Tribal Code

Flood damage prevention

WARM SPRINGS TRIBAL CODE CHAPTER 441
ORDINANCE 77

FLOOD DAMAGE PREVENTION ORDINANCE FOR THE WARM SPRINGS INDIAN RESERVATION

Table of Contents

441.100 Establishment of Plan
441.110 Statement of Purpose
441.200 Definitions
441.300 General Provisions
441.310 Lands to Which This Ordinance Applies
441.320 Basis for Establishing the Areas of Flood Hazard
441.330 Enforcement Provisions
441.400 Administration
441.410 Establishment of Building Permit
441.420 Designation of Responsible Official
441.430 Duties of the Responsible Official
441.500 Provisions for Flood Hazard Reduction
441.510 General Standards
441.520 Specific Standards
441.530 Floodways
441.540 Encroachments
441.600 Appeals

WARM SPRINGS TRIBAL CODE CHAPTER 441
ORDINANCE 771
FLOOD DAMAGE PREVENTION ORDINANCE FOR THE WARM SPRINGS INDIAN RESERVATION

441.100 Statutory Authorization. The Tribal Council of the Confederated Tribes of the Warm Springs Reservation of Oregon, through Article I (b) and Article V (1) of the Constitution and By–Laws, has the objective and authority to establish and enforce rules when needed to protect tribal resources, health and security. In addition, related codes and ordinances, such as Ordinance 74 (IRMP), Ordinance 45 (Water Code) and Ordinance 56 (Land Code), remain in effect.

441.110 Statement of Purpose. It is the purpose of this ordinance to protect public health, safety and welfare by reducing flood losses through provisions designed to:

Protect human life and health;
Minimize expenditure of public and tribal money and costly flood control projects;
Reduce the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the public and Tribes;
Shorten prolonged business interruptions;
Minimize damage to public and tribal facilities and utilities such as water mains, electricity, telephone and sewer lines, streets and bridges located in areas of special flood hazard;
Help maintain a stable economy by providing for the prudent use and development of areas of flood hazard so as to minimize future flood blight areas;
Ensure that potential and existing users of land are notified that property is in an area of flood hazard; and,
Ensure that those who occupy the areas of flood hazard assume responsibility for their actions.
Encourage non–structural uses within flood hazard areas, such as open space.

441.200 Definitions.

Unless specifically defined below, words or phrases used in this ordinance shall be interpreted to give them the meaning they have in common usage and to give this ordinance its most reasonable application.

“Area of Flood Hazard” means the land in the flood plain subject to a one–fifth percent or greater chance of flooding in any given year, also referred to as the “500–year flood.” National Flood Insurance Rate maps shall designate such areas.
“Base Flood” means a flood has a one percent chance of being equaled or exceeded in any given year. The Base Flood is also referred to as the “100–year flood.”
“Cat X” means the Categorical Exception Process, whereby small projects are evaluated by the RMIDT to determine environmental assessment needs.
“Development” means any man–made change to land, including but not limited to buildings or other structures, mining, dredging, fillings, grading, paving, excavation or drilling operations located within the area of flood hazard.
“Building Permit” means the authorization for building within a Flood Hazard Area.
“DNR” means the Department of Natural Resources, a branch of tribal government.
“Elevated Building” means, for insurance purposes, a non–basement building which has its lowest elevated floor raised above ground level by foundation walls, shear walls, posts, piers, pilings or columns.
“Flood” or “Flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from: (a) The overflow of rivers, streams and creeks and/or (b) The unusual and rapid accumulation of runoff of surface waters from any source.
“Flood Insurance Rate Map (FIRM)” means the official report to be provided by the Federal Insurance Administration which will delineate flood hazard areas and the risk premium zones applicable to the reservation.
“Flood Insurance Study” means the official report to be provided by the Federal Insurance Administration that includes flood profiles, the Flood Boundary– Floodway Map, and the water surface elevation of the base flood.
“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 one foot.
“GIS” means the Geographic Information System, which stores and analyzes geographical information using computer hardware and software.
“Hydraulic Project Permit” means the authorization for projects within stream channels and riparian areas.
“IRMP” means Integrated Resource Management Plan, a tribal law authorized by Ordinance 74.
“Lowest Floor” means the lowest floor of the lowest enclosed area of a structure (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 to render the structure in violation of the applicable nonelevation design requirements in Section 441.520 of this ordinance.
“New Construction” means structures for which the “start of construction” commenced on or after the effective date of this ordinance.
“REAM” means the Branch of Realty, a department within the Bureau of Indian Affairs.
“Recreational Vehicle” means a travel trailer, motor home, camper or similar vehicle designed and used for temporary residential use for no longer than eleven consecutive days between the months of May and October.
“RMIDT” means the Resource Management Interdisciplinary Team, which was established under Ordinance 74, the IRMP.
“Start of Construction” includes substantial improvement and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, 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, the installation of streets and/or walkways, excavation for a basement, footings, piers, or foundations, or the erection of temporary forms, nor the installation of accessory buildings.
“Structure” means a walled and roofed building including a gas or liquid storage tank that is principally above ground.
“Substantial Improvement” means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either: (a) before the improvement or repair is started, or (b) before the damage occurred. For the purposes of this definition “substantial improvement” is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.

