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In addition to existing non-conforming uses and artificial obstructions established before the effective date of floodplain hazard management regulations, the following open space uses shall be allowed without a permit in the regulated flood hazard area; provided that, such uses are not prohibited by any other resolution or statute, do not require structures and do not require alteration of the floodplain such as fill, grading, excavation or storage of materials or equipment:
(A) Agricultural uses, not including related structures, such as tilling, farming, irrigation, ranching, harvesting, grazing and the like;
(B) Accessory uses, not including structures, such as loading and parking areas, or emergency landing strips associated with industrial or commercial facilities;
(C) Forestry, including processing of forest products with portable equipment;
(D) Recreational vehicle use; provided that, the use is on the site for fewer than 180 consecutive days and the vehicle is fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system with wheels intact, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions;
(E) Residential uses such as lawns, gardens, parking areas and play areas;
(F) Maintenance of existing open space uses or artificial obstructions;
(G) Preventive maintenance activities such as bridge deck rehabilitation and roadway pavement preservation activities are considered maintenance;
(H) Public or private recreational uses not requiring structures such as picnic grounds, swimming areas, parks, campgrounds, golf courses, driving ranges, archery ranges, wildlife management and natural areas, alternative livestock ranches (game farms), fish hatcheries, shooting preserves, target ranges, trap and skeet ranges, hunting and fishing areas, and hiking and horseback riding trails;
(I) Fences such as those that have a low impact to the flow of water, such as barbed wire fences and wood rail fences and shall not include permanent fences crossing channels;
(J) Addition of highway guard rail, signing and utility poles along an existing roadway; and
(K) Irrigation and livestock supply wells; provided that, they are located at least 500 feet from domestic water supply wells and with the top of casing 18 inches above the base flood elevation.
(Ord. 2013-01, passed 1-30-2013)
Federal law reference:
Recreational vehicles placed on sites, see 44 C.F.R. § 60.3(c)(14)
Statutory reference:
Allowed uses, see ARM 36.15.701
Uses allowed without permits, see ARM 36.15.601
(A) Floodway. The following artificial obstructions and non-conforming uses are prohibited in the floodway within the regulated flood hazard area:
(1) A building or structure including alterations for living purposes, place of assembly or permanent use by human beings or commercial and industrial buildings, or mobile homes and manufactured homes;
(2) A structure, fill or excavation that would cause water to be diverted from the floodway, cause erosion, obstruct the natural flow of waters or reduce the carrying capacity of the floodway. Minor excavation or fill where compatible and related and incidental may be allowed with a permitted use;
(3) The construction or storage of an object (artificial obstruction) subject to flotation or movement during flood level periods;
(4) Solid and hazardous waste disposal and individual and multiple family sewage disposal systems unless otherwise allowed pursuant to ARM 17.36.101-116 and 17.36.309-345;
(5) Storage of toxic, flammable, hazardous or explosive materials; and
(6) Cemeteries, mausoleums or any other burial grounds, which are subject to a more stringent standard found in other regulations.
(B) Flood fringe or regulated flood hazard area without a floodway. The following artificial obstructions and non-conforming uses are prohibited in the flood fringe or floodplain without a floodway of the regulated flood hazard area:
(1) Solid and hazardous waste disposal;
(2) Storage of toxic, flammable, hazardous or explosive materials;
(3) Cemeteries, mausoleums or any other burial grounds; and
(4) Critical facilities, including buildings and associated facilities that provide essential community care and emergency operation functions such as schools, hospitals and nursing home facilities, fire stations and police stations, as otherwise regulated in 44 C.F.R. § 60.22.
(Ord. 2013-01, passed 1-30-2013)
Statutory reference:
Prohibited uses, see ARM 36.15.605)(1a), 36.15.605(1)(c), 36.15.605(2b), 36.15.605(2)(a), 36-15-605(2c), 36.15.605(2d), 36-15-703(1), 36-15-703(2)
Prohibited uses within a floodway, see MCA 76-5-403(1), 76-5-403(2), 76-5-403(3)
(A) General.
(1) A permit is required within the regulated flood hazard area for a person to establish or alter an artificial obstruction, non-conforming use or development.
(2) Artificial obstructions, non-conforming uses and uses not specifically listed in §§ 11-1-75 through 11-1-88 and 11-1-100 through 11-1-103 of this chapter requires a permit, except as allowed without a permit in § 11-1-60 of this chapter or as prohibited as specified in § 11-1-61 of this chapter.
(3) A permit is required to reconstruct or repair an existing structure that has experienced substantial damage or substantial improvement.
