DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708 TITLE

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

TITLE 17: CONSERVATION

CHAPTER I: DEPARTMENT OF NATURAL RESOURCES

SUBCHAPTER h: WATER RESOURCES

PART 3708

FLOODWAY CONSTRUCTION IN NORTHEASTERN ILLINOIS

Section

3708.10 Purpose

3708.20 Definitions

3708.30 Jurisdiction

3708.40 General Provisions

3708.50 Regulatory Floodway Maps

3708.60 Delineation of the Regulatory Floodway

3708.70 Permitting Appropriate Uses of the Regulatory Floodway

3708.80 Changes to the Regulatory Floodway

3708.90 Delegation to Municipalities and Counties

3708.100 Violations

3708.110 Permit Application

3708.115 Permit Application Fee

3708.120 Public Notice

3708.130 Public Hearings

3708.140 Time to Permit Issuance; Emergency Authorizations; Duration; Revisions

3708.150 Permit Conditions

3708.160 General Permits

3708.170 Regional Permits and Statewide Permits

3708.175 Permits Not Transferrable

3708.180 Final Administrative Decisions

3708.190 Effective Date

AUTHORITY: Implementing and authorized by Sections 18g and 35 of the Rivers, Lakes and

Streams Act [615 ILCS 5/18g and 35].

SOURCE: Adopted at 12 Ill. Reg. 20547, effective November 29, 1988; amended at 13 Ill. Reg.

8667, effective May 23, 1989; amended at 16 Ill. Reg. 194, effective December 19, 1991;

amended at 18 Ill. Reg. 11284, effective July 5, 1994; recodified from 92 Ill. Adm. Code 708,

Department of Transportation, to the Department of Natural Resources, at 22 Ill. Reg. 7362;

amended at 27 Ill. Reg. 7782, effective April 21, 2003; amended at 38 Ill. Reg. 983, effective

December 27, 2013; amended at 39 Ill. Reg. 1176, effective December 31, 2014.

Section 3708.10 Purpose

The purpose of this Part is to provide rules governing construction and filling in the regulatory

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

floodway of rivers, lakes and streams of Cook, DuPage, Kane, Lake, McHenry and Will

Counties, excluding the City of Chicago so that periodic inundation will not:

a) Pose a danger to the general health and welfare of the user;

b) Require the expenditure of public funds;

c) Require the provision of public resources or disaster relief services (Section 18g

of the Rivers, Lakes and Streams Act [615 ILCS 5]; and

d) Result singularly or cumulatively in greater flood damages or potential flood

damages due to increases in flood stage or velocities or loss of flood storage.

Section 3708.20 Definitions

Unless specifically defined in this Section, words and phrases used in this Part shall be

interpreted so as to give them the meaning they have in common usage.

"Act" − The Rivers, Lakes and Streams Act [615 ILCS 5].

"Application" − An application for a permit to authorize new construction in a

regulatory floodway as required by this Part.

"Appropriate Use" − See Section 3708.70.

"Building" − A structure that is principally above ground and is enclosed by walls

and a roof. This term includes a gas or liquid storage tank, a manufactured home,

or a prefabricated building. This term also includes recreational vehicles and

travel trailers to be installed on a site for more than 180 days.

"Conditional Approval of a Regulatory Floodway Map Change" −

Preconstruction approval by the Department and FEMA of a proposed change to

the floodway map. This preconstruction approval, pursuant to this Part, gives

assurances to the property owner that once an appropriate use is constructed

according to permitted plans, the floodway map can be changed, as previously

agreed, upon review and acceptance of as-built plans. The Department will

accept as-built plans which show the project was built in accordance with the

permitted plans.

"Department" − The Illinois Department of Natural Resources.

"FEMA" − Federal Emergency Management Agency and its regulations at 44

CFR 65 effective as of October 1, 1988. This incorporation does not include any

later editions or amendments.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

"Flood Fringe" − That portion of the flood plain outside the regulatory floodway.

"Flood Plain" − That land adjacent to a body of water with ground surface

elevations at or below the 100-year frequency flood elevation.

"Hydraulically Significant" − The length of a hydraulically significant portion of

a watershed is determined by three factors; the drainage area of the watershed, the

amount of flood plain storage in the regulatory floodway of the stream, and the

impact flood plain storage has on reducing downstream flood heights. For

example, on a stream with a small drainage area, with little flood plain storage,

and little downstream impact, only one municipality may have to require effective

compensatory storage. On larger streams, several communities may be involved.

"New Construction" − The construction of any new building or structure or the

placement of any fill, material, or structure or regrading but does not include the

repair, remodeling, or maintenance of buildings or structures in existence on

November 18, 1987 (Section 18g of the Act).

"Office" − The Illinois Department of Natural Resources, Office of Water

Resources.

"Public Flood Control Project" − A flood control project which will be operated

and maintained by a public agency to reduce flood damages to existing buildings

and structures which includes a hydrologic and hydraulic study of the existing and

proposed conditions of the watershed. Nothing in this definition or this Part shall

preclude the design, engineering, construction or financing, in whole or in part, of

a flood control project under this Part by persons or parties who are not public

agencies.

"Registered Land Surveyor" − A land surveyor registered in the State of Illinois,

under the Illinois Professional Land Surveyor Act [225 ILCS 330].

"Registered Professional Engineer" − An engineer registered in the State of

Illinois, under the Illinois Professional Engineering Practice Act [225 ILCS 325].

"Regulatory Floodway" − The channel and that portion of the floodplain adjacent

to a stream or watercourse as designated by the Department pursuant to Section

18g of the Act, which is needed to store and convey the 100-year frequency flood

discharge with no more than a 0.1 foot increase in stage due to the loss of flood

conveyance or storage, and no more than a 10% increase in velocities (Section

18g of the Act).

