Not all Section 404 mitigation credits are created equal because the quality, reliability, and ecological value of a credit depends on how, where, and when it’s generated — and those factors can vary a lot.
While various “wetland credits” might be legal for meeting requirements under Section 404, one credit may represent a completed, high-quality restoration in the same watershed as your impact, while another credit might be an advance credit from a preservation site many miles away.
The hierarchy in the 2008 Final Mitigation Rule (Rule) prioritizes Mitigation Bank credits as the gold standard of mitigation.
Inferior forms of mitigation — such as preservation credits, advance credits, or projects located far from the impact site — carry a high risk of failure. When these projects do not deliver the ecological lift promised, regulators and buyers alike face the burden of remediation and replacement, adding cost and delay. For these reasons, Congress has required strict enforcement of the mitigation hierarchy, ensuring that mitigation bank credits — proven, reliable, and backed by long-term assurances — are prioritized and fully utilized before less certain options are considered.
Environmental banking’s track record of proven success for solving some of the Nation’s most challenging environmental problems is evidence of the importance of the Hierarchy bound in the Rule.
The National Environmental Banking Association (NEBA) continues its vital work to support, defend and promote high-quality mitigation banks and bank credits across the U.S.
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