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[Includes amendments through 2001.]
SKOKOMISH ENVIRONMENTAL PROTECTION ACT
Adopted by Resolution No. 88-22 (March 31, 1988)
Amended by Resolution No. 01-83 (June 27, 2001)
Findings, Purpose, Goals
6.03.001 Findings
The Skokomish Tribal Council makes the following findings with regard to this Act:
(a) The Skokomish Reservation was established for the exclusive and permanent use of the Skokomish Indian Tribe. The land was reserved by the Tribe from a larger area to which the Tribe held aboriginal title.
(b) The Skokomish Indian Tribe, through its governing body, the Skokomish Tribal Council, has the jurisdiction and the duty to protect the quality of the environment within the boundaries of the Skokomish Indian Reservation. The Tribe has concurrent authority to protect environmental quality within the Tribe's usual and accustomed fishing grounds and stations and in its off-reservation hunting areas.
(c) The Skokomish Reservation is a small land base which must provide for the economic, residential, cultural, recreational, and governmental needs of the Skokomish tribal community at present and in the future.
(d) The Skokomish Reservation contains ecologically sensitive wetlands, culturally sensitive historic and archaeological sites, and the Skokomish River which is both economically and ecologically sensitive, particularly with regard to the Tribe's fishery. Any action adversely affecting these and other areas within the Reservation's ecosystems, adversely affects the Skokomish Indian Tribe.
(e) The Skokomish Tribal Council concurs with federal and state legislation with policies stressing environmental protection such as the National Environmental Policy Act, Coastal Zone Management Act, Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, Washington State Environmental Policy Act, and Washington Shoreline Management Act. The Skokomish Tribe is a member of the Hood Canal Coordinating Council and supports the Hood Canal Plan. The Tribal Council recognizes that ecosystems are blind to jurisdictional boundaries. Therefore, it is intended that this Act be implemented in a spirit of cooperation with other governments and their agencies.
6.03.002 Purpose
This Act is adopted to protect the environment under the jurisdiction of the Skokomish Indian Tribe for the enjoyment and use of present and future generations of Skokomish tribal community members.
6.03.003 Goals
The Tribal Council intends to further the following goals in adopting this Act, in addition to the goals incorporated in S.T.C. 6.03.001(f).
a) To protect the natural resources of the Skokomish Reservation from contamination, pollution, and other degradation;
b) To protect and enhance the habitat of all types of fish, shellfish, and wildlife resources, particularly the Skokomish River estuary and associated wetlands that are critically important components of the ecosystem which support fish and shellfish resources;
c) To minimize the adverse impacts that would result from locating developments in environmentally sensitive areas;
d) To preserve the open, rural environment that has been traditional for Skokomish Indians; and
e) To allow sufficient development within this natural environment to enable all Skokomish families who desire housing and public services to obtain them.
Definitions
6.03.010 Definitions
The words below shall have the meaning set forth in this section when they appear in this Act, unless a different meaning is clearly intended.
(a) "Buffer" means an undisturbed area of land adjacent to a critical area (streams, wetlands, marine shorelines, erosion hazard areas) that protects the functions and values of the critical area.
(b) "Construction" means any onsite activity which is directly related to building or modifying a structure. It does not include minor repairs to or painting of existing structures.
(c) "Department" means the Skokomish Department of Natural Resources.
(d) "Director" means the Director of the Skokomish Department of Natural Resources.
(e) "EIS" means environmental impact statement.
(f) "Floodplain" means lowlands adjoining the channel of a river, stream, or other body of water which have been or may be inundated by floodwater and those areas subject to flooding. In connection with this ordinance, the term refers to the area inundated by the 100 year flood event. These areas are identified as "flood hazard areas" by the Federal Emergency Management Agency (FEMA) under the auspices of the National Flood Insurance Program (NFIP).
(g) "Normal public use" means fishing, shellfishing, boating, swimming, and general recreation, by persons with a legal right to engage in those activities.
(h) "Proposed activity" and "activity" mean a development, project, construction, or other action.
(i) "Skokomish tribal community" means all persons residing within the boundaries of the Skokomish Indian Reservation and all enrolled members of the Skokomish Indian Tribe regardless of residence.
(j) "Structure" means a permanent or temporary edifice or building, or any piece of work artificially built or composed of parts joined together in some definite manner, whether installed on, above, or below the surface of the ground or water. The term structure includes roads.
(k) "Tribal Council" means the governing body of the Skokomish Indian Tribe as constituted and empowered under Article IV of the Constitution of the Skokomish Indian Tribe.
(l) "Wetlands" or "wetland areas" mean lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. Wetlands have one or more of the following attributes: (a) At least periodically, the land supports predominantly hydrophytes; (b) the substrate is predominantly undrained hydric soil; and (c) the substrate is nonsoils and is saturated with water or covered by shallow water at some time during the growing season of each year.
6.03.011 Time Limits - Exceptions
Time limits imposed on the Tribal Council in this Act are guidelines. Postponements for lack of a quorum shall have no consequence except a delay in the process. Time limits for the EIS shall be made by agreement of the applicant and the Director. Time limits throughout the Act shall be construed in a manner which accomplishes the goals of the Act.
Permits Required
6.03.020 Permit Required for Certain Activities
Any person conducting an activity within the boundaries of the Skokomish Indian Reservation shall be required to obtain a permit from the Skokomish Indian Tribe under this Act. Activities requiring a permit include, but are not limited to, the following:
(a) Preparation of a site for the construction of a building or area for purpose of human habitation, business use, or public area;
(b) The construction of any structure and construction which expands the square footage of the exterior of an existing structure by more than 100 square feet;
(c) Conduct of a business operation;
(d) Road construction or repair and right of way maintenance;
(e) Construction or repair of culverts and drainage ditches;
(f) Construction of any water or flood related project regardless of the nature or extent of the construction activity;
(g) Any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands within the Skokomish Indian Reservation at any state of water level; and
(h) Dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; diking; riprapping; or driving of piling.
(i) Timber harvesting and the harvesting of any forest products, including brush picking and mushroom picking;
(j) Spraying or other application of pesticides and herbicides, except for use by single family residences;
(k) Clearing and grading.
(l) Storage, application, disposal or incineration of solid waste and/or hazardous materials as those terms are defined under the Resource Conservation Recovery Act (42 U.S.C. §§ 6992-6992k)
6.03.021 Exceptions to Permit Requirement
The following activities shall not require a permit under this Act:
(a) Residential home improvements;
(b) Construction of sheds or smokehouses which are accessory to existing residential or farm use;
(c) Business conducted in the home except where construction is required; and
(d) Fireworks stands licensed by the Skokomish Indian Tribe.
