§2317b — Title 33 Navigation and Navigable Waters | U.S. Code

Summary

Within 180 days after December 16, 2016, the Secretary must issue guidance that tells planners to count the full amount of possible in-kind credits from mitigation banks and in-lieu fee programs when doing water resources feasibility studies, if the bank or program’s approved service area covers where the project will have impacts. Credits count as a reasonable planning alternative only if the mitigation bank has an approved mitigation banking instrument, has done a functional analysis using the Army Corps’ certified habitat assessment model for the region, and the Secretary finds using those banks or programs gives reasonable assurance that legal mitigation duties will be met, including monitoring or showing mitigation success. It does not change other legal requirements or force the use of these banks or programs.

Title 33, §2317b

Navigation and Navigable Waters — Source: USLM XML via OLRC

(1)Not later than 180 days after December 16, 2016, the Secretary shall issue implementation guidance that provides for the consideration in water resources development feasibility studies of the entire amount of potential in-kind credits available at mitigation banks approved by the Secretary and in-lieu fee programs with an approved service area that includes the location of the projected impacts of the water resources development project.

(2)All potential mitigation bank and in-lieu fee credits that meet the criteria under paragraph (1) shall be considered a reasonable alternative for planning purposes if—

(A)the applicable mitigation bank—

(i)has an approved mitigation banking instrument; and

(ii)has completed a functional analysis of the potential credits using the approved Corps of Engineers certified habitat assessment model specific to the region; and

(B)the Secretary determines that the use of such banks or in-lieu fee programs provide reasonable assurance that the statutory (and regulatory) mitigation requirements for a water resources development project are met, including monitoring or demonstrating mitigation success.

(3)Nothing in this subsection—

(A)modifies or alters any requirement for a water resources development project to comply with applicable laws or regulations, including section 2283 of this title; or

(B)shall be construed as to limit mitigation alternatives or require the use of mitigation banks or in-lieu fee programs.

Notes & Related Subsidiaries

Editorial Notes

Codification Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

Amendments

2016—Pub. L. 114–322 amended section generally. Prior to amendment, section related to use of the mitigation bank for certain water resources projects that involved wetlands mitigation.

Statutory Notes and Related Subsidiaries

“Secretary” Defined Secretary means the Secretary of the Army, see section 2 of Pub. L. 110–114, set out as a note under section 2201 of this title.

§2317b Mitigation Banks and In-lieu Fee Arrangements