Chapter 11.05 PERMITTING

C. The Chehalis Reservation and other Tribal lands are a small land base that must provide for the economic, residential, cultural, recreational and governmental needs of the Chehalis Tribal community, now and in the future;

D. The Chehalis Reservation and other Tribal lands contain ecologically sensitive lands, culturally sensitive historic and archaeological sites, and the Black and Chehalis Rivers. Any action adversely affecting these and all areas within the Reservation and Tribal lands ecosystem adversely affects the Chehalis Tribe;

E. The Business Committee concurs with Federal legislation and policies that stress environmental protection such as the National Environmental Protection Act, Coastal Zone Management Act, Clean Air Act and Clean Water Act. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 1.01. Prior code § 6.7.1.010.]

11.05.020 Goal.

This chapter is adopted to protect the environment and lands under the jurisdiction of the Chehalis Tribe for the enjoyment and use of present and future generations of Chehalis Tribal community members. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 1.02. Prior code § 6.7.1.020.]

11.05.030 Objectives.

The Business Committee intends to further the following objectives in adopting this chapter:

A. To protect the natural resources of the Tribal lands from contamination, pollution and other degradation;

B. To protect and enhance the habitat of all types of fish, forestry and wildlife resources, particularly the Chehalis River Basin and associated habitat that are critical components of the ecosystem that support fish resources;

C. To minimize the adverse impacts that would result from locating developments in environmentally sensitive areas;

D. To preserve the open, rural environment that has been traditional for Chehalis Tribal members; and

E. To allow sufficient development within this natural environment to enable the development of housing, public services and employment for the Chehalis Tribal community. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 1.03. Prior code § 6.7.1.030.]

11.05.040 Definitions.

The words below shall have the meaning set forth in this chapter when they appear in this chapter:

“Buffer” means an undisturbed area of land adjacent to a critical area that protects the functions and values of the critical area.

“Construction” means any on-site activity that is directly related to building or modifying a structure. It does not include minor repairs of existing structures.

“Floodplain” means those lowlands adjoining the channel of a river, stream, or other body of water that have historically been or may reasonably be expected to be inundated by floodwater. Specifically, the term refers to the areas inundated by the 100-year-flood event of 1996, and identified as “flood hazard areas” by the Federal Emergency Management Agency (FEMA) under the auspices of the National Flood Insurance Program (NFIP).

“Normal public use” means fishing, boating, swimming, and general recreation, by persons with a legal right to engage in those activities.

“Proposed activity” and “activity” mean a development, project, construction, or other action.

“Structure” means a permanent or temporary edifice or building, or any piece of work artificially built or composed of parts joined together in some definite manner, whether installed on, above, or below the surface of the ground or water. The term “structure” includes roads.

“Wetlands” or “wetland areas” means lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. Wetlands have one or more of the following attributes: (1) At least periodically, the land supports predominantly hydrophytes; (2) the substrate is predominantly undrained hydric soil; and (3) the substrate is nonsoils and is saturated with water or covered by shallow water at some time during the growing season of each year. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 2.01. Prior code § 6.7.2.010.]

11.05.050 Time limits – Exceptions.

Time limits imposed on the Business Committee in this chapter are guidelines. Postponements for lack of a quorum shall have no consequence except a delay in the process. Time limits throughout this chapter shall be construed in a manner that accomplishes the goals of this chapter. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 2.02. Prior code § 6.7.2.020.]

11.05.060 Permits required for certain activities.

All persons conducting any of the following activities within lands under the jurisdiction of the Chehalis Tribe shall be required to obtain a permit from the Chehalis Tribe:

A. Preparation of a site for the construction of a building or area for purpose of human habitation, business use, or public use including design and installation of septic systems;

B. The construction of any new structure or construction that alters the exterior of an existing structure;

C. Road construction or repair and right-of-way maintenance;

D. Construction or repair of culverts and drainage ditches;

E. Construction of any water or flood-related project;

F. Any project of a permanent or temporary nature that interferes with the normal public use of the surface of the waters overlying lands within the Tribe’s jurisdiction;

G. Dredging, drilling, dumping, filling, removal of any sand, gravel, or minerals, diking, riprapping, or driving of piling;

H. Timber harvesting;

I. Spraying or other application of pesticides and herbicides, except for use by single-family residences; and

J. Clearing and grading. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 3.01. Prior code § 6.7.3.010.]

11.05.070 Exceptions to permit requirement.

The following activities shall not require a permit under this chapter:

A. Residential home improvements, such as painting, recarpeting and minor interior renovations;

B. Construction of sheds or smokehouses that are unattached and accessory to existing residential or farm use;

C. Business conducted in the home except where construction is required;

D. Fireworks stands licensed by the Chehalis Tribe. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 3.02. Prior code § 6.7.3.020.]