441.300 General Provisions.2

441.310 Lands to Which This Ordinance Applies. This ordinance shall apply to all flood hazard areas within the Warm Springs Indian Reservation and other trust property under the jurisdiction of the Confederated Tribes of the Warm Springs Reservation of Oregon.

441.320 Basis for Establishing the Areas of Flood Hazard. Areas of flood hazard identified by the Federal Insurance Administration in an engineering report entitled “The Flood Insurance Study for the Confederated Tribes of Warm Springs,” dated April 15, 2002, with accompanying Flood Insurance Maps, and any revisions thereto, are hereby adopted by reference and declared to be a part of this ordinance. The Flood Insurance Study is on file at the Tribes’ Building Inspection and Geographic Information Systems Departments.

441.330 Enforcement Provisions.

Any person subject to the criminal jurisdiction of the Tribe who fails to obtain a permit required by this chapter, or who fails to comply with the terms of any permit issued pursuant to this chapter, or who fails to comply with the standards set forth in Section 441.500 of this chapter, may, upon conviction be punished by imprisonment for a term not to exceed one year or by imposition of a fine not to exceed $5,000.00 or both.
Any person subject to the civil jurisdiction of the Tribe who fails to obtain a permit required by this chapter, or who fails to comply with the terms of any permit issued pursuant to this chapter, or who fails to comply with the standards set forth in Section 441.500 of this chapter is subject to a civil penalty, not to exceed $500.00 for each violation. Equipment used in connection with the violation may be seized and held as security for such person’s appearance before the Tribal Court and may be subject to sale or other disposition by the Tribe in the event that such person fails to pay the amount of any civil penalty imposed by the Court in accordance with the procedures contained in WSTC Chapter 200. In the event of a continuing violation, each day that the violation continues shall constitute a separate violation.
Designated enforcement personnel include, but are not limited to, the Building Inspector, Land Services Administrator and Watermaster. These personnel have the authority and responsibility to enforce provisions of this ordinance.

441.400 Administration.

441.410 Establishment of Building Permit.

Building Permit & Requirements. A building permit shall be obtained before construction begins within any flood hazard area. The permit shall be for all structures.
Application for Building Permit. Application for a building permit shall be made on forms furnished by the Building Inspector and shall include 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: (a) Elevation in relation to mean sea level, of the lowest floor of all structures; (b) Elevation in relation to mean sea level to which any structure has been floodproofed; (c) Certification by a registered professional engineer or architect that the floodproofing methods for any nonresidential structure meet the floodproofing criteria in Section 441.500; and (d) Description of the extent to which a watercourse will be altered or relocated as a result of proposed development.

