Title 3 Conservation

Chapter 3.01 Conservation; General Provision

3.01.010 Waste

No member shall unreasonably waste, injure destroy, or impair natural resources while engaging in the exercise of on-reservation hunting, fishing, trapping, or gathering rights, or in the disposition of any animal or plant taken in such exercise, whether such disposition is on-reservation or off-reservation, and whether such waste, injury, destruction or impairment is accomplished by act or by omission.

3.01.020 Trespass

(a) No member or non-member Indian shall trespass while hunting, fishing, or trapping, snowmobiling, recreational vehicles, or any other activity on land of another, after having been notified by the owner or occupant not to enter or remain on such land. Notification may be personal, either orally or in writing, or by posting. Posting is accomplished if the owner or occupant places a sign at least 11 inches square in at least two conspicuous places for every forty acres to be protected, including the appropriate notice, the name of the person giving notice, and title of "owner" or occupant: as appropriate.

(b) No non-member shall trespass for the purpose of hunting, fishing, trapping or gathering, snowmobiling, recreational vehicles, or any other activity on lands owned either by the Tribe, a tribal member, or the United States in trust for the Tribe or a tribal member.

3.01.030 Tampering with Equipment of Another

No member shall molest, disturb, tamper with or in any way otherwise interfere with any hunting, fishing, trapping or gathering equipment or bait, used, set, or placed by another member without that member's permission.

3.01.040 - Endangered and Threatened Species

No member shall take, transport, possess, process, or sell any plant or animal species contained on either the federal (50 CFR Sections 17.11 and 17.12) or the State of Wisconsin (Wis. Adm. Code NR 27.03) endangered or threatened species list, as may be amended from time to time, or any species which the Tribal Council may declare as endangered or threatened, and no tag as provided for in Chapter 3.06 shall be issued or affixed to the carcass or part thereof of any such species.

3.01.050 Forfeitures

(a) Except as specifically provided in this section, a civil remedial forfeiture not to exceed $1,000 may be assessed against any person for breach of any provision of this chapter.

(b) Except as specifically provided in this section, a civil remedial forfeiture not to exceed $2,000 may be assessed against any person for a breach of any provision of this chapter, who has been found to have breached the same provision at least once before in the five years proceeding the violation.

(c) In addition to any other penalty herein, the Court may order a suspension or revocation of any or all hunting, fishing and gathering rights.

Chapter 3.02 Hunting of Deer

3.02.010 Findings

The Tribal Council finds that the lands now comprising the Bad River Reservation were traditional hunting grounds for the ancestors of the Tribe; that these lands were selected as a Reservation because of their wealth of fish, game, and wild rice; that deer have been a nutritional staple for members of the Tribe for generations beyond memory; that deer continue to provide a substantial portion of the protein and other nutritional needs of the Tribe's members; that high unemployment and cash-poor local economy indicate that deer will remain critical as a food source for the Tribe's members; that pressure on the deer population by non-member sport hunting reduces the availability of deer as a food source for members; that non-members flaunting of tribal conservation laws has contributed to a decline in the reservation deer population; and that effective regulation of both member and non-member hunting of deer is essential for the preservation of the species in numbers sufficient to supply the economic and nutritional needs of the Tribe's members.

3.02.020 Definitions

(a) "Conservation Department" means the Conservation Department of the Tribe.

(b) "Member" means any person who is enrolled or is eligible for enrollment in the Tribe, or who is recognized as a member of the Tribe by the Tribal Council.

(d) "Reservation" means the Bad River Reservation.

(e) "Tribal Council" means the Tribal Council of the Tribe.

(f) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation.

3.02.030 Hunting Prescribed

(a) No person shall hunt or take any deer within the reservation except during the open season.

(b) No person shall hunt or take any deer within the reservation in excess of the limit allowed.

3.02.040 Season, Limits

Open seasons and limits are established as follows:

Open Season Limit

(a) Member July 1 - January 31 None

(b) Non-member none N/A

3.02.050 Reporting a Kill

(a) No member who takes a deer shall fail to comply with reporting of kill regulations as established by the Conservation Department.

(b) No non-member who takes a deer shall fail to report the kill to the Conservation Department within 72 hours of the kill.

3.02.060 Equipment and Methods

(a) No person shall, while hunting deer:

(1) Hunt with any means other than the use of a gun discharged from the shoulder or a bow and arrow.

(2) Have in possession while hunting any poisoned, drugged, or explosive tipped arrow.

(3) Have in possession while hunting any incendiary type ammunition, except hunter distress flares.

(4) Be in possession of handguns (any gun having a barrel less than 12 inches in length) if under the age of 18 years unless supervised by an adult 18 years of age or older.

(5) Hunt with the aid of a dog.

(6) Use arrows that are not well sharpened broad head blades. Broad head blades may not be less than seven-eights of an inch or more than one-half inches in width.

(b) No person shall, while hunting deer:

(1) Discharge a firearm on lands of another within 500 yards of a building devoted to human occupancy without permission of the owner or occupant.

(2) Appropriate, molest, or disturb any deer or the carcass or part thereof which has been lawfully reduced to possession by another without having that person's consent.

(3) Hunt with the use of an airplane, including the use of an airplane to spot, rally or drive deer for hunters on the ground.

(4) Put out bait containing poison where it might cause the destruction of wild animals or birds or possess poison while hunting or trapping.

(5) Place, operate, or attend, spread, or set any net, pitfall, spring gun, pivot gun, or any other contrivance for the purpose of catching or which catch or take deer.

(6) Take or attempt to take any deer with the aid of any explosives.

(7) Train dogs by pursuing deer.

(8) Fail to make every reasonable effort to retrieve all deer crippled or killed.

3.02.070 Licensing

No person shall hunt or take deer who does not have in his or her possession a valid license issued to him or her by the Conservation Department, or who does not have or is not eligible to receive a membership or enrollment card of the Tribe.

3.02.080 Forfeitures

(a) The following civil remedial forfeitures may be assessed against any person for a breach of the provisions of this chapter.

(1) For breach of any provision of Section 3.02.030, a forfeiture not greater than $100.00.

(2) For breach of Section 3.02.050, a forfeiture not greater than $100.00.

(3) For breach of any provision of Section 3.02.060, a forfeiture not greater than $100.00.

(4) For breach of Section 3.02.070, a forfeiture not greater than $100.00.

(b) The following civil remedial forfeitures may be assessed against any person for a breach of the provisions of the chapter, and against whom a breach of the same provision is found to have occurred at least once before:

(1) For breach of any breach any provision of Section 3.02.030, a forfeiture not greater than $500.00.

(2) For breach of any provision of Section 3.02.050, a forfeiture not greater than $500.00.

(3) For breach of any provision of Section 3.02.060, a forfeiture not greater than $500.00.

(4) For breach of Section 3.02.070, a forfeiture not greater than $500.00.

3.02.090 Seizure and Forfeiture

(a) Any deer taken in violation of this chapter may be seized by the Conservation Department and may be ordered forfeited.

(b) Any equipment used in the violation of this chapter maybe seized by the Conservation Department and ordered forfeited.

3.02.100 - Severability

Should any section of this chapter be held to exceed the regulatory authority of the Tribe the remainder hereof shall not affected thereby.

Chapter 3.03 Taking of Walleye

3.03.010 Findings

The Tribal Council finds that the lands now comprising the Bad River Reservation were traditional hunting and fishing grounds for the ancestors of the Tribe; that those lands were selected as a Reservation because of their wealth of fish, game and wild rice; that walleye have been a nutritional staple for members of the Tribe for generations beyond memory; that walleye continue to provide a substantial portion of the protein and other nutritional needs of the Tribe's members; that high unemployment and a cash-poor local economy indicate that walleye will remain critical as a food source for the Tribe's members; that pressure on the walleye population by non-member sport fishing reduces the availability of walleye as a food source for members; that the stocking activities of the Tribe's fish hatchery have contributed significantly over the last several years to the reservation walleye population; that non-member flaunting of tribal conservation laws have contributed to a decline in the reservation walleye population; and that effective regulation of both member and non-member taking of walleye is essential for the preservation of the species in numbers sufficient to supply the economic and nutritional needs of the Tribe's members.

3.03.020 Definitions

(a) "Conservation Department" means the Conservation Department of the Tribe.

(b) "Member" means any person who is enrolled or is eligible for enrollment in the Tribe, or who is recognized as member of the Tribe by the Tribal Council.

(d) "Reservation" means the Bad River Reservation.

(e) "To fish" means to use a hook and line, net, spear, or any other means to catch and take fish.

(f) "Tribal Council" means the Tribal Council of the Tribe.

(g) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation.

3.03.030 - Fishing Prescribed

(a) No person shall fish for or take any walleye within the reservation except during the open season.

(b) No person shall fish for or take any walleye within the reservation in excess of the limit allowed.

3.03.040 Season, Limits

Open seasons and limits are established as follows:

(a) Member. In the Kakagon River system the open season shall be at all times other than those posted by the Conservation Department at spawning season. In the Bad River system the open season shall be year-round. There shall be no limit.

(b) Non-member. There shall be no open season in either the Kakagon or Bad River systems.

3.03.050 - Reporting of Kill

No person who takes walleye shall fail to comply with reporting regulations as established by the Conservation Department.

3.03.060 Licensing

No person shall fish for or take walleye who does not have in his or her possession a valid license issued to him or her by the Conservation Department, or who does not have or is not eligible to receive a membership or enrollment card of the Tribe.

3.03.070 Forfeitures

(a) The following civil remedial forfeitures may be assessed against any person for a breach of the provisions of this chapter.

(1) For breach of any provision of Section 3.03.030, a forfeiture not greater than $100.00.

(2) For breach of Section 3.03.050, a forfeiture not greater than $100.00.

(3) For breach of Section 3.03.060, a forfeiture not greater than $100.00.

(1) For breach of any provision of Section 3.03.030, a forfeiture not greater than $500.00.

(2) For breach of any provision of Section 3.03.050, a forfeiture not greater than $500.00.

(3) For breach of Section 3.03.060, a forfeiture not greater than $500.00.

3.03.080 Seizure and Forfeiture

(a) Any walleye taken in violation of this chapter may be seized by the Conservation Department and ordered forfeited.

(b) Any equipment used in violation of this chapter may be seized by the Conservation Department and ordered forfeited.

3.03.090 Severability

Should any section of this chapter be held to exceed the regulatory authority of the Tribe, the remainder hereof shall not be affected thereby.

Chapter 3.04 Harvesting of Wild Rice

3.04.010 Findings

The Tribal Council finds that the lands now comprising the Bad River Reservation were traditional hunting, fishing, and gathering grounds for the ancestors of the Tribe; that these lands were selected as a Reservation because of their wealth of fish, game, and wild rice; that wild rice has been a nutritional staple for members of the Tribe for generations beyond memory; that wild rice continues to provide a substantial portion of the protein and other nutritional needs of the Tribe's members; that the annual harvest of wild rice is a traditional event of long-standing cultural importance; that high unemployment and cash-poor local economy indicate that wild rice will remain critical as a food source for the Tribe's members; that one predictable source of cash income for the Tribe's members is the sale of wild rice to non-residents of the reservation; and that effective regulation of both member and non-member harvesting of wild rice is essential for the preservation of wild rice in amounts sufficient to supply the economic, nutritional, and cultural needs of the Tribe's members.

3.04.020 - Definitions

(a) "Conservation Department" means the Conservation Department of the Tribe.

(b) "Member" means any person who is enrolled or is eligible for enrollment in the Tribe, or who is recognized as a member of the Tribe by the Tribal Council.

(d) "Reservation" means the Bad River Reservation.

(e) "Tribal Council" means the Tribal Council of the Tribe.

(f) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation.

3.04.030 - Ricing Prescribed

No person shall engage in any ricing activity within the boundaries of the reservation except during such times and except within such areas as the Conservation Department shall declare to be open to ricing.

3.04.040 Licensing

No person shall rice who does not have in his or her possession a valid license issued to him or her by the Conservation Department, or who does not have or is not eligible to receive a membership or enrollment card of the Tribe.

3.04.050 Notice and Posting

(a) The Conservation Department shall monitor the ripening of wild rice within the reservation and shall give notice 24 hours before opening the first area of the season. Thereafter no notice need be given before opening additional areas.

(b) The Conservation Department shall post signs indicating the limits of open areas.

3.04.060 - Mechanization Prohibited

No person shall use any mechanical means to harvest wild rice, nor shall any person operate any boat motor or engine within the rice fields.

3.04.070 - Forfeitures

(a) Any person violating Sections 303.3, 303.4, or 303.6 of this chapter for the first time shall be subject to a forfeiture of not more than $150.00.

(b) Any person violating Sections 3.04.030, 3.04.040, or 3.04.060 of this chapter who has been previously found to have violated either Sections 3.04.030, 3.04.040, or 3.04.060 of this chapter or who is subsequently found to have previously violated either Section 3.04.030, 3.04.040, or 3.04.060 of this chapter shall be subject to a forfeiture of not more than $250.00.

3.04.080 - Seizure and Forfeiture

(a) Any rice harvested in violation of this chapter may be seized by the Conservation Department and ordered forfeited.

(b) Any equipment used in violation of this chapter may be seized by the Conservation Department and ordered forfeited.

Chapter 3.05 Trapping Ordinance

3.05.010 Purpose

It is the purpose and intent of this ordinance to regulate the taking of fur bearers on the Bad River Reservation. The Tribe believes it is important to provide an opportunity for its trappers to take such animals as are necessary for cultural or economic purposes while still protecting the integrity of the species. The Tribe also believes it is important to provide for a system which protects its members from harassment and interference by non-Indians.

3.05.020 Jurisdiction

Any violation of this ordinance shall be referred to the Bad River Tribal Court.

3.05.030 Sale of Fur

Any furs, either trapped or shot by a Bad River Tribal member on reservation, which shall be sold to an authorized fur dealer or individual shall be tagged with the Bad River registration tag.

3.05.040 Limitation of Tags

Such tribal trapper/hunter who traps or kills certain tribally designated protected species shall be limited to either one or two tags depending on the species. These species shall be established by the Bad River Conservation Department. Additional tags may be distributed if the individual meets the requirements set forth by the Conservation Department. The Tribe designates bobcat and fisher as protected species for 1986-87.

3.05.050 Prohibitions

No member shall tag or sell any fur pursuant to this system which was not trapped/killed by a tribal member on the reservation. This shall not be construed to prohibit members from trapping/killing game off reservation pursuant to an off reservation system.

3.05.060 Penalty

(a) A violation of sections 304.3 and 304.4 shall result in a minimum forfeiture of no less than $50.00.

(b) A violation of Section 3.05.050 shall result in a forfeiture of no less than $100.00.

(c) Community service may be assessed in addition to the penalties set forth in (b) or in lieu of the penalties assessed in (a).

(d) Tags for any species including fish may be withheld upon failure to pay the set forfeiture or with flagrant or multiple violations, tags will be withheld.

Chapter 3.06 Tagging

3.06.010 Definitions

(a) "Office" means the Rights Protection Office of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(b) "Reservation" means all lands within the exterior boundaries of the Bad River Reservation.

(c) "Warden" means the Chief Conservation Officer of the Bad River Band of the Lake Superior Tribe of Chippewa Indians or any of his deputies.

3.06.020 Tagging Required

No person shall remove from the Reservation any fish or game that does not bear a tag issued in conformity with the procedures established by Sections 305.3 and 305.4 herein.

3.06.030 Issuance of Tags

(a) Any person authorized by treaty, tribal ordinance, or tribal license to fish, hunt, or trap on Reservation lands may apply to the Warden for the issuance of tags.

(b) After inspection of the fish or game the applicant proposes to remove from the Reservation, and upon payment by the applicant of an issuance fee, the Warden shall issue, attach, and lock on each carcass or party thereof proposed for removal, a tag bearing a number and the words "Bad River Tribe'.

(c) No tags shall be issued to any applicant for a number of carcasses or parts thereof greater than the number the applicant is authorized to remove.

3.06.040 Issuance Fees

(a) A schedule of issuance fees shall be compiled by the Office. Fees shall reflect the costs incurred by the Office in procuring and distributing the tags.

(b) Persons eligible to receive tags may pre-pay for the number of tags which they are authorized to receive or any portion thereof. The Warden may issue tags to an applicant who has so pre-paid by deducting from the applicant's account the number of tags issued.

3.06.050 Records

(a) Upon issuance of a tag, the Warden shall record in a record book the following information:

(1) The date of issuance.

(2) The name and address of the person to whom issued.

(3) The species and a description of the fish or game tagged.

(4) The destination of the person to whom issued.

(5) The name of the issuing warden.

(b) The record book containing the information required by Section 3.06.050(a) shall be available to the public during regular working hours for inspection and duplication.

3.06.060 Lake Trout

Any tribal member who, fishing under his rights as a Bad River member, catches lake trout in Lake Superior is required to obtain a tag for each fish, under any procedures specified by this chapter, prior to his transportation of the fish off of the reservation, or his introduction of the fish into off-reservation commerce.

3.06.070 - Forfeitures

(a) Any person violating Section 3.06.020 or Section 3.06.060 for the first time shall be subject to a forfeiture of not more than $150.00.

(b) Any person violating Section 3.06.020 or Section 3.06.060 who has been previously found to have violated the same section or who is subsequently found have previously violated the same section shall be subject to a forfeiture of not more than $250.00.

Chapter 3.07 Moose

3.07.010 Prohibitions

(a) No member of the Bad River Band of the Lake Superior Tribe of Chippewa Indians may shoot, shoot at, or kill any moose on the Bad River Reservation (Reservation).

(b) No member may harass, molest, worry, or cause or permit an animal owned by him or her to harass, molest or worry any moose on the Reservation.

3.07.020 Penalty

Any member found by the Bad River Tribal Court to have violated Section 3.07.010(a) or (b) may be ordered to forfeit not more than $2,500.00.

3.07.030 Effective Date

The chapter is effective as of the date of passage.

3.07.040 Sunset

This chapter shall of no force and effect on and after August 15, 1995, unless renewed by the Tribal Council.

Chapter 3.08 Closed Fishing Season

3.08.010 Prohibiting of Fishing

The taking of fish by any means during the spawning season from the waters of the Kakagon Sloughs, Wood Creek, and Bear Trap Creek, by members and non-members, is banned, except for the fish needed by the Fish Hatchery located on the Bad River Reservation and other lawfully authorized personnel in the performance of their duties, i.e. U.S. Fish and Wildlife Service.

3.08.020 Posting

The exterior boundaries of the Bad River Reservation and any acquired lands outside of the Reservation shall be posted as to the closure set forth in Section 3.08.010.

3.08.030 Penalties

(a) Any individual who violates this ordinance and does so for the first time shall be punished by a fine of not more than one hundred dollars ($100.00).

(b) An individual who violates this ordinance, who has previously been found guilty of violating this same ordinance, shall be punished by a fine of up to but not more than two hundred fifty dollars ($250.00).

3.08.040 Right to Trial

Any person accused of violating this ordinance shall be entitled to a trial in the Bad River Tribal Court.

3.08.050 Game Wardens

This ordinance shall be enforced by Tribal Game Wardens to be appointed by the Tribal Council.

3.08.060 Seizure

Game Wardens and other appointed officials are hereby authorized to seize and impound weapons, fishing, trapping, and ricing gear and other implements used in such activities as evidence together with any fish, game or rice as found in the possession of a person violating this ordinance in order to utilize such in connection with prosecution.

3.08.070 - Forfeiture

The court may order all impounded weapons, gear, implements and fish, and rice forfeited, as to any individual who does not appear in court at the time required or who is found by the court to have committed a breach of this ordinance.

Chapter 3.09 Setting of Nets

3.09.010

Any nets set in any river, stream, or other navigable water within the boundaries of the Bad River Reservation shall be sunk so as not to impede navigation.

3.09.020

Any net in river, stream, or other navigable water within the boundaries of the Bad River Reservation shall be marked with the name of the owner and the words "Bad River" or an abbreviation thereof, indicating the tribal membership of the owner. Such marking shall be of an indelible nature and shall be placed on a red or white buoy, jug or other floating device.

3.09.030

Any person who sets a net in any river, stream, or other navigable water within the Bad River Reservation shall check the net and remove all fish therefrom at least once within each twenty-four hour period.

3.09.040

Except as provided in Section 3.09.050, no person shall remove fish from the net of another without authorization by the owner of the net. Any owner giving authorization shall so notify the Bad River Conservation Office.

3.09.050

Tribal conservation wardens may inspect any net found in any river, stream, or other navigable waters within the Bad River Reservation. Any net which a warden reasonably suspects to be in violation of Section 3.09.010, 3.09.010, or 3.09.010 of this ordinance may be immediately seized, including any fish therein.

3.09.060

For a first violation of Sections 315.1, 315.2, or 315.3 of this ordinance, a civil forfeiture not to exceed $50.00 may be assessed, and the net used forfeited. For a second violation and any violation subsequent thereto of Sections 315.1, 2 or 3, a civil forfeiture not to exceed $100.00 may be assessed and the net used forfeited. For a violation of Section 3.09.040 of this ordinance a civil forfeiture not to exceed $100.00 may be assessed. For a second violation and any violation subsequent thereto of Section 3.09.040 a civil forfeiture of $200.00 may be assessed. In addition to the forfeiture assessed for a violation of Section 3.09.040, the court may order restitution made to the person whose net was subject to the unauthorized taking.

Chapter 3.10 Closed Deer Season

3.10.010 Prohibition

(a) No member of the Bad River Band shall take, catch, kill, hunt, pursue, shoot, or trap, by any means whatsoever, any deer within the boundaries of the Bad River Reservation during the closed season.

(b) The closed season shall extend from midnight of the night of January 31 to midnight of the night of June 30.

3.10.020 Penalties

(a) Any individual who violates this ordinance shall be assessed a civil forfeiture of not more than $100.00.

(b) Any individual who violates this ordinance and who has once previously been found in violation of this ordinance shall be assessed a civil forfeiture of not more than $250.00.

(c) Any individual who violates this ordinance and who has more than once previously been found in violation of this ordinance shall be assessed a civil forfeiture of not more than $500.00.

3.10.030 Seizure and Forfeiture

(a) Any weapons and other implements used in a commission of a breach of this ordinance, and any game found in the possession of a person believed to be violating this ordinance may be seized immediately and impounded.

(b) The court may order all impounded weapons, implements, and game forfeited as to any individual who does not appear in court at the time required or who is found by the court to have committed a breach of this ordinance.

3.10.040 Effective Date

This ordinance shall be posted for fifteen days at the Tribal Center and at the Conservation Office and shall become effective on January 31, 1981.

Closed Deer Season - Enacted by Resolution No. 12-3-80-141/Amended by Resolution No. 7-1-81-200

Chapter 3.11 Bad River Reservation Wetland and Watercourse Protection Ordinance

3.11.010 Ordinance Title

This ordinance shall be known, and may be cited as, the BAD RIVER RESERVATION WETLAND AND WATERCOURSE PROTECTION ORDINANCE.

3.11.020 Findings

The Bad River Tribal Council finds that wetlands and watercourses are fragile natural resources with significant development constraints due to flooding, erosion, and soil limitations. In their natural state, wetlands provide important tribal/public benefits and ecological functions. They provide habitat areas for fish, wildlife, and vegetation, water quality maintenance and pollution control, flood control, shoreline erosion control, natural resource education, scientific study, open space, recreation opportunities, environmental niches, and most importantly the traditional, cultural, and spiritual aspects of our heritage.

Previous construction, land development, and other impacts have displaced, polluted, or degraded many wetlands and forested flood plains. Piecemeal or cumulative losses continue to threaten the remaining wetlands. Damaging or destroying wetlands threatens the public safety, health and general welfare of the Band. Preservation of the wetlands in a natural condition is necessary to maintain hydrologic, economic, recreational, subsistence, cultural, spiritual and aesthetic assets for current and future residents of the Bad River Reservation.

It is therefore necessary for the Bad River Band of Lake Superior Tribe of Chippewa Indians (Bad River Tribe) to ensure maximum protection for wetlands by discouraging development activities in wetlands and activities at adjacent upland sites that may adversely affect wetlands,

3.11.030 Purposes

It is the policy of the Bad River Tribe to require planning to avoid or minimize damage to wetlands; to require that activities not dependent upon wetland location be located at upland sites; to allow wetland losses only where all practical measures to avoid and minimize have been applied; to reduce losses from activities that are unavoidable and in the public interest; and to provide for the protection of wetlands under existing and additional ordinances adopted by the Tribe including management regulations, storm water management regulations, floodplain zoning; and to establish standards and procedures for the review and regulation of the use of wetlands and watercourses and the establishment of penalties for the violation of this ordinance.

Furthermore, such development activities shall not threaten Tribal or public safety or cause nuisances by:

(a) Restricting flood flows, destroying flood storage areas, or destroying storm barriers, thereby raising flood heights or velocities on other land and increasing flood damages;

(b) Causing water pollution through any means including location of wastewater disposal systems in wet soil; unauthorized application of pesticides, and herbicides; disposal of solid wastes or storm water runoff at inappropriate sites; or the creation of unstabilized fills;

(d) Increasing runoff of sediment and stormwater.

In addition, it is the policy of the Bad River Tribe that activities in or affecting wetlands do not destroy natural wetland functions and values important to the general welfare by:

(e) Decreasing breeding, spawning, nesting, wintering, feeding, or other critical habitat for any fish or wildlife, including rare, threatened, and endangered plant and animal species and commercially and recreationally important wildlife;

(f) Interfering with the exchange of nutrients needed by fish and other forms of wildlife;

(g) Decreasing groundwater recharge;

(h) Destroying sites needed for education and scientific research;

(i) Interfering with Tribal rights for hunting, fishing, trapping, ricing, and cultural and ceremonial/spiritual uses;

(j) Interfering with other activities such as; boating, hiking, birdwatching, photography, and camping; and

(k) Destroying aesthetic and property values.

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.

3.11.050 Relationship to Federal Permit Requirements

Whenever persons requesting a permit are also subject to Federal permit requirements, the following shall apply:

(a) Approvals under this section shall not relieve a person of the need to obtain a permit from the U.S. Army Corps of Engineers or Environmental Protection Agency, if required.

(b) Issuance of a permit by the U.S. Army Corps of Engineers or Environmental Protection Agency shall not relieve a person of the need to obtain approval under this ordinance, if applicable.

(d) The Bad River Natural Resources Department may defer the review and approval of proposed uses in protected wetlands and watercourses until after permits from the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have been obtained.

(e) Nothing in this ordinance should be construed as an acknowledgement of consent to state jurisdiction within the exterior boundaries of the Bad River Reservation.

3.11.060 Applicability to Private and Public Agency Activities and Operations

The provisions of this ordinance, including permit requirements and criteria for permit approval, shall apply to activities and operations proposed by federal, state, local and other public agencies as well as private organizations, individuals and Tribal departments.

3.11.070 Prohibited Activities

Except for those activities expressly permitted by Section 3.11.080, it shall be unlawful for any person to do any of the following unless and until a permit is obtained from the Bad River Natural Resources Department pursuant to this ordinance. A permit is required for:

(a) Depositing or permitting to be deposited any fill material or structures into any watercourse or within or upon any protected wetlands.

(b) Removing or permitting the removal of any soil from any watercourse or from any protected wetland.

(c) Removing or permitting the removal of any vegetation, including trees, from protected wetlands if such removal would adversely affect the nutrient cycling, sediment trapping, flood retention, and any other hydrologic functions of such wetlands.

(d) Dredging, filling, excavating or manipulating watercourses or protected wetlands.

(e) Creating, enlarging, diminishing or altering any lake, pond, creek, stream, river, drain, or protected wetland.

(f) Constructing, operating or maintaining any development in or upon protected wetlands or watercourses.

(g) Erecting or building any structure including but not limited to buildings, roadways, bridges dams, driving of piles, placement of obstructions, paving, utilities, or private poles or towers in or upon protected wetlands or watercourses.

(h) Constructing, extending or enlarging any pipe, culvert, or open or closed drainage facility which discharges silt, sediment, organic, or inorganic materials, chemicals, fertilizers, flammable liquids or other pollutants to any lake, stream, protected wetland, or watercourse, except through a retention area, settling basin, or treatment facility designed to control and eliminate the pollutant. The ordinance shall apply to all land uses.

(i) Constructing, enlarging, extending or connecting any private or public sewage or waste treatment plant discharge to any lake, stream, river, pond, watercourse, or protected wetland except in accordance with the requirements of the Bad River Tribe, State of Wisconsin and/or the United States, to the extent that such entities have jurisdiction.

(j) Draining, or causing to be drained, any water from a protected wetland or water course including water withdrawals.

3.11.080 Exempt Activities

Notwithstanding the prohibitions of Section 3.11.070, the following activities are permitted within watercourses or protected wetlands without a permit, unless otherwise prohibited by any other ordinance or other Tribal law:

(a) Fishing, hunting, fishing, harvesting, cultural, swimming, boating (see attached Slow-No- Wake Ordinance in Appendix C), canoeing, hiking, horseback riding, bird-watching, or other similar recreational activities which do not require extensive alteration of wetland vegetation or grading of soils.

(b) Harvesting of wild plants in a manner that is not injurious to natural reproduction of such plants and provided the harvesting does not require alteration of the wetland by changing existing wetland water conditions or sources, tilling of soil, or planting of crops, and is not otherwise illegal;

(c) Grazing and/or watering of animals: provided that the activity is conducted using best management practices to ensure that flow and circulation patterns, and chemical and biological characteristics of wetlands are not impaired and that any adverse effect on the aquatic environment will be minimized.

(d) The continued production of agricultural crops on lands that have been in agricultural use prior to the effective date of this ordinance unless these practices cause environmental damage, in which case best management practices will be required to minimize environmental degradation. New conversion of wetlands for agricultural use is not exempted under this ordinance. Existing ditches, roads and culverts may be maintained to and not exceed the original constructed dimensions.

(e) Uses outlined below require submitting plans to the Wetlands Ordinance Administrator for review and comment but shall be exempt provided that the work is conducted using best management practices to ensure that flow and circulation patterns, and chemical and biological characteristics of wetlands are not impaired and that any adverse effect on the aquatic environment will be minimized.

(1) Installation for noncommercial use of temporary seasonal docks, rafts, diving platforms and other recreational devices customarily used for residential purposes. Written notice to the Wetlands Ordinance Administrator is required fifteen (15) prior to the commencement of work to be conducted in wetlands under this exemption.

(2) Maintenance or improvement of public streets, highways, or roads, within the original right of way that is designed to ensure that any adverse effect on the wetland will be minimized. Existing ditches, roads and culverts may be maintained to and not exceed the original constructed dimensions. Maintenance or improvement does not include adding extra lanes, increasing right of way, or deviating from the existing location of the street, highway, or road. Written notice to the Wetlands Ordinance Administrator is required fifteen (15) days prior to the commencement of work to be conducted in wetlands under this exemption.

(3) Maintenance or repair of lawfully located structures and facilities used in the service of the public to provide electric, gas, water, telephone, telegraph, telecommunication, storm water conveyance or other services, provided that the work is conducted using best management practices and does not increase the overall footprint. Written notice to the Wetlands Ordinance Administrator is required fifteen (15) days prior to the commencement of work to be conducted in wetlands under this exemption.

(4) Maintenance or repair of existing drainage, irrigation systems, or access roads necessary for the cultivation of agricultural crops, provided that the maintenance or repair activity does not result in additional impairment, alteration, or loss of wetlands beyond the impacts of the original project. Written notice to the Wetlands Ordinance Administrator is required fifteen (15) days prior to the commencement of work to be conducted in wetlands under this exemption.

(5) Forestry practices including the thinning and harvesting of timber. The Wetlands Ordinance Administrator will require that forestry activities be conducted in accordance with the Bad River Integrated Resource Management Plan which incorporates best management practices. If he/she determines that ongoing or proposed forestry activities are likely to have a significant impact on wildlife, the protection of water quality, or other functions of wetlands as described in this ordinance, the Wetland Ordinance Administrator shall specifically request in writing that the landowner provide a forest management plan, including a site specific timber harvest prescription for each project. The landowner shall provide a plan that protects the range of wetland functions present at the particular site. Existing ditches, roads and culverts may be maintained to and not exceed the original constructed dimensions.

(f) Excavation and filling of no more than fifty (50) cubic yards of material if necessary for the repair or maintenance of bridges and other existing structures, provided that such structures allow for the unobstructed flow of water, including fish passage, and preserve the natural contour of protected wetlands, except as authorized by permit.

(g) Improvement or maintenance of the river(s) or their tributaries when such operations are organized or sponsored by the Bad River Tribe and are specifically intended to preserve natural resources. Such permitted activities shall include, but not be limited to:

(1) Removal of materials which may cause diverted flows and bank erosion, including the removal of trees, brush, and debris;

(2) Bank stabilization projects which require minimal disturbance of existing conditions;

(3) Wildlife and aquatic habitat improvement projects; and

(4) Removal of beaver dams.

3.11.090 Wetlands Inventory Map

The Bad River Tribe hereby designates for reference an official inventory map of wetland areas showing the general location of wetlands within the exterior borders of the Bad River Reservation, Ashland and Iron Counties, Wisconsin on their Geographical Information System in the Bad River Natural Resources Department. The said wetlands map shall be updated either from on-site inspection by Bad River Natural Resources Department at their discretion and when the Wisconsin Wetlands Inventory maps are revised. The wetlands map shall serve as a general guide for the delineation of wetland boundaries. Field investigations to delineate the precise boundaries of wetlands on a project site shall be the responsibility of the applicant. In cases where the Bad River Tribe needs additional information to complete a permit application review, the Bad River Natural Resources Department may complete on site investigations of protected wetlands and watercourses at the expense of the applicant or require the applicant to provide such information.

The Wetland Inventory Map shows only the general location of wetlands. The map should be consulted by persons contemplating activities in or near wetlands before engaging in a regulated activity. The Wetland Inventory Map together with an explanatory letter is hereby adopted by reference and declared to be a part of this ordinance. The Wetland Inventory Map shall be on file in the office of the Bad River Natural Resources Department.

3.11.100 Applicable Geographic Area

This ordinance shall apply to all lands located within the exterior boundaries of the Bad River Reservation. Areas shown on the wetlands map are presumed to be wetlands consistent with the definition thereof unless field determination indicates otherwise.

Wetlands may exist within the Reservation that are not indicated on the Wetland Inventory Map. These unmapped wetlands are hereby designated to be within the exterior boundaries of the Bad River Reservation and protected under all of the terms and provisions of this ordinance. Field determination is therefore necessary to confirm the presence or absence of protected wetland systems.

