II
111th CONGRESS
2d Session
S. 3908
IN THE SENATE OF THE UNITED STATES
September 29, 2010
Mr. McCain introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources
A BILL
To ensure that private property, public safety, and human life are protected from flood hazards that directly result from post-fire watershed conditions that are created by wildfires on Federal land.
Short title
This Act may be cited as
the Burn Area Flood Prevention Act of
2010
.
Purpose
The purpose of this Act is to ensure that private property, public safety, and human life are protected from flood hazards that directly result from post-fire watershed conditions that are created by wildfires on Federal land.
Definitions
In this Act:
Administrator
The term Administrator means the Administrator of the Federal Emergency Management Agency.
Affected area
The term affected area means the area that—
suffered damage as a result of wildfire or flash flooding beginning on June 20, 2010; and
is depicted on
the Arizona Division of Emergency Management map entitled Schultz Flood
#1 Operations Map
and dated August 3, 2010.
Federal land
The term Federal land means—
public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702));
units of the National Park System;
refuges of the National Wildlife Refuge System;
land held in trust by the United States for the benefit of Indian tribes or members of an Indian tribe; and
the National Forest System (as defined in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a))).
Secretary
The term Secretary means the Secretary of the Army, acting through the Chief of Engineers.
Task Force
The term Task Force means the Schultz Fire Flooding Area Task Force established by section 6(b).
Clarification of FLAME Wildfire Suppression Reserve Fund authority
Section 502(c) of the Federal Land
Assistance, Management, and Enhancement Act of 2009 (43 U.S.C. 1748a(c)) is
amended by inserting and burn area responses, including flood
prevention,
after events
.
Insurance coverage for private properties affected by flooding from Federal lands
Section 1306(c)(2)(B) of the National Flood Insurance Act of 1968 (42 U.S.C. 4013(c)(2)(B)) is amended—
in subparagraph (A), by striking
or
at the end;
in subparagraph (B), by striking the period
at the end and inserting ; or
; and
by adding at the end the following:
the initial purchase of flood insurance coverage on a determination by the Director that the waiting period should be waived for private property that is affected by flooding on Federal land affected by wildfire.
.
Schultz Fire flooding area assistance
Findings
Congress finds that—
on June 20, 2010, the Schultz wildfire began burning in the Coconino National Forest on Federal land that is located approximately 4 miles north of the City of Flagstaff, Arizona;
the Schultz Fire burned for 10 days, destroyed more than 15,000 acres of Forest Service land, and prompted the evacuation of approximately 400 homes before being 100 percent contained on June 30, 3010;
the Schultz Fire severely burned a large portion of the forest along the steep terrain on the east side of the San Francisco Peaks, leaving little ground vegetation to absorb and retain rainwater;
on July 6, 2010, the Forest Service Burn Area Emergency Response Team issued a hydrology specialist report that assessed post-fire watershed conditions and determined that there was a constant daily flooding threat to nearby communities from summer monsoon storms;
on July 7, 2010, community meetings were held urging residents to purchase flood insurance for the affected area, which had not previously been designated as a flood plain;
on July 20, 2010, after nearly 2 inches of rain fell in less than 1 hour, flash flooding occurred in the unincorporated communities downstream from the Schultz wildfire burn area in Coconino County;
widespread flooding and debris disrupted public infrastructure, damaged approximately 32 homes in the communities of Doney Park, Timberline, Hutchison Acres, and Wupatki Trails Estates, and killed a 12-year-old girl;
affected homeowners who purchased flood insurance were not eligible for coverage under the National Flood Insurance Program at the time of the loss because of the statutorily mandated 30-day waiting period before flood insurance coverage takes effect; and
because the Schultz Fire occurred on Forest Service land and has affected private property, public safety, and human life, the Federal Government is obligated to provide an appropriate level of disaster assistance, including Federal flood insurance to homeowners.
Schultz Fire Flooding Area Task Force
Establishment
There is established the Schultz Fire Flooding Area Task Force.
Membership
The Task Force shall consist of members who have expertise in Federal disaster management and assistance, flood prevention and mitigation, forestry, wildfire management and recovery, civil engineering, soil conservation, or watershed protection, including representatives from—
the Federal Emergency Management Agency;
the Corps of Engineers;
the Forest Service;
the Natural Resources Conservation Service;
the United States Geological Survey;
State and local governments;
community-based organizations and other interested parties; and
any other entity the Administrator determines to be appropriate.
Chair
The Administrator shall be the Chair of the Task Force.
Duties
For the affected area, the Task Force shall—
coordinate the efforts of the entities represented on the Task Force to implement interim and long-term flood protection systems; and
identify existing and potential—
funding;
technical assistance;
general investigations; and
construction of flood protection projects.
Report
Not later than 120 days after the date of enactment of this Act, the Administrator shall submit to the appropriate committees of Congress a report describing the findings and work of the Task Force.
Application of the Federal Advisory Committee Act
The Task Force shall not be considered an advisory committee under the Federal Advisory Committee Act (5 U.S.C. App.).
Flood protection system study
In general
Not later than 90 days after the date of enactment of this Act, the Administrator, in coordination with the Secretary and the Secretary of Agriculture, shall carry out a detailed study of the affected area to evaluate the potential of integrating projects and programs of the Corps of Engineers, the Federal Emergency Management Agency, and the Department of Agriculture into a comprehensive, long-term flood protection system for the affected area.
Inclusions
The study under paragraph (1) shall include—
an evaluation of existing hazardous flood conditions in the affected area;
identification of additional risks associated with flood events in the affected area that would be equal to or greater than the July 20, 2010, flood event; and
a sediment and geotechnical analysis that describes soil conditions and the risk level for landslides.
Disclosure of Equal Access to Justice Act payments
In general
Not later than 30 days after the date of enactment of this Act, the Attorney General shall submit to Congress a report on the amount of fees and other expenses awarded pursuant to section 2412 of title 28, United States Code, and section 504 of title 5, United States Code, in connection with the Jack Smith/Schultz Fuels Reduction Healthy Forest Restoration Project.
Inclusions
The report under paragraph (1) shall include—
the name of the party seeking the award of fees and other expenses;
the name of the administrative law judge in the case;
the disposition of the application, including any appeal of action taken on the application; and
the hourly rates of attorneys and expert witnesses awarded, as stated in the application.
Agency cooperation
The Secretary of Agriculture shall provide the Attorney General with such information as is necessary for the Attorney General to carry out this section.