Chapter 8.35 SURFACE MINING

Mining constitutes a legitimate and permissible activity that has the potential to beneficially or adversely impact the community, natural areas, and economics of the Tulalip Tribes. The Tulalip Tribes Board of Directors finds that the extraction of minerals by surface mining within the Tulalip Reservation has the potential to provide revenues and employment to the Tulalip community, as well as significantly affect the natural and cultural resources of the Tulalip Tribes, including the lands and waters of the Tribes, and the health, safety, and welfare of the Reservation community. Therefore, surface mining on any lands within the Tulalip Reservation shall be regulated by this chapter to ensure that:

(1) The adverse environmental and other effects of surface mining will be prevented or minimized, and that mined lands will be reclaimed to usable condition to provide for the beneficial, sustainable long-term productive use of the mined and reclaimed lands;

(2) The reasonable production and conservation of minerals are encouraged while avoiding or minimizing adverse effects on the environment, including, but not limited to, geologic subsidence, unstable slopes, air pollution, water quality degradation, damage to wildlife resources, flooding, erosion, and noise pollution;

(3) The reclamation of mined lands will be carried out in such a way that the continued mining of valuable minerals will not be unreasonably precluded; and

(4) Residual hazards to the public health and safety will be minimized. [Res. 2018-170].

8.35.030 Sovereign immunity.

Nothing in this chapter shall waive, or be interpreted to waive, the sovereign immunity of the Tulalip Tribes. [Res. 2018-170].

8.35.040 Effective date.

The provisions of this chapter shall take effect upon adoption by the Tulalip Tribes Board of Directors with an effective date of May 4, 2018. [Res. 2018-170].

8.35.050 Intent, purpose, and objective.

The general intent of this code is to regulate the location, construction, installation, alteration, design, operation, use, and reclamation of surface mines within the Reservation while considering the appropriate resource conservation objectives of the Tulalip Tribes. The purpose of this chapter is to establish standard regulations and procedures to govern all aspects of surface mining within the Tulalip Tribes Reservation for the excavation and processing of minerals so to: prevent or minimize adverse effects; protect existing and planned adjacent land uses from significant conflicts or adverse impacts; protect cultural and natural resources; ensure that mineral excavation, processing and transport are conducted consistent with the health, safety, and welfare of the Reservation community; assure mined lands are reclaimed to a usable condition which is readily adaptable for alternative land uses; encourage the protection and conservation of mineral resources, while giving consideration to values relating to cultural, recreational, and aesthetic enjoyment. [Res. 2018-170].

8.35.060 Applicability/permit required.

(1) Unless exempted by the provisions of this chapter, any person or persons, partnership, or corporation, or other association of persons natural or artificial, including any public or governmental agencies who propose to engage in surface mining within the exterior boundaries of the Tulalip Reservation or any lands within the jurisdiction of the Tulalip Tribes, or who propose to allow another to engage in surface mining on his or her property must, prior to the commencement of surface mining, obtain from the Tulalip Tribes a surface mining and reclamation plan permit in accordance with the provisions set forth in this chapter and financial assurances for reclamation.

(2) This chapter shall apply to (a) all mining operations that are not defined in TTC 8.35.110 as “preexisting nonconforming” and (b) all minor modifications or substantial changes to any surface mining or reclamation plan permit.

(3) Activities permitted pursuant to this chapter are limited to extraction, washing, crushing, stockpiling, transporting and recycling of clean materials and the primary reduction, treatment, and processing of minerals and materials together with any necessary accessory buildings, and subject to applicable conditional use permit requirements. [Res. 2018-170].

8.35.070 Severability.

If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, it shall not affect the remaining portions of this chapter. [Res. 2018-170].

8.35.080 Restrictions imposed under other authority.

The purpose of this code is to establish a local program for surface mining operations. The code is not intended to repeal, abrogate, annul, impair or interfere with any existing laws, regulations, ordinances, rules, standards or permits that are not specific to mining operations previously adopted by the Tulalip Tribes including Federal regulations that govern mineral leases and associated permits overseen by the Bureau of Indian Affairs (BIA) and the Bureau of Land Management (BLM). For Indian lands within the State of Washington, this includes appropriate portions of 25 CFR Parts 211, 212, and 216 and appropriate parts of 43 CFR 3500 and 3590. [Res. 2018-170].