3.11.110 Rules for Interpretation of Wetland Delineation Boundaries

The determination of the boundaries of the wetland delineation shall be determined through a field review by a person who has received training and has two (2) years of documented experience in wetland delineation, if warranted. The wetland field determination shall be the responsibility of the applicant. The Wetland Inventory Map is to be used as a guide to the general location of wetlands. The applicant is required under Section 3.11.120(b) of this ordinance to show a Wetland Delineation boundary on a scaled drawing submitted as part of the permit application. Wetland delineations shall be performed in accordance with the procedures specified in the 1987 Corps of Engineers Wetland Delineation Manual and any subsequent amendments. Evidence documenting the results of the boundary survey as well as course completion certificate and documented wetland delineation experience may be required by the Wetlands Ordinance Administrator.

Where the Wetlands Ordinance Administrator performs a wetland determination at the request of the applicant, it shall be considered a final determination. Where the applicant has provided a determination of the wetland boundary, the Wetlands Ordinance Administrator shall verify the accuracy of, and may render adjustments to, the boundary delineation. In the event the adjusted boundary delineation is contested by the applicant, the Wetlands Ordinance Administrator shall, at the applicant's expense, obtain competent expert services to render a final delineation to the Wetlands Ordinance Administrator for final decision. The Wetlands Ordinance Administrator may use remote sensing, hydrology, soils, plant species, and other data, and consult with biologists, hydrologists, soil scientists, or other experts as needed to perform a final wetland determination. The applicant shall be charged for costs incurred.

3.11.120 Application for Permit

Application for a permit to use protected wetlands or watercourses for a purpose described in Section 3.11.070 shall be filed with the Bad River Natural Resources Department. Unless the Wetlands Ordinance Administrator waives one or more of the following information requirements, applications for a permit for a regulated activity shall include:

(a) An application for a permit to conduct a regulated activity shall be made in duplicate to the Wetlands Ordinance Administrator on forms furnished by his or her office. Permits shall ordinarily be valid for a period of two years from the date of issue and shall expire at the end of that time unless a longer period is specified by the Wetlands Ordinance Administrator upon issuance of the permit. An extension of an original permit may be granted upon written request to the Wetlands Ordinance Administrator by the original permit holder or the successor in title. The request for renewal of a permit shall follow the same form and procedure as the original application except that the Wetlands Ordinance Administrator shall have the option of not holding a hearing if the original intent of the permit is not altered or extended in any way. The Wetlands Ordinance Administrator may require additional information notice and/or hearings if, in his or her judgment, the original intent of the permit is altered or extended by the renewal or if the applicant failed to abide by the terms of the original permit.

(b) Duplicate copies of a drawing of the proposed activity, including at least the following:

(1) Title block, including the applicant's name, name of the waterbody, County, City, (Township, Range, Section, 1/4, 1/4), description of activity, scale of drawing, date drawing was prepared, name and professional credential of the engineer, architect, or planner preparing the site drawing and the name and professional credentials of the wetlands scientist or environmental specialist who delineated the wetland boundaries;

(2) Copy of wetland delineation report that includes a functional assessment on each different wetland type of the project, unless delineation was executed by the Bad River Natural Resources Department. The functional assessment method is to be submitted for approval to the Bad River Natural Resources Department for approval prior to the execution of the wetland delineation;

(3) Location and extent of protected wetlands and watercourses are to be identified through field investigation and presented on a topographic map of suitable scale. A scale of at least one (1) inch equals fifty (50) feet is required for all projects;

(4) Types of wetlands on the site, e.g., forested, shrub swamp, shallow marsh, wet meadow, and aquatic bed, are to be identified by using classifications as outlined in the Eggers, Steve D. and Donald M. Reed. 1997. Wetland plants and communities of Minnesota and Wisconsin. U.S. Army Corps of Engineers, St. Paul District. Northern Prairie Wildlife Research Center Online. http://www.npwrc.usgs.gov/resource/1998/mnplant/mnplant.htm Version 03SEP98;

(5) A site plan, or planning map (mylar) which overlays the proposed development or project onto wetlands and watercourses, where existing and proposed structures shall be clearly identified in relation to existing wetland features and topography. If existing structures were previously authorized by Tribe, township(s), Ashland County, state, or federal permit, list the corresponding permit numbers;

(6) Typical cross sections of existing and proposed structures, dredge cuts and fills, including dimensions and elevations, and location of wetlands;

(7) Identification of type, volume, and area for proposed construction materials, dredge material, and fill materials;

(8) Identification of type and location of soil erosion control measures to be used during construction, including measures which will be used to trap sediments which might otherwise run off into wetlands;

(9) Identification of disposal areas for dredged material, if any, vicinity map showing the disposal area if off-site disposal is proposed, and method for containing dredge material to prevent re-entry into wetlands or watercourses;

(10) Bridge or culvert cross section, if any, including the location of wetlands, and a profile of the proposed structure showing the proposed end treatment and bank stabilization locations; and

(11) Consent to jurisdiction of the Bad River Tribal Court.

(1) Name of project and brief description (one sentence);

(2) Date upon which the activity is proposed to commence;

(3) Explanation of why the project meets the use standards and criteria contained in Section 3.11.160 of this ordinance;

(4) List of all federal, state, county or other local government agency permits or approvals required for the proposed project including permit approvals or denials already received. In the event of denials, the reasons for denials shall be given. Attach copies of all permits which have been issued;

(5) Identification of any present litigation involving the property; and

(6) Signature of applicant.

(d) Additional information. The Wetlands Ordinance Administrator may require additional information from the applicant, including, but not limited to, documentation and evidence of a wetland boundary determination by field survey; documentation of the ecological, aesthetic, economic, or other values of a wetland; a study of flood, erosion, or other hazards at the site; evidence of any protective measures that might be taken to reduce such hazards; and any other information deemed necessary to verify compliance with the provisions of this ordinance or to evaluate the proposed use in terms of the purposes of this ordinance.

(e) Any person may request whether a proposed activity or an area is subject to this ordinance by written submittal to the Wetlands Ordinance Administrator. Such a request for jurisdictional determination shall contain plans, location map, wetland data, and other information as may be specified by the Wetlands Ordinance Administrator.

3.11.130 Fees

Applications for a permit under this section shall be accompanied by a nonrefundable administrative application fee in an amount based on current rates specified from time to time by resolution of the Bad River Tribal Council. In addition, an applicant shall pay an additional escrow fee in an amount determined by the Bad River Natural Resources Department to pay for the estimated cost of outside consultant(s) who may be retained by the Bad River Tribe in connection with the review of the application. In the event the cost of the services of the consultant(s) is less than the escrow fee, the applicant shall be refunded the balance. In the event the cost of the services of the consultant(s) exceeds the amount of the escrow fee, the applicant shall pay the deficiency to the Bad River Natural Resources Department prior to the issuance of a permit. A denial of an application for a permit shall not affect the applicant's obligation to pay the escrow fee provided for in this ordinance.

3.11.140 Bad River Natural Resource Department Review

The Bad River Natural Resource Department shall process a permit application as follows:

(a) The Wetlands Ordinance Administrator will provide the initial processing and review of the permit application to verify that all required information has been provided. The Wetlands Ordinance Administrator will then coordinate a review period with the Bad River Natural Resources Department and other commenting reviewers within the Tribe. The applicant or the Bad River Tribal Council may request an administrative meeting to review the proposed activity in light of the purposes of this ordinance. This administrative meeting will also determine whether public notice and comment are required.

(b) Upon receipt of a complete application, the Wetlands Ordinance Administrator may conduct or authorize the completion of a field investigation to review and verify the accuracy of information received and during such review shall refer to the wetlands map. The receipt of a permit application shall comprise permission from the owner to complete an on-site investigation. If a proposed project affects protected wetlands, the Bad River Natural Resources Department review procedures shall be initiated upon receipt of a completed permit application.

(c) If a proposed project requires a wetland permit from the U.S. Army Corps of Engineers, the Bad River Natural Resources Department shall provide notification to the applicant that it has received the permit application. The Bad River Natural Resources Department may elect to defer consideration of the application until after the federal permits have been obtained.

(d) If the Bad River Natural Resources Department chooses to complete its review of a proposed use application prior to federal permit issuance, the Bad River Natural Resources Department shall coordinate field investigations with federal agency personnel.

(e) Plans for wetland mitigation shall not be considered unless and until the requirements of Sections 3.11.160, 3.11.170, 3.11.200, and 3.11.210 of this ordinance have been met.

(f) Until the Tribe has full regulatory authority under federal law to carry out all provisions of this ordinance, the Tribe will implement those procedures designated by the U.S. Army Corps of Engineers that coincide with the current federal permitting requirements leading to a federal permit application for Tribal members within the boundaries of the reservation. In addition, the requirements may include provisions stated in a memorandum of agreement with the U.S. Army Corps of Engineers for Tribal development projects.

(g) The Bad River Natural Resources Department shall issue a permit through the Wetland Ordinance Administrator if they determine that the proposed activity satisfies the wetland ordinance.

3.11.150 Rules of Procedure for Wetland Program Administration

The Bad River Natural Resources Department shall draft rules of procedure governing meetings, the order of business, bylaws, and hearings that relate to the Wetlands Program. All permit appeals shall be appropriately noticed by publication in a newspaper of general circulation in the area. Such notice shall be given not less than fifteen (15) days before the hearing date.

3.11.160 Permit Standards and Criteria

The Bad River Natural Resource Department and the Wetland Ordinance Administrator in making a recommendation with respect to a permit application shall consider the following standards and criteria:

(a) A permit shall be issued only if the proposed project or activity is in the Tribal interest and is otherwise lawful in all respects.

(b) In determining whether the activity is in the Tribal interest, the benefit which would reasonably be expected to accrue from the proposal shall be balanced against the reasonable foreseeable detriments of the activity, taking into consideration the tribal, local, state and national concern for the protection and preservation of natural resources from pollution, impairment and/or destruction. The following general factors and criteria shall be considered:

(1) The activity is water-dependent or requires access to the wetland as a central element of its basic function, or is not water-dependent but has no practical upland-only alternative;

(2) The availability of feasible and prudent alternative methods and location, other than the project as-proposed, to achieve the expected benefits from the activity;

(3) The extent and permanence of the beneficial or detrimental effects which the proposed activity may have on the tribal, public and private use to which the area is suited, including the benefits the protected wetland provides.

(4) Tribal, public and private economic value of the proposed land change to the general area;

(5) The probable effect on ecological or recreational values and on the public, fish, plant or wildlife health;

(6) The probable effect of the proposal in relation to the cumulative effect created by other existing and anticipated activities in the watershed;

(7) The probable effect on recognized historic, cultural, and spiritual values;

(8) The size and quality of the protected wetland being considered;

(9) The amount and quality of remaining wetland in the watershed should the project be implemented;

(10) Proximity to any waterway;

(11) Extent to which upland soil erosion adjacent to protected wetlands or drainage ways is controlled should the project be implemented; and

(12) Findings of necessity for the proposed project which have been made by Tribal Council and/or federal agencies.

(1) Disturbance of aquatic resources will be avoided then minimized to the extent practicable;

(2) The proposed activity is primarily dependent upon being located in the protected wetland;

(3) A less damaging feasible alternative does not exist; and

(4) The proposed activity will result in the minimum negative effect upon protected wetlands, watercourses, and attendant natural resources, which shall include, but not be limited to:

(A) Minimum feasible alteration or impairment to the wetlands functions and existing contour, vegetation, fish and wildlife resources, and hydrological conditions;

(B) Critical habitat protection for any species that appears on tribal, federal or State of Wisconsin endangered species lists;

(D) Compliance with all applicable tribal, state, local, and federal laws, including those related to sediment control, pollution control, floodplain zoning, and on- site wastewater disposal;

(E) Compliance with other standards contained in the ordinance, including those pertaining to wetland creation, restoration, and preservation as required; and

(F) No overall net loss of wetland area or function.

(d) A request for a permit in a buffer area for erosion control structures, storm water management facilities, and water-dependent structures shall be approved, provided that the flow of water is not diverted from protected wetlands and that excessive siltation does not occur in the protected wetlands. The use of the buffer area for other permanent structures, earth-moving activities or other uses shall only be approved in accordance with the standards and criteria contained in this Section.

(e) The permit shall be issued only if the proposed project or activity will provide a wetland buffer area of not less than that described in the wetland mitigation plan between the wetland and upland activities for those portions of a regulated activity that need not be conducted in the wetland.

(f) Requirements in this ordinance for protection and use of the buffer area shall supersede all zoning district setbacks for front, rear and side yards where such setbacks are less than fifty (50) feet from the property line.

3.11.170 Practicable Alternatives Test

For all permit applications, an alternative site for the proposed activity shall be considered practicable if it is available and makes accomplishing the basic purpose possible while having less negative environmental impact. There is no practicable alternative if the applicant demonstrates all of the following to the satisfaction of the Wetlands Ordinance Administrator:

(a) The basic purpose of the project cannot reasonably be accomplished using one or more other sites in the general region that would avoid, or result in less adverse impact to, wetland;

(b) The basic purpose of the project cannot be accomplished by a reduction in the size, scope, configuration, or density of the project as proposed or by changing the design of the project in a way that would avoid or result in fewer adverse effects on wetland; and

(c) In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as inadequate zoning, infrastructure, or parcel size, the applicant has made reasonable attempts to remove or accommodate such constraints.

3.11.180 Permit Conditions. Whenever the Wetlands Ordinance Administrator Approves the Issuance of a Permit, the Bad River Natural Resources Department, the Tribal Council or the Wetlands Ordinance Administrator Shall:

(a) Attach any reasonable conditions considered necessary to insure that the intent of this ordinance will be fulfilled, to minimize or mitigate damage or impairment to, encroachment in or interference with natural resources and processes within the protected wetlands or watercourses, or to otherwise improve or maintain the water quality. Such conditions may include but are not limited to:

(1) Limitations on minimum lot size for any regulated activity;

(2) Requirements on structures to be elevated on piles and otherwise protected against natural hazards;

(3) Modification of waste disposal and water supply facilities;

(4) Imposition of operational control, sureties, and deed restrictions concerning future use and subdivision of vegetation removal;

(5) Dedication of easements or other perpetual conservation restrictions to protect wetlands;

(6) Establishment and maintenance of vegetated buffer zones separating and protecting the wetland from proposed activities;

(7) Erosion control and stormwater management measures;

(8) Setbacks for structures;

(9) Limitations on the amount of fill material, and requirements that fill material must be free of contamination;

(10) Modification in project design to ensure continued water supply to the wetland and circulation of water in the wetland system;

(11) Development of a plan to guide actions involving the creation of a new wetland or the restoration of a damaged or degraded wetland. Applicable Tribal or federal standards must be followed if creation or restoration projects are proposed; and

(12) Any conditions related to wetland mitigations shall follow the provisions of Sections 3.11.160, 3.11.170, 3.11.200, and 3.11.210 of this ordinance.

(b) Fix a reasonable time to complete the proposed activities.

(c) Require the applicant to file with the Bad River Tribe cash or corporate surety bond or irrevocable bank letter of credit in an amount, if any, determined necessary to insure compliance with the permit approval conditions and this ordinance.

(d) Require that final approval of a permit application shall be contingent upon receipt of evidence by the Bad River Tribe that required federal permits, if any, have been obtained by the applicant.

3.11.190 Protection of Wetlands and Watercourses During and After Construction

An applicant who has received a permit under this ordinance shall comply with the following in connection with any construction or other activity on the property for which the permit has been issued:

(a) Maintain soil erosion control structures and measures, including but not limited to silt fences, straw bale dikes, earthen berms, and sediment traps. The landowner shall provide for periodic inspections throughout the duration of the project.

(b) Through staking or other means acceptable to the Bad River Natural Resources Department, clearly identify the locations of protected wetlands or watercourses on the project site so that such locations are visible to all construction workers. The visible identification of protected wetlands and watercourses shall be in place prior to the grading of any land or issuance of any construction permit.

(c) Ensure that there is no encroachment of equipment or earth-moving activities into protected wetlands or watercourses except as provided in the permit.

(d) Prominently display at the site a copy of the permit or other evidence that a permit has been obtained. The owner shall display a copy of the permit or other certification continuously when authorized activities are conducted and for five (5) days following completion. The owner shall allow representatives from the Bad River Natural Resources Department to enter and inspect the premises at any reasonable time, and failure to allow inspections shall constitute a violation of this ordinance.

3.11.200 Consideration of Proposals for Wetland Mitigation

As a condition of a permit issued or as an enforcement action under this ordinance, the Wetland Ordinance Administrator may require that the applicant engage in the restoration or creation of wetlands in order to offset, in whole or in part, the losses resulting from an applicant's or violator's actions. Prior to considering a proposal for wetland mitigation, the Wetland Ordinance Administrator shall make all of the following findings:

(a) The long- and short-term effects of the action upon the wetland and associated aquatic ecosystem, and the reversible or irreversible nature of the impairment or loss;

(b) The type and benefit of the wetland functions and associated resources lost;

(c) The type, size, and location of the wetland altered, and the effect it may have upon the remaining system or watershed of which the wetland is a part;

(d) Observed or predicted trends with regard to the gains or losses of this type of wetland in the watershed, in light of natural and human processes;

(e) The cost and likely success of the possible compensation measures in relation to the magnitude of the proposed project or violation;

(f) The degree to which the applicant has demonstrated a good-faith effort to incorporate measures to minimize and avoid wetland impacts within the proposed project;

(g) That all feasible and prudent efforts have been made to avoid the loss of protected wetland;

(h) That all practical means have been considered to minimize effects on protected wetland;

(i) That it is practical to replace the protected wetland that could not be avoided; and

(j) That all alternatives for preserving protected wetlands and watercourses have been evaluated and found to be impractical, inappropriate, or ineffective.

3.11.210 Criteria for Approving Proposals for Wetland Mitigation

If the Bad River Natural Resources Department, the Bad River Tribal Council, or the Wetlands Ordinance Administrator determines that it is practical to replace the protected wetlands which will be affected, mitigation plans shall be approved only if all of the following criteria are met:

(a) That the mitigation plan provides for the substantial replacement of the predominant functions of the protected wetland to be lost;

(b) That the mitigation plan provides for no net loss of protected wetland resources and watercourses (for purposes of this sub-Paragraph buffer area shall not be considered protected wetland) unless the Bad River Natural Resources Department or the Wetlands Ordinance Administrator determines that the net loss will result in a minimum negative effect upon protected wetlands, watercourses, and attendant natural resources under all of the circumstances;

(c) That the mitigation plan has been coordinated with requirements of federal, state, and local agencies, if applicable; and

(d) That a plan to monitor preserved and replacement wetlands has been specified with the goals, objectives, and performance standards to compensate, rectify, or reduce the effects for the loss of functional value to the impacted wetland. The Bad River Natural Resources Department and the Wetlands Ordinance Administrator may accept or recommend an alternative proposal.

Such proposal may involve a monetary compensation fee as provided for in this ordinance for the creation or restoration of an "out of kind" and "off site" high quality wetland mitigation banking strategy. In the case of tribally designated projects located within the development corridor, mitigation by preservation will be an option at select preservation sites within the Bad River Tribe's Integrated Resource Management Plan conservation and restoration areas or other areas that would contribute to protection of the aquatic environment based on a holistic watershed approach.

3.11.220 Temporary Emergency Permit

Notwithstanding the provisions of the ordinance or any other law to the contrary, the Bad River Natural Resources Department may issue a temporary wetlands permit through oral or written authorization, provided a written permit is accomplished within five (5) days, if he/she deems that an unacceptable threat to life or severe loss of property will occur if an emergency permit is not granted. The emergency permit may be terminated at any time without process upon a determination by the Bad River Natural Resources Department that the action was not or is no longer necessary to protect human health or the environment. The Bad River Natural Resources Department may, within 90 days of the emergency permit, require that the action be reconsidered as an after-the-fact permit, subject to any or all of the terms and provisions of this ordinance.

3.11.230 Public Hearing and Recommendations

If the Bad River Natural Resources Department determines that the application could have significant impacts on a wetland within the exterior boundaries of the Bad River Reservation, a public hearing shall be scheduled. The hearing shall be held no later than 60 days after receipt of the complete permit application. Notice of the hearing shall be published in one newspaper having general circulation in the area at least 15 days prior to the hearing date. All hearings shall be open to the public. A record of the hearing shall be made. Any person may present evidence and testimony at the hearing. At the hearing, the applicant shall have the burden of demonstrating that the proposed activity will be in accordance with purposes of this ordinance and the standards set forth. Comments received from the public hearing shall be considered by the Bad River Natural Resources Department in issuing or denying the permit through the Wetlands Ordinance Administrator.

3.11.240 Appeal from Decision of Wetlands Ordinance Administrator

Any person denied a permit may appeal to the Tribal Trial Court. An appeal must be filed with the Tribal Trial Court, in writing, within fifteen (15) days of the date of the decision of the Wetlands Ordinance Administrator and shall suspend the issuance of a permit pending the outcome of the appeal. Written notice of the court date will be sent by first class mail to all concerned parties a minimum of fifteen (15) days in advance of the hearing. The Tribal Trial Court shall review to determine if the facts support the conclusion reached by the Wetlands Ordinance Administrator and the Bad River Natural Resource Department. If the Tribal Trial Court determines the facts do not support the conclusion it may remand for further finding or dismiss the case. If the Tribal Trial Court concludes that the facts support the conclusion then it must review the case to determine if the law was correctly applied to the facts. The Tribal Trial Court may reverse, remand, or affirm the decision of the Wetlands Ordinance Administrator and Bad River Natural Resource Department.

3.11.250 Appeal from Decision of Tribal Trial Court

Any person denied a permit from the Tribal Trial Court may appeal to the Tribal Appellate Court. An appeal must be filed with the Tribal Appellate Court, in writing, within fifteen (15) days of the date of the decision of the Tribal Trial Court and shall suspend the issuance of a permit pending the outcome of the appeal. Written notice of the court date will be sent by first class mail to all concerned parties a minimum of fifteen (15) days in advance of the hearing. The Tribal Appellate Court shall review to determine if the facts support the conclusion reached by the Tribal Trial Court. If the Tribal Appellate Court determines the facts do not support the conclusion it may remand for further finding or dismiss the case. If the Tribal Appellate Court concludes that the facts support the conclusion then it must review the case to determine if the law was correctly applied to the facts. The Tribal Appellate Court may reverse, remand, or affirm the decision of the Tribal Trial Court with the rendered decision considered to be final.

3.11.260 Appeals Standards

Both the Tribal Trial Court and the Tribal Appellate Court shall assemble and examine all facts pertaining to the appeal. The appeals hearing shall be open to the public, and each decision shall be in accord with the following standards:

(a) The applicant has no practicable alternative to the proposed activity;

(b) The applicant's site plan shows a significant attempt to preserve and protect the wetland;

(c) The decision is based on proper procedures as specified in the ordinance, and is supported by competent evidence on the record; and

(d) The decision would not result in a violation of Tribal or federal law or of the constitution of the Tribe or United States of America.

3.11.270 Suspension or Revocation of a Permit

The Bad River Natural Resources Department may suspend or revoke a permit if it finds that the applicant has not complied with the conditions or limitations set forth in the permit, or has exceeded the scope of the work set forth in the permit, or has obtained a permit by misrepresentation of, or failure to fully disclose, any relevant facts.

3.11.280 Enforcement and Fines

Upon reasonable cause, or obtaining a warrant, the Bad River Natural Resources Department, and any agents, officers, or employees thereof, shall have authority to enter upon land within the Bad River Reservation for the purpose of performing their duties under this ordinance and may take or cause to be made such examinations, surveys, or sampling as the Bad River Natural Resources Department deems necessary.

(a) Law enforcement officials or other officials having police powers shall have authority to assist the wardens of the Bad River Natural Resource Department.

(b) Any person authorized to enforce the provisions of this ordinance may in a manner and at a reasonable time:

(1) conduct routine examinations, surveys, or sampling of objects, places, or persons whose conduct is regulated by this ordinance;

(2) search any object, place, or person if the person reasonably suspects there is a breach by this ordinance; and

(3) issue a citation on a form approved by the Tribe or Tribal Court to any person whose conduct is regulated by the provisions of this ordinance.

(c) Any person who, for himself or herself, or by his agent or employee, or who as an agent or employee of another, violates this ordinance shall be liable for a civil remedial forfeiture not to exceed $5,000 and costs of prosecution or by imprisonment for not more than ninety (90) days, or both such fine and imprisonment. Each day of any continuing violation may be charged as a separate violation, and a separate forfeiture may be imposed.

(d) In the event of a violation, the Bad River Tribal Court shall have the power to order wetland restoration and creation measures for the damaged or destroyed wetland area by the person or agent responsible for the violation. If the responsible person or agent does not complete such measures within a reasonable time following the order, the Bad River Tribe may restore the affected wetland to its prior condition and create or restore other wetlands for the purpose of off-setting losses sustained as a result of the violation. The person or agent responsible for the original violation shall be liable to the Bad River Tribe for the cost of such actions.

(e) Notwithstanding the existence or pursuit of any other remedy, the Tribal Council or any other person may maintain an action in Tribal Court for an injunction against person to restrain or prevent violations of this ordinance.

Jurisdiction over all matters arising under this ordinance shall be with the Tribal Court which shall adjudicate in accordance with the Tribal Court Code all questions and alleged violations involving this ordinance.

3.11.290 Abrogation and Greater Restrictions

This ordinance shall not be interpreted so as to repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. However, where this ordinance imposes greater restrictions, the provisions of this ordinance shall prevail.

3.11.300 Interpretation

The provisions of this ordinance shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this ordinance.

3.11.310 Restoration Requirements for Illegal Wetland Alteration

In the event of a violation involving alteration of a watercourse or protected wetland in violation of this ordinance, the Bad River Tribe shall have the power to order complete restoration of the watercourse or protected wetland area by the person or agent responsible for the violation. If such responsible person or agent does not complete such restoration within a reasonable time following the order, the Bad River Tribe shall have the authority to restore the affected watercourse or protected wetland to its prior condition wherever possible, and the person or agent responsible for the original violation shall be held liable for the cost of restoration. Requirements and specifications, if any, for watercourse or protected wetland restorations ordered by the Bad River Tribe shall be coordinated with state and/or federal agency requirements and specifications for watercourse or wetland restoration.

3.11.320 Injunction

Any activity conducted in violation of this ordinance is declared to be a nuisance per se, and the Bad River Tribe may commence a civil suit for an order abating or enjoining the violation, and/or requiring restoration of the protected wetland or watercourse to the condition before the impact occurred.

3.11.330 Stop-Work Order

The Bad River Tribe may also issue a stop-work order or withhold issuance of a certificate of occupancy, permits, or inspections until the provisions of this section, including any condition attached to a permit, have been fully met. Failure to obey a stop-work order shall constitute a violation of this ordinance.

3.11.340 Conflict

In the event of conflict or disparity between any provisions and regulations of this ordinance and those contained in other ordinances with respect to a proposed activity which is regulated under both ordinances, the more environmentally protective provision or regulation shall apply. All ordinances, parts of ordinances or codes in conflict herewith are hereby repealed only to the extent necessary to give this ordinance full force and effect.

3.11.350 Violations of Law Not Affected or Abated by This Ordinance

Rights and duties which have matured, penalties which have been incurred, proceedings which have begun and prosecutions for violations of law occurring before the effective date of this ordinance are not affected or abated by this ordinance.

3.11.360 Nonconforming Activities

Any lawfully established operation, use, or structure existing at the time of enactment or affected by subsequent amendment of this ordinance, but not in conformity with its provisions, may be continued subject to the following:

(a) No such activity shall be expanded, changed, enlarged, or altered in a way that increases its nonconformity with this ordinance unless a permit is obtained.

(b) Any project specifically designed to achieve compliance with existing tribal or federal health, sanitary, building, or safety code specifications which are solely necessary to assure safe living conditions shall not be restricted under this ordinance, provided that the Bad River Natural Resources Department or the Wetlands Ordinance Administrator may impose reasonable terms and conditions to protect wetlands. The burden of proof of establishing the existence of a non-conforming use shall be upon the person requesting such a determination. If there is a reasonable doubt as to the factual existence of a nonconforming use, the Bad River Tribal Council shall make a final determination as to the status of the use.

3.11.370 Judicial Review

This Ordinance shall not be construed to abrogate rights or authority otherwise provided by law. For the purposes of determining if there has been a taking of property without just compensation under Tribal law, an owner of property who has sought and has been denied a permit or has been issued a permit subject to modifications or conditions under this ordinance may file an action with the Bad River Tribal Court. If the court determines that an action pursuant to this ordinance constitutes a taking of the property of a person, then the court shall order the Bad River Tribe, to choose one or more of the following options:

(a) Compensate the property owner for the full amount of the lost value.

(b) Purchase the property at its fair market value.

3.11.380 Limited Waiver of Tribal Sovereign Immunity

An action may be brought in Tribal Court under this Ordinance against the Tribe or an agent, employee or officer of the Tribe to determine if the facts support the conclusion reached by the Wetlands Ordinance Administrator and the Bad River Natural Resources Department and the law was correctly applied to the facts. No judgment, order or award shall be entered under this Ordinance against the Tribe or any officer without actual notice to the Tribe through the Secretary of the Tribal Council and the Office of the Tribal Attorney, and to any agent, employee or officer of the Tribe against whom any such relief applies. The Tribal Court shall give due weight to the sovereign, governmental and public interests of the Tribe in determining to grant and in fashioning any relief against the Tribe or any agent, employee or officer.

No monetary damages shall be awarded under this Ordinance in excess of the limits of insurance maintained by the Tribe to compensate for injury claimed hereunder as set out in Section 3.11.370.

3.11.390 Amendments

These regulations and the Wetland Inventory Map from time to time may be amended in accordance with requirements in the general statutes and as new information concerning wetland locations, soils, hydrology, flooding, or botanical species peculiar to wetlands become available.

3.11.400 Assessment Relief

Assessors and boards of assessors shall consider wetland regulation in determining the fair market value of land. Any owner of an undeveloped wetland who has dedicated an easement or entered into a perpetual conservation restriction with the Bad River Tribe to permanently control some or all regulated activities in the wetland shall have that portion of land assessed consistent with those restrictions.

3.11.410 Severability

If any section, subsection, clause, phrase, or portion of this Ordinance is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof.

3.11.420 Effective Date,

The provisions of this ordinance shall take effect thirty (30) days after the publication of this ordinance.

Chapter 3.12 Water Quality Certification and Water Quality Review Code

3.12.010 Definitions

Undefined terms that are defined in the Tribe's Water Quality Standards shall have the meaning assigned to them in that document.

(a) "Clean Water Act" (CWA) means the Federal Clean Water Act, 33 U.S.C. § 1251 et seq. (1972), as amended.

(b) "Council" or "Tribal Council" means the governing body of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(d) "EPA" means the U.S. Environmental Protection Agency.

(e) "General Permits" means any and all Nationwide, Regional, General, and other permits written to cover multiple dischargers or activities that are similar in nature issued by the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, and the Wisconsin Department of Natural Resources.

(f) "General Permit Review" means review of any and all general permits as defined above.

(g) "Groundwater" means the supply of fresh water found beneath the Earth's surface, usually in aquifers.

(h) "Minimal Impacts to Water Quality" means that the proposed activity is shown by clear and convincing information to not cause any substantial water quality impacts to Reservation Waters and to have a high likelihood of complying with the Tribe's Water Quality Standards.

(i) "Off-Reservation" means all lands and waters outside of the exterior boundaries of the Tribe's Reservation.

(j) "Public Emergency" means a serious or dangerous situation that requires expedited action to avoid endangerment to human health, public safety or the environment, or to reestablish needed public services, which includes but is not limited to, extreme flooding conditions, wildfires, and tornadoes.

(k) "Reservation" means the Tribe's Reservation, described in the Treaty of 1854 as follows: Beginning on the south shore of Lake Superior, a few miles west of Montreal River, at the mouth of a creek called by the Indians Ke-Che-se-be-we-she, running thence south to a line drawn east and west through the centre of township forty-seven north, thence west to the west line of said township, thence south to the southeast corner of the township forty-six north, range thirty-two west, thence west the width of two townships, thence north the width of two townships, thence west one mile, thence north to the lake shore, and thence along the lake shore, crossing Shag-waw-me-quon Point, to the place of beginning. Also two hundred acres on the northern extremity of Madeline Island, for a fishing ground. Ke-Che-se-be-we-she is presently known as Graveyard Creek and Shag-waw-me-quon is now commonly spelled Chequamegon Point.

(l) "Reservation Waters" means any surface water or groundwater located within the exterior boundaries of the Reservation.

(m) "State" refers to the State of Wisconsin and any other state that may issue proposed permits for activities that involve discharges that may affect Reservation waters.

(n) "Surface Water" includes all water naturally open to the atmosphere above the surface of the ground including but not limited to rivers, lakes, reservoirs, ponds, streams (including intermittent streams), impoundments, and wetlands. Surface water does not include waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA (other than cooling ponds as defined in 40 C.F.R. § 423.11(m) which also meet the criteria for this definition).

(o) "Tribe" and/or "Tribal" refers to the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(p) "Tribe's Water Quality Standards" means the water quality standards that apply to Reservation Waters that were adopted by Resolution No. 7-6-441 of the Tribe and which may be modified from time to time by the Tribe.

(q) "USACE" means the United States Army Corps of Engineers.

(r) "Usufructuary Rights" means the right for tribal members to use and enjoy the land and its resources.

(s) "Water Quality Certification" means certification under CWA Section 401(a)(1) that a proposed project or activity for which a federal license or permit is required is not expected to cause a violation of relevant water quality standards.

(t) "Water Quality Review" means a review of: (1) whether a discharge originating Off- Reservation may affect the quality of Reservation waters and potentially cause or contribute to non-compliance with the Water Quality Standards; or (2) whether a proposed General Permit adequately protects the quality of Reservation Waters.

(u) "Water Quality Standards" are standards that consist of a designated use or uses for the waters, water quality criteria for such waters, an anti-degradation policy, and other policies or standards.

(v) "WDNR" means the Wisconsin Department of Natural Resources.

(w) "WDNR/EPA Memorandum of Agreement" means the Memorandum of Agreement between the State of Wisconsin Department of Natural Resources and United States Environmental Protection Agency, Region V," approved February 4, 1974.

(x) "Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, sloughs, and similar areas.

(y) "WRP" means the Water Resources Program operating within the Tribe's Natural Resources Department.

(z) "WQS" means the Tribe's Water Quality Standards.

