II 

116TH CONGRESS 

2D SESSION S. 5022 

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 

DECEMBER 15, 2020 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Federal Flood Risk 

5 Management Act of 2020’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 

8 (1) the term ‘‘Administrator’’ means the Ad9 ministrator of the Federal Emergency Management 

10 Agency; 


pamtmann on DSKBC07HB2PROD with BILLS
2 

•S 5022 IS

1 (2) the term ‘‘agency’’— 

2 (A) has the meaning given the term ‘‘Exec3 utive agency’’ in section 105 of title 5, United 

4 States Code; and 

5 (B) does not apply to an agency that does 

6 not take agency actions in or affecting 

7 floodplains; 

8 (3) the term ‘‘agency action’’— 

9 (A) means, with respect to an agency— 

10 (i) acquiring, managing, and disposing 

11 of Federal lands and facilities; 

12 (ii) providing construction and im13 provements that are undertaken, financed 

14 by, or assisted by the Federal Government; 

15 and 

16 (iii) conducting Federal activities and 

17 programs that affect land use, including 

18 planning, regulating, and licensing activi19 ties relating to water and land resources; 

20 and 

21 (B) does not include a military construc22 tion project described in section 2802 of title 

23 10, United States Code; 


pamtmann on DSKBC07HB2PROD with BILLS
3 

•S 5022 IS

1 (4) the term ‘‘base flood’’ means a flood that 

2 has a not less than 1 percent chance of occurring in 

3 a year; 

4 (5) the term ‘‘critical action’’ means any agency 

5 action with respect to which the head of the agency 

6 determines a slight chance of flooding would present 

7 an unacceptable amount of risk; 

8 (6) the term ‘‘Executive Order 11988’’ means 

9 Executive Order 11988 (42 Fed. Reg. 26951; relat10 ing to floodplain management); 

11 (7) the term ‘‘federally funded project’’ means 

12 an action in which Federal funds are used, with re13 spect to a structure or facility, for new construction, 

14 for substantial improvement, or to address substan15 tial damage; 

16 (8) the term ‘‘floodplain’’ means, subject to sec17 tion 4(b)(2), the lowland and relatively flat area that 

18 adjoins inland and coastal waters (including flood19 prone areas of offshore islands); 

20 (9) the term ‘‘National Flood Insurance Pro21 gram’’ means the program established under the Na22 tional Flood Insurance Act of 1968 (42 U.S.C. 4001 

23 et seq.); 

24 (10) the term ‘‘Standard’’ means the Federal 

25 Flood Risk Management Standard set forth in ApVerDate Sep 11 2014 01:12 Dec 29, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S5022.IS S5022

pamtmann on DSKBC07HB2PROD with BILLS
4 

•S 5022 IS

1 pendix G to Guidelines for Implementing Executive 

2 Order 11988, Floodplain Management, and Execu3 tive Order 13690, Establishing a Federal Flood Risk 

4 Management Standard and a Process for Further 

5 Soliciting and Considering Stakeholder Input, pub6 lished on October 8, 2015; and 

7 (11) the term ‘‘Water Resources Council’’ 

8 means the Council established under section 101 of 

9 the Water Resources Planning Act (42 U.S.C. 

10 1962a). 

11 SEC. 3. SENSE OF CONGRESS. 

12 It is the sense of Congress that— 

13 (1) it should be the policy of the United States 

14 to improve the resiliency of communities and assets 

15 of the Federal Government against the impacts of 

16 flooding; 

17 (2) the impacts of flooding are anticipated to 

18 increase over time due to increased future risk and 

19 greater development on floodplains; 

20 (3) losses caused by flooding affect— 

21 (A) the environment; 

22 (B) the economic prosperity of the United 

23 States; 

24 (C) public health and safety; and 


pamtmann on DSKBC07HB2PROD with BILLS
5 

•S 5022 IS

1 (D) the national security of the United 

2 States; 

3 (4) the Federal Government must take action, 

4 informed by the best available and actionable 

5 science, to improve the preparedness and resilience 

6 of the United States with respect to flooding; 

