Chapter 20.170 FLOOD DAMAGE PREVENTION

The Legislature of the state of Washington has in RCW Title 35 delegated the responsibility to local governmental units to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the city council of the city does ordain as follows in this chapter. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.020 Findings of fact.

(1) The flood hazard areas of the city are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.

(2) These flood losses are caused by the cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities, and when inadequately anchored, damage uses in other areas. Uses that are inadequately floodproofed, elevated, or otherwise protected from flood damage also contribute to the flood loss. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.030 Statement of purpose.

It is the purpose of this chapter to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed:

(1) To protect human life and health;

(2) To minimize expenditure of public money and costly flood control projects;

(3) To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

(4) To minimize prolonged business interruptions;

(5) To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in areas of special flood hazard;

(6) To help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future flood blight areas;

(7) To ensure that potential buyers are notified that property is in an area of special flood hazard; and

(8) To ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.040 Methods of reducing flood losses.

In order to accomplish its purposes, this chapter includes methods and provisions for:

(1) Restricting or prohibiting uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;

(2) Requiring that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

(3) Controlling the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel floodwaters;

(4) Controlling filling, grading, dredging and other development which may increase flood damage; and

(5) Preventing or regulating the construction of flood barriers which will unnaturally divert floodwaters or may increase flood hazards in other areas. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.045 FIRM zones AE and A1-30 with base flood elevations but no floodways.

In areas with base flood elevations (but a regulatory floodway has not been designated), no new construction, substantial improvements, or other development (including fill) shall be permitted within zones A1-30 and AE on the community’s FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.050 Lands to which this chapter applies.

This chapter shall apply to all areas of special flood hazards within the jurisdiction of the city. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.060 Basis for establishing the areas of special flood hazard.

The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for the Kitsap County, Washington and Incorporated Areas,” dated February 3, 2017, and any revisions thereto, with accompanying flood insurance maps, are adopted by reference and declared to be a part of this chapter.

The best available information for flood hazard area identification as outlined in POMC 20.170.170 shall be the basis for new regulation until a new FIRM is issued that incorporates data utilized under POMC 20.170.170. The flood insurance study is on file at the city clerk’s office: 216 Prospect Street, Port Orchard, WA 98366. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.065 Compliance.

All development within special flood hazard areas is subject to the terms of this chapter and other applicable regulations. (Ord. 055-21 § 2).

20.170.070 Penalties for noncompliance.

No structure or land shall hereafter be constructed, located, extended, converted or altered without full compliance with the terms of this chapter and other applicable regulations. Violation of the provisions of this chapter by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Any person who violates this chapter or fails to comply with any of its requirements shall upon conviction thereof be fined not more than $500.00 or imprisoned for not more than 180 days, or both, for each violation, and in addition shall pay all costs and expenses involved in the case. Nothing herein contained shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.080 Abrogation and greater restrictions.

This chapter is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this chapter and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.090 Interpretation.

In the interpretation and application of this chapter, all provisions shall be:

(1) Considered as minimum requirements;

(2) Liberally construed in favor of the governing body; and

(3) Deemed neither to limit nor repeal any other powers granted under state statutes. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.100 Warning and disclaimer of liability.

The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of the city, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on this chapter, or any administrative decision lawfully made hereunder. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.105 Severability.

This chapter and the various parts thereof are hereby declared to be severable. Should any section of this chapter be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. (Ord. 055-21 § 2).

Article II. Definitions

20.170.110 Definitions.

Unless specifically defined in this section, words or phrases used in this chapter shall be interpreted so as to give them the meanings they have in common usage and to give this chapter its most reasonable application.

(1) “Alteration of watercourse” means any action that will change the location of the channel occupied by water within the banks of any portion of a riverine water body.

(2) “Appeal” means a request for a review of the director’s interpretation of any provision of this chapter or a request for a variance.

(3) “Area of shallow flooding” means a designated zone AO, AH, AR/AO or AR/AH (or VO) on a community’s flood insurance rate map (FIRM) with a one percent or greater annual chance of flooding to an average depth of one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable, and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow. Also referred to as the sheet flow area.

