09-19-85
TRIBAL CODE
CHAPTER 23:
RESERVATION WATER AND SHORELINE PROTECTION AND ENHANCEMENT ORDINANCE
CONTENTS
CHAPTER I: General Provisions
23.101 Purpose.
23.102 Authority
23.103 Effective Date.
23.104 Abrogation and Greater Restrictions.
23.105 Interpretation.
23.106 Severability and Non-Liability.
23.107 Applicability.
23.108 Definitions.
CHAPTER II: Establishment of Bulkhead Lines
23.210 Authority to Establish.
23.202 Standards for Establishing.
23.203 Filing of Bulkhead Lines.
23.204 Effect on Riparian Owners.
CHAPTER III: Permits for Structures and Deposits in Reservation
Waters.
23.301 Permit Required for Certain Activities.
23.302 Standards for Permit Issuance.
23.303 Activities Presumed to be Non-Detrimental to Tribe's
Interests.
23.304 Contents of Permit Application.
23.305 Site Inspection.
23.306 Permit Fee.
CHAPTER IV: Regulation of Structures on Reservation Waters
23.401 Boathouses.
23.402 Fishing Rafts.
23.403 Wharves and Piers.
23.404 Permits for Wharves and Piers.
23.405 Bridges in or Over Reservation Waters.
23.406 Abandoned Structures.
23.407 Obstructions to Navigation.
CHAPTER V: Removal of Material From Reservation Waters
23.501 Cutting of Weeds.
23.502 Plant Removal Without Consultation.
23.503 Removal of Weeds.
23.504 Removal of Material From Bed of Reservation Water.
23.505 Purpose for Removal of Material From Bed.
23.506 Contents of Permit Application.
23.507 Contents of Project and Reclamation Plan.
23.508 Standards for Permit Issuance.
23.509 Bond Requirements.
23.510 Contents of Permit.
23.511 Permit Extensions.
23.512 Site Inspection.
23.513 Permit Fee.
CHAPTER VI: Diversion of Water From Reservation Lakes and
Streams
23.601 Authorized Diversion of Water.
23.602 Unauthorized Diversion of Water.
CHAPTER VII: Wetland Protection
23.701 Establishment of Wetland Areas.
23.702 Authorized Uses in Wetland Areas.
23.703 Prohibited Uses in Wetland Areas.
23.704 Requirements of Conditional Use Permit.
23.705 Contents of Conditional Use Permit Application.
23.706 Site Inspection.
23.707 Conditional Use Permit Fee.
CHAPTER VIII: Water Quality Protection
23.801 Minimum Lot Size.
23.802 Building Setback Requirements.
23.803 Cutting of Trees and Shrubbery Restrictions.
23.804 Restrictions Upon Filling, Grading, Lagooning,
Dredging, Ditching and Excavating.
CHAPTER IX: Nonconforming Uses and Structures
23.901 Definition.
23.902 Prohibited Nonconforming Uses.
23.903 Nonconforming Structures.
23.904 Discontinuance of Use of Nonconforming Structure.
23.905 Destruction or Damage to Nonconforming Structure.
CHAPTER X: Enforcement and Penalties
23.1001 Enforcement by Tribal Law Enforcement Personnel.
23.1002 Enforcement by Wisconsin DNR Wardens.
23.1003 Authority of Law Enforcement Personnel.
23.1004 Civil Remedial Forfeiture of Property.
23.1005 Civil Remedial Money Penalties.
23.1006 Parties to a Violation.
23.1007 Injunctive Relief.
23.1008 Condemnation of Property.
23.1009 Damages.
23.1010 Jurisdiction.
HISTORY NOTE:
Adopted and placed for referendum September 16, 1985, Resolution
No. 332(85).
Enacted by referendum September 19, 1985.
Approved by the Secretary of the Interior June 2, 1986.
Effective as to tribal members, September 19, 1985; as to
non-members, June 2, 1986.
TRIBAL CODE
CHAPTER 23
RESERVATION WATER AND SHORELINE PROTECTION AND ENHANCEMENT ORDINANCE
CHAPTER I: GENERAL PROVISIONS
23.101 Purpose.
The purpose of this ordinance is to provide for the protection,
enhancement, and management of the lac du Flambeau Reservation's lakes,
streams, and ponds and their shorelines in order to assure present and
future use and enjoyment of these resources by tribal members and such
others as the Tribe shall permit.
23.102 Authority.
This ordinance is enacted pursuant to Article VI, Section 1(a),
(i), and (n) of the Tribe's Constitution.
23.103 Effective Date.
This ordinance shall take effect on the day following adoption by
the Lac du Flambeau Tribal Council.
23.104 Abrogation and Greater Restrictions.
Where this ordinance imposes greater restrictions than those
contained in other tribal ordinances, codes, or resolutions, the
provisions of this ordinance shall govern.
23.105 Interpretation.
In the interpretation and application of the provisions of this
ordinance, said provisions shall be held to be minimum requirements,
and shall be liberally constued in favor of the Tribe and shall not be
deemed a limitation on or a repeal of any other tribal power or
authority.
