Federal Flood Risk Management Act of 2021

II 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Federal Flood Risk 4 Management Act of 2021’’. 5 SEC. 2. DEFINITIONS. 6 In this Act— 7 (1) the term ‘‘Administrator’’ means the Ad- 8 ministrator of the Federal Emergency Management 9 Agency; 10 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1688 IS (2) the term ‘‘agency’’— 1 (A) has the meaning given the term ‘‘Exec- 2 utive agency’’ in section 105 of title 5, United 3 States Code; and 4 (B) does not apply to an agency that does 5 not take agency actions in or affecting 6 floodplains; 7 (3) the term ‘‘agency action’’— 8 (A) means, with respect to an agency— 9 (i) acquiring, managing, and disposing 10 of Federal lands and facilities; 11 (ii) providing construction and im- 12 provements that are undertaken, financed 13 by, or assisted by the Federal Government; 14 and 15 (iii) conducting Federal activities and 16 programs that affect land use, including 17 planning, regulating, and licensing activi- 18 ties relating to water and land resources; 19 and 20 (B) does not include a military construc- 21 tion project described in section 2802 of title 22 10, United States Code; 23 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1688 IS (4) the term ‘‘base flood’’ means a flood that 1 has a not less than 1 percent chance of occurring in 2 a year; 3 (5) the term ‘‘critical action’’ means any agency 4 action with respect to which the head of the agency 5 determines a slight chance of flooding would present 6 an unacceptable amount of risk; 7 (6) the term ‘‘Executive Order 11988’’ means 8 Executive Order 11988 (42 Fed. Reg. 26951; relat- 9 ing to floodplain management); 10 (7) the term ‘‘federally funded project’’ means 11 an action in which Federal funds are used, with re- 12 spect to a structure or facility, for new construction, 13 for substantial improvement, or to address substan- 14 tial damage; 15 (8) the term ‘‘floodplain’’ means, subject to sec- 16 tion 4(b)(2), the lowland and relatively flat area that 17 adjoins inland and coastal waters (including flood- 18 prone areas of offshore islands); 19 (9) the term ‘‘National Flood Insurance Pro- 20 gram’’ means the program established under the Na- 21 tional Flood Insurance Act of 1968 (42 U.S.C. 4001 22 et seq.); 23 (10) the term ‘‘Standard’’ means the Federal 24 Flood Risk Management Standard set forth in Ap- 25 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1688 IS pendix G to Guidelines for Implementing Executive 1 Order 11988, Floodplain Management, and Execu- 2 tive Order 13690, Establishing a Federal Flood Risk 3 Management Standard and a Process for Further 4 Soliciting and Considering Stakeholder Input, pub- 5 lished on October 8, 2015; and 6 (11) the term ‘‘Water Resources Council’’ 7 means the Council established under section 101 of 8 the Water Resources Planning Act (42 U.S.C. 9 1962a). 10 SEC. 3. SENSE OF CONGRESS. 11 It is the sense of Congress that— 12 (1) it should be the policy of the United States 13 to improve the resiliency of communities and assets 14 of the Federal Government against the impacts of 15 flooding; 16 (2) the impacts of flooding are anticipated to 17 increase over time due to increased future risk and 18 greater development on floodplains; 19 (3) losses caused by flooding affect— 20 (A) the environment; 21 (B) the economic prosperity of the United 22 States; 23 (C) public health and safety; and 24 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1688 IS (D) the national security of the United 1 States; 2 (4) the Federal Government must take action, 3 informed by the best available and actionable 4 science, to improve the preparedness and resilience 5 of the United States with respect to flooding; 6 (5) Executive Order 11988 requires agencies to 7 avoid— 8 (A) to the maximum extent practicable, the 9 long- and short-term adverse impacts associated 10 with the occupancy and modification of 11 floodplains; and 12 (B) direct or indirect support of floodplain 13 development whenever a more practicable alter- 14 native is available; 15 (6) to implement Executive Order 11988, the 16 Federal Government has developed processes for 17 evaluating the impacts of Federal actions in or af- 18 fecting floodplains; 19 (7) in June 2013, an interagency effort to cre- 