8.35.090 Interpretation.

In both interpretation and application, this code shall be held to be the applicable requirements for mining within the Tulalip Tribes Reservation. Where any terms or requirements of this code may be inconsistent or conflicting, the more restrictive requirements or interpretation shall apply. [Res. 2018-170].

8.35.100 Exemptions.

(1) This chapter does not apply to (a) extraction of minerals below the threshold constituting a “surface mine” as defined by TTC 8.35.110, (b) excavation, grading, road maintenance or filling of the land for construction purposes that are not related to mining activities, (c) forest or farm road construction, (d) for public safety or restoring the land following a natural disaster, or (e) removing stockpiles.

(2) However, a grading permit shall be required, pursuant to TTC 7.14.060 prior to extraction of minerals in any quantity, even where the extraction of minerals falls below the threshold constituting a “surface mine” as defined by this code. [Res. 2018-170].

8.35.110 Definitions.

The following terms shall have the meanings given them for purposes of this chapter unless a different meaning is specified, or the context clearly demonstrates something different:

(1) Best Management Practices (BMPs). BMPs are proven methods employed to control and prevent excessive erosion and pollution and to convey surface water runoff without damage to Tulalip natural resources. They are designed to address both quantity and quality of stormwater runoff. BMPs are schedules of activities, prohibitions of practices, maintenance procedures, managerial practices, or structural features (silt fences, vegetated swales, detention ponds, etc.) that prevent or reduce pollutants or other adverse impacts to Tulalip waters. BMPs cover management of the volume and timing of stormwater flows, prevent pollution from on-site sources, and treat runoff to remove sediment and other pollutants.

(2) “Disturbed area” means any place where activities clearly in preparation for, or during, surface mining have physically disrupted, covered, compacted, moved, or otherwise altered the characteristics of soil, bedrock, vegetation, or topography that existed prior to such activity. Disturbed areas may include but are not limited to: working faces, water bodies created by mine-related excavation, pit floors, the land beneath processing plant and stockpile sites, spoil pile sites, and equipment staging areas.

(3) “Mineral” or “minerals” refers to clay, coal, gravel, metallic substances, sand, stone, topsoil, and any other similar solid material or substance to be excavated from natural deposits on or in the earth for commercial, industrial, or construction use.

(4) “Minor modification” means a change to a surface mining or reclamation plan permit that does not constitute a substantial change.

(5) “Noxious weeds” are defined by the Washington State Noxious Weed Control Board as nonnative, highly destructive, invasive, competitive, and difficult to control or eliminate. These exotic species not only reduce crop yields and destroy native plant and animal habitat, but they can damage recreational opportunities, clog waterways, lower land values, and poison humans and livestock.

(6) “Preexisting nonconforming mine” means a preexisting mining operation which (a) was permitted by the Tribes prior to the effective date of this chapter, now or hereafter amended, or (b) existed prior to 1995.

(7) “Reclamation” means the implementation of procedures, during and after an exploration or mining operation, intended to minimize and/or mitigate the disruption of Reservation resources resulting from the operation and to protect Reservation resources and the health, safety, and welfare of future economic interests of the Reservation population by providing for subsequent beneficial use of affected lands through the rehabilitation of plant cover, soil stability, water resource, and other appropriate measures.

(8) “Reclamation plan” means a detailed and comprehensive written plan, in accordance with provisions of this chapter, which has been approved as part of a surface mining and reclamation plan permit application describing the steps that will be taken after mining has been completed to ensure the land has been either (a) rehabilitated to its natural, pre-mining condition with approximate original contours restored or (b) is graded and readily adaptable for “higher and better” post-mining land uses consistent with the Tulalip Tribes Comprehensive Plan.

(9) “Substantial change” means a change or expansion to a preexisting or approved surface mining operation or reclamation operation that substantially affects the original scope of the operation. Substantial change includes one or more of the following:

(a) Any change that results in an increase of affected land area by one acre or 10 percent, whichever is less;

(b) Any increase in depth or prescribed slope dimensions beyond the preexisting operation or approved permit;

(d) An extension of the preexisting or approved operation onto additional parcels of land;

(e) An extension to the terms of the original approved mining permit beyond the five-year term period where the permittee has commenced mining activities and requires more than 90 days to complete the permitted mining activities.

