[Congressional Record Volume 158, Number 110 (Monday, July 23, 2012)]
[House]
[Pages H5105-H5110]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 AUTHORIZING STATE OR LOCAL GOVERNMENT TO CONSTRUCT LEVEES ON CERTAIN 
                               PROPERTIES

  Mr. YOUNG of Alaska. Mr. Speaker, I move to suspend the rules and 
pass the bill (S. 2039) to allow a State or local government to 
construct levees on certain properties otherwise designated as open 
space lands.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                S. 2039

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

     SECTION 1. LEVEES.

       (a) Definitions.--In this section--
       (1) the term ``Administrator'' means the Administrator of 
     the Federal Emergency Management Agency; and
       (2) the term ``covered hazard mitigation land'' means 
     land--
       (A) acquired and deed restricted under section 404(b) of 
     the Robert T. Stafford Disaster Relief and Emergency 
     Assistance Act (42 U.S.C. 5170c(b)) before, on, or after the 
     date of enactment of this Act; and
       (B) that is located--
       (i) in North Dakota; and
       (ii) in a community that--

       (I) is participating in the National Flood Insurance 
     Program on the date on which a State, local, or tribal 
     government submits an application requesting to construct a 
     permanent flood risk reduction levee under subsection (b); 
     and
       (II) certifies to the Administrator and the Chief of 
     Engineers that the community will continue to participate in 
     the National Flood Insurance Program.

       (b) Authority.--Notwithstanding clause (i) or (ii) of 
     section 404(b)(2)(B) of the Robert T. Stafford Disaster 
     Relief and Emergency Assistance Act (42 U.S.C. 
     5170c(b)(2)(B)), the Administrator shall approve the 
     construction of a permanent flood risk reduction levee by a 
     State, local, or tribal government on covered hazard 
     mitigation land if the Administrator and the Chief of 
     Engineers determine, through a process established by the 
     Administrator and Chief of Engineers and funded entirely by 
     the State, local, or tribal government seeking to construct 
     the proposed levee, that--
       (1) construction of the proposed permanent flood risk 
     reduction levee would more effectively mitigate against 
     flooding risk than an open floodplain or other flood risk 
     reduction measures;
       (2) the proposed permanent flood risk reduction levee 
     complies with Federal, State, and local requirements, 
     including mitigation of adverse impacts and implementation of 
     floodplain management requirements, which shall include an 
     evaluation of whether the construction, operation, and 
     maintenance of the proposed levee would continue to meet best 
     available industry standards and practices, would be the most 
     cost-effective measure to protect against the assessed flood 
     risk and minimizes future costs to the federal government;
       (3) the State, local, or tribal government seeking to 
     construct the proposed levee has provided an adequate 
     maintenance plan that documents the procedures the State, 
     local, or tribal government will use to ensure that the 
     stability, height, and overall integrity of the proposed 
     levee and the structure and systems of the proposed levee are 
     maintained, including--
       (A) specifying the maintenance activities to be performed;
       (B) specifying the frequency with which maintenance 
     activities will be performed;
       (C) specifying the person responsible for performing each 
     maintenance activity (by name or title);
       (D) detailing the plan for financing the maintenance of the 
     levee; and
       (E) documenting the ability of the State, local, or tribal 
     government to finance the maintenance of the levee.
       (c) Maintenance Certification.--
       (1) In general.--A State, local, or tribal government that 
     constructs a permanent flood risk reduction levee under 
     subsection (b) shall submit to the Administrator and the 
     Chief of Engineers an annual certification indicating whether 
     the State, local, or tribal government is in compliance with 
     the maintenance plan provided under subsection (b)(3).
       (2) Review.--The Chief of Engineers shall review a 
     certification submitted under paragraph (1) and determine 
     whether the State, local, or tribal government has complied 
     with the maintenance plan.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Alaska (Mr. Young) and the gentleman from Missouri (Mr. Carnahan) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Alaska.


                             General Leave

  Mr. YOUNG of Alaska. Mr. Speaker, I ask unanimous consent that all 
Members have 5 legislative days in which to revise and extend their 
remarks and include extraneous material on S. 2039.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Alaska?
  There was no objection.
  Mr. YOUNG of Alaska. Mr. Speaker, I ask unanimous consent that the 
gentleman from North Dakota (Mr. Berg) be permitted to control the 
balance of my time.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Alaska?
  There was no objection.
  Mr. BERG. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, Senate bill S. 2039 is a bipartisan bill sponsored by 
Senators from North Dakota Conrad and Hoeven, which passed the Senate 
by unanimous consent in January of this year. This bill will provide a 
great deal of help to the citizens of our State.
  The text of S. 2039 allows for a process of building permanent levees 
on Federal land in North Dakota, with the approval of FEMA and the Army 
Corps of Engineers. I want to highlight the unique situation we have in 
North Dakota, and this legislation intends to address just that.
  First of all, Fargo, North Dakota. It has faced repeated flooding 
along the Red River, which runs through the heart of the city. The city 
has constructed a permanent levee that runs along as much of the river 
as possible. However, over the years, some properties have been bought 
out along the riverbank with Federal funds.

