90 days, if additional time is needed to file
comments, to provide for a hearing, to provide
for further review of comments, or to provide
for a reply to adverse comments.
‘‘(J) AMENDMENTS.—Additional projects
may be added to a mitigation bank charter by
amendment. Amendment applications shall be
processed in the same fashion as charter appli-
cations, but the Secretary may treat the facts
established in support of the charter and con-
firmed by the most recent annual report as es-
tablished for the purpose of the amendment ap-
plication process.
‘‘(K) STATE
APPROVALS.—The Secretary
shall give substantial weight to State approvals
of mitigation bank projects if the State pro-
grams under which such projects are approved
require a careful review of the long-term oper-
ation and maintenance of the project, including
provision of an adequate long-term source of
water to support the wetlands and legal control
over the real property in question and otherwise
require similar conditions to those in this sec-
tion.
‘‘(L) COORDINATION.—The Secretary shall
coordinate the processing of a mitigation bank
application under this subsection with the proc-
essing of applications by such applicant for
other permits and authorities under this Act so
that determinations with respect to such other
permits and authorities may be made concur-
rently with the final decision on the bank char-
ter.
‘‘(M) REVOCATION.—A mitigation banking
charter may be revoked by the Secretary at any
time (i) for substantial failure to comply with
financial assurance, long-term water source, or
other critical operating requirements, (ii) for a
criminal conviction for making material false
statements in the charter application or annual
report, or (iii) for other substantial violations of
law which demonstrate the unfitness of the
holder of the charter to operate the mitigation
bank. The charter may only be revoked after an
opportunity for a public hearing on the record
within the meaning of chapter 5 of title 5,
United States Code.
‘‘(3) CREDITS.—
‘‘(A) OFFERING
CREDITS
FOR
SALE.—
Upon receipt of its charter, a mitigation bank
may offer mitigation credits for sale. The maxi-
mum number of credits which a mitigation
bank may offer for sale shall not exceed the
number to which it is entitled based on the
number of acres of wetlands the bank has com-
pleted restoring, enhancing, and in exceptional
circumstances, preserving or creating and pro-
vided financial assurance for their long-term op-
eration and maintenance.
‘‘(B) NUMBER OF CREDITS.—The number
of credits to which a chartered mitigation bank
is entitled based on its acreage and the wet-
lands functions served by that acreage shall be
determined according to objective criteria set by
regulation or, if a completed charter application
is filed before regulations are issued, according
to objective criteria applied by the Secretary,
using best professional judgment as part of the
charter decision. The application of the objec-
tive criteria applied shall be set forth in detail
in the charter decision. The Secretary shall
apply the same criteria to each mitigation bank
in the same Army Corps of Engineers district
and to mitigation banks in neighboring Army
Corps of Engineers districts which have over-
lapping service areas.
‘‘(C) REDUCTION OF CREDITS.—The num-
ber of mitigation credits to which a mitigation
bank is entitled shall not be decreased except by
sale or upon a showing by the Secretary, after
notice and opportunity for a public hearing, of
the bank’s failure to comply with charter condi-
tions resulting in the Secretary’s decision to
draw on the mitigation bank’s financial assur-
ances for the acreage on which such credits are
based. If the Secretary draws on the mitigation
bank’s financial assurances for all or part of its
acreage, the Secretary may suspend the sale of
credits based on that acreage in order to pre-
vent irreparable harm, provided that notice and
opportunity for a hearing to review the suspen-
sion decision is provided promptly thereafter.
‘‘(D) INCREASE IN CREDITS.—The number
of mitigation credits to which a mitigation bank
is entitled may only be increased if the bank
makes a factual showing in its charter applica-
tion, or in an amendment application, that it is
entitled to more credits under the objective cri-
teria set by the Secretary by regulation or used
by the Secretary in the exercise of best profes-
sional judgment in chartering or amending the
charter of another mitigation bank in the same
State or a neighboring State.
‘‘(E) DEBITS.—If a permit issued by the
Secretary to conduct activities in waters of the
United States authorizes unavoidable impacts
on wetlands and relies on a mitigation bank to
offset such impacts, the Secretary shall use the
same objective criteria to determine the wet-
lands mitigation debits from such permitted ac-
tivity as is used to determine the wetlands miti-
gation credits at the relevant mitigation bank.