6.03.022 "Grandfathered" Activities
Structures in existence prior to the adoption of this Act are exempt from the permit requirements of this act. Modifications to such structures made after the date of adoption of this Act and which fall under Section 6.03.010 are subject to the Act.
6.03.023 Permit Application. Environmental Checklist
Any person requiring a permit under Section 6.03.020 shall obtain a Skokomish permit application and an environmental checklist form from the Director.
6.03.024 Filing
The completed permit application and environmental checklist shall be filed with the Director or his/her designee. The permit application shall be accompanied by a $25.00 processing fee which may be waived on a showing of hardship.
Review of Application
6.03.030 Review of Permit Application and Checklist
The permit application and environmental checklist shall be initially reviewed by the Director who shall make a recommendation to the Tribal Council to approve, deny or condition the permit. Activities requiring a permit shall be reviewed and decided upon by the Tribal Council as soon as practicable. The Director and the Tribal Council may request assistance from appropriate technical personnel in conducting the review. The review process shall consist of the following determinations:
(a) Is there sufficient information in the application?
Does the permit application and environmental checklist contain adequate information on which to base a decision to approve or deny the permit or to allow a conditional use? If there is not enough information, a personal conference with the applicant shall be required.
(b) Are the goals and purpose of the Act met?
Does the proposed activity conform to the goals (Section 6.03.003) and purpose (Section 6.03.002) of this Act?
(c) Have the environmental review criteria been met?
Does the proposed activity meets the environmental review criteria under Sections 6.03.040 through 6.03.055 of this Act?
(d) Are there archaeological issues to be addressed?
Does the proposed activity adequately address archaeological and historical site concerns and is it compatible with the policies for such sites under Sections 6.03.080 through 6.03.081 of this Act; and
(e) Are the standards of the Act met?
Does the proposed activity conform to standards set forth for that type of activity under Section 6.03.090 of this Act?
6.03.031 Initial Notice to Applicant
Within 15 calendar days from the date a completed application and environmental checklist are received, the Director shall notify the applicant of one or more of the following:
(a) The applicant must attend a personal conference with the Director to clarify or complete information required by the permit application or environmental checklist;
(b) An environmental impact statement will be required;
(c) The archaeological and historical preservation requirements of Sections 6.03.080 through 6.03.081 necessitate action by the applicant;
(d) The application is being recommended for approval, and a permit may be issued following Tribal Council review and approval. (This determination would be based on a finding of no significant impact.);
(e) The application is being recommended for approval subject to conditions, and a conditional permit may be issued following Tribal Council review and approval. (This determination would be based on a finding of no significant impact.); or
(f) The permit is being recommended for denial for the reasons listed in the notice.
If additional time is needed by the Director to make the required determinations and recommendations, the applicant shall be so notified.
6.03.032 Determination and Recommendation of the Director
The Director shall make his determination and base his recommendation to approve, deny, or condition a permit on the criteria in Section 6.03.030 of this Act. The permit application and recommendation of the Director shall be placed on the agenda of the next regularly scheduled meeting of the Tribal Council.
Environmental Review
6.03.040 Environmental Review - Generally
The Director shall review the applicant's environmental checklist for the purpose of determining whether the proposed activity will significantly affect the environment. If so, the applicant will be required to prepare an environmental impact statement conforming to the requirements of S.T.C. 6.03.046 through 6.03.050. The Director may use any technical assistance he or she may require in making the review.
6.03.041 "Significantly Affecting the Environment"
The determination of whether an activity will significantly affect the environment shall be made in the context of Skokomish tribal culture and values. Factors to be taken into consideration in evaluating an application for a permit and the environmental checklist for significant effects on the environment include:
(a) The degree to which the proposed activity will adversely affect the quantity and quality of the fish and shellfish resources of the Tribe;
(b) Unique or sensitive characteristics of the geographic or hydrologic area in which the proposed activity will take place;
(c) The degree to which the action may adversely affect an endangered or threatened species or its habitat;
(d) Whether the proposed activity may cause loss or destruction of cultural, historical, or scientific resources;
(e) The degree to which the proposed activity affects health and safety of the Skokomish tribal community;
(f) The degree to which the effects of the proposed activity are uncertain or involve unique or unknown risks;
(g) The degree to which the proposed activity may establish a precedent for future actions with significant effects;
(h) The level of Skokomish tribal community support or opposition;
(i) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. If it is reasonable to anticipate a cumulatively significant impact on the environment, the activity is significant.
(j) Whether the action threatens a violation of federal, state, or local law or requirement or interlocal cooperation agreement to which the Skokomish Tribe is a party, imposed for the protection of the environment.
(k) Whether the action would violate the Constitution of the Skokomish Indian Tribe or any other law or policy of the Tribe.
6.03.042 Finding of No Significant Impact
If the Director determines that the proposed project will not have a significant effect on the environment, based on a review of the environmental checklist, the applicant conference, if any, and the recommendations of any technical persons consulted, he or she shall prepare a finding of no significant impact (FONSI).
6.03.043 Cultural Values and Community Aesthetics
If the Director issues a FONSI, but also finds that a proposed activity may adversely impact tribal cultural values or community aesthetics, he may post a notice requesting public comment at the Skokomish Fisheries Building, Twin Totems store, and the Skokomish Tribal Center. Any interested person may submit written comments to the Director within fifteen (15) days of the date the notice is posted.
6.03.044 Tribal Council Decision
The Director shall forward the FONSI, his recommendation and, if applicable, any comments received from interested persons to the Tribal Council. The Tribal Council shall review these materials at its next regularly scheduled meeting. The Council may approve the Director's FONSI and the applicant's permit, or order a conditional permit issued, or may deny the permit and require the applicant to do an environmental impact statement.
6.03.045 Conditional Permits
A conditional permit may be issued when a proposed activity substantially, but not entirely, meets the requirements set forth in Section 6.03.030 and the activity could be conducted in harmony with the Tribe's purpose and goals under this Act if certain acts or omissions are performed by the applicant. The permit is issued subject to those conditions and is revocable if those conditions are not met by the applicant. Approval of conditional permits is discretionary. The Director may grant a conditional permit after a finding of no significant impact. The conditional permit must go through the same notice, comment, and Tribal Council review process used for the FONSI (under Sections 6.03.043 and 6.03.044). A second way a conditional permit may be issued is by the Tribal Council, after the environmental impact statement process, as provided in Section 6.03.054.