                              {time}  1740

  As a result, we have a patchwork of properties that exist along this 
levee system with gaps in the system. Recurring flooding along the Red 
River requires temporary levees to go up nearly every year only to be 
taken down, and what happens, repeatedly, over and over, is a taxpayer 
waste of money.
  Minot, North Dakota, will have the same problem. As my colleagues 
know, Minot faced enormous flooding last spring. Thousands of homes 
were lost, and the community sustained hundreds of millions of dollars 
in damages. The city of Minot now plans to rebuild a major new flood 
protection system, including rebuilding the levees that were in place. 
This is in the middle of the city along the Souris River. This means 
that Minot will face the same frustration and expense of constructing 
and removing temporary levees year after year, just as it is in Fargo.
  The solution is to simply permit levee construction on federally 
purchased property in these areas of North Dakota, with the approval of 
FEMA and the Corps. It's important to note that in both Fargo and 
Minot, a levee will be in place regardless of this legislation.

[[Page H5106]]

  What this commonsense bill is trying to prevent is the absurdity and 
the expense to taxpayers of building and then taking down a temporary 
levee every year every time there's a flood.
  This bill does contain important restrictions to ensure undue Federal 
costs are not incurred. Under this bill, before approving any project, 
FEMA and the Army Corps of Engineers must first determine that the 
levee will be effective in mitigating against the flood risk versus 
having an open floodplain, that permanent levee flood protection would 
be the most cost effective measure to protect against flood risk and 
minimize the future cost to the Federal Government, and also, that the 
State or local government seeking to build the levee has provided 
adequate, detailed plans for maintenance of the proposed levee and the 
State or local government has a detailed finance plan to pay for it.
  All of the above must be demonstrated before the construction plan 
can be approved. Furthermore, this Federal review itself must be paid 
for entirely by the local or State government.
  Mr. Speaker, the construction of a permanent levee is far more 
fiscally responsible than the annual costs associated each year with 
tearing down, building and tearing down these temporary levees. Most 
importantly, this legislation eliminates the cost that FEMA and the 
Corps of Engineers have already incurred time and time again as they're 
forced to build these and tear them down, the temporary levees in the 
State of North Dakota.
  This legislation provides better stewardship of taxpayer dollars. It 
provides sound protections against future Federal expense, and it will 
save the local, State and Federal Government money. Most importantly, 
it will ensure better flood protection for the communities of Minot and 
Fargo in North Dakota.
  I ask my colleagues for their support of this legislation and reserve 
the balance of my time.
  Mr. CARNAHAN. Mr. Speaker, I yield myself as much time as I may 
consume.
  With respect to the gentleman from North Dakota, there are some 
differences on this bill.
  I rise to ask my colleagues to vote ``no'' on S. 2039, a bill that 
would increase the likelihood of flooding along the Missouri River that 
impacts several States, putting millions of people at risk. This 
legislation has not had a hearing in either the House or the Senate, 
nor has the public or impacted federal agencies had an opportunity to 
weigh in.
  The bill goes against longstanding Federal policy that would still 
apply to the other 49 States--just not North Dakota. Once Federal funds 
are used to relocate communities and buildings out of floodplains, that 
land is meant to be dedicated and maintained in perpetuity for a use 
that is compatible with open space, recreational or wetlands management 
practices. This bill would stop that from happening in North Dakota, 
despite the fact that the issue was already addressed with specific 
allowances for communities in North Dakota in the recently signed into 
law Biggert-Waters Flood Reform Act of 2012. This bill that's on the 
floor today doesn't require local communities to reimburse the Federal 
Government and taxpayers for those previous buyouts.
  Without hearings, it's hard to understand why S. 2039 is even 
necessary. Mr. Speaker, floods are the most frequently occurring 
natural disaster in this Nation. They happen in all 50 States. 
According to NOAA, there has been a steady increase in the U.S. of 
extreme flooding events. In fact, my home State of Missouri has had its 
fair share. In 2008, we faced a 200-year flood. In 1993, it was a 500-
year flood. We're talking about incredibly abnormal levels of flooding 
that would only be exacerbated by this bill.
  Last year, in St. Louis, we faced millions of dollars in losses 
because of weeks upon weeks of flooding. Again, it was a flood that the 
Army Corps of Engineers expects to occur every 10 to 25 years. River 
barge traffic, transporting billions in crops, were delayed. Riverboat 
casinos were closed for 6 to 8 weeks. Estimates of farmland crop damage 
was as high as $2 billion.
  Missouri was not the only State to suffer. Kentucky saw $5 million in 
damage, and 1,300 homes around Memphis were damaged. Mississippi 
suffered hundreds of millions of dollars of damage. This devastation 
was not from rainfall in Missouri or in the other States affected. It 
was created by runoff a thousand miles north in North Dakota.
  Increased rainfall in that State leads to flooding downstream in my 
State and others. This bill would allow levees to be created that would 
greatly increase the chances of that flooding. Rather than exempting 
North Dakota from the Stafford Act, we should be returning North Dakota 
to a natural state of marshes and wetlands along the river. These areas 
absorb significant amounts of water, slow runoff water and minimize the 
frequency that streams and rivers reach catastrophic flood levels.
  Rather than protecting the environment and letting nature do what it 
is designed to do, this bill would set precedent for other States--
increasing catastrophic flood levels across the country and devastating 
our Nation's businesses, farms and infrastructure.
  Therefore, I urge my colleagues to vote ``no'' on this bill, and I 
reserve the balance of my time.
  Mr. BERG. Mr. Speaker, I yield myself such time as I may consume.
  I want to just really make this perfectly clear. This is not 
affecting the Missouri River. This is focused on a very flat area in 
the eastern part of our State. As was mentioned, this came through the 
Senate with unanimous consent. Senators along the Missouri River from 
North Dakota all the way down were supportive of this.
  The essence of this problem is that we have a levee. This is a 
downtown levee that's in a city, and there are gaps there. And what 
happens is when there's a flood--and every year we have a recurring 
flood--a temporary levee is put in. Trucks come in and clays come in, 
it tears it up, and they build it, and as soon as that's done, it's all 
torn down again. This is disruptive, and it impacts the natural habitat 
there. That is where this is focused to be.
  The other thing that is really important here that I would like to 
stress, this legislation requires the Corps of Engineers to approve it. 
Those of us who have been dealing with the Missouri River know the 
Corps management would not approve of anything that would disrupt the 
Missouri waterway all the way down.
  Mr. Speaker, this is an urgent thing. The reason it's urgent is our 
State has had 10,000 people dislocated from 4,000 homes, and these 
people had the uncertainty of not knowing where they can rebuild, what 
they can do. This will help the city of Minot move forward with their 
housing needs. There are 1,400 families that are currently not back in 
their homes. They're living in trailers, living with neighbors and 
living with friends. They're not sure when these temporary levees go 
down what they should do next. That's really the urgency of this bill, 
and why that's why it's before you today.
  So, Mr. Speaker, I do urge my colleagues to support this bill, and I 
will reserve the balance of my time.
  Mr. CARNAHAN. Mr. Speaker, I yield 5 minutes to the gentleman from 
Oregon (Mr. Blumenauer).

