The department may establish and operate aquatic mitigation banks and aquatic in-lieu fee mitigation programs for the purpose of restoring, creating, enhancing, preserving, or any combination thereof, aquatic habitats or resources where a person is required to provide compensatory mitigation either for:

1. (1) Prospective damages to aquatic habitats or resources where the use of aquatic mitigation banking or aquatic in-lieu fee mitigation is approved by the agency requiring mitigation; or
2. (2) Past damages to aquatic habitats or resources.

[L 2016, c 211, pt of §2; am L 2022, c 32, §3]