Subpart A. Flood Damage Prevention

42-231.Statutory Authorization, Findings of Fact, Purpose and Objectives

The following sections are incorporated herein by reference and considered to be a part of the regulations of this Article VIII, Subpart A: §42-307 (Henderson County Flood Damage Prevention Board), §42-311 (Henderson County Floodplain Administrator),§42-350 (Floodplain Development Permits), §42-355 (Special Fill Permits), §42- 368 (Variances (Flood Damage Prevention), §42-378 (Violations of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention), §42-379 (Appeals), and §42-391 (Definitions).

42-231.1 Statutory Authorization

The Legislature of the State of North Carolina has in Part 6 of Article 21 of Chapter 143 and Article 6 of Chapter 153A; and Article 7, 9, and 11 of Chapter 160D of the North Carolina General Statutes (NCGS), delegated local governmental units the authority to adopt regulations designed to promote the public health, safety, and general welfare.

42-231.2 Findings
  1. The flood prone areas with the jurisdiction of Henderson County are subject to periodic inundation which results in loss of life, property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures of flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.
  2. These flood losses are caused by the cumulative effect of obstructions in floodplains causing increases in flood heights and velocities and by the occupancy in flood prone areas of uses vulnerable to floods or other hazards.
42-231.3 Objectives

The objectives of this Subpart A are to:

  1. Protect human life, safety and health;
  2. Minimize expenditure of public money for costly flood control projects;
  3. Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;
  4. Minimize prolonged business losses and interruptions;
  5. Minimize interruptions and disruptions of family life caused by flooding;
  6. Minimize damage to public facilities and utilities (i.e. water and gas mains; electric, telephone and sewer lines; and streets and bridges that are located in flood prone areas;
  7. Help maintain a stable tax base by providing for the sound use and development of flood prone areas;
  8. Permit and encourage the retention of open land uses which will be so located and designed as to constitute a harmonious and appropriate part of the physical development of the community and which will not impede the flow of flood waters;
  9. Prevent victimization by ensuring that potential land, home and business buyers are notified that property is located in an identified flood hazard area; and
  10. Prevent increased flood levels caused by unwise floodplain development.
  11. Minimize damage to private and public property due to flooding;
  12. Ensure that potential buyers are aware that property is in a Special Flood Hazard Area;
  13. Maintain the natural and beneficial functions of the floodplains; and
  14. Make flood insurance available to the community through the National Flood Insurance Program.
42-231.4 Purpose

It is the purpose of this Subpart A to promote public health, safety, and general welfare and to minimize public and private losses due to flood conditions within flood prone areas by provisions designed to:

  1. Restrict or prohibit uses that are dangerous to health, safety, and property due to water or erosion hazards or that result in damaging increases in erosion, flood heights or velocities;
  2. Require that uses vulnerable to floods, including facilities that serve such uses, be protected against flood damage at the time of initial construction;
  3. Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of floodwaters;
  4. Control filling, grading, dredging, and all other development that may increase erosion or flood damage; and
  5. Prevent or regulate the construction of flood barriers that will unnaturally divert flood waters or which may increase flood hazards to other lands.
42-232. General Provisions
42-232.1 Lands to Which this Article VIII, Subpart A Applies

The provisions of this Subpart A shall apply to all Special Flood Hazard Areas within (1) the unincorporated areas of Henderson County lying outside the extraterritorial jurisdiction of any municipality, and (2) the incorporated areas and extraterritorial jurisdiction of any municipality specifically requesting its enforcement by Henderson County upon the agreement of the Henderson County Board of Commissioners, in accordance with the Flood Insurance Study (FIS) and its accompanying Flood Insurance Rate Map(s) (FIRM), for Henderson County dated October 2, 2008. (In making such a request, the municipality must comply with the requirements of NCGS §160D-923). Unless otherwise provided herein, in no instance shall this subpart apply to any area which is not duly established and identified as a Special Flood Hazard Area, either by the methods listed in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas), or as shown on the Flood Insurance Study (FIS) and its accompanying Flood Insurance Rate Map(s) (FIRM), for Henderson County. The Chapter and map shall be on file in the office of Henderson County Floodplain Administrator.

