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kept there. There is no taking. It the reservoir bed is inadequately provided with an easement sufficient to carry the full storm situation impoundment, the widening is the fault of the reservoir, not the zoning agency. affect hydraulic oerformance of the floodway. Procedures are set out for obtaining permits in cate90ries of special exceotions. Effectively, developments whIch narrow the channel, or which remove some of its available capacity eithor flowage or storage are adequately subject to control by the zoning agency. It appears that an existing structu7e ~uch as an ?n-channel reservoir is a non-conforming use wIthIn the meanIng of Section 3.0. This is so since the new construction of similar structures would be within the coverage of Section 4.30 as affecting hydraulic efficiency. The only way a new dam could be built would be by special permit under Section 4.53. There is no limitation requiring continued use, howcver, and it is clear that such an appropriative effect would amount to a confiscatory regulation if it were attempted. Behind the roadway crossing or other "non-intentional" reservoir, however, the storm water retention may very well conflict with other intended land uses. It would appear that this situation may well result in a "taking" in particular situations. The clearest example would be that of a new roadway construction crossing the channel and changing the historic conditions. The impoundment of water is a direct effect of the structure, and the land involved Should be compensated for as another project cost. Rezoning to conform to the newly widened flood profile line should not affect this result, as it only makes clear the dimensions of the resulting flood plain, rather than, by bootstrap, justifying the widened zone. Thus the proper mode of analysis is to assume that the zoning follows the actual flood boundary and does not itself take, but to inquire whether any given channel alteration has amuunted to a taking. Accordingly, old construction which a long time ago widened the flood profile may have taken, but may now have acquired an ease- ment by prescription. This would clearly be 50 where actual flooding has occurred and eighteen years have ~un. The marginal case is where no actual flooding has yet occurred. 3. Areas of Weakness Under the Existing Flood Plain Regulation In general, the zoning regulation appears to be a good one. We do havc some specific remarks regarding its language and structure. The best approach is to cnact the flood plain zoning in exact conformity wit!\ the actual 100 year ::lood profi1!!' in- cluding artificially widened areas, without regard tc the adequacy of each structure's easement. If a conflict do~s exist, time "dll commence running if it hag not already and s..,ttlement of existinq problems can lJ" nn<iertal<:en. The major area of concern is the use of the~lood-Storage District in connection with Sanderson and WeIr Gulches. The power resides in the District's Board of Directors to designate certain areas of the flood plain as Flood-Storage Districts. This amounts to the power to allocate certain flood char-pel costs along th", channel, since con5tnlction on fill is allowed as a matter of right even if channel storage caoacitv is reduced. Whether the channel is to be narrower in.a certain area and correspondingly broad in a downstream arca is the na~urc of thc decision that the Board is given tr.c disc.::'ctic:'", ':.0 :r.akc. This c':mtc~pla':.es physical r-:l-:lm for the allocation. If downstream development has already narrowed thc channel to the extcnt that all upstream storage must be preserved, then little room exists for the exercise of the discretion. On this criterion, the board should refuse to designate a Storage District. The initial analysis of Sanderson and Weir Gulches would appear to reflect such a situation. No doubt the board will approach any such designation with careful scrutiny as channel storage appears to be the critical resource remaining on these gulches. 2. The Effect of Flood-plain Zoning as Applied The zoning limits and regulates the development within its boundaries. It prevents encroachment of development in- consistent with the flood use of the channel, It does not give any title in the zone to the district or municipality and it docs not require the perpetual maintenance of existing structures. The basic reaulatory standarn is Ret out i~ ~~cti~n 4.3 of the Flood Plain Regulation. It operates only by way of prohibiting any uSeS of flood plain land that adversely , 8