II 

115TH CONGRESS 

1ST SESSION S. 1798 

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 

SEPTEMBER 12, 2017 

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 Manage5 ment Act of 2017’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 

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

10 Agency; 


SSpencer on DSKBBV9HB2PROD with BILLS
2 

•S 1798 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; 

5 (B) includes military departments; and 

6 (C) does not apply to an agency that does 

7 not take agency actions in or affecting 

8 floodplains; 

9 (3) the term ‘‘agency action’’ means, with re10 spect to an agency— 

11 (A) acquiring, managing, and disposing of 

12 Federal lands and facilities; 

13 (B) providing construction and improve14 ments that are undertaken, financed by, or as15 sisted by the Federal Government; and 

16 (C) conducting Federal activities and pro17 grams that affect land use, including planning, 

18 regulating, and licensing activities relating to 

19 water and land resources; 

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

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

22 a year; 

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

24 action with respect to which the head of the agency 


SSpencer on DSKBBV9HB2PROD with BILLS
3 

•S 1798 IS

1 determines a slight chance of flooding would present 

2 an unacceptable amount of risk; 

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

4 Executive Order 11988 (42 Fed. Reg. 26951; relat5 ing to floodplain management); 

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

7 an action in which Federal funds are used, with re8 spect to a structure or facility, for new construction, 

9 for substantial improvement, or to address substan10 tial damage; 

11 (8) the term ‘‘floodplain’’ means, subject to sec12 tion 4(b)(2), the lowland and relatively flat area that 

13 adjoins inland and coastal waters (including flood14 prone areas of offshore islands); 

15 (9) the term ‘‘National Flood Insurance Pro16 gram’’ means the program established under the Na17 tional Flood Insurance Act of 1968 (42 U.S.C. 4001 

18 et seq.); 

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

20 Flood Risk Management Standard set forth in Ap21 pendix G to Guidelines for Implementing Executive 

22 Order 11988, Floodplain Management, and Execu23 tive Order 13690, Establishing a Federal Flood Risk 

24 Management Standard and a Process for Further 


SSpencer on DSKBBV9HB2PROD with BILLS
4 

•S 1798 IS

1 Soliciting and Considering Stakeholder Input, pub2 lished on October 8, 2015; and 

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

4 means the Council established under section 101 of 

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

6 1962a). 

7 SEC. 3. SENSE OF CONGRESS. 

8 It is the sense of Congress that— 

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

10 to improve the resiliency of communities and assets 

11 of the Federal Government against the impacts of 

12 flooding; 

13 (2) the impacts of flooding are anticipated to 

14 increase over time due to increased future risk and 

15 greater development on floodplains; 

16 (3) losses caused by flooding affect— 

17 (A) the environment; 

18 (B) the economic prosperity of the United 

19 States; 

20 (C) public health and safety; and 

21 (D) the national security of the United 

22 States; 

23 (4) the Federal Government must take action, 

24 informed by the best available and actionable 


SSpencer on DSKBBV9HB2PROD with BILLS
5 

•S 1798 IS

1 science, to improve the preparedness and resilience 

2 of the United States with respect to flooding; 

3 (5) Executive Order 11988 requires agencies to 

4 avoid— 

5 (A) to the maximum extent practicable, the 

6 long- and short-term adverse impacts associated 

7 with the occupancy and modification of 

8 floodplains; and 

9 (B) direct or indirect support of floodplain 

10 development whenever a more practicable alter11 native is available; 

12 (6) to implement Executive Order 11988, the 

13 Federal Government has developed processes for 

14 evaluating the impacts of Federal actions in or af15 fecting floodplains; 

16 (7) in June 2013, an interagency effort to cre17 ate a new flood risk reduction standard for federally 

18 funded projects was initiated; 

19 (8) in establishing the standard described in 

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

21 interested members of the public were solicited and 

22 considered; 

23 (9) the result of the efforts described in para24 graphs (7) and (8) is the Standard, a flexible frameVerDate Sep 11 2014 05:58 Sep 14, 2017 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1798.IS S1798

SSpencer on DSKBBV9HB2PROD with BILLS
6 

•S 1798 IS

1 work to increase resilience against flooding and help 

2 preserve the natural values of floodplains; and 

3 (10) enacting the Standard will ensure that 

4 agencies expand management from the base flood 

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

6 to a higher vertical elevation and a corresponding 

7 horizontal floodplain in order to— 

8 (A) address current and future flood risk; 

9 and 

10 (B) ensure that federally funded projects 

11 last as long as intended. 

