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CHAPTER 2 lEGAL ASPECTS OF: FlOO[),. PLAIN MANAGEMEI~T -- - This chapter provides a floodplain manager with an introduction to ':he major legal concepts which may be encountered when develop- ,ng, implementing, and administering a floodplain management pro- qram. It is not a substitute for legal advice. When legal questions arise, professionalle(lal guidance should be obtained. Federal and State Legislaltion The evolution of Federal flood-related legislation tlas brought about "n increasing emphasis on non-structural measures and flood hazard l1itigation activities. Congmss enacted the first Flood Control Act in 1917, That Act specifically charged the U.s. Army Corps of Engineers 'Nith responsibility for some flood control projects on the Mississippi and Sacramento F1ivers. Subsequent Flood Control Acts expanded the Corps' authorities and responsibilities with regard to flood control Jrojects and activities for specifiC communities. Through those authorities the Corps is designated a role in flood control projects Jefore a flood, in flood fights during a flood, and in a clean-up after a flood. In 1968, the National Flood Insurance Program was created to pro- {ide flood insurance at affordable rates upon the condition that l1ember communities institute floodplain management programs, In 1973 the program was expanded by requiring flood insurance on pro- Jerties directly or indirectly financed by federal enlities and by mak- ng participation in Hle NFII' a requirement for federal disaster assistance to local communities. The focus of State and Federal legislation has been to leave a role "or local governments to establish local programs. Federal legislation Jrovides local governments with several kinds of assistance--i.e., ~orps projects and technical assistance. the NFIP, disaster assistance--and it specifies some conditions local !lOVernments must l1eet to receive such assistance. It leaves responsibility for managing floodplains with local government. Similarly Colorado legislation also Greates floodplain management programs and provides local '~overnments with the authorities for floodplain management but has 'eft the responsibility for managing floodplains with local '~overnments. The concept of tile 1 OO-year floodplain is used throughout this l1anual. It was first adopted by the State of Colorado as part of Sec- tion 24-65-105, CRS 1973, as amended. whereby the Colorado Land Use Commission was charged with designating "critical areas in the state where a one hundred-year (storm return frequency) floodway should be identified,.. ," Section 24-65.1-103 defined a floodplain as an area "subject to floodin~1 as a result of the occurrence of an inter. l1ediate regional flood. , ,:' Section 24'65.1-403(3)(b) requires designation and approval of a floodplain by the Colorado Water Con- servation Soard (CWeS) prior to regulation by a local government. Legal Principles The most frequently used tool of floodplain mana(lement is flood- Jlain regulations. One of the most common concerns of local officials adopting and enforcing such regulations is the possibility of legal Ghallenges to their actions. This section will address that concern by discussing generally, 1) the legal basis for most floodplain -egulations and 2) the potential types of legal attacks on those -egulations. 7