6.03.046 Environmental Impact Statement Required
If the Director determines that the proposed project will have or is likely to have a significant effect on the environment, the applicant shall be required to prepare an environmental impact statement (EIS).
6.03.047 EIS Format
The EIS shall be written in plain language so that the Tribal Council and the Skokomish tribal community can understand it. Supplemental materials which are of a technical nature may be included for review by the Tribe's technical staff and advisors. The applicant shall provide the Tribe with an original and ten copies of the EIS. The EIS shall substantially follow the format set forth below:
(a) Cover Sheet.
A one page cover sheet which gives the title of the proposed activity or project, the name, address, and telephone number of the preparer(s), identified as such. The same information for the applicant. A one paragraph abstract of the proposed activity.
(b) Summary.
A summary, not to exceed fifteen pages, adequately and accurately summarizing the major conclusions, areas of controversy, and issues to be resolved, including alternatives.
(c) Purpose and Need Statement.
A statement briefly specifying the underlying need for the proposed activity.
(d) The Proposed Activity and Alternatives.
This section is the heart of the EIS. It shall present the environmental impacts of the proposal and the alternatives in comparative form to make a clear basis for choice among options. It shall rigorously explore and objectively evaluate all reasonable alternatives. It shall include the alternative of no action. It shall include appropriate mitigation measures not already included in the proposed activity or alternatives.
(e) Affected Environment.
The environmental impact statement shall succinctly describe the environment of the area(s) to be affected or created by the alternatives under consideration.
(f) Environmental Consequences.
This section shall include the actual and potential environmental impacts of the alternatives including the proposed activity, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. It shall include direct and indirect effects and their significance. It should address possible conflicts between federal, state, regional, local and interlocal plans, policies and controls for the area concerned. Energy requirements and conservation potential shall be addressed. Specific impacts on the Skokomish tribal fishery, including habitat, shall be addressed in detail. Natural or depletable resource requirements and conservation potential and mitigation measures for the proposed activity and alternatives shall be addressed. Impacts on the quality of Skokomish tribal life and compatibility with cultural values shall be addressed. Means to mitigate adverse environmental impacts not already covered shall be included.
(g) List of Preparers.
The EIS shall list the names, together with the qualifications (expertise, experience, professional disciplines), of the persons who were primarily responsible for preparing the EIS. Persons responsible for a particular analysis shall be identified.
(h) Appendix.
Materials prepared in connection with the EIS which substantiate any analyses or are otherwise relevant to the decision to be made may be placed in an appendix.
6.03.048 Cost of EIS
The cost of preparing and copying the EIS shall be borne by the applicant.
6.03.049 Cooperation With Other Agencies in EIS Preparation
If a proposed activity will be subject to environmental assessment or preparation of an EIS by another governmental authority, the Director may work with the applicant to coordinate the sharing of information and possible incorporation by reference of materials prepared by or for the other agency. The applicant is responsible for providing the Tribe with copies of all materials incorporated by reference.
6.03.050 Sufficiency of EIS
The Director shall have the authority to determine whether an EIS is sufficient in scope, detail, and overall quality. The Director may require supplemental or revised materials to be presented if necessary to aid in making decisions based on the EIS.
6.03.051 Recommendation of Director Based on EIS
The Director shall prepare a written recommendation, addressed to the Tribal Council, of whether the proposed activity can be conducted without significant adverse affects on the environment. If the proposed activity can be conducted without significant adverse environmental impacts only if certain mitigating factors are present, the Director may recommend that a conditional permit be considered. A copy of the Director's recommendation shall be provided to the applicant.
6.03.052 Public Hearing
If a proposed activity requires an environmental impact statement, a public hearing shall be scheduled by the Director to take place within 30 days of receipt of the EIS from the applicant. The Tribal Council shall be present at the hearing. The applicant shall be given an opportunity to give a presentation on the proposed activity, not to exceed one hour. The Director shall present the recommendation he or she prepared under Section 6.03.051. The Tribal Council shall preside over the hearing. Additional public hearings before or after that time may be scheduled if the Director deems it to be in the interest of the Skokomish tribal community.
6.03.052 Notice of Public Hearings
Notice of public hearings under this Act shall be given to the applicant, the Skokomish Tribal Council, and the Skokomish tribal community. The notice shall state the time and place of the hearing and state the subject matter. The notice shall either be published in the Skokomish Tribal newsletter at least 5 days before the hearing or shall be posted in at least two prominent locations on the Reservation. The notice shall be mailed or served on the applicant at least ten days before the hearing. The Director shall verify that the notices have been made as required.
6.03.054 Tribal Council Decision
The Tribal Council shall decide whether to grant or deny the issuance of the permit or to issue a conditional permit. The Tribal Council shall give notice of its decision to the applicant within 30 days of the public hearing unless an additional hearing is scheduled, in which case notice of the decision shall be given to the applicant within 30 days of the final public hearing. The Tribal Council shall post a notice to the Skokomish Tribal Community of its decision to approve, deny, or condition a permit, on the same day notice is given to the applicant. The notice shall be posted at the Skokomish Fisheries Building, Twin Totems store, and the Skokomish Tribal Center for a period of fifteen (15) days. The notice shall have the date of posting written on it.
6.03.055 Basis for Decisions to Approve, Deny, or Condition Permit
The decision to grant a permit, whether made by the Director or the Tribal Council, shall be based on whether the proposed activity would be conducted in a way which would result in each of the factors in Section 6.03.030 (b) through (e) being answered affirmatively. Conditional permits shall be granted in the discretion of the Director or Tribal Council as set forth under Section 6.03.045.
Appeal, Reconsideration and Rehearing
6.03.060 Request for Rehearing
An applicant may request reconsideration by the Tribal Council of the Council's decision to deny a permit. The Tribal Council may also grant review of an appeal from a decision regarding a conditional permit, in its discretion. Any member of the Skokomish tribal community may appeal a decision to grant a permit, including a conditional permit, in the same manner as set forth above.
6.03.061 Notice of Appeal; Request for Reconsideration; - Timing
Any notice of appeal or request for reconsideration under Section 6.03.060 must be filed no later than 15 calendar days from the date the permit was approved or denied. The appeal or request for reconsideration shall be made in writing and shall be served by certified mail, return receipt requested, on the Secretary of the Skokomish Tribal Council and on the Director.
6.03.062 Notice of Appeal; Request for Reconsideration - Content
The appeal or request for a rehearing shall contain a brief description of the proposed project, who made the decision appealed from and on what date, the specific reasons for the appeal or request for rehearing, and what outcome the person is asking for. The notice shall list the names and addresses of any person who may be called as witnesses in the hearing. The person shall include a telephone number and address where he or she can be reached for notices.
