12-07-77
TABLE OF CONTENTS
TITLE 14 ENVIRONMENT AND LAND USE
Chapter 14-1 Enforcement of Clean Air Standards
14-1.010 Adoption of Washington Clean Air statutes
and Regulations of Northwest Air Pollution
Authority
14-1.020 Jurisdiction and Enforcement
14-1.030 Due Process Requirements; Exclusion of
Certain NWAPA Regulations
14-1.040 Permits
14-1.050 Denial and Revocation of Permits
14-1.060 Penalties For Violations
14-1.070 Presumption of Retention of Jurisdiction
14-1.080 Inspection Authority of NWAPA Officials
and Employees
14-1.090 Severability
Appendix Articles of Agreement Between Swinomish
Indian Senate and NWAPA
Chapter 14-2 Environmental Policy Act
14-2.010 Purpose
14-2.020 Tribal Community Action: General Provisions
14-2.030 Preliminary Determination of Significance
14-2.040 Use of Preliminary Determination
14-2.050 Preparing Draft of EIS; Content
14-2.060 Agencies With Special Expertise; Comments
14-2.070 Circulation of Draft EIS
14-2.080 Public Hearing
14-2.090 Preparation and Circulation of EIS
14-2.100 Planning Commission Decision
14-2.110 Senate Review
14-2.120 Severability
Chapter 14-3 Planning Commission
14-3.010 Planning Commission Created
14-3.020 Duties of Planning Commission
14-3.030 Assistance to Planning Commission
14-3.040 Reports to Senate
Chapter 14-4 Establishment of Land Use Planning Advisory
Board
14-1.010 Purpose
14-1.020 Membership Provisions
14-1.030 Functions of the Board
TITLE 14
ENVIRONMENT AND LAND USE
Chapter Enforcement of Clean Air Standards
14-1 [History] Ord 36 (2/1/77)
14-1.010 Adoption of Washington Clean Air Statutes and Regulations
of Northwest Air Pollution Authority
The "Regulations of the NWAPA" and R.C.W. 70.94
are hereby adopted and incorporated by reference as
Tribal Law, insofar as they are applicable. This
incorporation includes, but is not limited to,
Sections 400, 500, and 600 of the Regulations of the
NWAPA.
14-1.020 Jurisdiction and Enforcement
Jurisdiction to implement and enforce said regulations
remain entirely with the Planning Commission,
Senate, and Court of the Community. Provisions within
the Regulations regarding alternate enforcement
by State officials or by any other official are not
incorporated by reference within this chapter.
14-1.030 Due Process Requirements; Exclusion of Certain NWAPA
Regulations
Due process requirements, penalties, and appellate
procedure as provided in this chapter or in
25 U.S.C. 15 shall govern in all instances, cases, or
controversies arising under this chapter. Similar
provisions in the aforesaid NWAPA Regulations are
not incorporated by reference within this chapter.
14-1.040 Permits
Permits are to be issued by the Swinomish Planning
Commission.
Initially, the staff of NWAPA will provide the
Commission with a list of all enterprises, machinery,
and other devices subject to the provisions of this
chapter. A permit is required to operate all enterprises,
machinery, and other devices subject to the
provisions of this chapter.
The fee permit schedule of NWAPA regulations is
hereby incorporated by reference as a part of this
chapter. By agreement of the parties, all or a
portion of fees collected shall be remitted to NWAPA,
for agency work done for the Swinomish Tribal Community.
Permits shall be for a period of one year and are
renewable upon an application made by the permittee
to the Swinomish Planning Commission.
14-1.050 Denial and Revocation of Permits
Enterprises, machinery, and other devices found
not to be in compliance with this chapter shall not
be issued a permit, and shall not be allowed to
operate until they are brought into compliance.
Reasonable time schedules may be utilized by the
Planning Commission to prevent unreasonable hardship.
14-1.060 Penalties For Violations
Violation of this chapter is an offense punishable
by a fine not to exceed $500 per offense and/or
a jail sentence not to exceed six months per offense.