23.106 Severability and Non-Liability.
If any section, provision, or portion of this ordinance is
adjudged unconstitutional or invalid by a court of competent
jurisdiction, the remainder of this ordinance will not be affected
thereby. The Tribe declares there is no liability on the part of the
Tribe, its agencies, or employees, for damages that may occur as a
result of reliance upon or conformance with this ordinance. The Tribe,
by adoption of this ordinance, does not waive sovereign immunity in any
respect.
23.107 Applicability.
This ordinance shall apply to activities undertaken upon the
Tribe's reservation. It shall only apply to members unless a provision
expressly provides to the contrary; provided, that the penalty
provisions contained in Chapter IV shall apply to all persons who
violate this ordinance.
23.108 Definitions.
(1) "Tribe" means the Lac du Flambeau Band of Lake Superior
Chippewa Indians.
(2) "Tribal Court" means the Lac du Flambeau Tribal Court.
(3) "Member" means a person enrolled in the Tribe.
(4) "Reservation" means the geographical area within the external
boundaries of the Lac du Flambeau Reservation, as surveyed and provided
pursuant to Article 1, Clause 3d of the Treaty of September 30, 1854,
10 Stat. 1109.
(5) "Reservation waters" means all lakes, streams, sloughs,
bayous, and marsh outlets which are navigable in fact and which are
located within the reservation; lakes which are partly within this
reservation are included to the extent of the shoreline within the
reservation.
(6) "Indian land" means all land which is held in trust by the
United States for the benefit of the Tribe or of a member of the Tribe,
and all land owned in fee by the Tribe or a member of the Tribe, such
land being within the reservation boundaries defined in subsection (4)
above.
(7) "Pier" means any structure extending channelward from the
shore with water on both sides, built or maintained for the purpose of
providing a berthing or mooring place for watercraft or for loading or
unloading cargo or passengers onto or from watercraft.
(8) "Wharf" means any structure extending along the shore and
generally connected with the uplands throughout its length, built or
maintained for the purpose of providing a berthing or mooring place for
watercraft or for loading or unloading cargo or passengers onto or from
watercraft.
(9) "Breakwall" means any structure extending along the shore
built or maintained for the purpose of preventing shoreline erosion
through water or wave action.
(10) "Bank" means the land surface abutting the bed of any
navigable water body which, either prior to any project or alteration
of land contours or as a result of the proposed project or alteration,
slopes or drains without complete interruption into the water body.
(11) "Grade or otherwise remove" means the physical disturbance
of the bank by the addition, removal or redistribution of topsoil.
(12) "Topsoil" means the uppermost surface layer of the ground
before or after grading or otherwise removing.
(13) "Reclamation" means the rehabilitation of the project site
including, but not limited to, establishment of adequate vegetative
cover, stabilization of soil conditions, prevention of environmental
pollution and where practicable, restoration of fish, plant and
wildlife habitat.
(14) "Project site" means the surface area disturbed by a project
operation, including the surface area from which materials have been or
will be removed, the surface area covered by or to be covered by
project refuse and land disturbed or to be disturbed by construction or
improvement of haulage ways.
(15) "Boathouse" means a permanent structure used for the storage
of watercraft and associated materials and includes all structures
which are totally enclosed, have roofs or walls or any combination of
structural parts. The term does not include shore stations which are
removed from a waterway on an annual basis.
(16) "Ordinary high-water mark" means the point on the bank or
shore up to which the presence and action of surface water is so
continuous as to leave a distinctive mark such as by erosion,
destruction or prevention of terrestrial vegetation, predominance of
aquatic vegetation, or other easily recognized characteristic. Where
the bank or shore at any particular place is of such character that
it is difficult or impossible to ascertain where the point of ordinary
high-water mark is, recourse may be had to the opposite bank of a
stream or to other places on the shore of a lake or flowage to
determine whether a given stage of water is above or below the ordinary
high-water mark.
(17) "Shorelands" means the lands within the following distances
from the ordinary high-water mark of navigable waters:
(a) One thousand (1,000) feet from a lake, pond or flowage;
(b) Three hundred (300) feet from a river or stream or to
the landward side of the floodplain, whichever distance
is greater.
(18) "Wetlands" means those areas where water is at, near, or
above the land surface long enough to be capable of supporting aquatic
or hydrophytic vegetation and which has soils indicative of wet
conditions.
(19) "Floodplain" means the land which has been or may be covered
by flood water during the regional flood, and includes the floodway and
floodfringe.
(20) "Regional flood" means a flood determined to be
representative of large floods known to have occurred in Wisconsin or
which may be expected to occur on a particular lake, river, or stream
once in every one hundred (100) years.
(21) "Floodway" means the channel of a river or stream, and those
portions of the floodplain adjoining the channel required to carry the
regional flood discharge.
(22) "Floodfringe" means that portion of the floodplain outside
of the floodway, which is covered by water during the regional flood.
The term is generally associated with standing, rather than flowing,
water.
