33 USC § 2317b - Mitigation banks and in-lieu fee arrangements

---
identifier: "/us/usc/t33/s2317b"
source: "usc"
legal_status: "official_prima_facie"
title: "33 USC § 2317b - Mitigation banks and in-lieu fee arrangements"
title_number: 33
title_name: "NAVIGATION AND NAVIGABLE WATERS"
section_number: "2317b"
section_name: "Mitigation banks and in-lieu fee arrangements"
chapter_number: 36
chapter_name: "WATER RESOURCES DEVELOPMENT"
subchapter_number: "V"
subchapter_name: "GENERAL PROVISIONS"
positive_law: false
currency: "119-84"
last_updated: "2026-04-17"
format_version: "1.1.0"
generator: "[email protected]"
source_credit: "(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.)"
---


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

**(1)** **In general** December 16, 2016

Not later than 180 days after , 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.

---

**Source Credit**: (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.)

## Editorial Notes

### Codification

Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Resources Development Act of 1986 which comprises this chapter.

### Amendments

2016— amended section generally. Prior to amendment, section related to use of the mitigation bank for certain water resources projects that involved wetlands mitigation.

## Statutory Notes and Related Subsidiaries

### “Secretary” Defined

Secretary means the Secretary of the Army, see , set out as a note under .