mental benefits than on-site mitigation (Fed. Regist. 60(Nov. 28):58605 – 58614). As a general rule, the compensatory mitigation undertaken under all but the permit-specific mitigation mechanism is located off-site. Off-site mitigation mechanisms tend to “consolidate” at a single site the compensatory mitigation required to offset the impacts of numerous permitted activities that may be scattered across the landscape.
Initially, a permittee is legally responsible for satisfying permit conditions relating to compensatory mitigation. A permittee may choose to implement the mitigation project or hire an environmental or engineering firm to do so. Alternatively, the compensatory mitigation condition in the permit may allow use of the permittee's own single-user mitigation bank. A permittee may develop a “single-user mitigation bank” by making an up-front investment in creating mitigation credits (see below for a definition) and then draw credits from the bank to satisfy mitigation conditions for future permits. A permittee who expects to have a significant number of future permits and has access to a source of funds to capitalize the bank might develop a single-user bank. In either scenario the permittee remains the party responsible for fulfilling the compensatory mitigation actions. If a permittee fails to comply with the compensatory mitigation stated in the permit conditions, the Corps may issue a compliance order, initiate a civil judicial action, and/or revoke or suspend the permit. In the case of a single-user mitigation bank, the permittee may have posted a financial assurance, and the Corps may require that the escrowed funds be used to undertake the action required in the permit.
In the case of a “commercial mitigation bank,” legal responsibility is shifted from the permittee to the bank sponsor (Shabman et al. 1998). The permittee is required to secure a certain number and type of wetland credits in a certain general location as a condition of the permit. By making a payment to the commercial bank that has made an investment to create credits for sale, the permittee satisfies its compensatory mitigation requirement when it purchases the requisite credits. At the time of credit purchase, responsibility for the mitigation site shifts to the commercial bank.
The mitigation banking guidance defines a credit as “a unit of measure representing the accrual or attainment of aquatic functions at a mitigation bank; the measure of function is typically indexed to the number of wetland acres restored, created, enhanced or preserved” (Fed. Regist. 60(Nov. 28):58605–58614). In concept, credits are realized after inspection and monitoring have established that functional performance standards have been met. To ensure that a bank sponsor is legally responsible for the