Planning to build in a FEMA-defined Floodway? What Local Floodplain Administrators Need to Know About FEMAs No-Rise Certification.

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The Indiana Department of Natural Resources (IDNR) hosted the Operation Stay Afloat Conference on Wednesday, March 6. Here is a summary of conference information and regulatory requirements regarding the Federal Emergency Management Agency’s (FEMA’s) defined floodways.

In the National Flood Insurance Program Requirements (NFIP), the Code of Federal Regulations, Flood plain management criteria for flood-prone areas, 44 CFR 60.3 (d) (3), states that a proposed project in a FEMA-defined floodway must prove no-rise or 0.00-feet increase in the Base Flood Elevation (BFE). Rise is taken into consideration upstream and downstream of the study reach.

Historically, FEMA considered an IDNR Construction in Floodway (CIF) Permit as a No-Rise Certification. Through the Indiana Flood Control Act, IC 14-28-1, IDNR regulates an allowable cumulative surcharge of 0.14 feet of the BFE for proposed projects within the regulatory floodway.

However, as a result of 44 CFR 60.3, FEMA is no longer considering the IDNR CIF permit for proposed impacts to a FEMA-defined floodway as meeting the requirements of the agency’s No-Rise Certification.

Projects located in FEMA floodways must either complete a No-Rise Certificate, complete with a hydraulic report, to demonstrate no rise in the BFE, or go through the Conditional Letter of Map Revision (CLOMR) process.
At this time, IDNR has noted that the CLOMR process can take upwards of a year.

It is important to note that the National Flood Insurance Program (NFIP) underwrites flood insurance coverage only to communities that adopt and enforce floodplain regulations that meet or exceed NFIP criteria. Therefore, floodplain regulations based on federal code that meet minimum standards established by FEMA must be enforced! If communities do not fulfill NFIP obligations and allow construction in violation of its regulations, the following could occur:

New buildings will be subject to flood damage.
Insurance on improperly constructed buildings can be very expensive.
FEMA can impose sanctions on the community, to encourage it to correct its floodplain management program.

IMPORTANT IDNR REGULATORY CHANGES IN RESPONSE TO 44 CFR 60.3

Applicants will be notified by IDNR (upon applying for permits in FEMA floodways) of their project’s location in a FEMA floodway and FEMA’s No-Rise requirements.
IDNR will notify communities that they need to ask applicants for a No-Rise Certificate or CLOMR.
Permits approved by IDNR will contain language in the conditions notifying the applicant that approval under IDNR does not mean the applicant is in compliance of FEMA’s No-Rise requirements.
IDNR has revised (or will be revising) floodway application worksheets.
IDNR has released a “No-Rise” Certificate application (State Form 57165).
FEMA is not currently doing any sort of formal review to enforce No-Rise requirements; however, IDNR is keeping track of all applications, including No-Rise Certificates and CLOMRs.

For proposed projects within a FEMA-designated floodway, the local floodplain administrator should be requiring, through a local ordinance, a No-Rise Certification with a hydrologic & hydraulic assessment completed by a Professional Engineer showing a 0.00-feet rise in BFE due to a proposed project or an approved FEMA CLOMR for the project area before issuing a permit.

Additional information and training opportunities can be found at the IDNR Floodplain Management Training site. Questions can be directed to Dale Gick, PE.