33 USC 3304 - Limitations on statutory construction

Collapse to view only § 3304. Limitations on statutory construction

§ 3301. Definitions
§ 3302. Committee on Levee Safety
§ 3303. Inventory and inspection of levees
Levee safety initiative
§ 3303b. Reports
§ 3304. Limitations on statutory construction
§ 3305. Authorization of appropriations
§ 3306. Certain levee improvements
§ 3307. Assessment of Corps of Engineers levees

§ 3301. DefinitionsIn this chapter, the following definitions apply:

(1) Administrator

(2) Canal structure

(A) In generalThe term “canal structure” means an embankment, wall, or structure along a canal or manmade watercourse that—

(i) constrains water flows;

(ii) is subject to frequent water loading; and

(iii) is an integral part of a flood risk reduction system that protects the leveed area from flood waters associated with hurricanes, precipitation events, seasonal high water, and other weather-related events.

(B) Exclusion

(3) Committee

(4) Floodplain management

(5) Indian tribe

(6) InspectionThe term “inspection” means an actual inspection of a levee—

(A) to establish the global information system location of the levee;

(B) to determine the general condition of the levee; and

(C) to estimate the number of structures and population at risk and protected by the levee that would be adversely impacted if the levee fails or water levels exceed the height of the levee.

(7) Levee

(A) In generalThe term “levee” means a manmade barrier (such as an embankment, floodwall, or other structure)—

(i) the primary purpose of which is to provide hurricane, storm, or flood protection relating to seasonal high water, storm surges, precipitation, or other weather events; and

(ii) that is normally subject to water loading for only a few days or weeks during a calendar year.

(B) InclusionsThe term “levee” includes a levee system, including—

(i) levees and canal structures that—(I) constrain water flows;(II) are subject to more frequent water loading; and(III) do not constitute a barrier across a watercourse; and

(ii) roadway and railroad embankments, but only to the extent that the embankments are integral to the performance of a flood damage reduction system.

(i) a roadway or railroad embankment that is not integral to the performance of a flood damage reduction system;

(ii) a canal constructed completely within natural ground without any manmade structure (such as an embankment or retaining wall to retain water or a case in which water is retained only by natural ground);

(iii) a canal regulated by a Federal or State agency in a manner that ensures that applicable Federal safety criteria are met;

(iv) a levee or canal structure—(I) that is not a part of a Federal flood damage reduction system;(II) that is not recognized under the National Flood Insurance Program as providing protection from the 1-percent-annual-chance or greater flood;(III) that is not greater than 3 feet high;(IV) the population in the leveed area of which is less than 50 individuals; and(V) the leveed area of which is less than 1,000 acres; or

(v) any shoreline protection or river bank protection system (such as revetments or barrier islands).

(8) Levee featureThe term “levee feature” means a structure that is critical to the functioning of a levee, including—

(A) an embankment section;

(B) a floodwall section;

(D) a pumping station;

(E) an interior drainage work; and

(F) a flood damage reduction channel.

(9) Levee systemThe term “levee system” means 1 or more levee segments, including all levee features that are interconnected and necessary to ensure protection of the associated leveed areas—

(A) that collectively provide flood damage reduction to a defined area; and

(B) the failure of 1 of which may result in the failure of the entire system.

(10) National levee database

(11) Participating program

(12) Regional district

(13) Rehabilitation

(A) In general

(B) Inclusions

(14) Risk

(15) StateThe term “State” means—

(A) a State;

(B) the District of Columbia;

(D) any other territory or possession of the United States.

(16) State levee safety agency

(17) United States

(Pub. L. 110–114, title IX, § 9002, Nov. 8, 2007, 121 Stat. 1288; Pub. L. 113–121, title III, § 3016(b), June 10, 2014, 128 Stat. 1289; Pub. L. 114–322, title I, § 1130(a), Dec. 16, 2016, 130 Stat. 1650; Pub. L. 117–263, div. H, title LXXXI, § 8387(a), Dec. 23, 2022, 136 Stat. 3830.)

