal description of the land on which the forest practices are to be conducted; (4) Planimetric and topographic maps of adequate size and detail showing location size of all lakes and streams and other Reservation waters in and immediately adjacent to the operating area and showing all existing and proposed roads and major tractor roads; (5) Description of the silvicultural, harvesting, or other forest practice methods to be used, including the type of equipment to be used and materials to be applied; (6) Proposed plan for reforestation and for any revegetation necessary to reduce erosion potential from roadsides and yarding roads, as required by the Forest Practices Regulations; (7) Soil, geological, and hydrological data with respect to forest practices; (8) The expected dates of commencement and completion of all forest practices specified in the application; (9) Provisions for continuing maintenance of roads and other construction or other measures necessary to afford protection to Reservation resources; and (10) An affirmation that the statements contained in the notification or application are true. (2) Completion of such forest practice operations shall be deemed conversion of the lands to another use; (3) Conversion to a use other than commercial timber operations upon completion of such forest practices without appropriate consent or approval from the Colville Business Council constitutes a violation of those laws for which such consent or approval is required. (i) Before
the operator commences any forest practice in a manner significantly
different from that described in a previously filed notification or
application, there shall be submitted to the Department a new application
or notification in the manner set forth in this section. (k) Notwithstanding
any other provision of this section, no prior notification or application
shall be required for any emergency forest practice necessitated by
fire, flood, windstorm, earthquake or other emergency defined by the
Colville Environmental Quality Commission, but the operator shall submit
an application or notification, whichever is applicable, to the Department
within forty-eight (48) hours after commencement of such practice, provided
that the operator shall comply with any Stop Work Order or Notice to
Comply the same as if such forest practices were being performed pursuant
to an approved application. (2) For "Class IV" applications when the Department has determined an environmental r eview or statement must be prepared, the application must be approved, disapproved or approved with conditions within thirty (30) working days after receipt by the Department. The cost of preparing any review or statement by the Department shall be upon the application as a condition to approval of the application. When a Class IV application involves land to be converted to another use, a copy of the application shall be transmitted to the Colville Business Council. (b) Where an application covers both Class III and Class IV forest practices, the Department shall have thirty (30) calendar days to respond, except more time may be authorized as in (a) above. (c) If
the application indicates that it covers only Class III forest practices
and the Department determines it involves some Class IV forest practices,
within fourteen (14) calendar days the Department shall either so indicate
or approve or disapprove the application. (f) If
seasonal field conditions prevent the Department from being able to
properly evaluate the application, the Department shall have an additional
sixty (60) days to act upon the application. (2) The Colville Business Council has filed timely objections to the approval and the application indicates that it involves lands being converted to another use. (3) The operator has been enjoined from conducting forest practices by a Colville Tribal Court action under this Chapter. (4) Conducting the operation(s) in accordance with the application would be inconsistent with this Chapter and no acceptable alternate plan is approved. (b) If an application is properly filed but portions of it must be disapproved or approved only with conditions, any portions of the proposed operations which can be separately conducted in compliance with this Chapter without reasonable risk to a Reservation resource or the health, safety and welfare of the Reservation population shall be approved. (c) The
Department shall specify the particular operation or parts thereof disapproved
or conditionally approved and the reasons therefore, citing the provision(s)
of these Regulations with which the proposed operations(s) do not comply. (d) Approval
shall be effective for operations to take place within twelve (12) months
from the date issued. If an application to harvest signed by the landowner indicates that within three (3) years after completion, the forest land will be used for an active use which is incompatible with timber growing, the reforestation requirements of these regulations shall not apply and the information relating to reforestation on the application form need not be supplied. However, if such other use is not initiated within three (3) years after such harvest is completed, the reforestation requirements shall apply and such reforestation shall be completed within one (1) additional year. 4-7-12 Enforcement Policy It is the policy of this Chapter to encourage informal, practical, result-orientated resolution of alleged violations and actions needed to prevent damage to Reservation resources or harm to the health, safety or welfare of the Reservation population. It is also the policy of this Chapter, consistent with the principles of due process, to provide effective procedures for enforcement. This Chapter provides the following enforcement procedures: informal conferences; Notices to Comply; Stop Work Orders; corrective actions by the Department; civil penalties; injunctions and other civil and administrative judicial relief. The enforcement procedure used in any particular case shall be appropriate in view of the nature and extent of the violation or the damage or risk to Reservation resources and the health, safety and welfare of the Reservation population and the degree of bad faith or good faith of the persons involved. 