11-04-85
ORDINANCE NO. 85-25
ORDINANCE OF THE OGLALA SIOUX TRIBAL COUNCIL
OF THE OGLALA SIOUX TRIBE
(An Unincorporated Tribe)
ORDINANCE CREATING THE OGLALA SIOUX TRIBAL WATER CODE
WHEREAS, under the Constitution of the Oglala Sioux Tribe, the
Tribal Council is authorized to protect the health and general welfare
of the Tribe, and
WHEREAS, under said Constitution, the Tribal Council shall
protect and preserve the property, wildlife and natural resources of
the Tribe;
NOW, THEREFORE BE IT ORDAINED that the Oglala Sioux Tribal
Council hereby imposes the Oglala Sioux Tribal Water Code as set forth
hereinafter.
CERTIFICATION
I, as undersigned, Secretary of the Oglala Sioux Tribal Council, do
hereby certify that this Ordinance was adopted by the vote of: 20 for:
0 against; and 5 not voting, during a Regular Session held on the 4th
day of November, 1985.
Signature
EILEEN H. IRON CLOUD
Secretary
Oglala Sioux Tribe
Signature
NEWTON CUMMINGS
President
Oglala Sioux Tribe
OGLALA SIOUX TRIBAL WATER CODE
TABLE OF CONTENTS
Page
100 Definitions....................................... 1
Chapter 1: General Provisions
101 Declaration of Purpose: Assertion of Authority... 3
102 Application of the Code.......................... 3
103 Nature of Ownership.............................. 3
104 Waters of the Pine Ridge Indian Reservation Defined 3
Chapter 2: Notice of Enactment
201 Notice Required.................................. 4
202 Contents of Notice............................... 4
203 Notice - How Given............................... 4
Chapter 3: Natural Resource Regulatory Agency
301 Natural Resource Regulatory Agency - General Powers 5
302 Water Reserves................................... 5
303 Water Assessments................................ 5
304 Designations of Local Management Areas........... 5
305 Large User Water Permits......................... 5
306 Charges for Water Uses........................... 5
Chapter 4: Water Quality Control Program
401 Water Quality Control Program: Defined........... 6
402 Information Function............................. 6
403 Enforcement Function............................. 6
404 Advisory Function................................ 6
405 Administration Function.......................... 7
Chapter 5: Guidelines for Administration
501 General Policy Provisions........................ 8
502 Guidelines for Making Most Effective Use of
Available Resources.............................. 8
503 Additional Policy Guidelines..................... 9
Chapter 6: Descriptions of Use and Application for Permit........
601 Existing Use Inventory........................... 10
602 Description of Use - Required ................... 10
603 Application for Permit - Required................ 10
604 Description of Use & Application for Permit -
Contents ........................................ 10
605 Interim Permits.................................. 10
606 Fees............................................. 11
607 Public Notice of Descriptions of Use & Application
for Water Use Permit - Initial Notice ........... 11
608 Public Notice of Applications for Permit -
Continuing Operation ............................ 11
609 Objections Affecting Descriptions of Use &
Applications for Permit.......................... 11
610 Form & Contents of Objections.................... 12
611 Reply by Applicant............................... 12
612 Hearing Regarding Issuance of Permit............. 12
613 Public Comment................................... 12
614 Investigation & Review of Permit Issuance........ 12
615 Issuance or Denial of Permits.................... 12
Chapter 7: Water Use Permits
701 Form............................................. 13
702 Information Contained............................ 13
703 Conditions....................................... 13
704 Entry on Land.................................... 14
705 Effect........................................... 14
706 Revocability..................................... 14
707 Modification..................................... 14
Chapter 8: Determination of Availability and Need
801 When Proceeding Available........................ 15
802 Purposes......................................... 15
803 Notice of Proceeding............................. 15
804 Water Quality Control Program - Investigation
Initiation....................................... 15
805 Water Quality Control Program - Information
Gathering........................................ 15
806 Water Quality Control Program - Report........... 15
807 Proposed Determination of Availability and Need.. 16
808 Determination of Availability and Need - Contents 16
809 Notice of Hearing................................ 16
810 Hearing.......................................... 16
811 Final Determination of Availability and Need..... 17
812 Subsequent Actions............................... 17
813 Appeal........................................... 17
Chapter 9: Transfer and Loss of Rights
901 Transfer, Assignment, Descent, Distribution &
Creation of Security Interest.................... 18
902 Loss by Nonuse................................... 18
903 Loss by Adverse Possession, Prescription, Estoppel
or Acquiescence.................................. 18
904 Outside Proceedings.............................. 18
Chapter 10: General Hearing Provisions
1001 Applicability.................................... 19
1002 Notice........................................... 19
1003 Time and Place of Hearing........................ 19
1004 Continuance...................................... 19
1005 Presiding Officer................................ 19
1006 Forms of Evidence................................ 19
1007 Consolidation of Hearings........................ 19
1008 Recording........................................ 19
1009 Decision......................................... 19
Chapter 11: Appeals
1101 Appeals Provided for............................. 20
1102 Notice of Appeal - Jurisdiction ................. 20
1103 Notice of Appeal - Service....................... 20
1104 Transmittal of Record............................ 20
1105 Oral Arguments................................... 20
1106 Briefs........................................... 20
1107 Scope of Review.................................. 20
1108 Court of Appeals - Additional Powers............. 20
Chapter 12: Water Pollution Control
1201 General Policy................................... 21
1202 Water Quality Standards.......................... 21
1203 Drinking Water Standards......................... 21
1204 Surface Water Quality............................ 22
1205 Exemptions of Public Water Supply Systems -
Requirements .................................... 23
Chapter 13: Further Prohibitions
1301 Underground Injection Control.................... 24
1302 Streambed Alteration............................. 24
1303 Minimum In-Stream Flow........................... 24
1304 Lakeshore, Damshore Management................... 24
1305 Obstructions to Fish Passage..................... 24
Chapter 14: Prohibited Acts
1401 Waste of Water Prohibited........................ 25
1402 Unauthorized Actions Affecting Water Prohibited.. 25
1403 Obstruction of Oglala Sioux Tribal Employees..... 25
1404 Misstatement of Material Facts................... 25
1405 Sanctions for Code Violations.................... 25
Chapter 15: Miscellanesous Provisions
1501 Severability..................................... 26
1502 Construction..................................... 26
1503 Review of Authority.............................. 26
1504 Extension of Time Limits......................... 26
1505 Representation................................... 26
OGLALA SIOUX TRIBAL WATER CODE
100 Definitions
(1) "Aquifer," means a water-bearing bed or stratum of permeable
rock, sand or gravel capable of storing, transmitting or
yielding water in sufficient quantities.
(2) "Construction Contractors," means any individual including
Indian or non-Indian, partnership, corporation, association,
or business entity who conducts business activities or
provides services including but not limited to building,
road construction and oil & gas well drilling within the
boundaries of the Pine Ridge Indian Reservation.
(3) "Domestic Use," means any use of water for individual
personal needs or for household purposes such as drinking,
bathing, heating, cooking, or sanitation.
(4) "Effective Date," referred to herein shall be the date of
the ordinance of the Oglala Sioux Tribal Council approving
adoption of this code.
(5) "Hazardous Waste," includes any radioactive, toxic or other
hazardous waste whether in liquid, solid, gaseous or
explosive form which may be discharged, deposited,
generated, or disposed of and that will or may pose adverse
effects to the air, the surface or subsurface land including
existing groundwater or aquifers, minerals or energy
resources as well as the human environment.
(6) "Injection Wells," includes industrial waste disposal, salt
water disposal or wells used to improve recovery of oil and
gas, and injection wells used for solution mining.
(7) "Maximum Containment Level," means the maximum permissible
level of a contaminant in water which is delievered to the
free flowing outlet of the ultimate user of a public water
system, except in the case of turbity where the maximum
permissible level is measured at the point of entry to the
distribution system.
(8) "Municipal Use," means all reasonable water uses necessary
in carrying out the functions of municipal government,
district government and growth centers or towns.
(9) "NRRA," means the Natural Resources Regulatory Agency, the
lead agency whose duties are to administer, coordinate and
assist the Water Quality Control Program in the enforcement
of the Oglala Sioux Tribe Water Code.