§ 3302. Committee on Levee Safety

(a) Establishment

(b) MembershipThe committee shall be composed of 16 members as follows:

(1)Nonvoting members.—The following 2 nonvoting members:

(A) The Secretary (or a designee of the Secretary).

(B) The Administrator (or a designee of the Administrator).

(2) The following 14 voting members appointed by the Secretary:

(A) Eight representatives of State levee safety agencies, one from each of the eight civil works divisions of the Corps of Engineers.

(B) Two representatives of the private sector who have expertise in levee safety.

(D) Two representatives of Indian tribes who have expertise in levee safety.

(1) Terms of voting members

(A) In generalA voting member of the committee shall be appointed for a term of 3 years, except that, of the members first appointed—

(i) 5 shall be appointed for a term of 1 year;

(ii) 5 shall be appointed for a term of 2 years; and

(iii) 4 shall be appointed for a term of 3 years.

(B) Reappointment

(2) Chairperson

(A) In general

(B) Term

(d) Standing committees

(1) In general

(2) Membership

(e) Duties and powersThe committee—

(1) shall submit to the Secretary and Congress an annual report regarding the effectiveness of the levee safety initiative in accordance with section 3303b of this title; and

(2) may secure from other Federal agencies such services, and enter into such contracts, as the committee determines to be necessary to carry out this subsection.

(f) Task force coordination

(g) Compensation

(1) Federal employeesEach member of the committee who is an officer or employee of the United States—

(A) shall serve without compensation in addition to compensation received for the services of the member as an officer or employee of the United States; but

(B) shall be allowed a per diem allowance for travel expenses, at rates authorized for an employee of an agency under subchapter I of chapter 57 of title 5, while away from the home or regular place of business of the member in the performance of the duties of the committee.

(2) Non-Federal employees

(3) Standing committee members

(h) Applicability of chapter 10 of title 5

(Pub. L. 110–114, title IX, § 9003, Nov. 8, 2007, 121 Stat. 1288; Pub. L. 110–274, § 1, July 15, 2008, 122 Stat. 2493; Pub. L. 113–121, title III, § 3016(c), June 10, 2014, 128 Stat. 1291; Pub. L. 117–286, § 4(a)(207), Dec. 27, 2022, 136 Stat. 4328.)

§ 3303. Inventory and inspection of levees

(a) Levee database

(1) In general

(2) Contents

The database shall include—

(A) location information of all Federal levees in the Nation (including global information system information) and updated levee information provided by States, regional districts, Indian tribes, Federal agencies, and other entities;

(B) utilizing such information as is available, the general condition of each levee; and

(C) an estimate of the number of structures and population at risk and protected by each levee that would be adversely impacted if the levee fails or water levels exceed the height of the levee.

(3) Availability of information

(A) Availability to Federal, State, regional, tribal, and local governmental agencies

(B) Availability to the public

(b) Inventory and inspection of levees

(1) Federal levees

(2) Federally constructed, nonfederally operated and maintained levees

(3) Participating levees

(1) In general

(2) No Federal interest

(3) Review criteria

(4) State, regional, and tribal participation

At the request of a State, regional district, or Indian tribe with respect to any levee subject to review under this subsection, the Secretary shall—

(A) allow an official of the State, regional district, or Indian tribe to participate in the review of the levee; and

(B) provide information to the State, regional district, or Indian tribe relating to the location, construction, operation, or maintenance of the levee.

(5) Exceptions

(d) Identification of deficiencies

(1) In general

For each levee included in an inventory established under subsection (b) or for which the Secretary has conducted a review under subsection (c), the Secretary shall—

(A) identify the specific engineering and maintenance deficiencies, if any; and

(B) describe the recommended remedies to correct each deficiency identified under subparagraph (A), and, if requested by owner of a non-Federal levee, the associated costs of those remedies.

