WATER LAW
IS THERE A NEW SHERIFF IN TOWN? The Permitting of Irrigation Operations and Management by FEMA By Paul Arrington
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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 IRRIGATION LEADER
PHOTO BY BOB WICK, BUREAU OF LAND MANAGEMENT/FLICKR.
magine 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
