HOUSE DOCKET, NO. 3103        FILED ON: 2/18/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 983

The Commonwealth of Massachusetts

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PRESENTED BY:

Sarah K. Peake

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act establishing a Massachusetts flood risk protection program.

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PETITION OF:

HOUSE DOCKET, NO. 3103        FILED ON: 2/18/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 983

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act establishing a Massachusetts flood risk protection program.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Preamble

Climate change is causing significant increases in sea level, floods and storms, and threatening the environment, human health and safety. Becoming resilient to these impacts depends on the commonwealth’s ability to visualize and adapt to flood risk today and into the future. The statewide flood risk protection program is voluntary and creates and implements a long term strategy to facilitate the acquisition of property from willing property owners at risk of being inundated by floods, and that suffer, or are projected to suffer, repetitive or substantial flood damage. The program relies on nature-based solutions to protect communities from climate impacts today and in the future; prioritizes the allocation of benefits to low-income residents and environmental justice populations; and creates a new trust fund intended to be funded using state funds and to leverage local, federal and private funds and insurance programs with the same or similar purposes.

Section 1. Flood Risk Protection Program 

Notwithstanding any special or general law to the contrary, the secretaries of the executive office of energy and environmental affairs, executive office of housing and economic development, and executive office of public safety and security shall develop and administer a statewide flood risk protection program. The program shall acquire properties which are, or are projected to be, repetitively or substantially damaged by floods. Funds deposited in the flood risk protection trust fund shall cover the acquisition of property from willing owners; structure demolition; relocation of impacted property owners, tenants and lessees; coastal, floodplain and wetland restoration; and creation of open space for conservation and recreational purposes to be protected in perpetuity.

Section 2. Definitions

As used in this chapter the following words shall have the following meanings:

“Contiguous properties”, two or more adjoining parcels.

“Cluster properties”, two or more properties that, although non-contiguous, are within proximity.

“Eligible entity”, an entity with expertise in land conservation and restoration, including a state agency, nonprofit land trust, nonprofit conservation organization, local governmental body or community development corporation. For the purposes of this chapter, a local governmental body includes a town, city, county, district, commission, board and regional governmental unit.

"Environmental justice population", as defined in Section 62 of chapter 30 of the general laws.

“Flood risk”, property at risk of being inundated by water or mudflow and that currently suffers or is projected to suffer repetitive or substantial flood damage as determined by the best available climate, flooding, erosion, and sea level rise data and modeling. 

“Nature-based solutions”, as defined in section 1 of chapter 21N of the general laws.

Section 3. Program Eligibility

The following shall be eligible under this program:

(a)Property that is a flood risk and used for residential, nonprofit, or small business purposes, as defined by section 1 of chapter 40W of the general laws, including the buildings and structures thereon.

(b)Projects that receive, or do not receive, funding from the federal emergency management agency.

Section 4. Program Requirements

The following shall be requirements under this chapter:

(a)This program is voluntary and so property shall only be acquired from a willing seller or sellers.

(b)Property shall be acquired at fair market value of land, buildings and structures. Damaged property shall be valued at pre-loss fair market value. The process for calculating fair market value and pre-loss fair market value shall be defined through regulation.

(c)No less than 75 percent of program funds shall be reserved for eligible property owners that are (i) low-income, defined as a household income 65 percent of the state median income or less, or (ii) located within an environmental justice population.

(d)Acquired properties shall be conserved in perpetuity and maintained as open space for conservation and recreation purposes by an eligible entity or entities. Public access shall be required unless access is prohibited under state or local law.

(e)New and permanent engineered structures and other improvements shall not be erected on any property acquired under this chapter unless such structures or improvements are critical to complete a nature-based solutions project, are open on all sides (restrooms excepted), can be easily moved, and are functionally related to open space use. These restrictions, along with the right to enforce the same, are deemed to be covenants running with the land in perpetuity and are binding on subsequent successors, grantees, or assigns.

(f)Any conveyance is subject to rights outstanding in third parties for existing easements.

Section 5. Statewide Flood Risk Assessment and Standards

The secretary of the executive office of energy and environmental affairs shall use the best available climate data and models, and sea level rise, tidal, coastal, riverine flooding data, and models, to assess the current and future flood risk to property statewide. To assess current and future flood risk, the secretary shall solicit input from the executive office of housing and economic development and the executive office of public safety and security; and shall consult with federal agency experts and scientific, technical and insurance experts.

Following the development of each statewide assessment, the secretary shall create and update standards used to evaluate properties that may be acquired from a willing seller or sellers under this chapter. The standards shall be used to set priorities based on the following factors:

(1)Properties that are a flood risk.

