CLASSIFICATION: #28. LANDS AND MINERALS

NCA 21-009

CLASSIFICATION: #28. LANDS AND MINERALS

A LAW OF THE MUSCOGEE (CREEK) NATION CREATING A NEW CHAPTER 11,

ENTITLED “FLCODPLAINS” IN MCNCA TITLE 28 “LAND AND MINERALS“

Be it enacted by the National Council of the Muscogee (Creek) Nation:

SECTION ONE. Findings. The National Council finds that:

A. The flood hazard areas of Creek, Hughes, Mayes, Mcintosh, Muskogee,

Okfuskee, Okmulgee, Rogers, Seminole, Tulsa and Wagoner Counties of the State of

Oklahoma are subject to periodic inundation, which results in loss of life and property,

health and safety hazards, disruption of commerce and governmental services and

extraordinary public expenditures for flood protection and relief, all of which adversely

affect public health, safety and the general welfare of the Nation.

B. These flood losses are created by the cumulative effect of obstructions in

floodplains which cause an increase in flood heights and velocities, and by the occupancy

of flood hazard areas by uses vulnerable to floods and hazardous to other lands because

they are inadequately elevated, flood-proofed or otherwise protected from flood damage.

C. There is a need for a Floodplain Ordinance for the Muscogee (Creek) Nation

to address the issues created by flood hazards and properly ensure the public health,

safety and general welfare of the Nation.

SECTION TWO. NEW LAW. The following new law shall be codified in Title 28 of

the Code of Laws of the Muscogee (Creek) Nation; provided that for purposes of

codification of said new law and its inclusion in pocket parts for the Code of Laws of the

Muscogee (Creek) Nation, the Attorney General is hereby authorized: (1) to approve any

changes related to the manner in which sections, articles, chapters and sub-chapters are

designated in this law in order to be consistent with the format in the Code of Laws

published in 2010 by West Publishing Company; (2) to include footnoted references to

the legislative history in said pocket parts to the Code of Laws; and (3) to note in said

pocket parts any editorial correction of minor clerical or grammatical errors in the following

new law:

TITLE 28. LAND AND MINERALS

CHAPTER 11. FLOODPLAIN ACT

Page 2 of 24

NCA 21-009

SUBCHAPTER 1. STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE

AND METHODS

§ 11-101. Short title and codification

This Act shall be known and may be cited as the Muscogee (Creek) Nation Floodplain

Act (hereinafter the “Act”) and shall be codified as Chapter 11 in Title 28, “Land and

Minerals” of the Muscogee (Creek) Nation Code Annotated.

§ 11-102. Purpose

The purpose of these statutes is to promote the public health, safety and general welfare

of the Nation and to minimize public and private losses due to flood conditions in specific

areas by provisions designed to:

A. Protect human life and health;

B. Minimize expenditure of public money for costly flood control projects;

C. Minimize the need for rescue and relief efforts associated with flooding and

generally undertaken at the expense of the general public;

D. Minimize prolonged business interruptions;

E. Minimize damage to public facilities and utilities such as water and gas

mains, electric telephone and sewer lines, streets and bridges located in floodplains;

F. Help maintain a stable tax base by providing for the sound use and

development of flood prone areas in such a manner as to minimize future flood blight

areas; and

G. Insure that potential buyers are notified that property is in a flood area.

§ 11-103. Methods of Reducing Flood Losses

In order to accomplish its purposes; these statutes use the following methods:

A. Restrict or prohibit uses that are dangerous to health, safety or

property in times of flood, or cause excessive increases in flood heights or

velocities;

Page 3 of 24

NCA 21-009

B. Require that uses vulnerable to floods, including facilities which serve such

uses, be protected against flood damage at the time of initial construction;

C. Control the alteration of natural floodplains, stream channels, and

natural protective barriers, which are involved in the accommodation of flood

waters;

D. Control filling, grading, dredging and other development which may

increase flood damage; and

E. Prevent or regulate the construction of flood barriers which will unnaturally

divert flood waters or which may increase flood hazards to other lands.

SUBCHAPTER 2. DEFINITIONS

§ 11-201. Definitions

Unless specifically defined below, words or phrases used in this ordinance shall be

interpreted to give them the meaning they have in common usage and to give these

statutes in this Act its most reasonable application. ,

A. “Accessory Structure” means a structure which is on the same parcel of

property as the principle structure and the use of which is incidental to the use of the

principle structure (such as garages and storage sheds).

B. “Alluvial Fan Flooding” means flooding occurring on the surface of an

alluvial fan or similar landform which originates at the apex and is characterized by highvelocity flows; active processes of erosion, sediment transport, and deposition; and

unpredictable flow paths.

C. “Apex” means a point on an alluvial fan or similar landform below which the

flow path of the major stream that formed the fan becomes unpredictable and alluvial fan

flooding can occur.

D. “Area of Shallow Flooding” means a designated AO or AH zone on a

community's Flood Insurance Rate Map (FIRM) with a one percent chance or greater

alluvial chance of flooding to an average depth of one to three feet where a clearly defined

channel does not exist, where the path of flooding is unpredictable, and where velocity

flow may be evident. Such flooding is characterized by ponding or sheet flow.

E. “Area of Special Flood Hazard” means the land in the floodplain within a

community subject to a one percent or greater chance of flooding in any given year. The

area may be designated as Zone A on the Flood Hazard Boundary Map (FHBM). After

Page 4 of 24

NCA 21-009

detailed ratemaking has been completed in preparation for publication of the FIRM. Zone

A usually is refined into Zones A, AE, AH, AO or A1-99.