A civil action in Tribal Court for damages is also
available to any person injured or damaged by a violation
of this chapter.
14-1.070 Presumption of Retention of Jurisdiction
As an immutable principle of construction and
interpretation of this chapter, any reasonable doubt
as to the applicability of any provision of this
chapter or the Regulations incorporated by reference
herein shall be resolved in favor of the complete
retention of jurisdiction by the Community.
14-1.080 Inspection Authority of NWAPA Officials and Employees
NWAPA officials and employees are to be utilized
by the Community, as agents of the Community, to inspect
and report any violations of the Regulations,
and permit conditions to the Planning Commission of
the community. NWAPA personnel may enter the business
premises of any business operating within the
boundaries of the Swinomish Indian Reservation
during regular business hours for the purpose of
carrying out the applicable provisions of the Regulations.
Provided, however, that this Section does
not apply to businesses located on U.S. Trust land.
In such cases, 24 hours notice of express consent
of the business operator is required before entry
will be lawful.
14-1.090 Severability
The provisions of this chapter are severable.
If a court of competent jurisdiction invalidates
any provision of this chapter, the remaining provisions
shall remain in effect.
APPENDIX 1
ARTICLES OF AGREEMENT
Between the Swinomish Indian Tribal Community
and the Northwest Air Pollution Authority,
regarding Enforcement of the Federal Clean Air
Act within the exterior boundaries of the Swinomish
Indian Reservation.
THIS is an Agreement entered into on the 01 day of
February, 1977, between the Swinomish Indian Tribal
Community, hereinafter the Community, and the Northwest Air
Pollution Authority, N.W.A.P.A.
This Agreement governs the enforcement of Clean Air
Standards within the exterior boundaries of the Swinomish
Indian Reservation.
1. As the political successor in interest to certain
bands and tribes that signed the Treaty of Point Elliott, 12
Stat. 928, and as a Federally-chartered corporation pursuant
to the Indian Reorganization Act, 48 Stat. 984, the Community
is the duly constituted governing body of the Swinomish Indian
Reservation.
2. Pursuant to the Treaty of Point Elliott, the Executive
Order of September 09, 1873, and Article I of the Constitution
and By-Laws of the Community, the jurisdiction of
the Community includes all territory within the original confines
of the Swinomish Indian Reservation, and extends to other
lands added by the Community as provided by Federal law.
3. The Community, as stated in Ordinance No. 36 and
in its Comprehensive Plan, is desirous of preserving the natural
beauty and clean environment within the Reservation.
4. The Community does not currently have the resources
to accomplish the technical tasks involved in enforcing Clean
Air Standards within the Reservation.
5. NWAPA, representing Island, San Juan, Skagit, and
Whatcom counties, formed pursuant to RCW 70.94, does have a staff
with such technical capabilities. However, NWAPA does not have
jurisdiction to enforce the State Clean Air Act, RCW 70.94,
within the boundaries of the Swinomish Indian Reservation.
Furthermore, NWAPA is interested in promoting Clean Air Standards
in carrying out the policy of the Federal and State Clean
Air Acts within the previously mentioned four Washington counties.
6. For the foregoing reasons, the Community and NWAPA
hereby enter into this Agreement, terminable, with or without
cause, by either party giving 45 days' notice to the other
party, governing the maintenance of clean air within the exterior
boundaries of the Swinomish Indian Reservation. Following
are the provisions of this Agreement.
a. Pursuant to Tribal Ordinance No. 36, the
Swinomish Indian Senate has adopted the "Regulations" of the
NWAPA" and RCW 70.94, and said Regulations are hereby incorporated
by reference, insofar as they are applicable, into this
Agreement. This incorporation includes, but is not limited to
the 400, 500, and 600 Sections.
b. Jurisdiction to implement and enforce said
Regulations remains entirely with the Planning Commission,
Senate, and Court of the Community. Provisions within the
Regulations regarding ultimate enforcement by State officials
or by any other official are not incorporated by reference within
this Agreement.
c. Permits are to be issued by the Swinomish
Planning Commission.
