33 U.S.C. § 2283 — Fish and wildlife mitigation

Page 777 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2283 request of the non-Federal interest for the appli- cable project, that the Secretary credit toward the non-Federal share of the cost of the project the value of economic, hydraulic, and hydrologic models required for the project that are devel- oped by the non-Federal interest in accordance with any policies and guidelines applicable to the relevant partnership agreement pursuant to such section. (g) Review The Secretary shall review economic, hydrau- lic, and hydrologic models developed under this section in the same manner as any such models developed under any other authority of the Sec- retary. (h) Definitions In this section: (1) Compound flooding The term ‘‘compound flooding’’ means a flooding event in which two or more flood drivers, such as coastal storm surge-driven flooding and inland rainfall-driven flooding, occur simultaneously or in close succession and the potential adverse effects of the com- bined flood drivers may be greater than that of the individual flood driver components. (2) Economic The term ‘‘economic’’, as used in reference to models, means relating to the evaluation of benefits and cost attributable to a project for an economic justification under section 1962–2 of title 42. (Pub. L. 118–272, div. A, title I, § 1131, Jan. 4, 2025, 138 Stat. 3020.) Editorial Notes CODIFICATION Section was enacted as part of the Water Resources Development Act of 2024, and also as part of the Thom- as R. Carper Water Resources Development Act of 2024, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. Statutory Notes and Related Subsidiaries ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 1002 of div. A of Pub. L. 118–272, set out as a note under section 2201 of this title. § 2283. Fish and wildlife mitigation (a) Steps to be taken prior to or concurrently with construction (1) In the case of any water resources project which is authorized to be constructed by the Secretary before, on, or after November 17, 1986, construction of which has not commenced as of November 17, 1986, and which necessitates the mitigation of fish and wildlife losses, including the acquisition of lands or interests in lands to mitigate losses to fish and wildlife, as a result of such project, such mitigation, including acquisi- tion of the lands or interests— (A) shall be undertaken or acquired before any construction of the project (other than such acquisition) commences, or (B) shall be undertaken or acquired concur- rently with lands and interests in lands for project purposes (other than mitigation of fish and wildlife losses), whichever the Secretary determines is appro- priate, except that any physical construction re- quired for the purposes of mitigation may be un- dertaken concurrently with the physical con- struction of such project. (2) For the purposes of this subsection, any project authorized before November 17, 1986, on which more than 50 percent of the land needed for the project, exclusive of mitigation lands, has been acquired shall be deemed to have com- menced construction under this subsection. (b) Acquisition of lands or interests in lands for mitigation (1) After consultation with appropriate Fed- eral and non-Federal agencies, the Secretary is authorized to mitigate damages to fish and wild- life resulting from any water resources project under his jurisdiction, whether completed, under construction, or to be constructed. Such mitiga- tion may include the acquisition of lands, or in- terests therein, except that— (A) acquisition under this paragraph shall not be by condemnation in the case of projects completed as of November 17, 1986, or on which at least 10 percent of the physical construc- tion on the project has been completed as of November 17, 1986; and (B) acquisition of water, or interests therein, under this paragraph, shall not be by con- demnation. The Secretary, shall, under the terms of this paragraph, obligate no more than $30,000,000 in any fiscal year. With respect to any water re- sources project, the authority under this sub- section shall not apply to measures that cost more than $7,500,000 or 10 percent of the cost of the project, whichever is greater. (2) Whenever, after his review, the Secretary determines that such mitigation features under this subsection are likely to require condemna- tion under subparagraph (A) or (B) of paragraph (1) of this subsection, the Secretary shall trans- mit to Congress a report on such proposed modi- fication, together with his recommendations. (c) Allocation of mitigation costs Costs incurred after November 17, 1986, includ- ing lands, easements, rights-of-way, and reloca- tions, for implementation and operation, main- tenance, and rehabilitation to mitigate damages to fish and wildlife shall be allocated among au- thorized project purposes in accordance with ap- plicable cost allocation procedures, and shall be subject to cost sharing or reimbursement to the same extent as such other project costs are shared or reimbursed, except that when such costs are covered by contracts entered into prior to November 17, 1986, such costs shall not be re- covered without the consent of the non-Federal interests or until such contracts are complied with or renegotiated. (d) Mitigation plans as part of project proposals (1) In general After November 17, 1986, the Secretary shall not submit any proposal for the authorization