(10) "Nonpoint Source," means a contributing factor to water
pollution that cannot be traced to a specific spot such as
agricultural fertilizer run-off.
(11) "Person," includes an individual, a partnership, a
corporation, whether public or private; and a governmental
entity, unit or agency, whether tribal, local, state or
federal.
(12) "Point Source," means any discernible, confined, and
discreet conveyance, including but not limited to any pipe,
ditch, channel, tunnel,conduit, well, discrete fissures,
containers, rolling stock, concentration animal feeding
operation, vessel, or other floating craft, from which
pollutants are or may be discharged.
(13) "Pollution," means such artificial or induced natural
contamination, or other alteration of the physical,
chemical, biological, and radiological properties of any
water of the reservation, or such discharge of any liquid
gaseous, or solid substance into any waters of the
reservation as will create a nuisance or render such waters
harmful or detrimental or injurious to public health,
safety, welfare, or to domestic, commercial, industrial,
agricultural, traditional, cultural, recreational, or other
legitimate beneficial uses, or to livestock, wild animals,
birds, fish or other aquatic life.
(14) "Public Water System," a system which serves at least 10
service connections used by year-round residents or
regularly serves at least 25 year-round residents. Such
term includes (1) any collection, treatment, storage, and
distribution facilities under control of the operator of
the system and used primarily with such system; and (2) any
collection or pretreatment storage facilities not under
such control which are used primarily in connection with
the system.
(15) "Supersedeas Bond," means a bond that is required of a
person who petitions to set aside a judgment or execution
and from which the other party may be made whole if the
action is unsuccesful.
(16) "Water Quality Inspector," means a person(s) designated by
the NRRA to monitor, inspect and draft periodically written
reports of the water quality including rivers, streams,
dams, lakes, aquifers, and groundwater within the Pine
Ridge Indian Reservation. Said activities shall be
conducted to help to ensure that water quality standards
are maintained pursuant to this code.
CHAPTER 1: GENERAL PROVISIONS
101 Declaration of Purposes: Assertion of Authority
(1) In order to provide for a permanent homeland for the Oglala
Sioux pople; to protect the health, the welfare and the
economic security of the citizens of the Pine Ridge Indian
Reservation to develop, manage, and preserve the water
resources of the reservation; to secure a just and equitable
distribution of the use of water within the Pine Ridge
Indian Reservation boundaries through a uniform and coherent
system of regulations; and to provide for the exercise of
the inherent sovereign powers of self-government by the
Oglala Sioux Tribe.
(2) The Oglala Sioux Tribe hereby assert their prior, exclusive
and paramount rights in ownership of, and jurisdiction over
the water of the Pine Ridge Indian Reservation, defined
herein, for all purposes.
102 Application of the Code. Upon the effective date of this code,
it shall be unlawful for any person within the territorial
jurisdiction of the Pine Ridge Indian Reservation, as defined
herein, to impound, divert, withdraw, or otherwise make any use
of, or take any action of whatever kind affecting the use of
water within the territorial jurisdiction of the Oglala Sioux
Tribe unless the applicable provisions of this code and
regulation and determinations made hereunder have been complied
with. No right to use water, fom whatever source, shall be
recognized, except use rights obtained under and subject to this
code.
103 Nature of Ownership.
(1) The Oglala Sioux Tribe is the owner of the full equitable
title to the rights to the use of all waters of the Pine
Ridge Indian Reservation, as defined herein, and that title
resides undiminished in the Oglala Sioux Tribe. The United
States hold only the legal title to those waters solely as
trustee for the Oglala Sioux Tribe.
(2) All rights to the use of the waters of the Pine Ridge Indian
Reservation, as defined herein, are held by the Oglala Sioux
Tribe in perpetuity, for the use and benefit of the Oglala
Sioux Tribe and the lands and other resources of the Pine
Ridge Indian Reservation. No right or privilege of any
kind, from whatever source, shall be recognized or granted
unless the same shall be subject to the overriding, prior
and supreme right and interest of the Oglala Sioux Tribe,
and the policy and provisions contained in this code,
amendments hereto, and administrative regulations and
determinations hereunder. No agent of the Oglala Sioux
Tribe, the Oglala Dioux Tribal Council, or the United States
shall take any action or grant or recongnize any right
affecting the water resources of the Pine Ridge Indian
Reservation which in any way decreases or threatens to
decrease the prior and paramount rights and interests of the
Oglala Sioux Tribe.
104 Waters of the Pine Ridge Indian Reservation Defined. The waters
of the Pine Ridge Indian Reservation are defined as:
(1) all waters located upon or bordering the Pine Ridge Indian
Reservation, whether flowing or stationary, whether above or
below the surface of the ground, and whether diffused or
contained within a defined water source or water body of any
kind;
(2) all waters reserved at any time to the Oglala Sioux Tribe
and the Pine Ridge Indian Reservation by the United States
and the Oglala Sioux Tribe; and
(3) all water which, in the course of nature or as the result of
artificial works, flows into or otherwise enhances such
water.
CHAPTER 2: NOTICE OF ENACTMENT AND EFFECT
201 Notice Required. To insure that all persons and entities
affected by this code are given adequate notice of the enactment
and effect of this code, the NRRA shall, within 30 days after the
effective date of this code, provide for public notice of its
enactment and effect in accordance with the provisions of this
Chapter.
202 Contents of Notice.
(1) Such public notice shall contain the following statement,
prominently displayed and in large, boldface type:
NOTICE: AFTER_____, NO PERSON OR PUBLIC OR PRIVATE ENTITY OF
ANY KIND SHALL BE ENTITLED TO TAKE ANY ACTION WITHIN THE
TERRITORIAL JURISDICTION OF THE PINE RIDGE INDIAN
RESERVATION WHICH AFFECTS THE USE OF WATER WITHIN THE PINE
RIDGE INDIAN RESERVATION, UNLESS SUCH ACTION IS AUTHORIZED
BY A PERMIT AS PROVIDED FOR BY THE OGLALA SIOUX TRIBAL WATER
CODE. NO OTHER WATER USE RIGHTS OR ANY KIND, FROM WHATEVER
SOURCE, SHALL BE RECOGNIZED. THE NECESSARY FORMS MAY BE
PROCURED FROM THE NRRA, POST OFFICE BOX 468, PINE RIDGE
(OST), SOUTH DAKOTA 57770, (605) 867-5624, COMPLETE COPIES
OF THE OGLALA SOIUX TRIBAL WATER CODE ARE ALSO AVAILABLE AT
THE ABOVE ADDRESS.
(2) In addition to the foregoing statement, the Coordinator of
the NRRA may include in such public notice additional
information deemed necessary in order to assure adequate
notice of the enactment and legal effect of this code.
203 Notice - How Given. The coordinator of the NRRA shall give
notice of the provisions of this code as follows:
(1) the notice provided above shall be placed in the Indian
Country Today at least once each week over a six-week period,
(2) the notice provided above shall be placed in a prominent and
conspicuous location at the Oglala Sioux Tribe Office, the
Bureau of Indian Affairs Offices, U.S. Post Offices, Indian
Health Service Hospitals and Clinics, and in such other
locations as are deemed necessary or appropriate.
(3) the Coordinator of the NRRA may take any other steps and
post any other notices as is deemed necessary to provide
notice of the provisions of this code.
CHAPTER 3: NATURAL RESOURCE REGULATORY AGENCY
301 NRRA - General Powers. In administering this code, the NRRA may,
in addition to other actions:
(1) enter appropriate orders;
(2) recommend to the Oglala Sioux Tribal Council for
consideration, adoption, modification, or amendment such
regulations as are deemed necessary to implement this code;
(3) file or intervene in any lawsuit, at the direction of the
Oglala Sioux Tribal Council, or the tribal president;
(4) receive regular reports from the inspector of the Water
Quality Control Program;
(5) make determinations of availability and need as provided for
in Chapter 8 of this code;
(6) with the consent of the appropriate committees of the Oglala
Sioux Tribal Council, enter into administrative agreements,
exchange information, and otherwise cooperate with
governmental agencies both on and off the Pine Ridge
Reservation lands, for appropriate purposes including the
administration of interstate streams and groundwater;
(7) in cooperation with the other standing committees of the
Oglala Sioux Tribal Council, determine existing and
foreseeable uses of and needs for water and other related
resources; and
(8) take other actions as provided for in this code.
