KAMM
Ky Association of Mitigation Managers

Floodplain Permits Administration Overview

Both a STATE & LOCAL floodplain permit is required for all construction activity in the Special Flood Hazard Area (SFHA) or that area inundated by the 1% annual chance of a flood.  These SFHAs are designated as A, AE, A1-A30, AH or AO Zones on the FIRMs (Flood Insurance Rate Maps).  This includes new or substantially improved residential and non-residential (commercial) structures and bridges, as well as excavation and fill.

Local floodplain ordinances may be more stringent than state and federal regulations, but not less than.

Floodway

Nothing may be placed within a floodway that will cause any rise in Base Flood Elevation (BFE).  The BFE is defined as the water surface elevation inundated by the 1% annual chance flood.  A no-impact certification is required.

Residential Development & Substantial Improvement in SFHAs (A Zones)

• The lowest floor of any new construction or substantially improved structure (including basement) must be elevated to or above the BFE.
• Fully enclosed areas below the lowest floor require at least a minimum of two (2) openings, having a total net area of not less than 1 square inch per square foot of enclosed area.  The bottom of the openings shall be no higher than 1 foot above grade.
• The applicant must submit an Elevation Certificate to the floodplain administrator when the building foundation is complete.

Manufactured Homes in SFHAs (A Zones)

• Outside of an existing manufactured home park or subdivision in A Zones; the requirements are the same as for site-built homes.  Manufactured homes must be anchored to a permanent foundation.
• Within an existing manufactured home park or subdivision (see definition in ordinance) in A Zones; the community has the option of either requiring the home to be elevated to or above the Base Flood Elevation (BFE), or requiring the home to be elevated on reinforced concrete piers, blocks, etc., to at least 36 inches above grade.  In the event of substantial damage (over 50% of pre-damage value), a replacement manufactured home must be elevated to or above the Base Flood Elevation (BFE).

Residential Development & Substantial Improvement (A Zones)

• The building must be elevated; in lieu of elevation, the building may be floodproofed to a minimum of one (1) foot above the BFE.
• If floodproofed, the applicant must submit an “as built” Floodproofing Certificate certified by a professional engineer or architect.

Variances

General note: DO NOT grant variances unless completely justified!

Exception: Variances may be issued for the repair or rehabilitation of historic homes upon determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure, and the variance issued is the minimum needed to preserve the historic character and design of the structure.

Permit Procedures

The DOW is authorized through KRS 151 to manage development in floodplains.  Any type of development in, along, or across a stream requires a floodplain permit from the Division.  Typical activities requiring a permit include, but are not limited to, residential & commercial structures, stream crossings, fill, stream alterations & relocations, and small stream impoundments.   Link to the DOW’s website for the Floodplain Permit and information.

• Local permit applications are an NFIP requirement to ensure that development meets local ordinance requirements.
  • Local ordinances may go above & beyond State requirements.
• Things to consider (link to definitions):
  • Type of development
  • Flood zone & Floodway
  • Base Flood Elevation (BFE)
  • Freeboard, setbacks, etc.
  • Structure’s lowest floor
  • Cost vs. Market Value
    • Substantial?
  • A local permit must be issued in conjunction with State permit
    • If not, State permit is null & void

• Determine if project meets the definition of development in your community’s ordinance
• Floodplain Determination
  • If YES, a state AND local floodplain permit is required
  • If NO, no further action is needed
• Determine what permit(s) are required. Obtain these first.
  • USACE, KDOW floodplain, water quality, endangered species, etc.
  • Provide guidance to applicant for applicable federal and state applications
    • Floodplain maps http://msc.fema.gov   -or-   http://watermaps.ky.gov
    • KY Water Health Portal  http://watermaps.ky.gov
    • Wetlands             https://www.fws.gov/wetlands/Data/Mapper.html
  • Require local floodplain development application
    • Provide guidance to applicant for local application
  • Issue Local Floodplain Permit based on application & ordinance
    • Should be on community letterhead with CEO or the local floodplain coordinator’s signature

Public Notice Requirements -State Floodplain Permits

December 1, 2019

The Kentucky state floodplain regulations requires that while issuing a state floodplain permit, the applicant (i.e. the person or persons applying) are required to “…provide notice to all parties who may incur additional flood-related damages…” as part of the application process.  The Division of Water is making 2 changes to how public notices are handled, to ensure that due process is given to anyone interested in proposed floodplain projects.