(2) Consultation

(Pub. L. 110–114, title IX, § 9004, Nov. 8, 2007, 121 Stat. 1290; Pub. L. 113–121, title III, § 3016(d), June 10, 2014, 128 Stat. 1292; Pub. L. 114–322, title I, § 1130(b), Dec. 16, 2016, 130 Stat. 1650; Pub. L. 116–260, div. AA, title I, § 131, Dec. 27, 2020, 134 Stat. 2644.)

Levee safety initiative

(a) Establishment

(b) ManagementThe Secretary shall appoint—

(1) an administrator of the levee safety initiative; and

(2) such staff as are necessary to implement the initiative.

(1) EstablishmentNot later than 1 year after December 16, 2016, the Secretary, in consultation with the Administrator and in coordination with State, regional, local, and tribal governments and organizations with expertise in levee safety, shall establish a set of voluntary, comprehensive, national levee safety guidelines that—

(A) are available for common, uniform use by all Federal, State, regional, local, and tribal agencies;

(B) incorporate policies, procedures, standards, and criteria for a range of levee types, canal structures, and related facilities and features; and

(2) Requirement

(3) IncorporationThe guidelines shall address, to the maximum extent practicable—

(A) the activities and practices carried out by State, regional, local, and tribal governments and the private sector to safely build, regulate, operate, and maintain levees; and

(B) Federal activities that facilitate State, regional, or tribal efforts to develop and implement effective State, regional, or tribal programs for the safety of levees, including levee inspection, levee rehabilitation, locally developed floodplain management, and public education and training programs.

(4) Consideration by Federal agencies

(5) Public commentPrior to finalizing the guidelines under this subsection, the Secretary shall—

(A) issue draft guidelines for public comment, including comment by States, regional districts, Indian tribes, non-Federal interests, and other appropriate stakeholders; and

(B) consider any comments received in the development of final guidelines.

(d) Hazard potential classification system

(1) Establishment

(2) Revision

(3) Consistency

(e) Technical assistance and materials

(1) EstablishmentThe Secretary, in consultation with the Administrator, shall provide technical assistance and training to promote levee safety and assist States, regional districts, Indian tribes, communities, and levee owners in—

(A) developing levee safety programs;

(B) identifying and reducing flood risks associated with levees;

(D) rehabilitating, improving, replacing, reconfiguring, modifying, and removing levees and levee systems.

(2) EligibilityTo be eligible to receive technical assistance under this subsection, a State shall—

(A) be in the process of establishing or have in effect a State levee safety program under which a State levee safety agency, in accordance with State law, carries out the guidelines established under subsection (c)(1); and

(B) allocate sufficient funds in the budget of that State to carry out that State levee safety program.

(3) Work plans

(f) Public education and awareness

(1) In general

(2) ContentsIn carrying out the efforts under paragraph (1), the Secretary and the Administrator shall—

(A) educate individuals living in leveed areas regarding the risks of living in those areas; and

(B) promote consistency in the transmission of information regarding levees among Federal agencies and regarding risk communication at the State and local levels.

(g) State, regional, and tribal levee safety program

(1) Guidelines

(A) In general

(B) Guideline contentsThe guidelines under subparagraph (A) shall include provisions and procedures requiring each participating State, regional district, and Indian tribe to certify to the Secretary that the State, regional district, or Indian tribe, as applicable—

(i) has the authority to participate in the levee safety initiative;

(ii) can receive funds under this chapter;

(iii) has adopted any levee safety guidelines developed under this chapter;

(iv) will carry out levee inspections;

(v) will carry out, consistent with applicable requirements, flood risk management and any emergency action planning procedures the Secretary determines to be necessary relating to levees;

(vi) will carry out public education and awareness activities consistent with the efforts carried out under subsection (f); and

(vii) will collect and share information regarding the location and condition of levees, including for inclusion in the national levee database.

(i) issue draft guidelines for public comment; and

(ii) consider any comments received in the development of final guidelines.

