Skip to main content
Save the Date: Spring Conf May 17-19, Tucson!
Save the Dates! Spring Conf. May 17-19 in Tucson!
Spring Conference 
May 17-19, Tucson!!
Add Me To Your Mailing List

Spring Conference
May 17-19
Tucson
Register Now!
Elevation Certificate
Workshop (FREE)

July 12
Globe
Register Here

Elevation Certificate
Workshop (FREE)

August 22
Casa Grande
Register Here



Order your AFMA gear
from Lands End

ARIZONA CFMs

 

 

 

HomeLegislative Issues Committee Information (updated Mar 2015)

 

Updated August 31, 2015

 

The recently published New Final Clean Water Rule was blocked by a North Dakota district court on August 27th.  The temporary injunction was granted to the 13 states that filed the lawsuit of which Arizona was one.   The EPA maintains the injunction applied only to the 13 states stating that it began enforcing the rule in all the other states on Friday (August 27th).  The judge told attorneys that each side may file a brief by Tuesday September 1st 5 PM addressing the issue of whether the injunction applies nationally or only to those 13 states.  The lawsuit is just 1 of 10 filed against the controversial rule which expands federal jurisdiction over small streams, tributaries and wetlands under the Clean Water Act.   It is not clear the direction of the rule but for now the new rule cannot be applied in the states which filed the lawsuit.

 

 

Updated August 20, 2015

 

The Clean Water Rule: Definition of “Waters of the United States” was published in the Federal Register on June 29, 2015.  The rule will become effective on August 28, 2015.

 

You can find a copy of the 299 page rule here.

 

Updated June 8, 2015

 

EPA released the Clean Water Rule on May 27, 2015.  A Clean Water Act permit is only needed if a water is going to be polluted or destroyed. According to the press release:

 

The Clean Water Rule only protects the types of waters that have historically been covered under the Clean Water Act.  It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains.  It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field.  The Clean Water Rule addresses the pollution and destruction of waterways – not land use or private property rights.

 

The Clean Water Rule will be effective 60 days after Pre-publication in the Federal Register.

 

You can find a copy of the 299 page rule at: http://www2.epa.gov/sites/production/files/2015-06/documents/preamble_rule_web_version.pdf

 
Updated March 26, 2015
 

The Federal Register for March 26, 2015  posted that FEMA has extended the public comment period for the Revised Guidelines for Implementing Executive Order 11988 i.e. FFRMS from April 6, 2015 to May 6, 2015.  Here are two documents of interest: DRAFT-FFRMS-Implementating-Guidelines-1-29-2015r2 and Federal_Flood_Risk_Management_Standard.

 

Comments must be identified by docket ID FEMA-2015-0006 and

may be submitted by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the

instructions for submitting comments.

    Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of

Chief Counsel, Federal Emergency Management Agency, 8NE, 500 C Street

SW., Washington, DC 20472-3100.

    Instructions: All submissions received must include the docket ID

FEMA-2015-0006. Comments received will be posted without alteration at

http://www.regulations.gov, including any personal information

provided.

    Docket: For access to the docket to read comments received, go to

http://www.regulations.gov, and search for the Docket ID FEMA-2015-

0006.

 

Updated February 10, 2015

 

Executive Order 13690, which amends Executive Order 11988, was signed by President Obama on January 30, 2015 contains a new Federal Flood Risk Management Standard (FFRMS) which contains new considerations for agencies as they implement the 8-step process on projects involving any Federal action.  These can include activity related to Federal lands and facilities, Federally funded construction, and Federal activities and programs affecting land use, including water, waste water, land use resources planning, regulating and licensing activities, and Federally regulated loans (Ex VA & FHA).  More attention will be given for critical actions which are defined as any activity for which even a slight chance of flooding would be too great.  The reason for the Executive Order is to address the growing costs in flood losses. 

 

Executive Order 11988 uses the BFE as a standard for non-critical actions and considers the 500 yr floodplain for critical actions.  In many cases these standards may not met current state or local standards.  The new elements to Executive Order 13690 that relate to the floodplain and protection standard, which is defined both vertically and horizontally, providing 3 options: 1) Freeboard value approach which is the BFE plus 2’ freeboard for non-critical actions and plus 3’ for critical actions; 2) 500 yr elevation approach; or 3) climate informed science approach.     

