A.R.S. tit. 48 ch. 21 — Arizona Revised Statutes Title 48 Chapter 21 — Flood Control Districts

48-3601. Definitions In this article, unless the context otherwise requires: 1. "Area of jurisdiction" means the incorporated and unincorporated areas of the county, including public lands, excluding those incorporated areas of cities or towns which have elected to assume floodplain management powers and duties pursuant to section 48-3610. 2. "Board" means the board of directors of a flood control district organized under this article. 3. "Development" means any man-made change to improved or unimproved real estate, including buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. 4. "District" means a flood control district organized pursuant to this article. 5. "Flood" or "floodwaters" means a temporary rise in water level including groundwater or overflow of water onto lands not normally covered by water. 6. "Floodplain" means any areas in a watercourse which have been or may be covered partially or wholly by floodwater from the one hundred-year flood. 7. "Floodplain regulations" means the codes, ordinances and other regulations adopted pursuant to this article relating to the use of land and construction within the floodway and floodplain areas. 8. "Floodway" means the area of a river or other watercourse and the adjacent land areas necessary in order to discharge the one hundred-year flood without cumulatively increasing the water surface elevation more than one foot. 9. "One hundred-year flood" or "base flood" means a flood that has a one per cent chance of being equalled or exceeded in a one year period, based on the criteria established by the director of water resources. 10. "Person" means an individual or the individual's agent, a firm, partnership, association or corporation, or an agent of the aforementioned groups, or this state or its agencies or political subdivisions. 11. "Regulatory flood elevation" means the elevation which is one foot above the base flood elevation for a watercourse for which the base flood elevation has been determined and shall be as determined by the criteria developed by the director of water resources for all other watercourses. 12. "Watercourse" means a lake, river, creek, stream, wash, arroyo, channel or other topographic feature on or over which waters flow at least periodically. Watercourse includes specifically designated areas in which substantial flood damage may occur. 48-3602. Organization of county flood control district A. Each county shall organize a county flood control district to include and govern its area of jurisdiction. B. The county board of supervisors shall be the board of directors of the district. The directors shall not receive compensation for their services as such but are entitled to reimbursement for their necessary expenses in attending district meetings and for necessary expenses incurred in traveling within and without this state if necessary to carry on the affairs of the district. C. County flood control districts are in addition to any flood protection district organized pursuant to chapter 18, article 10 of this title, and the mere existence of a county flood control district does not of itself affect the existence or operation of any flood protection district organized pursuant to chapter 18, article 10 of this title. 48-3603. Powers, duties and immunities of district and board; exemptions A. A county flood control district organized under this article is a political taxing subdivision of this state and has all the powers, privileges and immunities granted generally to municipal corporations by the constitution and laws of this state, including immunity of its property and bonds from taxation. B. The board of directors shall exercise all powers and duties in the acquisition and operation of the properties of the district and in carrying out its regulatory functions under this article as are ordinarily exercised by the governing body of a municipal corporation. C. A district organized under this article, acting through its board of directors, may: 1. Acquire by eminent domain, purchase, donation, dedication, exchange or other lawful means rights-of-way for and construct, operate and maintain flood control works and storm drainage facilities within or without the district for the benefit of the district. 2. Acquire by eminent domain, purchase, donation, dedication, exchange or other lawful means and dispose of by sale, exchange or other lawful means real and personal property within the boundaries of the district. 3. Contract and join with this state, the United States or any other flood control district or floodplain board, municipality, political subdivision, governmental agency, irrigation or agricultural improvement district, association, corporation or individual in acquiring, constructing, maintaining and operating flood control works, and regulating floodplains. 4. Enter into contracts of indemnity to indemnify this state, the United States or any other flood control district, municipality, political subdivision, governmental agency, irrigation or agricultural improvement district, association, corporation or individual against liability by virtue of injuries, losses or damages occurring through the use of their facilities, structures, streets, rights-of-way or properties in connection with the operation of a flood control district and the regulation of floodplains. 5. Acquire and maintain existing flood control and drainage facilities within the district for the benefit of the district if mutually agreeable to the owners of such facilities. 6. Acquire, convert and maintain surplus irrigation facilities as storm drainage facilities if mutually agreeable to owners of such facilities. 7. Construct, maintain and operate flood control and storm drainage facilities and regulate floodplains in the district by agreement with this state, counties, other municipal corporations, political subdivisions and other persons and reimburse the agencies or persons for the cost of the work. 8. On the dissolution of any other flood control district, assume the assets and obligations of the other district. 9. Enter into intergovernmental agreements with other public agencies pursuant to title 11, chapter 7, article 3 to carry out the objects and purposes of the district. 10. Apply for, obtain, expend and repay flood control loans pursuant to title 45, chapter 8, article 5. 11. Apply to the director of water resources for alternative flood control assistance for flood control projects pursuant to section 45-1471, except that the director shall not grant any such assistance for any project unless the director has approved the project in advance of planning. 12. Sue and be sued, enter into contracts and generally do all things that may be necessary to construct, acquire and maintain facilities, operate the district and perform its regulatory functions and that are in the interests of the district. 13. Adopt rules and bylaws for its orderly operation as it sees fit. 14. Appoint a chief engineer and general manager, who may be the county engineer. 