Violations, Enforcement, and Legal Assistance: Why Building a Relationship with Your Local Attorney is Important
Floodplain regulations are complex. Compliance can be hard to understand and violations difficult to enforce. Many property owners develop projects in the floodplain without the knowledge or understanding of what it takes to lessen flood risk and be compliant. It falls on floodplain administrators (FPA) to inform and educate. When projects are non-compliant, the FPA and the community must work together to enforce their local floodplain regulations. While the DNRC Floodplain’s regional engineers and the Community Assistance Program (CAP) are always available to assist communities with enforcement questions, compliance, and technical reviews, it is important for FPA’s to recognize and use their local resources as well. One valuable source of assistance is the county/city attorney.
FPA’s are highly encouraged to develop rapport with their local government officials. This helps leadership understand the job duties of the FPA, how decisions made by the town council or county commissioner matter, and how important local legal counsel is to the community’s administration of the National Flood Insurance Program (NFIP). Having a solid working relationship with the community’s attorney helps when it comes to enforcing floodplain violations.
Most community floodplain regulations address compliance in two sections titled “Enforcement” and “Penalties”. Both provide guidance on how to communicate, document, and address floodplain violations. Non-compliant structures can be expensive to mitigate or repair and cause financial hardship. FPA’s should overcome any reluctance when it comes to having tough conversations and focus on offering guidance or explaining floodplain requirements in pre-application meetings. Notifying a property owner their project needs permitting can avoid the frustration and higher cost of fixing a deficiency after the fact. This can also help avoid lengthy enforcement or legal actions. It is beneficial when everyone understands what is needed and how floodplain regulations are followed and enforced.
FPA’s should document discussions and recommendations with property owners wanting to develop in questionable or high-risk floodplain locations. Later if there is a flood event, channel migration, or streambank erosion, it could be beneficial to have pre-existing conditions identified. It is tedious, but it could protect a community from possible litigation.
When it looks like legal action is needed, it is recommended for the FPA to talk with the local attorney early while it is still an enforcement action. This way the attorney is aware, can make recommendations, and both sides can assess the type of support needed for compliance. The attorney can advise:
- The community to follow recommendations in the Compliance Guidebook
- How to work together and complete a remediation plan
- What is the best way to document a violation
- What is the proper language and process for notifying the violator
- What type of evidence and documentation is needed
- How to collect and document information to present it legally
It is important for FPA’s to document any communications, recommendations, remediation plans, and technical information regarding a floodplain inquiry or project. Not only will this assist outside reviewers, it is essential for successful litigation in court cases. Failure to follow statutes, convey permit requirements, or document permitting could jeopardize the case and the community’s ability to defend its decisions. Floodplain regulations provide a good outline of what to do, however they do not provide legal information or steps needed for enforcement so having a close working relationship with the local attorney is essential.
This article originally appeared in Montana Highground, DNRC Floodplain Quarterly Newsletter (December 2023).