 

There are exemptions from the FFRMS in the interest of national security and where the agency action is an emergency action where only the area of land subjected to the BFE is the criteria. Another new element is that when alternatives are being considered, the agency shall use natural systems, ecosystem processes, and nature based approaches. This relates to Steps 3-7 in the 8 step process.

 

The Executive Order will not trigger the need to update local floodplain management ordinances and will not increase flood insurance rates.

 

More details will follow but be aware, the Executive Order and the Draft FFRMS were published in the Federal Register February 5th which kicks off a 60 day comment period on implementing guidelines.  After comments are reviewed, the final FFRMS will be published.  Then agencies have 30 days to submit their plan for implementing the updates to their rules and procedures.  The Draft FFRMS can be found at http://www.fema.gov/media-library-data/1422653213069-9af488f43e1cf4a0a76ae870b2dcede9/DRAFT-FFRMS-Implementating-Guidelines-1-29-2015r2.pdf

 

Comments must be received by April 6, 2015.  Comments must be identified by docket ID FEMA-2015-0006 and may be submitted by one of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of Chief Counsel, Federal Emergency Management Agency, 8NE, 500 C Street SW., Washington, DC 20472-3100.

  

Updated April 22, 2014
 

FEMA is soliciting comments on its Programmatic Environmental Impact Statement (PEIS).  FEMA held a scoping webinar on April 22, 2014 led by Beth Norton the Project Manager for the process to give an overview of the PEIS.  More information on the PEIS, to read submitted comments, or to register for the last 2 webinars to be held on May 13, 2014 and May 20, 2014 can be found at https://www.fema.gov/programmatic-environmental-impact-statement.  Comments can be sent to NFIP-Programmatic-EIS@fema.dhs.gov  until May 30, 2014. 

 

FEMA plans to review its regulations in areas of biological resources, climate change, cultural resources, land use, public safety, socioeconomic considerations, water resources, geophysical features, and coastal resources.  FEMA's comments to stakeholders have included: increase elevation standards for new construction, provide floodplain management for critical facilities, strengthen restrictions for floodway development, integrate future conditions and residual risk in floodplain management, discourage fill in floodplains, modifications to its regulations that account for impacts of floodplain development on natural and beneficial functions of floodplains including endangered & threatened species. 

 

The steps for PEIS process are:

1.       NOI

2.       Scoping process [that is where process is now]

3.       Draft PEIS

4.       Public Comments on the Draft PEIS 

5.       Final PEIS

6.       Record of Decision. 

 

The scoping period began on 5/16/12 and ended on 10/9/12 where 41 comments were received.  Topics raised were: changes to maintain "natural & beneficial functions of floodplain to include endangered & threatened species.", climate change, zero rise in FP & FW's, risk-based instead of subsidy-based premium structure, use criteria greater than 1% storm, include FP setbacks, lateral erosion hazards, etc. 

 
Updated March 2014

EPA & USACE Clarify Protection for Nation’s Streams & Wetlands

EPA-HQ-2011-0880 (Release Date: 3/25/14)

Comment Period ends 90 days once draft ruling appears in Federal Registry

Final Rule goes into effect 60 days following publication in Federal Register

 

Click here for more information 

 

 
Updated December 2013:
 
Proposed new rule expanding scope of CWA jurisdiction.  Draft rule would regulate ditches as "tributaries" and all waters & wetlands within floodplains.  Relies on EPA's draft report "Connectivity of Streams and Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence" which has not yet been peer-reviewed or completed, to support its definitions.

 

As of Nov 2013, report is being reviewed by Science Advisory Board expert panel and will receive public comments Dec 16-18, 2013 in Washington DC (written commented period ended 11/6/13).

 

Purpose of the report is to summarize current understanding about these connections, the factors that influence them, and the mechanisms by which connected waters singly or in aggregate, affect the function of downstream waters. Another purpose is to "make the process of identifying waters of the US less complicated and more efficient". 