F. “Base Flood” means the flood having a one percent change of being

equaled or exceeded in any given year.

G. “Base Flood Elevation” means the elevation in feet above mean sea level

of the 1% chance flood as defined as the base flood defined above.

H. “Basement” means any area of the building having its floor sub-grade, or

below ground level on all sides.

I. “Board” means the Oklahoma Water Resources Board.

J. “Critical Feature” means an integral and readily identifiable part of a flood

protection system, without which the flood protection provided by the entire system would

be compromised.

K. “Development” means any man-made change in improved and unimproved

real estate, including but not limited to buildings or other structures, mining, dredging,

filling, grading, paving, excavation or drilling operations or storage of equipment or

materials.

L. “Elevated Building” means a non-basement building: 1) built, in the case of

a building in Zones A1-30, AE, A. A99, AO, AH, B, C, X, and D, to have the top of the

elevated floor elevated above the ground level by means of pilings, column, (posts and

piers), or shear walls parallel to the floor of the water; and 2) adequately anchored so as

not to impair the structural integrity of the building during a flood of up to the magnitude

of the base flood. In the case of Zones Al-30, AE, A A99, AO, AH, B, C, X, and D.

“Elevated building” also includes a building elevated by means of fill or solid foundation

perimeter walls with openings sufficient to facilitate the unimpeded movement of flood

waters.

M. “Existing Construction” means for the purpose of determining rates,

structures for which the “start of construction” commenced before the effective date of the

FIRM or before January 1, 1975 for FIRMS effective before that date. “Existing

Construction” may also be referred to as “existing structures.”

N. “Existing Manufactured Home Park or Subdivision” means a manufactured

home park or subdivision for which the construction of facilities for servicing the lots on

which the manufactured homes are to be affixed (including, at a minimum, the installation

of utilities, the construction of streets, and either final site grading or the pouring of

Page 5 of 24

NCA 21-009

concrete pads) is completed before the effective date of the floodplain management

Regulations adopted by a community.

O. “Expansion to an Existing Manufactured Home Park or Subdivision” means

the preparation of additional sites by the construction of facilities for servicing the lots on

which the manufactured homes are to be affixed (including the installation of utilities, the

construction of streets, and either final site grading or the pouring of concrete pads).

P. “Flood or Flooding” means a general and temporary condition of partial or

complete inundation of normally dry land areas from: 1) the overflow of inland or tidal

waters; or 2) the unusual and rapid accumulation or runoff of surface waters from any

source.

Q. “Flood Insurance Rate Map (FIRM) means an official map of a community,

on which the Federal Emergency Management Agency has delineated both the areas of

special flood hazards and the risk premium zones applicable to the community.

R. “Flood Insurance Study” means the official report provided by the Federal

Emergency Management Agency containing flood profiles, water surface elevation of the

base flood, as well as the Flood Boundary-Floodway Map.

Ss. “Floodplain Administrator’ means a person accredited by the Board or a

nationally or locally recognized floodplain management organization and designated to

administer and implement laws and regulations relating to the management of the

floodplains.

T. “Floodplain or Flood-Prone Area” means any land area susceptible to being

inundated by water from any source (see definition of flood or flooding).

U. “Floodplain Management” means the operation of an overall program of

corrective and preventive measures for reducing flood damage, including but not limited

to emergency preparedness plans, flood control works and floodplain management

regulations.

V. “Floodplain Management Regulations’ means zoning ordinances,

subdivision regulations, building codes, health regulations, special purpose ordinances

(such as floodplain ordinance, grading ordinance, or erosion control ordinance, and other

applications of police power). The term describes such state or local regulations, in any

combination thereof, which provide standards for the purpose of flood damage prevention

and reduction.

W. “Flood Protection System” means those physical structural works for which

funds have been authorized, appropriated, and expended and which have been

Page 6 of 24

NCA 21-009

constructed specifically to modify flooding in order to reduce the extent of the areas within

a community subject to a “special flood hazard” and the extent of the depths of associated

flooding. Such a system typically includes hurricane tidal barriers, dams, reservoirs,

levees or dikes. These specialized flood modifying works are those constructed in

conformance with sound engineering standards.

x. “Flood Proofing” means any combination of structural and non-structured

additions, changes, or adjustments to structures which reduce or eliminate flood damage

to real estate or improved real property, water and sanitary facilities, structures and their

contents.

Y. “Floodway (Regulatory Floodway)” means the channel of a river or other

watercourse and the adjacent land areas that must be reserved in order to discharge the

base flood without cumulatively increasing the water surface elevation more than a

designated height.

Z. “Functionally Dependent Use” means a use that cannot perform its intended

purpose unless it is located or carried out in close proximity to water. The term includes

only docking facilities, port facilities that are necessary for the loading and unloading of

cargo or passengers, and ship building and ship repair facilities, but does not include

long-term storage or related manufacturing facilities.

AA. “Highest Adjacent Grade” means the highest natural elevation of the ground

surface prior to construction next to the proposed walls of a structure.

BB. “Historic Structure” means any structure that is: 1) listed individually in the

National Register of Historic Places (a listing maintained by the Department of Interior) or

preliminarily determined by the Secretary of the Interior as meeting the requirements for

individual listing on the National Register; 2) Certified or preliminarily determined by the

Secretary of the Interior as contributing to the historical significance of a registered historic

district or a district preliminarily determined by the Secretary to qualify as a registered

historic district; 3) Individually listed on a state inventory of historic places in states with

historic preservation programs which have been approved by the Secretary of the Interior;

or 4) Individually listed on a local inventory or historic places in communities with historic

preservation programs that have been certified either: a) by an approved state program

as determined by the Secretary of the Interior; or b) directly by the Secretary of the Interior

in states without approved programs.