42-232.2 Basis for Establishing the Special Flood Hazard Areas

The Special Flood Hazard Areas are those identified under the Cooperating Technical State (CTS) agreement between the State of North Carolina and the Federal Emergency Management Agency (FEMA) in its Flood Insurance Study (FIS) and its accompanying Flood Insurance Rate Map(s) (FIRM), for Henderson County dated October 2, 2008, which are adopted by reference and declared to be part of this Chapter, and all revisions thereto.  

NOTE: If detailed topographic mapping or surveying shows that a building site adjacent to a Special Flood Hazard Area is below the Base Flood Elevation, it must be regulated as being within the Special Flood Hazard Area, even if not shown within the boundaries of the Special Flood Hazard Area shown in the FIRM or any accompanying maps. For regulatory purposes, flood elevations are the ruling guideline.

42-232.3 Establishment of Floodplain Development Permit

A Floodplain Development Permit shall be required in conformance with the provisions of this Subpart A and §42- 349 (Floodplain Development Permits) prior to the commencement of any development activities within Special Flood Hazard Areas as determined in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas).

42-232.4 Compliance

No structure or land shall hereafter be located, extended, converted, altered, or developed in any way without full compliance with the terms of this subpart and other applicable regulations.

42-232.5 Abrogation and Greater Restrictions
  1. Subpart A is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this Subpart A and another regulation conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
  2. The following may impose additional regulations for land uses and structures located in any portion of a floodplain and are hereby adopted and incorporated into this Subpart A by reference as though they were copied herein fully. However, where this Subpart A and another regulation conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
    1. The International Building Codes, as adopted by the North Carolina Building Code Council and enforced by State and local code enforcement officials, and including all volumes.
    2. The Southern Building Code Congress International “SBCCI Standard for Floodplain Management” SSTD 4-89,
    3. The US Army Corps of Engineers “Flood Proofing Regulations” –  EP 11651-2-314, December 15, 1995.
    4. Federal Emergency Management Agency “Managing Floodplain Development in Approximate Zone A Areas,” April, 1995.
42-232.6 Other Approval Required
  1. The granting of a permit under the provisions of this Subpart A and §42-349 (Floodplain Development Permits) or §42-354 (Special Fill Permits) shall in no way affect any other type of approval required by any other statute or ordinance of the State or any political subdivision of the State, or of the United States, but shall be construed as an added requirement.
  2. No permit for the construction of any structure to be located within a floodplain shall be granted unless the applicant has first obtained the permit required by this Subpart A.
42-232.7 Interpretation

In the interpretation and application of this Subpart A, all provisions shall be:

  1. Considered as minimum requirements;
  2. Liberally construed in favor of the governing body; and
  3. Deemed neither to limit nor repeal any other powers granted under State statutes.
42-232.8 Warning and Disclaimer of Liability

The degree of flood protection required by this Subpart A is considered reasonable for regulatory purposes and is based on scientific and engineering consideration. Larger floods can and will occur. Actual flood heights may be increased by man-made or natural causes. Subpart A does not imply that land outside the Special Flood Hazard Areas or uses permitted within such areas will be free from flooding or flood damages. Subpart A shall not create liability on the part of Henderson County or by any officer or employee thereof for any flood damages that result from reliance on this Subpart A or any administrative decision lawfully made hereunder.

42-233. Administration

The provisions of Subpart A, related to administration can be found in the following sections:

  1. Designation, Duties and Responsibilities of Floodplain Administrator. (See §42-310 (Henderson County Floodplain Administrator)).
  2. Floodplain Development Permit Application Requirements and Fees. (See §42-349 - Floodplain Development Permits).
  3. Special Fill Permit Procedures and Fees. (See §42-354 - Special Fill Permits).
  4. Variance Procedures. (See §42-368 (Variances - Flood Damage Prevention).
  5. Appeal Procedures. (See §42-379 - Appeals).
  6. Corrective Procedures and Penalties for Violation. (See §42-378 (Violations of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention).
42-234. Flood Hazard Reduction
42-234.1 General Standards

In all Special Flood Hazard Areas the following provisions are required.

