Colville Tribal Law and Order Code, Title 4 - Natural Resources and Environment, Ch. 8-9

TITLE 4 - NATURAL RESOURCES AND ENVIRONMENT, CH. 8-9

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 4-8 WATER QUALITY STANDARDS

4-8-1 Findings

(a) The Colville Confederated Tribes have a primary interest in the protection, control, conservation, and utilization of the water resources of the Colville Indian Reservation. It is the purpose of this Chapter to establish Tribal Water Quality Standards for the surface waters and ground waters located within the exterior boundaries of the Colville Indian Reservation. The quality of all surface and groundwater on the Reservation shall be protected to insure the health, economic, aesthetic and cultural well being of all people residing upon the Colville Indian Reservation.

(b) The human activities and factors which may adversely affect the quality of surface and ground waters on the Colville Indian Reservation and the natural resources which they support shall be regulated to protect and maintain the high quality of such waters and preserve their continued domestic, agricultural, industrial, recreational, cultural and other beneficial uses. The economy, health, safety and welfare of the people residing and doing business on the Colville Indian Reservation may be adversely affected by human activities carried out by both Indian and non-Indian people on trust and fee land within the Colville Indian Reservation. Inadequate control of such activities can contaminate and degrade surface and groundwater resources on which many people depend for domestic, agricultural, industrial, business, recreational, cultural and other uses.

(c) The Colville Confederated Tribes have jurisdiction to enforce Tribal Water Quality Standards in order to protect the economy, health, safety and welfare of the Reservation community.

4-8-2 Territory Covered

The provisions of this Chapter, known as the Water Quality Standards Chapter of the Colville Law and Order Code, shall apply to all surface and groundwaters of the Colville Indian Reservation. Every human activity taking place on the Colville Indian Reservation which may affect the quality of the surface and groundwater resources of the Reservation shall be subject to the provisions of this Chapter.

4-8-3 Administration

The Hydrology Department of the Colville Confederated Tribes shall administer this Chapter. From time to time, and as it deems appropriate, the Department may recommend that the Business Council amend this Chapter. The Hydrology Department may propose that the Business Council adopt a Fee Schedule for the purpose of establishing fees which may be charged for permits and other administrative services provided by the Department under this Chapter.

4-8-4 Definitions

(a) "Background conditions" means the biological, chemical, and physical conditions of a water body, upstream from the point or non-point source of any discharge under consideration. Background sampling location in an enforcement action would be upstream from the point of discharge, but not upstream from other inflows. If several discharges to any water body exist, and enforcement action is being taken for possible violations to the standards, background sampling would be undertaken immediately upstream from each discharge.

(b) "Best Management Practices" or "BMPs" means a generic term describing minimum acceptable land use practice required to meet applicable Water Quality Standards.

(c) The "Colville Environmental Quality Commission" or "CEQC" means the environmental policy making and environmental administrative appellate body of the Colville Confederated Tribes.

(d) "Ceremonial and Religious water use" means activities involving traditional Native American spiritual practices which involve, among other things, direct contact with water.

(e) "Council" or "Tribal Council" means the Colville Business Council of the Colville Confederated Tribes.

(f) "Department" means the Hydrology Department of the Colville Confederated Tribes.

(g) "Director" means the Director of the Hydrology Department, also referred to as the Water Administrator.

(h) "EPA" means the US Environmental Protection Agency. (i) "Fecal coliform" means that portion of the coliform group which is present in the intestinal tracts and feces of warm-blooded animals as detected by the product of acid or gas from lactose in a suitable culture medium within twenty-four (24) hours at 44.5 plus or minus 0.2 degrees Celsius.

(j) "Geometric mean" means the nth root of a product of n factors.

(k) "Ground water" means all water occurring below the ground surface within the exterior boundaries of the Colville Indian Reservation including but not limited to unconfined, semi-confined, and confined aquifers and all other water occurring within subsurface geologic formations, rock, and soil.

(l) "Mean detention time" means the time obtained by dividing a reservoir's mean annual minimum total storage by the thirty (30) day, ten (10) year low-flow from the reservoir.

(m) "Non-point source" means any source contributing to water quality degradation where that degradation cannot be accounted for by any point source, including but not limited to, runoff from agriculture, silviculture, construction, and mining.

(n) "Permit" means a document issued by a public body which specifies waste treatment and control requirements and waste discharge conditions.

(o) pH" means the negative logarithm of the hydrogen ion concentration.

(p) "Person" means any individual; association of individuals; partnership; private, public, tribal, or municipal corporation; tribal enterprise; company; business enterprise; any county, tribal, federal, state, or local government; or any governmental entity.

(q) "Point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discreet fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.

(r) "Pollutant" includes but is not limited to dredged spoil, soil, slurry, solid waste, incinerator residue, sewage, sewage and industrial sludge, garbage and trash, chemical waste, biological nutrient, biological material, radioactive material, heat, discarded equipment, material and plant matter, rock, sand, gravel, mine tailings, discarded containers, and all other industrial, municipal or agricultural waste.

(s) "Pollution" means artificially made or induced change in the chemical, physical or radiological characteristics of water.

(t) "Primary contact recreation" means activities where a person would have direct contact with water to the point of complete submergence, including but not limited to skin diving, swimming, and water skiing.

(u) "Reservation" means the Colville Indian Reservation established on July 2, 1872 by Executive Order containing 1,389,000 acres more or less.

(v) "Reservation population" means all persons who reside on or otherwise conduct business or other activities on any lands, whether trust or fee, within the exterior boundaries of the Colville Indian Reservation.

(w) "Reservation resources" or "Reservation environment" means land, surface and ground water, fish, biota, plants, animals, air, wildlife and capital improvements on the Colville Indian Reservation.