6.03.062 Stay Pending Appeal or Reconsideration
No activity may proceed until all review under S.T.C. 6.03.060 through 6.03.067, including judicial review, is concluded.
6.03.064 Scheduling of Hearing - Notice
The Tribal Council shall schedule a hearing no fewer than 7 and no more than 45 calendar days from the date it receives the notice of appeal or request for rehearing, unless the person requesting the hearing and the Council agree otherwise. The Council shall cause a notice of hearing to be mailed or delivered to the person and shall post a notice to the Skokomish tribal community in the places specified under Section 6.03.054.
6.03.065 Hearing
The person requesting the appeal or reconsideration shall appear personally before the Tribal Council and state why and how the decision should be changed. The Tribal Council may hear the testimony of witnesses on both sides of the issue who have information relevant to the appeal or reconsideration. The hearing shall be tape recorded where practicable.
6.03.066 Decision of the Tribal Council on Appeal or Reconsideration
The Tribal Council may affirm, reverse or modify the decision being considered.
6.03.067 Appeal to Tribal Court
Any person who claims, in good faith, that the Skokomish Tribal Council made a mistake in interpreting this Act or made a mistake in procedure under this Act which affected the person's rights or interests shall have a right to appeal from the Tribal Council's decision under Section 6.03.066. The appeal shall be heard by the Skokomish Tribal Court under the Rules of Appellate Procedure of the Rules of the Skokomish Tribal Court (S.T.C. 3.01.100 through 3.01.115). These rules shall be modified, for the purpose of appeals under this Act, to substitute the one judge Tribal Court in place of the three judge Court of Appeals and to substitute "Tribal Council" in place of "trial court" and "Tribal Court." The Tribal Court may reverse the Tribal Council decision only if:
(a) the decision was clearly erroneous in view of the entire record as submitted and in light of the policies and goals of the Act; or
(b) the decision violated the Constitution of the Skokomish Indian Tribe.
Archaeological or Historical Sites
6.03.080 Purpose
S.T.C. 6.03.080 through 6.03.081 establishes policies and procedures to protect archaeological and historic sites. The Skokomish Reservation has been a place of habitation and use by Skokomish Indians for thousands of years. This long history means that the Reservation has many places, no longer discernible to the untrained eye, that were once sites of homes, villages, fishing camps, ceremonies, and other uses. The historical and cultural information obtainable from a professional archaeological examination of such sites is an invaluable and irreplaceable source of tribal history. The discovery of this type of knowledge enriches all people in this region. Violation of the following policies or procedures resulting in destruction of or damage to this heritage is considered an extremely serious offense and the maximum sanctions allowable will be imposed.
6.03.081 Policies Regarding Archaeological and Historic Sites.
(a) Any application for a permit under this Act may be required to be reviewed by professional archaeologist to determine whether the proposal poses any danger to known archaeological sites. A literature search shall be required in addition to a check of known or registered sites. The expense of such review shall be borne by the applicant.
(b) If evidence of an archaeological site is unearthed during the construction of a project for which a permit has been issued, the project developer and/or the persons involved in construction must cease work immediately and notify the Director or Tribal Manager.
(c) The Skokomish Tribe reserves the right to conduct its own archaeological inspection of any construction, earthmoving, or excavation work on the Reservation.
(d) The Tribe hereby reserves the right to halt construction of a project for up to 120 days if it deems that an archaeological site of importance to the Tribe may have been unearthed. During the 120 days, the Tribe must begin professional examination of the site to determine the significance. Extensions of the 120 day period will be allowed if needed to complete the work. The Tribe may condition the permit for the project after the discovery of the site and require a professional archaeological excavation or require modification of the activity to preserve the site. The expense of such examination and any excavation or modification of the activity shall be borne by the applicant.
(e) Applicants may be required to post a deposit with the Tribe of up to $5,000 to insure that notification of any archaeological evidence is made to the Tribe. The deposit is fully refundable if no archaeological site is unearthed, but will be forfeited if violation of these policies occurs.
Standards
6.03.090 General Standards
The following general standards apply to proposed activities under this Act.
(a) Natural Character Preserved.
All developments shall be consistent with the natural characteristics and ecological systems of the Reservation. Developments in sensitive areas, such as steeply sloped land, flood plains or wetlands, if allowed, shall have only a minimum level of impact upon the functioning of the natural systems.
(b) Natural Buffers.
There shall be undisturbed, natural, vegetated buffers left adjacent to rivers, streams, and wetlands. No construction, accessory uses, septic tanks, or agriculture is allowed in the buffer. No timber harvesting is permitted within the buffer, except that trees which have naturally fallen across the waterway may be removed, provided prior authorization is obtained from the Tribe. A buffer of 150 feet shall remain adjacent to all fish bearing streams, including the Skokomish River and Skabob Creek. A buffer of 100 feet shall remain adjacent to all non-fish bearing streams. The Tribe may increase or decrease the size of a buffer for a particular activity in order to meet other goals, purposes, and standards of this Act, or other applicable law. Buffers shall be measured landward from the channel migration zone or the ordinary high water mark, whichever is greater. Buffers adjacent to a stream or river shall be left on both sides of the waterway.
(c) No Interference with Fishing Rights.
No activity shall occur in a manner which causes interference with the exercise of Skokomish treaty fishing rights. No activity shall block or impede the free movement of fish.
(d) Water Quality/Fish and Wildlife Quality.
Activities shall be located, designed, constructed, and operated in a manner which minimizes adverse affects on fish, shellfish, wildlife, water quality, and existing geohydraulic shore and stream processes.
(e) Estuarine and/or Near Shore Marine Shoreline Setback.
Structures or activities that are not marine shoreline dependent shall be located inland, at least 250 feet from the mean high water level, when practicable.
(f) Fish Wastes.
Discharge of wastes from fish and shellfish processing into water bodies shall, at a minimum, meet the federal standards for those activities. Alternative uses for fish and seafood wastes, such as fertilizer, are encouraged.
(g) Recycling.
Wastes or refuse from any activity should be recycled when practicable.
(h) Flood-Proofing.
No activity shall be located in areas subject to flooding or tidal inundation unless complete flood-proofing measures have been provided and then only when the location of the structure will not aggravate flooding potentials of the nearby properties. Structures in the 100 year flood plain must comply with federal flood-proof standards necessary to obtain federal flood insurance, whether flood insurance is obtained or not.
