As defined by the Association of State Wetland Managers, mitigation bank usually refers to a moderate size to large wetland restoration, creation, or enhancement project undertaken by a single developer (public or private) or a consortium of developers to not only compensate for wetland impacts from a particular project but to act as a bank with credits to compensate for future wetland projects and impacts. Thus, credits are granted for mitigation efforts in advance of development, which can then be withdrawn as needed to compensate when development occurs.
Id. at 658 (citing Jon Kusler, Mitigation Banks and Joint Projects: A National Perspective on Issues, in Mitigation Banks and Joint Projects in the Context of Wetland Management Plans 1 (Association of State Wetland Managers, June 2427, 1992)).
With respect to participation in a natural habitat or wetland mitigation effort related to a project funded under this title that has an impact that occurs within the service area of a mitigation bank, preference shall be given, to the maximum extent practicable, to 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 . . . or other applicable Federal law (including regulations).
Id. This provision supports mitigation banking not just for wetland loss, but also for natural habitat efforts. See id.
The policies set out in this document are not final agency action, but are intended solely as guidance. The guidance is not intended, nor can it be relied upon, to create any rights enforceable by any party in litigation with the United States. The guidance does not establish or affect legal rights or obligations, establish a binding norm on any party and it is not finally determinative of the issues addressed.