Initially, the staff of NWAPA will provide the
Commission with a list of all enterprises, machinery, and
other devices subject to the provisions of Ordinance No. 36.
A permit is required to operate all enterprises, machinery, and
other devices subject to the provisions of this Ordinance No. 36.
The fee permit schedule of NWAPA Regulations
is hereby incorporated by reference as a part of this Agreement.
By agreement of the parties, all or a portion of fees collected
shall be remitted to NWAPA, for agency work done for the Swinomish
Tribal Community.
Permits shall be for a period of one year and
are renewable upon an application made by the permittee to the
Swinomish Planning Commission.
d. Enterprises, machinery, and other devices
found not to be in compliance with Ordinance No. 36 shall not
be issued a permit, and shall not be allowed to operate until
they are brought into compliance. Reasonable time schedules
may be utilized by the Planning Commission to prevent unreasonable
hardship.
Denial or revocation of a permit for a violation
of Ordinance No. 36 shall be done with proper notice and a
fair hearing before the Swinomish Planning Commission.
e. The due process requirements of the Indian Civil
Rights Act, 25 U.S.C. Chapter 15, are applicable to instances,
cases, or controversies arising under this Agreement. Hearing
and other notice requirements as provided in the Regulations are
not incorporated by reference within this Agreement. Furthermore,
the penalties and appeal procedures as provided by the
Chap. 15 of 25 U.S.C. and Ordinance No. 36 are applicable.
Any reference to penalties, fines, or appellate procedure, or
the like, within the Regulations are not incorporated by reference
into this Agreement.
f. As an immutable principle of construction and
interpretation of this Agreement, any reasonable doubt as to
the applicability of any provision within the Regulations shall
be resolved in favor of the complete retention of jurisdiction
by the Community.
g. NWAPA officials and employees are to be utilized
by the Community, as agents of the Community, to inspect and
report any violations of the Regulations and permit conditions
to the Planning Commission of the Community. NWAPA personnel
may enter the business premises of any business operating within
the boundaries of the Swinomish Indian Reservation during
regular business hours for the purpose of carrying out the applicable
provisions of the Regulations. Provided, however, that
this Section does not apply to businesses located on U.S. Trust
land. In such cases, 24 hours' notice or express consent of
the business operator is required before entry will be lawful.
7. In the event one of the parties does not abide by
this Agreement, the other party shall give notice of the defect,
asking for a correction within 14 days from the date notice is
received. If such correction is not made, the offended party
has the right to cancel this Agreement effective with a 14-day
notice-to-cancel (from the date of receipt of same).
8. Any disagreements arising under this Agreement shall
be heard in the Court of the Swinomish Indian Tribal Community.
Northwest Air Pollution Auth. Chairman, Swinomish Indian Senate
Chairman, Board of Directors Tandy Wilbur Jr.
Northwest Air Pollution Auth. Vice-Chairman, Swinomish Indian Senate
Air Pollution Control Officer Landy James
Chapter
14-2
14-2.010 Purpose
The primary purpose of this act is to promote the general
welfare of Tribal Community members and others living on
Reservation lands, by creating and maintaining conditions under
which humanity and nature can exist in productive and enjoyable
harmony. Specific goals are:
a. To ensure that the Reservation is a place of safe, healthful,
productive, and aesthetically and culturally pleasing
surroundings.
b. To preserve areas of historic, archeological and cultural
significance.
c. To ensure a proper environment that is compatible with
the desired Indian lifestyle - present and future.
d. To attain the widest range of beneficial uses of the
environment without degradation, risk to health and
safety, or other undesirable and unintended consequences.