15. Appoint a treasurer, who may be the county treasurer, an attorney, who may be the county attorney, and other employees it considers desirable and necessary to carry out the purposes of the district. Any other work required by the district may be performed by regular employees of the county on assignment by the board of supervisors, except that regular county employees shall not undertake construction projects with an estimated cost of $5,000 or more. 16. Allow variances from the terms or regulations adopted pursuant to this article to the extent permitted by section 48-3609, subsection B, paragraph 7 and if, owing to peculiar conditions, a strict interpretation would work an unnecessary hardship, if in granting the variance the general intent and purposes of this article and the regulations will be preserved. 17. Construct, operate and maintain artificial groundwater recharge facilities, and, if organized in a county having a population of more than five hundred thousand persons, underground storage and recovery facilities, if they have flood control benefits, and contract and join with the United States, this state and other governmental units for the purpose of constructing, operating and maintaining multipurpose groundwater recharge, underground storage and recovery and flood control facilities, except that a district shall not expend district funds for any underground storage and recovery facility that does not have flood control benefits. 18. Acquire real property by purchase, donation, dedication, exchange or other lawful means, except by eminent domain, in areas suitable for groundwater recharge projects. 19. Cooperate and join with other entities that engage in underground water storage and recovery projects under title 45, chapter 3.1, including multi-county water conservation districts and other political subdivisions. 20. Either alone, or by entering into any combination of contracts with this state, the United States, any other flood control district, a floodplain board, a municipality or other political subdivision, a government agency, an irrigation or agricultural improvement district or an association, corporation or individual, implement flood control enhancement solutions including: (a) Assistance for property owners within the floodplain and through the elevation, bank stabilization and flood proofing of existing structures. (b) Preservation and restoration of the floodplain. (c) Maintenance of flood warning systems and associated flood response plans. (d) Construction of bridges or other access over watercourses that are impassable to emergency vehicle traffic for fourteen or more days a year. 21. If a part of a parcel of land is to be taken for drainage, basins, impoundments or any other flood control related use and the board and the affected property owner determine that the remainder will be left in such a condition as to give rise to a claim or litigation concerning severance or other damage, acquire the whole parcel by purchase, donation, dedication, exchange, condemnation or other lawful means, and the remainder may be sold or exchanged for other properties needed for flood control use. 22. Adopt and enforce civil penalties for violations of its regulations or ordinances and for unauthorized damage and interference to those district facilities that are authorized pursuant to this chapter. 23. Pursuant to the authority prescribed in this chapter, appoint hearing officers to hear and determine actions. 24. For any district that intends to take enforcement action pursuant to section 48-3615.01, adopt written rules of procedure for the hearing and review of decisions on actions prescribed by this chapter. 25. Establish a board of hearing review to review decisions of hearing officers that are issued pursuant to section 48-3615.01. The board of hearing review shall consist of one member from each board of directors' district or the board of directors may authorize the citizens' flood control advisory board or the board of review to designate a like number of its members to serve as the board of hearing review. 26. Authorize the chief engineer of the district to apply for and obtain administrative search warrants for entry and inspection from a local court of general jurisdiction to determine if violations of section 48-3609, 48-3613, 48-3614 or 48-3615 have occurred. The warrants shall be served by a peace officer as defined in section 1-215. A report of any inspections made pursuant to this section shall be prepared and made available in the records of the district and a copy mailed or otherwise delivered to the owner within fifteen days after the inspection of the owner's premises. D. The board shall adopt and enforce floodplain regulations as provided in section 48-3609. E. The board may adopt a fee schedule for review of applications for permits and variances from or interpretations of the floodplain regulations. F. The affirmative vote of a majority of the board of directors is necessary to approve any measure. One member may adjourn any meeting at which a quorum is not present. G. The board shall keep a proper written record of all of the board's proceedings, which shall be open to public inspection. H. The accounts of the district are subject to annual and other audits as provided by law. I. Section 9-403 does not apply to a flood control district organized under this article and section 9-402 does not apply when the district is selling property to this state, a political subdivision, any special district with taxing authority, a public school, a community college or a university. Before selling any property to this state, a political subdivision of this state, any special district with taxing authority, a public school, a community college or a university, the flood control district shall obtain an appraisal of the market value of the property as defined in section 28-7091 prepared by a person who is licensed or certified pursuant to title 32, chapter 36. If any property sold by the district to this state, a political subdivision, any special district with taxing authority, a public school, a community college or a university without complying with section 9-402 is subsequently sold by the grantee as undeveloped property for a price exceeding the original sale price, the district shall be paid the difference between the original price and the subsequent sale price. J. The district and its employees and officers are not liable for any injury or property damage that may arise out of a plan or design for construction, maintenance or improvement to a dam, levee, berm, channel, canal or culvert or any other flood control project the district is authorized to plan, design, construct, maintain or improve when a reasonably adequate warning of any unreasonably dangerous hazard is given to potentially affected property owners in a manner that owners may take suitable precautions to protect themselves and their property. The warning shall include information for the property owner regarding a national flood insurance program. A warning is sufficient pursuant to this subsection if the warning is provided to a single property owner of the parcel, and notice to subsequent property owners is not required. The immunities prescribed by this subsection are in addition to and not in derogation or limitation of the immunities granted a district, employee or officer as otherwise provided by law and apply if either or both of the following conditions are met: 1. The project is funded wholly or partially by federal monies. 