---
kind: "section"
citation: "33 U.S.C. § 2317b"
title: "33"
title_heading: "Navigation and Navigable Waters"
number: "2317b"
heading: "Mitigation banks and in-lieu fee arrangements"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/33/2317b"
units:
  - "Chapter 36 — Water Resources Development"
  - "Subchapter V — General Provisions"
---

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

- (1) **In general—** Not later than 180 days after December 16, 2016, the [Secretary](/usc/33/426h–1.md?p=2) 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](/usc/33/426h–1.md?p=2) 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)](#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](/usc/33/426h–1.md?p=2) 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](/usc/33/2283.md); 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.)

## Notes

### 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—Pub. L. 114–322 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 section 2 of Pub. L. 110–114, set out as a note under section 2201 of this title.