11.05.080 “Grandfathered” activities.

Structures in existence prior to the adoption of this chapter are exempt from the permit requirements of this chapter. Modifications to such structures made after the date of adoption of this chapter, and which fall under CTC 11.05.060, are subject to permitting as required by this chapter. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 3.03. Prior code § 6.7.3.030.]

11.05.090 Permit application and permitting checklist.

Any person requiring a permit under CTC 11.05.060 shall obtain and complete a Chehalis permitting checklist form from the Chehalis Planning Department. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 3.04. Prior code § 6.7.3.040.]

11.05.100 Filing.

The completed permit application and environmental checklist shall be filed with the Chehalis Planning Department. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 3.05. Prior code § 6.7.3.050.]

11.05.110 Filing fee.

The permit application shall be accompanied by a $25.00 processing fee. Projects initiated by the Chehalis Tribe for the community’s benefit may request a processing fee waiver. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2005-83; Res. 2002-84 § 3.06. Prior code § 6.7.3.060.]

11.05.120 Review of permit application and checklist.

The permit application and environmental checklist shall be initially reviewed by the Planning Director who shall make a recommendation to the Business Committee to approve, deny or condition the permit. Activities requiring a permit shall be reviewed and decided upon by the Business Committee as soon as practicable. The Director and the Business Committee may request assistance from appropriate technical personnel in conducting the review. The review process shall consist of the following determinations:

A. Is there sufficient information in the application? Does the permit application and environmental checklist contain adequate information on which to base a decision to approve or deny the permit or to allow a conditional use? If there is not enough information, a personal meeting with the applicant shall be required;

B. Is the goal, and are the objectives, of this chapter met? Does the proposed activity conform to the goals (CTC 11.05.020) and purpose (CTC 11.05.030) of this chapter; and

C. Have the environmental review criteria been met? Does the proposed activity meet the environmental review criteria under CTC 11.05.150 through 11.05.210; and

D. Are there archaeological issues to be addressed? Does the proposed activity adequately address archaeological and historical site concerns and is it compatible with the policies for such sites under CTC 11.05.300 and 11.05.310; and

E. Are the standards of this chapter met? Does the proposed activity conform to standards set forth for that type of activity under CTC 11.05.320? [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 4.01. Prior code § 6.7.4.010.]

11.05.130 Initial notice to applicant.

Within 30 calendar days from the date a fully completed application and permitting checklist are received, the Planning Department shall notify the applicant of the status of the permit as follows:

A. The applicant must attend a meeting with the Department staff to clarify or complete information required by the permit application or checklist;

B. The application is being recommended for approval and a permit may be issued following Business Committee review and approval (this determination would be based on a finding of no significant impact);

C. The application is being recommended for approval subject to conditions and a conditional permit may be issued following Business Committee review and approval;

D. The permit is being recommended for denial for the reasons listed in the notice.

If additional time is needed by the Planning Department to make the required determinations and recommendations, the applicant shall be so notified. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 4.02. Prior code § 6.7.4.020.]

11.05.140 Determination and recommendation of the Director.

The Director shall make the determination and base the recommendation to approve, deny, or condition a permit on the criteria in CTC 11.05.210. The permit application and recommendation of the Director shall be placed on the agenda of the next regularly scheduled meeting of the Business Committee. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 4.03. Prior code § 6.7.4.030.]

11.05.150 Environmental review – Generally.

The Planning Department shall review the applicant’s application permitting checklist for the purpose of determining whether the proposed activity has an environmental impact inclusive of proximity to the Chehalis or Black Rivers, location within an area prone to flooding, surface or groundwater withdrawals, water discharge, wastewater discharge, alteration or loss of natural habitat, water runoff, removal or import of fill, exposure to toxic materials, risk of spill or production or movement of hazardous waste, or above normal noise level. If such an impact is identified, the application shall be reviewed by the Director of Natural Resources. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 5.01. Prior code § 6.7.5.010.]