3.12.020 Authority

This Code is enacted pursuant to the Tribe's inherent sovereign authority. The Tribe has a primary interest in the protection, control, conservation, and utilization of Reservation Waters, as exemplified in the Bad River Constitution and recognized by EPA when it granted the Tribe's application for treatment-as-state authority to develop and implement the Tribe's Water Quality Standards. The program authority granted by EPA is in addition to the Tribe's historic hunting, fishing, gathering, and usufructuary rights and its treaty rights. This Code shall not be construed to annul those independent Tribal rights, including the right to sufficient quantities and quality of water to support the flora, fauna, and cultural traditions of the Tribe.

3.12.030 Purpose

Protecting the Reservation Waters is a primary goal of the Tribe. Water pollution endangers the health and welfare of Tribal members and residents of the Reservation. This Code establishes procedures and standards for the review of applications for Tribal Water Quality Certifications under CWA Section 401(a)(1), Tribal Water Quality Reviews under CWA Section 401(a)(2), and Tribal Water Quality Reviews of proposed federal and state permits that may affect the waters of the Bad River Reservation. This Code also establishes procedures for the Tribe's review of federal and state general permits for their consistency with the Tribe's Water Quality Standards.

3.12.040 Delegation and Scope of Responsibility of the Bad River Water Resources Program

(a) Responsibility. WRP shall have primary responsibility for the processing and initial review of applications for Tribal Water Quality Certifications as provided for under CWA Section 401(a)(1), Tribal Water Quality Reviews under CWA Section 401(a)(2), and Tribal Water Quality Reviews for proposed federal and state permits for Off- Reservation discharges that may affect Reservation Waters.

In performing their duties under this Code, the WRP and the Director may consult with other Tribal agencies, including the Tribal Historic Preservation Office, as appropriate.

(b) Discharges that Originate on the Reservation - Federal Permits. The Tribal Council is authorized to issue Tribal Water Quality Certification(s) to any applicant for a federal permit or license for discharges that originate or will originate within the Reservation. This authority pertains to all activities within the external boundaries of the Bad River Reservation regardless of land ownership. Non-Tribal as well as Tribal members are required to obtain a Tribal Water Quality Certification for discharges within the exterior boundaries of the Bad River Reservation.

(c) Off-Reservation Discharges that may Affect Reservation Waters - Federal Permits. The Director is authorized to communicate with the federal government regarding concerns with or objections to discharges that may affect Reservation Waters, to request a hearing with regard to such discharges, and to appear on behalf of the Tribe at such hearings.

(d) Off-Reservation Discharges that may Affect Reservation Waters - State Permits. The Director is authorized to communicate with the State where a potential discharge may originate and with EPA regarding concerns with or objections to potential discharges that may affect Reservation Waters, to request hearings with regard to such discharges, and to appear on behalf of the Tribe at such hearings.

(e) Permits and Licenses Reviewed. The Tribe's Water Quality Certification reviews and Water Quality Reviews shall be conducted to assess potential impacts to Reservation Waters associated with activities under proposed federal or state permits or licenses including, but not limited to, the following:

(1) "Dredge & Fill" Permits under CWA Section 404 including Nationwide Permits, General Permits, Letters of Permission, and Individual Permits;

(2) Discharge Permits under CWA Section 402 including all permits for discharges from point sources and permits for industrial and construction activities disturbing one (1) or more acres;

(3) Federal Energy Regulatory Commission hydropower licenses and related approvals;

(4) Rivers and Harbors Act § 9 and § 10 permits for activities that have a potential discharge into navigable waters;

(5) State Pollution Discharge Elimination System permits;

(6) State storm water permits;

(7) State permits regarding wetland impacts;

(8) State high-capacity well permits;

(9) State General Permits when adoption of such a permit may affect the quantity or quality of Reservation Waters.

3.12.050 Reservation of Rights

The Tribe reserves the right to amend or repeal all or any part of this Code at any time. There shall be no vested private right of any kind created by this Code. All the rights, privileges, or immunities conferred by this Code or by acts done pursuant thereto shall exist subject to the power and determinations of the Tribe. Nothing in this Code shall be construed to constitute a waiver of the sovereign immunity of the Tribe or consent to the jurisdiction of any government or forum not expressly authorized to exercise jurisdiction under this Code.

3.12.060 Interpretation

The provisions of this Code shall be interpreted in a manner that is consistent with the Tribe's Water Quality Standards, as now or hereafter amended, and with applicable provisions of the CWA and its regulations. The provisions of this Code shall be interpreted in a manner consistent with the Tribe's conservation ethic, its history and culture of revering pure water as sacred, and its peoples' dependence on the health of the Reservation Waters including for securing food, medicine, and protecting the Tribe's political integrity, economic security, and health and welfare.

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

(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.

3.12.080 Inspection of a Facility or Activity That Does Not Require an Operating License or Permit

(a) Inspection of a facility or activity that does not require an operating license or permit. Where any facility or activity has received a Water Quality Certification pursuant to Section 3.12.070 in connection with the issuance of a license or permit for construction, and where such facility or activity is not required to obtain an operating license or permit, the WRP shall be afforded the opportunity to inspect such facility or activity prior to its initial operation for the purpose of determining if the manner in which such facility or activity will be operated or conducted will violate the WQS.

(b) Notification to licensing or permitting agency. After an inspection pursuant to this section.a, the WRP shall make a recommendation to the Director regarding whether operation of the proposed facility or activity will violate the WQS. If the Director determines that operation of the proposed facility or activity will violate the WQS, he or she shall so notify the applicant and the licensing or permitting agency and shall include recommendations as to remedial measures necessary to bring the operation of the proposed facility or activity into compliance with such standards.

(c) Termination of suspension. Where a licensing or permitting agency, following a public hearing, suspends a license or permit after receiving the Director's notice and recommendation pursuant to Section 3.12.080(b), the applicant may submit evidence to the Director showing the facility's or activity's operation or conduct thereof has been modified so as not to violate the WQS. If the Director determines that WQS will not be violated, he shall so notify the licensing or permitting agency.

3.12.090 Review of a Facility or Activity That Requires a Separate Operating License or Permit

(a) Review of a facility or activity that requires a separate operating license or permit. If the WRP received notice of a federal license or permit-or renewal of a federal license or permit-required for the operation of a facility or activity that has received a Water Quality Certification with respect to the construction, the WRP shall review such notice and request any information needed to determine whether the operation of the facility or activity under the license or permit will comply with the WQS. Within the time allotted by the relevant federal regulation, and after reviewing relevant information, the WRP shall make a recommendation to the Director regarding whether or not there is reasonable assurance that there will be compliance with the WQS because of changes since the construction license or permit certification was issued regarding:

(1) the construction or operation of the facility or activity;

(2) the characteristics of the waters into which such discharge is made;

(3) the water quality criteria applicable to such waters; or

(4) applicable effluent limitations or other requirements.

Within the time allotted by the relevant federal regulation, the Director shall notify that agency if he or she determines that there is no longer reasonable assurance that there will be compliance with the WQS.

3.12.100 Water Quality Review Procedures for Discharges That Originate Off-Reservation (Federal Permits/Licenses)

The Tribe shall evaluate requests for Tribal Water Quality Review under CWA Section 401(a) (2) regarding proposed federal licenses or permits pertaining to discharges originating Off- Reservation that may affect Reservation Waters pursuant to the following procedures:

(a) Notification. The EPA, USACE, and other federal agencies shall notify the WRP if a permit or license is requested, including coverage under a General Permit, for a discharge that originates Off-Reservation and may affect the quality of Reservation Waters.

(b) Monitoring. To the best of the WRP's ability given resource and time constraints, the WRP shall monitor proposed federal permits or licenses relating to discharges that originate Off-Reservation and may affect Reservation Waters. If the WRP learns of such proposed permits, licenses, or such discharges, the WRP shall contact the EPA and the permitting or licensing agency to indicate the potential effect on Reservation Waters and therefore that the requirements of this Code and CWA Section 401(a)(2) must be met.

(c) Completeness Determination. Upon receipt of notification from a federal agency or otherwise becoming aware of a potential discharge that originates Off-Reservation that may affect Reservation Waters, the WRP shall evaluate the completeness and accuracy of the available information regarding the proposed discharge. If any information needed to evaluate the potential impact of the proposed discharge on Reservation Waters is not available to the WRP, it may request that information from EPA, the federal permitting or licensing agency, or the applicant.

(d) Water Quality Review, Recommendation, and Decision. The WRP shall conduct a Water Quality Review to analyze whether the proposed Off-Reservation discharge will result in a violation or violations of the Tribe's WQS or may adversely affect the quality of Reservation Waters, and will provide a recommendation to the Director regarding how to respond to the application and the basis for that recommendation. The Director will then make one of two decisions:

(1) To notify EPA and the permitting or licensing agency that the Tribe does not object to the issuance of the permit or license; or

(2) To notify EPA and the permitting or licensing agency of the Tribe's objection to the issuance of the permit or license for the Off-Reservation discharge and the basis for such objection. The objection will be in writing and will include a request for a public hearing on the matter.

In accordance with CWA Section 401(a)(2), the Director's decision regarding whether a proposed Off-Reservation discharge will affect Reservation waters in a manner that will violate the Tribe's WQS shall be made and communicated to the EPA and the permitting or licensing agency within sixty (60) days of receipt of notification of the proposed Off-Reservation discharge.

(e) Communication Regarding Objection. In the event that the Director communicates an objection to the EPA, the Director or the WRP shall appear at any public hearing held related to the objectionable permit or license and shall provide such written or verbal information as they determine necessary or advisable to protect Reservation Waters.

3.12.110 Water Quality Review Procedures for Discharges That Originate Off-Reservation (State Permits/Licenses)

The Tribe shall make determinations and provide notifications regarding proposed state licenses or permits pertaining to Off-Reservation discharges that may affect Reservation Waters, as provided under the 1974 WDNR/EPA Memorandum of Agreement, pursuant to the following process:

(a) State Provision of Information. The WRP shall request that the State provide it with: (1) water-quality-based-effluent-level memoranda used to prepare the proposed permit decisions when those memoranda are prepared; and (2) copies of the proposed permit decisions at the same time they are provided to applicants. If possible, the Tribe shall enter into a Memorandum of Understanding or other agreement with the State for it to provide the above documentation to the Tribe on the above schedule.

(b) Applications. The State shall provide the WRP copies of the proposed permit decisions, including decisions regarding coverage under a General Permit or issuance of an Individual Permit, no later than when proposed permit decisions have been publicly noticed.

(c) Review Requests. The State shall provide notification of the proposed permits to be reviewed 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

(d) Monitoring. To the best of the WRP's ability given resource and time constraints, the WRP shall monitor proposed state permit processes relating to discharges that may affect Reservation waters. If the WRP learns of such proposed permits, the WRP shall contact the State and EPA to indicate the potential effect on Reservation waters and therefore that the requirements of this Code and the WDNR/EPA Memorandum of Agreement must be met.

(e) Completeness Determination. Upon receipt of notification from the State or otherwise becoming aware of a proposed permit related to a discharge that may affect Reservation Waters, the WRP shall evaluate the completeness and accuracy of the available information regarding the proposed discharge. If any information needed to evaluate the potential impact of the proposed discharge on Reservation waters is not available to the WRP, it may request the needed information from the State or the applicant.

(f) Water Quality Review, Recommendation, and Decision. The WRP shall conduct a Water Quality Review to analyze whether the proposed discharge originating Off- Reservation will result in a violation or violations of the Tribe's WQS or have other effects on Reservation Waters, and will provide a recommendation to the Director regarding how to respond to the State including the basis for that recommendation. The Director will then make one of three possible decisions:

(1) To direct the WRP to notify the State that it does not have concerns with the proposed permit;

(2) To direct the WRP notify the State and the EPA of the Tribe's concerns with the proposed permit based on impacts to the Reservation Waters, the basis for such concerns, and any recommendations to address the concerns. The WRP shall provide the concerns and recommendations to the State in writing and may include a request for a public hearing on the matter; or

(3) To direct the WRP to notify the State of recommendations regarding the proposed permit even if the discharge is not anticipated to result in a violation of the Tribe's WQS. The recommendations will be in writing and may include a request for a public hearing on the matter.

(g) Timeline. All submittals shall be made to WDNR within thirty (30) days of the publication of public notice related to the proposed permit.

(h) State Response. If the State does not accept, in whole or in part, any of the Tribe's recommendations regarding the proposed permit, the State shall immediately notify the Director in writing of the reasons for doing so. Upon receiving such notice, the Director shall meet with the WRP to determine whether discussions with the State or EPA are advisable to protect Reservation Waters. If the Director determines that additional discussions with the WDNR and/or EPA are advisable, the Director or the WRP shall contact the WDNR and/or EPA regarding the proposed permit and the changes needed to protect the Reservation Waters. The Director may request EPA's involvement as described in 40 CFR 131.7 to address issues that may arise because of differing WQS on common bodies of water.

3.12.120 Water Quality Review Procedures for General Permits

(a) General Permit Review. When developing General Permits or modifications to General Permits that may apply to potential projects that could result in discharges affecting Reservation Waters, federal agencies, including but not limited to the USACE and EPA, and state agencies, including but not limited to WDNR, shall provide the proposed General Permit or the proposed modification to the General Permit to the WRP for Water Quality Review.

(b) General Permit Initial Contact. Within 120 days of the passage of this Code, the WRP shall provide in writing a list of General Permits it will review to applicable federal and state agencies.

(c) General Permit Monitoring. To the best of the WRP's ability given resource and time constraints, the WRP shall monitor proposed federal and state proposed General Permits and proposed modifications to General Permits that could apply to proposed activities potentially effecting Reservation Waters. If the WRP learns of such proposed General Permits or proposed modifications to General Permits, the WRP shall contact the relevant federal or state agency to indicate the potential effect on Reservation Waters, and therefore that the requirements of this Code must be met.

(d) General Permit Water Quality Review. Upon receipt of the proposed General Permit or proposed General Permit modification, the WRP shall evaluate whether it provides for adequate protection of the Reservation Waters including protection against violations of the Tribe's WQS. If any information is needed to evaluate whether the proposed General Permit or proposed modification to General Permit adequately protects Reservation Waters, including protection against violations of the Tribe's WQS, the WRP may request that needed information from the relevant federal or state agency and may also request to meet and confer with the relevant agency.

(e) Water Quality Review, Recommendation, Decision, and Determination. The WRP shall conduct a Water Quality Review to analyze whether the proposed General Permit or proposed modification to General Permit adequately protects Reservation Waters, including protection against violations of the Tribe's WQS, and will provide a recommendation to the Director regarding how to respond to the federal or state agency including the basis of that recommendation. The Director will then make one of two possible determinations:

(1) To direct the WRP to notify the federal or state agency that it does not have concerns with the proposed General Permit or the proposed modification to the General Permit; or

(2) To direct the WRP to notify the relevant federal or state agency of the Tribe's concerns with the proposed General Permit or modification to the General Permit based on impacts to the Reservation Waters, the basis for such concerns, and any recommendations to address such concerns. The WRP shall provide the concerns and recommendations to the federal or state agency in writing and may request a meeting with the relevant federal or state agency regarding the matter to protect the Reservation Waters.

Chapter 3.13 Commercial Fishing Regulations

3.13.010 Findings

The Tribal Council finds that the fisheries of the Bad River Tribe, both on the reservation and in Lake Superior, constitute important communal resources possessed by the Tribe as a whole. The Bad River Tribe has a long history of lake and river fishing and a long history of respect for the fish its members pursue. Both before and after the treaty era, Bad River members fished for subsistence, consuming some of the fish they caught, and selling, on a subsistence level, others. Tribal members have also fished for market on a commercial scale, and the time is not so far past when commercial fishing wharves lined the Bad River at Old Odanah, home port to member-owned fishing steamers.

The Tribe's interests in the fish of the reservation and of the Lake continue to today. Today's interest is to see that the fish populations survive for harvest tomorrow, and into generations yet unseen. The Tribe's interest is also to provide a source of subsistence - for home use consumption and also for small scale market activity - to its members. Finally, the Tribe's interest is to provide a stable, protected source for the livelihood of those of its members who pursue the Lake's fish on a commercial scale.

To meet these interests, the Tribe has embarked on a cooperative management program with the Red Cliff Band of Lake Superior Chippewas and the Wisconsin Department of Natural Resources. It is only through the joint efforts of the three sovereigns with rights in the Lakes' resources that effective regulation and equitable sharing of the resource can be achieved. This chapter is therefore promulgated.

3.13.020 Definitions

(a) "Agreement" means the Lake Superior Management Agreement of April 7, 1986, as amended by Amendment #1 of 1991.

(b) "Commercial licensee" means a tribal member who has purchased a commercial license from the Conservation Department.

(c) "Conservation Department" means the Tribe's conservation department, including any tribal warden or member of the biological staff.

(d) "Fish" under this chapter refers to any fish taken for commercial or home use purposes.

(e) "Fisheries Office" means the Bad River Fisheries Office.

(f) "Fisherman" means any tribal member engaged in fishing whether a commercial licensee or not.

(g) "Fishing" under this chapter is defined as taking a fish with a net, hand, hook and line, or spear.

(h) "Fishing day" means any day during the open season for commercial fishing of lean lake trout and whitefish.

(i) "Immediate family" means, for purposes of this chapter only, spouse, mother, father, son, daughter, step-son, step-daughter, grandparent, and grandchild.

(j) "Member" means an enrolled member of the Bad River Band of Lake Superior Tribe of Chippewa Indians.

(k) "Reservation" means the Reservation of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(l) "State conservation warden" means a warden of the Wisconsin State Department of Natural Resources.

(m) "Tagging" is defined as affixing a tag to a fish and locking it securely.

(n) "Trap net" means a device constructed of netting, which may employ wings or wings and leads, directing the movement of fish through a tunnel of netting into inner hearts or built-in fore bays wherein the fish are trapped by their own movement. Such nets may be referred to as shallow trap nets, submarine trap nets, or deep-water trap nets.

(o) "Tribal Council" means the governing body of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(p) "Tribal Court" means the Tribe's tribal court.

(q) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(r) "Valid tag" means a lean lake trout tag issued for use during the season in which it is used, and used by one authorized to use it.

3.13.030 Applicability

The provisions of this chapter apply to all members, whether a commercial licensee or not, fishing in the Wisconsin waters of Lake Superior.

3.13.040 Non-Commercial Species

(a) No member may sell any fish of any of the following species: brown trout, brook trout, rainbow trout, splake, coho salmon, Chinook salmon, Atlantic salmon, lake sturgeon, smallmouth bass, northern pike, panfish, and, except as provided in (b), below, perch.

(b) A member harvesting perch as a small boat fisherman in the Chequamegon Bay within one mile of the Reservation shore, pursuant to an assessment agreement with the Conservation Department, may sell the perch so harvested.

3.13.050 Licenses

(a) No member may fish commercially in the Wisconsin waters of Lake Superior without a commercial fishing license unless he or she is an assistant on a commercial fishing boat whose owner has a commercial fishing license.

(b) Upon application and payment of the license fee, and subject to subsection (c), below, any member eighteen years of age or older complying with this chapter shall be issued a commercial fishing license provided that such person does not have his or her on-reservation or off-reservation fishing rights revoked or suspended pursuant to a Tribal Court Order.

(c) There shall be a limited entry to large boat fishers. No more than seven large boat licenses shall be issued in any one fishing year, with all license holders from the previous year having priority over all other applicants.

(d) Fishing licenses shall be issued for one year from November 28 of each year and shall not be transferred or altered.

(e) License classifications are as set forth below. License fees and maximum lean lake trout tag allocations for each classification shall be set by resolution of the Tribal Council upon recommendation of the Conservation Department and shall remain as set unless modified by further resolution of the Tribal Council.

(1) Large boat. In order to obtain a large boat license, a member must possess at the time of application a boat in operational condition of at least 20 feet in length with a functional net lifting device installed. A large boat license is valid only for use on the specific boat identified in the member's application, except in case of temporary hardship or breakdown when the Fisheries Office is notified of the alternate boat on which the license will be used. A licensee may request transfer of the license to another boat in his possession at any time during the fishing year.

(2) Small boat III. In order to obtain a small boat III license, a member must possess at the time of application a boat in operational condition.

(3) Small boat II. In order to obtain a small boat II license, a member must possess at the time of application a boat in operational condition.

(4) Small boat I. In order to obtain boat license, a member must possess at the time of application a boat in operational condition. No fee shall be charged for a small boat I license. No more than 100 lean lake trout tags shall be issued annually to a small boat I licensee.

(f) No member shall participate in any transaction by which a license, lean lake trout tags, effort allocation, or any interest therein, is practically transferred to a non-member.

3.13.060 Net Mesh Size

No member shall fish in waters less than 35 fathoms deep using net with mesh size less than 4 1/4 inches (stretch measure), except for home use purposes and in strict compliance with all home use regulation, or except within one mile of shore of the Reservation.

3.13.070 Net Depth

(a) October 1 - November 27: No member shall set a net with mesh size less than 4 1/4" stretch measure in waters less than 35 fathoms deep, except within one mile of shore of the Reservation.

(b) No member shall set a net unless it is sunk sufficiently deep so as not to present a hazard to navigation.

3.13.080 Net Attendance

(a) No member shall fail to lift any net he or she has set any less frequently than

(1) Once every 72 hours in open water less than 16 fathoms deep.

(2) Once every 120 hours in open water 16 to 35 fathoms deep.

(3) Once every 240 hours in open water more than 35 fathoms deep.

(4) Once every 120 hours in commercial ice fishing.

(b) Any member raising extreme adverse weather as a defense to a charge under this section assumes the burden of proving by clear and convincing evidence that extreme adverse weather made compliance with this section unduly hazardous.

3.13.090 Net Marking

(a) Each gang of nets shall be marked with a visible buoy on each end, which shall display the commercial fishing license number or the identification number of the fisherman who has set the gang.

(b) Each gang of large mesh gill nets placed in waters less than 55 fathoms deep shall include an informational tag on the outside buoy line ten feet below the water's surface or on a tag placed in a secured pocket on the outside buoy flag. Each tag shall state the date and time on which the gill net was set, the length of the gang of nets, the commercial fishing license number of the fisherman, and the fisherman's initials.

3.13.100 Trap Net Regulations

(a) A maximum of twelve (12) trap nets may be set for each trap net permit.

(b) Trap nets may be set at any depth.

(1) If, during monitoring, a disproportionate number of undersize fish are killed from lifting in deep water, the fisherman shall reset in shallower water.

(2) The Tribal fisheries biologist may declare a depth limit in his discretion for protection of the resources. Such limit shall become effective upon the fisheries biologist's mailing or delivery if in person of written notice of such depth limit to fishermen holding a trap net permit.

(d) Trap nets may not be set within one-quarter (1/4) mile of any other entrapment net.

(e) Trap nets shall be removed from the water or shall have the holding pot portion rendered inoperable during the closed season for lake trout and whitefish (October 1 through November 27). All webbing must be removed within fourteen (14) days after the season ends.

(f) All dead lake trout must be kept and tagged.

(g) The location and catch of each species of fish (pounds for harvested fish and numbers for released fish) from trap nets shall be reported for each net lifted in accordance with Section 3.13.120, below.

(h) Buoys or entrapment gear shall bear the commercial fisherman's identification number.

(i) Fishermen wishing to utilize trap net gear shall have a big boat license and shall not receive additional lake trout tags specifically for trap net fishing.

This section is added pursuant to Resolution No. 12-5-01-193.

3.13.110 Closed Season

No whitefish or lean lake trout shall be taken by a commercial licensee from October 1 through November 27 except for home use consumption and in strict compliance with all home use regulations.

3.13.120 Reporting

(a) Reporting periods shall end on alternating Fridays, with the first such period of each fishing year ending on the second Friday of December. Each commercial fishing licensee shall submit a report as prescribed by this section no later than 4:00 p.m. on the third working day after the last day of each reporting period.

(b) Each commercial fishing licensee shall report to the fisheries office, on forms prescribed by that office, the number of each kind of fish taken or killed in the fishing operation, the kind and amount of fishing gear employed, the length of time (i.e. number of nights) each unit was fished, verification of the number of fish sold, and any other data the Fisheries Office may require in the performance of its duties. Catch and effort shall be reported by the date and by grid location.

(c) Reports shall be submitted for each reporting period regardless of whether or not any fish were taken or any fishing done during the period. If no fish were taken or fishing done, that fact will be reported.

(d) If two or more licensees fished together, the report shall be made by the vessel owner, or in the case of ice fishing or boats owned in common by two or more licensees, the reported catch shall be made by one licensee.

(e) The Conservation Department may refuse the issuance of tags to any commercial fishing licensee who has not filed a report as required by this section.

(f) Home use fisherman shall report to the fisheries office, on forms prescribed by that office, the number of each kind of fish taken or killed in the fishing operation, and the kind and amount of fishing gear employed, and any other data the fisheries office may require in the performance of its duties. Home use fisherman are not required to submit for a reporting period if no fish were taken or fishing done.

3.13.130 Quota on Lean Lake Trout

(a) The Fisheries Office, with the approval by resolution of the Tribal Council, shall set the tribe's annual quota for lean lake trout, in cooperation with the Red Cliff Band of Lake Superior Chippewas and the State of Wisconsin.

(b) The commercial fishery quota for lean lake trout shall be the tribe's quota minus an amount to be determined by the Fisheries Office not to exceed 1,000 set aside for the home use fishery.

(c) The Fisheries Office, upon consultation with representatives from each commercial license classification, shall divide the commercial fishery quota among the classifications and shall issue tags to individual fishermen. The Fisheries Office shall reserve an ample number of tags for small boat fishermen. The Fisheries Office may, at its discretion, reserve a portion of the quota and withhold a quantity of tags for future distribution, and deny or limit the issuance of tags to individual fishermen who, based on past performance and present capability, are unlikely to fully utilize them. Any tags un-utilized by August 1 may be redistributed by the Fisheries Office to any big boat or small boat fisherman, taking into account the maximum tag allocations to small boat fishermen, to assure the tags' maximum utilization.

3.13.140 Effort Limitations

(a) No commercial licensee shall set net in excess of the effort allocated to him for the fishing year.

(b) Each commercial licensee may submit, no later than five working days before the start of the fishing year, harvest goal declarations for each of the year's three seasons. Tag and effort allocation will be issued based on the fisherman's declaration. If a fisherman does not file a harvest goal declaration, the fisheries office will assign a percentage of the fisherman's annual effort allocation to each of the three seasons. Effort shall be allocated to individual licensees pursuant to the Agreement and based upon the number of tags issued to the licensee under Section 3.13.130.

(c) Effort not used in a season will be carried over for each fisherman to the next season for the fishing year, using the formula set forth in Appendix C of this chapter.

(d) If not obtained personally from the fisheries office prior to the start of each season, seasonal effort allocations for each licensee shall be sent by regular first class mail to the licensee's address on file with the fisheries office and shall be deemed received by the licensee.

(e) No licensee may transfer any of his or her effort allocation to any other person except by a written memorandum, signed by both the transferor and transferee, and dated and filed with the Fisheries Office, prior to the transfer. No transfer or claim of transfer of fishing effort may be raised as a defense in a prosecution for exceeding fishing effort, except where the written transfer was filed prior to the date of the alleged offense. No transfer may be made to anyone other than a Bad River commercial licensee.

3.13.150 Refuges

(a) The following area refuges shall be closed to all fishing unless specifically provided for in subparagraph (b):

(1) Gull Island Shoals Refuge as set forth in Appendix A of this chapter. Closed all year.

(2) Devils Island Refuge as set forth in Appendix A of this chapter. Closed all year.

(b) The following fisheries shall be allowed under the following conditions in the refuges set forth in (a):

(1) Menominee can be fished from November 5 through December 5 employing nets of mesh size no greater than 2 3/4 inches stretch measure within 7 fathoms of water adjoining Michigan Island.

(2) Herring can be fished employing nets of mesh size no greater than 3 inches stretch measure south of a line running northwesterly from the northern tip of Devils Island from November 15 through January 15.

(c) Appendix A of this chapter is incorporated herein by reference, with the same force and effect as if set out in full.

3.13.160 Restricted Areas

(a) The following areas are closed to net fishing except as provided under subparagraph (b):

(1) Minnesota-Iron River Area out to a depth of 35 fathoms described in Appendix B, par. 5 of this chapter.

(2) Iron River-Cranberry River Area out to a depth of 15 fathoms described in Appendix B, par. 4, of this chapter.

(3) Cranberry River-Quarry Point Area out to a depth of 12 fathoms, more particularly described in Appendix B, par. 3, of this chapter.

(4) Siskiwit Bay from Quarry Point to Squaw Point, more particularly described in Appendix B, par 1, of this chapter.

(5) Port Superior Area out to a depth of 9 fathoms August 16 through May 31, more particularly described in Appendix B, par. 6 of this chapter.

(6) Chequamegon Bay Area, more particularly described in Appendix B, par. 10 of this chapter.

(7) Hagens Beach Area from June 1 through August 31, more particularly described in Appendix B, par. 8, of this chapter.

(8) Saxon Harbor Area, more particularly described in Appendix B, par. 9, of this chapter.

(9) Bark Bay Area, more particularly described in Appendix B, par. 2 of this chapter.

(10) Sand Cut Area, more particularly described in Appendix B, par. 7 of this chapter.

(b) The restrictions in (a) are subject to the following exceptions:

(1) Bark Bay shall be open from April 1 through May 31 and for entrapment nets for whitefish only the last period of the fishing license year.

(2) Nets of mesh size are greater than 3 inches stretch measure shall be allowed in waters greater than 15 fathoms, between the mouth of the Brule River and the mouth of the Iron River from November 15 through December 31.

(3) Tribal members may harvest within 1 1/2 miles off the Reservation borders from Chequamegon Point eastward to the eastern border of the Reservation.

(4) Saxon Harbor Area is open from ice out to Friday of Memorial Day weekend, unless the tribe earlier reaches a harvest of 731 lean lake trout, in which case the Conservation Department shall order the area closed, and no further fishing will be permitted.

(5) Saxon Harbor Area is open from November 15 through December 15 for a herring fishery employing nets no less than 2 1/2 inches and no greater than 3 inches stretch measure, at 14 fathoms or below.

(c) Appendix B of this chapter is incorporated herein by reference, with the same force and effect as if set out in full.

3.13.170 Tagging of Lean Lake Trout

(a) All lean lake trout of legal size taken by a commercial licensee (including a subsistence fisherman who intends to introduce the fish into commerce) shall be tagged in conformance with Chapter 3.06, Bad River Ordinances, except that where in conflict, the provisions of this chapter supersede those of Chapter 3.06.

(b) All lean lake trout caught in gill nets in waters less than 55 fathoms deep shall be kept and tagged, except that live lake trout caught from November 28 through March 30 may be returned to the water.

(d) All lean lake trout harvested by a fisherman on ice shall be tagged prior to transport with a valid tag issued to the fisherman.

(e) All lean lake trout which are filleted prior to transport to the ultimate retail consumer shall be accompanied by no fewer than one locked and cut tag for every two fillets.

(f) Extreme adverse weather or bodily injury is a defense to a charge of failure to tag. The burden of proof by clear and convincing evidence is on any fisherman who raises as a defense extreme adverse weather or bodily injury. Failure to use available means of notifying tribal wardens in advance, and the fact that fish were dressed shall constitute prima facie evidence that the failure to tag was not due to extreme adverse weather or bodily injury.

(g) No lean lake trout harvested in Michigan shall be docked in Wisconsin, unless tagged with a valid tag issued to the fisherman showing the fish to be harvested in Michigan.

(h) No combined catch of Wisconsin and Michigan lean lake trout shall be docked in Wisconsin.

(i) No member shall lift nets in the Wisconsin waters of Lake Superior with Michigan lean lake trout on board.

(j) No member fishing in the Saxon Harbor Area shall have tags for Michigan lean lake trout in his or her possession at the time.

(k) No member shall transfer any tags to another person unless

(1) that person is employed by the member is acting as an assistant of the member and has not had his or her on-reservation or off-reservation fishing rights revoked or currently suspended by the Tribal Court, or

(2) unless the transferor notifies the Conservation Department within five days of the transfer, and the person to whom the tags are transferred is a member, possessing a large boat license under this chapter, and has not had his or her on-reservation or off-reservation fishing rights revoked or currently suspended by the Tribal Court.

(l) No member shall use tags for lean lake trout on any boat other than one owned by a member of the Tribe.

3.13.180 Home Use

(a) All provisions of this chapter apply to home use fishermen unless by their terms or by inconsistency with a specific provision of this section they do not apply.

(b) Net mesh size: No tribal member fishing for home use shall use net with size greater than 2 3/4 inches (stretch measure) and less than 4 1/2 inches (stretch measure).

(1) From November 28 through September 30, no member shall set more than a total of 800 feet of net at any time.

(2) From October 1 through November 27, no member shall set more than a total of 500 feet of net at any one time.

(d) Net placement: From October 1 through November 27, no member shall place any net part of which extends more than 1,320 feet from the shoreline into waters adjacent to the Reservation.

(e) No members may sell any fish harvested pursuant to the provisions of this section.

(f) A commercial licensee may not fish home use nets unless specifically authorized by the tribe's fisheries specialist. Any home use nets so authorized must be marked pursuant to Section 3.13.090, and in addition bear the words "home use". In no case may a commercial licensee fish commercial and home use nets at the same time.

(g) All fish taken by a home use fisherman shall be tagged in conformance with Chapter 3.06, Bad River Ordinances, prior to transportation of the fish off of the reservation, except that where in conflict, the provisions of this chapter supersedes those of Chapter 3.06.

3.13.190 Biological Sampling

(a) The catch of all fishermen is subject to reasonable sampling by the Conservation Department, or by employees of the Great Lakes Indian Fish and Wildlife Commission.

(b) Notwithstanding the provisions of any other section of this chapter, the Conservation Department may, by written authorization, and under the terms and conditions established by it, permit assessment fishing by any commercial licensee at any specified time and place.

(c) If sampling requires taking legally harvested fish or impairs their market value, the fisherman shall be reimbursed the reasonable value of the loss.

3.13.200 Assistants

(a) No person who is not a member of a Chippewa tribe with fishing rights in Lake Superior or who has had his or her on-reservation or off-reservation fishing rights revoked or suspended shall participate in the taking of any treaty protected fishery resource, and no member shall be a party to such taking by a nonmember, except as specifically provided by this section.

(b) Members of the immediate family of a tribal member may assist the tribal member, in his or her presence, in the commercial taking of treaty-protected fish in Lake Superior.

3.13.210 Enforcement

(a) No fisherman shall prevent the Conservation Department from inspecting nets and vessels used in his or her fishing operation, or any fish taken by him or her upon the request of the Conservation Department. Fishermen shall similarly allow state wardens to inspect when they are accompanying a representative of the Conservation Department.

(b) The acceptance of a license, identification number, or lean lake trout tags constitutes the consent of the fisherman to inspections as provided in subparagraph (a), above.

