Regulatory Compliance

Cherokee’s streams and rivers are famous for their beautiful, clean water. To keep them that way, we work with landholders and builders to stop pollution from washing into them – whether that pollution comes in the form of chemicals, fertilizer, or our biggest contaminant of all: sediment.

A few of the tools we use to protect clean water include:

Water Quality Standards. These new standards, approved by the U.S. Environmental Protection Agency (EPA) in 2019, ensure the treatment of EBCI like a state under federal law, and allow us to enforce our standards for clean water whether pollution derives from sources on or off tribal land. Our staff monitors water quality in order to identify issues and address them as efficiently as possible. Contact: Michael Bolt, Water Quality Section Supervisor.

Section 404 Permitting. Clean Water Act Section 404 addresses the discharge of dredged or fill material into US waters, including those on tribal land. If a project involves dredging or filling and has the potential to impact tribal waters, it might require a Section 404 permit. Contact: Gary Sneed, Regulatory Specialist.

Section 401 Certification. This links up the two items above – making sure that all federal permits meet tribal water quality standards. A proposed federal permit needs to go through Clean Water Act Section 401 Certification before it can be approved. Contact: Michael Bolt, Water Quality Section Supervisor.

Section 402 Permitting. Some larger scale developments that could negatively impact water quality, such as an aquaculture facility or a waste-water treatment plant, require a federal National Pollution Discharge Elimination System (NPDES) permit under the Section 402 of the Clean Water Act.  Our office works with project managers and the EPA to ensure these projects are planned and permitted efficiently to meet the both development and water protection needs.  Contact: Michael Bolt, Water Quality Section Supervisor.

In steep mountains like ours, erosion can be a major problem. Exposed soil can wash away quickly, destabilizing slopes and muddying streams. Controlling erosion during construction and other projects is key for protecting both the water and the land.

Erosion Control Best Management Practices Plan. All ground disturbing activities require precautions to ensure runoff does not inadvertently pollute EBCI waters.  If less than 1 acre of ground will be disturbed, building permit applicants are required to consult with EBCI Natural Resources and submit a simple form outlining basic erosion control measures.  Although required by Tribal Code (113-D), this is an informal process and does not required engineered drawings or a comprehensive Stormwater Pollution Prevention Plan.  Contact: Derek Tahquette, Regulatory Compliance Specialist.

Construction General Permit & Stormwater Pollution Prevention Plan. Any activity disturbing more than 1 acre of ground area requires a Notice of Intent for coverage under the NPDES construction general permit and a stormwater pollution prevention plan (SWPPP) to address erosion during project development and long-term stormwater planning needs. This plan must be completed at least 30 days before breaking ground and go through Section 401 Certification (see above). An EBCI Erosion and Sedimentation Control permit must be issued by our office prior to construction once these steps have been completed (113-D). Contact: Derek Tahquette, Regulatory Compliance Specialist.

In steep terrain like ours in Cherokee, most development is concentrated around rivers. This comes with two risks: first, that floods could endanger human lives and structures, and second, that development could make floods worse by restricting the land’s ability to soak up and slow down excess rainwater.

Floods are a normal part of natural cycles, and the Federal Emergency Management Agency (FEMA) keeps maps of areas expected to flood at – on average – 100-year intervals. Regulatory requirements found in EBCI Code Chapter 143 vary based on your location in the flood hazard map:

Floodplain. If a structure is within the area expected to flood, on average, once every 100 years, it is in the “100-year floodplain.” These structures must be elevated and floodproofed. A “structure” is defined as anything with three walls and a roof. Contact: Gary Sneed, Regulatory Specialist.

Floodway/Non-Encroachment. This is the area of the channel needed to discharge to the base-flood elevation and not cause a rise in water of more than a foot. It needs to remain free of obstruction in order to not make flooding worse. Any construction within the floodway must get a “No-Rise,” demonstrating that it won’t cause a rise in floodwaters at any point in the stream or river. Contact: Gary Sneed, Regulatory Specialist.

If construction in the floodway will cause a rise in flood levels and the developer wants to go ahead anyway, it needs to go through a CLOMR/LOMR process (“Conditional Letter of Map Revision”/“Letter of Map Revision”). This is a process to change the actual FEMA floodplain maps and requires going through a public comment period. Contact: Gary Sneed, Regulatory Specialist.

Per EBCI code any land-disturbing activity uncovering one acre or more requires an erosion and sedimentation control plan approved by the Tribe. A completed SWPPP as required under the NPDES CGP meets required erosion planning needs. The plan shall be filed with the Natural Resources program at least 30 calendar days prior to the commencement of the proposed ground disturbing activity. The approval of an erosion control plan is conditioned on the applicant’s compliance with federal and Tribal water quality laws, regulations, and rules. If the submitted plan is approved a permit to conduct land-disturbing activities shall be issued in the name of the applicant. In cases where less than one acre will be disturbed, applicants for building permits on any construction are required to complete an erosion control form issued by the Natural Resources program to ensure the implementation of basic erosion control measures. Natural Resources staff perform erosion control inspections and ensure proper planning measures are maintained to protect EBCI water quality.