(2) Assistance to States, regional districts, and Indian tribes

(A) Establishment

(B) RequirementsTo be eligible to receive assistance under this section, a State, regional district, or Indian tribe shall—

(i) meet the requirements of a participating program established by the guidelines issued under paragraph (1);

(ii) use not less than 25 percent of any amounts received to identify and assess non-Federal levees within the State or regional district or on land of the Indian tribe;

(iii) submit to the Secretary and Administrator any information collected by the State, regional district, or Indian tribe in carrying out this subsection for inclusion in the national levee safety database; and

(iv) identify actions to address hazard mitigation activities associated with levees and leveed areas identified in the hazard mitigation plan of the State approved by the Administrator of the Federal Emergency Management Agency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).

(i) In general

(ii) ConsiderationsIn assessing the effectiveness of assistance under clause (i), the Administrator shall consider the degree to which the State, regional, or tribal program—(I) ensures that human lives and property that are protected by new and existing levees are safe;(II) encourages the use of appropriate engineering policies, procedures, and technical practices for levee site investigation, design, construction, operation and maintenance, inspection, assessment, and emergency preparedness;(III) develops and supports public education and awareness projects to increase public acceptance and support of levee safety programs and provide information;(IV) builds public awareness of the residual risks associated with living in levee protected areas; and(V) develops technical assistance materials, seminars, and guidelines to improve the security of levees of the United States.

(D) Maintenance of effort

(E) Authorization of appropriations

(i) In general

(ii) AllocationFor each fiscal year, amounts made available under this subparagraph shall be allocated among the States, regional districts, and Indian tribes as follows:(I) ⅓ among States, regional districts, and Indian tribes that qualify for assistance under this subsection.(II) ⅔ among States, regional districts, and Indian tribes that qualify for assistance under this subsection, to each such State, regional district, or Indian tribe in the proportion that—(aa) the miles of levees in the State or regional district or on the land of the Indian tribe that are listed on the inventory of levees; bears to(bb) the miles of levees in all States and regional districts and on the land of all Indian tribes that are in the national levee database.

(iii) Maximum amount of allocation

(F) Prohibition

(h) Levee rehabilitation assistance program

(1) Establishment

(2) RequirementsTo be eligible to receive assistance under this subsection, a State, regional district, Indian tribe, or local government shall—

(A) participate in, and comply with, all applicable Federal floodplain management and flood insurance programs;

(B) have in place a hazard mitigation plan that—

(i) includes all levee risks; and

(ii) complies with the Disaster Mitigation Act of 2000 (Public Law 106–390; 114 Stat. 1552);

(C) submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require;

(D) commit to provide normal operation and maintenance of the project for the 50 year-period following completion of rehabilitation; and

(E) comply with such minimum eligibility requirements as the Secretary, in consultation with the committee, may establish to ensure that each owner and operator of a levee under a participating State, regional, or tribal levee safety program—

(i) acts in accordance with the guidelines developed under subsection (c); and

(ii) carries out activities relating to the public in the leveed area in accordance with the hazard mitigation plan described in subparagraph (B).

(3) Floodplain management plans

(A) In general

(B) InclusionsA plan under subparagraph (A) shall address—

(i) potential measures, practices, and policies to reduce loss of life, injuries, damage to property and facilities, public expenditures, and other adverse impacts of flooding in each applicable leveed area;

(ii) plans for flood fighting and evacuation; and

(iii) public education and awareness of flood risks.

(D) Guidelines

(E) Technical support

(4) Use of funds

(A) In generalAssistance provided under this subsection may be used—

(i) for any rehabilitation activity to maximize overall risk reduction associated with a levee under a participating State, regional, or tribal levee safety program; and

(ii) only for a levee that is not federally operated and maintained.

(B) ProhibitionAssistance provided under this subsection shall not be used—

(i) to perform routine operation or maintenance for a levee; or

(ii) to make any modification to a levee that does not result in an improvement to public safety.

