SKOKOMISH TRIBAL CODE

SKOKOMISH ENVIRONMENTAL PROTECTION ACT

Adopted by Resolution No. 88-22 (March 31, 1988)

Amended by Resolution No. 01-83 (June 27, 2001)

TABLE OF CONTENTS

FINDINGS, PURPOSE, GOALS

6.03.001 Findings

6.03.002 Purpose

6.03.003 Goals

DEFINITIONS

6.03.010 Definitions

6.03.011 Time Limits - Exceptions

PERMITS REQUIRED

6.03.020 Permit Required for Certain Activities

6.03.021 Exceptions to Permit Requirement

6.03.022 “Grandfathered” Activities

6.03.023 Permit Application, Environmental Checklist

6.03.024 Filing

REVIEW OF APPLICATION

6.03.030 Review of Permit Application and Checklist

6.03.031 Initial Notice to Applicant

6.03.032 Determination and Recommendation of the Director

ENVIRONMENTAL REVIEW

6.03.040 Environmental Review - Generally

6.03.041 “Significantly Affecting the Environment”

6.03.042 Finding of No Significant Impact

6.03.043 Cultural Values and Community Aesthetics

6.03.044 Tribal Council Decision

6.03.045 Conditional Permits

6.03.046 Environmental Impact Statement Required

6.03.047 EIS Format

6.03.048 Cost of EIS

6.03.049 Cooperation with Other Agencies in EIS Preparation

6.03.050 Sufficiency of EIS

6.03.051 Recommendation of Director Based on EIS

6.03.052 Public Hearing

6.03.053 Notice of Public Hearings

6.03.054 Tribal Council Decision

6.03.055 Basis for Decisions to Approve, Deny, or Condition Permit

APPEAL, RECONSIDERATION AND REHEARING

6.03.060 Request for Rehearing

6.03.061 Notice of Appeal; Request for Reconsideration - Timing

6.03.062 Notice of Appeal; Request for Reconsideration - Content

6.03.063 Stay Pending Appeal or Reconsideration

6.03.064 Scheduling of Hearing - Notice

6.03.065 Hearing

6.03.066 Decision of the Tribal Council on Appeal or Reconsideration

6.03.067 Appeal to Tribal Court

ARCHAEOLOGICAL OR HISTORICAL SITES

6.03.080 Purpose

6.03.081 Policies Regarding Archaeological and Historic Sites

STANDARDS

6.03.090 General Standards

ENFORCEMENT, PENALTIES

6.03.100 Failure to Obtain and Comply with Permit

6.03.101 Notice of Violation

6.03.102 Civil Penalty

6.03.103 Appeal from Penalty

6.03.104 Enforcement of Penalty in Court

6.03.105 Money Damages for Violation

SOVEREIGN IMMUNITY, SEVERABILITY

6.03.110 Sovereign Immunity

6.03.111 Severability

Findings, Purpose, Goals

6.03.001 Findings

The Skokomish Tribal Council makes the following findings with regard to this Act:

(a) The Skokomish Reservation was established for the exclusive and permanent use of the Skokomish Indian Tribe. The land was reserved by the Tribe from a larger area to which the Tribe held aboriginal title.

(b) The Skokomish Indian Tribe, through its governing body, the Skokomish Tribal Council, has the jurisdiction and the duty to protect the quality of the environment within the boundaries of the Skokomish Indian Reservation. The Tribe has concurrent authority to protect environmental quality within the Tribe's usual and accustomed fishing grounds and stations and in its off-reservation hunting areas.

(c) The Skokomish Reservation is a small land base which must provide for the economic, residential, cultural, recreational, and governmental needs of the Skokomish tribal community at present and in the future.

(d) The Skokomish Reservation contains ecologically sensitive wetlands, culturally sensitive historic and archaeological sites, and the Skokomish River which is both economically and ecologically sensitive, particularly with regard to the Tribe's fishery. Any action adversely affecting these and other areas within the Reservation's ecosysterns, adversely affects the Skokomish Indian Tribe.