CC. “Levee” means a man-made structure usually an earthen embankment,

designed and constructed in accordance with sound engineering practices to contain,

control, or divert the flow of water so as to provide protection from temporary flooding.

Page 7 of 24

NCA 21-009

DD. “Levee System” means a flood protection system, which consists of a levee,

or levees, and associated structures, such as closure, and drainage devices, which are

constructed and operated in accordance with sound engineering practices.

EE. “Lowest Floor’ means the lowest floor of the lowest enclosed area (including

basement). An unfinished or flood resistant enclosure, usable solely for parking or

vehicles, building access or storage in an area other than a basement area is not

considered a building’s lowest floor; provided that such enclosure is not built so as to

render the structure in violation of the applicable non-elevation design requirement of 44

CFR § 60.3 of the National Flood Insurance Program Regulations.

FF. “Manufactured Home” means a structure transportable in one or more

sections, which is built on a permanent chassis and is designed for use with or without a

permanent foundation when connected to the required utilities. The term “manufactured

home” does not include a “recreational vehicle”.

GG. “Manufactured Home Park or Subdivision” means a parcel (or contiguous

parcels) of land divided into two or more manufactured home lots for rent or sale.

HH. “Mean Sea Level’ means for purposes of the National Flood Insurance

Program, the National Geodetic Vertical Datum (NGVD) of 1929 or other datum, to which

base flood elevations shown on a community's Flood Insurance Rate Map are referenced.

Il. “New Construction” means for the purpose of determining insurance rates,

structures for which the “start of construction” commenced on or after the effective date

of an initial FIRM or after December 31, 1974, whichever is later, and includes any

subsequent improvements to such structures. For floodplain management purposes,

“new construction” means structures for which the “start of construction” commenced on

or after the effective date of a floodplain management regulation adopted by a community

and includes any subsequent improvements to such structures.

JJ. | “New Manufactured Home Park or Subdivision” means a manufactured

home park of subdivision for which the construction of facilities for servicing the lots on

which the manufactured homes are to be affixed (including at a minimum, the installation

of utilities, the construction of streets, and either final site grading or the pouring of

concrete pads) is completed on or after the effective date of floodplain management

regulations adopted by a community.

KK. “Recreational Vehicle” means a vehicle which is: 1) built on a single chassis;

2) 400 square feet or less when measured at the largest horizontal projections; 3)

designed to be self-propelled or permanently towable by a light duty truck; and 4)

designed primarily not for use as a permanent dwelling but as temporary living quarters

for recreational, camping, travel, or seasonal use.

Page 8 of 24

NCA 21-009

LL. “Special Flood Hazard Area” — see Area of Special Flood Hazard. -

MM. “Start of Construction” means (for other than new construction or substantial

improvements under the Coastal Barrier Resources Act (Pub. L. 97-348)), includes

substantial improvement and means the date the building permit was issued, provided

the actual start of construction, repair reconstruction, rehabilitation, addition, placement,

or other improvement was within 180 days of the permit date. The actual start means

either the first placement of permanent construction of structure on a site, such as the

pouring of slab or footings, the installation of piles, the construction of columns, or any

work beyond the stage of excavation; or the placement of a manufactured home on

foundation. Permanent construction does not include land preparation, such as cleaning,

grading, and filling; nor does it include the installation of streets and/or walkways; nor

does it include excavation for basement, footings, piers or foundations or the erection of

temporary forms; nor does it include the installation on the property of accessory

buildings, such as garages or sheds not occupied as dwelling units or not part of the main

structure. For a substantial improvement, the actual start of construction means the first

alteration of any wall, ceiling, floor, or other structural part of a building, whether or not

that alteration affects the external dimensions of the building.

NN. “Structure” means a walled and roofed building, including a gas or liquid

storage tank that is principally above the ground, as well as a manufactured home.

OO. “Substantial Damage” means damage of any origin sustained by a structure

whereby the cost of restoring the structure to it’s before damaged condition would equal

or exceed 50 percent of the market value of the structure before the damage occurred.

PP. “Substantial Improvement” means any reconstruction, rehabilitation,

addition, or other improvement of a structure, the cost of which equals or exceeds 50

percent of the market value of the structure before “start of construction” of the

improvement. This includes structures that have included “substantial damage’,

regardiess of the actual repair work performed. The term does not, however, include

either: 1) any project for improvement of a structure to correct existing violations of state

or local health, sanitary, or safety code specifications which have been identified by the

local code enforcement official and which are the minimum necessary conditions; or 2)

any alteration of a “historic structure” provided that the alteration would not preclude the

structure’s continued designation as a “historic structure.”

QQ. “Variance” means a grant of relief to a person from the requirement of these

statutes or ordinance when specific enforcement would result in unnecessary hardship.

A variance, therefore, permits construction or development in a manner otherwise

prohibited by these statutes. (For full requirements see 44 CFR § 60.6 of the National

Flood Insurance Program Regulations).

Page 9 of 24

NCA 21-009

RR. “Violation” means the failure or other structure or other development to be

fully compliant with this community’s floodplain management regulations. A structure or

other development without the elevation certificate, other certifications, or other evidence

of compliance required in 44 CFR §§60.3(b)(5), (c)(4), (c)(10), or (d)(3) is presumed to

be in violation until such time as that documentation is provided.

SS. “Water Surface Elevation” means the height, in relation to the National

Geodetic Vertical Datum (NGVD) of 1929 (or other datum, where specified), of floods of

various magnitudes and frequencies in the floodplains of coastal or riverine areas.

