Title 5 Environment

Chapter 5.01 Ambient Air Standards on the Saint Regis Mohawk Indian Reservation

5.01.010 Ambient Air Quality Standards for PCBs

(a) Annual Standard The concentration of polychlorinated biphenyls (PCBs) in ambient air on the Reservation shall not exceed 0.5 ng/m³ as measured on a rolling 12-month basis. Exceedance of this standard during any 12-month period shall be a violation of this standard.

(b) Short-Term Standard The concentration of PCBs in ambient air on the Reservation shall not exceed 5 ng/m³ during any 24-hour period.

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5.01.020 Prohibitions

(a) No person shall cause or contribute to a violation of either the annual standard or the short-term standard

(b) No person shall undertake, create, or maintain a condition, operation, or activity that causes or contributes to a violation of either the annual standard or the short-term standard.

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5.01.030 Enforcement and Penalties

(a) Notice of Violation

(1) Upon determining that reasonable grounds exist for believing that a person may be causing or contributing to a violation of the annual standard, the short-term standard, or both, the Tribe shall issue a written Notice of Violation to such person.

(2) The Notice of Violation shall specify the standard or standards alleged to have been violated; the date or dates upon which such alleged violation(s) occurred; and the grounds for determining that the recipient of the Notice has caused or contributed to such alleged violation(s).

(3) Except as provided in Section 5.01.040 below (Emergency Abatement Orders), the Notice of Violation shall provide the alleged violator with at least ten (10) business days in which to submit a written response to the Notice.

(4) The Notice shall also state that the alleged violator may request a hearing in the Tribal Court or may waive a hearing and resolve the alleged violation by entering into a voluntary Administrative Consent Order with the Tribe. The recipient of a Notice of Violation must specify in the written response to the Notice whether the recipient requests a Tribal Court hearing or resolution through a voluntary Administrative Consent Order.

(5) Failure to provide a written response to a Notice of Violation within the time period specified in the Notice shall be deemed an admission of the violations alleged in the Notice.

(6) Failure to request either a Tribal Court hearing or resolution through a voluntary Administrative Consent Order within the time period specified in the Notice of Violation shall be deemed a waiver of both and grounds for issuance of a Unilateral Administrative Order as provided for in Section 5.01.030(c).

(b) Administrative Consent Order

(1) Violations of the PCB ambient air quality standards may be resolved through an Administrative Consent Order, which is a written order executed by a person alleged to have violated a standard and the Tribe which resolves the violation by imposing corrective measures, requiring payment of a civil penalty, or both.

(2) In the event that the Tribe and alleged violator fail to agree on the terms of, and execute, an Administrative Consent Order, the alleged violator may request a Tribal Court hearing concerning the alleged violation(s).

(c) Unilateral Administrative Order

(1) In the event that a person issued a Notice of Violation fails to provide a written response to the Notice within the time period specified in the Notice, or fails to request either a Tribal Court hearing or resolution through a voluntary Administrative Consent Order, the Tribe may issue a Unilateral Administrative Order.

(2) A Unilateral Administrative Order shall specify the corrective actions to be taken by the recipient of the Notice of Violation, require payment of a civil penalty, or both.

(3) The terms of a Unilateral Administrative Order shall be enforceable in Tribal Court.

(d) Penalties

(1) Either the Tribal Court, after a finding that a violation has occurred, or the Tribe, in an Administrative Consent Order or Unilateral Administrative Order, may impose a civil penalty for each violation.

(2) For a violation of the annual standard, the civil penalty shall not exceed two hundred fifty thousand dollars ($250,000) for each 12-month period during which the annual standard was violated.

(3) For a violation of the short-term standard, the civil penalty shall not exceed twenty-five thousand dollars ($25,000) for each violation.

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5.01.040 Emergency Abatement Order

(a) Emergency Finding Upon finding that reasonable grounds exist for believing that a violation or violations of a PCB standard may pose an imminent and substantial endangerment to public health or the environment, the Tribe may issue a written emergency abatement order to any person causing or contributing to such violation(s).

(b) Emergency Abatement Order An emergency abatement order shall include the information contained in a Notice of Violation issued pursuant to Section 5.01.030(a) An emergency abatement order shall also identify:

(1) The grounds for believing that the violation or violations may pose an imminent and substantial endangerment to public health or the environment;

(2) The actions to be taken by the person issued the order to cease, control, or abate emissions of PCBs that may pose an imminent and substantial endangerment to public health or the environment and the date or other deadline for such actions to be taken or completed; and

(3) The date, which shall be no later than ten (10) business days after the date the emergency abatement order is issued, when the person issued the order may appear at a hearing in Tribal Court and offer proof that the violation or violations do not pose an imminent and substantial endangerment to public health or the environment.

(4) A person duly served with an emergency abatement order who refuses or fails to comply with the terms of such order shall be subject to a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each day of such refusal or failure to comply with the order.

(5) The terms of an emergency abatement order shall be enforceable in Tribal Court.

(6) In addition to the civil penalty for refusal or failure to comply with the terms of an emergency abatement order specified in paragraph (b)(4), failure to comply with an order of the Tribal Court concerning an emergency abatement order shall be punishable as a contempt of court.

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5.01.050 Tribal Implementation Plan

The ambient air quality standards for PCBs set forth are in addition to and supplement the PCB air quality standard in Appendix C (TCR 1989-19) to the Tribal Implementation Plan and that standard remains in full force and effect.

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5.01.060 Definitions

(a) "Tribe" means the Saint Regis Mohawk Tribe and its departments, divisions and agencies.

(b) "Person" means an individual, corporation, authority, trust, government agency, or any other entity.

(c) "Tribal Court" means the Saint Regis Mohawk Tribal Court as established under the Saint Regis Mohawk Tribal Court and Judiciary Code (TCR 2008-22, as amended by TCR 2012-13), or any successor tribal court of competent jurisdiction.

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Chapter 5.02 Water Quality Standards for the Saint Regis Mohawk Tribe Under the Authority of the Clean Water Act §303(c)

5.02.010 Purpose, Authority, Applicability And Implementation

The Tribal Council of the Saint Regis Mohawk Tribe, a federally - recognized Tribe of Indians, hereby enacts the Saint Regis Mohawk Tribe Water Quality Standards.

(a) Purpose.

The purpose of the Tribe's Water Quality Standards is as follows:

(1) Assign designated uses for which Tribal Surface Waters shall be protected;

(2) Prescribe and impose water quality standards (narrative and numeric) in order to sustain the designated use of Tribal Surface Waters;

(3) Protect against the degradation of Tribal Surface Waters;

(4) Promote the social welfare and economic well-being of the Tribe;

(5) Promote a holistic watershed approach to management of the Tribal Surface Waters;

(6) Provide for the protection of threatened or endangered species and,

(7) Protect cultural and ceremonial uses.

The purpose of these water quality standards is to facilitate sovereign self-determination and the restoration and preservation of traditional hunting, fishing, gathering and cultural uses in, on and around Tribal Surface Waters. The Environment Division is committed to providing cleaner, safer water for all of creation. These water quality standards will in turn promote the general welfare and well-being of the community by allowing the Tribe and its members to utilize the water for traditional, cultural and ceremonial purposes. Water quality standards are not used to control, and are not invalidated by, natural background phenomena or acts of the Creator.

These purposes shall be accomplished by utilizing the standards set forth in the Tribe's Water Quality Standards as the basis for permitting and management process for point source discharges and nonpoint source generators, by using treatment technologies to control point sources and by adopting best management practices for nonpoint sources of pollution.

(b) Authority.

The Saint Regis Mohawk Tribe maintains the plenary sovereign power to regulate the quality of Tribal Surface Waters in the interest of the health and wellbeing of the Mohawk People. Pursuant to §§303 and 518 of the Clean Water Act the U.S. Environmental Protection Agency (EPA) approved the Tribe's Application for a Determination of Eligibility to Administer Programs under the Clean Water Act on October 16, 2002.

(c) Applicability.

The Tribal Water Quality Standards apply to all Tribal Surface Waters, that is, all surface waters within the exterior boundaries of the Saint Regis Mohawk Territory, including water situated wholly or partly within, or bordering upon, the Territory, whether public or private, except for private waters that do not combine with other surface waters.

(d) Implementation.

(1) Water Resources Personnel. The Water Resources Program shall administer the SRMT WQS. The program is comprised of a Program Manager and Technicians. This program shall serve under the direction of the Director of the SRMT Environment Division.

(2) Consistency. The Tribe's Water Quality Standards are consistent with section 101(a)(2) of the Clean Water Act (33 U.S.C. Section 1251(a)(2)), which declares that "it is the national goal that, wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water achieved by July, 1983...." Primary contact and ceremonial use, agricultural and water supply use are other designated uses of Tribal Surface Waters. The Tribe's Water Quality Standards provide that such designated uses shall not result in any contamination that may lower the quality of the water below what is required for recreation and protection and propagation of fish, shellfish, and wildlife.

(3) Antidegradation Policy. The antidegradation policy for Tribal Surface Waters and the procedures for implementing it are set forth in Section 5.02.030 and in the Implementation Plan.

(4) Revisions. The Tribal Water Quality Standards will be reviewed every 3 years. The review provides an opportunity for revisions and/or additions based on new information or for clarification of existing issues.

(5) Public hearings. Following enactment, pursuant to Section 303(c)(1) of the Clean Water Act [33 U.S.C. Section 303(c)], the Saint Regis Mohawk Tribe shall hold public hearings at least once every three years for the purpose of reviewing and, as appropriate, amending the Tribal Water Quality Standards. Findings and revisions shall incorporate relevant scientific and engineering advances as well as any other relevant environmental concerns.

(6) Protection of Designated Uses. Conditions particular to a use shall be protected at all times. General Conditions (Section 5.02.040, below) shall be maintained at all times and shall apply to all Tribal Surface Waters, whether perennial, ephemeral, or intermittent. The standards assigned to each Tribal Surface Water shall be the most stringent standards required to protect all uses designated for that body of water.

(7) Use Attainability. In the event that monitoring of water quality identifies reaches where attainable water quality is less than what is required by the Tribal Water Quality Standards, then the Saint Regis Mohawk Tribe may modify the Water Quality Standards to reflect attainability. Modification shall then be within the sole discretion of the Saint Regis Mohawk Tribe, but shall be subject to the provisions of the Clean Water Act, and shall be carried out in accordance with use-attainability analysis procedures required by 40 CFR 131.10. A designated use, that is not an existing use, may be removed if it is demonstrated that attaining the designated use is infeasible. Further, at a minimum, uses are considered attainable if they can be achieved by implementing effluent limits required under Sections 301(b) and 306 of the Clean Water Act (Act) and by implementing cost-effective and reasonable best management practices (BMPs) for nonpoint source control. (40 CFR 131.10(h)(2)). If the Saint Regis Mohawk Tribe adopts a new or revised water quality standard based on a required use attainability analysis, the Tribe shall also adopt the highest attainable use, as defined in §131.3(m).

A Use Attainability Analysis must be conducted whenever: (1) The Tribe designates or has designated uses that do not include the uses specified in section 101(a)(2) of the Act, or (2) The Tribe wishes to remove a designated use that is specified in section 101(a)(2) of the Act or to adopt subcategories of uses specified in section 101(a)(2) of the Act which require less stringent criteria. The regulation (at 40 CFR 131.10(g)) specifies that States and Tribes may remove a designated use which is not an existing use if attainment of a use is not feasible due to the following:

(A) Naturally occurring pollutant concentrations prevent the attainment of a use; or,

(B) Natural, ephemeral, intermittent, or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State or Tribal water conservation requirements to enable uses to be met; or,

(C) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place; or;

(D) Dams, diversions or other types of hydrological modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or operate such modification in a way that would result in the attainment of a use; or,

(E) Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or, f. Controls more stringent than those required by Sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact.

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5.02.020 Definitions

Acute Effects: any adverse health outcome resulting from short-term exposure to a toxic substance.

Administrator: the Administrator of the United States Environmental Protection Agency.

Agricultural Water Supply Use: the use of water for irrigation.

Algae: simple plants organisms without roots, stems, or leaves that contain chlorophyll and are capable of photosynthesis.

Antidegradation: the three tiers of Antidegradation are as follows: Tier 1, maintains and protects existing uses and water quality conditions necessary to support such uses. Tier 1 requirements are applicable to all surface waters. Tier 2, maintains and protects "high quality" waters-water bodies where existing conditions are better than necessary to support CWA § 101(a)(2) "fishable/swimmable" uses. Tier 3, maintains and protects water quality in Outstanding National Resource Waters (ONRWs). Except for certain temporary changes, water quality cannot be lowered in such waters. ONRWs generally include the highest quality waters of the United States.

Aquatic Life: any animal or plant, such as fish, shellfish and mammals, which lives at least part of their life cycle in the water.

Attainable Use: a use of surface water that has the quality and all other characteristics necessary to support and maintain the use or which would support and maintain the use after the implementation of water quality standards as set forth in or promulgated pursuant to this Code.

Best Management Practices: practices undertaken to control, restrict, and diminish nonpoint sources of pollution which are consistent with the purposes of the WQS; and measures, including but not limited to structural measures, that are determined to be the most effective and practical means of preventing or reducing pollution from nonpoint sources.

Bioaccumulation: the process whereby slowly metabolized or excreted substances increase in concentration in living organisms as they take in polluted air, water, or food.

Biological Criteria: the numeric values or narrative expressions that describe the biological integrity or aquatic communities inhabiting waters of a given designated aquatic life use. Biological criteria serve as an index of aquatic community health.

Ceremonial and Spiritual Water Use: the use of water for spiritual and cultural practices which involve primary contact. This shall include uses of Tribal Surface Waters of a water body to fulfill cultural, traditional, spiritual, or religious needs of the Tribe or its members.

cfs: cubic feet per second.

cfu: colony forming units; expressed as cfu per 100 milliliters.

Chronic Toxicity: a long-term adverse effect to an organism (when compared to the life span of the organism) caused by or related to changes in feeding, growth, metabolism, reproduction, a pollutant, genetic mutation, etc. Short-term test methods for detecting chronic toxicity may be used to make inferences about chronic toxicity.

Cold Water Fishery: a stream reach, lake, or impoundment where the water temperature and other characteristics are suitable for the support of cold water fish.

Color: the true color of the water from which turbidity has been removed, or the apparent color of the water, including the color due to substances in solution or to suspended matter.

Constructed Wetland: a wetland intentionally created from non-wetland sites for the sole purpose of wastewater or storm water treatment.

Criteria: are elements of Tribal water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use. When criteria are met, water quality will generally protect the designated use.

Cultural Use: Cultural and ceremonial uses that utilize tribal water resources.

CWA: the Federal Clean Water Act (33 USC 1251 et seq.), as mentioned.

Designated Uses: those water uses identified by the Water Quality Standards that must be achieved and maintained as required under the Clean Water Act. Uses can include cold water fisheries, public water supply, recreation, and cultural/ceremonial uses.

Division: the Saint Regis Mohawk Tribe, Environment Division.

Director: the director of the Saint Regis Mohawk Tribe Environment Division.

Dissolved Oxygen or DO: the amount of oxygen dissolved in water or available for biochemical activity in water.

Effluent: the water and the quantities, rates, and concentrations of chemical, physical, biological, and other constituents discharged from a point source.

EPA: United States Environmental Protection Agency.

Existing Uses: those uses actually attained by a water body on or after November 28, 1975 whether or not they are included in the water quality standards.

Fish: all species of fish and shellfish and their eggs, offspring, and spawn.

Fishery: the complex communities of fishes and shellfishes dependent on adequate water quality, quantity, and habitat of water body; inclusive of cold water and warm water fisheries.

Flow: Volume of water passing through the cross sectional area of a stream (or river) per unit volume of time.

Groundwater: all subsurface water situated wholly or partly within or bordering upon the exterior boundaries of the Territory.

Hardness: measure of the calcium (Ca2+) and magnesium (Mg2+) and other divalent cations. For the purpose of these standards, hardness is measured in milligrams per liter (mg/l) and generalized as calcium carbonate (CaCO3).

Highest Attainable Use: is the modified aquatic life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable; based on the evaluation of the factor(s) in §131.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluate attainability. There is no required highest attainable use where the Tribe demonstrates the relevant use specified in section 101(a)(2) of the Act and sub-categories of such a use are not attainable.

Indigenous: a species having originated in and produced, growing, or living in a particular region or environment.

Intermittent Stream: a stream or stream reach that flows only when receiving water directly from springs, melting snow, or localized precipitation.

Milligrams per Liter (mg/l): the concentration at which one milligram is contained in a volume of one (1) liter.

Mixing Zone: an area where an effluent discharge undergoes initial dilution and is extended to cover the secondary mixing in the ambient water body. A mixing zone is an allocated impact zone where numeric water quality criteria can be exceeded but acutely toxic conditions are prevented from occurring.

NPDES Permit: a National Pollutant Discharge Elimination System permit issued pursuant to Section 402 of the Clean Water Act, 33 U.S.C. 1251-1387.

Narrative Standards: standards or criteria expressed in words rather than numbers.

Natural Background: the ambient water quality characteristics of waters void of human influence

Nonpoint Source Pollution: pollution conveyed to a water body, above ground or below, by rainfall and snowmelt. The origin of non-point source pollution can be a single activity, i.e. agriculture, livestock, construction, and parking lot runoff, or from regional actions like stream erosion.

