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. Except as provided in subsection C of this section, 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 percent 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. A city or town with a population of less than one thousand five hundred persons that is located in a county with a population of less than seventy thousand persons and that has assumed the powers and duties for floodplain management pursuant to section 48-3610, subsection A may adopt as a part of the regulations required by subsection B, paragraph 5 of this section a regulation that allows a mobile home that qualifies under this subsection to be replaced with a mobile home that either 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 base flood elevation or has a chassis supported by reinforced piers or other foundation elements of equivalent strength that are not less than thirty-six inches in height above grade and that are securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement. A mobile home qualifies under this subsection if both of the following apply:

1. The mobile home was located in a mobile home park or subdivision on August 3, 1984 or before the effective date of the city's or town's initial floodplain management regulations, whichever date is earlier.

2. No mobile home that is located in that mobile home park or subdivision has been damaged by a flood to more than fifty percent of its value before the flood.

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

E. 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.

F. 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.

G. 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.

H. 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.

I. 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 percent 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 percent 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.

J. 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.

K. 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.

L. 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.

M. 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.