4-7-13 Informal Conferences (a) Opportunity mandatory: The Department shall afford the operator or his representative reasonable opportunities to discuss proposed enforcement actions at an informal conference prior to taking further enforcement action, unless the Department determines that there may be either imminent environmental damages to a Reservation resource or adverse impact upon the health, safety and welfare of the Reservation population. Informal conferences may be used at any stage in enforcement proceedings, except that the Department may refuse to conduct informal conferences with respect to any matter then pending before the Colville Environmental Quality Commission or the Colville Tribal Court. (b) Reports required: Department personnel in attendance at informal conference shall keep written notes of the date and place of the conference, the persons in attendance, the subject matter discussed, and any decisions reached with respect to further enforcement action. (c) Records available: Copies of written notes shall be sent to each participant in the conference, be kept in the Department files until one (1) year after final action on the application involved, and be open to public inspection. 4-7-14 Notice to Comply—Contents—Procedures—Hearing—Final Order—Limitations on Actions (a) Where a violation has occurred, and such violation may result in or may cause material damage to a Reservation resource or harm to the Reservation population, then the Department may issue and serve upon the operator or landowner a notice which shall clearly set forth: (1) The specific nature, extent, and time of failure to comply with the approved application; or identifying the damage or potential damage to a Reservation resource or harm to the Reservation population; and/or (2) The relevant provisions of this Chapter relating thereto; (3) The right of the operator or landowner to a hearing before the Department; and (4) The specific course of action ordered by the Department to be followed by the operator to correct such failure to comply and to prevent, correct and/or compensate for material damage to Reservation resources or harm to the Reservation population which resulted from any violation, unauthorized deviation, or willful or negligent disregard for potential damage to a Reservation resource; and/or those courses of action necessary to prevent continuing damage to Reservation resources or harm to the Reservation population where the damage is resulting from any violations, unauthorized deviation, or negligence. (b) The
Department shall mail a copy thereof to the forest land owner and the
timber owner at the addresses shown on the application, showing the
date of service upon the operator. The operator shall undertake the
course of action so ordered by the Department unless, within fifteen
(15) days after the date of service of such Notice to Comply, the operator,
forest landowner, or timber owner, shall request the Department in writing
to schedule a hearing. If so requested by the operator, the Department
shall schedule a hearing on a date not more than twenty (20) days after
receiving such request. Within ten (10) days after such hearing, the
Department shall issue an interim order either withdrawing its Notice
to Comply or clearly setting forth the specific course of action to
be followed by such operator. Such interim order shall become final
ten (10) days after its issuance and the operator shall undertake the
course of action so ordered by the Department unless within this ten
(10) day period the operator, forest landowner, or timber owner elects
to exhaust his administrative remedies by appealing such interim order
to the Colville Environmental Quality Commission. The order of the Colville
Environmental Quality Commission shall be final agency action from which
there is the right of judicial review. (2) An order to stop all work in connection with the violation, deviation, damage, or potential damage; (3) The specific course of action needed to correct such violation or deviation or to prevent damage and to correct and/or compensate for damage to Reservation resources which has resulted from any violation, unauthorized deviation, or willful or negligent disregard for potential damage to a Reservation resource or potential harm to the Reservation population; and/or those courses of action necessary to prevent continuing damage to Reservation resources or harm to the Reservation population where the damage is resulting from the forest practice activities but has not resulted from any violation, unauthorized deviation, or negligence; and (4) The right of the operator to a hearing before the Colville Environmental Quality Commission: The Department shall immediately file a copy of such order with the Colville Environmental Quality Commission and mail a copy thereof to the timber owner and forest land owner at the addresses shown on the application. The operator, timber owner, or forest landowner may commence an appeal to the Colville Environmental Quality Commission within fifteen (15) days after service upon the operator. If such appeal is commenced, a hearing shall be held not more than twenty (20) days after copies of the notice of appeal were filed with the Colville Environmental Quality Commission. The operator shall comply with the order of the Department immediately upon being served, but the Colville Environmental Quality Commission, if requested, shall have authority to continue or discontinue in whole or in part the order of the Department under such conditions as it may impose pending the outcome of the proceeding. 