2. The project is planned or designed to meet a recurrence interval approved by the district's board of directors. K. Section 9-402 does not apply to the grant of an easement on or a lease of district real property to any party other than this state or a political subdivision of this state as prescribed by this subsection. A district may authorize the grant of an easement on or a lease of district real property without public auction under the following conditions: 1. The district posts a notice in a conspicuous place on the affected property. The notice shall summarize the proposed easement or lease and shall provide information on the process for an interested person to request that the proposed action be submitted to public auction. The notice shall be posted for at least fifteen days before the execution of the easement or lease. 2. The district posts a notice on the district's website that specifies the affected property, summarizes the proposed easement or lease and provides information on the process for an interested person to request that the proposed action be submitted to public auction. The notice shall be posted on the website for at least fifteen days before the execution of the easement or lease. 3. The district publishes in the local newspaper where the district regularly publishes notices at the beginning of the fifteen-day posting period a summary of the proposed easement or lease that provides information on the process for an interested person to request that the proposed action be submitted to public auction. 4. The district establishes a process that allows an interested person to request in writing that the proposed easement or lease be submitted to public auction. If during the fifteen-day posting period a person requests that the proposed easement or lease be submitted to public auction the district shall follow the procedure set forth in section 9-402. 5. For proposed leases only, the market value for the rental of the district real property is less than $5,000 per month. 6. The reimbursement to the district for the easement granted or the lease executed is not less than the market value of the property as determined by the district. 48-3604. Establishing zones in the district A. The board may divide the area of jurisdiction into two or more zones, the boundaries of which shall be described in a resolution adopted at a hearing held pursuant to subsection C. B. The board may alter the boundary lines of any previously established zone or zones pursuant to subsection C. C. Before establishing zones or altering their boundary lines, the board shall fix a date for a hearing, which shall be not less than twenty-one days nor more than forty days from the date of the resolution. Any interested citizen may appear at the hearing and be heard on any matter relating to the reasonableness of establishing the zones. Notice of the hearing shall be published once a week for three consecutive weeks in a newspaper of general circulation in the area of jurisdiction and zone and shall be posted in not less than thirty public places in the zone. The posting and the first date of the publications shall be not less than three weeks before the date of the hearing. D. The board shall meet at the time and place fixed for the hearing and may adjourn the hearing from time to time. At the hearing any interested owner of real property in the proposed zone may appear and be heard on any matter relating to the establishment of the zone and may allege that his real property in the proposed zone will not be benefited by the proposed improvements. If after the hearing it appears to the board that the establishment of the zone is necessary and desirable to carry out the objects and purposes of the district in the proposed zone and that all property in the zone will benefit by the establishment of the zone, the board shall establish the zone. If the board determines that any property in the proposed zone is not benefited, it shall delete the property from the zone. Thereupon the board shall adopt a resolution establishing the zone and shall file with the county recorder, the county assessor and the department of revenue a certified copy of the resolution and a map showing the zone and its boundaries. The board shall publish a copy of the resolution once a week for three consecutive weeks in a newspaper of general circulation in the area of jurisdiction and zone and shall post a copy of the resolution in not less than thirty public places in the zone. E. A party aggrieved by action of the board in establishing a zone may bring an action in the superior court in the county in which the area of jurisdiction is located to set aside the action of the board. The action shall be heard in a trial de novo. The action must be instituted not more than thirty-five days after the last publication or date of posting, whichever is later, of the copy of the resolution establishing the zone. 48-3605. Assistance for floodplain delineations; duties of director A. The director of water resources shall develop and adopt criteria for establishing the one hundred-year flood and delineating floodplains. B. If a district is required to delineate a floodplain pursuant to section 48-3609 and the floodplain has not been delineated with sufficient accuracy to allow adoption of regulations pursuant to section 48-3609, the district may request the director for assistance in delineating the floodplain. C. If sufficient monies have been appropriated, the director may either provide the engineering and technical services necessary to delineate the floodplains and floodway and determine water surface profile data associated with such delineations or disburse monies for such services to the requesting district. D. If a district chooses to be reimbursed for costs incurred to have floodplains delineated after August 3, 1984, monies appropriated to the director shall be disbursed on order of the director after application by the district showing the necessity and purpose of the expenditures for which reimbursement is required. E. The director may refuse to provide financial or technical assistance allowed by this section if, in the opinion of the director, such assistance is not necessary for the district to comply with section 48-3609. 48-3606. Assistance for topographic mapping If sufficient monies have been appropriated, state monies or assistance allowed by this chapter may be provided to a district to aid in preparing topographic maps or to gather other elevation or channel cross-sectional data necessary, as determined by the director, for making hydraulic and hydrologic computations for determining floodplain and floodway limits. 48-3607. Director may contract for work The director may contract with private persons, firms or other governmental agencies to carry out his duties under this article. 48-3608. Assistance in flood insurance program A. The director is designated as the state coordinator of the national flood insurance program to assist local jurisdictions in complying with the requirements of such program and state law. B. The director is designated as the state coordinator of the United States army corps of engineers floodplain management services program and shall coordinate floodplain information studies of federal, state and local agencies and make recommendations to such agencies. 