Delaware lawmakers revise wetland legislation amid concerns from farmers, developers

Delaware lawmakers are amending a newly introduced measure that aims to provide greater protections for the state’s nontidal, or freshwater, wetlands.

The legislation, sponsored by state Sen. Stephanie Hansen, D-Middletown, comes more than a year after the U.S. Supreme Court ruled certain wetlands are not protected under the federal Clean Water Act.

Delaware is the only state in the mid-Atlantic that does not have a nontidal wetland protection program. Since 1988, there have been six failed legislative attempts to protect these resources in the state.

During a legislative hearing Wednesday, environmental groups said state regulations for nontidal wetlands are long overdue. However, developers and farmers voiced concerns that Hansen’s bill could impact anyone who wants to build on wetlands, or whose property contains wetlands.

Hansen said she believes a substitute bill will address those concerns.

“We already have been able to bring together disparate groups that previously had not been able to come to an agreement, and had not come to the table with a willingness to successfully work together,” she said.

“What we heard today with some of the testimony is we need to bring a few more people to the table, as well, which we are certainly happy to do. And we have a head start on it now.”

Also known as freshwater wetlands, nontidal wetlands are found near inland areas and do not have tidal influxes of water. They can be found in several forms, including depressions, rivers and swamps.

Nontidal wetlands make up more than half of Delaware’s wetlands. However, their acres have reduced over time because of threats such as sea level rise, development and agricultural practices.

Delaware law protects saltwater wetlands. However, the state has relied on federal regulations to manage freshwater wetlands with fewer than 400 contiguous acres.

Since the most recent Supreme Court decision, almost half of Delaware’s nontidal wetlands have been vulnerable to development without oversight.

Hansen’s current legislation would allow nontidal wetlands to be managed under the same program as the state’s saltwater wetlands regulations. Under the bill, developers would be required to prevent impacts to freshwater wetlands.

Hansen introduced similar legislation in 2020 after the federal government rolled back protections for freshwater wetlands, but it did not receive support from the Delaware Department of Natural Resources and Environmental Control.