"Repair, Remodeling or Maintenance" − Construction activities which do not

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

result in any increases in the outside dimensions of a building or any changes to

the dimensions of a structure.

"Structure" − The results of a man-made change to the land constructed on or

below the ground, including the construction, reconstruction or placement of a

building or any addition to a building; installing a manufactured home on a site,

preparing a site for a manufactured home or installing a travel trailer on a site for

more than 180 days; installing utilities, construction of roads or similar projects;

construction or erection of levees, walls, fences, bridges or culverts; drilling,

mining, filling, dredging, grading, excavating; and the storage of materials.

"Transition Sections" − are reaches of the stream or floodplain where water flows

from a narrow cross-section to a wide cross-section or vice versa.

(Source: Amended at 38 Ill. Reg. 983, effective December 27, 2013)

Section 3708.30 Jurisdiction

a) Activities Requiring a Permit Under This Part

The following activities are subject to this Part and require a permit from the

Department: New construction within the regulatory floodways in Cook, Dupage,

Kane, Lake, McHenry and Will Counties, except for those areas which are within

the City of Chicago (Section 18g of the Act).

b) Exempted Activities

The following activities are specifically exempt from this Part: repair,

remodeling or maintenance of buildings or structures in existence as of November

18, 1987, (Section 18g of the Act).

c) Government Activities

Activities of the Department and all other state, federal and local units of

government such as drainage districts, school districts, park districts, forest

preserve districts, must comply with this Part.

Section 3708.40 General Provisions

a) It is not the intention of this Part to repeal, abrogate, or impair any existing

easements, covenants, or deed restrictions. Where this Part imposes more

stringent restrictions than existing easements, covenants, or deed restrictions, the

provisions of this Part shall prevail.

b) In their interpretation and application, the provisions of this Part shall be held to

be minimum requirements and shall not be deemed a limitation or repeal of any

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

other State Statutes or rules or Department programs. For example, if the

Department owns land to which these rules apply, lessees may be required to

meet lease restrictions on proposed construction activities in addition to this Part.

c) This Part shall not create liability on the part of the Department or any officer or

employee thereof for any flood damages that result from reliance on this Part or

any administrative decision lawfully made thereunder.

d) If any part of this Part is adjudged unconstitutional or invalid by a court of

competent jurisdiction, the remainder of this Part shall not be affected thereby.

Section 3708.50 Regulatory Floodway Maps

The Department will compile and keep a list of all regulatory floodway maps it has designated.

The list will indicate the source and date of each designated map. Each municipality and county

will be given a list of designated regulatory floodway maps in effect in its jurisdiction. A copy

of the list will be available for inspection in the Office of Water Resources at the Region 2

Office, 2050 West Stearns Road, Bartlett IL 60103.

(Source: Amended at 27 Ill. Reg. 7782, effective April 21, 2003)

Section 3708.60 Delineation of the Regulatory Floodway

a) The regulatory floodway is defined based on a flood event that has a one percent

annual chance of exceedence or an expected 100-year recurrence interval. The

Department encourages, but does not require, that the 100-year frequency flood

event be determined based on anticipated future land use in the watershed. When

utilized, anticipated future land use should be based on adopted local or regional

land use plans.

b) The boundary of the regulatory floodway is portrayed on Department regulatory

floodway maps. To locate the regulatory floodway boundary on any site, the

regulatory floodway boundary should be scaled off the regulatory floodway map

and located on a site plan, using reference marks common to both maps. Where

interpretation is needed to determine the exact location of the regulatory floodway

boundary, the Office should be contacted for the interpretation.

c) The regulatory floodway boundaries are determined by hydraulic and hydrologic

analyses, which calculate that portion of the flood plain which must be preserved

to store and discharge floodwaters without causing damaging or potentially

damaging increases in flood stage and flood velocities or loss of flood storage

which would result singularly or cumulatively in more than a 0.1 foot increase in

flood stage or a 10% increase in velocity.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

d) The need to preserve storage when defining the regulatory floodway will be

waived by the Department if all the municipalities and counties along a

hydraulically significant portion of the watershed require effective compensatory

storage for all construction and fill in the 100-year frequency flood plain.

Effective compensatory storage requires flood plain storage volumes be replaced

at the same flood frequency event as previously existed. Additionally, legal

assurances such as easements must be provided so that the compensatory storage

site will remain open to the stream system in order to allow flood waters to reach

it.

e) Determination of the flood elevation at any point along the stream shall be made

from the flood profile.

(Source: Amended at 38 Ill. Reg. 983, effective December 27, 2013)

Section 3708.70 Permitting Appropriate Uses of the Regulatory Floodway

a) The Department will issue permits for appropriate uses of the regulatory floodway

of which periodic inundation will not pose a danger to the general health and

welfare of the user or require the expenditure of public funds or the provisions of

public resources or disaster relief services (Section 18g of the Act) or result in

increased flood stages due to the singular or cumulative loss of regulatory

floodway storage or regulatory floodway conveyance or increase in flood

velocities.

b) To receive a permit for work in the regulatory floodway, the proposed

construction shall meet two criteria:

1) The proposed construction shall be an appropriate use of the regulatory

floodway as defined in subsection (c); and

2) The proposed construction shall not reduce the regulatory floodway

storage or conveyance and shall not increase regulatory floodway

velocities.

c) Appropriate uses of the regulatory floodway that will be considered for permit

issuance consist of construction, modification, repair, or replacement of:

1) Flood control structures, dikes, dams and other public works or private

improvements relating to the control of drainage, flooding or erosion

(Section 18g of the Act) or water quality or habitat for fish and wildlife

(e.g. Section 3708.80(a)(3) and(4));