302 Water Reserves. In connection with a determination of
availability and need as provided for in Chapter 8 or in
connection with other actions taken under this code, the NRRA may
establish within particular areas dependent on common water
supplies, reserve water supplies which, although subject to
existing uses on an interim basis, are set aside for a definite
or indefinite term of years for future tribal and other needs.
303 Waste Assessments. Whenever the NRRA of the Oglala Sioux Tribe
determines that water not presently available is necessary for
purposes and projects beneficial to a part or all of the Pine
Ridge Indian Reservation and the inhabitants thereof, the NRRA
may assess individual water users a fair share of water, in
predetermined units for such purposes, according to the relative
priorities of the classes of uses.
304 Designations of Local Management Areas. The NRRA may, upon the
recommendation of the Oglala Sioux Tribal President, or Tribal
Committees, isolate and define, within the surface and
groundwater system in which individual water uses are to come
degree related by reason of common supply, "local management
areas", such as municipal water districts or irrigation
districts, for specialized adminstration under regulations
adopted pursuant to this code.
305 Large User Water Permits. The NRRA may, at its option or upon
application, recommend for consideration by the Oglala Sioux
Tribal Council, the granting of water use permits for amounts in
excess of 1000 acre-feet per year and/or for uses which require
assurancde of long-term supply. Such permits may be conditioned
upon payment of consideration and contain other contractural
terms including but not limited to, limited periods of times of
use, differing conditions of revocability or terminability; and
other conditions providing varying degrees of permanence.
306 Charges for Water Uses. Reasonable charges may be imposed by
regulations of the NRRA for the use of the waters of the Pine
Ridge Indian Reservation. Such charges shall not apply to
domestic uses, stockwatering uses, fish and wildlife uses and
irrigated agricultural uses. These charges may be imposed on
users by regulations of the Oglala Sioux Tribe for the operation
and maintenance of water delivery systems including construction
contractors and waivers of charges may be granted by the NRRA, if
the use is shown to be of benefit to the Oglala Sioux Tribe.
CHAPTER 4: WATER QUALITY CONTROL PROGRAM
401 Water Quality Control Program.
(1) There is hereby created a tribal water quality control
program, as a division of the tribal NRRA, and the inspector
of the water quality program shall exercise the powers and
perform the duties and functions as specified in this code.
The Water Quality Program shall provide the NRRA with copies
of maps, plans, documents, studies, surveys, investigations,
and all other necessary information in order that the NRRA
may be cognizant of the status of water pollution and its
control as well as the development of the water as a
resource of the Pine Ridge Indian Reservation.
(2) The Oglala Sioux Tribal NRRA shall administer over and
assist the tribal Water Quality Program in its duties of
enforcement upon adoption of this code by the Oglala Sioux
Tribe. Until the Water Quality program is fully
established, the NRRA shall assume the duties that would
normally be attributed to the Water Quality Control Program.
402 Information Function. It shall be the duty of the Water Quality
Inspector to gather, compile and file for tribal use and for
submission to the NRRA, information related to the waters
administered under this code. To this end the Water Quality
Inspector shall:
(1) collect, organize and catalog existing information and
studies available from all sources, both public and private,
pertaining to the watersg within the Pine Ridge Indian
Reservation;
(2) develop such additional data and studies pertaining to water
availability, quality, and use as are necessary to
accomplish the objectives of this code;
(3) solicit public comment, consult the Chapters herein and
obtain expert advice when appropriate;
(4) investigate water uses and other activities affecting the
waters within the Pine Ridge Indian Reservation boundaries
to determine compliance with this code and with applicable
regulations, orders, determinations, permits, including
water quality standards, issued pursuant to this code;
(5) investigate water quality when appropriate; and
(6) develop standards and regulations concerning water quality
and water allocation and submit them for recommendation by
the Land & Resource Committee and for consideration and
approval by the Oglala Sioux Tribal Council.
403 Enforcement Function. It shall be the duty of the Water Quality
Inspector to insure compliance with this code, and with
conditions of all permits, determinations, orders, regulation,
plans and other actions taken under this code, as well as the
policies and guidelines expressed throughout the code. To this
end the Water Quality Inspector may:
(1) remove, render inoperative, shut down, close, seal, cap,
modify or otherwise control methods of diversion,
withdrawal, and impoundment, obstructions to the flow of
water and other activities adversely affecting water quality
or quantity;
(2) initiate by means provided herein, proceedings for
violations of this code and the actions taken under this
code; and
(3) enter upon land to inspect methods of diversion, withdrawal
and impoundment, inspect other activities affecting water
quality and quantity, install and monitor measuring and
recording devices when necessary, and compel testimony and
data, by Oglala Sioux Tribal Court subpoena, if necessary,
concerning actions affecting the quality or quantity of the
waters adminstered under this code.
404 Advisory Function. The Water Quality Inspector may, from time to
time, make proposals to the NRRA concerning the following:
(1) the advisability of establishing local management areas as
provided for in Chapter 3 of this code;
(2) the advisability of making determinations of availability
and need as provided for in Chapter 8 of this code;
(3) the advisability of taking other actions and adopting other
plans and methods in order to optimize available water
supplies and to minimize pollution and thermal degradation;
(4) the advisability of participating in administrative
proceedings, lawsuits and other legal proceedings;
(5) the advisability of entering into administrative agreements
and other cooperative ventures with tribal, local, state or
federal agencies outside of the Oglala Sioux Tribal Council
and the NRRA, for appropriate purposes including the
administration of interstate streams and groundwaters;
(6) the advisability of amending or otherwise changing sections
of this code or adding new sections; and
(7) the advisability of taking other actions which will further
the policies and purposes contained herein and increase the
effectiveness of this code.
405 Admininstrative Function. In administering this code, the Water
Quality Inspector may:
(1) grant, deny, modify and revoke water use permits;
(2) make determinations of water use rights;
(3) initiate proceedings to enforce this code;
(4) insure, in coordination with other appropriate agencies,
adequate water levels in streams, rivers, ponds, and lakes
to protect Oglala Sioux traditional religious practices,
wildlife conservation and other values; and
(5) enter appropriate orders.
CHAPTER 5: GUIDELINES FOR ADMINISTRATION
501 General Policy Provisons. In taking any action under this code,
NRRA and the Water Quality Control Program shall be guided by the
following basic policy guidelines:
(1) whenever practicable, actions taken should benefit the Pine
Ridge Indian Reservation and the members of the Oglala Sioux
Tribe and further the objective for which the Pine Ridge
Reservation was created: to provide a permanent home and
abiding place for the members of the Oglala Sioux Tribe,
both now and in the future. Alternatives to existing and
proposed uses are to be considered whenever practicable in
order to achieve this goal. Included in those alternatives
shall be the option to restrict or prohibit entirely any
further use of water for the benefit of the Oglala Sioux
Tribe. If there is presented to the NRRA or the Water
Quality Control Program a conflict between water uses for
the benefit of the Pine Ridge Reservation or any of the
members of the Oglala Sioux Tribe of Indians and non-tribal
projects or uses, the NRRA or the Water Quality Control
Program may grant such preference as may be required by this
code, and lie in the best interest of the Oglala Sioux Tribe
and its members.
(2) in taking any action under this code which may impose
substantial economic hardship on persons or entities
presently using water, or which threatens degradation of
other economic, cultural, religious, historic, aesthetic,
natural or environmental values, the NRRA, or the Water
Quality Inspector shall, in reaching their decision,
carefully consider and weigh:
(a) the economic dislocation and hardship which will be
imposed by such actions;
(b) the investment in time, money and other resources made
by the parties affected in reliance upon any previous
system of distribution and use of water;
(c) any other burdens as may be imposed by such actions;
(d) the nature and extent of degradation of other economic,
cultural, religious, historic, aesthetic, natural or
environmental values.
