Irrigation Leader
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Water Law

Is There a New Sheriff in Town? The Permitting of Irrigation Operations and Management by FEMA

Imagine that water delivery entities are required to obtain permits from their local community or communities prior to diverting water into their canals. Imagine that water delivery entities and drainage districts are required to obtain permits from their local community or communities prior to removing debris impeding flows in their canals or ditches. What if the operation, maintenance, cleaning, and repair of irrigation and drainage facilities (ditch use) was subject to regulation by the Federal Emergency Management Agency (FEMA) through local community flood control authorities?

Does it make sense to grant local communities the power to permit the activities water delivery and drainage entities must perform to maintain the safe passage of water in their facilities? Could rural communities even accomplish such a task with their shrinking populations or budgets? Would local communities even have the knowledge and understanding of the nature of the work required to maintain a ditch and, therefore, regulate ditch use? If a permit is required, does that also allow the local community to deny that permit? How can a water delivery or drainage entity operate and maintain its system if the local community denies a permit?

Unfortunately, FEMA is attempting to impose this permitting requirement in Idaho. Since early 2017, a group of Idaho stakeholders, including the Idaho Department of Water Resources, and Idaho cities, counties, and water users (collectively referred to as the Idaho Work Group), have been engaged in negotiations with FEMA Region X. Although the negotiations began by addressing concerns over the replacement of a culvert in a floodway, FEMA quickly redirected the conversation to assert control over ditch use.

FEMA demands that Idaho’s local communities regulate ditch use by requiring permits within flood-prone areas (called flood development permits) as a condition of participation in the National Flood Insurance Program (NFIP). According to FEMA, the NFIP, and its implementing regulations, impose a duty to permit certain ditch use activities as a precondition to doing work in an irrigation or drainage facility. FEMA has threatened that noncompliance will result in the state of Idaho being suspended from the NFIP. Frustratingly, FEMA maintains these unreasonable demands even though Idaho’s counties and cities have repeatedly stated they do not have the resources (either money or manpower) to regulate these activities.

This issue hinges on the definition of one word: development. Under the National Flood Insurance Act, (42 U.S.C.S. § 4001 et seq.), communities wishing to participate in the NFIP, and thereby provide access to subsidized flood insurance, must meet certain, minimum criteria. One requirement mandates that local communities issue permits for any “development” within special flood hazard areas designated by FEMA. Development is defined in NFIP regulations as “any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.” (44 C.F.R. § 59.1)

Many of these terms are not defined in the regulations, and FEMA has advanced a broad and exacting interpretation. FEMA asserts that regular ditch use constitutes a “change” that must be reviewed for potential permitting by local communities. As an example of activities that require permitting, FEMA has pointed to the operation of structures used to divert water into canals and the removal of debris (i.e., trees, sediment, and the like) impeding the flow of water through ditches and placing that debris on the banks of the canal.

Idaho water users first recognized this issue in 2010 when a disagreement arose regarding the level of permitting that may be required to install a cement check structure in a canal. Previously, the Nampa and Meridian Irrigation District had checked up its canal by pushing and piling gravel to divert water into laterals and ditches.

Following lengthy discussions with local communities, the Idaho Department of Water Resources, and representatives from the U.S. Department of Homeland Security and FEMA Region X, a solution was reached. Idaho’s Disaster Preparedness Act, which governs the adoption of floodplain zoning ordinances by local governments, was amended to provide that the term development does not include the operation, cleaning, maintenance, or repair of ditches and to clarify that no permit would be required to perform such activities.

This compromise acknowledged that some activities— such as the construction, reconstruction, or relocation of ditches—may rise to the level of permitting under the NFIP. The compromise further acknowledged that ditch operation, cleaning, maintenance, and repair should not be subject to regulation and permitting under the NFIP. Such activities constitute the long-standing, ordinary, and ongoing uses of ditches and ditch rights in Idaho that have been conducted since the late 1800s by many generations of water users to maintain the historic capacity of Idaho’s ditches to accomplish their water delivery and drainage purposes.

Idaho water users have maintained that such activities do not change the ditches and, therefore, cannot be considered development as that term is used in the NFIP regulations. Idaho’s water users are unaware of any scenario in which the regular operation, cleaning, maintenance, or repair of an irrigation or drainage ditch has increased the risk of, or caused, flood damage. Idaho law places clear and firm obligations on ditch operators to maintain their ditches to prevent flooding, overflow, and the waste of water. There is simply no need for additional oversight through the NFIP process.

The state of Idaho continues to talk with FEMA about this issue. Unfortunately, the water users, local communities, and other members of the Idaho Work Group are no longer part of that negotiation process. We continue to monitor the issue and are considering all options to ensure that Idaho’s water users can continue to properly operate their irrigation and drainage facilities.

Paul Arrington is the executive director and general counsel for the Idaho Water Users Association. You can reach him at paul@iwua.org