(x) "Secondary contact recreation" means activities where a person's water contact would be limited to the extent that bacterial infections of eyes, ears, respiratory or digestive systems or urogenital areas would normally be avoided (such as wading or fishing).

(y) "Surface water" means all water above the surface of the ground within the exterior boundaries of the Colville Indian Reservation including but not limited to lakes, ponds, reservoirs, artificial impoundments, streams, rivers, springs and seeps.

(z) "Temperature" means water temperature expressed in degrees Celsius (ºC).

(aa) "Tribe" means the Colville Confederated Tribes.

(bb) "Tribal Water Quality Standards," "Water Quality Criteria," or "Water Quality Standards" means the numerical quantification of specific regulatory parameters to protect ambient surface and ground water quality provided for by this Chapter.

(cc) "Turbidity" means the clarity of water expressed as nephelometric turbidity units (NTU) and measured with a calibrated turbidimeter.

(dd) "Wildlife habitat" means the waters and surrounding land areas of the Reservation used by fish, other aquatic life and wildlife at any stage of their life history or activity.

4-8-5 General Considerations

The following general guidelines shall apply to the Water Quality Standards and classifications set forth in sections 4-8-6 through 4-8-8. (a) At the boundary between waters of different classifications, the Water Quality Standards for the higher classification shall prevail.

(b) The Water Quality Standards herein established shall not apply within an authorized dilution zone adjacent to or surrounding a wastewater discharge.

(c) Waste discharge permits will not be issued which would allow violations of Tribal Water Quality Standards. (1) However, persons discharging wastes in compliance with the terms and conditions of permits shall not be subject to civil penalties on the basis that the discharge violated Tribal Water Quality Standards.

(2) Permits shall be subject to modification by the Department whenever it appears to the Department that the discharge may violate Tribal Water Quality Standards. Modifications of permits, as provided herein, shall be subject to the same administrative review procedures as originally issued permits.

(d) Non-Point Sources and Tribal Water Quality Standards: (1) It is recognized that many activities not subject to a waste discharge permit system are now taking place within the Reservation and it is further recognized that such activities may be in conflict with applicable Tribal Water Quality Standards until such time as a regulatory program is in place to control such non-permitted activities. Any such regulatory program shall provide methods or means whereby such activities shall comply with Tribal Water Quality Standards. Person conducting non-point source activities for which a regulatory program may be developed may however, not be subject to civil sanctions for violation of Tribal Water Quality Standards if such activities are either: (A) Conducted in accordance with applicable best management practices set forth by the Tribe; or

(B) Subject to and in compliance with any regulatory order(s) issued by the Department.

(2) Best management practices or regulatory orders described in subsection 4-8-5(d)(1) shall be subject to modification by either the Council or the Department whenever it appears that the discharge may violate Tribal Water Quality Standards. Modification of best management practices or regulatory orders, as provided herein, shall be subject to the same administrative review procedures as the originally issued best management practices or regulatory orders. (e) The Water Quality Standards herein established for the total dissolved gas shall not apply when the stream flow exceeds the seven (7) day, ten (10) year frequency flood.

(f) The total area and/or volume of a receiving water assigned to a dilution zone shall be as described in a valid discharge permit as needed and shall be limited to that which will:
(1) Not cause acute moralities or sport, food, or commercial fish and shellfish species of established biological communities within populations or important species to a degree which damages the ecosystem; and

(2) Not diminish aesthetic values or other beneficial uses disproportionately.

(g) The antidegradation policy of the Tribe, which is a regulatory requirement of this Chapter shall be applicable to all surface and ground waters of the Reservation. The antidegradation policy provides that: (1) Existing beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses shall be allowed.

(2) No further degradation of any surface or ground waters lying within areas designated as unique water quality management areas shall be allowed.

(3) Whenever surface or ground waters are in fact of a higher quality than provided for by applicable Water Quality Standards, the existing higher water quality shall be protected. Wastes, other materials, and substances which may reduce the existing quality of such surface or ground waters shall not be allowed to enter such waters. Except that the Department may allow such wastes, other materials, and substances to be placed in such waters in those instances where:

(A) It is clear that overriding considerations of the public interest will be served thereby, and

(B) All wastes and other materials and substances proposed for discharge into the said waters shall have first been subject to all known, available, and reasonable methods of treatment prior to such discharge.

(4) Whenever the natural conditions of surface or ground waters in their unaltered state and not affected by human activity are of a lower quality than the Water Quality Standards assigned thereto by this Chapter, the natural conditions shall constitute the applicable Water Quality Standards.

(5) The criteria and special conditions established in sections 4-8-6 through 4-8-8 may be modified for a specific water body, on a temporary basis not to exceed sixty (60) days, when necessary to accommodate essential activities, respond to emergencies, or to otherwise protect the public interest. Such modification may for good cause be extended for an additional sixty (60) days. All such modifications shall be issued in writing by the Director or his designee subject to such terms and conditions as he or she may prescribe. The aquatic application of herbicides which may result in water use restrictions shall be considered an activity for which a temporary modification may generally be issued subject to conditions specified by the Department.

(6) No degradation of water quality shall be allowed if such degradation may interfere with or become injurious to existing water uses or may cause long-term or irreparable harm to the Reservation environment.

(7) No waste discharge permit shall be issued for any proposed discharge which may violated established Water Quality Standards, except as provided for under section 4-8-9(c).

(h) In applying Water Quality Standards the Department shall give due consideration to the precision and accuracy of the sampling and analytical methods used as well as existing conditions at the time.