(2)Properties owned by low-income property owners and properties within an environmental justice population.

(3)Clustered properties or contiguous properties.

(4)Projects that will further protect the public health and safety of first responders, neighbors and local communities.

(5)Projects that protect, restore, and enhance wildlife habitat, fisheries, agricultural lands, drinking water supplies, ecosystem services, and that offer conservation and recreation opportunities for public use.

The statewide standards shall be noticed for public comment no later than 180 days after enactment.

A statewide flood risk assessment shall be updated every five years and include a statewide evaluation of the program’s impact on flood risk and benefits to the public. The secretary shall provide a detailed report on each updated assessment to the joint committee on environment, natural resources and agriculture every five years, and shall make every updated assessment available for public view. 

Section 6. Roles and Responsibilities

(1)The secretaries of the executive office of energy and environmental affairs, executive office of housing and economic development, and executive office of public safety and security shall divide the following roles and responsibilities depending on agency expertise:

(a)Develop an outreach, education and awareness program for local governmental bodies and owners, tenants and lessees of properties that are a flood risk.

(b)Provide technical assistance to property owners interested in selling their property.

(c)Establish procedures to support property owners, tenants, and lessees in need of relocation assistance.

(d)Facilitate relationships between a property owner and eligible entities when possible.

(e)Develop a pre-approval acquisition program that includes partnerships with eligible entities to promote efficient and timely property transfers, minimize hardships on property owners, and discourage repetitive rehabilitation, repairing and rebuilding of flood risk properties. 

(2)The executive office of energy and environmental affairs and its agencies may acquire and conserve flood risk property on behalf of the commonwealth, when in the commonwealth’s interest, and when there is no other eligible entity available to acquire an owner’s property.

Section 7. Flood Risk Protection Program Trust Fund

(1)The secretary of energy and environmental affairs shall create and administer the flood risk protection program trust fund into which shall be deposited: (a) any revenues or other financing sources directed to the fund by appropriation; (b) bond revenues authorized by the general court and designated to be credited to the fund; (c) any income derived from the investment credited to the fund; (d) funds from public or private sources including, but not limited to, gifts, federal or private grants, donations, rebates and settlements received by the commonwealth that are designated to be credited to the fund; and (e) all other amounts credited or transferred into the fund from any other source.

(2)Amounts credited to the fund may be used, without further appropriation, to provide grants to an eligible entity, as defined by this chapter, costs associated with implementation of the flood risk protection program including upfront costs or reimbursement for (a) the acquisition of property; (b) fees for necessary appraisals, title searches, title insurance, property inspections, and surveys, environmental assessments and other necessary site-specific due diligence; (c) the controlled demolition, removal and disposal of buildings and structures. Buildings and structures deemed historically significant will be documented and options for relocation or deconstruction shall be explored before they are demolished. Archaeological resources will be documented and saved under the supervision of a professional archaeologist, and if applicable, in consultation with a tribal representative; (d) relocation assistance for homeowners, tenants and lessees; and (e) site restoration and stabilization including nature-based solutions that enhance climate resiliency and restore and conserve fish and wildlife habitat.

(3)The secretary shall assess all funding secured from other public and private sources for a project before awarding a grant from the fund for that project, to ensure that the total amount paid from the fund does not exceed the total value of the project.

(4)The amounts expended from the fund during any fiscal year for the costs of employees shall not exceed 5 per cent of total funds expended from the fund in that fiscal year.

(5)Monies deposited into the flood risk protection program trust fund that are not expended at the end of each fiscal year shall not revert to the general fund and shall be available for expenditure in the subsequent fiscal year.

(6)Annually, and not later than December 1 of each year, the secretary of energy and environmental affairs shall report on the activities of the fund to the clerks of the house of representatives and the senate and to the house and senate committees on ways and means. The report shall include an accounting of expenditures made from the fund with a description of the purpose of each expenditure, an accounting of amounts credited to the fund and any unexpended balance remaining in the fund.

Section 8.  Regulations

The secretaries of the executive office of energy and environmental affairs, executive office of housing and economic development, and executive office of public safety and security shall promulgate rules, regulations and guidelines for the administration and oversight of this chapter no later than 180 days after enactment.

Section 9. Interagency Coordination

The secretaries of the executive office of energy and environmental affairs, executive office of housing and economic development, and executive office of safety and security shall enlist, engage, collaborate and coordinate with external experts and stakeholders regarding the creation and implementation of the flood risk protection program. Such experts and stakeholders shall include but are not limited to the environmental justice advisory council established by section 62L of chapter 30 of the general laws, the global warming solutions act implementation advisory committee, and homeowners, tenants, insurers, and municipal officials.