                              {time}  1750

  Mr. BLUMENAUER. I appreciate the gentleman's courtesy as I appreciate 
his leadership on this issue. He comes from an area that has seen its 
own devastations in terms of flood.
  We're talking about a river system where we have engineered the area, 
and we have been fighting for years to try and attain an appropriate 
balance.
  This is not a fiscally responsible approach. It's interesting that it 
is opposed by Taxpayers for Common Sense, the National Taxpayers Union, 
the American Conservative Union, the Competitive Enterprise Institute, 
who have joined in common cause with a wide array of environmental 
organizations, as well as the professionals who deal with the 
management of floodplains, the Association of State Floodplain 
Managers, and a vast array of businesses, particularly those that are 
involved with the insurance and reinsurance. This is a prescription for 
disaster.
  Now, bear in mind that in the transportation bill--recently 
approved--there were proposals that were part of the flood issue that 
were for five parcels. This legislation--that as my

[[Page H5107]]

friend from St. Louis points out has never had a hearing--would open it 
up to some 37,000 units of land in North Dakota. It doesn't restrict 
it.
  Additionally, it doesn't require that the Federal Government--that 
paid for this land to be taken and put in a natural state where it 
could absorb the floodplain, the floodwaters--that they get this for 
free.
  Now, Mr. Speaker, I've worked in flood insurance reform now for over 
10 years. The last major flood insurance bill I was coauthor with my 
good friend, Doug Bereuter. We worked hard to try and make sure that we 
weren't going to subsidize people to live in places where nature has 
shown repeatedly that they don't belong, and that we weren't going to 
be in a situation where one part of the Federal Government subsidizes 
to move the problem downstream.
  What we see repeatedly is that, with major river systems that are 
fortified, that we try and fight against nature by putting in a series 
of levees. What it does is it channels that water, it accelerates and 
it moves it downstream and actually makes flooding worse.
  Now, it also, in a very perverse way, increases the risk in some of 
these areas that get levees, because ultimately there are floods. When 
you put a levee in, you give the illusion of safety, and then there's 
more development behind the levee. So instead of having natural area 
absorbing the runoff and avoiding loss--because the taxpayers are now 
off the hook for loss in these areas that we have purchased and 
returned to a natural state--then you have the cycle repeating.
  There's a reason this vast array of organizations are opposed to it. 
It's not environmentally sound; it's not fiscally sound; it violates 
important principles of flood control; it's going to make it harder for 
people. Bear in mind, these parcels were voluntarily purchased, but are 
people going to give up land in the future if it might be subject to a 
levee and development and a repetition of flooding? I think not.
  So I would really hope that my colleagues pay careful attention to 
this legislation. Look at the vast array of groups and organizations 
that are opposed to it. Question why it is coming to the floor without 
ever having a hearing. And most important, look at the devastation that 
will occur if we move away from these established principles. Listen to 
the floodplain managers. Listen to the environmentalists. Listen to the 
taxpayer advocates. Protect the system. Reject this ill-conceived 
measure.

                       Groups Opposed to S. 2039

       Taxpayers for Common Sense; R Street; National Taxpayers 
     Union; SmarterSafer.org; American Consumer Institute; 
     American Conservative Union; Competitive Enterprise 
     Institute; Less Government; Association of Bermuda Insurers 
     and Reinsurers; National Association of Mutual Insurance 
     Companies; National Flood Determination Association; 
     Reinsurance Association of America; National Leased Housing 
     Association; Association of State Flood Plain Managers.
       Institute for Liberty; National Fire Protection 
     Association; Friends of the Earth; American Rivers; Ceres; 
     Defenders of Wildlife; Environmental Defense Fund; National 
     Wildlife Federation; The Nature Conservancy; Republicans for 
     Environmental Protection; Sierra Club; Clean Air-Cool Planet; 
     ConservAmerica; Association of State Wetland Managers.

