Tribal Government of Menominee Indian Tribe of WI Tribal Water Permit

Editor's Note: Exhibit A is on file with the Environmental Services Department.

Departmental determinations for tribal water permits will follow procedures outline in § 512-14A. All permit appeals will follow the procedure outlined in Exhibit G.[2]

[2]

Editor's Note: Exhibit G is on file with the Environmental Services Department.

Activities that require a tribal water permit include but are not limited to the following:

New or increased discharges to waters that will affect OMRW designated waters of the Reservation.

Existing discharges that enter ONRW designated waters of the Reservation.

(3)

New or existing hydrological modifications that affect waters of the Reservation; this shall include dams, impoundments, and other structures that affect water quality criteria and/or affect the nature of the waters so as to prohibit the natural spawning runs and other migrational patterns of indigenous fish.

(4)

Shoreline disturbance activities that may affect the beds and banks of waters of the Reservation; these activities include many types of shoreland construction, e.g., placement of a seawall or riprap for erosion protection and placement of boat ramps to facilitate the launch or retrieval of watercraft, provided that such boat ramps are deemed to present a potential significant impact to tribal waters in the opinion of the Director.

(5)

Stream crossing activities, including skidding trails and bridge and culvert placement, improvement, or replacement and fill placed in wetlands and water bodies in conjunction with the improvement or replacement of bridge and culvert crossings for municipal, township, county, state, tribal, or federal projects. The replacement of historic bridges must be coordinated with the Tribal Department of Historic Preservation. In addition, the existing structure must be removed and the replacement must be constructed on the same or similar alignment with hydraulic capacity that is consistent with the tribal and federal regulations and requirements. The placement of fill material into wetlands is authorized for widening of the road approaches to conform to the width or alignment of the new structure. All excess material must be placed at an upland location. If the project involves changing the channel of a river, creek, or stream, then additional requirements may be applied. These activities also include the installation and removal of submerged utility line crossings; additionally the following special conditions must be met:[3]

Utility lines placed across the channel of an authorized federal navigation project must be embedded at least six feet below the authorized channel depth, or to a lesser depth if approved by the Corps of Engineers.

Dredged or fill material may be placed as backfill or bedding, regulated by the Tribe, so long as there is no change in preconstruction bottom contours. Excess fill must be removed to an upland disposal area.

The utility line must not be placed within 500 feet of a levee or flood wall constructed and/or maintained with federal funds.

Utility crossings involving pipelines must comply with Federal Department of Transportation regulations for installation of pipelines.

(e)

All utility lines transporting oil, gas, or other pollutive substances must be equipped with shutoff valves at the upland edge of the water crossing to prevent unnecessary pollution of waters in the event of pipeline failure.

[3]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(6)

Placement of fish barrier structures that prevent the upstream and/or downstream movement of fish, often associated with impoundment structures.

(7)

Dredging activities that include the removal, by suction, scooping or scraping devices, of materials channelward of the ordinary high-water mark from navigable waters, provided that all dredged materials are placed on an upland site, not a wetland, and above the ordinary high-water mark.

(8)

Placement of new and existing dry fire hydrants that include an intake structure and pipe in or on the bed and banks of water bodies for the purpose of constructing a dry fire hydrant to supply water for firefighting purposes.

(9)

Withdrawal of water from (surface) waters of the Reservation. Persons who want to withdraw surface waters from waters of the Reservation shall be restricted to quantity limitations and must obtain a tribal water permit from the Tribe. Typically persons wishing to withdraw surface water from waters of the Reservation will submit a permit application to the Tribe and shall be limited to the following minimum requirements if a permit is issued:

Withdrawal of 25,000 gallons or less of surface water per day from rivers and 1,000 gallons or less per day from lakes (note: withdrawal of water for emergency fire situations is exempt from these requirements).