SUBCHAPTER 3. GENERAL PROVISIONS

§ 11-301. Lands to which these Statutes Apply

These floodplain management statutes shall apply to all areas of special flood hazard

within the reservation of the Muscogee (Creek) Nation.

§ 11-302. Basis for Establishing the Areas of Special Flood Hazard

The areas of special flood hazard where applicable for Muscogee (Creek) Nation as

identified by the Federal Emergency Management Agency in the current scientific and

engineering reports entitled:

A. the “Flood Insurance Study (FIS) for Creek County, Oklahoma and

Incorporated Areas,” dated May 18, 2009, with accompanying Flood Insurance Rate Map

(FIRM) dated May 18, 2009, and any revisions thereto;

B. the “Flood Insurance Study (FIS) for Hughes County, Oklahoma and

Incorporated Areas,” dated May 16, 2019, with accompanying Flood Insurance Rate Map

(FIRM) dated May 16, 2019, and any revisions thereto;

C. the “Flood Insurance Study (FIS) for Mayes County, Oklahoma and

Incorporated Areas,” dated September 13, 2019, with accompanying Flood Insurance

Rate Map (FIRM) dated September 13, 2019, and any revisions thereto;

D. the “Flood Insurance Study (FIS) for McIntosh County, Oklahoma and

Incorporated Areas,” dated May 16, 2019, with accompanying Flood Insurance Rate Map

(FIRM) dated May 16, 2019, and any revisions thereto;

E. the “Flood Insurance Study (FIS) for Muskogee County, Oklahoma and

Incorporated Areas,” dated February 4, 2011, with accompanying Flood Insurance Rate

Map (FIRM) dated February 4, 2011, and any revisions thereto;

Page 10 of 24

NCA 21-009

F. the Estimated Base Flood Elevation data for Okfuskee County as published

Online at http://Awebapps.usgs.gov/infrm/estBFE;

G. the “Flood Insurance Study (FIS) for Okmulgee County, Oklahoma and

Incorporated Areas,” dated January 6, 2011, with accompanying Flood Insurance Rate

Map (FIRM) dated January 6, 2011, and any revisions thereto;

H. the “Flood Insurance Study (FIS) for Rogers County, Oklahoma and

Incorporated Areas,” dated September 30, 2016, with accompanying Flood Insurance

Rate Map (FIRM) dated September 30, 2016, and any revisions thereto;

I. the “Flood Insurance Study (FIS) for Seminole County, Oklahoma and

Incorporated Areas,” dated July 18, 2011, with accompanying Flood Insurance Rate Map

(FIRM) dated July 18, 2011, and any revisions thereto;

J. the “Flood Insurance Study (FIS) for Tulsa County, Oklahoma and

Incorporated Areas,” dated May 2, 2019, with accompanying Flood Insurance Rate Map

(FIRM) dated May 2, 2019, and any revisions thereto; and

K. the “Flood Insurance Study (FIS) for Wagoner County, Oklahoma and

Incorporated Areas,” dated September 30, 2016, with accompanying Flood Insurance

Rate Map (FIRM) dated September 30, 2016, and any revisions thereto;

Are hereby adopted by reference and declared to be a part of this ordinance.

§ 11-303. Establishment of Development Permit

A Development Permit shall be required to ensure conformance with the provisions of

these floodplain management statutes.

§ 11-304. Compliance

No structure or land shall hereafter be located, altered, or have its use changed without

full compliance with the terms of these statutes and other applicable Regulations.

§ 11-305. Abrogation and Greater Restrictions

These statutes are not intended to repeal, abrogate, or impair any existing easements,

covenants, or deed restrictions. However, where these statutes and another ordinance,

easement, covenant, or deed restrictions conflict or overlap, whichever imposes the more

stringent restrictions shall apply.

Page 11 of 24

NCA 21-009

§ 11-306. Interpretation

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

A. Considered as minimum requirements;

B. Liberally construed in favor of the governing body; and

C. Deemed neither to limit nor repeal any other powers granted under

Muscogee (Creek) Nation Law.

§ 11-307. Warning and Disclaimer of Liability

The degree of flood protection required by these statutes is considered reasonable for

regulatory purposes and is based on scientific and engineering considerations. On rare

occasions greater floods can and will occur and flood heights may be increased by manmade or natural causes. These statutes do not imply that land outside the areas of special

flood hazards or uses permitted within such areas will be free from flooding or flood

damages. These statutes shall not create liability on the part of the community or any

official or employee thereof for any flood damages that result from reliance on these

statutes or any administrative decision lawfully made hereunder.

SUBCHAPTER 4. ADMINISTRATION

§ 11-401. Designation of the Floodplain Administrator

The Muscogee (Creek) Nation Principal Chief shall designate the Emergency

Management Manager to the position of Floodplain Administrator to administer and

implement the provisions of these statutes and other appropriate sections of 44 CFR §

60.1, et seq. (National Flood Insurance Program Regulations) pertaining to floodplain

management.

§ 11-402. Duties & Responsibilities of the Floodplain Administrator

Duties and responsibilities of the Floodplain Administrator shall include, but not be limited

to, the following:

A. Maintain and hold open for public inspection all records pertaining to the

provisions of these statutes.

B. Review permit application to determine whether proposed building site,

including the placement of manufactured homes, will be reasonably safe from flooding.

Page 12 of 24

NCA 21-009

C. Review, approve, or deny all applications for development permits required

by adoption of these statutes.

