48-3609

48-3609. Floodplain delineation; regulation of
use; federal requirements and definitions

A. Except as provided in section 48-3610, the board within its area of jurisdiction
shall delineate or may by rule require developers of land to delineate for areas where
development is ongoing or imminent, and thereafter as development becomes imminent,
floodplains consistent with the criteria developed by the director of water resources.

B. Except as provided in section 48-3610, the board shall adopt and enforce
regulations governing floodplains and floodplain management in its area of jurisdiction
which shall include the following:

1. Regulations for all development of land, construction of residential, commercial
or industrial structures or uses of any kind which may divert, retard or obstruct
floodwater and threaten public health or safety or the general welfare.

2. Regulations which establish minimum flood protection elevations and flood damage
prevention requirements for uses, structures and facilities which are vulnerable to flood
damage. Regulations adopted under this section shall comply with state and local land
use plans and ordinances, if any.

3. Regulations which provide for coordination by the district with all other
interested and affected political subdivisions and state agencies.

4. Regulations that require any residential structure built in a floodplain to be
constructed so as to place the lowest floor elevation of the structure at or above the
regulatory flood elevation, that require commercial or industrial structures to be flood
proofed or elevated to or above the regulatory flood elevation and that prohibit any
activity in a designated floodway, including fill, that would increase the water surface
elevation during a base flood.

5. Regulations to allow a mobile home located in a floodplain on August 3, 1984 to
be replaced by another mobile home if:

(a) The mobile home to be replaced was not damaged by a flood to more than fifty
per cent of its value before the flood.

(b) The replacement mobile home is elevated so that the bottom of the structural
frame or the lowest point of any attached appliances, whichever is lower, is at or above
the regulatory flood elevation.

6. Regulations that require all new placement of mobile homes to be anchored to
prevent flotation, collapse or movement.

7. Variance procedures to permit variances from the regulations that do not result
in danger or damage to persons or property in floodplains in the area of jurisdiction.
Variances may be granted only if special circumstances, such as size, shape, topography,
location or surroundings of the property, would cause the strict application of the
regulations to deprive the property of privileges enjoyed by similar property in the
floodplain. A variance is subject to conditions to ensure that the variance does not
constitute a grant of special privileges inconsistent with the limitations on similar
property in the floodplain.

C. Waste disposal systems shall not be installed wholly or partially in a
regulatory floodway.

D. Water supply, water treatment and sewage collection and disposal systems built
in a regulatory floodplain shall be designed to prevent or minimize floodwater
infiltrating the systems and to prevent or minimize floodwater contamination during the
base flood.

E. Floodplain regulations enacted pursuant to this article may only be adopted
after a public hearing at which parties in interest and other citizens have an
opportunity to be heard. At least thirty days before the hearing, a notice of the time
and place of the hearing shall be published in a newspaper of general circulation within
the county or, if no newspaper of general circulation is regularly published, in a
newspaper of general circulation nearest the area of jurisdiction. A notice of any
hearing accompanied by a copy of each of the proposed regulations shall be furnished to
the director at least thirty days before the date of the hearing. A copy of any
regulation adopted by a district pursuant to this article shall within five days
thereafter be filed with the director and with each political subdivision and municipal
corporation in the area of jurisdiction.

F. All development of land, construction of residential, commercial or industrial
structures or future development within delineated floodplain areas is prohibited unless
floodplain regulations have been adopted pursuant to this article for such floodplain
area and are in full force and effect.

G. Before adopting regulations the board may issue a special permit authorizing
construction or development if the board finds that construction or development is not a
danger to persons or property.

H. Unless expressly provided, this article and any regulations adopted pursuant to
this article do not affect:

1. Existing legal uses of property or the right to continuation of such legal use.
However, if a nonconforming use of land or a building or structure is discontinued for
twelve months or destroyed to the extent of fifty per cent of its value, as determined by
a competent appraiser, any further use shall comply with this article and regulations of
the district.

2. Reasonable repair or alteration of property for the purposes for which the
property was legally used on August 3, 1984 or on the date any regulations affecting such
property take effect, except that any alteration, addition or repair to a nonconforming
building or structure which would result in increasing its flood damage potential by
fifty per cent or more shall be either flood proofed or elevated to or above the
regulatory flood elevation.

3. Reasonable repair of structures constructed with the written authorization
required by section 48-3613.

4. Facilities constructed or installed pursuant to a certificate of environmental
compatibility issued pursuant to title 40, chapter 2, article 6.2.

I. Within one hundred twenty days after completion of construction of any flood
control protective works which changes the rate of flow during the flood or the
configuration of the floodplain upstream or downstream from or adjacent to the project,
the person or agency responsible for installation of the project shall provide to the
governing bodies of all jurisdictions affected by the project a new delineation of all
floodplains affected by the project. The new delineation shall be done according to the
criteria adopted by the director of water resources.

J. A flood control district or appropriate public agency which has failed to adopt
or enforce floodplain regulations required by this section shall not be eligible for
disaster relief identified by section 35-192, subsection D, paragraphs 3 and 5. The
director of water resources shall advise the director of the division of emergency
management within the department of emergency and military affairs of such failure to
comply.

K. A district and its agents may have reasonable access as provided by written
authorization issued pursuant to section 48-3613 or if no authorization has been issued
during business hours or in the case of an emergency, at any time, to enter and inspect
any development on real property that is located in a floodplain in order to determine
whether an owner is in violation of this chapter. This subsection does not authorize the
inspection of any records or files on a site or the interior of any building. A district
shall attempt to provide written notice to the owner at least forty-eight hours in
advance that the real property is to be inspected and that the owner or the owner's agent
may accompany the district inspector on the inspection. A district inspector shall comply
with any safety requirements that may be applicable to a particular site. The district
shall prepare a report of any inspections made pursuant to this subsection. The report
shall be made available in the records of the district and a copy sent to the owner
within thirty days after the inspection.

L. The floodplain regulations adopted by a district pursuant to this chapter are
intended to carry out the requirements of the national flood insurance program and any
term not otherwise defined in this chapter shall have the meaning set forth in 44 Code of
Federal Regulations parts 59 through 78, as effective on January 1, 2005.