Nutrient: Any substance assimilated by living things that promotes growth. The term is generally applied to nitrogen and phosphorus in wastewater, but is also applied to other essential and trace elements.

Pathogen Indicator Bacteria: surrogates used to measure the potential presence of fecal material and associated fecal pathogens. Indicator bacteria such as E. coli and enterococci are part of the intestinal flora of warm-blooded animals.

Pathogenic Bacteria and Viruses: bacteria and viruses capable of causing disease in humans.

Perennial Stream: a stream or stream reach that flows continuously throughout the year, the upper surface of which is generally lower than the water table of the region adjoining the stream.

Person: an individual, trust, firm, association, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever.

Persistent Bioaccumulative Toxics: are chemicals of particular concern for toxic effects, persistence in the environment, capable of long range transport, bioaccumulation in human and animal tissue, and potential for significant impacts on human health and ecosystems.

Point Source: any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which pollutants are or may be discharged, but not including return flows from agricultural irrigation.

Pollutant: dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological wastes, radioactive materials, heat, wrecked or discarded equipment, rock, sand, and industrial, municipal, and agricultural waste discharged into water.

Pollutant Minimization Program: is a structured set of activities to improve processes and pollutant controls that will prevent and reduce pollutant loadings.

Pollution: The presence in the environment of conditions and/or pollutants in quantities of characteristics that are or may be injurious to human, plant or animal life or to property or that unreasonable interfere with the comfortable enjoyment of life and property throughout such areas of the reservation as shall be affected thereby.

Potable Water: water that is safe for human consumption.

Primary Contact Recreation: the recreational use of a stream, river, lake, or impoundment involving prolonged contact and the risk of incidental ingestion of water in quantities sufficient to pose a health hazard; including but not limited to swimming, skin diving and water skiing.

Reach: a discrete section or sample population of a water body.

Regulations: the water quality standards and regulations promulgated here by the Tribe.

Secondary Contact Recreation: recreational uses such as boating and fishing that involve minor contact with water.

States: the fifty (50) states, the District of Columbia, Guam, the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.

Thermal Discharge: heated water discharges with the potential to alter the growth and existence of aquatic organisms.

Territory: all lands within the boundaries of the 1796 Treaty and all other lands over which the tribe has jurisdiction.

Toxic: the effect of substances upon exposure (ingestion, inhalation, or assimilation) either directly from the environment or through the food chains, that will, on the basis of information available to the Environment Division, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, including in reproduction, or physical deformation, in such organisms or their offspring.

Tribe: the Saint Regis Mohawk Tribe.

Tribal Surface Water: all water above the surface of the ground situated wholly or partly within or bordering upon the exterior boundaries of the Territory, including but not limited to lakes, ponds, artificial impoundments, streams, stream reaches, rivers, springs, seeps, and wetlands.

Turbidity: the extent to which light penetration in water is inhibited by the presence of suspended solids, expressed in nephelometric turbidity units (NTU) and measured with a properly calibrated instrument.

Use Attainability Analysis: a structured scientific assessment of the factors affecting the attainment of the various water uses, including but not limited to physical, chemical, biological, and economic factors such as those referred to in 40 C.F.R. §131.10(g).

Warm Water Fishery: a Tribal Surface Water which the water temperature and other characteristics are suitable for the support of warm water fish.

Waste Treatment: the activities and technological controls required to ensure that discharges of waste do not impair existing Tribal Water Quality Standards.

Water Quality Standards: the provisions of tribal law designating uses for the Tribal Surface Waters and specifying water quality criteria for such water based upon such uses, which standards are intended to protect the public health and welfare, protect Tribal treaty rights to hunt, fish, and gather, enhance the quality of water on the Territory, and serve the purposes of the Clean Water Act.

Water Quality Standards Variance (WQS variance): is a time-limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable condition during the term of the WQS variance.

Wildlife: any form of animal life living wild on the Territories, including but not limited to all wild mammals, birds, reptiles, and amphibians and their eggs, offspring and spawn.

Zone of Passage: the portion of the receiving water outside the mixing zone.

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5.02.030 Antidegradation Policy And Implementation Procedures, Mixing Zones, And Allowance For Compliance Schedules

(a) Antidegradation Policy:

This antidegradation standard shall be applicable to any action or activity by any source, point or nonpoint, of pollutants that is anticipated to result in an increased loading of pollutants to Tribal surface waters. Pursuant to this standard:

(1) Existing instream water uses, as defined herein, and the level of water quality necessary to protect existing uses shall be maintained and protected. Where designated uses of the water body are impaired, there shall be no lowering of the water quality with respect to the pollutant or pollutants which are causing the impairment;

(2) Where, for any parameter, the quality of the waters exceed levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the waters, that water shall be considered high quality for that parameter consistent with the definition of high quality water found at subsection of this antidegradation standard and that quality shall be maintained and protected unless the Tribe finds, after full satisfaction of Tribe's intergovernmental coordination and public participation provisions of the Tribe's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation, the Tribe shall assure water quality adequate to fully protect existing uses. Further, the Tribe shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control. The Tribe shall utilize the Antidegradation Implementation Procedures set forth below in determining if any lowering of water quality will be allowed;

(A) The Tribe identifies waters for the protections described in paragraph (a)(2) of this section on a parameter-by-parameter basis.

(B) Before allowing any lowering of high water quality, pursuant to paragraph (a)(2) of this section, the Tribe shall find, after an analysis of alternatives, that such a lowering is necessary to accommodate important economic or social development in the area in which the waters are located. The analysis of alternatives shall evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity. When the analysis of alternatives identifies one or more practicable alternatives, the Tribe shall only find that a lowering is necessary if one such alternative is selected for implementation.

(3) Where high quality waters constitute an outstanding national or tribal resource, such as waters of national and State parks and wildlife refuges and waters of exceptional recreational, religious or ecological significance, that water quality shall be maintained and protected; and

(4) In those cases where the potential lowering of water quality is associated with a thermal discharge, the decision to allow such degradation shall be consistent with Section 316 of the Clean Water Act (CWA).

(A) As described in Section B. below, the Tribe has developed methods for implementing the antidegradation policy that are, at a minimum, consistent with the Tribe's policy and with paragraph (a) of this section. The Tribe shall provide an opportunity for public involvement during the development and any subsequent revisions of the implementation methods, and shall make the methods available to the public.

(b) Antidegradation Implementation Procedures:

(1) Definitions.

(A) Control Document. Any authorization issued by a State, Tribal or Federal agency to any source of pollutants to waters under its jurisdiction that specifies conditions under which the source is allowed to operate.

(B) High quality waters. High quality waters are water bodies in which, on a parameter by parameter basis, the quality of the waters exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.

(C) Outstanding Resource Waters. Those waters designated as such by the Tribe. The Waters that may be considered for designation as Outstanding Resource Waters include, but are not limited to, water bodies that are recognized as:

(i) Important because of protection through official action, such as Tribal, Federal or State law, Presidential or secretarial action, international treaty, or interstate compact;

(ii) Having exceptional recreational significance;

(iii) Having exceptional ecological significance;

(iv) Having other special environmental, recreational, religious or ecological attributes; or waters whose designation as Outstanding Resource Waters is reasonably necessary for the protection of other waters so designated.

(D) Significant Lowering of Water Quality. A significant lowering of water quality occurs when there is a new or increased loading of any Persistent Bioaccumulative Toxics (PBT) from any regulated existing or new facility, either point source or nonpoint source for which there is a control document or reviewable action, as a result of any activity including, but not limited to:

(i) Construction of a new regulated facility or modification of an existing regulated facility such that a new or modified control document is required;

(ii) Modification of an existing regulated facility operating under a current control document such that the production capacity of the facility is increased;

(iii) Addition of a new source of untreated or pretreated effluent containing or expected to contain any PBT to an existing wastewater treatment works, whether public or private;

(iv) A request for an increased limit in an applicable control document;

(v) Other deliberate activities that, based on the information available, could be reasonably expected to result in an increased loading of any pollutant to Tribal surface waters.

(2) Notwithstanding the above, changes in loadings of any Persistent Bioaccumulative Toxic within the existing capacity and processes, and that are covered by the existing applicable control document, are not subject to an antidegradation review. These changes include, but are not limited to:

(A) Normal operational variability;

(B) Changes in intake water pollutants;

(C) Increasing the production hours of the facility, (e.g., adding a second shift); or

(D) Increasing the rate of production.

(3) Also, excluded from an antidegradation review are new effluent limits based on improved monitoring data or new water quality criteria or values that are not a result of changes in pollutant loading.

(4) For all waters, the Environment Division shall ensure that the level of water quality necessary to protect existing uses is maintained. In order to achieve this requirement, water quality standards use designations must include all existing uses. Controls shall be established as necessary on point and nonpoint sources of pollutants to ensure that the criteria applicable to the designated use are achieved in the water and that any designated use of a downstream water is protected. Where water quality does not support the designated uses of a water body or ambient pollutant concentrations exceed water quality criteria applicable to that water body, the Environment Division shall not allow a lowering of water quality for the pollutant or pollutants preventing the attainment of such uses or exceeding such criteria.

(5) For Outstanding Resource Waters:

(A) The Environment Division shall ensure, through the application of appropriate controls on pollutant sources, that water quality is maintained and protected.

(B) Exception. A short-term, temporary (i.e., weeks or months) lowering of water quality may be permitted by the Environment Division (or US EPA where SRMT is the permittee).

(C) For Natural State, high quality waters, the Environment Division shall ensure that no action resulting in a lowering of water quality occurs unless an antidegradation demonstration has been completed pursuant to Section C and the information thus provided is determined by the Environment Division pursuant to Section B of this Antidegradation Standard to adequately support the lowering of water quality.

(6) The Environment Division or EPA shall establish conditions in the control document applicable to the regulated facility that prohibit the regulated facility from undertaking any deliberate action, such that there would be an increase in the rate of mass loading of any pollutant, unless an antidegradation demonstration is provided to the Environment Division and approved pursuant to Section D prior to commencement of the action. Imposition of limits due to improved monitoring data or new water quality criteria or values, or changes in loadings of any pollutant within the existing capacity and processes, and that are covered by the existing applicable control document, are not subject to an antidegradation review.

(7) For PBTs known or believed to be present in a discharge, from a point or nonpoint source, a monitoring requirement shall be included in the control document. The control document shall also include a provision requiring the source to notify the Environment Division of any increased loadings. Upon notification, the Environment Division shall require actions as necessary to reduce or eliminate the increased loading.

(8) Fact Sheets prepared for public review and comment shall reflect any conditions developed under this Antidegradation Standard and included in a permit.

(9) Exemptions. Except as the Environment Division may determine on a case- by-case basis that the application of these procedures is required to adequately protect water quality, or as the affected water body is an Outstanding Resource Water as defined in Section B of this Antidegradation Standard, the procedures in this part do not apply to:

(A) Short-term, temporary (i.e., weeks or months) lowering of water quality;

(B) Bypasses that are not prohibited at 40 CFR 122.41(m); and

(C) Response actions pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended, or similar Federal, State or Tribal authorities, undertaken to alleviate a release into the environment of hazardous substances or pollutants which may pose an imminent and substantial danger to public health or welfare.

(c) Antidegradation Demonstration:

Any entity seeking to lower water quality in a High Quality Water must first, as required by Section B of this Antidegradation Standard, submit an antidegradation demonstration for consideration by the Environment Division. The antidegradation demonstration shall include the following:

(1) Pollution Prevention Alternatives Analysis. Identify any cost-effective pollution prevention alternatives and techniques that are available to the entity, that would eliminate or significantly reduce the extent to which the increased loading results in a lowering of water quality.

(2) Alternative or Enhanced Treatment Analysis. Identify alternative or enhanced treatment techniques that are available to the entity that would eliminate the lowering of water quality and their costs relative to the cost of treatment necessary to achieve applicable effluent limitations.

(3) Important Social or Economic Development Analysis. Identify the social or economic development and the benefits to the area in which the waters are located that will be foregone if the lowering of water quality is not allowed.

(4) Special Provision for Remedial Actions. Entities proposing remedial actions pursuant to the CERCLA, as amended, corrective actions pursuant to the Resource Conservation and Recovery Act, as amended, or similar actions pursuant to other Federal, State or Tribal environmental statutes may submit information to the Environment Division that demonstrates that the action utilizes the most cost effective pollution prevention and treatment techniques available, and minimizes the necessary lowering of water quality, in lieu of the information required by Section B of this Antidegradation Standard.

(d) Antidegradation Decision:

Once the Environment Division determines that the information provided by the entity proposing to increase loadings is administratively complete, the Environment Division shall use that information to determine whether or not the lowering of water quality is necessary, and, if it is necessary, whether or not the lowering of water quality will support important social and economic development in the area. If the proposed lowering of water quality is either not necessary, or will not support important social and economic development, the Environment Division shall deny the request to lower water quality. If the lowering of water quality is necessary, and will support important social and economic development, the Environment Division may allow all or part of the proposed lowering to occur as necessary to accommodate important social and economic development.

(e) Mixing Zones:

(1) Where effluent is discharged into surface waters, a continuous zone shall be maintained in which the water is of adequate quality to allow the migration of aquatic life with no significant effect on their population. The cross-sectional zone area of wastewater mixing zones shall generally be less than 1/4 of the cross-sectional area or flow volume of the receiving river, stream or lake. Unmixed zones containing permitted effluent shall not be at locations of recreational or ceremonial use. (See Section V, below.) Water quality standards shall be maintained throughout Zones of Passage. Zones of passage in intermittent streams may be designated on a site specific basis. The water quality in a Zone of Passage shall not fall below standards for the designated water body(ies) within which the zone is contained.

(2) Mixing zones will not be granted for discharges to outstanding resource water, wetlands, or ephemeral or intermittent streams.

(3) Mixing zones will not be granted for Persistent Bioaccumulative Toxics (PBT) consistent with the requirements of 40 CFR Part 132. See appendix 1. Waste Load Applications (WLAs) in the absence of TMDLs, and WLAs for the purposes of determining the need for water quality based effluent limits (WQBELs) for new discharges of PBTs shall be set equal to the most stringent applicable criteria or values for the PBTs in question.

(4) Mixing zones shall not be used for, or considered as, a substitute for waste treatment.

(f) Allowance for Compliance Schedules

NPDES permits, and other orders and directives of the Division issued under Tribal Council, for existing discharges or activities may include a schedule for achieving compliance with water quality criteria contained herein, consistent with the requirements of 40 CFR Parts 131.15 and 132. These compliance schedules shall be developed to ensure compliance with the water quality standards set forth in the shortest practicable time period, not to exceed five years. Decisions regarding whether to issue compliance schedules will be done on a case-by-case basis by the Tribal Council and approved by the Division, or the EPA where appropriate. These schedules will not be issued for new discharges or activities.

(g) Water Quality Standards Variances

It is the SRMT's policy that a water quality standards variance is only appropriate when a designated use is not attainable in the short-term but might be attainable in the long-term. The SRMT may consider a temporary modification to a designated use and associated water quality criteria that would otherwise apply.

(1) Applicability: A variance from any WQS that is the basis of a water quality-based effluent limitation included in a Permit is based on the following:

(A) A variance from WQS applies only to the permittee requesting the WQS variance, the water body/waterbody segment(s) specified in the WQS variance and only to the pollutant or pollutants specified in the WQS variance.

(B) A WQS variance does not affect, or require the SRMT to modify, in its standards, the underlying designated use and criterion address by the WQS variance, unless the SRMT adopts and EPA approves a revision to the underlying designated use and criterion consistent with §131.10 and §131.11. All other applicable standards not specifically addressed by the WQS variance remain applicable.

(C) A variance does not affect, or require SRMT to modify, the corresponding water quality standard for the waterbody as a whole.

(D) A WQS variance, once adopted by the SRMT and approved by EPA, shall be the applicable standard for purposes of the CWA under 40 CFR 131.21(d)-(e), for the following limited purposes. An approved WQS variance applies for the purposes of developing permit limits and requirements under 301(b)(1)(C), where appropriate, consistent with paragraph (a)(1) of this section. The SRMT and other certifying entities may also use an approved WQS variance when issuing certifications under section 401 of the CWA.

(E) A variance from a water quality standard shall not be granted that would likely jeopardize the continued existence of any endangered or threatened species listed under Section 4 of the Federal Endangered Species Act (ESA) Act or result in the destruction or adverse modification of such species' critical habitat.

(F) A variance from WQS shall not be granted if standards will be attained by implementing effluent limits required under sections 301(b) and 306 of the CWA and by the permittee implementing cost-effective and reasonable best management practices for nonpoint source control.

(2) The maximum timeframe: A variance from the WQS shall not exceed five (5) years or the term of the permit, whichever is less. The SRMT will review, and modify as necessary, variances from WQS as part of each water quality standards review pursuant to section 303(c) of the CWA.

