Flood Risk and the Law

It is spring in Fernie, which means waiting for the trails to melt and watching the Elk River and Coal Creek rise. With recent events in the news like the Washington landslide and the Alberta floods last year, I figured Fernie Fix readers would be interested in some information about the legal considerations surrounding the inherent flood risk in the Elk Valley. I’ve asked Jeff Zukiwsky, an Environmental Planner, to answer a few questions for us.

Who is responsible for flood Management?

Historically, flood management has been the Provinces’ responsibility. But, in 2003 the BC provincial government enacted the Flood Hazard Statutes Amendment Act, which shifted responsibility for flood risk to local governments, like the City of Fernie. The province provided municipalities with floodplain maps showing the 1:200 floodplain, and provided recommended flood construction levels (height above the floodplain) and setbacks for development.

How do municipalities manage floodplain development?

There are three primary means by which municipalities manage flood risk: (1) a specific floodplain management bylaw, (2) a zoning bylaw, or, (3) a Development Permit Area within the Official Community Plan (OCP). These local bylaws define setbacks and flood construction levels related to development in the floodplain.

The City of Fernie has a flood hazard development permit area in the new OCP and anyone who develops in the floodplain is required to meet minimum setbacks and construction levels. For rural residents, the Elk Valley Zoning Bylaw defines similar restrictions.

Those are all the legal ways in which we manage floodplain development. There are of course a number of infrastructure projects that have been implemented along the Elk River which help reduce flood risk with the West Fernie Dike project being the latest example.

The changing hydrology in our rivers is an important issue at play however. It is widely recognized that in BC our existing floodplain maps are out dated due to shifting river channels, development patterns and changing climate. So, we are either under-estimating the floodplain extent (in which case there are properties and infrastructure at risk) or, we are over-estimating the floodplain extent (in which case we are missing out on potential development opportunities). It is much more likely to be the former.

Are Governments Legally Required to Manage Flood Risk?

No. There is no legal requirement for a local government to do anything to protect people and property from flooding. The Local Government Act says that municipalities “may” provide “protection of development from hazardous conditions”; in other words, they don’t have to. Generally, government policy decisions are exempt from lawsuits. That is, a government cannot be deemed negligent for developing in a high hazard area, if the decision to do so was a policy one.

They can however, be negligent for operational decisions that lead to increased flood risk or damage – like failing to clean and maintain culverts and storm drains.

Is my house at risk from flooding?

If you live in the Annex, West Fernie or the Airport, you are probably in an active floodplain and flood hazard area. You can check out the City of Fernie’s Flood Hazard Development Permit Area Map, or RDEKs Zoning Bylaw, to see where your house is in relation to the known floodplain.

Does my home insurance cover me from flood damage?

As many people in Alberta found out last summer, your home insurance absolutely does not provide coverage for flood damage. There is no overland flood insurance available anywhere in Canada. This means that if water enters your home, and it is not caused by sewer back-up, you are not covered. In fact, Canada is the only G8 country where insurance for overland flood damage to your home is not available.

What should you take from this article?
There is no legal requirement for developers or realtors to disclose flood risks to potential homebuyers, so it is “buyer beware;” it is your responsibility as a home buyer to check this out beforehand. You are not insured for flood damage. Climate change is dramatically changing the hydrology in our rivers and creeks, leading to increased risk of flooding, primarily from heavy precipitation events which are becoming much more common.