441.420 Designation of Responsible Official. The Building Inspector is appointed to administer and implement this ordinance by granting or denying building permit applications in accordance with the provisions of this ordinance, after conditions have been established by the Land Use Planning Committee, Water Control Board or the Resource Management Interdisciplinary Team (RMIDT).

441.430 Duties of the Responsible Official. Duties of the Building Inspector include, but are not limited to:

Permit Review. (a) Review all building permits to determine that the requirements of this ordinance have been satisfied. (b) Review all building permits to determine that all necessary permits have been obtained from those Federal, Tribal, or local government agencies from which prior approval is required. (c) Review all building permits to determine if the proposed development is located in the floodway. If located in the floodway, assure that the encroachment provisions of Section 441.540 are met.
Use of Other Base Flood Data. When base flood elevation data have not been provided in accordance with Section 441.320 Basis for Establishing the Areas of Flood Hazard, the Building Inspector shall obtain, review and use any base flood elevation and floodway data available from Federal, Tribal or other sources, in order to administer Sections 441.520, Specific Standards, and 441.530 Floodways. Examples of available data include the 1977 Corps of Engineers Special Flood Hazard Information and maps, IRMP flood map information within the GIS, stream flow information and historical photographs.
Information to be Obtained and Maintained. (a) Where base flood elevation data are provided through the Flood Insurance Study or required as in Section 441.430(2), obtain and record the actual elevation (in relation to mean sea level) of the lowest floor of all new or substantially improved structures. Basements are not allowed in flood hazard areas. (b) Maintain for tribal and federal inspection all records pertaining to the provisions of this ordinance.
Alteration of Watercourses. (a) Proposals to alter or relocate watercourses shall be analyzed, approved or denied through procedures within the Integrated Resource Management Plan. The Federal Insurance Administration and adjacent communities which could be potentially impacted shall be notified prior to approval of watercourse changes. (b) The RMIDT shall determine mitigation needs within altered portions of watercourses in order to maintain flood carrying capacities, including proposed dikes and levees.
Interpretation of FIRM Boundaries. Make interpretations, with the assistance of Natural Resources staff, to define the exact location of the boundaries of flood hazard areas (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 an opportunity to appeal the interpretation. Such appeals shall be granted consistent with the standards of Section 60.6 of the rules and regulations of the National Flood Insurance Program (44 CFR 59–76).

441.500 Provisions for Flood Hazard Reduction.

441.510 General Standards.

In all flood hazard areas, with the exception of floodways, new commercial and industrial development may be allowed. New residential development, although discouraged in flood hazard areas, may also be allowed.

New development in flood hazard areas shall be elevated to at least one foot above the estimated 500–Year flood level. Other conditions may be required by the Water Control Board, Land Use Planning Committee or the RMIDT.

Uses which are compatible with wetlands management are allowed without being elevated, such as cultural uses, parks, campgrounds and recreation facilities.

General Conditions. Development cannot be approved in flood hazard areas if it would increase the water surface of the base flood more than one foot at any point (Sections 441.530 and 441.540). Substantial improvement or reconstruction of existing non–residential structures in flood hazard areas may be allowed if– (a) Flood proofing conditions are met or the improvement is elevated to at least one foot above the estimated 500–Year flood level. (b) Other conditions are met, as may be required by the Water Control Board, Land Use Planning Committee or the RMIDT. An example of other conditions is an hydraulic permit.Substantial improvement or reconstruction of existing residential structures in flood hazard areas shall be elevated to at least one foot above the estimated 500–Year flood level. Other conditions may be required by the Water Control Board, Land Use Planning Committee or the RMIDT.Non–substantial improvements shall be allowed to existing structures in flood hazard areas through the building and hydraulic permit processes.
Anchoring, Construction Materials and Methods. (a) All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure. (b) All new construction and substantial improvements shall be constructed with materials and utility equipment that resist flood damage. (c) All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. (d) Electrical, heating, ventilation, plumbing and air–conditioning equipment and other service facilities shall be designed, elevated or otherwise located so as to prevent water from entering or accumulating within components during flood conditions.
Utilities. (a) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system; (b) New and replacement sanitary sewage facilities shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters; and, (c) On–site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Minimum building setbacks shall be 150 feet and drainfield setbacks 100 feet from watercourses.
Bridges, Culverts and other Water Crossing Structures. Water crossing structures shall be designed to handle predicted flows within 100–year flood events.
Review of Building Permits. If elevation data are not available through the Flood Insurance Study or other sources (Section 441.430(2), 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 decision which includes use of historical data, high water marks, photographs of past flooding, or other information.