(10) “Surface mine” or “surface mining” shall mean any area or areas in close proximity to each other where extraction of minerals results in one or more of the following:

(a) More than one acre of disturbed area, including the result of mineral prospecting or exploration activities;

(b) Surface mined slopes are greater than 30 feet high and steeper than one foot horizontal to one foot vertical;

(c) Surface mines include mineral extraction from the surface or subsurface when the disturbed area exceeds the size or thresholds listed in subsection (10)(a) of this section;

(d) Surface mining occurs when operations have created or are intended to create a surface mine as defined by this subsection. [Res. 2018-170].

Part II. Standards for Surface Mining

8.35.120 General conditions.

(1) Surface mining and associated activities must not be detrimental to the existing, developing, or projected land use at the location of the surface mine or any adjacent area.

(2) Land disturbing activity, excavation and processing of minerals and other mining-related development activities, including, but not limited to, road construction, drainage facilities and detention ponds, and construction of mining related structures are subject to separate permits.

(3) No surface mine shall be permitted if any of the following situations exist:

(a) It is determined that the reclamation plan and/or operating procedures for excavation are not adequate to protect the general welfare, adjoining properties or uses, or the natural environment;

(b) The surface mine is likely to endanger the health, welfare, or safety of the Reservation community; or

(c) The applicant is presently in violation of the land use or environmental laws of the Tribes, or any permit condition, and has failed to remedy such violation(s). [Res. 2018-170].

8.35.130 Setbacks, buffer zone and property protection.

(1) A minimum 200-foot buffer shall be required between on-site crushing, processing, or recycling activities and adjacent properties.

(2) A minimum 100-foot buffer shall be required for the site where operations are limited to the extraction and transportation of minerals. Areas within the buffer zones may be used for earthen berms, topsoil stockpiles, fencing and egress/ingress but may require additional screening to buffer the mining operation from neighboring properties and uses. Once the extraction and transportation operations have been completed, the material in the buffer may be utilized during reclamation. Unprocessed and processed materials stockpiles, equipment storage, fueling stations, and other related accessory uses such as scales, are not allowed within the buffer zones.

(3) A minimum 200-foot buffer of vegetation is required between any mining activity and all surface waters, including streams, wetlands, lakes and marine waters. [Res. 2018-170].

8.35.140 Dust and mud.

To limit the amount of any tracked material being carried from the mine site and being deposited on public roads, the permittee shall be required to install and maintain sufficient on-site BMPs, including, but not limited to, rock pads and mud mats at designated exit/entrance locations. [Res. 2018-170].

8.35.150 Blasting and logs.

(1) The use of explosives to extract or crush mineral resources shall be done in conformance with all applicable Tribal, State, and Federal laws and regulations. Blasting shall be conducted in a manner to prevent damage to persons or public or private property outside the permit area or adverse impacts or change in the course, channel or availability of surface or ground water outside of the permit area.

(2) The operator shall conduct blasting operations at times approved by the Tulalip Tribes.

(3) The operator shall publish a blasting schedule in a newspaper of general circulation in the locality of the blasting site at least 10 days, but not more than 30 days, before beginning a blasting program.

(4) The operator shall distribute copies of the schedule to each local residence within one-third mile of the proposed blasting site described in the schedule.

(5) Blasting logs shall be maintained and immediately provided to the Tribes upon written request. [Res. 2018-170].

8.35.160 Noxious weeds.

It is the responsibility of the operator to monitor disturbed areas for noxious weed infestations. Weed control measures should be implemented during operations and reclamation. This should include acceptable control methods which may require additional permit approvals. [Res. 2018-170].

8.35.170 Mining and reclamation practices.

(1) The following are the minimum acceptable practices that must be followed in all mining and reclamation operations within the exterior boundaries of the Tulalip Reservation:

(a) The removal of vegetation and overburden in advance of mining must be kept to a minimum.

(b) Stockpiles of topsoil must be stabilized using appropriate BMPs to control sediment and erosion.