(i) The analytical testing methods used to measure or otherwise evaluate Water Quality Standards shall to the extent practicable, be in accordance with the most recent editions of "Standard Methods for the Examination of Water and Wastewater," published by the American Public Health Association, American Water Works Association, and the Water Pollution Control Federation, and "Methods for Chemical Analysis of Water and Wastes," published by the EPA, and other or superseding methods published and/or approved by the Department following consultation with and concurrence of the EPA.

(j) Deleterious concentrations of radioactive materials for all classes shall be as determined by the lowest practicable concentration attainable and in no case shall exceed EPA Drinking Water Regulations for radionuclides, as published in the Federal Register of July 9, 1976, or subsequent revisions thereof.

(k) Deleterious concentrations of toxic, or other non-radio-active materials, shall be determined by the Department in consideration of the "Quality Criteria for Water," published by EPA in 1976, and as revised, as an authoritative source for criteria and/or other relevant information.

(l) Nothing in this Chapter shall be interpreted to prohibit the establishment of effluent limitations for the control of the thermal component of any discharge in accordance with Section 316 of the Federal Clean Water Act (P.L. 95-217 as amended).
4-8-6 General Water Use and Criteria Classes

The following criteria shall apply to the various classes of surface waters on the Colville Indian Reservation:
(a) Class I (Extraordinary):

(1) General characteristics: Water quality of this class shall markedly and uniformly exceed the requirements for all or substantially all uses.

(2) Characteristic uses: Characteristic uses may included, but not be limited to, the following:

(A) Water supply (domestic, industrial, and agricultural).

(B) Stock watering.

(C) Fish and shellfish: Salmonid migration, rearing, spawning, and harvesting; other fish migration, rearing, spawning, and harvesting.

(D) Ceremonial and religious water use.

(E) Recreation (primary contact recreation, sport fishing, boating and aesthetic enjoyment).

(F) Commerce and navigation.

(3) Water quality criteria:

(A) Fecal coliform organisms - freshwater: Fecal coliform organisms shall not exceed a geometric mean value of 50 organisms/100 mL, with not more than ten (10%) percent of samples exceeding 100 organisms/100 ml

(B) Fecal coliform organisms - saline water: Fecal coliform organisms shall not exceed a geometric mean value of 14 organisms/100mL, with not more than ten (10%) percent of samples exceeding 43 organisms/100mL.

(D) Dissolved oxygen - saline water: Dissolved oxygen shall exceed 7.0 mg/L. When natural conditions, such as upwelling, occur, causing the dissolved oxygen to be depressed near or below 7.0 mg/L, natural dissolved oxygen levels can be degraded by up to 0.2 mg/L by man-caused activities.

(E) Total dissolved gas shall not exceed one hundred-ten (110%) percent of saturation at any point of sample collection.

(F) Temperature shall not exceed 16.0ºC (freshwater) and 13.0ºC (saline water) due to human activities. Temperature increases shall not, at any time, exceed t=23/(T+5) (freshwater) or t=8/(T-4) (saline water).

(i) When natural conditions exceed 16.0ºC (freshwater) and 13.0ºC (saline water), no temperature increase will be allowed which will raise the receiving water temperature by greater than 0.3ºC.

(ii) For purposes hereof, "t" represents the permissive temperature change across the dilution zone; and "T" represents the highest existing temperature in this water classification outside of any dilution zone.

(Iii) Provided that temperature increase resulting from non-point source activities shall not exceed 2.8ºC, and the maximum water temperature shall not exceed 16.3ºC (freshwater).

(G) pH shall be within the range of 6.5 to 8.5 (freshwater) or 7.0 to 8.5 (saline water) with a man-caused variation within a range of less than 0.5 units.

(H) Turbidity shall not exceed 5 NTU over background turbidity when the background turbidity is 50 NTU or less, or have more than a 10 percent increase in turbidity when the background turbidity is more than 50 NTU.

(I) Toxic, radioactive, or deleterious material concentrations - shall be below those of public health significance, or which may cause acute or chronic toxic conditions to the aquatic biota, or which may adversely affect any water use.

(J) Aesthetic values shall not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste.

(b) Class II (Excellent):

(1) General characteristics: Water quality of this class shall meet or exceed the requirements for all or substantially all uses.

(2) Characteristic uses: Characteristic uses may include but not be limited to the following:

(A) Water supply (domestic, industrial, and agricultural).

(B) Stock watering.

(C) Fish and shellfish: Salmonid migration, rearing, spawning, and harvesting; other fish migration, rearing, spawning, and harvesting; crayfish rearing, spawning, and harvesting.

(D) Wildlife habitat.

(E) Ceremonial and religious water use.

(F) Recreation (primary contact recreation, sport fishing, boating and aesthetic enjoyment).

(G) Commerce and navigation

(3) Water quality criteria:

(A) Fecal coliform organisms - freshwater: Fecal coliform organisms shall not exceed a geometric mean value of 100 organisms/100 ml, with not more than ten (10%) percent of samples exceeding 200 organisms/100 ml

(B) Fecal coliform organisms - saline water: Fecal coliform organism shall not exceed a geometric mean value of 14 organisms/100 ml, with not more than ten (10%) percent of samples exceeding 43 organisms/100 ml

(D) Dissolved oxygen - saline water: Dissolved oxygen shall exceed 6.0 mg/L. When natural conditions, such as upwelling occur causing the dissolved oxygen to be depressed near or below 6.0 mg/L, natural dissolved oxygen levels can be degraded by up to 0.2 mg/L by man-caused activities.

(E) Total dissolved gas shall not exceed one hundred-ten (110%) percent of saturation at any point of sample collection.

(F) Temperature shall not exceed 18.0ºC (freshwater) or 16.0ºC (saline water) due to human activities. Temperature increases shall not, at any time, exceed t=28 / (T+7) (freshwater) or t-12 / (T-2) (saline water).

