112TH CONGRESS 

2D SESSION S. 2039 

AN ACT 

To allow a State or local government to construct levees 

on certain properties otherwise designated as open space 

lands. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
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†S 2039 ES

1 SECTION 1. LEVEES. 

2 (a) DEFINITIONS.—In this section— 

3 (1) the term ‘‘Administrator’’ means the Ad4 ministrator of the Federal Emergency Management 

5 Agency; and 

6 (2) the term ‘‘covered hazard mitigation land’’ 

7 means land— 

8 (A) acquired and deed restricted under sec9 tion 404(b) of the Robert T. Stafford Disaster 

10 Relief and Emergency Assistance Act (42 

11 U.S.C. 5170c(b)) before, on, or after the date 

12 of enactment of this Act; and 

13 (B) that is located— 

14 (i) in North Dakota; and 

15 (ii) in a community that— 

16 (I) is participating in the Na17 tional Flood Insurance Program on 

18 the date on which a State, local, or 

19 tribal government submits an applica20 tion requesting to construct a perma21 nent flood risk reduction levee under 

22 subsection (b); and 

23 (II) certifies to the Administrator 

24 and the Chief of Engineers that the 

25 community will continue to participate 
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1 in the National Flood Insurance Pro2 gram. 

3 (b) AUTHORITY.—Notwithstanding clause (i) or (ii) 

4 of section 404(b)(2)(B) of the Robert T. Stafford Disaster 

5 Relief and Emergency Assistance Act (42 U.S.C. 

6 5170c(b)(2)(B)), the Administrator shall approve the con7 struction of a permanent flood risk reduction levee by a 

8 State, local, or tribal government on covered hazard miti9 gation land if the Administrator and the Chief of Engi10 neers determine, through a process established by the Ad11 ministrator and Chief of Engineers and funded entirely 

12 by the State, local, or tribal government seeking to con13 struct the proposed levee, that— 

14 (1) construction of the proposed permanent 

15 flood risk reduction levee would more effectively 

16 mitigate against flooding risk than an open flood17 plain or other flood risk reduction measures; 

18 (2) the proposed permanent flood risk reduction 

19 levee complies with Federal, State, and local require20 ments, including mitigation of adverse impacts and 

21 implementation of floodplain management require22 ments, which shall include an evaluation of whether 

23 the construction, operation, and maintenance of the 

24 proposed levee would continue to meet best available 

25 industry standards and practices, would be the most 
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1 cost-effective measure to protect against the as2 sessed flood risk and minimizes future costs to the 

3 federal government; 

4 (3) the State, local, or tribal government seek5 ing to construct the proposed levee has provided an 

6 adequate maintenance plan that documents the pro7 cedures the State, local, or tribal government will 

8 use to ensure that the stability, height, and overall 

9 integrity of the proposed levee and the structure and 

10 systems of the proposed levee are maintained, in11 cluding— 

12 (A) specifying the maintenance activities to 

13 be performed; 

14 (B) specifying the frequency with which 

15 maintenance activities will be performed; 

16 (C) specifying the person responsible for 

17 performing each maintenance activity (by name 

18 or title); 

19 (D) detailing the plan for financing the 

20 maintenance of the levee; and 

21 (E) documenting the ability of the State, 

22 local, or tribal government to finance the main23 tenance of the levee. 

24 (c) MAINTENANCE CERTIFICATION.— 
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1 (1) IN GENERAL.—A State, local, or tribal gov2 ernment that constructs a permanent flood risk re3 duction levee under subsection (b) shall submit to 

4 the Administrator and the Chief of Engineers an an5 nual certification indicating whether the State, local, 

6 or tribal government is in compliance with the main7 tenance plan provided under subsection (b)(3). 

8 (2) REVIEW.—The Chief of Engineers shall re9 view a certification submitted under paragraph (1) 

10 and determine whether the State, local, or tribal 

11 government has complied with the maintenance plan. 

Passed the Senate January 26, 2012. 

Attest: 

Secretary. 
112TH CONGRESS 

2D SESSION S. 2039 

AN ACT 

To allow a State or local government to construct 

as open space lands. levees on certain properties otherwise designated