4-7-16 Failure to Take Required Course of Action—Notice of Cost—Department Authorized to Complete Course of Action—Liability of Owner for Cost If an operator fails to undertake and complete any course of action with respect to a forest practice, as required by final order of the Department or a final decision of the Colville Environmental Quality Commission, the Department may determine the cost thereof and give written notice of such cost to the operator, the timber owner and the owner of the forest land upon or in connection with which such forest practice was being conducted. If such operator, timber owner, or forest land owner fails within thirty (30) days after such notice is given to undertake such course of action, or having undertaken such course of action fails to complete it within a reasonable time, the Department may expend any funds available to undertake and complete such course of action and such operator, timber owner, and forest land owner shall be jointly and severely liable for the actual, direct cost thereof, but in no case more than the amount set forth in the notice from the Department, plus attorney fees, investigatory, court and other costs. If not paid within sixty (60) days after the Department completes such course of action and notifies such forest land owner in writing of the amount due, such amount shall become an obligation on such forest land and the Reservation Attorney at the Department's direction shall enforce this obligation to the extent provided by law. 4-7-17 Failure to Obey Stop Work Order—Department Action Authorized—Liability of Owner or Operator for Costs When the operator has failed to obey a Stop Work Order the Department may take immediate action to prevent continuation of or avoid material damage to Reservation resources or adverse impact on the health, safety and welfare of the Reservation population. If a final order or decision fixes liability with the operator, timber owner, or forest landowner, they shall be jointly and severely liable for such emergency costs which may be collected in any manner provided for in tribal law. 4-7-18 Failure to Comply with Water Quality Protection—Department of Hydrology Authorized to Petition Colville Environmental Quality Commission—Action on Petition If the Department of Hydrology determines that a person has failed to comply with this Chapter or an approved application relating to water quality protection, and that the Department of Forestry has not issued a Stop Work Order or Notice to Comply, the Department of Hydrology shall inform the Department of Forestry thereof. If the Department of Forestry fails to take authorized enforcement action within twenty-four (24) hours under this Chapter, the Department of Hydrology may petition to the Chairman of the Colville Environmental Quality Commission, who shall, within forty-eight (48) hours, initiate negotiations between the Department heads or directors and either deny the petition or direct the Department of Forestry to immediately issue a Stop Work Order or Notice to Comply or to impose a penalty. This action is in the nature of internal agency deliberations and shall not give rise to administrative or judicial review therefrom.
(c) Written Notice: The remedial action herein provided for shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the Department, describing the violation with reasonable particularity. The person incurring civil damages pursuant to this section may within thirty (30) days of receipt of notice apply in writing to the Department for the remission or mitigation of such remedial action. Upon receipt of the application, the Department may remit or mitigate the remedial action upon whatever terms the Department, in its discretion, deems proper; Provided, that the Department deems such remission or mitigation to be in the best interests of carrying out the purposes of this Chapter. Any compensation imposed hereunder shall become due and payable thirty (30) days after receipt of such notice or thirty (30) days after the conclusion of any administrative or judicial appeals. The Department shall have authority to ascertain the facts regarding all such applications in a reasonable manner. (d) Right of Appeal: Any person incurring any civil remedial action hereunder may appeal the same to the Colville Environmental Quality Commission. Unless such an appeal is taken, the civil remedial action hereunder shall be final and binding upon the person(s) affected by that civil remedial action. Such appeals shall be filed within thirty (30) days of receipt of notice imposing any penalty unless an application for remission or mitigation is made to the Department. When such an application for remission or mitigation is made, such appeals shall be filed within thirty (30) days of receipt of notice from the Department setting forth the disposition of the application. The decision of the Colville Environmental Quality Commission shall be final agency action for purposes of judicial review. (e) Enforcement Action: If the amount of any compensation is not paid to the Department within thirty (30) days after it becomes due and payable, the Office of the Reservation Attorney, upon request of the Department, shall bring action in the Colville Tribal Court to recover such compensation. 