(5) No proprietary interest

(6) Cost share

(7) Project limit

(8) Limitation

(9) Federal interest

(10) Other laws

(11) Prioritization

(i) Effect of sectionNothing in this section—

(1) affects the requirement under section 100226(b)(2) of Public Law 112–141 (42 U.S.C. 4101 note; 126 Stat. 942); or

(2) confers any regulatory authority on—

(A) the Secretary; or

(B) the Administrator, including for the purpose of setting premium rates under the national flood insurance program established under chapter 1 1

1 So in original. Probably should be “chapter I”.

of the National Flood Insurance Act of 1968 (42 U.S.C. 4011 et seq.).

(Pub. L. 110–114, title IX, § 9005, as added Pub. L. 113–121, title III, § 3016(e)(2), June 10, 2014, 128 Stat. 1293; Pub. L. 114–322, title I, § 1130(c), Dec. 16, 2016, 130 Stat. 1650; Pub. L. 115–270, title I, § 1144(1), Oct. 23, 2018, 132 Stat. 3785; Pub. L. 117–263, div. H, title LXXXI, § 8387(b), (c), Dec. 23, 2022, 136 Stat. 3830, 3831.)

§ 3303b. Reports

(a) State of levees

(1) In generalNot later than 1 year after December 16, 2016, and biennially thereafter, the Secretary in coordination with the committee, shall submit to Congress and make publicly available a report describing the state of levees in the United States and the effectiveness of the levee safety initiative, including—

(A) progress achieved in implementing the levee safety initiative;

(B) State, regional, and tribal participation in the levee safety initiative;

(C) recommendations to improve coordination of levee safety, floodplain management, and environmental protection concerns, including—

(i) identifying and evaluating opportunities to coordinate public safety, floodplain management, and environmental protection activities relating to levees; and

(ii) evaluating opportunities to coordinate environmental permitting processes for operation and maintenance activities at existing levee projects in compliance with all applicable laws; and

(D) any recommendations for legislation and other congressional actions necessary to ensure national levee safety.

(2) Inclusion

(b) National dam and levee safety program

(c) Alignment of Federal programs relating to leveesNot later than 2 years after December 16, 2016, the Comptroller General of the United States shall submit to Congress a report on opportunities for alignment of Federal programs to provide incentives to State, regional, tribal, and local governments and individuals and entities—

(1) to promote shared responsibility for levee safety;

(2) to encourage the development of strong State, regional, and tribal levee safety programs;

(3) to better align the levee safety initiative with other Federal flood risk management programs; and

(4) to promote increased levee safety through other Federal programs providing assistance to State, regional, tribal, and local governments.

(d) Liability for certain levee engineering projectsNot later than 1 year after December 16, 2016, the Secretary shall submit to Congress and make publicly available a report that includes recommendations that identify and address any legal liability associated with levee engineering projects that prevent—

(1) levee owners from obtaining needed levee engineering services; or

(2) development and implementation of a State, regional, or tribal levee safety program.

(Pub. L. 110–114, title IX, § 9006, as added Pub. L. 113–121, title III, § 3016(e)(2), June 10, 2014, 128 Stat. 1299; amended Pub. L. 114–322, title I, § 1130(d), Dec. 16, 2016, 130 Stat. 1652.)

§ 3304. Limitations on statutory construction

Nothing in this chapter shall be construed as—

(1) creating any liability of the United States or its officers or employees for the recovery of damages caused by an action or failure to act; or

(2) relieving an owner or operator of a levee of a legal duty, obligation, or liability incident to the ownership or operation of a levee.

(Pub. L. 110–114, title IX, § 9007, formerly § 9005, Nov. 8, 2007, 121 Stat. 1290; renumbered § 9007, Pub. L. 113–121, title III, § 3016(e)(1), June 10, 2014, 128 Stat. 1293.)

§ 3305. Authorization of appropriations

There is authorized to be appropriated to the Secretary—

(1) to carry out sections 3302, 3303a(c), 3303a(d), 3303a(e), and 3303a(f) of this title, $4,000,000 for each of fiscal years 2019 through 2023;

(2) to carry out section 3303 of this title, $20,000,000 for each of fiscal years 2019 through 2023; and

(3) to carry out section 3303a(h) of this title, $30,000,000 for each of fiscal years 2019 through 2023.

