On August 13, 2018, the Idaho Department of Water Resources (IDWR) issued Administrator’s Memorandum—Floodplain Management Memorandum No. 1 in response to FEMA threats of disqualifying Idaho’s ongoing participation in the National Flood Insurance Program (NFIP). The Administrator’s Memorandum addresses Federal Emergency Management Agency (FEMA)-perceived conflicts between Idaho Code §§ 46-1022 and 46-1021(1) exempting the ordinary “operation, cleaning, maintenance, or repair of irrigation ditches, drains, and related infrastructure from FEMA permitting requirements.” The irrigation community is taking a dim view of what it considers to be inconsistent positions and arbitrary enforcement of federal FEMA regulations. FEMA and IDWR seek to implement the new guidance during October 2018.
What is ‘Development’ Anyway?
FEMA requires all communities participating in the NFIP to regulate “development” that occurs in those areas qualifying as a Special Flood Hazard Area pursuant to 44 CFR § 59.1. Special Flood Hazard Areas are essentially the floodplains and floodways of local rivers, creeks and streams. In Idaho, various irrigation drains qualify as Special Flood Hazard Areas given their nexus with preexisting creeks and sloughs (i.e., the irrigation drains used and enlarged these preexisting channels where possible), and segments of irrigation delivery ditches are potentially regulated as well given that their points of diversion are almost all located in river and creek bottomlands/floodplains.
FEMA defines “development” as:
- . . .any manmade change to improved and unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavating or drilling operations or storage of equipment and materials.
Not surprisingly, this broad and less than precise definition encompasses many activities comprising the ordinary operation and maintenance activities of ditch owners, particularly those of large irrigation entities (such as canal and ditch companies, drainage districts, and irrigation districts). Irrigation and drainage entities routinely dredge and excavate drains and delivery ditches alike, construct and reconstruct diversion, check, and flume structures, and otherwise perform “development” activities within their facilities. They do so under specific statutory obligations and duties, including Idaho Code § 42-1204, which requires ditch owners and operators to keep an maintain their facilities in good repair so as not to damage the property of others. It now appears that irrigation entities will be subject to FEMA permitting requirements concerning many of their day-to-day activities, and this prospect is not sitting well with the irrigation community.
The 2010 Amendments
Historically, NFIP communities did not attempt to regulate irrigation-related activities. Legally speaking, and as mentioned above, irrigation ditch owners and operators already owe the public a variety of statutory duties related to the operation and maintenance of ditches. See, e.g., Idaho Code §§ 42-1201 – 42-1204. Because of these statutory duties, irrigation ditch owners and operators also enjoy various statutory means by which to protect the integrity of their ditches from unauthorized modifications or encroachments by others. See, e.g., Idaho Code §§ 42-1207 – 42-1209. Practically speaking, properly maintained irrigation facilities , particularly drainage ditches, alleviate flooding and flood potential rather than exacerbate it.
Recognizing this history and these duties, Idaho Code §§ 46-1022 and 46-1021(1) were amended in 2010, specifically exempting typical irrigation ditch operation and maintenance activities from regulation under local floodplain zoning ordinances. Local communities did not want to regulate (and otherwise have to investigate and issue permits) any more than irrigation ditch owners and operators wanted to be regulated. The additional bureaucratic overlay would be superfluous in light of existing statutory duties, and create needless busywork and oversight for all involved (i.e., the need to create work plans, seek permits, review activities, and issue permits). FEMA not only participated in drafting the Idaho statutory amendments, but it expressly approved of them and the regulatory exemptions they provided.
Moreover, the primary purposes of the NFIP (other than providing a mechanism for widespread and large-scale flood hazard insurance) are to: 1) regulate land use to restrict the haphazard development of land exposed to known flood hazards (thereby minimizing future property damage potential in hazard areas); and 2) guide development of future construction away from flood hazard areas altogether through disincentives. While the policy goals are sound, application of NFIP regulations to century-plus old irrigation facilities and their ongoing operations and maintenance seems misplaced. Again, ditches help to convey and more efficiently move water as opposed to pool it, and operation and maintenance of facilities long-predating the NFIP itself cannot reasonably be characterized as “development” or new/future construction.
Nevertheless, the state of Idaho is embarking upon a new regulatory scheme whereby irrigation activities within flood hazard areas will need to be permitted for local communities to maintain NFIP compliance—despite the 2010 amendments to Idaho Code §§ 46-1022 and 46-1021(1).
Conclusion and Implications
Idaho is attempting to minimize bureaucratic red tape by creating a “General Irrigation Floodplain Development” (GIFD) permit designed to cover most routine activities much like general permits issued under the federal Clean Water Act (such as the Pesticides General Permit under the National Pollutant Discharge Elimination System (NPDES) program where the electronic filing of a relatively simple Notice of Intent provides necessary permit coverage). Local community personnel will still have to determine whether proposed activities qualify for GIFD permit coverage, or whether a more specialized individual permit will be needed.
While attempts at streamlining permitting requirements will be welcome, the added NFIP regulation is not. Selective and inconsistent enforcement is also a concern. While FEMA Region 10 is leading this charge (despite its past participation in, and ratification of, the 2010 statutory exemption amendments), other regions are not following suit because this is not a nationwide, top-down program implementation directive. Idaho’s Teton River Basin provides a prime example of the seeming arbitrary regulation being pursued by FEMA Region 10 in Idaho. While irrigation entities diverting water from the Teton River and conducting operations on the Idaho side of the basin will be subject to widespread oversight and permitting requirements discussed herein, irrigation entities performing the very same activities in the very same river basin in Wyoming will not. The simple reason for this is that the Wyoming water users have the good fortune of residing in FEMA Region 8, which continues to take the more hands off and practical approach Idaho historically enjoyed.
(Andrew J. Waldera)