  Mr. BERG. Mr. Speaker, I yield myself such time as I may consume.
  I mean, these are exactly why we need to do this. I mean, there's 
passion when it comes to floods, passion when it comes to levees. What 
concerns me is people don't understand probably what the Red River 
Valley is like. This is flat. When there's a break in the levee, this 
is not just a few homes, this will be miles and miles and miles.
  I want to be very clear: the levee will be there, it's going to be 
there. The only thing we're doing here is, right now, the Federal 
Government, when there is a flood, pays for this. The Federal 
Government shares in the cost to build a temporary levee. A month 
later, they pay for it to tear it down--time and time again.
  If you're concerned about the environment or you're concerned about 
disruption, this is where we need to have that part of a levee system, 
a permanent levee system that's already in place that has very little 
impact on the environment.
  As we can work through these commonsense things, these commonsense 
solutions, this will help build a relationship so we can solve these 
problems and move longer term, both in flood protection as well as the 
Missouri River.
  Again, just to reiterate that point: this bill has nothing to do with 
the Missouri River--in fact, it did pass under unanimous consent in the 
Senate, with the Senators up and down Missouri supporting it.
  I reserve the balance of my time.
  Mr. CARNAHAN. Mr. Speaker, again, I think we're seeing the complexity 
of this issue.
  I just want to follow up on the gentleman from Oregon's remarks, that 
the groups that have weighed in on this bill, from taxpayer groups on 
the conservative side, to professional managers, to more progressive 
environmental groups have weighed in against this bill.
  Under the previously agreed general leave request, I want to include 
letters and statements in opposition to S. 2039 from over 30 national 
and State organizations, including the Association of State Floodplain 
Managers, Taxpayers for Common Sense, the National Taxpayers Union, the 
Competitive Enterprise Institute, American Rivers, the National 
Wildlife Federation, the Nature Conservancy, and Republicans for 
Environmental Protection--not a list of groups you often see on the 
same page, Mr. Speaker.
  With that, I yield back the balance of my time.
         Taxpayers for Commonsense, R Street, National Taxpayers 
           Union,
                                                    July 23, 2012.
       Dear Representative: We are strongly opposed to S. 2039, a 
     bill that is on the suspension calendar for a vote today. 
     This bill would allow communities in North Dakota to 
     construct levees on land that was so flood-prone that federal 
     taxpayers bought out the property owners on the condition of 
     no future development Construction of the levees will 
     inevitably lead to more high risk development and future 
     costs to taxpayers. In short, the taxpayer will be forced to 
     pay twice or more.
       The Federal Emergency Management Agency Hazard Mitigation 
     Grant Program (HMGP) enables voluntary buy-outs of frequently 
     flooded property, and to prevent future losses (and costs to 
     the federal government) the communities agree not to develop 
     the property in the future.
       Instead of rectifying specific instances where problems 
     with the program may have arisen, or pursuing other 
     solutions, this bill applies broadly across the state of 
     North Dakota. In fact, while this legislation is specifically 
     targeted at North Dakota, the bill would set a precedent that 
     could have national implications. And it would trigger 
     potentially significant future costs that would be avoided by 
     simply not building on the land as was originally agreed. In 
     fact, taxpayers would be subsidizing the levee construction 
     by purchasing the land, which would enable the future levee 
     project and the local cost-sharing partner to avoid real 
     estate fees. A costly pattern could develop: the federal 
     taxpayer buys the property and a short while later the 
     community opts out of the program and builds a levee on the 
     ``free'' land.
       We urge you to oppose S. 2039. This controversial bill 
     should not have been placed on the suspension calendar and 
     should not be approved. For more information contact Steve 
     Ellis at 202-546-8500 x126 or steve,taxpayer.net.
           Sincerely,
     Stephen Ellis,
       Vice President, Taxpayers for Common Sense.
     Eli Lehrer,
       President, R Street.
     Andrew Moylan,
       Vice President of Government Affairs National Taxpayers 
     Union.
                                  ____



                                              SmarterSafer.org

       Dear Representative: As a diverse coalition of taxpayer 
     advocates, environmental groups, and insurance interests, we 
     write to express our concerns regarding S. 2039, a bill that 
     would exempt the state of North Dakota from Stafford Act 
     requirements designed to protect property, the environment, 
     and taxpayer interests.
       As currently written, the Stafford Act requires that once 
     federal funds are used to relocate communities and buildings 
     out of floodplains, the land will be dedicated and maintained 
     in perpetuity for a use that is compatible with open space, 
     recreation, or wetlands management practices. S. 2039 would 
     allow communities that voluntarily accepted buyout funds and 
     agreed to maintain the bought out land as open space to no 
     longer abide by their agreements. This will negatively impact 
     wetland protection, wildlife habitat, and water quality as 
     well as burden taxpayers.
       S. 2039 was proposed to address a circumstance in North 
     Dakota in which temporary levees are built on land bought out

