[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1688 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 1688

   To establish a Federal standard in order to improve the Nation's 
              resilience to current and future flood risk.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 18, 2021

Mr. Van Hollen (for himself, Mr. Schatz, and Mr. Booker) introduced the 
 following bill; which was read twice and referred to the Committee on 
                  Banking, Housing, and Urban Affairs

_______________________________________________________________________

                                 A BILL


 
   To establish a Federal standard in order to improve the Nation's 
              resilience to current and future flood risk.

    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 ``Federal Flood Risk Management Act of 
2021''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``Administrator'' means the Administrator of 
        the Federal Emergency Management Agency;
            (2) the term ``agency''--
                    (A) has the meaning given the term ``Executive 
                agency'' in section 105 of title 5, United States Code; 
                and
                    (B) does not apply to an agency that does not take 
                agency actions in or affecting floodplains;
            (3) the term ``agency action''--
                    (A) means, with respect to an agency--
                            (i) acquiring, managing, and disposing of 
                        Federal lands and facilities;
                            (ii) providing construction and 
                        improvements that are undertaken, financed by, 
                        or assisted by the Federal Government; and
                            (iii) conducting Federal activities and 
                        programs that affect land use, including 
                        planning, regulating, and licensing activities 
                        relating to water and land resources; and
                    (B) does not include a military construction 
                project described in section 2802 of title 10, United 
                States Code;
            (4) the term ``base flood'' means a flood that has a not 
        less than 1 percent chance of occurring in a year;
            (5) the term ``critical action'' means any agency action 
        with respect to which the head of the agency determines a 
        slight chance of flooding would present an unacceptable amount 
        of risk;
            (6) the term ``Executive Order 11988'' means Executive 
        Order 11988 (42 Fed. Reg. 26951; relating to floodplain 
        management);
            (7) the term ``federally funded project'' means an action 
        in which Federal funds are used, with respect to a structure or 
        facility, for new construction, for substantial improvement, or 
        to address substantial damage;
            (8) the term ``floodplain'' means, subject to section 
        4(b)(2), the lowland and relatively flat area that adjoins 
        inland and coastal waters (including flood-prone areas of 
        offshore islands);
            (9) the term ``National Flood Insurance Program'' means the 
        program established under the National Flood Insurance Act of 
        1968 (42 U.S.C. 4001 et seq.);
            (10) the term ``Standard'' means the Federal Flood Risk 
        Management Standard set forth in Appendix G to Guidelines for 
        Implementing Executive Order 11988, Floodplain Management, and 
        Executive Order 13690, Establishing a Federal Flood Risk 
        Management Standard and a Process for Further Soliciting and 
        Considering Stakeholder Input, published on October 8, 2015; 
        and
            (11) the term ``Water Resources Council'' means the Council 
        established under section 101 of the Water Resources Planning 
        Act (42 U.S.C. 1962a).

SEC. 3. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) it should be the policy of the United States to improve 
        the resiliency of communities and assets of the Federal 
        Government against the impacts of flooding;
            (2) the impacts of flooding are anticipated to increase 
        over time due to increased future risk and greater development 
        on floodplains;
            (3) losses caused by flooding affect--
                    (A) the environment;
                    (B) the economic prosperity of the United States;
                    (C) public health and safety; and
                    (D) the national security of the United States;
            (4) the Federal Government must take action, informed by 
        the best available and actionable science, to improve the 
        preparedness and resilience of the United States with respect 
        to flooding;
            (5) Executive Order 11988 requires agencies to avoid--
                    (A) to the maximum extent practicable, the long- 
                and short-term adverse impacts associated with the 
                occupancy and modification of floodplains; and
                    (B) direct or indirect support of floodplain 
                development whenever a more practicable alternative is 
                available;
            (6) to implement Executive Order 11988, the Federal 
        Government has developed processes for evaluating the impacts 
        of Federal actions in or affecting floodplains;
            (7) in June 2013, an interagency effort to create a new 
        flood risk reduction standard for federally funded projects was 
        initiated;
            (8) in establishing the standard described in paragraph 
        (7), the views of governors, mayors, and interested members of 
        the public were solicited and considered;
            (9) the result of the efforts described in paragraphs (7) 
        and (8) is the Standard, a flexible framework to increase 
        resilience against flooding and help preserve the natural 
        values of floodplains; and
            (10) enacting the Standard will ensure that agencies expand 
        management from the base flood level in effect as of the date 
        of enactment of this Act to a higher vertical elevation and a 
        corresponding horizontal floodplain in order to--
                    (A) address current and future flood risk; and
                    (B) ensure that federally funded projects last as 
                long as intended.

