Local Modifications to Federal Flood Control Projects Act of 2012 - Amends the Rivers and Harbors Appropriation Act of 1899 to direct the Secretary of the Army, upon the recommendation of the Chief of Engineers, to grant permission to a local sponsor to construct an improvement to a flood control project in accordance with this Act.
Authorizes the Secretary to grant permission for such an improvement: (1) that is necessary for the project to provide a qualified level of protection when, in the Secretary's judgment, the proposed improvement does not permanently reduce the existing level of protection; or (2) that is associated with permanently increasing the level of protection provided by the project from the authorized level or permanently realigning the project to substantially increase or otherwise significantly alter the geographic area protected by the project when, in the Secretary's judgement, the improvement does not adversely affect the existing level of protection and does not transfer the hydraulic impact of the project beyond the standards that the Chief of Engineers applies to projects proposed for initial federal authorization. Defines "qualified level of protection" as the lesser of the authorized level or the level necessary to receive, maintain, or restore accreditation pursuant to the National Flood Insurance Act of 1968. Prohibits the Secretary from granting permission regarding such an improvement unless it is constructed in accordance with plans and specifications prepared and certified by a registered professional engineer.
Sets forth: (1) requirements for submission of an improvement application, (2) deadlines for action on such an application, (3) approval and disapproval procedures, and (4) procedures for administrative and judicial appeals of the disapproval of an application. Directs the Secretary to issue guidelines to facilitate and expedite the review of proposed improvements.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6450 Introduced in House (IH)]
112th CONGRESS
2d Session
H. R. 6450
To facilitate and expedite the review of proposed improvements to
Federal flood control projects to be constructed by local sponsors, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 20, 2012
Mr. Costello (for himself and Mr. Shimkus) introduced the following
bill; which was referred to the Committee on Transportation and
Infrastructure
_______________________________________________________________________
A BILL
To facilitate and expedite the review of proposed improvements to
Federal flood control projects to be constructed by local sponsors, and
for other purposes.
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 ``Local Modifications to Federal Flood
Control Projects Act of 2012''.
SEC. 2. FINDINGS.
Congress finds that--
(1) it is in the interest of the Federal Government to
permit local sponsors to investigate, plan, design, fund, and
construct improvements to Federal flood control projects in
order to reduce the risk from flooding as quickly and
efficiently as possible; and
(2) the Secretary of the Army should take all necessary
actions to facilitate and expedite the review of proposed
improvements to Federal flood control projects to be
constructed by local sponsors.
SEC. 3. FLOOD CONTROL PROJECTS.
(a) Taking Possession of, Use of, or Injury to Harbor or River
Improvements.--Section 14 of the Act of March 3, 1899 (33 U.S.C. 408)
is amended to read as follows:
``SEC. 14. TAKING POSSESSION OF, USE OF, OR INJURY TO HARBOR OR RIVER
IMPROVEMENTS.
``(a) Prohibition.--It shall not be lawful for any person or
persons to take possession of or make use of for any purpose, or build
upon, alter, deface, destroy, move, injure, obstruct by fastening
vessels thereto or otherwise, or in any manner whatever impair the
usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier,
or other work built by the United States, or any piece of plant,
floating or otherwise, used in the construction of such work under the
control of the United States, in whole or in part, for the preservation
and improvement of any of its navigable waters or to prevent floods, or
as boundary marks, tide gauges, surveying stations, buoys, or other
established marks, nor remove for ballast or other purposes any stone
or other material composing such works.
``(b) Exceptions.--
``(1) Temporary occupation or use.--Subject to paragraph
(3), the Secretary of the Army, on the recommendation of the
Chief of Engineers, may grant permission for the temporary
occupation or use of any of the aforementioned public works
when in the Secretary's judgment the occupation or use will not
be injurious to the public interest.
``(2) Permanent alteration, occupation, or use.--Subject to
paragraph (3), the Secretary, on the recommendation of the
Chief of Engineers, may grant permission for the permanent
alteration, occupation, or use of any of the aforementioned
public works when in the judgment of the Secretary the
permanent alteration, occupation, or use will not be injurious
to the public interest and will not impair the usefulness of
the public work.