[[Page H5108]]

     under the Federal Emergency Management Agency's (FEMA) Hazard 
     Mitigation Grant Program (HMGP) during a flood. The 
     legislation gives North Dakota--and no other state--the 
     ability to build permanent levees on land purchased with 
     federal dollars and deed restricted as open space. This would 
     allow for development on land that is restricted as a result 
     of the buyout.
       The bill undermines the purpose of the Hazard Mitigation 
     Grant Program (HMGP). Property acquisition for open space 
     under FEMA's mitigation programs is a commonsense flood risk 
     management approach. Communities can choose to relocate homes 
     and businesses that are in flood-prone areas, eliminating the 
     risk of flooding to those structures and eliminating the need 
     for federal taxpayers to pay for recovery every time the 
     structures flood. The space remains deed-restricted open 
     space to ensure that the taxpayer investment in that area is 
     preserved. Even better, it absorbs flood waters that would 
     otherwise flood areas downstream. These important goals are 
     undermined by S. 2039.
       Federal taxpayers have already paid once to purchase the 
     land in question, and the open space requirement ensures that 
     the taxpayers will not have to pay disaster costs associated 
     with this land again. While the Senate's requirement that the 
     bill require state, local, or tribal funding of levee 
     construction represents a slight improvement, federal 
     taxpayers will still ultimately be on the hook for many 
     levees. By enrolling the completed levees in the U.S. Army 
     Corps of Engineers' (USACE) Rehabilitation and Inspection 
     Program, local partners are eligible for the 80% federal 
     share of future rehabilitation and repair costs.
       We are also concerned that in the long run, S. 2039 will 
     unintentionally result in harm to unsuspecting North Dakota 
     communities by encouraging more development behind the 
     constructed levees. In addition, flood waters have to go 
     somewhere and, since North Dakota alone will be able to build 
     new levees, flooding may occur in other areas.
       FEMA's HMGP buyouts occur most often in deep floodplains, 
     right next to the rivers because these areas receive the 
     heaviest damage to structures. These portions of the 
     floodplains are incredibly valuable for the multiple 
     environmental benefits in addition to their ability to convey 
     and store floodwaters naturally. They also help to clean 
     water and provide areas for recreation, fishing, hunting, and 
     wildlife habitat. In addition, communities that allow room 
     for rivers and protect their floodplains are more resilient 
     to the next flood and often recover more quickly from a flood 
     event.
       S. 2039 would only benefit communities in North Dakota; 
     however, it sets a dangerous precedent for undermining 
     mitigation elsewhere.
       We understand the challenges North Dakota and other states 
     and communities face as they attempt to recover from floods. 
     However, we do not believe S. 2039 is the solution. A 
     Memorandum of Understanding currently exists between the 
     USACE and FEMA that allows these agencies to provide limited 
     exemptions on buyout land for certain circumstances. Nearly 
     any difficult circumstance could--and should--be addressed 
     through this process rather than by undermining the entire 
     purpose of HMGP.
           Sincerely,
                                                 SmarterSafer.org.


                                MEMBERS

       Environmental Organizations: American Rivers; Ceres; 
     Defenders of Wildlife; Environmental Defense Fund; National 
     Wildlife Federation; The Nature Conservancy; Republicans for 
     Environmental Protection; Sierra Club.
       Consumer and Taxpayer Advocates: American Consumer 
     Institute; American Conservative Union; Competitive 
     Enterprise Institute; Less Government; National Taxpayers 
     Union; R Street.
       Insurer Interests: Association of Bermuda Insurers and 
     Reinsurers; National Association of Mutual Insurance 
     Companies; National Flood Determination Association; 
     Reinsurance Association of America.
       Housing: National Leased Housing Association,
       Allied Organizations: Association of State Flood Plain 
     Managers; Friends of the Earth; Institute for Liberty; 
     National Fire Protection Association; Taxpayers for Common 
     Sense.
                                  ____

                                   Association of State Floodplain


                                                Managers, Inc.

                                        Madison WI, July 17, 2012.
     Controversial Bill will be Considered Today under Suspension 
         of Rules.

       Dear Representative: Good morning! I wanted to draw your 
     attention to a bill that is being brought up on the House 
     floor today under Suspension of the Rules which the 
     Association of State Floodplain Managers feels is actually 
     very controversial and not suitable for consideration under 
     Suspension. The bill (S. 2039) would allow a State or local 
     government to construct levees on certain properties bought 
     out by taxpayers and designated as deed-restricted, open 
     space land. The measure was passed by the Senate this past 
     winter under Unanimous Consent very shortly after it was 
     introduced so the bill has had exactly zero debate or 
     discussion!
       Here are the reasons ASFPM feels it is controversial:
       While this bill is limited to North Dakota, it opens the 
     door to do this activity nationally. It would be established 
     as a pilot program. There are more than 37,000 properties 
     nationally that are permanently deed restricted (bought out 
     using taxpayer money) and costing the taxpayers nothing in 
     future flood damage costs or in operation and maintenance 
     costs.
       This would turn the Federal Emergency Management Agency 
     Hazard Mitigation Grant Program (HMGP) into a Community 
     Redevelopment Program. FEMA hazard mitigation programs are 
     meant for loss reduction and are intended to use the natural 
     functions of a floodplain for water conveyance and storage. 
     Placement of a permanent levee on the land induces increased 
     development behind the levee and, therefore, increased 
     consequences and costs when the levee fails or overtops. 
     Because participation in mitigation buy-outs is voluntary, 
     less participation can be expected if property owners think 
     their land will be used for redevelopment rather than open 
     space.
       Taxpayers will be paying twice for less mitigation than 
     currently exists. Buy-out land can be flooded to any height 
     and not be damaged. What this bill would allow is not only a 
     structure that could be damaged, but also could lead to 
     damage to all of the newly induced development behind the 
     levee. This is what happened in New Orleans after Hurricane 
     Katrina. Levees and floodwalls fail and are overtopped. 
     Taxpayers have already paid for 100% mitigation on these 
     acquired properties.
       Levees on deed-restricted taxpayer buy-out land would often 
     lead to poor floodplain management. They will usually be 
     built close to the river since that is where most buy-outs 
     occur. That results in squeezing the river resulting in 
     greater flood heights, greater water velocity and flooding 
     both upstream and downstream of the levee. One alternative 
     would involve the community using CMG or other funds to buy 
     out land behind the deed-restricted land and building a 
     setback levee. Such a levee could be much smaller and retain 
     the deed-restricted land for natural floodplain functions of 
     water conveyance and storage. This bill would have the effect 
     of promoting poor and expensive floodplain management 
     practices.
       The bottom line is that this bill sets a terrible 
     precedent, is bad public policy, and should at least have 
     adequate discussion and a hearing by the Congress. Since the 
     FEMA HMGP program has been in place (1988) these deed 
     restrictions have been in place and have worked well across 
     the country. ASFPM was concerned after it passed the Senate 
     and sent the attached letter to the House Transportation and 
     Infrastructure Committee. ASFPM feels a vote under suspension 
     is inappropriate. We hope that your Representative will vote 
     against this measure. Please do not hesitate to contact me if 
     you have any questions.
           Respectfully,
                                              Chad Berginnis, CFM,
     Executive Director.
                                  ____