SEC. 4. FLOODPLAIN MANAGEMENT.

    (a) In General.--The head of each agency shall provide leadership 
and shall take action, when carrying out an agency action, to--
            (1) reduce the risk of losses resulting from floods;
            (2) minimize the impact of floods on human safety, health, 
        and welfare; and
            (3) restore and preserve the natural and beneficial values 
        served by floodplains.
    (b) Agency Responsibilities.--
            (1) In general.--In carrying out an agency action, as 
        described in subsection (a), the head of each agency shall--
                    (A) evaluate the potential effects of any agency 
                action taken by the agency in a floodplain, as 
                determined under paragraph (2);
                    (B) ensure that the planning programs and budget 
                requests of the agency reflect consideration of flood 
                hazards and the management of floodplains; and
                    (C) prescribe procedures to implement the policies 
                and requirements of this Act--
                            (i) to the extent permitted by law; and
                            (ii) in accordance with the procedures 
                        described in paragraph (3).
            (2) Determination of floodplains.--The head of an agency 
        shall, when determining whether an agency action will take 
        place in a floodplain--
                    (A) use--
                            (i) the elevation and flood hazard area, as 
                        determined by--
                                    (I) a climate-informed science 
                                approach that--
                                            (aa) uses the best 
                                        available actionable hydrologic 
                                        and hydraulic data and methods;
                                            (bb) integrates current and 
                                        future changes in flooding 
                                        based on climate science;
                                            (cc) includes an emphasis 
                                        on whether the agency action is 
                                        a critical action; and
                                            (dd) takes into 
                                        consideration changes over the 
                                        lifetime of the project that is 
                                        the subject of the agency 
                                        action;
                                    (II) the freeboard value, reached 
                                by adding an additional--
                                            (aa) 2 feet to the base 
                                        flood elevation for an agency 
                                        action that is not a critical 
                                        action; and
                                            (bb) 3 feet to the base 
                                        flood elevation for an agency 
                                        action that is a critical 
                                        action; or
                                    (III) any other method that is 
                                identified in any amendment made to 
                                this Act; or
                            (ii) an area that has a 0.2 percent chance 
                        of flooding in a year; and
                    (B) rely on--
                            (i) the best available information; and
                            (ii) the Flood Insurance Rate Map published 
                        by the Administrator for the community in which 
                        the agency action shall take place.
            (3) Procedures.--The procedures described in this paragraph 
        are as follows:
                    (A) Before an agency takes an agency action, the 
                head of the agency shall determine under paragraph (2) 
                whether the proposed agency action will take place in a 
                floodplain.
                    (B) If an agency action described in subparagraph 
                (A) may have a significant effect on the quality of the 
                human environment, the evaluation required under 
                paragraph (5) shall be included in any statement 
                prepared under section 102(2)(C) of the National 
                Environmental Policy Act of 1969 (42 U.S.C. 
                4332(2)(C)).
                    (C) If the head of an agency has determined to, or 
                proposes to, conduct, support, or allow an agency 
                action that will take place in a floodplain, as 
                determined under paragraph (2), the head of the agency 
                shall--
                            (i) consider alternatives in order to avoid 
                        adverse effects and incompatible development in 
                        the floodplain;
                            (ii) when possible, rely on natural 
                        systems, ecosystem processes, and nature-based 
                        approaches when considering alternatives under 
                        clause (i);
                            (iii) if the head of the agency determines 
                        that the only practicable alternative 
                        consistent under law, including the 
                        requirements of this Act, requires taking an 