7 (5) Executive Order 11988 requires agencies to 

8 avoid— 

9 (A) to the maximum extent practicable, the 

10 long- and short-term adverse impacts associated 

11 with the occupancy and modification of 

12 floodplains; and 

13 (B) direct or indirect support of floodplain 

14 development whenever a more practicable alter15 native is available; 

16 (6) to implement Executive Order 11988, the 

17 Federal Government has developed processes for 

18 evaluating the impacts of Federal actions in or af19 fecting floodplains; 

20 (7) in June 2013, an interagency effort to cre21 ate a new flood risk reduction standard for federally 

22 funded projects was initiated; 

23 (8) in establishing the standard described in 

24 paragraph (7), the views of governors, mayors, and 


pamtmann on DSKBC07HB2PROD with BILLS
6 

•S 5022 IS

1 interested members of the public were solicited and 

2 considered; 

3 (9) the result of the efforts described in para4 graphs (7) and (8) is the Standard, a flexible frame5 work to increase resilience against flooding and help 

6 preserve the natural values of floodplains; and 

7 (10) enacting the Standard will ensure that 

8 agencies expand management from the base flood 

9 level in effect as of the date of enactment of this Act 

10 to a higher vertical elevation and a corresponding 

11 horizontal floodplain in order to— 

12 (A) address current and future flood risk; 

13 and 

14 (B) ensure that federally funded projects 

15 last as long as intended. 

16 SEC. 4. FLOODPLAIN MANAGEMENT. 

17 (a) IN GENERAL.—The head of each agency shall 

18 provide leadership and shall take action, when carrying 

19 out an agency action, to— 

20 (1) reduce the risk of losses resulting from 

21 floods; 

22 (2) minimize the impact of floods on human 

23 safety health, and welfare; and 

24 (3) restore and preserve the natural and bene25 ficial values served by floodplains. 


pamtmann on DSKBC07HB2PROD with BILLS
7 

•S 5022 IS

1 (b) AGENCY RESPONSIBILITIES.— 

2 (1) IN GENERAL.—In carrying out an agency 

3 action, as described in subsection (a), the head of 

4 each agency shall— 

5 (A) evaluate the potential effects of any 

6 agency action taken by the agency in a flood7 plain, as determined under paragraph (2); 

8 (B) ensure that the planning programs and 

9 budget requests of the agency reflect consider10 ation of flood hazards and the management of 

11 floodplains; and 

12 (C) prescribe procedures to implement the 

13 policies and requirements of this Act— 

14 (i) to the extent permitted by law; and 

15 (ii) in accordance with the procedures 

16 described in paragraph (3). 

17 (2) DETERMINATION OF FLOODPLAINS.—The 

18 head of an agency shall, when determining whether 

19 an agency action will take place in a floodplain— 

20 (A) use— 

21 (i) the elevation and flood hazard 

22 area, as determined by— 

23 (I) a climate-informed science ap24 proach that— 


pamtmann on DSKBC07HB2PROD with BILLS
8 

•S 5022 IS

1 (aa) uses the best available 

2 actionable hydrologic and hydrau3 lic data and methods; 

4 (bb) integrates current and 

5 future changes in flooding based 

6 on climate science; 

7 (cc) includes an emphasis on 

8 whether the agency action is a 

9 critical action; and 

10 (dd) takes into consideration 

11 changes over the lifetime of the 

12 project that is the subject of the 

13 agency action; 

14 (II) the freeboard value, reached 

15 by adding an additional— 

16 (aa) 2 feet to the base flood 

17 elevation for an agency action 

18 that is not a critical action; and 

19 (bb) 3 feet to the base flood 

20 elevation for an agency action 

21 that is a critical action; or 

22 (III) any other method that is 

23 identified in any amendment made to 

24 this Act; or 


pamtmann on DSKBC07HB2PROD with BILLS
9 

•S 5022 IS

1 (ii) an area that has a 0.2 percent 

2 chance of flooding in a year; and 

3 (B) rely on— 

4 (i) the best available information; and 

5 (ii) the Flood Insurance Rate Map 

6 published by the Administrator for the 

7 community in which the agency action 

8 shall take place. 