2) Structures or facilities relating to the use of, or requiring access to, the

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

water or shoreline, such as pumping and treatment facilities, and facilities

and improvements related to recreational boating, commercial shipping

and other functionally dependent uses (Section 18g of the Act);

3) Storm and sanitary sewer outfalls;

4) Underground and overhead utilities;

5) Recreational facilities such as playing fields and trail systems including

any related fencing built parallel to the direction of flood flows;

6) Detached Garages, storage sheds, or other non-habitable accessory

structures to existing buildings that will not block flood flows. This does

not include the construction or placement of any other new structures,

(Section 18g of the Act) fill, building additions, buildings on stilts, fencing

(including landscaping or plantings designed to act as a fence) and the

storage of materials;

7) Bridges, culverts, roadways, sidewalks, railways, runways and taxiways

and any modification thereto;

8) Parking lots built at or below existing grade where either:

A) the depth of flooding at the 100-year frequency flood event will

not exceed 1.0 foot; or

B) the parking lot is for short-term outdoor recreational use facilities

where the applicant agrees to restrict access during overbank

flooding events and agrees to accept liability for all damage caused

by vehicular access during all overbank flooding events;

9) Aircraft parking aprons built at or below ground elevation where the depth

of flooding at the 100-year frequency flood event will not exceed 1.0 foot;

10) Regulatory floodway regrading, without fill, to create a positive slope

toward a watercourse;

11) Flood proofing activities to protect existing structures such as, but not

limited to, constructing water tight window wells, and elevating;

12) The replacement, reconstruction or repair of a damaged building, provided

that the outside dimensions of the building are not increased, and provided

that, if the building is damaged to 50% or more of the building's market

value before it was damaged, the building will be protected from flooding

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

to or above the 100-year frequency flood elevation; and

13) Modifications to an existing building that would not increase the enclosed

floor area of the building below the 100-year frequency flood elevation,

and which will not block flood flows including but not limited to,

fireplaces, bay windows, decks, patios and second story additions.

d) The construction of an appropriate use below the 100-year frequency flood

elevation will be considered permissible provided the proposed project meets the

following criteria and is so stated in writing with supporting plans, calculations

and data by a registered professional engineer or in the case of a federal project,

by the federal agency:

1) In the case of the construction of a new bridge or culvert crossing and

roadway approach, the proposed structure shall not result in an increase of

upstream flood stages greater than 0.1 foot when compared to the

existing conditions for all flood events up to and including the 100-year

frequency event; or the upstream flood stage increases will be contained

within the channel banks (or within existing vertical extensions of the

channel banks) such as within the design protection grade of existing

levees or flood walls or within recorded flood easements; or a flood

control project is built to mitigate the increased backwater due to the

structure.

2) In the case of bridge and culvert reconstruction or modification, the

bridge or culvert and roadway approach reconstruction or modification

shall be constructed with no more than 0.1 foot increase in backwater over

the existing flood profile for all flood frequencies up to and including the

100-year event, if the existing structure is not a source of flood damage.

The proposed construction shall meet the following criteria:

A) The proposed structure, including approach roads, does not result

in an increase in upstream stages for normal and flood flows when

compared to the existing structure.

B) On publicly navigated waterways, the proposed structure is not an

obstruction to navigation.

C) The determination as to whether the existing structure is a source

of flood damage shall be made according to the following method:

i) Determine the increase in upstream flood profile due to the

existing bridge or culvert by calculation or from the flood

study used to delineate the regulatory floodway for all

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

reported flood profiles up to and including the 100-year

flood.

ii) Determine if there are any buildings or structures located

in the 100-year flood plain upstream of the existing bridge

or culvert that may be subjected to flooding. The upstream

flood plain shall be checked for the length of stream

required for the backwater impacts due to the existing

bridge or culvert to be reduced to 0.1 foot or less.

iii) Collect the low opening elevations or lowest damageable

elevations of the upstream buildings and structures as

identified in subsection (d)(2)(c)(ii), above. Determine if

any buildings or structures are subject to inundation by the

100-year frequency flood event.

3) In the case of bridge or culvert reconstruction and modification, if the

existing bridge or culvert and roadway approach is a source of flood

damage to buildings or structures in the upstream flood plain, based on the

above review, the applicant's engineer must evaluate the feasibility of

redesigning the structure to reduce the existing backwater, taking into

consideration the effects on flood stages on upstream and downstream

properties.

A) The applicant's engineer must submit to the Department his or her

evaluation to justify why the proposed structure should be

designed to allow an increase in the upstream flood stage of more

than 0.1 foot when compared to a flood stage without the existing

bridge or culvert or roadway approach in place for all flood events

up to and including the 100-year frequency event.

B) The evaluation shall also consider the feasibility of containing the

upstream flood stage increases within the channel banks (or within

existing vertical extensions of the channel banks such as within the

design protection grade of existing levees or flood walls), or within

recorded flood easements; or constructing a flood control project to

mitigate the increased backwater due to the structure.

4) In the case of any other on-stream structure built for the purpose of

backing up water in the stream during normal or flood flows, but not

permitted as a dam according to 17 Ill. Adm. Code 3702 (Construction and

Maintenance of Dams), the proposed structure shall not result in an

increase of upstream flood stages greater than 0.0 foot when compared to

the existing conditions, for all flood events up to and including the 100-

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

year frequency event; or the upstream flood stage increases will be

contained within the channel banks (or within existing vertical extensions

of the channel banks) such as within the design protection grade of

existing levees or flood walls or within recorded flood easements; or a

flood control project is built to mitigate the increased backwater due to the

structure.

