The U.S. mitigation banking industry stands at a critical turning point. The recently released Regulatory Impact Analysis (RIA) for the proposed update to the definition of “Waters of the United States” (WOTUS) makes one reality clear: if finalized as written, the rule will significantly narrow Clean Water Act jurisdiction—reducing the number of Section 404 permits issued and substantially decreasing the amount of required compensatory mitigation nationwide.
EPA and the Corps acknowledge in the RIA that the proposed definitions of “relatively permanent” and “continuous surface connection,” along with the removal of interstate waters as an independently jurisdictional category, will remove many wetlands, streams, and tributaries from federal oversight. Fewer jurisdictional waters means fewer regulated impacts—and therefore fewer mitigation requirements. For our industry, this translates directly into lower demand for mitigation bank credits, weaker incentives for ecological restoration, and reduced private investment in conservation.
This shift also threatens decades of progress made through market-driven restoration. Mitigation banks have restored more than a million acres of wetlands and streams, delivering water quality improvements, flood storage, wildlife habitat, and climate resilience. If federal protections shrink, many of the landscapes we’ve invested in may again face unchecked degradation—without compensatory mitigation to offset losses or support replacement resources.
NEBA urges our members—and all partners committed to compensatory mitigation—to act now.
What you can do:
The future of the nation’s compensatory mitigation program—and the ecological lift it provides—depends on a strong, unified response. NEBA will continue coordinating industry input and advocating for science-based, durable protections. Let’s ensure our collective voice is heard.