9 (3) PROCEDURES.—The procedures described 

10 in this paragraph are as follows: 

11 (A) Before an agency takes an agency ac12 tion, the head of the agency shall determine 

13 under paragraph (2) whether the proposed 

14 agency action will take place in a floodplain. 

15 (B) If an agency action described in sub16 paragraph (A) may have a significant effect on 

17 the quality of the human environment, the eval18 uation required under paragraph (5) shall be 

19 included in any statement prepared under sec20 tion 102(2)(C) of the National Environmental 

21 Policy Act of 1969 (42 U.S.C. 4332(2)(C)). 

22 (C) If the head of an agency has deter23 mined to, or proposes to, conduct, support, or 

24 allow an agency action that will take place in a 


pamtmann on DSKBC07HB2PROD with BILLS
10 

•S 5022 IS

1 floodplain, as determined under paragraph (2), 

2 the head of the agency shall— 

3 (i) consider alternatives in order to 

4 avoid adverse effects and incompatible de5 velopment in the floodplain; 

6 (ii) when possible, rely on natural sys7 tems, ecosystem processes, and nature8 based approaches when considering alter9 natives under clause (i); 

10 (iii) if the head of the agency deter11 mines that the only practicable alternative 

12 consistent under law, including the require13 ments of this Act, requires taking an agen14 cy action in a floodplain, before taking the 

15 agency action— 

16 (I) design or modify the agency 

17 action to minimize potential harm to 

18 or within the floodplain consistent 

19 with regulations issued under para20 graph (6); and 

21 (II) prepare and distribute a no22 tice that contains an explanation with 

23 respect to why the agency action shall 

24 take place in the floodplain; 


pamtmann on DSKBC07HB2PROD with BILLS
11 

•S 5022 IS

1 (iv) send a notice to all State, local, 

2 and tribal governments with respect to the 

3 geographic areas that are affected by the 

4 agency action that— 

5 (I) is not more than 3 pages 

6 long; 

7 (II) includes— 

8 (aa) a location map; 

9 (bb) the reasons why the 

10 agency action shall occur in a 

11 floodplain; 

12 (cc) a statement indicating 

13 whether the agency action con14 forms to applicable State or local 

15 floodplain protection standards; 

16 and 

17 (dd) a list of the alternatives 

18 to the agency action that the 

19 head of the agency considered; 

20 and 

21 (III) allows for a brief comment 

22 period before the head of the agency 

23 may take the agency action; and 

24 (v) provide the opportunity for early 

25 public review of any plan or proposal for 


pamtmann on DSKBC07HB2PROD with BILLS
12 

•S 5022 IS

1 the agency action, including the develop2 ment of procedures for any Federal action 

3 the impact of which is not significant 

4 enough to require the preparation of a 

5 statement under section 102(2)(C) of the 

6 National Environmental Policy Act of 

7 1969 (42 U.S.C. 4332(2)(C)). 

8 (4) REQUESTS FOR AUTHORIZATIONS AND AP9 PROPRIATIONS.—The head of an agency, when mak10 ing any request to the Director of the Office of Man11 agement and Budget for a new authorization or for 

12 appropriations, shall indicate, if an agency action to 

13 be proposed shall take place in a floodplain, as de14 termined under paragraph (2), whether the agency 

15 action complies with this Act. 

16 (5) WATER AND LAND USE PLANS.— 

17 (A) IN GENERAL.—The head of an agency, 

18 when formulating or evaluating any water and 

19 land use plan, shall— 

20 (i) take floodplain management into 

21 account; and 

22 (ii) require the use of land and water 

23 resources that are appropriate when com24 pared with the degree of hazard that is in25 volved. 


pamtmann on DSKBC07HB2PROD with BILLS
13 

•S 5022 IS

1 (B) CONSIDERATIONS.—The head of each 

2 agency shall— 

3 (i) provide for the adequate evaluation 

4 and consideration of flood hazards with re5 spect to the regulations and operating pro6 cedures for the licenses, permits, and loan 

7 or grant programs administered by the 

8 agency; and 

9 (ii) with respect to an applicant for a 

10 license, permit, loan, or grant that is 

11 issued or administered by the agency, en12 courage, and provide appropriate guidance 

13 to, the applicant to evaluate, before sub14 mitting the application, the effects that the 

15 application, if granted, would have on 

16 floodplains. 

