Sisseton-Wahpeton Sioux Tribe: Tribal Codes, Ch. 61

CHAPTER 61

ENVIRONMENTAL PROTECTION CODE

61-01-01 PURPOSE
To insure that proper and meaningful consideration of environmental and ecological factors, including the cultural, spiritual and historical aspects of those factors, is made by any person, government, or corporate entity prior to approval of activities within the original boundaries of the Lake Traverse Reservation which may significantly affect Sisseton-Wahpeton Tribal homelands, or the health and welfare of the Sisseton-Wahpeton Sioux Tribe and its members.

61-02-01 DEFINITIONS

61-02-02 Activity - (1) any industrial or commercial development project, any development project involving the disturbance of more than one (1) surfaced, as determined by the Environmental Protection Advisory Committee within the original boundaries of the Lake Traverse Reservation; and (2) any development activity within the original boundaries of the Lake Traverse Reservation in an area designated environmentally sensitive, or any research project, including activities connected with oil and gas exploration.

61-02-03 Applicant - means the person requesting a permit to conduct an Activity, as defined in this Chapter, within the original boundaries of the Reservation.

61-02-04 Environmentally Sensitive Area - a part of the original Reservation considered by the Tribal Council to be so subject to environmental disturbance as to warrant special rules to govern resource development.

61-02-05 Hydrologic Balance - the mass conservative relationship considering both quality and quantity of water inflow to, water outflow from and water storage in a hydrological unit such as a watershed, aquifer, unsaturated soil zone, or lake or impoundment, considering precipitation, run off, evaporation and changes in both ground and surface water storage.

61-02-06 Injection Well - a well which is used to inject water, air, gas, steam or other materials into the ground to assist in the recovery of crude petroleum through oil-producing wells.

61-02-07 Noncompliance - any neglect, failure or refusal to do or perform an act mandated by this Chapter. The terms "noncompliance" and "violation' shall be used interchangeably within this chapter.

61-02-08 Permit Holder - the holder of a Tribal Environmental Permit issued pursuant to this Chapter.

61-02-09 Person - any individual, partnership, firm, public or private corporation, association, trust, estate, political subdivision or agency, or any other legal entity or its legal agents or assignees, including the Sisseton-Wahpeton Sioux Tribe and its agencies, departments, committees, and sub-entities.

61-02-10 Pollutant - any substance or energy entering the environment as a direct or indirect result of human activity which alters or has the potential to alter the physical, chemical, biological, cultural, spiritual or aesthetic properties of the environment.

61-02-11 Research Project - a project or study conducted to gain knowledge about resources, that is conducted within the original boundaries of the Lake Traverse Reservation.

61-02-12 Reservation - those lands within the original boundaries of the Lake Traverse Reservation.

61-02-13 Reservation Environment - the functioning system composed of all living and non-living entities and objects within the original boundaries of the Reservation together with interactions within, and the natural inputs to and outputs of that system.

61-02-14 Reservation Resources - the physical and biological resources of the Tribe within the original boundaries of the Reservation, including but not limited to land, water, air, minerals, cultural, spiritual or historical sites and objects, humans, animal and plant life and aesthetic values.

61-02-15 Tribe - the Sisseton-Wahpeton Sioux Tribe and its agencies, departments, committees and sub-entities.

61-02-16 Tribal Council - the elected governing body of the Sisseton-Wahpeton Sioux Tribe.

61-02-17 Tribal Environmental Permit (Permit) - a permit issued pursuant to this Chapter to carry out an Activity covered by this Chapter.

ADMINISTRATION
61-03-01 This Chapter shall be administered by the Sisseton-Wahpeton Sioux Tribe's Environmental Protection Advisory Committee (EPAC). The EPAC shall have the authority to contract with outside firms/agencies when necessary to complete environmental assessments and environmental consequences statements or any other of its duties hereunder.

