March 2014
Welcome to the Rebirth* of the Water Talk Newsletter

The Water Talk newsletter will be published electronically 2-4 times a year.  The content will focus on topics and resources related to floodplain management, as well as information on the other land use programs overseen by DNR (i.e., shoreland management, Wild & Scenic Rivers, Mississippi River Corridor Critical Area).

Our main target audience is local officials involved with floodplain management or mapping, as well as those at the watershed district, regional, state & federal level. Other target audiences include: surveyors, engineers, lenders, insurance agents, realtors, and others involved with properties or projects in the floodplain. If you did not receive this link directly, you can subscribe at: http://www.dnr.state.mn.us/waters/watermgmt_section/floodplain/index.html

Help us to keep our local official contact list current. If you are the city or county contact for zoning / permits, or the engineering contact, or the emergency manager, and you did not receive the link to this newsletter directly, please forward your contact information and role to ceil.strauss@state.mn.us 

Please let us know what you think of the content and format of this newsletter, which will continue to evolve based on your feedback. Contact Ceil Strauss (see above) or suzanne.rhees@state.mn.us

*Water Talk (titled the “Minnesota Floodplain Management Newsletter” in the earlier days) was published by the former Minnesota DNR Division of Waters (which is now part of the Division of Ecological & Water Resources), 3-5 times a year from 1983 to 1996, and sporadically until 2002.

In This Issue

• What Does the Biggert-Waters Reform Act of 2012 Mean for Local Officials?
• Upcoming Training Opportunities
• FEMA Map Updates
• Montevideo - A Mitigation Success Story
• Cool Tools and Sites
• Zoning Official Challenge
• What's Happening with Risk MAP?
• Evaluation of Variances in Floodplains Must Still Meet Federal Standards
• Zoning Challenge Answers

What Does the Biggert-Waters Reform Act of 2012 Mean for Local Officials? Can I get a copy of an elevation certificate for my property?  My bank said to ask you.  My agent said I need a BFE.  I think it’s got something to do with flood elevations.  Can you get that for me?  Oh – and I need that by tomorrow so I can close on time! Local officials are receiving these types of requests much more frequently since Congress passed the “Biggert-Waters Reform Act of 2012” (BW-12) and it was signed into law on July 6, 2012.  The biggest impact of BW-12 is that if a structure was built before the first Flood Insurance Rate Map (FIRM) for that community, the owners didn’t need to know their lowest floor elevation or the Base Flood Elevation (BFE) to get a flood insurance policy in the past.  As a result of the new law, a FEMA elevation certificate (or similar source of building elevations) and the BFE are needed for the policy rate to be determined for all pre-FIRM structures (except for primary residential structures that had polices as of 7/6/2012). What was the purpose of BW-12?  The National Flood Insurance Program (NFIP) was enacted in 1968, and after 45 years there is concern that many policies are still paying subsidized flood insurance rates.  In addition, as a result of claims resulting from Hurricane Katrina and Superstorm Sandy, the NFIP owes close to $25 billion to the federal government.   Many portions of BW-12 are focused on moving the NFIP to financial solvency:  Those living at risk should pay more  Truly pricing risk will encourage mitigation to reduce future risk. What are the key changes in the law & when do they take effect?  There are many parts of BW-12 related to FEMA mapping, grants, and other areas.  This summary will focus on the changes to the flood insurance rates. Section 205 of BW-12 addresses the rates for pre-FIRM structures that currently have subsidized flood insurance rates.  It requires that many categories of buildings with subsidized rates start to be phased to the “full risk rates” 25% each year.  And some categories of Pre-FIRM structures will immediately start paying full risk rates. Section 207 of BW-12 affects the way “grandfathering” of rates are currently done for structures that are newly mapped in to the high flood risk area, or where the BFE increases.  This part of the law will not be implemented until late 2014, at the earliest, and is the part of the law most likely to be delayed by current congressional proposals.

Timeline for Rate Changes

1/1/2013: Non-primary pre-FIRM residential structure rates started to be phased to full risk rate at 25% per year.

10/1/2013:

• Phased-in Increases - Pre-FIRM businesses and buildings with a history of many flooding claims (Severe Repetitive Loss buildings) started to be phased to full risk rates at 25% per year.
• Immediate Move to Full Risk Rates for new policies or upon renewal:

              o   After the sale/purchase of a property that occurred after 7/6/2012

              o   When a new policy is issued after 7/6/2012

              o   When a policy is issued for a policy that lapsed after 10/4/2012

How extensive is the impact of BW-12 in Minnesota?   Minnesota has a relatively small number of flood insurance policies compared to many other states, and the impacts on rates are much greater in coastal zone areas (which we do not have).   In addition, over half the flood insurance policies in Minnesota are in the moderate or low flood risk areas, i.e., in Zones B, C or X (shaded & unshaded); those policies are not impacted by Section 205 of BW-12. 