20 ate a new flood risk reduction standard for federally 21 funded projects was initiated; 22 (8) in establishing the standard described in 23 paragraph (7), the views of governors, mayors, and 24 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1688 IS interested members of the public were solicited and 1 considered; 2 (9) the result of the efforts described in para- 3 graphs (7) and (8) is the Standard, a flexible frame- 4 work to increase resilience against flooding and help 5 preserve the natural values of floodplains; and 6 (10) enacting the Standard will ensure that 7 agencies expand management from the base flood 8 level in effect as of the date of enactment of this Act 9 to a higher vertical elevation and a corresponding 10 horizontal floodplain in order to— 11 (A) address current and future flood risk; 12 and 13 (B) ensure that federally funded projects 14 last as long as intended. 15 SEC. 4. FLOODPLAIN MANAGEMENT. 16 (a) IN GENERAL.—The head of each agency shall 17 provide leadership and shall take action, when carrying 18 out an agency action, to— 19 (1) reduce the risk of losses resulting from 20 floods; 21 (2) minimize the impact of floods on human 22 safety, health, and welfare; and 23 (3) restore and preserve the natural and bene- 24 ficial values served by floodplains. 25 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1688 IS (b) AGENCY RESPONSIBILITIES.— 1 (1) IN GENERAL.—In carrying out an agency 2 action, as described in subsection (a), the head of 3 each agency shall— 4 (A) evaluate the potential effects of any 5 agency action taken by the agency in a flood- 6 plain, as determined under paragraph (2); 7 (B) ensure that the planning programs and 8 budget requests of the agency reflect consider- 9 ation of flood hazards and the management of 10 floodplains; and 11 (C) prescribe procedures to implement the 12 policies and requirements of this Act— 13 (i) to the extent permitted by law; and 14 (ii) in accordance with the procedures 15 described in paragraph (3). 16 (2) DETERMINATION OF FLOODPLAINS.—The 17 head of an agency shall, when determining whether 18 an agency action will take place in a floodplain— 19 (A) use— 20 (i) the elevation and flood hazard 21 area, as determined by— 22 (I) a climate-informed science ap- 23 proach that— 24 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1688 IS (aa) uses the best available 1 actionable hydrologic and hydrau- 2 lic data and methods; 3 (bb) integrates current and 4 future changes in flooding based 5 on climate science; 6 (cc) includes an emphasis on 7 whether the agency action is a 8 critical action; and 9 (dd) takes into consideration 10 changes over the lifetime of the 11 project that is the subject of the 12 agency action; 13 (II) the freeboard value, reached 14 by adding an additional— 15 (aa) 2 feet to the base flood 16 elevation for an agency action 17 that is not a critical action; and 18 (bb) 3 feet to the base flood 19 elevation for an agency action 20 that is a critical action; or 21 (III) any other method that is 22 identified in any amendment made to 23 this Act; or 24 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1688 IS (ii) an area that has a 0.2 percent 1 chance of flooding in a year; and 2 (B) rely on— 3 (i) the best available information; and 4 (ii) the Flood Insurance Rate Map 5 published by the Administrator for the 6 community in which the agency action 7 shall take place. 8 (3) PROCEDURES.—The procedures described 9 in this paragraph are as follows: 10 (A) Before an agency takes an agency ac- 11 tion, the head of the agency shall determine 12 under paragraph (2) whether the proposed 13 agency action will take place in a floodplain. 14 (B) If an agency action described in sub- 15 paragraph (A) may have a significant effect on 16 the quality of the human environment, the eval- 17 uation required under paragraph (5) shall be 18 included in any statement prepared under sec- 19 tion 102(2)(C) of the National Environmental 20 Policy Act of 1969 (42 U.S.C. 4332(2)(C)). 