Withdrawal of surface water by persons shall not adversely affect the quantity of surface water available to any other person, facility, practice or activity. The Department will evaluate each withdrawal for appropriate flows based on existing or acquired flow data. Based on each evaluation, including applications in excess of the above limits, a percentage of the total flow may be permitted to be withdrawn but shall not cause a violation of the use designations or water quality standards of this chapter. Surface water extraction which results in the latter person, facility, practice or activity not being able to obtain sufficient surface water shall constitute adverse effect.

Withdrawal of surface water by persons, facilities, practices, or activities shall not cause a violation of the use designations or water quality standards of this chapter.

Persons who propose to withdraw surface water shall submit a feasibility report to the Tribe which documents the quantity of surface water intended to be extracted per day and other relevant narrative and plan drawing information. No facility, practice or activity shall be undertaken until approval of a feasibility report is obtained from the Tribe and a tribal water permit is issued.

(10)

Dredging and filling of wetlands that affect waters of the Reservation.

(11)

The application of pesticides within 200 feet of waters of the Reservation.

Note: Certain activities listed in Subsection C(1) to (11) may require additional permits and/or certification. Such additional permits and certifications shall be obtained by the applicant prior to issuance of a tribal water permit.

Purpose and policy.

This article establishes procedures and criteria for the application, processing and review of tribal water quality certifications required by the provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.

It is the policy of the Department to review all activities which require a federal license or permit which may result in any discharge to waters of the Tribe and to:

Deny certification for any activity where the Department does not have reasonable assurance that any discharge will comply with effluent limitations or water-quality-related concerns or any other appropriate requirements of tribal law as outlined in Subsection D;

Grant or grant conditionally certification for any activity where the Department has reasonable assurance that the discharge will comply with effluent limitations, water-quality-related concerns or any other appropriate requirements of tribal law as outlined in Subsection D; or

LICENSING OR PERMITTING AGENCY

Waive certification for any activity which the Department finds will result in no discharge or any activity that does not fall within the purview of the Department's authority.

Definitions. As used in this section, the following terms shall have the meanings indicated:

APPLICANT

Any person who applies for any license or permit granted by an agency of the Tribe or federal government to conduct any activity which may result in any discharge into the waters of the Reservation.

Any agency of the federal government to which application is made for any license or permit to conduct an activity which may result in any discharge into the waters of the Reservation.

PERSON

An individual, corporation, partnership, association, municipality, tribal agency, interstate agency or federal agency.

PRACTICABLE ALTERNATIVES

Alternatives which are available and capable of being implemented after taking into consideration cost, available technology, and logistics in light of realistic project purposes.

REGIONAL ADMINISTRATOR

The administrator of Region V of the United States Environmental Protection Agency.

WATER DEPENDENCY

The activity requires location in or adjacent to surface waters or wetlands to fulfill its basic purpose.

Application for certification.

No person may conduct any activity which may result in any discharge into the waters of the Reservation unless the person has received a certification or waiver under this section. Unless the licensing or permitting agency or the regional administrator submits an application to the Department under 40 CFR 121.13, the applicant shall submit to the Department a complete description of the activity for which certification is sought, including:

The name and address of the applicant;

A description of the facility or activity and of any discharge which may result from the activity or facility, including but not limited to the volume of discharge; the biological, chemical, thermal, and other characteristics of the discharge; a description of the existing physical environment at the site of the discharge; the size of the area affected; the location or locations at which the discharge may enter the waters of the Reservation; and any environmental impact document information and photographs which have been provided to the licensing or permitting agency;

A description of the function and operation of equipment, facilities, or activities to treat pollutants or other effluents which may be discharged, including specification of the degree of treatment expected to be attained;

The date or dates on which the activity will begin and end, if known, and the date or dates on which the discharge will take place;

(e)

A description of the methods being used or proposed to monitor the quality and characteristics of the discharge and the operation of equipment, facilities, or activities employed in the treatment or control of pollutants or other effluents;

(f)

Information sufficient to determine whether the proposed activity is water dependent;

(g)

A description of practicable alternatives to the proposed activity and a description of the investigation conducted to determine the viability of such alternatives, including alternative locations, construction design and methods, and operations; and

(h)

All other information as necessary for the Department to determine whether the proposed activity will fulfill the Tribe's water quality standards.