12 SEC. 4. FLOODPLAIN MANAGEMENT. 

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

14 provide leadership and shall take action, when carrying 

15 out an agency action, to— 

16 (1) reduce the risk of losses resulting from 

17 floods; 

18 (2) minimize the impact of floods on human 

19 safety health, and welfare; and 

20 (3) restore and preserve the natural and bene21 ficial values served by floodplains. 

22 (b) AGENCY RESPONSIBILITIES.— 

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

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

25 each agency shall— 


SSpencer on DSKBBV9HB2PROD with BILLS
7 

•S 1798 IS

1 (A) evaluate the potential effects of any 

2 agency action taken by the agency in a flood3 plain, as determined under paragraph (2); 

4 (B) ensure that the planning programs and 

5 budget requests of the agency reflect consider6 ation of flood hazards and the management of 

7 floodplains; and 

8 (C) prescribe procedures to implement the 

9 policies and requirements of this Act— 

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

11 (ii) in accordance with the procedures 

12 described in paragraph (3). 

13 (2) DETERMINATION OF FLOODPLAINS.—The 

14 head of an agency shall, when determining whether 

15 an agency action will take place in a floodplain— 

16 (A) use— 

17 (i) the elevation and flood hazard 

18 area, as determined by— 

19 (I) a climate-informed science ap20 proach that— 

21 (aa) uses the best available 

22 actionable hydrologic and hydrau23 lic data and methods; 


SSpencer on DSKBBV9HB2PROD with BILLS
8 

•S 1798 IS

1 (bb) integrates current and 

2 future changes in flooding based 

3 on climate science; and 

4 (cc) includes an emphasis on 

5 whether the agency action is a 

6 critical action; 

7 (II) the freeboard value, reached 

8 by adding an additional— 

9 (aa) 2 feet to the base flood 

10 elevation for an agency action 

11 that is not a critical action; and 

12 (bb) 3 feet to the base flood 

13 elevation for an agency action 

14 that is a critical action; or 

15 (III) any other method that is 

16 identified in any amendment made to 

17 this Act; or 

18 (ii) an area that has a 0.2 percent 

19 chance of flooding in a year; and 

20 (B) rely on— 

21 (i) the best available information; and 

22 (ii) the Flood Insurance Rate Map 

23 published by the Administrator for the 

24 community in which the agency action 

25 shall take place. 


SSpencer on DSKBBV9HB2PROD with BILLS
9 

•S 1798 IS

1 (3) PROCEDURES.—The procedures described 

2 in this paragraph are as follows: 

3 (A) Before an agency takes an agency ac4 tion, the head of the agency shall determine 

5 under paragraph (2) whether the proposed 

6 agency action will take place in a floodplain. 

7 (B) If an agency action described in sub8 paragraph (A) may have a significant effect on 

9 the quality of the human environment, the eval10 uation required under paragraph (5) shall be 

11 included in any statement prepared under sec12 tion 102(2)(C) of the National Environmental 

13 Policy Act (42 U.S.C. 4332(2)(C)). 

14 (C) If the head of an agency has deter15 mined to, or proposes to, conduct, support, or 

16 allow an agency action that will take place in a 

17 floodplain, as determined under paragraph (2), 

18 the head of the agency shall— 

19 (i) consider alternatives in order to 

20 avoid adverse effects and incompatible de21 velopment in the floodplain; 

22 (ii) when possible, rely on natural sys23 tems, ecosystem processes, and nature24 based approaches when considering alter25 natives under clause (i); 


SSpencer on DSKBBV9HB2PROD with BILLS
10 

•S 1798 IS

1 (iii) if the head of the agency deter2 mines that the only practicable alternative 

3 consistent under law, including the require4 ments of this Act, requires taking an agen5 cy action in a floodplain, before taking the 

6 agency action— 

7 (I) design or modify the agency 

8 action to minimize potential harm to 

9 or within the floodplain consistent 

10 with regulations issued under para11 graph (6); and 

12 (II) prepare and distribute a no13 tice that contains an explanation with 

14 respect to why the agency action shall 

15 take place in the floodplain; 

16 (iv) with respect to an agency action 

17 relating to a program that is subject to 

18 Circular A–95 of the Office of Manage19 ment and Budget, send a notice to the 

20 State and area-wide clearinghouses for the 

21 geographic areas that are affected by the 

22 agency action that— 

23 (I) is not more than 3 pages 

24 long; 

25 (II) includes— 


SSpencer on DSKBBV9HB2PROD with BILLS
11 

•S 1798 IS

1 (aa) a location map; 

2 (bb) the reasons why the 

3 agency action shall occur in a 

4 floodplain; 