(c) Best management practices (BMPs) must be employed to control and prevent excessive erosion and to convey surface water runoff to natural drainage areas or into areas designed for water storage.

(d) Siltation of groundwater recharge areas or infiltration of toxic substances into groundwater must be prevented.

(e) Mine waste and overburden must be stable and may not restrict natural drainage without suitable provisions for diversion.

(f) Where reasonable choices exist, piles or dumps of mine waste rock and overburden most be placed in the least visible location.

(g) Adequate flood control is installed where operations occur in or near streams or other drainage channels.

(h) All reasonable measures must be taken to protect water quality, protect fish and wildlife habitat, and to prevent alteration of the course of any stream or other flowing body of water.

(i) Backfilling and site grading must consider compaction of fill materials in conformance with good engineering practices consistent with recommendations from the required geotechnical report to avoid excessive settlement.

(j) Prior to transfer, any soils imported into a mining pit and used for mining reclamation must be tested to ensure that no hazardous or toxic materials are present, and that such soils are clean.

(k) Old equipment, all mining wastes, and toxic materials must be removed at final reclamation.

(l) Final slope gradient must be stable and capable of supporting post mining use consistent with geotechnical recommendations.

(m) Reclamation shall include a plan for final revegetation that demonstrates the use of native species and methods to ensure the survival of plantings.

(n) Reclamation activities shall be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance.

(o) Interim reclamation may also be required for mined lands that have been disturbed and that may be disturbed again in future operations.

(p) Reclamation may be done on an annual basis, in phases compatible with continuing operations, or on completion of all excavation, removal, or fill, as approved by the Planning Department.

(2) The Planning Department may impose additional performance standards as developed either in review of individual projects, as reasonably necessary, or through the formulation and adoption of regulations.

(3) Compatibility with the Tribes’ future land use map for the purpose of reclamation must be considered at the time of surface mining and reclamation plan permit approval. [Res. 2018-170].

8.35.180 Financial assurances.

To ensure that reclamation will proceed in accordance with the approved surface mining and reclamation plan permit, a financial assurance in the form of a surety, bond, trust fund, or other method acceptable to the Tulalip Tribes shall be required as a condition of approval. The financial assurance, made payable to the Tulalip Tribes, must be deemed adequate to perform reclamation in accordance with the surface mining and reclamation plan permit including, but not limited to, revegetation and landscaping requirements, restoration of aquatic or wildlife habitat, restoration of water bodies and water quality, slope stability and erosion and drainage control, disposal of hazardous materials, and other measures, as necessary. In projecting the costs of financial assurances, it shall be assumed that the surface mining operation could be abandoned by the operator and, consequently, the Tulalip Tribes may need to contract with a third party commercial company for reclamation of the site. This assurance will remain in force until all required reclamation has been achieved pursuant to the approved surface mining and reclamation plan permit. [Res. 2018-170].

8.35.190 Monitoring.

Operator agrees to conduct monitoring activities necessary to ensure compliance with laws and regulations and as otherwise required as a condition of the permit. The Tribes reserves the right to perform monitoring should there be instances of noncompliance with permit conditions. This section shall not limit the Tribes’ right to conduct periodic and unannounced site inspections, consistent with TTC 8.35.280. [Res. 2018-170].

8.35.200 Damage to Tribal property.

If any real personal property of the Tribes, including timber, infrastructure or roads, are damaged or destroyed by owner’s operations hereunder on or off the premises, the owner shall restore or pay for the restoration of the same to an acceptable condition and value or may, in the case of personal property, pay fair market value of the damage as compensation therefor. [Res. 2018-170].

8.35.210 Emergency actions.

The operator must comply with all Tribal, State and Federal requirements for emergency actions, spills reporting, safety and human health emergencies. [Res. 2018-170].

8.35.220 Tribal immunity.

Issuance of a surface mining or reclamation plan permit in no way creates any responsibility for the Tulalip Tribes, pursuant to TTC 2.05.020(3), Tribal Immunity. [Res. 2018-170].

