Planning and implementation of nonstructural flood risk management solutions

(a)

Findings

Congress finds that—(1)nonstructural features are proven methods for reducing both short- and long-term risk and damages from the isolated and compound effects of all flood drivers, including fluvial flooding, coastal storm surge-driven flooding, and flooding from extreme rainfall;(2)nonstructural features reduce flood risk and damages while preserving the benefits of natural floodplains, including natural flood and erosion control, fish and wildlife habitat, water quality maintenance, groundwater recharge, and recreation opportunities;(3)nonstructural features require minimal operation, maintenance, repair, rehabilitation, and replacement and, as a result, are often more cost-effective than structural features such as levees and floodwalls;(4)nonstructural features may be the only cost-effective solution to address flood risk and damages in small rural communities and in large, densely populated areas with multiple flood sources;(5)Congress has required the Corps of Engineers to consider nonstructural features in the formulation of all flood risk management and hurricane and storm damage risk reduction projects since 1974;(6)the Corps of Engineers reportedly has identified over 88,000 individual structures for elevation in authorized flood risk management or hurricane and storm damage risk reduction projects or in ongoing feasibility studies; and(7)the wholesale pausing or termination of participation by the Corps of Engineers in nonstructural flood risk management is contrary to the direction of Congress and will leave flood-prone communities unacceptably vulnerable to increasing flood risk.(b)

Declaration of policy

Congress declares that it is the policy of the United States that—(1)nonstructural features shall be given equal consideration to structural features in every feasibility study conducted by the Corps of Engineers for flood risk management or hurricane and storm damage risk reduction; and(2)implementation of nonstructural features determined by the Corps of Engineers to meet the Federal objective for investments in water resources is a fundamental part of the primary mission of the Corps of Engineers for flood risk management and hurricane and storm damage risk reduction.(c)

Purposes

The purposes of this Act are—(1)to reaffirm the role of the Corps of Engineers in the development and implementation of nonstructural features; and(2)to enhance the capability of the Corps of Engineers to plan and implement nonstructural features efficiently and effectively.(d)

Implementation of studies and projects

(1)

Continuation of studies and projects

(A)

In general

Except as provided in paragraph (5), the Secretary shall not pause, terminate, or otherwise defer the initiation or continuation of any study or project described in paragraph (2).(B)

Resumption of studies and projects

Not later than 45 days after the date of enactment of this Act, the Secretary shall resume any study or project described in paragraph (2) that the Secretary paused, terminated, or otherwise deferred during the period beginning on January 20, 2025, and ending on the date of enactment of this Act, unless an exception under paragraph (5) applies to the study or project.(2)

Study or project described

A study or project referred to in this subsection is an authorized flood risk management or hurricane and storm damage risk reduction study or project—(A)that includes a nonstructural feature;(B)(i)for which Congress has specifically appropriated funds; or(ii)for which funds have been allocated in a work plan submitted to the Committees on Appropriations of the Senate and the House of Representatives; and(C)for which funds are available for obligation and expenditure.(3)

Required disclosures to non-Federal interests

(A)

In general

The District Engineer responsible for a study or project described in paragraph (2) shall—(i)not later than 45 days after the date of enactment of this Act, notify the non-Federal interest for the study or project, in writing, of the status of the study or project;(ii)every 45 days thereafter, provide the non-Federal interest for the study or project, in writing—(I)a current schedule for completion of the study or project; and(II)documentation of funds expended and work items completed;(iii)notify the non-Federal interest for the study or project, in writing, by not later than 15 days after the date of any—(I)change to the schedule that exceeds the programmed float for the study or project; or(II)pause, termination, or deferral of the study or project pursuant to an exception described in subparagraph (A), (B), or (C) of paragraph (5); and(iv)beginning February 15, 2027, and each February 15 thereafter, notify the non-Federal interest for the study or project, in writing, of the capability of the Corps of Engineers for the study or project in the upcoming fiscal year.(B)

Contents of notification

The written notification under subparagraph (A)(ii)(I) shall include an explanation of the cause of the change to the schedule for the study or project.(C)

