Tribal Code

Water quality standards, beneficial uses and treatment criteria

PRINGS TRIBAL CODE CHAPTER 432
ORDINANCE NO. 80
WATER QUALITY STANDARDS, BENEFICIAL USES, AND TREATMENT CRITERIA

Table of Contents

432.001 Legislative History
432.005 Territory Covered
432.010 Applicability and Administration
432.015 Definitions
432.020 General Considerations Applicable to the Entire Reservation
432.025 Beneficial Water Uses to be Protected in Deschutes, Clackamas, and Santiam River Basins on the Reservation
432.100 Water Quality Standards not to be Exceeded in Deschutes, Clackamas, and Santiam River Basins on the Reservation
432.110 Site Specific Criteria and Criteria based on Natural Condition
432.120 Variances from Water Quality Standards
432.200 Minimum Design Criteria for Treatment and Control of Wastes for the Deschutes, Clackamas, and Santiam River Basins on the Reservation
432.300 Biological Criteria
432.400 Nuisance Phytoplankton Growth
432.500 Special Policies and Guidelines for waters of the Clackamas and North Santiam River basins on the Reservation:

FIGURE 1: GENERALLY ACCEPTED PERIODS OF NATIVE SALMONID SPAWNING, EGG INCUBATION, AND FRY EMERGENCE FOR WATERBODIES ON THE WARM SPRINGS RESERVATION.
MAP R Waterbodies on the Warm Springs Indian Reservation.
MAP A Beneficial Use Reaches for the Lower Deschutes R., Paquet Gulch, Nena Cir. Eagle Cr., and Oak Cr. Watersheds
MAP B Beneficial Use Reaches for the Lower Warm Springs R., Middle Deschutes R., Skookum Cr. and Dry Cr. Watersheds.
MAP C Beneficial Use Reaches for Shitike Cr. and Seekseequa Cr. Watersheds; the Upper Deschutes R., Reregualtion Dam Pool and Lake Simtustus.
MAP D Beneficial Use Reaches for the Metolius R., Whatewater R., Jefferson Cr. and Tributaries.
MAP E Beneficial Use Reaches for Mill Cr., Boulder Cr., Badger Cr., Middle Warm Springs R. and the Upper Clackamas R. Watersheds.
MAP F Beneficial Use Reaches for the Upper Warm Springs R. and Upper Clackamas R. Tributary Watersheds.
MAP G Beneficial Use Reaches for Beaver Cr., Coyote Cr., Quartz Cr. and Clear Cr. Watersheds.

WARM SPRINGS TRIBAL CODE CHAPTER 432

ORDINANCE NO. 801

WATER QUALITY STANDARDS, BENEFICIAL USES, AND TREATMENT CRITERIA

432.001 Legislative History.

On August 3, 1967, the Confederated Tribes of the Warm Springs Indian Reservation of Oregon (“Tribe”) approved and adopted the “Water Resources Inventory and Water Management Plan for the Warm Springs Indian Reservation”. The purpose of the plan is to determine what the Reservation water resource consists of, what the present and future uses of the resource are, and what the priority of uses will be, and specifically how these rights will affect individuals and the community. On April 17, 1968, this plan was adopted as Ordinance No. 45; the official Water Code of the Warm Springs Indian Reservation.
On July 18, 1980, the Tribe approved technical information entitled “Implementing Provisions of the Warm Springs Water Management Plan”. The implementing provisions set forth plans for management of the quality of waters including establishing water quality standards for surface waters on lands under the jurisdiction of the Tribe.
Under this plan and amendments thereof, the Tribe will continue to manage water quality by evaluating each discharge and activity, whether existing or a new proposal, on a case by-case basis, based on the best information currently available and within the limiting framework of minimum standards, treatment criteria, and policies set forth in the plan.

432.005 Territory Covered. The provisions of these water quality standards shall apply to all surface waters within the boundaries of the Warm Springs Indian Reservation
(“Reservation”) of Oregon. The Reservation consists of approximately 648,000 acres. (MAP R)

432.010 Applicability and Administration.

The water quality standards shall be used by the EPA Regional Administrator for establishing any water quality based National Pollutant Discharge Elimination System (NPDES) Pennit for point sources on the Reservation.
In conjunction with the issuance of Section 402 or Section 404 permits, the Tribe may designate mixing zones in the waters of the Reservation on a case-by-case basis. The size of such mixing zones and the in-zone water quality in such mixing zones shall be consistent with applicable procedures and guidelines in EPA’s Water Quality Standards Handbook and the Technical Support Document for Water Quality Based Toxics Control and subsequent updates of the handbook and technical support documents (see section 432.100(4)).
In conjunction with the issuance of Federal licenses or permits to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the waters of the Reservation, the licensing or permitting agency must apply for certification from the Tribe under Section 401 of the Clean Water Act. The Tribe shall approve or deny certification of any federally licensed or permitted activity to ensure compliance with applicable water quality standards.
The Tribe may further apply these water quality standards to protect the integrity of all surface waters within the boundaries of the Reservation. As such, the Tribe may apply these water quality standards to any activity including, but not limited to, the construction or operation of industrial or commercial facilities, which may result in any discharge (including nonpoint sources) into any of the surface waters on the Reservation.