(3) the NRRA or the Water Quality Inspector, when considering a
proposed action, shall balance the adverse effects against
the benefits to the Oglala Sioux Tribe and other interests
which are advanced as justifying the proposed action. They
shall consider alternatives to the proposed action which
will lessen adverse effects, and shall shape any final
action so that its adverse effects will be minimized to the
greatest extent possible, to protect the water resources;
(4) when insufficient water suplies are present for whatever
reason or term, the following priority of uses shall be
considered in the order in which they are listed:
(a) domestic and municipal uses
(b) stock watering uses
(c) agricultural uses
(d) in-stream needs, for fish, wildlife conservation and
recreational uses
(e) economic development uses including industrial and
power uses
(f) other uses
502 Guidelines for Making Most Effective Use of Available Resources.
In addition to the policy guidelineds contained in the previous
section, the NRRA and the Water Quality Inspector shall take
appropriate action to:
(1) insure adequate water supplies
(2) maintain water levels for diversion and withdrawal systems;
(3) maintain head and pressure in grounwater;
(4) prevent or reduce obstruction of surfac water flows;
(5) increase efficiency of conveyance systems; increase
efficiency in water application; increase return flow;
prevent waste and maximize use of this available supply;
(6) create and enhance the efficiency of natural and artificial
surface and underground storage;
(7) enhance natural and artificial recharge of aquifers;
(8) define and control interbasin transfers of both surface and
groundwaters;
(9) provide for some degree of overdraft from aquifers when
short-term recharge is not possible;
(10) minimize interference between competing users of water
sources, whether above or below ground;
(11) minimize water quality degradation and the adverse effects
of water pollution whether from point source or non-point
sources;
(12) minimize thermal degradation or the adverse effects of
thermal degradation;
(13) minimize interaquifer communication;
(14) plan for long-term water development;
(15) penalize misuse;
(16) otherwise insure conformity with the policies and
provisions of this code.
503 Additional Policy Guidelines.
(1) Rivers, streams, lakes and ponds within the Pine Ridge
Reservation are to be retained substantially in their
natural conditions, with the base flows and water levels
necessary to provide for preservation of traditional,
religious, recreation, wildlife, fish, scenic, aesthetic,
and other environmental values. Withdrawals of water which
would conflict with these interests should be authorized
only where it is clear that overriding considerations of the
public interest will be served.
(2) Multiple-purpose impoundment structures are to be preferred
over single-purpose structures. Due regard shall be given
to means and methods for protection of recreation, fish and
wildlife resources in the planning for and construction of
water impoundment strutures and other artificial
obstructions.
(3) Individuals, corporations, groups, associations and other
entities shall be required to carry out reasonable practices
of water and resource conservation and environmental
protection as they relate to the use of waters within the
Pine Ridge Indian Reservation boundaries.
CHAPTER 6: DESCRIPTIONS OF USE AND APPLICATION FOR PERMIT
601 Existin Use Inventory. In order to determine existing uses of
water within the Pine Ridge Reservation the Water Quality
Inspector shall cause an inventory of existing water uses to be
made and completed within two (2) years following the effective
date of this code. The inventory shall be based upon the
information contained in the Description of Use.
602 Description of Use - Required. All persons desiring to continue
to operate existing uses musrt file a Description of Use, as
required by this Chapter, within one year of the effective date
of this code. After such date, it shall be unlawful to continue
to operate any use or to continue any other action within the
jurisdiction of the Pine Ridge Reservation which effects the
waters therein except as authorized by this Chapter. Individuals
or groups making use of a well or other water source operated by
another need not file a Description of Use unless the operator
fails to do so.
603 Application for Permit - Required. Upon the effective date of
this code, all persons desiring to initiate new uses of, or take
other actions within the jurisdiction of the Pine Ridge
Reservation affecting the waters therein shall file an
Application for Permit as required by this Chapter. After such
date, it shall be unlawful for any person to make any new use or
take any other action within the jurisdiction of the Oglala Sioux
Tribe affecting the waters therein except as authorized by this
code.
604 Description of Use and Application for Permit - Contents.
Description of Use and Application for Permit shall be on forms
provided by the NRRA and the Water Quality Contol Program and
shall include the following information:
(1) the name and mailing address of the claimant;
(2) the name, if available or a description of the soure(s) from
which water is or will be diverted or withdrawn;
(3) the purpose(s) for which water is or will be used;
(4) the quantity of water which is or will be used;
(5) a legal description, and other descriptions reasonably
describing the point(s) of diversion, withdrawal or
impoundment;
(6) a description of the method(s) of diversion, withdrawal or
impoundment. The description of the method(s) of
groundwater withdrawals shall be a Drilling Permit on a form
approved by the NRRA;
(7) a description of how water is or will be applied or
consumed, including acreage and crop if the water is for
irrigation; the kind and number of stock if the water is for
stock watering; and the number of people and/or homes to be
served if the water is for domestic or municipal use;
(8) the best estimate reasonably possible of return flow to the
source(s), including how, when, at what point(s) and changes
in quality and temperatures;
(9) the estimated data on which the use(s) began or will be
commenced;
(10) if any pre-existing use is claimed, a description and copy
of any legal documents, statute(s), or regulations upon
which the use is based, and any pertinent litigation
creating or affecting the use;
(11) the water user's plan for future development of the water
use(s) and related activites; and
(12) any other information deemed necessary by the NRRA.
605 Interim Permits. A Description of Use which is made with respect
to a use existing prior to the effective date of this code shall,
until a permit is issued or denied, serve as an interim permit
authorizing the use of a reasonable quantity of water for the
uses described and actually made while the application is
pending. Additional uses planned but not commenced prior to the
effective date of this code may be made on an interim basis upon
Emergency Certification by the NRRA or the Water Quality Control
Program until a permit covering such uses is issued or until
other action is taken under this code.
606 Fees. Each Application for Permit shall be accompanied by a
$25.00 filing fee. Provided, however, that the NRRA or the Water
Quality Inspector may waive payment of such filing fee in cases
of demonstrated financial hardship.
607 Public Notice of Descriptions of Use and Application for Water
Use Permit - Initial Notice. As soon as possible and no more
than two years after the effective date of this code, the Water
Quality Inspector shall divide the Pine Ridge Reservation into
hydrologic basins or watersheds in which water uses are to some
degree inter-related and prepared:
(1) a map of the Pine Ridge Reservation showing such basins or
watershed;
(2) a listing for each basin or watershed of each use described
and permit applied for, which listing shall include names
and addresses of applicants, descriptions of water sources,
quantities applied for, point of diversion, withdrawal or
impoundment, methods of diversion, withdrawal or impoundment
and description of the uses to be made;
(3) a statement that the applicants described in the listing
have applied for permits under the Oglala Sioux Tribal Water
Code and that any persons claiming that their uses may be
adversely affected by the issuance of such permits may
object to their issuance in accordance with the provisions
for objection, notice and hearing provided for in this code;
(4) a brief description of the objection, notice and hearing
provisions of this code and information which will assist
the objecting parties in procuring the necessary form and
commencing an objection;
(5) a statement that any person may comment either orally or in
writing on the issuance of any permit; and
(6) a brief description of the public comment and investigation
sections of this Chapter.
The map, listings, statements and descriptions prepared under the
preceding paragraphs shall forthwith be published and posted in
the same manner as provided in Chapter 203 Notice - How Given,
subject to the following exceptions:
(1) maps and descriptions of objection procedures may be
ommitted if deemed impractical;
(2) newspaper publications may be limited to four weekly
notices; and
(3) listings need be published and distributed only in the
hydrologic basins or watersheds affected by proposed or
existing uses.
608 Public Notice of Applications for Permit - Continuing Operation.
When additional Applications for Permit are received during the
course of the administration of this code, the Water Quality
Inspector shall, in conformance with the preceding section:
(1) include in the listing provided for in Chapter 607 (2) the
necessary information concerning the new use or action;
(2) prepare a statement that one or more new Application for
Permit have been made and objections may be made to them in
accordance with Chapter 607 (3);
(3) prepare the descriptions and statements provided in Chapters
607 (4), 607 (5) and 607 (6);
(4) the revised listing, statements and descriptions provided
for in the preceding paragraphs shall forthwith be
published, posted and mailed in the affected area in the
same manner as provided for in Chapter 607, in order to
assure adequate notice and an opportunity for hearing to
persons who may be adversely affected by the proposed uses
or actions.