D. Review permits for proposed development to assure that all necessary

permits have been obtained from those Federal, State or local governmental agencies

(including Section 404 of the Federal Water Pollution Act Amendments of 1972, U.S.C. §

1251, et seq.), from which prior approval are required.

E. Where interpretation is needed as to the exact location of the boundaries of

the areas of special flood hazards (for example, where there appears to be a conflict

between a mapped boundary and actual field conditions) the Floodplain Administrator

shall make the necessary interpretation.

F. Notify, in riverine situations, adjacent communities and the State Coordinating

Agency, the Oklahoma Water Resources Board, prior to any alteration or relocation of a

watercourse, and submit evidence of such notification to the Federal Emergency

Management Agency.

G. | Assure that the flood carrying within the altered or relocated portion of any

watercourse is maintained.

H. When base flood elevation data has not been provided in accordance with

§11-302 of this chapter, the Floodplain Administrator shall obtain, review, and reasonably

utilize any base flood elevation data and flood way date available from a Federal, State,

or other source, in order to administer the provisions of Subchapter 5.

L. ‘When a regulatory floodway has not been designated, the Floodplain

Administrator must require that no new construction, substantial improvements, or other

development (including fill) shall be permitted within Zones Al-A30 and AE on the

community's FIRM, unless it is demonstrated that the cumulative effect or 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 foot at any point

within the community.

J. Under the provisions of 44 CFR § 65.12 of the National Flood Insurance

Program Regulations, a community may approve certain development in Zones AI-30 AE,

AH, on the community’s FIRM which increases the water surface elevation of the base

flood by more than one foot, provided that the community first applies for a conditional

FIRM revision through FEMA (Conditional Letter of Map Revision).

K. Become certified and retain certification by a nationally or locally recognized

floodplain management organization.

Page 13 of 24

NCA 21-009

L. After a disaster or other type of damage occurrence to structures in

Reservation, determine if the residential & non-residential structures & manufactured

homes have been substantially damaged and enforce the substantial improvement

requirement.

§ 11-403. Permit Procedures

A. Application for a Development Permit shall be presented to the Floodplain

Administrator on forms furnished by him/her and may include, but not be limited to, plans

in duplicate drawn to scale showing the location, dimensions, and elevation of proposed

landscape alterations, existing and proposed structures, including the placement of

manufactured homes, and the location of the foregoing in relation to areas of special flood

hazard. Additionally, the following information is required:

1. Elevation (in relation to mean sea level), of the lowest floor (including

basement) of all new and substantially improved structures;

2. Elevation in relation to mean sea level to which any nonresidential

structure shall be flood proofed;

3. Acertificate from a registered professional engineer or architect that the

nonresidential flood proofed structure shall meet the flood proofing

criteria of §11-502.(B) of this chapter;

4. Description of the extent to which any watercourse or natural drainage

will be altered or relocated as a result of proposed development; and

5. Maintain a record of all such information in accordance with § 11-402.A

of this chapter.

B. Approval or denial of a Development Permit by the Floodplain Administrator

shall be based on all of the provisions of these statutes and the following relevant factors:

1. The danger to life and property due to flooding or erosion damage;

2. The susceptibility of the proposed facility and its contents to flood

damage and the effect of such damage on the individual owner;

3. The danger that materials may be swept onto other lands to the injury of

others;

4. The compatibility of the proposed use with existing and anticipated

development;

5. The safety of access to the property in times of flood for ordinary and

emergency vehicles;

6. The costs of providing governmental services during and after flood

conditions including maintenance and repair of streets and bridges, and

public utilities and facilities such as sewer, gas, electrical and water

systems;

Page 14 of 24

NCA 21-009

7. The expected heights, velocity, duration, rate of rise and sediment

transport of the flood waters and the effects of wave action, if applicable,

expected at the site;

8. The necessity to the facility of a waterfront location, where applicable;

9. The availability of alternative locations, not subject to flooding or erosion

damages, for the proposed use; and

10. The relationship of the proposed use to the comprehensive plan for that

area.

§ 11-404. Variance Procedures

A. The Appeal Board, as established by the National Council, shall hear and

render judgment on requests for variances from the requirements of these statutes. The

Appeal Board shall consist of the members of the National Council Land, Natural

Resources, and Cultural Preservation Committee. Upon review of the appeal, which shall

consists of permitting the applicant to present his/her position as well as allowing the

Floodplain Administrator to present his/her position, the Appeal_Board shall make a

decision to either reverse or uphold the request for a variance. A decision shall be made

by the Appeal Board within a reasonable amount of time.

B. The Appeal Board shall hear and render judgment on an appeal only when

it is alleged there is an error in any requirement, decision, or determination made by the

Floodplain Administrator in the enforcement or administration of these statutes.

C. Any person or persons aggrieved by the decision of the Appeal Board may

appeal such decision to the courts established by the Nation.

D. The Floodplain Administrator shall maintain a record of all actions involving

an appeal and shall report variances to the Federal Emergency Management Agency

upon request.

E. Variances may be issued for the reconstruction, rehabilitation or restoration

of structures listed on the National Register of Historic Places or the State Inventory of

Historic Places, without regard to the procedures set forth in the remainder of these

statutes.

F. Variances may be issued for new construction and _ substantial

improvements to be erected on a lot of one-half acre or less.in size contiguous to and

surrounded by lots with existing structures constructed below the base flood level,

providing the relevant factors in §11-403.B of this chapter have been fully considered. As

the lot size increases beyond the one-half acre, the technical justification required for

issuing the variance increases.

Page 15 of 24

NCA 21-009

G. Upon consideration of the factors noted above and the intent of these

statutes, the Appeal Board may attach such conditions to the granting of variances as it

deems necessary to further the purpose and objectives of these statutes (§ 11-102).

