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History of Mitigation Banking Under the Federal Clean Water Act

At the Federal level, Mitigation Banking is driven by Section 404 of the Clean Water Act, which requires any unavoidable jurisdictional wetland impact to be offset by mitigation.

In 1995, the Federal Guidance on Establishment, Use and Operation was issued along with subsequent Guidance Documents related to Aquatic Resources.

In 2008, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency issued a joint rule regarding wetland mitigation. The Federal Regualations on Compensatory Mitigation of Aquatic Resources replaces all previous guidance related to wetland mitigation. The full Federal Mitigation rule can be accessed below.
2008 Federal Mitigation Rule

Banking in Florida

A 1991 OPPAGA study in Florida concluded that 80% of all permitee-responsible mitigation in the audit required to offset impacts under the Environmental Resource Permitting Program had not met the criteria of the impact permit to replace lost values and functions of wetlands.

As a result, the Florida Legislature directed the FDEP to develop a more reliable program for wetland mitigation in Florida.

The Wetland Mitigation Banking Rules in Florida were passed as part of the 1993 Environmental Reorganization Act (with revisions in 1996). This created the framework in which wetland mitigation projects could be permitted and utilized as mitigation under the ERP program.

The FDEP and Water Management Districts within 373.4137(F.S.)to encourage the development and use of mitigation banks in Florida.

A copy of the Florida Mitigation Rule is below.
Florida Mitigation Rule

Florida has over 60 approved mitigation banks.

Conservation Banking

Conservation Banking is similiar in concept to mitigation banking in that resources are permanently protected and physically restored, enhanced and managed. Conservation Banking provides offsets for impacts to protected species under the Federal Endangered Species Act or state protection program. Below is the U.S. Fish and Wildlife's 2003 Federal Guidance for Conservation Banking.
Conservation Banking Guide