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

• (1) 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) 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) 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.