(i) Erosion Control.
An erosion control plan must be approved prior to issuance of a permit under this Act for any activity which would pose a risk of erosion during construction or afterward. No earth or debris resulting from the activity shall be allowed to enter streams, lakes or marine waters. No activity shall contribute to foundation instability or mass soil movement.
(j) Use of Fill.
All fill material must be approved in advance by the Director. If an activity uses fill material to accommodate the activity, the Director may require a licensed, professional engineer to certify that the fill will not alter or prohibit the natural flow of surface water or groundwater, or present a geologic hazard. There shall be no excavation or filling of stream channels or lakes or alteration of stream courses unless required for a project which would enhance the biological productivity of the aquatic environment, in which case it will be a conditional use.
(k) Clearing and Grading.
All clearing and grading activities must meet the standards found in Chapter 70 of the Uniform Building Code, as it may be amended.
(l) Sewage Disposal/Drinking Water.
Any activity which requires sewage disposal or extraction of drinking water shall not result in erosion, mass movement of soil, contamination of groundwater, saltwater intrusion, or any other adverse impacts to the environment. The Tribe may require the applicant to submit a report of a licensed engineer to prove the absence of all adverse environmental impacts.
(m) Herbicides, Pesticides.
Application of herbicides and pesticides is prohibited except for conditional permits which may be given for agricultural (including tree farming) and residential application, when no reasonable alternative is available to control pests or plant growth.
Enforcement, Penalties
6.03.100 Failure to Obtain and Comply with Permit
(a) Failure to Obtain a Permit
Any person who fails to obtain a permit required under this Act shall be issued a notice of violation which may include an order to cease and desist (stop work order).
(b) Failure to Comply with Permit
Any person who fails to comply with the terms of a permit under this Act shall be issued a written warning to comply by the Director, or his/her designee, which may include an order to cease and desist (stop work order). If the activity continues in noncompliance after issuance of the warning, the Director shall issue a written notice of violation which may include an order to cease and desist (stop work order).
6.03.101 Notice of Violation
The notice of violation shall describe the specific violation, the amount of the monetary penalty and, if applicable, shall order the violation to cease and desist or, in appropriate cases, require corrective action to be taken within a specific and reasonable time. The notice shall be given to the person directly or by certified mail with return receipt requested.
6.03.102 Civil Penalty
The civil penalty for failure to conform to the terms of a permit or for proceeding with an activity without a permit, as required under this Act, is a fine not to exceed five thousand dollars for each violation. Each permit violation or each day of continued activity without a required permit shall constitute a separate violation.
6.03.103 Appeal from Penalty
Within thirty days after the notice is received, the person incurring the penalty may apply in writing to the Tribal Manager to request that the penalty be reduced. The person must show good faith in complying with Act since the time the notice was received in order to have his or her request to reduce the penalty considered. The person may appeal the Tribal Manager's decision to the Skokomish Tribal Council pursuant to the procedures in 6.03.061 to 6.03.067. The decision of the Tribal Council is final for the Tribe.
6.03.104 Enforcement of Penalty in Court
The Tribe may enforce its notice to cease and desist and its assessment of a penalty in the Tribal Court. The Tribe may request the Court to enter an injunction against the continued activity, to order payment of the fine, and to order other remedies where appropriate. Failure of any person to abide by the lawful order of the Skokomish Tribal Court is punishable by civil and criminal contempt of court proceedings.
6.03.105 Money Damages for Violation
Any person subject to this Act who violates any provision of this Act or permit issued under this Act shall be liable for all damage to property located within the Skokomish Reservation resulting from such violation. Individual members of the Skokomish tribal community and the Skokomish Indian Tribe may bring suit in the Skokomish Tribal Court for damages they have incurred as a result of the violation under this section. If liability is established and the Court orders restoration of the area affected, the Court shall make provision to assure that restoration is accomplished within a reasonable time and at the sole expense of the violator. The Court may order money damages, costs of the suit, and attorney's fees to the prevailing party. Appeal from such a suit shall be brought in the Skokomish Court of Appeals. Failure of any person to abide by the lawful order of the Skokomish Tribal Court or Court of Appeals is punishable by civil and criminal contempt of court proceedings.
Sovereign Immunity, Severability
6.03.110 Sovereign Immunity
The sovereign immunity of the Skokomish Indian Tribe is in no manner waived by this Act. The employees and appointees of the Skokomish Indian Tribe, the members of the Skokomish Tribal Council, and the personnel of the Skokomish Tribal Court are cloaked with the sovereign immunity of the Skokomish Indian Tribe. No person named above shall be liable for his or her actions or failure to act under this Act.
6.03.111 Severability
If any provision of this Act or its application to any person, entity, or circumstance is held to be invalid, the remainder of the Act shall not be affected.
SKOKOMISH RESERVATION FLOOD DAMAGE PREVENTION ORDINANCE
Adopted by Resolution No. 95-07 (February 17, 1995)
Statutory Authorization, Findings of Fact, Purpose, and Objectives
6.04.001 Statutory Authorization
The Skokomish Indian Tribe is the governing body of the Skokomish Indian Tribe and Skokomish Indian Reservation pursuant to the Treaty of Point No Point and to the Constitution and By-laws of the Skokomish Indian Tribe, approved by the Secretary of Interior, March 17, 1980. The Skokomish Tribal Council is responsible for adopting regulations designed to promote the public health, safety, and general welfare of residents of the Skokomish Indian Reservation. Therefore, the Skokomish Tribal Council does adopt the following regulations in accord with the Skokomish Environmental Protection Act of 1988.
6.04.002 Findings of Fact
(a) The flood hazard areas of the Skokomish Indian Reservation are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.
(b) These flood losses are caused by the cumulative effects of inappropriate watershed development, which has increased flood hazard, and of obstructions in areas of special flood hazards which increase flood heights and velocities and, when inadequately anchored, damage uses in other areas. Uses that are inadequately floodproofed, elevated, or otherwise protected from damage also contribute to the flood loss.
6.04.003 Statement of Purpose
It is the purpose of this ordinance to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed:
(a) To protect human life and health;
(b) To minimize expenditure of public money and costly flood control projects;
(c) To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;
(d) To minimize prolonged business interruptions;
(e) To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets, and bridges located in areas of special flood hazard;
(f) To help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future flood blight areas;
(g) To ensure that potential buyers are notified that property is in an area of special flood hazard; and
(h) To ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.