11.05.160 Significantly affecting the environment.

The determination of whether an activity will significantly affect the environment shall be made in the context of Chehalis Tribal culture and values. Factors to be taken into consideration in evaluating an application for a permit for significant effects on the environment include:

A. The degree to which the proposed activity will adversely affect the quantity and/or quality of the fish and shellfish resources of the Tribe;

B. Unique or sensitive characterization of the geographic or hydrologic area in which the proposed activity will take place;

C. The degree to which the action may adversely affect an endangered or threatened species or its habitat;

D. Whether the proposed activity may cause loss or destruction of cultural, historical, or scientific resources;

E. The degree to which the proposed activity affects the health and safety of the Chehalis Tribal community;

F. The degree to which the effects of the proposed activity are uncertain or involve unique or unknown risks;

G. The degree to which the proposed activity may establish a precedent for future actions with significant effects;

H. Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. If it is reasonable to anticipate a cumulatively significant impact on the environment, the activity is significant;

I. Whether the action threatens a violation of Federal, State, or local law or requirement or interlocal cooperation agreement, imposed for the protection of the environment, to which the Chehalis Tribe is a party;

J. Whether the action would violate the Constitution of the Chehalis Tribe or any other ordinance or policy of the Tribe. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 5.02. Prior code § 6.7.5.020.]

11.05.170 Finding of no significant impact (FONSI).

If the Department determines that the proposed project will not have a significant effect on the environment, based on a review of the permitting checklist, the applicant conference, if any, and the recommendations of the Department of Natural Resources, a finding of no significant impact (FONSI) shall be issued with the permit. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 5.03. Prior code § 6.7.5.030.]

11.05.180 Business Committee decision on FONSI.

The Planning Department shall then complete the review of the permit application, and forward the permit and FONSI to the Business Committee with their recommendation for approval. The Business Committee shall review these materials at the next regularly scheduled meeting. The Business Committee may approve the permit, or order a conditional permit be issued, or may disapprove it and require the applicant to do an environmental impact statement. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 5.05. Prior code § 6.7.5.040.]

11.05.190 Conditional permits.

A conditional permit may be issued when a proposed activity substantially, but not entirely, meets the requirements set forth in CTC 11.05.120 and the activity could be conducted in harmony with the Tribe’s purpose and goals under this chapter if certain acts or omissions are performed by the applicant. The permit is issued in the standard manner, subject to those conditions and is revocable if those conditions are not met by the applicant. Approval of a conditional permit is discretionary. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 5.06. Prior code § 6.7.5.050.]

11.05.200 Business Committee decision.

The Business Committee shall decide whether to grant or deny the issuance of the permit or to issue a conditional permit. The Business Committee shall give notice of its decision to the applicant within 30 days of the public hearing. The Business Committee shall post a notice to the Chehalis Tribal community of its decision to approve, deny, or condition a permit on the same day the notice is given to the applicant. The notice shall be posted at the Chehalis Tribal Center for a period of 15 days. The notice shall have the date of posting written on it. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 5.07. Prior code § 6.7.5.060.]

11.05.210 Basis for decisions to approve, deny or condition permit.

The decision to grant a permit shall be based on whether the proposed activity would be conducted in a way which would result in each of the factors in CTC 11.05.120(B) through (E) being answered affirmatively. Conditional permits shall be approved at the discretion of the Business Committee as set forth under CTC 11.05.200. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 5.08. Prior code § 6.7.5.070.]

11.05.220 Appeal – Request for reconsideration.

An applicant may appeal the decision to deny a permit, requesting reconsideration to the Planning Director of the decision to deny a permit. Requests for such review shall be made in the same manner as a request for reconsideration or notice of appeal. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 6.01. Prior code § 6.7.6.010.]

11.05.230 Notice of appeal or request for reconsideration – Timing.

Any notice of appeal or request for reconsideration under CTC 11.05.220 must be filed no later than 15 calendar days from the date the applicant received notice that his or her permit was denied. The appeal or request for reconsideration shall be made in writing and shall be served by certified mail, return receipt requested, on the Secretary of the Business Committee and on the Planning Director. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 6.02. Prior code § 6.7.6.020.]

11.05.240 Notice of appeal or request for reconsideration – Content.

The notice of appeal or request for reconsideration shall contain a brief description of the proposed project and information including who made the original decision and on what date, the specific reasons for the appeal or request for rehearing, and what outcome the person is asking for. The notice shall list the names and addresses of any person who may have information material to the project. Such persons shall provide a telephone number and address where he or she can be reached for notices. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 6.03. Prior code § 6.7.6.030.]