5 (cc) a statement indicating 

6 whether the agency action con7 forms to applicable State or local 

8 floodplain protection standards; 

9 and 

10 (dd) a list of the alternatives 

11 to the agency action that the 

12 head of the agency considered; 

13 and 

14 (III) allows for a brief comment 

15 period before the head of the agency 

16 may take the agency action; and 

17 (v) provide the opportunity for early 

18 public review of any plan or proposal for 

19 the agency action, including the develop20 ment of procedures for any Federal action 

21 the impact of which is not significant 

22 enough to require the preparation of a 

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

24 National Environmental Policy Act (42 

25 U.S.C. 4332(2)(C)). 


SSpencer on DSKBBV9HB2PROD with BILLS
12 

•S 1798 IS

1 (4) REQUESTS FOR AUTHORIZATIONS AND AP2 PROPRIATIONS.—The head of an agency, when mak3 ing any request to the Director of the Office of Man4 agement and Budget for a new authorization or for 

5 appropriations, shall indicate, if an agency action to 

6 be proposed shall take place in a floodplain, as de7 termined under paragraph (2), whether the agency 

8 action complies with this Act. 

9 (5) WATER AND LAND USE PLANS.— 

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

11 when formulating or evaluating any water and 

12 land use plan, shall— 

13 (i) take floodplain management into 

14 account; and 

15 (ii) require the use of land and water 

16 resources that are appropriate when com17 pared with the degree of hazard that is in18 volved. 

19 (B) CONSIDERATIONS.—The head of each 

20 agency shall— 

21 (i) provide for the adequate evaluation 

22 and consideration of flood hazards with re23 spect to the regulations and operating pro24 cedures for the licenses, permits, and loan 


SSpencer on DSKBBV9HB2PROD with BILLS
13 

•S 1798 IS

1 or grant programs administered by the 

2 agency; and 

3 (ii) with respect to an applicant for a 

4 license, permit, loan, or grant that is 

5 issued or administered by the agency, en6 courage, and provide appropriate guidance 

7 to, the applicant to evaluate, before sub8 mitting the application, the effects that the 

9 application, if granted, would have on 

10 floodplains. 

11 (6) REGULATIONS AND PROCEDURES.—To the 

12 extent permitted by law, the head of each agency 

13 shall, in consultation with the Water Resources 

14 Council, the Federal Interagency Floodplain Man15 agement Task Force, the Administrator, and the 

16 Council on Environmental Quality— 

17 (A) issue regulations, or amend regulations 

18 that are in effect as of the date of enactment 

19 of this Act, to comply with the requirements of 

20 this Act; and 

21 (B) amend the regulations described in 

22 subparagraph (A) as warranted. 

23 (c) ANNUAL REASSESSMENT.—The Mitigation 

24 Framework Leadership Group, in consultation with the 


SSpencer on DSKBBV9HB2PROD with BILLS
14 

•S 1798 IS

1 Federal Interagency Floodplain Management Task Force, 

2 shall— 

3 (1) annually reassess the implementation of the 

4 requirements imposed under this section; and 

5 (2) provide recommendations to the Water Re6 sources Council for updates to the requirements im7 posed under this section that are warranted based 

8 on accurate and actionable science that takes into 

9 account changes to climate and other changes in 

10 flood risk. 

11 SEC. 5. FEDERAL FLOOD RISK MANAGEMENT STANDARD. 

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

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

14 respect to a federally funded project undertaken by 

15 the agency, ensure that the agency complies with the 

16 Standard; and 

17 (2) if the agency has responsibility for the ad18 ministration or management of Federal real prop19 erty and facilities, in addition to the requirements 

20 under section 4 and paragraph (1)— 

21 (A) require the construction of Federal 

22 structures and facilities to comply with— 

23 (i) the regulations and procedures 

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


SSpencer on DSKBBV9HB2PROD with BILLS
15 

•S 1798 IS

1 (ii) any regulations issued under the 

2 National Flood Insurance Program unless 

3 those regulations are demonstrably inap4 propriate for a structure or facility; 

5 (B) apply accepted floodproofing and other 

6 flood protection measures to the construction or 

7 rehabilitation of a structure or facility that is 

8 located in a floodplain; 

9 (C) when practicable, elevate a structure 

10 above the floodplain instead of filling in land; 

11 (D) provide on structures and, where ap12 propriate, other pieces of property a con13 spicuous delineation of past and probable flood 

14 height— 

15 (i) if the structure or other prop16 erty— 

17 (I) is used by the general public; 

18 and 

19 (II)(aa) has suffered flood dam20 age; or 

21 (bb) is in an identified flood haz22 ard area; and 

23 (ii) in order to enhance public aware24 ness of, and knowledge about, flood haz25 ards; and 


SSpencer on DSKBBV9HB2PROD with BILLS
16 

•S 1798 IS

1 (E) when Federal property in a floodplain 

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

3 disposal to a non-Federal public or private 

4 party— 

5 (i) reference in the conveyance those 

6 uses that are restricted under Federal, 

7 State, or local regulations relating to 

8 floodplains; and 

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

10 attach any other appropriate restrictions to 

11 the uses of the property by the grantee or 

12 purchaser, as applicable, and any succes13 sors; or 

14 (II) withhold the property from con15 veyance. 