6.04.004 Methods of Reducing Flood Losses
In order to accomplish its purposes, this ordinance includes methods and provisions for:
(a) Restricting or prohibiting uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;
(b) Requiring that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;
(c) Controlling the alteration of natural flood plains, stream channels, and natural protective barriers, which help accommodate or channel flood waters;
(d) Controlling filling, grading, dredging, and other development which may increase flood damage; and
(e) Preventing or regulating the construction of flood barriers which will unnaturally divert flood waters or may increase flood hazards in other areas.
Definitions
6.04.010 Definitions
Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the meaning they have in common usage and to give this ordinance its most reasonable application.
(a) "Appeal" means a request for a review of the Director of Natural Resources interpretation of any provision of this ordinance or a request for a variance.
(b) "Area of Shallow Flooding" means a designated AO Zone on the Flood Insurance Rate Map (Firm). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. AO is characterized as sheet flow and AH indicates ponding.
(c) "Area of special flood hazard" means the land in the flood plain within a community subject to a one percent or greater chance of flooding in any given year. Designation on maps always includes the letters A or V.
(d) "Base flood" means the flood having a one percent chance of being equaled or exceeded in any given year. Also referred to as the "100-year flood." Designation on maps always includes the letters A or V.
(e) "Development" means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations, located within the area of special flood hazard.
(f) "Flood" or "flooding" means a general and temporary condition of partial or complete inundation of normally dry land area from:
(1) The overflow of inland or tidal waters and/or
(2) The unusual and rapid accumulation of runoff of surface waters from any source.
(g) "Flood Insurance Rate Map (FIRM)" means the official map on which the Federal Insurance Administration has delineated the areas of special flood hazards and the risk premium zones applicable to the community.
(h) "Flood Insurance Study" means the official report provided by the Federal Insurance Administration that includes flood profiles, the Flood Boundary-Floodway Map, and the water surface elevation of the base flood.
(i) "Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.
(j) "Lowest floor" means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage, in an area other than a basement area, is not considered a building's lowest floor, provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this ordinance found at S.T.C. 6.04.051(a)(2)
(k) "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities or without a permanent foundation when connected to the required utilities. For flood plain management purposes the term "manufactured home" also includes park trailers, travel trailers, and other similar vehicles placed on a site for greater than 180 consecutive days. For insurance purposes the term "manufactured home" does not include park trailers, travel trailers, and other similar vehicles.
(l) "Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.
(m) "New constructions" means structures for which the "start of construction" commences on or after the effective date of this ordinance.
(n) "Start of construction" includes substantial improvement and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling, nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundation or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure.
(o) "Structure" means a walled and roofed building including a gas or liquid storage tank that is principally above ground.
(p) "Substantial improvement" means:
(1) Any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either
(A) Before the improvement or repair is started; or
(B) If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.
(2) The term does not, however, include either:
(A) Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions, or
(B) Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places.
(q) "Variance" means a grant of relief from the requirements of this ordinance which permits construction in a manner that would otherwise be prohibited by this ordinance.
General Provisions
6.04.020 Lands to Which this Ordinance Applies
This ordinance shall apply to all areas of special flood hazards within the jurisdiction of the Skokomish Indian Tribe
6.04.021 Basis for Establishing the Areas of Special Flood Hazard
Areas of special flood hazard will be identified at completion of an ongoing Federal Insurance Administration scientific and engineering study and associated Flood Insurance Maps, and upon completion the FIA report and maps shall be incorporated as part of this ordinance. Prior to completion of the Federal Insurance Administration report and map the Tribal administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state, Tribal or other source, in accord with S.T.C. 6.04.042(b) and 6.04.052(e) of this ordinance.
6.04.022 Penalties for Noncompliance
No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this ordinance and other applicable regulations. Violators of the provisions of this ordinance by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall upon conviction thereof be fined for each violation and pay costs and expenses as determined appropriate by the Skokomish Tribe Director of Natural Resources (Tribal Planner) in her/his capacity as administrator of the Skokomish Environmental Protection Act of 1988. Nothing herein contained shall prevent the Skokomish Tribal Council from taking such other lawful action as is necessary to prevent or remedy any violation.
6.04.023 Abrogation and Greater Restrictions
This ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
6.04.024 Interpretation
In the interpretation and application of this ordinance, all provisions shall be:
(a) Considered as minimum requirements;
(b) Liberally construed in favor of the governing body; and,
(c) Deemed neither to limit nor repeal any other powers granted under State statutes.
6.04.025 Warning and Disclaimer of Liability
The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This ordinance does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of Skokomish Tribal Council or Skokomish Indian Tribe, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made hereunder.
Administration
6.04.040 Establishment of Development Permit
(a) Development Permit Required
A development permit shall be obtained before construction or development begins within any area of special flood hazard established in S.T.C. 6.04.021. The permit shall be for all structures including manufactured homes, as set forth in S.T.C. 6.04.010 (Definitions), and for all development including fill and other activities, also as set forth in S.T.C. 6.04.010 (Definitions).
(b) Application for Development Permit
Application for a development permit shall be made on forms furnished by the Director of Natural Resources and may include but not be limited to plans in duplicate drawn to scale showing the nature, location, dimensions, and elevations of the area in question; existing or proposed structures; fill, storage of materials, drainage facilities, and the location of the foregoing. Specifically, the following information is required:
(1) Elevation in relation to mean sea level, of the lowest floor (including basement) of all structures;
(2) Elevation in relation to mean sea level to which any structure has been floodproofed;
(3) Certification by registered professional engineer or architect that the floodproofing methods for any nonresidential structure meet the floodproofing criteria in S.T.C. 6.04.051(b)(2); and
(4) Description of the extent to which a watercourse will be altered or relocated as a result of proposed development
6.04.041 Designation of the Director of Natural Resources as Ordinance Administrator
The Director of Natural Resources is hereby appointed to administer and implement this ordinance by granting or denying development permit applications in accordance with its provisions.
6.04.042 Duties and Responsibilities of the Director of Natural Resources
Duties of the Director of Natural Resources shall include, but not be limited to:
(a) Permit Review
(1) Review all development permits to determine that the permit requirements of this ordinance have been satisfied.
* (2) Review all development permits to determine that all necessary permits have been obtained from those Federal, State, or local governmental agencies from which prior approval is required.
(3) Review all development permits to determine if the proposed development is located in the floodway. If located in the floodway, assure that the encroachment provisions of S.T.C. 6.04.052(a) are met.
(b) Use of Other Base Flood Data
When base flood elevation data has not been provided in accordance with S.T.C. 6.04.021 (Basis for Establishing the Areas of Special Flood Hazard), the Director of Natural Resources shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from federal, State or other source, in order to administer S.T.C. 6.04.051 (Specific Standards) and 6.04.052 (Floodways/Encroachments).