CHAPTER II: ESTABLISHMENT OF BULKHEAD LINES
23.201 Authority to Establish.
The Lac du Flambeau Tribal Council shall establish bulkhead lines
for all reservation waters; such authority shall be exercised by the
Coordinator of the Realty and Natural Resources program, after
consultation with the Tribal Council. Bulkhead lines may from time to
time be reestablished along any section of the shore of any reservation
water.
23.202 Standards for Establishing.
Bulkhead lines shall be established in the interest of the Tribe,
and shall conform as nearly as practicable to the existing shores,
except that in the case of navigation improvement project areas,
bulkhead lines may be established farther from the existing shoreline.
23.203 Filing of Bulkhead Lines.
A map shall be prepared and filed in the office of the Realty and
Natural Resources Coordinator of all bulkhead lines established by the
Tribal Council. Said map shall indicate both the existing shore and
the bulkhead line, and shall not be of a scale of less than one hundred
(100) feet to the inch. A copy of said map shall be filed in the North
Central District Offices of the Wisconsin Department of Natural
Resources.
23.204 Effect on Riparian Owners.
Establishment of a bulkhead line shall not abridge the riparian
rights of riparian owners and lessees of the Tribe. Such persons may
place solid structures or fill up to such line.
CHAPTER III: PERMITS FOR STRUCTURES AND DEPOSITS IN RESERVATION WATERS
23.301 Permit Required for Certain Activities
No tribal member or lessee shall conduct, or shall any tribal
member or lessee permit, employ, contract or authorize any person to
conduct, any of the following activities without a permit therefor from
the Tribe:
(1) Deposit any material or place any structure upon the bed of
any reservation water where no bulkhead line has been established, or,
(2) Deposit any material or place any structure upon the bed of
any reservation water beyond a lawfully established bulkhead line.
23.302 Standards for Permit Issuance.
The tribe may grant to any tribal member or lessee, and to any
person acting under his direction, control, supervision or employment,
a permit to build or maintain for the member or lessee's use a
structure otherwise prohibited by Section 23.301, above, if the
structure does not materially obstruct navigation or reduce the
effective flow capacity of a stream and is not detrimental to the
Tribe's interests. The Tribe may consult with the Wisconsin Department
of Natural Resources in determining whether to issue a permit.
23.303 Activities Presumed to be Non-Detrimental to Tribe's Interests
The tribe, upon application and investigation, may grant to a
tribal member or lessee a permit to conduct any of the following
activities, which are presumed not to be detrimental to the Tribe's
interests:
(1) Place a layer of sand or similar material on the bed of a
lake adjacent to the member or lessee's property for the purpose of
improving recreational use.
(2) Place a fish crib or similar device on the bed of a lake for
the purpose of improving fish habitat.
(3) Place riprapor similar material on the bed and bank of
navigable reservation waters adjacent to the member or lessee's
property for the purpose of protecting the bank and adjacent land from
erosion.
(4) Place crushed rock or gravel, reinforced concrete planks,
adequately secured and treated timbers, cast in place concrete or
similar material on the bed of a navigable stream for the purpose of
developing a ford if an equal amount of material is removed from the
stream bed.
23.304 Contents of Permit Application.
Any person wishing to undertake any activity subject to the
restrictions of Section 23.301 shall first make application for a
permit from the Tribe, which shall contain the following information in
writing:
(1) Name of the applicant;
(2) Specific details on the type of activity to be undertaken;
(3) Location of the activity;
(4) Length of time within which the activity is expected to
occur;
(5) Identity of any person who will conduct the activity under
the supervision, direction, control, contract or employment of an
applicant; and
(6) A map indicating the location of the proposed activity.
23.305 Site Inspection.
Prior to the issuance of any permit for which application is made
under Section 23.304, the Realty and Natural Resource Coordinator shall
undertake a site inspection, and may consult with tribal and state
resource personnel in such inspection.
23.306 Permit Fee.
The Realty and Natural Resource Coordinator shall issue a permit
for activities subject to Section 23.301, upon determination in writing
that such activity meets the requirements of this Chapter and upon
receipt from the applicant of a fee in the amount determined according
to a schedule therefor adopted by the Tribal Council.
CHAPTER IV: REGULATION OF STRUCTURES ON RESERVATION WATERS.
23.401 Boathouses.
After the effective date of this ordinance, no permit may be
issued for the construction or placement of a boathouse beyond the
ordinary high-water mark of any reservation body of water. A permit
may be issued for any of the following activities relating to boathouse
maintenance for such structures which are in existence and in place on
the effective date of this ordinance:
(1) Repair and maintenance of a boathouse extending beyond the
ordinary high-water mark if the cost of the repair or maintenance does
not exceed fifty percent (50%) of the current fair market value as
certified by a competent appraiser using standard real estate appraisal
techniques. This cost limitation does not apply to any such structure
damaged by a violent wind, vandalism or fire.
(2) Construction, repair or maintenance of a single-story
boathouse over a water enlargement for a boatslip if:
(a) The boathouse does not extend beyond the ordinary
high-water mark as it existed prior to the enlargement;
(b) The boathouse covers the entire enlargement; and
(c) No living quarters or plumbing fixtures are constructed
in the boathouse.