  1. In the flood fringe area as indicated on the FIRM,  no more than 20 percent of the total of the flood fringe area may be filled, except that additional fill may be permitted in the flood fringe pursuant to a special fill permit (See §42-354 (Special Fill Permits)).
  2. In the floodway area as indicated on the FIRM, fill may be permitted in the floodway pursuant to a special fill permit (See §42-354 (Special Fill Permits))
  3. All new construction and substantially improvements shall be:
    1. Designed (or modified) and adequately anchored to prevent flotation, collapse, or lateral movement of the structure.
    2. Constructed with materials and utility equipment resistant to flood damage.
    3. Constructed by methods and practices that minimize flood damages.
  4. All new utility equipment, substations, lines and other materials used in the provision of services to the public such as telephone, electricity, natural gas, and cable television shall be located outside a floodplain, unless no viable alternative exists.
  5. Electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding to the Regulatory Flood Protection Elevation. These include but are not limited to HVAC equipment, water softener units, bath/kitchen fixtures, ductwork, electrical/gas meter panels/boxes, utility/cable boxes, appliances (i.e. washers, dryers, refrigerator, etc.), hot water heaters, electric outlets/switches.
  6. All new and replacement water supply systems shall be located outside the Special Flood Hazard Area, unless no other viable alternative exists. Where they must be placed in the SFHA the systems shall be designed to minimize or eliminate infiltration of flood waters into the system, and also to meet all other applicable State and local requirements.
  7. All new and replacement sanitary sewage and on-site waste disposal systems shall be located outside the Special Flood Hazard Area, unless no other viable alternative exists. Where they must be placed in the SFHA the systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters, and also to meet all other applicable State and local requirements.
  8. On-site waste disposal systems constructed near or adjoining Special Flood Hazard Areas shall be located and constructed to avoid impairment to them or contamination from them during flooding.
  9. No new private wells shall be located within the Special Flood Hazard Area unless no viable alternative exists and that such wells meet all other applicable state and local requirements. Private wells constructed near or adjoining Special Flood Hazard Areas shall be located and constructed to minimize or eliminate infiltration of flood water into the system.
  10. Any alteration, repair, reconstruction, or improvements to a structure which is in compliance with the provisions of this Subpart A, shall meet the requirements of new construction as contained in this Subpart A.
  11. Any fill material on which a structure is located shall:
    1. Be extended to grade ten (10) feet beyond the limits of the structure foundation;
    2. Be graded to drain;
    3. Be protected against erosion;
    4. Have a side slope no steeper than two (2) feet horizontal to one (1) foot vertical;
    5. Not contain any contaminated, toxic or hazardous materials; and
    6. Be approved before placement.
  12. Nonconforming structures or other development may not be enlarged, replaced, or rebuilt unless such enlargement or reconstruction is accomplished in conformance with the provisions of this Subpart A. Provided, however, nothing in this subpart shall prevent the repair, reconstruction, or replacement of a structure existing on the original effective date of these regulations (July 5, 2005) and located totally or partially within the floodway, non-encroachment area, or stream setback, provided that the bulk of the structure below the Regulatory Flood Protection Elevation in the floodway, non-encroachment area, or stream setback is not increased and provided that such repair, reconstruction, or replacement meets all of the other requirements of this Subpart A, and nothing in this Subpart A shall prevent the permitted maintenance, repair, reconstruction or replacement of agriculture-related water diversion structures where the permit for the same is granted by other than Henderson County. No permit shall be required from Henderson County to reconstruct agricultural development which pre-exists the original effective date of these regulations (July 5, 2005).
  13. The following are permitted uses for the flood fringe: all uses otherwise permitted by the applicable land use regulations, so long as such uses are in compliance with the terms of this Subpart A.
  14. New solid waste disposal facilities and sites, hazardous waste management facilities, solid waste sites, salvage yards, and chemical storage facilities shall not be permitted in Special Flood Hazard Areas, except by variance as specified in Subpart A and §42-368 (Variances (Flood Damage Prevention)). A structure or tank for chemical or fuel storage incidental to an allowed use, including but not limited to agriculture, or to the operation of a water treatment plant or wastewater treatment facility may be located in a Special Flood Hazard Area only if the structure or tank is either elevated or flood proofed to at least the Regulatory Flood Protection Elevation and certified according to §42-349 (Floodplain Development Permits) C(2) (Certification Requirements).
  15. All subdivision and other development proposals shall:
    1. Be consistent with the need to minimize flood damage;
    2. Have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage;
    3. Have adequate drainage provided to reduce exposure to flood hazards; and
    4. Have received all necessary permits from those governmental agencies for which approval is required by Federal or State law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334.
  16. When a structure is partially located in a Special Flood Hazard Area, the entire structure shall meet the requirements for new construction and substantial improvements.
  17. When a structure is located in multiple flood hazard zones or in a flood hazard risk zone with multiple Base Flood Elevations (BFEs), the provisions for the more restrictive flood hazard risk zone and the highest Base Flood Elevation (BFE) shall apply.

