Sec. 1040. FISH AND WILDLIFE MITIGATION
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## SEC. 1040 FISH AND WILDLIFE MITIGATION ###
(a)In General Section 906 of the Water Resources Development Act of 1986 (33 U.S.C. 2283) is amended— ####
(1)in subsection (d)— #####
(A)in paragraph (1)— ######
(i)in the first sentence— ######
(I)by inserting “for damages to ecological resources, including terrestrial and aquatic resources, and” after “mitigate”; ######
(II)by inserting “ecological resources and” after “impact on”; and ######
(III)by inserting “without the implementation of mitigation measures” before the period; and ######
(ii)by inserting before the last sentence the following: “If the Secretary determines that mitigation to in-kind conditions is not possible, the Secretary shall identify in the report the basis for that determination and the mitigation measures that will be implemented to meet the requirements of this section and the goals of section 307(a)(1) of the Water Resources Development Act of 1990 (33 U.S.C. 2317(a)(1)).”; #####
(B)in paragraph (2)— ######
(i)in the heading, by striking “Design” and inserting “Selection and design”; ######
(ii)by inserting “select and” after “shall”; and ######
(iii)by inserting “using a watershed approach” after “projects”; and #####
(C)in paragraph (3)— ######
(i)in subparagraph (A), by inserting “, at a minimum,” after “complies with”; and ######
(ii)in subparagraph (B)— ######
(I)by striking clause (iii); ######
(II)by redesignating clauses
(iv)and
(v)as clauses
(v)and (vi), respectively; and ######
(III)by inserting after clause
(ii)the following: > > ###### “(iii) > > for projects where mitigation will be carried out by the Secretary— > > > ###### “(I) > > a description of the land and interest in land to be acquired for the mitigation plan; > > > ###### “(II) > > the basis for a determination that the land and interests are available for acquisition; and > > > ###### “(III) > > a determination that the proposed interest sought does not exceed the minimum interest in land necessary to meet the mitigation requirements for the project; > > > ###### “(iv) > > for projects where mitigation will be carried out through a third party mitigation arrangement in accordance with subsection (i)— > > > ###### “(I) > > a description of the third party mitigation instrument to be used; and > > > ###### “(II) > > the basis for a determination that the mitigation instrument can meet the mitigation requirements for the project;” > ; and ####
(2)by adding at the end the following: > > ### “(h) Programmatic Mitigation Plans > > > #### “(1) In general > > The Secretary may develop programmatic mitigation plans to address the potential impacts to ecological resources, fish, and wildlife associated with existing or future Federal water resources development projects. > > > #### “(2) Use of mitigation plans > > The Secretary shall, to the maximum extent practicable, use programmatic mitigation plans developed in accordance with this subsection to guide the development of a mitigation plan under subsection (d). > > > #### “(3) Non-federal plans > > The Secretary shall, to the maximum extent practicable and subject to all conditions of this subsection, use programmatic environmental plans developed by a State, a body politic of the State, which derives its powers from a State constitution, a government entity created by State legislation, or a local government, that meet the requirements of this subsection to address the potential environmental impacts of existing or future water resources development projects. > > > #### “(4) Scope > > A programmatic mitigation plan developed by the Secretary or an entity described in paragraph
(3)to address potential impacts of existing or future water resources development projects shall, to the maximum extent practicable— > > > ##### “(A) > > be developed on a regional, ecosystem, watershed, or statewide scale; > > > ##### “(B) > > include specific goals for aquatic resource and fish and wildlife habitat restoration, establishment, enhancement, or preservation; > > > ##### “(C) > > identify priority areas for aquatic resource and fish and wildlife habitat protection or restoration; > > > ##### “(D) > > encompass multiple environmental resources within a defined geographical area or focus on a specific resource, such as aquatic resources or wildlife habitat; and > > > ##### “(E) > > address impacts from all projects in a defined geographical area or focus on a specific type of project. > > > #### “(5) Consultation > > The scope of the plan shall be determined by the Secretary or an entity described in paragraph (3), as appropriate, in consultation with the agency with jurisdiction over the resources being addressed in the environmental mitigation plan. > > > #### “(6) Contents > > A programmatic environmental mitigation plan may include— > > > ##### “(A) > > an assessment of the condition of environmental resources in the geographical area covered by the plan, including an assessment of recent trends and any potential threats to those resources; > > > ##### “(B) > > an assessment of potential opportunities to improve the overall quality of environmental resources in the geographical area covered by the plan through strategic mitigation for impacts of water resources development projects; > > > ##### “(C) > > standard measures for mitigating certain types of impacts; > > > ##### “(D) > > parameters for determining appropriate mitigation for certain types of impacts, such as mitigation ratios or criteria for determining appropriate mitigation