432.015 Definitions.

Definitions applicable to all basins on the Reservation:

“Acute Toxicity” refers to a stimulus severe enough to rapidly induce an effect; in aquatic toxicity tests, an effect observed in 96 hours or less is typically considered acute. When referring to aquatic toxicology or human health, an acute effect is not always measured in terms of lethality.
“Anthropogenic”, when used to describe “sources” or “warming”, means that which results from human activity.
“Appropriate Reference Site or Region” means a site on the same water body, or within the same basin or ecoregion that has similar conditions, and represents the water quality and biological community attainable within the areas of concern.
“Aquatic Species” means any plant or animal which lives at least a part of their life cycle in water.
“Biological Criteria” means numerical values or narrative expressions that describe the biological integrity of aquatic communities inhabiting waters of a given designated aquatic life use. Biological criteria serve as an index of aquatic community health.
“BOD” means 5-day 20EC. biochemical oxygen demand.
“Chronic Toxicity” means a fairly long-term adverse effect to an organism (when compared to the life span of the organism) caused by or related to changes in feeding, growth, metabolism, reproduction, a pollutant, genetic mutation, etc. Short-term test methods for detecting chronic toxicity may be used.
“Cold-Water Aquatic Life” means the aquatic communities that are physiologically restricted to cold water, composed of one or more species sensitive to reduced oxygen levels. Including but not limited to Salmonidae and cold-water invertebrates.
“Cool-Water Aquatic Life” means the aquatic communities that are physiologically restricted to cool waters, composed of one or more species having dissolved oxygen requirements similar to the cold-water communities. Including but not limited to Cottidae, Osmeridae, Acipenseridae, and sensitive Centrarchidae such as the small mouth bass.
“Critical Habitat” means those areas, which support rare, threatened or endangered species, or serve as sensitive spawning and rearing areas for aquatic life.
“Cultural and Religious water use” means waters which are used to support and maintain the way of life or traditional activities involving the Native American people of the Warm Springs Reservation. These activities include, but are not limited to, spiritual practices which involve, among other things, primary (direct) and secondary contact with water; uses of a water body to fulfill cultural, traditional, spiritual or religious uses; use of water for instream flow, habitat for fisheri es and wildlife, preservation of habitat for beff ies, roots and other vegetation significant to the people of the Reservation. Water quality standards for this purpose will be numerically identical to water contact recreation standards.
“Department” means the Department of Natural Resources of the Tribe.
“Designated Beneficial Use” means the purpose or benefit to be derived from a water body, as designated by the Tribe, whether or not they are cuff ently attained.
“DO” means dissolved oxygen.
“Ecological Integrity” means the summation of chemical, physical and biological integrity capable of supporting and maintaining a balanced, integrated, adaptive community of organisms having a species composition, diversity, and functional organization comparable to that of the natural habitat of the region.
“Ecologically Significant Cold-Water Refuge” exists when all or a portion of a water body supports stenotypic cold-water species (flora or fauna) not otherwise widely supported within the sub basin, and either: (a) Maintains cold-water temperatures throughout the year relative to other segments in the subbasin, providing summertime cold-water holding or rearing habitat that is limited in supply, or; (b) Supplies cold water to a receiving stream or downstream reach that supports cold water biota.
“EPA” means the United States Environmental Protection Agency.
“EPA Regional Administrator” means the Administrator of EPA’s Region X.
“Existing Uses” means those uses actually attained in the water body on or after November 25, 1975, whether or not they are included in the water quality standards.
“High Quality Waters” means those waters, which meet or exceed those levels that are necessary to support the propagation of fish, shellfish, wildlife, and recreation in and on the water, and other designated beneficial uses.
“Indigenous” means supported in a reach of water or known to have been supported according to historical records compiled by Tribal, Federal, and State agencies or published scientific literature.
“Industrial Waste” means any liquid, gaseous, radioactive, or solid waste substance or a combination thereofresulting from any process of industry, manufacturing, trade, or business or from the development or recovery of any natural resources.
“Integrated Planning Process” refers to the planning direction and process laid out in Ordinance 74, “The Integrated Resource Management Plan for the Forested Area” adopted in 1992. The public paiiicipation provisions meet 40 CFR Part 25.
“Intergravel Dissolved Oxygen” (IGDO) means the concentration of oxygen measured in the stream gravel pore water. For the purposes of compliance with criteria, the dissolved oxygen concentration should be measured within a redd or artificial redd, down gradient of the egg pocket. Measurements should be taken within a limited time period; for example, prior to emergence of fry, typically during the month of March.
“Low Flow” means the flows in a stream resulting primarily from groundwater discharge or base flows during the driest period of the year.
“Measurable Temperature Increase” means an increase in stream temperature of more than 0.25°F.
“mg/l” means milligrams per liter.
“Minimum” (dissolved oxygen) means the minimum recorded concentration including seasonal and diurnal minimums.
“Natural background” is defined as background concentrations due only to non-manmade sources, e.g., non-anthropogenic.
“Natural Condition” means any physical, chemical, or biological condition existing in a water body before any significant human-caused influence on, discharge to, or addition of material to the water body.
“Nonpoint Sources” means diffuse or unconfined sources of pollution where either waste can enter into or be conveyed by the movement of water to – “waters of the Reservation”.
“Numeric Temperature Criteria” are measured as the seven-day moving average of the daily maximum temperatures. If there is insufficient data to establish a seven-day moving average of maximum temperatures, the numeric criteria shall be applied as an instantaneous maximum. The measurements shall be made using a sampling protocol appropriate to indicate impact to the beneficial uses.
“Outstanding Resource Waters” means those waters designated by the Tribe where existing high quality waters constitute an outstanding Reservation resource based on their extraordinary water quality or ecological values, or where special water quality protection is needed to maintain critical habitat areas.
“Point Sources” means a stationary location or fixed facility (e.g. a pipe or ditch) from which pollution is discharged to “waters of the Reservation”.
“Pollution” means such contamination or other alteration of the physical, chemical, or biological properties of any waters of the Reservation, including change in temperature, taste, color, turbidity, silt, or odor of the waters, or such radioactive or other substance into any waters of the Reservation which either by itself or in connection with any other substance present, will or can reasonably be expected to create a public nuisance or render such waters harmful, detrimental, or injurious to public health, safety, or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses or to livestock, wildlife, fish or other aquatic life, or the habitat thereof.
“Reach” refers to a specifically identified section of a stream or water body. Reaches are identified by a “reach break” mark on each of the maps (Maps A – G). The information provided in Table 4 refers to data associated with the channel downstream of the reach break to the next “reach break” mark or the mouth of that stream.
“Resident Biological Community” means aquatic life expected to exist in a particular habitat when water quality standards for a specific ecoregion, basin, or water body are met. This shall be established by accepted biomonitoring techniques.
“Secondary Treatment” may be required in the following context: (a) “Sewage Wastes” means the minimum level of treatment mandated by EPA regulations pursuant to Public Law 92-500; (b) “Industrial and other waste sources” imply control equivalent to best practicable treatment (BPT).
“Seven day mean minimum” (dissolved oxygen) – The minimum of the seven (7) consecutive day floating average of the calculated daily mean dissolved oxygen concentration.
“Seven day minimum mean” (dissolved oxygen) – The minimum of the seven (7) consecutive day floating average of the daily minimum concentration. For purposes of application of the criteria, this value will be used as a reference for diurnal minimums.
“Sewage” means the water-carried human or animal waste from residences, buildings, industrial establishments, or other places, together with such groundwater infiltration and surface water as may be present. The admixture with sewage as herein defined, of industrial waste or wastes, as defined in sections (7) and ( 10), shall also be considered “sewage”.
“Source Specific” includes one or more discharges, including point and non-point sources, who’s impacts and management practices are similar.
“Spatial Median” means the value which falls in the middle of a data set of multiple IGDO measurements taken within a spawning area. Half the samples should be greater than, and half the samples should be less than the spatial median.
“SS” means suspended solids.
“Thirty day (30-day) mean minimum” (dissolved oxygen) – The minimum of the 30 consecutive day floating average of the calculated daily mean dissolved oxygen concentration.
“Tribe” means the Confederated Tribes of the Warm Springs Reservation of Oregon.
“Triennial review process” refers to Section 303(c)(l ) of the Clean Water Act, which requires the Tribe shall, from time to time, but at least once every three years, hold public hearings to review applicable water quality standards and, as appropriate, to modify and adopt revised or new standards. The Tribe will follow guides provided in Chapter 6 “Procedures for Review and Revision of Water Quality Standards” from EPA’s Water Quality Standards Handbook to conduct all triennial reviews.
“Wastes” means sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, or other substances, which will or may cause pollution or tend to cause pollution of any water of the Reservation.
“Waters of the Reservation” means lakes, bays, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, marshes, wetlands, inlets, canals, and all other bodies of surface or underground water, natural or artificial, inland, fresh, public or private (except those private waters which do not combine or effect a junction with natural surface or underground waters), which are within the Reservation, located in the State of Oregon.
“Without Detrimental Changes in the Resident Biological Community” means no loss of ecological integrity when compared to natural conditions at an appropriate reference site or reg10n.
“7Q 10″2 means the lowest streamflow for seven consecutive days that occurs on average once every ten years.