(3) Any application requesting a permit under this section shall
include a statement of all needed repair and maintenance items which
are contemplated, together with a statement as to the existing, if any,
condition of the foundation, structural framework, siding, roofing,
and living quarters.
23.402 Fishing Rafts.
No permit may be issued for the construction or placement of a
fishing raft upon any reservation body of water. Such a structure is
defined as any raft, float or structure, including a structure located
or extending below or beyond the ordinary high-water mark of a body of
water, which is designed to be used or is normally used for fishing,
which is not normally used as a means of transportation of water and
which is normally retained in place by means of a permanent or
semipermanent attachment to the shore or bed of the water body.
23.403 Wharves and Piers.
No permit need be obtained for the construction of a wharf or pier
on a reservation water if all the conditions below are met:
(1) The wharf or pier does not interfere with the public rights
in navigable waters;
(2) The wharf or pier does not interfere with the rights of
other riparian proprietors;
(3) The wharf or pier does not extend beyond the bulkhead line
which is established under Section 23.201; and
(4) The wharf or pier is so constructed as to:
(a) Allow the free movement of water underneath;
(b) Not to cause the formation of land by deposition of
littoral drift sediment upon the bed of water; and
(c) Not be constructed or maintained with a screen or in any
other manner which would trap or accumulate aquatic
plants.
23.404 Permits for Wharves and Piers.
No wharf or pier shall be constructed or maintained unless it is
in compliance with Section 23.403 or a permit shall be issued under
Section 23.301(1). In no event shall a permit be issued authorizing
any of the following:
(1) Construction of a solid pier, which is defined as a
structure not allowing for the free flow of water beneath.
(2) Construction of a pier which extends into the water from the
shoreline beyond the point at which a three-foot depth contour is
reached, or beyond the length of the boat using the pier.
23.405 Bridges in or Over Reservation Waters.
Any bridge which is constructed so as to cross a navigable body of
reservation water must be authorized by a permit issued under Section
23.301 or be subject to approval by either the Bureau of Indian Affairs
or the Department of Natural Resources as a highway bridge. No bridge
shall be constructed which:
(1) Does not maintain a clearance of at least five (5) feet
between the bottom of the lowest portion of the bridge span and the
elevation of the ordinary high-water mark of the body or water.
(2) Does not conform to the flood flow requirements, if any, of
this ordinance.
(3) Does not span the stream from bank to bank.
(4) Does not have at least one end of the structure which is
firmly anchored in such a manner that the bridge will not be
transported downstream during flood conditions.
(5) Has approaches which increase the elevation above existing
natural ground elevation or has approach ramps exceeding one foot in
elevation to meet the bridge deck or are more than fifteen (15) feet
in length.
23.406 Abandoned Structures.
Any structure extending from the shoreline of a reservation body
of water which is abandoned may be removed by the Tribe pursuant to
the provisions of Section 23.1008 of this ordinance. For purposes of
this section, "abandoned" means the relinquishment of possession by the
owner with indications of intent to terminate ownership, which may by
evidenced by several factors, including the failure to act to maintain
or repair the structure for a period longer than one (1) year.
23.407 Obstructions to Navigation.
Any structure which is constructed or utilized without the
requisite permit under Section 23.301 or which is the subject of a
complaint to the Tribe that it unduly interferes with the rights of
others to utilize reservation waters may be removed by the Tribe
pursuant to the provisions of Section 23.1008 of this ordinance.
CHAPTER V: REMOVAL OF MATERIAL FROM RESERVATION WATERS
23.501 Cutting of Weeds.
No person shall cut weeds growing or found in any reservation body
of water without first consulting with the Tribe's Fish and Game
Department as to the identity of the weed said person proposes to cut.
In the event that the Fish and Game Department determines that the weed
is in fact wild rice or a plant advantageous to wildlife or fish
habitat, it shall issue a written notice to said person not to cut the
plant species. Any person who cuts a plant after receipt of such
written notice shall be subject to the penalty provisions of Chapter
X.
23.502 Plant Removal Without Consultation.
Any person who cuts down plants without consultation with the Fish
and Game Department prior to such action shall be subject to the
penalty provisions of Chapter X.
23.503 Removal of Weeds.
Cutting plants determined to be weeds in any reservation body of
water requires the person or persons involved to remove cut plants from
the water and to dispose of them in conformance with this ordinance and
all other applicable law. Failure to do so shall subject a violator to
the penalty provisions of Chapter X.
23.504 Removal of Material from Bed of Reservation Water.
No person shall remove any material from the bed of any
reservation body of water without first obtaining a permit for such
activity from the Tribe.
23.505 Purpose for Removal of Material From Bed.
No person shall be granted a permit to remove any material from
the bed of any reservation body of water for the purpose of sale of any
such material. A permit may be issued for any of the following
purposes:
(1) To construct, dredge or do any work in connection with any
artificial waterway, canal, channel, ditch, lagoon, pond, lake or
similar waterway for the purpose of ultimate connection with an
existing navigable stream;
(2) To construct, dredge, commence or do any work in connection
with any artificial waterway which is located within five hundred (500)
feet of the ordinary high-water mark of an existing navigable stream,
lake or other body of navigable water.