(c) No fisherman shall refuse a demand by the Conservation Department to allow boarding and search, or to search items used in ice fishing, or to search a motor vehicle if the Department has probable cause to believe that the fisherman has violated on that day a provision of this chapter or that a violation is then occurring, nor shall any fisherman refuse to allow the participation of any state warden in any such boarding or search when done under the direction of the Conservation Department or pursuant to subsection (f).

(d) No fisherman shall refuse the demand of the Conservation Department that the fisherman proceed to a port designated by the Department, if such port is within two hours travel time, for the purpose of boarding and inspection.

(e) No fisherman shall refuse an order of a state conservation warden to remain on site until the arrival of the Conservation Department, if the state warden requests permission to search the vessel, the fisherman refuses, and the state warden informs the fisherman of his or her reasons for believing that a violation has occurred and of his or her efforts to contact tribal authorities.

(f) No fisherman shall refuse to allow state conservation warden to board and search his boat if the Conservation Department is unable to arrive at the boat within 1« hours of contact by the state warden, or within « 1 hour of the fisherman's arrival in port pursuant to an order under subparagraph (d), above.

(g) No fisherman shall refuse to allow a state conservation warden to search on the ice, or to search off-reservation a motor vehicle, provided the warden has probable cause to believe that a violation has occurred or is occurring and that evidence thereof may be found by such search, and provided further that the warden is unable to contact and secure tribal authorities to conduct such search.

(h) No member shall resist or interfere with any lawful inspection, search or seizure by the Conservation Department or a state conservation warden.

(i) Seizure is permitted of any evidence of a suspected violation found pursuant to any search authorized by law, and of any gear set or found in an area where such gear is illegal under this chapter.

(j) Wisconsin State Department of Natural Resources Wardens are hereby deputized to enforce the provisions of this chapter, and to cite members in Tribal Court for violation.

(k) Red Cliff tribal wardens and Great Lakes Indian Fish and Wildlife Commission wardens are hereby deputized to enforce the provisions of this chapter and to cite members in Bad River Tribal Court for violation. Reference in this section to the Conservation Department shall also include Red Cliff and Great Lakes Indian Fish and Wildlife Commission wardens.

3.13.220 Penalties

(a) The Bad River Tribal Court shall have exclusive jurisdiction of all violations of this ordinance.

(b) Unless otherwise provided, the Court may impose the following maximum penalties for each violation of this chapter:

(1) A forfeiture not to exceed $5,000.00.

(2) Suspension or revocation of any commercial fishing license for a period not to exceed one year.

(3) Suspension of off-reservation fishing rights for a period not to exceed one year.

(4) Denial of lean lake trout tags for a period not to exceed one year.

(5) Forfeiture of all fish taken illegally and any proceeds therefrom obtained under par. (e) below. The Court shall order the distribution of any fish so forfeited so that neither the fish nor the proceeds of any sale thereof inures to the benefit of the member from whom seized, his agents or his immediate family members.

(d) For any violation of Section 3.13.210, when the member has been convicted for a previous violation within a five-year period, the Court shall impose a minimum penalty of a commercial license suspension for not less than 30 fishing days.

(e) The conservation department shall sell any fish seized under this chapter, after first securing whatever evidence is required for the prosecution of any citations related to the seizure. The Conservation Department shall endeavor to obtain the fair market value of the fish seized, but no liability shall attach to the Department if it makes a good faith effort to obtain such value but fails to do so. The proceeds of any such sale shall be held as segregated funds until the court issues an order as to their disposition. Any warden of the Red Cliff Tribe, the Great Lakes Indian Fish and Wildlife Commission or the Wisconsin Department of Natural Resources seizing fish under this chapter, shall immediately contact the Conservation Department to receive direction under this section.

(f) In any case in which the court orders a money forfeiture, the court shall set a date by which the forfeiture shall be paid, and if the forfeiture is not paid by such date, shall suspend all off-reservation hunting and fishing rights until the forfeiture is paid.

(g) All forfeitures not paid when due shall accrue interest at the rate of 1 1/2 percent per month on the unpaid balance, the first month's interest to be due on the day following the initial due date, and each subsequent month's interest accruing on the same day of each month thereafter.

Appendix A - Refuges

(h) GULL ISLAND REFUGE defined as all waters bounded by a line from the Gull Island light south to the northernmost point of Michigan Island and then proceeding in a southerly direction following the shoreline of Michigan Island to the Michigan Island light, thence southerly towards the center of the mouth of the Bad River in Ashland County to latitude 46° 40', thence due east to the Michigan state line; thence northerly along the state line to latitude 46° 59.3'; from that point due west to longitude 90° 26.5' and thence due south to the Gull Island light, the place of beginning; except that licensed commercial fishers may fish all the area within these external boundaries wherein the lake bottom lies at a depth of 35 fathoms (210 feet) or more; and except in those included waters less than 7 fathoms in depth which immediately adjoin Michigan Island gill nets with a mesh size from 2-3/4" or less stretch measure may be used from November 5 to December 5 for the taking of Menominee whitefish.

(i) DEVILS ISLAND REFUGE defined as all waters wherein the bottom lies at a depth of less than 35 fathoms northerly from a line beginning two miles north of the Outer Island light and extending westerly to the north end of North Twin Island, thence along the shoreline to the south end of North Twin Island, thence southwesterly to the north end of South Twin Island, thence northerly to the north end of Rocky Island, thence along the north shoreline to the northwest point of Rocky Island, thence northwesterly to the south end of Devils Island, thence along the shoreline to the north end of Devils Island, thence westerly to a point 2.5 Statute miles north of the York Island Shoal bell buoy.

Appendix B - Restricted Areas

(j) All waters of Siskiwit Bay bounded by the shoreline and a line extending from Roman Point to Squaw Point.

(k) All waters of Bark Bay bounded by the shoreline and a line extending from Roman Point to Bark Point, except from April 1 through May 31.

(l) All waters from a line extending due north from the mouth of the Cranberry River at Herbster, easterly to the Bark Point - Roman point line wherein the bottom lies at a depth of less than 12 fathoms.

(m) All waters from a line extending due north from the mouth of the Iron River, easterly to a line extending due north from the mouth of the Cranberry river at Herbster, wherein the bottom lies at a depth of less than 15 fathoms.

(n) All waters from a line extending due north from the mouth of the Iron River, westerly to the Wisconsin-Minnesota state line wherein the bottom lies at a depth of less than 35 fathoms, except that from November 15 through December 31 gill nets of 3" or less stretch measure may be used in that portion greater than 15 fathoms in depth, east of a line extending due north from the mouth of the Brule River.

(o) All waters from a line extending due east from the breakwall light at Port Superior, southerly along the shoreline to Houghton Point, wherein the bottom lies at a depth of less than 9 fathoms, and those waters within one mile of the mouth of any stream along this shoreline except from June 1 through August 15.

(p) All waters bounded by a line beginning at the Chequamegon Point light on the western end of Long Island extending northeasterly to the southernmost point of Madeline Island, thence due east to the western boundary of Gull Island Shoals refuge, thence southerly along the refuge boundary to latitude 46° 40', thence due west to the mainland shoreline, thence northwesterly along the shoreline to the place of beginning, except within one and one-half mile of the mainland shoreline in Ashland County.

(q) All waters east of Madeline Island between a line extending due east from the southernmost tip of Madeline Island to the western boundary of the Gull Island Shoals refuge and a line extending from the east end of Hagen Road to the western boundary of the Gull Island Shoals refuge from June 1 through August 31.

(r) Saxon Harbor area defined as all waters bounded by a line beginning at the mouth of Graveyard Creek extending due north to the southern boundary of the Gull Island Shoals refuge, thence due east to the Wisconsin-Michigan State line, thence southwesterly along the Wisconsin-Michigan State line to the mouth of the Montreal River, thence westerly along the mainland shoreline to the place of beginning.

(s) All waters of Chequamegon Bay bounded by the shoreline and a line extending from the easterly most tip of Houghton Point, Bayfield County to the Chequamegon Point light on the western tip of Long Island, Ashland County.

Appendix C - Calculation of Seasonal Effort Limitations

The following formulas will be used to calculate seasonal effort limitations based upon seasonal CPE's and the total number of fish available at the onset of each season.

Alternative 1:

Season 1:

Available Individual Quota

------------------------------------------- x 1,000 = Season 1 Effort Limitation

Season 1 CPE

Season 2:

Unused effort from season 1

--------------------------- x Season 1

1,000 CPE

------------------------------------------- x 1,000 = Season 2 Effort Limitation

Season 2 CPE

Season 3:

Unused effort from Season 2

--------------------------- x Season 2

1,000 CPE

------------------------------------------- x 1,000 = Season 3 Effort Limitation

Season 3 CPE

Alternative 2:

Season 1+2:

Available individual Quota

------------------------------------------- x 1,000 = Season 1 + 2 Effort Limitation

Season 1+2 CPE

Season 3:

Unused effort from Season 1+2

--------------------------- x Season 1+2 CPE

------------------------------------------- x 1,000 = Season 3 Effort Limitation

Season 3 CPE

Any unused portion of fish reserved for home use under Section 3.13.130 can be reallocated to the commercial component of the fishery no later than August 1. When and if home use fish are reallocated to the commercial fishery, a sum of 100 fish will be retained from the available balance for home use activity during the remainder of the quota year. The following formula will used to calculate effort limitations for utilization of reallocated home use fish.

Available balance - 100

------------------------------------------- x 1,000 = Effort Limitation for

Season 3 CPE Reallocated Home Use Fish

The effort limitation for reallocated home use fish will then be allocated among individual licensees.

Chapter 3.14 Commercial Fishing in the Western Michigan Waters of Lake Superior

3.14.010 Title

This chapter shall be known as the Bad River Western Michigan Waters of Lake Superior Commercial Fishing Ordinance.

3.14.020 Authority

This chapter is enacted pursuant to Article VI, section 1(y) of the tribe's constitution.

3.14.030 Effective Date

This ordinance shall be effective from the date adopted by the Tribal Council.

3.14.040 Interpretation

The provisions of this ordinance shall be interpreted and applied as minimum requirements applicable to tribal members, and shall be liberally construed in favor of the Tribe. The provisions shall not, however, be deemed a limitation or repeal of any other tribal power or authority.

3.14.050 Repeal of Inconsistent Tribal Ordinances

All ordinances and resolutions inconsistent with this ordinance are hereby repealed. To the extent that this ordinance imposes greater restrictions than those contained in any other tribal ordinance, the provisions of this ordinance shall govern. All other tribal ordinances regulating commercial fishing not inconsistent with the provisions of this ordinance apply to commercial fishing in the subject waters of this ordinance.

3.14.060 Severability and Liability

If any section, provision or portion of this ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this ordinance shall not be affected thereby and shall remain in full force and effect. The Tribe further asserts immunity on its part and that of its agencies; employees, and/or agents from any action or damages that may occur as a result of reliance upon and conformance with this ordinance.

3.14.070 Definitions

(a) "Agreement" means the 1989-90 Michigan Waters of Lake Superior Agreement, signed by the Bad River, Red Cliff and Keweenaw Bay Tribes, as amended December 7, 1989, November 26, 1990, and from time to time thereafter.

(b) "Cooperating Tribe" means any of the Bad River Band of the Lake Superior Tribe of Chippewa Indians, the Keweenaw Bay Indian Community, and the Red Cliff Band of Lake Superior Chippewas if it has adopted an ordinance implementing the Agreement.

(d) "Grids" means the statistical reporting grids established by the Great Lakes Indian Fish & Wildlife Commission.

(e) "Large boat" means a boat 20 feet in length or greater, equipped with a motorized net lifter.

(f) "Licensee" means a member authorized to fish under subSection 3.14.090 of this ordinance.

(g) "Map 8" means Map 8 attached to the Agreement, which map is incorporated by reference herein.

(h) "Member" means a member of the Tribe.

(hn) "Small boat" means a boat in operational condition.

(i) "Tribal conservation department" means the tribe's conservation department.

(j) "Tribal Council" means the Tribe's governing body.

(k) "Tribal Court" means the tribe's court.

(l) "Tribe" means Bad River Band of the Lake Superior Tribe of Chippewa Indians.

3.14.080 Subject Waters

The provisions of this ordinance apply to that area of Lake Superior located within the territory of the State of Michigan ceded by the Treaty of 1842, 7 Stat. 591.

3.14.090 Authorized to Fish

(a) No member shall fish in the subject waters without tribal license. Any member applying for a license shall show to the satisfaction of the Conservation Department that he or she possesses a big boat in operating condition. A license shall allow the licensee to operate only one boat at a time in the subject waters. No more than six licenses shall issued for the subject waters.

(b) The use of assistants is regulated by Section 3.13.190, Bad River Ordinances.

3.14.100 Lake Trout Quota

(a) For each fishing year, the Tribal Council shall issue an individual lake trout tag allocation to each licensee and shall authorize the distribution of lake trout tags to the licensees in numbers corresponding thereto. Quotas shall be set pursuant to the Agreement.

(b) Each lake trout taken shall be tagged before being removed from the permittee's boat.

3.14.110 Closed Season

(a) The fishing season for lean lake trout and whitefish shall be closed from 11:59 p.m. October 31 to 11:59 p.m. November 27.

(b) There is no closed season for chub, herring, or siscowet fishing in water 35 fathoms or deeper.

3.14.120 Closed Areas

No member shall fish in any of the following closed areas as described.

(a) Grids 1511, 1512 and 1413 from Memorial Day to November 28 for lean lake trout and whitefish.

(b) All areas south of the line between East Entry and Point Abbaye.

(1) Copper Harbor: no fishing within a two mile radius of the navigation light at Copper Harbor.

(2) Buffalo Reef: no fishing within a two mile radius of Loran C coordinates 8920-x-31856.4, 8920-y-46687.9.

(3) Traverse Island: no fishing within a two mile radius of the Island.

(4) Huron Islands: no fishing within a two mile radius of any of the islands which constitute the Huron Islands.

(5) Union Bay: no fishing in less than 50 ft. of water within a two mile radius.

(6) Eagle River Shoals: no fishing in less than 25 feet of water within a two mile radius; and

(7) Big Bay Reef: no fishing in less than 25 feet of water within a two mile radius (map 7).

(d) Within a 1⁄2 mile radius of the mouth of each of the following rivers and streams, from April 15 through May 15, and from October 15 through November 15:

Unit

Number (Map 8)

River or Stream

MI-2

Montreal River

Black River

Presque Isle River

Unit

Number (Map 8)

River or Stream

Little Carp River

Big Carp River

Big Iron River

Ontonagon River

Firesteel River

MI-3

West Sleeping River

East Sleeping River

Misery River

Elm River

Graveret River

MI-4

36a

Tobacco River

36b

Traverse River

Falls River

Silver River

Slate River

Ravine River

Huron River

Little Huron River

MI-5

Salmon Trout River

Little Iron River

Big Garlic River

Little Garlic River

Harlow Creek

Dead River

Carp River

Chocolay River

3.14.130 Deleted by Resolution 1-10-07-14 Amendment

3.14.140 Gear Limitations

(a) Gill nets of 4 1⁄2 inch stretched mesh and larger (used for lake trout, siscowet trout, salmon, and whitefish) and gill nets of 2-3/8 to 3 inch stretched mesh (used for herring, menominees, and chubs) shall be legal commercial gear. No other nets stretched mesh size shall be allowed.

(b) No licensee shall set more than 12,000 ft. of large mesh gill nets (4 ½ inch and larger) with a 5% variance in all waters less than 35 fathoms. In waters over 35 fathoms, no licensee shall set more than 20,000 ft. of large mesh gill net.

(d) Nets shall be marked as provided in Section 3.13.090, Bad River Ordinances.

3.14.150 Non-Commercial Species

No member may sell any fish of the following species: rainbow (steelhead) trout, brook trout, or sturgeon.

3.14.160 Reporting

(a) Each permittee shall report the names and addresses of all individuals fishing or helping on his boat to the tribal conservation department.

(b) All commercial fishermen fishing in Michigan waters shall be required to submit monthly catch reports by the 15th day of the following month to a specific designee for each tribe who will forward the information once a month to the Great Lakes Indian Fish and Wildlife Commission, P.O. Box 9, Odanah, Wisconsin 54861. Fishermen are required to report for each day of fishing the location of lift (statistical grid), length of net lifted, mesh size of gill nets lifted, depth of nets, poundage of each fish species caught and sold, and names of identification numbers of individuals fishing with the licensee.

3.14.170 Deputization

Conservation wardens of the Great Lakes Indian Fish and Wildlife Commission are hereby deputized by the Tribal Council to enforce the terms of this ordinance against members.

3.14.180 Cooperation with Wardens, Biologists

(a) No member shall refuse to allow a conservation warden to enter upon and inspect his boat, gear, and catch, nor refuse to allow a biologist employed by any of the cooperating tribes or the Great Lakes Indian Fish and Wildlife Commission to enter upon his boat and take reasonable fish samples.

(b) The tribal biologist or those of the Great Lakes Indian Fish and Wildlife Commission may direct any licensee to fish in a specified area in order to obtain a systematic survey of the fishery throughout the subject waters. Any licensee so directed shall comply therewith.

3.14.190 Tribal Court

The Tribal Court is hereby authorized to adjudicate all matters arising under this ordinance, pursuant to the provisions of the Tribal Court Code.

3.14.200 Schedule of Money Penalties; No Contest

The Tribal Court may adopt a schedule of forfeitures to be imposed by the court upon the receipt of an admission that a violation of this ordinance has occurred, which may be done either in person or in writing. This schedule is not binding as to forfeitures assessed by the Court after adjudicating a violation.

3.14.210 Penalties

Any member found by the tribal court to have violated a provision of this ordinance shall be subject to the following penalties:

(a) For a violation of any provision of this ordinance, a forfeiture of not more than $5,000.00

(b) For a violation of any provision of this ordinance, a suspension or revocation of any license issued under this ordinance, and of any other off-reservation hunting or fishing privileges.

(c) For a violation of any provision of this ordinance, forfeiture of any fish taken in violation of such section or of equipment used in the violation of such section or forfeiture of any proceeds from the sale or other trade of such fish or equipment.

3.14.220 Collection of Money Penalties

Enforcement of the penalties imposed by Section 3.14.200, Section 3.14.210(a), or Section 3.14.210(c) of this ordinance may be had through the collection of penalties from funds of the violator held by the Tribe, through the imposition of community service work requirements in lieu of money payment, through debt collection mechanisms of courts of other jurisdictions or through any other method authorized by tribal ordinance or state law.

3.14.230 Jurisdiction

This tribal court shall have jurisdiction

(a) to determine the validity of this chapter, and

(b) over any action arising from the implementation of this chapter.

Chapter 3.15 Bad River Lake Superior Commercial Fishing Vessel Safety Regulations

3.15.010 Commercial Fishing Vessel Safety Regulations

(a) Purpose and applicability. The purpose of this this chapter is to protect members engagement in commercial fishing activities pursuant to the rights reserved by the Tribe in the Treaty of 1842, 7 Stat. 591, and the Treaty of 1854, 10 Stat. 1109. The provisions of this this chapter apply to any vessel engaged in commercial fishing activities in Lake Superior that is owned or operated by a tribal member who possesses a commercial fishing license or permit from the Tribe. No member shall fail to comply with any requirement set forth in this this chapter.

(b) Relationship to Agreement with Coast Guard. This this chapter shall be construed consistent with the purposes and provisions of the proposed Memorandum of Understanding between the Bad River Band of the Lake Superior Tribe of Chippewa Indians and the United States Coast Guard, as may be amended from time to time, should the Memorandum of Understanding be ratified by the Tribe. Upon its ratification, the Memorandum of Understanding shall be incorporated by reference herein as if set forth in its entirety.

(1) "Commercial Fishing Vessel" or "Vessel"- A boat owned or operated by a tribal member that is that engaged in commercial fishing activities under tribal license or permit. "Commercial Fishing Activities" - Any activity undertaken while a tribal

(2) member is operating a commercial fishing vessel for the purpose of harvesting fish under a tribal commercial fishing license or permit.

(3) "Conservation Department" - The Tribe's conservation department, including any tribal warden or member of the biological staff.

(4) "Serviceable" - Any required equipment or device must be in good working order and ready for immediate use, and must have been inspected, cleaned, repaired and/or tested in accordance with manufacturer guidelines and Coast Guard rules.

3.15.020 Inspections

The Bad River Conservation Department is authorized to conduct commercial fishing vessel inspections as follows:

(a) Who May Conduct Inspections. Only those persons who have been qualified by the United States Coast Guard may conduct inspections. The Bad River Conservation Department may authorize inspections by persons who are not department employees if they are Coast Guard qualified.

(b) Purpose of Inspection. The purpose of the inspections is to ensure that commercial fishing vessels are in compliance with the requirements of this this chapter. The inspections may also ensure the vessels are in compliance with the requirements of Coast Guard regulations that go beyond the specific provisions of this this chapter. The Bad River Conservation Department shall develop n inspection form that is designed to obtain the information necessary to achieve these purposes.

(c) Proof of Inspection. Proof of inspection shall be demonstrated by a completed inspection form that is retained by the Bad River Conservation Department and by a Coast Guard approved decal that is affixed to the vessel's outer hull. The decal may be the same decal that the Coast Guard uses. Any vessel for which an exemption has been requested pursuant to §1.02, below, shall not be issued a decal until the exemption request has been acted upon. The decal must be removed upon transfer of the vessel's ownership.

(d) Mandatory Dockside Inspections. A vessel must be inspected:

(1) Within the first 12 months after the effective date of this this chapter and at least once every 24 months thereafter;

(2) Any time the member wishes to seek an exemption from one of the requirements of this this chapter in accordance with the provisions of §1.02, below;

(3) As requested by the Bad River Conservation Department or as ordered by the Tribal Court; and

(4) Within 12 months after the tribal member obtains ownership or otherwise first uses it for commercial fishing activities.

(e) Voluntary Dockside Inspections. A member may request a voluntary dockside inspection for the purpose of obtaining an inspection decal. No citation may be issued because a vessel fails to pass a voluntary inspection. However, citations may be issued for any non- complying vessel that is detected during routine law enforcement activities.

3.15.030 Exemptions

(a) Exemption Requests. During any inspection, a member may request an exemption from any requirement of this this chapter. The inspection form shall indicate that an exemption request has been made and the inspector shall promptly notify the Bad River Conservation Department of the request.

(b) Processing Exemption Requests. The Bad River Conservation Department shall submit the exemption request to the United States Coast Guard. The department and the member shall provide the information requested by the Coast Guard that is necessary to respond to the request.

(c) Issuing An Exemption. A Coast Guard exemption constitutes a tribal exemption. If the Coast Guard does not grant the requested exemption, there is no exemption from the requirements of this this chapter.

(d) Exemption Letter. The Exemption Letter issued by the Coast Guard constitutes proof of the exemption. A copy of the Exemption Letter must be carried on the vessel at all times.

(e) Complying With an Exemption. A vessel must be operated in compliance with the requirements and conditions of an exemption. Any violation of an exemption is a violation of this this chapter.

3.15.040 Navigation Lights

A commercial fishing vessel must have navigation lights of the type and located on the vessel as specified in Coast Guard navigation rules. The lights must be illuminated between sunset and sunrise and at other periods of reduced visibility (such as fog, rain or haze) as the Coast Guard navigation rules require:

Vessel	Side Lights	Masthead and/or Stern Light
39.4 feet and less	Red and green sidelights are visible from dead ahead And to 22 ½ degrees to Either side of the vessel's beam	Either: All around white light Or: Stern light and masthead light that shows from dead ahead to 22 ½ degrees abaft the beam on either side
Longer than 39.4 feet	Same as above	Stern light and masthead light that shows from dead ahead to 22 ½ degrees abaft the beam on either side

Vessel

Side Lights

Masthead and/or Stern Light

39.4 feet and less

Red and green sidelights are visible from dead ahead And to 22 ½ degrees to Either side of the vessel's beam

Either: All around white light Or: Stern light and masthead light that shows from dead ahead to 22 ½ degrees abaft the beam on either side

Longer than 39.4 feet

Same as above

Stern light and masthead light that shows from dead ahead to 22 ½ degrees abaft the beam on either side

3.15.050 Sound Signals

The following sound signals must be used as required by Coast Guard navigation rules, such as when there is reduced visibility or to avoid collision:

All Vessels

A horn (such as a hand held air horn), whistle, or similar sound producing device

40 feet or longer

Also must carry a bell

3.15.060 Life Preservers/Immersion Suits

(a) Personal Floatation Devices (PFDs). Each vessel must carry at least one Coast Guard approved life preserver (Type I, II or III) of the proper size for each person on board. A Type V Hybrid life preservers may be substituted if it is worn when the vessel is underway and the wearer is not in an enclosed space.

(b) Immersion Suits. Each vessel must carry at least one Coast Guard approved immersion suit of the proper size for each person on board.

(1) be in serviceable condition;

(d) have a personal floatation device light (Coast Guard approved series 161.012) attached to the front shoulder area;

(e) have Coast Guard approved Type I or II retro-reflective material attached as required by Coast Guard regulations;

(f) be marked with the name of the vessel, or the owner of the device, or the individual to whom it is assigned; and

(g) be stowed so that it is readily accessible to the individual for whom it is intended.

3.15.070 Ring Life Buoy

Each vessel must carry at least one serviceable orange 24 inch ring life buoy (Type IV PFD) with 60 feet of line attached, except that a vessel that is at least 16 feet but less than 26 feet long may substitute one throw able cushion. Each ring life buoy must be marked with the name of the vessel and with Coast Guard approved Type II retroreflective material.

3.15.080 Survival Craft Required for Certain Vessels

(a) Required Floatation Equipment. Certain vessels must carry Coast Guard approved floatation equipment, called a "survival craft," that can be used like a raft if a vessel must be abandoned.

(1) Minimum Requirement.

Less than 36 feet long Buoyant Apparatus is required when:

Crew of 4 or more persons anywhere on Lake Superior, or

Crew of or fewer persons and more than 12miles from the shore of the mainland or an island.

36 Feet or Longer Buoyant Apparatus is required when:

Crew of or fewer persons and less than 12 miles from the shore of the mainland or an island.

Inflatable Buoyant Apparatus is required when:

Crew of 4 or more persons anywhere on Lake Superior, or Crew of 3 or fewer persons and more than 12 miles from the shore of the mainland or an island.

"Buoyant Apparatus" means a Coast Guard approved floatation device (other than a lifeboat, life raft or personal floatation device) that is designed to support a specified number of persons in the water, and is constructed so that it retains its shape and requires no adjustment or preparation for use. The types of buoyant apparatus generally in use are the box- float type and the peripheral-body type.

"Inflatable Buoyant Apparatus" means a Coast Guard approved buoyant apparatus that depends on inflated compartments for buoyancy and is designed to support a specified number of persons completely out of the water.

"Crew" includes the people engaged in the commercial fisheries activities and not biologists, enforcement personnel or others performing natural resource management or regulatory duties.

(2) Substitutions. Other Coast Guard approved survival craft may be used in place of a buoyant apparatus to satisfy this requirement. These are: lifeboats, inflatable life rafts, inflatable buoyant apparatus and life floats. In addition, a boat (such as a skiff or other small open vessel), called an "auxiliary craft," that is carried on board and that is integral to and necessary for normal fishing operations may be used instead of a survival craft.

(b) Other Requirements. A survival craft must be readily accessible during an emergency, capable of holding all crew members on board and stowed so as to float free if the vessel sinks. Where an auxiliary craft that is substituted has a Coast Guard required capacity plate, it must not be loaded in excess of the rated capacity.

3.15.090 Visual Distress Signals

Each vessel must have the indicated distress signals (note: the numbers in parentheses indicate the Coast Guard approved devices that satisfy the requirement):

More than 3 Miles from Coastline

3 parachute flares (160.136 or 160.036), 6 hand flares (160.121 or 160.021), and 3 smoke signals (160.122, 160.022 or 160.037)

3 Miles or Less From Coastline

Night: 1 S.O.S. electric light (161.013) and Day: 1 Flag (160.072) or

3 approved flares for both day and night (such as hand flares or parachute flares)

3.15.100 Epirbs

Vessels operating beyond 3 miles from the coastline must carry an emergency position indicating radio beacon (EPIRB) properly licensed by the Federal Communication Commission as follows:

Less Than 36 Feet Long

406MHz Category I or II

36 Feet or Longer

406MHz Category I

The EPIRB must be tested at least once every month and registered with the National Oceanic and Atmospheric Administration (NOAA).

3.15.110 Fire Extinguishers

Required Coast Guard approved fire extinguishers that must be serviceable condition are:

Less Than 26 Feet Long

1 B-I portable

Exception

None required for vessels less than 26 feet long flammable gases or vapors cannot be trapped in the boat (such as with an open boat and outboard motor.

26 Feet to Less Than 40 Feet Long

2 B-I portables or

1 B-II portable

40 Feet or Longer

3 B-1 portables or

1 B-II portable and 1 B-I portable

3.15.120 Backfire Flame Control

Gasoline engines must have backfire flame control; exception: not necessary for outboard motors and for engines that are located where there is a free flowing exchange of air (for example, where forced ventilation is not necessary).

3.15.130 Illegal to Dump Garbage

Garbage may not be dumped into the water (note: fish entrails are not considered garbage).

3.15.140 Jurisdiction, Enforcement and Penalties

(a) Tribal Court Jurisdiction. Jurisdiction over all matters arising under this this chapter shall be with the tribal court which shall adjudicate in accordance with the Tribal Court Code all questions, complaints and alleged violations involving the provisions of this this chapter.

(b) Enforcement. The Tribal Conservation Department is empowered to enforce the provisions of this this chapter.

(d) Subject to subsection (2), conduct routine inspections of vessels utilized by a person in a commercial fishing activity authorized by the Bad River Code of Laws;

(e) Execute and serve warrants and other process issued by the Tribal Court in accordance with applicable law;

(f) Stop and board any commercial fishing vessel and auxiliary boats or vessels for the purposes of determining its compliance with requirements of this this chapter or if the person reasonably suspects there is a violation or breach of this this chapter;

(g) Terminate the voyage of any vessel that is lacking required safety equipment or is otherwise being operated in an unsafe or illegal manner so as to present unreasonable risk to people or property.

(h) the inspections authorized by subsections (1)(a) and (2)(a) shall be conducted in a manner and at such times and locations as are reasonable and appropriate in the ordinary course of routine enforcement activities.

(i) No fisherman shall prevent the Conservation Department from inspecting vessels used in his or her fishing operation, upon the request of the Conservation Department.

(j) No fisherman shall refuse a demand by the Conservation Department to allow boarding and search if the Department has probable cause to believe that the fisherman is in violation of this chapter on that day.

(k) No fisherman shall refuse the demand of the Conservation Department that the fisherman proceed to a port designated by the Department, if such port is within two hours travel time, for the purpose of boarding and inspection.

(l) No member shall resist or interfere with any lawful inspection, search or seizure by the Conservation Department.

(m) The acceptance of a license, identification number, or lean lake trout tags constitutes the consent of the fisherman to inspections as provided in paragraph (a), above.

(n) Great Lakes Indian Fish and Wildlife Commission Wardens are hereby deputized to enforce provisions of this chapter and to cite members of the Bad River Tribal Court for violations of this chapters. Reference in this section to the Conservation Department or Tribal Wardens shall also include Great Lakes Indian Fish and Wildlife Commission Wardens.

(o) Penalties. The penalties for violating a section of this this chapter shall be as follows:

(p) Any person who, for himself or herself, or by his or her agent or employee, or who as an agent or employee of another, violates this ordinance, shall be liable as follows for each violation of this chapter:

(q) A civil forfeiture of not to exceed $5,000.00;

(r) A revocation or suspension of his or her commercial fishing rights for a period not to exceed one year;

(s) Denial of lean lake trout tags for a period not to exceed one year;

(t) A civil remedial forfeiture of any property, including boats, motors, fishing equipment, or other property incidental to the commission of the violation of this ordinance;

(u) The court may order a natural resources assessment not to exceed 75% of the amount of the civil remedial forfeiture; and

(v) Appropriate court costs within the discretion of the court.

(w) Enhancement of Forfeiture and Penalties. Upon conviction of any member for a violation of this ordinance when such person has been convicted of a previous violation of this ordinance within a period of five years, the court may enhance any civil remedial forfeiture or other penalty as the court deems appropriate and the court shall impose a minimum penalty of a commercial fishing license suspension of not less than 30 fishing days.

(x) In any case in which the court orders a money forfeiture, the court shall set a date by which the forfeiture shall be paid, and if the forfeiture is not paid by such date, shall suspend all off-reservation hunting and fishing rights until the forfeiture is paid.

(y) All forfeitures not paid when due shall accrue interest at the rate of 1 ½ percent per month on the unpaid balance, the first month's interest to be due on the day following the initial due date, and each subsequent month's interest accruing on the same day of each month thereafter.

(z) Neither the imposition of a penalty as provided for above, nor satisfaction of the terms of such penalty, shall constitute a waiver or release from any additional civil or criminal liabilities, including but not limited to liability for damages to natural resources.

Chapter 3.16 Regulating Members from Assisting Non-Indians on the Reservation with Fishing, Hunting Trapping and Ricing

3.16.010 Title

This ordinance shall be known as the Bad River Members Assisting Non Indians on the Reservation Ordinance.

3.16.020 Authority

This ordinance is enacted pursuant to Article VI, Section 1 (t) of the Bad River Tribal Constitution.

3.16.030 Effective Date

This ordinance shall be effective on the date adopted by the Bad River Tribal Council.

3.16.040 Prohibition

No member shall assist, encourage or accompany any non-Indian with hunting, fishing, ricing or trapping on trust land within the exterior boundaries of the Bad River Reservation.

3.16.050 Penalty

(a) The penalty for a violation of any provision of this ordinance shall be

(1) a forfeiture not to exceed $500.00; or

(2) community service to be set by the court; or

(3) both (a) and (b) above.

Chapter 3.17 Resident Non-Member Indian Permits

3.17.010 Definitions

Terms used in this chapter shall have the same meaning as in Chapter 3.16.

3.17.020 Permits Authorized

Upon application to the Conservation Department, a non-member Indian residing on the Reservation who is married to a member or who has a child who is a member and for whose support the non-member is obligated, may be issued a permit allowing the non-member to hunt deer on the reservation, for the consumption of the non-member and the non-member's immediate family. Such permit shall be valid only for the period July 1, through December 31 of the year in which the permit is issued.

3.17.030 Waiver and Consent Required

No permit shall be issued under Section 3.17.020 unless the applicant signs a statement irrevocably waiving any objection to the applicability of the Bad River Tribe's civil laws, and to the civil jurisdiction of the Bad River Tribal court over any violation the applicant may be alleged to commit. The applicant shall further affirmatively give his irrevocable consent to the civil jurisdiction of the Tribal Court over any offenses the applicant may be alleged to commit.