(i) When natural conditions exceed 18.0ºC (freshwater) and 16.0ºC (saline water), no temperature increase will be allowed which will raise the receiving water temperature by greater than 0.3ºC.

(Iii) Provided that temperature increase resulting from non-point source activities shall not exceed 2.8ºC and the maximum water temperature shall not exceed 18.3ºC (freshwater).

(G) pH shall be within the range of 6.5 to 8.5 (freshwater) or 7.0 to 8.5 (saline water) with a man-caused variation within a range of less than 0.5 units.

(J) Aesthetic values shall not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste.

(1) General characteristics: Water quality of this class shall meet or exceed the requirements for most uses.

(2) Characteristic uses: Characteristic uses may include but not be limited to, the following:

(A) Water supply (industrial, agricultural).

(B) Stock watering.

(C) Fish and shellfish: salmonid migration, rearing, spawning, and harvesting; other fish migration, rearing, spawning, and harvesting; crayfish rearing, spawning, and harvesting.

(D) Wildlife habitat.

(E) Recreation (secondary contact recreation, sport fishing, boating and aesthetic enjoyment).

(F) Commerce and navigation.

(3) Water quality criteria:

(A) Fecal coliform organisms - freshwater: Fecal coliform organisms shall not exceed a geometric mean value of 200 organisms/100mL, with not more than 10 percent of samples exceeding 400 organisms/100 ml

(B) Fecal coliform organisms - saline water: Fecal coliform organisms shall not exceed a geometric mean value of 100 organisms/100 ml, with not more than 10 percent of samples exceeding 200 organisms/100 ml

(D) Dissolved oxygen - saline water: Dissolved oxygen shall exceed 5.0 mg/L. When natural conditions, such as upwelling, occur, causing, the dissolved oxygen to be depressed near or below 5.0 mg/L, natural dissolved oxygen levels can be degraded by up to 0.2 mg/L by man-caused activities.

(E) Total dissolved gas shall not exceed 110 percent of saturation at any point of sample collection.

(F) Temperature shall not exceed 21.0ºC (freshwater) or 19.0ºC (saline water) due to human activities. Temperature increases shall not, at any time, exceed t=34/(T+9) (freshwater) or t=16/T (saline water).

(i) When natural conditions exceed 21.0ºC (freshwater) and 19.0ºC (saline water), no temperature increase will be allowed which will raise the receiving water temperature by greater than 0.3ºC.

(Iii) Provided that temperature increase resulting from non-point source activities shall not exceed 2.8ºC, and the maximum water temperature shall not exceed 21.3ºC (freshwater).

(4) pH shall be within the range of 6.5 to 8.5 (freshwater) or 7.0 to 8.5 (saline water) with a man-caused variation with a range of less than 0.5 units.

(A) Turbidity shall not exceed 10 NTU over background turbidity when the background turbidity is 50 NTU or less, or have more than a 20 percent increase in turbidity when the background turbidity is more than 50 NTU.

(B) Toxic, radioactive, or deleterious material concentrations shall be below those which adversely affect public health during characteristic uses, or which may cause acute or chronic toxic conditions to the aquatic biota, or which may adversely affect characteristic water uses.

(C) Aesthetic values shall not be reduced by dissolved, suspended, floating, or submerged matter not attributed to natural causes, so as to affect water use or taint the flesh of edible species.

(d) Class IV (Fair):

(1) General characteristics: Water quality of this class shall meet or exceed the requirements of selected and essential uses.

(2) Characteristic uses: Characteristic uses may include but not be limited to, the following:

(A) Water supply (industrial).

(B) Stock watering.

(D) Recreation (secondary contact recreation, sport fishing, boating and aesthetic enjoyment).

(E) Commerce and navigation.

(3) Water quality criteria:

(A) Fecal coliform organisms shall not exceed a geometric mean value of 200 organism/100 ml, with not more than 10 percent of samples exceeding 400 organisms/100 ml

(B) Dissolved oxygen shall exceed 4.0 mg/L, natural dissolved oxygen levels can be degraded by up to 0.2 mg/L by man-caused activities.

(C) Temperature shall not exceed 22.0ºC due to human activities. Temperature increases shall not, at any time, exceed t=20/(T+2).

(i) When natural conditions exceed 22.0ºC, no temperature increase will be allowed which will raise the receiving water temperature by greater than 0.3ºC.

(D) pH shall be within the range of 6.5 to 9.0 with a man-caused variation within a range of less than 0.5 units.

(E) Turbidity shall not exceed 10 NTU over background turbidity when the background turbidity is 50 NTU or less, or have more than a 20 percent increase in turbidity when the background turbidity is more than 50 NTU.

(F) Toxic, radioactive, or deleterious material concentrations shall be below those which adversely affect public health during characteristic uses, or which may cause acute or chronic toxic conditions to the aquatic biota, or which may adversely affect characteristic water uses.

(G) Aesthetic values shall not be interfered with by the presence of obnoxious wastes, slimes, aquatic growths, or materials which will taint the flesh of edible species.

(e) Lake Class:

(1) General characteristics: Water quality of this class shall meet or exceed the requirements for all or substantially all uses.

(2) Characteristic uses: Characteristic use may include but not be limited to, the following:

(A) Water supply (domestic, industrial, and agricultural);

(B) Stock watering;

(C) Fish and shellfish: Salmonid migration, rearing, spawning, and harvesting; other fish migration, rearing spawning, and harvesting; crayfish rearing, spawning and harvesting;

(D) Wildlife habitat;

(E) Ceremonial and religious water use.

(F) Recreation (primary contact recreation, sport fishing, boating and aesthetic enjoyment).