(c) Information to Be Obtained and Maintained
(1) Where base flood elevation data is provided through the Flood Insurance Study or required as S.T.C. 6.04.042(b), obtain and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement.
(2) For all new or substantially improved floodproofed structures:
(A) verify and record the actual elevation (in relation to mean sea level), and
(B) maintain the floodproofing certifications required in S.T.C. 6.04.040(b)(3)
(3) Maintain for public inspection all records pertaining to the provisions of this ordinance.
(d) Alteration of Watercourses
(1) Notify adjacent communities and appropriate state and federal agencies prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration.
(2) Require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood carrying capacity is not diminished.
(e) Interpretation of FIRM Boundaries
Make interpretations where needed, as to exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in S.T.C. 6.04.043.
6.04.043 Variance Procedure
(a) Appeal Board
(1) The Skokomish Flood Permit Appeal Board as established by the Skokomish Tribal Council shall hear and decide appeals and requests for variances from the requirements of this ordinance.
(2) The Skokomish Flood Permit Appeal Board shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Director of Natural Resources in the enforcement or administration of this ordinance.
(3) Those aggrieved by the decision of the Skokomish Flood Permit Appeal Board, or any taxpayer, may appeal such decision to the Skokomish Tribal Court, as provided in the Skokomish Environmental Protection Act of 1988.
(4) In passing upon such applications, the Skokomish Flood Permit Appeal Board shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and:
(A) the danger that materials may be swept onto other land to the injury of others;
(B) The danger to life and property due to flooding or erosion damage;
(C) the susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
(D) the importance of the services provided by the proposed facility to the community;
(E) the necessity to the facility of a waterfront location, where applicable;
(F) the availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;
(G) the compatibility of the proposed use with existing and anticipated development;
(H) the relationship of the proposed use to the comprehensive plan and flood plain management program for that area;
(I) the safety of access to the property in times of flood for ordinary and emergency vehicles;
(J) the expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and
(K) the costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.
(5) Upon consideration of the factors of S.T.C. 6.04.043(a)(4) and the purposes of this ordinance, the Skokomish Flood Permit Appeal Board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this ordinance.
(6) The Director of Natural Resources shall maintain the records of all appeal actions and report any variances to the Federal Insurance Administration upon request.
(b) Conditions for Variances
(1) Generally, the only condition under which a variance from the elevation standard may be issued is for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing items S.T.C. 6.04.043(A)(4)(A) through (K) have been considered. As the lot size increases the technical justification required for issuing the variance increases.
(2) Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in this section.
(3) Variances shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result.
(4) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(5) Variances shall only be issued upon:
(A) a showing of good and sufficient cause;
(B) a determination that failure to grant the variance would result in exceptional hardship to the applicant;
(C) a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in S.T.C. 6.04.043(a)(4), or conflict with existing local laws or ordinances.
(6) Variances as interpreted in the National Flood Insurance Program are based on the general zoning law principle that they pertain to a physical piece of property; they are not personal in nature and do not pertain to the structure, its inhabitants, economic or financial circumstances. They primarily address small lots in densely populated residential neighborhoods. As such, variances from flood elevations should be quite rare.
(7) Variances may be issued for nonresidential buildings in very limited circumstances to allow a lesser degree of floodproofing than watertight or dry-floodproofing, where it can be determined that such action will have low damage potential, complies with all other variance criteria except S.T.C. 6.04.043(b)(1), and otherwise complies with S.T.C. 6.04.050(a) and (b).
(8) Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
Provisions for Flood Hazard Reduction
6.04.050 General Standards
In all areas of special flood hazards, the following standards are required:
(a) Anchoring
(1) All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure.
(2) All manufactured homes must likewise be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors (as described in FEMA's "Manufactured Home Installation in Flood Hazard Area").
(b) Construction Materials and Methods
(1) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.
(2) All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.
(3) Electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.
(c) Utilities
(1) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system;
(2) New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters; and
(3) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.
(d) Subdivision Proposals
(1) All subdivision proposals shall be consistent with the need to minimize flood damage;
(2) All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage;
(3) All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage; and
(4) Where base flood elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or 5 acres (whichever is less).
(e) Review of Building Permits
Where elevation data is not available either through the Flood Insurance Study or from another authoritative source (S.T.C. 6.04.042(b)), applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The test of reasonableness is a local judgement and includes use of historical data, high water marks, photographs of past flooding, etc., where available. Failure to elevate at least two feet above grade in these zones may result in higher insurance rates.
6.04.051 Specific Standards
In all areas of special flood hazards where base flood elevation data has been provided as set forth in S.T.C. 6.04.021 (Basis for Establishing the Areas of Special Flood Hazard) or S.T.C. 6.04.042(b) (Use of Other Base Flood Data), the following provisions are required:
(a) Residential Construction
(1) New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated to or above base flood elevation.
(2) Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:
(A) A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.
(B) The bottom of all openings shall be no higher than one foot above grade.
(C) Openings may be equipped with screens, louvers, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.
(b) Nonresidential Construction
New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated to the level of the base flood elevation; or, together with attendant utility and sanitary facilities, shall:
(1) be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water;
(2) have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy;
(3) be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the official as set forth in S.T.C. 6.04.042(c)(2).
(4) Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in S.T.C. 6.04.051(a)(2)
(5) Applicants floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g. a building constructed to the base flood level will be rated as one foot below that level).
(c) Manufactured Homes
All manufactured homes to be placed or substantially improved within Zones A 1-30, AH, and AE shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is at or above the base flood elevation and be securely anchored to an adequately anchored foundation system in accordance with the provisions of S.T.C. 6.04.050(a)(2)
6.04.052 Floodways/Encroachments
(a) Floodways
Located within areas of special flood hazard established in S.T.C. 6.04.021 are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles, and erosion potential, the following provisions apply:
(1) Prohibit encroachments, including fill, new construction, substantial improvements, and other development unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.
(2) If S.T.C. 6.04.052(a)(1) is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of S.T.C. 6.04.050 through 6.04.052 (Provisions for Flood Hazard Reduction).
Note: Where base flood elevations have been provided but floodways have not, S.T.C. 6.04.052 should read as follows:
(b) Encroachments
The cumulative effect of any proposed development, when combined with all other existing and anticipated development, shall not increase the water surface elevation of the base flood more than one foot at any point.