(4) A permit is not required for existing artificial obstructions or non-conforming uses established in the floodplain before the effective date of floodplain management regulations.
(5) Artificial obstruction and non-conforming uses in a regulated flood hazard area not exempt under § 11-1-60 of this chapter is a public nuisance unless a permit has been obtained.
(6) These regulations do not affect any existing artificial obstruction or non-conforming use in the regulated flood hazard area before the land use regulations have been adopted.
(7) An alteration that is any change or addition to an artificial obstruction or non-conforming use not exempt under § 11-1-60 of this chapter that increases the size or increases its potential flood hazard, requires a permit.
(8) Maintenance of an artificial obstruction or non-conforming use is not an alteration.
(B) Required permit application information. A permit application shall include, but is not limited to, the following:
(1) A completed and signed floodplain permit application;
(2) The required review fee;
(3) Plans in duplicate drawn to scale showing the location, dimensions and elevation of proposed project (i.e., landscape alterations, existing and proposed structures, including the placement of manufactured homes and the like) and the location of the foregoing in relation to the regulated flood hazard areas;
(4) A copy of other required applicable permits which may include, but is not limited to, a 310 permit, SPA 124 permit, Section 404 permit, a 318 authorization, 401 certification or a navigable rivers land use license or easement from other permits from federal, state and local agencies, for the proposed floodplain project and must show that the application is not in conflict with other relevant and applicable permits; and
(Ord. 2013-01, passed 1-30-2013)
Federal law reference:
Purpose and floodplain regulations, see 44 C.F.R. § 60.1
Statutory reference:
Artificial obstructions and non-conforming uses, see MCA 76-5-103(1), 76-5-404(1), 76-5-404(2), 76-5-404(3), 76-5-404(3)(b)
Definitions, see ARM 36.15.101(2), 36.15.101(3)
Local regulations, see ARM 36.15.204
(A) Application review.
(1) The Floodplain Administrator shall review and evaluate the application and shall approve, approve with conditions or deny the application within 60 days of receipt of a correct and complete application.
(2) The Floodplain Administrator shall determine whether the application contains the applicable elements required in these regulations and shall notify the applicant of the Floodplain Administrator’s determination as to completeness within seven working days of receipt.
(3) If the application is found insufficient and if the applicant corrects the identified deficiencies and resubmits the application, the Floodplain Administrator shall notify the applicant whether the resubmitted application contains all the elements required by these regulations, as applicable, within seven working days of receipt of the resubmitted application.
(4) This process shall be repeated until the applicant submits a complete application containing all the elements required by these regulations or the application is withdrawn.
(5) If after a reasonable effort the Floodplain Administrator determines that the application remains incomplete, the Floodplain Administrator shall deny the application and notify the applicant of missing elements. No further action shall be taken on the application by the Floodplain Administrator until the application is resubmitted.
(6) A determination that an application contains the appropriate information for review does not ensure that the floodplain permit application will be approved or conditionally approved and does not limit the ability of the Floodplain Administrator in requesting additional information during the review process.
(B) Notice requirements for floodplain permit applications. Upon receipt of a complete application for a permit, the Floodplain Administrator shall:
(1) Prepare a notice containing the facts pertinent to the application and shall publish the notice at least once in a newspaper of general circulation in the area;
(2) Serve notice by first-class mail upon adjacent property owners, if any;
(3) The State National Flood Insurance Program Coordinator located in DNRC shall also receive notice by the most efficient method. Notice to other stream activity permitting agencies shall also be considered;
(4) The notice shall provide a reasonable period of time, not less than 15 days, for interested parties to submit comments on the proposed activity; and
(5) Prior to any alteration or relocation of a watercourse in the regulated flood hazard area, additionally provide notice to FEMA and adjacent communities.
(C) Permit criteria.
(1) Permits shall be granted or denied on the basis of whether the proposed new construction, substantial improvement or alteration of an artificial obstruction is not a prohibited use and meets the requirements of the minimum standards and criteria in §§ 11-1-75 through 11-1-88 and 11-1-100 through 11-1-103 of this chapter.
(2) The Floodplain Administrator must determine that all necessary permits have been received from those governmental agencies from which approval is required by federal or state law, including § 404 of the Federal Water Pollution Control Act Amendment of 1972, 36 U.S.C. § 1334.
(D) Decision.
(1) The Floodplain Administrator shall approve, conditionally approve or deny the proposed application. The Floodplain Administrator shall notify the applicant of his or her action and the reasons thereof within 60 days of receipt of a correct and complete application unless otherwise specified. A copy of the approved permit must be provided to DNRC.