(3) Conditions to grant: A variance from the WQS may be granted if, and only if:

(A) The permittee demonstrates to the SRMT that attaining the WQS is not feasible because:

(i) Naturally occurring pollutant concentrations prevent the attainment of the WQS;

(ii) Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the WQS, unless these conditions may be compensated for by the discharge of sufficient volume of effluent to enable WQS to be met without violating the SRMT's water conservation requirements;

(iii) Human-caused conditions or sources of pollution prevent the attainment of the WQS and cannot be remedied, or would cause more environmental damage to correct than to leave in place;

(iv) Dams, diversions or other types of hydrologic modifications preclude the attainment of the WQS, and it is not feasible to restore the waterbody to its original condition or to operate such modification in a way that would result in the attainment of the WQS;

(v) Physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate cover, flow, depth, pools, riffles, and the like, unrelated to chemical water quality, preclude attainment of WQS; or

(vi) Controls more stringent than those required by sections 301(b) and 306 of the CWA would result in substantial and widespread economic and social impact.

(B) The permittee shall also:

(i) Show that the WQS variance requested conforms to the requirements of the antidegradation procedures in Section III.A; and

(ii) Characterize the extent of any increased risk to human health and the environment associated with granting the WQS variance compared with compliance with WQS absent the variance, such that the SRMT is able to conclude that any such increased risk is consistent with the protection of the public health, safety and welfare.

(4) Requirements for Submission of Application to the SRMT:

(A) An application for a WQS variance must include:

(i) Identification of the pollutant(s) or water quality parameter(s), and the water body/waterbody segment(s) to which the WQS variance applies. Discharger(s)-specific WQS variances must also identify the permittee(s) subject to the WQS variance.

(ii) The requirements that apply throughout the term of the WQS variance. The requirements shall represent the highest attainable condition of the water body or waterbody segment applicable throughout the term of the WQS variance based on the documentation required in (d)(2) of this section. The requirements shall not result in any lowering of the currently attained ambient water quality, unless a WQS variance is necessary for restoration activities, consistent with paragraph (d)(2)(A)(i)(b) of this section. DPNR must specify the highest attainable condition of the water body or waterbody segment as a quantifiable expression that is one of the following:

(I) For discharger(s)-specific WQS variances:

(a) The highest attainable interim criterion, or

(b) The interim effluent condition that reflects the greatest pollutant reduction achievable, or

(c) If no additional feasible pollutant control technology can be identified, the interim criterion or interim effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the Territory adopts the WQS variance, and the adoption and implementation of a Pollutant Minimization Program.

(II) For WQS variances applicable to a water body or waterbody segment:

(a) The highest attainable interim use and interim criterion, or

(b) If no additional feasible pollutant control technology can be identified, the interim use and interim criterion that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the Territory adopts the WQS variance, and the adoption and implementation of a Pollutant Minimization Program.

(iii) A statement providing that the requirements of the WQS variance are either the highest attainable condition identified at the time of the adoption of the WQS variance.

(iv) The term of the WQS variance, expressed as an interval of time from the date of the SRMT approval or a specific date. The term of the WQS variance must only be as long as necessary to achieve the highest attainable condition and consistent with the demonstration provided in paragraph (d)(2) of this section. The SRMT may adopt a subsequent WQS variance consistent with this section.

(B) The supporting documentation must include:

(i) Documentation demonstrating the need for a WQS variance.

(I) For a WQS variance to a use specified in section 101(a)(2) of the CWA or a sub-category of such a use, the SRMT must demonstrate that attaining the designated use and criterion is not feasible throughout the term of the WQS variance because:

(a) All relevant information demonstrating that attaining the WQS is not feasible based on one or more of the conditions in §186-14 (c)(1) herein; or

(b) Actions necessary to facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration activities preclude attainment of the designated use and criterion while the actions are being implemented.

(II) For a WQS variance to a non-101(a)(2) use, the SRMT must submit documentation justifying how its consideration of the use and value of the water for those uses listed in § 131.10(a) appropriately supports the WQS variance and term. A demonstration consistent with (d)(2)(A)(i) of this section may be used to satisfy this requirement.

(ii) Documentation demonstrating that the term of the WQS variance is only as long as necessary to achieve the highest attainable condition. Such documentation must justify the term of the WQS variance by describing the pollutant control activities to achieve the highest attainable condition, including those activities identified through a Pollutant Minimization Program, which serve as milestones for the WQS variance.

(iii) In addition to (A) and (B) of this section, for a WQS variance that applies to a water body or waterbody segment:

(I) Identification and documentation of any cost-effective and reasonable best management practices for nonpoint source controls related to the pollutant(s) or water quality parameter(s) and water body or waterbody segment(s) specified in the WQS variance that could be implemented to make progress towards attaining the underlying designated use and criterion. DPNR must provide public notice and comment for any such documentation.

(II) Any subsequent WQS variance for a water body or waterbody segment must include documentation of whether and to what extent best management practices for nonpoint source controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved.

(iv) All relevant information demonstrating compliance with the conditions in (c)(2) herein.

(5) Implementing WQS variances in NPDES permits: A WQS variance serves as the applicable water quality standard for implementing permitting requirements pursuant to 40 CFR § 122.44(d) for the term of the WQS variance. Any limitations and requirements necessary to implement the WQS variance shall be included as enforceable conditions of the permit for the permittee(s) subject to the WQS variance.

(6) Public notice of preliminary decision: Upon receipt of a complete application for a variance from the WQS, and upon making a preliminary decision regarding the WQS variance, the SRMT shall public notice the request and preliminary decision for public comment. This public notice will be satisfied by including the supporting information for the variance from the WQS and the preliminary decision in the public notice of a draft TPDES permit.

(7) Final decision: The SRMT will issue a final decision on a WQS variance request within 90 days of the expiration of the public comment period required in accordance with the permit. If the SRMT approves all or part of the variance from the WQS, the decision shall include all permit conditions needed to implement those parts of the WQS variance as approved. Such permit conditions shall, at a minimum, require:

(A) Compliance with an initial effluent limitation which, at the time the variance from the WQS is granted, represents the level currently achievable by the permittee, and which is no less stringent than that achieved under the previous permit;

(B) Achieving reasonable progress toward attaining the water quality standards for the waterbody as a whole through appropriate conditions;

(C) When the duration of a variance from the WQS is shorter than the duration of a permit, compliance with an effluent limitation sufficient to meet the underlying water quality standard, upon the expiration of said WQS variance; and

(D) A provision that allows the SRMT to reopen and modify or revoke any condition granted in a WQS variance due to the permittee not providing relevant information that reasonable would affect the decision process.

(8) Incorporating the WQS variance: The SRMT will establish and incorporate into the permittee's permit all conditions needed to implement the variance from the WQS as determined in (g) herein.

(9) Renewal of WQS variance: A WQS variance may be renewed, subject to the requirements of (a) through (h) herein. As part of any renewal application, the permittee shall again demonstrate that attaining the WQS is not feasible based on the requirements of (c). The permittee's application shall also contain information concerning its compliance with the conditions incorporated into its permit as part of the original variance from the WQS pursuant to (g) through (h) herein. Renewal of a WQS variance may be denied if the permittee did not comply with the conditions of the original WQS variance.

(10) EPA Approval: The SRMT shall submit all variances from the WQS and supporting information to EPA Region 2 for approval. The submittal shall include:

(A) Relevant permittee applications pursuant to (d),

(B) Public comments and records of any public hearings pursuant to (f),

(C) The final decision pursuant to (g) of this procedure, and

(D) Permits issued pursuant to (h) of this procedure.

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5.02.040 General Conditions

(a) General Conditions

The following conditions shall apply to the water quality criteria and classifications set forth herein.

(1) All Tribal Surface Waters shall be free from pollutants in concentrations or combinations that do not protect the most sensitive use of the water body, except as provided under mixing zones.

(2) Whenever the natural conditions of surface water of the Tribe are of a lower quality than the aquatic life criteria assigned, the Division may determine that the natural conditions shall constitute the aquatic life water quality criteria. If a natural condition varies with time, the natural condition will be determined as the highest quality prevailing natural condition measured during an annual, seasonal, or shorter time period prior to influence of human-caused pollution. The Division may, at its discretion, determine a natural condition for one or more seasonal or shorter time period(s) to reflect variable ambient conditions.

(3) All waters shall attain and maintain a level of water quality that provides for the attainment and maintenance of the water quality standards of downstream waters. At the boundary between waters of different classifications, the water quality standards that are more stringent will prevail. When a distinction cannot be made between surface water, wetlands, groundwater, or sediments, then the applicable standards shall depend upon which existing or designated use is, or could be, adversely affected. If the uses of more than one resource are affected, than the most protective criteria shall apply.

(4) The Division may revise criteria on a territory-wide or water body-specific basis as needed to protect aquatic life and human health and other existing and designated uses, and also to increase the technical accuracy of the criteria being applied. The Division shall formally adopt any revised criteria following public review and comment.

(b) General Narrative and Numeric Criteria

The following Narrative Criteria apply to all Tribal Surface Waters of the Saint Regis Mohawk Tribe, including intermittent streams and within designated mixing zones.

(1) Suspended, colloidal and settleable solids: Tribal surface waters shall be free from suspended, colloidal and settleable solids that will cause deposition or impair the waters for their designated uses.

(2) Oil, grease and any floating substances: Tribal Surface Waters shall be free from oil and grease, including visible oil film and globules of oil.

(3) Color: Tribal Surface Waters shall be free from substances that will adversely affect the color or impair the water of their designated uses. Color-producing substances from other than natural sources are limited to concentrations equivalent to 15 color units (CU).

(4) Odor and Taste: Tribal Surface Waters shall be free from substances that will adversely affect the taste, odor thereof, or impair the water of their designated uses.

(5) Nitrogen and Phosphorus: Tribal Surface Waters shall be free from nutrients in concentrations that will result in growths of algae, weeds and slimes that will impair their designated uses.

(6) Pathogens: Designated Uses of Tribal Surface Waters shall not be impaired by pathogens, as measured by Pathogen Indicator Bacteria, pursuant to SRMT swimming and bathing criteria in Section VI(A).

(7) Turbidity: Turbidity attributable to other than natural causes, shall not reduce light transmission to a point that causes an unaesthetic and substantial visible contrast with the natural appearance of the water.

(8) Temperature Thermal discharge: The introduction of heat by other than natural causes shall not increase the temperature in a stream, outside a mixing zone, by more than 2.7°C (5°F), based upon the monthly average of the maximum daily temperatures measured at mid-depth or three feet (whichever is less) outside the mixing zone. The normal daily and seasonal variations that were present before the addition of heat from other than natural sources shall be maintained. In no case shall man-introduced heat be permitted when the maximum temperature specified for the reach (20°C/68°F for cold water fisheries and 32.2°C/90°F for warm water fisheries) would thereby be exceeded.

(A) Exclusions. Privately owned ponds that do not combine with other Tribal Surface Waters are exempt from this thermal discharge standard. However, waters released from any such pond into a stream or river must meet Tribal Water Quality Standards of the receiving water body.

(9) Salinity/Mineral Quality (total dissolved solids, chlorides, and sulfates): Existing mineral quality shall not be altered by municipal, industrial, and instream activities, or other waste discharges so as to interfere with the designated uses for a water body. An increase of more than 1/3 over naturally-occurring levels shall not be permitted. In no case shall dischargers cause concentrations in rivers with a domestic water supply use to exceed 250 mg/l of chlorides, 250 mg/l sulfates and 500 mg/l total dissolved solids.

(10) pH: The pH of Tribal Surface Waters shall not be permitted to fluctuate in excess of 1.0 unit over a period of 24 hours for other than natural causes or outside the range 6.5-8.5

(11) Garbage, cinders, ashes, sludge, concrete wash and other refuse: Tribal Surface waters shall be free of these items in any amount.

(12) Dissolved Oxygen: The DO standard for the protection of aquatic life in surface waters shall not be less than a daily average of 6.0 mg/l, and at no time less than 5.0. For water bodies used as spawning habitat by cold water fishes (e.g. salmonids) the DO standard shall be no less than 7.0 mg/l from other than natural conditions.

(13) Flow: There shall be no alteration of flow that will impair the waters for their designated uses.

(14) Radioactivity: The Radioactivity should be kept at the lowest practicable levels, and in any event should be controlled to the extent necessary to prevent harmful effects on health.

(c) Toxic Substances:

(1) Toxic substances shall not be present in receiving waters in quantities that are toxic to humans or aquatic life, or in quantities that interfere with normal propagation, growth, and survival of sensitive indigenous aquatic life. For toxic substances lacking published criteria, bioassay data for sensitive indigenous test species/lifestages may be used to determine compliance with these narrative criteria

(2) Standards for toxic substances are listed in Appendix 1.

(3) Note that any future standards which may be derived for toxic substances, and added to Appendix 1, shall be as protective as those which would be derived using the methodologies for calculating water quality criteria found in 40 CFR Part 132.

(4) SRMT Applicable or Relevant and Appropriate Requirements (ARARs) for Polychlorinated Biphenyls (PCBs):

SRMT has an ARAR specific to a class of pollutants called Polychlorinated Biphenyls (PCBs) (TCR NO. 89-19). The ARARs are applicable to ambient conditions and cleanup standards as follows:

Media Concentration

Sediments 0.1 ug/kg

Soils 1.0 ug/g

Surface Waters 1.0 pg/l

Groundwaters 10.0 pg/l

Air 5.0 ng/m3

(d) Biological Criteria:

(1) All surface waters of the Tribe shall be of sufficient quality to support aquatic life without detrimental changes in the resident aquatic communities.

(2) Tribal surface waters shall be free from substances, whether attributable to point sources discharges, nonpoint sources, or instream activities, in concentrations or combinations which would impair the structure or limit the function of the resident aquatic community as it naturally occurs.

(3) Determination of impairment or limitation of the resident aquatic community shall be based on a comparison with the aquatic community found at an appropriate reference site or region.

(e) Wildlife Criteria:

(1) All surface waters of the Saint Regis Mohawk Tribe shall be of sufficient quality to protect and support all life stages of resident and/or migratory wildlife species which live in, on, or near the waters of the Akwesasne Territory.

(2) Specific Wildlife-based Standards for toxic substances are listed in Appendix 1.

(f) Wetlands:

(1) All wetlands within the exterior boundaries of the territory that are not constructed wetlands shall be subject to the Narrative Criteria (this section, subsection (b)), Antidegradation (section 2) and the Saint Regis Mohawk Tribe Wetlands Protection Act. www.srmtenv.org/wetlands

(2) Water quality in wetlands shall be maintained at naturally occurring levels, within the natural range of variation for the individual wetland, unless otherwise specified and approved by the Environment Division.

(3) Physical and biological characteristics shall be maintained and protected by:

(A) Maintaining hydrological conditions, including hydroperiod, hydrodynamics, and natural water temperature variations;

(B) Maintaining the natural hydrophytic vegetation;

(C) Maintaining substrate characteristics necessary to support existing and designated uses.

(4) Point and Nonpoint sources of pollution shall not cause destruction or impairment of wetlands except where authorized under Section 404 of the CWA.

(5) Natural wetlands shall not be used as repositories or treatment systems for wastes from human sources.

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5.02.050 Water Body Classifications And Standards Specific To Uses

(a) Water Body Classifications by Environmental Conditions

(1) Class N, Natural State

The designated uses of Class N waters include: the enjoyment of water in its natural condition and, where compatible, as a source of water for drinking or culinary purposes, bathing, fishing, fish, shellfish, and wildlife propagation and survival, primary and secondary contact recreation, and ceremonial use.

There shall be no discharge of sewage, industrial wastes, or other wastes, waste effluents or any sewage effluents not having had filtration resulting from at least 200 feet of lateral travel through unconsolidated earth. A greater distance may be required if inspection shows that, due to peculiar geologic conditions, this distance is inadequate to protect the water from pollution. These waters shall contain no deleterious substances, hydrocarbons or substances that would contribute to eutrophication, nor shall they receive surface runoff containing any such substance.

(2) Class AA-Special

The designated uses of Class AA-S waters include: a source of water supply for drinking, culinary or food processing purposes, primary and secondary contact recreation, fishing, and ceremonial use, and fish, shellfish, and wildlife propagation and survival.

These waters shall contain no floating solids, settleable solids, oil, sludge deposits, toxic wastes, deleterious substances, colored or other wastes or heated liquids attributable to sewage, industrial wastes or other wastes. There shall be no discharge or disposal of sewage, industrial wastes or other wastes into these waters.

(3) Class A-Special

The designated uses of Class A-S waters include: a source of water supply for drinking, culinary or food processing purposes, primary and secondary contact recreation, fishing, ceremonial use, and fish, shellfish, and wildlife propagation and survival.

This classification may be given to those international boundary waters that, if subjected to approved treatment, equal to coagulation, sedimentation, filtration and disinfection with additional treatment, if necessary, to reduce naturally present impurities, meet or will meet EPA drinking water standards and are or will be considered safe and satisfactory for drinking water purposes.

(4) Class AA

The designated uses of Class AA waters include: a source of water supply for drinking, culinary or food processing purposes, primary and secondary contact recreation, fishing, ceremonial use, and fish, shellfish, and wildlife propagation and survival.

This classification may be given to those waters that, if subjected to approved disinfection treatment, with additional treatment if necessary, to remove naturally present impurities, meet or will meet EPA-drinking water standards and are or will be considered safe and satisfactory for drinking water purposes.

(5) Class A

The designated uses for Class A waters include: source of water supply for drinking, culinary or food processing purposes, primary and secondary contact recreation, fishing, ceremonial use and fish, shellfish and wildlife propagation and survival.

This classification may be given to those waters that, if subjected to approved treatment equal to coagulation, sedimentation, filtration and disinfection, with additional treatment if necessary, to reduce naturally present impurities, meet or will meet US Environmental Protection Agency drinking water standards and are or will be considered safe and satisfactory for drinking water purposes.