 

Key points of the rule are: 

·         provides broad definition of tributaries, allowing for regulation of anything with flow (including ditches), regardless of frequency or duration of flow;

·         expressly claims jurisdiction over desert areas in the arid West that are wet only during infrequent rainfall events;

·         defines ditches as jurisdictional tributaries, and other man-made conveyances, that drain or connect to other qualifying tributaries (e.g. agricultural, roadside, irrigation and stormwater ditches);

·         establishes jurisdiction over wetlands or waters based on location within riparian or floodplain areas, but does not limit the concept of "floodplain" and instead leaves it to agencies' "best professional judgment to determine the flood interval (e.g. 2-, 10-, 100- or 1,000-year floodplain) to be considered; and

·         establishes jurisdiction over "other waters" that are not considered tributaries or adjacent based on aggregation of those waters within a "single landscape unit," which is undefined. 

 

What's not included:

o   waste treatment systems;

o   prior converted cropland;

o   artificially irrigated areas;

o   ditches excavated wholly in upland areas; and

o   ditches that do not contribute flow to water identified as Waters of US.

 

The rule would apply to all CWA programs. 

 

Board should make decision by March 2014 (estimate). 

 

Link to Draft Rule http://info.hunton.com/collect/click.aspx?u=eo7N2qjjSvIN6878tNbq+ZH9s9x3sKwMCqG/pT5LaEgYjjFYK1Rxhf8p5B1aoBvf&rh=ff00137dfa914a592076a261d24c82550ce6c76f

 

Link to scientific study http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/Watershed%20Connectivity%20Report?OpenDocument

 
Updated July 2013:
At the National Level:
  1. Biggert-Waters Act (BW 2012) has begun enactment since its passage in July 2012.It affects approximately 19% of policies.
    • Owners of non-primary/secondary residences in SFHA have seen 25% increases in rates since 1/1/13 and will continue to see 25% increases until the rates reflect the true risk.
    • Beginning 10/1/13 owners of residences experiencing severe or repeated flooding and owners of business property will see 25% rate increases until rates reflect true risk.
    • Owners of primary residences in SFHA will be able to keep their subsidized rates unless or until: property is sold; policy lapses; suffer severe, repeated flood losses; or purchase a new policy.
    • Grandfathering will be phased out; implementation expected in 2014, increasing by 20% per year for 5 years.
  2. SB 604 Water Resources Development Act (WRDA) – Ten year spending bill providing for conservation and development of water and related resources.It authorizes the Secretary of the Army to construct various projects to improve rivers and harbors of US and make water resources policy reforms.The bill funds Corps projects throughout the U.S.Projects include: levee certification & vegetation management, levee safety, water resources studies, dam safety, etc. Currently the bill is in the House.There has been discussion that Section 219 will be modified to remove FEMA funding from WRDA.
  3. Rain Tax – This is a tax in response to an EPA decree that requires mandatory reductions in nitrogen, phosphorus, & sediment that damage Chesapeake Bay.
  1. FEMA HQ recently developed a Biggert Waters website that is updated on an ongoing basis.For more information, refer to http://www.fema.gov/national-flood-insurance-program/flood-insurance-reform-act-2012
  2. Several bills have been introduced in 2013 to modify BW 2012. A few of those bills are: HR 1267, HR 1268, HR 2199, HR 2217, HR 960, and the SMART Act introduced by Senator Landrieu.None have been voted on but they can be tracked on the following website: http://www.congress-summary.com/C-113th-Congress/Status_of_Senate_Bills_113th_Congress.html

At the State Level:

The following bills were signed by the Governor:

  1. HB 2443 – This bill amends SR 1598 (the Regulatory Bill of Rights). The licensing time frames; compliance; consequence to failure to comply section of the bill does NOT apply to a license that is necessary for development of residential lots, subdivisions, or master planned communities.Some of the aspects to the bill are:
    1. Person is entitled to have muni not base licensing decision or requirements that are not authorized by statute, rule, ordinance or code.
    2. Person may have muni approve or deny application within predetermined period of time.
    3. Person is entitled to receive notice of denial of application that justifies denial with reference to statute, etc. & explains right to appeal.
    4. Person entitled to receive info regarding application process at time of application.
    5. Licensing time frames; compliance; consequence to failure to comply section:
      1. A new ordinance or code requiring a license, muni shall have in place overall time frame to grant or deny license.Overall time frame shall state separately the administrative completeness review time frame and the substantive review time frame & be posted on website.
      2. Increased muni flexibility in structuring licensing process including suspension of substantive & overall time frames due to delays caused by public hearing, state or federal licenses, or approvals from utilities on residential or commercial projects.
      3. Substantive review time frames & overall time frames do not include time required to obtain nonmunicipal licenses.
      4. Muni shall issue notice of administrative completeness or deficiencies within administrative completeness review time frame. If muni determines application is not administratively complete, muni shall include comprehensive list of deficiencies. Review time frame & overall time frame are suspended from date of notice until date muni receives missing info from applicant.Muni may issue additional notice based on applicant’s submission of missing information.
      5. One comprehensive request for information can be made during substantive review time frame.If municipality identifies legal requirements not included in request, municipality may amend request once to include legal requirements & legal authority for requirements.
      6. If applicant requests significant changes that are consistent with purposes of original application & not in response to request for corrections, municipality may make one additional comprehensive request for corrections & may have no more than additional 50% of time frame.
      7. Muni & applicant may extend substantive review time frame & overall time frame by mutual written agreement.Time frames may not exceed 50% of overall time frame.
      8. If muni does not issue notice granting or denying license within overall time frame or within mutually agreed on time frame extension, muni shall refund all fees charged for reviewing application.Refund shall be made within 30 days after expiration of overall time frame.Muni shall continue to process application.Refund may not be waived by applicant.
      9. Signed 4/10/13, effective 9/15/13.
  2. HB 2118 – Related to Pinal County flood districts; repeals ARS 48-2815 which allowed flood protection districts to exclude lands.Signed 4/4/13, effective 9/15/13
  3. HB 2178 - Maricopa County initiated bill to correct statute related to administrative processes and enforcement. Signed by Governor on 5/2/13, effective 9/15/13
  4. HB 2393 – Relates to petitioning the Regulatory Review Council, allows person to petition governors' council for reducing timeframes; allows licensees more power to require state agency to reduce licensing timeframes, deals with situation where it takes considerable time to obtain license. The bill is an attempt to reduce red tape.One of the goals was to attract more businesses. Signed 4/5/13, effective 9/15/13.
  5. SB 1324 – Addresses critical infrastructure information in emergency response plans that are protected by the Critical Infrastructure Info Act of 2002 and that is provided to any state agency or political subdivision of the state or an authorized agent of the state agency or political subdivision is confidential and exempt from public disclosure. When information is provided, the provider is responsible for notifying the recipient that such information is critical information. Signed 4/5/13, effective 9/15/13.
  6. SB 1231 - Addresses indemnity as it relates to negligence.If a design professional provides services in connection with a public building or improvement, the agent (agency) may require the design professional to indemnify and hold harmless the agent from liabilities, damages, losses & costs, including reasonable attorney fees and court costs, but only to the extent caused by the negligence of the design professional. Effective 6/20/13.
  7. A bill that was signed in 2011 but might have been missed in past Committee updates is the addition of Section J to Title 48-3603.The addition was in response to a potential lawsuit related to a less than 100-yr solution after the Shultz fire.The changes read: The district …… are not liable for any injury or property damage that may arise out of a plan or design for construction, maintenance or improvement to a dam, levee, berm, channel, canal, culvert or any other flood control project the district is authorized to plan …. when a reasonably adequate warning of any unreasonably dangerous hazard is given to potentially affected property owners in a manner that owners may take suitable precautions to protect themselves and their property. The warning shall include information for the property owner regarding a national flood insurance program. A warning is sufficient pursuant to this subsection if the warning is provided to a single property owner of the parcel, and notice to subsequent property owners is not required. The immunities prescribed by this subsection are in addition to and not in derogation or limitation of the immunities granted a district, employee or officer as otherwise provided by law and apply if either or both of the following conditions is met: 1. The project is funded wholly or partially by federal monies. 2. The project is planned or designed to meet a recurrence interval approved by the district's board of directors.