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SPONSOR: Sen. Hansen & Sen. Townsend & Rep. Heffernan
Sens. Buckson, Cruce, Hoffner, Huxtable, Lockman,
Pinkney, Seigfried, Sokola, Sturgeon; Reps. Berry,
Bolden, Burns, Gorman, Griffith, Lambert, Morrison,
Osienski, Phillips, Romer, Snyder-Hall
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 9
AN ACT TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO THE PROTECTION OF WETLANDS.
1 WHEREAS, healthy wetlands reduce, store, and filter stormwater runoff and can help remove harmful bacteria
2 and pollutants, thereby protecting sources of Delaware’s water supply; and
3 WHEREAS, wetlands provide flood storage capacity thereby protecting public and private property from flooding
4 and the resultant financial and personal impacts associated therewith; and
5 WHEREAS, the preservation, restoration, creation, and enhancement of wetlands plays a critical role in mitigating
6 the adverse impacts of climate change, supporting biodiversity and ensuring water resource sustainability for our State; and
7 WHEREAS, wetlands are one of the most powerful natural carbon sinks on Earth, storing a disproportionately
8 large share of terrestrial carbon; and
9 WHEREAS, while the State has acted to protect tidal wetlands, it has not taken action to protect the State's
10 nontidal wetlands relying instead on federal regulations enforced by the United States Army Corps of Engineers pursuant to
11 the Clean Water Act; and
12 WHEREAS, the federal government has shifted its definition of what qualifies as a wetland under its jurisdiction
13 three times from 2015 to 2023; and
14 WHEREAS, in a 2022 report to the General Assembly titled “Options for a Nontidal Wetland Permitting
15 Program,” the Delaware Department of Natural Resources and Environmental Control determined that the approximate
16 acreage of nontidal wetlands no longer protected under federal jurisdiction was roughly 30,000 acres; and
17 WHEREAS, the U.S. Supreme Court case of Sackett vs. EPA decided in 2023 further reduced federal jurisdiction
18 over wetlands, now leaving approximately 75,000 acres unprotected in Delaware; and
19 WHEREAS, it is important that the State modify its existing wetlands permit program to add necessary protections
20 for nontidal wetlands, as Delaware is the only state in the mid-Atlantic region without state-level protections, and thus is
21 especially vulnerable to changes at the federal level; and
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22 WHEREAS, protection of all wetlands will be consistent with the current policy of this State to preserve and
23 protect the productive public and private wetlands to prevent their loss and impairment and consistent with the historic right
24 of private ownership of lands.
25 NOW, THEREFORE:
26 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all
27 members elected to each house thereof concurring therein):
28 Section 1. Amend Chapter 66, Title 7 of the Delaware Code by making deletions as shown by strike through and
29 insertions as shown by underline as follows:
30 § 6601. Short title.
31 This chapter shall be known and may be cited as “The Wetlands Stewardship Act.”
32 § 6602. Purpose.
33 It is declared that much of the wetlands of this State have been lost or despoiled by unregulated dredging,
34 dumping, filling and like activities and that the remaining wetlands of this State are in jeopardy of being lost or despoiled
35 by these and other activities; that such loss or despoliation will adversely affect, if not entirely eliminate, the value of such
36 wetlands as sources of nutrients to finfish, crustacea and shellfish of significant economic value; that such loss or
37 despoliation will destroy such wetlands as habitats for plants and animals of significant economic and ecological value and
38 will eliminate or substantially reduce marine commerce, recreation and aesthetic enjoyment; that such loss or despoliation
39 will, in most cases, disturb the natural ability of wetlands to reduce flood damage and adversely affect the public health and
40 welfare; that such loss or despoliation will substantially reduce the capacity of such wetlands to absorb silt and will thus
41 result in the increased silting of channels and harbor areas to the detriment of free navigation, and that such loss or
42 despoliation substantially impairs our resiliency as a State to withstand the impacts of climate change. It is hereby
43 determined that the coastal areas of Delaware are the most critical areas for the present and future quality of life in the State
44 and that the preservation of the coastal wetlands is crucial to the protection of the natural environment of these coastal
45 areas. It is hereby determined that the transitional areas between terrestrial and aquatic ecosystems of Delaware, and the
46 wetlands in or about such areas of Delaware, are critical areas for the present and future quality of life in the State and that
47 the preservation of tidal and nontidal wetlands is crucial to the protection of the natural environment. Therefore, it is
48 declared to be the public policy of this State to preserve and protect the productive public and private wetlands and to
49 prevent their despoliation and destruction consistent with the historic right of private ownership of lands, to attain, through
50 a combination of permitting, mitigation and other strategies, a statewide goal of no net overall loss in wetland acreage and
51 function from human-driven activity, and to strive for a net resource gain in wetlands over present conditions.
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52 § 6603. Definitions.
53 (a) “Activity” means any dredging, draining, filling, bulkheading, construction of any kind, including, but not
54 limited to, construction of a pier, jetty, breakwater, boat ramp, or mining, drilling or excavation.
55 (b) “Authorized activity” includes any activity allowed after receipt of a permit from the Department.
