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to Table of Contents Colville
Tribal Law and Order Code 2001 edition with 2002, 2003 and 2004 supplements TITLE
4 - NATURAL RESOURCES AND ENVIRONMENT, CH. 8-9
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. 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.
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.
(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. (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. (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. (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.
(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. (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. (B) Subject to and in compliance with any regulatory order(s) issued by the Department. (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: (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: (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. (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). (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: (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: (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. (C) Dissolved oxygen - freshwater: Dissolved oxygen shall exceed 9.5 mg/L. (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).
(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. (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 (C) Dissolved oxygen - freshwater: Dissolved oxygen shall exceed 8.0 mg/L. (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. (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 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. (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. (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 (C) Dissolved oxygen - freshwater: Dissolved oxygen shall exceed 6.5 mg/L. (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. (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 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. (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. (C) Fish (salmonid and other fish migration). (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. (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. (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. (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. (C) Total dissolved gas shall not exceed 110 percent of saturation at any point of sample collection. (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. (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. (C) Total dissolved gas shall not vary 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.
(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.
4-8-9 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.
(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. (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. (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.(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. (j) Proceeding by Other Parties: (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.
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.
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.
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) 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.
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.
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.
(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.
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. (c) "Bed" means lands below or within the ordinary high water mark. (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.
(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. (C) The applicant requests delay. (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.
(a) Protection of fish and wildlife and attributes of the aquatic and/or wetland environment required to support fish and wildlife shall be the only grounds on which approval may be denied or conditioned. (b) If approval is denied, the department shall provide the applicant a written statement of the specific reason why and how the proposed project would adversely affect fish and wildlife.
(a) Approval of a project is valid for a period of up to five (5) years as specified in any permit issued by the department. (b) An approval for projects that divert water for agricultural irrigation or stock watering purposes and that involves seasonal construction or other work shall remain in effect without a need for periodic renewal. The permittee must notify the department before commencing the construction or other work within the area covered by the approval. (c) The permittee must commence construction within the time specified on the permit and demonstrate substantial progress on construction of that portion of the project relating to the approval within two (2) years of the date of issuance. Lack of substantial progress may constitute a violation of the terms of the permit. Uncompleted projects may be deemed public safety hazards, declared a nuisance and abated as such or the department may order them removed and/or mitigated by the permittee.
(a) The department may, after consultation with the permittee, modify an approval due to changed conditions. The modification shall become effective unless appealed as set forth in section 4-9-11 within thirty (30) days from the notice of the proposed modification. The burden is on the department to show that changed conditions warrant the modification in order to protect fish and wildlife. (b) A permittee may request modification of an approval due to changed conditions. The request shall be processed within forty-five (45) calendar days of receipt of the written request. A decision by the department may be appealed to the CEQC pursuant to section 4-9-11. The burden is on the permittee to show that changed conditions warrant the requested modification and that such modification will not impair fish and wildlife.
(a) Any person or government agency who commences construction on any hydraulic works or project subject to this Chapter without first having obtained written approval of the Colville department of Fish & Wildlife as to the adequacy of the means proposed for the protection of fish and wildlife, or any person or government agency who fails to follow or carry out any of the requirements or conditions as are made part of such approval, is subject to a civil penalty of up to $1000.00 per day for said violation. (b) If the department determines that a person has violated a provision of this Chapter or any condition of an approved permit, it shall immediately issue a notice in writing describing the nature of the violation (including the amount of any civil penalty imposed) and serve the notice either by certified mail or personally on the alleged violator. (c) Any person incurring any penalty under this Subchapter may appeal the same to the CEQC as set forth in section 4-9-11. An appeal shall be filed within ten (10) days after receipt of a notice imposing any penalty. The penalty imposed shall become due and payable ten (10) days after receipt of the notice imposing the penalty unless an appeal is filed. Whenever an appeal of any penalty incurred under this Subchapter is filed, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. (d) If a civil penalty is imposed pursuant to the provisions of this section and the person incurring the penalty continues construction of any such works or projects without fully complying with the provisions hereof, such works or projects are hereby declared a public nuisance and shall be subject to abatement as such. (e) If the amount of any penalty is not paid within thirty (30) days after it becomes due and payable, the Office of the Reservation Attorney, upon the request of the Director of the Colville department of Fish & Wildlife shall bring an action in the name of the Confederated Tribes of the Colville Reservation in the Colville Tribal Court to recover such penalty. (f) Any person or governmental entity commencing construction on any hydraulic project or work without a permit as required by this Chapter or in violation of any term of any permit issued pursuant to this Chapter shall be liable in a civil action brought by the Colville Confederated Tribes in the Colville Tribal Court for damage to or loss of any fishery or water dependent wildlife resource and costs of rehabilitation, restoration, monitoring, investigation, laboratory and any other fees and analysis along with attorney fees.