17 (6) REGULATIONS AND PROCEDURES.—To the 

18 extent permitted by law, the head of each agency 

19 shall, in consultation with the Water Resources 

20 Council, the Federal Interagency Floodplain Man21 agement Task Force, the Administrator, and the 

22 Council on Environmental Quality— 

23 (A) issue regulations, or amend regulations 

24 that are in effect as of the date of enactment 


pamtmann on DSKBC07HB2PROD with BILLS
14 

•S 5022 IS

1 of this Act, to comply with the requirements of 

2 this Act; and 

3 (B) amend the regulations described in 

4 subparagraph (A) as warranted. 

5 (c) ANNUAL REASSESSMENT.—The Mitigation 

6 Framework Leadership Group, in consultation with the 

7 Federal Interagency Floodplain Management Task Force, 

8 shall— 

9 (1) annually reassess the implementation of the 

10 requirements imposed under this section; and 

11 (2) provide recommendations to the Water Re12 sources Council for updates to the requirements im13 posed under this section that are warranted based 

14 on accurate and actionable science that takes into 

15 account changes to climate and other changes in 

16 flood risk. 

17 SEC. 5. FEDERAL FLOOD RISK MANAGEMENT STANDARD. 

18 (a) IN GENERAL.—The head of an agency shall— 

19 (1) except as provided in subsection (b), with 

20 respect to a federally funded project undertaken by 

21 the agency, ensure that the agency complies with the 

22 Standard; and 

23 (2) if the agency has responsibility for the ad24 ministration or management of Federal real propVerDate Sep 11 2014 01:12 Dec 29, 2020 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S5022.IS S5022

pamtmann on DSKBC07HB2PROD with BILLS
15 

•S 5022 IS

1 erty and facilities, in addition to the requirements 

2 under section 4 and paragraph (1)— 

3 (A) require the construction of Federal 

4 structures and facilities to comply with— 

5 (i) the regulations and procedures 

6 issued under section 4(b)(6); and 

7 (ii) any regulations issued under the 

8 National Flood Insurance Program unless 

9 those regulations are demonstrably inap10 propriate for a structure or facility; 

11 (B) apply accepted floodproofing and other 

12 flood protection measures to the construction or 

13 rehabilitation of a structure or facility that is 

14 located in a floodplain; 

15 (C) when practicable, elevate a structure 

16 above the floodplain instead of filling in land; 

17 (D) provide on structures and, where ap18 propriate, other pieces of property a con19 spicuous delineation of past and probable flood 

20 height— 

21 (i) if the structure or other prop22 erty— 

23 (I) is used by the general public; 

24 and 


pamtmann on DSKBC07HB2PROD with BILLS
16 

•S 5022 IS

1 (II)(aa) has suffered flood dam2 age; or 

3 (bb) is in an identified flood haz4 ard area; and 

5 (ii) in order to enhance public aware6 ness of, and knowledge about, flood haz7 ards; and 

8 (E) when Federal property in a floodplain 

9 is proposed for lease, easement, right-of-way, or 

10 disposal to a non-Federal public or private 

11 party— 

12 (i) reference in the conveyance those 

13 uses that are restricted under Federal, 

14 State, or local regulations relating to 

15 floodplains; and 

16 (ii)(I) except where prohibited by law, 

17 attach any other appropriate restrictions to 

18 the uses of the property by the grantee or 

19 purchaser, as applicable, and any succes20 sors; or 

21 (II) withhold the property from con22 veyance. 

23 (b) EXEMPTION.—The head of an agency may ex24 empt a federally funded project from the requirement 

25 under subsection (a)(1) if— 


pamtmann on DSKBC07HB2PROD with BILLS
17 

•S 5022 IS

1 (1) the exemption is in the interest of national 

2 security; 

3 (2) the undertaking of the federally funded 

4 project is— 

5 (A) because of an emergency; or 

6 (B) a mission-critical requirement relating 

7 to a national security interest or an emergency; 

8 or 

9 (3) applying the Standard to a federally funded 

10 project is demonstrably inappropriate. 