Congressional notification

The Secretary shall provide a copy of each notification issued to a non-Federal interest under clause (i), (iii), or (iv) of subparagraph (A) to the Committee on Environment and Public Works of the Senate, the Committee on Transportation and Infrastructure of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives.(4)

Requirements for certain studies

(A)

In general

In the case of a study described in paragraph (2) the purpose of which is to develop a recommendation with respect to a congressional authorization for a project, including a congressional authorization to increase the maximum authorized cost of a project in accordance with section 902 of the Water Resources Development Act of 1986 (33 U.S.C. 2280), the Secretary may not—(i)complete the study without submitting to Congress a Chief’s Report or Director’s Report, as applicable, for the study that includes such a recommendation;(ii)narrow the purpose or geographic scope of the study relative to the authorized purpose and geographic scope of the study, unless requested in writing by the non-Federal interest for the study; or(iii)delay progress of the study toward a schedule milestone by a period exceeding 45 days under subsections (b) and (c) of section 1001 of the Water Resources Reform and Development Act of 2014 (33 U.S.C. 2282c).(B)

Locally preferred alternative

On the request of the non-Federal interest for a study described in paragraph (2) that requires a Chief’s Report, the Secretary shall include in the Chief’s Report, with a level of detail comparable to the level of detail required by the Secretary to support a recommendation for congressional authorization, the features and costs of the locally preferred alternative.(5)

Exceptions

Paragraph (1) shall not apply to a study or project described in paragraph (2) if—(A)the pausing of construction of the project is required to comply with section 902 of the Water Resources Development Act of 1986 (33 U.S.C. 2280), subject to the condition that the pause does not affect the validation study necessary to support an increase in the maximum authorized cost of the project;(B)the pausing or deferral of the study or project is required because the non-Federal interest for the study or project lacks the capability to carry out the non-Federal responsibilities required by, as applicable—(i)section 101, 102, 103, or 105 of the Water Resources Development Act of 1986 (33 U.S.C. 2211, 2212, 2213, 2215);(ii)section 221 of the Flood Control Act of 1970 (42 U.S.C. 1962d–5b); or(iii)the authorization for the study or project;(C)the pausing, termination, or deferral of the study or project is required to comply with a court order or condition of a settlement agreement; or(D)the pausing, termination, or deferral of the study or project is requested in writing by the non-Federal interest for the study or project.(6)

Presumption

A study or project described in paragraph (2) to which no exception described in paragraph (5) applies shall be presumed to be paused, terminated, or deferred in violation of paragraph (1) if—(A)progress of the study or project toward a schedule milestone is delayed by a period exceeding 45 days; or(B)the District Engineer fails to provide to the non-Federal interest for the study or project any documentation or notification under paragraph (3)(A) in accordance with the terms of that paragraph.(e)

Technical competence and capacity building

(1)

National nonstructural committee

(A)

In general

The Secretary shall not terminate the charter for the National Nonstructural Committee of the Corps of Engineers without specific authorization from Congress.(B)

Stakeholder engagement and community outreach policies

The National Nonstructural Committee shall prioritize the development of guidance and tools to enhance participation in nonstructural features through stakeholder engagement and community outreach.(2)

Nonstructural working group

(A)

In general

Not later than 90 days after the date of enactment of this Act, the Secretary, acting through the National Nonstructural Committee, shall establish a nonstructural working group composed of subject matter experts from Federal agencies with statutory responsibilities related to flood risk management or flood hazard mitigation, State and local governments, and nationally recognized nonprofit organizations with expertise in nonstructural flood risk management.(B)

Composition

To the maximum extent practicable, the National Nonstructural Committee shall ensure that the nonstructural working group established under subparagraph (A) includes—(i)not less than 1 representative from the Federal Emergency Management Agency;(ii)not less than 1 representative from the Department of the Interior;(iii)not less than 1 representative from the Department of Housing and Urban Development;(iv)not less than 1 representative from the Department of Agriculture;(v)not less than 1 representative of a State or local government with expertise in rural floodplain management;(vi)not less than 1 representative of a State or local government with expertise in urban floodplain management;(vii)not less than 1 representative of a State or local government with expertise in inland floodplain management;(viii)not less than 1 representative of a State or local government with expertise in coastal floodplain management; and(ix)not less than 5 representatives from nationally recognized nonprofit organizations.(C)