(G) Commerce and navigation.

(3) Water quality criteria:

(A) Fecal coliform organisms shall not exceed a geometric mean value of 50 organisms/100 ml, with not more than 10 percent of samples exceeding 100 organisms/100 ml

(B) Dissolved oxygen - no measurable decrease from natural conditions.

(D) Temperature - no measurable change from natural conditions.

(E) pH - no measurable change from natural conditions.

(F) Turbidity shall not exceed 5 NTU over background conditions.

(G) Toxic, radioactive, or deleterious material concentrations shall be less than those which may affect public health, the natural aquatic environment, or the desirability of the water for any use.

(H) Aesthetic values shall not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste.

(f) Special Resource Water Class (SRW):

(1) General characteristics: Water quality of this class will be varied and unique as determined by the Department. These are fresh or saline waters which comprise a special and unique resource to the Reservation.

(2) Characteristic uses: Characteristic uses may include but not be limited to, the following:

(A) Wildlife habitat.

(B) Natural food chain maintenance.

(3) Water quality criteria:

(A) Fecal coliform organisms shall not exceed natural conditions.

(B) Dissolved oxygen - no measurable decrease from natural conditions.

(D) Temperature - no measurable change from natural conditions.

(E) pH - no measurable change from natural conditions.

(F) Turbidity shall not exceed 5 NTU over background conditions.

(G) Toxic, radioactive, or deleterious material concentrations shall not exceed those found in the state of nature.

(H) Aesthetic values shall not be impaired by the presence of materials of their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste.

4-8-7 General Classifications

General classifications applying to various surface water bodies not specifically classified under section 4-8-8 are as follows: (a) All unclassified surface waters that are tributaries to Class I waters are classified Class I.

(b) Except for those specifically classified otherwise, all lakes of less than 2000 mg/L TADS and their feeder streams on the Colville Indian Reservation are classified as Lake Class and Class I, respectively.

(c) All lakes on the Colville Indian Reservation with average TADS levels equal or exceeding 2000 mg/L and their feeder streams are classified as Class I Saline and Class I respectively unless specifically classified otherwise.

(d) All reservoirs with a mean detention time of greater than fifteen (15) days are classified Lake Class.

(e) All reservoirs with a mean detention time of fifteen (15) days or less are classified the same as the river section in which they are located.

(f) All reservoirs established on preexisting lakes are classified as Lake Class.

(g) All other unclassified waters of the Reservation are classified as Class II.

4-8-8 Specific Classifications

Specific classifications for surface waters of the Colville Indian Reservation are as follows:

(a) Streams
Alice Creek	Class III
Anderson Creek	Class III
Armstrong Creek	Class III
Barnaby Creek	Class II
Bear Creek	Class III
Beaver Dam Creek	Class II
Bridge Creek	Class II
Brush Creek	Class II
Buckhorn Creek	Class III
Cache Creek	Class III
Canteen Creek	Class I
Capoose Creek	Class III
Cobbs Creek	Class III
Columbia River from Chief Joseph Dam to Wells Dam	Class II
Columbia River from northern Reservation boundary to Chief Joseph Dam	Class I
Cook Creek	Class I
Copper Creek	Class III
Cornstalk Creek	Class III
Cougar Creek	Class I
Coyote Creek	Class II
Deerhorn Creek	Class IV
Dick Creek	Class III
Dry Creek	Class I
Empire Creek	Class I
Faye Creek	Class I
Forty Mile Creek	Class III
Gibson Creek	Class I
Gold Creek	Class II
Granite Creek	Class II
Grizzly Creek	Class III
Haley Creek	Class IV
Hall Creek	Class II
Hall Creek, West Fork	Class I
Iron Creek	Class III
Jack Creek	Class III
Jerred Creek	Class I
Joe Moses Creek	Class IV
John Tom Creek	Class III
Jones Creek	Class I
Kartar Creek	Class III
Kincaid Creek	Class IV
King Creek	Class IV
Klondyke Creek	Class I
Lime Creek	Class III
Little Jim Creek	Class III
Little Nespelem	Class II
Louis Creek	Class III
Lynx Creek	Class II
Manila Creek	Class III
McAllister Creek	Class III
Meadow Creek	Class III
Mill Creek	Class II
Mission Creek	Class IV
Nespelem River	Class II
Nez Perce Creek	Class III
Nine Mile Creek	Class II
Nineteen Mile Creek	Class III
No Name Creek	Class II
North Nanamkin Creek	Class III
North Star Creek	Class III
Okanogan River from Reservation north boundary to Columbia River	Class II
Olds Creek	Class I
Omak Creek	Class II
Onion Creek	Class II
Parmenter Creek	Class IV
Peel Creek	Class IV
Peter Dan Creek	Class IV
Rock Creek	Class I
San Poil Creek	Class I
Sanpoil, West Fork	Class II
Seventeen Mile Creek	Class III
Silver Creek	Class III
Sitdown Creek	Class II
Six Mile Creek	Class IV
South Nanamkin Creek	Class III
Spring Creek	Class III
Stapaloop Creek	Class III
Stepstone Creek	Class III
Stranger Creek	Class II
Strawberry Creek	Class III
Swimming Creek	Class III
Three Forks Creek	Class I
Three Mile Creek	Class IV
Thirteen Mile Creek	Class II
Thirty Mile Creek	Class II
Trial Creek	Class III
Twenty-five Mile Creek	Class III
Twenty-one Mile Creek	Class III
Twenty-three Mile Creek	Class III
Wannacot Creek	Class III
Wells Creek	Class I
Whitelaw Creek	Class IV
Wilmont Creek	Class II