(6) Class B

The designated uses for Class B waters include: primary and secondary contact recreation, ceremonial use, fish, shellfish and wildlife propagation and survival, and fishing.

(7) Class C

The designated uses for Class C waters include: primary and secondary contact recreation, ceremonial use, and fish, shellfish and wildlife propagation and survival, and fishing.

However, due to such natural conditions as intermittency of flow, water conditions not conducive to propagation of game fishery, or stream bed conditions, the waters may not support fish propagation, primary and secondary contact recreation or ceremonial uses.

(b) Designated Fisheries

(1) Cold Water Fishery. A cold water fishery is a water body where water temperature and other characteristics provide for propagation and survival of cold water fish (e.g. family Salmonidae).

(2) Warm Water Fishery: A warm water fishery is a water body where water temperature and other characteristics provide for propagation and survival and propagation of warm water fish (e.g. families Centrachidae, Esocidae and others).

(c) Groundwater

(1) Class GA

The designated use of Class GA waters is as a source of potable water supply. Class GA waters are fresh ground waters.

(2) Class GSA

The designated uses include: a source of potable mineral waters, or conversion to fresh potable waters, or as raw material for the manufacture of sodium chloride or its derivatives or similar products. Class GSA waters are saline ground waters.

In addition to the classes specified above please see Table 1 below for addition information on Designated Uses.

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5.02.060 Designated Uses

(a) Primary Contact Recreation and Ceremonial Use.

Primary contact recreation and ceremonial use means the use of a stream, river, or impoundment involving the following: prolonged contact and the risk of ingesting water in quantities sufficient to pose a health hazard (including but not limited to swimming, skin diving and water skiing) or religious, cultural, and traditional activities of the members of the Saint Regis Mohawk Tribe and Mohawk Council of Akwesasne, or citizens of the Mohawk Nation Council of Chiefs (including but not limited to collection of medicinal plants and collection of water for ceremonial use).

Standards specific to the use are as follows:

(1) The open water shall be free from algae in concentrations causing nuisance conditions, or gastrointestinal illness or skin disorders.

(2) E. coli. Levels shall not exceed a 30-day geometric mean of 126 per 100 ml, nor shall more than 10 percent of the samples collected in the same 30 days exceed 410 CFU/100 ml.

Table 1. Designated Uses

The Designated Uses described herein shall not be used to limit any treaty right of the Saint Regis Mohawks or Mohawk Nation Council of Chiefs.

Below is a list of Designated Uses for the three major rivers within the boundaries of the Saint Regis Indian Reservation and are presented here to give examples of current Tribal uses specific to each water body. The water bodies are classified as follows: St Lawrence River, Class A-S; Raquette River, Class B; and St. Regis River, Class B. This is not intended to be exhaustive list of uses for these water bodies.

* It is estimated that during times of peak flow the Raquette River mixes with the St Lawrence at the point of intake for the SRMT drinking water treatment plant and provides a maximum contribution of approximately 15% to the SRMT drinking water intake. Under normal flow conditions it is estimated that this contribution is reduced to between 0% and 2% of daily intake.

** Subsistence fish consumption has been an ongoing practice; however, the current WQ does not does not support this use for all individuals. Women of child bearing age and children are advised to restrict consumption to certain species and reduced quantities (fewer than 8, 4 oz. portions per month). SRMT currently defines subsistence fishing as consuming locally caught fish at a daily average rate of 150g/dy or 40 portions per month.

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5.02.070 Sampling And Analysis

(a) Sample Collection, Preservation, and Analysis

Sample collection, preservation, and analysis used to determine compliance with the water Quality Standards set forth in this document and maintain the standards set forth in the Water Quality Standards this document MUST meet the minimal requirements and consistency of procedures of any of the following:

(1) Saint Regis Mohawk Tribe, Environment Division, Quality Assurance Management Plan;

(2) American Public Health Association, Standard Methods for the Examination of Water and Wastewater; or

(3) EPA Guidelines Establishing Test Procedures for the Analysis of Pollutants or Guidance for Assessing Chemical Pollutant Data for Use in Fish Advisories

(b) Bacteriological Surveys

The levels of pathogens or pathogen indicator bacteria, in terms of monthly descriptive statistics verified by a peer review process, shall be used in assessing attainment of standards. Limited data sets of less than five samples (collected in a 30 day period) shall meet a stricter standard of acceptability (e.g. 95% confidence limit).

(c) Sampling Procedures

Sample procedures shall comply with SRMT standards for data quality. Contact the Environment Division for information on Data Quality Objectives, Quality Assurance Project Plans, and Data Quality Management.

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Appendix 1

1 Water Quality Standards For Taste, Color, Odor Producing, Toxic And Other Deleterious Substances In Surface Water And Groundwater

A. Regulated substances.

Water quality standards for specific substances or groups of substances are listed below in Table 1 of Appendix 1 for the applicable water classes. The substance name is listed with the associated Chemical Abstract Service Registry Number (CAS No.) where applicable. For entries in Table 1 and Table 2 of Appendix 1 that refer to chemical groups, congeners or other expressions of multiple substances, the standard applies to the sum of the substances, unless otherwise indicated.

B. Criteria.

Where more than one Type of standard is listed for a water class, the most stringent applies. These standards, denoted in the column headed "Type," are as follows:

Health (Water Source) H(WS)

Health (Fish Consumption) H(FC)

Aquatic (Chronic effects)¹ A(C)

Aquatic (Acute effects)² A(A)

Wildlife W

Aesthetic E

Recreation R

Additional Codes *Code

Cancer C

Non-Cancer NC

^FN1: the four-day average concentration not to be exceeded more than once every three years on the average.

^FN2: the one-hour average concentration not to be exceeded more than once every three years on the average.

C. Units

The standard is the maximum allowable concentration in micrograms per liter (ug/L), unless otherwise noted. A standard defined by the symbol "ND" means not detectable by the analytical tests specified.

D. Other

Special interpretive remarks are provided as necessary.

Table 1.a. Selenium Aquatic Life Criteria for Fresh Waters

2 Groundwater effluent limitations for discharges to Class GA waters

A. The effluent limitations in Table 2 (below) apply to all dischargers to ground waters of the Tribe. Unless a demonstration is made to the contrary, it shall be presumed that a discharge to the ground or unsaturated zone is a discharge to groundwater. The groundwater effluent limitation is the maximum allowable concentration in micrograms per liter (ug/L), unless otherwise noted.

B. In addition to the chemical characteristics provided in Appendix 11, coliform or pathogenic organisms shall not be discharged in amounts sufficient to render ground waters detrimental to public health, safety or welfare.

C. The Division may establish additional groundwater effluent limitations.

D. The groundwater effluent limitations shall be incorporated in NPDES permits for discharges to ground waters, where applicable.

Chapter 5.03 Solid Waste Management Code

5.03.010

(a) INTRODUCTION

It is the tradition of the Mohawk People to look generations forward in planning. It is with this foresight that the Saint Regis Mohawk Tribe Solid Waste Management Code ("Code") is intended.

Solid waste disposal practices need to be maintained in good harmony with Mother Earth since these practices will have an effect on the future generations inheriting this land. Adherence to this chapter will ensure that best practices for solid waste management are maintained.

(b) AUTHORITY

The Saint Regis Mohawk Tribe ("Tribe" or "SRMT") has the inherent authority to manage and regulate the storage, collection, transportation, handling, treatment and disposal of solid waste in a manner which best protects Mother Earth, her natural resources, and the health, welfare, and economic security of this generation of Mohawk People and the generations to follow.

The Tribe retains the inherent sovereign power to exercise civil authority and jurisdiction over the conduct of both Tribal and non-Tribal members on all lands within the Saint Regis Mohawk Indian Reservation ("Reservation"). These civil actions will be taken when necessary to maintain the environment, natural resources, public health, safety, welfare, political integrity and economic security of the Tribe.

(c) PURPOSE

This chapter does not allow for the improper disposal of any Solid Waste on the Reservation. Improper disposal or creating an Open Dump of any Solid Waste materials or recyclables, whether on the side of the road, in the Community Recycling Depot, or anywhere that they should not be disposed of, will be considered a violation of the Code. Disposal of such Solid Waste or creating an Open Dump site is different than someone who litters as outlined in the Saint Regis Mohawk Tribe Traffic Code Section III(5)(f) (TCR 2018-09 or as amended).

It is the intent of this chapter to create a comprehensive integrated waste management policy that requires all solid waste to be disposed of properly at management facilities on and off the Reservation. This chapter encourages Mohawk People to reduce, recycle and reuse those materials that do not belong in the waste stream. Education of the community through diverse media has been a continuing process, aimed at eliminating the poor solid waste disposal practices of the past.

The Code intends to:

(1) Protect the health and safety of Tribal members and all other persons within the Reservation;

(2) Protect the cultural, social and economic stability of residential, agricultural, commercial, industrial, forest, riparian, and environmentally sensitive lands within the Reservation;

(3) Protect the historical and cultural values and traditions of the Tribe, Mohawk land as a permanent Tribal homeland, and maintain its aboriginal character;

(4) Prevent solid waste pollution, including contamination of the Tribe's groundwater, surface waters, drinking water supplies, and all other natural resources;

(5) Prevent the deterioration of the environment, standard of living, quality of life, welfare and well-being of all persons within the Reservation; and

(6) Provide and promote Tribal waste management efficiency and services within the Reservation.

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5.03.020

(a) DEFINITIONS

Unless otherwise provided or the context requires another definition, the definitions set forth in Section 5.03.020(a) shall apply to the terms used throughout this chapter.

(1) Closure

The termination of the receiving, handling, recycling, treatment, composting, or disposal of solid wastes at a management facility. It shall include all operations necessary to prepare the management facility for post-closure maintenance.

(2) Conditionally Exempt Small Quantity Generators

Facilities that produce less than 100 kg (220.5 lbs.) of hazardous waste, or less than 1 kg (2.205 lbs.) of acutely hazardous waste per calendar month.

(3) Collection

The act of collecting solid wastes by a SRMT permitted Hauler.

(4) Construction

The erection or building of new structures and the acquisition, replacement, expansion, remodeling, alteration, modernization, or extension of existing structures.

(5) Director

The Director (person in charge) of the Tribe's Environment Division.

(6) Disposal

The discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or on any land or water so that such solid waste or any constituent thereof may enter the environment or be emitted into the air, or discharged into any waters, including surface waters or ground waters.

(7) Environment Division

The Division of the Tribe whose mission is to preserve, protect, restore, and enhance the community of Akwesasne for the present and future generations.

(8) Farm

A facility that raises or harvests any agricultural or horticultural commodity through the cultivation of the soil, aquaculture product or the raising, shearing, feeding, caring for, training or management of livestock, bee, poultry, fur bearing animals, fish, domestic animals or wildlife.

(9) Financial Mechanism

A trust fund or other equivalent financial arrangement acceptable to the Environment Division to provide the financial assurances required by this chapter.

(10) Floodplain

Land that would be inundated with floodwater as a result of the occurrence of a 100-year flood.

(11) Groundwater

Water below the land surface in a zone of saturation.

(12) Guidance Document

A document prepared by the Environment Division that supplements criteria under this chapter. A guidance document may provide specific technical direction regarding the manner in which an owner or operator shall comply with this chapter. Guidance documents may be referred to or attached as conditions to permits. Such technical direction must either conform to this chapter, or be more stringent. A guidance document may also provide direction as to how the Director of the Environment Division interprets the Tribe's solid waste permit program, consistent with Tribal laws and this chapter.

(13) Hauler

A person or commercial establishment that is in the business of collecting and transporting solid wastes and who has obtained a Tribal permit from the SRMT's Compliance Department ("Compliance Department").

(14) Hazardous Waste

A waste that:

(A) Because of its quantity, concentration, or physical, chemical, or infectious characteristics, may either cause or significantly contribute to an increase in mortality or serious irreversible or incapacitating illness. It may pose a substantial present or potential hazard to human health, living organisms, or the environment when improperly handled, treated, stored, transported, or disposed of; or

(B) Is specifically defined to be hazardous or toxic, including but not limited to any substance, material, smoke, gas, particulate matter, or combination thereof. Materials containing asbestos, petroleum or its byproducts, or Polychlorinated Biphenyls (PCBs); or

(C) Is hazardous, toxic, ignitable, reactive, or corrosive, and that is defined and regulated as such by the Tribe.

(15) Household Hazardous Waste

Chemical products such as paints, solvents or pesticides generated from normal household activities (e.g. routine house and yard maintenance).

(16) Industrial Waste

A subset of solid wastes, which are generated by manufacturing or industrial processes. Such processes may include, but are not limited to the following: electric power generation; fertilizer/agricultural chemicals; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. The forms of such wastes are exemplified by, but not limited to, liquids such as acids, alkalis, caustics, leachate, petroleum (and its derivatives), and processes or treatment wastewaters; sludges which are semi-solid substances resulting from process or treatment operations or residues from storage or use of liquids; solidified chemicals, paints or pigments; and dredge soil, foundry sand, and the end or by- products of incineration or other forms of combustion.

(17) Infectious/Medical Waste

A subset of solid wastes that include but are not limited to the following:

(A) Laboratory wastes, including but not limited to cultures of etiological agents (agents that cause diseases), which pose a substantial threat to health due to their volume and virulence.

(B) Pathological specimens, including but not limited to human or animal tissues, blood elements, excreta, and secretions that contain etiologic agents, and attendant disposable fomites.

(C) Surgical specimens, including but not limited to human or animal parts and tissues removed surgically, or at autopsy, which in the opinion of the attending physician or veterinarian, contain etiologic agents and attendant disposable fomites.

(D) Human dialysis waste materials, including but not limited to arterial lines and dialysate membranes.

(E) Carcasses of animals infected with etiological agents that may present a substantial hazard to public health if improperly managed.

(F) Equipment, instruments, utensils, or any other material that is likely to transmit etiologic agents or presents a significant danger of infection, because it is contaminated with, or may reasonably be expected to be contaminated with, etiologic agents.

(18) Inherently Waste-like Material

A material, such as dioxin-containing wastes, that is always considered a solid waste because of its intrinsic threat to human health and the environment.

(19) Liquid Waste

Waste material that contains free liquid.

(20) Management Facility

All contiguous land and structures, other appurtenances, and improvements on the land used for the management of solid wastes.

(21) Municipal Solid Wastes (MSW)

A subset of solid waste that is defined as durable and non-durable goods, containers and packaging, food wastes, yard trimmings, and miscellaneous organic wastes from residential, commercial, and industrial non-process sources.

(22) MSWLF

Municipal Solid Waste Landfill.

(23) Nuisance

A condition that occurs as a result of the handling, treatment, composting, or disposal of solid waste, which

(A) is injurious to human health or is indecent or offensive to the senses and interferes with the comfortable enjoyment of life or property, and

(B) Affects an entire community or neighborhood or any considerable number of persons.

(24) 100-Year Flood

A flood that has a 1 in 100 chance of being equaled or exceeded in any one (1) year, and it has an average recurrence interval of one hundred (100) years.

(25) Open Burning

Burning of unwanted materials such as paper, trees, brush, leaves, grass, and other debris where smoke and other emissions are released directly into the air. During open burning, air pollutants do not pass through a chimney or stack

(26) Open Dump

Any management facility or site including roadways and ditches on the Reservation where Solid Waste has been disposed of, which is not a sanitary landfill or transfer station authorized under this chapter.

(27) Operator

The person(s) responsible for the overall operation of a management facility or part of a management facility.

(28) Owner

The person(s) who owns a management facility or part of a management facility.

(29) Permit

An authorization and license issued under the authority of the Compliance Department regulating the collection and transportation of MSW and/or solid waste, or regulating the treatment and disposal of MSW and/or solid waste including the construction and/or operation of a management facility.

(30) Permittee

A person, hauler, or entity who is authorized and permitted by the Compliance Department to collect and transport MSW and/or solid wastes, or to construct or operate a management facility in compliance with this chapter.

(31) Permit Documents

Permit applications, drafts and final permits, or other documents that include applicable design and management conditions in accordance with this chapter, and the technical and administrative information used to explain the basis of permit conditions, including applicable guidance documents. The unauthorized disposal of any solid waste into the air, land, surface water or groundwater.

(32) Person

Any individual, trust, firm, association, partnership, Indian Tribe, tribally chartered corporation, business, or LLC, political subdivision, government agency, industry, public or private corporation, any legal entity or private enterprise. It also includes members of the Tribe, all other non-member Indians, and all non-Indians.

(33) Pollution

The unauthorized disposal of any solid waste into the air, land, surface of the water or groundwater.

(34) Post-Closure Maintenance

All activities undertaken at a closed management facility to maintain the integrity of containment features and to monitor compliance with applicable performance standards as required under this chapter.

(35) Post-Closure Maintenance Period

A period of at least thirty (30) years after closure of a management facility, or Solid Waste Program, a period which ends only after the operator demonstrates to the satisfaction of the Director of the Environment Division that the solid waste contained in such facility no longer poses any threat to human health and the environment.

(36) RCRA (Resource Conservation and Recovery Act)

An Environmental Protection Agency policy, which regulates the generation, transportation and storage of solid and hazardous waste recovery.

(37) Recovery

The reclamation of material, byproducts, or energy from solid waste.