11.05.250 Stay pending appeal or rehearing.

No activity may proceed until all review under this chapter, including judicial review, is concluded. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 6.04. Prior code § 6.7.6.040.]

11.05.260 Scheduling of reconsideration – Notice.

The Planning Department shall schedule a review no fewer than seven and no more than 45 calendar days from the date it receives the notice of appeal or request for reconsideration, unless the applicant and the Business Committee agree otherwise. The Department shall mail or deliver to the applicant a notice of reconsideration and shall post a notice to the Chehalis Tribal community in the places specified under CTC 11.05.200. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 6.05. Prior code § 6.7.6.050.]

11.05.270 Reconsideration.

The person requesting the reconsideration or appeal shall appear personally before the Business Committee and state why and how the decision should be changed. The Business Committee may hear the testimony of witnesses on both sides of the issue who have information relevant to the appeal or rehearing. The hearing shall be tape recorded where practicable. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 6.06. Prior code § 6.7.6.060.]

11.05.280 Decision of Business Committee on appeal or reconsideration.

The Business Committee may affirm, reverse or modify the decision being considered. [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 6.07. Prior code § 6.7.6.070.]

11.05.290 Appeals to Tribal Court.

Any person who claims, in good faith, that the Business Committee made a mistake in interpreting this chapter or made a mistake in procedure under this chapter that affected the person’s rights shall have a right to appeal from the Business Committee’s decision under CTC 11.05.280. The appeal shall be heard by the Tribal Court. The Tribal Court may reverse the Business Committee decision only if:

A. The decision was clearly erroneous in view of the entire record as submitted and in light of the policies and goals of this chapter; or

B. The decision violated the Constitution of the Confederated Tribes of the Chehalis Reservation. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 6.08. Prior code § 6.7.6.080.]

11.05.300 Architectural or historic sites – Purpose.

This section and CTC 11.05.310 establish policies and procedures to protect archaeological and historic sites. The Chehalis Reservation and other Tribal lands have been a place of habitation and use by Chehalis peoples for thousands of years. This long history means that Tribal lands have many places, some no longer discernible to the untrained eye, that were once sites of homes, villages, hunting and fishing camps, ceremonies, and other uses. The historical and cultural information obtainable from a professional archaeological examination of such sites is an invaluable and irreplaceable source of Tribal history. Violation of the following policies (CTC 11.05.310) or procedures resulting in destruction of or damage to this heritage is considered a serious offense and the maximum sanctions allowable will be imposed. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 7.01. Prior code § 6.7.7.010.]

11.05.310 Policies regarding archaeological and historic sites.

A. Any application for a permit under this chapter may be required to be reviewed by a professional archaeologist to determine whether the proposal poses any danger to known archaeological sites. A literature search shall be required in addition to a check of known or registered sites. The expense of such review shall be borne by the applicant.

B. If evidence of an archaeological site is unearthed during the construction of a project for which a permit has been issued, the project developer and/or the persons involved in construction must cease work immediately and notify the Planning Department.

C. The Chehalis Tribe reserves the right to conduct its own archaeological inspection of any construction, earthmoving, or excavation work in its jurisdiction.

D. The Tribe hereby reserves the right to halt construction of a project for up to 120 days if it deems that an archaeological site of importance to the Tribe may have been unearthed. During the 120 days, the Tribe must begin professional examination of the site to determine the significance. Extensions of the 120-day period will be allowed if needed to complete the work. The Tribe may condition the permit for the project after the discovery of the site and require a professional archaeological excavation or require modification of the activity to preserve the site. The expense of such examination and any excavation or modification of the activity shall be borne by the applicant.

E. Applicants may be required to post a deposit with the Tribe of up to $5,000 to ensure that notification of any archaeological evidence is made to the Tribe. The deposit is fully refundable if no archaeological site is unearthed, but will be forfeited if violation of these policies occurs. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 7.02. Prior code § 6.7.7.020.]

11.05.320 General standards.

The following general standards apply to proposed activities under this chapter:

A. Natural Character Preserved. All developments shall be consistent with the natural characteristics and ecological systems of the Tribal lands. Developments in sensitive areas, such as steeply sloped land, floodplains or wetlands, if allowed, shall have only a minimum level of impact upon the functioning of the natural systems.