(3) To change the course of or straighten a navigable stream.
(4) To remove material from a lake bed which, through siltation
or because of lowered water level, has been determined by the Tribe to
be unfit for recreational use in order to restore the area to
recreational use.
23.506 Contents of Permit Application.
Any person seeking to remove material from the bed of a
reservation body of water for any of the purposes authorized in Section
23.505 shall apply therefor on a form provided by the Tribe's Realty
and Natural Resources Department, and shall include in addition the
following:
(1) The location, extent, depth, and manner of project
operations anticipated; proposed means of loading and transporting of
material; and estimated volume and quality of material to be extracted,
accompanied by an adequate documentation of the basis for such
estimates;
(2) A legal description of all land within the project site
which applicant owns, leases or has an option to purchase or lease;
(3) A timetable of the commencement, duration and cessation of
project operations. The timetable shall reflect that the project site
shall remain open for the minimum necessary period of time;
(4) A project and reclamation plan in accordance with the
following section;
(5) Satisfactory evidence that the applicant has applied for or
obtained all necessary local, state and federal permits and licenses
for the project operations;
(6) Satisfactory evidence that the applicant or proposed
operator is technically and financially qualified to conduct and
complete project operations and progressive and final reclamation
plans; and
(7) Estimated cost of progressive and final reclamation of the
project site.
23.507 Contents of Project and Reclamation Plan.
Each permit application shall include a project and reclamation
plan, which shall describe:
(1) The nature, extent and final configuration of the project
site including nature, depth, location and extent of stockpiled
materials, and disposal of waste or overburden.
(2) The progressive and final reclamation plans detailing the
manner, time and location of:
(a) The removal, stockpiling, and protection of all
materials in conformance with this ordinance.
(b) Adequate measures to screen the project from view from
the waterway;
(c) Grading and stabilization of the project site;
(d) Adequate diversion and drainage of ground and surface
water from the project site with no resultant pollution
of ground or surface water; or in the event that fish
entrapment is likely to occur, impoundment of water of
sufficient permanency, size, and quality to benefit
public use, with stable slopes and banks and adequate
public access; and
(e) Erosion and drainage control, and revegetation
utilizing soil conservation service critical area
planting guidelines for the slope and soil type or the
Wisconsin Department of Transportation minimum seeding
requirements for disturbed earth, with diverse,
self-regenerative species utilized where consistent with
final reclamation.
(3) An acknowledgement of continuing responsibility for
restoration and revegetation of the project site until stabilization has
been determined adequate by the Realty and Resource Department.
(4) A description of the existing natural and physical conditions
of the project site, including necessary maps and cross sections
acceptable to the department concerning;
(a) Soil and geologic composition of the project area;
(b) Location and dimensions of surface waters;
(c) Location of ground water;
(d) Hydraulic cross sections of the floodplains of
any streams;
(e) Location of man-made features in the project site;
(f) Detailed map and description of the nature and extent of
existing excavations, stockpiled materials, topsoil and
refuse in the project site;
(g) Historical and archeological features, if known; and
(i) Existing drainage patterns.
23.508 Standards for Permit Issuance.
The Tribe may grant to any tribal member or lessee, and to any
person acting under such person's direction, control, supervision or
employment a permit to conduct an activity subject to the provisions of
Section 23.505 upon assurance satisfactory to the Tribe that such
activity is not detrimental to the Tribe's interest, and will be
conducted in such manner as not to result in degradation of water
quality, erosion of the affected shoreline, or destruction of wildlife
or aquatic habitat. The Tribe may consult with the Wisconsin
Department of Natural Resources in determining whether to issue a
permit.
23.509 Bond Requirements.
In addition to the information which must be submitted to the
Tribe under Sections 23.506 and 23.507, the Tribe may require as a
condition of permit issuance that the applicant submit a bond in an
amount equal to the cost of the proposed reclamation of the activity
site. The Tribe may accept a bond issued by a surety company licensed
to do business in the State of Wisconsin, a performance bond issued by
said company, or a cash bond. The bond shall provide that if issued by
a surety, it may not be cancelled at the surety's option, without a
minimum advance notice to the Tribe of sixty (60) days. The bond shall
be payable to the Lac du Flambeau of Lake Superior Chippewa Indians.
23.510 Contents of Permit.
A permit issued by the Tribe under this Chapter shall be granted
for a specified period of time, and shall include the following
conditions:
(1) Projects shall be limited to the dimensions and depth
approved by the Tribe;
(2) Any waterway created by such project shall be a tribal
waterway;
(3) There will be no stockpiling or storage of materials subject
to regulation under Chapter III or VII of this ordinance;
(4) Progressive and final reclamation of the site is
accomplished;
(5) If determined necessary by the Tribe, banks and drainages
to navigable waterways shall be stabilized prior to and during project
operations, and drainages shall be filtered where necessary to prevent
siltation and water turbidity;
(6) Such other requirements as are necessary to ensure project
operation and reclamation is conducted in conformance with the purposes
of this ordinance.