Duties

Members of the nonstructural working group established under subparagraph (A) may provide—(i)information and individual advice to the Corps of Engineers offices and non-Federal interests to further the execution of flood risk management and hurricane and storm damage risk reduction studies and projects that include nonstructural features; and(ii)information and individual advice to the National Nonstructural Committee and to the mandatory nonstructural center of expertise described in paragraph (3) to further the development of technical and policy guidance for the formulation, evaluation, and implementation of nonstructural measures.(D)

Access to information

The National Nonstructural Committee shall provide the members of the nonstructural working group established under subparagraph (A) such access to information related to ongoing flood risk management and hurricane and storm damage risk reduction studies and projects that include nonstructural features and technical and policy guidance as is necessary for the members to carry out the duties described in subparagraph (C).(E)

Meetings

The nonstructural working group established under subparagraph (A) shall convene on not less than a quarterly basis.(3)

Mandatory nonstructural center of expertise

(A)

In general

Not later than 90 days after the date of enactment of this Act, the Secretary shall designate a mandatory nonstructural center of expertise in the Corps of Engineers.(B)

Duties

The duties of the mandatory nonstructural center of expertise designated under subparagraph (A) include—(i)consolidating existing technical expertise to facilitate efficient and effective delivery of technical and specialized services for flood risk management and hurricane and storm damage risk reduction studies;(ii)reviewing, coordinating, and improving the quality of study products and recommendations;(iii)building capacity and technical competence within the Corps of Engineers with respect to nonstructural flood risk management; and(iv)coordinating with the nonstructural working group established under paragraph (2)(A) to assess needs, review recommendations, and support the development of policy guidance.(4)

Reports to Congress

Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that includes—(A)a summary of the activities of the National Nonstructural Committee;(B)a summary of the contributions of members of the nonstructural working group established under paragraph (2)(A), including an assessment of any recommendations made by individual members of the working group;(C)a summary of the activities of the mandatory nonstructural center of expertise designated under paragraph (3)(A);(D)an assessment of the consideration of nonstructural features in ongoing flood risk management and hurricane and storm damage risk reduction studies, including—(i)a comparison of the benefits and costs of nonstructural features and alternatives relative to the benefits and costs of structural features and alternatives across studies; and(ii)a description of any study in which a fully nonstructural alternative was not included in the final array of alternatives and the justification for the decision;(E)an assessment of the implementation of nonstructural features included in flood risk management and hurricane and storm damage risk reduction projects under construction, including a summary of participation rates and a description of the community outreach strategies implemented during project construction; and(F)a description of actions taken by the Corps of Engineers to address barriers to implementation of nonstructural features.(f)

Cost sharing

(1)

In general

Section 103(b) of the Water Resources Development Act of 1986 (33 U.S.C. 2213(b)) is amended—(A)in paragraph (1), in the first sentence, by striking The non-Federal share and inserting Except as provided in paragraph (2), the non-Federal share;(B)in paragraph (2)—(i)in the paragraph heading, by striking

35 percent

and inserting

the non-Federal share

;(ii)by striking 35 percent and inserting the non-Federal share; and(iii)by striking 65 percent and inserting the Federal share;(C)by redesignating paragraph (2) as paragraph (3); and(D)by inserting after paragraph (1) the following:

(2)

Cost sharing for certain measures using nonstructural features

The Federal share of the cost of a flood risk management or hurricane and storm damage risk reduction measure using a nonstructural feature shall be—(A)90 percent, if the measure benefits an economically disadvantaged community (as defined pursuant to section 160 of the Water Resources Development Act of 2020 (33 U.S.C. 2201 note; Public Law 116–260));(B)90 percent, if the measure is for a repetitive loss structure (as defined in section 1370 of the National Flood Insurance Act of 1968 (42 U.S.C. 4121));(C)100 percent, if the measure is for a severe repetitive loss structure (as defined in section 1366(h) of the National Flood Insurance Act of 1968 (42 U.S.C. 4104c(h))); and(D)75 percent, in the case of any measure not described in subparagraphs (A) through (C).