``(3) Special rules for local sponsors of flood control
projects.--
``(A) Review of improvements.--In the case of an
aforementioned public work that is a flood control
project, the Secretary shall grant permission to a
local sponsor to construct an improvement to such flood
control project in accordance with section 14a.
``(B) Exemption for operation and maintenance
activities.--This section does not apply to operation
and maintenance activities of a local sponsor with
respect to a flood control project.
``(C) Definitions.--In this paragraph, the terms
`construct', `flood control project', `improvement',
`local sponsor', and `operation and maintenance
activities' have the meanings given those terms in
section 14a.''.
(b) Improvements to Flood Control Projects Proposed by Local
Sponsors.--The Act of March 3, 1899 (30 Stat. 1121) is amended by
inserting after section 14 the following:
``SEC. 14A. IMPROVEMENTS TO FLOOD CONTROL PROJECTS PROPOSED BY LOCAL
SPONSORS.
``(a) Authority To Grant Permission for Improvements.--The
Secretary of the Army, on the recommendation of the Chief of Engineers,
may grant permission to a local sponsor to construct an improvement to
a flood control project in accordance with this section.
``(b) Standard of Review.--
``(1) Improvements necessary to provide qualified level of
protection.--
``(A) In general.--For an improvement to a flood
control project that is necessary for the project to
provide a qualified level of protection, the Secretary
shall grant permission under subsection (a) when in the
judgment of the Secretary the proposed improvement does
not permanently reduce the existing level of
protection.
``(B) Qualified level of protection.--As used in
subparagraph (A), a qualified level of protection is
the lesser of--
``(i) the authorized level of protection;
or
``(ii) the level of protection necessary to
receive, maintain, or restore accreditation
pursuant to chapter I of the National Flood
Insurance Act of 1968 (42 U.S.C. 4011 et seq.).
``(2) Improvements altering scope of flood control
project.--
``(A) In general.--For an improvement to a flood
control project associated with permanently increasing
the level of protection provided by the project from
the authorized level of protection or permanently
realigning the flood control project to substantially
increase or otherwise significantly alter the
geographic area protected by the flood control project,
the Secretary shall grant permission under subsection
(a) when in the judgment of the Secretary the
improvement--
``(i) does not adversely affect the
existing level of protection; and
``(ii) does not transfer the hydraulic
impact of the flood control project beyond the
standards that the Chief of Engineers applies
to flood control projects proposed for initial
Federal authorization.
``(B) Limitation.--This paragraph shall not apply
to an improvement that can be reviewed under paragraph
(1).
``(c) Certification by Registered Professional Engineer Required
for All Improvements.--The Secretary may not grant permission under
subsection (a) with respect to an improvement unless the improvement is
constructed in accordance with plans and specifications prepared and
certified by a registered professional engineer.
``(d) Applications.--
``(1) In general.--A local sponsor seeking permission under
subsection (a) to construct an improvement shall submit to the
Secretary an application requesting such permission.
``(2) Deadlines for review.--
``(A) In general.--If a local sponsor submits an
application to the Secretary under paragraph (1), the
Secretary shall approve or disapprove the application--
``(i) not later than 45 days after the date
of submission of the application, with respect
to an improvement subject to review under
subsection (b)(1); and
``(ii) not later than 120 days after the
date of submission of the application, with
respect to an improvement subject to review
under subsection (b)(2).
``(B) Extensions.--
``(i) Incomplete applications.--If the
Secretary determines that an application
submitted by a local sponsor under paragraph
(1) is incomplete, the Secretary shall notify
the local sponsor of the specific information
that is missing or the analysis that is needed
to make a determination under subsection (b).
Upon submission of the missing information or
analysis by the local sponsor, the Secretary
may extend the applicable review period under
subparagraph (A) by an additional 30 days.
``(ii) Further extensions by mutual
agreement.--Any further extension of the
applicable review period may be made only by
mutual agreement of the Secretary and the local
sponsor.
``(e) Approval and Disapproval.--
``(1) Approval.--If the Secretary approves an application
submitted under subsection (d), the Secretary shall promptly
notify the local sponsor of the approval in writing.