‘‘(F) RESPONSIBILITY
OF
BANK
SUC-
CESS.—The mitigation bank is responsible for
assuring the success of the restoration, cre-
ation, enhancement, and preservation activities
that are subject to the transaction.
‘‘(G) NO
REGULATION
OF
PRICE.—The
Secretary shall not regulate the price charged
for the sale of mitigation credits.
‘‘(4) STANDARDS TO BE ESTABLISHED.—
‘‘(A) DEADLINES
FOR
REGULATIONS.—
Within 1 year after the date of the enactment
of this subsection, the Secretary shall propose
regulations implementing this subsection and
shall promulgate such regulations not later than
18 months after such date of enactment.
‘‘(B) CRITERIA FOR CREDITS.—Such regu-
lations shall set forth objective criteria by which
the number of credits to be yielded by a mitiga-
tion banking project may be determined and
shall take into account the wetlands functions
served by the wetlands restored, enhanced, cre-
ated, or preserved by such project, as well as
the environmental benefits served by the adja-
cent uplands included in such mitigation bank-
ing project. Such objective criteria shall also es-
tablish a preference for restoration or enhance-
ment of degraded wetlands but also provide for
the preservation of high quality wetlands if such
preservation results in a benefit to the water-
shed and there is a threat to the wetlands and
creation of wetlands where there is a high likeli-
hood for ecological success with adequate finan-
cial undertakings, long-term source of water,
and appropriate legal control of the realty to
assure their long-term maintenance and viabil-
ity.
‘‘(C) CRITERIA
FOR
SERVICE
AREAS.—
Such regulations shall set objective criteria by
which mitigation bank service areas are to be
determined, taking into account the need to set
service areas at a size providing a reasonable
prospect of vigorous market competition among
large scale mitigation banks while ensuring that
the bank effectively mitigates for unavoidable
wetland impacts. Such regulations shall provide
that an activity in waters of the United States
permitted under this section which activity is a
linear utility facility and is otherwise partially
within a service area shall be eligible to pur-
chase mitigation credits from a mitigation bank
within the same service area. Such regulations
shall establish a preference for using a mitiga-
tion bank to mitigate an activity which is part
of a single and complete project which disturbs
less than 35 acres of wetland.
‘‘(D) PREFERENCE
FOR
IN-KIND
COM-
PENSATION.—Such regulations shall establish a
preference for in-kind compensation of wetland
impacts. Out-of-kind compensation shall be ac-
ceptable only if it is not reasonably feasible to
provide in-kind compensation.
‘‘(E) IMPLEMENTATION STRATEGY.—
‘‘(i) DEVELOPMENT.—The Secretary
shall develop a State-by-State implementa-
tion strategy and report its findings and
conclusions to Congress and the public
within 1 year after the date of the enact-
ment of this subsection. Such strategy
shall be used, in part, to assist the Sec-
retary in proposing and promulgating reg-
ulations under this subsection.
‘‘(ii) 
REVIEW.—In 
developing 
the
strategy, the Secretary shall examine the
progress of pending applications to estab-
lish mitigation banks under prior guidance
documents, identify reasons for delay of
any such application pending for more
than 6 months, and report alternatives to
streamline the processing of future applica-
tions.
‘‘(iii) 
IDENTIFICATION
OF
WET-
LANDS.—In developing the strategy, the
Secretary shall seek to identify, in con-
sultation with the appropriate agency of
each State, substantial acreage of degraded
wetlands which need significant physical
alteration to the current hydrology in order
to substantially recover their natural wet-
lands functions. Of the tracts of wetlands
so identified, the study shall identify those
where physical restoration work through
mitigation banking could begin in the next
3, 5, and 10 years. These findings shall be
made available to the public.
‘‘(iv) TRIENNIAL
REPORTS
TO
CON-
GRESS.—Not later than 4 years after the
date of the enactment of this subsection,
and every 3 years thereafter, the Secretary
shall make a written report to Congress
about the progress of restoring the tracts
of degraded wetlands identified in the ini-
tial report. The progress report shall first
be issued in draft form, and the Secretary
shall receive comments from the public
about the accuracy of the information con-
tained in the draft progress report, for 60
days. The final version of the progress re-
port shall be revised after consideration of
the public comments and submitted to
Congress not later than 90 days after the
close of the comment period.’’.
Æ