(2)

Applicability

The amendments made by paragraph (1) shall apply to—(A)any project for flood risk management or hurricane and storm damage risk reduction that is authorized after the date of enactment of this Act; and(B)any project for flood risk management or hurricane and storm damage risk reduction that was authorized on or before the date of enactment of this Act, on the request of the non-Federal interest for the project.(g)

Phased implementation

(1)

In general

On the request of the non-Federal interest for a project for flood risk management or hurricane and storm damage risk reduction that includes nonstructural features at scale, the Secretary shall phase implementation of the nonstructural features by municipality, neighborhood or community group, type of structure, category of nonstructural feature, or other appropriate criterion.(2)

Project partnership agreements

In carrying out a project described in paragraph (1), the Secretary may enter into a separate project partnership agreement with the non-Federal interest for each phase of construction of the nonstructural features.(3)

Multiple non-Federal interests

In the case of a project described in paragraph (1) that involves multiple non-Federal interests, the Secretary may enter into separate agreements with each non-Federal interest.

Structure elevation

(a)

Design flood elevation

In the case of a structure elevation nonstructural feature included in a project for flood risk management or hurricane and storm damage risk reduction—(1)the target design flood elevation shall be not lower than the elevation required by local ordinance; and(2)the Secretary shall evaluate the costs and benefits of adopting as the target design flood elevation for the feature the design flood elevation determined in accordance with the most recent edition of standard 24 of the American Society of Civil Engineers, entitled Flood Resistant Design and Construction, if higher than the elevation required by local ordinance.(b)

Certain eligible project costs

In the case of a project for flood risk management or hurricane and storm damage risk reduction that includes a structure elevation nonstructural feature, project costs shared in accordance with the cost share requirements otherwise applicable to the project shall include, at a minimum, the following:(1)Costs to comply with minimum design loads and associated criteria for all hazards applicable to a structure included in the project, including seismic hazards and wind hazards.(2)Costs to replace or repair utility service components that are undersized, inadequately designed, or unsafe, if required by State or local requirements.(3)Costs to abate asbestos and lead-based paint.(4)Costs to elevate existing decks, porches, or stairs.(5)Costs to construct a floor system that meets minimum State or local requirements when the existing floor system cannot be elevated or is not appropriate for the new foundation.(6)Costs to construct new stairs, landings, and railings to access the elevated living space in compliance with State or local requirements.(7)Documented reasonable housing costs incurred by an owner-occupant temporarily displaced during construction.(c)

Ownership verification

The Secretary shall accept as proof of ownership of a structure included in a structure elevation nonstructural feature any of the following documents:(1)Deed or official record.(2)Mortgage document.(3)Homeowners insurance documentation.(4)Property tax receipt or bill.(5)Manufactured home certificate or title.(6)Home purchase contract.(7)Will or affidavit of heirship.(8)Receipts for major repairs or maintenance to the structure.(9)Court documents.(10)A signed statement from a public official.(d)

Project delivery

(1)

In general

At the request of the non-Federal interest for a project for flood risk management or hurricane and storm damage risk reduction that includes a structure elevation nonstructural feature, the Secretary shall enter into a project partnership agreement with the non-Federal interest—(A)to allow the non-Federal interest to carry out the nonstructural feature; and(B)to provide in advance to the non-Federal interest the Federal share of funds required for construction of the nonstructural feature.(2)

Contracting

In carrying out a structure elevation nonstructural feature, the Secretary may permit the owner of a structure included in the nonstructural feature to contract for performance of the work on the structure.(e)

Applicability

(1)

In general

Subsections (a) through (c) shall apply to—(A)any study for a project for flood risk management or hurricane and storm damage risk reduction that has not reached the tentatively selected plan milestone on or before the date of enactment of this Act; and(B)any study for a project for flood risk management or hurricane and storm damage risk reduction that has reached the tentatively selected plan milestone on or before the date of enactment of this Act, at the request of the non-Federal interest for the study.(2)

Previously authorized projects

In the case of a project for flood risk management or hurricane and storm damage risk reduction that includes a structure elevation nonstructural feature authorized on or before the date of enactment of this Act, the Secretary, at the request of the non-Federal interest, shall carry out the nonstructural feature in accordance with subsections (a) through (c) without a general reevaluation study.