LEGISLATURE PUTTING TEETH IN FLOOD PLAIN ENFORCEMENT? - FEMA Ordinance Already Has Broad Power, How Will Calhoun Be Affected

By Bob Weaver

A heated debate in the legislature on how private property rights mesh with public access to flood insurance, delayed a showdown this week on new enforcement powers to be given to counties over flood plains.

FEMA has been urging counties to seriously begin enforcing their flood plain ordinances, including a recent visit to Calhoun County.

Calhoun's current flood plain ordinance requires the obtaining of a permit before any construction changes can be made on any of the county's flood plains, including smaller streams other than the Little Kanawha and the West Fork of the Little Kanawha.

Calhoun's flood plain ordinance, passed in 1991, is essentially the ordinance required by FEMA to allow residents to obtain flood insurance.

Calhoun Chronicle Reporter Lisa Minney challenged county residents to complain to the Calhoun Commission about the lack of enforcement of the ordinance, saying that no one has been fined and few permits were issued.

Minney claims Calhoun citizens have not complied with the ordinance and the Calhoun Commission has not made them.

The ordinance states that improvements above 50% of the appraised value of flood plain property must be certified by the Flood Plain Coordinator. The improvements cannot be made unless the structure is "flood proofed," and meets flood plain code.

Any land changes or landing filling on the flood plain must be approved, under the ordinance.

Violators could be subject to serious fines.

Most county commissions consider permitting and enforcement provisions are un-funded mandates.

While flood plain officials say their rules are a common sense approach to building on the flood plain, including safety and financial concerns, the language in the ordinances have many issues that concern property owners.

FEMA's ordinance requires all residents to seek some kind of clearance on any new construction or changes, even those that occur on the highest hill.

Most West Virginia counties have lagged in enforcing their flood plain ordinances.

There is the threat of FEMA pulling their flood insurance if counties do not get into the enforcement business.

Now at issue is a Senate bill that lets counties rule on construction in flood plains. The intent is to create a flood plain enforcement agency to enforce building codes so homeowners comply with the National Flood Insurance Program.

Flood ordinances passed by nearly every county already contains provisions for enforcement.

Some legislators seemed confused why such an additional measure is needed.

Sen. Russ Weeks, R-Raleigh, ignited a floor fight by declaring his opposition on grounds it invades the rights of private property.

"This goes beyond what I feel is fair," Weeks said.

"It says where we can build and where we cannot build," said Weeks, "things we can do and things we cannot do on our property."

Sen. Robert Plymale, D-Wayne, said the proposed measure is needed so residents don't repeatedly rebuild in places vulnerable to flooding and jeopardize insurance for the public.

"If you look at this," he said, "far too long we have failed to look at these kinds of things. We've had properties damaged over and over and over."

So much flooding has occurred, Plymale said, that the Federal Emergency Management Agency "may as well declare themselves residents - they've been here long enough."

Concerns over the objections of the Farm Bureau and the possible enhanced powers of counties to zone private land led Sen. Mike Ross, D-Randolph, to prompt a one-day delay in the vote.

"Zoning is not very popular" in rural counties, Ross said.

Plymale insisted zoning in no way is contained in the proposed legislation.

"There is nothing in here in relation to the 'Z' word," he said.

"Believe me, if we don't start looking at these things in the proper manner, we're not going to have any availability for anyone to have insurance in those areas."

Sen. Edwin Bowman, D-Hancock, agreed the bill doesn't give counties any more zoning authority than they now enjoy, but is intended for the "best interests of people who live in these areas."

Ross said he has sought for years to empower landowners with the right to clean up streams on their property but has seen such legislation bottled up time and again.