Land use restrictions in floodplains

Findingsedit

The U.S. Congress finds annual flood losses are increasing at an alarming rate and forms of Federal assistance are often determining factors in the utilization of land and the location and construction of public and of private industrial, commercial, and residential facilities The purpose for such Federal assistance is frustrated where Federal assistance is exposed to flood risks,. A U.S. District Court finds that FEMA determinations of which properties are within the regulatory floodplain affects the location of development:

However, just as the transportation agency in NWF v. Coleman controlled the placement of the highway and interchanges, FEMA designates the boundaries of the floodplains on flood maps. Both of these actions affect the location of development. Whether or not FEMA funds the NFIP, in whole or in part, is immaterial because it is undisputed that FEMA is the federal agency charged with administering the NFIP and that is sufficient to qualify as an "agency action." In neither the present case nor NWF v. Coleman does the action agency authorize, permit, or carry out the actual development that causes the harm to the species' habitat; however, in both cases, development is "reasonably certain to occur" as a result of the agency's action.:1176

U.S. Codesedit

The U.S. Code (USC) codification of the Public Law where Congress established the NFIP in the section "Congressional findings and declaration of purpose" includes:

It is the further purpose of this chapter to (1) encourage State and local governments to make appropriate land use adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses, (2) guide the development of proposed future construction, where practicable, away from locations which are threatened by flood hazards

National Flood Insurance is limited to communities that adopted adequate land use and control measures with effective enforcement provisions consistent with these purposes. The USC section "Additional Congressional findings and declaration of purpose" says "property acquired or constructed with grants or other Federal assistance may be exposed to risk of loss through floods, thus frustrating the purpose for which such assistance was extended". This USC further says "The purpose of this Act, therefore, is to ... require States or local communities, as a condition of future Federal financial assistance, to participate in the flood insurance program and to adopt adequate flood plan ordinances with effective enforcement provisions consistent with Federal standards to reduce or avoid future flood losses". The specific prohibition is in the USC section "Prohibition against Federal approval of financial assistance" that says "No Federal officer or agency shall approve any financial assistance for acquisition or construction purposes on and after July 1, 1975, for use in any area that has been identified by the Administrator as an area having special flood hazards unless the community in which such area is situated is then participating in the national flood insurance program."

Code of Federal Regulationsedit

FEMA created a regulation that identifies the minimum flood plain management criteria for communities including the following:

• utilize base flood elevation and floodway data
• require permits for all development in Zone A
• determine whether proposed developments will be reasonably safe from flooding
• determine that all necessary permits have been received from Federal and State government agencies, including section 404 permits of the Federal Water Pollution Control Act Amendments of 1972
• require within flood-prone areas that new and replacement water supply systems to be designed to minimize or eliminate infiltration of flood waters into the systems
• require within flood-prone areas that new and replacement sanitary sewage systems to be designed to minimize or eliminate infiltration of flood waters into the systems and to minimize or eliminate discharges from the systems into flood waters
• require within flood-prone areas that onsite waste disposal systems to be located to avoid impairment to them or contamination from them during flooding
• notify adjacent communities prior to any alteration or relocation of a watercourse
• determine that the flood carrying capacity within the altered or relocated portion of any watercourse is maintained
• require that manufactured homes must be elevated and anchored to resist flotation, collapse, or lateral movement

The Code of Federal Regulation (CFR) "Suspension of community eligibility" says communities that do not adequately enforce flood plain management regulations meeting the minimum requirements shall be placed on probation.Failure to correct the violation will result in the community losing eligibility for the NFIP.

Optional stricter standardsedit

The NFIP encourages communities to adopt floodplain management standards more restrictive than the NFIP minimum standards. Communities must consider the additional measures specified in 44 C.F.R. § 60.22. Some states and communities enforce a more protective "Regulatory Floodway" by limiting the cumulative increase in water surface elevation to a half-foot or tenth of a foot instead of the NFIP minimum standard increase of one-foot.

This 44 C.F.R. § 60.22 says community flood plain management regulations should permit only development in flood-prone areas that is appropriate with the probability of flood damage. Flooding can damage underground storage tanks (USTs) resulting in leaks of petroleum that contaminate soil, surface water, and groundwater. USTs may even float out of the ground during floods.

This 44 C.F.R. § 60.22 says community flood plain management regulations should prohibit public utilities to be installed in flood prone areas unless it is essential to be located there. Leakage from on-site sewage systems cause contamination problems during floods. Sanitary sewer overflows and combined sewer overflows also release sewage contaminates into flood water. The U.S. Environmental Protection Agency advises "Avoid contact with flood water due to potentially elevated levels of contamination associated with raw sewage and other hazardous or toxic substances that may be in the flood water."

This 44 C.F.R. § 60.22 says community flood plain management regulations should divert development to areas safe from flooding to prevent environmentally incompatible flood plain uses. Ruptures of crude oil pipelines result in crude oil contamination of floodplains. Oil spills create numerous environmental harms. Releases of gasoline, oil, or natural gas during floods also create fire hazards.

This 44 C.F.R. § 60.22 says community flood plain management regulations should provide access requirements so that people do not become isolated by flood water. The Illinois Supreme Court found:

Even if plaintiff were to successfully build the two proposed houses in the floodway at an elevation which would not flood, defendant points out, the homes would still be surrounded by moving water during the 100-year floods. Emergency vehicles would not have access to the homes, and the residents could find themselves stranded without food, clean water, or electricity.

Safety guidance for propane tanks in floods says propane tanks in floodplains need to be secured to prevent them from floating off during flooding. Propane tanks floating in floods break the connecting piping releasing the gas. Leaking propane tanks create fire hazards during floods.

A court finds that local governments might have immunity for negligent emergency response activities because in an emergency there may not be time to determine the best course of action. However, there may not be grounds for immunity for pre-emergency actions where negligence results in flooding.

In 2004 the Association of State Floodplain Managers stated "Most local governments have simply assumed that the federal floodplain management approaches embody a satisfactory standard of care, perhaps not realizing that they actually induce additional flooding and damage.":2 In 2000, the Association of State Floodplain Managers recommended a “no adverse impact” goal to prevent one property owner from adversely impacting the properties of others.:1

Related floodplain regulations by U.S. Army Corps of Engineersedit

The U.S. Army Corps of Engineers (USACE) identifies themselves as the Federal government's largest water resources development and management agency. USACE says they provide information, technical services, planning guidance, and planning assistance to guide the development of floodplains. USACE says their regulatory program after 1968 evolved to balance the national concerns for both the protection and utilization of important resources by public interest review. The 33 C.F.R. 320.4(l)(2) states:

In accordance with the requirements of Executive Order 11988, district engineers, as part of their public interest review, should avoid to the extent practicable, long and short term significant adverse impacts associated with the occupancy and modification of floodplains, as well as the direct and indirect support of floodplain development whenever there is a practicable alternative. For those activities which in the public interest must occur in or impact upon floodplains, the district engineer shall ensure, to the maximum extent practicable, that the impacts of potential flooding on human health, safety, and welfare are minimized, the risks of flood losses are minimized, and, whenever practicable the natural and beneficial values served by floodplains are restored and preserved.