432.020 General Considerations Applicable to the Entire Reservation.

In order to maintain the quality of waters on the Reservation, the following is the general policy of Tribe: (a) Antidegradation Policy for Surface Waters. The purpose of the Antidegradation Policy is to guide decisions that affect water quality such that unnecessary degradation from point and nonpoint sources of pollution is prevented, and to protect, maintain, and enhance existing surface water quality to protect all existing beneficial uses as indicated in Table 1. The Antidegradation Policy consists of three tiers. (a) Tier 1: Existing instream water uses and water quality necessary to support existing uses shall be maintained and protected; (b) Tier 2: Where the actual water quality exceeds levels necessary to support the propagation of fish and wildlife and recreation in and on the water, that quality shall be maintained or protected unless the Tribe finds, after full satisfaction of the public participation of the Tribe’s continued and integrated planning process, that (1) allowing lower water quality is necessary to accommodate important economic or social development in the areas where water is located and outweighs the environmental costs of lowered water quality, (2) lowering the water quality will not violate the applicable criteria in Table 3, or site specific criteria established under 432.110, (3) the resulting water quality will fully protect existing uses, (4) lowering of a water quality standard for economic or social development purpose shall not authorize other users to increase their loading; and (5) all wastes and other substances discharged will be treated and controlled to achieve: (i) the highest statutory and regulatory requirements for all new and existing point sources and (ii) all cost-effective and reasonable best management practices for non-point sources.(c) Tier 3: Where high quality waters constitute an outstanding resource of the Reservation, such as waters of National, and Tribal Wild & Scenic Areas, wildlife refuges and waters of exceptional recreational, ecological, cultural or religious significance, that water quality shall be maintained and protected. Such waters shall be classified as “Outstanding Resource Waters of the Reservation”.

432.025 Beneficial Water Uses to be Protected in Deschutes, Clackamas, and Santiam River Basins on the Reservation. Water quality in the Deschutes, Clackamas, and Santiam River Basins on the Reservation shall be managed to protect the recognized beneficial uses as indicated in Table 1 and Table 4. Within Table 1, the Tribe has made a general designation of beneficial uses within specified watershed areas. Within Table 4, and appropriate map, the Tribe has designated beneficial uses specifically for individual reaches within individual streams. This table also includes the most significant fish species associated with each reach and the most critical life history for that species within the reach. All tributaries or reaches without a specific beneficial use designation or fish species will be managed to meet the designated beneficial uses in the immediate downstream reach. These tables may be revise din the future to include additional beneficial uses as long as existing uses are protected and after full satisfaction of the public participation of the Tribes’ continued and integrated planning process. Changes and revisions to this document including all figures and tables constitute changes to the water quality standards regulations and will be submitted to EPA for review and approval after adoption by the Tribe.

