New Floodplain Ordinance Targets Oil and Gas Operations

by Spilman Thomas & Battle, PLLC

The County Commission in Doddridge County, West Virginia is currently considering amendments to its Floodplain Ordinance as a result of a December 17, 2012 decision by the Circuit Court of Doddridge County. (Comments to the amended floodplain ordinance were due by March 25, 2013.) The facts and procedural posture of the Doddridge County case are convoluted. Essentially, in a civil action filed with the Circuit Court of Doddridge County regarding the issuance and then withdrawal of a floodplain permit, the Court took it upon itself to declare the Doddridge County Floodplain Ordinance unconstitutional, in part. 

In its five page decision, the Court found that the “Doddridge County Flood Plain Ordinance is in violation of the West Virginia Constitution to the extent that the Ordinance fails to provide Due Process to surface and adjoining landowners potentially affected by the development for which EQT Production Company seeks a permit.” The Court further stated that “[i]n order to comply with the standard requirements of due process afforded property owners under the West Virginia Constitution the subject Ordinance when being applied under circumstances involving the request for a permit which potentially affects surface owners who are situate within or adjoining the subject floodplain must afford notice and an opportunity to be heard upon the requested permit to this class of property owners.”
By way of background, each county and many municipalities in West Virginia have adopted an individual version of floodplain ordinance designed to comply with the National Flood Insurance Act of 1968 (“NFIA”) and implement West Virginia Code § 7-1-3v (“Floodplain and mudslide area management” passed by West Virginia legislature to implement the NFIA). The primary purpose of NFIA was to provide a government source for flood insurance which had become virtually unobtainable from private insurers due to severe flooding in the early 1960s. The National Flood Insurance Program (“NFIP”), managed by the Federal Emergency Management Administration (“FEMA”), implements the NFIA. The NFIP aims to provide flood insurance, improve floodplain management and develop flood hazard zone mapping. Accordingly, floodplain ordinances provide a regulatory framework for reviewing any construction development projects in a flood zone and authorizing, by permit, those projects meeting ordinance requirements. West Virginia county commissions in the core regions of Marcellus Shale development, including Brooke, Doddridge, Hancock, Harrison, Marshall, Ohio, Tyler and Wetzel Counties, have passed new or updated floodplain ordinances. Currently, all of these ordinances are nearly uniform and are based on a model floodplain ordinance generated by the West Virginia Department of Homeland Security and Emergency Management (“WVDHS&EM”).
County floodplain ordinances generally define “base flood elevation,” “one hundred year flood,” “development,” “lowest floor,” “floodplain area” and other floodplain related terms. The ordinances also impose restrictions on construction within a floodway or floodplain and set design standards for permitted construction within the floodplain. The ordinances further establish forms and procedures for applications to the designated floodplain administrator for a determination of whether a development is within the floodplain and requires a permit. Whether a permit is required is essentially determined by where the project is located on FEMA approved floodplain mapping. From one county to another there are numerous minor differences between the ordinances. These differences arise from the counties utilizing different year versions of the model ordinance provided by the state and also of minor alterations made specifically by each county. These floodplain ordinances are extensive in scope, generally spanning 30 or more pages. Accordingly, businesses should review carefully the specific county ordinances applicable to any construction activity they may be planning.
Despite the relative uniformity of county floodplain ordinances historically, the Doddridge County Commission is proposing changes to its Floodplain Ordinance that vary significantly from prior incarnations. A non-exhaustive list of the more unique provisions includes:
  1. expressly adding to the definition of “development” the phrase “oil/gas well sites, pads, pits, retention ponds”;
  2. requiring the filing of all “contract(s)” related to the proposed development for review and retention, subject to redaction of proprietary and confidential information;
  3. requiring the Floodplain Administrator to “review all objections, comments, protest letters and other writings submitted in opposition of said Permit Application and give due consideration to the same before granting or denying said Permit”;
  4. authorizing the Floodplain Administrator, “in his sole discretion, to hold a public meeting wherein evidence can be taken or given by interested persons or parties. Said hearing shall have a court reporter present to record all testimony and receive all exhibits and evidence”;
  5. requiring a detailed Floodplain Permit Application, including the “amount in dollars of the actual total construction costs of the complete project irrespective of whether all or any part of the subject proposed construction project is within the Floodplain Area,” prior to determining whether the proposed work is located in a floodplain area or not;
  6. requiring the County Clerk to serve notice of the permit application to each “property owner” and “all adjacent property owners and at least one adult resident for each residence on said properties . . . by Certified Mail,” and service by the County Sheriff if the certified mail return receipt is not returned within 10 days, and to publish a Class II legal advertisement notice of the permit application;
  7. requiring the Floodplain Administrator to “notify any appropriate agency or authority if the Floodplain Administrator finds a violation of any non-Floodplain law, regulation or ordinance”; and
  8. establishing an application for Floodplain Permit fee based upon a schedule set by the Doddridge County Commission using the “actual construction costs amount of the proposed construction as determined by the Floodplain Administrator,” only 80% of which will be refunded if the Floodplain Administrator “determines the complete proposed project is not within the Floodplain.”
None of the provisions noted above is found in floodplain ordinances for the other Marcellus counties mentioned above. The other county ordinances provide for a flat Floodplain Determination fee ranging from $20 to $30. A county’s determination whether a project is in a floodplain area could cost a significant amount for a substantial development project. Doddridge County’s proposed determination fee based on project cost, with 80% refund as applicable, is unique.
None of the previously mentioned Marcellus counties’ floodplain ordinances, at least as originally passed, contain provisions that directly target oil and gas development, nor any other specific type of industrial development. The revisions being proposed by the Doddridge County Commission appear to reflect a significant departure from the model and the message that Doddridge County appears to be sending to the oil and gas industry does not appear to be a positive one.  The question is whether these new provisions, if adopted, will spread to other counties.
In a subsequent article we will address the legal issues that may arise in the event that Doddridge County adopts the proposed floodplain ordinance and the interplay between the federal, state and local requirements of the NFIA/NFIP in connection with oil and gas development.

For more information, please contact:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

Written by:

Spilman Thomas & Battle, PLLC

Spilman Thomas & Battle, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.