                        agency action in a floodplain, before taking 
                        the agency action--
                                    (I) design or modify the agency 
                                action to minimize potential harm to or 
                                within the floodplain consistent with 
                                regulations issued under paragraph (6); 
                                and
                                    (II) prepare and distribute a 
                                notice that contains an explanation 
                                with respect to why the agency action 
                                shall take place in the floodplain;
                            (iv) send a notice to all State, local, and 
                        Tribal governments with respect to the 
                        geographic areas that are affected by the 
                        agency action that--
                                    (I) is not more than 3 pages long;
                                    (II) includes--
                                            (aa) a location map;
                                            (bb) the reasons why the 
                                        agency action shall occur in a 
                                        floodplain;
                                            (cc) a statement indicating 
                                        whether the agency action 
                                        conforms to applicable State or 
                                        local floodplain protection 
                                        standards; and
                                            (dd) a list of the 
                                        alternatives to the agency 
                                        action that the head of the 
                                        agency considered; and
                                    (III) allows for a brief comment 
                                period before the head of the agency 
                                may take the agency action; and
                            (v) provide the opportunity for early 
                        public review of any plan or proposal for the 
                        agency action, including the development of 
                        procedures for any Federal action the impact of 
                        which is not significant enough to require the 
                        preparation of a statement under section 
                        102(2)(C) of the National Environmental Policy 
                        Act of 1969 (42 U.S.C. 4332(2)(C)).
            (4) Requests for authorizations and appropriations.--The 
        head of an agency, when making any request to the Director of 
        the Office of Management and Budget for a new authorization or 
        for appropriations, shall indicate, if an agency action to be 
        proposed shall take place in a floodplain, as determined under 
        paragraph (2), whether the agency action complies with this 
        Act.
            (5) Water and land use plans.--
                    (A) In general.--The head of an agency, when 
                formulating or evaluating any water and land use plan, 
                shall--
                            (i) take floodplain management into 
                        account; and
                            (ii) require the use of land and water 
                        resources that are appropriate when compared 
                        with the degree of hazard that is involved.
                    (B) Considerations.--The head of each agency 
                shall--
                            (i) provide for the adequate evaluation and 
                        consideration of flood hazards with respect to 
                        the regulations and operating procedures for 
                        the licenses, permits, and loan or grant 
                        programs administered by the agency; and
                            (ii) with respect to an applicant for a 
                        license, permit, loan, or grant that is issued 
                        or administered by the agency, encourage, and 
                        provide appropriate guidance to, the applicant 
                        to evaluate, before submitting the application, 
                        the effects that the application, if granted, 
                        would have on floodplains.
            (6) Regulations and procedures.--To the extent permitted by 
        law, the head of each agency shall, in consultation with the 
        Water Resources Council, the Federal Interagency Floodplain 
        Management Task Force, the Administrator, and the Council on 
        Environmental Quality--
                    (A) issue regulations, or amend regulations that 
                are in effect as of the date of enactment of this Act, 
                to comply with the requirements of this Act; and
                    (B) amend the regulations described in subparagraph 
                (A) as warranted.
    (c) Annual Reassessment.--The Mitigation Framework Leadership 
Group, in consultation with the Federal Interagency Floodplain 
Management Task Force, shall--
            (1) annually reassess the implementation of the 
        requirements imposed under this section; and
            (2) provide recommendations to the Water Resources Council 
        for updates to the requirements imposed under this section that 
        are warranted based on accurate and actionable science that 
        takes into account changes to climate and other changes in 
        flood risk.