432.100 Water Quality Standards not to be Exceeded in Deschutes, Clackamas, and Santiam River Basins on the Reservation.

Notwithstanding the water quality standards contained below, the highest and best practicable treatment and/or control of wastes, activities, and flows shall in every case be provided so as to maintain dissolved oxygen and overall water quality at the highest possible levels and water temperatures, coliform bacteria concentrations, dissolved chemical substances, toxic materials, radioactivity, turbidities, color, odor, and other deleterious factors at the lowest possible levels.
No wastes shall be discharged and no activities shall be conducted which either alone or in combination with other wastes or activities will cause violation of the following standards in the waters of the Deschutes, Clackamas, and Santiam River Basins on the Reservation. The Tribe has designated specific water bodies and stream reaches within these basins in Table 4, indicating the designated beneficial use, fish species, life history and temperature regime. In Figure 1, the Tribe has established the period of time for native salmonid spawning, egg incubation and fry emergence.As additional information is developed, changes may be made to Table 4, and Figure 1, based on site specific data for stream reaches, water bodies, fish species and their associated life histories. Changes may be made by the Tribe, only after full satisfaction of the public participation of the Tribe’s continued integrated planning process. Changes to Table 4 and Figure 1 constitute changes to the water quality standards regulations and will be submitted to EPA for review and approval following adoption by the Tribe.

(a) Dissolved oxygen (DO):

(a) For water bodies identified by the Tribe in Table 4, as providing salmonid spawning (see Tables 5 & 6 for indigenous and introduced species list), during the periods from spawning until fry emergence from the gravels, listed in Figure 1, the following criteria apply: (1) The seven day mean minimum dissolved oxygen shall not be less than 11.0 mg/1. However, if the minimum intergravel dissolved oxygen, measured as a spatial median, is 8.0 mg/I or greater, then the DO Criteria is 9.0 mg/l, (Table 2); (2) Where conditions of barometric pressure, altitude, and temperature preclude attainment of the 11.0 mg/I or 9.0 mg/l criteria, dissolved oxygen levels shall not be less than 95 percent of saturation. (c) Periods of native salmonid spawning, egg incubation, and fry emergence from the gravel are flow and temperature dependent
and tend to vary with elevation. If necessary, site specific dates for these periods may be established by the Tribe after full satisfaction of the public participation of the Tribe’s continued and integrated planning process. Changes to Table 4, and Figure 1, constitute changes to the water quality standards regulations and will be submitted to EPA for review and approval following adoption by the Tribe.

(B) For waterbodies identified by the Tribe in Table 4, as providing salmonid spawning during the period from spawning until fry emergence from the gravels (Figure 1)), the spatial median intergravel dissolved oxygen concentration shall not be less than 6.0 mg/1.

(C) A spatial median of 8.0 mg/l intergravel dissolved oxygen shall be used to identify areas where the designated use of salmonid spawning, egg incubation and fry emergence from the egg and from the gravels may be impaired and therefore require action by the Tribe. Upon determination that the spatial median intergravel dissolved oxygen concentration is below 8.0 mg/l, the Tribe, after full public participation in the Tribes’ continued and integrated planning process, may initiate pollution control strategies as warranted, and evaluate and implement necessary best management practices for point and nonpoint source pollution control;

(D) For waterbodies identified by the Tribe in Table 4, as providing cold water aquatic life, the dissolved oxygen shall not be less than 8.0 mg/I as an absolute minimum. Where conditions of barometric pressure, altitude, and temperature preclude attainment of 8.0 mg/I, dissolved oxygen shall not be less than 90 percent of saturation. The dissolved oxygen levels shall not fall below 8.0 mg/I as a 30-day mean minimum, 6.5 mg/I as a seven-day minimum mean, and shall not be less than 5.5 mg/l as an absolute minimum (Table 2);

(E) For waterbodies identified by the Tribe in Table 4, as providing cool water aquatic life, the dissolved oxygen shall not be less than 6.5 mg/l as an absolute minimum. After full public participation in the Tribes’ continued and integrated planning process, when the Tribe determines that adequate information exists, the dissolved oxygen shall not be less than
6.5 mg/I as a 30-day mean minimum, and shall not be less than 5.5 mg/I as an absolute minimum (Table 2);

(b) Temperature:
(A) No measurable surface water temperature increase resulting from anthropogenic activities is allowed unless a management plan has been reviewed and approved by the Tribe. The Tribes may allow a variance to the standards on a site specific basis in accordance with section 432.120, and after full satisfaction of the public participation of the Tribe’s continued and integrated planning process. Interim standards will be set using the best data available and reviewed every three years as part of the triennial review process. This plan must show how the thermal load is (or will be) minimized and how the activity does not ( or will not) interfere with attainment of numeric criteria within the watershed in question (See attached Table 4 and appropriate watershed maps for locations). This standard applies to the following:

(1) In a water body for which salmonid fish rearing (Table 4) is a designated beneficial use, and in which surface water temperatures exceed 64.0°F (17.8°C); or

(2) In waters and periods of the year determined by the Tribe, (listed in Table 4, and Figure 1), to support native salmonid spawning, egg incubation, and fry emergence from the egg and from the gravels in a reach which exceeds 55.0°F (12.8°C); or

(3) In waters determined by the Tribe to support or to be necessary to maintain the viability of native Oregon bull trout, (listed in Table 4, and Figure 1), when surface water temperatures exceed 50.0°F (10.0°C); or

(4) In waters determined by the Tribe to be ecologically significant cold-water refugia (Table 4); or

(5) In stream segments containing federally listed Threatened and Endangered species; or

(6) In Reservation waters when the dissolved oxygen (DO) levels are within 0.5 mg/l or 10 percent saturation of the water column or intergravel DO criterion for a given stream reach or subbasin; or

(7) In natural lakes.

(B) An exceedance of the numeric criteria identified in subparagraphs (A)(l ) through (3) of this subsection will not be deemed a temperature standard violation if it occurs when the air temperature during the warmest seven day period of the year exceeds the 90th percentile of the seven-day average daily maximum air temperature calculated in a yearly series over the historic record (local weather stations on the Reservation and in neighboring communities will be used to calculate air temperatures). All thermal sources must continue to meet permit or management plan requirements.

(C) Low Flow Condition3. An exceedance of the numeric identified in subparagraphs A( l) through A(6) of this subsection will not be deemed a temperature standard violation during stream flows that are less than the
&Q 10 low flow condition for that water body.