(4) “Area of special flood hazard” means the land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year. It is shown on the flood insurance rate map (FIRM) as zone A, AO, AH, A1-30, AE, A99, AR (V, VO, V1-30, VE). “Special flood hazard area” is synonymous in meaning with the phrase “area of special flood hazard.”

(5) “ASCE 24” means the most recently published version of ASCE 24, Flood Resistant Design and Construction, published by the American Society of Civil Engineers.

(6) “Base flood” means the flood having a one percent chance of being equated or exceeded in any given year. Also referred to as the “100-year flood.” Designation on maps always includes the letter A or V.

(7) “Base flood elevation (BFE)” means the elevation to which floodwater is anticipated to rise during the base flood.

(8) “Basement” means any area of the building having its floor sub-grade (below ground level) on all sides.

(9) “Breakaway wall” means a wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation structure.

(10) “Coastal flood risk area” means the area of flood hazard subject to inundation from the coastal waters of Sinclair Inlet. Coastal BFEs are calculated along transects extending from offshore to the limit of coastal flooding onshore.

(11) “Critical facility” means a facility for which even a slight chance of flooding might be too great. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire and emergency response installations, and installations which produce, use or store hazardous materials or hazardous waste.

(12) “Development” means any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation, drilling operations or storage of equipment or materials located within the area of special flood hazard.

(13) “Director” means, for the purposes of this chapter, the city’s community development director as provided in POMC 2.08.060.

(14) “Elevated building” means, for insurance purposes, a nonbasement building that has its lowest elevated floor raised above ground level by foundation walls, shear walls, posts, piers, pilings, or columns.

(15) “Elevation certificate” means the official form (FEMA Form 81-31) used to track development, provide elevation information necessary to ensure compliance with community floodplain management ordinances, and determine the proper insurance premium rate with Section B completed by community officials.

(16) “Existing manufactured home park or subdivision” means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the adopted floodplain management regulations.

(17) “Expansion to an existing manufactured home park or subdivision” means the preparation of additional sites by the construction of facilities for servicing lots on which manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either the final site grading or the pouring of concrete pads).

(18) “Flood or flooding” means:

(a) A general and temporary condition of partial or complete inundation of normally dry land areas from:

(i) The overflow of inland or tidal waters.

(ii) The unusual and rapid accumulation or runoff of surface waters from any source.

(iii) Mudslides (i.e., mudflows) which are proximately caused by flooding as defined in subsection (18)(a)(ii) of this section and are akin to a river of liquid and flowing mud on the surfaces of normally dry land areas, as when earth is carried by a current of water and deposited along the path of the current.

(b) The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in subsection (18)(a)(i) of this section.

(19) “Flood elevation study” means an examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of mudslide (i.e., mudflow) and/or flood-related erosion hazards. Also known as a flood insurance study (FIS).

(20) “Flood insurance rate map (FIRM)” means the official map on which the Federal Insurance Administrator has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. A FIRM that has been made available digitally is called a digital flood insurance rate map (DFIRM).

(21) “Floodplain administrator” means the community official designated by title to administer and enforce the floodplain management regulations.

(22) “Floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. Also referred to as “regulatory floodway.”

(23) “Functionally dependent use” means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, and does not include long-term storage or related manufacturing facilities.

(24) “Floodproofing” means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate risk of flood damage to real estate or improved real property, water and sanitary facilities, structures, and their contents. Floodproofed structures are those that have the structural integrity and design to be impervious to floodwater below the base flood elevation.

(25) “Habitat assessment” means a written document that describes a project, identifies and analyzes the project’s impacts to habitat for species discussed in the “Endangered Species Act – Section 7 Consultation Final Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the Implementation of the National Flood Insurance Program in the State of Washington, Phase One Document – Puget Sound Region,” and provides an effects determination.

(26) “Highest adjacent grade” means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

(27) “Historic structure” means any structure that is:

(a) Listed individually in the National Register of Historic Places (a listing maintained by the Department of the Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

(b) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;

(c) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or

(d) Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:

(i) By an approved state program as determined by the Secretary of the Interior; or

(ii) Directly by the Secretary of the Interior in states without approved programs.