48-3609. Floodplain delineation; regulation of use; federal requirements and definitions A. Except as provided in section 48-3610, the board within its area of jurisdiction shall delineate or may by rule require developers of land to delineate for areas where development is ongoing or imminent, and thereafter as development becomes imminent, floodplains consistent with the criteria developed by the director of water resources. B. Except as provided in section 48-3610, the board shall adopt and enforce regulations governing floodplains and floodplain management in its area of jurisdiction which shall include the following: 1. Regulations for all development of land, construction of residential, commercial or industrial structures or uses of any kind which may divert, retard or obstruct floodwater and threaten public health or safety or the general welfare. 2. Regulations which establish minimum flood protection elevations and flood damage prevention requirements for uses, structures and facilities which are vulnerable to flood damage. Regulations adopted under this section shall comply with state and local land use plans and ordinances, if any. 3. Regulations which provide for coordination by the district with all other interested and affected political subdivisions and state agencies. 4. Regulations that require any residential structure built in a floodplain to be constructed so as to place the lowest floor elevation of the structure at or above the regulatory flood elevation, that require commercial or industrial structures to be flood proofed or elevated to or above the regulatory flood elevation and that prohibit any activity in a designated floodway, including fill, that would increase the water surface elevation during a base flood. 5. Except as provided in subsection C of this section, regulations to allow a mobile home located in a floodplain on August 3, 1984 to be replaced by another mobile home if: (a) The mobile home to be replaced was not damaged by a flood to more than fifty percent of its value before the flood. (b) The replacement mobile home is elevated so that the bottom of the structural frame or the lowest point of any attached appliances, whichever is lower, is at or above the regulatory flood elevation. 6. Regulations that require all new placement of mobile homes to be anchored to prevent flotation, collapse or movement. 7. Variance procedures to permit variances from the regulations that do not result in danger or damage to persons or property in floodplains in the area of jurisdiction. Variances may be granted only if special circumstances, such as size, shape, topography, location or surroundings of the property, would cause the strict application of the regulations to deprive the property of privileges enjoyed by similar property in the floodplain. A variance is subject to conditions to ensure that the variance does not constitute a grant of special privileges inconsistent with the limitations on similar property in the floodplain. C. A city or town with a population of less than one thousand five hundred persons that is located in a county with a population of less than seventy thousand persons and that has assumed the powers and duties for floodplain management pursuant to section 48-3610, subsection A may adopt as a part of the regulations required by subsection B, paragraph 5 of this section a regulation that allows a mobile home that qualifies under this subsection to be replaced with a mobile home that either is elevated so that the bottom of the structural frame or the lowest point of any attached appliances, whichever is lower, is at or above the base flood elevation or has a chassis supported by reinforced piers or other foundation elements of equivalent strength that are not less than thirty-six inches in height above grade and that are securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement. A mobile home qualifies under this subsection if both of the following apply: 1. The mobile home was located in a mobile home park or subdivision on August 3, 1984 or before the effective date of the city's or town's initial floodplain management regulations, whichever date is earlier. 2. No mobile home that is located in that mobile home park or subdivision has been damaged by a flood to more than fifty percent of its value before the flood. D. Waste disposal systems shall not be installed wholly or partially in a regulatory floodway. E. Water supply, water treatment and sewage collection and disposal systems built in a regulatory floodplain shall be designed to prevent or minimize floodwater infiltrating the systems and to prevent or minimize floodwater contamination during the base flood. F. Floodplain regulations enacted pursuant to this article may only be adopted after a public hearing at which parties in interest and other citizens have an opportunity to be heard. At least thirty days before the hearing, a notice of the time and place of the hearing shall be published in a newspaper of general circulation within the county or, if no newspaper of general circulation is regularly published, in a newspaper of general circulation nearest the area of jurisdiction. A notice of any hearing accompanied by a copy of each of the proposed regulations shall be furnished to the director at least thirty days before the date of the hearing. A copy of any regulation adopted by a district pursuant to this article shall within five days thereafter be filed with the director and with each political subdivision and municipal corporation in the area of jurisdiction. G. All development of land, construction of residential, commercial or industrial structures or future development within delineated floodplain areas is prohibited unless floodplain regulations have been adopted pursuant to this article for such floodplain area and are in full force and effect. H. Before adopting regulations the board may issue a special permit authorizing construction or development if the board finds that construction or development is not a danger to persons or property. I. Unless expressly provided, this article and any regulations adopted pursuant to this article do not affect: 1. Existing legal uses of property or the right to continuation of such legal use. However, if a nonconforming use of land or a building or structure is discontinued for twelve months or destroyed to the extent of fifty percent of its value, as determined by a competent appraiser, any further use shall comply with this article and regulations of the district. 2. Reasonable repair or alteration of property for the purposes for which the property was legally used on August 3, 1984 or on the date any regulations affecting such property take effect, except that any alteration, addition or repair to a nonconforming building or structure which would result in increasing its flood damage potential by fifty percent or more shall be either flood proofed or elevated to or above the regulatory flood elevation. 3. Reasonable repair of structures constructed with the written authorization required by section 48-3613. 