BUCKHANNON - Tension rose over Federal Emergency Management Agency flood plain requirements Thursday when a local property owner appeared before the Upshur County Commission to contest a letter he received from the county asking him to stop filling in a pond positioned within the flood plain.
Steve Holmes informed the commission he'd received the letter instructing him to stop filling in a drainage pond located near Upshur Cinema 6 and behind Buckhannon Toyota, near the intersection of U.S. Route 33 and Brushy Fork Road.
Holmes said the pond was constructed under a Department of Environmental Protection permit granted to Maple Moss, LLC, in the 1990s.
"When the permit was finished, we were told to fill the pond, that it's no longer needed for that development," Holmes told commissioners. "Evidently someone has said that that's a problem and it's within the flood plain and we have to have a county permit to do so.
"My point has been that the flood plain determination map provided by FEMA is very, very incorrect. That property was granted that permit to fill and it has been filled, all except the drainage pond and we should not have to get a (county) permit to comply with filling that mosquito-ridden pond."
Holmes said the pond was situated within a dike located above the flood plain level.
"I'm asking that we not have to acquire a (county) permit, just continue to fill the pond," he added.
Terri Jo Bennett, the county flood plain manager and addressing and mapping coordinator, said because a revised 2010 Federal Emergency Management Agency map indicates that the pond to which Holmes was referring is located in the flood zone, he must obtain permission from FEMA to fill the pond.
Bennett said FEMA uses engineering studies to determine what can and cannot be constructed on flood plain sites, depending on whether the proposed project will adversely affect neighboring property owners.
The county sent Holmes and the co-owners of the land a letter asking them to obtain a building permit for site development as well as a flood zone permit, Bennett said.
"We did send a cease-and-desist letter until the required documentation was received either from FEMA and/or the land owner," Bennett said. "They signed for the cease-and-desist letter in August of 2013 so since that time, they have known that they were not supposed to do any fill."
However, when Bennett visited the site earlier this week, "a bunch more dirt" had been dumped onto the property, she said.
"By continuing to fill (without a permit), you're affecting every single piece of property that's in Upshur County that is in the flood zone," Bennett told Holmes. "You're affecting the possibility of being able to build because you're going to ruin the chance of being able to get (flood) insurance, so it's a huge concern that I have as the flood plain manager for the county, so I think, in that fact, that county needs to be concerned with it."
Holmes replied that although dirt has been "stacked" on the property, it hasn't been pushed, compacted or utilized for filling purposes.
Commission President Donnie Tenney said the county commission must enforce and comply with FEMA flood plain requirements.
"If we don't comply with FEMA's requirement (regarding) building in the flood plain area, then all the residents of Upshur County have the potential of losing their flood insurance," Tenney said. "That's where we're under the gun as the county commission."
Bennett said because Holmes and his co-owners never applied for a building permit, she didn't know their intention was merely to fill in a pond.
"Again, I ask you guys, go and take a look at that property," she said, addressing the commission. "There is a bunch more dirt out there to me, it seems like the intent is they're going to raise the property level about 4 feet and then they're going to fill the pond, so you're defeating the purpose of asking the question, 'can you just fill the pond to the current level of the ground?'
"They're filling the property without the required paperwork and documentation from FEMA to do so, and that's my concern," Bennett continued.
Holmes told Bennett she wasn't an engineer and he didn't believe she was qualified to make such statements. He also asked if he would be permitted to fill the pond if he provides the county with a copy of the initial DEP permit issued to Maple Moss - the prior property owner - back in the 1990s.
Commissioner JC Raffety asked if there was some sort of grandfather clause contained in FEMA regulations that would enable pre-existing permits to be honored.
Bennett said no.
"You have to comply with FEMA's rules and regulations as of today," she said.
Compliance means builders must obtain a conditional letter of map amendment from FEMA to add in any fill to land in a flood zone, Bennett said.
"If there's an original study done by an engineer that says that the fill they're going to do there is not going to adversely affect the property owners, that needs to be submitted to FEMA to get the conditional letter of map amendment," she said.
Tenney asked Holmes to supply a copy of the original DEP permit, which the commission will review before determining how to proceed regarding Holmes' appeal.
Holmes again claimed the 2010 FEMA flood map was incorrect and "based on 1969 or 1970s technology."
"I think it's patently unfair not only in this county but in any other county where there's already existing buildings involved that because the new (2010) map came out based on old topographic information that didn't even take into account any previous fill that people have to prove again - and pay to prove again - that their property isn't going to flood," Holmes said. He claimed FEMA hasn't accounted for shifts in the ground.
Tenney agreed that certain sections of FEMA maps are "terribly inaccurate."
"When they update them, all they do is change the date on them," he said.
Holmes wanted to know how the county would penalize him if he filled the pond, despite having received a cease-and-desist letter.
Tenney replied, "The biggest problem it would cause us would be the possibility of everybody who has flood plain insurance in the county losing it. That's the stick they (FEMA) use on the commission."
Contact Katie Kuba by email at firstname.lastname@example.org. Follow her on Twitter at IMT_Kuba.