(D) Any source may petition the Tribe for an exception to subparagraphs (A)(l ) through (7) of this subsection (in accordance with section 432.120) for discharge above the identified criteria if:

(1) The source provides the necessary scientific information to describe how the designated beneficial uses would not be adversely impacted; or

(2) A source is implementing all reasonable management practices or measures; its activity will not significantly affect the beneficial uses; and the environmental cost of treating the parameter to the level necessary to assure full protection would outweigh the risk to the resource.

(c) Turbidity (Nephelometric Turbidity Units, NTU): No more than a ten percent cumulative increase in natural stream turbidities shall be allowed, as measured relative to a control point immediately upstream of any or all turbidity-causing activity(ies). However, limited duration activities necessary to address an emergency or to accommodate essential dredging, construction or other legitimate activities and which cause the standard to be exceeded may be authorized
provided all practicable turbidity control techniques have been applied and one of the following has been granted:

(A) Emergency activities: Approval by Tribe under conditions they may prescribe to accommodate response to emergencies or to protect public health and welfare;

(B) Dredging, Construction or other Legitimate Activities: Permit or certification authorized under terms of Section 401 or 404 (Permits and Licenses, Federal Water Pollution Control Act), and Tribal Hydraulic Permit Application (HPA), with limitations and conditions governing the activity set forth in the permit or certificate.

(d) pH (hydrogen ion concentration): pH values shall not fall outside the range of
6.5 – 8.5 with the following exception:

Waters impounded by dams existing prior to adoption of these water quality standards, which exceed the pH criterion shall not trigger a violation of the standard provided the following conditions are met:

(A) The exceedance of the pH criterion occurs as a result of the impoundment, in response to primary productivity supported by nutrients that arise from sources not associated with the impoundments; and

(B) All practicable measures have been taken to minimize the factors related to the impoundment that lead to increased primary productivity.

(C) In cases where this exemption could be applied, the Tribe will work closely with all involved entities to help develop either a TMDL for the watershed, develop a site specific criteria for the waterbody, or develop a use attainability analysis to modify the use for portions of the reservoir.

(e) Bacteria standards:

(A) Numeric Criteria: Organisms of the coliform group commonly associated with fecal sources (MPN or equivalent membrane filtration using a representative number of samples) shall not exceed the criteria described in subparagraphs (1) and (2) of this paragraph. For freshwaters:

(1) A 30-day geometric mean of 126 E. coli organism per 100 ml based on a minimum of five (5) samples4 ;

(2) No single sample shall exceed 406 E. coli organisms per 100 ml;

(B) Raw Sewage Prohibition: No sewage shall be discharged into or in any other manner be allowed to enter the waters of the Reservation unless such sewage has been treated in a manner approved by the Tribe or otherwise allowed by these standards;

(C) Animal Waste: Runoff contaminated with domesticated animal wastes shall be minimized and treated to the maximum extent practicable before it is allowed to enter waters of the Reservation;

(f) Bacterial pollution or other conditions deleterious to waters used for domestic purposes, livestock watering, irrigation, bathing, or otherwise injurious to public health shall not be allowed;

(g) The liberation of dissolved gases, such as carbon dioxide, hydrogen sulfide, or other gases, in sufficient quantities to cause objectionable odors or to be deleterious to fish or other aquatic life, recreation, or other reasonable uses made of such waters shall not be allowed;

(h) The development of fungi, algae or other growths having a deleterious effect on stream bottoms, fish or other aquatic life, or which are injurious to health, recreation, or industry shall not be allowed;

(i) The creation of tastes or odors or toxic or other conditions that are deleterious to fish or other aquatic life or adversely affect the potability of drinking water or the palatability of fish or shellfish shall not be allowed;

(j) The formation of appreciable bottom or sludge deposits or the formation of organic or inorganic deposits deleterious to fish or other aquatic life or injurious to public health, recreation, or industry shall not be allowed;

(k) Objectionable discoloration, scum, oily sleek or floating solids, or coating of aquatic life with oil films shall not be allowed;

(I) Aesthetic conditions offensive to the human senses of sight, taste, smell, or touch shall not be allowed;

(m) Radioisotope concentrations shall not exceed concentrations which result in a significant hazard to public health in drinking water in accordance with the Federal Safe Drinking Water Act, or which may cause acute or chronic toxic conditions to aquatic biota, or which may adversely affect designated beneficial uses.

(n) The concentration of total dissolved gas relative to atmospheric pressure at the point of sample collection shall not exceed 110 percent of saturation, except when stream flow exceeds the ten-year, seven-day average flood. However, for hatchery receiving waters and waters of less than two feet in depth, the
concentration of total dissolved gas relative to atmospheric pressure at the point of sample collection shall not exceed 105 percent of saturation;

(o) Total Dissolved Solids: Criteria listed below shall not be exceeded unless otherwise specifically authorized by Tribe upon such conditions as it may deem necessary to carry out the general intent of this plan and to protect the beneficial uses:

(A) Deschutes River Basin on the Reservation ….. …………… …….500.0 mg/l;

– Sodium Chlorides and Sulfates in domestic water sources….250.0 mg/l;

(B) Clackamas and Santiam River Basins on the Reservation 100.0 mg/I

(p) Toxic Substances:

(A) Toxic substances shall not be introduced to the waters of the Reservation in amounts, concentrations, or combinations which may be harmful, may chemically change to harmful forms in the environment, or may accumulate in sediments or bioaccumulate in aquatic life or wildlife to levels that adversely affect public health, safety, or welfare; aquatic life; wildlife; or other designated beneficial uses;

(B) Levels of toxic substances shall not exceed the criteria listed in Table 3, Water Quality Criteria Summary, which were primarily based on criteria established by EPA and published in National Recommended Water Quality Criteria, (EPA-822 2004). Human health criteria were revised using EPA’ s latest methodology, Methodology for Deriving Ambient Water Quality Criteriafor the Protection o.f Human Health (EPA-822-B-00-004, October 2000). A fish consumption rate was derived from Table 7 of A Fish consumption survey of the Umatilla, Nez Perce, Yakama, and Warm Springs Tribes of the Columbia River Basin
(CRITFC, Technical Report No. 94-3, October 1994). A fish consumption rate of 170 grams per day was established from Table 7 in order to protect 95 percent of the Tribal population. 5
(C) The criteria in paragraph (B) of this subsection shall apply unless data from scientifically valid studies demonstrate that the most sensitive designated beneficial uses will not be adversely affected by exceeding a criterion or that a more restrictive criterion is warranted to protect beneficial uses, as accepted by the Tribe on a site specific basis in accordance with section 432.110 and after full satisfaction of the public participation of the Tribe’s continued integrated planning process. Where no published EPA criteria exist for a toxic substance, public health advisories and other published scientific literature may be considered and used, if appropriate, to set guidance values.

