[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6450 Introduced in House (IH)]

112th CONGRESS
  2d Session
                                H. R. 6450

   To facilitate and expedite the review of proposed improvements to 
Federal flood control projects to be constructed by local sponsors, and 
                          for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 20, 2012

  Mr. Costello (for himself and Mr. Shimkus) introduced the following 
    bill; which was referred to the Committee on Transportation and 
                             Infrastructure

_______________________________________________________________________

                                 A BILL


 
   To facilitate and expedite the review of proposed improvements to 
Federal flood control projects to be constructed by local sponsors, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Local Modifications to Federal Flood 
Control Projects Act of 2012''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) it is in the interest of the Federal Government to 
        permit local sponsors to investigate, plan, design, fund, and 
        construct improvements to Federal flood control projects in 
        order to reduce the risk from flooding as quickly and 
        efficiently as possible; and
            (2) the Secretary of the Army should take all necessary 
        actions to facilitate and expedite the review of proposed 
        improvements to Federal flood control projects to be 
        constructed by local sponsors.

SEC. 3. FLOOD CONTROL PROJECTS.

    (a) Taking Possession of, Use of, or Injury to Harbor or River 
Improvements.--Section 14 of the Act of March 3, 1899 (33 U.S.C. 408) 
is amended to read as follows:

``SEC. 14. TAKING POSSESSION OF, USE OF, OR INJURY TO HARBOR OR RIVER 
              IMPROVEMENTS.

    ``(a) Prohibition.--It shall not be lawful for any person or 
persons to take possession of or make use of for any purpose, or build 
upon, alter, deface, destroy, move, injure, obstruct by fastening 
vessels thereto or otherwise, or in any manner whatever impair the 
usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, 
or other work built by the United States, or any piece of plant, 
floating or otherwise, used in the construction of such work under the 
control of the United States, in whole or in part, for the preservation 
and improvement of any of its navigable waters or to prevent floods, or 
as boundary marks, tide gauges, surveying stations, buoys, or other 
established marks, nor remove for ballast or other purposes any stone 
or other material composing such works.
    ``(b) Exceptions.--
            ``(1) Temporary occupation or use.--Subject to paragraph 
        (3), the Secretary of the Army, on the recommendation of the 
        Chief of Engineers, may grant permission for the temporary 
        occupation or use of any of the aforementioned public works 
        when in the Secretary's judgment the occupation or use will not 
        be injurious to the public interest.
            ``(2) Permanent alteration, occupation, or use.--Subject to 
        paragraph (3), the Secretary, on the recommendation of the 
        Chief of Engineers, may grant permission for the permanent 
        alteration, occupation, or use of any of the aforementioned 
        public works when in the judgment of the Secretary the 
        permanent alteration, occupation, or use will not be injurious 
        to the public interest and will not impair the usefulness of 
        the public work.
            ``(3) Special rules for local sponsors of flood control 
        projects.--
                    ``(A) Review of improvements.--In the case of an 
                aforementioned public work that is a flood control 
                project, the Secretary shall grant permission to a 
                local sponsor to construct an improvement to such flood 
                control project in accordance with section 14a.
                    ``(B) Exemption for operation and maintenance 
                activities.--This section does not apply to operation 
                and maintenance activities of a local sponsor with 
                respect to a flood control project.
                    ``(C) Definitions.--In this paragraph, the terms 
                `construct', `flood control project', `improvement', 
                `local sponsor', and `operation and maintenance 
                activities' have the meanings given those terms in 
                section 14a.''.
    (b) Improvements to Flood Control Projects Proposed by Local 
Sponsors.--The Act of March 3, 1899 (30 Stat. 1121) is amended by 
inserting after section 14 the following:

``SEC. 14A. IMPROVEMENTS TO FLOOD CONTROL PROJECTS PROPOSED BY LOCAL 
              SPONSORS.