(a) Any issuance, denial, conditioning or modification of a hydraulics approval shall be appealable to the Colville Environmental Quality Commission within ten (10) days of the notice of decision by the department. The CEQC shall affirm, reverse or amend the decision by the department based on the same standards as set forth in section 4-9-7 of this Chapter. The burden shall be upon the department to show that the denial or conditioning of any approval is solely aimed at the protection of fish and wildlife. (b) The CEQC shall make its decision within thirty (30) calendar days after it receives written notice of a timely administrative appeal, provided that the CEQC may reasonably extend the time for decision with the consent of the parties to the appeal or upon finding of fact that such an extension is necessary for the proper consideration of the appeal. (c) Any appeal filed pursuant to this section shall follow the procedures for contested cases under sections 2-4-12 through 2-4-18 of the Colville Administrative Procedure Act.
The decision of the CEQC is subject to judicial review in conformity with the Colville Administrative Procedure Act, Chapter 2-4 of the Colville Tribal Code (CTC § 2-4-19).
In the case of an emergency arising from weather or stream flow conditions or other natural conditions, the department shall immediately upon request issue oral approval for removing any obstruction, repairing existing structures, restoring stream banks, or to protect property threatened by the stream or a change in the stream flow without the necessity of obtaining a written approval prior to commencing work. Conditions of an oral approval shall be reduced to writing within thirty (30) days and complied with as otherwise provided for in this Chapter.
It is the policy of the Colville Business Council that a flow of water sufficient to support game fish and food fish populations as well as wetland dependent wildlife species populations be maintained at all times within the waters of the Colville Reservation. The Tribes’ Water Administrator shall give the Director of the department of Fish & Wildlife notice of each application for a permit to divert or store water. The Director of Fish & Wildlife shall have thirty (30) days after receiving the notice to state his objection to the application. The permit shall not be issued until the thirty (30) day period has elapsed. The Tribes’ Water Administrator may refuse to issue a permit if, in the opinion of the Director of Fish & Wildlife, issuing the permit might result in lowering the flow of water in a stream below the flow necessary to adequately support food fish and game fish populations in the stream or lowering level of water within a wetland below that level necessary to provide suitable habitat for dependent wildlife species. 4-9-15 Federal Laws and Trust Responsibility Not Modified Nothing in this Chapter now or as hereafter amended shall either modify or waive any requirement to comply with applicable federal laws and regulations, or be construed to modify, waive or impair the trust responsibility of the United States.
If any
provision of this Chapter, or the application thereof, to any person
or circumstances is held invalid, such invalidity shall not affect other
provisions or application of this Chapter which can be given effect
without the invalid provision or application, and to this end, the provisions
of this Chapter are declared to be severable. 4-9-50 Bank Protection and Fill Placement The following technical provisions shall apply to bank protection or fill placement projects; unless otherwise excepted by the department: (a) Bank protection or fill placement work shall be confined to damaged banks. (b) Watercourse encroachment shall be held to a minimum. (c) Bank protection or fill material shall not appreciably reduce normal watercourse capacity or configuration. (d) The toe shall be designed to protect the integrity of bank protection material. (e) Bank sloping shall be accomplished in a manner that will prevent the release of overburden material into the water. (f) Bank protection material shall be clean, angular rock or other material of a sufficient size to prevent its being washed away by water action. River gravel shall not be used as exterior armor. (g) Bank protection and filter blanket material shall be placed from the bank or a barge. Dumping onto the bank face shall be permitted only if the toe is established and the material can be confined to the bank face. (h) Filter blanket material shall be place prior to placement of bank protection material. (i) Alteration or disturbance of the bank and bank vegetation shall be held to a minimum. (j) Overburden material resulting from this project shall be deposited outside of the streamside management zone (see CTC § 4-7-3(zz)) and stabilized so as not to reenter the water. (k) Bulkheads shall be constructed in the dry. (l) Bulkhead faces shall be constructed of material not readily subject to erosion. (m) Equipment other than hand tools shall not enter the water except as specified in the permit.