(D) Bio-assessment studies such as laboratory bioassays or instream measurements of indigenous biological communities, shall be conducted, as the Tribe deems necessary, to monitor the toxicity of complex effluents, other suspected discharges or chemical substances without numeric criteria, to aquatic life. These studies, properly conducted in accordance with standard testing procedures, may be considered as scientifically valid data for the purposes of paragraph (C) of this subsection. Iftoxicity occurs, the Tribe shall evaluate and implement measures necessary to reduce toxicity on a case-by-case basis.

(3) Where the naturally occurring quality parameters of waters of the Deschutes, Clackamas, and Santiam River Basins on the Reservation are outside the numerical limits of the above assigned water quality standards, the natural background water quality shall be the standard. Where no historical or background data exists, data collection and analyses for a 10-year period will be used to determine the standard. Data from an appropriate
reference site, which reflects the natura l condition, may also be used for this purpose. The Tribes will establish interim standards on a site-specific basis according to section 432.110.

(4) Mixing zones:

(a) The Tribe may allow a designated portion of a receiving water to serve as a zone of dilution for wastewaters and receiving waters to mix thoroughly and this zone will be defined as a mixing zone. Mixing zones will not have a reasonable potential to substantially interfere with the existing and designated uses of a waterbody. No mixing will be allowed where the presence of a mixing zone may result in any adverse affect to Threatened and Endangered species;

(b) The Tribe may suspend all or part of the water quality standards, or set less restrictive standards, in the defined mixing zone, provided that the following conditions are met:

(A) The water within the mixing zone shall be free of:

(1) Materials in concentrations that will cause acute toxicity to aquatic life as measured by an EPA approved bioassay method. Acute toxicity is lethality to aquatic life as measured by a significant difference in lethal concentration between the control and 100 percent efiluent in an acute bioassay test. Lethality in 100 percent effluent may be allowed due to ammonia and chlorine only when it is demonstrated on a case-by-case basis that immediate dilution of the effluent within the mixing zone reduces toxicity below lethal concentrations. The Tribe may on a case-by-case basis establish a zone of immediate dilution if appropriate for other parameters;

(2) Materials that will settle to form objectionable deposits;

(3) Floating debris, oil, scum, or other materials that cause nuisance conditions;

(4) Substances in concentrations that produce deleterious amounts of fungal or bacterial growths.

(5) Substances in concentrations that produce objectionable color, odor, taste or turbidity.

(B) The water outside the boundary of the mixing zone shall:

(1) Be free of materials in concentrations that will cause chronic (sublethal) toxicity. Chronic toxicity is measured as the concentration that causes long-term sublethal effects, such as significantly impaired growth or reproduction in aquatic organisms, during a testing period based on test species life cycle. Procedures and end points will be specified in wastewater discharge permits;

(2) Meet all other water quality standards during low flow conditions as specified in EPA’s National Toxics Rule – 7Q10 for chronic toxicity, 1Q10 for acute toxicity, and the harmonic mean flow for carcmogens.

(c) The limits of the mixing zone shall be described in the wastewater discharge permit. In determining the location, surface area, and volume of a mixing zone area, the Tribe may use appropriate mixing zone guidelines to assess the biological, physical, and chemical character of receiving waters, and effluent, and the most appropriate placement of the outfall, to protect instream water quality, public health, and other beneficial uses. Based on receiving water and effluent characteristics, the Tribe shall define a mixing zone in the immediate area of a wastewater discharge to:

(A) Be as small as feasible;

(B) Avoid overlap with any other mixing zones to the extent possible and be less than the total stream width as necessary to allow passage of fish and other aquatic organisms;

(C) Minimize adverse effects on the indigenous biological community especially when species are present that warrant special protection for their economic importance, tribal significance, ecological uniqueness, cultural value or for other similar reasons as determined by the Tribe and does not block the free passage of aquatic life;

(D) Not threaten public health;

(E) Minimize adverse effects on other designated beneficial uses outside the mixmg zone.

(d) The Tribe may request a permitted discharge for which a mixing zone is required, to submit all information necessary to define a mixing zone, such as:

(A) Type of operation to be conducted;

(B) Characteristics of effluent flow rates and composition;

(D) Description of potential environmental effects;

(E) Proposed design for outfall structures.

(e) The Tribe may, as necessary, require mixing zone monitoring studies and/or bioassays to be conducted to evaluate water quality or biological status within and outside the mixing zone boundary;

(f) The Tribe may change mixing zone limits or require the relocation of an outfall if it determines that the water quality within the mixing zone adversely affects any existing beneficial uses in the receiving waters.

(5) ALLOWANCE FOR COMPLIANCE SCHEDULES

(a) NPDES permits, and orders and directives of the Department issued under Tribal authority, for existing discharges or activities may include a schedule for achieving compliance with water quality criteria contained in this chapter. Such schedules of compliance shall be developed to ensure final compliance with all water quality criteria in the shortest practicable time, but not to exceed five years. Decisions regarding whether to issue schedules of compliance will be made on a case-by-case basis by the permitting agency and must be approved by the Tribe. Schedules of compliance may not be issued for new discharges or activities. Schedules of compliance may be issued to allow for:

(A) construction of necessary treatment capability;

(B) implementation of necessary best management practices;

(C) implementation of additional best management practices for sources determined not to meet water quality criteria following implementation of an initial set of best management practices;

(D) completion of necessary water quality studies.