However, a high percent of the structures in A Zones (including A, AE AO, AH & A1-30 Zones) are currently impacted or will be impacted in the future.  Of the current A Zone policies, the DNR has estimated that 68% of the structures are impacted currently or will be impacted if the structure is sold.  And the many additional pre-FIRM structures in A Zones that do not currently have flood insurance policies will be impacted when they go to sell, or want to get a loan (i.e., mortgage, 2nd mortgage, or home equity loan).

What do these changes mean for local officials?  Local officials will receive many more requests for elevation certificates (or other “as-built” survey information) and Base Flood Elevations (BFEs) for pre-FIRM structures since the lowest floor and BFE will be required for calculating the flood insurance premiums. 

• Provide any available “as-built” surveys you have, but you will likely be bearer of bad news that they need to pay for a survey.
• Provide available BFE information.  If you don’t have a BFE for a site, work with your watershed district or MnDNR (or other agencies) to find available BFEs or to determine an approximation for that site based on best available data.
• Consider whether the structure will be eligible to obtain a Letter of Map Amendment (LOMA), which is a document from FEMA that is issued when more accurate data shows the structure is not in the mapped floodplain based on better aerials, etc., or elevation data shows they are high.  Link to Information on Applying for LOMAs
• Encourage mitigation (elevating or moving the structure) if the structure is accurately shown to be in the SFHA.   They’ll save money due to reduced insurance premiums long term, and reduce their risk of flooding (and the losses, costs and inconvenience associated with being flooded).

What is Congress considering now?   Congress has been hearing many complaints about sharp increases in flood insurance premiums and the impacts of BW-12 on the real estate market.  There are several bills being considered as of early March 2014, most of which propose delays in implementing portions of the law (especially those related to pre-FIRM structures going straight to full risk rates upon sale of the structure, getting a new policy or reinstating a lapsed policy).  Check the resource links below for the latest.   

Resources

FEMA Main Site – BW-12 Updates  Some newer short videos and information sheets

FEMA’s GeoPlatform Map Based Site Showing Numbers of Affected Policies  NEW interactive map that shows policy numbers by categories (subsidized, new full risk, etc.) at the zip code level 

Association of State Floodplain Managers (ASFPM) Normally has the most up to date information - check Hot Topics

FEMA’s www.floodsmart.gov Site   Find agents in area who know about flood insurance.  Good site for agents and lenders also.

MnDNR Floodplain Program Flood Insurance Basics Site Currently being updated, but lots of good background information. 

NFIP Guide to October 2013 Changes Short online video trainings that are good for agents, lenders and local officials

Key Definitions

Pre-FIRM Building: Built before the community’s first Flood Insurance Rate Map (FIRM) became effective and not been substantially damaged or improved.

Subsidized: Pre-FIRM structures pay subsidized flood insurance rates.  They pay a flat amount based on the amount of coverage, no matter how low or at risk they are.

Full Risk Rates: Rates for buildings that are elevation-rated and reflect the true flood risk.

Grandfathering (can be Pre-FIRM or Post FIRM): When new mapping extends to new area or has higher Base Flood Elevations (BFE).  There are currently options to “grandfather” rates for original zone or the difference between Low Floor Elevation and BFE.

Base Flood Elevation (BFE): The elevation of the regulated high flood risk zone, also known as “100-year flood” or 1% annual chance flood elevation.

Upcoming Training Opportunities Floodplain Management Training is a free one-day course designed for local officials, surveyors and engineers, realtors, insurance agents, and other interested citizens. The 2014 sessions include both general and specialized topics: Floodplain zoning basics Floodplain map basics Letters of map change (LOMA, LOMR-F and LOMR) Flood insurance basics (including the 2012 Biggert-Waters Reform Act) Ordinance administration Estimating base flood elevations in A zones Higher regulatory standards Training sessions have been held in Brainerd and Owatonna. Upcoming dates are: Windom:  Tuesday, March 25th – DNR Offices, 175 County Road 26, Windom, MN 56101 Hutchinson:  Tuesday, April 1st – Southwest Initiative Foundation, 15 3rd Ave. NW, Hutchinson, MN 55350 The sessions run from 9:00 am to 4:00 pm, with registration at 8:30 am. To sign up for either training, e-mail ceil.strauss@state.mn.us or call Ceil at 651-259-5713. Additional locations will be added later in 2014, so watch for updates.