23.511 Permit Extensions.
A permit extension may be granted by the Tribe if a request for
such an extension is made in writing prior to the expiration date of
the existing permit, subject to the following requirements:
(1) No extension may be granted for an activity or project which
is not in compliance with the terms of the existing permit.
(2) No extension may be granted for a period more than one-half
the duration of the original permit.
(3) No extension may be granted if the applicant cannot
demonstrate a reasonable progression of excavation has been followed at
the project site.
(4) An extension may be conditioned upon correction of any
unanticipated environmental damage occurring during the original
permit.
23.512 Site Inspection.
Prior to the issuance of any permit for which application is made
under Section 23.506 and at any time during the term of the permit, the
Tribe may undertake a site inspection, and may consult with state
personnel in such inspection(s).
23.513 Permit Fee.
The Tribe, through the Realty and Resource Coordinator, shall
collect from the applicant a fee for said permit and/or permit
extension in an amount determined according to a schedule therefor,
adopted by the Tribal Council.
CHAPTER VI: DIVERSION OF WATER FROM RESERVATION LAKES AND STREAMS
23.601 Authorized Diversion of Water.
A tribal member or lessee, or person acting under such person's
employment, contract or authorization, may temporarily divert the
surplus water of any stream for the purpose of bringing back or
maintaining the normal flow of water in any navigable stream of the
reservation.
23.602 Unauthorized Diversion of Water.
No other diversion of water from a lake or stream of the Lac du
Flambeau Reservation may be conducted.
CHAPTER VII: WETLAND PROTECTION
23.701 Establishment of Wetland Areas.
The Tribe, through its Realty and Resource Department, shall
designate all lands within the boundaries of the Lac du Flambeau
Reservation which are wetlands. In so doing, the Tribe shall make
reference to the wetland inventory maps, if any, prepared by the
Department of Natural Resources.
23.702 Authorized Uses in Wetland Areas.
No tribal member or lessee, or person acting under such person's
employment, contract, or authorization, shall engage in any activity on
tribally-designated wetland other than the following:
(1) Hiking, fishing, trapping, hunting, swimming, snowmobiling
and boating.
(2) Harvesting of wild crops, including marsh hay, ferns, moss,
wild rice, berries, tree fruits and seeds, in a manner that is not
injurious to the natural reproduction of such crops and that does not
involve filling, flooding, draining, dredging, ditching, tilling, or
excavating.
(3) Practice of silviculture, including planting, thinning, and
harvesting of timber, provided that no filling, flooding, draining,
dredging, ditching, tilling or excavating is done except as necessary
for:
(a) Temporary water level stabilization measures to
alleviate abnormally wet or dry conditions which have an
adverse impact on the conduct of silvicultural
activities if not corrected, or
(b) Construction and maintenance of roads necessary to
conduct silvicultural activities, as permitted under
Section 23.702(11).
(4) Pasturing of livestock and the construction and maintenance
of fences, provided that no filling, flooding, draining, dredging,
ditching, tilling, or excavating is done.
(5) Flooding, dike or dam construction and ditching for the
purpose of growing and harvesting cranberries.
(6) Construction and maintenance of duck blinds, provided that
no filling, flooding, draining, dredging, ditching, tilling, or
excavating is done.
(7) Construction and maintenance of non-residential buildings,
subject to the following conditions:
(a) Building is used solely in conjunction with the raising
of waterfowl, minnows, or other wetland or aquatic
animals, or used solely for some other purpose which is
compatible with wetland preservation;
(b) The building cannot as a practical matter be located
outside the wetland;
(c) The building does not exceed five hundred (500) square
feet in size; and
(d) No filling, flooding, draining, dredging, ditching,
tilling, or excavating is done, except limited filling
and excavating necessary to provide structural support
for the building.
(8) Construction and maintenance of piers, docks, walkways,
observation decks and trail bridges, provided that no filling,
flooding, dredging, ditching, tilling or excavating is done, except
limited filling and excavating necessary for the installation of
pilings.
(9) Establishment and development of public and private parks
and recreation areas, outdoor education areas, historic, natural and
scientific areas, game refuges and closed areas, fish and wildlife
habitat improvement projects, game farms and wildlife preserves, and
public boat launching ramps, provided that any filling, or excavating
is necessary to accomplish one of the above purposes.
(10) Construction and maintenance of electric and telephone
transmission lines and water, gas, and sewer distribution lines and
related facilities, provided that the following conditions are met:
(a) Such lines cannot as a practical matter be located
outside the wetland, and
(b) Any filling, excavating, ditching or draining necessary
for such construction or maintenance is done in a manner
designed to minimize the adverse impact on the natural
functions of the wetland.
(11) Construction and maintenance of roads necessary to provide
access to uses permitted under this section, provided that the road
cannot, as a practical matter, be located outside the wetland, and that
the road construction and maintenance activities are carried out in the
immediate vicinity of the road bed only and in a manner which minimizes
the adverse impact on the natural functions of the wetland.