4-7-21 Enforcement The Colville Tribes, through the Colville Tribal Court, may take any necessary action to enforce any final order or final decision after such person has failed to comply with the final order or the final decision. 4-7-22 Administrative Appellate and Judicial Review (a) Any person aggrieved by any order, decision, or other action of the Department may obtain administrative appellate review thereof by submission of a timely petition to the Colville Environmental Quality Commission pursuant to the standards and procedures of the Colville Administrative Procedure Act. Such petition for administrative appellate review shall be filed with the Chairman of the Colville Environmental Quality Commission within thirty (30) days of the date of the order, decision, or other action which is the subject of such appeal. Exhaustion of such administrative appellate review is a jurisdictional requirement to judicial review. (b) Any person directly affected by any final order, final decision or other final action of the Colville Environmental Quality Commission may obtain judicial review of such order, decision or action by filing a timely petition with the Colville Tribal Court pursuant to the Colville Administrative Procedure Act. Such petition for judicial review shall be filed with the Court, as a civil matter under the Colville Tribal Code, within twenty (20) days of the decision of the Colville Environmental Quality Commission. Unless declared invalid upon judicial review, a final order, final decision, or other final action of the Colville Environmental Quality Commission shall be binding upon all parties. 4-7-23 Cooperation with Public Agencies—Grants and Gifts Subject to approval of the Colville Business Council the Department is authorized to accept, receive, disburse and administer grants or other funds or gifts from any source, for the purpose of carrying out the provisions of this Chapter and to consult and cooperate with federal and state agencies in matters pertaining to this Chapter. Subject to approval by the Business Council, the Department is further authorized to negotiate inter-governmental agreements which may create, modify, or change duties established by this Chapter; Provided, that no regulatory changes shall be valid unless made in accordance with the Colville Administrative Procedure Act. 4-7-24 Statutes and Trust Responsibility Not Modified Nothing in this Chapter as now or hereafter amended shall modify or waive any requirement to comply with applicable federal laws and regulations. Nothing in this Chapter as now or hereafter amended shall be construed to modify, waive or impair the trust responsibility of the United States. 4-7-25 Waiver of Regulations Whenever a strict interpretation of this Chapter, or the regulatory program established pursuant to this Chapter, would result in extreme hardship, the Department may waive or modify such regulatory requirements or portion thereof; Provided, that such waiver or modification shall be consistent with the intent of this Chapter and; Provided further, that no such waiver shall be granted where material damage to Reservation resources, or adverse impact upon health and welfare of the Reservation population, shall result therefrom. 4-7-26 Severability If any provision of this Chapter, or the application thereof, to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of this Chapter which can be given effect without the invalid provision or application, and to this end, the provisions of this Chapter are declared to be severable.
In this Chapter, roads of the Colville Reservation are designated as falling into five classes as follows: (b) Class II: Forest roads designated as secondary haul roads which are to remain active and publicly accessible as a part of the Reservation road network. They are normally surfaced and provide access to principal drainage areas or connect with Class I and V roads. Roads will be maintained during and after completion of the timber sale that initiated construction. (c) Class III: Branch roads which are minor haul roads providing access to smaller drainages or areas. They are normally unsurfaced but may be maintained for administration and fire protection use after the sale is completed. These roads will remain publicly accessible. Non-active roads will be closed and "put to bed." (d) Class IV: Spur roads which are temporary roads used for short periods to haul timber short distances. They are unsurfaced and will be promptly closed after timber sale is completed. (e) Class V: Non-forest roads are existing roads which are a part of the Reservation road network. This class of roads can and usually does serve as a forest transport road. (Class I and II roads will generally connect with subclass 1 and 2 routes). (1) Highways (US #97, State Roads 155, 21, and 17); (2) Major Arterials (Bridge Creek, Cache Creek, Manilla Creek and Silver Creek); (3) Feeder (city and community streets); (4) Collector connectors. 