56 (c) “Board” means the Environmental Appeals Board.
57 ( ) “Community Water Access Structure” means a structure constructed for the purpose of transporting pedestrians
58 from the uplands of a multi-unit or multi-home community across wetlands to: (i) uplands; (ii) a water body, or (iii) to a
59 permitted structure (e.g. dock, observation tower, etc.). The intent of a community access structure is to provide the
60 community, as a whole, access to the permitted structure rather than multiple individual structures; thereby reducing the
61 overall environmental impacts. A Community Water Access Structure is not a pier.
62 ( ) “Delaware Wetland Screening Tool” means a screening tool to be developed as a component of the initial
63 regulations promulgated by the Department that could be used to determine whether an area has the potential to qualify as a
64 wetland, including tidal or non-tidal wetlands, and could indicate those areas that may require further evaluation to
65 determine if the wetlands are of “Exceptional Value,” utilizing the factors set forth in this section. The tool shall, where
66 available, provide maps to assist in screening for wetland status, which maps shall, among other layers, include information
67 on all known Unique wetland parcels. Such maps will only be determinative of wetland status to the extent the Department
68 so indicates. The tool should also address wetland function, with scored criteria for establishing high function, moderate
69 function, and low function wetland areas. The tool will also separately address high function for purposes of the exemption
70 at § 6606(b)(3). It is intended that the tool will be updated on an ongoing basis to incorporate current knowledge of the
71 Department. The tool should incorporate guidance to the public on exempt activities. The tool may include other elements
72 as determined by the Department.
73 (d) “Department” means the Department of Natural Resources and Environmental Control.
74 ( ) “Exceptional Value Wetlands” shall be defined by regulations, and shall include: wetlands that are: (i) Unique
75 or high functioning; (ii) wetlands that, based upon documented and appropriate habitat criteria, support flora or fauna listed
76 as endangered or threatened under the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. or listed as endangered
77 pursuant to § 601 of this title (iii) wetlands located in public water supply Source Water Protection Areas; and (iv) wetlands
78 located within designated natural areas. With regard to the second listed criteria, the regulations shall provide guidance on
79 how a landowner can rebut any presumption that a particular wetland supports any given species of concern. This
80 presumption may be rebutted through a “Presence/Probable Absence Study” that will, using standardized field methods and
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81 survey efforts, determine whether any particular species of concern is detected or, if not detected, can be treated as probably
82 absent.
83 ( ) “Foot Bridge” means a narrow pedestrian bridge that crosses wetlands for the purpose of transporting
84 pedestrians from one upland location to another upland location, or to a blind, or to a structure exempt from regulation.
85 Foot Bridges crossing wetlands cannot exceed 3 feet in width and the length is restricted to the minimum distance
86 necessary to access an upland site or exempt structure. A Foot Bridge is not a pier and cannot be constructed for the
87 purpose of transporting pedestrians from uplands across wetlands to a water body or dock. Foot Bridges are simple
88 structures with no appurtenances such as but not limited to handrails, utilities, or other associated structures.
89 ( ) “Linear Utility Infrastructure Projects” means the construction, maintenance, repair, and removal of overhead
90 or underground electric or telecommunication transmission lines, underground water or sewage or stormwater conveyance
91 lines, and oil and natural gas pipelines and associated facilities.
92 ( ) “Mitigation” means:
93 (1) An action undertaken to accomplish one or more of the following:
94 a. Avoid or minimize impacts by limiting the degree or magnitude of the action and its
95 implementation.
96 b. Rectify the impact by repairing, rehabilitating or restoring the impacted environment.
97 c. Reduce or eliminate the impact over time by preservation and maintenance operations during
98 the life of the action.
99 (2) If the impact cannot be eliminated by following paragraphs (1)a.-c. of this subsection, compensate for
100 the impact by replacing the environment impacted by the project or by providing substitute resources or
101 environments of similar or greater type, size and function.
102 ( ) “Normal residential gardening and lawn and landscape maintenance” means ongoing noncommercial residential
103 activities conducted by or on behalf of an individual occupant, including mowing; planting; fertilizing; mulching; tilling;
104 vegetation removal by hand or by hand tools; and placement of decorative stone, fencing, and play equipment. Other
105 appurtenant noncommercial activities, provided that they do not result in the conversion of a wetland to upland or to a
106 different wetland type, may also be included.
107 (e) ( ) “Person” means any individual, group of individuals, contractor, supplier, installer, user, owner, partnership,
108 firm, company, corporation, association, joint stock company, trust, estate, political subdivision, administrative agency,
109 public or quasi-public corporation or body, or any other legal entity, or its legal representative, agent or assignee.
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110 ( ) “Pilings” means timber, metal, concrete or other similar structures driven, dropped, poured or placed to support
111 a vertical load.
112 (f) ( ) “Preexisting use” means any use of land, or water, or subaqueous lands, or of a structure or any combination
113 of these which was lawfully in existence prior to and in active use on July 17, 1973, or any temporary or seasonal use in
114 active use for 10 consecutive weeks within the last 12 months previous to July 17, 1973.