5) In the case of the construction of appropriate uses other than bridge or

culvert crossings, on-stream structures or dams, all effective regulatory

floodway conveyance lost due to the project will be replaced for all flood

events up to and including the 100-year frequency flood. In calculating

effective regulatory floodway conveyance, the following factors must be

taken into consideration:

A) Regulatory floodway conveyance, "K"=1.486AR

2/3

where "n" is Manning's roughness factor, "A" is the effective area

of the cross-section, and "R" is the ratio of the area to the wetted

perimeter. (See Open Channel Hydraulics, Ven Te Chow, 1959

Edition, McGraw-Hill Book Company, New York, New York.

This incorporation contains no later editions or amendments).

B) The same Manning's "n" value shall be used for both existing and

proposed conditions unless a recorded maintenance agreement

with a federal, state or local unit of government can assure the

proposed conditions will be maintained or the land cover is

changing from a vegetative to a non-vegetative land cover.

C) Transition sections must be provided and used in calculations of

effective regulatory floodway conveyance. The following

expansion and contraction ratios shall be used unless an applicant's

engineer can prove to the Department through engineering

calculations and model tests that more abrupt transitions may be

used with the same efficiency:

i) When water is flowing from a narrow section to a wider

section, the water should be assumed to expand no faster

than at a rate of one foot horizontal for every four feet of

the flooded stream's length.

ii) When water is flowing from a wide section to a narrow

section, the water should be assumed to contract no faster

than at a rate of one foot horizontal for every one foot of

the flooded stream's length.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

iii) When expanding or contracting flows in a vertical

direction, a minimum of one foot vertical transition for

every ten feet of stream length shall be used.

iv) Transition sections shall be provided between cross-

sections with rapid expansions and contractions and when

meeting the regulatory floodway delineation on adjacent

properties.

v) All cross-sections used in the calculations must be located

perpendicular to flood flows.

6) For all appropriate uses, compensatory storage shall be provided for any

regulatory floodway storage lost due to the proposed work from the

volume of fill or structures placed and the impact of any related flood

control projects. Artificially created storage lost due to a reduction in

head loss behind a bridge shall not be required to be replaced. The

compensatory regulatory floodway storage must be placed between the

proposed normal water elevation and the proposed 100-year flood

elevation. All regulatory floodway storage lost below the existing 10-year

flood elevation must be replaced below the proposed 10-year flood

elevation. All regulatory floodway storage lost above the existing 10-year

flood elevation must be replaced above the proposed 10-year flood

elevation. If the compensatory storage will not be placed at the location of

the proposed construction, the applicant's engineer must demonstrate to

the Department through a determination of flood discharges and water

surface elevations that the compensatory storage is hydraulically

equivalent.

7) For all appropriate uses, except bridges or culverts or on-stream structures,

the proposed work will not result in an increase in the average channel or

regulatory floodway velocities. However in the case of bridges or culverts

or on-stream structures built for the purpose of backing up water in the

stream during normal or flood flows, velocities may be increased at the

structure site if scour, erosion and sedimentation will be avoided by the

use of rip-rap or other design measures.

8) When excavation is proposed in the design of the bridge and culvert

openings, including the modifications to and replacement of existing

bridge and culvert structures, or to compensate for lost conveyance for

other appropriate uses, transition sections must be provided for the

excavation. The following expansion and contraction ratios shall be used

unless an applicant's engineer can prove to the Department through

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

engineering calculations and model tests that more abrupt transitions may

be used with the same efficiency:

A) When water is flowing from a narrow section to a wider section,

the water should be assumed to expand no faster than at a rate of

one foot horizontal for every four feet of the flooded stream's

length;

B) When water is flowing from a wide section to a narrow section, the

water should be assumed to contract no faster than at a rate of one

foot horizontal for every one foot of the flooded stream's length;

and

C) When expanding or contracting flows in a vertical direction, a

minimum of one foot vertical transition for every ten feet of stream

length shall be used.

9) If the 100-year regulatory floodway elevation at the site of the proposed

construction is affected by backwater from a downstream receiving stream

with a larger drainage area, the proposed construction shall be shown to

meet the requirements of this section for the 100-year frequency flood

elevations of the regulatory floodway conditions and conditions with the

receiving stream at normal water elevations. However, for bridge and

culvert construction or reconstruction, a smaller bridge or culvert may be

built if it can be demonstrated to the Department that the proposed

structure would meet the requirements of this section for the 100-year

frequency flood elevation of the regulatory floodway flood study profile

and would not be a source of flood damage as determined according to the

method described in subsections (d)(2)(C)(i)-(iii), to any existing upstream

building or structure when analyzed as follows:

The proposed bridge or culvert shall be analyzed for a 100-year flood

frequency flow on the tributary stream and for all tailwater elevations on

the receiving stream between and including the normal water elevation

and the 10-year flood frequency elevation.

10) If an applicant learns from the Department, local government or a private

owner that a downstream restrictive bridge or culvert is scheduled to be

removed, reconstructed, modified, or a public flood control project is

scheduled to be built within the next five years, the proposed construction

shall be analyzed and shown to meet the requirements of this Section for

both the existing conditions and the expected flood profile conditions

when the bridge, culvert or flood control project is built.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

11) In the case of flood proofing activities, if construction is required beyond

the outside dimensions of an existing building, the flood proofing

construction shall be placed as close as possible to the existing building

and be the minimum width necessary to protect the building.

Compensation of lost storage and conveyance will not be required for

flood proofing activities.

12) For public flood control projects (as defined in Section 3708.20), the

permitting requirements of this Section will be considered met if the

applicant can demonstrate to the Department through hydraulic and

hydrologic calculations that the proposed project will not singularly or

cumulatively result in increased flood heights outside the project right-of-

way or easements for all flood events up to and including the 100-year

frequency event.