(e) The Skokomish Tribal Council concurs with federal and state legislation with policies stressing environmental protection such as the National Environmental Policy Act, Coastal Zone Management Act, Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, Washington State Environmental Policy Act, and Washington Shoreline Management Act. The Skokomish Tribe is a member of the Hood Canal Coordinating Council and supports the Hood Canal Plan. The Tribal Council recognizes that ecosystems are blind to jurisdictional boundaries. Therefore, it is intended that this Act be implemented in a spirit of cooperation with other governments and their agencies.

6.03.002 Purpose

This Act is adopted to protect the environment under the jurisdiction of the Skokomish Indian Tribe for the enjoyment and use of present and future generations of Skokomish tribal community members.

6.03.003 Goals

The Tribal Council intends to further the following goals in adopting this Act, in addition to the goals incorporated in S.T.C. 6.03.001(f).

a) To protect the natural resources of the Skokomish Reservation from contamination, pollution, and other degradation;

b) To protect and enhance the habitat of all types of fish, shellfish, and wildlife resources, particularly the Skokomish River estuary and associated wetlands that are critically important components of the ecosystem which support fish and shellfish resources;

c) To minimize the adverse impacts that would result from locating developments in environmentally sensitive areas;

d) To preserve the open, rural environment that has been traditional for Skokomish Indians; and

e) To allow sufficient development within this natural environment to enable all Skokomish families who desire housing and public services to obtain them.

Definitions

6.03.010 Definitions

The words below shall have the meaning set forth in this section when they appear in this Act, unless a different meaning is clearly intended.

(a) "Buffer" means an undisturbed area of land adjacent to a critical area (streams, wetlands, marine shorelines, erosion hazard areas) that protects the functions and values of the critical area.

(b) "Construction" means any onsite activity which is directly related to building or modifying a structure. It does not include minor repairs to or painting of existing structures.

(d) "Director" means the Director of the Skokomish Department of Natural Resources.

(e) "EIS" means environmental impact statement.

(f) "Floodplain" means lowlands adjoining the channel of a river, stream, or other body of water which have been or may be inundated by floodwater and those areas subject to flooding. In connection with this ordinance, the term refers to the area inundated by the 100 year flood event. These areas are identified as "flood hazard areas" by the Federal Emergency Management Agency (FEMA) under the auspices of the National Flood Insurance Program (NFIP).

(g) "Normal public use" means fishing, shellfishing, boating, swimming, and general recreation, by persons with a legal right to engage in those activities.

(h) "Proposed activity" and "activity" mean a development, project, construction, or other action.

(i) "Skokomish tribal community" means all persons residing within the boundaries of the Skokomish Indian Reservation and all enrolled members of the Skokomish Indian Tribe regardless of residence.

(j) "Structure" means a permanent or temporary edifice or building, or any piece of work artificially built or composed of parts joined together in some definite manner, whether installed on, above, or below the surface of the ground or water. The term structure includes roads.

(k) "Tribal Council" means the governing body of the Skokomish Indian Tribe as constituted and empowered under Article IV of the Constitution of the Skokomish Indian Tribe.

(l) "Wetlands" or "wetland areas" mean lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. Wetlands have one or more of the following attributes: (a) At least periodically, the land supports predominantly hydrophytes; (b) the substrate is predominantly undrained hydric soil; and (c) the substrate is nonsoils and is saturated with water or covered by shallow water at some time during the growing season of each year.

6.03.011 Time Limits - Exceptions

Time limits imposed on the Tribal Council in this Act are guidelines. Postponements for lack of a quorum shall have no consequence except a delay in the process. Time limits for the EIS shall be made by agreement of the applicant and the Director. Time limits throughout the Act shall be construed in a manner which accomplishes the goals of the Act.

Permits Required

6.03.020 Permit Required for Certain Activities

Any person conducting an activity within the boundaries of the Skokomish Indian Reservation shall be required to obtain a permit from the Skokomish Indian Tribe under this Act. Activities requiring a permit include, but are not limited to, the following:

(a) Preparation of a site for the construction of a building or area for purpose of human habitation, business use, or public area;

(b) The construction of any structure and construction which expands the square footage of the exterior of an existing structure by more than 100 square feet;

(d) Road construction or repair and right of way maintenance;

(e) Construction or repair of culverts and drainage ditches;

(f) Construction of any water or flood related project regardless of the nature or extent of the construction activity;

(g) Any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands within the Skokomish Indian Reservation at any state of water level; and

(h) Dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; diking; riprapping; or driving of piling.