 

42-234.2 Specific Standards

In all Special Flood Hazard Areas where BFE data has been provided, as set forth in this Subpart A, the following provisions in addition to those required in §42-234.1 (General Standards) are required:

  1. Residential Construction. New construction and substantial improvement of any residential structure (including manufactured/mobile homes) shall have the reference level, including basement, elevated no lower than the Regulatory Flood Protection Elevation.
  2. Nonresidential Construction. New construction and substantial improvement of any nonresidential structure shall have the reference level, including basement, elevated no lower than the Regulatory Flood Protection Elevation. Structures located in A, AE and AO Zones may be flood proofed to the Regulatory Flood Protection Elevation in lieu of elevation provided that all areas of the structure, together with attendant utility and sanitary facilities, below the required flood protection elevation are watertight with walls substantially impermeable to the passage of water, using structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effect of buoyancy. For AO Zones, the flood proofing elevation shall be in accordance with §42-234.7 (Standards for Areas of Shallow Flooding (Zone AO)). A registered professional engineer or architect shall certify that the flood proofing standards of this subsection are satisfied. Such certification shall be provided to the Floodplain Administrator as set forth in §42-349 (Floodplain Development Permits) C (2) (Certification Requirements), along with operational plan and the maintenance and inspection plan.
  3. Manufactured/Mobile Homes. No manufactured/mobile homes shall be permitted except replacement manufactured/mobile homes in an existing manufactured home park, existing manufactured home subdivision, or replacement manufactured/mobile homes on an individual parcel, provided the following conditions are met:
    1. Manufactured/mobile homes shall be elevated so that the reference level of the manufactured/mobile home is no lower than the Regulatory Flood Protection Elevation.
    2. Manufactured/mobile homes shall be securely anchored to an adequately anchored foundation to resist flotation, collapse, and lateral movement in accordance with the State of North Carolina Regulations for Manufactured Homes adopted by the Commissioner of Insurance pursuant to NCGS §143-143.15. Additionally, when the elevation would be met by an elevation of the chassis 36 inches or less above the grade at the site, the chassis shall be supported by reinforced piers or engineered foundation system. When the elevation of the chassis is above 36 inches in height, an engineering certification is required.
    3. All enclosures or skirting shall be in accordance with §42-234.2 (Specific Standards) D (Elevated Structures).
    4. An evacuation plan must be developed for evacuation of all residents of all substantially improved or substantially damaged manufactured/mobile home parks or subdivisions located within flood prone areas. This plan shall be filed with and approved by the Floodplain Administrator and the local Emergency Management coordinator.
  4. Elevated Structures. Enclosed areas, of new construction or substantially improved structures, which are below the Regulatory Flood Protection Elevation shall:
    1. Not be designed to be used for human habitation, but shall only be used for parking of vehicles, structure access, or limited storage of maintenance equipment used in connection with the premises. Access to the enclosed area shall be the minimum necessary to allow for parking of vehicles (garage door) or limited storage of maintenance equipment (standard exterior door) or entry to the living area (stairway or elevator). The interior portion of such enclosed area shall not be partitioned or finished into separate rooms, except to enclose storage areas;
    2. Be constructed entirely of flood resistant materials at least to the Regulatory Flood Protection Elevation;
    3. Include, in Zones A, AO and AE, flood openings to automatically equalize hydrostatic flood forces on walls by allowing for the entry and exit of floodwaters. To meet this requirement, the openings must either be certified by a professional engineer or architect or meet or exceed the following minimum design criteria;
      1. Provide a minimum of two (2) openings on different sides of each enclosed area subject to flooding;
      2. The total net area of all openings must be at least one (1) square inch for each square foot of each enclosed area subject to flooding;
      3. If a structure has more than one (1) enclosed area, each area must have flood openings to allow floodwater to automatically enter and exit;
      4. The bottom of all required openings shall be no higher than one (1) foot above the adjacent grade; and,
      5. Flood openings may be equipped with screens, louvers, or other opening coverings or devices provided they permit the automatic flow of floodwaters in both directions.