13) If the appropriate use would result in a change in the regulatory floodway

location or the 100-year frequency flood elevation, the applicant shall

submit to the Department and to FEMA all the information, calculations

and documents necessary to be issued a conditional regulatory floodway

map revision and receive from the Department a conditional approval of

the regulatory floodway change before a permit is issued. However, the

final regulatory floodway map will not be changed by the Department

until as-built plans are submitted and accepted by FEMA and the

Department. In the case of non-government projects, the municipality in

incorporated areas and the county in unincorporated areas must concur

with the proposed conditional regulatory floodway map revision before

Department approval can be given.

14) All engineering analyses shall be performed by or under the supervision of

a registered professional engineer, except in the case of a federal project.

15) All dams, as defined by 17 Ill. Adm. Code 3702, shall meet the permitting

requirements of Part 3702 (Construction and Maintenance of Dams).

(Source: Amended at 18 Ill. Reg. 11284, effective July 5, 1994)

Section 3708.80 Changes to the Regulatory Floodway

a) The 100-year frequency flood profile and regulatory floodway shall not be

changed by the Department unless one of the following has occurred:

1) The original regulatory floodway delineation is shown by the applicant's

engineer to be in error based upon a review of physical data or the

mathematical model;

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

2) There are changed conditions such as changes in land use or modifications

to the ground elevations which require modification of the original

regulatory floodway computations;

3) A public flood control project has been constructed and is operable; or

4) The unit of local government exercising zoning control over an area

within its corporate limits proposes or concurs in the proposal that the

floodway storage or conveyance be relocated to facilitate development and

a unit of local government will either:

A) Assume responsibility to operate and maintain any modifications

or improvements made to relocate the floodway; or

B) Have the right and will agree, upon default of the party primarily

responsible for such operation and maintenance, to undertake such

operation and maintenance.

b) Any person contesting the correctness of the delineation shall be given an

opportunity to submit his or her own technical evidence of error or changed

conditions. The Department will review the technical evidence to determine the

correctness of the delineation.

c) Effective regulatory floodway conveyance or storage can be relocated by moving

the regulatory floodway delineation onto the existing flood fringe property if the

following criteria are met:

1) It must be shown through engineering calculations that the new regulatory

floodway storage or conveyance gained effectively compensates for lost

regulatory floodway storage or conveyance;

2) If the affected property is other than the applicant's or is subdivided or

proposed to be subdivided, convenants shall be obtained and recorded on

the affected properties to assure that they are maintained with the existing

and future owner's agreement as regulatory floodway storage or

conveyance areas;

3) The regulatory floodway map is revised to include the new area as

regulatory floodway; and

4) A notice of such regulatory floodway map change is recorded with the

affected parcel in the county recorder's office.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

d) After receipt of conditional approval of the regulatory floodway change and

issuance of a permit, construction as necessary to change the regulatory floodway

designation may proceed but no buildings or structures or other construction that

is not an appropriate use may be placed in that area until the regulatory floodway

map is changed. The regulatory floodway map will be revised upon acceptance

by the Department and FEMA of the "as-built" plans.

e) The Department may require deed restrictions, performance bonds or sureties, as-

built certification or maintenance guarantees to assure projects are built according

to permitted plans.

f) All field surveys as required by this Part shall be conducted under the supervision

of a registered professional engineer or registered land surveyor, and shall be so

sealed. All required engineering analyses shall be conducted under the

supervision of a registered professional engineer or in the case of a federal

project, by the federal agency and shall be so sealed or stated.

(Source: Amended at 13 Ill. Reg. 8667, effective May 23, 1989)

Section 3708.90 Delegation to Municipalities and Counties

a) No unit of local government, including home rule units, may issue a building

permit or other apparent authorization for any prohibited new construction within

the regulatory floodway (Section 18g of the Act).

b) The Department will delegate to municipalities within incorporated areas and to

counties within unincorporated areas the Department's authority to issue permits

in accordance with this Part for non-governmental activities, upon determination

by the Office that the following conditions have been met:

1) The municipality or county is participating in the regular phase of the

National Flood Insurance Program;

2) The municipality or county has enacted an ordinance that adopts

requirements at least as restrictive as this Part; and

3) The municipality or county has enacted an ordinance which requires that

all proposed regulatory floodway projects are reviewed under the

supervision of a registered professional engineer under the employ or

contract of the municipality or county and, in the case of appropriate uses,

so stated in writing by that registered professional engineer to meet the

specific requirements of Section 3708.70.

c) A completed permit application form must be submitted to the Department for

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

regulatory floodway construction activities proposed in a delegated municipality

or county. The Department will review the application to determine if the

proposed activity qualifies for review by the delegated municipality or county

pursuant to subsection (j). When the Department determines a regulatory

floodway construction activity does qualify, it will notify the delegated

community in writing that it has the authority to review and, if appropriate,

authorize the activity for compliance with this Part. This process is subject to a

permit application review fee as described in Section 3708.115.

d) The only permits a municipality or county may issue for new construction in a

regulatory floodway are for appropriate uses as defined by Section 3708.70.

e) If the proposed appropriate use will require a regulatory floodway delineation

change or will change the flood stage elevation, the municipality or county shall

require that the applicant obtain a conditional approval of the regulatory floodway

map change from the Department and FEMA before a permit is issued for the

appropriate use.

f) No buildings or structures or other construction that is not an appropriate use shall

be placed in a designated regulatory floodway until the designated regulatory

floodway map has been revised to remove the building site from the regulatory

floodway. A conditional approval of a regulatory floodway map change is not a

change in the regulatory floodway map. After completing a project which will

result in a regulatory floodway map revision, the applicant must submit "as built"

plans to the Office and FEMA to revise the regulatory floodway map. The

municipality or county will then be notified by the Department or FEMA when

the regulatory floodway map has been changed, at which time a building permit

may be issued.

g) No municipality or county shall issue a variance not in compliance with this Part.

h) Municipalities and counties may adopt and enforce ordinances with greater

restrictions than those of this Part.

i) If a municipality or county issues a regulatory floodway development permit not

in accordance with this Part or fails to meet the criteria listed in subsections (b)(1)

through (3), the Department will rescind the municipality's or county's authority

to administer the Department's regulatory floodway permit program for

appropriate uses.

j) The following shall not be delegated to municipalities and counties as part of this

Section and shall be subject to Department review or Department permits:

1) Department permits shall be issued to organizations that are exempt from

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

the municipality's or county's ordinance.