(12) Maintenance, repair, replacement, and reconstruction of
existing tribal, town, and county highways and bridges.
23.703 Prohibited Uses in Wetland Areas.
Any use not permitted in Section 23.702 is prohibited in any
reservation wetland area unless a conditional use permit is granted by
the Tribe.
23.704 Requirements of Conditional Use Permit.
The Tribe, through its Realty and Resource Department, may issue a
conditional use permit to a tribal member or lessee for a wetland use
not enumerated in Section 23.702 if, and only if, the proposed activity
may not result or cause a significant adverse impact on any of the
following:
(1) Storm and flood water storage capacity;
(2) Maintenance of dry stream flow, or the discharge of
groundwater to a wetland, the recharge of groundwater from a wetland to
another area, of the flow of groundwater through a wetland;
(3) Filtering or storage of sediments, nutrients, heavy metals
or organic compounds that would otherwise drain into navigable waters;
(4) Shoreline protection against soil erosion;
(5) Fish spawning, breeding, nursery or feeding grounds; or
(6) Wildlife habitat.
23.705 Contents of Conditional Use Permit Application.
Any person who desires to utilize any reservation wetland area for
a purpose other than that designated in Section 23.702 shall first
make application for a conditional use permit, which shall contain the
following in writing:
(1) Name of applicant;
(2) Specific details on the type of activity to be undertaken;
(3) Location of the activity;
(4) Length of time within which the activity is expected to
occur, including construction timetable, if applicable;
(5) Identity of any person who will conduct the activity under
the supervision, direction, control, contract or employment of the
applicant; and
(6) A map indicating the location of the proposed activity.
23.706 Site Inspection.
Prior to the issuance of any conditional use permit, the Realty
and Resource Department shall undertake a site inspection, and may
consult with tribal and state resource personnel in such inspection.
23.707 Conditional Use Permit Fee.
The Tribe shall issue a conditional use permit for activities
subject to Section 23.703 upon determination that such activity meets
the requirements of Section 23.704, and upon receipt from the
applicant of a fee in the amount determined according to a schedule
therefore adopted by the Tribal Council.
CHAPTER VIII: WATER QUALITY PROTECTION
23.801 Minimum Lot Size.
In order to afford protection against pollution of the adjacent
body of water and protection against danger to health, safety, and
welfare of tribal members and licensees, the following minimum lot
sizes are established in shoreland areas:
(1) Lots served by tribal sanitary sewer shall have a minimum
average width of sixty-five (65) feet and a minimum area of ten
thousand (10,000) square feet.
(2) Lots not served by tribal sanitary sewer shall have a
minimum average width of one hundred (100) feet and a minimum area of
twenty thousand (20,000) square feet.
23.802 Building Setback Requirements.
The following setback requirements are established in order to
protect the health, safety, and welfare of tribal members and licenses
and to reduce flood hazards and prevent water pollution:
(1) Unless an existing development pattern exists, a setback of
seventy-five (75) feet from the ordinary high-water mark of an adjacent
body of water to the nearest part of a building or structure shall be
required, excepting piers, boat hoists and boathouses.
(2) In areas in which fifty percent (50%) or more of the
shoreline is developed, a setback of fifty (50) feet from the ordinary
high-water mark of an adjacent body of water to the nearest part of the
building or structure shall be required for all buildings and
structures, except piers, boat hoists, and boathouses.
(3) No boathouse shall be used for human habitation nor
constructed beyond the ordinary high-water mark of any reservation body
of water.
23.803 Cutting of Trees and Shrubbery Restrictions.
The following restrictions are placed upon the cutting of trees
and shrubbery in order to control erosion and reduce the flow of
effluents, sediments and nutrients from the shoreland area:
(1) In the strip of land thirty-five (35) feet wide inland from
the ordinary high-water mark, no more than thirty (30) feet in any one
hundred (100) feet shall be clear cut.
(2) In shoreland areas more than thirty-five (35) feet inland,
tree and shrub cutting shall not be conducted in any area with an
incline toward shore of more than forty-five (45) degrees.
(3) This section shall not apply to removal of dead, diseased or
dying trees or shrubbery.
23.804 Restrictions Upon Filling, Grading, Lagooning, Dredging,
Ditching and Excavating.
Filling, grading, lagooning, dredging, ditching and excavating may
only be conducted in accordance with the provisions of Chapters III,
IV, V, VI and VII of this ordinance, and only if done in a manner
designed to minimize erosion, sedimentation and impairment of fish and
wildlife habitat.
CHAPTER IX: NONCONFORMING USES AND STRUCTURES
23.901 Definitions.
A nonconforming use and nonconforming structure is one which does
not comply with the requirements of this ordinance, but was, prior to
the enactment of this ordinance, lawful.
23.902 Prohibited Nonconforming Uses.
No activity or use which is prohibited or regulated by this
ordinance shall be lawful upon the effective date of this ordinance.
