Imagine a store that, rather than making customers pay for items they break, requires them to pay 24 times the value of the broken item. People would stop shopping there because the rule is unfair. Yet cities across the nation are deceptively imposing a similar unfair system on their citizens through “no-net-loss” ordinances.
In theory, no-net-loss should be a 1-to-1 trade: For every acre of wetland that is developed by a builder, another acre of wetland is recreated elsewhere. In reality, the opposite is happening. Landowners are required to pay for restoration on far more acreage than they ever disturbed. Through deceptive naming, the government presents an uncompromising system of inflated mitigation fees as a simple conservation effort.
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Take Long Beach, Washington, where the government requires landowners who alter even a fraction of an acre of wetland to “offset” the impact by restoring, creating, or enhancing many times that amount elsewhere. Landowners who affect 1 acre of wetland may be required to restore 6, 12, or even 24 acres of wetland in return.
Long Beach relies on elaborate point systems to categorize wetlands, awarding or deducting points based on factors as arbitrary as whether a fallen tree is exactly 6 feet long or whether a cliff is either 99 or 101 meters away. These subtle distinctions can push a wetland into a higher “category,” triggering exponentially higher fees. A landowner’s obligations can swing dramatically based on inch-level measurements that have little to do with real-world environmental impact.
The random ecological scoring system means that few people — including the regulators who enforce it — can explain or predict how much the no-net-loss ordinance will require them to pay. This is economically disastrous, as businesses and individuals cannot properly prepare for development unless they know the cost.
Long Beach also uses the fees to create wetlands miles from the affected property — sometimes in entirely different drainage basins. Landowners are thus forced to fund ecological projects that have no connection to their land, their community, or the actual effects of their own project. When governments require citizens to fund unrelated environmental improvements as a condition of using their own property, the line between regulation and coercion becomes thin.
Long Beach’s fee system is far from unique. It’s based on state guidance and is mirrored in places like Covington, Lake Forest Park, Issaquah, Mukilteo, Lake Stevens, and Vancouver. Outside the state, governments in Ohio, Virginia, North Carolina, Oregon, and others have permitting regimes that aim to achieve similar goals. Mazon, Illinois, for example, requires landowners to create up to 10 acres of wetland for each acre of wetland they impact. Mazon uses the Floristic Quality Index, a program that requires landowners to be proficient in coding and botany to accurately determine the amount they must pay.
This is not solely a problem for builders. Excessive government permitting is one of the problems worsening affordability: Tt introduces risks that deter investment in projects and forces local specialization that discourages large homebuilding companies. Wasteful policies like these cause housing prices to spike and limit the population’s access to the American dream.
These policies hit small landowners the hardest. Large developers can sometimes absorb the cost or hire consultants to navigate the maze. But families trying to build a home, farmers seeking to improve their land, or small businesses looking to expand are often simply priced out. For them, bills running into the tens or hundreds of thousands of dollars are not a “fee” — they’re a stop sign.
This is not a debate over whether wetlands matter. They do. But conservation must be grounded in fairness, science, and the Constitution. When governments impose blanket ratios that are untethered from actual harm, they undermine public trust and violate the principle that property owners should not be forced to shoulder burdens that properly belong to the public.
Citizens across the country should push back through the courts, which are increasingly scrutinizing these policies. Recent decisions have made it clear that governments cannot sidestep constitutional protections merely by labeling fines as “legislative” or by embedding them in permitting schemes. If a landowner is required to pay money, give up land, or provide labor as a condition of using their property, the government must show that the demand is connected to the project’s impact and roughly equal to that impact.
AMERICAN FAMILIES HAVEN’T ABANDONED THE AMERICAN DREAM. WASHINGTON HAS
Many no-net-loss ordinances fail that test.
There are better ways to protect wetlands — approaches that respect both the environment and the people who live and work on the land. But the current system of complicated ratios, arbitrary scoring, and off-site development is not one of them. It threatens to make property ownership a conditional privilege rather than a fundamental right.
Nathan Hotes is an attorney for the Pacific Legal Foundation’s Environment and Natural Resources group.