of any water resources project to Congress in any report, and shall not select a project al- Page 778 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2283 ternative in any report, unless such report contains (A) a recommendation with a specific plan to mitigate for damages to ecological re- sources, including terrestrial and aquatic re- sources, and fish and wildlife losses created by such project, or (B) a determination by the Secretary that such project will have neg- ligible adverse impact on ecological resources and fish and wildlife without the implementa- tion of mitigation measures. Specific mitiga- tion plans shall ensure that impacts to bot- tomland hardwood forests are mitigated in- kind, and other habitat types are mitigated to not less than in-kind conditions, to the extent possible. If the Secretary determines that mitigation to in-kind conditions is not pos- sible, the Secretary shall identify in the re- port the basis for that determination and the mitigation measures that will be implemented to meet the requirements of this section and the goals of section 2317(a)(1) of this title. In carrying out this subsection, the Secretary shall consult with appropriate Federal and non-Federal agencies. (2) Selection and design of mitigation projects The Secretary shall select and design miti- gation projects using a watershed approach to reflect contemporary understanding of the science of mitigating the adverse environ- mental impacts of water resources projects. (3) Mitigation requirements (A) In general To mitigate losses to flood damage reduc- tion capabilities and fish and wildlife result- ing from a water resources project, the Sec- retary shall ensure that the mitigation plan for each water resources project complies with, at a minimum, the mitigation stand- ards and policies established pursuant to the regulatory programs administered by the Secretary. (B) Inclusions A specific mitigation plan for a water re- sources project under paragraph (1) shall in- clude, at a minimum— (i) a plan for monitoring the implemen- tation and ecological success of each miti- gation measure, including the cost and du- ration of any monitoring, and, to the ex- tent practicable, a designation of the enti- ties that will be responsible for the moni- toring; (ii) the criteria for ecological success by which the mitigation will be evaluated and determined to be successful based on re- placement of lost functions and values of the habitat, including hydrologic and veg- etative characteristics; (iii) for projects where mitigation will be carried out by the Secretary— (I) a description of the land and inter- est in land to be acquired for the mitiga- tion plan; (II) the basis for a determination that the land and interests are available for acquisition; and (III) a determination that the proposed interest sought does not exceed the min- imum interest in land necessary to meet the mitigation requirements for the project; (iv) for projects where mitigation will be carried out through a third party mitiga- tion arrangement in accordance with sub- section (i)— (I) a description of the third party mitigation instrument to be used; and (II) the basis for a determination that the mitigation instrument can meet the mitigation requirements for the project; (v) a description of— (I) the types and amount of restoration activities to be conducted; (II) the physical action to be under- taken to achieve the mitigation objec- tives within the watershed in which such losses occur and, in any case in which the mitigation will occur outside the wa- tershed, a detailed explanation for un- dertaking the mitigation outside the wa- tershed; and (III) the functions and values that will result from the mitigation plan; and (vi) a contingency plan for taking cor- rective actions in cases in which moni- toring demonstrates that mitigation meas- ures 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 1962d–5b of title 42. (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 de- termined 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 appro- priate Federal agencies and each State in which the applicable project is located on at least the following: (i) The ecological success of the mitiga- tion 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. Page 779 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2283 (e) First enhancement costs as Federal costs In those cases when the Secretary, as part of any report to Congress, recommends activities to enhance fish and wildlife resources, the first costs of such enhancement shall be a Federal cost when— (1) such enhancement provides benefits that are determined to be national, including bene- fits to species that are identified by the Na- tional Marine Fisheries Service as of national economic importance, species that are subject to treaties or international convention to which the United States is a party, and anad- romous fish; (2) such enhancement is designed to benefit species that have been listed as threatened or endangered by the Secretary of the Interior under the terms of the Endangered Species Act, as amended (16 U.S.C. 1531, et seq.), or (3) such activities are located on lands man- aged as a national wildlife refuge. When benefits of enhancement do not qualify under the preceding sentence, 25 percent of such first costs of enhancement shall be provided by non-Federal interests under a schedule of reim- bursement determined by the Secretary. Not more than 80 