(a) No new development shall create a threat to public health, public safety, or water quality. Chemicals, explosives, gasoline, propane, buoyant materials, animal wastes, fertilizers, flammable liquids, pollutants, or other materials that are hazardous, toxic, or a threat to water quality are prohibited from the regulatory floodplain. This prohibition does not apply to small quantities of these materials kept for normal household use. This prohibition does not apply to the continued operations of existing facilities and structures, reuse of existing facilities and structures, or functionally dependent facilities or structures.
(b) If the proposed project cannot meet division (a) above, then a habitat assessment must be conducted that includes an assessment of the impact of the project on federal, state, or locally protected species and habitat, water quality, and aquatic habitat. The assessment shall be:
(1) A biological evaluation or biological assessment developed per 50 C.F.R. § 402.12 to initiate federal interagency consultation under Endangered Species Act § 7(a)(2); or
(2) Documentation that the activity fits within § 4(d) of the Endangered Species Act; or
(3) Documentation that the activity fits within a habitat conservation plan approved pursuant to § 10 of the Endangered Species Act, where any such assessment has been prepared or is otherwise made available; or
(4) An assessment prepared in accordance with FEMA standards. The assessment shall determine if the project would adversely affect:
A. Species that are federal, state, or local listed as threatened or endangered;
B. The primary constituent elements for critical habitat, when designated;
C. Essential fish habitat designated by the National Marine Fisheries Service;
D. Fish and wildlife habitat conservation areas; or
E. Other protected areas and elements necessary for species conservation.
(5) Habitat mitigation plan.
A. If the assessment conducted under this section concludes the project is expected to have an adverse effect on water quality and/or aquatic habitat or habitat functions, the applicant shall provide a plan to mitigate those impacts in accordance with applicable FEMA regulations.
1. If the USFWS or NMFS issues an incidental take permit under § 10 ESA, Biological Opinion under § 7, ESA, then it can be considered to qualify as a plan to mitigate those impacts.
2. If the project is located outside the protected area, the mitigation plan shall include such avoidance, minimization, restoration, or compensation measures so that in-direct adverse effects of development in the floodplain (effects to stormwater, riparian vegetation, bank stability, channel migration, hyporheic zones, wetlands, large woody debris, and the like) are mitigated such that equivalent or better habitat protection is provided.
3. No new stream crossings are allowed outside the protected area, unless approval has been obtained as stated in this chapter.
4. If the project is located in the protected area, the mitigation plan shall stipulate avoidance measures as are needed to ensure that there is no adverse effect during any phase of the project.
B. The plan's habitat mitigation activities shall be incorporated into the proposed project. The floodplain development permit shall be based on the redesigned project and its mitigation components.
C. As required in this chapter, the floodplain administrator shall not issue a certificate of occupancy until all work identified in the habitat assessment and mitigation plan has been completed or the applicant has provided the necessary assurance that unfinished portions of the project will be completed in accordance with § 156.071(b).
(Ord. 77-21, passed 7-6-2021)