Minnesota Division of Homeland Security and Emergency Management presents:

Disaster Recovery I Rural Communities. April 18, Olivia, MN. This eight-hour planning and management-level course teaches public officials, community leaders, and emergency managers in rural communities how to plan for and execute disaster recovery efforts. For more information, go to https://www.ruraltraining.org/training/schedule/2014-04-18-mgt415-olivia-mn-001/.

Water Resources Workshops:  DNR is partnering with GTS Educational Events to present a series of half-day workshops on Water Resources Protection: Planning and Zoning for Shorelands, Floodplains, and Clean Water.  The workshops are designed for local officials and staff, as well as the DNR hydrologists who work with local governments. Topics will include:

• The connections between land and water planning
• Overview of local planning and zoning authorities
• Basic elements of shoreland and floodplain zoning
• New “One Watershed One Plan” legislation and program
• The “clean water cycle” and clean water funding opportunities
• Specialized topics such as annexation, drainage, mooring spaces, ag buffers, etc.

Four workshops are planned in different locations around Minnesota, tentatively scheduled for late April – early May.  Watch for a follow-up e-mail with dates and locations.

FEMA also offers many training opportunities, both in-person and via webinar.  See "Training Opportunities" at http://www.dnr.state.mn.us/waters/watermgmt_section/floodplain/index.html

FEMA Map Updates

New Maps Going Effective:

• Nobles County – Effective on May 19, 2014
• McLeod County – Effective on July 7, 2014

Letters of Final Determination (Letters sent 6 months before effective dates):

• Freeborn County – May 19, 2014 (anticipated)
• Olmsted County – June 16, 2014 (anticipated)

90-Day Appeal Periods:

• Wilkin County – January 26, 2014 to April 25, 2014
• Anoka County – February 21, 2014 to May 21, 2014

Montevideo - A Mitigation Success Story

Images of a flood-prone neighborhood in Montevideo in 1991 (top) and 2012 (bottom) show the extent of building relocations and removal of flood-damaged structures.

Last year the City of Montevideo—a community of 5,300 at the confluence of the Chippewa and Minnesota Rivers—received national recognition from the Association of State Floodplain Managers (ASFPM) for its efforts in reducing flood losses and flood damages.  ASFPM awarded the city the 2013 James Lee Witt Local Award for Excellence in Floodplain Management for the community’s dedication to reducing disaster risks for their citizens.

Montevideo became active in mitigating flood losses immediately after historic flood losses of 1997 and 2001. Since these events, the city has acquired a total of 131 flood prone properties. Montevideo’s Smith Addition neighborhood experienced flooding in 1993, 1997, 2001, and 2009 from the adjacent Chippewa River. In this area the city has acquired 109 properties, removing the majority of flood damaged structures from the floodplain.

FEMA’s 2010 loss-avoidance study for 48 properties acquired in Smith Addition showed the return on Montevideo’s acquisition of these structures was estimated to be 747 percent—meaning that for every one dollar invested, the city enjoyed a $7.47 return in reduced flood losses. 

In addition, the city is an active member of the National Flood Insurance Program’s (NFIP) Community Rating System (CRS).  CRS is a voluntary incentive program that recognizes and encourages community floodplain management activities that exceed the minimum NFIP requirements.  As a result, flood insurance premium rates are discounted to reflect the reduced flood risk resulting from community actions.

The centerpiece of the city’s CRS risk communication outreach effort to property owners and other residents is a letter sent once or twice a year to those located in the most floodprone areas in the city.  In years where the threat of flooding is even more pronounced than usual, the frequency of contact is increased to a monthly or even weekly basis.  These messages can consist of updated flood forecasts, flood insurance information, safety tips, and any number of other timely facts designed to assist in the proactive preparation before a flooding event occurs.

Montevideo has also instituted long-term physical changes in the city to remove or reduce the threat of flooding. These efforts include acquisitions, floodproofing, and relocation.

For example, in 2001 the city moved its water plant to higher ground.  In years past, the floodplain location of the city’s water plant exposed it to the regular threat of flooding from the Chippewa River.  Its new location above the floodplain removes much of the risk of a loss of potable water during and after flooding events.

