33 U.S.C. § 2317b

Mitigation banks and in-lieu fee arrangements

(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)

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.

( Pub. L. 110–114, title II, § 2036(c) , Nov. 8, 2007 , 121 Stat. 1094 ; Pub. L. 114–322, title I, § 1163 , Dec. 16, 2016 , 130 Stat. 1669 .)