(28) “Increased cost of compliance” means a flood insurance claim payment up to $30,000 directly to a property owner for the cost to comply with floodplain management regulations after a direct physical loss caused by a flood. Eligibility for an ICC claim can be through a single instance of “substantial damage” or as a result of “cumulative substantial damage.”

(29) “Lowest floor” means the lowest floor of the lowest enclosed areas (including basement). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage, in an area other than a basement area, is not considered a building’s lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of this chapter found in POMC 20.170.330(2).

(30) “Manufactured home” means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For floodplain management purposes, the term “manufactured home” also includes park trailers, travel trailers and other similar vehicles placed on site for greater than 180 consecutive days. For insurance purposes, the term “manufactured home” does not include park trailers, travel trailers and other similar vehicles.

(31) “Manufactured home park or subdivision” means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.

(32) “Mean sea level” means, for purposes of the National Flood Insurance Program, the vertical datum to which base flood elevations shown on a community’s flood insurance rate map are referenced.

(33) “New construction” means structures for which the start of construction commenced on or after the effective date of an initial flood insurance rate map or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. For floodplain management purposes, “new construction” means structures for which the “start of construction” commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures.

(34) “Recreational vehicle” means a vehicle:

(a) Built on a single chassis;

(b) Four hundred square feet or less when measured at the largest horizontal projection;

(d) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

(35) “Riverine flood risk area” means the area of flood hazard subject to inundation from riverine sources. Riverine BFEs are determined using cross sections. Between cross sections, BFEs are interpolated using flood profiles as described in the flood insurance study.

(36) “Start of construction” includes substantial improvements, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days of the permit date. The “actual start” means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers or foundation or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the “actual start of construction” means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

(37) “Structure” means a walled and roofed building, including a gas or liquid storage tank that is principally above ground, as well as a manufactured home.

(38) “Substantial damage” means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.

(39) “Substantial improvement” means any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the “start of construction” of the improvement. This term includes structures which have incurred “substantial damage,” regardless of the actual repair work performed. The term does not, however, include either:

(a) Any project for improvement of a structure to correct previously identified existing violations of state or local health, sanitary, or safety code specifications that have been identified by the local code enforcement official and that are the minimum necessary to assure safe living conditions; or

(b) Any alteration of a “historic structure”; provided, that the alteration will not preclude the structure’s continued designation as a “historic structure.”

(40) “Variance” means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.

(41) “Water-dependent” means a structure for commerce or industry which cannot exist in any other location and is dependent on the water by reason of the intrinsic nature of its operations. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

Article III. Administration

20.170.120 Development permit required.

A development permit shall be obtained before construction or development begins within any area of special flood hazard established in POMC 20.170.060. The permit shall be for all structures including manufactured homes, as set forth in POMC 20.170.110, Definitions, and for all development including fill and other activities, also as set forth in POMC 20.170.110. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.130 Application for development permit.

Application for a development permit shall be made on forms furnished by the director and may include but not be limited to plans in duplicate drawn to scale showing the nature, location, dimensions, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities and the location of the foregoing. Specifically, the following information is required:

(1) Elevation in relation to mean sea level of the lowest floor (including basement) of all structures recorded on a current elevation certificate with Section B completed by the floodplain administrator;

(2) Elevation in relation to mean sea level to which any structure has been floodproofed;

(3) Certification by a registered professional engineer or architect that the floodproofing methods for any nonresidential structure meet the floodproofing criteria in POMC 20.170.340;

(4) Description of the extent to which a watercourse will be altered or relocated as a result of proposed development;

(5) Where development is proposed in a floodway, an engineering analysis indicating no rise of the base flood elevation; and

(6) Any other such information that may be reasonably required by the floodplain administrator in order to review the application. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.140 Designation of the floodplain administrator.

The director is appointed to administer and implement this chapter by granting or denying development permit applications in accordance with its provisions. The director may delegate authority to implement these provisions. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.150 Duties and responsibilities of the director.