4. Facilities constructed or installed pursuant to a certificate of environmental compatibility issued pursuant to title 40, chapter 2, article 6.2. J. Within one hundred twenty days after completion of construction of any flood control protective works which changes the rate of flow during the flood or the configuration of the floodplain upstream or downstream from or adjacent to the project, the person or agency responsible for installation of the project shall provide to the governing bodies of all jurisdictions affected by the project a new delineation of all floodplains affected by the project. The new delineation shall be done according to the criteria adopted by the director of water resources. K. A flood control district or appropriate public agency which has failed to adopt or enforce floodplain regulations required by this section shall not be eligible for disaster relief identified by section 35-192, subsection D, paragraphs 3 and 5. The director of water resources shall advise the director of the division of emergency management within the department of emergency and military affairs of such failure to comply. L. A district and its agents may have reasonable access as provided by written authorization issued pursuant to section 48-3613 or if no authorization has been issued during business hours or in the case of an emergency, at any time, to enter and inspect any development on real property that is located in a floodplain in order to determine whether an owner is in violation of this chapter. This subsection does not authorize the inspection of any records or files on a site or the interior of any building. A district shall attempt to provide written notice to the owner at least forty-eight hours in advance that the real property is to be inspected and that the owner or the owner's agent may accompany the district inspector on the inspection. A district inspector shall comply with any safety requirements that may be applicable to a particular site. The district shall prepare a report of any inspections made pursuant to this subsection. The report shall be made available in the records of the district and a copy sent to the owner within thirty days after the inspection. M. The floodplain regulations adopted by a district pursuant to this chapter are intended to carry out the requirements of the national flood insurance program and any term not otherwise defined in this chapter shall have the meaning set forth in 44 Code of Federal Regulations parts 59 through 78, as effective on January 1, 2005. 48-3609.01. Watercourse master plans; definition A. If a district organized pursuant to this chapter has completed a watercourse master plan which includes one or more watercourses, and if the plan has been adopted by the board or by any other jurisdiction in that river or drainage system, the board and the governing body of each jurisdiction may adopt and shall enforce uniform rules for that river or drainage system within the jurisdiction using criteria that meet or exceed criteria adopted by the director of water resources pursuant to section 48-3605, subsection A. B. During the preparation of a watercourse master plan, record owners of real property in and immediately contiguous to the watercourse or watercourses included in the planning shall be publicly notified by the board or its agents so that the owners may have input to the planning process. In addition, aggregate mining operations recommendation committees organized pursuant to section 11-812, subsection D, if any, shall be notified. C. All watercourse master plans shall consider recharge techniques including gabions, swales, dry wells, sand tanks and small dams. D. This section does not apply to any city or town which has adopted a resolution assuming floodplain management and regulation within its area of jurisdiction as provided in section 48-3610 prior to July 1, 1990. E. A district that has prepared a watercourse master plan for a river may participate in the planning, establishment and operation of a recreational corridor channelization district established pursuant to chapter 35 of this title. F. For the purposes of this section, "watercourse master plan" means a hydraulic plan for a watercourse that examines the cumulative impacts of existing development and future encroachment in the floodplain and future development in the watershed on potential flood damages and that establishes technical criteria for subsequent development so as to minimize potential flood damages for all flood events up to and including the one hundred-year flood. 48-3609.02. Adoption of rules; procedures; exemptions; definition A. The board of directors shall adopt procedures for the adoption, amendment, repeal and enforcement of rules. B. The procedures shall contain at least the following provisions: 1. The district shall provide at least two weeks' notice of a meeting at which the public is able to provide comments on the draft language of the proposed rule. The notice shall include the entire text of the draft proposed rule and it shall be made available to the public. The district shall accept written or verbal comments on the draft language. 2. The district shall provide at least two weeks' notice of a meeting at which the final text of the proposed rule is considered by the board of directors. The notice shall include the entire text of the final version of the proposed rule and it shall be made available to the public. At least one week before the meeting, the district shall provide the public with the district's written responses to written public comments and may provide written responses to verbal comments. 3. The district shall provide the board of directors with copies of the public comments and the district's written responses to the public comments. If as a result of public comments or internal review, the board of directors determines that the text of a proposed rule requires substantial change, the board of directors shall issue a supplemental notice containing the changes to the proposed rule and shall provide for additional public comment before adoption. C. Notwithstanding this section, the board of directors may provide alternative procedures for the adoption of a rule if the board makes a finding that an emergency exists and adoption of the rule is necessary to protect the public health, safety or welfare, to avoid an imminent budget reduction or to avoid serious prejudice to the public interest. Within a reasonable time after adopting an emergency rule, the board of directors shall review the emergency rule to determine whether the rule should continue in effect or be terminated. D. Notwithstanding this section, the board of directors may provide alternative procedures for the adoption of a rule if the rule is required by state or federal law or regulation, and the basis for the requirement to adopt the rule is not the result of delay or inaction by the board of directors. E. Notwithstanding this section, the board of directors may provide alternative procedures for the expedited adoption, amendment or repeal of a rule if the expedited rulemaking does not increase the cost of regulatory compliance or reduce the procedural rights of regulated parties. F. A rule cannot be enforced without substantial compliance with this section, except those rules that were approved by the board of directors before July 3, 2015. G. The district may provide the notices required by this section on the district's website. H. The district may meet informally with any interested party for the purpose of discussing any proposed rule. I. This section does not apply to: 1. Substantive policy statements. 2. Procedural documents that only affect the internal procedures of the district and do not impose additional requirements, conditions or penalties on regulated parties. 