61-03-02 The primary objective of the EPAC shall be to develop, with the Office of Environmental Protection, a plan of action approved by the Tribal Council that addresses the environmental and natural resource needs of the Lake Traverse Reservation. This effort will be coordinated with the Tribe's Natural Resources Commission and Reservation Planning Commission and their respective staffs.

61-03-03 The EPAC shall advise the Reservation Planning Commission and the Tribal Council in all matters pertaining to environmental and natural resources policies; the latter in cooperation with the Tribe's Natural Resources Commission.

61-03-04 The EPAC shall advise the public, appropriate Tribal Committees and commissions relative to codes, ordinances and amendments to the Tribe's judicial codes that will protect, conserve, manage and regulate the reservation's environmental and natural resources.

61-03-05 In collaboration with the Tribe's Natural Resources Commission, Reservation Planning Commission and their respective staffs, the EPAC shall develop a plan of action that addresses the environmental and natural resources needs of the Lake Traverse Reservation.

61-03-06 The EPAC shall, in collaboration with the Natural Resources Commission, conduct community education and information sessions on environmental and natural resource issues. Its members shall also solicit district and individual concerns, opinions and priorities to these issues.

61-04-01 REGULATIONS
The EPAC shall establish regulations for the administration and enforcement of this Chapter which shall be posted in one or more public places within the original boundaries of the Lake Traverse Reservation. Such regulations shall provide for a process for approval of proposed Activities.

61-05-01 EFFECTIVE DATE
This Chapter is effective- on the date of approval by the Tribal Council.

61-06-01 ACTIVITIES
This Chapter shall be applicable to any person proposing or conducting Activities within the original boundaries of the Lake Traverse Reservation.

61-06-02 Every person seeking to conduct an Activity under this Chapter shall obtain a Tribal Environmental Permit from the Tribe.

61-07-01 INITIAL ENVIRONMENTAL DETERMINATION
Every proponent of an Activity upon the original Reservation appearing before the EPAC to obtain a Tribal Environmental Permit shall include in the presentation of the proposal a detailed description of the potential environmental consequences of the Activity, and state whether the Activity may have a significant environmental impact. If the EPAC determines that the proposed Activity may have a significant environmental impact, it shall prepare a written Environmental Impact Statement ("EIS") in accordance with Section 61-10 et seg. herein.

If the EPAC determines that the proposed Activity will not have a significant environmental impact, or if the proposed Activity falls into a category of activities generally considered not to have significant environmental impacts, the EPAC need not prepare an EIS, but must set forth a process by regulation for the issuance of permits in such instances.

61-08-01 SIGNIFICANT ENVIRONMENTAL IMPACT
An Activity may be deemed by the EPAC to have a significant environmental impact if any of the following conditions exist:

(a) The proposed Activity may significantly affect the pattern and type of land use (industrial, commercial, agricultural, recreational, residential) or growth and/or distribution of population within the original boundaries of the Reservation;

(b) The effects resulting from any structure or facility constructed or operated under the proposed Activity may conflict with Tribal, local, regional, or State land use plans or policies;

(c) The proposed Activity may significantly affect wetlands, including indirect and cumulative effects, or any major part of a structure or facility constructed or operated under the proposed action may be located in wetlands;

(d) The proposed Activity may significantly affect threatened and endangered species or their habitats identified in the Department of Interior's list, in accordance with 40 C.F.R. 6.302, or the Tribe's list, or the States of South or North Dakotas' lists, or a structure or a facility constructed or operated under the proposed Activity may be located in the habitat;

(e) Implementation of the proposed Activity or Development Plan may directly cause or induce changes that significantly:

(1) displace population;

(2) adversely affect the character of existing residential areas;

(3) adversely affect a floodplain; or

(4) adversely affect significant amounts of important farmlands as defined in requirements in 40 C.F.R. 6.302(c), or agricultural operations on this land.