Duties of the director or designee shall include but not be limited to those in POMC 20.170.160 through 20.170.230. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.160 Permit review.

The director shall:

(1) Review all development permits to determine that the permit requirements of this chapter have been satisfied.

(2) Review all development permits to determine that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required.

(3) Review all development permits to determine that the site is reasonably safe from flooding.

(4) Review all development permits to determine if the proposed development is located in the floodway. If located in the floodway, assure that the provisions of POMC 20.170.400 are met.

(5) Notify FEMA when annexations occur in the special flood hazard area. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.170 Use of other base flood data.

When base flood elevation data has not been provided in accordance with POMC 20.170.060, Basis for establishing the areas of special flood hazard, the director shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, in order to administer POMC 20.170.290 through 20.170.360, Specific standards, and 20.170.400, Floodways. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.180 Information to be obtained and maintained.

The director shall:

(1) Where base flood elevation data is provided through the flood insurance study or required as in POMC 20.170.170, obtain, and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement.

(2) For all new or substantially improved floodproofed nonresidential structures where base flood elevation data is provided through the FIS, FIRM, or as required in POMC 20.170.170:

(a) Obtain and maintain a record of the actual elevation (in relation to mean sea level); and

(b) Maintain the floodproofing certifications required in POMC 20.170.130(3).

(3) Certification required by POMC 20.170.400 (floodway encroachments).

(4) Records of all variance actions, including justification for their issuance.

(5) Improvement and damage calculations.

(6) Maintain for public inspection all records pertaining to the provisions of this chapter. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.190 Alteration of watercourses.

The director shall:

(1) Notify adjacent communities and the Department of Ecology prior to any alteration or relocation of a watercourse and submit evidence of such notification to the Federal Insurance Administration.

(2) Require that maintenance is provided within that altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.200 Interpretation of FIRM boundaries.

The director shall make interpretations where needed as to exact location of the boundaries of the areas of special flood hazard (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Article IV of this chapter. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1)).

20.170.210 Review of building permits.

Where elevation data is not available either through the flood insurance study or from another authoritative source (POMC 20.170.170), applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The test of reasonableness is a local judgment and includes use of historical data, high water marks, photographs of past flooding, etc., where available. Failure to elevate at least two feet above grade in these zones may result in high insurance rates. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.280).

20.170.220 Changes to special flood hazard area.

If a project will alter the BFE or boundaries of the SFHA, then the project proponent shall provide the community with engineering documentation and analysis regarding the proposed change. If the change to the BFE or boundaries of the SFHA would normally require a letter of map change, then the project approval shall be conditioned accordingly. (Ord. 055-21 § 2).

20.170.230 Habitat assessment – When required.

A development permit application shall include a habitat assessment unless the project is, in its entirety, one of the following activities:

(1) Normal maintenance, repairs, or remodeling of structures, such as re-roofing and replacing siding, provided such work is not a substantial improvement or a repair of substantial damage. To comply, such work must be less than 50 percent of the value of the structure(s).

(2) Expansion or reconstruction of an existing structure that is no greater than 10 percent beyond its existing footprint. If the structure is in the floodway, there shall be no change in the structure’s dimensions perpendicular to flow. All other federal and state requirements and restrictions relating to floodway development still apply.

(3) Activities with the sole purpose of creating, restoring, or enhancing natural functions associated with floodplains, streams, lakes, estuaries, marine areas, habitat, and riparian areas that meet federal and state standards, provided the activities do not include structures, grading, fill, or impervious surfaces.

(4) Development of open space and recreational facilities, such as parks, trails, and hunting grounds, that do not include structures, fill, impervious surfaces, or removal of more than five percent of the native vegetation on that portion of the property in the floodplain.

(5) Repair to on-site septic systems, provided ground disturbance is the minimal necessary and best management practices (BMPs) to prevent stormwater runoff and soil erosion are used.