441.520 Specific Standards. In all flood hazard areas where base flood elevation data have been provided as set forth in Section 441.320, Basis for Establishing the Areas of Flood Hazard or Section 441.430(2), Use of Other Base Flood Data, the following provisions are required:

Residential Construction. (a) Permanent full–time residential uses and construction are discouraged within flood hazard areas, but may be allowed if elevated at least one foot above the estimated 500–Year flood level. Residential development is discouraged because of the costs of elevating structures and the uncertainty of floodplain mapping information. (b) Subdivisions are not allowed within flood hazard areas. (c) Substantial improvement or reconstruction of residential structures in existence prior to this ordinance shall be elevated to a minimum of one foot above the estimated 500–Year flood level and meet the standards of paragraph 3107.3 of the Uniform Building Code’s Appendix Chapter 31.
Nonresidential Construction. Substantial improvement or reconstruction of any commercial, industrial or other nonresidential structure shall be floodproofed or elevated to a minimum of one foot above the 500–Year flood level and: (a) Hazardous materials facilities and uses, such as chemical treatment plants and oil or gas storage facilities, are prohibited within flood hazard areas. New sewage treatment and water treatment facilities are also prohibited within flood hazard areas. (b) Meet construction standards of the Uniform Building Code and conditions established by the Water Control Board, Land Use Planning Committee or RMIDT.

441.530 Floodways.

Located within areas of special flood hazard, established in Section 441.320, are areas designated as floodways. Floodways are extremely hazardous due to the velocity of floodwaters which carry debris, projectiles and erosion risks.
No fill, new construction, substantial improvements, or other developments are permitted within floodways, with the exception of restrooms; and structures that are compatible with wetlands management uses and do not cause an increase to flood levels during the occurrence of base flood discharges.
Floodways shall be dedicated and maintained in perpetuity for uses compatible with open space, cultural and recreational uses or wetlands management practices.
Emergency Situations. No formal application or permit is required during a crisis for emergency actions needed to protect public health, safety, property or natural resources.
Rehabilitation Work. All rehabilitation work initiated following an emergency shall be planned and approved through the CATX process administered by the RMIDT. These guidelines shall apply to all flood rehabilitation projects.

441.540 Encroachments. The cumulative effect of any proposed development, when combined with all other existing and anticipated development, shall not increase the water surface elevation of the base flood more than one foot at any point.

441.600 Appeals. Provisions of this ordinance may be appealed to a joint meeting of the Water Control Board and Land Use Planning Committee. If the appeal cannot be resolved at that level, it may be appealed to the Tribal Council through the Water Control Board and Land Use Planning Committee. Appeals concerning the location of flood hazard area boundaries shall be consistent with National Flood Insurance rules and regulations (Section 441.430(5).

1 This tribal ordinance was mistakenly originally adopted by Tribal Council Resolution No. 9366. It was subsequently amended by Resolution Nos. 9366A and 10190. Nevertheless, it is now treated as duly adopted Ordinance 77.
2 WSTC 441.320 was amended by Tribal Council Resolution No. 10190 adopted on May 14, 2002, to provide for current and future updated Flood Insurance Maps.