Delaware will protect about half of its freshwater wetlands that were once shielded from development by the federal government but will now enjoy the protection of state-level regulation following the passage of landmark environmental regulation.
Senate Bill 9, the Wetlands Stewardship Act, which passed both chambers of the Legislature on July 1 with near-unanimous majorities, requires the state to set rules for some 75,000 acres of nontidal wetlands that were left unprotected under the federal Clean Water Act after the U.S. Supreme Court ruled in 2023 that only wetlands with a constant connection to another body of water could be protected under the law.
With the new bill, Delaware recognizes the value of nontidal wetlands in controlling floods, harboring wildlife, cleaning surface and groundwater, and providing recreational opportunities. And it has done so with the support of a wide range of stakeholders including realtors, developers and farmers, each of whom might have been expected to oppose a bill that placed restrictions on their businesses.
“There have been attempts to create a regulatory program for nontidal and tidal wetlands in Delaware dating back to 1988,” said state Sen. Stephanie Hansen (D-Middletown), lead sponsor of the bill. “However, until the effort that culminated with SB 9, there had never been a concerted, multi-party stakeholder negotiation process, to establish such a program. That collaborative approach ultimately led to SB 9’s near-unanimous passage.”
Gov. Matt Meyer is expected to sign the bill.
Other advocates praised Hansen’s effort starting in 2024 to bring together all stakeholders to seek agreement from diverse groups, which all acquired ‘ownership’ of the bill, providing a degree of support that was not seen in earlier legislative attempts to write a law providing state protection for nontidal wetlands.
“Senator Hansen worked so hard to get all the stakeholders involved to support the bill,” said Rep. Debra Heffernan (D-Brandywine Hundred), who chairs the House Natural Resources and Energy Committee. “All the stakeholders were on board and worked together since she formed this task force: farmers, developers, environmentalists, other agency representatives. That is why it passed almost unanimously because each of the interested parties had ownership of the process.”
Stakeholders were motivated in part by the withdrawal of federal regulation, forcing them to recognize that only the state is now in a position to protect the wetlands, Heffernan said.
“That helped everybody to want to work together,” she said. “After the Supreme Court decision in 2023, the Wetlands Protection Stakeholder Group was formed in 2024. Until then, people didn’t feel like they really needed to come up with a bill. The farmers and developers hated it, the environmentalists loved it. It had been tried other times but I believe that the Supreme Court decision made everybody feel like ‘We’d better protect the wetlands in the State of Delaware.’
Mark Nardone, director of advocacy at the Delaware Nature Society, and a strong supporter of the bill, called it the most important environmental legislation in Delaware since the Coastal Zone Act in 1971. In the same way that the CZA succeeded in preventing industrial development in Delaware’s coastal strip more than 50 years ago, SB 9 will ensure that the state’s freshwater wetlands will get the same degree of protection from the state that they once did from the federal government.
Without the CZA, Delaware’s coastal zone would probably have ended up looking like Galveston Bay in Texas, where oil terminals and other development has created an industrial zone, Nardone said.
One example of bipartisan support came from state Sen. Eric Buckson, (R-Dover South) who voted for the bill while recognizing the property concerns of some Republicans and business people. But he said the need to protect wetlands overcame politics.
“Wetlands and the environment are not a Democrat and Republican issue. The federal government made a decision to hand authority back to the states. We as a state have a duty to act on that, and I think we did,” Buckson said.
He welcomed the fact that the new regulations will be proposed by the Wetlands Regulatory Advisory Council, a group representing a wide range of stakeholders, rather than what he called unelected bureaucrats.
“Government involvement in property rights were balanced with some of the benefits that this legislation created like expedited permitting or exempting out agriculture. So, you are getting diverse members of Delaware responsible for writing the regs, and not just a bureaucracy behind closed doors,” he said.
The concerns of business and allied stakeholders were calmed by provisions that set a series of exemptions to permit requirements, including residential lawn maintenance, hunting, fishing, trapping, duck blinds, agricultural, drainage activities, footbridges, Conservation District projects, and impacts to freshwater wetlands smaller than one-half acre unless they are determined to be unique or high-functioning wetlands.
Activities currently authorized by the U.S. Army Corps of Engineers’ nationwide permits can continue.
Nardone of the Delaware Nature Society said the exemptions addressed the worries of those who may have opposed earlier efforts to legislate state requirements on nontidal wetlands protection.
“You can't suddenly change the game on folks. If you've always hunted wood ducks from a blind on your property, it's only fair to continue allowing that,” he said.
Hansen said the bill turned out as she intended even though its final form contained “many compromises”. They included a provision that any wetland of half an acre or less was exempted unless it was an “exceptional value” wetland.
For farmland, the bill exempts land that has been used for farming or food production at any time in the last 10 years.
But the widespread support for the bill resulted from the efforts of Hansen and her supporters to win the approval of the whole stakeholder community.
“The overwhelming legislative support SB 9 received was a result of working the process until there was no group in opposition and all groups found value in having the legislation in place,” she said in a statement. “Importantly, one of the valuable benefits of this process has been the relationship building between these various groups, a condition that is already leading to additional collaboration on new environmental and conservation initiatives. “