percent of the non-Federal share of such first costs may be satisfied through in-kind contributions, including facilities, supplies, and services that are necessary to carry out the en- hancement project. The non-Federal share of op- eration, maintenance, and rehabilitation of ac- tivities to enhance fish and wildlife resources shall be 25 percent. (f) National benefits from enhancement meas- ures for Atchafalaya Floodway System and Mississippi Delta Region projects Fish and wildlife enhancement measures car- ried out as part of the project for Atchafalaya Floodway System, Louisiana, authorized by Public Law 99–88, and the project for Mississippi Delta Region, Louisiana, authorized by the Flood Control Act of 1965, shall be considered to provide benefits that are national for purposes of this section. (g) Fish and Wildlife Coordination Act sup- plementation The provisions of subsections (a), (b), and (d) shall be deemed to supplement the responsi- bility and authority of the Secretary pursuant to the Fish and Wildlife Coordination Act [16 U.S.C. 661 et seq.], and nothing in this section is intended to affect that Act. (h) Programmatic mitigation plans (1) In general The Secretary may develop programmatic mitigation plans to address the potential im- pacts to ecological resources, fish, and wildlife associated with existing or future Federal water resources development projects. (2) Use of mitigation plans The Secretary shall, to the maximum extent practicable, use programmatic mitigation plans developed in accordance with this sub- section to guide the development of a mitiga- tion plan under subsection (d). (3) Non-Federal plans The Secretary shall, to the maximum extent practicable and subject to all conditions of this subsection, use programmatic environ- mental plans developed by a State, a body politic of the State, which derives its powers from a State constitution, a government enti- ty created by State legislation, or a local gov- ernment, that meet the requirements of this subsection to address the potential environ- mental impacts of existing or future water re- sources development projects. (4) Scope A programmatic mitigation plan developed by the Secretary or an entity described in paragraph (3) to address potential impacts of existing or future water resources develop- ment projects shall, to the maximum extent practicable— (A) be developed on a regional, ecosystem, watershed, or statewide scale; (B) include specific goals for aquatic re- source and fish and wildlife habitat restora- tion, establishment, enhancement, or preser- vation; (C) identify priority areas for aquatic re- source and fish and wildlife habitat protec- tion or restoration; (D) include measures to protect or restore habitat connectivity; (E) encompass multiple environmental re- sources within a defined geographical area or focus on a specific resource, such as aquatic resources or wildlife habitat; and (F) address impacts from all projects in a defined geographical area or focus on a spe- cific type of project. (5) Consultation The scope of the plan shall be determined by the Secretary or an entity described in para- graph (3), as appropriate, in consultation with the agency with jurisdiction over the re- sources being addressed in the environmental mitigation plan. (6) Contents A programmatic environmental mitigation plan may include— (A) an assessment of the condition of envi- ronmental resources in the geographical area covered by the plan, including an as- sessment of recent trends and any potential threats to those resources; (B) an assessment of potential opportuni- ties to improve the overall quality of envi- ronmental resources in the geographical area covered by the plan through strategic mitigation for impacts of water resources development projects; (C) standard measures for mitigating cer- tain types of impacts, including impacts to habitat connectivity; (D) parameters for determining appro- priate mitigation for certain types of im- pacts, such as mitigation ratios or criteria for determining appropriate mitigation sites; (E) adaptive management procedures, such as protocols that involve monitoring pre- dicted impacts over time and adjusting miti- gation measures in response to information gathered through the monitoring; (F) acknowledgment of specific statutory or regulatory requirements that must be Page 780 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2283 satisfied when determining appropriate miti- gation for certain types of resources; and (G) any offsetting benefits of self-miti- gating projects, such as ecosystem or re- source restoration and protection. (7) Process Before adopting a programmatic environ- mental mitigation plan for use under this sub- section, the Secretary shall— (A) for a plan developed by the Secretary— (i) make a draft of the plan available for review and comment by applicable envi- ronmental resource agencies and the pub- lic; and (ii) consider any comments received from those agencies and the public on the draft plan; and (B) for a plan developed under paragraph (3), determine, not later than 180 days after receiving the plan, whether the plan meets the requirements of paragraphs (4) through (6) and was made available for public com- ment. (8) Integration with other plans A programmatic environmental mitigation plan may be integrated with other plans, in- cluding watershed plans, ecosystem plans, spe- cies recovery plans, growth management plans, and land use