B. Natural Buffers. There shall be undisturbed, natural, vegetated buffers left adjacent to rivers, streams, and wetlands. No construction, accessory uses, septic tanks, or agriculture is allowed in the buffer. No timber harvesting is permitted in the buffer, except that trees that have naturally fallen across the waterway may be removed, provided prior authorization is obtained from the Tribe. Buffers adjacent to a stream or river shall be left on both sides of the waterway.

C. No Interference with Fishing Rights. No activity shall occur in a manner that causes interference with the exercise of fishing rights. No activity shall block or impede the free movement of fish.

D. Water Quality/Fish and Wildlife Quality. Activities shall be located, designed, constructed and operated in a manner that minimizes adverse effects on fish, wildlife, water quality and existing shore and stream processes.

E. Fish Wastes. Discharge of wastes from fish and shellfish processing into water bodies shall, at minimum, meet Federal standards for those activities.

F. Erosion Control. An erosion control plan must be approved prior to issuance of a permit under this chapter for any activity that would pose a risk of erosion during construction or afterward. No earth or debris resulting from the activity shall be allowed to enter streams or lakes. No permitted activity shall contribute to foundation instability or mass soil movement.

G. Use of Fill. All fill material must be approved in advance. If an activity uses fill material to accommodate the activity, the Tribe may require a licensed engineer to certify that the fill will not alter or prohibit the natural flow of surface water or groundwater, or present a geologic hazard. There shall be no excavation or filling of stream channels or alteration of stream courses unless required for a project to enhance the biological productivity of the aquatic environment.

H. Clearing and Grading. All clearing and grading activities must meet the standards of the 2003 Uniform Building Code. [Res. 2016-17; Res. 2011-057; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 8.01. Prior code § 6.7.8.010.]

11.05.330 Failure to obtain a permit.

Any person who fails to obtain a permit required under this chapter shall be issued a notice of violation that may include an order to cease and desist (stop work order). [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 9.01. Prior code § 6.7.9.010.]

11.05.340 Failure to comply with permit.

Any person who fails to comply with the terms of a permit under this chapter shall be issued a written warning to comply by the Business Committee that may include an order to cease and desist (stop work order). [Res. 2011-020; Res. 2006-63; Res. 2002-84 § 9.02. Prior code § 6.7.9.020.]

11.05.350 Notice of violation.

The notice of violation shall describe the specific violation, the amount of the monetary penalty if any and, if applicable, shall order the violation to cease and desist or require corrective action to be taken within a specific and reasonable time. The notice shall be given to the person directly by the Director of Public Safety or his/her designee or by certified mail with return receipt requested. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 9.03. Prior code § 6.7.9.030.]

11.05.360 Civil penalty.

The civil penalty for failure to conform to the terms of a permit or for proceeding with an activity without a permit, as required under this chapter, is a fine not to exceed $5,000 for each violation. Each permit violation or each day of continued activity without a required permit shall constitute a separate violation. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 9.04. Prior code § 6.7.9.040.]

11.05.370 Appeal from penalty.

Within 30 days after the notice is received, the person incurring the penalty may apply in writing to the Business Committee to request that the penalty be reduced. The person must show good faith in complying with this chapter since the time the notice was received in order to receive a reduced penalty. The decision of the Business Committee is final. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 9.05. Prior code § 6.7.9.050.]

11.05.380 Enforcement of penalty in court.

The Tribe may enforce its notice to cease and desist and its assessment of a penalty in the Tribal Court. The Tribe may request the Court to enter an injunction against the continued activity, to order payment of the fine, and to order other remedies where appropriate. Failure of any person to abide by the lawful order of the Tribal Court is punishable by civil and criminal contempt of Court proceedings. [Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2002-84 § 9.06. Prior code § 6.7.9.060.]

11.05.390 Interference with an inspector conducting his/her authorized duties.

Interference with an inspector attempting to conduct his/her authorized duties shall constitute a violation of Chehalis Tribe building standards and shall be handled in accordance with the notice of violation process described above. Such interference shall be subject to all remedies available for a notice of violation. Each instance of interference shall constitute a separate violation. [Res. 2011-020; Res. 2007-49. Prior code § 6.7.9.070.]

11.05.400 Adoption of building and electrical codes.

A. The Business Committee adopts the 2003 International Building Codes, which incorporate the construction codes for residential and commercial construction.

B. The Business Committee also adopts the 2005 National Electrical Code (NEC), which is not covered by the 2003 International Building Codes.

C. The Business Committee may adopt updated building and electrical codes from time to time. [Res. 2016-17; Res. 2005-87.]