(38) Recycling

The process of separating and collecting solid wastes, their subsequent transformation or remanufacture into usable or marketable products or materials, and the purchase of products made from materials that have already been used in some form.

(39) Reuse

The process of reusing solid wastes for the same purpose that it was originally designed, or using it for a different purpose.

(40) Regulated Hazardous Waste

In RCRA § 1004(5), Congress defined hazardous waste as a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may:

(A) Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

(41) Removal

The act of taking solid waste from the place of generation or storage, either by an approved collection agency or by the owner of the solid waste.

(42) Reservation

Reservation means both the Saint Regis Mohawk Indian Tribe Reservation as established by the 1796 Treaty with the Seven Nations of Canada (7 Stat. 55) and any other lands over which the Tribe exercises jurisdiction now or in the future.

(43) Rules and Regulations

Any policies promulgated by the Environment Division, and adopted by the Tribal Council, regulating the collection, transportation or disposal of solid waste on the Reservation, which will implement, supplement or regulate any provisions of this chapter.

(44) Sanitary Landfill

A disposal facility employing a method of disposing of solid waste on land, without creating nuisances, pollution or hazards to public health or safety, by using methods to confine the solid waste to the smallest practical area, to reduce it to the smallest practical volume, and to cover it with a layer of suitable cover material at specific designated intervals. A MSWLF under this chapter is a sanitary landfill.

(45) Sewage Sludge

A subset of solid wastes that includes any residue, excluding grit or screenings, removed from wastewater, whether in a dry, semi-dry, or liquid form.

(46) Sludge

A sub-set of solid waste that may be solid, semi-solid, or liquid waste generated from a commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility, exclusive of the treated effluent from a wastewater treatment plant.

(47) Special Wastes

A subset of solid wastes, which is listed in Section 5.03.040(b) of this chapter.

(A) Radioactive wastes.

(B) All regulated hazardous wastes as defined by RCRA.

(C) Infectious biomedical wastes, which includes human tissue or human anatomical remains.

(D) Animals or bedding exposed to infectious agents.

(E) Bulk quantities of infectious-type wastes which have been in contact with: blood, blood products and body fluids are handled by Indian Health Services (IHS) through a qualified vendor for disposal.

(F) Any materials containing friable asbestos waste.

(G) Sewage or sewage sludge wastes.

(H) Bulk liquids of any kind.

(I) Polychlorinated Biphenyls (PCBs).

(J) Explosives.

(K) Hazardous waste generated from small quantity generators.

(48) Solid Waste

Any garbage, or refuse, sludge from a residence, business, wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded materials, resulting from industrial, commercial mining, or agricultural operations, and from community activities, businesses or residences. It includes any discarded or abandoned materials. It can be solid, liquid, semi-solid or containerized gaseous material.

(49) Solid Waste Transfer Station (SWTS) or Transfer Station

A publicly or privately-owned facility or site that receives solid waste as for the purpose of sorting, recycling, compacting, recovering, and transferring solid waste. A SWTS unit may be a new unit, an existing unit or a lateral expansion. A lateral expansion is the horizontal expansion of an existing unit.

(50) Source Reduction

The design, manufacture, and use of products in a way that reduces the quantity and toxicity of waste produced when the products reach the end of their useful lives; i.e. waste prevention.

(51) SWDA (The Solid Waste Disposal Act)

Solid Waste Disposal Act of 1965, set national goals for:

(A) Protecting human health and the environment from the potential hazards of waste disposal.

(B) Conserving energy and natural resources.

(C) Reducing the amount of waste generated.

(D) Ensuring that wastes are managed in an environmentally-sound manner. https://www.epa.gov/history

(52) Treatment

When used in connection with hazardous waste, is any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste non-hazardous, safer for transport, amendable for recovery, amendable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it non-hazardous.

(53) Tribe's Solid Waste Disposal Program

All the authorities, activities and procedures under this chapter, the Tribe's Solid Waste Management Plan, and any other Tribal laws or regulations that comprise the Tribe's system of permits, and prior approval and conditions for regulating the collection, handling, transportation, and disposal, treatment and storage of solid waste, including all of the location, operation, design, groundwater monitoring, corrective action, closure, post-closure and financial assurance requirements.

(54) Tribe's Solid Waste Management Plan and Regulations

The formulation of Tribal policies for all solid waste collection, handling, transportation, disposal, treatment, storage, source reduction, reusing, recycling and resource conservation on the Reservation.

(55) Vector

Any insect, arthropod, rodent, or other animal capable of transmitting a pathogen from one organism to another, or of disrupting the normal enjoyment of life by adversely affecting the public health and well-being.

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5.03.030 Designation of Authority

(a) ENVIRONMENT DIVISION AND COMPLIANCE DEPARTMENT

The Tribe respects the thoughts and teachings of the Mohawk People and is entrusted to protect the land, air, water, vegetation and animal life for the next seven generations. To accomplish this mission as it relates to solid waste management, the Tribe hereby appoints the Environment Division as the lead Tribal agency to ensure the proper management of solid wastes while the Tribe's Compliance Department is delegated the authority to issue permits and maintain compliance with this chapter. The Environment Division and the Compliance Department shall each have the powers, duties, and responsibilities as provided herein.

The Environment Division shall develop and manage the Tribe's comprehensive integrated waste management policy and regulations using both the traditional concept of seven generations and by the duties specifically designated in this chapter or as may be assigned from time to time by the Environment Division Director or Tribal Council. The Environment Division shall communicate to the community information regarding the Tribe's comprehensive integrated waste management policy and make reports containing such information as the Tribe approves, excluding any confidential or privileged information.

(1) Duties of the Environment Division with Respect to Solid Wastes. The Environment Division is entrusted to protect the land, air, water, vegetation and animal life for the future generations from the detrimental effects of improper management of solid waste. To accomplish this task the Environment Division shall perform the following:

(A) Develop and implement the Tribe's Solid Waste Management Plan. The goal of the Solid Waste Management Plan is to provide guidance to manage solid wastes in a manner that honors the earth, people, plants, animals, and waters, while contributing to the economic and social progress of the community.

(B) Build on the community's inherent respect for the natural world by maintaining and improving the processes and equipment utilized in the management of solid wastes, recyclable and reusable materials. Provide the technical standards and criteria for the collection and transportation of Solid Waste.

(C) Prepare an inventory and location of all open dumping sites in and around the Reservation where solid wastes have been disposed, and a plan to close all such sites.

(D) Encourage community involvement and input in the Tribe's Solid Waste Management Plan;

(E) Prepare technical reports as may be requested from time to time, including environmental assessments as may be necessary.

(F) Administer, supervise, monitor, and investigate the collection, transportation, and disposal of Solid Waste on the Reservation in compliance with this chapter, as well as adhere to all laws, rules and regulations, and Guidance Documents promulgated hereunder.

(G) Investigate and prepare applications for private, Federal or State grants or funding, and provide financial and technical assistance to implement the Tribe's Solid Waste Management Plan.

(H) Maintain and renew permits for the collection and transportation of and for the operation of the Solid Waste Transfer Station.

(I) Ensure that proper handling, collection and disposal of regulated Hazardous Waste is done in accordance with Section 5.03.040 of this chapter.

(2) Duty of the Compliance Department to Investigate Under this chapter

Upon receiving a credible complaint by any person, or upon its own initiative, the Environment Division shall request that the Compliance Department perform a thorough investigation of any violations made by any person, Management Facility, or Hauler. The Compliance Department shall prepare a report which will then be submitted to the Environment Division, Tribal Council and General Counsel.

A credible complaint is a complaint that relates to, but is not limited to, improper disposal methods, unauthorized acceptance of special wastes, inappropriate handling, collection and transportation of solid waste and/or worker safety issues.

If a complaint is founded then an Enforcement Action pursuant to Section 5.03.060(c) may be undertaken. For any complaint that is unfounded a report shall be transmitted to the complainant within thirty (30) days of the investigation's completion.

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5.03.040 Proper Handling, Collection and Disposal of Solid Wastes

(a) INTEGRATED WASTE MANAGEMENT

An integrated waste management approach shall be used for the management of Solid Wastes. This approach shall promote reducing, reusing, and recycling, followed by disposal.

The Environment Division may issue rules and regulations for reducing, reusing, and recycling of solid wastes on the Reservation. Proper and safe practices based on industry standards will be developed to increase safety in the recovery phase of these efforts.

The Saint Regis Mohawk Tribe will abide by restrictions on recyclables at the landfill (County of Franklin Solid Waste "Local Law No. 3".) The following rules apply to this Solid Waste Code for recyclable materials:

(1) All recyclables shall be separated from Municipal Solid Waste

(2) Designated Recyclables shall not be contaminated with hazardous waste or any other solid waste.

(3) Recyclables will be delivered in a manner to follow these requirements or they may be rejected.

(b) OPEN DUMPING

The open dumping of Solid Wastes on the Reservation is disrespectful and does irreparable damage to the land and the environment. Much of this waste can last longer than seven generations and can affect even more generations through contamination of: soil, groundwater, and surface waters. Proper disposal of these materials can be accomplished through the utilization of Management Facilities, Haulers and/or taken directly off reservation to permitted disposal areas.

It is a violation of this chapter for anyone or business to operate an Open Dump site. If there is an allegation of an Open Dump site it shall be investigated. The Open Dump site shall immediately cease to operate and violator will be subject to enforcement actions as outlined in Section 5.03.060(c). if the matter was not resolved under Section 5.03.030(a)(2).

It is a violation of this chapter to dump, scatter or place any solid wastes anywhere except at a duly authorized and designated solid waste transfer station or landfill. Any written or verbal allegation of open dumping shall be forwarded to the Compliance Department to investigate. If the alleged violator's conduct does not cease after the Compliance Department has undertaken efforts to seek cooperation to stop the offending behavior, it may then determine whether to refer the matter to Tribal Police or the Environment Division for further enforcement action.

If there are further enforcement actions and the matter is brought to the Tribal Court, it shall be dealt with according to Section 5.03.060(d).

(c) BURNING OF SOLID WASTE

Any burning of Solid Wastes will be done in accordance with the open burn regulations established by the Environment Division's Clean Air Program (see TCR 2002-59 or as amended)

(d) HOUSEHOLD HAZARDOUS WASTES

On specified days during the calendar year, certain Household Hazardous Wastes will be accepted at specific drop off areas on the Reservation for proper disposal. Only on those days and at those locations will a limited number of prohibited special wastes be accepted. The wastes allowed will be listed and announced thirty (30) calendar days prior to the collection date by the Director of the Environment Division.

All items to be included in the Household Hazardous Waste collection will be compiled on a list by the Director of the Environment Division. The permitted items will be announced in a locally circulated newspaper, the Tribe's website, social media and radio for at least three (3) consecutive weeks prior to collection activities. Disposal methods and containers will follow recognized standards established by United States Environmental Protection Agency (USEPA) and Occupational Safety and Health Administration (OSHA). Rules and regulations adopted by the Environment Division may be used if those methods specified meet or exceed the minimum standards established by USEPA and OSHA.

If the Director or any employee involved with the collection of Household Hazardous Waste is in doubt regarding the safe handling of a product, then such product will be returned to the individual who transported it to the collection point.

Collection of Household Hazardous Waste will occur based solely on the availability of funding. If the Environment Division deems that regularly scheduled collections are necessary in its discretion, under rules and regulations to be adopted by the Environment Division, then the necessary steps and procedures will be taken to assure regularly scheduled collections.

Disposing of Household Hazardous Wastes except as outlined above at a Management Facility located on the Reservation is a violation of the Code.

(e) SPECIAL WASTES

The Environment Division may prohibit the disposal of other Solid Wastes at Management Facilities on the Reservation, as it deems necessary, under rules and regulations to be adopted by the Environment Division. The Environment Division shall issue rules and regulations governing the disposal or prohibition of disposal of other Solid Wastes not listed herein, including but not limited to, ashes and powders, and mineral wastes and soils. The Environment Division shall develop rules and regulations for special wastes, which require special handling, treatment and disposal.

Tribal Departments or agencies, private enterprises, Haulers or any other person are prohibited from disposing of the following Special Wastes at any management facility located within the Reservation.

Only Haulers who follow applicable Tribal, Federal and State laws and regulations shall collect and transport Special Waste within the Reservation and from the Reservation.

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5.03.050 Permit Requirements for Solid Waste Management Activities

(a) GENERAL PERMIT REQUIREMENTS

Tribal departments or agencies, private enterprises, haulers, or any other persons are required to obtain a permit from the Tribe's Compliance Department to collect and/or transport Solid Waste, or to construct or operate a management facility. Any Permittee shall be required to comply with this chapter, any rule or regulation promulgated thereunder, all Tribal Environmental standards and criteria, all relevant guidance documents, all permit conditions, all orders issued by the Tribe's Compliance Department and applicable Tribal laws.

No Tribal department or agency, private enterprise, hauler, or person may collect or transport Solid Wastes, or operate a Management Facility within the Reservation without first having obtained from the Environment Division either (1) a solid waste collection and transportation permit; or (2) a solid waste facility construction and/or operation permit.

In order to provide for Tribal health and safety and to facilitate the conservation of vital Tribal resources, each person living on the Reservation or Tribal business shall provide for the removal of Solid Wastes and recyclables from his/her property on which it is generated either through a service provided by the Tribe or Hauler or by direct haul to a permitted Management Facility approved by the Tribe that is located on the Reservation.

(b) PERMITS FOR THE CONSTRUCTION AND OPERATION OF A MANAGEMENT FACILITY

(1) Management Facility

(A) Public Hearing. No Management Facility permit shall be issued unless there has been a public hearing conducted by the Environment Division and Compliance Department at which the applicant and all interested persons shall have an opportunity to present relevant evidence and be heard on whether the application should be granted, or whether there are any special conditions which should be included in such permit. No application may be submitted until a business permit has been granted and an environmental assessment review has been conducted, as well as any other necessary permits are obtained.

All applications for a solid waste construction and/or operation facility permit, including all documentation required for such permit, shall be available for public review and inspection at least thirty (30) calendar days in advance of the hearing. The Environment Division shall publish a notice of such public hearing on each application at least ten (10) calendar days in advance of the hearing in the locally circulated newspaper. The Environment Division also shall post notice of the public hearing near the proposed permanent site for a management facility, but viewable to the public, at least thirty (30) calendar days in advance of the hearing. The Environment Division may designate issues it deems most relevant in the public notice. Such public hearings shall be recorded.

The Environment Division also may consider, in consultation with the Compliance Department, certain issues that are raised at the hearing. For any issue, which the Environment Division deems contentious it may decide to address them and provide an analysis of alternatives.

The information in every application for a Management Facility must include the following information so as to allow the Environment Division in consultation with the Compliance Department to fulfill its responsibilities under this chapter by:

(i) having details sufficient to determine how the facility will be constructed, operated, and closed and how it will be monitored and maintained after closure;

(ii) provide sufficient detail to ascertain the environmental impact of the proposed project; and

(iii) provide sufficient detail to demonstrate that the design, construction, operation, closure, and post closure monitoring and maintenance of the facility is capable of complying with the applicable requirements of this chapter.

(B) Unless otherwise specified in this chapter, the plans and drawings for all Solid Waste Management Facilities must be submitted using the following format:

(i) the sheet size with title blocks must be 32 by 34 inches or 24 by 26 inches;

(ii) the cover sheet must include the project title, applicant's name, sheet index, legend of symbols, and the engineer's name, address, signature, date of signature and seal;

(iii) the plans relating to the project to its environmental setting must include:

(I) a regional plan or map (having a minimum scale of 1:62,500)

(II) a vicinity plan or map (having a minimum scale of 1:24,000); and

(III) an overall site plan (having a minimum scale of 1:2,400 with a five feet minimum contour interval);

(iv) site plans must contain the location of all property boundaries certified by an individual licensed to practice land surveying in the State of New York;

(v) the engineering reports for all Solid Waste Management Facilities must:

(I) contain a cover sheet stating the project title and location, applicant's name, and the engineer's name, address, signature, date of signature and seal;

(a) have its text printed on 8-1/2 x 11-inch pages (paginated consecutively);

(b) contain a table of contents or index describing the body of the report and the appendices;

(c) include a body of report; and

(d) include all appendices.

(2) Transfer Stations

In addition to sections 5.1 & 5.2.1, Transfer Stations receiving less than 50,000 cubic yards or 12,500 tons of Solid Waste annually, must meet the following additional conditions:

(A) Only MSW (and recyclables) are accepted at the facility;

(B) A maximum of 1,000 yards or 250 tons of MSW are located on-site at any given time;

(C) All putrescible MSW (organic matter capable of being decomposed by microorganisms) is removed from the transfer station within seven (7) days of receipt, unless prior written approval is received from the Environment Division;

(D) The facility operates only between the hours of sunrise and sunset, or when an attendant is on duty;

(E) The facility is developed, operated and maintained in a safe, nuisance-free manner; and

(F) The facility complies with the applicable operational requirements of Section 5.03.040 of this chapter.

(3) Operational Requirements for Transfer Stations

All Solid Waste Transfer Stations must comply with the following operational requirements:

(A) Acceptable waste. Only MSW shall be accepted at the facility. No industrial wastes, special wastes, or construction and demolition debris shall be accepted unless specifically approved by the Environment Division.