(b) Lakes
Apex Lake	LC
Big Goose Lake	LC
Bourgeau Lake	LC
Buffalo Lake	LC
Camille Lake	LC
Cody Lake	LC
Crawfish Lake	LC
Elbow Lake	LC
Fish Lake	LC
Gold Lake	LC
Great Western Lake	LC
Johnson Lake	LC
LaFleur Lake	LC
Little Goose Lake	LC
Little Owhi Lake	LC
McGinnis Lake	LC
Nicholas Lake	LC
Omak Lake	SRW
Owhi Lake	SRW
Penley Lake	SRW
Rebecca Lake	LC
Round Lake	LC
Simpson Lake	LC
Soap Lake	SRW
Sugar Lake	LC
Summit Lake	LC
Twin Lakes	SRW

4-8-9 Permits

(a) No person shall discharge any waste from a point source into Reservation waters without having first obtained a permit from either the BPA or the Department, as applicable.

(b) The Department may, through the issuance of regulatory permits, directives, and orders, control miscellaneous waste discharge not covered by section 4-8-9(a).

(c) From time to time the Department may authorize certain temporary activities which may temporarily reduce water quality below those set by this Chapter (4-8-5 and 4-8-6) when such activities found to be overriding public benefit, provided that all such temporary authorizations shall be for a thirty (30) day period or less.

(d) The Department may in furtherance of section 4-8-9(b) require any prospective or current discharge to, among other things, perform such water quality monitoring tasks as might be necessary to determine the pre and post discharge conditions, mixing zone requirements, and permit parameters.

(e) To ascertain whether the regulations, waste disposal permits, orders, and directives promulgated and/or issued by the Department, the Council, or EPA are being complied with a continuing surveillance program shall be conducted by the Department. This continuing surveillance program shall include, among other things, the following:

(1) Inspecting treatment and control facilities;

(2) Monitoring and reporting waste discharge characteristics; and

(3) Monitoring receiving water quality.

4-8-10 Violations, Enforcement and Civil Penalties

(a) The Department shall be notified of all suspected violations and accidental discharges.

(1) Any person may apply in writing to the Department and the Department will initiate an investigation and take action upon any suspected or alleged violation of any provision of this Chapter or of any order, permit, or regulation issued or promulgated under the authority of this Chapter.

(2) Any person engaged in any operation or activity which results in a spill or discharge which may cause pollution of the water of the Reservation contrary to this Chapter shall immediately notify the Department. Any person who fails to notify the Department as soon as he either knows or should have known about the spill or discharge is deemed in violation of this Chapter and, upon an administrative finding thereof after notice and hearing as provided by the Colville Administrative Procedures Act, shall be levied an administrative civil penalty of not more than ten thousand dollars ($10,000) per day that such violation continues.

(b) Notice of Alleged Violations: (1) Wherever the Department has reason to believe that there has occurred a violation of an order, permit, or other requirement issued or promulgated under authority of this Chapter, the Director shall cause written notice to be served personally or by certified mail return-receipt requested upon the alleged violator or its agent for service of process. The notice shall state the provision alleged to be violated, the facts alleged to constitute a violation, and may include the nature of any corrective action proposed to be required.

(2) Each cease and desist and cleanup order issued pursuant to sections 4-8-10(d) and 4-8-10(e) shall be accompanied by or have incorporated in it the notice provided for in subsection 4-8-10(b)(1) of this section unless such notice shall have prior thereto been given.

(c) Hearing Procedures for Alleged Violation: (1) In any notice given under section 4-8-10(b), the Department may require the alleged violator to appear before it for a hearing and to answer each alleged violation. Such hearing shall be held no sooner than fifteen (15) days after service of this notice, except the Department may set an earlier date for hearing if so requested by the alleged violator or if any emergency exists. This hearing shall be conducted in accordance with the Colville Administrative Procedures Act.

(2) If the Department does not require an alleged violator to appear for a hearing, the alleged violator may request the hearing. Such request shall be in writing and shall be filed with the Department no later than thirty (30) days after service of the notice under section 4-8-10(b). If such a request is filed, a hearing shall be held within a reasonable time.

(3) If a hearing is held pursuant to the provisions of this section, it shall be recorded and this record be made available to the public. All parties may respond to the notice served under section 4-8-10(b) and may present evidence and argument on all issues, call witnesses, and conduct cross-examination required for a full disclosure of the facts as provided for in the Colville Administrative Procedures Act.

(d) Hearing Procedures for Alleged Violation: Upon a finding and determination, after hearing, that a violation of a permit provision, Departmental directive or order has occurred, the Department may suspend, modify, or revoke the pertinent permit, or take such other action with respect to the violation as may be authorized by applicable law.

(e) Cease and Desist Orders: If the Department determines, with or without a hearing, that there exists a violation of any provision of this Chapter or of any order, permit, or other requirement of this Chapter, the Department may issue a cease and desist order. Such order shall set forth the provision alleged to be violated, the facts alleged to constitute the violation, and the time by which acts or practices complained of must be terminated.

(f) Cleanup Orders: The Department may issue orders to any person to clean up material which he, or his employee, or his agent has accidentally or purposely dumped, spilled, or otherwise deposit in or near Reservation waters which may pollute them. The Department may also request that the Tribal attorney proceed and take appropriate action.

(g) Restraining Orders and Injunctions: In the event any person fails to comply with either a cease and desist order or a cleanup order which order or orders are not subject to stay pending administrative or judicial review, the Department may request the Tribal attorney to investigate, and if appropriate, bring suit for temporary injunction to prevent any further or continued violation of such order or orders. In any such suit the findings of the Department based upon evidence in the record, shall be given due difference by any reviewing administrative body or court. (1) Emergencies shall be given precedence over all other such matters pending in Tribal Court. The institution of such injunction proceedings by the Tribal attorney on behalf of the Department shall confer upon such court exclusive jurisdiction to determine finally the subject matter of the proceedings. (h) Civil Penalties: (1) Any person who violates any provision of any permit issued under this Chapter or any final cease and desist order or cleanup order shall be subject to a civil penalty of not more than ten thousand ($10,000) per day for each day during which such violation occurs.