plans. (9) Consideration in project development and permitting If a programmatic environmental mitigation plan has been developed under this subsection, any Federal agency responsible for environ- mental reviews, permits, or approvals for a water resources development project may use the recommendations in that programmatic environmental mitigation plan when carrying out the responsibilities of the agency under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (10) Preservation of existing authorities Nothing in this subsection limits the use of programmatic approaches to reviews under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (11) Effect Nothing in this subsection— (A) requires the Secretary to undertake additional mitigation for existing projects for which mitigation has already been initi- ated, including the addition of fish passage to an existing water resources development project; or (B) affects the mitigation responsibilities of the Secretary under any other provision of law. (i) Third-party mitigation arrangements (1) Eligible activities In accordance with all applicable Federal laws (including regulations), mitigation ef- forts carried out under this section may in- clude— (A) participation in mitigation banking or other third-party mitigation arrangements, such as— (i) the purchase of credits from commer- cial or State, regional, or local agency- sponsored mitigation banks; and (ii) the purchase of credits from in-lieu fee mitigation programs; and (B) contributions to statewide and re- gional efforts to conserve, restore, enhance, and create natural habitats and wetlands if the Secretary determines that the contribu- tions will ensure that the mitigation re- quirements of this section and the goals of section 2317(a)(1) of this title will be met. (2) Inclusion of other activities The banks, programs, and efforts described in paragraph (1) include any banks, programs, and efforts developed in accordance with appli- cable law (including regulations). (3) Terms and conditions In carrying out natural habitat and wetlands mitigation efforts under this section, con- tributions to the mitigation effort may— (A) take place concurrent with, or in ad- vance of, the commitment of funding to a project; and (B) occur in advance of project construc- tion only if the efforts are consistent with all applicable requirements of Federal law (including regulations) and water resources development planning processes. (4) Preference At the request of the non-Federal project sponsor, preference may be given, to the max- imum extent practicable, to mitigating an en- vironmental impact through the use of a miti- gation bank, in-lieu fee, or other third-party mitigation arrangement, if the use of credits from the mitigation bank or in-lieu fee, or the other third-party mitigation arrangement for the project has been approved by the applica- ble Federal agency. (j) Use of funds (1) In general The Secretary, with the consent of the appli- cable non-Federal interest, may use funds made available for preconstruction engineer- ing and design after authorization of project construction to satisfy mitigation require- ments through third-party arrangements or to acquire interests in land necessary for meet- ing mitigation requirements under this sec- tion. (2) Notification Prior to the expenditure of any funds for a project pursuant to paragraph (1), the Sec- retary shall notify the Committee on Appro- priations and the Committee on Transpor- tation and Infrastructure of the House of Rep- resentatives and the Committee on Appropria- tions and the Committee on Environment and Public Works of the Senate. (k) Measures The Secretary shall consult with interested members of the public, the Director of the United States Fish and Wildlife Service, the As- sistant Administrator for Fisheries of the Na- tional Oceanic and Atmospheric Administration, Page 781 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2283a States, including State fish and game depart- ments, and interested local governments to identify standard measures under subsection (h)(6)(C) that reflect the best available scientific information for evaluating habitat connectivity. (Pub. L. 99–662, title IX, § 906, Nov. 17, 1986, 100 Stat. 4186; Pub. L. 102–580, title III, § 333(a), Oct. 31, 1992, 106 Stat. 4852; Pub. L. 106–53, title II, § 221, Aug. 17, 1999, 113 Stat. 295; Pub. L. 106–541, title II, § 224(a), Dec. 11, 2000, 114 Stat. 2597; Pub. L. 110–114, title II, § 2036(a), Nov. 8, 2007, 121 Stat. 1092; Pub. L. 113–121, title I, § 1040(a), June 10, 2014, 128 Stat. 1239; Pub. L. 114–322, title I, § 1162, Dec. 16, 2016, 130 Stat. 1668.) Editorial Notes REFERENCES IN TEXT The Endangered Species Act, as amended, referred to in subsec. (e)(2), probably means the Endangered Spe- cies Act of 1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified generally to chapter 35 (§ 1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables. Public Law 99–88, referred to in subsec. (f), is Pub. L. 99–88, Aug. 15, 1985, 99 Stat. 293, known as the Supple- mental Appropriations Act, 1985. Provisions of Pub. L. 99–88 authorizing the project for the Atchafalaya Floodway System, Louisiana, are not classified to the Code. For complete classification of this Act to the Code, see Tables. The Flood Control Act of 1965, referred to in subsec. (f), is title II of Pub. L. 89–298, Oct. 27, 1965, 79 Stat. 1073. Provisions of that Act authorizing the project for Mississippi