(B) Ultimate disposal of waste. All Solid Waste passing through the Transfer Station must be ultimately treated or disposed of at a facility authorized by the Environment Division if it is located within the Reservation, or by the appropriate governmental agency or agencies if in other states, territories, or nations. In the case of transfer stations at which Solid Waste is intended to be placed on vessels, no Solid Waste shall be placed on a vessel not owned or operated by a City whose population exceeds one million, without having first received written approval from the Environment Division. That approval shall be granted if the operator of the facility submits to the Environment Division the following:

• a certified copy of each permit or other authorization pertaining to the operation of the treatment or disposal facility to which the Solid Waste will be brought, issued by each governmental entity having jurisdiction over that facility; and,
• original letters from each jurisdiction through which that Solid Waste will pass, and from each jurisdiction in which that Solid Waste will be treated or disposed of, stating that the governmental entity does not object to the Solid Waste being transported through or treated or disposed of within its jurisdiction.

(c) PERMITS FOR THE COLLECTION AND TRANSPORTATION OF SOLID WASTE BY HAULERS

As a condition for the issuance of a Solid Waste collection and transportation permit, the Tribe's Compliance Department shall require every vehicle operated by the Hauler to be conspicuously marked to identify it. Every vehicle shall be marked with the trade name of the Hauler, and the number of the transportation permit issued pursuant to this Section. Every vehicle and driver must be licensed and must comply with all safety and insurance requirements of the state or province from which he/she is licensed.

After placement of Solid Wastes and recyclable materials at the roadside or other designated area approved by the Tribe for collection, such Solid Wastes and recyclable material shall be delivered to the SRMT Transfer Station located at 179 County Route 43, Fort Covington NY. In certain situations, the Hauler may be granted permission to by-pass the SRMT Transfer Station and deliver Solid Waste directly to the Franklin County Landfill. The Hauler must first provide enough historical data to establish a monthly average tonnage of Solid Waste being transported from the Reservation to the landfill. The Hauler will be charged a "Regional Fee". Regional Fees and "Transfer Station Price List" can be found on the Saint Regis Mohawk Tribe's webpage (https://www.srmt-nsn.gov/).

As a condition for the issuance of a Solid Waste collection and transportation permit, a Hauler agrees to make an annual report by December 1 of each year, to the Tribe's Compliance Department, indicating the number and type of installations emptied or cleaned, the quantity of Solid Wastes disposed of, the place and manner in which such Solid Wastes were finally disposed, quantity and types of recyclables collected, and such other information as the Compliance Department may require. A renewal application may be denied by the Compliance Department for failure of the Permittee or Hauler to properly and timely file an annual report.

The Compliance Department on a calendar basis must renew solid waste permits for the collection and transportation annually. The Environment Division shall adopt rules and regulations for Solid Waste collection and transportation on the Reservation in consultation with the Compliance Department, including the operation of management facilities, and may impose whatever conditions it deems reasonably necessary to protect the environment, and the health, safety and welfare of the Tribe and its members before issuing any permit under this Section.

(d) COMPLIANCE MONITORING

The Environment Division and/or the Compliance Department shall have the right to request any and all information from any Permittee or Hauler under this chapter, including but not limited to records and technical reports or studies, whether contained in the Permittee's or Hauler's operating record or not, which may be relevant to determine whether a Permittee or Hauler is in compliance with all Tribal Solid Waste requirements, including but not limited to this chapter, any condition contained in a permit, any rules or regulations promulgated under this chapter, any guidance documents, any orders issued pursuant to this chapter, or any Tribal environmental laws. Failure by a Permittee or Hauler to provide the requested information may result in the revocation of his/her permit.

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5.03.060 Public Involvement and Enforcement

(a) PUBLIC PARTICIPATION AND HEARINGS

The Environment Division may allow for public participation and hold one (1) or more informal public hearings, for the following matters prior to taking any formal action:

(1) The approval of any site location for a new Management Facility;

(2) The issuance of any permits for the construction and/or operation of a Management Facility; and

(3) Any other matters which the Environment Division deems appropriate for public participation and review.

The Environment Division shall schedule such hearings at a convenient location, and give reasonable advance notice of the date, time and subject matter(s) of such hearing, by publication in the newspaper most widely circulated on the Reservation. Thirty (30) calendar days' advance notice is required for the issuance of any management facility permits. There shall be a reasonable opportunity for anyone to comment at such hearings, and to present any relevant information.

(b) ACTIONS ON PUBLIC COMPLAINTS

If any department of the Saint Regis Mohawk Tribe, including the Environment Division, receives a credible complaint concerning any person, business, Management Facility owner/operator, or Hauler, giving reasonable grounds that this chapter, or any of its rules or regulations, permits conditions, environmental standards, or guidance document, has or is being violated it will forward it to the Tribe's Compliance Department to investigate the matter in accordance with Section 5.03.030(a)(2) of this chapter.

(c) ENFORCEMENT ACTIONS

(1) Enforcement Policy: While it is the Tribe's policy to encourage informal, practical, result- oriented resolutions of any environmental occurrence it must still prevent damage to the Reservation's resources or prevent harm to the health, safety or welfare of the Reservation's population. It is also the Tribe's policy, consistent with the principles of due process, to provide effective procedures for enforcement. Therefore, after the Compliance Department has finalized its investigation pursuant to Section 5.03.030(a)(2) of a credible complaint it shall forward its findings to the Environment Division, Tribal Council and General Counsel for review and plans of action.

(2) Corrective Action Plan: After receiving the Compliance Department's report, the Environment Division shall review it. After this initial review, the Environment Division may along with the Compliance Department contact the Tribal Member or Tribal Member business causing the environmental concern to devise a corrective action plan to remedy the situation. Environmental concerns can include, but are not limited to, any solid waste regulation or permit condition.

If the Tribal Member or Tribal Member business agree to a corrective action plan or to cease the offending activity then the Environment Division shall monitor to ensure the corrective action plan is followed or the offending activity is suspended. If the Tribal Member or Tribal Member business fails to follow through on the corrective action plan or cease the activity or refuses to agree to a corrective action plan then the matter shall be referred for further enforcement measures as outlined in Section 5.03.060(c)(3) and Section 5.03.060(d).

If the corrective action plan is followed or the activity is suspended then the Compliance Department shall conduct a follow-up investigation with a report submitted to the Environment Division, Tribal Council and General Counsel. If the environmental concern is resolved to the Compliance Department and Environment Division's satisfaction then the matter shall be closed.

(3) Cease and Desist Order: If efforts under Section 5.03.060(c)(2) fail then the Tribe's Compliance Department shall serve a Cease and Desist Order on the alleged violator. The failure to comply with a Cease and Desist Order shall constitute a violation of this chapter

(d) TRIBAL COURT AND HEARINGS ON VIOLATIONS

Wherever rules are not outlined herein the Saint Regis Mohawk Tribe's Rules of Civil Procedure along with the Rules of Evidence shall govern.

(1) Complaint. If an alleged violator fails to comply with a Cease and Desist Order from Section 5.03.060(c)(3). then the Compliance Department shall request General Counsel to file a complaint in Tribal Court. The complaint shall provide notice to the alleged violator of the violation(s) and any other environmental concerns. The Compliance Department shall provide a Summons and arrange for service upon the alleged violator to appear before the Tribal Court.

(2) Hearings. On the return date, the Environment Division shall present its documentary proof to the Court and/or present witnesses regarding the alleged violation(s). After closing its proof, the alleged violator shall then be given the opportunity to rebut the proof present or the conduct alleged to have happened.

(3) Burden of Proof. After the Environment Division has made its presentation and met its burden of proof based upon the preponderance of the evidence, the burden shall shift to the alleged violator to rebut the evidence and testimony.

(4) Evidentiary Issues. The Tribal Court is free to accept or reject any documentary evidence

(5) Judgment. After hearing all of the testimony, the Court shall issue a written decision to the parties within thirty (30) days of the hearing. If the Court finds in favor of the Environment Division it may issue a civil fine of up to ten thousand ($10,000.00) dollars, except for an Open Dump violation which shall be assessed a fine of five hundred ($500.00) dollars for zero (0) to one (1) ton of Solid Waste and five hundred ($500.00) dollars per ton for any Solid Waste above one (1) ton. In addition to the civil fine the Court can include any cost for the remediation needed to remedy the violation and any other relief provided by law, including the assessment and recovery of civil penalties and clean up and administrative costs associated with the enforcement of this chapter. If the Court determines that the Environment Division failed to meet its burden it shall dismiss the complaint. Any fines collected shall be remitted to the Tribal General Fund and divided between the Compliance Department and Environment Division.

(6) Failure to satisfy Judgment. After issuing a judgment, if it is not satisfied within thirty (30) days then the respondent's name may be transferred to Tribal Council or its designee who may issue a reminder notice to the judgment debtor. Failure to remit payment after receiving such a notice may prompt the Compliance Department to issue a "Delinquency Letter" to the Court with a copy provided to the judgment debtor notifying the Tribal Court the judgment debtor has not yet complied. Once received, the Court Clerk shall issue a "letter of warning" to the judgment debtor. The letter of warning must state that further non-compliance may result in a judgment for contempt of Court and that the enforcement of the judgment may result in measurements such as garnishment of wages and the revocation of tribal licenses. If the judgment is not satisfied within ten (10) days from the date the letter is sent by the Court Clerk, the Compliance Department shall notify the Court. The Court shall set a hearing that must take place no later than ten (10) days from the date of notification by the Compliance Department. At the hearing, the Compliance Department may enter evidence demonstrating that the judgment debtor has not satisfied his/her judgment. The judgment debtor/respondent may appear and offer evidence. After review of the evidence, the Court may enter an enforcement order revoking any Tribal licenses or garnish the judgment debtor's wages. The Tribal licenses and/or Tribal services shall remain suspended until the judgment has been paid and proof of payment has been made to the Court.

(e) APPEALS

(1) Within thirty (30) days of the judgment, a respondent may file an appeal with the Saint Regis Mohawk Tribe Court of Appeals. The appeal shall be limited to the fine and penalty imposed.

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Chapter 5.04 Pesticide Regulation

5.04.010 Purpose

The Saint Regis Mohawk Tribe (The "Tribe"), is responsible for the health, safety, education and welfare of all community members. With respect to pesticide usage it has the authority, responsibility and jurisdiction to exercise sovereign rights in governing pesticide usage on the Saint Regis Mohawk Reservation (Reservation). Through its Environment Division, the Tribe has determined that the management of pesticides through Tribal regulation will ensure the protection of Tribal member health by reducing unnecessary health risk exposures to pesticides.

Further, the EPA's regulations under Environmental Protection Acts, Title 40 of the Code of Federal Regulations (CFR) Part 171 provide that:

(a) An Indian tribe may develop its own plan for certifying private and commercial applicators to use or supervise the use of Restricted Use Pesticides (RUPS), subject to the approval of EPA;

(b) If a tribe does not develop its own certification plan, the tribe may choose to utilize a state's certification program, with the concurrence of that state, subject to the approval of EPA; or

(c) EPA can implement a federal plan for the certification of applicators of RUPS where no other EPA-approved state or tribal applicator certification plan is in effect.

The Tribe's strategy for regulating pesticide usage within its jurisdiction is to exercise option 3, relying upon EPA to certify RUP applicators. Additionally, the Tribe will exercise its sovereign right to regulate the use of General Use Pesticides (GUPS) within its jurisdiction through this regulation.

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5.04.020 Authority

The authority of the Tribe to enact the Pesticide Regulation lies in the inherent sovereign authority of the Saint Regis Mohawk Tribe the Tribal Procedures Act section IV (C) (1), (2), (10) and (13) (TCR 2013-32); and the Tribal Court and Judiciary Code Section V and VI (TCR 2008- 22).

Tribes cannot be granted primacy status under FIFRA. The EPA, however, does permit cooperative agreements to tribes who cooperate with EPA for the enforcement of FIFRA and who have developed their own Tribal Codes for pesticide use on tribal lands. If a tribal inspector uses tribal credentials for an inspection, enforcement can be pursued by the Tribal Council. If EPA credentials are used for an inspection, the Tribe shall send the inspection file and all information to the EPA's regional office.

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5.04.030 Federal Certification Rule

Under the authority of Section 11(a)(1) of the Federal Insecticide, Fungicide, Rodenticide, Act (FIFRA), and in accordance with the regulations found at Title 40 of the Code of Federal Regulations (CFR) Section 171.11, the EPA is implementing a federal pesticide applicator certification plan (EPA plan) for those areas of Indian country where no other EPA-approved or EPA-implemented plan applies. This EPA plan describes a program for the certification of applicators of restricted use pesticides (RUPS) in Indian country based on the certification requirements enumerated at 40 CFR Part 171.

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5.04.040 Terms and Definitions

Applicator - A person who uses a pesticide for the purpose of preventing, repelling or mitigating any pest as defined under this regulation.

Pesticide - A substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest as defined under the FIFRA (7 USC 136-136y).

Certification - The processes that are administered by the Tribe, EPA or a State which confirms that the qualifications and credentials of a pesticide applicator meet applicable, Tribal, Federal or State requirements in order to be accredited.

Certified Applicator - The term "certified applicator" means any individual who is certified under FIFRA section 11 as authorized to use or supervise the use of any pesticide which is classified for restricted use. Any applicator who holds or applies registered pesticides, or uses dilutions of registered pesticides consistent with subsection (ee), only to provide a service of controlling pests without delivering any unapplied pesticide to any person so served is not deemed to be a seller or distributor of pesticides under FIFRA.

Commercial Applicator - The term "commercial applicator" means an applicator who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided by the definition of Private Applicator.

EPA Plan - The US EPA federal certification requirements for applicators or restricted use pesticides (RUPs) in Indian Country under the authority of Section 11(a) (1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and in accordance with the regulations found at Title 40 of the Code of Federal Regulations (CFR) Section 171.11

General Use Pesticide (GUP) - Any pesticide which has not been classified as Restricted Use. A pesticide that that will not ordinarily cause unreasonable adverse effects on the user or on the environment when used in accordance with their label instructions. These are available to the public.

Indian Country - All land within the limits of an Indian reservation as defined by 18 USC § 1151.

Labeling - All labels and all other written, printed, or graphic matter: (a) accompanying the pesticide or device at any time; or (b) to which reference is made on the label or in literature accompanying the pesticide or device, except to current official publications of the Environmental Protection Agency, the United States Departments of Agriculture and Interior, and the Department of Health and Human Services, State experiment stations, State agricultural colleges, and other similar Federal or State institutions or agencies authorized by law to conduct research in the field of pesticides.

Label(s) - The written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers.

Pesticide Incident - Any exposure or effect from a pesticide's use that is not expected or intended. Pesticide incidents may involve humans, wildlife, plants, domestic animals (e.g. pets) and bees.

Pesticide Registry Number - The EPA issued number that corresponds to an EPA registered pesticide. The EPA Registered Number of a product for primary registrants consists of two sets of numbers separated by a hyphen. The first set of numbers refers to the registrant's company identification number, and the second set of numbers represents the product number.

Private Applicator - The term "private applicator" means a certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by the applicator or the applicator's employer or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property of another person as defined by FIFRA.

A private applicator is a farmer, rancher, orchardist, nursery producer, greenhouse operator, etc. who uses or supervises the use of restricted use pesticides to produce an agricultural commodity on property owned or rented by the applicator or his/her employer or (if applied without compensation other than trading of personal services between producers or agricultural commodities) on the property of another person.

Restricted Use Pesticide (RUP) - Under FIFRA, pesticides (or the particular use or uses of a pesticide) that may generally cause, without additional regulatory restrictions, unreasonable adverse effects on the environment, including injury to the applicator. A pesticide that only certified pesticide applicators or those under the supervision of a certified applicator may use.

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5.04.050 Registration Requirements

All Applicators shall be registered through the Saint Regis Mohawk Tribe's Compliance Department in order to be able to apply pesticides within the jurisdiction of the Tribe before operating on the territory. Pesticide applicators shall also meet any and all other provisions of Tribal regulatory requirements, including but not limited, to business licenses or permits, Tribal good standing policy requirements, etc.

Any person who applies restricted use pesticides in an area the Saint Regis Mohawk Tribe covered by the EPA plan will need a federal certificate from EPA.

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5.04.060 Permits

Applicators shall be issued a Tribal permit that is valid for one (1) year. Each permit is effective Tsiothohrkó:wa/January 1 to Tsiothóhrha/December 31, each year.

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5.04.070 RUP/GUP

All Applicators that hold certifications in other jurisdictions outside of the Reservation shall also be currently registered with its respective jurisdiction and the EPA, and currently be in compliance with the pesticide regulations of those jurisdictions and Applicators shall verify its standing by presenting copies of certifications and licenses held in their pertinent state and by the EPA.

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5.04.080 GUP

Applicators may obtain permits to apply GUP within the jurisdiction of the Tribe. The GUP Permit is only issued to on-territory Applicators and restricts the use of pesticides to GUPS only. This type of permit is only valid for the Reservation.

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5.04.090 Applications

All Applicators shall complete and submit a Tribal Applicator Permit Application for Pesticide Applicator Certification.

The permit shall be submitted to the Saint Regis Mohawk Tribe, Attention: Tribal Compliance Office, 71 Margaret Terrance Memorial Way, Akwesasne, NY 13655.

Once approved a Tribal Applicator Photo-ID permit card that will be issued. The Applicator shall be required to remit payment of $120.00 to the Tribe's Accounting Department.