Part III. Permit Process and Administration

8.35.230 Contents of application package.

(1) Applications for a surface mining and reclamation plan permit must be made in accordance with this section, and using a form prescribed by the Planning Department. A reclamation plan must be included with a surface mining permit application. The applicant must include sufficient information to evaluate the environmental impacts of the proposed surface mining, and any other information requested by the Planning Department. The surface mining and reclamation plan permit package must include the following information and may require additional information as deemed necessary:

(a) A completed application form;

(b) Statement of interest in the property or, if not the property owner, written permission from the owner allowing the application to be filed;

(c) Names and addresses of the land owner, operator, and any persons acting as agents for the owner, operator or applicant;

(d) The names and current mailing addresses of all persons with surface and/or mineral interests in the site;

(e) The Comprehensive Plan land use and zoning designations;

(f) A description of the geologic and hydrologic conditions and characteristics in and surrounding the area to be mined;

(g) A map or maps depicting the following:

(i) Location and boundaries of all lands included in the application,

(ii) Topographic details of the land at a scale and contour interval sufficient to understand the topographic characteristics of the site,

(iii) Existing conditions including the location of all streams, water bodies, wetlands, and other sensitive areas on site and off site within 200 feet of the proposed mine,

(iv) Existing conditions including the location of roads, railroads, utility facilities, wells, septic tanks, drain fields, existing land uses and other existing improvements within and immediately adjacent to the site,

(v) The location of proposed access roads, haul roads, stockpile areas, processing areas and other improvements and facilities associated with the mining operation;

(h) A certified letter or report from the Tribes’ Cultural Resource Specialist shall be required which must include a description of any known or potential cultural resources on site with a determination as to whether a cultural resources survey will be required;

(i) An environmental report describing current conditions of all surface waters and sensitive areas, including but not limited to depth to groundwater and an assessment of the extent of adverse impacts from the proposed mining activities including, but not limited to, sensitive areas, fish and wildlife, noise, glare, dust, water and air quality;

(j) Demonstration of adequate stormwater management;

(k) A surface mining plan to include:

(i) A statement that proposed mining activities have been reviewed and certified by a licensed engineer that can attest to the project’s viability, and technical soundness;

(ii) The type of surface mining to be employed;

(iii) The hours of operation, types of equipment, and operational methods used for all mining activities;

(iv) The anticipated quantity and type of minerals for which the surface mining operation will be conducted, including an estimate of the material that will be mined annually;

(v) The maximum anticipated depth of the surface mining operation;

(vi) The location and size of the lands that will be included in the surface mining operation;

(vii) A description of phasing or sequencing, if any, of the surface mining operations including a schedule that will provide for the completion of surface mining on each phase or segment of the mined lands so that reclamation can be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance;

(viii) Anticipated hours of operation, including any seasonal operations;

(ix) A description of the manner in which explosives and hazardous materials (if any) used in the surface mining operation will he handled and disposed;

(x) A traffic report estimating the number of anticipated trips that will be generated by the mining operation, a description of the roadways directly affected by the project, identification of the type and duration of potential impacts on all roadways within Reservation boundaries, and proposed mitigation measures to minimize or eliminate associated impacts;

(l) A reclamation plan to include:

(i) A statement of the proposed uses or potential uses of the mined lands after reclamation that is consistent with the future land use map designation and TTC Title 7; proof that any person or persons having a property interest in the land have been notified of and agree with the proposed and/or potential uses; upon sale or transfer of the operation, the new operator shall submit a signed statement of responsibility to the Planning Department for placement in the permanent record;

(ii) A description of how affected sensitive lands will be restored to support desired terrestrial and aquatic habitat functions;

(iii) An estimate of the amount of material needed to reclaim the site with a description of the methods and mechanisms for testing all imported materials to the site and an agreement to maintain and provide testing and import records to the Planning Department as requested;

(iv) An assessment of the effect of reclamation plan implementation on future mining in the area;

(v) Maps of the surface mine showing existing topographic contours, proposed contours of reclaimed land, locations of all roads and utility lines, locations and types of proposed access roads, boundaries of the permit area, and estimated depth to groundwater and locations of surface water and wetlands before and after mining, and total site disturbance and fill, including all phases of excavation;

(vi) Geotechnical report prepared by a geotechnical engineer to include at a minimum, site geology and aerial photographs, surface and subsurface drainage in the site area, slope stability, and the degree of fill compaction recommended for site reclamation;