2) The Department will permit Department projects, dams (as defined by 17

Ill. Adm. Code 3702) and all other state, federal or local unit of

government projects, including projects of the municipalities and counties.

3) The Department will permit construction and other activities in public

bodies of water pursuant to 17 Ill. Adm. Code 3704.

4) The Department will review an engineer's determination that an existing

bridge or culvert is not a source of flood damage pursuant to Section

3708.70.

5) The Department will review an engineer's determination that a proposed

bridge affected by backwater from a downstream receiving stream may be

built with a smaller opening pursuant to Section 3708.70.

6) The Department will retain its authority to accept alternative transition

sections and hydraulically equivalent storage as indicated in Section

3708.70.

(Source: Amended at 38 Ill. Reg. 983, effective December 27, 2013)

Section 3708.100 Violations

a) All construction undertaken in a regulatory floodway without a permit, or

contrary to a permit issued in accordance with this Part, shall be unlawful and the

Department or any affected municipality or county will proceed to obtain

injunctive relief for abatement or removal of such unlawful construction. The

Department will record in the appropriate county recorder's office a notice on

each parcel on which a violation exists, and the results of investigations and any

hearings conducted and subsequent orders issued to resolve the violation.

b) Municipalities and counties are responsible for pursuing all necessary

enforcement procedures to resolve any regulatory floodway violations of their

flood plain ordinance.

c) Department employees may be requested by municipalities or counties, without

subpoena, to testify in legal proceedings regarding violations of this Part.

Section 3708.110 Permit Application

Applicants for permits shall submit the following information and materials. For projects

involving construction at more than one location, separate permit applications shall be submitted

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

for each location.

a) Application Form

1) Applications for permit shall be made by submitting a completed

application for permit form furnished by the Department. As a minimum,

the following information shall be provided:

A) Name and address of applicant;

B) Site location (including legal description) of the property, drawn to

scale, on the regulatory floodway map, indicating whether it is

proposed to be in an incorporated or unincorporated area;

C) Name of stream or body of water affected;

D) Description of proposed activity;

E) Statement of purpose of proposed activity;

F) Anticipated dates of initiation and completion of activity;

G) Names and mailing addresses of the owner of the subject property

if different from the applicant; and

H) Signature of applicant or the applicant's agent.

2) Other requirements related to the application form include:

A) If the applicant is a corporation, the president or other authorized

officer shall sign the application form;

B) If the applicant is a county, city or other political subdivision, the

application form shall be signed by an authorized officer;

C) If the applicant is a partnership, each partner shall sign the

application form; and

D) If the applicant is a land trust, the trust officer shall sign the name

of the trustee by him (her) as trust officer. A disclosure affidavit

must be filed with the application, identifying each beneficiary of

the trust by name and address and defining the respective interests

in the trust.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

b) Permit Application Fee

The application fees are described in Section 3708.115.

c) Plan and Data Requirements

1) Plans of the proposed activity shall be provided that include as a

minimum:

A) A vicinity map showing the site of the activity, name of the

waterway, boundary lines, names of and distance of nearest town,

community or other identifying location, names of roads in the

vicinity of the site, graphic or numerical scale, and north arrow;

B) A plan view of the project and engineering study reach showing

existing and proposed conditions including principal dimensions of

the structure or work, elevations in mean sea level (1929

adjustment) datum, adjacent property lines and ownership,

drainage and flood control easements, distance between proposed

activity and navigation channel (when the proposed construction is

along a commercially navigable body of water), regulatory

floodway limit, flood plain limit, location and orientation of cross-

sections, north arrow, and a graphic or numerical scale;

C) Cross-section views of the project and engineering study reach

showing existing and proposed conditions including principal

dimensions of the work as shown in plan view, existing and

proposed elevations, normal water elevation, 10-year frequency

flood elevation, 100-year frequency flood elevation, and graphic or

numerical scales (horizontal and vertical);

D) A seeding or stabilization plan for the disturbed areas; and

E) A copy of the regulatory floodway map, marked to reflect any

proposed change in the regulatory floodway location.

2) Engineering calculations and supporting data shall be submitted showing

that the proposed work will meet the permit criteria of Section 3708.70.

3) If the regulatory floodway delineation or base flood elevation will change

due to the proposed project, the application will not be considered

complete until the Department has indicated conditional approval of the

regulatory floodway map change and the completed request for the

regulatory floodway map change has been submitted to FEMA.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

(Source: Amended at 38 Ill. Reg. 983, effective December 27, 2013)

Section 3708.115 Permit Application Fee

a) If a permit is required for the activity proposed and is not already permitted by a

Regional Permit or Statewide Permit authorization (see Section 3708.170), permit

applicants must pay a non-refundable permit application review fee. The fee will

be determined by the Department, and the applicant shall be notified of that

determination immediately after review of the application. When appropriate and

when it is in the best interest of the State, the Department may enter into

agreements to allow other State agencies to offset the cost of fees by providing in-

kind services in lieu of cash payments. As outlined in this subsection (a), the

review fee shall be calculated based on the determination of the base review fee,

the application of an escalation adjustment factor, and the addition of review fees

from any other applicable regulations. Further processing of the application shall

not be initiated until the review fee is received.

