in-lieu fees, however, these ad hoc cash donations shift the legal responsibility for site conditions from the permittee to the recipient of the funds.
Permittee-responsible permit-specific mitigation actions will only be implemented concurrent with or after initiation of a permitted development project. At best, permit-specific compensatory mitigation actions (the dominant mechanism for compensatory mitigation) required as a permit condition include a regulator-approved plan for site location, design, and construction. However, it is also possible that the compensation plan may be just a conceptual idea that is a “promise” of future detailed design and follow-on construction.
If a permittee makes a payment to a mitigation bank, the permitted activity may move forward. Mitigation banks, whether single-user or commercial, are often described as “advance” mitigation. Consider that the Corps and the EPA define a mitigation bank as “a site where wetlands and/or other aquatic resources are restored, created, enhanced, or in exceptional circumstances, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources” (Fed. Regist. 60(Nov. 28):58605–58614). As noted above, a credit from a bank presumes that the credits are compensation wetlands that have met performance standards.
More realistically, the MBRT process may ask that only certain actions be taken before some of the bank credits can be accepted as compensatory mitigation for wetland impacts. There are several distinct stages in a compensatory mitigation project, beginning with conceptual design, moving through site identification and acquisition, to detailed project design and initiation, and ending with a certification of success based on specified success criteria. At each stage of the process, the assurance of ecological performance increases. Limited debiting from the bank may be made before there is any construction activity, especially if there are financial assurances in place. However, the 1995 federal mitigation banking guidance contemplates that most bank credits will not be released until the mitigation project is actually constructed or completed. For example, as practiced in Florida under state regulations and federal guidance, mitigation banks are typically allowed to debit about 15% of their credits upon perpetual preservation of a mitigation site and implementation of the short- and long-term financial obligations. In these cases, 85% of the credits can be used only after project implementation and certification that performance standards have been met. As a result, mitigation banks have been developed when there was a private-sector (permittee or