The Floodplain Development Permit

A Planning and Enforcement Tool for Floodplain Administrators

Jul 1, 2009 David Todd

FEMA requires that a floodplain development permit be issued before development takes place in the floodplain. This allows for orderly development and damage mitigation.

When acts of Congress established the local community as the agency with primary enforcement responsibilities under the National Flood Insurance Program (NFIP), FEMA began to promulgate regulations necessary to implement the intentions of the acts.

One requirement, often overlooked at the local level, is the restriction of development within a Special Flood Hazard Area (the floodplain) unless the local community grants a floodplain development permit.

The Purpose of a Floodplain Development Permit

Part of the NFIP is to reduce the amount of flooding that occurs and the damaged that flooding causes. A large step toward achieving this is to direct new development away from the floodplain to areas that are not susceptible to flooding. However, both Congress and FEMA realize that an absolute restriction on such development is not feasible.

So the regulations allow for limited development in the floodplain, but only if the local community first issues a floodplain development permit (FPDP). This permit is a separate document from any planning and zoning permit the community may require, and from the normal building permitting process. A FPDP is obtained through a separate process, and is approved by a different board or individual.

For most local communities, the Floodplain Administrator has authority to approve FPDPs. If the project is simple, and the local Administrator has had enough training and is certified, an engineering review might not be required. However, unless the Administrator is a trained engineer, it is likely that review by a licensed professional engineer will be part of the permitting process.

Contents of a Floodplain Development Permit

For years FEMA did not have a typical FPDP. Each community was required to prepare their own form that complied with Federal regulations. In recent years, FEMA has prepared a Model Floodplain Development Permit, which is available on-line in electronic format. The permit requires the applicant/developer to provide the following information.

A statement by the developer, indentifying the owner of the property and the proposed contractor, as well as a description of the property. The applicant acknowledges that no liability is created for the local community as a result of the application.
A description of the proposed construction, including a site plan, and statements about what flood zone the property is in, and what flood map shows the property.
If the permit is for a structure(s), as opposed to earthwork only, the application must state the base flood elevation at the structure, and what the required finished floor elevation is for the building. Some details of construction are also required.
A section of the permit deals with improvements to an existing structure. If improvements are what FEMA considers “substantial,” (50 percent of market value), the permit is required, and damage mitigation work will likely be required.
Sections of the permit deals with non-residential structures that will be floodproofed and with subdivisions. The method of floodproofing must be described, along with the elevation for floodproofing. For subdivisions, questions about the plat must be answered.
For most FPDPs, an elevation certificate (for the structure) must be attached. At the time of application, this will partially filled out, to be completed after construction when the actual finished floor of the structure is determined by survey.
Technical data, including calculations of the quantity of run-off and modeling of the waterway might be required with the application, depending on the nature of the project and local practice.

Wide Latitude Allowed the Local Floodplain Administrator

The Floodplain Administrator makes the decision on how much technical data is required before approving a FPDP. For a small structure that barely touches the floodway fringe, all technical data requirements might be waived. For a structure within the floodway fringe, technical data will likely be required, but perhaps the Administrator will not require that the project be pre-approved by FEMA.

For a project that alters the floodway (the central core of the floodplain), pre-approval by FEMA is mandatory, and the Administrator must deny the permit until the pre-approval is issued. Unfortunately, many projects that alter the floodway slip through the cracks, and development begins—either with or without a FPDP—without requiring pre-approval.

The FPDP application, initially a planning document, becomes an enforcement tool. With the required elevations listed for the structure floor and for floodproofing, the local Floodplain Administrator can check the building after construction for compliance, and deny occupancy of the building if warranted.