(6) Projects that have already received concurrence under another permit or other consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service, either through Section 7, Section 4d, or Section 10 of the Endangered Species Act (ESA) that addresses the entirety of the project in the floodplain (such as an Army Corps of Engineers 404 permit or non-conversion forest practice activities including any interrelated and interdependent activities).

(7) Repair of an existing, functional bulkhead in the same location and footprint with the same materials when the ordinary high water mark (OHWM) is still outside of the face of the bulkhead (i.e., if the work qualifies for a Corps exemption from Section 404 coverage). (Ord. 055-21 § 2).

Article IV. Flood Damage Prevention Variances and Appeals

20.170.235 Variances and appeals – Type III procedures.

Permits issued by the director under this chapter are appealable under POMC 20.170.240. Applications for variances from the provisions in this chapter shall utilize the process and the criteria in POMC 20.170.250 in lieu of the requirements of Chapter 20.28 POMC. Both appeals and variances hereunder shall be processed per the Type III procedures contained in POMC 20.22.050. The director shall maintain the records of all appeal actions and report any variances to the Federal Insurance Administration upon request. (Ord. 055-21 § 2).

20.170.240 Appeal of permits under this chapter.

(1) The hearing examiner shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the director in the enforcement or administration of this chapter.

(2) In reviewing and considering such appeal, the hearing examiner shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, and:

(a) The danger that materials may be swept onto other lands to the injury of others;

(b) The danger to life and property due to flooding or erosion damage;

(c) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(d) The importance of the services provided by the proposed facility to the community;

(e) The necessity to the facility of a waterfront location, where applicable;

(f) The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

(g) The compatibility of the proposed use with existing and anticipated development;

(h) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

(i) The safety of access to the property in times of flood for ordinary and emergency vehicles;

(j) The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

(k) The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.

(3) Upon consideration of the factors of subsection (2) of this section and the purposes of this chapter, the hearing examiner may attach such conditions to the granting of the permit as it deems necessary to further the purposes of this chapter.

(4) A party of record that is aggrieved by the decision of the hearing examiner may appeal such decision to the superior court, as provided in Chapter 36.70C RCW. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.210).

20.170.250 Flood damage prevention variances – Conditions for approval.

(1) Applications to modify the requirements of this chapter shall require a variance permit.

(2) General. Variances shall only be issued upon a demonstration that the application meets all of the following criteria:

(a) The variance will not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and land use district of the subject property;

(b) The variance is necessary because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property to provide it with use rights and privileges permitted to other properties in the vicinity and in the land use district of the subject property; and

(d) Failure to grant the variance would result in exceptional hardship to the applicant;

(e) The granting of the variance will not be materially detrimental to property or improvements in the immediate vicinity of the subject property;

(f) Granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances. In making this determination, the hearing examiner shall consider the items contained in POMC 20.170.240(2)(a) through (2)(k);

(g) The variance granted is the minimum necessary, considering the flood hazard, to afford relief; and

(h) The variance is not inconsistent with the comprehensive plan.

(3) Variance from Elevation Standard Limited. The only condition under which a variance from the elevation standard may be issued is for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing the items in POMC 20.170.240(2)(a) through (2)(k) have been fully considered. As the lot size increases, the technical justification required for issuing the variance increases.

(4) Historic Places. Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or the state inventory of historic places, without regard to the procedures set forth in this section.

(5) Variances Within Designated Floodway. Variances shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result.

(6) Interpretation. Variances as interpreted in the National Flood Insurance Program are based on the general zoning law principle that they pertain to a physical piece of property; they are not personal in nature and do not pertain to the structure, its inhabitants, economic or financial circumstances. They primarily address small lots in densely populated residential neighborhoods. As such, variances from the flood elevations should be quite rare.

(7) Nonresidential Variances Limited. Variances may be issued for nonresidential buildings in very limited circumstances to allow a lesser degree of floodproofing than watertight or dry floodproofing, where it can be determined that such action will have low damage potential, complies with all other variance criteria except subsection (3) of this section, and otherwise complies with POMC 20.170.240 and this section.

(8) Any variance granted shall contain a written notice alerting the applicant that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.