(f) The proposed Activity may, directly, indirectly or cumulatively have significant adverse effect on parklands, preserves, or other public lands or areas of recognized scenic, recreational, archaeological, cultural, spiritual or historic value; or

(g) The proposed Activity may, directly or through induced development, have a significant adverse effect upon local ambient air quality, local ambient noise levels, surface water or groundwater quality or quantity, water supply, fish, shellfish, wildlife, and their natural habitats.

61-09-01 FINAL DECISION

A determination by the EPAC that a proposed Activity may have a significant environmental impact shall be final, and no appeal from that determination may be had.

61-10-01 ENVIRONMENTAL IMPACT STATEMENT
In the event of a determination by the EPAC that a proposed Activity may have a significant environmental impact, a written statement shall be prepared by the EPAC for review at least sixty (60) days prior to the EPAC meeting at which final approval of the proposed Activity is sought. Such statement shall be called an "Environmental Impact Statement" (EIS).

61-11-01 INVENTORY DATA
The EIS shall include the following inventory data as may be deemed pertinent by the EPAC:

(a) A detailed baseline inventory of all habitat plant and animal life, wetlands, riparian, lakes and other water resources, climatic conditions, cultural, spiritual and/or historical sites and rangeland observed in the area to be affected by the proposed Activity.

(b) A detailed inventory of all surface and ground water resources potentially affected by the Activity inclusive of water quality and baseline physical, chemical, radiological and biological water quality. Water quantity shall be determined by hydrologic balance relying upon but not necessarily limited to: measurement of water levels in selected wells, lakes and impoundment's; measurements of volumetric water flows in water courses by physical measurements or by indirect computation considering channel slope, roughness, width and depth; annual precipitation and evaporation; and ground water recharge and discharge. Baseline water quality shall be based on results of physical, chemical, radiological and biological analyses of potentially affected water resources and indicators of surface runoff that results in soil erosion and sediment transport.

(c) A discussion of the air quality in the area potentially affected by the proposed Activity, including but not limited to background radiation study in selected areas and a suspended particulate matter evaluation.

(d) A discussion of the soil properties in the area potentially affected by the proposed Activity, including but not limited to: soil classification characteristics; suitability for roads, cuts and fills; pipeline cover frost protection; background radiation in soils; topography and vegetation cover; slopes; porosity; permeability and capillarity, texture, density, moisture field capacity, and subsurface stratification.

(e) An assessment of the cultural and/or spiritual properties and uses of the area potentially affected by the proposed Activity, including but not limited to:

1. inventory of historic, spiritual and archaeological sites.

2. inventory of unique physical features and scenic features.

3. number of people living and working with the area.

4. Inventory of the present land use within the area.

61-12-01 OTHER DATA
The Environmental Impact Statement shall include considerations as to how the proposed Activity will beneficially or detrimentally affect the area potentially affected by the proposed Activity. Additionally, the EIS shall address the beneficial and detrimental impacts of the proposed Activity upon the following, if applicable:

(a) Socioeconomic and political impacts on individuals who are part of potentially affected communities and impacts on the mental health of the Sisseton-Wahpeton Sioux Tribe both present and future.

(b) Resources of the area potentially affected by the Proposed Activity, including but not limited to: short and long term depletion; possibility of recovery, recycling or restoration; and effects upon regional resource development, especially with regard to the Sisseton-Wahpeton Sioux Tribe.

(c) All information provided to the Sisseton-Wahpeton Sioux Tribe Reservation Planning Commission shall also be available to the EPAC.

61-13-01 SPECIAL CONSIDERATIONS
If applicable, specific consideration shall be included in the EIS regarding possible detrimental impacts on the three (3) areas contained in subsection 61-12-01 because of the following:

(a) Hazardous material used in construction and/or operation of the proposed Activity.

(b) Airborne emissions and discharges of liquid from the site both in the construction and operational phase of the proposed Activity.

(d) Noise emission, both in the construction and operational phases of the proposed Activity.

(e) Any other controlled or uncontrolled emission or discharges both

in the construction and operational phases of the proposed Activity.

