MITIGATION FOR FISH AND WILDLIFE AND WETLANDS LOSSES.

SEC. 2036. MITIGATION FOR FISH AND WILDLIFE AND WETLANDS LOSSES.(a) Mitigation for Fish and Wildlife Losses.—Section 906(d) of the Water Resources Development Act of 1986 (33 U.S.C. 2283(d)) is amended—(1) in the first sentence of paragraph (1) by striking “to the Congress” and inserting “to Congress in any report, and shall not select a project alternative in any report,”;(2) in the second sentence of paragraph (1) by inserting “, and other habitat types are mitigated to not less than in-kind conditions” after “mitigated in-kind”; and(3) by adding at the end the following:“(3) Mitigation requirements.—“(A) In general.—To mitigate losses to flood damage reduction capabilities and fish and wildlife resulting from a water resources project, the Secretary shall ensure that the mitigation plan for each water resources project complies with the mitigation standards and policies established pursuant to the regulatory programs administered by the Secretary.121 STAT. 1093“(B) Inclusions.—A specific mitigation plan for a water resources project under paragraph (1) shall include, at a minimum—“(i) a plan for monitoring the implementation and ecological success of each mitigation measure, including the cost and duration of any monitoring, and, to the extent practicable, a designation of the entities that will be responsible for the monitoring;“(ii) the criteria for ecological success by which the mitigation will be evaluated and determined to be successful based on replacement of lost functions and values of the habitat, including hydrologic and vegetative characteristics;“(iii) a description of the land and interests in land to be acquired for the mitigation plan and the basis for a determination that the land and interests are available for acquisition;“(iv) a description of—“(I) the types and amount of restoration activities to be conducted;“(II) the physical action to be undertaken to achieve the mitigation objectives within the watershed in which such losses occur and, in any case in which the mitigation will occur outside the watershed, a detailed explanation for undertaking the mitigation outside the watershed; and“(III) the functions and values that will result from the mitigation plan; and“(v) a contingency plan for taking corrective actions in cases in which monitoring demonstrates that mitigation measures 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 221 of Flood Control Act of 1970 (42 U.S.C. 1962d–5b).“(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 determined 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 appropriate Federal agencies and each State in which the applicable project is located on at least the following:“(i) The ecological success of the mitigation 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.121 STAT. 1094“(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.”.(b) Status Report.—(1) In general.—Concurrent with the President’s submission to Congress of the President’s request for appropriations for the Civil Works Program for a fiscal year, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on the status of construction of projects that require mitigation under section 906 of the Water Resources Development Act of 1986 (33 U.S.C. 2283), the status of such mitigation, and the results of the consultation under subsection (d)(4)(B) of such section.(2) Projects included.—The status report shall include the status of—(A) all projects that are under construction as of the date of the report;(B) all projects for which the President requests funding for the next fiscal year; and(C) all projects that have undergone or completed construction, but have not completed the mitigation required under section 906 of the Water Resources Development Act of 1986.(3) Availability of information.—The Secretary shall make information contained in the status report available to the public, including on the Internet.(c) Wetlands Mitigation.—(1) In general.—In carrying out a water resources project that involves wetlands mitigation and that has impacts that occur within the service area of a mitigation bank, the Secretary, where appropriate, shall first consider the use of the mitigation bank if the bank contains sufficient available credits to offset the impact and the bank is approved in accordance with the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (60 Fed. Reg. 58605) or other applicable Federal law (including regulations).(2) Service area.—To the maximum extent practicable, the service area of the mitigation bank under paragraph (1) shall be in the same watershed as the affected habitat.(3) Responsibility for monitoring.—(A) In general.—Purchase of credits from a mitigation bank for a water resources project relieves the Secretary and the non-Federal interest from responsibility for monitoring or demonstrating mitigation success.(B) Applicability.—The relief of responsibility under subparagraph (A) applies only in any case in which the Secretary determines that monitoring of mitigation success is being conducted by the Secretary or by the owner or operator of the mitigation bank.