(9) A party of record that is aggrieved by the decision of the hearing examiner on a variance application may appeal such decision to the superior court, as provided in Chapter 36.70C RCW. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.220).

Article V. Provisions for Flood Hazard Reduction

20.170.260 General standards.

In all areas of special flood hazards, the standards in POMC 20.170.270 through 20.170.310 are required. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.230).

20.170.270 Anchoring.

(1) All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure.

(2) All manufactured homes must likewise be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors (reference FEMA’s “Manufactured Home Installation in Flood Hazard Areas” guidebook for additional techniques). (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.2400).

20.170.280 Construction materials and methods.

(1) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

(2) All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

(3) Electrical, heating, ventilation, plumbing and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.250).

20.170.290 Storage of materials and equipment.

(1) The storage or processing of materials that could be injurious to human, animal, or plant life if released due to damage from flooding is prohibited in special flood hazard areas.

(2) Storage of other material or equipment may be allowed if not subject to damage by floods and if firmly anchored to prevent flotation, or if readily removable from the area within the time available after flood warning. (Ord. 055-21 § 2).

20.170.300 Utilities.

(1) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system;

(2) New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharge from the systems into floodwaters;

(3) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding; and

(4) Water wells shall be located on high ground that is not in a floodway. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.260).

20.170.310 Development and subdivision proposals.

All development, including subdivision proposals, shall:

(1) Be consistent with the need to minimize flood damage;

(2) Have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage;

(3) Have adequate drainage provided to reduce exposure to flood damage; and

(4) Where base flood elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or five acres (whichever is less). (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.270).

20.170.320 Specific standards.

In all areas of special flood hazards where base flood elevation data has been provided as set forth in POMC 20.170.060, Basis for establishing the areas of special flood hazard, or 20.170.170, Use of other base flood data, the provisions in POMC 20.170.330 through 20.170.360 are required. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.290).

20.170.330 Residential construction.

(1) In riverine flood risk areas zoned AE or other A zoned areas where the BFE has been determined or can be reasonably obtained, new construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated one foot or more above the BFE. Mechanical equipment and utilities shall be waterproofed or elevated at least one foot above the BFE.

(2) In coastal flood risk areas zoned AE where the BFE has been determined or can be reasonably obtained, new construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated two feet or more above the BFE. Mechanical equipment and utilities shall be waterproofed or elevated at least two feet above the BFE.

(3) New construction and substantial improvement of any residential structure in an unnumbered A zone for which a BFE is not available and cannot be reasonably obtained shall be reasonably safe from flooding, but in all cases the lowest floor shall be at least two feet above the highest adjacent grade.

(4) Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs must meet or exceed the following minimum criteria:

(a) Have a minimum of two openings with a total net area of not less than one square inch for every square foot of enclosed area subject to flooding.

(b) The bottom of all openings shall be no higher than one foot above grade.

(c) Openings may be equipped with screens, louvers, valves, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwater.

(d) A garage attached to a residential structure, constructed with the garage floor slab below the BFE, must be designed to allow for the automatic entry and exit of floodwaters.

Alternatively, a registered engineer or architect may design and certify engineered openings. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.300).

20.170.340 Nonresidential construction.

New construction and substantial improvement of any commercial, industrial, or other nonresidential structure shall meet the following requirements:

(1) Meet the standards in POMC 20.170.330; or

(2) In riverine flood risk areas, if the requirements of POMC 20.170.330 are not met, then new construction and substantial improvement of any commercial, industrial, or other nonresidential structure shall meet all of the following requirements:

(a) Be dry floodproofed so that below one foot or more above the base flood level the structure is watertight with walls substantially impermeable to the passage of water or dry floodproofed to the elevation required by ASCE 24, whichever is greater;

(b) Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy;

(c) Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based on their development and/or review of the structural design, specifications, and plans. Such certifications shall be provided to the official as set forth in POMC 20.170.180(3);

(d) Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in POMC 20.170.330;

(3) In coastal flood risk areas, if the requirements of POMC 20.170.330 are not met, then new construction and substantial improvement of any commercial, industrial or other nonresidential structure shall meet all of the following requirements:

(a) Be dry floodproofed so that below two feet or more above the base flood level the structure is watertight with walls substantially impermeable to the passage of water or dry floodproofed to the elevation required by ASCE 24, whichever is greater;

(b) Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy;

(c) Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the official as set forth in POMC 20.170.180(3);

(d) Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in POMC 20.170.330;

(Applicants who are floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g., a building floodproofed to the base flood level will be rated as one foot below). Floodproofing the building an additional foot will reduce insurance premiums.) (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.310).

