Whither Wetland Mitigation Liability (Part 1)?

The wetland mitigation banking industry is built on the concept of a transfer of liability. While a mitigation banker ostensibly sells a credit, what the permittee is really purchasing is a release from liability. If a permittee fails to provide the compensatory mitigation specified in the permit, it could—in theory—be subject to court-imposed injunctions and fines. However, with the approval of the U.S Army Corps of Engineers (the Corps) and a signature on a check, the legal responsibility for providing compensatory mitigation shifts from the permittee to the mitigation banker. The permittee now has nothing to worry about (at least from a compensatory mitigation perspective). The mitigation banker has assumed the risk. But do permittees actually face a significant risk of civil judicial penalties in the first place? Until very recently, the answer would have been no.