(i) Timber harvesting and the harvesting of any forest products, including brush picking and mushroom picking;

(j) Spraying or other application of pesticides and herbicides, except for use by single family residences;

k) Clearing and grading.

l) Storage, application, disposal or incineration of solid waste and/or hazardous materials as those terms are defined under the Resource Conservation Recovery Act (42 U.S.C. §§ 6992-6992k)

6.03.021 Exceptions to Permit Requirement

The following activities shall not require a permit under this Act:

(a) Residential home improvements;

(b) Construction of sheds or smokehouses which are accessory to existing residential or farm use;

(d) Fireworks stands licensed by the Skokomish Indian Tribe.

6.03.022 "Grandfathered" Activities

Structures in existence prior to the adoption of this Act are exempt from the permit requirements of this act. Modifications to such structures made after the date of adoption of this Act and which fall under Section 6.03.010 are subject to the Act.

6.03.023 Permit Application. Environmental Checklist

Any person requiring a permit under Section 6.03.020 shall obtain a Skokomish permit application and an environmental checklist form from the Director.

6.03.024 Filing

The completed permit application and environmental checklist shall be filed with the Director or his/her designee. The permit application shall be accompanied by a $25.00 processing fee which may be waived on a showing of hardship.

Review of Application

6.03.030 Review of Permit Application and Checklist

The permit application and environmental checklist shall be initially reviewed by the Director who shall make a recommendation to the Tribal Council to approve, deny or condition the permit. Activities requiring a permit shall be reviewed and decided upon by the Tribal Council as soon as practicable. The Director and the Tribal Council may request assistance from appropriate technical personnel in conducting the review. The review process shall consist of the following determinations:

(a) Is there sufficient information in the application?

Does the permit application and environmental checklist contain adequate information on which to base a decision to approve or deny the permit or to allow a conditional use? If there is not enough information, a personal conference with the applicant shall be required.

(b) Are the goals and purpose of the Act met?

Does the proposed activity conform to the goals (Section 6.03.003) and purpose (Section 6.03.002) of this Act?

Does the proposed activity meets the environmental review criteria under Sections 6.03.040 through 6.03.055 of this Act?

(d) Are there archaeological issues to be addressed?

Does the proposed activity adequately address archaeological and historical site concerns and is it compatible with the policies for such sites under Sections 6.03.080 through 6.03.081 of this Act; and

(e) Are the standards of the Act met?

Does the proposed activity conform to standards set forth for that type of activity under Section 6.03.090 of this Act?

6.03.031 Initial Notice to Applicant

Within 15 calendar days from the date a completed application and environmental checklist are received, the Director shall notify the applicant of one or more of the following:

(a) The applicant must attend a personal conference with the Director to clarify or complete information required by the permit application or environmental checklist.

(b) An environmental impact statement will be required.

(c) The archaeological and historical preservation requirements of Sections 6.03.080 through 6.03.081 necessitate action by the applicant.

(d) The application is being recommended for approval, and a permit may be issued following Tribal Council review and approval. (This determination would be based on a finding of no significant impact.)

(e) The application is being recommended for approval subject to conditions, and a conditional permit may be issued following Tribal Council review and approval. (This determination would be based on a finding of no significant impact.)

(f) The permit is being recommended for denial for the reasons listed in the notice.

If additional time is needed by the Director to make the required determinations and recommendations, the applicant shall be so notified.

6.03.032 Determination and Recommendation of the Director

The Director shall make his determination and base his recommendation to approve, deny, or condition a permit on the criteria in Section 6.03.030 of this Act. The permit application and recommendation of the Director shall be placed on the agenda of the next regularly scheduled meeting of the Tribal Council.

Environmental Review

6.03.040 Environmental Review - Generally

The Director shall review the applicant's environmental checklist for the purpose of determining whether the proposed activity will significantly affect the environment. If so, the applicant will be required to prepare an environmental impact statement conforming to the requirements of S.T.C. 6.03.046 through 6.03.050. The Director may use any technical assistance he or she may require in making the review.