sites; > > > ##### “(E) > > adaptive management procedures, such as protocols that involve monitoring predicted impacts over time and adjusting mitigation measures in response to information gathered through the monitoring; > > > ##### “(F) > > acknowledgment of specific statutory or regulatory requirements that must be satisfied when determining appropriate mitigation for certain types of resources; and > > > ##### “(G) > > any offsetting benefits of self-mitigating projects, such as ecosystem or resource restoration and protection. > > > #### “(7) Process > > Before adopting a programmatic environmental mitigation plan for use under this subsection, the Secretary shall— > > > ##### “(A) > > for a plan developed by the Secretary— > > > ###### “(i) > > make a draft of the plan available for review and comment by applicable environmental resource agencies and the public; and > > > ###### “(ii) > > consider any comments received from those agencies and the public on the draft plan; and > > > ##### “(B) > > for a plan developed under paragraph (3), determine, not later than 180 days after receiving the plan, whether the plan meets the requirements of paragraphs
(4)through
(6)and was made available for public comment. > > > #### “(8) Integration with other plans > > A programmatic environmental mitigation plan may be integrated with other plans, including watershed plans, ecosystem plans, species recovery plans, growth management plans, and land use plans. > > > #### “(9) Consideration in project development and permitting > > If a programmatic environmental mitigation plan has been developed under this subsection, any Federal agency responsible for environmental reviews, permits, or approvals for a water resources development project may use the recommendations in that programmatic environmental mitigation plan when carrying out the responsibilities of the agency under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). > > > #### “(10) Preservation of existing authorities > > Nothing in this subsection limits the use of programmatic approaches to reviews under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). > > > #### “(11) Mitigation for existing projects > > Nothing in this subsection requires the Secretary to undertake additional mitigation for existing projects for which mitigation has already been initiated. > > > ### “(i) Third-party Mitigation Arrangements > > > #### “(1) Eligible activities > > In accordance with all applicable Federal laws (including regulations), mitigation efforts carried out under this section may include— > > > ##### “(A) > > participation in mitigation banking or other third-party mitigation arrangements, such as— > > > ###### “(i) > > the purchase of credits from commercial or State, regional, or local agency-sponsored mitigation banks; and > > > ###### “(ii) > > the purchase of credits from in-lieu fee mitigation programs; and > > > ##### “(B) > > contributions to statewide and regional efforts to conserve, restore, enhance, and create natural habitats and wetlands if the Secretary determines that the contributions will ensure that the mitigation requirements of this section and the goals of section 307(a)(1) of the Water Resources Development Act of 1990 (33 U.S.C. 2317(a)(1)) will be met. > > > #### “(2) Inclusion of other activities > > The banks, programs, and efforts described in paragraph
(1)include any banks, programs, and efforts developed in accordance with applicable law (including regulations). > > > #### “(3) Terms and conditions > > In carrying out natural habitat and wetlands mitigation efforts under this section, contributions to the mitigation effort may— > > > ##### “(A) > > take place concurrent with, or in advance of, the commitment of funding to a project; and > > > ##### “(B) > > occur in advance of project construction only if the efforts are consistent with all applicable requirements of Federal law (including regulations) and water resources development planning processes. > > > #### “(4) Preference > > At the request of the non-Federal project sponsor, preference may be given, to the maximum extent practicable, to mitigating an environmental impact through the use of a mitigation bank, in-lieu fee, or other third-party mitigation arrangement, if the use of credits from the mitigation bank or in-lieu fee, or the other third-party mitigation arrangement for the project has been approved by the applicable Federal agency.” > . ###
(b)Application **[**[33 U.S.C. 2283 note](/us/usc/t33/s2283)**]** The amendments made by subsection
(a)shall not apply to a project for which a mitigation plan has been completed as of the date of enactment of this Act. ###
(c)Technical Assistance **[**[33 U.S.C. 2283c](/us/usc/t33/s2283c)**]** ####
(1)In general The Secretary may provide technical assistance to States and local governments to establish third-party mitigation instruments, including mitigation banks and in-lieu fee programs, that will help to target mitigation payments to high-priority ecosystem restoration actions. ####
(2)Requirements In providing technical assistance under this subsection, the Secretary shall give priority to States and local governments that have developed State, regional, or watershed-based plans identifying priority restoration actions. ####
(3)Mitigation instruments The Secretary shall seek to ensure any technical assistance provided under this subsection will support the establishment of mitigation instruments that will result in restoration of high-priority areas identified in the plans under paragraph (2).
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