Affidavits of Understanding

As of December 1, 2019, Affidavits of Understanding will no longer be eligible as an acceptable means of public notice for state floodplain permits.  All applicants will be required to submit a newspaper notice “…in the newspaper having greatest circulation in the area of the proposed construction” as required by 401 KAR 4:060, Section 3(4)(a)(2).

The regulations say that “…the applicant may obtain and submit affidavits from all parties who reside, own property, or have other legitimate property interests in the affected areas.”  While affidavits are allowed by reg., the Division does not currently have the ability to make property determinations in the affected area.  The Division also has no way of knowing that the signatories on the submitted Affidavit of Understanding are the actual adjoining property owners, or that the submitted affidavits are from ALL of the affected parties.

Public Notice Waiver Requests

Section 3(4)(a)(3) of 401 KAR 4:060 allows the applicant to apply for a public notice waiver as part of their floodplain permit application.  As of December 1, 2019, ALL public notice waiver requests MUST be reviewed & approved through our Director’s office.  See below for a list of when a public notice waiver may be granted by the Division.  Applicants may still request public notice waivers for other projects not on this list; however, they will be reviewed on a case-by-case basis by the Director’s office.

Activities where a public notice waiver request may be valid:

• Development constructed by the US Army Corps of Engineers;
• Uses of open space as outlined in 44 CFR 80.19;
• Stream obstruction removal, such as the removal of woody debris from a bridge or culvert after a storm event, that is completed as described in the Watershed Friendly Stream Maintenance guidance & Stream Maintenance FAQ, and that does not result in materials being deposited in the floodplain for the base flood event.
• Normal property maintenance activities that are done by hand such as cuttings, plantings, and temporarily storing woody debris piles. Maintenance activities shall be completed and all materials removed from the base floodplain in not more than 15 days;
• Development of a below-grade swimming pool outside of the regulatory floodway;
• Development and placement of utility poles, open-frame towers, or monopole towers with below grade foundations;
• Development of below-grade utilities (e.g. water lines, pipelines, etc.);
• Placement of an open-style guardrail along an existing roadway;
• Geotechnical investigations, archeological investigations or installation of monitoring wells;
• Repairs or maintenance to an existing shallow and narrow man-made drainage-way, such as a ditch between two buildings or a swale. The man-made drainage-way cannot be mapped as having its own base floodplain.  (A portion of the man-made drainage-way may empty into a larger waterbody that has a mapped base floodplain.  For example, a ditch between two buildings that flows into a creek);
• Development of a fence that does not impede flow during a base flood event, as long as the fence is not constructed across a stream or wetland;
• Locating a recreational vehicle that is fully licensed and ready for highway use in the floodplain for the base flood event for less than 180 consecutive days;
• Removal of gravel or vein minerals from a stream by the Permittee for personal, noncommercial use that is completed as outlined in the Watershed Friendly Stream Maintenance guidance. Excavated materials shall not be placed along the banks of the stream or within the base floodplain.  Eligibility for coverage under this permit shall be limited to fifty (50) tons or less excavated in twelve (12) successive calendar months in accordance with KRS 350.245.  Eligibility for coverage shall not include removal of gravel or vein minerals that will be sold or transported on public roadways; or
• Development in a watershed less than one square mile (1 mi²), except for dams, structures impounding water, or residential or non-residential structures.
• Extensions of previously public noticed permit.

Floodplain Compliance

Permitting floodplain development is only the first step of the management process.  Violations can, and do, occur.

Once an activity is permitted, the development should be inspected to help ensure that it meets all its permit requirements to reduce its risk of flooding. When a floodplain violation is found, it is the local administrator’s duty to enforce the community’s floodplain ordinance and to help the property owner make corrects.

Link to Floodplain Compliance Guide

Link to Alex VanPelt’s KAMM presentations:

• So I am a Floodplain Coordinator, Now What?
• Common Elevation Certificate and Floodplain Permit Errors