H. Variances shall not be issued within any designated floodway if any

increase in flood levels during the base flood discharge would result.

I. Variances may be issued for the repair or rehabilitation of historic structures

upon a determination that the proposed repair or rehabilitation will not preclude the

structures continued designation as a historic structure and the variance is the minimum

necessary to preserve the historic character and design of the structure.

J. Prerequisites for granting variances:

1. Variances shall only be issued upon a determination that the variance is

the minimum necessary, considering the flood hazard, to afford relief.

2. Variances shall only be issued upon:

a. Showing a good and sufficient cause;

b. A determination that failure to grant the variance would result in

exceptional hardship to the applicant; and

c. A determination that the granting of a variance will not result in

increased flood heights, additional threats to public safety,

extraordinary public expense, create nuisances, cause fraud on or

victimization of the public, or conflict with existing local laws,

regulations or ordinances.

3. A written notice will be provided to any person granted a variance to

build a structure below the base flood elevation. This notice will inform

the variance applicant that the cost of flood insurance will be

commensurate with the increased risk resulting from permitting the

structure to be built lower than the base flood elevation.

K. Variances may be issued by a community for new construction and

substantial improvements and for other development necessary for the conduct of a

functionally dependent use provided that:

1. The criteria outlined in § 11-404.A-I are met; and

2. The structure or other development is protected by methods that

minimize flood damages during the base flood and create no additional

threats to public safety.

Page 16 of 24

NCA 21-009

L. Any person seeking a variance shall file a petition with the Appeal Board,

accompanied by a filing fee of Twenty-Five Dollars ($25.00). All appeals must be in writing

and provided to the Appeal Board at least five (5) days in advance of an LNC Committee

Meeting.

SUBCHAPTER 5. PROVISIONS FOR FLOOD HAZARD REDUCTION

§ 11-501. General Standards

In all areas of special flood hazards the following provisions are required for new

construction and substantial improvements:

A. All new construction or substantial improvements shall be designed (or

modified) and adequately anchored to prevent flotation, collapse or lateral movement of

the structure resulting from hydrodynamic and hydrostatic loads, including the effects of

buoyancy;

B. All new construction or substantial improvements shall be constructed by

methods and practices that minimize flood damage;

C. All new construction or substantial improvements shall be constructed with

materials resistant to flood damage;

D. All new construction or substantial improvements shall be constructed with

electrical, heating, ventilation, plumbing, and air conditioning equipment and other service

facilities that are located at or above the base flood elevation plus one foot so as to

prevent water from entering or accumulating within the components during conditions of

flooding;

E. All new and replacement water supply systems shall be designed to

minimize or eliminate infiltration of flood waters into the system;

F, New and replacement sanitary sewage systems shall be designed to

minimize or eliminate infiltration of flood waters into the system and discharge from the

systems into floodwaters; and

G. On-site waste disposal systems shall be located to avoid impairment to

them or contamination from them during flooding.

Page 17 of 24

NCA 21-009

§ 11-502. Specific Standards

In all areas of special flood hazards where base flood elevation data has been provided

as set forth in (i) §11-302; (ii) § 11-402.H; or (iii) § 11-503(C) of this chapter, the following

provisions are required:

A. Residential Construction — new construction and substantial improvement

of any residential structure shall have the lowest floor (including basement), elevated to

or above the base flood elevation plus one foot. A registered professional engineer,

architect, or land surveyor shall submit a certification to the Floodplain Administrator that

the standard of this subsection as proposed in § 11-403.A.1 is satisfied.

B. Nonresidential Construction — new construction and substantial improvements

of any commercial, industrial or other nonresidential structure shall either have the lowest

floor (including basement) elevated to or above the base flood level plus one foot or

together with attendant utility and sanitary facilities, be designed so that below the base

flood level plus one foot the structure is water tight 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. A registered professional

engineer or architect shall develop and/or review structural design specifications, and

plans for the construction, and shall certify that the design and methods of construction

are in accordance with accepted standards of practice as outlined in this subsection. The

Floodplain Administrator shall maintain a record of all flood proofing certifications that

includes the specific elevation (in relation to mean sea level) to which each structure has

been flood proofed.

C. Enclosures — new construction and substantial improvements, with fully

enclosed areas below the lowest flood that are usable solely for parking of vehicles,

building access or storage in an area other than a basement and which are subject to

flooding shall be designed to automatically equalize hydrostatic flood forces on exterior

walls by allowing the entry and exit of floodwaters. Designs for meeting this requirement

must either be certified by a registered professional engineer or architect or meet or

exceed the following minimum criteria:

1. A minimum of two openings having a total net area of not less than one

square inch for every square foot of enclosed area subject to flooding

shall be provided.

2. The bottom of all openings shall be no higher than one foot above grade.

3. Openings may be equipped with screens, louvers, valves, or other

coverings or devices provided that they permit the automatic entry and

exit of floodwaters.

Page 18 of 24

NCA 21-009

D. Manufactured Homes —

1. Require that all manufactured homes to be placed within Zone A on a

community's FHBM or FIRM shall be installed using methods and

practices that minimize flood damage. For the purposes of this

requirement, manufactured homes must be elevated and anchored to

resist flotation, collapse, or lateral movement. Methods of anchoring

may include, but are not limited to, use of over-the-top or frame ties to

ground anchors. This requirement is in addition to applicable State and

local anchoring requirements for resisting wind forces.