SKOKOMISH FOREST DEVELOPMENT AND MANAGEMENT ORDINANCE
Adopted by Resolution No. 130 (January 10, 1977)
Title
6.06.001 Title
This ordinance shall be known as the Skokomish Forest Development and Management Ordinance.
6.06.002 Definitions
In this ordinance, unless otherwise specifically stated:
(a) "Council" means the Skokomish Indian Tribal Council;
(b) "Forest products" means trees, logs, cordwood, timbers, shakes, slash, and all other forms of processed and unprocessed forest vegetation capable of commercial exploitation;
(c) "Manager" means the General Manager of the Skokomish Forest Management Agency;
(d) "Reservation" means the lands lying within the boundaries of the Skokomish Indian Reservation in Washington State;
(e) "Tribe" means the Skokomish Indian Tribe;
(f) "Member of the tribe" means any person whose name appears on the official roll of the Skokomish Indian Tribe;
(g) "Agency" means the Forest Management Agency of Skokomish Indian Tribal Enterprises.
6.06.003 Purpose
It shall be the purpose of this ordinance to promote the economic and social welfare of the Skokomish Reservation community by the regulation, management, and development of Skokomish forest resources in a manner consistent with the tribe's overall plan for development of the reservation. It shall further be the purpose of this ordinance to create a forest products enterprise which is capable of development into a fully integrated forest products facility for processing and marketing Skokomish forest resources on a sustained yield basis. Such forest products enterprise shall have as its purpose the maximum use of Skokomish forest resources consistent with principles of conservation, the maximum employment and training of Skokomish people, and the economic and social advancement of the reservation community.
6.06.004 Creation, Authority, Responsibility
There shall be a Forest Management Agency of the Skokomish Indian Tribal Enterprises, which shall have authority and responsibility for administration of this ordinance and advancement of the objectives set forth herein. The Forest Management Agency of SITE shall be a branch of the Skokomish tribal government separate and apart from other branches of the government except as provided in this ordinance. The Skokomish Forest Management Agency shall have its headquarters on the Skokomish Indian Reservation.
6.06.005 Governing Board
The Skokomish Forest Management Agency shall be governed by a Management Board which shall have five members. Persons elected to the Skokomish Tribal Council shall become members of the Management Board upon election to the Tribal Council and shall serve on the board until their respective council terms expire. The Management Board shall conduct all business pursuant to this ordinance at the regularly scheduled Tribal Council meetings at the tribal center. It shall keep accurate records of all proceedings of the Management Board.
6.06.006 Powers of the Management Board
The Management Board of the Skokomish Forest Management Agency shall have the following duties and authority:
(a) To appropriate or lend tribal funds for the management and development of Skokomish forest resources and for the creation and expansion of a forest products enterprise;
(b) To appoint a General Manager of the Forest Management Agency and to employ such other persons as the board considers necessary for the administration of this ordinance;
(c) To determine the use and disposition of surplus funds not needed by the forest products enterprise for operation and expansion;
(d) To consider and approve the Forest Management Agency's annual plan of operation;
(e) To provide for orderly dissolution of the Forest Management Agency when:
(1) It has accomplished its purpose; or
(2) It becomes necessary to avoid continuing financial losses;
(f) To approve all contracts and leases to which the agency is a party;
(g) To delegate to the General Manager of the agency authority to manage the agency in accordance with the annual plan of operation and this ordinance.
6.06.007 General Manager
The Management Board shall employ a General Manager, who shall serve at the pleasure of the board. The board shall establish a salary for the manager and shall delegate to him or her sufficient authority to carry out the objectives of this ordinance. The General Manager's responsibility shall include, but need not be limited to, the following:
(a) Development of an overall plan for management of Skokomish forest resources;
(b) Negotiation of contracts with the Bureau of Indian Affairs providing for tribal harvest and management of Skokomish forest resources;
(c) Organization and supervision of a timber harvesting business;
(d) Processing and marketing of forest products harvested and purchased by the agency;
(e) Negotiation of loans to the agency and grant contracts for agency activities;
(f) Development of plans for the operation and expansion of agency enterprises;
(g) Employment of persons necessary to carry out agency functions;
(h) Purchase and maintenance of property and equipment necessary for agency functions.
6.06.008 Bonding
All officers and employees of the Skokomish Forest Management Agency who are handling funds shall be bonded to the Skokomish Tribe in an amount and manner to be determined by the Management Board.
6.06.009 Revenues
There shall be a Skokomish Forest Management Fund. The Management Board shall designate a depository for such fund. All revenues from the operation of Forest Management Agency enterprises and all funds borrowed by or granted to the agency, except that amount which is necessary in the daily operation of the agency, shall be deposited in the Forest Management Fund. This fund shall be kept separate from all other funds, tribal and non-tribal. All surplus funds not needed for the operation or expansion of the Forest Management Agency or its enterprises shall be deposited in the General Fund of the Skokomish Tribe.
6.06.010 Yearly Audit and Report
The General Manager shall cause to be conducted a yearly audit of the Forest Management Agency accounts by a person who is not an employee of the agency or of the Tribal Council. Such audit shall be submitted to the Management Board no less than thirty days after the end of the fiscal year. The Management Board may direct an audit of the agency's accounts at any time.
6.06.011 Annual Plan of Operation
Not less than forty-five days before the end of the fiscal year the General Manager shall submit to the Management Board a plan of operation for the following year. Such plan shall include at least the following information:
(a) Any planned expansion or reduction in agency facilities, personnel, or general operations;
(b) Funds required for the continuance or expansion of operations;
(c) Funds in excess of those needed for continued or expanded operations as described in the plan submitted.
Should the board fail to approve or disapprove the plan within thirty days of its submission to the board, the plan shall be considered approved.
6.06.012 Liability and Sovereign Immunity
No lawful act of any member of the Tribal Council or of the Management Board shall result in any of the members becoming personally liable for the debts of the Skokomish Forest Management Agency or its enterprises. No lawful act of the General Manager or of any other employee of the Forest Management Agency shall result in any of those employees becoming personally liable for the debts of the Skokomish Forest Management Agency or its enterprises. As a branch of the Skokomish tribal government, the Forest Management Agency of SITE shall be entitled to all protections and immunities from suit granted by the laws of the United States to Indian tribal governments; provided that the Management Board, upon the recommendation of the General Manager, may enter into contracts, agreements, or leases which waive the right of the agency to raise the defense of sovereign immunity to suit with regard to certain specific assets of any type or kind in courts with jurisdiction over such assets. General waivers of immunity from suit shall not be entered into.