§ 2317b. Mitigation banks and in-lieu fee arrangements

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(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.)

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