(b) For the period of time during which compliance with water quality criteria is deferred, interim limitations and/or other conditions may formally be established, based on the best professional judgment of the permitting agency and the Tribe.

(c) Prior to establishing a schedule for compliance, the permitting agency shall require the permittee to evaluate the possibility of achieving water quality criteria via non-construction changes (e.g. facility operation, pollution prevention).

(6) Testing methods: The analytical testing methods for determining compliance with the water quality standards contained in this ordinance shall be in accordance with the most recent edition of Standard Methods for the Examination of Water and Waste Water published jointly by the American Public Health Association, American Water Works Association, and \Vater Pollution Control Federation and other methods approved by EPA or the Tribes.

432.110 Site Specific Criteria and Criteria based on Natural Condition.

The Tribe may revise criteria on a Reservation-wide or waterbody specific basis as needed to protect aquatic life and human health and other existing and designated uses and to increase the technical accuracy of the criteria being applied.

(a) Whenever the natural conditions of the surface waters of the Tribes are of a lower quality than criteria assigned, the Tribe may determine that the natural conditions shall constitute the water quality criteria.

(A) Ifthe natural condition varies with time, the natural condition will be determined as the prevailing highest quality natural condition measured during an annual, seasonal, or shorter period of time prior to human caused influence.

(B) The Tribe may, at its discretion, determine a natural condition for one or more seasonal or shorter time periods to reflect variable ambient conditions.

(C) Historical data or data from an appropriate reference site, that represent natural condition, may be used to determine the criterion.

Any modifications to the criteria in Table 3, will be adopted in regulation.

The Tribe shall fonnally adopt any revised criteria following public review and comment.

Revised criteria will be submitted to EPA, after adoption by the Tribe, for review along with any information that will aid EPA to determine the adequacy of the scientific basis of the revise criteria.

432.120 Variances from Water Quality Standards.

Variances from meeting certain water quality standards may be granted by the Tribe provided they are consistent with the following requirements:

(a) When granted by the Tribe, individual variances are to be pollutant and source specific, and will be included as a part of this section.

(b) In order to obtain a variance from a water quality standard the discharger must demonstrate that meeting the standard is unattainable based on one or more of the following grounds:

(A) Naturally occun-ing pollutant concentrations prevent attainment of the standard, or,

(B) Natural, ephemeral, intermittent, or low flow conditions or water levels prevent attainment of the standard, or,

(C) Human caused conditions or sources of pollutants prevent attainment of the standard and cannot be remedied or would cause more environmental damage to correct than to leave in place.

(D) Dams, diversions or other type of hydrologic modifications preclude attainment of the standard, and it is not feasible to restore the water body
to its original condition or to operate such modification in away that would result in attainment of the standard, or,

(E) Physical conditions related to the natural features of the water body, unrelated to water quality, preclude attainment of the standard, or,

(F) Controls more stringent than technology-based effluent limitations would result in substantial and widespread economic and social impact.

(c) The discharger must submit to the Tribe documentation that treatment more advanced than required by technology-based effluent limitations have been considered and that alternative effluent control strategies have been evaluated.

(d) Any variance granted by the Tribe will remain in effect for a period of five years or the life of the permit.

(A) Upon expiration of the five-year time period or permit, the discharger must either meet the standard or must re-apply for the variance in accordance with these rules.

(B) In considering a re-application for a variance, the Tribe will require the discharger to demonstrate reasonable progress toward meeting the standard.

432.200 Minimum Design Criteria for Treatment and Control of Wastes for the Deschutes, Clackamas, and Santiam River Basins on the Reservation.

Prior to discharge of any wastes from any new or modified facility to any waters of the Deschutes, Clackamas, and Santiam River Basins on the Reservation, such wastes shall be treated and controlled in facilities designed in accordance with the following minimum criteria. (In designing treatment facilities, average conditions and a nonnal range of variability are generally used in establishing design criteria. A facility once completed and placed in operation should operate at or near the design limit most of the time but may operate below the design criteria limit at times due to variables, which are unpredictable or uncontrollable. This is particularly true for biological treatment facilities. The actua l operating limits are intended to be established by permit and recognize that the actual performance level may at times be less than the design criteria.)

Sewage wastes:

(a) Deschutes River downstream from the Reservation boundary to the Pelton Regulating Dam (river mile 100):

(A) During periods of low stream flows (approximately April 1 to October 31): Treatment resulting in monthly average effluent concentrations not to exceed 10 mg/I of BOD and 10 mg/I of SS or equivalent control;

(B) During the period of high stream flows (approximately November 1 to March 31): A minimum of secondary treatment or equivalent control and unless otherwise specifically authorized by the Department, operation of all waste treatment and control facilities at maximum practicable efficiency and effectiveness so as to minimize waste discharges to public waters.

(b) Deschutes from the Pelton Regulating Dam (river mile 100) downstream to the point where it flows off the Warm Springs Reservation:

(A) During periods of low stream flows (approximately April 1 to October 31): Treatment resulting in monthly average effluent concentrations not to exceed 10 mg/l of BOD and 10 mg/l of SS or equivalent control;

(A) During periods of low stream flows (approximately April 1 to October
31): Treatment resulting in monthly average effluent concentrations not to exceed 10 mg/l of BOD and 10 mg/l of SS or equivalent control,

(B) During the period of high stream flows (approximately November 1 to March 31): A minimum of secondary treatment or equivalent control and unless otherwise specifically authorized by the Department, operation of all wast treatment and control facilities a maximum practicable efficiency and effectiveness so as to minimize waste discharges to public waters.