``(2) Disapproval.--If the Secretary disapproves an
application submitted under subsection (d), the Secretary shall
promptly notify the local sponsor of the disapproval in writing
and provide the local sponsor with information concerning the
reasons for the disapproval. Such information shall include all
technical data, analysis, modeling, and other information used
by the Secretary in issuing the disapproval and a description
of specific corrective changes required for approval of the
application.
``(3) Deemed approval.--If the Secretary does not approve
or disapprove an application submitted under subsection (d)
before the last day of the applicable review period specified
under subsection (d), the application is deemed approved.
``(f) Administrative Appeals.--
``(1) In general.--Not later than 90 days after the date of
receiving a disapproval of an application from the Secretary
under subsection (e), a local sponsor may file with the
Secretary an appeal of the disapproval.
``(2) Conduct of appeals.--
``(A) Consideration of technical and scientific
data.--In reviewing an appeal filed under paragraph
(1), the Secretary shall take into account any
technical or scientific data submitted by the local
sponsor that negates or contradicts the information
relied upon by the Secretary in issuing the
disapproval.
``(B) Methods to resolve appeals.--
``(i) Consultation.--The Secretary shall
resolve an appeal filed under paragraph (1)
through consultation with the local sponsor.
``(ii) Further methods.--If, 60 days after
the local sponsor files an appeal under
paragraph (1), the appeal is not resolved
through consultation, the local sponsor may
elect to continue the appeal process through--
``(I) an administrative hearing; or
``(II) submission of technical and
scientific data, including the data
described in subparagraph (A), to an
independent scientific body in
accordance with subparagraph (C).
``(C) Independent scientific body.--
``(i) Membership of body.--Information may
be submitted to an independent scientific body
under subparagraph (B)(ii) only if the
membership of the independent scientific body
is mutually agreed upon by the Secretary and
the local sponsor.
``(ii) Deadline for recommendation.--Not
later than 90 days after the date on which a
local sponsor elects to submit data to an
independent scientific body under subparagraph
(B)(ii), the independent scientific body shall
make a recommendation to the Secretary with
respect to an appeal by applying the applicable
standard specified in subsection (b).
``(3) Deadlines for final determinations.--
``(A) Consultation.--In the case of an appeal filed
under paragraph (1) for which the local sponsor has not
elected to continue the appeal process through an
administrative hearing or submission of data to an
independent scientific body, not later than 90 days
after the date of receiving the appeal, or on a date
mutually agreed upon by the Secretary and the local
sponsor, the Secretary shall make a final determination
with respect to the appeal.
``(B) Administrative hearing.--In the case of an
appeal filed under paragraph (1) for which the local
sponsor has elected to continue the appeal process
through an administrative hearing under paragraph
(3)(B)(ii), not later than 120 days after the date on
which the local sponsor makes such election, or on a
date mutually agreed upon by the Secretary and the
local sponsor, the Secretary shall make a final
determination with respect to the appeal.
``(C) Submission to independent scientific body.--
In the case of an appeal filed under paragraph (1) for
which the local sponsor has elected to continue the
appeal process through submission of data to an
independent scientific body under paragraph (3)(B)(ii),
not later than 30 days after the date on which the
independent scientific body makes a recommendation
under paragraph (3)(C)(ii), or on a date mutually
agreed upon by the Secretary and the local sponsor, the
Secretary shall make a final determination with respect
to the appeal.
``(4) Reimbursement of expenses.--If, in connection with an
appeal under this subsection, a local sponsor incurs additional
expenses for surveyor, engineering, or similar services, but
not including legal services, and is successful in whole or in
part, the Secretary shall reimburse the local sponsor for such
expenses, subject to the availability of appropriations for
that purpose.
``(g) Judicial Appeals.--Not later than 180 days after the date of
receiving a final determination by the Secretary with respect to an
appeal filed under subsection (f), a local sponsor may appeal the
determination to the United States district court for the district in
which the flood control project that is the subject of the appeal is
located. The scope of review by the court shall be as provided by
chapter 7 of title 5, United States Code.
``(h) Prohibition on Further Reviews.--
``(1) In general.--With respect to a local sponsor seeking
permission under subsection (a), the Secretary may not require
any further review than is necessary under subsection (b) or
require as a part of an application seeking such permission an
additional review by any other person, governmental body, or
agency unless otherwise required by State or Federal law.