3. Use or adoption of any form whose contents or substantive requirements are consistent with an ordinance or statute, and any procedures for the execution or use of the form. J. For the purposes of this section, "rule" means a district statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of a district. Rule includes prescribing fees or the amendment or repeal of an existing rule but does not include intra-agency memoranda that are not delegation agreements. 48-3610. Assumption of powers and duties by cities and towns; resolution; definitions A. The powers and duties prescribed by section 48-3609 for floodplain management may be assumed by the governing body of an incorporated city or town within its area of jurisdiction if the incorporated city or town declares by resolution that it intends to assume the powers and duties, including the adoption of floodplain management regulations, pursuant to this article. An incorporated city or town currently engaged in floodplain management may continue to exercise the floodplain management powers and duties pursuant to this article in its area of jurisdiction by passing a resolution declaring its intent to do so before August 3, 1984. B. If the assumption of powers and duties under this section occurs: 1. The city or town shall advise the district and any adjacent jurisdiction having responsibility for floodplain management in writing and provide a copy of any development plan of all applications for floodplain use permits or variances to develop land in a floodplain or floodway within one mile of the boundary between the city's or town's area of jurisdiction and the area of jurisdiction of the district. The city or town shall also advise the district and any adjacent jurisdiction having responsibility for floodplain management in writing and provide a copy of any development plan of any major development proposed within a floodplain or floodway which could affect floodplains, floodways or watercourses outside the city's or town's area of jurisdiction. Written notice and a copy of the plan of development shall be sent to any adjacent jurisdiction no later than three working days after having been received by the city or town. 2. The district shall advise the city or town in writing and provide a copy of any development plan of any application for a floodplain use permit or variance to develop land in a floodplain or floodway within one mile of the boundary between the district's area of jurisdiction and that of the city or town. The district shall also advise the city or town in writing and provide a copy of any development plan of any major development proposed within a floodplain or floodway which could affect floodplains, floodways or watercourses within the city's or town's area of jurisdiction. Written notice and a copy of the plan of development shall be sent to any adjacent jurisdiction no later than three working days after having been received by the district. C. On passage of a resolution by the city or town assuming the powers and duties of floodplain management and regulation, the following apply: 1. The city or town is not liable for any aspect of a project that was approved, permitted, initiated or fully or partially constructed while under the floodplain authority of a district or county, including any obligation to complete, operate, maintain or repair the project. 2. For any project for which a permit was issued by a district or county while it held floodplain management and that is subsequently under more stringent floodplain regulation under the authority of a city or town, the project is deemed a valid nonconforming use that is subject to the more stringent city or town regulation for subsequent substantial improvements or substantial repairs. 3. For any violation of the district's or county's floodplain regulation authority before relinquishment, the district or county continues to be liable for the enforcement against and correction of the violation and the city or town is not liable. D. Nothing in this section shall act to delay approval of a development plan by a city, town, county or district. E. If the city or town assuming the floodplain management and regulation function declares by resolution that it no longer wishes the powers and duties, then the powers and duties shall be assumed by the district. On passage of a resolution by the city or town that the city or town is relinquishing its assumption of floodplain management and regulation, the following apply: 1. The district or the county is not liable for any aspect of a project that was approved, permitted, initiated or fully or partially constructed while under the floodplain authority of the city or town, including any obligation to complete, operate, maintain or repair the project. 2. For any project for which a permit was issued by the city or town while it held floodplain management and that is subsequently under more stringent floodplain regulation under district authority, the project is deemed a valid nonconforming use that is subject to the more stringent district regulation for subsequent substantial improvements or substantial repairs. 3. For any violation of the city or town's floodplain regulation authority before relinquishment, the city or town continues to be liable for the enforcement against and correction of the violation and the district and the county are not liable. F. If the assumption of powers and duties by a city or town occurs under this section, for purposes of applying this article to the city or town: 1. "Area of jurisdiction" means the lands within the municipal boundaries of the city or town. 2. "Board" means the governing body of a city or town. 48-3611. Citizens' flood control advisory board; qualification; functions A. The board of directors may appoint a citizens' flood control advisory board consisting of seven members. Five members shall be resident taxpayers and qualified electors of the district, at least three of whom shall be residents of the cities in the district. At least one of the board members who are residents of cities shall be a resident of the largest city in the district. The city engineer of the largest city in the district and the chief engineer or manager of a major irrigation or agricultural improvement district, or their representatives, shall be ex officio members of the advisory board with all rights and privileges granted to other board members. B. In appointing members of the advisory board the board of directors shall designate which appointive member shall serve for one year, which for two years, which for three years, which for four years and which for five years. Thereafter the term of each appointive member is five years except for a member appointed to an unexpired term. C. The citizens' flood control advisory board may request information from the chief engineer and general manager and district staff, engineering personnel from cities in the district and any other person with a knowledge of flood control practices. They may recommend the employment of consultants for the purpose of obtaining technical information and recommendations regarding flood control and floodplain management practices. D. The advisory board shall study the flood control, floodplain regulation, drainage and water conservation needs of the district, shall meet with and advise the board as requested by the board and may submit to the board reports and recommendations relating to such studies, but the recommendations are advisory only. 48-3612. Board of review A. The board of directors may establish a board of review, which may be the advisory board or a committee of the advisory board to sit in review and make decisions as follows: 1. Interpret regulations adopted pursuant to this article if the meaning of a word, phrase or section is in doubt, if there is dispute between the appellant and district employees or if location of a floodway or floodplain is in doubt. 