Text: H.R.6450 — 112th Congress (2011-2012)All Bill Information (Except Text)

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Introduced in House (09/20/2012)


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.”.