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5.04.100 Permit Fees

The fee for an annual permit shall be no less than $120 for a permit. The Tribe reserves the right to increase permit fees to meet administrative costs but shall notify applicators in writing in advance of fee rate increases. The fee includes the cost of a Tribal Photo-ID Permit.

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5.04.110 Reporting Requirements

As a condition of either permit the Tribally certified Applicators shall be required to submit annual reports no later than thirty (30) days from Tsiothóhrha/December 31 of each year (Applicators may submit reports more frequently). Failure to submit an annual report will result in suspension of a Tribal certification.

The content of the annual report shall include:

• Applicator Name (First, Last, M.I.)
• Applicator physical address
• Applicator mailing address
• Applicator phone number(s)
• Tribal Permit Number, Federal Certification Number, State Certification Number
• Sales and Usage Report
• List names of all pesticides used within the jurisdiction of the Saint Regis Mohawk Tribe
• List the quantities (U.S. liquid measures for liquid materials and U.S. dry weight measures for all dry materials) of all pesticides used within the jurisdiction of the Saint Regis Mohawk Tribe

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5.04.120 Accidental Releases

In the event of an accidental release of a pesticide, where there is an imminent threat to human health and the environment, Applicators are required to immediately contact the Tribe's Environmental Response Team, 518-358-5937 during regular business hours or the Tribe's Police Department, 518-358-9200, after regular business hours.

Any accidental pesticide release is reportable if:

• There is an impact to human health
• There is an impact to the environment, including a threat or spill into a sanitary sewer, storm sewer and/or surface water or ground water
• There is a fire, explosion or safety hazard
• The spill has not immediately been cleaned up
• The spill was more than the reportable quantity under Federal Law
• A spill involving the commercial transport of a pesticide as governed by the US Department of Transportation

Applicators may be subject to reportable quantities under additional regulatory requirements including but not limited to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC 9601, the Federal Water Pollution Control Act, 33 USC 1321(b)(2)(A) and 1317 (a), section 3001 of the Solid Waste Disposal Act, 42 USC 6921, Section 112 of the Clean Air Act, 42 U.S.C 7412. It is the responsibility of Applicators to know and understand the regulations to which they are subject.

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5.04.130 Pesticide Incidents

Applicators are required to report any pesticide incidents to the Tribe's Compliance and Environmental Office, providing the Applicators name, address, phone number, e-mail, date, location, time of day, pesticide name and EPA registry number and nature of incident (human exposure or illness, animal exposure or illness (pets or livestock), pesticide drift, wildlife incident (wildlife, bees, soil or water), problems with a pesticide container or label. A Pesticide Incident Report will consist of:

(a) A verbal report, made in person or by phone to the Tribe's Compliance and Environmental Office at the time of the incident or as soon as possible upon discovery an incident and,

(b) Filing of a written report immediately after, but no later than 24-hours, after filing a verbal report

(c) If the incident occurs on a weekend or holiday the applicator is required to file a report by the next business day of operation.

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5.04.140 Enforcement

Any violation of the Tribal Pesticide regulation may result in the revocation of an Applicator's permit, institution of fines and penalties as determined by a Tribal Compliance Office official, seizure of materials for evidence, and restitution for damages or losses that may have resulted from violations of this Ordinance. Additionally, the Tribe will advise EPA of any violations.

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5.04.150 Enforcement Actions

Enforcement Policy: It is the policy of the Tribe to encourage informal, practical, result- oriented resolution of alleged violations and actions needed to prevent damage to Saint Regis Mohawk Indian Reservation resources or harm to the health, safety or welfare of the Reservation population. It is also the policy of the Tribe, consistent with the principles of due process, to provide effective procedures for enforcement.

Enforcement Agency: The Tribe's Environment Compliance Officer ("Officer") shall be responsible for enforcing the provisions of this Code. Specifically, the Officer shall conduct investigations when a complaint is received by the Tribal Compliance Office, Environment Division or other Tribal agency believes that a violation of this Ordinance has occurred.

Enforcement Activities: Where a verified complaint shall be filed with the Tribe and reviewed by the Environmental Compliance Officer alleging that, or where the Tribe itself shall have cause to believe that, any person is violating any pesticide regulation or permit condition, the Environmental Compliance Officer shall cause a prompt investigation to be made.

Notice of Violation: Cease and Desist Order: If the Officer finds after an investigation pursuant to this Code that a violation of any regulation or permit condition exists, the Officer shall promptly notify both the alleged violator and the Tribal Council in writing. In the case of an apparent violation of this Ordinance, the Officer is authorized to issue a Notice of Violation to the person(s) apparently responsible for the violation, and, if the apparent violation occurred on property owned by a person other than the alleged violator, a Notice of Violation shall also be issued to the landowner.

In the case of a continuing violation or a threatened violation, the Tribal Council shall issue a Cease and Desist Order to prevent the violation from continuing or occurring.

Failure to comply with a Cease and Desist Order shall constitute a Second violation of this Ordinance. Both a Notice of Violation and a Cease and Desist Order may be issued for a single incident. A Notice of Violation will include a request to appear before the Officer at an enforcement hearing at a specified time and date, and shall advise the alleged violator that failure to appear may result in the imposition of civil penalties.

If an Immediate Cease and Desist Order is issued without an accompanying Notice of Violation, the Order will inform the recipient that failure to comply with the Order will constitute a violation of this Ordinance, which will result in the issuance of a Notice of Violation that will indicate the alleged violations of this ordinance and may result in the imposition of civil penalties.

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5.04.160 Hearings on Violations

Informal/Formal Hearings: The Officer shall afford the landowner or his or her representative reasonable opportunities to discuss proposed enforcement actions at an informal or formal hearing prior to taking further enforcement action, unless the Officer determines that there may be either imminent environmental damage to a Reservation resource or adverse impact upon the health, safety and welfare of the Reservation population. Informal or formal hearings may be used at any stage in the enforcement proceedings, except that the Officer may refuse to conduct informal or formal hearings with respect to any matter then pending before the Officer.

Reports Required: The Officer shall keep written notes of the date and place of the hearing, the persons in attendance, the subject matter discussed and any decisions reached with respect to further enforcement action.

Enforcement Hearings: If the landowner and the Officer are unable to resolve the matter via an informal or formal hearing, the Officer is authorized to conduct adjudicatory hearings to determine if a violation of this Code has occurred. In such a hearing the person so charged shall be entitled, at his or her own expense, to be represented by an attorney or other representative. The Officer shall rule that a violation of this Ordinance has occurred if it finds that the charges are supported by a preponderance of the credible evidence, which supports a finding that a violation occurred.

Within thirty (30) days after the date of any enforcement hearing, the Officer shall issue a written decision. If the Officer determines that a violation has occurred and that the person(s) charged was (were) responsible for the violation, the Officer's decision shall include an Enforcement Order.

Civil Penalties and Corrective Action: An Enforcement Order shall direct any person(s) found to have committed a violation of this Ordinance to take whatever corrective action the Officer deems appropriate under the circumstances. An Enforcement Order may impose civil penalties in accordance with a schedule of civil penalties prescribed under these rules. Alternatively, an Enforcement Order may impose civil penalties in the event that a person found to have committed a violation of this Code does not take corrective action in accordance with the Order within a prescribed time frame. If a person who has been found to have committed a violation does not take corrective action within the prescribed time frame, an appropriate department or agency of the Tribal government may take the necessary corrective action, in which case the amount of any civil penalty shall be increased by twice the amount of the cost incurred by the Tribal department or agency in taking the corrective action.

Notwithstanding any other provision of this Ordinance, if the Officer determines that noncompliance with this Ordinance is presenting an imminent and substantial threat to the public health, welfare or environment and determines, in consultation with the Tribe's attorneys, that it is not practicable to assure prompt protection of the public health, welfare or environment of an administrative or judicial enforcement action under this part, the Officer may issue such orders as may be necessary to protect the public health, welfare or environment. Any such order shall be effective immediately upon issuance and shall remain in effect for a period not to exceed sixty (60) days. Revocation of Permit. Failure of any person to comply with any Enforcement Orders shall result in an immediate revocation of his or her permit. In order to obtain a reinstatement of such permit, the person(s) against whom the Enforcement Order was issued must first demonstrate compliance with the Order and pay all outstanding penalties and then petition for reinstatement of the permit with the name of the particular Tribal Agency].

Special Provisions for Tribal Departments and Agencies: In any case in which any Tribal agency or department is alleged to have violated the terms and conditions of a pesticide permit, or to have conducted activities without a permit, the Compliance Department shall bring the matter to the attention of the Saint Regis Mohawk Tribe, Tribal Council who shall consider taking action to ensure compliance with this Ordinance. If the matter cannot be resolved informally, the particular Tribal Agency shall conduct an enforcement hearing for the purpose of making factual determinations and issuing a decision recommending a course of corrective action if necessary.

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5.04.170 Appeals

Once the Compliance Officer has issued a decision any person who is aggrieved by the decision has the right to appeal through the Tribal Appellate Court. This appeal must be filed in writing as a notice of appeal to the Tribal Appellate Court.

Any person who is aggrieved by the issuance or denial of an applicator permit without respect to whether that person, corporation or other entity is a party to such permit application, or who is the subject of an Enforcement Order, may file an appeal with the Tribal Appellate Court. The Tribal Appellate Court is authorized to hear such appeals.

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5.04.180 Certification

A person becomes a certified applicator through meeting the requirements of the Tribe and, the EPA and by his/her pertinent state.

• Persons applying GUP commercially as defined under this ordinance, are required to be certified by the Saint Regis Mohawk Tribe, and
• Persons are required to be Federally Certified by EPA to be able to apply RUP on Tribal lands and must also obtain a Tribal permit, and
• Persons are required to be certified by their pertinent state to be able to apply pesticides on Tribal lands

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5.04.190 Training Requirements for Gup Permits

Applicators who apply GUPS only must have successfully completed a basic pesticide core training program that includes the following material:

• Pests
• Pesticides
• Formulations
• Pesticide Exposure and Risks
• The Toxicity of Pesticides
• Protecting Yourself
• Responding to a Pesticide Exposure
• Ecology and Environmental Considerations
• Proper Pesticide Disposal
• Pesticide Storage
• Safety Precautions with Pesticides
• Personal Protection for the Applicator and Worker
• Protecting Water from Pesticide Pollution

Applicators must maintain their competencies by completing a minimum of three (3) Continuing Education Units (CEU's) a year in a pesticide related training course. Certificates of completion must be submitted with permit applications/renewals to verify course work.

Applicators who apply RUPs must meet the training requirements of their respective state certification program. A current applicator's state certification upon application or renewal must be present with a permit application/renewal.

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5.04.200 Right to Know

Employers within the jurisdiction of the Tribe will be required to inform employees about the use of pesticides used in the workplace. The process for providing information consists of:

• Providing a list of all pesticides used in the workplace
• Access to Safety Data Sheets and container labels
• Making proper notification of the planned use of pesticides in workplace with 48-hours advanced notice

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5.04.210 Notification

Pesticide Applicators are required to provide notice of all pesticide use including all indoor and outdoor applications made in public and commercial buildings and for agricultural applications. Notification shall consist of posting signs on the property to be treated a minimum of 48-hours before application treatment and remain posted on the property a minimum of 24-hours after application. However, certain products may have labels with stricter notification requirements. In these particular instances the label directions must be followed.

Notification signage shall display the following information:

(a) Indication that pesticides will be applied.

(b) The date of application.

(c) Date the notice is given.

(d) Date the notice expires, maximum of seven days.

(e) Name and telephone number of a person who can give information about what was applied.

(f) EPA Registration number and full name of pesticide (product common name).

Signage specifications are:

(g) Size - A minimum of one-foot by one-foot in dimension.

(h) Color - Dark lettering on a yellow background.

(i) Location - Posted in a conspicuous place along the principal street frontage of the property to be sprayed.

(j) Posted - At common access points of commercial buildings or apartment complexes.

Private homeowners using pesticides in their own home and on their own property are not required to comply with notification requirements.

In addition to public posting, the applicator shall make written notification to the Saint Regis Mohawk Tribe, Environment Division of plans to apply pesticides. The Applicator is required to notify the Tribe a minimum of 48-hours in advance of an application. However, certain products may have labels with stricter notification requirements. In these particular instances the label directions must be followed.

Information to be provided to the Environment Division in the written notification shall consist of:

• Date or dates of pesticide use
• Full name of pesticide(s) product(s)
• The pest(s) to be treated
• Where the pesticide(s) will be applied
• Re-entry period restrictions (if any)
• The name of the pesticide Applicator (individual) and Company Name
• Applicator registration number
• Pest controller contact number(s)
• EPA Registration number and full name of pesticide (product common name)
• Where pesticide will be applied within a building or site
• E-mail address of applicator
• Applicator certification number

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5.04.220 Exemptions

The Tribe exempts Minimum risk pesticides and Low Impact Pesticides from the notification requirements. Refer to https://www.epa.gov/minimum-risk-pesticide for guidelines on minimum risk pesticides. Low impact pesticides in general are antimicrobial products and disinfectants, see Appendix A.

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5.04.230 Amendments

Amendments to this this Ordinance must be initiated in accordance with provisions of Tribal procedures for adopting Tribal laws and ordinances. The amendment and supporting documentation must be submitted in writing.

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5.04.240 Repeal

Repeal to this Ordinance must be initiated in accordance with provisions of Tribal procedures for adopting Tribal laws and ordinances. The repeal and supporting documentation must be submitted in writing.

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5.04.250 Severability

In the event that any provision of this Ordinance shall be found or declared to be invalid, the remaining provisions of this ordinance shall be unaffected thereby, and shall remain in full force and effect.

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APPENDIX A LOW IMPACT PESTICIDES

The following ingredients or types of pesticides are also considered low impact.

a. Formulation Types - gels, pastes, or baits. Ant traps and insecticide gels are good examples of this class of low impact pesticides. Rodent baits also fit into this designation, although rodent baits should be rare.

b. Antimicrobial products - pesticides used to kill microorganisms such as bacteria and fungus. Disinfectants, cleaners, mold and mildew removers all fall into this classification.

"Antimicrobial agents" means:

1. Disinfectants intended to destroy or irreversibly inactivate infectious or other undesirable bacteria, pathogenic fungi, or viruses on surfaces or inanimate objects;

2. Sanitizers intended to reduce the number of living bacteria or viable virus particles on inanimate surfaces, in water, or in air;

3. Bacteriostats intended to inhibit the growth of bacteria in the presence of moisture;

4. Sterilizers intended to destroy viruses and all living bacteria, fungi, and their spores, on inanimate surfaces; or

5. Fungicides and fungistats intended to inhibit the growth of, or destroy fungi (including yeasts) pathogenic to man or other animals on inanimate surfaces;

6. Commodity preservatives and protectants intended to inhibit the growth of, or destroy bacteria in or on raw materials (such as adhesives or plastics) used in manufacturing, or manufactured products (such as fuel, textiles, lubricants, and paints); or

7. General use algaecides labeled for use in:

i. Swimming pools, hot tubs, whirlpools, spas, ornamental ponds, fountains, fish tanks, and waterbeds;

ii. Water, wastewater and sewerage treatment plants, but only where there is a controlled inlet and outlet; and

iii. Industrial, commercial, and manufacturing processes.

c. Specific Active Ingredients - Specific pesticide ingredients added to the low impact designation are:

1. boric acid

2. disodium octoborate tetrahydrate

3. silica gel

4. diatomaceous earth

d. Microbe based insecticides - the most common example of this would be bacillus thuringiensis or "Bt", a widely used microbe that is the ingredient in many home and garden products, mosquito larvicides, and gypsy moth control products.

e. Botanical insecticides (not synthetic) - a common example of this would be pyrethrins, extracted from the chrysanthemum plant, or neem oil that is extracted from kernels of the neem plant. Synthetic versions of botanicals or those that contain chemical synergists to enhance the potency do not qualify as low impact.

f. Biological, living control agents- a common example of this would be a pesticide that uses parasitic nematodes (a small worm-like organism) as its active ingredient. These nematodes are used to control a wide variety of insects. Beneficial insects would be another type of control agent that would fit into this category.

Chapter 5.06 Akwesasne Wetlands Conservation Act

Subchapter 1 General Provisions and Public Policy

5.06.010 Declaration of Policy

It is the public policy of the St. Regis Mohawk Tribe to preserve, protect and conserve wetlands and the benefits that they provide, to prevent the pollution and destruction of wetlands, and to regulate the use and development of such wetlands to secure to the people of Akwesasne their natural benefits, consistent with the general welfare and beneficial economic, social, cultural and agricultural development of Akwesasne.

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5.06.020 Statement of Findings

(a) The wetlands of Akwesasne have since time immemorial played a critical role in sustaining Akwesasne cultural traditions, health and welfare.

(b) Considerable acreage of freshwater wetlands in Akwesasne has been lost, polluted or impaired by unregulated draining, dredging, filling, excavating, building, pollution or other acts inconsistent with the natural uses of such areas. The wetlands that remain are in jeopardy of being lost, destroyed or impaired by such unregulated acts.

(c) Wetlands conservation is a matter of Tribal concern, calling for uniform Tribal regulation since a wetland in one region of Akwesasne is affected by acts on rivers, streams and wetlands of other regions.