6.03.041 "Significantly Affecting the Environment"

The determination of whether an activity will significantly affect the environment shall be made in the context of Skokomish tribal culture and values. Factors to be taken into consideration in evaluating an application for a permit and the environmental checklist for significant effects on the environment include:

(a) The degree to which the proposed activity will adversely affect the quantity and quality of the fish and shellfish resources of the Tribe;

(b) Unique or sensitive characteristics of the geographic or hydrologic area in which the proposed activity will take place;

(d) Whether the proposed activity may cause loss or destruction of cultural, historical, or scientific resources;

(e) The degree to which the proposed activity affects health and safety of the Skokomish tribal community;

(f) The degree to which the effects of the proposed activity are uncertain or involve unique or unknown risks;

(g) The degree to which the proposed activity may establish a precedent for future actions with significant effects;

(h) The level of Skokomish tribal community support or opposition;

(i) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. If it is reasonable to anticipate a cumulatively significant impact on the environment, the activity is significant.

(j) Whether the action threatens a violation of federal, state, or local law or requirement or interlocal cooperation agreement to which the Skokomish Tribe is a party, imposed for the protection of the environment.

(k) Whether the action would violate the Constitution of the Skokomish Indian Tribe or any other law or policy of the Tribe.

6.03.042 Finding of No Significant Impact

If the Director determines that the proposed project will not have a significant effect on the environment, based on a review of the environmental checklist, the applicant conference, if any, and the recommendations of any technical persons consulted, he or she shall prepare a finding of no significant impact (FONSI).

6.03.043 Cultural Values and Community Aesthetics

If the Director issues a FONSI, but also finds that a proposed activity may adversely impact tribal cultural values or community aesthetics, he may post a notice requesting public comment at the Skokomish Fisheries Building, Twin Totems store, and the Skokomish Tribal Center. Any interested person may submit written comments to the Director within fifteen (15) days of the date the notice is posted.

6.03.044 Tribal Council Decision

The Director shall forward the FONSI, his recommendation and, if applicable, any comments received from interested persons to the Tribal Council. The Tribal Council shall review these materials at its next regularly scheduled meeting. The Council may approve the Director's FONSI and the applicant's permit, or order a conditional permit issued, or may deny the permit and require the applicant to do an environmental impact statement.

6.03.045 Conditional Permits

A conditional permit may be issued when a proposed activity substantially, but not entirely, meets the requirements set forth in Section 6.03.030 and the activity could be conducted in harmony with the Tribe's purpose and goals under this Act if certain acts or omissions are performed by the applicant. The permit is issued subject to those conditions and is revocable if those conditions are not met by the applicant. Approval of conditional permits is discretionary. The Director may grant a conditional permit after a finding of no significant impact. The conditional permit must go through the same notice, comment, and Tribal Council review process used for the FONSI (under Sections 6.03.043 and 6.03.044). A second way a conditional permit may be issued is by the Tribal Council, after the environmental impact statement process, as provided in Section 6.03.054.

6.03.046 Environmental Impact Statement Required

If the Director determines that the proposed project will have or is likely to have a significant effect on the environment, the applicant shall be required to prepare an environmental impact statement (EIS).

6.03.047 EIS Format

The EIS shall be written in plain language so that the Tribal Council and the Skokomish tribal community can understand it. Supplemental materials which are of a technical nature may be included for review by the Tribe's technical staff and advisors. The applicant shall provide the Tribe with an original and ten copies of the EIS. The EIS shall substantially follow the format set forth below:

(a) Cover Sheet.

A one page cover sheet which gives the title of the proposed activity or project, the name, address, and telephone number of the preparer(s), identified as such. The same information for the applicant. A one paragraph abstract of the proposed activity.

(b) Summary.

A summary, not to exceed fifteen pages, adequately and accurately summarizing the major conclusions, areas of controversy, and issues to be resolved, including alternatives.

A statement briefly specifying the underlying need for the proposed activity.

(d) The Proposed Activity and Alternatives.

This section is the heart of the EIS. It shall present the environmental impacts of the proposal and the alternatives in comparative form to make a clear basis for choice among options. It shall rigorously explore and objectively evaluate all reasonable alternatives. It shall include the alternative of no action. It shall include appropriate mitigation measures not already included in the proposed activity or alternatives.

