II 112th CONGRESS 1st Session S. 1118 IN THE SENATE OF THE UNITED STATES May 26, 2011 Mr. Hoeven (for himself, Mr. Conrad, Mr. Cornyn, Mr. Wicker, Ms. Klobuchar, Mr. Alexander, Mr. Enzi, Mr. Franken, Mr. Portman, Mr. Johanns, and Mr. Sessions) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To authorize the construction and maintenance of levees on property acquired under hazard mitigation grant programs of the Federal Emergency Management Agency.
1.
Short title
This Act may be cited as the FEMA Common Sense and Cost Effectiveness Act of 2011.
2.
Construction and maintenance of levees
(a)
Stafford Act
(1)
Predisaster mitigation program
Section 203(e) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5133(e)) is amended by adding at the end the following: (3)
Construction of levees on acquired lands
Subject to paragraph (4), and notwithstanding any requirement that property acquired or accepted under this section be dedicated and maintained in perpetuity as open space for the conservation of natural flood plain functions, if financial assistance provided under this section is used to acquire or accept property for open space purposes, the President may permit the construction or maintenance on the property of— (A)a levee that is federally owned and operated; (B)a permanent levee that is federally constructed and non-federally operated and maintained; (C)a levee— (i)that is federally constructed as a nonpermanent levee; (ii)that a non-Federal entity desires to operate and maintain as a permanent levee; and (iii)the owners of which— (I)are participating in the emergency response to natural disasters program established under section 5 of the Act entitled An Act authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes, approved August 18, 1941 (33 U.S.C. 701n); or (II)begin participating in the program described in subclause (I) within a reasonable period of time, as determined by the President, after the date on which the levee is constructed; and (D)a non-Federal levee the owners of which are participating in the program described in subparagraph (C)(iii)(I). (4)
Downstream communities
The President may deny an application to construct or maintain a levee described in paragraph (3) if the levee poses a significant threat of harm to downstream communities. . (2)
Hazard mitigation grant program
Section 404(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170c(b)) is amended— (A)in paragraph (2)(B)— (i)in clause (i), by inserting except for the construction or maintenance of a structure described in clause (ii) (including a levee), before any property; and (ii)in clause (ii)— (I)in subclause (II), by striking or at the end; (II)by redesignating subclause (III) as subclause (IV); and (iii)by inserting after subclause (II) the following: (III)subject to paragraph (5), a levee described in paragraph (4); or ; and (B)by adding at the end the following: (4)
Levees
A levee described in this paragraph is— (A)a levee that is federally owned and operated; (B)a permanent levee that is federally constructed and non-federally operated and maintained; (C)a levee— (i)that is federally constructed as a nonpermanent levee; (ii)that a non-Federal entity desires to operate and maintain as a permanent levee; and (iii)the owners of which— (I)are participating in the emergency response to natural disasters program established under section 5 of the Act entitled An Act authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes, approved August 18, 1941 (33 U.S.C. 701n); or (II)begin participating in the program described in subclause (I) within a reasonable period of time, as determined by the President, after the date on which the levee is constructed; and (D)a non-Federal levee the owners of which are participating in the program described in subparagraph (C)(iii)(I). (5)
Downstream communities
The President may deny an application to construct or maintain a levee described in paragraph (4) if the levee poses a significant threat of harm to downstream communities. . (b)
Construction of levees under hazard mitigation programs relating to floods
(1)
Flood mitigation assistance
Section 1366 of the National Flood Insurance Act of 1968 (42 U.S.C. 4104c) is amended by adding at the end the following: (n)
Construction of levees on acquired lands
(1)
In general