(2) Penalty amounts shall be determined after hearing and may be collected by the Tribe by action instituted in Tribal Court by the Tribal attorney for collection of such penalty. A stay of any order of the Tribe pending judicial review shall not relieve any person from any liability under subsection 4-8-10(h)(1) of this section, but the reason for the request for judicial review shall be considered in the determination of the amount of the penalty.

(i) Falsification and Tampering: Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this Chapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this Chapter shall be subject to a civil penalty of not more than five hundred dollars ($500) for each individual instance. Each day that invalid monitoring data is generated as a result of such wrongful action shall constitute a separate violation.

(j) Proceeding by Other Parties: (1) The factual or legal basis for proceedings or other actions that shall result from a violation of this Chapter inure solely to the benefit of the Tribe is not intended by this Chapter, in any way, to create new private rights or to enlarge existing private rights. A determination that water pollution exists or hat any standard has been disregarded or violated, whether or not a proceeding or action may be brought by the Department or the Tribe, shall not create by reason thereof any presumption of law or finding of fact which shall inure to or be for the benefit of any person other than the Tribe.

(2) A permit issued pursuant to this Chapter may be introduced in any court of law as evidence that the permittee's activity is not a public or private nuisance. Introduction into any evidence of such permit and evidence of compliance with the permit conditions shall constitute a prima facie case that the activity to which the permit pertains is not public or private nuisance.

4-8-11 Waiver of Regulations

Whenever a strict interpretation of this Chapter would result in extreme hardships the Department may waive or modify such regulation or portion thereof, provided such waiver or modification is consistent with the intent of this Chapter and no public health hazard will result.

4-8-12 Cooperation with Public Agencies—Grants and Gifts

The Department is authorized subject to approval of the Tribal Council, to accept, receive, disburse, and administer grants or other funds or gifts from any source, for the purposes of carrying out the provisions of this Chapter and to consult and cooperate with federal and state agencies in matters pertaining to this Chapter. The Department is authorized to negotiate, subject to approval by the Tribal Council, inter-governmental agreements and other cooperative agreements which may create, modify, or change duties established by this Chapter, providing that creation of new regulatory requirements or changes in existing regulatory requirements must comply with the procedural requirements of the Colville Administrative Procedure Act applicable to rule-making actions before such regulations become effective.

4-8-13 Statutes and Trust Responsibility Not Modified

Nothing in this Chapter as now or hereafter modified shall modify or waive any requirements 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.

4-8-14 Severability

Should any part of this Chapter be declared unconstitutional or invalid for any reason such declaration shall not affect the validity of the remainder of this Chapter.

(Chapter 4-8 Adopted 8/6/84, Resolution 1984-526)
(Amended 1/18/85, Resolution 1985-20)

CHAPTER 4-9 HYDRAULICS PROJECT PERMITTING

4-9-1 Findings

(a) The Confederated Tribes of the Colville Reservation has a primary interest in the protection of its fish and wildlife resources within and influenced by the waters of the Colville Reservation. Fish and wildlife have traditionally been important both as a food source and spiritually to the Tribes.

(b) Human activities affecting the bed stream and or wetlands have a potential impact on fish life and certain wildlife species and shall be regulated to protect and maintain the high quality of waters necessary to protect fish and wildlife. The economy, health, safety, and welfare of the people residing and doing business on the Colville Indian Reservation may also be adversely affected by activities within the waters of the Reservation by both Indian and non-Indian people whether on trust or fee land. Inadequate control of such activities can contaminate and degrade surface and groundwater, destroy fish and wildlife habitat resources.

(c) The Confederated Tribes of the Colville Reservation has jurisdiction to enforce the tribal hydraulics project permit system in order to protect fish and wildlife and the waters of the Reservation.

4-9-2 Territory Covered

The provisions of this Chapter, known as the Hydraulics Project Permit Chapter of the Colville Law and Order Code, shall apply to all surface waters of the Colville Indian Reservation. Every human activity taking place in the waters of the Colville Indian Reservation which may affect the quality of these surface waters and thereby having a possible effect on fish and wildlife shall be subject to the provisions of this Chapter.

4-9-3 Authority

This Chapter is enacted by the Colville Business Council pursuant tot he authority vested in it by Article V, Section 1 (a) of the Constitution of the Confederated Tribes and its general duty and authority to secure the political integrity; to protect and preserve the tribal property, wildlife and natural resources; to cultivate and preserve Indian culture; to protect the health, security and general welfare; and, to enhance the economic security of the Confederated Tribes, as well as protecting the interests of all those found, or owning property on the Colville Indian Reservation.

4-9-4 Administration

(a) The department of Fish & Wildlife of the Colville Confederated Tribes shall administer this Chapter. From time to time, and as it deems appropriate, the department may recommend that the Colville Business Council amend this Chapter. The department of Fish & Wildlife may propose that the Business Council adopt a fee schedule for the purpose of establishing fees which may be charged for permits and other administrative services provided by the department under this Chapter.

(b) The department is authorized and empowered to adopt such rules, regulations and forms as it deems necessary to implement the objectives and purposes of this Chapter. Such rules and regulations shall be subject to review and approval by the Business Council and shall comply with the requirements of the Colville Administrative Procedures Act.

