Local Ordinance Authority, Adoption & Permit Requirements

Local Ordinance Authority, Adoption & Permit Requirements

Understanding 44 CFR Part 60.3 Regulatory Levels

The National Flood Insurance Program (NFIP) establishes minimum floodplain management standards for participating communities under Title 44 of the Code of Federal Regulations (CFR) Part 60.3. These regulations are tiered based on the level of flood hazard data provided by the Federal Emergency Management Agency (FEMA) to the community. The progression from 60.3(a) through 60.3(e) represents increasing regulatory requirements as more detailed flood hazard data becomes available.

The Progression of 60.3(a) through 60.3(e)

• 60.3(a) - No Flood Hazard Data: Communities in this category have not received a Flood Hazard Boundary Map (FHBM) or Flood Insurance Rate Map (FIRM). The regulatory focus is on ensuring that new construction and substantial improvements are reasonably safe from flooding. This involves reviewing building permit applications to ensure proper anchoring, use of flood-resistant materials, and adequate construction methods. Without specific flood elevations, the community relies on historical data and common sense to mitigate risk.
• 60.3(b) - Flood Hazard Data without Elevations: Communities have an FHBM or FIRM showing Special Flood Hazard Areas (SFHAs), typically A Zones, but Base Flood Elevations (BFEs) are not provided. The community must require permits for all development in the SFHA and ensure that proposed development is reasonably safe from flooding. They must also obtain, review, and reasonably utilize any BFE and floodway data available from other federal, state, or other sources to enforce elevation and floodproofing requirements.
• 60.3(c) - Base Flood Elevations Provided: The community has a FIRM that includes BFEs for A1-30, AE, AH, and AR zones. At this level, specific elevation requirements apply. Residential structures must have their lowest floor (including basement) elevated to or above the BFE. Non-residential structures must either be elevated or dry-floodproofed to or above the BFE. This is the most common regulatory tier for riverine communities with detailed studies.
• 60.3(d) - Regulatory Floodway Designated: In addition to BFEs, the community has a designated regulatory floodway within the riverine SFHA. The regulatory floodway is the channel of a river and the adjacent land areas that must be reserved to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. The most critical requirement here is that no development (including fill) can occur within the floodway unless it is demonstrated through hydrologic and hydraulic analyses that the proposed encroachment would not result in any increase in flood levels (a "no-rise" certification).
• 60.3(e) - Coastal High Hazard Areas (V Zones): The community has a FIRM showing Coastal High Hazard Areas (V1-30, VE, or V zones). These areas are subject to high-velocity wave action of 3 feet or greater. Regulations include stringent requirements for elevation on pilings or columns, prohibiting the use of fill for structural support, and ensuring that the space below the lowest floor is free of obstruction or enclosed only with breakaway walls. Alteration of sand dunes and mangrove stands is also heavily restricted.

Local Police Power and Floodplain Management

The legal basis for a community to regulate land use and enforce floodplain management standards is rooted in "police power." In legal terms, police power is the inherent authority of a government to enact regulations to protect and promote the health, safety, morals, and general welfare of its citizens.

Floodplain regulations are a classic exercise of police power. By restricting development in flood-prone areas, communities aim to prevent loss of life and property, reduce the need for emergency rescues, prevent the spread of waterborne diseases, and minimize the economic disruption caused by flooding. Courts have consistently upheld floodplain regulations as a valid exercise of police power, provided they are reasonable, bear a substantial relationship to public safety, and do not constitute an unconstitutional "taking" of private property without just compensation. The concept of police power empowers local governments to say "no" to hazardous development or to attach stringent conditions to permits.

Model Ordinances: A Framework for Compliance

Drafting a floodplain management ordinance from scratch can be complex and legally daunting, requiring specialized knowledge of both federal regulations and state enabling legislation. To assist communities, FEMA and state NFIP coordinating agencies provide "model ordinances."

These templates contain the necessary legal language and regulatory provisions to meet the minimum NFIP criteria established in 44 CFR Part 60.3. Using a state-approved model ordinance ensures that a community complies with both federal and state requirements. However, communities are encouraged to treat the model ordinance as a baseline. The NFIP minimums are exactly that—minimums. Communities with specific hazards or a desire for greater resilience often adopt "higher regulatory standards," such as freeboard (requiring elevation a certain distance above the BFE) or prohibiting certain types of development in the floodway entirely.

Comprehensive Permit Requirements for ALL Development

A cornerstone of NFIP compliance is the requirement that a community must mandate a permit for all proposed construction or other development within the SFHA. The term "development" is broadly defined under the NFIP to encompass almost any human-made change to improved or unimproved real estate.

What Constitutes "Development"?

Many people mistakenly believe that only constructing a new building requires a permit. In the context of floodplain management, the definition is much more expansive. Development includes, but is not limited to:

• Building: Constructing new buildings, placing manufactured homes, and making substantial improvements or repairs to existing structures. This includes additions, renovations, and the placement of temporary structures.
• Grading and Filling: Altering the topography of the land, adding soil, or creating berms. Fill can displace floodwaters and increase flooding elsewhere, so it must be carefully regulated. Even minor landscaping that alters drainage patterns is considered development.
• Excavating and Dredging: Removing soil, mining, or altering waterways. These activities can change the flow characteristics of a river and exacerbate erosion.
• Paving: Creating large impervious surfaces that increase runoff and reduce the land's ability to absorb water.
• Storage: Storing equipment, materials, or vehicles (which can become buoyant and act as battering rams during a flood). Hazardous materials storage requires special scrutiny.

The purpose of requiring a permit for all development is to give the local Floodplain Administrator the opportunity to review the proposed activity, ensure it complies with the ordinance, and confirm that it will not exacerbate flooding conditions or put the development itself at unacceptable risk. A robust permitting process is the primary mechanism through which a community enforces its floodplain management regulations.