Sec. 2036. MITIGATION FOR FISH AND WILDLIFE AND WETLANDS LOSSES
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## SEC. 2036 MITIGATION FOR FISH AND WILDLIFE AND WETLANDS LOSSES ###
(a)Mitigation for Fish and Wildlife Losses Section 906(d) of the Water Resources Development Act of 1986 (33 U.S.C. 2283(d)) is amended— ####
(1)in the first sentence of paragraph
(1)by striking “to the Congress” and inserting “to Congress in any report, and shall not select a project alternative in any report,”; ####
(2)in the second sentence of paragraph
(1)by inserting “, and other habitat types are mitigated to not less than in-kind conditions” after “mitigated in-kind”; and ####
(3)by adding at the end the following: > > #### “(3) Mitigation requirements > > > ##### “(A) In general > > To mitigate losses to flood damage reduction capabilities and fish and wildlife resulting from a water resources project, the Secretary shall ensure that the mitigation plan for each water resources project complies with the mitigation standards and policies established pursuant to the regulatory programs administered by the Secretary. > > > ##### “(B) Inclusions > > A specific mitigation plan for a water resources project under paragraph
(1)shall include, at a minimum— > > > ###### “(i) > > a plan for monitoring the implementation and ecological success of each mitigation measure, including the cost and duration of any monitoring, and, to the extent practicable, a designation of the entities that will be responsible for the monitoring; > > > ###### “(ii) > > the criteria for ecological success by which the mitigation will be evaluated and determined to be successful based on replacement of lost functions and values of the habitat, including hydrologic and vegetative characteristics; > > > ###### “(iii) > > a description of the land and interests in land to be acquired for the mitigation plan and the basis for a determination that the land and interests are available for acquisition; > > > ###### “(iv) > > a description of— > > > ###### “(I) > > the types and amount of restoration activities to be conducted; > > > ###### “(II) > > the physical action to be undertaken to achieve the mitigation objectives within the watershed in which such losses occur and, in any case in which the mitigation will occur outside the watershed, a detailed explanation for undertaking the mitigation outside the watershed; and > > > ###### “(III) > > the functions and values that will result from the mitigation plan; and > > > ###### “(v) > > a contingency plan for taking corrective actions in cases in which monitoring demonstrates that mitigation measures are not achieving ecological success in accordance with criteria under clause (ii). > > > ##### “(C) Responsibility for monitoring > > In any case in which it is not practicable to identify in a mitigation plan for a water resources project the entity responsible for monitoring at the time of a final report of the Chief of Engineers or other final decision document for the project, such entity shall be identified in the partnership agreement entered into with the non-Federal interest under section 221 of Flood Control Act of 1970 (42 U.S.C. 1962d–5b). > > > #### “(4) Determination of success > > > ##### “(A) In general > > A mitigation plan under this subsection shall be considered to be successful at the time at which the criteria under paragraph (3)(B)(ii) are achieved under the plan, as determined by monitoring under paragraph (3)(B)(i). > > > ##### “(B) Consultation > > In determining whether a mitigation plan is successful under subparagraph (A), the Secretary shall consult annually with appropriate Federal agencies and each State in which the applicable project is located on at least the following: > > > ###### “(i) > > The ecological success of the mitigation as of the date on which the report is submitted. > > > ###### “(ii) > > The likelihood that the mitigation will achieve ecological success, as defined in the mitigation plan. > > > ###### “(iii) > > The projected timeline for achieving that success. > > > ###### “(iv) > > Any recommendations for improving the likelihood of success. > > > #### “(5) Monitoring > > Mitigation monitoring shall continue until it has been demonstrated that the mitigation has met the ecological success criteria.” > . ###
(b)Status Report ####
(1)In general Concurrent with the President's submission to Congress of the President's request for appropriations for the Civil Works Program for a fiscal year, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on the status of construction of projects that require mitigation under section 906 of the Water Resources Development Act of 1986 (33 U.S.C. 2283), the status of such mitigation, and the results of the consultation under subsection (d)(4)(B) of such section. ####
(2)Projects included The status report shall include the status of— #####
(A)all projects that are under construction as of the date of the report; #####
(B)all projects for which the President requests funding for the next fiscal year; and #####
(C)all projects that have undergone or completed construction, but have not completed the mitigation required under section 906 of the Water Resources Development Act of 1986. ####
(3)Information included In reporting the status of all projects included in the report, the Secretary shall— #####
(A)use a uniform methodology for determining the status of all projects included in the report; #####
(B)use a methodology that describes both a qualitative and quantitative status for all projects in the report; and #####
(C)provide specific dates for participation in the consultations required under section 906(d)(4)(B) of the Water Resources Development Act of 1986 (33 U.S.C. 2283(d)(4)(B)). ####
(4)Availability of information The Secretary shall make information contained in the status report available to the public, including on the Internet. ###
(c)Mitigation Banks and In-Lieu Fee Arrangements ####
(1)In general Not later than 180 days after the date of enactment of the Water Resources Development Act of 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 906 of the Water Resources Development Act of 1986 (33 U.S.C. 2283); or #####
(B)shall be construed as to limit mitigation alternatives or require the use of mitigation banks or in-lieu fee programs.
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- 42 USC 1962d–5b
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