(e) Affected Environment.

The environmental impact statement shall succinctly describe the environment of the area(s) to be affected or created by the alternatives under consideration.

(f) Environmental Consequences.

This section shall include the actual and potential environmental impacts of the alternatives including the proposed activity, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. It shall include direct and indirect effects and their significance. It should address possible conflicts between federal, state, regional, local and interlocal plans, policies and controls for the area concerned. Energy requirements and conservation potential shall be addressed. Specific impacts on the Skokomish tribal fishery, including habitat, shall be addressed in detail. Natural or depletable resource requirements and conservation potential and mitigation measures for the proposed activity and alternatives shall be addressed. Impacts on the quality of Skokomish tribal life and compatibility with cultural values shall be addressed. Means to mitigate adverse environmental impacts not already covered shall be included.

(g) List of Preparers.

The EIS shall list the names, together with the qualifications (expertise, experience, professional disciplines), of the persons who were primarily responsible for preparing the EIS. Persons responsible for a particular analysis shall be identified.

(h) Appendix.

Materials prepared in connection with the EIS which substantiate any analyses or are otherwise relevant to the decision to be made may be placed in an appendix.

6.03.048 Cost of EIS

The cost of preparing and copying the EIS shall be borne by the applicant.

6.03.049 Cooperation With Other Agencies in EIS Preparation

If a proposed activity will be subject to environmental assessment or preparation of an EIS by another governmental authority, the Director may work with the applicant to coordinate the sharing of information and possible incorporation by reference of materials prepared by or for the other agency. The applicant is responsible for providing the Tribe with copies of all materials incorporated by reference.

6.03.050 Sufficiency of EIS

The Director shall have the authority to determine whether an EIS is sufficient in scope, detail, and overall quality. The Director may require supplemental or revised materials to be presented if necessary to aid in making decisions based on the EIS.

6.03.051 Recommendation of Director Based on EIS

The Director shall prepare a written recommendation, addressed to the Tribal Council, of whether the proposed activity can be conducted without significant adverse affects on the environment. If the proposed activity can be conducted without significant adverse environmental impacts only if certain mitigating factors are present, the Director may recommend that a conditional permit be considered. A copy of the Director's recommendation shall be provided to the applicant.

6.03.052 Public Hearing

If a proposed activity requires an environmental impact statement, a public hearing shall be scheduled by the Director to take place within 30 days of receipt of the EIS from the applicant. The Tribal Council shall be present at the hearing. The applicant shall be given an opportunity to give a presentation on the proposed activity, not to exceed one hour. The Director shall present the recommendation he or she prepared under Section 6.03.051. The Tribal Council shall preside over the hearing. Additional public hearings before or after that time may be scheduled if the Director deems it to be in the interest of the Skokomish tribal community.

6.03.052 Notice of Public Hearings

Notice of public hearings under this Act shall be given to the applicant, the Skokomish Tribal Council, and the Skokomish tribal community. The notice shall state the time and place of the hearing and state the subject matter. The notice shall either be published in the Skokomish Tribal newsletter at least 5 days before the hearing or shall be posted in at least two prominent locations on the Reservation. The notice shall be mailed or served on the applicant at least ten days before the hearing. The Director shall verify that the notices have been made as required.

6.03.054 Tribal Council Decision

The Tribal Council shall decide whether to grant or deny the issuance of the permit or to issue a conditional permit. The Tribal Council shall give notice of its decision to the applicant within 30 days of the public hearing unless an additional hearing is scheduled, in which case notice of the decision shall be given to the applicant within 30 days of the final public hearing. The Tribal Council shall post a notice to the Skokomish Tribal Community of its decision to approve, deny, or condition a permit, on the same day notice is given to the applicant. The notice shall be posted at the Skokomish Fisheries Building, Twin Totems store, and the Skokomish Tribal Center for a period of fifteen (15) days. The notice shall have the date of posting written on it.