3.17.040 Automatic Lapse of Permit

Any permit issued under Section 3.17.020 shall automatically cease to have any force and effect upon any of the following conditions:

(a) The permittee removes from residence on the reservation.

(b) The permittee ceases to have a spouse or child who is a member and for whose support he is obligated.

3.17.050 Prohibitions

(a) No non-member resident Indian shall hunt, fish, trap, or gather on the Reservation without a permit as provided in Section 3.17.020.

(b) No non-member Indian shall hunt, fish, trap, or gather after any permit issued to

him or her shall have lapsed pursuant to Section 3.17.040.

(d) No non-member shall make any false representation on his or her application for a permit under Section 3.17.020.

3.17.060 Forfeitures

For any violation of this chapter, a non-member may be subject to a civil forfeiture not to exceed $500 and revocation of all hunting, fishing, trapping, and gathering privileges.

3.17.070 - Non-Member Assistance

The prohibition contained in Section 3.16.040 shall not apply to any non-member resident Indian possessing a permit issued under Section 3.17.020.

Chapter 3.18 The Bad River Band Sloughs Protection Ordinance

3.18.010 Title

This ordinance shall be known as "The Bad River Band Sloughs Protection Ordinance"

3.18.020 Authority

This ordinance is enacted pursuant to Article VI, Section 1(t) of the Bad River Tribal Constitution.

3.18.030 Effective Date

This ordinance shall be effective as of the date on which it is adopted by the Bad River Tribal Council, and shall remain in effect unless and until superseded by future ordinance(s).

3.18.040 Definitions:

(a) "Bad River NRD" means the Natural Resources Department of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(b) "Boat" or "vessel" means every description of watercraft used or capable of being used as a means of transportation on water, including but not limited to motorboats, canoes, jet-skis, seaplanes, and fishing rafts.

(c) "Fishing" means any activity the purpose or effect of which is to capture, kill or take fish. The term "fishing" includes but is not limited to activities involving the use of a hook and line, net, or spear.

(d) "Growing Season" means the period between the time that submergent vegetation begins to grow and the time in which it ceases to grow (generally May 15 through September 15, unless otherwise determined by the Bad River NRD).

(e) "Motorboat" means any boat or vessel equipped with propulsion machinery, whether or not the machinery is the principal source of propulsion. The term specifically includes, but is not limited to, watercraft such as jet skis, seaplanes, and similar craft.

(f) "Person" means any natural or legal person, both members of the Bad River Band of Lake Superior Chippewa Indians and non-members.

(g) "Reservation" means all areas within the exterior boundaries of the Bad River Indian Reservation.

(h) "Respondent" means any person accused of violating the prohibitions described below.

(i) "Riparian Zone" means any area within the Kakagon Sloughs and Bad River wetland complex lying within the exterior boundaries of the Reservation.

(j) "Sensitive Vegetation Area" means any area within any slough in which submergent, floating leaf, or emergent vegetation is growing, or in which such vegetation is expected to grow.

(k) "Sloughs" means the Kakagon Sloughs, the Sand Cut Sloughs, Honest John Sloughs, the Bad River Sloughs, and any other sloughs located within the exterior boundaries of the reservation.

(l) "Slow-No-Wake" means that speed at which a boat moves as slowly as possible while still maintaining steerage control.

(m) "Slow-No-Wake Zone" means any area within the entire Kakagon Sloughs and Bad River wetland complex designated as such and identified by Slow-No-Wake buoys.

(n) "Tribal Court" means the Bad River Tribal Court.

(o) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(p) "Warden" means any officer authorized to enforce the terms of this ordinance.

(q) "Waters" means any waters within the exterior boundaries of the reservation, including but not limited to rivers, lakes, streams, creeks, ponds, sloughs and wetlands.

3.18.050 Applicability

This ordinance shall be applicable to all areas within the exterior boundaries of the reservation, and to all waters located within or traversing such areas. In addition, this ordinance shall be applicable to all waters in which the Tribe holds riparian rights.

3.18.060 Prohibitions and Requirements

(a) Motorboats. No person shall operate any motorboat within any sensitive vegetation area of any riparian zone during the growing season. Any boat located within any area of emergent aquatic vegetation shall have its motor lifted to its lock position. Inboard/outboard motors shall be lifted to their furthest lift position.

(b) Slow-No-Wake Zone. No person shall operate any boat or vessel at a speed in excess of Slow-No-Wake within any area designated as a Slow-No-Wake Zone.

(c) Courtesy. A Slow No-Wake requirement shall be in affect at all times for all watercraft passing any other watercraft.

(d) Paddles Prohibited in Emergent Vegetation. Propulsion through any area of emergent aquatic vegetation shall be done with a push-pole.

(e) Restriction on Bait. No person shall engage in any fishing activity unless the bait used in such activity is of a species indigenous to the Lake Superior basin.

3.18.070 Enforcement

Enforcement of the prohibitions set forth above shall be performed exclusively by wardens of the Bad River NRD and by the Bad River Police Department.

3.18.080 Jurisdiction

The Bad River Tribal Court shall have exclusive jurisdiction over any alleged violation of this ordinance.

3.18.090 Penalties

(a) The penalties for violations of any provision of this ordinance shall be as follows:

(1) a civil forfeiture not to exceed $500.00;

(2) performance of community service, as determined by the Tribal Court;

(3) both (1) and (2) above.

(b) Any boat or other equipment used in violation of this chapter may be seized by the Conservation Department and by the Bad River Police Department and ordered forfeited.

(c) Neither the imposition of a penalty as provided for above, nor satisfaction of the terms of such penalty, shall constitute a waiver or release from any additional civil or criminal liabilities, including but not limited to liability for damages to natural resources.

Chapter 3.19 Boat Registration

3.19.010 Purpose

The purpose of this chapter is to provide for boater safety and law enforcement by requiring tribal boat registration of all boats operated by tribal members on waters within the Bad River Reservation.

3.19.020 Registration Required

No tribal member shall operate a boat on any waters within the Bad River Reservation unless such boat has been registered with the tribe and displays its registration number as provided by Section 3.19.080, and has on board the registration certificate as provide by Section 3.19.090.

3.19.030 Exemptions

A boat is exempt from the registration requirements of this chapter if it is:

(a) Registered and covered by a valid certificate of number issued by the State of Wisconsin.

(b) A non-motorized boat which is not a sailboat.

(d) Covered by a valid certificate number issued under federal law, or a federally approved numbering system of a state other than Wisconsin, with the identification number properly displayed on each side of the forward half, but only if the boat has been in the state of Wisconsin less than 60 consecutive days, and is not the state of principal use of the boat.

(e) Operated within a period of 15 days after application for tribal or state of Wisconsin registration has been made and the required fee paid, and if the proof of application is carried on board.

(f) Is a federally documented vessel which is a commercial fishing boat licensed under Section 29.33, Wis. Stats.

3.19.040 Registration Period

The registration period runs for two years, commencing on April 1 of the year in which the registration is obtained, and ending on March 31 of the second year after issuance. A registration is valid only for the period for which it is issued.

3.19.050 Fees

The fee for any boat registration under this chapter for all or any part of the registration period shall be $3.00, which must be paid prior to the acceptance of an application for registration or the issuance of registration.

3.19.060 Application for Registration

The Tribal Conservation Department shall obtain the following information, on forms developed by it for this purpose, from any tribal member applying to register a boat.

(a) Name of owner.

(b) Address of owner, including ZIP code.

(d) Whether the vessel is used for subsistence, pleasure, rent or lease, dealer or manufacturer demonstration, commercial passenger carrying, commercial fishing, or other commercial use.

(e) Manufacturer's hull identification number (if any).

(f) Make of vessel.

(g) Year vessel was manufactured.

(h) Overall length of vessel.

(i) Whether vessel is an open boat, cabin cruiser, houseboat, or other type.

(j) Hull material.

(k) Whether propulsion is inboard, outboard, inboard-outboard, or sail.

(l) Whether fuel is gasoline, diesel, or other.

(m) The number previously issued by an issuing authority for the vessel, if any.

(n) The signature of the owner.

3.19.070 Issuance Registration Certificate and Number

(a) The conservation department shall issue a registration certificate and registration number to any tribal member properly completing the application as prescribed by Section 3.19.060, and paying the fee prescribed by Section 3.19.050.

(b) The registration certificate shall contain the following information:

(1) Number issued to the vessel.

(2) Expiration date of the certificate.

(3) A statement that the vessel will be solely used on the Bad River Reservation.

(4) Name of the owner.

(5) Address of owner, including ZIP code.

(6) Whether the vessel is used for subsistence, pleasure, rent or lease, dealer or manufacturer demonstration, commercial passenger carrying, commercial fishing or other commercial use.

(7) Manufacturer's hull identification number (if any).

(8) Make of vessel.

(9) Year vessel was manufactured.

(10) Overall length of vessel.

(11) Whether the vessel is open boat, cabin cruiser, houseboat, or other type.

(12) Hull material.

(13) Whether the propulsion is inboard, outboard, inboard-outdrive, or sail.

(14) Whether the fuel is gasoline, diesel, or other.

(c) A certificate of number issued to a vessel that has a manufacturer's hull identification number assigned, may omit items 8 through 14 of paragraph (b) of this section if the manufacturer's hull identification number is plainly marked on the certificate.

(d) The number issued shall be of following form: Two capitol letters, (BR) followed by four numerals followed by two capital letters, not to include the letters I, O, or Q.

(e) A registration decal shall be issued by the conservation department with the registration certificate.

3.19.080 Display of Number and Decal

Each number required by Section 3.19.070 must:

(a) Be painted on or permanently attached to each side of the forward half of the vessel except as allowed by paragraph (b) or required by paragraph (c) of this section.

(b) Be in plain vertical block characters not less than 3 inches in height.

(d) Have spaces or hyphens that are equal to the width of a letter other than "I" or a number other than "1" between the letter and number groupings (Example: BR 5678 EF or BR-5678-EF); and

(e) Read from left to right.

(f) On vessels so configured that a number on the hull or superstructure would not be easily visible, the number must be painted on or attached to a backing plate that is attached to the forward half of the vessel so that the number if visible from each side of the vessel.

(g) The certification decal must be permanently affixed and displayed on each side of the vessel, 3 inches to the rear of and directly in line with the number.

3.19.090 Location of Registration Certificate

No person may use a vessel to which this chapter applies unless the registration certificate prescribed by Section 307 is carried on board in such a manner that it can be handed to a person authorized under Section 3.19.100 to inspect it.

3.19.100 Inspection of Registration Certificate

Each person using a vessel to which this chapter applies shall present the registration certificate prescribed by Section 3.19.070 to any Federal, Tribal, State or local law enforcement officer for inspection at his or her request.

3.19.110 Other Numbers Prohibited

No person may use a vessel to which this chapter applies that has any number that is not issued by the tribe for that vessel on its forward half.

3.19.120 Duplicate Registration Certificate

If a registration certificate is lost or destroyed, the person whose name appears on the certificate as the owner may apply for a duplicate certificate by submitting to the tribe:

(a) An application on a form prescribed by the tribal conservation department; and

(b) A fee of $2.00.

3.19.130 Notification of Changes to Tribe

A person whose name appears as the owner of a vessel on a registration certificate shall, within 15 days, notify the tribal conservation department in writing of:

(a) Any change in his or her address.

(b) The theft or recovery of the vessel.

(d) The transfer of all or part of his or her interest in the vessel; and

(e) The destruction or abandonment of the vessel.

3.19.140 Validity of Registration Certificate

(a) Except as provided in paragraphs (b), (c), (d) and (e) of this section, a registration certificate is valid until the date of expiration prescribed by the Tribe.

(b) A registration certificate issued by the tribe is invalid after the date upon which:

(1) The vessel is documented or required to be documented under Part 67 of Title 46, Code of Federal Regulations.

(2) The person whose name appears on the registration certificate as owner of the vessel transfer all of his or her ownership in the vessel; or

(3) The vessel is destroyed or abandoned.

(1) The application for the registration certificate contains a false or fraudulent statement; or

(2) The fees for the issuance of the certificate are not paid.

(d) The certificate is invalid when the person whose name appears on the certificate involuntarily loses his interest in the numbered vessel by legal process.

(e) The registration certificate is invalid for use of the boat on waters outside the Bad River Reservation.

3.19.150 Surrender of a Registration Certificate

A person whose name appears as the owner of a vessel on a registration certificate shall surrender the certificate to the conservation department within 15 days after becomes invalid under paragraph (b), (c), or (d), or Section 3.19.140.

3.19.160 Removal of Number

The person whose name appears on a registration certificate as the owner of a vessel shall remove the number and registration decal from the vessel when:

(a) The vessel if documented by the Coast Guard.

(b) The registration certificate of number is invalid under paragraph (c) of Section 3.19.140.

3.19.170 Decal Restriction

No person shall deface, change, modify, or transfer to any other boat any registration decal.

3.19.180 Registration Certificate Records

The conservation department shall on the first working day of each month, or more frequently, supply copies of all registration certificates (including renewals) issued during the preceding month to the Director, Northwest District, Wisconsin Department of Natural Resources. The Wisconsin Department of Natural Resources, the United States Coast Guard, and other state, federal, or local law enforcement agencies shall receive registration information from the conservation department upon request.

3.19.190 Adjudication

Any violation of this chapter shall be heard in Bad River Tribal Court.

3.19.200 Penalties

For any violation of this chapter, the Court may assess a forfeiture of not more than $50 for the first offense and not more the $100 upon conviction of the same offense a second or subsequent time within one year.

Chapter 3.20 Snowmobile Registration

3.20.010 Purpose

The purpose of this chapter is to provide for snowmobile owner and operator safety, safety of community members, wildlife and property, by the setting of standards for safe operation of snowmobiles operated by any person, both member and non-member, and identification by requiring tribal registration of all snowmobiles operated by tribal members within the Bad River Reservation.

3.20.020 Registration Required

No tribal member shall operate, and no member who is an owner shall give permission for the operation of any snowmobile, within the Reservation unless the snowmobile is registered with the Department and displays registration decals pursuant to this chapter or is exempt from registration.

3.20.030 Exemptions

A snowmobile is exempt from registration if it is:

(a) Covered by a valid registration in the State of Wisconsin, or

(b) Covered by a valid registration on another reservation or in another state, province or country, provided there is some identification of registration displayed on the snowmobile and it has not been on the Reservation for more than 15 consecutive days.

(d) Exemptions from the Registration requirement shall not provide for an exemption from the trail pass requirement in Section 3.20.220(a).

3.20.040 Registration Period

A snowmobile registration certificate is valid for 2 years beginning the July 1 prior to the date of application if registration is made prior to April 1 and beginning the July 1 subsequent to the date of application if registration is made after April 1, and ending on June 30, two years thereafter.

3.20.050 Fees

(a) Issuance and Renewal. The fee for the issuance or renewal of a registration certificate is $5. There is no fee for the issuance of a registration certificate to Tribal department or entities.

(b) Lost or Stolen Certificate Decal. If a registration certificate or decal is lost or destroyed, the owner must apply for an original certificate or registration decal as in 351.2.4(a) at a cost of $5.

(1) Upon transfer of ownership of a snowmobile for which a registration certificate has been issued, the seller shall, at time of sale, deliver the assigned certificate to the purchaser.

(2) The purchaser shall complete the application for transfer and cause it to be mailed or delivered to the Department within 10 days from the date of purchase. A fee of $5 shall be paid for transfer of a current registration certificate.

3.20.060 Issuance of Certificate and Decals

(a) Upon receipt of the required fee, and a completed application on forms prescribed by the Department, the Department shall issue to the applicant a registration certificate stating the registration number, the name and address of the owner, and other information the Department deems necessary. The department shall issue 2 registration decals per snowmobile. The decals shall be no larger than 3 inches in height and 6 inches in width and no smaller than 2.5 inches by 3 inches, and shall contain reference to the Tribe, the Department and the expiration of the registration.

3.20.070 Display of Registration Decals

(a) The owner of the snowmobile shall attach the registration decals to the snowmobile on both sides of the cowling in a prominent place and shall maintain the registration decals in a legible condition at all times.

(b) Until the registration decals are received from the Department, a person may operate a snowmobile without having the registration decals displayed as provided under par. (a) if the owner has received an approved application for registration receipt validated by the Department and if the user of the snowmobile complies with pars. (c) and (d).

(c) The registration certificate or, for owners who purchased a snowmobile and who have received an approved application for registration receipt validated by the Department but who have not yet received the registration certificate, the approved application for registration receipt, shall be in the possession of the user of the snowmobile at all times.

(d) The registration certificate or, for owners who purchased a snowmobile and who have received an approved application for registration receipt validated by the Department but who have not yet received the registration certificate, the approved application for registration receipt, shall be exhibited, upon demand, by the user of the snowmobile for inspection by any person authorized to enforce this chapter as provided under Section 3.20.280. complies with pars. (b) and (c).

3.20.080 Change of Address

Whenever the owner of a registered snowmobile changes his address he shall within 15 days thereafter, notify the Department in writing of his new address and of the registration numbers awarded to him or her. At the same time he or she shall endorse his or her new address on his registration certificate.

3.20.090 Junked Snowmobiles

Whenever a snowmobile is junked, the owner shall return the certificate of registration to the Department marked "junked" prior to disposal of the snowmobile. Snowmobiles shall be disposed of properly and in accordance with the Tribe's Solid Waste Ordinance. All fluids and batteries shall be safely disposed of so as not to cause harm to any person, wildlife, or the environment.

3.20.100 Department Duties

(a) The Department shall, on the first working day of each month, or more frequently, supply copies of all registration certificates, including renewals, and notification of all cancellations, suspensions, revocations, changes of address and transfers, to the Bad River Police Department, the Wisconsin Department of Natural Resources, the Wisconsin Department of Transportation, and the Ashland County Sheriff's Department. Each such agency shall receive current registration information upon request made to the Department.

(b) The Department shall provide to any qualifying applicant who properly completes a registration application and pays the fee required, a receipt of approved application to be used as proof of registration pending delivery to the applicant of the certificate of registration and registration decals.

(c) No earlier than May 1 and no later than June 1 of each year the Department shall mail to each owner of a registered snowmobile a 2 part renewal application. If the owner wishes to renew the registration, the owner shall complete and sign one portion of the renewal application and return that portion and the proper fee to the Department. The owner shall complete and sign the other portion of the renewal application. The owner shall destroy this portion of the renewal application upon receipt of the registration certificate and decals.

3.20.110 Operation of Snowmobiles on or in the Vicinity of Highways and Roadways

(a) No person may operate a snowmobile upon any part of U.S. Highway 2, except as permitted by Section 3.20.110(c)(1) below.

(b) Persons may operate a snowmobile only in the following manner on any highway or roadway or as otherwise authorized by law:

(1) Directly across any roadway, but only after stopping and yielding the right- of-way to all vehicles approaching on the roadway. Crossings under this subdivision may be made only at a place where no obstruction prevents a quick and safe crossing. For purposes of this subdivision, "obstruction" includes but is not limited to impairment of view and dangerous roadway condition.

(2) On any roadway which is not normally maintained for other vehicular traffic by the removal of snow.

(3) On the roadway of highways to cross a bridge, culvert, or railroad right-of-way unless posted by the maintaining authority, but shall yield the right-of-way to all vehicular traffic.

(4) On the roadway of county or town highways and Tribal or village roads or streets for special snowmobile events authorized under Section 3.20.240.

(5) On highways and roads which have been designated as snowmobile routes and which are required to be marked.

(6) On a portion of the roadway or shoulder of a highway for the purpose of residential access or for the purpose of access from lodging if the Tribal Council permits by posting for that portion of the roadway or highway. A snowmobile operated on a portion of the roadway or shoulder of a highway under this subdivision shall observe roadway speed limits.

(1) Along U.S. Highway 2, state and county highways at a distance of 10 or more feet from the plowed edge of the roadway.

(2) Along Tribal roads outside of the roadway.

(3) During daylight hours travel may be in either direction regardless of the flow of vehicular traffic.

(4) At night travel shall conform to the direction of vehicular traffic in the nearest lane unless:

(A) The snowmobile trail is located at least 40 feet from the roadway or is separated from the roadway by a head lamp barrier; and

(B) The use of the snowmobile trail is approved by the Tribal Council with respect to the snowmobile trails located near or crossing highways.

(5) Whenever it is impracticable to gain immediate access to an area adjacent to a highway where a snowmobile is to be operated, the snowmobile may be operated adjacent and parallel to the roadway for the purpose of gaining access to and from the area of operation. Loading or unloading of the snowmobile shall be accomplished with due regard to safety at the nearest practical point to the area of operation.

(6) Snowmobiles traveling adjacent to a roadway shall observe roadway speed limits, except no snowmobile may be operated in excess of a speed of 50 miles per hour at any time of day or night.

(d) Snowmobiles may be operated for emergency purposes on any highway during a period of emergency when so determined by the Tribal Conservation Department, Tribal Police Chief, Tribal Fire Chief, or Tribal Council.

(e) A law enforcement officer or Conservation Warden may operate a snowmobile on a highway in performance of his or her official duties.

(f) Under no circumstances, except as provided in this section, is a snowmobile to be operated on the main-traveled portion of a highway or on the plowed portion.

3.20.120 Right-of-Way

The operator of a snowmobile shall slow the vehicle to a speed not to exceed 10 miles per hour and yield the right-of-way when traveling within 100 feet of a person who is not in or on a snowmobile.

3.20.130 Responsibility for Operation by Minors/Owner Permitting Operation

(a) Responsibility for operation by minors.

(1) No owner or other person in possession of any snowmobile shall authorize or knowingly permit any person under 18 years of age to operate such a snowmobile in violation of any provision of this chapter.

(2) No parent or guardian shall authorize or knowingly permit his or her child or ward, if under 18 years of age, to operate a snowmobile in violation of any provision of this chapter.

(3) Any parent or guardian whose child or ward is found to have cause injury to persons, property or natural resources by operation of a snowmobile may be held personally responsible for such damages.

(b) No owner or other person having ownership, charge or control of a snowmobile may knowingly authorize or permit any person to operate the snowmobile in violation of this chapter, or to operate the snowmobile if the person is prohibited from operating a snowmobile under this chapter, if the person is incapable of operating a snowmobile because of physical or mental disability, or if the person is under the influence of an intoxicant.

(c) Any person having ownership, charge, or control of a snowmobile which was operated by any person in a manner which has caused injury to persons, property or natural resources may be held personally responsible for such damages.

3.20.140 General Safety Provisions

(a) Right-of-Way: The following individuals shall have the right-of-way over snowmobiles at all times and all locations.

(1) Pedestrians

(2) Vehicles entering or exiting driveways and access routes

(3) Moving vehicles

(4) Emergency & law enforcement vehicles, including cars, trucks, ATV's snowmobiles, and boats.

(b) No person shall operate a snowmobile in the following manner:

(1) At rate of speed that is unreasonable or improper under the circumstances.

(2) At a rate of speed in excess of the posted speed limit for roadways or trails in the community in which the snowmobile is being operated, whether operated on road, trail, or off road or trail.

(3) At any time and at any place within the Reservation boundaries at a speed in excess of 50 miles per hour at any time of day or night.

(4) Without complying with all stop signs, yield signs, or other regulatory signs that are located along snowmobile routes, snowmobile trails or other established snowmobile corridors that are open to the public.

(5) On the private property of another, including tribal trust, fee or allotted property, without the consent of the owner or lessee. Failure to post property does not imply consent for snowmobile use.

(6) In any careless way so as to endanger the person or property of another.

(7) At any time of day or night, when within 150 feet of a dwelling, at a rate of speed exceeding 10 miles per hour.

(8) On the frozen surface of public waters within 100 feet of a person not in or upon a vehicle or within 100 feet of a fishing shanty at a rate of speed exceeding 10 miles per hour.

(9) On a playground, slide, ski, skating or other non-motorized recreation area except for the purpose of servicing the area, responding to emergencies, crossing at places where marked or after stopping and yielding the right-of-way, but only for the purpose of crossing, access or exit to or from a dwelling, lodging or other building when no other route is safe or feasible, and at no time of day or night at a speed exceeding 10 miles per hour when within 150 feet of these areas.

(10) On or across a cemetery, burial ground, childcare, school or church property without consent of the owner or Tribal Council.

(11) On Tribal lands without the consent of the tribal governing body or Indian fee land owner. For purposes of this paragraph, "Tribal lands" means lands owned by the United States and held for the use or benefit of the Bad River Tribe or individual members and any lands owner by the Tribe or individual members. Failure to post Indian lands does not imply consent for snowmobile use. The Tribal Council by this chapter hereby grants permission to Tribal Members to operate snowmobiles on lands owned in fee by the Tribe or held in trust for the Tribe unless otherwise posted or published as closed to snowmobiles provided all other provisions of the chapter are followed.

3.20.150 Head Lamps, Tail Lamps, Brakes and Mufflers

(a) Any snowmobile operated anywhere and at anytime within the boundaries of the Reservation shall display a lighted head lamp and tail lamp.

(b) Every snowmobile shall be equipped with at least one brake operated either by hand or foot, capable of bringing the snowmobile to a stop, under normal conditions, within 40 feet when traveling at a speed of 20 miles per hour with a 150 pound driver on a level, hard-packed snow surface. The design shall permit simple and easy adjustment to compensate for wear. There shall be no other control linked to the brake which impairs braking operation.

(c) No snowmobile shall be operated unless it is equipped with a muffler in good working order, which blends the exhaust noise into the overall engine noise and is in constant operation to prevent excessive or unusual noise. No snowmobile shall be modified by any person in any manner that shall amplify or otherwise increase total noise emission above that emitted by the snowmobile as originally constructed, regardless of date of manufacture.

3.20.160 Intoxicated Snowmobiling

No person may engage in the operation of a snowmobile while under influence of an intoxicant to a degree which renders him or her incapable of safe snowmobile operation. Law enforcement personnel may hold a person reasonably suspected of operating a snowmobile under the influence of an intoxicant until another officer with a breathalyzer arrives on the scene and the test is administered.

3.20.170 Operation by Youthful Operators Restricted

(a) PERSONS UNDER 12. No person under the age of 12 years may operate a snowmobile at any time, except when all of the following circumstances are present:

(1) Such person under the age of 12 years is operating a "toy" or child size snowmobile which has a governor control which prevents it from exceeding speeds of 8 miles per hour;

(2) the child is wearing a helmet;

(3) The child is at all times supervised by a parent, legal guardian or individual over the age of 18 years; and

(4) all other sections of this ordinance are being complied with.

(b) PERSONS UNDER 16. No person under the age of 16 years may operate a snowmobile unless the person is accompanied either by a parent or guardian or by a person over 18 years of age.

(c) PERSONS AGED 16 AND OLDER; SNOWMOBILE SAFETY CERTIFICATES AND PROGRAM.. No person who is at least 16 of age but younger than 19 years of age may operate a snowmobile unless he or she holds a valid snowmobile safety certificate.

(d) Any person who is required to hold a snowmobile safety certificate while operating a snowmobile shall carry a certificate on the snowmobile and shall display the certificate to a law enforcement officer on request. Persons enrolled in a safety certification program approved by the Department may operate a snowmobile in an area designated by the instructor.

3.20.180 Safety Certification Program Established

The Department shall conduct a program of instruction on snowmobile safety, including intoxicated snowmobiling, regulations, safety and related subjects. The program shall be conducted by instructors approved by the Department. Each person satisfactorily completing this program shall receive a snowmobile safety certificate from the Department. The Department shall establish an instruction fee for this program. An instructor conducting a program of instruction under this section shall collect the instruction fee from each person who receives instruction and shall remit the fee tot he Department. A person who is required to hold a valid snowmobile safety certificate issued by another tribe, state, or province of Canada and if the course content of the program in such other tribe, state, or province substantially meets that established by the Department under this section.

3.20.190 Helmet Required

All persons operating or riding on a snowmobile and on devices attached to a snowmobile within the boundaries of the Bad River Reservation shall wear an approved snowmobile safety helmet properly secured at all times the snowmobile is in motion.

3.20.200 Driving or Harassing Animals, Birds, or Fish

(a) No person shall operate a snowmobile in any area posted as restricted by the Department for the protection wildlife nor in any deer yarding area, whether or not marked.

(b) No person shall drive, harass, or pursue ay animal, bird, or fish with a snowmobile, except as a part of normal farming operations involving the driving of livestock.

3.20.210 Damaging Plant Life

(a) No person shall operate a snowmobile in any forest nursery, planting area, or on public lands posted or reasonably identified as an area of forest or plant reproduction when growing stock may be damaged, except Department personnel while engaged in their duties related to plant growth.

(b) No person shall recklessly or intentionally damage any plant life within the boundaries of the Reservation while operating a snowmobile. All persons shall endeavor to stay on trails, or when no trails exists, to avoid damage to plant life as much as possible.

3.20.220 Trails

The Tribal Council may adopt by resolution designated snowmobile trails for the purpose of recreation, subject to any limitations for use imposed by the Tribal Council in its designating resolution and subject to the following conditions:

(a) All non-member users of the trail shall be required to purchase a trail pass prior to using the trail at locations designated by resolution of the Tribal Council. Such trail pass shall state the dates of validity, any trail use limitations set by the Tribal Council such as for recreational purposes only, and language to comply with subsection (c) below.

(b) The trail pass fee, which shall be charged at the time of purchase, shall be set by resolution of the Tribal Council and may be changed as deemed necessary by the Tribal Council.

(c) Any trail pass shall contain language acknowledging use's acceptance of Bad River Tribal Court jurisdiction for any violations of this ordinance. By accepting the trail pass, the user consents to the jurisdiction of the Bad River Tribal Court.

(d) Tribal members operating snowmobiles duly registered under Section 3.20.020 of this ordinance shall not be required to purchase a trail pass. The exemptions of Section 3.21.040 shall not apply to this section.

(e) All users of the snowmobile trail shall comply with all safety and operation regulations set out in this this chapter and any trail use limitations set out by the Tribal Council in its trail designating resolution, and shall comply with all posted safety and operation signs.

3.20.230 Routes

On state trunk bridges, a sidewalk, or, if no sidewalk exists, one lane of the bridge may be designated by the Tribal Council as a snowmobile route. The Tribal Council may adopt resolutions designating highways as snowmobile routes for snowmobile operation, subject to the following limitations:

(a) Snowmobiles shall be operated on the extreme right side of the roadway.

(b) Left turns shall be made as safely as possible from any position depending on snow cover and other prevailing conditions.

(d) Highways designated for snowmobile operation shall be marked in accordance with this chapter.

3.20.240 Special Events

The Tribal Council may block off the highways and roads under its jurisdiction for the purpose of allowing special snowmobile events. No state trunk highway or connecting highway or part thereof shall be blocked off for any snowmobile race or derby. The Tribal entity hosting the event shall notify the Tribal Police Department and the Conservation Wardens office at least one week in advance of the time and place of any snowmobile race or derby which may result in any street or part thereof, being blocked off. Upon such notice, the Police Department shall take such measures as it deems appropriate to protect persons and property and to regulate traffic in the designated area and its vicinity on the day of such race or derby.

3.20.250

The Tribal Council and any Tribal entity shall not be liable for any injury suffered in connection with a race, derby, trail, or route under this section. The Tribal entity hosting an event shall post the provisions of this paragraph in a conspicuous place, readily accessible to all contestants and spectators, and shall assist in locating and identifying persons responsible for injuries that may occur.

3.20.260

SubSection 3.20.150(c) does not apply to snowmobiles competing in a sanctioned race or derby.

3.20.270

All snowmobile competing in a sanctioned race or derby shall be equipped with a device wired into the motor's electrical system that will shut off the motor if the operator falls from the snowmobile or otherwise leaves the operator's position. The device shall be capable of being attached to the body of the operator and shall be so attached when the snowmobile is being operated.

3.20.280 Enforcement

(a) The Department, the Bad River Police Department, the Wisconsin Department of Transportation, and the Ashland County Sheriff's Department are authorized to enforce the provisions of this chapter and to cite any operators members for violation thereof into Tribal Court, using the Bad River Police Department citation form, Tribal Natural Resources citation form then approved or the state uniform citation form then approved.

(b) No person operating a snowmobile shall refuse to stop after being requested or signaled to do so by an officer of any Department listed in Section 3.20.280(a).

3.20.290 Parties to a Violation

(a) Whoever is concerned in the commission of a violation of this chapter for which a forfeiture is imposed is a principal and may be charged with and convicted of the violation although he or she did not directly commit it and although the person who directly committed it has not been convicted of the violation.

(b) A person is concerned in the commission of a violation if the person"

(1) Directly commits the violation;

(2) Aids and abets the commission of it; or

(3) Is a party to a conspiracy with another to commit it or advises, hires or counsels or otherwise procures another to commit it.

3.20.300 Adjudication

Any violation of this chapter shall be prosecuted in Tribal Court. Violations of this ordinance shall be adjudicated in the Bad River Tribal Court pursuant to the rules and procedures promulgated in the Bad River Tribal Court Code.

3.20.310 Penalties

The penalties for violations of any provision of this chapter shall be as follows:

(a) a civil forfeiture not to exceed $500.00;

(b) performance of community service, as determined by the Tribal Court;

3.20.320 Definitions

As used in this chapter, the following terms, shall be defined as follows:

(a) "Accompany" means to be on the same snowmobile as the operator.

(b) "Approved protective helmet" shall mean a helmet of a type that meets the Snell standard or the standards set by the American National Standards Institute (ANSI) and which has not previously been subject to an impact.

(d) "Headlamp" means a major lighting device used to provide general illumination ahead of a vehicle.

(e) "Headlamp barrier" means a fence, natural growth, difference in elevation or other means of restricting the view that users of an adjacent roadway have of headlamps on a snowmobile trail.

(f) "Highway" means all public ways and bridges, including the entire width between the boundary lines of every way, open to use of the public for the purpose of vehicular travel. Highway does not include private roads or driveways.

(g) "Hours of darkness" means the period of time from one-half hour after sunset to one-half hour before sunrise and all other times when there is not sufficient natural light to render clearly visible and person or vehicle upon a highway at a distance of 500 feet.

(h) "Intoxicant" means any alcohol beverage, controlled substance, controlled substance analog or other drug or any combination thereof.

(i) "Junked" shall mean a snowmobile which is not operational and has been dismantled for parts or scrapped.

(j) "Law enforcement officer" means a member of the Bad River Police Department or a Bad River Conservation Warden, or any member of the agencies listed in Section 3.20.280(a).

(k) "Member" shall mean an enrolled member of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(l) "Operate" means to exercise physical control over the speed or direction of a snowmobile or to physically manipulate or activate any of the controls of a snowmobile necessary to put it in motion.