The community’s wastewater treatment plant was also originally built in the floodplain.  While the city could not physically move the plant, they were able to invest $1 million to floodproof the structure.  Improvement efforts also extended to the wastewater lines servicing Montevideo and the neighboring town of Watson, allowing it to operate during floods that in past years would have shut it down for weeks.

More significant than any award, is the test of how a community fares in a real event. After suffering only minimal infrastructure damages in the 2009 floods, Montevideo’s successful risk reduction efforts were evident. As city manager Steve Jones explained in comments to the Minnesota Senate, “It’s a great feeling to know that the mitigation efforts we have undertaken have saved not only someone’s home from damage but also have limited the flood fighting efforts and costs to the city, state, and federal governments”. 

Article provided by FEMA Region V

Cool Tools and Sites

FEMA’s National Flood Hazard Layer Viewer

http://fema.maps.arcgis.com/home/webmap/viewer.html?webmap=cbe088e7c8704464aa0fc34eb99e7f30

FEMA’s National Flood Hazard Layer (NFHL) is now available in a nice interactive viewer.  The best way to get to the site is to use the link above.  (FEMA has had links from the home page of the Map Service Center site - www.msc.fema.gov, but they are making that route more circuitous lately.)

You can see locations of Letters of Map Amendments (and other letters of map change) and download copies of the map change documents.  In the counties with Digital Flood Insurance Rate Maps (i.e., the counties with new maps since 2003), you can see the floodplain layers, including the floodways and 0.2% annual chance flood zones.

MN DNR’s MnTOPO Site Under the Minnesota Elevation Mapping Project, high-accuracy elevation data was collected for Minnesota using LiDAR technology. An innovative internet tool called MnTOPO was developed to display this detailed elevation data and other mapping resources for the exploration of Minnesota’s landscape on desktop PCs, tablets, and mobile phones. This web application allows users to view elevation data with several basemap layers including 2-foot contours created from the statewide LiDAR-derived 3-meter digital elevation model (DEM) and existing Minnesota floodplain data.  MnTOPO does not replace geographic information system applications (GIS) for working with floodplain data, but it is a handy tool for a quick visual assessment of the floodplain in relation to modern LiDAR-derived elevation products.  The options on MnTOPO have been streamlined to facilitate its use on mobile devices.  If an address or city is entered in the “Quick Search” box, it will zoom right down to the most detailed 2-foot contour view.  Users can then zoom up one level and turn on the floodplain data available in the Map Layers menu.  There they will find the legend for the modernized and unmodernized floodplain data and the ability to adjust the transparency to create different visual perspectives of the data. The “modernized” 1% annual chance (100-year) floodplain layer exists in the counties with Digital Flood Insurance Rate Maps (DFIRMs) or new FEMA maps created since 2003. The “unmodernized” 1% annual chance floodplain layer (aka Q3) is a less accurate digitization of floodplain boundaries completed with post disaster funding in the counties that had disaster declarations in 1993 (counties with subsequent DFIRMs are represented in the “modernized” layers).     Detailed instructions for the use of MnTOPO are available in the viewer by clicking the question mark.  Additionally, information highlighting the interpretation of floodplain features will be available on the DNR Floodplain Management web site.

Zoning Official Challenge

You are the local zoning official.  A resident calls and says they received an official looking letter from their bank.  The letter says they are in the Special Flood Hazard Area (SFHA) on the FEMA Flood Insurance Rate Map and must buy flood insurance in the next 45 days, or the bank will buy it for them.  The resident states they are WAY above the lake and cannot possibly be in the floodplain!   You’ve obtained the Base Flood Elevation (BFE) for the lake, and you can verify they are well above the ~1260’ BFE based on your map with 2-foot contours, but part of the house is in the mapped SFHA (i.e., the 100-year flood zone).  What do you tell the resident?  (Answers below)

What's Happening with Risk MAP?

FEMA’s national Risk Mapping, Assessment, and Planning (Risk MAP) program is intended to result in local activities that reduce risk from all hazards, within a watershed framework. In 2014, FEMA Region V and Minnesota agencies will be working with selected communities to identify local risk reduction activities that result in safer communities.  FEMA and the State will be facilitating meetings with community officials, mitigation consultants, and regional stakeholders to define desired local mitigation activity implementation steps, challenges, and needed technical support.  This effort is not intended to replace existing mitigation planning efforts, but to enhance them by identifying Federal and State tools, resources, and technical assistance that may enable progress on local risk reducing mitigation activities. 