6.03.055 Basis for Decisions to Approve, Deny, or Condition Permit

The decision to grant a permit, whether made by the Director or the Tribal Council, shall be based on whether the proposed activity would be conducted in a way which would result in each of the factors in Section 6.03.030 (b) through (e) being answered affirmatively. Conditional permits shall be granted in the discretion of the Director or Tribal Council as set forth under Section 6.03.045.

Appeal, Reconsideration and Rehearing

6.03.060 Request for Rehearing

An applicant may request reconsideration by the Tribal Council of the Council's decision to deny a permit. The Tribal Council may also grant review of an appeal from a decision regarding a conditional permit, in its discretion. Any member of the Skokomish tribal community may appeal a decision to grant a permit, including a conditional permit, in the same manner as set forth above.

6.03.061 Notice of Appeal; Request for Reconsideration; - Timing

Any notice of appeal or request for reconsideration under Section 6.03.060 must be filed no later than 15 calendar days from the date the permit was approved or denied. The appeal or request for reconsideration shall be made in writing and shall be served by certified mail, return receipt requested, on the Secretary of the Skokomish Tribal Council and on the Director.

6.03.062 Notice of Appeal; Request for Reconsideration - Content

The appeal or request for a rehearing shall contain a brief description of the proposed project, who made the decision appealed from and on what date, the specific reasons for the appeal or request for rehearing, and what outcome the person is asking for. The notice shall list the names and addresses of any person who may be called as witnesses in the hearing. The person shall include a telephone number and address where he or she can be reached for notices.

6.03.062 Stay Pending Appeal or Reconsideration

No activity may proceed until all review under S.T.C. 6.03.060 through 6.03.067, including judicial review, is concluded.

6.03.064 Scheduling of Hearing - Notice

The Tribal Council shall schedule a hearing no fewer than 7 and no more than 45 calendar days from the date it receives the notice of appeal or request for rehearing, unless the person requesting the hearing and the Council agree otherwise. The Council shall cause a notice of hearing to be mailed or delivered to the person and shall post a notice to the Skokomish tribal community in the places specified under Section 6.03.054.

6.03.065 Hearing

The person requesting the appeal or reconsideration shall appear personally before the Tribal Council and state why and how the decision should be changed. The Tribal Council may hear the testimony of witnesses on both sides of the issue who have information relevant to the appeal or reconsideration. The hearing shall be tape recorded where practicable.

6.03.066 Decision of the Tribal Council on Appeal or Reconsideration

The Tribal Council may affirm, reverse or modify the decision being considered.

6.03.067 Appeal to Tribal Court

Any person who claims, in good faith, that the Skokomish Tribal Council made a mistake in interpreting this Act or made a mistake in procedure under this Act which affected the person's rights or interests shall have a right to appeal from the Tribal Council's decision under Section 6.03.066. The appeal shall be heard by the Skokomish Tribal Court under the Rules of Appellate Procedure of the Rules of the Skokomish Tribal Court (S.T.C. 3.01.100 through 3.01.115). These rules shall be modified, for the purpose of appeals under this Act, to substitute the one judge Tribal Court in place of the three judge Court of Appeals and to substitute "Tribal Council" in place of "trial court" and "Tribal Court." The Tribal Court may reverse the Tribal Council decision only if:

(a) the decision was clearly erroneous in view of the entire record as submitted and in light of the policies and goals of the Act; or

(b) the decision violated the Constitution of the Skokomish Indian Tribe.

Archaeological or Historical Sites

6.03.080 Purpose

S.T.C. 6.03.080 through 6.03.081 establishes policies and procedures to protect archaeological and historic sites. The Skokomish Reservation has been a place of habitation and use by Skokomish Indians for thousands of years. This long history means that the Reservation has many places, no longer discernible to the untrained eye, that were once sites of homes, villages, fishing camps, ceremonies, and other uses. The historical and cultural information obtainable from a professional archaeological examination of such sites is an invaluable and irreplaceable source of tribal history. The discovery of this type of knowledge enriches all people in this region. Violation of the following policies or procedures resulting in destruction of or damage to this heritage is considered an extremely serious offense and the maximum sanctions allowable will be imposed.

6.03.081 Policies Regarding Archaeological and Historic Sites.

(a) Any application for a permit under this Act may be required to be reviewed by a professional archaeologist to determine whether the proposal poses any danger to known archaeological sites. A literature search shall be required in addition to a check of known or registered sites. The expense of such review shall be borne by the applicant.