         The American Consumer Institute, American Rivers, The 
           Association of State Floodplain Managers, Clean Air-
           Cool Planet, ConservAmerica, Friends of the Earth, 
           Taxpayers for Common Sense, National Wildlife 
           Federation, The Nature Conservancy.
       Dear Representative: On behalf of our members and 
     supporters across the nation, we write to express our 
     concerns regarding S. 2039, a bill that would exempt the 
     state of North Dakota from Stafford Act requirements designed 
     to protect property, the environment, and taxpayer interests. 
     As currently written, the Stafford Act requires that once 
     federal funds are used to relocate communities and buildings 
     out of floodplains, the land will be dedicated and maintained 
     in perpetuity for a use that is compatible with open space, 
     recreational, or wetlands management practices. S. 2039, 
     which will be considered tomorrow on the suspension calendar, 
     has passed the Senate and now will receive a House vote 
     without receiving any hearings or in depth consideration in 
     either chamber of Congress. This bill would negatively impact 
     wetland protection, wildlife habitat, and water quality while 
     it sticks taxpayers with enormous bills. As such, we urge you 
     to oppose this legislation.
       S. 2039 was proposed to address a circumstance in North 
     Dakota in which temporary levees that are built on land 
     bought out under Federal Emergency Management Agency's (FEMA) 
     Hazard Mitigation Grant Program (HMGP) during a flood, be 
     removed following the flood. The legislation gives North 
     Dakota--and no other state--the ability to build permanent 
     levees on land purchased with federal dollars and deed 
     restricted as open space. This proposal, to put it simply, is 
     unwise, financially costly, destructive, and unnecessary.
       The proposal is unwise because it violates the purpose of 
     the Hazard Mitigation Grant Program. Property acquisition for 
     open space under FEMA's mitigation programs utilizes a 
     commonsense flood risk management approach. By relocating 
     homes and businesses that are in flood-prone areas, we 
     eliminate the risk of flooding to those structures, and 
     eliminate the need for the federal taxpayers to pay for 
     recovery every time the structures flood. The space remains 
     as deed-restricted open space to ensure that the taxpayer 
     investment in that area is preserved. Even better, it absorbs 
     flood waters that would otherwise flood areas downstream.

[[Page H5109]]

     HMGP exists for this purpose while the proposed law allows 
     states to work against that explicit purpose.
       The bill will also cost an enormous amount of money. The 
     Federal taxpayer has already paid once to purchase the land 
     in question and the open space requirement ensures that the 
     taxpayers will not have to pay disaster costs associated with 
     this land again. In addition, once the levees are built, many 
     people living behind the levees will become eligible for de 
     facto subsidized federal flood insurance that otherwise 
     wouldn't be sold in the area. While the Senate's requirement 
     that the bill require state, local, or tribal funding of 
     levee construction represents a slight improvement, federal 
     taxpayers will still ultimately be on the hook for many 
     levees. By enrolling the completed levees in the U.S. Army 
     Corps of Engineers' (USACE) Rehabilitation and Inspection 
     Program, local partners are eligible for the 80% federal 
     share of future rehabilitation and repair costs.
       The law is also destructive. We are concerned that in the 
     long run S. 2039 will unintentionally result in harm to 
     unsuspecting North Dakota communities by encouraging more 
     development behind the constructed levees. The 2011 floods 
     brought images of walls of water flooding homes after levees 
     breached or overtopped, reminding us that it is impossible to 
     out-build Mother Nature. In the long run, flood waters have 
     to go somewhere and, since North Dakota alone will be able to 
     build new levees, many of them will flood other areas. There 
     is no way of getting around this.
       This is even worse because FEMA's HMGP buy-outs occur most 
     often in deep floodplains, right next to the rivers, because 
     these are areas that receive the heaviest damage to 
     structures. These portions of the floodplains are incredibly 
     valuable for the multiple environmental benefits they provide 
     in addition to their ability to convey and store floodwaters 
     naturally. They also help to clean water, provide areas for 
     recreation, fishing, hunting, and wildlife habitat. In 
     addition, communities that allow room for rivers and protect 
     their floodplains are more resilient to the next flood and 
     often recover more quickly from a flood event.
       In any event, the law simply isn't necessary. No policy--
     including HMGP's current programs--is perfect and, for just 
     that reason, Memorandum of Understanding currently exists 
     between the USACE and FEMA that allows these agencies to 
     provide limited exemptions on buyout land for certain 
     circumstances. Nearly any difficult circumstance could--and 
     should--be addressed through this preexisting process, rather 
     than by undermining the entire purpose of HMGP.
       We understand the challenges North Dakota and other states 
     and communities face as they attempt to recover from floods. 
     Increased federal flexibility can help them do this. But S. 
     2039, in its current form, is just bad public policy.
           Sincerely,
     Adam Kolton,
       Executive Director, National Advocacy Center, National 
     Wildlife Federation.
     David Jenkins,
       Vice President for Government and Political Affairs, 
     ConservAmerica.
     Sarah Woodhouse Murdock,
       Acting Director, Climate Change Adaptation Policy, The 
     Nature Conservancy.
     Steve Pociask,
       President, The American Consumer Institute.
     Steve Ellis,
       Vice President, Taxpayers for Common Sense.
     Brooks B. Yeager,
       Executive Vice President for Policy, Clean Air-Cool Planet.
     Jim Bradley,
       Senior Director of Government Relations, American Rivers.
     Ben Schreiber,
       Climate and Energy Tax Analyst, Friends of the Earth.
     Chad Berginnis,
       Executive Director, The Association of State Floodplain 
     Managers.
                                  ____

