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Delaware Senate Democrats

Sen. Hansen files legislation to protect nontidal wetlands from development

May 9, 2024

DOVER – Some of the First State’s most critical and endangered ecosystems would be better protected from development under legislation introduced Wednesday by Sen. Stephanie Hansen.

Senate Bill 290 would direct the Delaware Department of Natural Resources and Environmental Control to develop new regulations for the protection of nontidal wetlands, while ensuring those rules do not interfere with existing agricultural operations.

Delaware is currently the only state in the mid-Atlantic region without state-level protections for the vast majority of its nontidal wetlands, an umbrella term for marshes, flats, depressions, and other inland areas that store rain, flood or groundwater through all or a portion of the year.

While coastal wetlands subject to the tides have been protected in state code since the 1950s, Delaware has relied on federal regulations enforced by the U.S. Army Corps of Engineers for the preservation of most nontidal wetlands since 1972.

Repeated changes to the federal definition of what qualifies as a wetland over the last decade and a 2023 Supreme Court decision that further limited the scope of federal protection has now left more than 75,000 acres of nontidal wetlands – or roughly 6% of Delaware’s total land area – vulnerable to development for the first time in decades.

“This bill is about more than preserving open space or saving the bog turtle, which are both worthwhile objectives in their own right,” said Sen. Hansen, who chairs the Senate Environment, Energy and Transportation Committee.

“This is also about creating clear and consistent policies that protect our communities from costly flooding that will only get worse unless we act now,” she said “It simply makes no sense for us to spend millions of dollars a year on drainage improvements and hydrology upgrades, while we allow nontidal wetlands to be bulldozed over to make room for new development on the exact same land where floodwaters have collected for centuries. This is about Delaware taking control of its own destiny and no longer leaving important land use decisions up to the political whims of Washington D.C.”

Under SB 290, activities such as dredging, draining, filling, excavation, or construction in a nontidal wetlands would be subject to a state permitting process that must consider a number of factors, including the environmental and economic impact, effects on neighboring lands, and consistency with state, county and municipal comprehensive plans.

The bill also would add new factors for the state to consider in determining whether to issue a permit, including any increased water retention or flood risk posed by the project, as well as regulations that protect threatened or endangered species located within a wetland.

Farming activities such as plowing, seeding, cultivating, and harvesting would be exempt from the permitting process so long as they predate the adoption of DNREC’s regulations and continue at some point at least once every 5 years thereafter.

SB 290 also would encourage the restoration of lost wetlands by making clear that voluntary efforts to reestablish or enhance former aquatic habitats would be allowed through an expedited permitting process while directing DNREC to support those efforts through the creation of new programs such as a wetland mitigation bank or an aquatic restoration fund.

“As our communities continue to deal with increased flooding, drainage issues, and habitat loss, protecting our remaining nontidal wetlands – one of our state’s most valuable ecosystems and assets – is more important now than ever,” said Rep. Debra Heffernan, chair of the House Health & Human Development Committee and House prime sponsor of SB 290. “Many of our neighboring states have already enacted protective measures for their own nontidal wetlands, and Delaware cannot afford to lag behind. It’s time that we take action to do the same for the benefit of our environment and for present and future generations of Delawareans.”

Senate Bill 290 has been assigned to the Senate Environment, Energy and Transportation Committee.