609 Objections Affecting Descriptions or Use and Applications for
Permit. Any person or entity whose interests are or may be
affected by a water use described and/or applied for may, within
30 days from the date of publishing, and posting of notice that
such use has been described and/or applied for, file a formal
objection to the issuance of the permit applied for.
610 Form and Contents of Objections.
(1) Objections may be made on forms prepared and made available
by the Water Quality Inspector and shall include the name
and mailing address of the party objecting; the name of the
applicant whose application is objected to; a description of
the water use objected to; a short and plain statement of
reasons why a permit should be issued or should not be
issued;
(2) oral objections may be made to the Water Quality Inspector
when it is determined by the inspector that the
circumstances permit an oral objection. Such oral
objections shall be reduced to writing on the proper forms
by the Water Quality Inspector.
611 Reply by Applicant. Any applicant for a permit whose use is
objected to may reply in writing or orally in the same manner as
provided herein for objections.
612 Hearings Regarding Issuance of Permit. Any applicant directly
affected or any party objecting in accordance with this Chapter
may request a hearing on such objection. In addition, the Water
Quality Inspector or the NRRA may schedule a hearing concerning
the issuance of a permit or permits on their own motion whenever
they determine that such hearings are needed. Provided, that
whenever possible, hearings concerning proposed or existing uses
in a particular basin or area shall be consolidated to promote
efficiency, minimize expense or hardship, and prevent
duplication. Unless otherwise provided for in Chapter 10 and
shall be given to: the applicants whose uses are objected to; the
objecting parties; other persons designated by the objecting
parties and applicants; all other persons affected by the
proposed use in question and all other persons requesting notice.
Unless otherwise provided for in this Chapter, hearings shall be
conductd as provided for in Chapter 10.
613 Public Comment. Any person or entity may comment orally or in
writing upon the proposed issuance of any permit under this code.
It is the policy of the Oglala Sioux Tribe that all interested
parties be given the opportunity to participate in the decision
making process as set forth in this code.
614 Investigation and Review of Permit Issuance. In addition to
gathering information from the objection, comments, and hearings
as provided for above, the Water Quality Inspector may make any
reasonable investigation of the facts and circumstances
surrounding the permit application; may solicit comments and
information from the public and from appropriate governmental
agencies; and may otherwise gather information which will assist
in making the decision to issue or deny a permit in accordance
with the provisions of this Chapter.
615 Issuance or Denial of Permits. As soon as possible after
application, hearing, if any, and a reasonable period for public
comment shall have passed, and no more than 90 days after the
date of the application, if uncontested, or the hearing, if a
hearing is held, the Water Quality Inspector shall review the
comments and information gathered witn respect to a specific
application and either deny a permit or issue a permit in the
form provided for in Chapter 7.
CHAPTER 7: WATER USE PERMITS
701 Form. Water use permits issued in accordance with this code
shall be on a form approved by the NRRA.
702 Information Contained. Each permit shall include:
(1) the name and mailing address of the permittee;
(2) the name of, if available, or a description of, the
source(s) from which water is or will be diverted, withdrawn
or impounded;
(3) the quantity of water which will be used;
(4) the legal description, if such is readily available, or
other description reasonably describing the point(s) of
diversion, withdrawal or impoundment;
(5) a description of the method(s) of diversion, withdrawal or
impoundment;
(6) the purpose(s) for which water is or will be used;
(7) a description of how water may be applied or consumed,
including acreage and crop if the water is for irrigation;
the kind and number of stock if the water is for stock
watering, and the number of people and/or homes to be served
if the water is for domestic or municipal use;
(8) the approximate date upon which the use(s) permitted began
or will be commenced; and
(9) any other information as is deemed necessary and appropriate.
703 Conditions. Each water use permit issued pursuant to this code
shall contain whatever conditions are necessary to insure
adequate quality and quantities of water; to otherwise further
the purposes, policies and guidelines continaed within this code;
and to assist in the effective administration of this code.
These may include, but are not limited to, conditions and
limitations concerning:
(1) the source from which water may be diverted, withdrawn or
impounded;
(2) the quantity of water which may be diverted, withdrawn or
impounded during any particular time;
(3) the point(s) of diversion, withdrawal or impoundment;
(4) the method(s) of diversion, withdrawal or impoundment;
(5) the purpose for which water will be used;
(6) the method of application;
(7) the location and purpose of application, including acreage
for crops and number of livestock for livestock watering;
(8) the quantity and quality of return flow;
(9) the time period during which water may be used;
(10) schedules for diversion, withdrawal or impoundment,
including optional rotation schedules;
(11) provisions for surface or groundwater storage of surplus
flows;
(12) provisions for increasing the efficiency of diversion,
withdrawal or impoundment and application;
(13) provisions for maintainig minimum pools and streamflows for
fish, wildlife, recreation, aesthetic and Oglala Sioux
religious values;
(14) provisions for insuring minimum pumping and diversion
levels with respect both to surface and underground water;
(15) provisions designed to maintain head and pressure in
grounwaters;
(16) provisions designed to prevent or reduce obstruction of
surface water flows;
(17) provisions designed to minimize point and non-point source
pollution, water quality degradation and thermal
degradation;
(18) provisions designed to enhance recharge of aquifers;
(19) provisions designed to define and control interbasin
transfers of surface and groundwaters;
(20) provisions for some degree of overdraft from aquifers when
short-term recharge is not possible;
(21) provisions designed to prevent or reduce interference
between competing users or water sources whether above or
below ground;
(22) provisions to minimize interaquifer communication;
(23) provisions to insure long-term water development;
(24) any other provisions necessary to insure conformity with
the policies and provisions of this code and actions taken
pursuant to this code.
704 Entry on Land. No person shall be authorized to use or otherwise
take any action affecting the waters administered under this code
unless he/she shall consent to reasonable entry upon his/her land
by Oglala Sioux Tribal employees engaged in the administration of
this code. Every permit issued under this code shall contain the
condition that no use or other action affecting the waters in
question may be made unless the applicant consents to such
reasonable entry upon his/her land.
705 Effect. A water use permit issued under this code constitutes
Oglala Sioux Tribal permission to use the water within the
territtorial jurisdiction of the Pine Ridge Indian Reservation,
subject to the terms and conditions of the permit, to this code,
and to actions taken pursuant to this code. No water permit
issued hereunder shall be construed as creating or recognizing
any right other than Oglala Sioux Tribal permission to use water,
nor shall any water use permit ripen into any interest other than
such limited permission.
706 Revocability. Unless otherwise indicated, water permits issued
under this code are revocable by the Water Quality Inspector in
accordance with the policies, purposes, guidelines and procedures
established in this code.
707 Modification. Water permits are modifiable in accordance with
the procedures in this code.
CHAPTER 8: DETERMINATION OF AVAILABILITY AND NEED
801 When Proceeding Available. Whenever at any time after the
Existing Use Inventory is completed, an application for a permit
covering a new or changed use of, or other action affecting water
is made, or a complaint concerning an existing or proposed use,
or other action affecting the water is made; or a request is made
by the NRRA and it appears probably to the Water Quality
Inspector that a water supply common to a particular area is or
will be used beyond its capacity, or otherwise adversely
affected; the Water Quality Inspector may initiate a proceeding
to determine the availability of and need for water in accordance
with the provisions of this Chapter.
802 Purposes. The purposes of a proceeding to determine availability
or and need for water under this Chapter shall be: to evaluate
existing and future needs dependent upon a particular supply; to
compute with reasonable certainty the characteristics of a
particular supply, including quantity, surface and groundwater
levels, rates and directions of flow, rates of recharge,
out-of-basin sources, pollution, thermal degradation, and other
characteristics, at particular locations and times; to explore
various methods for increasing supply such as artificial
recharge, storage, increased efficiency, alternatives to present
uses, altenatives to activities presently requiring the
consumption of water; to assist to land use planning in
accordance with the policies and actions of the Oglala Sioux
Tribe; and to make available to other tribal, local, state and
federal agencies and to members of the public, information
concerning the waters in question.
803 Notice of Proceeding.
(1) Whenever a proceeding is initiated under Chapter 801, the
Water Quality Inspector shall provide notice of such
proceeding in the same manner as provided in Chapter 1002 to
all parties who are using or will use or otherwise affect or
rely upon the water supply in question, or will otherwise be
directly affectd by such proceeding.