16 (b) EXEMPTION.—The head of an agency may ex17 empt a federally funded project from the requirement 

18 under subsection (a)(1) if— 

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

20 security; 

21 (2) the undertaking of the federally funded 

22 project is— 

23 (A) because of an emergency; or 


SSpencer on DSKBBV9HB2PROD with BILLS
17 

•S 1798 IS

1 (B) a mission-critical requirement relating 

2 to a national security interest or an emergency; 

3 or 

4 (3) applying the Standard to a federally funded 

5 project is demonstrably inappropriate. 

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

7 5 years, the Water Resources Council shall update the 

8 Standard, as determined appropriate by the Water Re9 sources Council. 

10 SEC. 6. FINANCIAL TRANSACTIONS IN AREAS SUBJECT TO 

11 FLOODING. 

12 In addition to any responsibilities under this Act and 

13 sections 102, 202, and 205 of the Flood Disaster Protec14 tion Act of 1973 (42 U.S.C. 4012a, 4106, and 4128), the 

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

16 or insures any financial transaction relating to an area 

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

18 action relating to that transaction, inform any private par19 ties that are participating in the transaction about the 

20 hazards of locating a structure in that area. 

21 SEC. 7. REPORTS. 

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

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

24 shall submit to the Council on Environmental Quality a 


SSpencer on DSKBBV9HB2PROD with BILLS
18 

•S 1798 IS

1 report regarding how the requirements of this Act impact 

2 the procedures and operations of the agency. 

3 (b) ANALYSIS OF STANDARD.—Each report sub4 mitted under subsection (a) shall contain a separate anal5 ysis regarding how the requirement under section 5(a)(1) 

6 has impacted agencies. 

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

8 every 2 years, the Water Resources Council shall— 

9 (1) evaluate the procedures, including the effec10 tiveness of the procedures, of each agency relating to 

11 the requirements of this Act, taking into account 

12 each report submitted under subsection (a); and 

13 (2) submit to the appropriate committees of 

14 Congress a report that contains the result of the 

15 evaluation required under paragraph (1). 

16 SEC. 8. GENERAL PROVISIONS. 

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

18 may be construed— 

19 (1) as applying to assistance that is provided 

20 for emergency work that is— 

21 (A) performed under sections 403 and 502 

22 of the Robert T. Stafford Disaster Relief and 

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

24 and 5192); and 

25 (B) essential to— 


SSpencer on DSKBBV9HB2PROD with BILLS
19 

•S 1798 IS

1 (i) save human life; and 

2 (ii) protect— 

3 (I) property; and 

4 (II) public health and safety; or 

5 (2) to impair or otherwise affect— 

6 (A) the authority granted by law to an 

7 agency or the head of an agency; or 

8 (B) the functions of the Director of the Of9 fice of Management and Budget relating to 

10 budgetary, administrative, or legislative pro11 posals. 

12 (b) IMPLEMENTATION.—This Act shall be imple13 mented consistent with applicable law and subject to the 

14 availability of appropriations. 

15 (c) RESPONSIBILITIES OF WATER RESOURCES

16 COUNCIL.—Except as otherwise expressly provided, the 

17 Water Resources Council shall carry out the responsibil18 ities of the Council under this Act in consultation with 

19 the Mitigation Framework Leadership Group. 

20 SEC. 9. ASSUMPTION OF RESPONSIBILITIES. 

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

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

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

24 5304(h)) applies, an appropriate applicant may assume 

25 the responsibilities under those subparagraphs if the appliVerDate Sep 11 2014 05:58 Sep 14, 2017 Jkt 069200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S1798.IS S1798

SSpencer on DSKBBV9HB2PROD with BILLS
20 

•S 1798 IS

1 cant has also assumed, with respect to the project, all re2 sponsibilities for environmental review, decisionmaking, 

3 and action under the National Environmental Policy Act 

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

Æ 


SSpencer on DSKBBV9HB2PROD with BILLS