2. Require that manufactured homes that are placed or substantially

improved within Zones Al-30, AH, and AE on the community’s FIRM on

sites (i) outside of a manufactured home park or subdivision, (ii) in a new

manufactured home park of subdivision, (iii) in an expansion to an

existing manufactured home park or subdivision, or (iv) in an existing

manufactured home park or subdivision on which a manufactured home

has incurred “substantial damage” as a result of a flood, be elevated on

a permanent foundation such that the bottom of the longitudinal

structural |-beam of the manufactured home is elevated to or above the

base flood elevation plus one foot and be securely anchored to an

adequately anchored foundation system to resist flotation, collapse, and

lateral movement.

3. Require that manufactured homes be placed or substantially improved

on sites in an existing manufactured home park or subdivision with

Zones Al-30, AH and AE on the community's FIRM that are not subject

to the provisions of paragraph (D) of this section be elevated so that

either:

a. The bottom of the longitudinal structural l-beam of the manufactured

home is at or above the base flood elevation plus one foot; and

b. Elevated on reinforced piers or other foundation elements of at least

equivalent strength that are no less than 48 inches in height above

grade and be securely anchored to an adequately anchored

foundation system to resist flotation, collapse, and lateral movement

to support the manufactured home chassis.

E. Recreational Vehicles — Require that recreational vehicles placed on sites

within Zones Al-30, AH, and AE on the community's FIRM either:

1. Be on the site for fewer than 180 consecutive days;

2. Be fully licensed and ready for highway use; or

Page 19 of 24

NCA 21-009

3. Meet the permit requirements of § 11-403.1 of this chapter, and the

elevation and anchoring requirements for “manufactured homes” in

paragraph D of this section.

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 security devices and has

no permanently attached additions.

F. Accessory Structure —

Structure is low valued and represents a minimal investment.

Structure shall be small and not exceed 600 square feet in size.

Structure shall be unfinished on the interior.

Structure can be used only for parking and limited storage.

Structure shall not be used for human habitation (including work,

sleeping, living, cooking, or restroom areas).

6. Service facilities such as electrical and heating equipment must be

elevated to or above the BFE or flood proofed.

7. Structure is constructed and placed on building site so as to offer the

minimum resistance to the flow of floodwaters.

8. Structure is designed to have low flood damage potential, i.e.

constructed with flood resistance materials.

9. Structure firmly anchored to prevent flotation, collapse, and lateral

movement.

10. Floodway requirements must be met in the construction of the structure.

11.Openings to relieve hydrostatic pressure during a flood shall be provided

below the BFE.

12.Structure is to be located so not to cause damage to adjacent and

nearby structures.

akWON>

§ 11-503. Standards for Subdivision Proposals

A. All Subdivision proposals including the placement of manufactured home

parks and subdivisions shall be consistent with Subchapter 1 of these statutes.

B. All proposals for the development of subdivisions including the placement

of manufactures home parks and subdivisions shall meet Development Permit

requirements of §11-303; Subchapter 4, § 11-403; and the provisions of Subchapter 5 of

these statutes.

C. Base flood elevation data shall be generated for subdivision proposals and

other proposed development including the placement of manufactured home parks and

subdivisions which are greater than 50 lots or 5 acres, whichever is lesser, if not otherwise

Page 20 of 24

NCA 21-009

provided pursuant to Subchapter 3, § 11-302 or Subchapter 4, § 11-402(H) of these

statutes.

D. All subdivision proposals including the placement of manufactured home

parks and subdivisions shall have adequate drainage provided to reduce exposure to

flood hazards.

E. All subdivision proposals including the placement of manufactured home

parks and subdivisions shall have public utilities and facilities such as sewer, gas,

electrical, and water systems located and constructed to minimize or eliminate flood

damage.

§ 11-504. Standards for Areas of Shallow Flooding (AO/AH Zones)

Located within the areas of special flood hazard established in Sub-Chapter 3, § 11-302,

are areas designated as shallow flooding. These areas have special flood hazards

associated with base flood depths of 1 to 3 feet where a clearly defined channel does not

exist and where the path of flooding is unpredictable and where velocity flows may be

evident. Such flooding is characterized by ponding or sheet flow. Therefore, the following

provisions apply:

A. All new construction and substantial improvements of residential structures

have the lowest floor (including basement) elevated to or above the base flood elevation

plus one foot or the highest adjacent grade at least as high as the depth number specified

in feet plus one foot on the community’s FIRM (at least two feet plus one foot freeboard

if no depth number is specified).

B. All new construction and substantial improvements of non-residential

structures:

1. Have the lowest floor (including basement) elevated to or above the

base flood elevation plus one foot or the highest adjacent grade at least

as high as the depth number plus one foot specified in feet on the

community's FIRM (at least two feet plus one foot freeboard if no depth

number is specified), or

2. Together with attendant utility and sanitary facilities be designed so that

below the specified base flood depth plus one foot in an AO Zone, or the

Base Flood Elevation plus one foot in an AH Zone, the structure is water

tight with walls substantially impermeable to the passage of water and

with structural components having the capability of resisting hydrostatic

and hydrodynamic loads of effects of buoyancy.

Page 21 of 24

NCA 21-009

3. A registered professional engineer or architect shall submit a

certification to the Floodplain Administrator that the standards of this

Section, as proposed in Sub-Chapter 4, § 11-403.(A)(1), are satisfied.

4. Require within Zones AH or AO adequate drainage paths around

structures on slopes, to guide floodwaters around and away from

proposed structures.

