33 U.S.C. § 2317b: Mitigation banks and…

Summary

Within 180 days after December 16, 2016, the Secretary must issue guidance that tells water project feasibility studies to consider the full amount of in-kind credits from mitigation banks and in-lieu fee programs when the bank or program’s approved service area includes where the project will have impacts. Those credits count as a reasonable planning option if the mitigation bank has an approved banking instrument, has done a functional analysis using the region’s Corps-certified habitat assessment model, and the Secretary finds using the bank or program gives reasonable assurance the statutory and regulatory mitigation requirements (including monitoring or showing success) will be met. This does not change other legal duties, including section 2283, and it does not force or limit use of mitigation banks or in-lieu fee programs.

Title 33, §2317b

Navigation and Navigable Waters, Source: USLM XML via OLRC

(1)In general

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)Requirements

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)Effect

Nothing in this subsection

(A)

(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