2. Allow variances from the terms or regulations adopted pursuant to this article to the extent permitted by section 48-3609, subsection B, paragraph 7 if, owing to peculiar conditions, a strict interpretation would work an unnecessary hardship and if in granting the variance the general intent and purposes of this article and the regulations will be preserved. B. Appeals to the review board may be taken by any person who feels that there is error or doubt in the interpretation of the regulation or that due to unusual circumstances attaching to his property an unnecessary hardship is being inflicted on him. The appeal shall state whether it is a plea for an interpretation or a variance and the grounds for the appeal. C. A person aggrieved in any manner by an action of the review board may within thirty days appeal to the district board. 48-3613. Authorization required for development in watercourses; exceptions; enforcement A. Except as provided in section 48-3625 and in this section, a person shall not engage in any development which will divert, retard or obstruct the flow of waters in any watercourse without securing written authorization from the board of the district in which the watercourse is located. Where the watercourse is a delineated floodplain no development shall take place in the floodplain without written authorization from the board of the district in which the floodplain is located. B. Written authorization is not required for nor shall the board prohibit: 1. The construction of bridges, culverts, dikes and other structures necessary for the construction of public highways, roads and streets intersecting or crossing a watercourse. 2. The construction of storage dams for watering livestock or wildlife and structures on banks of a watercourse to prevent erosion of or damage to adjoining land if the structure will not divert, retard or obstruct the natural channel of the watercourse or dams for the conservation of floodwaters as permitted by title 45, chapter 6. 3. Construction of tailing dams and waste disposal areas used in connection with mining and metallurgical operations. This paragraph does not exempt those sand and gravel operations which will divert, retard or obstruct the flow of waters in a watercourse from complying with and acquiring authorization from the board pursuant to regulations adopted by the board under this article. 4. Other construction if it is determined by the board that written authorization is unnecessary. 5. Any flood control district, county, city, town or other political subdivision from exercising powers granted to it under this article. 6. The construction of streams, waterways, lakes and other auxiliary facilities in conjunction with development of public parks and recreation facilities by a public agency or political subdivision. 7. The construction and erection of poles, towers, foundations, support structures, guy wires, and other facilities related to power transmission as constructed by any utility whether a public service corporation or a political subdivision. C. Before any construction authorized by subsection B of this section may begin, the person must submit plans for the construction to the board for review and comment. D. In addition to other penalties or remedies otherwise provided by law, this state, a political subdivision or a person who may be damaged or has been damaged as a result of the unauthorized diversion, retardation or obstruction of a watercourse has the right to commence, maintain and prosecute any appropriate action or pursue any remedy to enjoin, abate or otherwise prevent any person from violating or continuing to violate this section or regulations adopted pursuant to this article. If a person is found to be in violation of this section, the court shall require the violator to either comply with this section if authorized by the board or remove the obstruction and restore the watercourse to its original state. The court may also award such monetary damages as are appropriate to the injured parties resulting from the violation, including reasonable costs and attorney fees. 48-3614. Declaration of public nuisance; abatement All development located or maintained in a floodplain since August 8, 1973 in violation of this article or of floodplain regulations established by the board and without written authorization from the board is a public nuisance per se and may be abated, prevented or restrained by action of this state or any of its political subdivisions. 48-3615. Violation; classification; civil penalties; strict liability A. It is unlawful for a person to engage in any development or to divert, retard or obstruct the flow of waters in a watercourse if it creates a hazard to life or property without securing the written authorization required by section 48-3613. Where the watercourse is a delineated floodplain it is unlawful to engage in any development affecting the flow of waters without securing written authorization required by section 48-3613. B. A person who violates subsection A of this section is guilty of a class 2 misdemeanor. C. A person who violates this chapter or rules adopted pursuant to this chapter may be assessed a civil penalty not to exceed the fine chargeable for a class 2 misdemeanor or, by agreement with the person in violation, a nonmonetary penalty that serves the purposes of the district. Each day the violation continues constitutes a separate violation. D. A person who without written authorization from the board of directors damages or interferes with a facility that is owned, operated or otherwise under the jurisdiction of the district is strictly liable for both of the following: 1. Any actual damages to persons or property that is caused by the damage or interference. 2. Payment of costs to the district for remediating the damage or interference. 48-3615.01. Notice of violation; hearing; final decision; civil penalty; injunctive relief A. If the chief engineer finds that a person has engaged or is engaging in development in the floodplain without a floodplain use permit, has engaged or is engaging in any development that is not in compliance with an active floodplain use permit or has damaged or interfered with facilities that are authorized pursuant to this chapter without written authorization of the board of directors, the chief engineer shall issue a notice of violation to the owner, occupant or manager of the real property on which the development is located or to the person who has damaged or interfered with the facilities. The notice of violation shall identify the violations observed and order the violator to cease and desist any ongoing activity that is not in compliance with the regulations adopted pursuant to this chapter or cease and desist any damage or interference that is not authorized by the board. The notice of violation shall include the date and time by which the person must mail or deliver a response to the notice of violation. B. On receipt of the notice of violation, the person may: 1. Admit the allegations by mailing or delivering to the chief engineer a form provided with the notice of violation or a written statement signed by the person in which the person admits the allegations, agrees to acquire any required permit and agrees to remedy the violation, damage or interference in accordance with the terms determined by the chief engineer. 