3.11.040 Definitions

Words and phrases used in this ordinance shall be interpreted as defined below, and, where ambiguity exists, words or phrases shall be interpreted so as to give this ordinance the most reasonable application in carrying out its regulatory purpose.

(a) "Activity" shall mean any use, operation, development or action caused by any person, including, but not limited to, constructing, operating or maintaining any use or development; erecting buildings or other structures; depositing or removing material; dredging; ditching; land balancing; draining or diverting water; pumping or discharge surface water; grading; vegetative clearing or excavation; mining or drilling operation:

(b) "Applicant" shall mean the owner of record or lessee of affected property and/or his or her agents, designees or assigns applying for a wetland permit related to direct and indirect impacts pursuant to this ordinance.

(d) "Bad River Tribal Council" shall mean the Bad River Tribal Council consisting of: Chairperson, Vice-Chairperson, Secretary, Treasurer, Senior and Junior Council members.

(e) "Bad River Tribe" shall mean the Bad River Band of Lake Superior Tribe of Chippewa Indians, represented by the Bad River Tribal Council for the membership.

(f) "Buffer area" shall mean a minimum of one hundred (100) feet surrounding open water wetlands and top of fifteen percent (15%) or steeper slopes.

(g) "Bottomland" shall mean the land area of a pond or lake which lies below the ordinary high water mark and which may or may not be covered by water. These landscape setting areas also include lowland forests, seasonally ponded and/or surface saturated areas normally associated with these water bodies.

(h) "Channel" shall mean the geographical area within the natural or artificial banks of a watercourse required to convey continuously or intermittently flowing water under normal or average flow conditions normally defined as area within banks that can convey one (1) to three (3) year storm events.

(i) "Contiguous" shall mean a permanent or seasonal connection of wetlands to a lake or stream, including direct or indirect connections and above-ground or below-ground connections.

(j) "Deposit" shall mean to fill, place, or dump.

(k) "Demonstrable threat" shall mean clear evidence of destructive land use changes that are consistent with local and regional land use trends, and that are not the consequence of actions under the permit applicant's control.

(l) "Development" shall mean any artificial 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.

(m) "Fill material" shall mean soil, sand, gravel, clay, peat, debris and refuse, waste of any kind, or any other material which displaces soil or water or reduces water retention potential.

(n) "Floodplain" shall mean that area of land adjacent to the channel of a river, stream, watercourse, lake or other similar body of water subject to flooding above the one (1) to three (3) storm event.

(o) "Free of contamination" shall mean that soil or materials brought to a site for use in the wetland or in the buffer zone of a wetland, shall be non-polluting. Such certification shall be made by the applicant to the satisfaction of the Wetlands Ordinance Administrator. The Wetlands Ordinance Administrator shall determine whether there is sufficient reason to require a test for contamination of fill material.

(p) "Functions" shall mean the beneficial roles wetlands serve, including storage, conveyance, and attenuation of floodwaters and stormwater; groundwater recharge and discharge; protection of water quality and reduction of sediment and erosion; production of waterfowl, game and nongame birds, mammals, and other living resources; protection of habitat for rare, threatened, and endangered species; food chain support for a broad range of wildlife and fisheries; educational, historical, and cultural, spiritual, archeological value protection; and scenic, aesthetic, and recreational amenities.

(q) "Hydric Soils" shall mean soils that satisfy the most current United States Department of Agriculture, Natural Resources Conservation Service criteria.

(r) "Hydrophytic vegetation" shall mean macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content.

(s) "Lake" shall mean an area of permanent open water which is five (5) acres or more in size.

(t) "May" shall mean an auxiliary verb qualifying the meaning of another verb by expressing ability, permission, or possibility. The word "may" is indicative of discretion or choice between two (2) or more alternatives.

(u) "Notification" shall mean where notice is required pursuant to this ordinance, written notice sent by first class mail shall be sufficient notice for all purposes hereunder.

(v) "Owner" shall mean any person, corporation, cooperative or agency who has dominion over, control of, or title to, wetland properties.

(w) "Ordinary high water" mark shall mean the line between upland and bottomland which persists through successive changes in water levels, below which the presence and action of the water is so common or recurrent that the character of the land is markedly distinct from the upland and is apparent in the soil itself, the configuration of the surface of the soil and the vegetation.

(x) "Person" means an individual, sole proprietorship, partnership, corporation, association, municipality, the Tribe, an instrumentality or agency of the Tribe, state government, the federal government, an instrumentality or agency of the federal government, or other legal entity.

(y) "Pond" shall mean any body of permanent open water one (1) acre to five (5) acres in size.