(vii) Grading plan, cutting, filling and import of clean soils to create acceptable surface for reclamation;

(viii) Design specifications for final reclaimed slopes;

(ix) Description of any areas mined to produce additional materials for backfilling and grading, as well as settlement of filled areas, including but not limited to roads, building sites or other improvements;

(x) Disposition of old equipment, debris, construction and solid waste;

(xi) Temporary stream or watershed diversions, if any;

(xii) A revegetation plan to include species, densities, quantities, size and replacement guarantee and survival rate;

(xiii) An estimate of the implementation costs including itemization of the major components of the reclamation plan, and the estimated cost attributed to each phase or segment of reclamation; and

(xiv) Any other information relevant to the proposal deemed necessary by the Executive Director to enable a thorough review of the proposal to be conducted in accordance with this chapter. [Res. 2018-170].

8.35.240 Application review process.

(1) A conceptual preapplication meeting is optional; a preapplication meeting is required once an application has been prepared.

(2) Surface mining is permitted only as a conditional use in certain zones pursuant to the requirements of TTC Title 7. The applicant is responsible for complying with the conditional use permit application process pursuant to Chapter 7.06 TTC, concurrently with review of a surface mining and reclamation plan permit application pursuant to this chapter.

(3) After an application for a surface mining and reclamation plan permit is submitted and deemed by the Planning Department to be complete, a technical review of the application is conducted, and a written review provided for permit review, pursuant to Chapter 7.06 TTC.

(4) After appropriate staff review, the Planning Department shall present the application to the Permit Review Committee for review and recommendations. Department staff shall consider the recommendations of the Permit Review Committee, and prepare a staff report with recommendations for consideration by the Planning Commission.

(5) The Planning Commission shall hold at least one noticed public hearing on the application for a surface mining and reclamation plan permit, with appropriate notice of the hearing provided to the applicant and the public, pursuant to Chapter 7.06 TTC.

(6) The Planning Commission shall then act to approve, conditionally approve, or deny the surface mining and reclamation plan permit.

(7) The Planning Department shall forward a copy of each approved surface mining and reclamation plan permit, and a copy of the financial assurance, to the Board of Directors and the Planning Commission, and if applicable, to the United States Bureau of Land Management. [Res. 2018-170].

8.35.250 Required findings.

(1) The Planning Commission may approve a surface mining and reclamation plan permit, in whole or in part, with or without conditions, only if all the following findings are made:

(a) The proposed activities would not cause substantial harm to the environmental or cultural resources of the site or adjacent properties;

(b) The proposed site is suitable for the type and intensity of the proposed mining operation;

(c) The proposed use will not be detrimental to the public health, safety or welfare, or adversely affect properties and improvements in the vicinity;

(d) There are adequate provisions for water, sanitation, utilities and services to ensure public health and safety;

(e) The land and/or resources such as water bodies to be reclaimed will be restored to a condition that is compatible with and blends in with the surrounding natural environment, topography and other resources;

(f) The surface mining and reclamation plan permit has been reviewed for any adverse environmental impacts and all significant adverse impacts from reclamation of the surface mining operations are mitigated to the maximum extent feasible; and

(g) The proposed activities meet the requirements of this chapter and all other relevant codes and regulations.

(2) If a surface mining and reclamation plan permit application fails to meet any requirement of this chapter or other relevant codes and regulations, the Planning Commission shall specify which criterion or criteria is not met and may deny such surface mining and reclamation plan permit. [Res. 2018-170].

8.35.260 Planning Commission review and decision.

The Planning Commission may either approve, approve with conditions, or deny the surface mining and reclamation plan permit. A copy of the decision shall be transmitted to the applicant and any person who attended the public hearing or submits a request to the Planning Department. [Res. 2018-170].

8.35.270 Appeal of a permit decision.

A permittee shall have the right to appeal to Tribal Court any decision of the Planning Commission to issue, deny or condition pursuant to this chapter. The decision of the Planning Commission on such appeal may be appealed to the Tribal Court within 10 calendar days of issuance of such decision. The decision of the Planning Commission shall be upheld unless it is found to be arbitrary and capricious. In reviewing the decision of the Planning Commission, the Tribal Court shall consider only the record that was before the Planning Commission. The decision of the Tribal Court shall be final and may not be appealed. [Res. 2018-170].