§ 11-505. Floodways

Floodways located within areas of special flood hazard established in § 11-302 are areas

designated as floodways. Since the floodway is an extremely hazardous area due to the

velocity of floodwaters that carry debris, potential projectiles and erosion potential, the

following provisions shall apply:

A. Encroachments are prohibited, including fill, new construction, substantial

improvements and other development within the adopted regulatory floodway unless it

has been demonstrated through hydrologic and hydraulic analyses performed in

accordance with standard engineering practice that the proposed encroachment would

not result in any increase in flood levels within the community during the occurrence of

the base flood discharge.

B. If Sub-Chapter 5, § 11-505.A, above is satisfied, all new construction and

substantial improvements shall comply with all applicable flood hazard reduction

provisions of Sub-Chapter 5.

C. Under the provisions of 44 CFR Chapter I, 44 CFR § 65.12, of the National

Flood Insurance Regulations, a community may permit encroachments within the adopted

regulatory floodway that would result in an increase in base flood elevations, provided

that the community first completes all of the provisions required by Section 65.12.

§11-506. Severability

If any section, clause, sentence, or phrase of these statutes is held to be invalid or

unconstitutional by any committee or competent jurisdiction, then said holding shall in no

way affect the validity of the remaining portions of these statutes.

SUBCHAPTER 6. PENALTIES FOR NONCOMPLIANCE

§ 11-601. Failure to Comply

No structure or land shall hereafter be constructed, located, extended, converted, or

altered without full compliance with the terms of this Act and other applicable

statutes/Regulations. Violation of the provisions of this Act by failure to comply with any

Page 22 of 24

NCA 21-009

of its requirements (including violations of conditions and safeguards established in

connection with conditions) shall constitute a misdemeanor.

§ 11-602. Violations or Citation issued by the Building Code Inspector or Tribal

Officer

Any person who fails to comply with any or all of the requirements or provisions of this

Act or who fails or refuses to comply with any notice, order of direction of the Building

Code Inspector or any other authorized employee of the Muscogee (Creek) Nation (in a

code enforcement capacity) shall be guilty of a summary offense and, upon conviction,

shall pay a fine to the Muscogee (Creek) Nation of not less than Twenty-Five Dollars

($25.00) nor more than Six Hundred Dollars ($600.00) plus costs of prosecution. In

default of such payment, all property of person shall be impounded until violator appears

in Tribal Court to have property released. The violator shall be removed by force off tribal

land until their appearance in Tribal Court. Each day during which any violation of this

Act continues shall constitute a separate offense. In addition to the above penalties, all

other actions are hereby reserved including an action in equity for the proper enforcement

of this Act. The imposition of a fine or penalty for any violation of, or noncompliance with,

this Act shall not excuse the violation or noncompliance or permit it to continue and all

such persons shall be required to correct or remedy such violations and noncompliances

within a reasonable time.

§ 11-603. Violations or Civil Citation issued by the Zoning Officer or Tribal Official

Any person who fails to comply with any or all of the requirements or provisions of this

Act or who fails or refuses to comply with any notice, order of direction by the Zoning

Officer or Tribal Official shall be guilty of a Civil Offense and upon conviction, shall pay a

civil fine to the Muscogee (Creek) Nation of not less than Five Hundred Dollars ($500.00)

plus the costs of prosecution. Each day during which any violation of this Act continues

shall constitute a separate offense. In addition to the above penalties all other actions

are hereby reserved including an action in equity for the proper enforcement of this Act.

The imposition of a fine or penalty for any violation of, or noncompliance with, this Act

shall not excuse the violation or noncompliance or permit it to continue and all such

persons shall be required to correct or remedy such violations and noncompliance within

a reasonable time.

§ 11-604. Right to Appeal

Any person who fails to comply with any or all of the requirements or provisions of this

Act or who fails or refuses to comply with any notice, order of direction of the Zoning

Officer or any other authorized employee of the Muscogee (Creek) Nation shall be given

notice that they have the right to appeal, within thirty (30) days of receiving such notice.

Page 23 of 24

NCA 21-009

§ 11-605. Public Nuisance

Any development initiated or any structure or building constructed, reconstructed,

enlarged, altered, or relocated, in noncompliance with this Act, may be declared by the

Muscogee (Creek) Nation to be a public nuisance and abatable as such.

§ 11-606. Other Action

Nothing herein contained shall prevent the Muscogee (Creek) Nation from taking such

other lawful action as is necessary to prevent or remedy any violation.

SECTION THREE. EFFECTIVE DATE. This Act shall become effective immediately

upon proper approval and execution in accordance with the requirements of the

Muscogee (Creek) Nation Constitution.

ENACTED by the Muscogee (Creek) National Council on this 27 day of February, 2021.

IN WITNESS WHEREOF, the Speaker of the Muscogee (Creek) National Council has

hereto attached his signature.

Randall Hicks, Speaker

National Council

Muscogee (Creek) Nation

CERTIFICATION

I, the undersigned, certify that the foregoing is a true extract from the minutes of the

Muscogee (Creek) National Council comprised of Sixteen members with Sixteen

members attending this meeting on the 27 day of February, 2021 and that the above is

in conformity with the provisions therein adopted by a vote of 15 in favor, 0 against and

that said Law has not been rescinded or amended in any way and the above is the

signature of the Speaker of the National Council.

Kristie A. Jackson, R

Muscogee (Creek) Nation f Council

Page 24 of 24

NCA 21-009

APPROVAL

I, ihe, Principal Chief of the Muscogee (Creek) Nation, hereby affix my signature on this

y| day of Waa oS , 2021 to the above Law, NCA 21-009 authorizing it to

become a Law under Article VI., Section VI., of the Constitution of the Muscogee (Creek)

Nation.

. ¢

David W. Hill, Principal Chief

Muscogee (Creek) Nation