(z) "Practicable Alternative" shall mean an alternative to the proposed project that would accomplish the basic purpose of the project and avoid or have less adverse environmental impact. This takes into consideration the cost of the activity to the developer, the cost of the lost wetland functions and values, available technology and logistics in light of the overall project purposes.

(aa) "Protected wetlands" shall mean any of the following:

(1) The following wetlands:

(A) Wetlands contiguous to any lake, stream, river, pond, or other water course, whether partially or entirely contained within the project site.

(B) Wetlands, regardless of size, which are partially or entirely within five hundred (500) feet of the ordinary high water mark unless any lake, stream, river, pond, or other water course is determined by the Bad River Natural Resources Department that surface and groundwater hydrologic connection does not exist.

(C) Wetlands, regardless of size, which are not contiguous to any lake, stream, river, pond or other watercourse, if the Bad River Natural Resources Department determines the protection of the wetland is essential to the preservation of the natural resources of the Tribe from pollution, impairment or destruction.

(2) All wetlands which are two (2) or more acres in size, whether partially or entirely contained within the project site.

(3) Wetlands, regardless of size, that protects critical natural resources from pollution, impairment or destruction as determined by the Bad River Natural Resources Department. In making this determination, the Bad River Natural Resources Department must find one or more of the following functions or values apply to the particular site:

(A) It supports tribal, state or federally endangered or threatened plants, fish or wildlife.

(B) It is determined to be a rare or uncommon wetland in the region.

(D) It supports Tribal rights for hunting, fishing, trapping, ricing, and cultural and ceremonial/spiritual uses.

(E) It is used for scientific research.

(F) It provides water quality enhancement, flood flow alteration and/or sediment stabilization.

(4) Buffer areas adjacent to any of the wetlands listed above or watercourses, whether partially or entirely on the project site. Buffer areas or portions thereof which are located within the project site shall be protected even if the adjacent wetland or watercourse is not located on the project site. Buffer size shall be a minimum of one hundred (100) feet surrounding open water wetlands and top of fifteen percent (15%) slopes.

(bb) "Runoff" shall mean the surface discharge of precipitation to a watercourse, drainageway, swale, or depression.

(cc) "Seasonal" shall mean any intermittent or temporary activity which occurs annually and is subject to interruption from changes in weather, water level, or time of year, and may involve annual removal and replacement of any operation, obstruction or structure.

(dd) "Sloughs" shall include the Bad River/Kakagon Sloughs complex, Sand Cut Slough and Honest John Lake, in their entirety or any part.

(ee) "Structure" means anything constructed or erected with a fixed location on the round, or attached to something having a fixed location on the ground including but not limited to houses, buildings, bulkheads, piers, docks, landings, dams, waterway obstructions, gas or liquid storage facilities, as well as mobile homes.

(ff) "Tribal" shall mean in relation to the Bad River Tribe.

(gg) "Tribal Council" shall mean the Bad River Tribal Council.

(hh) "Upland" shall mean the land area which lies above the ordinary high water mark, or well drained land which supports predominance of upland vegetation.

(ii) "Permit" shall mean the Bad River Tribal Council or Natural Resources Department or Wetlands Ordinance Administrator approval required for activities described in Section 3.11.060of this ordinance.

(jj) "Water dependent" shall mean that the activity is of a nature that requires location in or adjacent to surface waters or wetlands to fulfill its basic purpose.

(kk) "Watercourse" shall mean any waterway, drainage way, drain, river, stream, lake, pond or anybody of surface water having definite banks, a bed and visible evidence of a continued flow or continued occurrence of water.

(ll) "Wetland" shall mean an area that is inundated or saturated at or near the surface caused by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in aquatic or saturated soil conditions, commonly known as hydrophytic vegetation, that satisfy the 1987 Corps of Engineers Wetland Delineation Manual and subsequent revisions, guidance and updates.

(mm) "Wetlands Inventory Map" shall mean the Bad River Natural Resources Department's wetland map, as updated from time to time, which delineates the general location of wetlands throughout the Bad River Reservation.

(nn) "Wetland mitigation" shall mean the following sequence:

(1) avoiding both direct and indirect impacts to wetland ecosystems; then

(2) minimizing both direct and indirect impacts to wetland ecosystems; then

(3) compensating for direct and indirect impacts to wetland ecosystems through preservation, restoration, enhancement and establishment activities that focus on the protection of ecologically important wetlands, such as the Bad River/Kakagon Sloughs complex.

(oo) "Wetlands Ordinance Administrator" shall mean a designated staff member of the Bad River Natural Resources Department, preferably the Wetlands Specialist.

(pp) "Wetland vegetation" shall mean the sum total of macrophytic plant life that occurs in areas where the frequency and duration of inundation or soil saturation produce permanently or periodically saturated soils of sufficient duration to exert a controlling influence on the plant species present.