``(2) Non-applicability of safety assurance review.--With
respect to a local sponsor seeking permission under subsection
(a), the Secretary may not require review under section 2035 of
the Water Resources Development Act of 2007 (33 U.S.C. 2344).
``(i) Guidelines.--
``(1) In general.--Not later than 6 months after the date
of enactment of this section, the Secretary, after consultation
with local sponsors that operate and maintain flood control
projects, shall issue guidelines to facilitate and expedite the
review of proposed improvements to flood control projects to be
constructed by local sponsors.
``(2) Contents.--The guidelines shall--
``(A) provide for delegation of the Secretary's
authority to grant permission under this section to--
``(i) the District Commander, with respect
to an improvement subject to review under
subsection (b)(1); and
``(ii) the Division Commander, with respect
to an improvement subject to review under
subsection (b)(2);
``(B) include criteria for determining whether an
improvement is subject to review under subsection
(b)(1) or (b)(2);
``(C) allow a local sponsor to submit an
application under this section for a separable project
element rather than an entire project, at the election
of the local sponsor;
``(D) include criteria for determining the stage of
project design at which an application can be submitted
under this section, and ensure that such stage provides
a local sponsor with guidance as soon as practicable;
``(E) include a description of the required content
of an application submitted under this section,
including the data and analysis to be provided by the
local sponsor as part of the application; and
``(F) address such other matters as the Secretary,
acting through the Chief of Engineers and in
consultation with local sponsors, considers necessary.
``(j) Previously Approved Projects.--A local sponsor shall not be
required to seek further permission under this section with respect to
any improvement to a flood control project constructed by the local
sponsor that has been approved pursuant to Federal law before the date
of enactment of this section and for which construction commenced
before such date of enactment.
``(k) Definitions.--In this section, the following definitions
apply:
``(1) Authorized level of protection.--The term `authorized
level of protection' means the level of protection specified in
the authorizing statute for a flood control project.
``(2) Construct.--The term `construct' means to undertake
activities to provide for an improvement to a flood control
project, including construction, reconstruction,
rehabilitation, restoration, and repair activities and
activities associated with investigations, planning, and
funding.
``(3) Existing level of protection.--The term `existing
level of protection' means the level of protection provided by
a flood control project, as determined by a registered
professional engineer selected by the local sponsor, as of the
date on which the local sponsor submits an application under
subsection (d)(1).
``(4) Flood control project.--The term `flood control
project' means a public work described in section 14(a) that is
used for flood damage reduction. For the purposes of this
section, the boundaries of a flood control project are the
boundaries of the right-of-way for the applicable public work,
as determined at the time the public work was built by the
United States.
``(5) Improvement.--
``(A) In general.--The term `improvement' means an
alteration or permanent or temporary occupation or use.
``(B) Exclusion.--The term `improvement' does not
include operation and maintenance activities.
``(6) Local sponsor.--The term `local sponsor' means a
State, a political subdivision of a State, or a local agency
with authority to--
``(A) operate and maintain a flood control project
under section 3 of the Act of June 22, 1936 (33 U.S.C.
701c); or
``(B) construct a flood control project under State
law.
``(7) Operation and maintenance activities.--The term
`operation and maintenance activities' means--
``(A) activities required to be conducted by a
local sponsor pursuant to section 208.10 of title 33,
Code of Federal Regulations (as in effect on the date
of enactment of this section);
``(B) activities required to be conducted by a
local sponsor under the manual prepared by the
Secretary for the flood control project pursuant to the
Operation, Maintenance, Repair, Replacement, and
Rehabilitation Manual for Projects and Separable
Elements Managed By Project Sponsors (Engineer
Regulation 1110-2-401; September 30, 1994); and
``(C) such other activities as are conducted by a
local sponsor in the normal course of operating and
maintaining the flood control project, or as are
otherwise determined by the Secretary, acting through
the Chief of Engineers, to be within a local sponsor's
operation and maintenance responsibilities with respect
to the flood control project.''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Transportation and Infrastructure.
Referred to the Subcommittee on Water Resources and Environment.
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