3.12.070 Procedures for the Evaluation of Tribal Water Quality Certification Requests

The Tribe shall evaluate requests for Tribal Water Quality Certification under CWA Section 401(a)(1) according to the following process:

(a) Applications. Any applicant for a federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge that originates on the Reservation, shall obtain Water Quality Certification from the Tribe. The WRP shall advise the USACE, EPA, and other federal agencies with jurisdiction in any such permit or license to direct applicants to submit application materials to the WRP and to otherwise comply with the applicable terms of this Code.

(b) Certification Request. Applicants shall request Water Quality Certification from the Tribe by sending a written application to the WRP at the following address:

Bad River Natural Resources Department

Attn: Water Resources Specialist

PO Box 39

Odanah, WI 54861

wqs@badriver-nsn.gov

(c) Application Contents. The application shall include the following:

(1) The name, address, telephone number, facsimile number, and email address of the applicant;

(2) A complete and accurate description of the applicant's proposed activity including any engineering or hand-drawn plans of the project site;

(3) A complete and accurate description of the potential discharge or discharges into or drawdown of groundwater or surface water that may result from the activity, including, but not limited to: potential discharges from the construction or operation of a facility; potential effects of pumping of groundwater or surface water; potential biological, chemical, thermal, physical (e.g., quantity), and other characteristics and concentrations of the discharge; the location at which such discharge may enter groundwater or surface water;

(4) A complete and accurate description of the function and operation of equipment or facilities to treat or reduce wastes or other effluents that may be discharged including specification of the degree of treatment expected to be attained and any other actions taken to reduce or mitigate the proposed activity's effect on groundwater or surface water quality or quantity;

(5) The dates when the activity is proposed to begin and end, as well as the dates when the proposed discharge or draw-down will take place;

(6) A complete and accurate description of the methods and means being used or proposed to monitor the quality and quantity of the discharges or drawdowns, the operation of equipment or facilities employed in the treatment or control of wastes or other effluents, and effects of the discharges on ground water or surface water quality and quantity;

(7) A complete and accurate description of the potential impact of the discharge on Reservation water;

(8) A complete copy of the application for a federal permit or license;

(9) Other information relevant or important to the Tribe's consideration of its request, including a proposed Reduced Timeline (defined below) if the applicant believes it meets the requirements as provided in subsection (h);

(10) Confirmation that the applicant shall provide the WRP access, if requested, for an inspection and review of any lands, waters, or facilities under the applicant's control relevant to the Tribe's review of the application;

(11) Any additional information required for an antidegradation analysis under the Tribe's WQS; and

(12) Any other information requested by the WRP as reasonably needed for its review of the application.

(d) Application Review. Upon receipt of the application the following reviews shall be conducted:

(1) Administrative Review: The WRP shall review the application for completeness and accuracy. If the WRP determines that the application is incomplete or inaccurate, or that additional information is required to analyze whether the proposed activity will cause or contribute to a violation of the Tribe's WQS, the WRP shall request the relevant additional or corrected information from the applicant within forty-five (45) days of the receipt of the application. If the WRP determines that the application is complete and accurate, it shall issue a Public Notice for the application for Water Quality Certification (the "Comment Period") in accordance with the Bad River Band of Lake Superior Chippewa's Administrative Procedure: Notice of Intent to Adopt a Code or Availability of Draft Environmental Review Statement. All comments received by the WRP will be reviewed by the WRP. Comments may be sent to the applicant for a satisfactory response using the contact information provided by the applicant. The applicant shall submit its responses to the comments to the WRP.

(2) Technical Review: The WRP will conduct a technical review of the application materials and the applicant's responses to comments to evaluate whether the proposed activity will cause or contribute to a violation of the Tribe's Water Quality Standards (the "Technical Review"). If necessary or advisable, the WRP shall inspect lands, waters, or facilities relevant to its technical review of the application materials.

(e) Recommendation. At the end of the Technical Review, the WRP will make a Recommendation to the Director regarding the application together with the basis of that recommendation (the "Recommendation"). The Recommendation will be either to: (1) grant the Tribal Water Quality Certification unconditionally; (2) grant the Water Quality Certification with such conditions necessary or advisable to ensure compliance with the Tribe's WQS; or (3) deny the Water Quality Certification. The Director will then issue one of the three recommendations to the Tribal Council (the "Director's Concurrence"). The Director's Concurrence shall include a statement of the basis for the recommendation. The WRP shall present a copy of the Director's Concurrence to the Tribal Council.

(f) Decision. Within thirty (30) days of the Director's Concurrence, the WRP shall present the Recommendation to Tribal Council during a public meeting. Unless the Council asks the WRP for additional information that would take additional time to compile, at this meeting the Council will issue one of three Decisions (the "Decision"): (1) grant the Water Quality Certification unconditionally; (2) grant the Water Quality Certification with such conditions necessary or advisable to ensure compliance with Tribe's Water Quality Standards; or (3) deny the Tribal Water Quality Certification. After the Decision is reached, the WRP shall deliver a copy of the Tribal Council's Decision to the EPA, the federal permitting or licensing agency, and the applicant.

(g) Timeline. It is anticipated that the comment period, technical review, recommendation, and decision outlined in this this section shall be completed within six (6) months of the receipt of an application (the "Timeline"). However:

(1) If the applicant needs time to respond to WRP requests for additional or corrected information, or if the applicant does not respond within thirty (30) days to public comments, the six (6) month timeframe shall be extended by an amount equal to the time taken by the applicant for these purposes;

(2) If the Tribal Council asks the WRP for further information after the Recommendation has been presented, then the six (6) month timeframe shall be extended by an amount equal to the time needed to gather such information; or

(3) If the Tribe will not issue its decision within six (6) months, it shall so notify the EPA, the permitting or licensing agency, and the applicant. Such notification shall state that the Tribe is not waiving its right to make a decision regarding the request for Water Quality Certification and shall provide a revised timeframe for that decision.

(h) Reduced Timeline. The WRP shall determine if, and the extent to which, an applicant qualifies for a Reduced Timeline ("Reduced Timeline") within five (5) days of receipt of the applicant's application if the applicant includes in its application a proposed reduced time period for the Timeline. The Reduced Timeline may include reducing the time period for the Comment Period as described in Administrative Procedure Section 118.3.a.iii. and for the Applicant Review, Recommendation, and Decision. To qualify for a Reduced Timeline, applicant must demonstrate (1) the applicant has not unduly delayed submitting its application causing a need for a Reduced Timeline, and (2) the need for a Reduced Timeline arises out of at least one of the two following situations:

(1) The proposed activity has been mandated by a Tribal or Federal order; or

(2) The proposed activity is in response to a Public Emergency and requires immediate authorization to avoid imminent endangerment to human health, public safety, or the environment, or to reestablish essential public services.

For activities that qualify under subsection (h)(2) or (h)(3), the applicant may request that the Director, rather than the Tribal Council, make the Decision, and for there to be no Director's Concurrence. In reviewing the proposal for a Reduced Timeline, the WRP or Director will decide to either: (1) adopt the proposed Reduced Timeline provided by the applicant; (2) set a different Reduced Timeline; or (3) not implement a Reduced Timeline.

(i) Reapplication Process. If an applicant disagrees with the determination of the Tribal Council, the applicant may reapply for Tribal Water Quality Certification. The applicant may choose to significantly alter the proposed project to avoid, minimize, and/or mitigate for the impacts to water resources that facilitated the Tribal Council's Decision. All reapplications shall follow the process set forth in this this section for applications for Water Quality Certification.