Foundation enclosures made of flexible skirting are not considered enclosures for regulatory purposes, and, therefore, do not require openings. Masonry or wood skirting, regardless of structural status, is considered an enclosure and requires openings as outlined above.

  1. Additions/Improvements.
    1. Additions and/or improvements to pre-FIRM structures where the addition and/or improvements in combination with any interior modifications to the existing structure are:
      1. Not a substantial improvement, the addition and/or improvements must be designed to minimize flood damages and must not be any more nonconforming than the existing structure.
      2. A substantial improvement, both the existing structure and the addition and/or improvements must comply with the standards for new construction.
    2. Additions to post-FIRM structures with no modifications to the existing structure other than standard door in the common wall shall require only the addition to comply with the standards for new construction.
    3. Additions and/or improvements to post-FIRM structures where the addition and/or improvements in combination with any interior modifications to the existing structure are:
      1. Not a substantial improvement, the addition and/or improvements only must comply with the standards for new construction.
      2. A substantial improvement, both the existing structure and the addition and/or improvements must comply with the standards for new construction.
    4. Where a fire wall or independent perimeter load-bearing wall is provided between the addition and the existing structure, the addition(s) shall be considered a separate structure and only the addition must comply with the standards for new construction.
  2. Recreational Vehicles. Recreational vehicles (RVs) shall either:
    1. Be on site for fewer than 180 consecutive days and be fully licensed and ready for highway use (a recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities, and has no permanently attached additions); or
    2. Meet all the requirements for new construction. (See also §42-61 (Supplemental Requirements to the Table of Permitted and Special Uses) SR 4.15 (Recreational Vehicle Park).
  3. Temporary Nonresidential Structures. Prior to the issuance of a Floodplain Development Permit for a temporary structure, applicants must submit to the Floodplain Administrator a plan for the removal of such structure(s) in the event of a hurricane, flash flood or other type of flood warning notification. The following information shall be submitted in writing to the Floodplain Administrator for review and written approval:
    1. A specified time period for which the temporary use will be permitted, time specified may not exceed three (3) months, renewable up to one (1) year;
    2. The name, address, and phone number of the individual responsible for the removal of the temporary structure;
    3. The timeframe prior to the event at which a structure will be removed (i.e. minimum of 72 hours before landfall of a hurricane or immediately upon flood warning notification);
    4. A copy of the contract or other suitable instrument with the entity responsible for physical removal of the structure insuring the availability of removal equipment when needed; and
    5. Designation, accompanied by documentation, of a location outside the Special Flood Hazard Area to which the temporary structure will be moved.
  4. Accessory Structures. When accessory structures (sheds, detached garages, etc.) are to be placed within a Special Flood Hazard Area, the following criteria shall be met:
    1. Accessory structures shall not be used for human habitation (including working, sleeping, living, cooking or restroom areas);
    2. Accessory structures shall not be temperature controlled;
    3. Accessory structures shall be designed to have low flood damage potential;
    4. Accessory structures shall be constructed and placed on the structure site so as to offer the minimum resistance to the flow of floodwaters;
    5. Accessory structures shall be firmly anchored in accordance with §42-234.1 (General Standards) B(1);
    6. All service facilities such as electrical and heating equipment shall be installed in accordance with 42-234.1 (General Standards) B(2);
    7. Flood openings to facilitate automatic equalization of hydrostatic flood forces shall be provided below Regulatory Flood Protection Elevation in conformance with §42-234.2 (Specific Standards) D (Elevated Structures) (3);
    8. An accessory structure with a footprint less than 150 square feet does not require an elevation or flood proofing certificate (a Floodplain Development Permit is still required). Elevation or flood proofing certifications are required for all other accessory structures in accordance with §42-349 (Floodplain Development Permits) C (2) (Certification Requirements).
42-234.3 Subdivisions, Manufactured Home Parks, Manufactured Home Subdivisions, And Other Residential Development

No new manufactured home parks or manufactured home subdivisions shall be allowed within a Special Flood Hazard Area (except that where real estate located within a Special Flood Hazard Area which is a part of such Manufactured Home Park or subdivision and upon which no development has occurred can be considered as “open space” within such park or subdivision). In addition, manufactured home parks and manufactured home subdivisions existing on the date of original enactment (July 5, 2005) of this Subpart A may not be expanded. All other subdivisions or other residential development located wholly or in part within a Special Flood Hazard Area shall:

  1. Be consistent with the need to minimize flood damage;
  2. Have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage;
  3. Have adequate drainage provided to reduce exposure to flood hazards; and,
  4. Have Base Flood Elevation (BFE) data provided if development is greater than the lesser of five (5) acres or 50 lots / manufactured/mobile home sites. Such Base Flood Elevation (BFE) data shall be adopted by reference in accord with §42-232.2 (Basis for Establishing the Special Flood Hazard Areas) in implementing this Subpart A.
42-234.4 Standards for Floodplains Without Established Base Flood Elevations

Within the Special Flood Hazard Areas designated as Approximate Zone A and established in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas), where no BFE data has been provided by FEMA, the following provisions, in addition to §42-234.1 (General Standards), shall apply:

  1. No encroachments, including fill, new construction, substantial improvements or new development shall be permitted within a distance of 20 feet from each side of the stream measured from the top of the bank or five (5) times the width of the stream, whichever is greater, unless certification with supporting technical data by a registered professional engineer is provided demonstrating that such encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.
  2. The BFE used in determining the Regulatory Flood Protection Elevation shall be determined based on one (1) of the following criteria set in priority order:
    1. When BFE data is available from other sources, such as Federal, State or other, all new construction and substantial improvements within such areas shall also comply with all applicable provisions of this subpart and shall be elevated or flood proofed in accordance with standards in this §42-234.1 (General Standards) and §42-234.2 (Specific Standards).
    2. When floodway or non-encroachment area data are available from a Federal, State, or other source, all new construction and substantial improvements within floodway and non-encroachment areas shall also comply with the requirements of §42-234.2 (Specific Standards) and §42-234.6 (Floodways and Non-Encroachment Areas).
    3. When a subdivision, manufactured home park or other development proposal is greater than five (5) acres or has more than 50 lots/manufactured home sites/spaces, BFE data shall be provided. Such BFE data shall be adopted by reference in accordance with §42-232.2 (Basis for Establishing the Special Flood Hazard Areas).
    4. When BFE data is not available from a Federal, State, or other source as outlined above, the reference level shall be elevated or flood proofed to or above the Regulatory Flood Protection Elevation as defined in Article XIV (Definitions).
42-234.5 Standards for Riverine Floodplains With Base Flood Elevations but Without Established Floodways or Non-encroachment Areas

Along rivers and streams where BFE data is provided by FEMA or is available from another source but neither floodway nor non-encroachment areas are identified for a Special Flood Hazard Area on the FIRM or in the FIS reports, the following requirements shall apply to all development within such areas:

  1. Standards outlined in §42-234 (Flood Hazard Reduction); and
  2. Until a regulatory floodway or non-encroachment area is designated, No encroachments, including fill, new construction, substantial improvements, or other development, shall be permitted unless certification with supporting technical data by a registered professional engineer is provided demonstrating that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one (1) foot at any point within the community.
42-234.6 Floodways or Non-encroachment Areas

Areas designated as floodways or non-encroachment areas are located within the Special Flood Hazard Areas established in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas). The floodways and non- encroachment areas are extremely hazardous areas due to the velocity of floodwaters that have erosion potential and carry debris and potential projectiles. The following provisions, in addition to the standards outlined in §42-234.1 (General Standards) and §42-234.2 (Specific Standards), shall apply to all development within such areas.