61-14-01 CONSIDERATION OF ALTERNATIVES
The Environmental Impact Statement shall include a discussion of potential feasible alternatives, including a no-action alternative, to the proposed activity, and including both the short and long-term benefits and detriments of each alternative, and adverse environmental and/or ecological impacts which can not be avoided, and any irreversible and irretrievable commitments of resources.

61-15-01 ADDITIONAL INFORMATION
The EPAC may request additional information of the type contained in Section 61-11 from the proponent of the proposed Activity when deemed necessary for determining the environmental impact of the proposed Activity.

61-16-01 TRIBAL ENVIRONMENTAL PERMIT
After a determination by the EPAC that no significant environmental impact will occur, or after a determination that the proposed Activity falls into a category of activities generally not considered to have significant environmental impacts, or upon the completion of an EIS by the EPAC, the proponent of an Activity shall formally request the issuance of a Tribal Environmental Permit ("Permit"), which, if granted, would allow the proponent of the Activity to go forward with the Activity. The EPAC shall examine the EIS, consider the application in its entirety, and issue a Permit only if the proponent of the activity abides by the recommended alternative(s) in the EIS.

61-16-02 The conditions of any such Permit granted by the EPAC shall be stated in writing on the Permit and provided to the proponent of the Activity and made available to the public upon request.

61-17-01 FEE STRUCTURE
The EPAC shall establish, by regulation, a reasonable fee structure for the issuance of Tribal Environmental Permits, based factors including,but not limited to, whether an EIS is conducted, and the complexity of the EIS.

61-18-01 COMPLIANCE AND ENFORCEMENT PROCEDURES
This Chapter shall be enforced by the Sisseton-Wahpeton Sioux Tribe and the EPAC, with the assistance of Tribal law enforcement officials when deemed necessary by the EPAC. The EPAC shall have the authority to bring actions in the Sisseton-Wahpeton Sioux Tribal Court when necessary to enforce its actions. Such actions against the Sisseton-Wahpeton Sioux Tribe or its agencies, departments; committees, or other sub-entities shall be limited to the issuance of declaratory and/or injunctive relief.

61-18-02 NONCOMPLIANCE
Any person who fails to comply with any provision of this Chapter shall be subject to penalties as well as any other actions set forth herein. In the event of noncompliance, the EPAC shall serve the alleged violator, in person or by certified mail, with a notice of non compliance. The notice of noncompliance shall state which provisions of this Chapter are allegedly not being complied with. The notice of noncompliance shall further specify the action which must be taken to correct such noncompliance, as well as the Chapter provisions or regulations mandating that such action shall be taken.

61-18-03 PERMIT DURATION, MODIFICATION, REVOCATION AND REISSUANCE
No Permit issued by the EPAC shall have a term of more than five (5)years. Any Permit issued by the EPAC may, after an opportunity for a hearing, be modified, suspended, or revoked, in whole or in part, for cause, including but not limited to:

(a) violation of any terms or conditions of the Permit or this Chapter;

(b) misrepresentation or failure to disclose fully all relevant facts (as determined by the EPAC);

Whenever, on the basis of any information available to it, the EPAC finds that there is cause for modifying, suspending, or revoking a Permit, in whole or in part, the EPAC shall notify the permittee by certified mail or personal service of its intention to modify, suspend, or revoke the Permit, in whole or in part. Such notice shall specify the information upon which the EPAC relies, and, if the EPAC intends to modify the Permit, shall explain the modifications which the EPAC intends to make in the Permit. Such notice shall be both published and posted in one or more public places in a timely manner. The EPAC shall hold a public hearing on a proposed Permit modification, suspension, or revocation.

61-I8-04 ORDER TO CEASE ACTIVITY
In the event of noncompliance with any notice of noncompliance, the EPAC may order the cessation of such Activity without additional notice to the alleged violator if the noncompliance is not cured within five (5) days of the hearing held pursuant to Section 61-18-03 of this Chapter. The alleged violator shall be served with a statement of the reasons) for the cessation order, and the actions the alleged violator must take before the order will be lifted. A copy of this cessation order and a statement of reasons) for the order shall be promptly delivered to the Chairperson of the Sisseton-Wahpeton Sioux Tribe.