(Pub. L. 110–114, title IX, § 9008, formerly § 9006, Nov. 8, 2007, 121 Stat. 1291; renumbered § 9008 and amended Pub. L. 113–121, title III, § 3016(e)(1), (f), June 10, 2014, 128 Stat. 1293, 1300; Pub. L. 115–270, title I, § 1144(2), Oct. 23, 2018, 132 Stat. 3785.)

§ 3306. Certain levee improvements

(a) In general

(b) Federal levees

Nothing in this section—

(1) affects the responsibilities of a local government to operate and maintain its flood control infrastructure; or

(2) obligates the Secretary to expend additional Federal resources on levees owned and operated by the Secretary.

(Pub. L. 115–270, title I, § 1123, Oct. 23, 2018, 132 Stat. 3779.)

§ 3307. Assessment of Corps of Engineers levees

(a) In general

The Secretary shall periodically conduct assessments of federally authorized levees under the jurisdiction of the Corps of Engineers, to evaluate the potential Federal interest in the modification (including realignment or incorporation of natural features and nature-based features, as such terms are defined in section 2289a(a) of this title) of levee systems to meet one or more of the following objectives:

(1) Increasing the flood risk reduction benefits of such systems.

(2) Achieving greater flood resiliency.

(3) Restoring hydrological and ecological connections with adjacent floodplains that achieve greater environmental benefits without undermining flood risk reduction or flood resiliency for levee-protected communities.

(b) Levees operated by non-Federal interests

The Secretary shall carry out an assessment under subsection (a) for a federally authorized levee system operated by a non-Federal interest only if the non-Federal interest—

(1) requests the assessment; and

(2) agrees to provide 50 percent of the cost of the assessment.

(1) Considerations

In conducting an assessment under subsection (a), the Secretary shall consider and identify, with respect to each levee system—

(A) an estimate of the number of structures and population at risk and protected by the levee system that would be adversely impacted if the levee system fails or water levels exceed the height of any levee segment within the levee system (which may be the applicable estimate included in the levee database established under section 3303 of this title, if available);

(B) the number of times the non-Federal interest has received emergency flood-fighting or repair assistance under section 701n of this title for the levee system, and the total expenditures on postflood repairs over the life of the levee system;

(C) the functionality of the levee system with regard to higher precipitation levels, including due to changing climatic conditions and extreme weather events;

(D) the potential costs and benefits (including environmental benefits and implications for levee-protected communities) from modifying the applicable levee system to restore connections with adjacent floodplains; and

(E) available studies, information, literature, or data from relevant Federal, State, or local entities.

(2) Prioritization

In conducting an assessment under subsection (a), the Secretary shall, to the maximum extent practicable, prioritize levee systems—

(A) associated with an area that has been subject to flooding in two or more events in any 10-year period; and

(B) for which the non-Federal interest has received emergency flood-fighting or repair assistance under section 701n of this title with respect to such flood events.

(3) Scope

(d) Flood plain management services

(e) Report to Congress

(1) In general

(2) Inclusion

The Secretary shall include in each report submitted under paragraph (1)—

(A) identification of any levee system for which the Secretary has conducted an assessment under subsection (a);

(B) a description of any opportunities identified under such subsection for the modification of a levee system, including the potential benefits of such modification for the purposes identified under such subsection;

(C) information relating to the willingness and ability of each applicable non-Federal interest to participate in a modification to the relevant levee system, including by obtaining any real estate necessary for the modification; and

(D) a summary of the information considered and identified under subsection (c)(1).

(f) Incorporation of information

(g) Levee system defined

(h) Authorization of appropriations

(Pub. L. 117–263, div. H, title LXXXI, § 8121, Dec. 23, 2022, 136 Stat. 3712.)