under this subsection for the purpose of pro-
viding mitigation credits to offset wetland losses 
authorized by the terms of permits allowing ac-
tivities in the waters of the United States. 
‘‘(E) SERVICE
AREA.—The term ‘service 
area’ means the designated area, as described 
in the Federal Guidance, in which a mitigation 
bank may provide compensatory mitigation for 
impacts to wetlands resources. 
‘‘(F) WETLAND
FUNCTION.—The term 
‘wetland function’ means an environmental, 
hydrological, or other role that the wetland 
serves, including flood water storage, flood 
water conveyance, ground water discharge or 
recharge, erosion control, wave attenuation, 
water quality protection, scenic and aesthetic 
use, food chain support, fisheries, wetland plant 
habitat, aquatic habitat, and habitat for wet-
land-dependent wildlife. 
‘‘(3) CHARTER OF MITIGATION BANKS.—
‘‘(A) ISSUANCE.—The Secretary, in con-
sultation with the mitigation bank review team, 
may issue a mitigation bank charter to a person
who, with respect to the project or projects that
are to be included in the scope of the mitigation 
banking charter, meets the following criteria: 
‘‘(i) Provides reasonable assurances of 
success of the proposed restoration, en-
hancement, 
creation, 
or 
preservation 
project. 
‘‘(ii) 
Demonstrates 
an 
adequate 
source of water to support the wetland. 
‘‘(iii) Demonstrates adequate legal 
control, such as title, license, contract, or 
option (contingent upon approval of the 
charter), over the real property (including 
necessary uplands, as appropriate) in the 
proposed project to carry out the proposed 
project. 
‘‘(iv) Demonstrates adequate financial 
assurances to carry out the proposed 
project, including the design, operations, 
and maintenance plan and remedial meas-
ures. Such financial assurances may be in 
the form of performance bonds, irrevocable 
trusts, escrow accounts, casualty insur-
ance, letters of credit, legislatively-enacted 
dedicated funds for government operated 
banks, or other approved instruments.
Such financial assurances shall entitle the 
Secretary to draw upon the assurances in 
the event of a substantial failure to per-
form the work provided in the mitigation 
bank charter, or a substantial failure of 
the mitigation bank to perform as expected 
in the application, in any case in which 
mitigation credits based on such work have 
already been used or sold. Such financial 
assurances shall be in place prior to the 
withdrawal of credits. 
‘‘(v) Demonstrates an adequate de-
sign, operations, and maintenance plan to 
ensure continued viability of the proposed 
project after completion of construction of 
the project. 
‘‘(vi) Demonstrates adequate legal 
protection, such as easements, covenants 
running with the land, or other appro-
priate, legally binding undertakings, to en-
sure permanent protection of the wetlands 
in the mitigation bank that are used as the 
basis for selling credits. Such legal protec-
tions shall be in place at the time that the 
credits are withdrawn.
‘‘(B) APPLICATION AND PROCEDURE.—An 
applicant for a mitigation bank charter shall 
submit to the Secretary an application and sup-
porting materials signed by a responsible offi-
cial acting on behalf of the applicant certifying 
the accuracy of the information contained in 
the application and materials. The application 
shall include, at a minimum, information on the 
criteria contained in subparagraph (A). The 
Secretary shall advise the applicant, not later 
than 30 days after the date of filing, of whether 
the application is complete and advise the appli-
cant, in writing at that time, of any additional 
materials that must be submitted in order to 
complete the application. The Secretary shall 
also transmit a copy of the complete charter ap-
plication to the affected State, and to the heads 
of appropriate Federal agencies, each of which 
shall have 60 days, to run concurrently, to file 
written comments, which shall be part of the 
record. If no comments are filed before the last 
day of such 60-day period, the Secretary may
presume that the entities do not object to the 
charter.
‘‘(C) MITIGATION BANK REVIEW TEAM.—
The mitigation bank review team, as defined in 
the Federal Guidance, shall be responsible for 
reviewing charter applications, reaching con-
sensus on the terms of the charter, and coordi-
nating, as necessary, to ensure effective imple-
mentation of the terms of the charter. The Sec-
retary or the State (in the case of a State ad-
ministering 
a 
program 
under 
subsection 
(h)(2)(A)) shall be the chair of the mitigation 
bank review team and have the responsibility 
for making final decisions regarding the terms 
of the charter if consensus cannot be reached 
within the timeframes provided by this sub-
section. 
‘‘(D) COORDINATION.—To the extent pos-
sible, the Secretary shall coordinate the proc-
essing of a mitigation bank charter application 
under this subsection with the processing of ap-
plications by such applicant for other permits 
required under this section, in order that deter-
minations with respect to such permits may be 
made concurrently with the final decision on the 
bank charter. 
‘‘(E) NOTICE.—
‘‘(i) PUBLICATION.—The Secretary 
shall publish notice of the charter applica-
tion in the Federal Register and in a news-
paper of general circulation in the pro-
posed service area in which the mitigation 
bank is to operate (including the county in 
which the project is to be located), and 
shall make copies of the charter application 
and supporting materials available for pub-
lic review at appropriate convenient loca-
tions in the service area. 
‘‘(ii) CONTENTS.—The notice shall de-
scribe the project or projects provided in 
the charter application, explain where sup-
porting materials may be reviewed, and 
provide 30 days for the submission of com-
ments on the compliance of the proposed 
application in accordance with this sub-
section. Upon request, the time for com-
ment may be extended once for 30 days. 
‘‘(iii) PERMIT
REQUIREMENTS.—In 
any case in which a permit is required
under this section to construct a mitigation 
bank, the notice and opportunity for public 
comment provided in accordance with the
application for the permit may satisfy the 
requirements of this paragraph for public 
notice and comment. 
‘‘(F) 
DECISION
DEADLINE.—The 
Sec-
retary, in consultation with the mitigation bank 
review team, shall decide whether to issue a 
mitigation banking charter not later than 90 
days after the date of filing of a completed 
charter application. 
‘‘(G) EXTENSION OF DEADLINE.—If addi-
tional time is needed to file comments, to pro-
vide for a hearing, to provide for further review 
of comments, or to provide for a reply to ad-
verse comments, the Secretary may extend the 
time for review once for 90 days. 
‘‘(H) DETERMINATION.—After a review of 
public comments and any reply by the appli-
cant, the Secretary may, in accordance with 
subparagraph (A) and after appropriate coordi-
nation and consultation, issue the charter, deny 
the charter, or issue the charter with modifica-
tions. The Secretary’s decision shall be based 
on the entire public record. 
‘‘(I) AMENDMENTS.—Additional projects 
may be added to a mitigation bank charter by