The following technical provisions shall apply to bridge, pier, and piling construction projects; unless otherwise excepted by the department. (a) Excavation for the footings, piers, or abutments shall be isolated from the wetted perimeter by a dike, cofferdam, or similar mechanism. (b) Waste water discharged to receiving waters shall not adversely impact fish life. (c) Structures containing concrete or wood preservatives shall be cured or dried prior to water encroachment. (d) Abutments, piers, piling, sills, etc., shall not restrict the flow so as to cause any appreciable increase in backwater elevation or scour and shall be aligned to cause the lease effect on the hydraulics of the body of water. (e) Riprap materials used for structure protection shall be clean and of sufficient size to prevent their being washed away. (f) Backfilling and armoring around each structure shall take place prior to removal of cofferdams. (g) The bridge shall be constructed high enough to pass the fifty (50) year flood level. Exception shall be granted if applicant provides design criteria to support a more appropriate level. (h) Alteration or disturbance of bank or bank vegetation shall be held to a minimum, and all disturbed areas shall be protected from erosion and revegetated. (i) Anchoring systems for floating structures shall be designed and deployed in a manner that will not damage the beds as a result of structure or anchor movement.
The following technical provisions shall apply to bridge construction-string type projects; unless otherwise excepted by the department:
1(form: in original corrected 10/14/04)
4-9-53 Channel Change—Temporary and Permanent The following technical provisions shall apply to channel change-temporary and permanent projects: unless otherwise excepted by the department:
2 (added: “be” 10/14/04)
3 (form: in original corrected 10/14/04)
The following technical provisions shall apply to channel realignment projects; unless otherwise excepted by the department: (a) The realigned channel shall provide fish habitat similar to that which previously existed. (b) All material removal from the new channel shall take place before any filling operations within the existing channel. Materials removal shall proceed from midstream toward the bank and be completed prior to filling. (c) Excavation and filling may take place simultaneously if excavated materials are to be used in the filling operation. (d) Prior to filling, an armored dike or other approved mechanism shall be constructed to divert the flowing stream and isolate the file area. (e) Filling shall begin at the upstream end and proceed downstream. (f) Water discharging from the fill area shall not adversely impact fish life. (g) The applicant shall have fish capture and transportation equipment ready and on the job site. Captured fish shall immediately be transferred safely to free flowing water.
The following technical provisions shall apply to conduit crossing projects; unless otherwise excepted by the department; (a) Conduit alignment shall be as nearly perpendicular to the watercourse as possible. (b) The conduit shall be installed at sufficient depth so that subsequent disturbance of the bed of the watercourse is avoided. (c) Boring or jacking: (1) Pits shall be isolated from surface water flow. (2) All drainage water removed from the boring or jacking pit shall not adversely impact fish life. (d) Trench excavation: (1) Trenches shall be excavated in the dry or shall be isolated from the flowing watercourse by the installation of a cofferdam, culvert, flume, or other approved methods. (2) Flowing, placement, and covering shall occur in a single pass of the equipment. (3) Disturbance of the bed as a result of the plowing operation shall be held to a minimum. (e) Trenches shall be backfilled with approved with approved materials and the bed shall be returned to pre-project condition. (f) Excess spoils shall be disposed of so as not to reenter the watercourse. (g) The conduit approach trench shall be isolated from the watercourse until laying of the conduit across the watercourse taken place. (h) Alteration or disturbance of banks or bank vegetation shall be held to a minimum and all denuded areas shall be revegetated or otherwise protected from erosion.
The following technical provisions shall apply to culvert installation projects; unless otherwise excepted by the department:
The following technical provisions shall apply to temporary bypass culvert or flume projects; unless otherwise excepted by the department: (a) The temporary bypass culvert or flume shall be in place prior to initiation of other work in the wetted perimeter. (b) A sandbag revetment or similar device shall be installed at the inlet to divert the entire flow through the culvert or flume. (c) A sandbag revetment or similar device shall be installed at the downstream end of the culvert or flume to prevent backwater from entering the work area. (d) Culvert or flume shall be of sufficient size to pass flows and debris occurring during the project. (e) Prior to releasing the water flow to the project area, all bank protection or armoring shall be completed. (f) Upon completion of the project, all material used in the temporary bypass shall be removed from the site and the site returned to pre-project conditions.
The following technical provisions shall apply to temporary water crossings; unless otherwise excepted by the department: (a) "Fording" or limited crossings that utilize the natural stream bed as a road may be conditionally permitted through approval of specific crossings site location(s), frequency and dates of occurrence. (b) Temporary bridges or culverts, adequate to carry the twenty-five (25) year flow for the operation period can be used when: (1) A permanent road is not justifiable; (2) The temporary structure is installed after spring runoff and removed prior to the possibility of commencement of the following spring runoff; and (3) Remove or protect approaches to the crossings by riprapping, revegetating, or whatever means necessary to insure the stabilization of the approach below the fifty (50) year flood level. 4-9-59 Dredging The following technical provisions shall apply to dredging projects; unless otherwise excepted by the department: (a) Dredging shall not be conducted in fish spawning areas, or within waterfowl nesting areas. (b) During the dredging of a lake or pond, a boom or similar device shall be installed to contain floatable materials. (c) Dredged bed materials shall be disposed of at a site specified by the department. (d) Dredging shall be conducted with dredge types that cause the lowest mortality on fish life. (e) Dredging shall stop when distressed or dead fish are observed in the work area. The department shall be notified immediately. (f) If a hydraulic dredge is used, it shall be operated with the intake on or below the surface of the material being removed. Reverse purging of the intake line shall be held to a minimum. (g) If a drag line or clamshell is used, it shall be operated to minimize turbidity. During excavation, each pass with the clamshell or drag line bucket shall be complete. Dredged material shall not be stockpiled in the water. (h) Upon completion of the dredging the watercourse bed shall not contain pits, potholes, or large depressions.