1) The base review fee shall be as follows:

A) $200 for appropriate uses that qualify for review by a delegated

municipality or county in accordance with Section 3708.90; or

B) $200 for previously permitted appropriate uses requiring new

permit authorization in accordance with Section 3708.175 and not

involving any changes from the previously permitted activity; or

C) $500 for appropriate uses that comply with the terms and

conditions of a general permit in accordance with Section

3708.160; or

D) $1000 for appropriate uses that the Department determines would

not require review of a hydrologic and/or hydraulic analysis to

demonstrate compliance with the standards listed in Section

3708.70(d); or

E) $3000 for appropriate uses such as certain bridge/culvert crossings,

public flood control projects, and other major floodway

construction and/or changes to the regulatory floodway that the

Department determines will require review of a hydrologic and/or

hydraulic analysis to demonstrate compliance with the standards

listed in Section 3708.70(d) and/or Section 3708.80. The base

review fee shall be increased an additional $1500 for applications

requiring public notice in accordance with Section 3708.120.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

2) Annual Escalation Adjustment

A) The review fee amounts in subsection (a)(1) shall be adjusted on

July 1 each year to account for inflation. The U.S. Bureau of

Labor Statistics' Consumer Price Index Table for all urban

consumers (CPI-U), U.S. city average, all items, base period 1982-

1984 = 100 (Series ID: CUUR0000SA0) (available on the U.S.

Bureau of Labor Statistics' website) shall be used to calculate the

adjustment factor. The adjustment factor shall be directly

proportional to the change in the CPI index since June 2013 and

shall be calculated according to the following formula:

B) The base fee amounts in subsection (a)(1) shall be multiplied by

the escalation adjustment factor and rounded to the nearest $10 to

compute the review fee for the coming fiscal year (July 1 through

June 30). The review fee shall be capped at $5000. The dollar

amounts that result from these calculations will be posted on the

Department's website at: www.dnr.illinois.gov.

3) Review Fee for Multiple-Regulation Projects

If the construction activity being applied for also requires authorization

under 17 Ill. Adm. Code 3702 (Rules for Construction and Maintenance of

Dams) and/or 17 Ill. Adm. Code 3704 (Regulation of Public Waters), the

review fee for each Part shall be added to calculate the total review fee.

The review fee shall be capped at $5000.

b) Submission of Fees

1) Except when possible through electronic fee submittal, the applicant shall

submit the required fee amounts in the form of a check or money order

made payable to the Illinois Department of Natural Resources.

2) If the review fee is not received within 90 days after the Department's

notification of the amount of the fee, the application shall be withdrawn.

A new application and review fee will need to be submitted to restart the

application process.

3) Insufficient payment or failure of a fee payment to clear the bank it is

drawn against will result in the automatic withdrawal of the application.

Adjustment factor =

CPI (May of current year)

CPI (June 2013)

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

4) All fees shall be deposited into the State Boating Act Fund (see 615 ILCS

5/35).

c) Refund of Permit Application Fees

Except for refunding of overpayments, permit application fees shall not be

refunded. Application fees are tendered for consideration of the application only

and do not imply any promise of permit issuance by the Department.

(Source: Amended at 39 Ill. Reg. 1176, effective December 31, 2014)

Section 3708.120 Public Notice

a) The Department will issue public notices for proposed regulatory floodway map

revisions and projects in public waters.

b) The notice will allow a period of at least twenty-one days for the submission of

comments. The notice will contain a description of the proposed action, its

location, the name of the applicant and the name of a Department contact.

Notices will be mailed to the following:

1) Owners of adjacent upstream, downstream and potentially affected

property;

2) Affected state and federal agencies;

3) Local officials of potentially affected communities and governmental

agencies, including the Northeastern Illinois Planning Commission;

4) Adjacent states when interstate waters are involved; and

5) The applicant.

c) Failure to mail notices to all of the persons listed in subsection (a) shall not affect

the substantive or procedural rights of any affected party who has received actual

notice of the application.

d) Objections received relevant to the criteria in this Part will be forwarded to the

applicant for resolution. The applicant shall advise the Department of the

resolution or, if resolution cannot be achieved, of his or her views regarding the

validity of the objections.

Section 3708.130 Public Hearings

The Department will hold a public hearing to solicit information regarding a proposed regulatory

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

floodway map change when the Department deems a public hearing to be the most timely means

of receiving the information required to make a decision. Public hearings will be conducted by a

hearing officer appointed by the Department and an official transcript will be made. The

Department may use the records and findings of other agency hearings in its own review.

Section 3708.140 Time to Permit Issuance; Emergency Authorizations; Duration;

Revisions

a) If permit authority has not been delegated to a municipality or county, the

Department, pursuant to Sections 3708.70 and 3708.110, will either grant

approval or approval with conditions or deny an application for permit within 90

days after receipt of a complete application (or 150 days in the event a hearing is

held) unless a longer time period is requested in writing by the applicant. If the

Department has not approved the application within these time limits, the

application will be deemed denied. The time limit for final Department action on

a permit application will be computed from the date on which the Department has

received all information required in Section 3708.110. If additional data or

revised plans are required by the Department, the time between the request and

receipt of the requested material will not be counted in these time periods. Also,

the time required for resolution of relevant objections (see Section 3708.120) will

not be counted in these time periods.

b) The Department will issue an emergency permit after receipt of a properly

executed application form (including an explanation of why the work to be

performed is of an emergency nature) and plan sheets describing the work if harm

to life or loss of property is likely to occur if initiation of the activity is delayed.