Statutes/Regulations: EBCI Tribal Code – Chapter 113-D – Soil Erosion and Sedimentation Control

Primary Contact: Derek Tahquette, Regulatory Compliance Specialist

Timber permitting on tribal land is administered by the Bureau of Indian Affairs (BIA). If your project involves cutting trees, our staff can direct you to the BIA office. The BIA should then contact us when they are ready to determine whether timber cutting will affect any endangered species (see below).  Contact: David Lambert, Forester (Bureau of Indian Affairs).

There are a number of species that are listed as threatened and endangered under the federal Endangered Species Act with the potential to occur on tribal land. These species include plants and animals with populations so small that they’re hanging on the edge of extinction. Some like the Carolina northern flying squirrel and Northern long-eared bat are known to occur on Tribal land.  Other protected species, like Indiana bats, are mere possibilities based on historic or nearby records. Either way, these species are vulnerable to human development and require our close watch.

EBCI staff perform species and habitat assessments, biological evaluations, and consultation activities with the U.S. Fish and Wildlife service to ensure Tribal projects are planned and implemented as efficiently and safely as possible. Endangered Species Act (ESA) assessment letters from the Natural Resources program are also required by the BIA to complete timber permitting and NEPA compliance. Contact: Caleb Hickman, Supervisory Fisheries and Wildlife Biologist.

Our staff works to protect people from health risks associated with building and development. These include:

Hazardous Building Materials. Asbestos and lead paint are two materials that can cause serious health problems, and both were widely used in construction through the 1970s. Dust from demolition or construction on buildings that contain these materials can be very risky to breathe. If you are planning to demolish a building as part of your project, contact our staff to determine whether it may contain hazardous building materials and if an assessment and disposal plan is required. Contact: Derek Tahquette, Regulatory Compliance Specialist.

Underground and Aboveground Storage Tanks. Underground and aboveground storage tanks used for heating oil, gasoline, and other hazardous substances may leak into the surrounding environment, resulting in hazards to humans as well as the environment. Our staff monitors known tanks and leaks to ensure that they don’t pose a risk, as well as working to clean up sites where tanks have leaked. Contact: Derek Tahquette, Regulatory Compliance Specialist.

The Clean Air Act (CAA) provides the U.S. Environmental Protection Agency (EPA) with broad authority to protect air resources throughout the nation, including air resources in Indian Country. Some industrial development projects have the potential to increase air pollutant levels to a degree that may have a significant impact on the environment and human health.  Today, the EPA maintains the regulatory authority over such projects and issues required special permits.  Our Air Quality Office is available to assist with permit applications and coordination with EPA.  Contact: Katie Tiger, Air Quality Section Supervisor.

Many projects on tribal land involve funding, permitting, or authorization from the Bureau of Indian Affairs (BIA) or other federal agencies. In most cases, this triggers NEPA – the National Environmental Policy Act – which is a special set of requirements placed on federal agencies like the BIA to evaluate the environmental impacts of their planned work. NEPA review operates at three levels:

Categorical Exclusion (CATEX). Projects that will have a minimal environmental impact and meet certain categories of action require the completion of a checklist to ensure natural resources are protected.

Environmental Assessment (EA). Documents the impact of an action and its alternatives on the “human environment.” After a public comment period, if the EA finds no significant impact, the NEPA review is complete.

Environmental Impact Statement (EIS). If the EA does find an action will have a significant environmental impact, a much more detailed EIS must be prepared.

While this is a federal review process, it’s important to have tribal oversight and ensure that tribal natural and cultural resource concerns are addressed in NEPA documents. Our staff will help you through the steps of NEPA compliance and review all documents before they are submitted to the required federal agency. Contact: Gary Sneed, Regulatory Specialist.

Our staff assess both commercial and residential sites for their suitability for purchase and subsequent development. Upon request from the EBCI Department of Justice (DOJ), Natural Resources staff performs environmental reviews to assess current natural resource conditions and regulatory limitations to subsequent development. A final report is submitted to the EBCI DOJ and accompanies purchase documentation to be reviewed by Tribal Council. Reviews are also conducted at the request of BIA Realty department as required by certain financial transactions. Contact: Gary Sneed, Regulatory Specialist.

Projects that involve ground disturbance, tree cutting, construction, re-modelling, and demolition must follow approval processes set forth in federal and tribal regulations.  Formal EBCI NRD environmental reviews are conducted for projects as approved through EBCI commercial development regulations (Cherokee Code Chapter 47) and the EBCI house-site inspection form (“long-form”) process for single house construction.  Additional projects falling outside of these categories are reviewed as information is submitted on a case-by-case basis, including but not limited to EBCI infrastructure projects.  Our staff is available for consultation at the earliest stages of project development to ensure planning and implementation occurs as efficiently as possible.  Also, additional coordination is required with our office if plans change to ensure delays are avoided.

EBCI Natural Resources requests the following information from project managers to initiate reviews and ensure they are completed in a timely manner:

• Project narrative
• Estimated construction timeline
• Parcel map
• Aerial or topographic map delineating project footprint
• Building plans and engineered design documents

Staff will review project scoping documents and determine environmental regulatory requirements.  An environmental compliance comment letter will then be provided to the project manager identifying any missing planning elements and outlining permitting and compliance needs.