Delta Region, Louisiana, are not classified to the Code. For complete classification of this Act to the Code, see Tables. The Fish and Wildlife Coordination Act, referred to in subsec. (g), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, which is classified generally to sections 661 to 666c–1 of Title 16, Conservation. For complete classification of this Act to the Code, see section 661(a) of Title 16, Short Title note set out under section 661 of Title 16, and Tables. The National Environmental Policy Act of 1969, re- ferred to in subsec. (h)(9), (10), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chap- ter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. AMENDMENTS 2016—Subsec. (h)(4)(D) to (F). Pub. L. 114–322, § 1162(1)(A), added subpar. (D) and redesignated former subpars. (D) and (E) as (E) and (F), respectively. Subsec. (h)(6)(C). Pub. L. 114–322, § 1162(1)(B), sub- stituted ‘‘impacts, including impacts to habitat connectivity’’ for ‘‘impacts’’. Subsec. (h)(11). Pub. L. 114–322, § 1162(1)(C), added par. (11) and struck out former par. (11). Prior to amend- ment, text read as follows: ‘‘Nothing in this subsection requires the Secretary to undertake additional mitiga- tion for existing projects for which mitigation has al- ready been initiated.’’ Subsecs. (j), (k). Pub. L. 114–322, § 1162(2), added sub- secs. (j) and (k). 2014—Subsec. (d)(1). Pub. L. 113–121, § 1040(a)(1)(A), in- serted ‘‘for damages to ecological resources, including terrestrial and aquatic resources, and’’ after ‘‘miti- gate’’, ‘‘ecological resources and’’ after ‘‘impact on’’, ‘‘without the implementation of mitigation measures’’ before period at end of first sentence, and ‘‘If the Sec- retary determines that mitigation to in-kind condi- tions is not possible, the Secretary shall identify in the report the basis for that determination and the mitiga- tion measures that will be implemented to meet the re- quirements of this section and the goals of section 2317(a)(1) of this title.’’ after ‘‘to the extent possible.’’ Subsec. (d)(2). Pub. L. 113–121, § 1040(a)(1)(B)(iii), which directed insertion of ‘‘using a watershed ap- proach’’ after ‘‘projects’’ was executed by making the insertion after ‘‘projects’’ the first place appearing to reflect the probable intent of Congress. Pub. L. 113–121, § 1040(a)(1)(B)(i), (ii), substituted ‘‘Se- lection and design’’ for ‘‘Design’’ in heading and in- serted ‘‘select and’’ before ‘‘design’’ in text. Subsec. (d)(3)(A). Pub. L. 113–121, § 1040(a)(1)(C)(i), in- serted ‘‘, at a minimum,’’ after ‘‘complies with’’. Subsec. (d)(3)(B)(iii) to (vi). Pub. L. 113–121, § 1040(a)(1)(C)(ii), added cls. (iii) and (iv), redesignated former cls. (iv) and (v) as (v) and (vi), respectively, and struck out former cl. (iii) which read as follows: ‘‘a de- scription of the land and interests in land to be ac- quired for the mitigation plan and the basis for a deter- mination that the land and interests are available for acquisition;’’. Subsecs. (h), (i). Pub. L. 113–121, § 1040(a)(2), added subsecs. (h) and (i). 2007—Subsec. (d)(1). Pub. L. 110–114, § 2036(a)(1), (2), substituted ‘‘to Congress in any report, and shall not select a project alternative in any report,’’ for ‘‘to the Congress’’ and inserted ‘‘, and other habitat types are mitigated to not less than in-kind conditions’’ after ‘‘mitigated in-kind’’. Subsec. (d)(3) to (5). Pub. L. 110–114, § 2036(a)(3), added pars. (3) to (5). 2000—Subsec. (d). Pub. L. 106–541 inserted subsec. heading, designated existing provisions as par. (1), in- serted par. heading, realigned margins, substituted ‘‘November 17, 1986’’ for ‘‘the date of enactment of this Act’’, redesignated former cls. (1) and (2) as (A) and (B), respectively, and added par. (2). 1999—Subsec. (e). Pub. L. 106–53 inserted after second sentence ‘‘Not more than 80 percent of the non-Federal share of such first costs may be satisfied through in- kind contributions, including facilities, supplies, and services that are necessary to carry out the enhance- ment project.’’ 1992—Subsec. (c). Pub. L. 102–580 inserted ‘‘, including lands, easements, rights-of-way, and relocations,’’ be- fore ‘‘for implementation and operation’’. Statutory Notes and Related Subsidiaries APPLICABILITY Pub. L. 113–121, title I, § 1040(b), June 10, 2014, 128 Stat. 1243, provided that: ‘‘The amendments made by sub- section (a) [amending this section] shall not apply to a project for which a mitigation plan has been completed as of the date of enactment of this Act [June 10, 2014].’’ CONCURRENT MITIGATION Pub. L. 106–541, title II, § 224(b), Dec. 11, 2000, 114 Stat. 2598, required the Comptroller General to conduct an investigation of the effectiveness of the concurrent mitigation requirements of this section and to trans- mit to Congress a report on the results of the investiga- tion not later than 1 year after Dec. 11, 2000. § 2283a. Status report (1) In general Concurrent with the President’s submission to Congress of the President’s request for appro- priations for the Civil Works Program for a fis- cal year, the Secretary shall submit to the Com- mittee on Transportation and Infrastructure of the House of Representatives and the Com- mittee on Environment and Public Works of the Senate a report on the status of construction of projects that require mitigation under section 2283 of this title, the status of such mitigation, and the results of the consultation under sub- section (d)(4)(B) of such section.