14-2.020 Tribal Community Action: General Provisions
All branches of the Tribal Community Government shall include
in every major action significantly affecting the quality of the
human environment, a detailed statement by the Tribal Community
Planning Commission or its designee, on--
a. The environmental impact of the proposed action.
b. Any adverse environmental effects which cannot be avoided
should the proposal be implemented.
c. Alternatives to the proposed action.
d. The relationship between local short-term uses of the
environment and the maintenance and enhancement of long-term
productivity.
e. Any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented.
The Planning Commission shall utilize a systematic, interdisciplinary
approach which will insure the integrated use of the natural and
social sciences and the environmental design arts in planning and
in decision-making which may have an impact on man's environment.
The Planning Commission shall identify and develop methods and
procedures which will insure that presently unqualified environmental
amenities and values may be given appropriate consideration
in decision-making along with economic and technical considerations.
The Planning Commission shall study, develop and describe
appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative
uses of available resources.
14-2.030 Preliminary Determination of Significance
The Planning Commission shall identify major actions
significantly affecting the quality of the human environment. In
making this preliminary determination, the Planning Commission shall
consider:
a. Whether the action is highly controversial.
b. Whether an otherwise minor action will have a cummulatively
significant impact.
c. Any secondary effects.
d. The nature of the setting where the proposed action would
be taken.
e. All known and all probable beneficial and detrimental
environmental effects. Even if on balance the Planning
Commission believes that the effect will be beneficial,
the action may still have a significant effect on the
environment.
14-2.040 Use of Preliminary Determination
If the Planning Commission determines:
a. that the action is not major or does not significantly
affect the quality of the human environment, it shall
prepare a declaration of non-significance which shall be
located in the Tribal Office.
b. that the action is major and has a significant effect on
the quality of the human environment, it shall prepare a
declaration of significance which shall be located in the
Tribal Office. Such proposed actions require preparation
of an Environmental Impact Statement (EIS).
14-2.050 Preparing Draft of EIS: Content
When an EIS is required, the Planning Commission or its
designee shall prepare a draft EIS which shall satisfy, to the
fullest extent possible, the requirements of Section 14-2.050 and
shall include the following points:
a. A description of the proposed action, its purposes and the
environment which will be affected.
b. A description of any effect it may have on population or
growth.
c. The relationship of the proposed action to land use plans
for the affected area.
d. The positive and negative, known and probable effects of
the proposed action on the environment. This should
include secondary as well as primary effects.
e. Alternatives to the proposed action which might reduce or
eliminate adverse impacts, including sufficient analysis
of the environmental benefits, costs and risks of such
alternatives.
f. A brief section summarizing those environmental effects
discussed in Section 14-2.050(d) which are adverse and
unavoidable.
g. A brief discussion of the extent to which the proposed
action involves tradeoffs between short-term gains at the
expense of long-term environmental losses, or vice-versa.
h. A description of those impacts discussed in Section
14.2.050(f) which irreversibly curtail the range of
potential uses of the environment.
14-2.060 Agencies With Special Expertise; Comments
In preparing the draft EIS, the Planning Commission may consult
with, and obtain comments from agencies with special expertise.
14-2.070 Circulation of Draft EIS
a. Copies of the draft EIS shall be kept in the Tribal Office
for public inspection.
b. Copies of the draft EIS Shall be sent to those agencies
consulted during its preparation.
c. Interested persons may request copies of the draft EIS
from the Planning Commission. Copies shall be provided at
no more than the cost of printing and mailing.
d. A notice announcing the availability of the draft EIS
shall be published in the LaConner newspaper.
e. Agencies and the public shall have thirty (30) days to
comment on the proposed action. The Planning Commission
may grant a fifteen (15) day extension when it believes
such an extension is necessary.
f. Copies of all the comments shall be kept in the Tribal
Office for public inspection.