Subject to paragraph (2), and notwithstanding any requirement that property acquired or accepted under this section be dedicated and maintained in perpetuity as open space for the conservation of natural flood plain functions, if the mitigation activities funded under subsection (a) include the acquisition or acceptance of property for open space purposes, the Administrator may permit the construction or maintenance on the property of— (A)a levee that is federally owned and operated; (B)a permanent levee that is federally constructed and non-federally operated and maintained; (C)a levee— (i)that is federally constructed as a nonpermanent levee; (ii)that a non-Federal entity desires to operate and maintain as a permanent levee; and (iii)the owners of which— (I)are participating in the emergency response to natural disasters program established under section 5 of the Act entitled An Act authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes, approved August 18, 1941 (33 U.S.C. 701n); or (II)begin participating in the program described in subclause (I) within a reasonable period of time, as determined by the Administrator, after the date on which the levee is constructed; and (D)a non-Federal levee the owners of which are participating in the program described in subparagraph (C)(iii)(I). (2)
Downstream communities
The Administrator may deny an application to construct or maintain a levee described in paragraph (1) if the levee poses a significant threat of harm to downstream communities. . (2)
Grants for repetitive insurance claim properties
Section 1323 of the National Flood Insurance Act of 1968 (42 U.S.C. 4030) is amended by adding at the end the following: (c)
Construction of levees on acquired lands
(1)
In general
Subject to paragraph (2), and notwithstanding any requirement that property acquired or accepted under this section be dedicated and maintained in perpetuity as open space for the conservation of natural flood plain functions, if the mitigation activities funded under subsection (a) include the acquisition or acceptance of property for open space purposes, the Administrator may permit the construction or maintenance on the property of— (A)a levee that is federally owned and operated; (B)a permanent levee that is federally constructed and non-federally operated and maintained; (C)a levee— (i)that is federally constructed as a nonpermanent levee; (ii)that a non-Federal entity desires to operate and maintain as a permanent levee; and (iii)the owners of which— (I)are participating in the emergency response to natural disasters program established under section 5 of the Act entitled An Act authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes, approved August 18, 1941 (33 U.S.C. 701n); or (II)begin participating in the program described in subclause (I) within a reasonable period of time, as determined by the Administrator, after the date on which the levee is constructed; and (D)a non-Federal levee the owners of which are participating in the program described in subparagraph (C)(iii)(I). (2)
Downstream communities
The Administrator may deny an application to construct or maintain a levee described in paragraph (1) if the levee poses a significant threat of harm to downstream communities. . (3)
Severe repetitive loss program
Section 1361A(g) of the National Flood Insurance Act of 1968 (42 U.S.C. 4102a(g)) is amended— (A)in paragraph (1), by striking the period at the end and inserting the following: “, including that, subject to paragraph (5), and notwithstanding any requirement that property acquired or accepted under this section be dedicated and maintained in perpetuity as open space for the conservation of natural flood plain functions, the Administrator may permit the construction or maintenance on such property of— (A)a levee that is federally owned and operated; (B)a permanent levee that is federally constructed and non-federally operated and maintained; (C)a levee— (i)that is federally constructed as a nonpermanent levee; (ii)that a non-Federal entity desires to operate and maintain as a permanent levee; and (iii)the owners of which— (I)are participating in the emergency response to natural disasters program established under section 5 of the Act entitled An Act authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes, approved August 18, 1941 (33 U.S.C. 701n); or (II)begin participating in the program described in subclause (I) within a reasonable period of time, as determined by the Administrator, after the date on which the levee is constructed; and (D)a non-Federal levee the owners of which are participating in the program described in subparagraph (C)(iii)(I). ; and (B)by adding at the end the following: (5)
Downstream communities
The Administrator may deny an application to construct or maintain a levee described in paragraph (1) if the levee poses a significant threat of harm to downstream communities. . (c)
Applicability of amendments
The amendments made by this section shall apply to all property acquired or accepted pursuant to section 203 or 404 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5133 and 5170c) or section 1323, 1366, or 1361A of the National Flood Insurance Act of 1968 (42 U.S.C. 4030, 4104c, and 4102a) before, on, or after the date of enactment of this Act.