    ``(a) Authority To Grant Permission for Improvements.--The 
Secretary of the Army, on the recommendation of the Chief of Engineers, 
may grant permission to a local sponsor to construct an improvement to 
a flood control project in accordance with this section.
    ``(b) Standard of Review.--
            ``(1) Improvements necessary to provide qualified level of 
        protection.--
                    ``(A) In general.--For an improvement to a flood 
                control project that is necessary for the project to 
                provide a qualified level of protection, the Secretary 
                shall grant permission under subsection (a) when in the 
                judgment of the Secretary the proposed improvement does 
                not permanently reduce the existing level of 
                protection.
                    ``(B) Qualified level of protection.--As used in 
                subparagraph (A), a qualified level of protection is 
                the lesser of--
                            ``(i) the authorized level of protection; 
                        or
                            ``(ii) the level of protection necessary to 
                        receive, maintain, or restore accreditation 
                        pursuant to chapter I of the National Flood 
                        Insurance Act of 1968 (42 U.S.C. 4011 et seq.).
            ``(2) Improvements altering scope of flood control 
        project.--
                    ``(A) In general.--For an improvement to a flood 
                control project associated with permanently increasing 
                the level of protection provided by the project from 
                the authorized level of protection or permanently 
                realigning the flood control project to substantially 
                increase or otherwise significantly alter the 
                geographic area protected by the flood control project, 
                the Secretary shall grant permission under subsection 
                (a) when in the judgment of the Secretary the 
                improvement--
                            ``(i) does not adversely affect the 
                        existing level of protection; and
                            ``(ii) does not transfer the hydraulic 
                        impact of the flood control project beyond the 
                        standards that the Chief of Engineers applies 
                        to flood control projects proposed for initial 
                        Federal authorization.
                    ``(B) Limitation.--This paragraph shall not apply 
                to an improvement that can be reviewed under paragraph 
                (1).
    ``(c) Certification by Registered Professional Engineer Required 
for All Improvements.--The Secretary may not grant permission under 
subsection (a) with respect to an improvement unless the improvement is 
constructed in accordance with plans and specifications prepared and 
certified by a registered professional engineer.
    ``(d) Applications.--
            ``(1) In general.--A local sponsor seeking permission under 
        subsection (a) to construct an improvement shall submit to the 
        Secretary an application requesting such permission.
            ``(2) Deadlines for review.--
                    ``(A) In general.--If a local sponsor submits an 
                application to the Secretary under paragraph (1), the 
                Secretary shall approve or disapprove the application--
                            ``(i) not later than 45 days after the date 
                        of submission of the application, with respect 
                        to an improvement subject to review under 
                        subsection (b)(1); and
                            ``(ii) not later than 120 days after the 
                        date of submission of the application, with 
                        respect to an improvement subject to review 
                        under subsection (b)(2).
                    ``(B) Extensions.--
                            ``(i) Incomplete applications.--If the 
                        Secretary determines that an application 
                        submitted by a local sponsor under paragraph 
                        (1) is incomplete, the Secretary shall notify 
                        the local sponsor of the specific information 
                        that is missing or the analysis that is needed 
                        to make a determination under subsection (b). 
                        Upon submission of the missing information or 
                        analysis by the local sponsor, the Secretary 
                        may extend the applicable review period under 
                        subparagraph (A) by an additional 30 days.
                            ``(ii) Further extensions by mutual 
                        agreement.--Any further extension of the 
                        applicable review period may be made only by 
                        mutual agreement of the Secretary and the local 
                        sponsor.
    ``(e) Approval and Disapproval.--
            ``(1) Approval.--If the Secretary approves an application 
        submitted under subsection (d), the Secretary shall promptly 
        notify the local sponsor of the approval in writing.
            ``(2) Disapproval.--If the Secretary disapproves an 
        application submitted under subsection (d), the Secretary shall 
        promptly notify the local sponsor of the disapproval in writing 
        and provide the local sponsor with information concerning the 
        reasons for the disapproval. Such information shall include all 
        technical data, analysis, modeling, and other information used 
        by the Secretary in issuing the disapproval and a description 
        of specific corrective changes required for approval of the 
        application.
            ``(3) Deemed approval.--If the Secretary does not approve 
        or disapprove an application submitted under subsection (d) 
        before the last day of the applicable review period specified 
        under subsection (d), the application is deemed approved.