14-2.080 Public Hearing
After publication of the draft EIS, the Planning Commission
shall hold a public hearing, whenever appropriate, for the
consideration of environmental aspects of the proposed action and to
provide the public with relevant information.
a. In determining whether a public hearing is appropriate, the
Planning Commission shall consider such factors as the
magnitude of the proposed action, the degree of interest
in it, the complexity of the issues and the extent to which
the public has already been involved.
b. Ten (10) days prior to the hearing, the Planning Commission
shall publish a notice in the LaConner paper of its time
and place.
14-2.090 Publication and Circulation of EIS
a. The Planning Commission shall review the environmental
effects of the proposed action in light of opposing
professional views and responsible opinion which were
brought to the Planning Commission's attention during the
thirty (30) day commenting period.
b. The Planning Commission should make meaningful reference
in the final EIS to any responsible opposing view not
adequately discussed in the draft EIS and should indicate
the Planning Commission's response to the issues raised.
c. The revised EIS, together with substantive comments received
on the draft EIS (or summaries thereof) shall be circulated
in the same manner as the draft EIS.
d. If the Planning Commission determines that the draft EIS
is sufficient and needs no revision, it shall circulate a
statement to that effect. The draft EIS, together with this
statement, shall constitute the final EIS.
14-2.100 Planning Commission Decision
The Planning Commission may not take major action on the proposal
for seven (7) days after publication of the final EIS.
14-2.110 Senate Review
Decisions of the Planning Commission pursuant to this Ordinance
are reviewable by the Swinomish Indian Senate in accordance with
the same procedure provided in Section 17-6.040 of Title 17-Zoning.
14-2.120 Severability
The provisions of Section 17-6.090 of Title 17-Zoning, are
hereby invorporated by reference.
Chapter Planning Commission
14-3 [History] Ord 21 (3/3/64)
14-3.010 Planning Commission Created
There is hereby established a Planning Commission
for the Swinomish Indian Reservation and
Swinomish Indian Tribal Community, the same to be
known as the "Planning Commission." The Planning
Commission shall consist of three members appointed
by the Chairman of the Swinomish Indian Senate
and may be either members or non-members of the
Swinomish Indian Tribal Community.
14-3.020 Duties of Planning Commission
It shall be the duty of the Planning Commission
to prepare a comprehensive community plan and recommend
the same, together with revisions from time
to time as the same become necessary, for adoption
by the Swinomish Indian Senate, together with recommendations
on the adoption of a zoning code,
various building codes, and in general make recommendations
to the Senate with regard to proposed
projects, programs or activities which affect the
physical growth and development of the Swinomish
Reservation.
14-3.030 Assistance to Planning Commission
The Planning Commission may secure assistance
from the Western Washington Agency, the Bureau of
Indian Affairs, public or private agencies and
technical staffs, provided that no expense in
connection therewith, chargable against the
Swinomish Tribal Community, shall be incurred without
prior approval of the Swinomish Indian Senate.
14-3.040 Reports to Senate
The Planning Commission shall report at least
quarterly to the Swinomish Indian Senate, and at
such other times as the Swinomish Indian Senate
shall request, concerning matters involved in an
overall comprehensive general plan for the Swinomish
Indian Reservation and Swinomish Indian
Tribal Community.
Chapter Establishment of Land Use Planning Advisory Board
14-4 [History] Ord 43 B (12/7/77)
14-4.010 Purpose
The purpose of this chapter is to establish
a Land Use Planning Advisory Board for the Swinomish
Indian Reservation.
14-4.020 Membership Provisions
(a) The Land Use Planning Advisory Board shall
consist of five members of the Swinomish Tribal
Community. These five members shall be appointed
annually by the Swinomish Indian Senate.
(b) The Land Use Planning Advisory Board shall
also consist of two other Reservation people to be
selected by the Swinomish Indian Senate from a list
of names provided by the Swinomish Planning Commission
and Swinomish Senators.
14-4.030 Functions of the Board
The Board shall attend Swinomish Planning Commission
meetings when the subject of those meetings
is Commission administration of Swinomish land use
law and advise the Planning Commission of actions
Board members believe would be appropriate.
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