(d) Any loss of wetlands deprives the people of Akwesasne of some or all of the many and multiple benefits to be derived from wetlands, including, but not limited to:

(1) flood and storm control by the hydrologic absorption and storage capacity of wetlands;

(2) protection of subsurface water resources and provision for valuable watersheds and recharging ground water supplies;

(3) pollution treatment by serving as biological and chemical oxidation basins;

(4) erosion control by serving as sedimentation areas and filtering basins, absorbing silt and organic matter and protecting channels and harbors;

(5) education of future generations by providing readily accessible outdoor bio-physical laboratories, living classrooms and vast training and education resources;

(6) open space and aesthetic appreciation by providing areas for hunting, gathering, fishing, canoeing, bird-watching and camping often in the only remaining open areas along increasingly crowded river fronts;

(7) provision of critical wildlife habitat; and

(8) support of valuable medicinal plants and trees of cultural and economic importance including, but not limited to, Heartweed (Polygonum persicaria) and BlackAsh (Fraxinus nigra).

(e) Regulation of wetlands, in accordance with the exceptions established in Section 5.06.050 of this ordinance, is consistent with the legitimate interests of farmers and other landowners to graze and water livestock, make reasonable use of water resources, harvest natural products and medicinal plants of the wetlands, selectively cut timber and otherwise engage in the use of land for agricultural purposes.

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5.06.030 Definitions

(a) "Board" shall mean the Akwesasne Environmental Appeals Board.

(b) "Environment Division" means the Environment Division of the St. Regis Mohawk Tribe.

(c) "Person" shall mean any corporation, firm, partnership, association, trust, estate, one or more individuals, and any unit of Tribal government or an agency or subdivision thereof.

(d) "Pollution" shall mean the presence in the environment of conditions induced by humanity or any substances in quantities or characteristics which are or may be injurious to human, plant or wildlife, or other animal life or to property.

(e) "Wetlands" means lands and waters of Akwesasne as shown on the wetlands map and that are seasonally or permanently flooded by shallow water as well as lands where the water table is close to the surface; in either case the presence of abundant water has caused the formation of hydric soils and has favored the dominance of either hydrophytic or water tolerant plants which are dependant upon or tolerant of very moist conditions. Wetlands may or may not contain species that are of value culturally to the Mohawks of Akwesasne. Lands that are under active agricultural use that are periodically flooded, soaked, or wet are not considered to be wetlands by definition.

(1) Wetlands are comprised of marshes, bogs, swamps and fens supporting aquatic or semi-aquatic vegetation:

(A) "Marshes" are wet areas periodically inundated with standing or slowly moving water and/or permanently inundated areas characterized by emergent herbaceous vegetation, and to a lesser extent, anchored floating plants and submergents.

(B) "Bogs" are peat covered areas or peat filled depressions with a high water table and a surface carpet of acidophilic mosses (chiefly Sphagnum). The water table is at or near the surface in the spring, and slightly below during the remainder of the year.

(C) "Swamps" are wooded wetlands including both forest swamps and thicket swamps, with 25% cover or more of tall trees and shrubs. In swamps, standing to gently flowing waters occur seasonally or persist for long periods on the surface.

(D) "Fens" are peat accumulating wetlands characterized by surface layers of poorly to moderately decomposed peat, often with well decomposed peat near the base. They are generally covered by a dominant component of sedges although grasses and reeds may be present. Fens receive some drainage from surrounding mineral soil and supports marsh-like vegetation.

(E) "Wooded Wetlands" are wetlands dominated by trees; a forested wetland.

(F) "Wet Meadows" are grasslands with nearly saturated soil near the surface, but without standing water for most of the year.

(G) "Open Water" refers to water that is free of emergent vegetation or artificial obstructions.

(H) "Emergent Wetland" refers to wetlands dominated by mostly herbaceous emergent vegetation.

(I) "Forested Wetlands" are defined by the presence of trees which mostly cover the site (see, "Wooded Wetlands").

(J) "Scrub/Shrub Wetlands" exhibit wetland soils and hydrogeology, and are populated largely by shrubs, bushes or brush which are persistent year to year.

(K) "Reed Swamps" refers to marshes dominated by Phragmites (common reed).

(L) "Slough" refers to an elongated marsh often bisected by a creek with slowly flowing surface water.

(M) "Pot Hole" refers to a shallow, marsh-like pond.

(N) "Peatland" is a generic term for any wetland that accumulates partially decayed plant matter.

(f) "Emergent" means rising above a surrounding medium, as in wetland plants protruding above the water level.

(g) "Wetlands map" shall mean a map promulgated by the Environment Division by their authority under Section 5.06.040 of this chapter on which is indicated the general boundaries of any wetlands.

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5.06.080 Granting Permits

(a) In granting, denying or limiting any permit, the Environment Division shall consider the effect of the proposed activity on Tribal health and welfare, fishing, flood and storm dangers, water quality and protection and enhancement of the wetlands and the benefits derived from wetlands as set forth in Section 5.06.020(e) of this chapter.

(b) No permit shall be granted under this section unless the proposed activity is consistent with the land use regulations applicable, now, or in the future.

(c) In granting a permit, the Environment Division may limit the permit or impose conditions designed to carry out the public policy set forth in this chapter. The Director of the Environment Division may issue citations, suspend, or revoke a permit if it finds that the applicant has not complied with any of the conditions or limitations set forth in the permit or has exceeded the scope of the activity as set forth in the application. Environment Division suspension and revocation proceedings shall be governed by rules and regulations to be adopted by the Environment Division.

(d) In the event that the Director of the Environment Division determines that a violation constitutes a serious, ongoing threat to Tribal health and safety, or to any Tribal member, the Director may request that the Tribal Council issue a cease and desist order to carry out the purposes of this chapter.

(e) The Environment Division shall state with a written record the findings and reasons for all actions taken under to this section.

(f) Application to the Environmental Appeals Board for review of the determination of the Environment Division must be made within a period of thirty days after the filing such determination, pursuant to the provisions of Title IV. Any owner of the wetland and any resident or citizen in close proximity shall be entitled to seek review.

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Subchapter 2 Wetlands Studies: Notification and Maps

5.06.040 Wetlands Inventory

(a) The Environment Division shall complete a study to identify and map, to the extent practicable, the wetlands of Akwesasne (the "Wetlands Inventory").

(b) Upon completion of the wetlands inventory, the Environment Division shall prepare a tentative wetlands map outlining the boundaries of such wetlands as determined by the study and inventory conducted under subdivision (a) of this section.

(c) The tentative wetlands map shall set forth the general boundaries of such wetlands as accurately as is practicable to inform the landowners, the Tribe, and the Environment Division of the approximate location of the wetlands.

(d) Upon completion of the tentative wetlands map, the Environment Division shall hold a public hearing in order to afford an opportunity for any person to propose additions or deletions from such map. The Environment Division shall assure that a copy of the relevant map is available for public inspection at a convenient location, no more than thirty nor less than 10 days before the public hearing. The Environment Division shall also issue notice of the public hearing in a local newspaper, at least once, no later than 10 days prior to the hearing.

(e) After considering the rights of affected property owners and the ecological balance in accordance with the policy and purposes of this chapter, the St. Regis Mohawk Tribal Council shall promulgate by order the final wetlands map. A copy of the order, together with a copy of the wetlands map shall be filed in the offices of the Environment Division, and will be available for public review at a location or locations found by the Environment Division to be most publicly accessible. The Environment Division shall also publish a final notice of promulgation in a local newspaper.

(f) Upon completion, the Environment Division may readjust the map to clarify the boundaries of the wetlands, to correct any errors in the map, to make any additions, deletions or technical changes in the map, and to reflect changes that have occurred from the granting of permits pursuant to Section 5.06.050 and Section 5.06.060 of this chapter, or natural changes which may have occurred through erosion, accretion, wildlife activity, storm events, or otherwise. Notice of such readjustment shall be given in the same manner as set forth in subdivision (d) of this section for the promulgation of the final wetlands map.

(g) The Environment Division may, upon its own initiative, and in its sole discretion, identify more precisely the boundary line or lines of a wetland or portion thereof. Such more precise identification shall be of appropriate scale and sufficient clarity to permit the ready identification of individual buildings and of other structures or facilities or significant geographical features with respect to the boundary of any wetland. In making its determinations under this chapter, the Environment Division may consider the results of any additional delineations funded by individual applicants.

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Subchapter 3 Wetlands Regulations

5.06.050 Permits

(a) After issuance of the official wetlands map, any person desiring to conduct on wetlands designated on the map any of the regulated activities set forth in subdivision (b) of this section must obtain a permit as required by this title.

(b) Activities subject to regulation shall include any form of draining, dredging, excavation, removal of soil, mud, sand, shells, gravel or other aggregate from any wetland, either directly or indirectly; erecting any structures, roads, the driving of pilings, or placing of any other obstructions whether or not changing the ebb and flow of the water; any form of pollution, including but not limited to, installing a septic tank, running a stormwater or sanitary sewer outfall, discharging sewage treatment effluent or other liquid wastes into or so as to drain into a wetland; and any other activity which substantially impairs any of the several functions served by wetlands or the benefits derived from wetlands which are set forth in Section 5.06.020(e) of this chapter. These activities are subject to regulation whether or not they occur upon the wetland itself, if, in the discretion of the Environment Division, they inhibit or otherwise substantially affect the function of the wetlands and/or are located within 100 feet from the boundary of such wetland as indicated on the wetlands map.

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5.06.060 Non-Prohibited Discharge of Dredged or Fill Material

(a) The following activities are not prohibited by or otherwise subject to regulation under this chapter;

(1) The selective removal of the natural products of the wetlands by recreational and commercial fishing, shellfishing, aquaculture, silviculture, hunting or trapping shall be excluded from regulated activities, where otherwise allowed pursuant to Akwesasne cultural traditions, laws or regulations;

(2) The activities of farmers and other landowners in grazing and watering livestock, making reasonable use of water resources, selective harvesting of natural products of the wetlands, selectively cutting timber, draining land or wetlands for growing agricultural products and otherwise engaging in the use of wetlands or other land for growing agricultural products shall be excluded from regulated activities;

(3) The Environment Division shall develop and publish a list of medicinal plants, shrubs and herbs found in the wetlands of Akwesasne. Any person engaged in the collection, harvest or growth of such plants for non-commercial consumption shall be exempt from the permitting requirements of this chapter;

(4) Maintenance, including emergency reconstruction of recently damaged parts of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways and bridge abutments or approaches, and transportation structures;

(5) Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;

(6) Construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters;

(7) Construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized;

(8) Prior Converted Farmlands. The Environment Division finds that due to the pressures of outside forces, certain lands once converted to agricultural uses, have been left fallow, and for various reasons may know fall within the regulatory definition of Wetlands. The Environment Division may, on a case by case basis and in its sole discretion, exempt activities taking place on such prior converted farmlands from any or all parts of this chapter. In order to qualify for the exemption, the applicant must present to the Environment Division some credible evidence of the use of the particular parcel as farmlands. In making its determinations under this subsection, the Environment Division shall favor conversion to agricultural and residential uses over conversion for commercial uses.

(9) Single-Family Housing. Discharges of dredged or fill material into wetlands for the construction and expansion of a single-family home and attendant features (such as a garage, driveway, storage shed, and/or septic field) is allowed for an individual permittee provided the activity meets all of the following criteria:

(A) The discharge does not cause the loss of more than 1/4 acre of wetland;

(B) The permittee notifies the Environment Division in accordance with rules to be promulgated by the Environment Division;

(C) The permittee has taken all practicable actions to minimize the on-site and off-site impacts of the discharge;

(D) The discharge is part of a single and complete project;

(E) This subsection applies only to single-family homes to be used for a personal residence;

(F) Sufficient vegetated buffers must be maintained adjacent to all open water bodies, streams, etc., to preclude water quality degradation due to erosion and sedimentation.

(G) For the purposes of this subsection, the term "individual permittee" refers to a natural person and/or a married or co-habitating couple, but does not include a corporation, partnership, or similar entity.

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5.06.070 Applications for Permits

(a) Any person proposing to conduct or cause to be conducted a regulated activity upon any wetland shall file an application for a permit with the Environment Division. Review of the application shall be made by the Environment Division in accordance with applicable law and such rules as may be adopted by the Environment Division. The application shall include a detailed description of the proposed activity and a map showing the area of wetland directly affected, with the location of the proposed activity in relation to the wetland.

(b) No sooner than thirty and not later than sixty days after receipt by the Environment Division of an application, and after notice of application has been published by the applicant either in a local newspaper, or by any means practicable, the Environment Division shall hold a public hearing on such application at a suitable location unless no notice of objection has been filed or unless the Environment Division finds the activity to be of such a minor nature as not to affect or endanger the balance of systems within the wetlands, in which case the Environment Division may, in the exercise of discretion, dispense with such hearing. At such hearing any person or persons filing a request for a hearing may appear and be heard.

(c) The applicant shall have the burden of demonstrating that the proposed activity will be in accord with the policies and provisions of this chapter.

(d) Any person may ask the Environment Division whether or not a given parcel of land will be designated a wetland subject to regulation. The Environment Division shall give a definite answer in writing within 30 days of such request whether such parcel will or will not be so designated. The Environment Division shall make its determination based upon review of the Wetlands map, and a site visit. Applicants may, at their own risk and expense, commission a more precise delineation of the affected area. Such delineations are not binding upon the Environment Division and may only be performed by contractors approved by the Environment Division.

(e) For permits whose issuance is reasonably calculated to affect wetlands that straddle Reservation boundaries, or over which jurisdiction is shared with some other governmental entity, the applicant shall forward copies of such application and proposed permit to the governmental entity affected by the issuance of such permit. The applicant shall provide notice to the Environment Division of such forwarding, and the Environment Division must allow at least 21 days for review and comment on such proposed permit prior to its issuance. "Governmental Entity" as used in this sub-part, refers solely and exclusively to the Governments of Akwesasne.

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Subchapter 4 Appeal and Review

5.06.090 Wetlands Appeals Board

(a) There is created by this ordinance an appeals board, to be known as the Akwesasne Environmental Appeals Board ("Board"), consisting of seven members.

(b) In recognition that important wetlands and water quality issues may transcend human-drawn boundaries, each of the affected Tribal entities has the authority to appoint one (1) person to serve as a member of the Board. The term of office of such members will be __ years, unless such term is shortened because a member dies or resigns or the member is otherwise removed.

(c) The members of the Akwesasne Environmental Appeals Board will be appointed in the following proportions:

(1) One member of the St. Regis Mohawk Tribe Environment Division;

(2) One representative of the St. Regis Mohawk Tribal Council;

(3) One representative of the Mohawk Council of Akwesasne;

(4) One representative of the Mohawk Nation Council of Chiefs

(5) Three at-large members

(d) The procedures by which the representatives in sub-part (2) are selected will be established by rules promulgated by the Environment Division with the advice and consent of the St. Regis Mohawk Tribal Council, the Mohawk Council of Akwesasne, and the Mohawk Nation Council of Chiefs.

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5.06.100 Powers

(a) The board shall have power, and it shall be its duty:

(1) To meet and function at any place within Akwesasne;

(2) To adopt, promulgate, amend and rescind suitable procedural rules with respect to the functioning of the board and the setting of time limits for the hearing of appeals, the rendering of decisions on appeals, and the filing of the determination, decision or order of the board with the Environment Division;

(3) To hear appeals by any party to any wetland permitting proceeding before the Environment Division and from all orders or decisions of the Environment Division issued under this chapter, provided such appeals are started by filing with the Board a Notice of Appeal within thirty days after service of such order or decision;

(4) To receive briefs, and, where the board deems it advisable, to hear oral argument with respect to such appeals;

(5) To require the Environment Division to submit an original or certified copy of the entire record which any order or decision appealed from is based;

(6) To suspend the effectiveness of any order or decision of the Environment Division pending the determination of an appeal in proper cases and on such terms and conditions as the board may require.

(b) The board may affirm, remand, or reverse any order or decision of the Environment Division or remand the matter to the Environment Division for further consideration in whole, or in part, or with respect to any party. The Board shall limit its review to whether the order or decision of the Environment Division is:

(1) in conformity with the traditions and laws of Akwesasne;

(2) within the Environment Division's statutory jurisdiction or authority;

(3) made in accordance with procedures required by law or established by appropriate rules or regulations of the Environment Division;

(4) supported by substantial evidence on the whole record; or

(5) not arbitrary, capricious or characterized by abuse of discretion.

The Environment Division shall be bound by the decision of the Board except to the extent such decision is reversed or otherwise modified by the St. Regis Mohawk Tribal Council or a court of Tribal jurisdiction.

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5.06.110 Miscellaneous Provisions

(a) The provisions of this chapter shall not limit in any manner the functions, powers and duties of the Environment Division, or of any other Tribal department, division or agency, under this chapter or Tribal laws.

(b) The Environment Division, their agents and employees may enter upon any lands or waters after reasonable notice and for good cause shown for the purpose of undertaking any investigations, examination, survey, or other activity, including the eradication, treatment or destruction of non-indigenous species for the purposes of this chapter.

(c) The Environment Division may adopt and, from time to time, amend rules and regulations consistent with this chapter to assist in carrying out the functions, powers and duties provided by this ordinance.

(d) The provisions of this chapter shall not apply to activities which commenced or received approvals prior to the effective date of this ordinance.

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