SEC. 5. FEDERAL FLOOD RISK MANAGEMENT STANDARD.

    (a) In General.--The head of an agency shall--
            (1) except as provided in subsection (b), with respect to a 
        federally funded project undertaken by the agency, ensure that 
        the agency complies with the Standard; and
            (2) if the agency has responsibility for the administration 
        or management of Federal real property and facilities, in 
        addition to the requirements under section 4 and paragraph 
        (1)--
                    (A) require the construction of Federal structures 
                and facilities to comply with--
                            (i) the regulations and procedures issued 
                        under section 4(b)(6); and
                            (ii) any regulations issued under the 
                        National Flood Insurance Program unless those 
                        regulations are demonstrably inappropriate for 
                        a structure or facility;
                    (B) apply accepted floodproofing and other flood 
                protection measures to the construction or 
                rehabilitation of a structure or facility that is 
                located in a floodplain;
                    (C) when practicable, elevate a structure above the 
                floodplain instead of filling in land;
                    (D) provide on structures and, where appropriate, 
                other pieces of property a conspicuous delineation of 
                past and probable flood height--
                            (i) if the structure or other property--
                                    (I) is used by the general public; 
                                and
                                    (II)(aa) has suffered flood damage; 
                                or
                                    (bb) is in an identified flood 
                                hazard area; and
                            (ii) in order to enhance public awareness 
                        of, and knowledge about, flood hazards; and
                    (E) when Federal property in a floodplain is 
                proposed for lease, easement, right-of-way, or disposal 
                to a non-Federal public or private party--
                            (i) reference in the conveyance those uses 
                        that are restricted under Federal, State, or 
                        local regulations relating to floodplains; and
                            (ii)(I) except where prohibited by law, 
                        attach any other appropriate restrictions to 
                        the uses of the property by the grantee or 
                        purchaser, as applicable, and any successors; 
                        or
                            (II) withhold the property from conveyance.
    (b) Exemption.--The head of an agency may exempt a federally funded 
project from the requirement under subsection (a)(1) if--
            (1) the exemption is in the interest of national security;
            (2) the undertaking of the federally funded project is--
                    (A) because of an emergency; or
                    (B) a mission-critical requirement relating to a 
                national security interest or an emergency; or
            (3) applying the Standard to a federally funded project is 
        demonstrably inappropriate.
    (c) Updates.--Not less frequently than once every 5 years, the 
Water Resources Council shall update the Standard, as determined 
appropriate by the Water Resources Council.

SEC. 6. FINANCIAL TRANSACTIONS IN AREAS SUBJECT TO FLOODING.

    In addition to any responsibilities under this Act and sections 
102, 202, and 205 of the Flood Disaster Protection Act of 1973 (42 
U.S.C. 4012a, 4106, 4128), the head of any agency that guarantees, 
approves, regulates, or insures any financial transaction relating to 
an area that is subject to a base flood shall, before completing any 
action relating to that transaction, inform any private parties that 
are participating in the transaction about the hazards of locating a 
structure in that area.

SEC. 7. REPORTS.

    (a) In General.--Not later than 1 year after the date of enactment 
of this Act, the head of each agency shall submit to the Council on 
Environmental Quality a report regarding how the requirements of this 
Act impact the procedures and operations of the agency.
    (b) Analysis of Standard.--Each report submitted under subsection 
(a) shall contain a separate analysis regarding how the requirement 
under section 5(a)(1) has impacted the agency.
    (c) Evaluation.--Not less frequently than once every 2 years, the 
Water Resources Council shall--
            (1) evaluate the procedures, including the effectiveness of 
        the procedures, of each agency relating to the requirements of 
        this Act, taking into account each report submitted under 
        subsection (a); and
            (2) submit to the appropriate committees of Congress a 
        report that contains the result of the evaluation required 
        under paragraph (1).

SEC. 8. GENERAL PROVISIONS.

    (a) Rules of Construction.--Nothing in this Act may be construed--
            (1) as applying to assistance that is provided for 
        emergency work that is--
                    (A) performed under sections 403 and 502 of the 
                Robert T. Stafford Disaster Relief and Emergency 
                Assistance Act (42 U.S.C. 5170b, 5192); and
                    (B) essential to--
                            (i) save human life; and
                            (ii) protect--
                                    (I) property; and
                                    (II) public health and safety; or
            (2) to impair or otherwise affect--
                    (A) the authority granted by law to an agency or 
                the head of an agency; or
                    (B) the functions of the Director of the Office of 
                Management and Budget relating to budgetary, 
                administrative, or legislative proposals.
    (b) Implementation.--This Act shall be implemented consistent with 
applicable law and subject to the availability of appropriations.
    (c) Responsibilities of Water Resources Council.--Except as 
otherwise expressly provided, the Water Resources Council shall carry 
out the responsibilities of the Council under this Act in consultation 
with the Mitigation Framework Leadership Group.

SEC. 9. ASSUMPTION OF RESPONSIBILITIES.

    If subparagraphs (A), (B), and (C) of section 4(b)(3) apply to a 
project to which section 104(h) of the Housing and Community 
Development Act of 1974 (42 U.S.C. 5304(h)) applies, an appropriate 
applicant may assume the responsibilities under those subparagraphs if 
the applicant has also assumed, with respect to the project, all 
responsibilities for environmental review, decision making, and action 
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.).
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