    ``(f) Administrative Appeals.--
            ``(1) In general.--Not later than 90 days after the date of 
        receiving a disapproval of an application from the Secretary 
        under subsection (e), a local sponsor may file with the 
        Secretary an appeal of the disapproval.
            ``(2) Conduct of appeals.--
                    ``(A) Consideration of technical and scientific 
                data.--In reviewing an appeal filed under paragraph 
                (1), the Secretary shall take into account any 
                technical or scientific data submitted by the local 
                sponsor that negates or contradicts the information 
                relied upon by the Secretary in issuing the 
                disapproval.
                    ``(B) Methods to resolve appeals.--
                            ``(i) Consultation.--The Secretary shall 
                        resolve an appeal filed under paragraph (1) 
                        through consultation with the local sponsor.
                            ``(ii) Further methods.--If, 60 days after 
                        the local sponsor files an appeal under 
                        paragraph (1), the appeal is not resolved 
                        through consultation, the local sponsor may 
                        elect to continue the appeal process through--
                                    ``(I) an administrative hearing; or
                                    ``(II) submission of technical and 
                                scientific data, including the data 
                                described in subparagraph (A), to an 
                                independent scientific body in 
                                accordance with subparagraph (C).
                    ``(C) Independent scientific body.--
                            ``(i) Membership of body.--Information may 
                        be submitted to an independent scientific body 
                        under subparagraph (B)(ii) only if the 
                        membership of the independent scientific body 
                        is mutually agreed upon by the Secretary and 
                        the local sponsor.
                            ``(ii) Deadline for recommendation.--Not 
                        later than 90 days after the date on which a 
                        local sponsor elects to submit data to an 
                        independent scientific body under subparagraph 
                        (B)(ii), the independent scientific body shall 
                        make a recommendation to the Secretary with 
                        respect to an appeal by applying the applicable 
                        standard specified in subsection (b).
            ``(3) Deadlines for final determinations.--
                    ``(A) Consultation.--In the case of an appeal filed 
                under paragraph (1) for which the local sponsor has not 
                elected to continue the appeal process through an 
                administrative hearing or submission of data to an 
                independent scientific body, not later than 90 days 
                after the date of receiving the appeal, or on a date 
                mutually agreed upon by the Secretary and the local 
                sponsor, the Secretary shall make a final determination 
                with respect to the appeal.
                    ``(B) Administrative hearing.--In the case of an 
                appeal filed under paragraph (1) for which the local 
                sponsor has elected to continue the appeal process 
                through an administrative hearing under paragraph 
                (3)(B)(ii), not later than 120 days after the date on 
                which the local sponsor makes such election, or on a 
                date mutually agreed upon by the Secretary and the 
                local sponsor, the Secretary shall make a final 
                determination with respect to the appeal.
                    ``(C) Submission to independent scientific body.--
                In the case of an appeal filed under paragraph (1) for 
                which the local sponsor has elected to continue the 
                appeal process through submission of data to an 
                independent scientific body under paragraph (3)(B)(ii), 
                not later than 30 days after the date on which the 
                independent scientific body makes a recommendation 
                under paragraph (3)(C)(ii), or on a date mutually 
                agreed upon by the Secretary and the local sponsor, the 
                Secretary shall make a final determination with respect 
                to the appeal.
            ``(4) Reimbursement of expenses.--If, in connection with an 
        appeal under this subsection, a local sponsor incurs additional 
        expenses for surveyor, engineering, or similar services, but 
        not including legal services, and is successful in whole or in 
        part, the Secretary shall reimburse the local sponsor for such 
        expenses, subject to the availability of appropriations for 
        that purpose.
    ``(g) Judicial Appeals.--Not later than 180 days after the date of 
receiving a final determination by the Secretary with respect to an 
appeal filed under subsection (f), a local sponsor may appeal the 
determination to the United States district court for the district in 
which the flood control project that is the subject of the appeal is 
located. The scope of review by the court shall be as provided by 
chapter 7 of title 5, United States Code.
    ``(h) Prohibition on Further Reviews.--
            ``(1) In general.--With respect to a local sponsor seeking 
        permission under subsection (a), the Secretary may not require 
        any further review than is necessary under subsection (b) or 
        require as a part of an application seeking such permission an 
        additional review by any other person, governmental body, or 
        agency unless otherwise required by State or Federal law.
            ``(2) Non-applicability of safety assurance review.--With 