11 (c) UPDATES.—Not less frequently than once every 

12 5 years, the Water Resources Council shall update the 

13 Standard, as determined appropriate by the Water Re14 sources Council. 

15 SEC. 6. FINANCIAL TRANSACTIONS IN AREAS SUBJECT TO 

16 FLOODING. 

17 In addition to any responsibilities under this Act and 

18 sections 102, 202, and 205 of the Flood Disaster Protec19 tion Act of 1973 (42 U.S.C. 4012a, 4106, and 4128), the 

20 head of any agency that guarantees, approves, regulates, 

21 or insures any financial transaction relating to an area 

22 that is subject to a base flood shall, before completing any 

23 action relating to that transaction, inform any private par24 ties that are participating in the transaction about the 

25 hazards of locating a structure in that area. 


pamtmann on DSKBC07HB2PROD with BILLS
18 

•S 5022 IS

1 SEC. 7. REPORTS. 

2 (a) IN GENERAL.—Not later than 1 year after the 

3 date of enactment of this Act, the head of each agency 

4 shall submit to the Council on Environmental Quality a 

5 report regarding how the requirements of this Act impact 

6 the procedures and operations of the agency. 

7 (b) ANALYSIS OF STANDARD.—Each report sub8 mitted under subsection (a) shall contain a separate anal9 ysis regarding how the requirement under section 5(a)(1) 

10 has impacted agencies. 

11 (c) EVALUATION.—Not less frequently than once 

12 every 2 years, the Water Resources Council shall— 

13 (1) evaluate the procedures, including the effec14 tiveness of the procedures, of each agency relating to 

15 the requirements of this Act, taking into account 

16 each report submitted under subsection (a); and 

17 (2) submit to the appropriate committees of 

18 Congress a report that contains the result of the 

19 evaluation required under paragraph (1). 

20 SEC. 8. GENERAL PROVISIONS. 

21 (a) RULES OF CONSTRUCTION.—Nothing in this Act 

22 may be construed— 

23 (1) as applying to assistance that is provided 

24 for emergency work that is— 

25 (A) performed under sections 403 and 502 

26 of the Robert T. Stafford Disaster Relief and 


pamtmann on DSKBC07HB2PROD with BILLS
19 

•S 5022 IS

1 Emergency Assistance Act (42 U.S.C. 5170b 

2 and 5192); and 

3 (B) essential to— 

4 (i) save human life; and 

5 (ii) protect— 

6 (I) property; and 

7 (II) public health and safety; or 

8 (2) to impair or otherwise affect— 

9 (A) the authority granted by law to an 

10 agency or the head of an agency; or 

11 (B) the functions of the Director of the Of12 fice of Management and Budget relating to 

13 budgetary, administrative, or legislative pro14 posals. 

15 (b) IMPLEMENTATION.—This Act shall be imple16 mented consistent with applicable law and subject to the 

17 availability of appropriations. 

18 (c) RESPONSIBILITIES OF WATER RESOURCES

19 COUNCIL.—Except as otherwise expressly provided, the 

20 Water Resources Council shall carry out the responsibil21 ities of the Council under this Act in consultation with 

22 the Mitigation Framework Leadership Group. 

23 SEC. 9. ASSUMPTION OF RESPONSIBILITIES. 

24 If subparagraphs (A), (B), and (C) of section 4(b)(3) 

25 apply to a project to which section 104(h) of the Housing 


pamtmann on DSKBC07HB2PROD with BILLS
20 

•S 5022 IS

1 and Community Development Act of 1974 (42 U.S.C. 

2 5304(h)) applies, an appropriate applicant may assume 

3 the responsibilities under those subparagraphs if the appli4 cant has also assumed, with respect to the project, all re5 sponsibilities for environmental review, decisionmaking, 

6 and action under the National Environmental Policy Act 

7 of 1969 (42 U.S.C. 4321 et seq.). 

Æ 


pamtmann on DSKBC07HB2PROD with BILLS