                                                  American Rivers,


                                          Wildlife Federation,

                                                    July 16, 2012.
       Dear Representative: On behalf of our members and 
     supporters across the nation, we write to express our 
     concerns regarding S. 2039, a bill that would exempt the 
     state of North Dakota from Stafford Act requirements designed 
     to protect property, the environment and taxpayer interests. 
     As currently written, the Stafford Act requires that once 
     federal funds are used to relocate communities and buildings 
     out of floodplains, the land will be dedicated and maintained 
     in perpetuity for a use that is compatible with open space, 
     recreational, or wetlands management practices. S. 2039, 
     which will be considered tomorrow on the suspension calendar, 
     has passed the Senate and now will receive a House vote 
     without receiving any hearings or in depth consideration in 
     either chamber of Congress. This bill would negatively impact 
     wetland protection, wildlife habitat and water quality and 
     for these reasons, among others, we urge you to oppose this 
     legislation.
       S. 2039 was proposed to address a circumstance in North 
     Dakota in which temporary levees are built on land bought out 
     under Federal Emergency Management Agency's (FEMA) Hazard 
     Mitigation Grant Program (HMGP) during a flood which must 
     then be removed following the flood. The legislation would 
     establish a pilot program within the state of North Dakota to 
     allow for the construction of permanent levees on land 
     purchased with federal dollars and deed restricted as open 
     space. We have concerns first, that this legislation would 
     set unwise federal policy and that it may be unnecessary 
     given existing federal policies, and second that the federal 
     government would be unintentionally causing harm to the North 
     Dakota communities seeking to manage their flood risk.
       S. 2039 violates the purpose and spirit of the Hazard 
     Mitigation Giant Program--Property acquisition for open space 
     under FEMA's mitigation programs is a commonsense flood risk 
     management approach. By relocating homes and businesses that 
     are in flood-prone areas, we eliminate the risk of flooding 
     to those structures, and eliminate the need for the federal 
     taxpayers to pay for recovery every time the structures 
     flood. The space remains as deed-restricted open space to 
     ensure that the taxpayer investment in that area is 
     preserved, and allows for the storage and conveyance of flood 
     waters without harming life and property.
       The Federal taxpayer has already paid once to purchase the 
     land in question and the open space requirement ensures that 
     the taxpayers will not have to pay disaster costs associated 
     with this land again. Though the Senate bill was amended to 
     require State, local, or tribal funding of levee 
     construction, the bill would create a backdoor for these 
     nonfederal entities to use federal taxpayer dollars. By 
     enrolling the completed levees in the U.S. Army Corps of 
     Engineers' (USACE) Rehabilitation and Inspection Program, 
     local partners are eligible for the 80% federal share of 
     future rehabilitation and repair costs.
       We are also concerned that in the long run S. 2039 will 
     unintentionally result in harm to unsuspecting North Dakota 
     communities by encouraging more development behind the 
     constructed levees. The 2011 flooding brought images of walls 
     of water flooding homes after levees breached or overtopped 
     reminding us that it is impossible to out build Mother 
     Nature. No matter how strong or tall we build levees, they 
     still fail, often with catastrophic consequences. Many people 
     living behind these structures don't even know that their 
     homes are in danger. It does not appear that development 
     would be restricted in the inundation zone behind the 
     constructed levees allowed in this pilot program.
       Furthermore, while S. 2039 requires the community to 
     participate in the National Flood Insurance Program (NFIP), 
     this program does little or nothing to assist communities 
     that live behind levees. Homeowners who live behind levees 
     are not currently required to purchase flood insurance, and 
     they often assume the levee will protect them. But when the 
     levee is overtopped or fails, the homeowner must rely on 
     federal disaster assistance to recover.
       Finally, FEMA's HMGP buy-outs occur most often in deep 
     floodplains, right next to the rivers because these are areas 
     that receive the heaviest damage to structures. These 
     portions of the floodplains are incredibly valuable for the 
     multiple environmental benefits they provide in addition to 
     their ability to convey and store floodwaters naturally. It 
     is estimated that floodplains provide approximately 25% of 
     all terrestrial ecosystem service benefits despite that they 
     only cover 2% of the land surface.1 These services include 
     clean water, recreation, and wildlife habitat, among many 
     others. In addition, communities that allow room for rivers 
     and protect their floodplains are more resilient to the next 
     flood and often recover more quickly from a flood event.
       S. 2039 would only benefit communities in North Dakota. 
     However for the reasons above, it should in no way be 
     expanded to other states or nationwide. We understand that a 
     Memorandum of Understanding currently exists between the 
     USACE and FEMA that allows these agencies to provide limited 
     exemptions on buyout land for certain circumstances. For this 
     reason we question whether this legislation is necessary to 
     address the challenges that North Dakota communities are 
     facing.
       We understand the challenges North Dakota and other states 
     and communities face as they attempt to recover from floods. 
     However, we urge you to oppose this legislation.
           Sincerely,
     Jim Bradley,
       Senior Director of Government Relations, American Rivers.
     Joshua Saks,
       Legislative Director, National Wildlife Federation.