        respect to a local sponsor seeking permission under subsection 
        (a), the Secretary may not require review under section 2035 of 
        the Water Resources Development Act of 2007 (33 U.S.C. 2344).
    ``(i) Guidelines.--
            ``(1) In general.--Not later than 6 months after the date 
        of enactment of this section, the Secretary, after consultation 
        with local sponsors that operate and maintain flood control 
        projects, shall issue guidelines to facilitate and expedite the 
        review of proposed improvements to flood control projects to be 
        constructed by local sponsors.
            ``(2) Contents.--The guidelines shall--
                    ``(A) provide for delegation of the Secretary's 
                authority to grant permission under this section to--
                            ``(i) the District Commander, with respect 
                        to an improvement subject to review under 
                        subsection (b)(1); and
                            ``(ii) the Division Commander, with respect 
                        to an improvement subject to review under 
                        subsection (b)(2);
                    ``(B) include criteria for determining whether an 
                improvement is subject to review under subsection 
                (b)(1) or (b)(2);
                    ``(C) allow a local sponsor to submit an 
                application under this section for a separable project 
                element rather than an entire project, at the election 
                of the local sponsor;
                    ``(D) include criteria for determining the stage of 
                project design at which an application can be submitted 
                under this section, and ensure that such stage provides 
                a local sponsor with guidance as soon as practicable;
                    ``(E) include a description of the required content 
                of an application submitted under this section, 
                including the data and analysis to be provided by the 
                local sponsor as part of the application; and
                    ``(F) address such other matters as the Secretary, 
                acting through the Chief of Engineers and in 
                consultation with local sponsors, considers necessary.
    ``(j) Previously Approved Projects.--A local sponsor shall not be 
required to seek further permission under this section with respect to 
any improvement to a flood control project constructed by the local 
sponsor that has been approved pursuant to Federal law before the date 
of enactment of this section and for which construction commenced 
before such date of enactment.
    ``(k) Definitions.--In this section, the following definitions 
apply:
            ``(1) Authorized level of protection.--The term `authorized 
        level of protection' means the level of protection specified in 
        the authorizing statute for a flood control project.
            ``(2) Construct.--The term `construct' means to undertake 
        activities to provide for an improvement to a flood control 
        project, including construction, reconstruction, 
        rehabilitation, restoration, and repair activities and 
        activities associated with investigations, planning, and 
        funding.
            ``(3) Existing level of protection.--The term `existing 
        level of protection' means the level of protection provided by 
        a flood control project, as determined by a registered 
        professional engineer selected by the local sponsor, as of the 
        date on which the local sponsor submits an application under 
        subsection (d)(1).
            ``(4) Flood control project.--The term `flood control 
        project' means a public work described in section 14(a) that is 
        used for flood damage reduction. For the purposes of this 
        section, the boundaries of a flood control project are the 
        boundaries of the right-of-way for the applicable public work, 
        as determined at the time the public work was built by the 
        United States.
            ``(5) Improvement.--
                    ``(A) In general.--The term `improvement' means an 
                alteration or permanent or temporary occupation or use.
                    ``(B) Exclusion.--The term `improvement' does not 
                include operation and maintenance activities.
            ``(6) Local sponsor.--The term `local sponsor' means a 
        State, a political subdivision of a State, or a local agency 
        with authority to--
                    ``(A) operate and maintain a flood control project 
                under section 3 of the Act of June 22, 1936 (33 U.S.C. 
                701c); or
                    ``(B) construct a flood control project under State 
                law.
            ``(7) Operation and maintenance activities.--The term 
        `operation and maintenance activities' means--
                    ``(A) activities required to be conducted by a 
                local sponsor pursuant to section 208.10 of title 33, 
                Code of Federal Regulations (as in effect on the date 
                of enactment of this section);
                    ``(B) activities required to be conducted by a 
                local sponsor under the manual prepared by the 
                Secretary for the flood control project pursuant to the 
                Operation, Maintenance, Repair, Replacement, and 
                Rehabilitation Manual for Projects and Separable 
                Elements Managed By Project Sponsors (Engineer 
                Regulation 1110-2-401; September 30, 1994); and
                    ``(C) such other activities as are conducted by a 
                local sponsor in the normal course of operating and 
                maintaining the flood control project, or as are 
                otherwise determined by the Secretary, acting through 
                the Chief of Engineers, to be within a local sponsor's 
                operation and maintenance responsibilities with respect 
                to the flood control project.''.
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