(m) "Operator" means a person who operates a snowmobile, who is responsible for the operation of a snowmobile, or who is supervising the operation of a snowmobile.

(n) "Owner" means a person who has lawful possession of a snowmobile by virtue of legal title or equitable interest therein which entitles the person to possession of the snowmobile.

(o) "Reservation" shall mean all lands and waters within the exterior boundaries of the Bad River Reservation.

(p) "Roadway" means that portion of a highway between the regularly established curb lines or that portion which is improved, designed, or ordinarily used for vehicular travel, excluding the berm or shoulder.

(q) "Sanctioned race or derby" means a competitive snowmobile event sponsored by the Tribal Council or a Tribal Entity.

(r) "Snowmobile" shall mean any engine-driven vehicle of a type which utilizes sled type runners, or skis, or an endless belt tread or any combination of these or other similar means of contact with the surface upon which it is operated, but does not include such vehicles which are either manually propelled or driven by a motor of 4 horsepower or less and operated only on private property.

(s) "Snowmobile route" means a highway or sidewalk designated for use by snowmobile operators by the Tribal Council agency having jurisdiction as authorized under this chapter.

(t) "Snowmobile trail" means a marked corridor on public property or on private lands subject to public easement or lease, designated for use by snowmobile operators by the Tribal Council, but excluding highways except those highways on which the roadway is not normally maintained for other vehicular traffic by the removal of snow.

(u) "State trunk highway" means any highway designated by the State of Wisconsin as part of the state trunk highway system over which the state has maintenance authority, exclusive of connecting highways.

(v) "Tail lamp" means a device to designate the rear of a vehicle by a warning light.

(w) "Tribal Court" shall mean the court of the Bad River Band of the Lake Superior Tribe of Chippewa Indians and its appellate court.

Chapter 3.21 All Terrain Vehicle Registration, Safety and Operation Standards (Atv)

3.21.010 Purpose

The purpose of this chapter is to provide for all ATV owner and operator safety, usage and registration and to protect the environment and the general safety of the public on the Bad River Reservation.

3.21.020 Applicability

Section 3.21.030 through Section 3.21.100 of this chapter shall apply to all Tribal member owners of ATV's located within the boundaries of the Bad River Reservation. All remaining sections of this ordinance shall apply to all owners and operators, whether Tribal members or non-members, within the boundaries of the Bad River Reservation.

3.21.030 Registration Required

No tribal member shall operate, and no member who is an owner of an ATV shall give permission for the operation of any ATV, within the exterior boundaries of the Reservation unless the ATV is registered with the Bad River Natural Resources Department and displays registration decals pursuant to this chapter or is exempt from registration as is provided at Section 3.21.040.

3.21.040 Exemptions

An ATV is exempt from registration as is provided for at Section 3.20.030 if it:

(a) Carries a valid registration from the State of Wisconsin;

(b) Carries a valid registration from another recognized Reservation or from another State, province or Country, and such registration and identification is displayed on the ATV and it has not been on the reservation for more than 15 days;

(1) If any ATV is registered as provided in (b) above, after 15 days within the exterior boundaries on the Reservation it must be licensed under this chapter; or

3.21.050 Issuance of Certification of Registration and Decals

(a) The Department is authorized to draft appropriate application forms, registration forms and certificates and decals to carry out the purpose of this ordinance.

(b) The Department is authorized to charge a fee that will cover the cost of assuring compliance with this ordinance both as to administration and enforcement. Such fee shall be set at $5.00.

(c) Upon receipt of a completed application form, and the required fee, the department shall issue to the applicant a registration certificate which will contain the name, address of the owner of the vehicle, the identification number from the vehicle and the registration number issued to that vehicle.

(d) Each vehicle shall be issued two decals showing that it is registered, which shall state the expiration date for the registration.

(e) If the registration certificate or decals are lost or destroyed, the owner of the ATV may apply for a duplicate to be issued upon payment to the Department of the required fee of $5.00.

(f) Whenever an ATV is junked, the owner shall return the Certificate of Registration to the Department clearly marked "JUNKED".

(g) All fees collected under this section shall be used to defray the administrative costs of operating the program, and for safety education of the ATV's.

3.21.060 Waiver of Fees

There is no fee for the issuance of a registration certificate to the Tribe, but the Tribe shall display such decals correctly on its vehicles.

3.21.070 Ownership Transfer of Vehicle

(a) Upon transfer of ownership of an ATV for which a registration certificate has been issued by the Department, the seller shall at the time of sale deliver to the purchaser the current registration certificate.

(b) The purchaser shall complete an application for transfer of registration and cause it to be mailed or delivered to the Department within 10 days from the date of purchase. A transfer fee shall be charged by the Department. Such transfer fee shall be $5.00.

3.21.080 Registration Period

An ATV registration certificate is valid for two (2) years beginning the 1st of July. The registration period ends on 30 June, two years after issuance, and such expiration date shall be clearly stated on the decals.

3.21.090 Display of Registration Decals

The owner of the ATV shall attach the registration decal to the ATV on the right and left side of the gasoline tank, and shall maintain the registration decals in a legible condition at all times.

3.21.100 Change of Address

Whenever the owner of a registered ATV changes their address, they shall, within 15 days thereafter, notify the Department in writing of their new address and of the registration numbers on any vehicles registered under this chapter. At the same time, they shall write their new address on their registration certificate.

3.21.110 General Rules of Operation

(a) No person shall operate an ATV in the following manner or under the following circumstances.

(1) At a rate of speed that is unreasonable or improper under the circumstances.

(2) At any time and at any place within the Reservation boundaries at a speed in excess of 55 miles per hour at any time or 40 miles per hour between sunset and sunrise.

(3) In any careless way so as to endanger the person or property of another.

(4) Without complying with all stop signs, yield signs or other regulatory signs that are located along ATV corridors that are open to public. On the private property of another without consent of the owner or lessee. Failure to post private property does not imply consent for ATV use.

(5) Between the hours of 10:30 p.m. and 7 am when within 150 feet of a dwelling at a rate of speed exceeding 10 miles per hour.

(6) On the frozen surface of public waters within 100 feet of a person not in or upon a vehicle or within 100 feet of a fishing shanty unless operated at a speed of 10 miles per hour or less.

(7) On a recreation or play area, unless specifically designated by the Tribal Council for ATV recreational purposes, except for the purpose of serving the area, crossing at places where marked or after stopping and yielding the right-of-way.

(8) On or across a cemetery, burial ground, school or church property without consent of the owner.

(9) On Tribal lands without the consent of the tribal governing body or Indian owner. For the purposes of this paragraph, "Tribal lands" means lands owned by the United States and held for the use and benefit of the Bad River Tribe or individual Members and any lands owned by the Tribe or individual members. Failure to post Indian Lands does not imply consent for ATV use. The Tribal Council by this chapter hereby grants permission to Tribal Members to operate ATVs on lands owned in fee by the Tribe or held in trust for the Tribe unless otherwise posted, except for in Residential Areas between dwellings and across common areas.

(10) ATVs may only be operated in residential areas outside roadways to gain immediate access to a dwelling or to exit from a dwelling to a roadway. ATVs shall not be operated between dwellings or across common areas unless on a posted and maintained trail or route.

3.21.120 Trails

(a) Operators of ATVs on any trails within the reservation boundaries shall operate the ATV in a safe and prudent manner and shall not disturb or harass wildlife or plant life.

(b) No person shall operate an ATV on any trail within the Reservation boundaries at a speed in excess of that which is safe under the existing conditions, however such speed shall in no circumstances exceed 55 miles per hour at any time and 40 miles per hour between sunset and sunrise and during any weather conditions which limit visibility or create wet, snow covered, or slippery road conditions.

(c) While operating on trails, no person shall exceed the posted speed limits for roads in the community in which the trail is located.

3.21.130 Roadways and Highways

(a) No person may operate an ATV upon any part of U.S. Highway 2.

(b) Persons may operate an ATV only in the following manner on any highway or roadway as otherwise authorized by law:

(1) Directly across any roadway, but only after stopping and yielding the right-of-way to all vehicles approaching on the roadway. Crossing under this subdivision may be made only at a place where no obstruction prevents a quick and safe crossing. For purposes of this subdivision, "obstruction" includes but is not limited to impairment of view and dangerous roadway condition.

(2) On the roadway of highways to cross a bridge, culvert or railroad right-of-way unless posted by the maintaining authority, but shall yield the right-of-way to all vehicular traffic.

(3) On highways which have been designated as routes and which are required to be marked,

(4) On a portion of the roadway or shoulder of a highway for a purpose of residential access or for the purpose of access from lodging if the Tribal Council permits by posting for that portion of the highway. An ATV operated on a portion of the roadway or shoulder of a highway under this subdivision shall observe posted roadway speed limits.

(1) Along U.S. Highway 2 state and county high-ways at a distance of 10 or more feet from the roadway.

(2) Along Tribal roads outside of the roadway.

(3) During daylight hours travel may be in either direction regardless of the flow of vehicular traffic.

(4) At night travel shall conform to the direction of vehicular traffic in the nearest lane unless:

(A) The ATV trail is located at least 40 feet from the roadway, or is separated from the roadway by a head lamp barrier; and

(B) The use of the ATV trail is approved by the Tribal Council with respect to ATV trails located near or crossing highways.

(5) Whenever it is impracticable to gain immediate access to an area adjacent to a highway where an ATV is to be operated, the ATV may be operated adjacent and parallel to the roadway for the purpose of gaining access to and from the area of operation. Loading or unloading of the ATV shall be accomplished with due regard to safety at the nearest practical point to the area of operation.

(6) ATVs traveling adjacent to a roadway shall observe posted roadway speed limits, except no ATV may be operated in excess of a speed of 55 miles per hour at any time or 40 miles per hour between sunset and sunrise.

(7) On gravel roads, no person shall operate an ATV in excess of 40 miles per hour with no passengers, and no person shall operate an ATV in excess of 20 miles per hour when carrying one or more passengers. Carrying of passengers is subject to Section 3.21.160(c).

(d) ATVs may be operated for emergency purposes on any highway during a period of emergency when so determined by the Tribal Conservation Department, Tribal Police Chief, or Tribal Council.

(e) A law enforcement officer or Conservation Warden may operate an ATV on a highway in performance of his or her official duties.

(f) Under no circumstances, except as provided in this section, is a ATV to be operated on the main-traveled portion of a highway or on the plowed portion during the winter.

3.21.140 Community Specific Operator Rules

The following restrictions shall apply in addition to and taking precedence over other provisions in this chapter to all ATV operation in the following communities: Birch Hill, Frank's Field, Aspen Estates, New Odanah, and Caville Road.

(a) No person shall operate an ATV off a road or trail except for entering onto from a home or exiting from the trail to a home.

(b) No person shall exceed a speed of 10 miles per hour when operating an ATV to enter a trail from a home or to exit from the trail to a home between the hours of 10 pm and 7:30 am

3.21.150

Go-Carts: Go-Carts shall only be operated on specifically designated go-cart recreational facilities or on fee land owned or managed by the operator or his or her immediate family.

3.21.160 Passengers and Age of Operators and Passengers

(a) No person under the age of 12 shall be permitted to operate any ATV under any circumstances other than on land under the ownership or management and control of the person's immediate family. Management and control includes land leased through the Tribe or Housing Authority by the persons immediate family.

(b) Persons on an ATV under the age of 18 shall be required to wear an approved helmet.

(c) Unless an ATV vehicle is designed to carry more than two persons, only one person shall ride with the driver of a vehicle. Any driver of a vehicle which permits more than one person to ride with him, and/or if the rider is under the age of 16 and does not have on a helmet shall be guilty of a violation of this chapter and fined in the amount of $200.

(d) A person who is at least 12 years of age but under 16 years of age may not operate an all-terrain vehicle unless he or she holds a valid all-terrain safety certificate or is accompanied by a person over 18 years of age if the two people are on the same vehicle. A person who is at least 12 years of age but under 16 years of age who hold an all-terrain safety certificate shall carry it while he or she operates an all-terrain vehicle and shall display it to a law enforcement officer on request.

3.21.170 Safety Equipment

(a) Any person who operates an all-terrain vehicle during hours of darkness or during the daylight hours on any road or on any highway right-of-way or during any weather condition which limits visibility of driver or other's ability to see ATV, is required to display a lighted head lamp and tail lamp on the all-terrain vehicle.

(1) The headlamp on an ATV is required to display a white light of sufficient illuminating power to reveal any person, vehicle or substantial object at a distance of at least 200 feet ahead of the ATV; and

(2) The tail lamp on an ATV is required to display a red light plainly visible during hours of darkness from a distance during hours of darkness from a distance of 500 feet to the rear.

(b) Every all-terrain vehicle is required to be equipped with at least one brake operated either by hand or by foot.

(c) Every all-terrain vehicle is required to be equipped with a functioning muffler to prevent excessive or unusual noise and with a functioning spark arrester of a type approved by the U.S. forest service.

3.21.180 Operation of Atv While Under the Influence of Intoxicants

(a) No person may operate an ATV while under the influence of an intoxicant to a degree which renders him or her incapable of safe operation of an all-terrain vehicle.

(b) No person may engage in the operation of all-terrain vehicle while the person has a blood alcohol concentration of 0.1 % or more by weight of alcohol in his or her blood. No person may engage in the operation of an all-terrain vehicle while the person has 0.1 grams or more of alcohol in 210 liters of his or her breath.

(c) If a person has not attained the age of 21, the person may not engage in the operation of an all-terrain vehicle while he or she has a blood alcohol concentration of more than 0.0%; or more than 0.0 grams of alcohol in 210 liters of his or her breath.

3.21.190 Owner's Liability for Other's Operation/

Parental Liability for Actions of Children

(a) The registered owner shall be liable for violations of this ordinance committed by a minor.

(b) No owner or other person having charge or control of an ATV may knowingly authorize or permit any person to operate the ATV if the person is prohibited from operating an ATV under this chapter, if the person is incapable of operating an ATV because of physical or mental disability or if the person is under the influence of an intoxicant.

3.21.200 Right of Way

The operator of an ATV shall slow the vehicle to a speed not to exceed 10 miles per hour and yield the right-of-way when traveling within 100 feet of a person who is not in or on a ATV.

3.21.210 Areas Closed to Atv Operation

This section is reserved for future use.

3.21.220 Tribal Council Emergency Closure Declaration

(a) The Tribal Chairman, upon recommendation of the Bad River Natural Resources Department or the Bad River Police Department, in the interest of public safety and/or preservation of natural resources, may declare any area within the boundaries of the Reservation as closed to ATV operation.

(b) Such closure shall be effective immediately upon the Tribal Chairman issuing such declaration, but shall be approved by the Tribal Council at the next scheduled Tribal Council meeting at which the Tribal Council shall continue or discontinue the closure.

(d) Posting of the closure in the Tribal Administration and Natural Resources Department, as well at the primary access point for the closed area shall serve as sufficient notice of the closure.

3.21.230 Enforcement of This Chapter

(a) Bad River Tribal Wardens and the Bad River Police Department are authorized to enforce this ordinance and to cite parties violating this ordinance into Tribal Court, using the Tribal Natural Resources Department citation form then approved or the state uniform citation form then approved.

(b) No person operating an ATV shall refuse to stop after being requested or signaled to do so by an officer of any department listed in Section 3.21.230(a).

3.21.240 Adjudication

Violations of this ordinance shall be adjudicated in the Bad River Tribal Court pursuant to the rules and procedures promulgated in the Bad River Tribal Court Code.

3.21.250

The penalties for violations of any provision of this chapter shall be as follows:

(a) a civil forfeiture of not to exceed $500.00;

(b) performance of community service, as determined by the Tribal Court;

3.21.260

Any ATV or other equipment used in violation of this chapter may be seized by any Officer authorized to enforce this ordinance and ordered forfeited by the Tribal Court.

3.21.270

Neither the imposition of a penalty as provided for above, nor satisfaction of the terms of such penalty, shall constitute a waiver or release from any additional civil or criminal liabilities, including but not limited to liability for damages to natural resources.

3.21.280 To State of Wisconsin

Pursuant to the Tribe's ATV Reciprocal Registration Agreement with the State of Wisconsin, the Department shall on the first working day of each month, or more frequently, supply copies of all registration certificates, including renewals, and changes of address and transfers to the Wisconsin Department of Natural Resources, and the Wisconsin Department of Transportation and the Ashland County Sheriff's Department. Each such agency shall receive current registration information upon request made to the Department.

3.21.290 To the Applicant

The Department shall provide to any qualifying applicant who properly completes a registration application and pays the fee required, a receipt of approved application to be used as proof of registration pending delivery to the applicant of the registration and registration decals.

3.21.300 Natural Resource/Conservation Code Ordinance

This shall be considered a natural resources/conservation code ordinance for the definition of such under the Tribal Code.

3.21.310

Terms as used in this chapter are defined as follows:

(a) "Alcohol beverages" means fermented malt beverages and intoxicating liquor.

(b) "All-Terrain Vehicle" or "ATV" a commercially designed and manufactured motor-driven device that has a weight, without fluids, of 900 pounds or less, has a width of 50 inches or less, is equipped with a seat designed to be straddled by the operator and on 3 or more low- pressure or non-pneumatic tires. See also: Small ATV

(c) "Approved helmet" means a helmet which is certified to meet the standards set by 49 CFR 571.218 and which has the chin strap properly fastened.

(d) "Department" shall mean the Bad River Natural Resources Department.

(e) "Junked" shall mean an ATV which is not operational and has been dismantled for parts and scrapped.

(f) "Intoxicating liquor" means all ardent, spirituous, distilled, or vinous liquors, liquids or compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing 0.5% or more of alcohol by volume, which are beverages, but does not include "fermented malt beverages".

(g) "Legal drinking age" means 21 years of age.

(h) "Member" shall mean an enrolled member of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(i) "Operate" means to exercise physical control over the speed or direction of an ATV or UTV or to physically manipulate or activate any of the controls of an ATV or UTV necessary to put it in motion.

(j) "Operation" means the exercise of physical control over the speed or direction of an all-terrain vehicle or the physical manipulation or activation of any of the controls of an all-terrain vehicle.

(k) Operator — A person who operates an ATV or UTV, who is responsible for the operation of an ATV or UTV or who is supervising the operation of an ATV or UTV.

(l) Owner- A person who has lawful possession of an ATV or UTV by virtue of legal title or equitable interest in the machine which entitles the person to possession of it. (I) "Person" means natural person. sole proprietorship, partnership, corporation or association, and includes any member of the Bad River Tribe and any non-member of this tribe who is operating an ATV within the exterior boundaries of the reservation.

(m) Recognized Reservation" shall mean any Reservation of any Federally Recognized Indian Tribe recognized by Department of the Interior, Bureau of Indian Affairs.

(n) "Reservation" shall mean all lands and waters within the exterior boundaries of the Bad River Reservation

(o) Small All-Terrain Vehicle An all-terrain vehicle that has 4 wheels and that has either an engine certified by the manufacturer at not more than 90 cubic centimeters or an equivalent power unit. These machines must be registered.

(p) 'Tribal Court" shall mean the Court located on the Bad River Reservation under the authority of the Bad River Band of Lake Superior Chippewa Indians Constitution.

(q) "Underage person" a person who has not attained the legal drinking age of 21 years of age.

(r) Utility Terrain Vehicle means any of the following: • A commercially designed and manufactured motor driven device that does not meet federal motor vehicle safety standards in effect on July 1, 2012, that is not a golf cart, low-speed vehicle, dune buggy, mini-truck, or tracked vehicle, that is designed to be used primarily off of a highway, and that has, and was originally manufactured with, all of the following:

(1) A net weight, without fluids, of 2,000 pounds or less.

(2) Four or more low pressure or non-pneumatic tires

(3) A steering wheel.A tail light.

(4) A brake light.

(5) Two headlights.

(6) A width of not more than 65 inches.

(7) A system of seat belts, or a similar system, for restraining each occupant of the device in the event of an accident.

(8) A system of structural members designed to reduce the likelihood that an occupant would be crushed as the result of a rollover of the device.

Chapter 3.22 Dog Control

3.22.010 Findings

The Tribal Council finds:

(a) Dogs which are not under the care and control of a particular owner are a serious hazard to personal safety, private property, and wildlife on the Bad River Reservation.

(b) Dogs which are not under the care and control of a particular owner often lack appropriate care.

(c) There exists on the Bad River Reservation a population of dogs which are at times uncontrolled and which lacks appropriate shots.

(d) Dogs which are owned by individuals are sometimes engaged in threatening, harmful, or destructive acts.

3.22.020 Definitions

(a) "At large" means off the premises of the owner or some other person caring for the dog, and not under the control of the owner or some other person.

(b) "Court" means the Bad River Tribal Court.

(c) "Isolation facility" means a pound, shelter, or veterinary hospital which is equipped with a pen or cage which isolates the animal from contact with other animals.

3.22.030 Tags Required

(a) Any owner of any dog shall securely affix to the dog's collar a rabies vaccination tag issued by a veterinarian, which bears the date of the current year, or either of the two previous years.

(b) Any owner of any dog shall obtain from the tribal natural resources department or health department, and securely affix to the dog's collar a valid tribal dog license. A reasonable fee may be charged for the license.

3.22.040 Dogs Not Tagged

(a) Any dog at large that does not bear on its collar both of the tags required under Section 3.22.030 shall be considered ownerless.

(b) Any ownerless dog may be destroyed by the tribal natural resources or health department, whether or not it is a dog causing harm under Section 3.22.050.

3.22.050 Unleashed Dogs and Dogs Causing Harm

(a) An "unleased dog" is a dog that is neither confined within a building, kennel, or fenced yard, nor secured by a leash, chain, or rope attached at one end to the dog's collar or harness and either attached at the other end to an immovable fixture, or held at the other end by a responsible person.

(b) A "dog causing harm" is a dog that is"

(1) At large, or

(2) Causing or threatening to cause personal injury, destroying or harming personal property, fighting with another dog, or running wildlife or domestic stock.

(d) A dog causing harm that is not ownerless, or an unleashed dog found within 100 feet of any dwelling may be impounded by the tribal natural resources or health department.

(e) A dog that is impounded shall be held for 48 hours. After 48 hours if the dog's owner has not claimed it, the dog may be destroyed.

(f) A dog that is impounded may be claimed by its owner upon payment of the impoundment fee of $12.00 for each 24 hour period or part thereof that the dog is impounded.

(g) The owner of any dog causing harm shall be subject to the following penalties:

(1) A forfeiture not to exceed $5,000 for each incident of harm.

(2) An order of restitution to any person harmed by the dog.

(3) A dog causing serious injury to a person or livestock, found by the court to have caused serious injury to a person or livestock once previously, which injury the owner had notice of prior to the second injury, may be ordered by the court to be destroyed.

(h) The owner of an unleased dog shall be subject to a forfeiture not to exceed $200.00 for a first offense, and a forfeiture not exceed $500.00 for any subsequent offense.

(i) Any person who has been harmed by a dog, whether or not the dog is a dog causing harm under Section 3.22.050(a), may proceed in tribal court against the owner of the dog for damages. Reasonable attorney fees shall be awarded to a successful plaintiff in any such action. Double damages shall be awarded to any successful plaintiff in any such action if the dog previously caused harm to a person, livestock, or property and if the owner had notice of such harm prior to the injury that is the subject of the action.

(j) Except as provided for Section 3.22.060, any animal that is impounded and that may be destroyed under this section may be made available for adoption upon payment of posted fees and under procedures adopted by the tribal natural resources and health departments.

3.22.060 Rabies Control

(a) An officer of the tribal natural resources or health department shall order quarantined any dog or cat if there exists reason to believe the dog or cat has bit a person, is infected with rabies, or has been in contact with a rabid animal. If the dog or cat cannot be captured after a serious effort, the dog or cat may be killed. The officer shall attempt to kill the dog or cat in a humane manner and in a manner which avoids damage to the head.

(b) Unless a valid certificate of vaccination evidences that an animal to be quarantined is currently immunized against rabies, all quarantined animals shall be delivered to an isolation facility as soon as possible. A currently immunized animal may be quarantined at the owner's house.

(1) Health risk to humans. If a dog or cat is ordered to be quarantined because there is reason to believe that the animal bit a person, the custodian of an isolation facility or the owner shall keep the animal under strict isolation under the supervision of a veterinarian for at least 10 days after the incident occurred. In this paragraph, "supervision of a veterinarian" includes, at a minimum, examination of the animal on the first day of isolation, on the last day of isolation and on one intervening day. If the observation period is not extended and if the veterinarian certifies that the dog or cat has not exhibited any signs of rabies, the animal may be released from quarantine at the end of the observation period.

(2) Risk to animal health.

(A) If a dog or cat is ordered to be quarantined because there is reason to believe that the animal has been exposed to a rabid animal and if the dog or cat is not currently immunized against rabies, the custodian of an isolation facility or the owner shall keep the animal leashed or confined for 180 days. The owner shall have the animal vaccinated against rabies between 155 and 165 days after the exposure to the rabid animal.

(B) If a dog or cat is ordered to be quarantined because there is reason to believe that the animal has been exposed to a rabid animal but if the dog or cat is immunized against rabies, the custodian of an isolation facility or the owner shall keep the animal leashed or confined for 60 days. The owner shall have the animal revaccinated against rabies as soon as possible after exposure to a rabid animal.

(C) Sacrifice of a dog or cat exhibiting symptoms of rabies. If a veterinarian determines that a dog or cat exhibits symptoms of rabies during the original or extended observation period, the veterinarian shall notify the owner and the officer who ordered the animal quarantined and the officer who ordered the animal quarantined and the officer or veterinarian shall kill the animal in a humane manner and in a manner which avoids damage to the animal's head. If the dog or cat is suspected to have bitten a person, the veterinarian shall notify the person or the person's physician.

(d) Any officer killing an animal under this section shall deliver the carcass to a veterinarian.

(e) The owner of an animal is responsible for all expenses incurred in the application of this section.

3.22.070 Standards

(a) Any officer destroying a dog shall do so in a humane and proper manner and shall dispose of the carcass in a safe and sanitary manner.

(b) Any dogs impounded shall be kept in clean and dry location, protected from the elements, shall be provided with adequate food and water.

3.22.080 Nuisance

No person shall keep, harbor or maintain an animal which destroys property or frightens or harasses any person in any way. It is not a defense to a violation of this provision that the animal was leased when the damage or harassment was done, unless the animal was provoked.

3.22.090 Cruelty to Animals

(a) No shall tease, provoke, or taunt an animal.

(b)(1) Any person who keeps, harbors or maintains an animal shall provide adequate housing or shelter, feed and care for the animal.

(2) No person shall cause unnecessary or excessive pain or suffering or unjustifiable injury or death to any animal.

3.22.100 Penalties

(a) A person who violates any provision of this section shall be subject to a civil forfeiture of not more than $5,000.00. In addition to or in lieu of a civil forfeiture, a person who violates any provision of this section shall be subject to any or all of the following:

(1) Restitution of damages to the Tribe or to an injured individual, including but not limited to payment of medical bills; damages for pain and suffering; property damage; all costs of impoundment, licensing, boarding or disposal; all veterinary fees, or;

(2) Community Service, including but not limited to any service needed by the community; animal control education; building, operation, or maintenance of an animal shelter; boarding, disposal or burial of animals; or in kind provision of food, supplies, equipment or care for impounded animals.

(3) Any civil forfeiture and/or impoundment fee recouped under this chapter shall be designated for the Animal Control Fund.

3.22.110 Parents

The parent or legal guardian of a minor is financially and legally liable for every act of the minor in violation of this section.

3.22.120 Liability

Animal control officers and persons authorized to enforce the provisions of this section shall, in the performance of their official duties, be exempt from any and all liability for acts done or property destroyed by authority of the law.

3.22.130 Effective Date

This ordinance is effected beginning 8:00 a.m., June 26, 1999.

Chapter 3.23 Solid Waste Recycling and Disposal

3.23.010 Findings

The Tribal Council finds that suitable solid waste disposal sites are not easily located. Those that are must be used in the most efficient manner. Items that can be recycled and thus kept out of landfills should be recycled. Inefficient, inappropriate, and unsanitary disposal of solid waste can have adverse impacts on the land and waters of the Bad River Reservation.

3.23.020 Authority

This chapter is promulgated pursuant to Article VI, Section 1 (j), (m), (q) and (w), of the Bad River Constitution.

3.23.030 Applicability

This chapter applies to the activities on the Bad River Reservation of members and non-members of the Tribe, and residents and non-residents of the Reservation.

3.23.040 Definitions

(a) "Collection Site" means any place designated by the Tribal Council as the site where solid wastes may be presented, and includes transfer stations.

(b) "Collector" means any natural or legal person, and that person's employees and agents, who gathers from another person that person's solid waste.

(c) "Computers and Computer Accessories" means all computer components, including but not limited to monitors, central processing units (CPU's), keyboards, printers, scanners, and any and all accessories to the computer, whether used for household, government, educational or commercial purposes. Computers and Computer Accessories which are not recycled shall be considered hazardous waste.

(d) "Hazardous waste" means any solid, liquid, or mixed waste or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a substantial presence or potential hazard to human health or the environment when improperly treated, managed, or which may cause or significantly contribute to an increase in serious irreversible, or incapacitating reversible, illness; including but not limited to nuclear waste or nuclear products, and petroleum, natural gas, or synthetic gas products.

(e) "Major Appliance" or "White Goods" means a residential or commercial air conditioner, clothes dryer, clothes washer, dishwasher, freezer, microwave oven, oven, refrigerator, furnace, boiler, dehumidifier, water heater or stove.

(f) "Non-resident" means any person who does not have a permanent place of abode on the Reservation, except as hereafter provided. Non resident does not mean any temporary or seasonal resident, for purposes of solid waste generated at the temporary or seasonal residence, and does not mean any place of business, for purposes of solid waste general at the business.

(g) "Reservation" means the Bad River Reservation.

(h) "Solid waste" means all waste, garbage, rubbish, offal, trash and other discarded solid waste materials resulting from residential, commercial, agricultural, industrial, community, and other human activities, including liquid waste contained within solid waste, and including hazardous waste, but does not include sewage and human wastes.

(i) "Transfer station" means any facility approved by the Tribal Council for the purpose of collecting, transporting, and disposing of solid waste.

(j) "Tribal Council" means the Tribal Council of the Tribe.

(k) "Tribal Court" means the Tribal Court of the Tribe.

(l) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

3.23.050 Solid Waste Storage

(a) Solid wastes within the reservation boundaries shall be handled, stored, collected, transported, transferred, processed and disposed of in accordance with the provisions of this chapter.

(b) The owner or occupant of any premises, business establishment, or industry shall be responsible for the sanitary storage of all solid waste accumulated at the premises, business establishment or industry.

(c) Solid waste shall be stored in durable, rust resistant non-absorbent, water tight, rodent proof, and easily cleanable containers with a close fitting insect-tight cover with adequate handles or bails to facilitate handling.

(d) Recyclables, as defined in Section 3.23.070(b), may be stored in the bin designated for that purpose, as provided for in Section 3.23.070(d).

(e) Non-recyclables, as defined in Section 3.23.070(c), may be stored in bags designated for that purpose, as provided for in Section 3.23.070(e).

(f) Unless otherwise provided for in a written rental agreement or lease, the tenant of any single unit detached residence and the landlord of any multi-unit residence shall be responsible for the provision and maintenance of containers as specified in paragraph (c), above.

3.23.060 Solid Waste Disposal

(a) No personal shall leave, deposit, or dump solid waste anywhere within the reservation except at designated solid waste collection sites. Sites shall be designated by the Tribal Council and locations of such shall be published and posted.

(b) No non-resident shall dispose of solid waste anywhere within the Reservation.

(c) No person shall dispose of any solid waste generated outside the boundaries of the Reservation on any lands, dumping sites, or landfill within the boundaries of the Reservation.

(d) No person shall dispose of solid waste on any private or public residential property, where disposal of such wastes will cause a public nuisance or health hazard, by causing foul odors to escape or by infestation of insects or rodents.

(e) No person shall deposit solid waste from any stopped or moving vehicle onto any state, county, town, or tribal highways, roads, or right of ways.

(f) No person shall release any hazardous waste within the Reservation, "release" meaning any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, or causing or allowing any of the above.

(g) No person shall dispose of any solid waste at a designated solid waste collection site except in the bin, container, or area specifically designated for the particular type of solid waste disposed.

(h) No person shall dispose of any solid waste at a designated solid waste collection site except in the manner provided by this chapter.

(i) No person shall dispose of any solid waste at a designated solid waste collection site except during the hours when such site is open to accept solid waste.

(j) No person shall dispose of any sewage or human waste except into a community sanitary sewage system or individual sanitary system constructed and operated according to Indian Health Service specifications on Indian owned land, or state of Wisconsin specification on non-Indian owned land, or except into an enclosed pit in operation and used on the date of passage of this chapter.

3.23.070 Solid Waste Collection

(a) All solid waste presented to the Tribe for collection, either at curbside or at a designated solid waste collection site, shall be treated as provided by this section.

(b) "Recyclables" means

(1) Glass containers

(2) Metal cans

(3) Newspaper

(4) Cardboard

(5) Plastics, HDPE and PET only

(6) Aluminum cans

(7) Motor oil

(8) Major appliances, except microwave ovens from which the capacitors have been removed and disposed of off-reservation in compliance with community or county clean-sweep programs.

(9) Computers and computer accessories.

(d) Recyclables shall be prepared for collection as follows:

(1) Glass containers: Lids shall be removed; interior shall be rinsed out.

(2) Metal cans: Interior shall be rinsed out.

(3) Newspapers shall be bundled and tied with string or placed in a brown paper bag.

(4) Cardboard shall be flattened, tape and labels removed, and pieces sized no greater than 24 inches x 24 inches.

(5) Plastic. Caps shall be removed and interior rinsed out.

(6) Aluminum cans. Interior shall be rinsed out.

(7) Motor oil shall be placed in a non-breakable container with a tight fitting cap.

(8) Major appliances or White Goods: Recycling and Solid Waste Department shall be contacted to arrange for proper pick-up or drop-off and handling. A fee to cover Department costs may be charged for pick-up or drop-off at times other than designated spring clean-up.

(9) Computers and Computer Accessories: Recycling and Solid Waste Department shall be contacted after options in Section 3.23.070(d)(9). A. are exhausted to arrange for proper pick-up or drop-off and handling. A fee to cover Department costs of recycling Computers and Computer Accessories may be charged.

(10) A Disposers of Computers and Computer Accessories shall, prior to recycling them through the Bad River Recycling and Solid Waste Department, attempt to reuse or recycle the computer through reuse, donation, resale, materials exchange, or through a computer recycler. Information on material exchange or computer recyclers may be obtained from the Bad River Recycling and Solid Waste Department.