(b) If evidence of an archaeological site is unearthed during the construction of a project for which a permit has been issued, the project developer and/or the persons involved in construction must cease work immediately and notify the Director or Tribal Manager.

(c) The Skokomish Tribe reserves the right to conduct its own archaeological inspection of any construction, earthmoving, or excavation work on the Reservation.

(d) The Tribe hereby reserves the right to halt construction of a project for up to 120 days if it deems that an archaeological site of importance to the Tribe may have been unearthed. During the 120 days, the Tribe must begin professional examination of the site to determine the significance. Extensions of the 120 day period will be allowed if needed to complete the work. The Tribe may condition the permit for the project after the discovery of the site and require a professional archaeological excavation or require modification of the activity to preserve the site. The expense of such examination and any excavation or modification of the activity shall be borne by the applicant.

(e) Applicants may be required to post a deposit with the Tribe of up to $5,000 to insure that notification of any archaeological evidence is made to the Tribe. The deposit is fully refundable if no archaeological site is unearthed, but will be forfeited if violation of these policies occurs.

Standards

6.03.090 General Standards

The following general standards apply to proposed activities under this Act.

(a) Natural Character Preserved.

All developments shall be consistent with the natural characteristics and ecological systems of the Reservation. Developments in sensitive areas, such as steeply sloped land, flood plains or wetlands, if allowed, shall have only a minimum level of impact upon the functioning of the natural systems.

(b) Natural Buffers.

There shall be undisturbed, natural, vegetated buffers left adjacent to rivers, streams, and wetlands. No construction, accessory uses, septic tanks, or agriculture is allowed in the buffer. No timber harvesting is permitted within the buffer, except that trees which have naturally fallen across the waterway may be removed, provided prior authorization is obtained from the Tribe. A buffer of 150 feet shall remain adjacent to all fish bearing streams, including the Skokomish River and Skabob Creek. A buffer of 100 feet shall remain adjacent to all non-fish bearing streams. The Tribe may increase or decrease the size of a buffer for a particular activity in order to meet other goals, purposes, and standards of this Act, or other applicable law. Buffers shall be measured landward from the channel migration zone or the ordinary high water mark, whichever is greater. Buffers adjacent to a stream or river shall be left on both sides of the waterway.

No activity shall occur in a manner which causes interference with the exercise of Skokomish treaty fishing rights. No activity shall block or impede the free movement of fish.

(d) Water Quality/Fish and Wildlife Quality.

Activities shall be located, designed, constructed, and operated in a manner which minimizes adverse affects on fish, shellfish, wildlife, water quality, and existing geohydraulic shore and stream processes.

(e) Estuarine and/or Near Shore Marine Shoreline Setback.

Structures or activities that are not marine shoreline dependent shall be located inland, at least 250 feet from the mean high water level, when practicable.

(f) Fish Wastes.

Discharge of wastes from fish and shellfish processing into water bodies shall, at a minimum, meet the federal standards for those activities. Alternative uses for fish and seafood wastes, such as fertilizer, are encouraged.

(g) Recycling.

Wastes or refuse from any activity should be recycled when practicable.

(h) Flood-Proofing.

No activity shall be located in areas subject to flooding or tidal inundation unless complete flood-proofing measures have been provided and then only when the location of the structure will not aggravate flooding potentials of the nearby properties. Structures in the 100 year flood plain must comply with federal flood-proof standards necessary to obtain federal flood insurance, whether flood insurance is obtained or not.

(i) Erosion Control.

An erosion control plan must be approved prior to issuance of a permit under this Act for any activity which would pose a risk of erosion during construction or afterward. No earth or debris resulting from the activity shall be allowed to enter streams, lakes or marine waters. No activity shall contribute to foundation instability or mass soil movement.

(j) Use of Fill.

All fill material must be approved in advance by the Director. If an activity uses fill material to accommodate the activity, the Director may require a licensed, professional engineer to certify that the fill will not alter or prohibit the natural flow of surface water or groundwater, or present a geologic hazard. There shall be no excavation or filling of stream channels or lakes or alteration of stream courses unless required for a project which would enhance the biological productivity of the aquatic environment, in which case it will be a conditional use.