21 (C) If the head of an agency has deter- 22 mined to, or proposes to, conduct, support, or 23 allow an agency action that will take place in a 24 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1688 IS floodplain, as determined under paragraph (2), 1 the head of the agency shall— 2 (i) consider alternatives in order to 3 avoid adverse effects and incompatible de- 4 velopment in the floodplain; 5 (ii) when possible, rely on natural sys- 6 tems, ecosystem processes, and nature- 7 based approaches when considering alter- 8 natives under clause (i); 9 (iii) if the head of the agency deter- 10 mines that the only practicable alternative 11 consistent under law, including the require- 12 ments of this Act, requires taking an agen- 13 cy action in a floodplain, before taking the 14 agency action— 15 (I) design or modify the agency 16 action to minimize potential harm to 17 or within the floodplain consistent 18 with regulations issued under para- 19 graph (6); and 20 (II) prepare and distribute a no- 21 tice that contains an explanation with 22 respect to why the agency action shall 23 take place in the floodplain; 24 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1688 IS (iv) send a notice to all State, local, 1 and Tribal governments with respect to the 2 geographic areas that are affected by the 3 agency action that— 4 (I) is not more than 3 pages 5 long; 6 (II) includes— 7 (aa) a location map; 8 (bb) the reasons why the 9 agency action shall occur in a 10 floodplain; 11 (cc) a statement indicating 12 whether the agency action con- 13 forms to applicable State or local 14 floodplain protection standards; 15 and 16 (dd) a list of the alternatives 17 to the agency action that the 18 head of the agency considered; 19 and 20 (III) allows for a brief comment 21 period before the head of the agency 22 may take the agency action; and 23 (v) provide the opportunity for early 24 public review of any plan or proposal for 25 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1688 IS the agency action, including the develop- 1 ment of procedures for any Federal action 2 the impact of which is not significant 3 enough to require the preparation of a 4 statement under section 102(2)(C) of the 5 National Environmental Policy Act of 6 1969 (42 U.S.C. 4332(2)(C)). 7 (4) REQUESTS FOR AUTHORIZATIONS AND AP- 8 PROPRIATIONS.—The head of an agency, when mak- 9 ing any request to the Director of the Office of Man- 10 agement and Budget for a new authorization or for 11 appropriations, shall indicate, if an agency action to 12 be proposed shall take place in a floodplain, as de- 13 termined under paragraph (2), whether the agency 14 action complies with this Act. 15 (5) WATER AND LAND USE PLANS.— 16 (A) IN GENERAL.—The head of an agency, 17 when formulating or evaluating any water and 18 land use plan, shall— 19 (i) take floodplain management into 20 account; and 21 (ii) require the use of land and water 22 resources that are appropriate when com- 23 pared with the degree of hazard that is in- 24 volved. 25 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1688 IS (B) CONSIDERATIONS.—The head of each 1 agency shall— 2 (i) provide for the adequate evaluation 3 and consideration of flood hazards with re- 4 spect to the regulations and operating pro- 5 cedures for the licenses, permits, and loan 6 or grant programs administered by the 7 agency; and 8 (ii) with respect to an applicant for a 9 license, permit, loan, or grant that is 10 issued or administered by the agency, en- 11 courage, and provide appropriate guidance 12 to, the applicant to evaluate, before sub- 13 mitting the application, the effects that the 14 application, if granted, would have on 15 floodplains. 16 (6) REGULATIONS AND PROCEDURES.—To the 17 extent permitted by law, the head of each agency 18 shall, in consultation with the Water Resources 19 Council, the Federal Interagency Floodplain Man- 20 agement Task Force, the Administrator, and the 21 Council on Environmental Quality— 22 (A) issue regulations, or amend regulations 23 that are in effect as of the date of enactment 24 VerDate Sep 11 2014 09:10 May 28, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1688.IS S1688 kjohnson on DSK79L0C42PROD with BILLS 14 •S 1688 IS of this Act, to comply with the requirements of 1 this Act; and 2 (B) amend the regulations described in 3 subparagraph (A) as warranted. 4 (c) ANNUAL REASSESSMENT.—The Mitigation 5 Framework Leadership Group, in consultation with the 6 Federal Interagency Floo [Text truncated for display. 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