(e) Recyclables shall be placed in the bin provided by the Tribe for that purpose and set out at curbside for pickup on the regular solid waste collection day. Recyclables transported to a designated solid waste collection site shall be sorted and disposed of according to the designations at the site.

(f) Non recyclables shall be disposed of only in bags purchased from the Tribe and specially designated for that purpose.

(g) No person shall dispose of recyclables in bags designated for the disposal of non-recyclables.

(h) No designated solid waste collection site operated by the Tribe, no transfer station operated by the Tribe, and no collector transporting solid waste to a solid waste collection site or transfer station operated by the Tribe shall collect any solid waste in any bags designated for non-recyclables if the bag contains any recyclables.

(i) After written warning, any collector transporting solid waste to a solid waste collection site or transfer station operated by the Tribe may suspend the collection of all solid waste from any household or other collection site if any provision of this chapter is violated at that site, until compliance with this chapter is shown.

(j) The Solid Waste Administrator shall fix the fee to be charged for the bags designated for non-recyclables. Such fee shall be based on the amount necessary to cover the operating and capital costs of all solid waste collection facilities and systems.

(k) The Solid Waste Administrator shall fix the fee to be charged for the deposit of non-recyclable solid waste that is not contained in bags designated for such use, included but not limited to furniture, white goods, tires, and demolition materials.

3.23.080 Enforcement

(a) The Solid Waste Administrator, all tribal law enforcement and conservation enforcement personnel shall be empowered to enforce this chapter.

(b) Actions for violations of this chapter may be commenced in tribal court by conservation citation or by summons and complaint.

(c) Violation of any provision of this chapter may be punished or remedied by a civil forfeiture not to exceed $1,000. Each day of any continuing violation may be charged as a separate violation, and a separate forfeiture may be imposed.

(d) In addition to a civil forfeiture, any personal property, including vehicles and other equipment, which has been used in connection with the violation of this chapter may be seized and forfeited pursuant to the appropriate sections of the Tribal Court Code.

(e) Nothing herein shall prevent the Tribe from bringing suit against any violator of this chapter for money damages for harm to any tribal resource caused by the violation, or for injunctive relief.

(f) Any person may bring suit in tribal court to enjoin a violation of this chapter.

3.23.090 Administrator

(a) The Solid Waste Administrator shall be responsible for the administration of this chapter and of any tribal solid waste collection facilities or systems.

(b) This chapter is effective upon passage by the Tribal Council, posting on the Reservation, and publication in the Ashland Daily Press.

3.23.100 Severability and Non-Liability

If any section, provision, or portion of this chapter is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this chapter will not be affected thereby. The Tribe declares there is no liability on the part of the Tribe, its agencies, or employees for damages that may occur as a result of reliance upon or conformance with this chapter. The Tribe, by adoption of this chapter, does not waive sovereign immunity in any respect.

Chapter 3.24 Open Burning, Burn Barrel and Fire Prevention Ordinance

3.24.010 Purpose

(a) Purpose. The burning of household and other waste can cause severe health problems, pollute the air, soil, and water, and pose a fire danger to the surrounding area. The purpose of this ordinance is to control and monitor the setting of fires and open or barrel burning within the exterior boundaries of the Bad River Reservation by any person in order to protect the welfare, peace, safety, environment, and property of the Bad River reservation and it's Tribal Membership.

(b) Scope. This ordinance applies to all open and burn barrel fires within the exterior boundaries of the Bad River Reservation.

3.24.020 Definitions

(a) "Acceptable Burn Barrel" shall mean a metal drum of at least 55 gallon volume, which:

(1) Has been placed upon blocks made of a material that will not cause the barrel to tip or cause the ground to burn.

(2) Has air vents of approximately "pea size" on the sides and bottom,

(3) Is covered by a screen of not to exceed 1/4 inch mesh, and

(4) Has been inspected by the Natural Resources Department or Fire Warden.

(b) "Burning Barrel" shall mean any fire contained in a barrel or other type of containment where the products of combustion are emitted directly into the outdoor atmosphere and are not directed through a stack or chimney, incinerator or other similar device and the purpose of the fire is not for cooking or to provide heat to dwelling.

(c) "Brush" shall mean woody debris commonly associated with land clearing of all types such as landscaping, trail clearing a and general yard maintenance. Additional materials which may fall into this category are clean lumber from demolition (containing no paint, stain, or preservative), leaves, bark and other woody scraps from various activities.

(d) "Construction/Demolition Material" shall mean wood and non-wood products commonly associated with the demolition of structures, including but not limited to; shingles of all types, insulation of all types, gypsum board, tar paper, metal plumbing, ductwork, wiring, and chemically-treated wood of all types.

(e) "Forest Fire" shall mean uncontrolled, wild, or running fires occurring on forest, marsh, field, cut-over, or other lands within the boundaries of the Bad River Reservation.

(f) "Hazardous Waste" shall mean any commercial chemical substance designed pursuant to the Federal Water Pollution Control Act, under 33 U.S.C. Section 1321(b)(2)(A); any hazardous air pollutant listed pursuant to the Clean Air Act, under 42 U.S.C. Section 7412; any hazardous waste defined under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. as amended, and any other substance which constitutes a hazardous waste under tribal, state, or federal law.

(g) "Kitchen Garbage" shall mean animal and vegetable waste resulting from the handling, preparation, cooking, and/or consumption of foods.

(h) "Non-recyclable Material" shall mean Pyrex glass, window glass, light bulbs, mirrors, broken glass, china, Styrofoam and melamine type plastics, waxed paper, waxed cardboard, soiled paper, garbage, bottle or jar caps and any material for which there is no destination point for reclamation or processing.

(i) "Open Burning" shall mean any fire wherein the products of combustion are emitted directly into the outdoor atmosphere and are not directed through a stack or chimney, incinerator or other similar device. " Open Burning" includes, but is not limited to, brush burning.

(j) "Owner" shall mean the person(s) or entity(ies) which hold legal or beneficial title to a burn barrel or property and the person(s) or entity(ies) which have or exercise possession of a burn barrel or property. Owner also means landlord and lessee.

(k) "Recyclable Material" shall mean brown, clear, and green container glass, aluminum cans, steel containers, bi-metal containers, plastics containers with #1 thru #7 inside a triangle on the bottom, corrugated cardboard, newspaper, magazines, mixed paper, office paper, used motor oil, vehicle tires, and any other material for which there is a destination point named for reclamation or processing or listed as recyclable material in the Bad River Solid Waste Ordinance.

3.24.030 General Provisions

(a) Within the exterior boundaries of the Bad River Reservation, it shall be unlawful for any person to set any fire unless it shall be attended at all times and she or he has first obtained a Burning Permit from a Fire Warden duly appointed and designated by the Bad River Tribal Council, except for:

(1) When a fire is set and designed solely for warming the person or cooking food;

(2) When a fire is set for ceremonial purposes.

(b) Warming and Cooking Fires. Any person who sets a fire solely for warming the person or cooking food shall extinguish such fire before leaving it, and upon failure to do so will be in violation of this Ordinance.

(c) Ceremonial Fires. Any person who lights a fire for ceremonial purposes shall ensure that precautions are taken to prevent the spread of the fire outside the intended area and that the fire is attended at all times until it has extinguished itself.

(d) Windy Conditions. Except for ceremonial purposes where adequate fire safety precautions are taken, no burning shall occur when wind speeds exceed 10 miles per hour or when wind conditions are such that sparks or embers from the fire may be spread outside the parameters listed in subSection 3.24.060 for safe containment of the fire.

(e) Adequate provision shall be made to prevent fire from spreading (garden hose or other sufficient source of water, shovels, dirt, etc.).

(f) Fires shall be constantly attended by a competent person until the fire is completely extinguished (fire remains are cold).

(g) Fires must be completely extinguished before you leave (fire remains must be cold)

3.24.040 Permit Application and Issuance

(a) Permit Application. Permits may be obtained from the Bad River Fire Warden during normal business hours after filing of an application which may be obtained from the Bad River Fire Warden. The application shall contain at least the following information:

(1) Name, physical address, and phone number of person responsible for the burn.

(2) Responsible persons who may be attending the burn.

(3) Location of the burn(Fire warden may, at his or her option, require an inspection of the site by the Natural Resources Department of the Fire Department).

(4) The signature of the applicant stating the following:

(A) that he or she has been given educational material regarding the environmental and health hazards of open burning,

(B) has read and understood the material, and has had an opportunity to ask questions of the Fire Warden about the burning regulations.

(b) Permit Issuance. Permits issued pursuant to this section shall include but not be limited to restrictions concerning: time of day, location, minimum required precautionary measures, and the length of the burning period of the permit.

(d) If the permit is for a burn barrel, the burn barrel must be considered an acceptable burn barrel and inspected and approved by the Natural Resources Department or the Fire Warden prior to issuance of the permit.

(e) Burn permits for burn barrels shall expire upon on May 31 of each year.

(f) Burn permits for open burns expire upon competition of the open burn, but in no case beyond 30 days from the date of issuance of the permit. Subsequent burns at the same location require separate permits.

3.24.050 Permit Considerations

Burning permits shall be issued only after a determination by the Fire Warden that the danger to the resources will be minimized by allowing the permittee to burn if he or she complies with the conditions of the permit and takes all reasonable precautions to prevent the escape of the fire.

3.24.060 Permitted Burning

(a) Open Burning

(1) Brush burning shall be limited to wood products only, which includes only twigs, brush, leaves, grass, and untreated, unpainted sawn wood or those items defined as brush, above.

(2) No construction/demolition materials or household garbage may be burned.

(3) No chemically or creosote treated wood may be burned.

(4) No woody materials which may be contaminated with other construction materials, including but not limited to: tar paper, insulations of all types, shingles, gypsum board, paint and other wall treatments, may be burned.

(5) No recyclable materials as defined in this ordinance may be burned.

(6) The burning of objectionable materials such as rubber, roofing, or any material which can damage the property of another is prohibited.

(7) No open fires shall be kindled within fifty feet (50') of any property line, public right-of-way, building, fence, or combustible growth or material other than that intended to be burned.

(8) Burn piles may be no larger than five feet by five feet five feet (5' by 5' by 5').

(9) Burning of uncut grass, brush, or vegetation (running fire) are prohibited, except by special permit issued for exceptional circumstances only after inspection of the proposed burn site and agreement with the proposed burn by the Bad River Fire Warden and Natural Resources Department.

(10) Burning may only be conducted between the hours of 6:00 PM and MIDNIGHT. Burning on Sundays is prohibited.

(11) Burning is prohibited at all times when a general fire permit ban is in effect, as declared by the Bad River Fire Warden.

(b) Barrel Burning

(1) Barrel burning shall be limited to burning in an acceptable burn barrel the burning of small woody debris and soiled or other non-recyclable paper.

(2) No recyclable materials as defined may be burned.

(3) No demolition materials as defined may be burned.

(4) No material identified in376.6(a) 2-6 may be burned

(5) Barrels must be covered while burning with a screen which will hold down flying ash. The screen must be in sound condition and have a mesh size no larger than one-quarter inch (1/4").

(6) The barrel must not be contaminated with paint, oil, gasoline, or other potentially harmful or noxious substance.

(7) Barrels must be continually observed by a responsible person during the burning process and completely extinguished before being left.

(8) Burning may only be conducted between the hours of 6:00 PM and MIDNIGHT. Burning on Sundays is prohibited.

(9) Burn barrels must be located in a ten foot (10') clear area, a minimum of twenty-five feet (25') from buildings and combustibles

3.24.070 Prohibited Burn Items

(a) Disposable Diapers

(b) Oil

(d) Paint

(e) Plastics (including but not limited to Styrofoam and melamine type plastics)

(f) Recyclable Material

(g) Household trash or garbage (including kitchen garbage)

(h) Cardboard

(i) Non-recyclable paper containing plastic, paint, or other matter which is noxious when burned

(j) Dead animals not being processed or cooked as food products

(k) Any material that emits dense smoke or obnoxious odor

(l) Thermometers containing mercury

(m) Any item known to contain mercury or lead (including batteries)

(n) Tires

(o) Construction/Demolition material, except for wood scraps with no paint, stain, chemical treatment or other contaminants

(p) Hazardous Wastes

3.24.080 Special Authority to Restrict Burning

This chapter includes the authority for the Bad River Fire Warden to restrict and forbid the setting of any type of fire or burning within the exterior boundaries of the Bad River Reservation, by any person, when there is a dangerously dry season. Setting of fire or burning in this particular Section will include but will not be limited to the burning of paper or garbage, burning of leaves, campfires, outside cooking units, etc. The only exceptions will be those homes where a stove or appliance is located outside the home which is needed in the preparation of food or for heat and for ceremonial uses when the Fire Warden is notified of the general location of the fire and can assure that proper fire safety precautions have been met. Proper notice will be given to the public when this restriction goes into effect by the following notification:

(a) Posting of notices at the Tribal Offices, Fire Hall, Bad River Natural Resources Department and at least one tribal enterprise, and

(b) At the option of the Fire Warden, announcement on one or more local radio stations.

3.24.090 General Responsibility and Liability/Negligent Handling of Any Material Which Might Cause a Forest Fire

(a) General Responsibility and Liability. It is the responsibility of the owner of any land upon which a burn is conducted or the owner of a burn barrel in which burning is conducted, as well as any individual, with or without a permit issued under this chapter, to ensure that his or her fire is adequately contained and does not pose a threat to the safety of his or her own person and property and that of all others which may be harmed by the act of burning. Any private individual, including owners, with or without a permit issued pursuant to this chapter, shall be liable for any injury or property damaged by the act of burning or failure to take adequate precautions to prevent injury and damage due to his or her burning.

(b) Forest Fire. Any person who would start, kindle, or otherwise encourage a forest fire through the careless use of smoking materials, fireworks, campfires, motorized equipment, flammable substances, or any other material or item of equipment shall be in violation of the Section of the Ordinance.

3.24.100 Public Nuisance

Any private individual affected by another private individual's burning is authorized by this chapter to bring a private citizen suit under this section to abate damages due to smoke or fire conditions which create a nuisance, or visual, or odor problems or to recover damages for injury or property damage caused by another private individual's fire.

(a) Initiation of a citizen suit shall not prohibit or limit the right of the Tribe to initiate enforcement action under this section, nor shall it require the Tribe to take enforcement action.

(b) This chapter does not provide a right of action for a citizen suit against the Tribe or any Tribal entity for any reason.

3.24.110 Effective Date and Severability

(a) Effective Date. This ordinance shall be effective upon the date of adoption by resolution of the Bad River Tribal Council, until amended or otherwise expressly invalidated by the Tribal Council.

(b) Severability. If any section, provision, or portion of this Ordinance id judged unconstitutional or invalid by the Bad River Tribal Court, the remainder of this Ordinance shall not be affected.

3.24.120 Enforcement/Evidence

(a) The Bad River Fire Warden and Fire Department, Conservation Wardens and the Bad River Police Department are authorized to issue citations for violation of this chapter.

(b) The Bad River Fire Warden and Fire Department, the Bad River Conservation Wardens, and the Bad River Police Department may issue immediate cease and desist orders for suspected violations or when burning appears to create unsafe condition. Such cease and desist orders may be issued regardless of whether a permit has been issued or whether a citation has been issued. The cease and desist order shall expire within 36 hours of issuance if a citation is not issued.

(c) The Bad River Fire Warden, Fire Department, the Bad River Conservation Wardens, and the Bad River Police Department are authorized to enter private property, tribal, trust, allotted, or leased property at all times to inspect all outdoor fires.

(d) Citations for violations shall include, but not be limited to the following: an affidavit of a member of the Bad River Fire Wardens, or the Fire Department, the Bad River Conservation wardens, or the Bad River Police Department stating the conditions occurring during the burn or the manner of material being burned; or photographs of the burn site and material being burned when accomplished by an affidavit describing the date, time, location of the fire, the ownership, if known, of the barrel, and any other relevant conditions.

3.24.130 Jurisdiction/Penalties

(a) The Bad River Tribal Court shall have jurisdiction to hear all matters prosecuted pursuant to this chapter, including citizen suits.

(b) The Bad River Tribal Court may impose any of the following penalties for violations of this chapter, singly or in any combination:

(1) Immediate injunction against burning;

(2) Restitution for damages caused by violations, including damages for any harm to any tribal resources;

(3) A civil forfeiture of not to exceed $1,000.00. Each day of any continuing violation may be charged as a separate violation and separate forfeiture may be imposed;

(4) In addition to a civil forfeiture, any personal property, including vehicles and other equipment, which has been used connection with the violation of this chapter may be seized and forfeited pursuant to the appropriate sections of the Tribal Court Code. Seizure of burn barrels or other items which are too hot to move may be effected by posting a copy of the citation on or near the item seized until the item has cooled sufficiently for removal.

(c) Citizen suit damages are separate from and may be in addition to and may duplicate any damages requested by the tribe under this section.

Chapter 3.25 The Bad River Band Environmental Response and Remediation Code

3.25.010 Short Title

This Chapter shall be known as the Bad River Environmental Response and Remediation Code.

3.25.020 Purpose and Policy

(a) The purpose of this law is to:

(1) Regulate the identification, investigation and remediation of discharges of hazardous substances to the environment;

(2) Identify sites where the discharge of a hazardous substance into the environment has occurred;

(3) Eliminate contamination from and control the threat of, or actual discharge of hazardous substances; and

(4) To impose on, and recover from, the responsible party(ies) all costs of removal or remedial action incurred by the Tribe; and damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.

(b) It is the policy of the Tribe to:

(1) Respond to discharges of hazardous substances and environmental contamination concerns;

(2) Ensure as the first priority that the contaminated lands are restored to pre-release conditions, using Tribal cleanup standards that are the most protective of human health, natural resources, and tribal subsistence uses;

(3) Ensure that remediation is financed and conducted in the first instance by the responsible party(ies); and

(4) If the department determines that remediation and restoration to pre-release conditions is not technologically possible, ensure that the Tribe recovers damages for the destruction or loss of natural resources from the responsible party(ies).

3.25.030 Adoption and Amendment

(a) This law is adopted by the Bad River Tribal Council by resolution 4-1-15-399 and is effective April 1, 2015.

(b) This law may be amended pursuant to the procedures set out in Tribal law by the Bad River Tribal Council.

3.25.040 Conflicts, Severability

(a) In the event of a conflict between a provision of this law and a provision of another law, the provisions of this law shall control. Provided that, nothing in this law is intended to repeal or modify any existing law, policy, regulation, rule, resolution, or motion.

(b) Should a provision of this law or the application thereof to any person or circumstances be held to be invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions of this law which are considered to have legal force without the invalid portions.

3.25.050 Jurisdiction

This law applies to all activities within the exterior boundaries of the Reservation of the Tribe, as established pursuant to the Treaty with the Chippewa, 1854, 10 Stats., 1109 (Sept. 30, 1854) and any lands added thereto pursuant to federal law; all lands held in trust for the Tribe within the State of Wisconsin; all lands and resources over which the Tribe can demonstrate authority under federal Indian law; and all releases or threatened releases of hazardous substances on or to the foregoing, regardless of where the acts or omissions giving rise to the release or threatened release occurred.

3.25.060 Definitions

This section shall govern the definitions of words and phrases used within this Chapter. All words not defined herein shall be used in their ordinary and everyday sense.

(a) "All Appropriate Inquiries" means the process of evaluating a property's environmental conditions and assessing the likelihood of any contamination in compliance with the All Appropriate Inquiries Final Rule at 40 CFR 312.

(b) "Brownfield" means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a Hazardous Substance, pollutant, or contaminant.

(c) "Cleanup standards" means (a) the level of hazardous substance concentrations that protect human health, reservation natural resources, and tribal subsistence uses ("cleanup levels"); (b) the location on the site where those cleanup levels must be attained ("points of compliance"); and (c) additional regulatory requirements that apply to a cleanup action because of the type of action and/or the location of the site. These requirements are specified in applicable Tribal and federal laws and are generally established in conjunction with the selection of a specific cleanup action. Cleanup levels that have been adopted by the Tribe as a matter of Tribal law for Surface Water, Groundwater, Sediment, and Soil are at Appendices A-1 through A-4, as amended.

(d) "Contamination" or "contaminated" means the environment has been affected by a hazardous substance to the point that remedial action is necessary to restore the environment.

(e) "Department" means the Natural Resources Department of the Bad River Band of Lake Superior Tribe of Chippewa Indians.

(f) "Discharge" means, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, releasing or dumping.

(g) "Dispose" or "disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid or hazardous waste into or on any land or water in a manner which may permit the waste to be emitted into the air, to be discharged into any waters of or otherwise to enter the environment.

(h) "Emergency" means a situation which requires an immediate response to address an imminent threat to public health, safety or welfare, or the environment.

(i) "Environmental standards" mean those cleanup standards, performance standards, standards of control and other substantive and procedural requirements, criteria or limitations promulgated under Tribal, federal or state environmental or facility sitting laws that specifically address a hazardous substance, pollutant, remedial action, location or other circumstances found at a site or facility.

(j) "Facility" means:

(1) Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), landfill, storage container, motor vehicle, rolling stock, aircraft, natural or man-made well, pit, pond, lagoon, impoundment, ditch, or

(2) Any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.

(k) "Free product" means a hazardous substance that is present in the environment as a floating or sinking non-aqueous phase liquid.

(l) "Groundwater" means subsurface water in a zone of saturation.

(m) "Hazardous sites list" means a list of sites where remedial action has been determined by the department to be necessary.

(n) "Hazardous substance" means any substance or combination of substances, including any waste of a solid, semi-solid, liquid or gaseous form, which may cause or significantly contribute to an increase in mortality or serious irreversible or incapacitating reversible illness, or which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics. This term includes, but is not limited to:

(1) A substance defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 as amended, as a hazardous substance.

(2) Those substances which are toxic, corrosive, flammable, irritants, strong sensitizers or explosives.

(3) Petroleum, including crude oil or any fraction thereof that is liquid at standard conditions of temperature and pressure.

(4) Waste generated during the extraction, beneficiation, and processing of minerals, identified in Appendix A-1.

(o) "Immediate Action" means a remedial action that is taken within a short period of time after the discharge of a hazardous substance or contamination occurs, or after the discovery of the discharge or contamination.

(p) "Institutional controls" mean non-engineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination and/or protect the integrity of the remedial action.

(q) "Natural resources" land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the Tribe, or, if such resources are subject to a trust restriction on alienation, any member of the Tribe.

(r) "Operator" means any person who operates a site or a facility.

(s) "Owner" means any person who owns or who receives direct or indirect consideration from the operation of a site or a facility regardless of whether the site or facility remains in operation and regardless of whether the person owns or receives consideration at the time contamination occurs.

(t) "Person" means any natural or legal person, including corporations, and Tribal, federal, and state entities, governmental units, or agencies thereof.

(u) "Practicable" means remedial action is capable of being implemented, taking into account:

(1) The technical feasibility of the remedial action option, considering its long-term effectiveness, short-term effectiveness, implementability and the time it will take until restoration is achieved; and

(2) The economic feasibility of the remedial action, considering the cost of the remedial action compared to its technical feasibility.

(v) "Registered pesticide" means a pesticide registered or exempted by the federal Environmental Protection Agency's Office of Pesticide Programs.

(w) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, advecting, dispersing, diffusing, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).

(x) "Remedial action" or "remedy" means those response actions, other than immediate or interim actions, taken to control, minimize, restore, or eliminate the discharge of hazardous substances or environmental pollution so that the hazardous substances or environmental pollution do not present an actual or potential threat to public health, safety, or welfare or the environment. The term includes actions designed to prevent, minimize, stabilize, or eliminate the threat of discharged hazardous substances, and actions to restore the environment to the extent practicable and meet all applicable environmental standards. Examples include storage, disposal, containment, treatment, recycling, or reuse, and any monitoring required to assure that such actions protect public health, safety, and welfare and the environment.

(y) "Reservation" means all areas within the exterior boundaries of the Bad River Indian Reservation.

(z) "Responsible party" or "liable party" means any person who, under this law, is required to:

(1) Take action to prevent or abate contamination, a threat of contamination, the discharge of a hazardous substance or threat of a discharge; or

(2) Reimburse a Tribal entity for the costs incurred by the entity to take action to prevent or abate contamination or threat of contamination or the discharge of a hazardous substance or threat of a discharge.

(aa) "Restore" or "restoration" means to return the environment to the biological, chemical, and physical conditions that existed prior to the discharge of a hazardous substance or contamination.

(bb) "Site" means any area where contamination has occurred or is suspected of occurring, including a place of business that handles, transports or stores hazardous substances and is required to track such materials, and anywhere that a hazardous substance has come to be located.

(cc) "Surface water" means all water above the surface of the ground within the exterior boundaries of the Bad River Reservation including but not limited to lakes, ponds, reservoirs, artificial impoundments, streams, rivers, springs, seeps and wetlands.

(dd) "Tribal entity" means a board, committee, commission, department, division, or agency of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

3.25.070 Powers and Duties of the Department

(a) The department may exercise the following powers in addition to any other powers granted by law:

(1) Take, or require potentially responsible parties to take immediate action where the department has determined such action is required to protect human health or the environment;

(2) Investigate, provide for investigating, or require potentially responsible parties to investigate any releases or threatened releases of hazardous substances, including but not limited to inspecting, sampling, or testing to determine the nature extent of any release or threatened release. If there is a reasonable basis to believe that a release or threatened release of a hazardous substance may exist, the department's authorized employees, agents, or contractors may enter upon any property and conduct investigations. The department shall give reasonable notice before entering property unless an emergency prevents such notice. The department may, by subpoena issued pursuant to Chapters 115 and 114.3 of the Bad River Tribal Court Code, require the attendance or testimony of witnesses and the production of documents or other information that the department deems necessary to aid in the investigation of any releases or threatened releases of hazardous substances;

(3) Conduct, provide for conducting, or require potentially responsible parties to conduct remedial actions (including investigations under (1) of this subsection) to remedy releases or threatened releases of hazardous substances. In carrying out such powers, the department's authorized employees, agents, or contractors may enter upon property. The department shall give reasonable notice before entering property unless an emergency prevents such notice. In conducting, providing for, or requiring remedial action, the department shall give preference to permanent solutions to the maximum extent practicable and shall provide for or require adequate monitoring to ensure the effectiveness of the remedial action;

(4) In addition to those powers described in Section 3.25.070(a)(1), (2), and (3), carry out all Tribal programs authorized under the federal cleanup law, the Resource Conservation and Recovery Act 42 U. S.C. § 6901 et seq., as amended, and other federal laws;

(5) Classify substances as hazardous substances for purposes of Section 3.25.060(m) of this Chapter;

(6) Issue administrative orders or enter into consent decrees or agreed orders, or issue written opinions under (8) of this subsection that may be conditioned upon, environmental covenants where necessary to protect human health and the environment from a release or threatened release of a hazardous substance from a facility. Prior to establishing an environmental covenant under this subsection, the department shall consult with tribal entities having experience in the subject matter of the order;

(7) Enforce the application of permanent and effective institutional controls that are necessary for a remedial action to be protective of human health and the environment and the notification requirements established in Section 3.25.080 of this Chapter, and impose penalties for violations of that section consistent with Section 3.25.090(e) of this Chapter;

(8) Provide informal advice and assistance to persons regarding the administrative and technical requirements of this chapter. This may include site-specific advice to persons who are conducting or otherwise interested in independent remedial actions. Any such advice or assistance shall be advisory only, and shall not be binding on the department. As a part of providing this advice and assistance for independent remedial actions, the department may prepare written opinions regarding whether the independent remedial actions or proposals for those actions meet the substantive requirements of this chapter or whether the department believes further remedial action is necessary at the facility. The department may collect, from persons requesting advice and assistance, the costs incurred by the department in providing such advice and assistance. The Tribe, the department, and officers and employees of the Tribe are immune from all liability, and no cause of action of any nature may arise from any act or omission in providing, or failing to provide, informal advice and assistance.

(b) The department shall maintain the hazardous sites list.

(1) The department shall give a hazard ranking to sites placed on the list. The purpose of hazard ranking is to estimate, based on the information compiled during the site assessment, the relative potential risk posed by the site to human health and the environment. This assessment considers air, groundwater, and surface water migration pathways, human and nonhuman exposure targets, the presence of threatened or endangered species or habitat, the presence of subsistence crops or resources, tribal uses of the site or surrounding area, historical cultural practices of the site or surrounding area, properties of the substances present, and the interaction of these variables.

(2) The department may, at its discretion, re-rank a site if, before the initiation of action at the site, the department receives additional information within the scope of the evaluation criteria which indicates that a significant change in rank may result.

(3) Site status. The hazardous sites list shall reflect the current status of remedial action at each site. The department may change a site's status to reflect current conditions. The status for each site shall be identified as one of the following:

(A) Sites awaiting further remedial action;

(B) Sites with remedial action in progress;

(D) Other categories established by the department.

(4) The department may remove a site from the list only after it has determined that

(A) all remedial actions except confirmational monitoring have been completed and compliance with the cleanup standards has been achieved at the site;

(B) the listing was erroneous.

(5) A site owner, operator, or potentially responsible person may request that a site be removed from the list by submitting a petition to the department. The petition shall include thorough documentation of all investigations performed, all cleanup actions taken, and adequate compliance monitoring to demonstrate to the department's satisfaction that one of the conditions in (4) of this subsection has been met. The department may require payment of costs incurred, including an advance deposit, for review and verification of the work performed. The department shall review such petitions; however, the timing of the review shall be at its discretion and as resources may allow.

(6) Record of sites. The department shall maintain a record of sites that have been removed from the list under subsection (4) of this section.

(7) Relisting of sites. The department may relist a site that has previously been removed if it determines that the site requires further remedial action.

3.25.080 Releases of Hazardous Substances - Notice

(a) Report of Release: Any owner or operator who has information that a hazardous substance has been released to the environment at the owner or operator's facility and may be a threat to human health or the environment shall report such information to the department immediately.

(1) To the extent known, the report shall include:

(A) The identification and location of the hazardous substance;

(B) The volume or extent of the release;

(D) Any remedial actions planned, completed, or underway. All other persons are encouraged to report such information to the department.

(2) The following, which is not an exhaustive list, are examples of situations that generally should be reported under this section:

(A) Contamination in a water supply well.

(B) Contaminated seeps, sediment or surface water.

(C) Vapors in a building, utility vault or other structure that appear to be entering the structure from nearby contaminated soil or groundwater.

(D) Free product such as petroleum product or other organic liquids on the surface of the ground or in the groundwater.

(E) Any contaminated soil or unpermitted disposal of waste materials that would be classified as a hazardous waste under federal or state law.

(F) Any abandoned containers such as drums or tanks, above ground or buried, still containing more than trace residuals of hazardous substances.

(G) Sites where unpermitted industrial waste disposal has occurred.

(H) Sites where hazardous substances have leaked or been dumped on the ground.

(I) Leaking underground petroleum storage tanks.

(3) Exemptions. The following releases are exempt from these notification requirements:

(A) Application of pesticides and fertilizers for their intended purposes and according to label instructions, if the use of those pesticides and fertilizers are otherwise permitted on the Reservation under Tribal law;

(B) Lawful and non-negligent use of hazardous substances by a natural person for personal or domestic purposes;

(D) A release previously reported to the department in fulfillment of a reporting requirement in this chapter or in another law or regulation;

(E) A release previously reported to the United States Environmental Protection Agency under CERCLA, Section 103(c) (42 U.S.C. Sec. 9603(c)), if notice of such report is provided to the department; or

(F) An approved release to a permitted wastewater facility.

An exemption from the notification requirements in this section does not imply a release from liability under this chapter.

(b) Department response. Within ninety days of receiving information under this section, the department shall conduct an initial investigation in accordance with this chapter. For sites where a responsible party has taken immediate action or conducted an independent cleanup action, the department shall review reports that document independent cleanup actions. The review of such reports shall include an evaluation of whether the site qualifies for removal from the hazardous sites list or whether further remedial action is required.

(c) Other obligations. Nothing in this section shall eliminate any obligations to comply with reporting requirements that may exist in a permit or under other laws.

3.25.090 Enforcement and Penalties

(a) With respect to any release, or threatened release, for which the department does not conduct or contract for conducting remedial action and for which the department believes remedial action is in the public interest, the director shall issue orders or agreed orders requiring potentially responsible persons to provide the remedial action. Any responsible person, or prospective purchaser who has entered into an agreed order under Section 3.25.070(a)(6) of this chapter, who refuses, without sufficient cause, to comply with an order or agreed order of the director is liable in an action brought by the Tribe for:

(1) Up to three times the amount of any costs incurred by the department as a result of the party's refusal to comply, including attorney's fees; and

(2) A civil penalty of up to $25,000 for each day the party refuses to comply.

(b) Any person who is not a responsible person under Section 3.25.120(a) who incurs costs complying with an order issued under subsection (a) of this section may petition the department for reimbursement of those costs. If the department refuses to grant reimbursement, the person may within thirty days thereafter file suit in tribal court and recover such costs by proving that he or she was not a responsible person under this chapter and that the costs incurred were reasonable.

(c) The Tribe shall seek, by filing an action if necessary in a court of competent jurisdiction, to recover the amounts spent by the department for investigative and remedial actions and orders, and agreed orders.

(d) The Tribe may bring an action to secure such relief as is necessary to protect human health and the environment under this chapter.

(e) Any person who fails to provide notification of releases consistent with this chapter or who submits false information is liable in an action brought by the Tribe for a civil penalty of up to $5,000 per day for each day the party refuses to comply.

(f) Any penalties recovered under this section, in excess of unreimbursed costs incurred by the department, shall be deposited to the cleanup fund.

3.25.100 Consent Decrees

The Bad River Tribal Court shall have jurisdiction over the entry and enforcement of Consent Decrees pursuant to Bad River Tribal Court Code Section 1.06.010(a)(5).

(a) Procedures for consent decrees initiated by the department. When the department believes that a consent decree will be a more expeditious method to achieve remedial action at a facility, it may initiate the procedures set forth in this subsection by sending a letter to the potentially responsible person. The letter shall be sent via certified mail, return receipt requested, or by personal service.

(1) The letter shall:

(A) Inform potentially responsible person(s) that the department wants to begin negotiations which may lead to a consent decree providing for remedial action;

(B) Propose a draft consent decree and scope of work;

(D) Reference the department's finding under Section 3.25.070(a)(8) of this Chapter regarding whether the remedial actions or proposals for those actions meet the substantive requirements of this chapter or whether the department believes further remedial action is necessary at the facility;

(E) Request a written statement of the potentially responsible person's willingness to proceed with the negotiation process defined in the letter; and

(F) Request the names of other persons whom the person has reason to believe may be potentially responsible persons at the facility.