(k) Clearing and Grading.

All clearing and grading activities must meet the standards found in Chapter 70 of the Uniform Building Code, as it may be amended.

(l) Sewage Disposal/Drinking Water.

Any activity which requires sewage disposal or extraction of drinking water shall not result in erosion, mass movement of soil, contamination of groundwater, saltwater intrusion, or any other adverse impacts to the environment. The Tribe may require the applicant to submit a report of a licensed engineer to prove the absence of all adverse environmental impacts.

(m) Herbicides, Pesticides.

Application of herbicides and pesticides is prohibited except for conditional permits which may be given for agricultural (including tree farming) and residential application, when no reasonable alternative is available to control pests or plant growth.

Enforcement, Penalties

6.03.100 Failure to Obtain and Comply with Permit

(a) Failure to Obtain a Permit

Any person who fails to obtain a permit required under this Act shall be issued a notice of violation which may include an order to cease and desist (stop work order).

(b) Failure to Comply with Permit

Any person who fails to comply with the terms of a permit under this Act shall be issued a written warning to comply by the Director, or his/her designee, which may include an order to cease and desist (stop work order). If the activity continues in noncompliance after issuance of the warning, the Director shall issue a written notice of violation which may include an order to cease and desist (stop work order).

6.03.101 Notice of Violation

The notice of violation shall describe the specific violation, the amount of the monetary penalty and, if applicable, shall order the violation to cease and desist or, in appropriate cases, require corrective action to be taken within a specific and reasonable time. The notice shall be given to the person directly or by certified mail with return receipt requested.

6.03.102 Civil Penalty

The civil penalty for failure to conform to the terms of a permit or for proceeding with an activity without a permit, as required under this Act, is a fine not to exceed five thousand dollars for each violation. Each permit violation or each day of continued activity without a required permit shall constitute a separate violation.

6.03.103 Appeal from Penalty

Within thirty days after the notice is received, the person incurring the penalty may apply in writing to the Tribal Manager to request that the penalty be reduced. The person must show good faith in complying with Act since the time the notice was received in order to have his or her request to reduce the penalty considered. The person may appeal the Tribal Manager's decision to the Skokomish Tribal Council pursuant to the procedures in 6.03.061 to 6.03.067. The decision of the Tribal Council is final for the Tribe.

6.03.104 Enforcement of Penalty in Court

The Tribe may enforce its notice to cease and desist and its assessment of a penalty in the Tribal Court. The Tribe may request the Court to enter an injunction against the continued activity, to order payment of the fine, and to order other remedies where appropriate. Failure of any person to abide by the lawful order of the Skokomish Tribal Court is punishable by civil and criminal contempt of court proceedings.

6.03.105 Money Damages for Violation

Any person subject to this Act who violates any provision of this Act or permit issued under this Act shall be liable for all damage to property located within the Skokomish Reservation resulting from such violation. Individual members of the Skokomish tribal community and the Skokomish Indian Tribe may bring suit in the Skokomish Tribal Court for damages they have incurred as a result of the violation under this section. If liability is established and the Court orders restoration of the area affected, the Court shall make provision to assure that restoration is accomplished within a reasonable time and at the sole expense of the violator. The Court may order money damages, costs of the suit, and attorney's fees to the prevailing party. Appeal from such a suit shall be brought in the Skokomish Court of Appeals. Failure of any person to abide by the lawful order of the Skokomish Tribal Court or Court of Appeals is punishable by civil and criminal contempt of court proceedings.

Sovereign Immunity, Severability

6.03.110 Sovereign Immunity

The sovereign immunity of the Skokomish Indian Tribe is in no manner waived by this Act. The employees and appointees of the Skokomish Indian Tribe, the members of the Skokomish Tribal Council, and the personnel of the Skokomish Tribal Court are cloaked with the sovereign immunity of the Skokomish Indian Tribe. No person named above shall be liable for his or her actions or failure to act under this Act.

6.03.111 Severability

If any provision of this Act or its application to any person, entity, or circumstance is held to be invalid, the remainder of the Act shall not be affected.