4-7-61 Road Construction and Maintenance Best Management Practices The following Best Management Practices (BMPs) shall be guidelines applicable to forest road construction and maintenance. These guidelines shall be utilized to select the appropriate road location design and construction standards and maintenance practices that best balance economics and water quality objectives, including but not limited to: (1) Minimize road density by using existing and abandoned roads whenever possible and practical. Keep new road construction at an absolute minimum. (2) Locate roads to minimize disturbance to all water bodies on the Reservation. Avoid locating roads in narrow canyons, marshes, wet meadows, natural drainage channels, and geological hazard areas. (3) Locate roads a safe distance from streams or lakes when running parallel to water bodies. At a minimum, do not locate roads within Streamside Management Zones. (4) Fit the road to the topography to minimize soil disturbance. Locate roads to take advantage of naturally stable areas, such as natural benches, ridgetops, flatter slopes, etc. (5) Keep road grades within eight-ten (8-10%) percent, or less, where possible and practical. Where excessive excavation requirements or topography constraints are present, occasional grades of up to fifteen (15%) percent may be used with prior Department approval. Keep steep segments as short as possible where the grade necessarily exceeds eight-ten (8-10%) percent. (6) Avoid long, continuous grades; avoid long, completely flat segments where ponding will occur. (7) Avoid headwalls at a tributary drainage source on ridgetop routes. Locate roads slightly off-center on ridge-top routes. (8) Avoid locating roads on excessively steep, unstable, erosional, or slide prone slopes. Obtain soils and area geophysical information and review sensitive lands maps where available and survey adjacent similar areas for vegetation and topographic "indicators" for suspected problem areas. (9) Minimize the number of stream crossings. All stream crossings must be approved by the Department in writing prior to any such action being taken by any person. (10) Choose crossing locations at right angles to the stream channel. (2) Fit the road to the topography so that alterations of natural features are minimized. (B) Sacrifice alignment to avoid heavy excavation. Fit the road to the topography so landscape alterations are minimized. (C) Plan and locate switchbacks on the flattest slope available to avoid heavy excavation. (D) Avoid sidecasting material on slopes over fifty (50) percent which are terminated within five hundred (500) feet of a stream or lake. (E) Fill slope ratios unless otherwise approved by the Department are:
(4) Plan stream crossings with care so that channel and bank disturbance is minimized. (5) Where necessary to protect fill embankments from stream erosion, a head wall (usual riprap or gabions) is recommended to prevent erosion of the fill. (6) All roads should be designed with adequate permanent or temporary water management and/or crossing structures so that the road does not become a source of erosion and sedimentation. (B) Cross drains, relief culverts, and diversion ditches shall not discharge directly into natural waters or onto erodible soils or fill slopes unless adequate outfall protection is provided which prevents erosion. (C) Effective drainage structures shall be installed at all low points in the road gradient. Generally, spacing should be no wider than as follows:
(D) Drainage structures on permanent roads shall be designed to handle a fifty (50) year flood and should be functional at all times. Structures damaged or plugged by logging activities shall be cleaned or replaced before runoff occurs. (E) Drainage structures on temporary roads which cross natural watercourses shall be designed to handle a twenty-five (25) year flood and shall be removed upon completion of use, restoring the watercourse to its original water carrying capacity. (F) Relief culverts installed on forest roads shall meet the following minimum specifications: (ii) Be installed with adequate headwalls, where needed, and sloping downward toward the outside shoulder of the road at a minimum to keep the culvert clean and at a maximum of four (4) percent. (H) Design road grades and locate culverts so silt will settle out and not drain into the watercourses. (2) Deposit excess debris, slash and road building materials in stable locations outside of the Streamside Management Zone. (3) Do not allow the low point of a grade break to occur on deep fills if possible. (4) All ditches, culverts, cross drains, water bars and diversion ditches shall be installed concurrently with construction of the roadway. (5) Alter the spacing of surface drainage structures, if necessary, so that water spills on stable areas. (6) Avoid unnecessary soil and vegetation disturbance. (7) Do not divert the runoff or streamflow from two or more drainages into one channel. (8) Do not dredge materials from streams for road construction. (9) Clear stream channel of all debris and slash generated during operations prior to removal of construction equipment from the vicinity or the winter season, whichever is first. (10) End haul or overhaul construction is required where sidecase material would rest within the Streamside Management Zone of Type 1 through 4 Waters, or where there is a potential for massive soil failure from overloading on unstable slopes or for damage to Reservation resources as determined by the Department. (11) Materials used in road construction shall be free of loose stumps, excessive accumulation of slash, and woody material of more than three (3) cubic feet. (12) During road construction, fills or embankments shall be built up in two-foot layers. Each layer shall be compacted by operating the tractor or other equipment over the entire surface of the layer. Chemical compacting agents may be used in accordance with