(2) Such notice shall state in plain and simple language the
reason for initiation of the proceeding; the nature of the
proceeding; the geographic area covered by the proceeding;
and as nearly as may be determined, the possible effects of
such a proceeding on individual water uses.
(3) The Water Quality Inspector shall make every reasonable
effort to ensure that all persons or entities whose
interests are or will be affected by the proceeding have
reasonable notice of the nature, scope and possible effects
of the proceeding and a reasonable opportunity to prepare
for and participate in the proceeding.
804 Water Quality Control Program - Investigation Initiation. As
soon as the Water Quality Inspector determines that a proceeding
shall be initiated under this Chapter, he/she shall define as
accurately as possible the area covered by the proceeding and
commence an investigation as provided herein.
805 Water Quality Program - Information Gathering. The Water Quality
Inspector shall initiate an investigation to gather and evaluate
all available, pertinent data from whatever sources concerning
the water supply and needs for water in question; to formulate
proposals concerning the use of water in question; and to provide
other information, alternatives, and recommendations to assist
the NRRA. Such information, alternatives and recommendations
shall be contained in the report of the Quality Inspector
provided for in Chapter 806 of this code.
806 Water Quality Program - Report. Upon completion of the
investigation provided for in Chapter 805, and no more than 90
days after the initiation of the investigation, the Water Quality
Inspector shall transmit to the NRRA the report concerning the
availability of and need for water in the particular area to
which the proceeding applies. The report shall include the
following:
(1) a geographic and geologic description of the area studies,
setting out as precisely as possible the boundaries of the
area;
(2) a general description of the water supply in that area, from
all sources;
(3) a description of the various characteristics of the water
supply which are relevant to present and proposed uses and
other actions;
(4) a computation of the water supply available at particular
times and places;
(5) a description of the present and proposed uses of and other
actions affecting the water supply in question;
(6) a description and evaluation of the need for each such
present or proposed use or other action;
(7) a description of possible methods for increasing available
water supply;
(8) a description of economic and technical methods which may be
implemented to increase the efficiency of use;
(9) alternatives for present uses which will minimize the
impacts described in Chapter 501 of this code;
(10) amounts of water within the particular supply which shall
be subject to a reserve as provided in Chapter 303 of this
code;
(11) proposals for assessing varying amounts of water as
provided for in Chapter 304 of this code; and
(12) any additional information and recommendations which the
Water Quality Inspector deems is necessary for inclusion.
807 Proposed Determination of Availability and Need. As soon as
possible and no more than 30 days after receipt of the report of
the Water Quality Inspector, the NRRA shall cause to be prepared
a proposed Determination of Availability and Need in accordance
with the provisions of this Chapter.
808 Determination of Availability and Need - Contents. A
Determination of Availability and Need may include the following,
either as recommendation or mandatory provisions;
(1) a description and map of the affected area;
(2) a description of the water supply in the affected area,
including a description of the various characteristics of
the supply which are especially pertinent to present and
proposed water uses within that area;
(3) a description of the various present and future needs for
using or affecting the water supply in the area;
(4) a list of priorities to be observed within the affected area;
(5) a list of storage methods which are or may be proposed and
implemented;
(6) a description of methods for increasing efficiency;
(7) a description of possible interbasin transfers; and
(8) other information, provisions and recommendations or
requirements reasonably calculated to inform the affected
parties concerning the future management of the water supply
in question.
809 Notice of Hearing. As soon as possible and no more than 30 days
after the drafting of a proposed Determination of Availability
and Need, the Water Quality Inspector shall provide notice, in
the manner provided for in Chapter 803, of a public hearing at
which interested persons may present oral or written comments
concerning the proposed Determination of Availability and Need.
Included in the notice shall be a description and map of the
affected area; a description of the proceeding to date and a
clear statement that copies of the proposed Determination of
Availability and Need shall be made reasonably available to
interested persons. The notice shall state the date, time and
place for a hearing, to be held not less than 30 nor more than 60
days after the date notice is completed.
810 Hearing. A hearing shall be held with respect to every proposed
Determination of Availability and Need. Whenever possible, such
hearings shall be held in the affected area, at a date, time and
place which is reasonably convenient to a major portion of the
parties affected. At such hearings, the Water Quality Inspector
shall provide a brief oral statement of the purpose of the
hearing and a description of the proceeding date, including the
proposed Determination. At least one member of the NRRA,
preferably the NRRA Coordinator, shall be present and shall
preside over the hearing.
After the presentation is made by the NRRA or its designees,
public comment shall be allowed. Public comment may be limited
by reasonable rules adopted by the NRRA to insure an opportunity
for full comment. Hearings may be continued if necessary to such
times and places as are deemed appropriate upon adequate notice.
811 Final Determination of Availability and Need. As soon as
possible, and no more than 60 days after the public hearing
provided for in Chapter 810, the NRRA shall cause to be prepared
a final Determination of Availability and Need. Notice of this
final Determination shall be made in the same manner as provided
for in Chapter 803 and shall indicate the copies of the
Determination are reasonably available for public review.
812 Subsequent Actions. Upon completion of the above proceedings,
the Water Quality Inspector shall make copies of the
Determination of Availability and Need made under the provisions
of this Chapter, reasonably available to parties requesting the
same; shall grant, revoke, deny or modify permits in accordance
with such Determination; shall enter appropriate orders and take
other actions authorized by this code to prevent overuse and/or
pollution in accordance with such Determination; and shall take
whatever other actions are necessary and authorized by this code
to assist in the implementation of the Determination and of the
policies, provisions and guidelines set forth in this code.
813 Appeal. Appeals from the final Determination of the Availability
and Need shall be taken in the same manner as provided for in
Chapter 11 of this code.
CHAPTER 9: TRANSFER AND LOSS OF RIGHTS
901 Transfer, Assignment, Descent, Distribution and Creation of
Security Interest. Permits issued under this code shall not be
subject to transfer, assignment, descent, distribution or
creation of any security interest without the express written
consent of the Water Quality Inspector. Applications for
transfer, assignment, or creation of a security interest shall be
made on forms prepared and made available by the Water Quality
Inspector. Such forms shall be designed to solicit information
concerning any substantial changes which will or may occur as a
result of the transfer, assignment or creation of a security
interest in a water use permit. Every attempt should be made to
conform with the purposes of Chapter 6, governing Description of
the Use and Application for Permit. Heirs and successors in
interest of permittees shall apply for permits in their own
names; however, such substitute permits shall be freely granted
unless changing hydrological conditions clearly warrant a
modification of the prior permits.
902 Loss by Nonuse. Any right to use or otherwise affect in any way
water within the territorial jurisdiction of the Pine Ridge
Indian Reservation, regardless of its origin, shall become void
and revert, to the extent of the abandonment or nonuse, to the
Oglala Sioux Tribe when the holder of such use right wholly or
partially abandons the same, or voluntarily fails without
sufficient cause to use all or a portion of the water available
under such use right for a period of five consecutive years.
"Sufficient Cause" shall include:
(1) drought or other availability of water;
(2) active service in the armed forces of the United States;
(3) the operation of legal proceedings;
(4) the application of any laws restricting water use;
(5) incarceration in a penal institution;
(6) confinement in a mental instituion, whether voluntary or
involuntary;
(7) incompetence by reason of age or mental incapacity;
(8) provisions for future use as provided in this code; or
(9) other causes of nonuse beyond the control of the holder(s)
of the use right claimed.
Before such rights to use water may be deemed lost by nonuse of
abandonment, the Water Quality Inspector shall serve notice on
the holders of such use rights to appear at a hearing to be held
before the NRRA not less than 30 days after the mailing or
personal service of such notice and show cause why their use
rights should not be deemed void. Such notice and hearing shall
be in the manner provided for in Chapter 10 of this code
governing notice and hearing.
903 Loss by Adverse Possession, Prescription, Estoppel, or
Acquiescence. No right to use or otherwise affect the quantity,
level, flow, pressure, quality, or temperature of water may be
acquired by adverse possession, prescription, estoppel or
acquiescence.
904 Outside Proceedings. No use right granted under this code may be
reduced or taken or otherwise affected in any procedure or
determination or adjudication except as provided for in this code.