The Department shall review the application for completeness within 30 days of receipt of the application. The Department shall notify the applicant of any additional information reasonably necessary to review the application. An application may not be considered complete until all information necessary for associated permits has been submitted to the Department.

(3)

The applicant shall submit in timely fashion, at any time during the review process, such additional information which the Department finds to be reasonably necessary for review of the application.

(4)

Consistent with the nature and circumstances of each application, the Department may protect as confidential any information the Department deems necessary to protect the Menominee Indian Tribe of Wisconsin. Confidentiality determinations shall be made based on the professional judgment of the Department and in light of applicable federal and tribal law.

Department review of water quality certification application. The Department shall, within 60 business days of receipt of the complete application, determine whether it has reasonable assurance that the proposed activity will:

Result in any discharge; and

Comply with the following water quality standards:

Water quality standards of the Menominee Indian Tribe of Wisconsin;

Water quality standards of the Great Lakes (40 CFR Part 132);

Applicable effluent limitations, pretreatment standards, and standards of performance; and

Any other appropriate requirements of tribal law as provided in 33 U.S.C. § 1341(d).

Preliminary and final Department action.

The Department shall notify the applicant, the federal permitting or licensing agency, and the regional administrator within 120 days of receipt of the complete application of its determination to deny the certification, grant or conditionally grant the certification, or waive certification.

The Department's determination shall be in writing and shall explain the reasons for granting, granting conditionally, denying or waiving certification.

(3)

The Department's decision concerning a certification shall include the following:

The name and address of the applicant;

A statement that the Department has made its decision about compliance with related tribal water quality standards and denies, grants, grants conditionally or waives certification consistent with that decision.

A waiver of certification shall include:

A statement explaining the determination that no discharge will result from the activity or that the activity does not fall within the purview of the Department's authority;

[2]

A statement advising the licensing or permitting agency and the applicant if the activity proposed requires authorization under requirements of tribal law administered by the Department which are not related to water quality; and

[3]

Where applicable, specific recommendations to the federal permitting authority and the applicant for avoidance of waters of the Reservation. When all reasonable alternatives necessarily result in adverse impacts on waters of the Reservation, a waiver may recommend specific project locations and design and construction techniques which minimize adverse impacts on waters of the Reservation and which minimize overall environmental impacts.

A grant or conditional grant of certification shall include:

A statement that there is a reasonable assurance the activity will be conducted in a manner which will comply with the standards of the Menominee Indian Tribe of Wisconsin.

[2]

If appropriate, a statement of conditions that the Department deems necessary with respect to the discharge, including necessary monitoring requirements. Monitoring requirements shall include, but not be limited to, provisions that:

[a]

At least five business days prior to the beginning of the discharge, the applicant shall notify the Department of its intent to commence the discharge.

[b]

Within five business days after the completion of the discharge, the applicant shall notify the Department of the completion of the discharge.

[c]

The applicant shall allow the Department reasonable entry and access to the discharge site in order to inspect the discharge for compliance with the certification and applicable laws.

[3]

A statement advising the licensing or permitting agency and the applicant if the activity proposed may require additional authorization under requirements of tribal law administered by the Department which are not related to water quality.

(e)

A denial of certification shall include a statement explaining why the Department does not have reasonable assurance that the discharge will comply with the Tribe's water quality standards and detailing the standards of concern.

(f)

All such decisions may also include other information that the Department determines to be appropriate.

(4)

The Department shall, in the case of a grant or conditional grant of certification:

Notify the applicant, the licensing or permitting agency and known interested persons of its decision.

Cause notice of its decision to be published by the applicant. Such notice to be posted at the Neopit and the Keshena post offices, County Courthouse and Tribal Office Building, and a copy of the notice shall be mailed to all persons who have made timely request to the committee or the Department for information regarding the proposed certification. Notice under this subsection shall identify the applicant and his or her address, describe the activity and its location, state the Department's determination, and apprise the public of the opportunity to request a hearing under this chapter.[1]