In Minnesota, FEMA, DNR and the Department of Public Safety have begun working with STARR, FEMA’s consultant, to prepare for springtime meetings with the cities of Rochester, Montevideo, Granite Falls, Edina and 38 communities in the Twin Cities Mississippi Watershed.  In the summertime, meetings are planned with 11 communities in the Root River Watershed and 10 communities in the Zumbro River Watershed.  Additional meetings are planned with communities throughout the fall and winter.  The selected communities can anticipate hearing from STARR about meeting dates, and may also be contacted by telephone about mitigation interests, needs, and community goals in risk reduction.  Communities are invited to identify organizations and stakeholders to be involved in the effort, which is geared toward helping the community plan a risk-reducing activity that may include technical support from FEMA. 

If you have any questions about the program, please contact any of the following project partners:

• Suzanne Jiwani, MN DNR, at suzanne.jiwani@state.mn.us
• Jennifer Nelson, MN DPS, at jennifer.e.nelson@state.mn.us
• Tom Smith, FEMA Reg. V, at thomas.smith6@fema.dhs.gov
• Jon Johnson, STARR, at jonathan.johnson@atkinsglobal.com

Article provided by FEMA Region V

Evaluation of Variances in Floodplains Must Still Meet Federal Standards

Variances are a means for departing from the strict enforcement of an ordinance as applied to a specific property. Variances may be approved for area or dimensional standards such as structure setbacks, limitations on impervious surface, bluff protection, lot size, grading and filling, and other similar provisions, but only if all criteria under state law are met. State law prohibits allowing, by variance, any use that is not allowed in a zoning district.

Prior to 2010, Minnesota cities and counties used a criterion of “hardship” in variance decisions – if the property in question couldn’t be put to a reasonable use, it was considered an undue hardship.. In the 2010 decision Krummenacher v. City of Minnetonka, the Minnesota Supreme Court adopted a restrictive interpretation of ‘undue hardship’ to apply to variance requests.  The following year, the Legislature replaced the ‘undue hardship’ criterion with a ‘practical difficulties’ criterion for evaluation of variance applications.  The difference between ‘undue hardship’ as applied by the court, and ‘practical difficulties’, is the absence of the requirement that the landowner show the property cannot be put to a reasonable use but for the variance. As a consequence, in most cases the variance request must now meet a less rigorous set of criteria.  However, these new standards are not sufficient in floodplain districts (Significant Flood Hazard Areas (SFHAs) in FEMA terminology).

FEMA requires that variance applications in SFHAs meet the criteria found in 44 Code of Federal Regulations (CFR), Section 60.6.  Variances:

• Can only be granted for lots of 0.5 acre or less;
• Cannot cause any flood stage increase or additional threats to public safety;
• Cannot cause extraordinary public expense; and
• Must be the minimum necessary to afford relief.

 In addition, although Minnesota Rules Part 6120.6100 has been interpreted to allow the use of variances to modify permissible methods of flood protection as long as the level of floodproofing does not result in a loss of protection, doing so can result in increased flood insurance premiums.

Federal regulations take precedence over state regulations, and a failure to meet FEMA requirements can lead to a loss of coverage in the National Flood Insurance Program, so any variance application in a floodplain district must be evaluated according to the above criteria in addition to the “practical difficulties” standard. 

DNR’s sample floodplain ordinances include language that complies with FEMA’s criteria for variances.

For more guidance on variances in the Shoreland and Floodplain programs, please visit the DNR website.

Answers to Zoning Official Challenge:

(1)    The local official only determines if the structure is in the Special Flood Hazard Area, or SFHA, (i.e., the 1% annual chance or 100-year floodplain) for permit/zoning decisions.  The lender is responsible for determining whether the STRUCTURE is in the SFHA and subject to mandatory flood insurance.  If the STRUCTURE is in the mapped SFHA, the lender must require flood insurance unless a Letter of Map Amendment (LOMA) or other official map change document from FEMA determines that it is not in the SFHA based on more accurate data.

(2)    Advise the resident to purchase the National Flood Insurance Program (NFIP) flood insurance before the 45 day deadline, or the lender will “force place” insurance that is likely to be much more expensive.  Note: IF they are eligible to obtain a Letter of Map Amendment (LOMA), they can get the premium refunded once they get the LOMA.

(3)    In a case like this, where the map is inaccurate and structure appears to be above the Base Flood Elevation (BFE), advise the resident of the process to apply for a LOMA.  Where the contours show the structure at least 2 feet above the BFE, be aware that FEMA is accepting the 2-foot contours derived from LiDAR in lieu of a field survey in most of Minnesota.  More on LOMAs & using 2-foot contours