An applicant for an emergency permit is deemed to have agreed to make

modifications, at his or her own expense, required by the Department if the work

does not comply with Section 3708.70, based upon completion of a review and on

comments received during the public comment period, to bring the activity into

compliance with this Part.

c) Permits will be valid until December 31 of the third year following the date of

permit issuance, unless the Department determines that the proposed work must

be completed sooner, such as in the case of work to correct a violation. Upon the

written request of the applicant, permits may be granted for longer periods of time

if the expected construction period exceeds three years.

d) If the permitted activity is not completed by the expiration date of the permit, the

permittee shall submit a written request that the expiration date be extended if the

permittee intends to pursue the permitted activity. Upon receipt of the request,

the Department will extend the expiration date if the permitted activity is in

compliance with the rules of the Department at the time of the request.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

e) If, after permit issuance, the permittee decides to revise the approved plans, the

permittee shall submit those revised plans to the Department, along with a written

request for approval. If the Department determines that the revised plans are in

compliance with this Part, an approval of revised plans will be issued to the

permittee.

(Source: Amended at 38 Ill. Reg. 983, effective December 27, 2013)

Section 3708.150 Permit Conditions

a) Permits issued under this Part will contain the following standard conditions:

1) This permit is granted in accordance with the Rivers, Lakes and Streams

Act [615 ILCS 5].

2) This permit does not convey title to the permittee or recognize title of the

permittee to any submerged or other lands, and furthermore, does not

convey, lease or provide any right or rights of occupancy or use of the

public or private property on which the activity or any part thereof will be

located, or otherwise grant to the permittee any right or interest in or to the

property, whether the property is owned or possessed by the State of

Illinois or by any private or public party or parties.

3) This permit does not release the permittee from liability for damage to

persons or property resulting from the work covered by this permit, and

does not authorize any injury to private property or invasion of private

rights.

4) This permit does not relieve the permittee of the responsibility to adhere

to the National Flood Insurance Program flood plain development

regulations or to obtain other federal, state or local authorizations required

for the construction of the permitted activity; and if the permittee is

required by law to obtain approval from any federal, local or other state

agency to do the work, this permit is not effective until the required

federal, state and local approvals are obtained.

5) The permittee shall, at the permittee's own expense, remove all temporary

piling, cofferdams, false work and material incidental to the construction

of the project from the regulatory floodway, river, stream or lake in which

the work is done. If the permittee fails to remove such structures or

materials and if the structure or materials cause an obstruction to normal

and flood flows and a loss of flood storage, the Department will have

removal made at the expense of the permittee.

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

6) The execution and details of the work authorized shall be subject to the

supervision and approval of the Department. Department personnel or

their designee shall have right of access to accomplish this purpose.

7) Starting work on the activity authorized will be considered full acceptance

by the permittee of the terms and conditions of the permit.

8) The Department in issuing this permit has relied upon the statements and

representations made by the permittee and his or her agents; if any

substantive statement or representation made by the permittee and his or

her agents is found to be false, the permit will be revoked; and when a

permit is revoked all rights of the permittee under the permit are voided.

9) If the activity authorized by this permit is located along a meandered lake,

the permittee and the permittee's successors shall make no claim to any

interest in any accretions caused by the activity.

10) In issuing this permit, the Department does not approve the adequacy of

the design or structural strength of the structure or improvement.

11) Noncompliance with the conditions of this permit will be considered

grounds for revocation.

b) In addition, the Department will impose special conditions, such as specifying

time limits, as required to assure compliance with this Part.

Section 3708.160 General Permits

The Department will, for the purpose of providing more expeditious

processing of permit applications, issue general permits pertaining to specific types of activities,

such as minor bank stabilization projects and utility crossings, meeting such conditions as

necessary to assure compliance with the purpose and intent of this Part. General permits may be

applicable on a regional basis or may be restricted to specified rivers, lakes and streams, or

reaches of rivers and streams. Subsequent to the issuance of a general permit, individual

applications must still be submitted but authorizations will be granted for activities meeting all of

the terms and conditions of the general permit without notice or interagency coordination.

General permits will be issued only after notice and opportunity for public review and comment.

Section 3708.170 Regional Permits and Statewide Permits

The Department will, by issuance of a regional permit or statewide permit, grant approval for

specific types of activities that do not singularly or cumulatively increase flood stage or flood

velocities. Subsequent to the issuance of a regional permit or statewide permit, no application or

further authorization will be required by the Department for activities meeting the terms and

DECEMBER 31, 2014 17 ILL. ADM. CODE CH. I, SEC. 3708

conditions of the regional permit or statewide permit. Regional permits and statewide permits

will be issued only after notice and opportunity for public review and comment.

(Source: Amended at 38 Ill. Reg. 983, effective December 27, 2013)

Section 3708.170 Regional Permits and Statewide Permits

The Department will, by issuance of a regional permit or statewide permit, grant approval for

specific types of activities that do not singularly or cumulatively increase flood stage or flood

velocities. Subsequent to the issuance of a regional permit or statewide permit, no application or

further authorization will be required by the Department for activities meeting the terms and

conditions of the regional permit or statewide permit. Regional permits and statewide permits

will be issued only after notice and opportunity for public review and comment.

(Source: Amended at 38 Ill. Reg. 983, effective December 27, 2013)

Section 3708.180 Final Administrative Decisions

The approval or denial of applications for permit under this Part shall be considered final

administrative decisions and are subject to judicial review in accordance with the Administrative

Review Law [735 ILCS 5/Art. III].

(Source: Amended at 13 Ill. Reg. 8667, effective May 23, 1989)

Section 3708.190 Effective Date

Applications for permits received subsequent to the effective date of this Part will be reviewed

pursuant to the provisions of this Part.