sections 4-7-86 and 4-7-87. (13) Construction shall be accomplished when low flow periods and soil conditions are least likely to result in extensive erosion and/or soil movement. (14) Spoil and debris shall be deposited outside the Streamside Management Zone. When spoil or other debris is deposited in an appropriate location, embankments so formed shall be compacted by layering, or so stabilized that the risk of its later entering Streamside Management Zone is minimal. (15) When soil exposed by road construction appears to be unstable or erodible, and is so located that slides, slips, slumps or washing may reasonably be expected to cause unreasonable damage to a Reservation resource, them such exposed soil areas shall be seeded with grass, other cover, or be treated by other means acceptable to the Department. (16) When temporary stream crossings are necessary, pick locations requiring a minimum of bank disturbance and soil displacement. Equipment shall not be used in stream crossings without prior written approval of the Department. (17) Fully backslope each graded section except where vertical banks are proven to be more stable than sloping ones. (18) Rough grade a new road only as far as that road can be completely finished during the current construction season. Drain incompleted segments of permanent or temporary roads to be left over the winter season or other extended periods, outsloping or ditching with cross drains, water bars and diversion ditches to minimize soil erosion and stream siltation. (19) Do not conduct earth moving activities when the soils are saturated. Construct grades through wet soils during the dry season. (20) Use grade changes (concave vertical curve) to turn water off roads, particularly to protect fills at stream crossings. (21) Shut down construction during periods of heavy rainfall. (2) Permanent bridges shall be designed and constructed at the minimum to pass without obstruction the fifty (50) year flood level of the stream it spans. Bridges shall be designed by a registered engineer unless the Department authorizes specific exemptions for particular bridge crossings. (3) One end of each new permanent log or wood stringer bridge should be tied or firmly anchored, if the elevation of the bridge is within ten (10) vertical feet of the fifty (50) year flood level. (4) Plan all construction activities in the streams to coincide with low seasonal streamflows. (5) Excavation for placement of bridge sills, piers, abutments or wing walls shall be done from outside the ordinary high water mark, unless such operations are authorized by the Department. (6) Construction equipment shall be operated in a manner that will cause the least aggravation to the stream bed and banks. Remove any stumps, logs, chunks, branches, etc., that might have been pushed into the stream bed during construction. (7) Bridge approaches shall slope away from the bridge deck to avoid drainage onto the deck and into the water body. This will also extend the life of the bridge. (8) Bridge approach fills and banks shall be stabilized as necessary to prevent undue or excessive erosion, paying particular attention to proper ditching. Riprap, bulkheads, wing walls or other measures may be required. (9) Stream bed bank areas shall be restored as nearly as possible to their original condition upon completion of the project. (10) When earthen materials are used for bridge surfacing, curbs or guards of adequate size shall be installed which will prevent the surface material from entering the stream. (11) Temporary bridges shall be installed during low water periods, used and removed before the following peak water flow (spring runoff). (2) Minimum sizes of permanent culverts are: (A) Thirty-six (36) inches in diameter for migratory fish streams. Migratory fish streams are those containing a species of fish which must move to another body of water to complete its life cycle. Open bottom culverts may be required. (B) Twenty-four (24) inches in diameter for resident game fish streams. Open bottomed culverts may be required. (C) Eighteen (18) inches in diameter for other waters. (3) Culverts constructed for permanent stream crossing should be of galvanized steel, concrete, aluminum or plastic and of sufficient gauge or thickness. Two feet or half the diameter of the culvert, whichever is greater, shall be the minimum overburden. (4) The alignment and slope of the culvert shall conform to the natural flow of the stream for all streams. (5) In areas where fish are present, the bottom of the culvert shall be installed slightly below the natural stream bottom at both ends of the culvert. (6) All culvert installations shall terminate on materials that will not readily erode under full flow of the culvert. (B) When flumes, downspouts, downfall culverts, etc., are used to protect erodible soils or return water to its stream course, the discharge point must be protected from erosion by: reducing water velocity by catch basins, use of rock spillways or gabions, riprapping, or installing permanent splash plates. (8) The inlet ends of all ditch culverts shall have adequate catch basins and headwalls to minimize the risks of culvert siltation and "by-pass" of the culvert from erosion of the headwall. Rock headwalls shall be placed on all culverts where annual peak flows exceed 100 cfs; and where headwall erosion is expected on smaller streams, as determined by the Department. (9)
Ditch culverts that may reasonably by expected to carry near capacity
water volumes or to encounter some siltation should: (B)
Have a smooth gradient drop of not less than two (2) percent. |