20.170.350 Critical facility.

Construction of new critical facilities shall be, to the extent possible, located outside the limits of the base floodplain. Construction of new critical facilities shall be permissible within the base floodplain if no feasible alternative site is available. Critical facilities constructed within the base floodplain shall have the lowest floor elevated to three feet or more above the level of the base flood elevation at the site or to the height of the 500-year flood, whichever is higher. Access to and from the critical facility should also be protected to the height utilized above. Floodproofing and sealing measures must be taken to insure that toxic substances will not be displaced by or released into floodwaters. Access routes elevated to or above the level of the base floodplain shall be provided to all critical facilities to the extent possible. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.320).

20.170.360 Manufactured homes.

All manufactured homes to be placed or substantially improved within zones A1-30, AH and AE subject to riverine flooding shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is one foot or more above the base flood elevation and be securely anchored to an adequately anchored foundation system in accordance with the provisions of POMC 20.170.270(2).

All manufactured homes to be placed or substantially improved within the coastal flood risk area shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is two feet or more above the base flood elevation and be securely anchored to an adequately anchored foundation system in accordance with the provisions of POMC 20.170.270(2). (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.330).

20.170.370 Recreational vehicles.

Recreational vehicles placed on sites are required to either:

(1) Be on the site for fewer than 100 consecutive days;

(2) Be fully licensed and ready for highway use, on wheels or jacking system, attached to the site only by quick-disconnect utilities and security devices, and have no permanently attached additions; or

(3) Meet the requirements of POMC 20.170.360 and the elevation and anchoring requirements for manufactured homes. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.335).

20.170.380 Enclosed area below the lowest floor.

If buildings or manufactured homes are constructed or substantially improved with fully enclosed areas below the lowest floor, the areas shall be used solely for parking of vehicles, building access, or storage. (Ord. 055-21 § 2).

20.170.390 Small accessory structures (detached garages and small storage structures).

(1) In A, AE, A1-30, AH, and AO flood zones, small accessory structures (less than or equal to the size of a one-story, two-car garage) used solely for parking of vehicles or limited storage may be constructed such that the floor is below the BFE, provided the structure is designed and constructed in accordance with the following requirements:

(a) Use of the small accessory structure must be limited to parking of vehicles or limited storage;

(b) The portions of the small accessory structure located below the BFE must be built using flood resistant materials;

(d) Any machinery or equipment servicing the small accessory structure must be elevated or floodproofed to or above the BFE;

(e) If located in a floodway, then the small accessory structure must comply with floodway encroachment provisions in POMC 20.170.400;

(f) The small accessory structure must be designed to allow for the automatic entry and exit of floodwaters in accordance with POMC 20.170.330(4).

(g) The structure shall have low damage potential; and

(h) If the structure is converted to another use, it must be brought into full compliance with the standards governing such use.

(i) The structure shall not be used for human habitation.

(2) Detached garages, storage structures, and other small accessory structures not meeting the above standards must be constructed in accordance with all applicable standards in POMC 20.170.330.

(3) Upon completion of the structure, certification that the requirements of this section have been satisfied shall be provided to the floodplain administrator for verification. (Ord. 055-21 § 2).

20.170.400 Floodways.

Located within areas of special flood hazard established in POMC 20.170.060 are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles and erosion potential, the provisions in this section apply.