2. Deny the allegations by mailing or delivering to the chief engineer a form provided with the notice of violation or a written statement signed by the person denying the allegations and requesting a hearing on the matter. At the same time and with the same form and if the form contains the request by the person for a stay, the chief engineer shall issue a stay of any cease and desist order unless there is a threat to the public health or safety or to another person's property rights. C. On request for a hearing, the hearing officer shall set a date, time and place for a hearing and serve a notice of hearing on the person alleged to be in violation and provide a notice of the hearing to the chief engineer. Service of notice shall be by personal delivery or certified mail, return receipt requested, or by any other method reasonably calculated to effect actual notice on the alleged violator, the chief engineer and every other party to the action. D. The hearing officer shall be appointed by the board of directors and may be an employee of the district. The notice of violation shall serve as the complaint and the request for hearing shall serve as the answer. Decisions of the hearing officer or by the board of hearing review shall be available to any party to the hearing. The board of directors shall adopt written rules of procedure for the hearing and review of hearings. These rules shall be adopted in the same manner as floodplain ordinances. E. At the hearing, a representative of the district shall present evidence of the violation described in the notice of hearing. The county attorney may present evidence on behalf of the district. The noticed party or attorney or other designated representative shall be given the opportunity to present evidence at the hearing. After completion of the hearing, the hearing officer shall issue a written finding and a recommendation for the appropriate measures to be taken to abate or ameliorate any harm or damage arising from the violation and for the imposition of any civil penalties attributed to the violation. F. The hearing officer's written finding shall be submitted to the chief engineer and the noticed party within thirty days after the date of the hearing. On receipt of the hearing officer's findings, determination and recommendation, the chief engineer shall issue a final decision and order. The chief engineer's final decision and order may be in any form as adopted by the board of directors pursuant to its authority under this chapter and may include a determination of violation, an order directing that measures be taken to abate or ameliorate any harm or damage arising from the violation and the imposition of a civil penalty. By agreement with the person in violation, the chief engineer may order a nonmonetary penalty that serves the purposes of the district. G. In a county with a population of less than one hundred seventy-five thousand persons, the district may adopt a procedure in which the hearing officer issues a written finding and a final decision and order. The hearing officer's final decision and order may be in any form as adopted by the board of directors pursuant to its authority under this chapter and may include a determination of violation, an order directing that measures be taken to abate or ameliorate any harm or damage arising from the violation and the imposition of a civil penalty. On recommendation of the chief engineer and with the agreement of the person in violation, the hearing officer may order a nonmonetary penalty that serves the statutory purposes of the district. H. On written request of any party who is subject to the decision and order of the chief engineer or hearing officer pursuant to this section, the board of hearing review may review any decision and order of the chief engineer or hearing officer. The written request for review shall be delivered to the clerk of the board of directors within fifteen days after the date of the final decision and order. The written request shall identify specifically the section or sections of the chief engineer's or hearing officer's final order that is requested to be reviewed by the board of hearing review. I. The board of hearing review shall set a time and date to hear the matter requested for review. The hearing shall be conducted based on the information presented to the chief engineer or hearing officer in issuing the final decision and order or, in an appeal from a determination of a violation by a hearing officer, the record before the hearing officer. The information presented to the chief engineer or hearing officer in issuing the final decision and order shall be made available to all parties on request. Based on the record before the board of hearing review, the board may deny, approve or modify the order of the chief engineer or the order of the hearing officer. The board shall issue a written order of its decision, including findings of fact and conclusions of law, and shall submit its final written order on the matter to the chief engineer within thirty days after completion of the hearing. J. If the person alleged to be in violation continues the violation after the chief engineer or hearing officer has issued a final decision and order or after the board of hearing review has completed its review pursuant to this section, the chief engineer may apply for a temporary restraining order or preliminary or permanent injunction from the superior court according to the Arizona rules of civil procedure. A decision to seek injunctive relief does not preclude other forms of relief or enforcement against the violator. The remedies prescribed by this section are cumulative and do not prevent the district from seeking injunctive relief at any time. K. The chief engineer may designate another person to carry out the chief engineer's powers and duties prescribed by this section and that designee is authorized to take all actions prescribed by this section in place of the chief engineer. 48-3615.02. Judicial review; remedies The final decision of the board of hearing review is subject to judicial review pursuant to title 12, chapter 7, article 6. A district that has established civil penalties for violations of its regulations or ordinances or for damage or interference to its facilities is not precluded from pursuing other remedies provided by law. 48-3616. Survey and report of flood control problems and facilities; comprehensive program; adoption by board; hearing A. After a flood control district has been established in a county having a population of over three hundred thousand persons according to the latest federal decennial census, the board shall cause the chief engineer to make or have made by the flood control engineer or by qualified private engineers a survey of the flood control problems of the district and to prepare a report describing existing flood control facilities in the area, recommendations as to cooperation between the district and the owner or owners of existing facilities, recommendations and a preliminary plan for the construction or other acquisition of facilities to carry out the purpose of the district, a