(c) The department may temporarily suspend the application of this Chapter for an emergency hydraulic project necessitated by fire or emergency other than set forth in section 4-9-13. Provided, that the person engaging in such a project shall have a duty to mitigate any damage or loss of any fishery or water dependent wildlife resource and costs of rehabilitation resulting from such project.

4-9-5 Definitions

Unless otherwise required by its context, as used in this Chapter:

(a) "Chapter" means the Hydraulics Project Permit Chapter of the Colville Law and Order Code.

(b) "Application" shall mean the hydraulic projects permit application required pursuant to this Chapter.

(d) "Bed Materials" means natural occurring material found in the beds of the waters of the Reservation.

(e) "Colville Environmental Quality Commission" or "CEQC" means the environmental policy-making and environmental administrative appellate body of the Confederated Tribes of the Colville Reservation.

(f) "Council" or "Business Council" means the governing body of the Confederated Tribes of the Colville Reservation.

(g) "Cofferdam" means temporary enclosure used to keep water from the work area.

(h) "department" shall mean the Colville department of Fish & Wildlife.

(i) "Dredging" means the removal of bed or bank material.

(j) "Equipment" means any device powered by internal combustion, hydraulics, or electricity, and the lines, cables, arms or extension associated with the device.

(k) "Filter Blanket" means a layer or combination of layers of pervious materials (mineral or man-made) designed and installed in such a manner as to provide drainage, yet prevent the movement of soil particles due to flowing water.

(l) "General Provisions" means those provisions that are contained in every hydraulic project approval.

(m) "Hydraulic Project" means construction or other work that will use, diver, obstruct or change the natural flow or bed of any river, wetland, or stream or that will utilize any of the waters of the Colville Reservation or materials from the stream beds, or wetland, or from within its boundary of the ordinary high water mark.

(n) "Hydraulic Project Application" means a form provided by and submitted to the department accompanied by plans and specifications of the hydraulic project.

(o) "Hydraulic Project Approval" (HPA) means a written approval signed by the Director of the department of Fish & Wildlife or employee(s) so designated and authorized. The approval will provide conditions for protection of fish and wildlife potentially impacted by the proposed project.

(p) "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, and respective vegetation. Provided, that in any area where the high water mark cannot be found the ordinary high water mark shall be the line of mean high water.

(q) "Person" means any individual, association of individuals, partnership, private, public, tribal or municipal corporation, tribal enterprise, company, business enterprise, or any tribal, federal, state or local government or governmental entity or enterprise.

(r) "River, or Stream" means waters in which fish may spawn, reside, or through which they may pass. This includes water courses which exist on an intermittent basis or which fluctuate in level during the year and applies to the entire bed of such watercourse whether or not the water is at peak level. This also includes any natural watercourses which have been altered by man. This definition is not meant to include irrigation ditches, canals, storm water run-off devices, or other entirely artificial watercourses except where they exist in the natural watercourse which has been altered by man.

(s) "Special Provisions" means those conditions which are a part of the hydraulic project approval, but are specific to a project site and are used to supplement or amend the technical provisions.

(t) "Technical Provisions" means those conditions that are a part of the hydraulic project approval and apply to most projects of that nature.

(u) "Toe" means that portion of a bank, shore, or beach extending below the ordinary high water line which serves to support those bank or beach materials lying above it.

(v) "Watercourse" means any portion of a channel, bed, bank, or bottom within the ordinary high water mark of water of the Reservation. This definition is not meant to include irrigation ditches, canals, storm water run-off devices, or other entirely artificial water courses except where they exist in a natural water course which has been altered by man.

(w) "Wetland Dependent Wildlife" mean those wildlife species whose occurrence is restricted to wildlife or dependent on aquatic or wetland habitats during all or part of their life cycles. Eg., waterfowl, osprey, beaver, muskrat.

(x) "Waters of the Reservation" means all waters within the territorial limits of the Colville Indian Reservation.

(y) "Wetlands" means the areas that are inundated by surface or groundwater with a frequency sufficient to support a prevalence of vegetation or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, sloughs, potholes, wet meadows, river overflows, mudflats and natural ponds.

(z) "Wetted Perimeter" means the areas of the water course covered with water, flowing or non-flowing including associated wetlands.

4-9-6 Hydraulic Approval Permit Application

(a) Any person or governmental agency who desires to construct any form of hydraulic project or perform other work that will use, divert, obstruct or change the natural flow or bed of any waters of the Colville Reservation shall, before commencing construction or work thereon and to ensure the proper protection of fish and wildlife secure written approval from the Colville department of Fish & Wildlife as to the adequacy of the measures proposed to be used for the protection of fish and wildlife.

(b) A complete application for approval shall contain general plans for the overall project, complete plans and specifications of the proposed construction or work within the ordinary high water mark and complete plans and specifications for the proper protection of fish and wildlife. Discrete projects involving more than one instance of construction below the ordinary high water mark such as forest harvest activities, mining activities or road construction require only one application package.

(c) The department shall grant or deny approval within sixty (60) calendar days of the department’s receipt of the completed application and notice of compliance with any other applicable requirement of the laws of the Colville Confederated Tribes for the protection of water quality.

(1) The applicant may document receipt by the department of the application by filing in person or by certified mail.

(2) The sixty (60) day requirement may be suspended if:

(A) After ten (10) days of the receipt of the application, the applicant remains unavailable or unable to arrange for a timely field examination of the proposed project.

(B) The site is physically inaccessible for inspection.

(3) Immediately upon determination that the sixty (60) day period is suspended, the department shall notify the applicant in writing of the reason for the delay.

(d) Protection of fish and wildlife and habitat shall be the only grounds upon which approval may be denied or conditioned. The department’s approval shall not be unreasonably withheld.