(2) The letter may request the potentially responsible person to respond, in writing, to the proposed draft consent decree and scope of work before beginning the negotiation phase.

(3) Negotiations. The department, with the assistance of the office of the Tribal Attorney, shall negotiate with potentially responsible persons who have indicated to the department a willingness to proceed with the negotiations. The negotiation time frame shall begin from the date the potentially responsible person receives the letter under (1) of this subsection unless modified by the department. Negotiations may address one or more phases of remedial action.

(4) Enforcement stay. Unless an emergency exists, the department will stay any enforcement action under Section 3.25.090 of this Chapter, but the duration of the stay shall not exceed ninety days from the date negotiations begin. The department can withdraw from negotiations if it determines that:

(A) Reasonable progress is not being made toward a consent decree acceptable to the department; or

(B) The proposal is inappropriate based on new information or changed circumstances. The department may commence with enforcement action after notifying the potentially liable person, in writing, of its intent to withdraw from negotiations.

(5) Deadline extensions. The department may, at its discretion, extend the deadline for negotiations established in (3) of this subsection, provided the extension does not exceed thirty days.

(b) Procedures for consent decrees initiated by potentially responsible persons. To request a consent decree a person shall submit a letter to the department via certified mail, return receipt requested, or by personal delivery.

(1) Request. The letter shall describe, based on available information:

(A) The proposed remedial action, including the schedule for the work;

(B) Information which demonstrates that the settlement will lead to a more expeditious cleanup, be consistent with cleanup standards if the remedial action is a cleanup action, and be consistent with any previous orders;

(D) The environmental problems to be addressed including a description of the releases at the facility and the potential impact of those releases to human health and the environment;

(E) A summary of the relevant historical use or conditions at the facility;

(F) The date on which the potentially responsible person will be ready to submit a detailed proposal;

(G) Any special scheduling considerations for implementing the remedial actions; and

(H) Names of other persons who the person has reason to believe may be potentially responsible persons at the facility.

(2) The letter may include the contents of detailed proposal under (6) of this subsection.

(3) Recognizing that the steps of the cleanup process may be combined and may vary by site, the information in the request shall be at the level of detail appropriate to the steps in the process for which the consent decree is requested. For example, a request for a consent decree for a remedial investigation/feasibility study should generally include the level of information needed for a site hazard assessment, if not already done by the department, so that the department can evaluate the proposed scope of work and relative priority of the site.

(4) The department may waive part of the letter requirements of (1) of this subsection if the requirements have already been met.

(5) Response. The department shall respond to the request within sixty days, unless the department needs additional time. The department may:

(A) Request additional information;

(B) Accept the request and require the person to submit a detailed written proposal by a specified date; or

(6) Contents of detailed proposal. The proposal shall contain:

(A) A proposed technical scope of work describing the remedial action to be conducted;

(B) The data, studies, or any other information upon which the settlement proposal is based;

(C) A statement describing the potentially responsible person's ability to conduct or finance the remedial action as described in the proposed scope of work;

(D) A schedule for proposed negotiations and implementation of the proposed remedial actions; and

(E) Any additional information requested by the department.

(7) The department shall determine whether the proposal provides a sufficient basis for negotiations, and shall deliver to the potentially responsible person within sixty days following receipt of their proposal a written notice indicating whether or not the proposal is sufficient to proceed with negotiations.

(8) Time limits for negotiations. The department shall set the time period and starting date for negotiations. The department, with the assistance of the Tribal Attorney, shall then negotiate with those potentially responsible persons who have received a notice under (7) of this subsection that their proposal was sufficient to proceed with negotiations. Negotiations may address one or more phases of remedial action.

(9) Enforcement stay. Unless an emergency exists, the department will stay any enforcement action under Section 3.25.090 of this Chapter, but the duration of such stay shall not exceed one hundred twenty days from the date negotiations begin. The department can withdraw from negotiations if it determines that:

(A) Reasonable progress is not being made toward a consent decree acceptable to the department; or

(B) The proposal is inappropriate based on new information or changed circumstances.

The department may begin an enforcement action after notifying the potentially liable person, in writing, of its intent to withdraw from negotiations.

(c) Filing a decree. The department shall determine whether the proposed settlement negotiated under subsection (a) or (b) of this section, is more expeditious and consistent with cleanup standards established and in compliance with any order issued by the department relevant to the remedial action. The department shall forward the proposed consent decree to the office of the Tribal Attorney. If agreed to by the Tribal Attorney, the consent decree will be filed by that office with the tribal court.

3.25.110 Agreed Orders

(a) Purpose. Agreed orders may be used for all remedial actions. An agreed order means that the potentially responsible person agrees to perform remedial actions at the site in accordance with the provisions of the agreed order and that the department will not take additional enforcement action against the potentially responsible person to require those remedial actions specified in the agreed order so long as the potentially responsible person complies with the provisions of the order. Since an agreed order is not a settlement, an agreed order shall not provide a covenant not to sue, or protection from claims for contribution. The department may require additional remedial actions should it deem such actions necessary.

(b) Procedures for agreed orders initiated by a potentially responsible person.

(1) To request an agreed order, a person shall submit a letter to the department based on available information, describing:

(A) The proposed remedial action including a schedule for the work;

(B) The facility, including location and boundaries;

(C) The environmental problems to be addressed, including the releases at the facility and the potential impact of those releases to human health and the environment;

(D) A summary of the relevant historical use or conditions at the facility; and

(E) Names of other persons whom the person has reason to believe may be potentially responsible persons at the facility.

(2) Recognizing that the basic steps of the cleanup process may be combined and may vary by site, the information in the request shall be at the level of detail appropriate to the step in the process for which the order is requested. For example, a request for an agreed order for a remedial investigation/feasibility study should generally include the level of information needed for a site hazard assessment, so that the department and the public can evaluate the proposed scope of work and relative priority of the site.

(3) The department may waive part of the letter requirements of (1) of this subsection if the requirements have already been met.

(c) Department response to potentially responsible party-initiated request. The department shall respond to the request within sixty days, unless the department needs additional time. The department may:

(1) Request additional information;

(2) Proceed with discussions, if the department believes it is in the public interest to do so; or (c) Provide written reasons for denying the request.

(d) Procedures for agreed orders initiated by the department. When the department believes that an agreed order is an appropriate method to achieve remedial action at a facility, it may initiate the request for an agreed order.

(e) Duration of discussions. Discussions on the agreed order shall not exceed sixty days unless the department decides continued discussions are in the public interest.

(f) Enforcement. Unless an emergency exists, the department will stay any enforcement action under Section 3.25.090 of this Chapter; however, the duration of such stay shall not exceed sixty days from the date discussions begin. Furthermore, the department can withdraw from discussions if it determines that:

(1) Reasonable progress is not being made toward an agreed order acceptable to the department; or

(2) The agreed order is inappropriate based on new information or changed circumstances.

The department may begin an enforcement action after notifying the potentially responsible person in writing of its intent to withdraw from discussions.

(g) Focus of discussions. The focus of discussions for the agreed order shall ordinarily be the technical scope of work and work schedule. This subsection is not intended to preclude discussion on any item. It is intended to convey the expectation that the scope of work and work schedule will be the primary topics of discussion in developing agreed orders.

3.25.120 Standard of Liability

(a) Except as provided in subsection (c) of this section, the following persons are liable with respect to a facility:

(1) The owner or operator of the facility;

(2) Any person who owned or operated the facility at the time of disposal or release of the hazardous substances;

(3) Any person who owned or possessed a hazardous substance and who by contract, agreement, or otherwise arranged for disposal or treatment of the hazardous substance at the facility, or arranged with a transporter for transport for disposal or treatment of the hazardous substances at the facility, or otherwise generated hazardous wastes disposed of or treated at the facility;

(4) Any person (i) who accepts or accepted any hazardous substance for transport to a disposal, treatment, or other facility selected by such person from which there is a release or a threatened release for which remedial action is required, unless such facility, at the time of disposal or treatment, could legally receive such substance; or (ii) who accepts a hazardous substance for transport to such a facility and has reasonable grounds to believe that such facility is not operated in accordance with applicable law;

(5) Any person who both sells a hazardous substance and is responsible for written instructions for its use if (i) the substance is used according to the instructions and (ii) the use constitutes a release for which remedial action is required at the facility; and

(6) Any person whose off-Reservation conduct causes a release or a threatened release of hazardous substances on the Reservation.

(b) Each person who is liable under this section is strictly liable, jointly and severally, for all remedial action costs and for all natural resource damages resulting from the releases or threatened releases of hazardous substances. The Tribal Attorney, at the request of the department, is empowered to recover all costs and damages from persons liable therefor. All costs and damages in excess of unreimbursed costs incurred by the department shall be deposited to the cleanup fund.

(1) Any person who can establish that the release or threatened release of a hazardous substance for which the person would be otherwise responsible was caused solely by:

(A) An act of nature;

(B) An act of war; or

1. An employee or agent of the person asserting the defense, or

2. Any person whose act or omission occurs in connection with a contractual relationship existing, directly or indirectly, with the person asserting this defense to liability. This defense only applies where the person asserting the defense has exercised the utmost care with respect to the hazardous substance, the foreseeable acts or omissions of the third party, and the foreseeable consequences of those acts or omissions;

(2) Any person who is an owner, past owner, or purchaser of a facility and who can establish by a preponderance of the evidence that at the time the facility was acquired by the person, the person had no knowledge or reason to know that any hazardous substance, the release or threatened release of which has resulted in or contributed to the need for the remedial action, was released or disposed of on, in, or at the facility. This subsection (c)(2) is limited as follows:

(A) To establish that a person had no reason to know, the person must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property, consistent with good commercial or customary practice, in an effort to minimize liability. Any court interpreting this subsection (c)(2) shall take into account any specialized knowledge or experience on the part of the person, the relationship of the purchase price to the value of the property, if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection;

(B) The defense contained in this subsection (c)(2) is not available to any person who had actual knowledge of the release or threatened release of a hazardous substance when the person owned the real property and who subsequently transferred ownership of the property without first disclosing such knowledge to the transferee;

(C) The defense contained in this subsection (c)(2) is not available to any person who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance at the facility;

(3) Any natural person who uses a hazardous substance lawfully, and without negligence, for any personal or domestic purpose in or near a dwelling or accessory structure when that person is: (i) A resident of the dwelling; (ii) a person who, without compensation, assists the resident in the use of the substance; or (iii) a person who is employed by the resident, but who is not an independent contractor; or

(4) Any person who, for the purpose of growing food crops, applies pesticides or fertilizers without negligence and in accordance with all applicable laws and regulations; or

(5) The Tribe or a Tribal entity.

3.25.130 Natural Resource Damages

In the case of an injury to, destruction of, or loss of natural resources that cannot be restored to pre-release conditions, the responsible party shall be liable to the Tribe for natural resources belonging to, managed by, controlled by, or appertaining to the Tribe, or held in trust for the benefit of the Tribe, or belonging to a member of the Tribe if such resources are subject to a trust restriction on alienation. The department shall act on behalf of the Tribe as trustee of such natural resources to recover for such damages. Sums recovered by the department as trustee, which shall include attorney's fees and litigation costs and the costs of assessment, shall be used to restore, replace, or acquire the equivalent of such natural resources.

3.25.140 Settlement

(a) There may be no settlement by the department with any person liable under this chapter except in accordance with this section.

(1) The Tribal Attorney may agree to a settlement with any potentially responsible person only if the department finds, after public notice and any required hearing, that the proposed settlement would lead to a more expeditious cleanup of hazardous substances in compliance with clean-up standards under this chapter and with any remedial orders issued by the department. Whenever practicable and in the public interest, the Tribal Attorney may expedite such a settlement with persons whose contribution is determined by the department to be insignificant in amount and toxicity.

(2) A settlement agreement under this section shall be entered as a consent decree issued by a court of competent jurisdiction.

(3) A settlement agreement may contain a covenant not to sue only of a scope commensurate with the settlement agreement in favor of any person with whom the Tribal Attorney has settled under this section. Any covenant not to sue shall contain a reopener clause which requires the court to amend the covenant not to sue if factors not known at the time of entry of the settlement agreement are discovered and present a previously unknown threat to human health or the environment.

(4) A party who has resolved its liability to the department under this section shall not be liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other responsible parties but it reduces the total potential liability of the others to the department by the amount of the settlement.

(5) If the department has entered into a consent decree with an owner or operator under this section, the Tribe shall not enforce this chapter against any owner or operator who is a successor in interest to the settling party unless under the terms of the consent decree the tribe could enforce against the settling party, if:

(A) The successor owner or operator is liable with respect to the facility solely due to that person's ownership interest or operator status acquired as a successor in interest to the owner or operator with whom the Tribe has entered into a consent decree; and

(B) The stay of enforcement under this subsection does not apply if the consent decree was based on circumstances unique to the settling party that do not exist with regard to the successor in interest, such as financial hardship.

(6) Any person who is not subject to enforcement by the department under (5) of this subsection is not liable for claims for contribution regarding matters addressed in the settlement.

(b) In addition to the settlement authority provided under subsection (a) of this section, the Tribal Attorney may agree to a settlement with a prospective purchaser, provided that:

(1) The settlement will yield substantial new resources to facilitate cleanup;

(2) The settlement will expedite remedial action at the facility consistent with the rules adopted under this chapter; and

(3) Based on available information, the department determines that the redevelopment or reuse of the facility is not likely to contribute to the existing release or threatened release, interfere with remedial actions that may be needed at the facility, or increase health risks to persons at or in the vicinity of the facility.

(c) Nothing in this chapter affects or modifies in any way any person's right to seek or obtain relief under other statutes or under Tribal law or common law, including but not limited to damages for injury or loss resulting from a release or threatened release of a hazardous substance. No settlement by the department or remedial action ordered by a court or the department affects any person's right to obtain a remedy under Tribal law, common law or other statutes.

3.25.150 Cleanup Fund

(a) The Department shall establish a Contaminated Site Cleanup Fund ("cleanup fund").

(b) The Fund shall be used to:

(1) Take or provide funds for immediate action where the department has determined such action is required to protect human health or the environment and a potentially responsible party is unable or cannot be compelled to take such action;

(2) Investigate or provide funds for the investigation of any releases or threatened releases of hazardous substances, including but not limited to inspecting, sampling, or testing to determine the nature or extent of any release or threatened release a potentially responsible party is unable or cannot be compelled to take such action;

(3) Conduct or provide funds for conducting remedial actions (including investigations under (2) of this subsection) to remedy releases or threatened releases of hazardous substances;

(4) Provide funds necessary to prosecute an action to recover the department's costs of immediate action, investigation of releases or threatened releases, remedial action, and/or costs or penalties available under Section 3.25.090 for noncompliance with this ordinance; and

(5) Reimburse a person who is not a responsible party under Section 3.25.120(a) any reasonable costs he or she has incurred either:

i. complying with an order issued by the department under Section 3.25.090(a); or,

ii. performing an immediate action and/or remedial action where the department has determined such action was required to protect human health or the environment

(c) The Fund shall be financed through deposits made pursuant to Section 3.25.090(f) and Section 3.25.120(b) of this Chapter, and through deposits of such fees or taxes on the manufacture, sale, or transport of hazardous substances on or through the Reservation as may be required under tribal law.

3.25.160 Remedial Actions

(a) The department shall select appropriate remedial actions determined to be necessary to be carried out under section Section 3.25.070(a) of this chapter.

(b) Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment.

(c) The offsite transport and disposal of hazardous substances or contaminated materials without such treatment should be the least favored alternative remedial action where practicable treatment technologies are available.

(d) In assessing alternative remedial actions, the department shall, at a minimum, take into account:

(1) the persistence, toxicity, mobility, and propensity to bioaccumulate of the hazardous substances and their constituents;

(2) short- and long-term potential for adverse health effects from human exposure;

(3) short- and long-term potential for adverse effects to the environment; and

(4) the potential threat to human health and the environment associated with excavation, transportation, and redisposal, or containment.

(e) Remedial actions under this chapter shall attain a degree of cleanup and of control of further release which assures, at a minimum, protection of human health and the environment. Such remedial actions shall be relevant and appropriate under the circumstances presented by the release or threatened release of such substance, pollutant, or contaminant.

3.25.170 No Further Action/Certificate of Completion

(a) If the department concludes that a responsible party has completed all necessary remedial actions, and cleanup standards for the site have been achieved, the department may make a determination that no further action is required and update the hazardous sites list pursuant to Section 3.25.070(b)(3).

(b) A responsible party conducting the remediation may request a Certificate of Completion from the department. Upon receiving such a request, the department may (a) grant the Certificate, (b) deny the request, or (c) notify the submitter that there is insufficient information on which the department can make a decision, and specify what information is missing and is necessary for a decision. In the event of a denial, the department shall specify the reasons for the denial.

3.25.180 Appeals

The department's investigative and remedial decisions under Section 3.25.070, Section 3.25.090, and Section 3.25.160 of this chapter, and its decisions regarding liable persons under Section 3.25.120 of this chapter shall be appealable exclusively to Tribal court and only at the following times:

(a) In a suit by the department to enforce an order or an agreed order, or seek a civil penalty under Section 3.25.090(a);

(b) In a suit for reimbursement under Section 3.25.090(b);

(d) In a suit by the department to compel investigative or remedial action.

The Tribe grants a limited waiver of the sovereign immunity of the department for the sole purpose of permitting a liable person to appeal the department's decisions to Tribal court as provided pursuant to this section. The court shall uphold the department's actions unless they were arbitrary and capricious. The amount of reasonable costs which may be reimbursable by the department under Section 3.25.090(b) is limited to those funds available in the Cleanup Fund at the time of suit under this section. Nothing in this section shall be deemed a waiver of the Tribe's sovereign immunity, nor consent to suit other than as provided in Section 3.25.180, nor consent to the entry or enforcement of a money judgment against the Tribe's general funds.

Appendix A-1 Mining Wastes

"Mining waste" means waste generated during the extraction, beneficiation, and processing of minerals, including but not limited to slag from primary copper processing, slag from primary lead processing, red and brown muds from bauxite refining, phosphogypsum from phosphoric acid production, slag from elemental phosphorous production, gasifier ash from coal gasification, process wastewater from coal gasification, calcium sulfate wastewater treatment plant sludge from primary copper processing, slag tailings from primary copper processing, flurogypsum from hydrofluoric acid production, process wastewater from hydrofluoric acid production, air pollution control dust/sludge from iron blast furnaces, iron blast furnace slag, treated residue from roasting/leaching of chrome ore, process wastewater from primary magnesium processing by the anhydrous process, process wastewater from phosphoric acid production, basic oxygen furnace and open hearth furnace air pollution control dust/sludge from carbon steel production, basic oxygen furnace and open hearth furnace slag from carbon steel production, chloride process waste solids from titanium tetrachloride production, slag from primary zinc processing, and friable, finely and powdered wastes containing more than one percent (1.0%) asbestos.

Appendix A-2 Surface Water Cleanup Levels

The minimum cleanup levels for surface water shall be the narrative and numeric criteria of the Bad River Band of the Lake Superior Tribe of Chippewa Indians Water Quality Standards. These cleanup levels shall remain in effect until the Department amends them. The Department may also establish more stringent cleanup levels for a specific site, when, based on a site-specific evaluation, the Department determines that such levels are necessary to protect human health and the environment.

Appendix A-3 Groundwater Cleanup Levels

The following chart indicates the minimum cleanup levels for ground water, in terms of amount of individual hazardous substance per unit volume, for the hazardous substances listed. These cleanup levels shall remain in effect until the Department amends them. The Department may also establish more stringent cleanup levels for a specific site, when, based on a site-specific evaluation, the Department determines that such levels are necessary to protect human health and the environment. For substances not listed below, refer to the Wisconsin Public Health Groundwater Quality Standards Table I Preventive Action Limits.

Substance	CAS Number	Cleanup Levels (in μg/L) unless otherwise noted
Acetochlor	34256-82-1	7
Acetochlor ethane sulfonic acid + oxanilic acid (Acetochlor - ESA + OXA)	187022-11-3 (ESA) 184992-44-4 (OXA)	230
Acetone	67-64-1	9 mg/l
Alachlor	15972-60-8	2
Alachlor ethane sulfonic acid (Alachlor − ESA)	142363-53-9	20
Aldicarb	116-06-3	10
Aluminum	7429-90-5	200
Ammonia (as N)	7664-41-7	9.7 mg/l
Antimony	7440-36-0	6
Anthracene	120-12-7	3000
Arsenic	7440-38-2	5
Asbestos	1332-21-4	7 million fibers per liter (MFL)
Atrazine, total chlorinated residues	1912-24-9	3*
Bacteria, Total Coliform		0**
Barium	7440-39-3	2 milligrams/liter (mg/l)
Bentazon	25057-89-0	300
Benzene	71-43-2	5
Benzo(b)fluoranthene	205-99-2	0.2
Benzo(a)pyrene	50-32-8	0.2
Beryllium	7440-41-7	4
Boron	7440-42-8	1000
Bromodichloromethane	75-27-4	0.6
Bromoform	75-25-2	4.4
Bromomethane	74-83-9	10
Butylate	2008-41-5	400
Cadmium	7440-43-9	5
Carbaryl	63-25-2	40
Carbofuran	1563-66-2	40
Carbon disulfide	75-15-0	1000
Carbon tetrachloride	56-23-5	5
Chloramben	133-90-4	150
Chlordane	57-74-9	2
Chlorodifluoromethane	75-45-6	7 mg/l 0.7 mg/l
Chloroethane	75-00-3	400
Chloroform	67-66-3	6
Chlorpyrifos	2921-88-2	2
Chloromethane	74-87-3	30
Chromium (total)	7440-47-3	50
Chrysene	218-01-9	0.2
Cobalt	7440-48-4	40
Copper	7440-50-8	1300
Cyanazine	21725-46-2	1
Cyanide, free¹	57-12-5	200
Dacthal	1861-32-1	70
Dichlorodiphenyltrichloroethane (DDT)	50-29-3	0.1
1, 2−Dibromoethane (EDB)	106-93-4	0.05
Dibromochloromethane	124-48-1	60
1, 2−Dibromo−3−chloropropane (DBCP)	96-12-8	0.2
Dibutyl phthalate	84-74-2	1000
Dicamba	1918-00-9	300
1,2−Dichlorobenzene	95-50-1	600
1,3−Dichlorobenzene	541-73-1	600
1,4−Dichlorobenzene	106-46-7	75
Dichlorodifluoromethane	75-71-8	1000
1,1−Dichloroethane	75-34-3	850
1,2−Dichloroethane	107-06-2	5
1,1−Dichloroethylene	75-35-4	7
1,2−Dichloroethylene (cis)	540-59-0	70
1,2−Dichloroethylene (trans)	540-59-0	100
2,4−Dichlorophenoxyacetic Acid (2,4−D)	94-75-7	70
1,2−Dichloropropane	78-87-5	5
1,3−Dichloropropene (cis/trans)	542-75-6	0.4
Di (2−ethylhexyl) phthalate	117-81-7	6
Dimethenamid/Dimethenamid−P	87674-68-8	50
Dimethoate	60-51-5	2
2,4−Dinitrotoluene	121-14-2	0.05
2,6−Dinitrotoluene	606-20-2	0.05
Dinitrotoluene, Total Residues²	25321-14-6	0.05
Dinoseb	88-85-7	7
1,4−Dioxane	123-91-1	3
Dioxin (2, 3, 7, 8-TCDD)	1746-01-6	0.00003
Endrin	72-20-8	2
EPTC	759-94-4	250
Ethylbenzene	107-06-2	5
Ethyl ether	60-29-7	1000
Ethylene glycol	107-21-1	14 mg/l
Fluoranthene	206-44-0	400
Ethylene dibromide	106-93-4	0.01
Fluorene	86-73-7	400
Fluoride	16984-48-8	4 mg/l
Fluorotrichloromethane	75-69-4	490
Formaldehyde	50-00-0	1000
Gross Alpha Particle Activity		15.0 pCi/l
Gross Beta Particle Activity		4.0 mrem/yr
Heptachlor	76-44-8	0.4
Heptachlor epoxide	1024-57-3	0.2
Hexachlorobenzene	118-74-1	1
N−Hexane	110-54-3	600
Hydrogen sulfide	7783-06-04	30
Lead	7439-92-1	5
Lindane	58-89-9	0.2
Manganese	7439-96-5	300
Mercury	7439-97-6	2
Methanol	67-56-1	5000
Methoxychlor	72-43-5	40
Methylene chloride	75-09-2	5
Methyl ethyl ketone (MEK)	78-93-3	4 mg/l
Methyl isobutyl ketone (MIBK)	108-10-1	500
Methyl tert−butyl ether (MTBE)	1634-04-4	60
Metolachlor/s−Metolachlor	51218-45-2	100
Metolachlor ethane sulfonic acid + oxanilic acid (Metolachlor − ESA + OXA)	947601-85-6; 152019-73-3	1.3 mg/l
Metribuzin	21087-64-9	70
Molybdenum	7439-98-7	40
Monochlorobenzene	108-90-7	100
Naphthalene	91-20-3	100
Nickel	7440-02-0	100
Nitrate (as N)	14797-55-8	10 mg/l
Nitrate + Nitrite (as N)	14797-55-8	10 mg/l
Nitrite (as N)	14797-65-0	1 mg/1
N−Nitrosodiphenylamine	62-75-9	7
Polycyclic Aromatic Hydrocarbons		0.1
Pentachlorophenol (PCP)	87-86-5	1
Perchlorate	14797-73-0	1
Phenol	108-95-2	2 mg/l
Picloram	1918-02-01	500
Polychlorinated biphenyls (PCBs)	53469-21-9	0.03
Prometon	1610-18-0	100
Propazine	139-40-2	10
Pyrene	129-00-0	250
Pyridine	110-86-1	10
Radium 226 and 228	7440-14-4	5.0 pCi/l
Radium 226	13982-63-3	3.0 pCi/l
Selenium	7782-49-2	50
Silver	7440-22-4	50
Simazine	122-34-9	4
Styrene	100-42-5	100
Tertiary Butyl Alcohol (TBA)	75-65-0	12
1,1,1,2−Tetrachloroethane	630-20-6	70
1,1,2,2−Tetrachloroethane	79-34-5	0.2
Tetrachloroethylene	127-18-4	5
Tetrahydrofuran	109-99-9	50
Thallium	7440-28-0	2
Toluene	108-88-3	40
Total Petroleum Hydrocarbons		1000
Toxaphene	8001-35-2	3
1,2,4−Trichlorobenzene	120-82-1	70
1,1,1−Trichloroethane	71-55-6	200
1,1,2−Trichloroethane	79-00-5	5
Trichloroethylene (TCE)	79-01-6	5
2,4,5−Trichlorophenoxy−propionic acid (2,4,5-TP)	93-72-1	50
1,2,3−Trichloropropane	96-18-4	60
Trifluralin	1582-09-8	7.5
Trimethylbenzenes (1,2,4- and 1,3,5-combined)	95-63-6, 108-67-8	480
Vanadium	1314-62-1	30
Vinyl chloride	75-01-4	0.2
Xylene³	1330-20-7	20

* Total chlorinated atrazine residues includes parent compound and the following metabolites of health concern: 2-chloro-4-amino-6-isopropylamino-s-tiazine (formally deethylatrazine), 2-chloro-4-amino-6- ethylamino-s-triazine (formally deisopropylatrazine) and 2-chloro-4,6-diamino-s-triazine (formally diaminoatrazine).

** Total coliform bacteria may not be present in any 100 ml sample using either the membrane filter (MF) technique, the presence-absence (P-A) coliform test, the minimal medium ONPG-MUG (MMO- MUG) test or not present in any 10 ml portion of the 10-tube multiple tube fermentation (MTF) technique.

¹"Cyanide, free" refers to the simple cyanides (HCN, CN^-) and/or readily dissociable metal-cyanide complexes. Free cyanide is regulatorily equivalent to cyanide quantified by approved analytical methods for "amendable cyanide" or "available cyanide".

²Dinitrotoluene, Total Residues includes the dinitrotoluene (DNT) isomers: 2,3-DNT, 2,4-DNT, 2,5- DNT, 2,6-DNT, 3,4-DNT, and 3,5-DNT.

³Xylene includes meta-, orth-, and para-xylene combined.

Appendix A-4 Sediment Cleanup Levels

The following charts, Chart I and Chart II, indicate the minimum numerical cleanup levels for contamination in sediments caused by the listed hazardous substances.

Chart I indicates the sediment cleanup levels for the protection of human health. These cleanup levels are given in µg of contaminant/kg of organic carbon.

Chart II indicates the sediment cleanup levels for the protection of sediment-dwelling organisms. The cleanup levels in Chart II are given in the units shown in the chart. To the extent that there are two sediment standards for the same compound the lower standard shall control. Response actions must also comply with the following narrative standards for sediments.

In the case of a substance for which there is no numerical standard in Chart I, the following narrative standard shall apply:

Bioaccumulative substances shall not occur in sediments, either singly or in combination at concentrations that cause, or can reasonably be expected to cause, injury to human health or biological resources including sediment-dwelling organisms and biological communities.

In the case of a substance for which there is no numerical standard in Chart II, the following narrative standard shall apply:

Toxic substances shall not occur in sediments, either singly or in combination, at concentrations that cause, or can reasonably be expected to cause, injury to human health or biological resources including sediment-dwelling organisms and biological communities.

These numerical sediment cleanup levels and narrative sediment cleanup levels shall remain in effect until the Department amends them. The Department may also establish more stringent cleanup levels for a specific site, when, based on a site-specific evaluation, the Department determines that such levels are necessary to protect human health and the environment.

For substances not listed below, refer to the EPA Region III BTAG Freshwater Sediment Screening Benchmarks.

Chart I. Sediment Cleanup Levels for the Protection of Human Health

Substance	Cleanup Levels (in μg/kg) unless otherwise noted
Polycyclic Aromatic Hydrocarbons
Benzo(a)pyrene	21.6
Dibenz[a,h]anthracene	21.6
Benz[a]anthracene	21.6
Chrysene	13.8
Benzo(b)fluoranthene	21.6
Benzo(k)fluoranthene	21.6
Ideno(a,2,3-cd)pyrene	21.6
Polychlorinated Biphenyls
Aroclor 1016	1.54
Aroclor 1242	0.533
Aroclor 1248	0.533
Aroclor 1254	0.533
Aroclor 1260	0.533
Total PCBs	0.533
Pesticides
Aldrin	0.0408
Chlordane	0.533
Dieldrin	0.0439
p,p-DDD	2.85
p,p-DDE	1.72
p,p-DDT	2.04
Total DDT	2.54
Endosulfan	11300
Endrin	172
Heptachlor	0.408
Heptachlor epoxide	0.204
Alpha-hexachlorocyclohexane (HCH)	0.295
Beta-HCH	1.00
Technical-HCH	1.03
Lindane (gamma-HCH)	1.44
Mirex	17.8
Toxaphene	5.08
Dioxins and Furans
1,2,3,4, 6,7,8-Heptachlorodibenzo-p-dioxin	3.76
1,2,3,4,6,7,8-Heptachlorodibenzofuran	3.76
1,2,3,4,7,8,9-Heptachlorodibenzofuran	3.76
1,2,3,4,7,8-Hexachlorodibenzo-p-dioxin	0.0144
1,2,3,4,7,8-Hexachlorodibenzofuran	0.0144
1,2,3,6,7,8-Hexachlorodibenzo-p-dioxin	0.0144
1,2,3,6,7,8-Hexachlorodibenzofuran	0.0144
1,2,3,7,8,9-Hexachlorodibenzo-p-dioxin	0.0144
1,2,3,7,8,9-Hexachlorodibenzofuran	0.0144
1,2,3,7,8-Pentachlorodibenzo-p-dioxin	0.00288
1,2,3,7, 8-Pentachlorodibenzofuran	0.00815
2,3,4,6,7,8-Hexachlorodibenzofuran	0.0144
2,3,4,7,8-Pentachlorodibenzofuran	0.000972
2,3,7,8-Tetrachlorodibenzo-p-dioxin	0.0000470
2,3,7,8-Tetrachlorodibenzofuran	0.00408
Octachlorodibenzodioxin	37.6
Octachlorodibenzofuran	37.6

Chart II. Sediment Cleanup Levels for the Protection of Sediment-dwelling Organisms

Polycyclic Aromatic Hydrocarbons	(μg/kg Dry Weight)
Metals
Antimony	2.0
Arsenic	9.79
Cadmium	0.99
Chromium	43.4
Copper	31.6
Lead	35.8
Mercury	0.18
Nickel	22.7
Silver	1.6
Zinc	121.0
Anthracene	57.2
Fluorene	77.4
Naphthalene	176
Phenanthrene	204
Benz[a]anthracene	108
Benzo(a)pyrene	150
Chrysene	166
Fluoranthene	423
Pyrene	195
Total PAHs	1610
Polychlorinated Biphenyls	(μg/kg Dry Weight)
Total PCBs	59.8
Organochlorine Pesticides	(μg/kg Dry Weight)
Chlordane	3.24
Diedrin	1.90
Sum DDD	4.88
Sum DDE	3.16
Sum DDT	4.16
Total DDTs	5.28
Endrin	2.22
Heptachlor Epoxide	2.47
Lindane (Gamma-BHC)	2.37

Appendix A-5 Soil Cleanup Levels

The following chart indicates the minimum cleanup levels for soil, in terms of amount of individual hazardous substance per unit mass, for the hazardous substances listed. These cleanup levels shall remain in effect until the Department amends them. The Department may also establish more stringent cleanup levels for a specific site, when, based on a site-specific evaluation, the Department determines that such levels are necessary to protect human health and the environment. For substances not listed below, the Department may refer to the Wisconsin Soil Cleanup Standards, Chapter NR 720.

Substance	CAS Number	Cleanup Levels (in mg/kg)
Arsenic	7440-38-2	20.0
Benzene	71-43-2	0.5
Cadmium	7440-43-9	2.0
Chromium	7440-47-3	100.0
DDT	50-29-3	1.0
Ethylbenzene	100-41-4	20.0
Ethylene dibromide	106-93-4	0.001
Lead	7439-92-1	250
Lindane	58-89-9	1.0
Methylene chloride	75-09-2	0.5
Mercury (inorganic)	7439-97-6	1.0
PAHs (carcinogenic)		1.0
PCB Mixtures		1.0
Tetrachloroethylene	127-18-4	0.5
Toluene	108-88-3	40.0
TPH (gasoline)		100.0
TPH (diesel)		200.0
TPH (other)		200.0
1, 1, 1, Trichloroethane	71-55-6	20.0
Trichloroethylene	79-01-5	0.5
Xylenes	1330-20-7	20.0