(1) No Rise Standard. Prohibit encroachments, including fill, new construction, substantial improvements, and other development, unless certification by a registered professional engineer or architect is provided demonstrating through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

(2) Construction or reconstruction of residential structures is prohibited within designated floodways, except for:

(a) Repairs, reconstruction, or improvements to a structure which do not increase the ground floor areas; and

(b) Repairs, reconstruction, or improvements to a structure the cost of which does not exceed 50 percent of the market value of the structure either:

(i) Before the repair, reconstruction or improvement is started; or

(ii) If the structure has been damaged and is being restored, before the damage occurred.

Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions, or to structures identified as historic places, may be excluded in the 50 percent.

(3) Substantially Damaged Residences in Floodway.

(a) For all substantially damaged residential structures located in a designated floodway, the floodplain administrator may make a written request that the Department of Ecology assess the risk of harm to life and property posed by the specific conditions of the floodway. Based on analysis of depth, velocity, flood-related erosion, channel migration, debris load potential, and flood warning capability, the Department of Ecology may exercise best professional judgment in recommending to the local permitting authority repair, replacement, or relocation of a substantially damaged structure consistent with WAC 173-158-076. The property owner shall be responsible for submitting to the local government and the Department of Ecology any information necessary to complete the assessment. Without a favorable recommendation from the Department for the repair or replacement of a substantially damaged residential structure located in the regulatory floodway, no repair or replacement is allowed per WAC 173-158-070(1).

(b) Before the repair, replacement, or reconstruction is started, all requirements of the NFIP, the state requirements adopted pursuant to Chapter 86.16 RCW, and all applicable local regulations must be satisfied. In addition, the following conditions must be met:

(i) There is no potential safe building location for the replacement residential structure on the same property outside the regulatory floodway.

(ii) A replacement residential structure is a residential structure built as a substitute for a legally existing residential structure of equivalent use and size.

(iii) Repairs, reconstruction, or replacement of a residential structure shall not increase the total square footage of floodway encroachment.

(iv) The elevation of the lowest floor of the substantially damaged or replacement residential structure is a minimum of one foot higher than the BFE.

(v) New and replacement water supply systems are designed to eliminate or minimize infiltration of floodwater into the system.

(vi) New and replacement sanitary sewerage systems are designed and located to eliminate or minimize infiltration of floodwater into the system and discharge from the system into the floodwaters.

(vii) All other utilities and connections to public utilities are designed, constructed, and located to eliminate or minimize flood damage.

(4) If subsection (1) of this section is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of this article. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.340).

20.170.410 General requirements for other development.

All development, including manmade changes to improved or unimproved real estate for which specific provisions are not specified in this chapter or the state building codes with adopted amendments and any city of Port Orchard amendments, shall:

(1) Be located and constructed to minimize flood damage;

(2) Meet the encroachment limitations of this chapter if located in a regulatory floodway;

(3) Be anchored to prevent flotation, collapse, or lateral movement resulting from hydrostatic loads, including the effects of buoyancy, during conditions of the design flood;

(4) Be constructed of flood damage-resistant materials;

(5) Meet the flood opening requirements of POMC 20.170.330(4); and

(6) Have mechanical, plumbing, and electrical systems above the design flood elevation or meet the requirements of ASCE 24, except that minimum electric service required to address life safety and electric code requirements is permitted below the design flood elevation provided it conforms to the provisions of the electrical part of building code for wet locations. (Ord. 055-21 § 2).

20.170.420 Wetlands management.

To the maximum extent possible avoid the short and long term adverse impacts associated with the destruction or modification of wetlands, especially those activities which limit or disrupt the ability of the wetlands to alleviate flooding impacts. The following process should be implemented:

(1) Review proposals for development within base floodplains for their possible impacts on wetlands located within the floodplain.

(2) Ensure that development activities in or around wetlands do not negatively affect public safety, health, and welfare by disrupting the wetlands’ ability to reduce flood and storm drainage.

(3) Request technical assistance from the Department of Ecology in identifying wetland areas. Existing wetland map information from the National Wetlands Inventory (NWI) can be used in conjunction with the community’s FIRM to prepare an overlay zone indicating critical wetland areas deserving special attention. (Ord. 055-21 § 2; Ord. 019-17 § 18 (Exh. 1). Formerly 20.170.350).