61-18-05 REMEDIES
In the event an alleged violator fails to take action in accordance with a cessation order served pursuant to this Chapter the EPAC may pursue one or more of the following remedies:

(a) continue its cessation order; or

(b impound vehicles and equipment after written notice to the alleged violator; or

(c) request the Secretary of the Interior to serve notices of intent to cancel any relevant lease pursuant to 25 C.F.R. 162.14 for using the leased premises for unlawful conduct or for an unlawful purpose, specifying the basis for the notice; and

(d) assess penalties as set forth in Section 61-18-06 herein; and take any other action deemed appropriate, so long as the rights of due process guaranteed by the Indian Civil Rights Act, 25 U.S.C.1301 et seq., and the Constitution of the Sisseton-Wahpeton Sioux Tribe, Article IX are upheld.

61-18-06 CIVIL PENALTIES
Any person found violating this Chapter shall be subject to civil penalties by the EPAC of up to five thousand dollars ($5,000.00) per day for each day of such violation or continued violation of an order to cease Activity. The EPAC shall personally, or via certified United States mail, first class, serve the alleged violator with notice of the penalty. The penalty shall be due and payable to the EPAC within -twenty (20) days of such notice. Failure to pay any penalties imposed shall be considered an additional violation of this Chapter.

61-19-01 APPEALS
Except as provided in Section 61-09-01 of this Chapter, any person aggrieved by any action taken by the EPAC may appeal to the Tribal Court in accordance with the Rules of Procedure for that Court.

The filing of an appeal shall not stay any order to cease an Activity, impound vehicles or equipment or both and/or restrict access to the site of any operation, or pay penalties unless a stay is granted by the Tribal Court.

The Tribal Court may reverse a decision of the Tribal Council only if the appealing party can show by clear and convincing evidence that the Tribal Council abused its discretion in the decision making process, or acted arbitrarily or capriciously.

61-20-01 SOVEREIGN IMMUNITY
The Sisseton-Wahpeton Sioux Tribe hereby waives its sovereign immunity from suit for the express and limited purpose of enforcing this Chapter 61 of the Sisseton-Wahpeton Sioux Tribe Codes of Law. This waiver of sovereign immunity is expressly limited to the enforcement procedures contained in this Chapter only, which are exclusively as follows:

(a) administrative enforcement by the EPAC through:

(1) Permit suspension, revocation, or modification;

(2) the issuance of cessation orders,

(3) impoundment of equipment and vehicles;

(4) recommendation of lease cancellation; and

(5) civil penalties; and

(b) judicial enforcement by the EPAC through the issuance of declaratory and injunctive relief in the Sisseton-Wahpeton Sioux Tribal Court.

No other relief shall be available under this express and limited waiver of sovereign immunity. This waiver shall not extend to enforcement of this Chapter 61 in any forum other than the Sisseton-Wahpeton Sioux Tribal Court nor for any purpose other than the specific enforcement procedures cited in this Section. The limited waiver of sovereign immunity contained in this Section 61-20-01 shall extend to the agencies, departments, committees, and other sub-entities of the Sisseton-Wahpeton Sioux Tribe.

61-21-01 SEVERABILTIY
If any clause, sentence, paragraph, Section, or part of this Code shall, for any reason, be adjudicated by any court of competent jurisdiction, to be invalid or unconstitutional, such judgement shall- not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, Section or part thereof directly involved in the controversy in which the judgment shall have been rendered.

61-22-01 CONSTRUCTION
This Chapter shall be interpreted and applied consistent with all other Codes, Taws, Ordinances, and Regulations of the Sisseton-Wahpeton Sioux Tribe.

61-23-01 AMENDMENTS
This Chapter may be amended only upon an affirmative vote of two thirds of the Tribal Council.