CHAPTER 10: GENERAL HEARING PROVISIONS
1001 Applicability. Unless otherwise provided for in this code,
hearings shall be held in accordance with the provisions of this
Chapter.
1002 Notice. All parties who will or may be directly affected by a
proposed action shall be given notice by mail or any hearings
held under this Chapter. In additions, notice of hearings shall
be published in one paper having general circulation in the
affected area and notice of hearing shall be posted in prominent
places in the affected area, as set forth in Chapter 2 of this
code.
Every attempt shall be made to give each party who will or may
be directly affected by any action, actual notice of that action
and fair and adequate opportunity to be heard.
1003 Time and Place of Hearing. Whenever possible hearings shall be
held in the affected area, at a date, time and place which is
convenient for a major portion of the parties affected.
1004 Continuance. Continuances shall be freely granted when the ends
of justice so require and in order to assure adequate notice and
opportunity to be heard.
1005 Presiding Officer. The NRRA shall designate a qualified and
impartial Hearing Officer to preside over hearings provided for
in this Chapter.
1006 Forms of Evidence. Evidence may be submitted in any practical
form including oral testimony, written evidence, and descriptive
evidence. The ordinary rules of evidence shall not apply but
evidence which is irrelevant, cumulative, unduly prejudicial, or
would otherwise be unfairly admitted, may be excluded or
admitted only under special conditions or stipulations.
1007 Consolidation of Hearings. Whenever possible, hearings
concerning proposed or existing actions in a particular
watershed or area shall be consolidated to promote efficiency,
minimize expense or hardship, and to prevent duplication.
1008 Recording. Hearings shall be recorded by mechanical means,
provided, that any person may provide at his/her own expense for
a stenographic record.
1009 Decision. Whenever a decision is required in accordance with
the provisions of this code following a public hearing, the
Hearing Officer shall prepare findings of fact and conclusion of
law and shall recommend a proposed decision to the Water Quality
Inspector. The Inspector may make such modifications as are
clearly warranted by the evidence and applicable law and shall
issue a final decision, including an explanation for any changes
made in any recommendation. Such decision shall be published
and served upon the parties in the same manner as provided in
Chapter 1002 governing notice of hearings.
CHAPTER 11: APPEALS
1101 Appeals Provided For. There shall be no appeal from actions
taken under this code except as provided herein. Appeals shall
be made to the Court of Appeals of the Oglala Sioux Tribe.
1102 Notice of Appeal - Jurisdiction. Any party aggrieved by any
final action taken under this code may, by filing a Notice of
Appeal with the Court of Appeals of the Oglala Sioux Tribe
obtain review of such final action. The Court of Appeals shall
have no jurisdiction to hear any appeal initiated pursuant to
this Chapter unless the Notice of Appeal is filed with the Court
of Appeals within 30 days after the date of the final action.
"Final action" means any action taken under this code for which
no further consideration by the Water Quality Inspector or the
NRRA is required.
1103 Notice of Appeal - Service. Upon filing of the Notice of
Appeal, the party appealing the final action shall forthwith,
and no more than 10 days after filing of the Notice of Appeal,
cause the Notice of Appeal to be served on all parties to the
proceeding being appealed.
1104 Transmittal of Record.
(1) Upon receipt of the Notice of Appeal, the Water Quality
Inspector and the NRRA shall cause all pertinent documents
in their possession, and any other articles of evidence in
their possession, to be transmitted to the Court of Appeals.
(2) Any party to an appeal may at his/her own expense, cause a
transcript of any hearings or other proceedings below to be
prepared and transmitted to the Court of Appeals. Provided,
that the Water Quality Inspector in his/her discretion shall
bear the final financial burden of preparing such transcript
when it appears, after good cause shown, that a party is
financially unable to do so.
1105 Oral Argument. Upon receipt of the Notice of Appeal, the Court
of Appeals shall, as soon as possible and no more than 15 days
after receipt thereof, notify the NRRA, the Water Quality
Inspector, the appealing party, and the other parties to the
proceedings, of a date certain for full hearings before the
Court of Appeals.
1106 Briefs. Parties may at their own option or shall when requested
to do so by the Court of Appeals file briefs in support of their
appeal. Briefs shall be due on dates set by the Court of
Appeals and no less than 30 days after receipt of the notice
provided for the Chapter 1105.
1107 Scope of Review. The Court of Appeals, in reviewing the final
action appealed from, shall limit its review to the issues and
the evidence which were before the Water Quality Inspector or
the NRRA at the time of the final action. The Court of Appeals
may affirm, reverse, modify in whole or in part, or remand for
further consideration, any final action appealed from.
Provided, final actions appealed from may only be reversed,
modified or remanded when they are arbitrary, capricious
unsupported by substantial evidence, not in substantial
conformity with this code or otherwise contrary to law.
1108 Court of Appeals - Additional Powers.
(1) The Court of Appeals may on its own motion or upon motion of
any party dismiss an appeal for want of prosecution, gross
procedural irregularity, or mootness when the ends of
justice so require.
(2) In addition, the Court of Appeals may stay the operation of
final actions appealed from, in whole or in part, and may,
when the ends of justice require, provide for a supersedeas
bond or other security from the parties of the appeal.
CHAPTER 12: WATER POLLUTION CONTROL
1201 General Policies. For the benefit of the Pine Ridge Indian
Reservation and its residents, the NRRA and the Water Quality
Control Program will serve to protect, maintain, and improve the
quality thereof for public water supplies, for the propagation
of wildlife, fish and aquatic life, and for domestic,
agricultural, industrial, traditional, cultural, recreational,
and other beneficial uses; to provide that no waste be
discharged into any waters of the reservation without first
being given the degree of treatment necessary to protect the
legitimate beneficial uses of such waters; to provide for the
prevention, abatement, and control of new or existing water
pollution; to place in priority those control measures directed
towared the elimination of pollution which creates hazards to
public health; to insure due consideration of financial problems
imposed on water polluters through the pursuit of these
objectives; and to cooperate with other agencies of the tribe,
states, and the federal government in carrying out these
objectives.
1202 Water Quality Standards. The NRRA and the Water Quality
Inspector will promulgate stream water quality standards in
accordance with Section 303 of the Clean Water Act. These
standards will be used as a general measure of the quality of
various streams within the reservation boundaries and suggest
the uses for which the water is generally suitable. The measure
of the quality of the water in a particular stream will be based
upon a comparison of stream water quality data to the maximum
allowable contaminant levels of the National Primary and
Secondary Drinking Water Regulations of the Safe Drinking Water
Act.
1203 Drinking Water Standards.
(1) Environmental Protection Agency (EPA) Primary Drinking Water
Standards for public water systems:
Maximum Contaminate Levels
Inorganic Chemicals mg/L
Arsenic................................... 0.05
Barium.................................... 1.00
Cadmium................................... 0.01
Chromium.................................. 0.05
Lead...................................... 0.05
Mercury................................... 0.002
Nitrate...................................10.00
Selenium.................................. 0.01
Silver.................................... 0.05
Fluoride.................................. 1.4-2.4
Organic Chemicals mg/L
Endrin.................................... 0.0002
Lindane................................... 0.004
Methoxychlor.............................. 0.1
Toxaphene................................. 0.005
2,4 - D................................... 0.01
Trihalomethanes........................... 0.1
Phenols
Radioactivity pCi/l
Radium 226/228............................ 5
Gross alpha particle (including radium -
226) .................................... 15
(2) Environmental Protection Agency (EPA) Secondary Drinking
Water Standards for public water system:
Maximumm Contaminate Levels
Chloride................................... 250 mg/L
Color...................................... 15 color units
Copper..................................... 1 mg/L
Corrosivity................................ non-corrosive
Foam Agents................................ 0.5 mg/L
Iron....................................... 0.3 mg/L
Manganese.................................. 0.05 mg/L
Odor....................................... 3 threshold
odor number
pH......................................... 6.5-8.5
Sulfate.................................... 250 mg/L
TDS (Total dissolved solids)............... 500 mg/L
Zinc....................................... 5 mg/L
1204 Surface Water Quality.
(1) Criteria for Coldwater Marginal Fish Life Propagation Waters:
Total Chlorine residual..................... 0.02 mg/L
Ammonia Nitrogen............................ 0.02 mg/l (as N)
Total Cyanide............................... 0.02 mg/L
Free Cyanide................................ 0.005
Dissolved Oxygen............................ 5.0
H2S......................................... 0.002
pH.......................................... 6.5 - 8.8
Suspended Solids............................ 90 mg/L
Temperature................................. 75 degrees
F or less
PCB's....................................... .000001 mg/L
(2) Criteria for Warmwater Permanent Fish Life Propagation Waters:
Total Chlorine residual
Ammonia Nitrogen............................. .04
Total Cyanide
Dissolved Oxygen
H2S
pH........................................... 6.5 - 9.0
Suspended Solids
Temperature.................................. 80 degrees F
PCB's........................................ .000001 mg/L
(3) Criteria for Warmwater Semi Permanent Fish Life Propagation
Waters Same Except:
pH............................................ 6.3 - 9.0
Temperature................................... 90 degree F
(4) Criteria for Immersion Recreation Waters:
Dissolved Oxygen.............................. 5.0 mg/L
pH.......................................... 6.5 - 8.3 units
Free Cyanide (May 1 - Sept. 30) .............. 200/100 mg/L
(5) Criteria for Wildlife Propagation and Stockwatering Waters:
Total Alkalinity........................ 750 mg/L(as calcium
carbonate)
TDS (Total dissolved solids)............ 2500 mg/L
EC Conductivity......................... 4000 micromhos/cm at
25 degree C
Nitrates................................ 50 mg/L (as N)
ph...................................... 6.0 - 9.5 units
(6) Criteria for Irrigation (May 15 - Sept 30)
EC Conductivity.......................... 2500 micrommhos/cm
at 25 degrees C
Sodium absorption ratio.................. 10
1205 Exemptions of Public Water Supply Systems - Requirements. The
NRRA or the Water Quality Inspector may exempt any public water
supply system from any maximum contaminant level upon finding that:
(1) due to compelling factors, including economic, the public
water system is unable to comply with the contaminant level.
In assessing the compelling factors, the Water Quality
Inspector shall consider such factors as construction,
installation or modification of treatment equipment or
systems and the time needed to replace an existing
noncomplying facility with a new treatment system;
(2) the public water system was in operation on the effective
date of the maximum contaminant level regulations;
(3) the granting of the exemption will not result in an
unreasonable risk to health; and
(4) within one year of the date of exemption authorization, a
schedule for compliance will be issued and the owner of the
supply agrees to implement the schedule.
CHAPTER 13: FURTHER PROHIBITIONS
1301 Underground Injection Control. At the present time, the NRRA
and the Water Quality Control Program prohibits all hazardous
waste injections that would have an adverse effect on the
underground drinking water sources of the Pine Ridge Indian
Reservation. However, if deemed necessary by the Oglala Sioux
Tribe, Class II Underground Injection wells (oil and gas
related) and geothermal activities will receive further
consideration, but all possible regulations and enforcement
procedures will be implemented to the fullest extent, if such
wells become feasible.
1302 Streambed Alteration.
(1) Alteration work shall not be permitted within the high water
mark of any stream without receiving a permit from the NRRA.
Any person proposing the project shall submit a work plan to
the NRRA for their review. The NRRA will either issue a
permit, deny a permit, or request further review.
(2) There shall be no heavy equipment allowed within the
confines of any stream. In-stream work shall be completed
with equipment situated out of the stream channel.
1303 Minimum In-Stream Flow.
(1) Under this article, minimum in-stream flow for cultural and
traditional uses, fish and aquatic life, recreation and
aesthetic purposes are legitimmate beneficial uses.
(2) Parties proposing to de-water major reservation streams for
agricultural uses must demonstrate to the tribe that the
proposed activities will not interfere with a minimum stream
flow no less than ten cubic feet per second for the purposes
of this Subchapter (1).
(3) A minimum stream flow of 10 cfs shall be retained in all
other streams at all times, unless the natural flow, due to
natural conditions, is less than 10 cfs.
1304 Lakeshore, Damshore Management.
(1) A permit is required by any person who proposes to do any
work which will alter or diminish the course, current, or
cross sectional area of a lake, its lakeshore, dam or its
damshore. Without limitation, the following activities are,
when conducted below mean annual high water elevation,
examples of work for which a permit is required:
Construction of channels and ditches; dredging of lake
bottom areas to remove muck, silt, or weeds; lagooning;
filling; constructing breakwaters or pilings, wharves,and
docks.
(2) Any person proposing work within a lakeshore or damshore
area shall submit a work plan to the NRRA for their review.
The NRRA will make the final decision on whether and how any
work is accomplished. Factors to be considered during the
review process are that the work will not, during either its
construction or utilization:
(a) materially diminish water quality;
(b) materially diminish habitat for fish or wildlife;
(c) interfere with navigation or other lawful recreation;
(d) create a public nuisance;
(e) create a viual impact discordant with natural scenic
values, as determined by the NRRA, where such values
from the prominent landscape elements; or
(f) materially impair cultural or traditional uses of
lakes, lakeshore areas or dam and damshore areas.
(3) A person who performs work in a lake or dam without a permit
for that work, shall if required by the NRRA, restore the
lake to its condition before it was disturbed, and is
subject to the provisions for violations, remedies, and
penalties under this code.
1305 Obstruction to Fish Passage.
(1) No object may be built in or across a stream that will block
or inhibit the free passage of fish past that point.
(2) Any person proposing such work must submit a written project
proposal to be reviewed by the NRRA at a public meeting. If
approval is received, and a permit granted, permit
conditions must be adhered to which will facilitate the
passage of fish.
CHAPTER 14: PROHIBITED ACTS
1401 Waste of Water Prohibited. No waters that have been withdrawn,
diverted, impounded or otherwise taken pursuant to a valid
permit or otherwise shall be wasted. The withdrawal of
reasonable quantities of water in connection with construction,
development, testing or repair of diversion, withdrawal and
impoundment works shall not be construed. In the event of
inadvertent loss of water owing to defects in equipment for
diversions, withdrawals and impoundments such shall not be
construed as waste if reasonable diligence is shown by the
permittee in effecting necessary repairs.
1402 Unauthorized Actions Affecting Waters Prohibited. Whenever any
use or other action affecting the use of waters within the
territorial jurisdiction of the Pine Ridge Indian Reservation,
is required by this code to be authorized under the provisions
of this code, it shall be a violation of this code to knowingly
make such use or take such other action without authorization
required.
1403 Obstruction of Oglala Sioux Tribe Employees. The willful
obstruction of or interference with Oglala Sioux employees
performing their lawful duties under this code shall be a
violation of this code.
1404 Misstatement of Material Facts. The knowing misstatement of any
material fact by any person or entity when providing information
required by this code, with respect to Description of Use and
Applications for Permit or otherwise, shall be a violation of
this code.
1405 Sanctions for Code Violations. Violations of this Chapter may
subject the person(s) or entity(s) responsible to forfeiture or
suspension of rights to use of water administered under this
code. Sanctions may also include the requirement of payment for
water improperly used or adversely affected by the improper use;
payment of the costs for all associated remedial actions taken,
including the replacement of lost water; payment of associated
administrative costs incurred by the Oglala Sioux Tribe as a
result of the violation; and payment of such other costs as are
necessary to render the Oglala Sioux Tribe, and its inhabitants
whole.
CHAPTER 15: MISCELLANEOUS PROVISIONS
1501 Severability. If any provisions of this code or the application
thereof to any person or circumstances is held invalid, the code
will be given effect without the invalid provision of
application; and to this end the provisions of this code are
declared to be severable.
1502 Construction. This code shall be liberally construed to
effectuate its objectives, policies, guidelines, purposes, and
provisions.
1503 Review of Authority. The NRRA and the Water Quality Inspector
shall, from time to time, review the authority granted to them
under this code and propose amendments and additions thereto to
the Oglala Sioux Tribal Council in order to improve
administration under this code.
1504 Extension of Time Limits. The time limits provided for in
various places of this code may be extended, for good cause
shown, by the agency before whom the proceeding is pending when
the ends of justice so require.
1505 Representation. Parties appearing at hearings and other
proceedings provided for this code may represent themselves or
may be represented by individuals licensed to practice before
the courts of the Oglala Sioux Tribe.
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