8.35.280 Periodic and unannounced site inspections.

As a condition of approval for a surface mining and reclamation plan permit, Tribal staff will evaluate continuing compliance with all permit conditions and applicable regulations including making unannounced visits to the site to evaluate such compliance. [Res. 2018-170].

8.35.290 Permit term period.

Unless a shorter or longer period is specified when initially approved by the Tribes, surface mining and plan permits shall be subject to a five-year term period to complete all mining and reclamation activities. The term period shall commence on the date of permit approval.

Any application for extension of a surface mining or reclamation plan permit whose term period is about to expire and requires more than 90 days to complete or has expired shall be filed and processed in the same manner as a new surface mining and reclamation plan permit. [Res. 2018-170].

8.35.300 Amendments to surface mining and reclamation plan permit.

(1) Amendments to an approved surface mining and reclamation plan permit may be requested from the Planning Department at any time, detailing proposed changes from the original plan or permit. Applications shall be on a form provided by the Planning Department and shall be accompanied by a fee established by the Department.

(2) Any amendments to a surface mining and reclamation plan permit, unless determined to be a minor modification as described below, may be approved, denied, or approved with conditions by the same procedure as is prescribed for approval of a surface mining and reclamation plan permit.

(3) Minor modifications to a surface mining and reclamation plan permit may be approved by the Executive Director, consistent with TTC 7.20.040 (Minor subdivisions), upon a written finding that the requested modification is necessary, does not constitute a “substantial change,” and that the modification is consistent with the intent of the conditions of approval. [Res. 2018-170].

8.35.310 Finding of noncompliance – Order to correct.

When the Executive Director finds that a permittee has violated this chapter, or the conditions of the surface mining and reclamation plan permit, the Executive Director may issue an enforcement order commanding the permit holder to rectify any such violations. At the discretion of the Executive Director, an enforcement order may also assess civil penalties and/or require the permittee to stop work on the site until all violations are corrected. Failure to comply with such enforcement order within 15 days may be grounds to suspend or revoke the permit. [Res. 2018-170].

8.35.320 Appeals of permit revocation.

A permittee shall have the right to appeal to Tribal Court any decision of the Executive Director suspending or revoking a permit issued pursuant to this chapter, declaring a surface mine to be abandoned, or assessing civil penalties within 15 calendar days of issuance of such decision. The decision of the Executive Director on such appeal may be appealed to the Tribal Court within 10 calendar days of issuance of such decision. The decision of the Executive Director shall be upheld unless it is found to be arbitrary and capricious. In reviewing the decision of the Executive Director, the Tribal Court shall consider only the record that was before the Executive Director. The decision of the Tribal Court shall be final and may not be appealed. [Res. 2018-170].

8.35.330 Cessation of operations.

If for any reason the Executive Director determines that surface mining activities have ceased on any site for a duration of one year or greater, the surface mine shall be deemed to have been abandoned, and reclamation of the site shall be commenced and completed. [Res. 2018-170].

8.35.340 Declaration of abandonment.

When the Executive Director finds that a surface mine has been abandoned, the Executive Director shall issue a declaration of abandonment and require the owner of the site to complete reclamation in accordance with this chapter and the approved surface mining and reclamation plan permit. [Res. 2018-170].

8.35.350 Reclamation by the Tribes.

When the Executive Director issues a declaration of abandonment or finds that reclamation has not occurred in accordance with the surface mining and reclamation plan permit, then the Tulalip Tribes may reclaim the disturbed areas with Tribal staff, equipment, and materials, or by contract with others. The Tribes may recover the actual expenses of reclamation from any performance bond or other security obtained pursuant to this chapter, or by seeking judgment in the Tulalip Tribal Court. The permit holder shall be liable for legal costs and reasonable attorney fees for any action to recover reclamation expenses. [Res. 2018-170].

8.35.360 Variances.

A permit applicant may request a variance from the terms of this chapter as a part of an application submitted pursuant to TTC 8.35.230. Variances shall be processed as set forth in TTC 7.06.070, except that the Planning Commission shall decide whether to grant or deny a variance from this chapter. [Res. 2018-170].