(2) The granting of a permit does not affect any other type of approval required by any other statute or ordinance of the state, any political subdivision or the United States, but is an added requirement.
(E) Floodplain permit application approval. Upon approval or conditional approval of the floodplain permit application, the Floodplain Administrator shall provide the applicant with a permit including, but not limited to, the following requirements and conditions:
(1) The floodplain permit will become valid when all other necessary permits are in place;
(2) Set forth the time limit of up to one year from the date of permit issuance or as commensurate with the project construction time line for completion of the project or development. The applicant may request an extension for completion for up to an additional year. The request for extension must be made within a reasonable period of the original deadline;
(3) Notify all subsequent property owners and their agents and potential buyers of the floodplain development permit issued on the property and that such property is located within a regulated flood hazard area;
(4) Maintain the artificial obstruction or use to comply with the conditions and specifications of the permit;
(5) Allow the Floodplain Administrator to perform on site inspections at select intervals during construction or completion;
(6) Impose interim reporting to the Floodplain Administrator of construction data to confirm design elevations and other project design criteria, which may be undertaken contemporaneously with any building permit inspections;
(7) Submit a certificate of compliance report and elevation certificate where applicable within 30 days of completion or other time as specified; and
(8) Require FEMA approval of revisions that affected National Flood Insurance Rate Map, in the manner set forth above.
(Ord. 2013-01, passed 1-30-2013)
Federal law reference:
Alteration or relocation os watercourse, see 44 C.F.R. § 60.3(b)(6)
Review of proposed development, see 44 C.F.R. § 60.3(a)(2)
Statutory reference:
Notice requirements; local regulations, see ARM 36.15.204(2)(c), 36.15.204(2)(e), 36.15.204(2)(g)
Permit requirements, see MCA 76-5-108
Variances, see MCA 76-5-405(2)
DEVELOPMENT REQUIREMENTS IN THE FLOODWAY
An application for a permit must demonstrate the following goals and criteria are considered and incorporated into the design of any use or artificial obstruction in the floodway requiring a permit.
(A) All projects in the floodway where specifically required herein as requiring an encroachment analysis, must undergo a thorough hydrologic and hydraulic analysis prepared by an engineer to demonstrate their effect on flood flows, velocities and the base flood elevation.
(B) A conditional approval from FEMA of any proposed increase of more than zero (0.00) feet in the base flood elevation must accompany the application. An application for a FEMA conditional letter of map revision approval requires a supporting encroachment analysis.
(C) The maximum allowable increase to the base flood elevation is one-half foot (0.50), unless approval of an alteration of the regulated flood hazard area pursuant to §§ 11-1-45 through 11-1-47 of this chapter occurs with approval of the variance pursuant to §§ 11-1-130 through 11-1-135 of this chapter:
(1) Projects must assure that the carrying capacity of the altered or relocated watercourse is maintained;
(2) Projects must be designed and constructed to ensure that they do not increase the flood hazard on other properties and be reasonably safe from flooding;
(3) The danger to life and property due to backwater or diverted flow caused by the obstruction or use;
(4) The danger that the obstruction or use may be swept downstream to the injury of others;
(5) The availability of alternative locations;
(6) The construction or alteration of the obstruction or use in such manner as to lessen the flooding danger;
(7) The permanence of the obstruction or use;
(8) The anticipated development in the foreseeable future of the area which may be affected by the obstruction or use;
(9) Relevant and related permits for the project have been obtained;
(10) Projects must conform to the additional minimum standards and provisions of this chapter as specified for the use or artificial obstruction specified herein;
(11) Such other factors as are in harmony with the purposes of these regulations, the Montana Floodplain and Floodway Management Act and the accompanying Administrative Rules of Montana; and
(12) The safety of access to property in times of flooding for ordinary and emergency services is subject to other more stringent regulations.
(Ord. 2013-01, passed 1-30-2013)
Federal law reference:
Encroachments and community considerations, see 44 C.F.R. § 60.3
Planning considerations for flood-prone areas, see 44 C.F.R. § 60.22
Revision of flood insurance maps, see 44 C.F.R. § 65.12
Statutory reference:
Alteration of floodplains, see ARM 36.15.505
Minimum criteria for permits, see ARM 36.15.604
Permit criteria, see ARM 36.15.216(2)
Prohibited uses, see ARM 36.15.605(b)
Variance request considerations, see MCA 76-5-406
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