The following technical provisions shall apply to gravel removal projects; unless otherwise excepted by the department: (a) Pre-project and post project monitoring of gravel recruitment and other related physical parameters is required for commercial and large scale flood control projects. (b) An excavation line shall be established. "Excavation line" means a line on the dry bed, parallel to the water’s edge: two feet vertically above the existing water level, and changes with water level fluctuations. (c) Bed material shall not be removed from the water side of the excavation line. (d) Excavation shall being at the excavation line and proceed toward the bank, perpendicular to the alignment of the watercourse. (e) The maximum distance of excavation toward the bank from the excavation line shall be approximately equal throughout the excavation zone. "Excavation zone" means the area between the excavation line and the bank. (f) The excavation zone shall be identified by boundary markers. (g) A minimum two (2%) percent gradient upward from the excavation line shall be maintained in the excavation zone. (h) At the end of each day’s operation the excavation zone shall not contain pits or potholes. (i) Excavated materials shall not be stockpiled or spoiled within the ordinary high water line. (j) Equipment shall not enter the wetted perimeter of the watercourse. (k) Debris in the excavation zone shall be disposed of so as not to reenter the watercourse. (l) Gravel washing or crushing operations shall not take place below the ordinary high water line. (m) Gravel removal may require a permit from the Tribal Geology department.
The following technical provisions shall apply to log and log jam projects; unless otherwise excepted by the department: (a) Logs and log jams shall be removed by yarding from the bank. (b) Where logs are to be yarded up a bank, skid logs shall or similar methods shall be used to prevent bank damage. (c) Upon completion of the yarding operation skid logs shall be removed and the bank restored to pre-project condition. (d) Material associated with the log or debris jam shall be removed and disposed of so as not to reenter the watercourse. (e) Logs embedded in a bank or bed shall be cut off at the bank or bed line. (f) Log or debris jam removal shall be accomplished in a manner which prevents the release of logs or debris downstream. (g) Depressions created in gravel bars shall be filled, smoothed over, and sloped toward the water.
The following technical provisions shall apply to logging projects; unless otherwise excepted by the department: (a) Trees shall not be felled into or across a watercourse. (b) Logs transported across a watercourse shall be suspended so no portion of the logs or limbs can enter the watercourse or damage the bed and banks. (c) Debris resulting from the project shall be removed from the bed during the operation and before removal of equipment from the site. Debris removal shall be accomplished so the watercourse, bed or banks are not disturbed.
The following technical provisions shall apply to outfall structure projects; unless otherwise excepted by the department: (a) The outfall structure shall not be designed and constructed to prevent the entry of fish. (b) The watercourse bank and bed at the point of discharge shall be armored to prevent scouring. (c) Excavation for placement of the structure or armoring materials shall be isolated from the wetted perimeter. (d) Alteration or disturbance of banks or bank vegetation shall be held to a minimum, and all disturbed areas shall be revegetated or otherwise protected from erosion. (e) Structures containing concrete or wood preservatives shall be cured prior to water encroachment.
The following technical provisions shall apply to pond construction projects; unless otherwise excepted by the department: (a) Ponds shall not be constructed within the watercourse. (b) Ponds shall be designed and constructed to prevent the entry of fish. (c) Flow from the pond to the watercourse shall be by gravity. Pond return flow shall be located near the inlet. (d) Initial filling of the pond shall occur during a high flow period. Fifty (50%) percent of the flow shall be maintained within the watercourse during initial filling of the pond. (e) The work area shall be isolated from the watercourse during construction of the pond, the diversion system, and the return flow system. (f) Prior to the initial filling, all disturbed banks shall be revegetated or other wise protected to prevent erosion. (g) Ponds shall be designed and constructed so the outflow temperature is not harmful to fish life.
The following technical provisions may apply to water diversions where fish screens are required. General fish screening criteria are applicable to rotary drum screens, traveling screens, belt screens and stationary flat plat screens. Screens shall be designed, constructed and located as follows:
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