  1. No encroachments, including fill, new construction or substantial improvements shall be permitted unless:
    1. The structure is a functionally dependent facility, excluding enclosed structures, new water and sewer lines provided no viable alternative exists, recreational uses (excluding enclosed structures) and stream bank restoration projects, provided the requirements of §42-234.2 (Specific Standards) and §42-234.6 (Floodways or Non-Encroachment Areas) A (2) are met;
    2. The parcel owner first having obtained and submitted to the Floodplain Administrator an acceptable certification by a registered professional engineer proving that the anticipated encroachment(s) shall not result in any increase in the elevation of the regulatory flood during an occurrence of the base flood. The Floodplain Administrator shall require documentation of the certification which shall include either:
      1. A completed “engineering no-rise” certification form as published by FEMA, or acceptable alternative form approved by FEMA together with:
        1. Technical documentation in the form of detailed site and construction plans, showing that all requirements of this Subpart A are met;
        2. Technical documentation in the form of hydraulic analysis of the existing and proposed conditions. This documentation shall be either: complete runs of existing and proposed conditions using the HEC II/HEC-RAS step backwater analysis computer program as prepared by the US Army Corps of Engineers for the analysis of flow plan hydraulics; or
        3. An alternative method currently approved by FEMA for use in the revision process for FEMA flood maps. In this case, the engineer shall provide a letter from FEMA indicating that the method used is acceptable; or
      2. A Conditional Letter of Map Revision (CLOMR) which has been approved by FEMA. A Letter of Map Revision (LOMR) must also be obtained upon completion of the proposed encroachment.
  2. If 234.6 (Floodways or Non-encroachment Areas) A is satisfied, all development shall comply with all applicable flood hazard reduction provisions of this Subpart A.
  3. No manufactured/mobile homes shall be permitted, except replacement manufactured/mobile homes in an existing manufactured home park or subdivision, provided the following provisions are met:
    1. The anchoring and the elevation standards of §42-234.2 (Specific Standards) C (Manufactured/Mobile Homes); and
    2. The no encroachment standard of §42-234.6 (Floodways of Non-encroachment Areas).
42-234.7 Standards for Areas of Shallow Flooding (Zone AO)

Located within the Special Flood Hazard Areas established in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas) designated as shallow flooding areas. These areas have special flood hazards associated with base flood depths of one (1) to three (3) feet where a clearly defined channel does not exist and where the path of flooding is unpredictable and indeterminate. In addition to §42-234.1 (General Standards) and §42-234.2 (Specific Standards), all new construction and substantial improvements shall meet the following requirements:

  1. The reference level shall be elevated at least as high as the depth number specified on the FIRM, in feet, plus a freeboard of two (2) feet, above the highest adjacent grade; or at least four (4) feet above the highest adjacent grade if no depth number is specified.
  2. Nonresidential structures may, in lieu of elevation, be flood proofed to the same level as required by §42-234.7 (Standards for Areas of Shallow Flooding (Zone AO)) (1) so that the structure, together with attendant utility and sanitary facilities, below that level shall be watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. Certification is required in accordance with §42-349 (Floodplain Development Permits) C (2) (Certification Requirements) and §42-234.2 (Specific Standards) B (Nonresidential Construction).
  3. Adequate drainage paths shall be provided around structures on slopes, to guide flood waters around and away from the structures.
42-235. Legal Status
42-235.1 Effect on Rights and Liabilities Under the Existing Flood Damage Prevention Regulations

This Subpart A in part comes forward by re-enactment of some of the provisions of the Flood Damage Prevention Ordinance enacted July 5, 2005 as amended, and it is not the intention to repeal but rather to re-enact and continue to enforce without interruption of such existing provisions, so that all rights and liabilities that have accrued thereunder are reserved and may be enforced. The enactment of this ordinance shall not affect any action, suit or proceeding instituted or pending. All provisions of the Flood Damage Prevention Ordinance of Henderson County enacted on July 5, 2005, as amended, which are not reenacted herein are repealed. The dates of the initial flood damage prevention ordinance for each municipal jurisdiction within Henderson County are as follows:

  1. Town of Fletcher, dated January 13, 2003
  2. City of Hendersonville, dated January 7, 1982
  3. Town of Laurel Park, dated December 20, 2005
42-235.2 Effect on Outstanding Floodplain Development Permits

Nothing herein contained shall require any change in the plans, construction, size or designated use of any development or any part thereof for which a Floodplain Development Permit has been granted by the Floodplain Administrator or his or her authorized agents before the time of passage of this Subpart A; provided, however, that when construction is not begun under such outstanding permit within a period of six (6) months subsequent to passage of this subpart or any revision thereto, construction or use shall be in conformity with the provisions of this Subpart A.

42-235.3 Effect on Outstanding Building Permits

Nothing herein contained shall require any change in the plans, construction, size or designated use of any development or any part thereof for which a Building Permit has been granted by the Building Codes Administrator or his authorized agents before the time of passage of this Subpart A (July 5, 2005); provided, however, that when construction is not begun under such outstanding permit within a period of six (6) months subsequent to passage of this subpart or any revision thereto, construction or use shall be in conformity with the provisions of this Subpart A.

42-235.4 Effective Date

Subpart A originally became effective 30 July 2005 as amended through 1 October 2008.

42-236. Reserved