(d) Metolius River downstream from the Reservation boundary and its tributaries on the Reservation:

(A) Treatment resulting in monthly average effluent concentrations not to exceed 5 mg/l of BOD and 5 mg/l of SS or equivalent control.

(e) Tributaries to the Clackamas and Santiam Rivers on the Reservation:

(A) During periods of low stream flows (approximately May 1 to October 31): Treatment resulting in monthly average effluent concentrations not to exceed 10 mg/l of BOD and 10 mg/l of SS or equivalent control;

(B) During the period of high stream flows (approximately November 1 to April 30): A minimum of secondary treatment or equivalent control and unless othe1wise specifically authorized by the Department, operation of all waste treatment and control facilities at maximum practical efficiency and effectiveness so as to minimize waste discharges to public waters.

(f) Effluent BOD concentrations in mg/l, divided by the dilution factor (ratio of receiving stream flow to effluent flow) shall not exceed one unless otherwise specifically approved by the Tribe;

(g) Sewage wastes shall be disinfected after treatment equivalent to thorough mixing with sufficient chlorine to provide a residual of at least one part per million after 60 minutes of contact time unless otherwise specifically authorized by permit. In the event that Chlorine is used as the disinfectant, effluent chlorine concentrations in ug/l, divided by the dilution factor (ration ofreceiving stream flow to effluent flow) shall not exceed eleven.

(h) Positive protection shall be provided to prevent bypassing raw or inadequately treated sewage to public waters unless otherwise approved by the Tribe where elimination of inflow and infiltration would be necessary but not presently practicable;

(i) More stringent waste treatment and control requirements may be imposed where special conditions may require.

Industrial wastes:

(a) After maximum practicable implant control, a minimum of secondary treatment or equivalent control (reduction of suspended solids and organic material where present in significa nt quantities, effective disinfection where bacterial organisms of public health significance are present, and control of toxic or other deleterious substances) is required;

(b) Specific industrial waste treatment requirements shall be determined on an individual basis in accordance with the provisions of this plan, applicable federal requirements, and the following:

(A) The uses, which are or may likely be made of the receiving stream;

(B) The size and nature of flow of the receiving stream;

(D) The presence or absence of other sources of pollution in the same watershed.

(c)

(d)

(e)

(f)

432.300

Where industrial, commercial, or agricultural effluents contain significant quantities of potentially toxic elements, treatment requirements shall be determined utilizing appropriate bioassays;

Industrial cooling waters containing significant heat loads shall be subjected to off stream cooling or heat recovery prior to discharge to public waters;

Positive protection shall be provided to prevent bypassing of raw or inadequately treated industrial wastes to any Waters of the Reservation;

Facilities shall be provided to prevent and contain spills of potentially toxic or hazardous materials and a positive program for containment and cleanup of such spills should they occur shall be developed and maintained.

Biological Criteria

Surface waters of the Reservation shall be of sufficient quality to support native aquatic species without detrimental changes in the resident biological communities.

432.400 Nuisance Phytoplankton Growth

The following values and implementation program shall be applied to lakes, reservoirs, and streams, except for ponds and reservoirs less than 10 acres in surface area and marshes:

The following average Chlorophyll values shall be used to identify water bodies where phytoplankton may impair the recognized beneficial uses:

(a) Natural lakes, which thermally stratify on the Reservation: 0.01 mg/I;

(b) Natural lakes and reservoirs, which do not thennally stratify, and streams on the Reservation: 0.015 mg/I.

Average Chlorophyll fl values shall be based on the following methodology: A minimum of three samples collected over any three consecutive months at a minimum of one representative location (e.g., above the deepest point of a lake or reservoir or at a point mid-flow of a river) from samples integrated from the surface to a depth equal to twice the secchi depth or the bottom (the lesser of the two depths); analytical and quality assurance methods shall be in accordance with the most recent edition of Standard Methods for the Examination of Water and \Vastewater and other methods approved by EPA or the Tribe.

Upon determination by the Tribe that the values in section (1) of this standard are exceeded, the Tribe may:

(a) Approve a schedule for completion and authorize such studies as are necessary to describe present water quality; detem1ine the impacts on beneficial uses; determine the probable causes of the exceedance and beneficial use impact; and develop a proposed control strategy for attaining compliance where technically and econornically practicable. Proposed strategies could include standards for additional pollutant parameters, pollutant discharge load limitations, and other such provisions as may be appropriate. Where natural conditions are responsible for exceedance of the values in section (1) of this standard or beneficial uses are not impaired, the values in section (1) of this standard may be modified to an appropriate value for that water body;

(b) Conduct necessary public hearings preliminary to adoption of a control strategy, standards or modified values; and

In cases where waters exceed the values in section (1) and the necessary studies are not completed, the Tribe may approve new activities, new or additional discharge loadings from point sources provided that it is determined that beneficial uses would not be significantly impaired by the new activity or discharge.

432.500 Special Policies and Guidelines for waters of the Clackamas and North Santiam River basins on the Reservation:

In order to preserve the existing high quality water for municipal water supplies and recreation, it is the policy of the Tribe to prohibit any new or increased discharge of sewage or process wastes to the waters of the Clackamas and the Santiam River basins on the Reservation.

Support Documents: The publication(s) referred to or incorporated by reference in this document are available from the office of the Department of Natural Resources.

1 Ordinance 80 – Chapter 432 was amended by Tribal Council Resolution No. 9630, adopted November 10, 1998, and was further amended by Tribal Council Resolution No. 10,054, adopted July 10, 2001.
2 WSTC 432.015(51) was added by Tribal Council Resolution No. 10,610, adopted March 21, 2006.
3 WSTC 432.1 OO(b)(C) was added by Tribal Council Resolution No. 10,610, adopted March 21, 2006.
4 WSTC 432.100 (2)(e)(A)(l ) was amended by Tribal Council Resolution No. 10,610, adopted March 21, 2006.
5 WSTC 432.100(2)(p )(B) was amended and restated in its entirety by Tribal Resolution No. 10,610, adopted March 21, 2006.