[[Page H5110]]

     
                                  ____
                                       The Nature Conservancy,

                                     Arlington, VA, July 16, 2012.
     Speaker John A. Boehner,
     U.S. Capitol,
     Washington, DC.
     Minority Leader Nancy Pelosi,
     U.S. Capitol,
     Washington, DC.
       Dear Speaker Boehner and Minority Leader Pelosi: It has 
     come to our attention that S. 2039, ``A Bill to allow a State 
     or local government to construct levees on certain properties 
     otherwise designated as open space lands'' is due to be 
     brought up on the House floor tomorrow to be considered Under 
     Suspension of the Rules.
       We ask that you oppose this bill as it would set a bad 
     federal policy precedent on a number of fronts. The bill 
     would allow expenditure of federal funds to build a levee on 
     lands where federal funds have been previously expended under 
     the Hazard Mitigation Grant Program (HMGP). Funds under the 
     HMGP have been used to buyout and remove properties that were 
     subjected to high flood risk. The land is then returned to 
     its natural state and acts more effectively to mitigate 
     future floods. The land is permanently deed restricted to 
     ensure that no future development can be built and subjected 
     to flood risk and diminish the floodplain function of 
     absorbing and dispersing flood waters.
       If a levee was allowed to be built, federal taxpayers would 
     be unnecessarily paying twice to reduce flood risk. In 
     addition, a levee does not guarantee protection from future 
     flood risk, especially if the flooding event is greater than 
     a 100 year flood (which are occurring at greater frequency 
     due to an increase in extreme precipitation events). In 
     addition, any development occurring in the area would remain 
     at risk to future flooding events.
       While we understand that this legislation addresses a 
     specific location, we are concerned about the precedent that 
     this bill would establish for all other areas in the nation 
     where buyouts have occurred under the HMGP program. Such 
     buyouts typically have taken place in areas of repetitive 
     loss under the National Flood Insurance program and thus 
     represent high flood hazard areas. Voluntary buyout and 
     removal of properties is the best way to ensure the future 
     safety of residents and minimize federal expenditures from 
     future flood damage. Allowing levees or other barriers such 
     as sea walls to be built would be extremely costly, undermine 
     the integrity of the natural flood protection provided by 
     existing open space, and provide a false sense of security to 
     the property owners behind such structures.
       Thank you for your attention to this matter and again we 
     ask that you oppose this bill.
           Sincerely,
                                                   Robert Bendick,
                              Director, U.S. Government Relations.

  Mr. BERG. I am prepared to close.
  Mr. Speaker, again, Members of the assembly here: there are 1,400 
people in Minot that aren't living in their homes--there are 1,400 
families, not people. Every year creates an uneasiness on the people 
that live in this flat valley, in the Red River Valley. This is an 
important bill. It's critical for long-term planning and clearly will 
save not only the Federal Government money, but it will save the local 
government money. It also will save all the volunteer time that goes 
into building a levee, taking a levee down.
  I do believe if you saw the area where this will go, you would agree 
that a permanent levee system that ties into the landscaping would 
really be a positive impact on the wildlife and the habitat in those 
areas.
  With that, I yield back the balance of my time.
  Mr. LUETKEMEYER. Mr. Speaker, I rise today to express some concerns 
regarding S. 2039, introduced by Sen. Hoeven, and sent to this body 
after unanimous consent in the Senate. I am concerned that this 
language, though well intentioned, is vague and could potentially 
result in negative consequences downstream, should this language be 
signed into law.
  I remain concerned that the language could be applied to rivers 
beyond the Souris and the Red, without explicit Congressional intent. 
There is potential, although small, for levee construction to take 
place up and down the stretch of Missouri River that runs through North 
Dakota, resulting in negative consequences throughout the Missouri 
River basin.
  I am comforted by the fact that there seems to be a rigorous FEMA 
review and approval process for construction of these levees, and I 
trust that the author's intentions are to allow for construction of new 
levees along only the Souris River and the Red River at specified 
locations. I appreciate the steps taken by the gentleman from North 
Dakota, Mr. Berg, to address these concerns and to make very clear for 
future reference that Congressional intent is to show that this 
legislation is intended to apply only to locations along the Souris and 
Red Rivers.
  Mr. Speaker, our nation has gone too long without improving our levee 
systems. I do applaud the efforts to allow municipalities to take into 
their own hands efforts to rehabilitate systems. At the same time, it 
is important that they meet all necessary guidelines and do not injure 
other states and communities along a river bank.
  I look forward to continuing this important conversation with the 
gentlemen from North Dakota.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Alaska (Mr. Young) that the House suspend the rules and 
pass the bill, S. 2039.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. CARNAHAN. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

                          ____________________