23.903 Nonconforming Structures.
No addition or modification to any nonconforming structure shall
be made, unless done in compliance with this section. For the purposes
of this section, "modification" and "addition" shall include, but not
be limited to, any alteration, addition, modification, rebuilding or
replacement of any such existing building, accessory building or
accessory use. Ordinary maintenance repairs may be undertaken upon a
nonconforming structure, which include internal and external painting;
decorating; paneling; replacement of doors, windows and other
nonstructural components and the maintenance, repair or replacement of
existing private sewage systems, water supply systems or connections to
public utilities.
23.904 Discontinuance of Use of Nonconforming Structure.
If use of a nonconforming structure is discontinued for twelve
(12) consecutive months, it is no longer permitted, and any future use
of the building may be made only in compliance with the provisions of
this ordinance.
23.905 Destruction or Damage to Nonconforming Structure
If any nonconforming structure is destroyed or is so badly damaged
that it cannot be practically restored, it may not be replaced,
reconstructed or rebuilt unless the provisions of this ordinance are
followed. For the purpose of this section, restoration is deemed
impracticable where the total cost of such restoration would exceed
fifty percent (50%) of the value of the structure.
CHAPTER X: ENFORCEMENT AND PENALTIES
23.1001 Enforcement by Tribal Law Enforcement Personnel.
Any provision of this ordinance may be enforced by tribal law
enforcement personnel or by conservation wardens of the Great Lakes
Indian Fish and Wildlife Commission. Said Commission wardens are
hereby deputized by the Tribe as tribal law enforcement personnel for
the purposes of enforcing this ordinance.
23.1002 Enforcement by Wisconsin Department of Natural Resources
Wardens.
Conservation wardens and deputy conservation wardens of the
Wisconsin Department of Natural Resources are hereby empowered to
enforce the provisions of this ordinance upon the request of tribal law
enforcement personnel.
23.1003 Authority of Law Enforcement Personnel.
(1) Any person authorized to enforce this ordinance may execute
and serve warrants and other process issued by the Tribal Court in the
same manner as any law enforcement officer of the State of Wisconsin
may serve and execute such state warrants and other process under state
law.
(2) Any person authorized to enforce this ordinance may, with or
without warrant, enter and inspect activities on Indian land, where the
person has probable cause to believe that a provision of this ordinance
has been violated.
(3) Any person authorized to enforce this ordinance may issue a
citation to a person upon reasonable belief that such person may have
violated a provision of this ordinance, and may seize and hold any
property needed as evidence or any property authorized to be seized
pursuant to the civil remedial forfeiture provisions of this ordinance.
23.1004 Civil Remedial Forfeiture of Property.
Any person who, for himself, or herself, of by his/her agent,
servant or employee or who as agent, servant or employee of another,
violates this ordinance, shall be liable for a civil remedial
forfeiture of any property, including construction tools, used in the
commission of the violation of this ordinance.
23.1005 Civil Remedial Money Penalties.
Any person who, for himself, or herself, or by his/her agent,
servant or employee, or who as agent, servant or employee of another,
violates this ordinance, shall be liable as follows:
(1) Engaging in activity for which a permit is required without
such permit shall result in a money penalty in an amount not to exceed
Five Hundred Dollars ($500.00) for each day during which such activity
occurs.
(2) Violation of a provision of a permit issued by the Tribe
shall result in a money penalty in an amount not to exceed Two Hundred
and Fifty Dollars ($250.00) for each day during which the violation
occurs.
23.1006 Parties to a Violation.
(1) Whoever is concerned in the commission of a violation of
this ordinance is a principal and may be charged with the violation
although he or she did not directly commit it and although the person
who directly committed it has not been found to have violated this
ordinance.
(2) A person is concerned in the commission of the violation if
the person:
(a) Directly commits the violation;
(b) Aids and abets the commission of it; or
(c) Is a party to a conspiracy with another to violate it
or advises, hires, or counsels, or otherwise procures
another to commit it.
23.1007 Injunctive Relief.
The Tribe may, in addition to the penalties provided in Sections
23.1004 and 23.1005 of this ordinance, seek to obtain an injunction in
any court of competent jurisdiction against any person subject to this
ordinance who undertakes activities which have any of the following
potential effects:
(1) Obstruct a stream;
(2) Impair water quality;
(3) Disturb or impair fish reproduction; or
(4) Create a hazard to public health.
23.1008 Condemnation of Property.
The Tribe may seek to remove any structure which is abandoned by
its owner of record and which, through use or location is violative of
this ordinance, through institution of a complaint for seizure pursuant
to Chapter IV of the Tribal Court Code, Tribal Code. Ch. 80. The Tribe
may also seek to remove any structure which is an obstruction to
navigation through institution of such a complaint.
23.1009 Damages.
The Tribe reserves the right to seek money damages to its
resources through any activity, whether authorized by this ordinance
pursuant to permit or prohibited, in any court of competent
jurisdiction.
23.1010 Jurisdiction.
The Tribal Court is hereby authorized and empowered to undertake
jurisdiction of any proceeding instituted under this ordinance.
Forfeiture proceeding shall be conducted pursuant to Chapter IV of the
Tribal Court Code, Tribal Code Ch. 80.
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