115 (g) ( ) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control.
116 (h) “Wetlands” shall mean those lands above the mean low water elevation including any bank, marsh, swamp,
117 meadow, flat or other low land subject to tidal action in the State along the Delaware Bay and Delaware River, Indian River
118 Bay, Rehoboth Bay, Little and Big Assawoman Bays, the coastal inland waterways, or along any inlet, estuary or tributary
119 waterway or any portion thereof, including those areas which are now or in this century have been connected to tidal
120 waters, whose surface is at or below an elevation of 2 feet above local mean high water, and upon which may grow or is
121 capable of growing any but not necessarily all of the following plants:
122 Eelgrass (Zostera marina), Widgeon Grass (Ruppia maritima), Sago Pondweed (Potamogeton pectinatus),
123 Saltmarsh Cordgrass (Spartina alterniflora), Saltmarsh Grass (Spartina cynosuroides), Saltmarsh Hay (Spartina patens),
124 Spike Grass (Distichlis spicata), Black Grass (Juncus gerardii), Switch Grass (Panicum virgatum), Three Square Rush
125 (Scirpus americanus), Sea Lavender (Limonium carolinianum), Seaside Goldenrod (Solidago sempervirens), Seablite
126 (Suaeda maritima), Sea Blite (Suaeda linearis), Perennial Glasswort (Salicornia virginica), Dwarf Glasswort (Salicornia
127 bigelovii), Samphire (Salicornia europaea), Marsh Aster (Aster tenuifolius), Saltmarsh Fleabane (Pluchea purpurascens var.
128 succulenta), Mock Bishop’s Weed (Ptilimnium capillaceum), Seaside Plantain (Plantago oliganthus), Orach (Atriplex
129 patula var. hastata), Marsh Elder (Iva frutescens var. oraria), Groundsel Bush (Baccharis halimifolia), Bladderwrack (Fucus
130 vesiculosus), Swamp Rose Mallow, Seaside Hollyhock or March Mallow (Hibiscus palustris), Torrey Rush (Scirpus
131 torreyi), Narrow-leaved Cattail (Typha angustifolia), and Broad-leaved Cattail (T. latifolia) and those lands not currently
132 used for agricultural purposes containing 400 acres or more of contiguous nontidal swamp, bog, muck or marsh exclusive
133 of narrow stream valleys where fresh water stands most, if not all, of the time due to high water table, which contribute
134 significantly to ground water recharge, and which would require intensive artificial drainage using equipment such as
135 pumping stations, drain fields or ditches for the production of agricultural crops.
136 ( ) “Unique” wetlands are those categorized by the Department as: (i) Coastal Plain seasonal ponds; (ii) Inner-dune
137 depression meadows; (iii) Peat-land fens; (iv) Piedmont stream valley wetlands; (v) Bald cypress swamps; (vi) Atlantic
138 white cedar swamps; and (vii) Black ash seepage swamps.
139 ( )(1) “(h) “Voluntary wetland habitat restoration project” means any of the following:
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140 (1) Activities that are voluntarily undertaken to restore, reestablish, rehabilitate, or enhance altered or
141 degraded or former aquatic habitats, and that result in a net increase in aquatic habitat functions and services,
142 (2) Activities to maintain or manage aquatic sites where activities described in paragraph (1) of this
143 subsection have taken place,
144 (3) A voluntary wetland habitat restoration project may only include construction activities related solely
145 to the habitat restoration action.
146 (4) A voluntary wetland habitat restoration project does not include an activity undertaken to fulfill,
147 currently or in the future, a federal, state, or local aquatic habitat permit mitigation requirement.
148 (5) Aquatic Habitat Functions and Services means any of the following:
149 a. aquatic habitat hydrology that approximates the pre-disturbance condition or that emulates the
150 natural condition of the aquatic habitat,
151 b. fish and wildlife habitat quality or quantity,
152 c. plant community quality, characterized by native vegetation types and diversity,
153 d. water- and soil-related functions of the aquatic habitat, such as nutrient removal, sediment
154 reduction, flood control or groundwater recharge,
155 e. recreational use of the aquatic habitat, including, but not limited to, hunting, fishing, trapping
156 and birdwatching, and providing recreational access consistent with the restoration project.
157 ( ) “Wetland Walkway” means a walkway constructed for the purpose of transporting pedestrians from uplands
158 across wetlands, to: (i) uplands; (ii) a water body or; (iii) to a permitted structure (e.g. dock, observation tower, etc.). The
159 width and height of a Wetland Walkway shall be constrained to the dimension needed to enable one-stop permitting of both
160 State and federal permits by means of State Programmatic General Permits. A Wetland Walkway is not a pier.
161 ( ) "Wetlands" means all tidal and nontidal wetlands in the State. The terms "wetlands," "nontidal wetlands," and
162 "tidal wetlands" shall be defined in regulations adopted by the Department, which regulations must be based upon generally
163 accepted criteria and methodologies, including (i) the U.S. Army Corps of Engineers Wetlands Delineation Manual dated
164 January 1987, and (ii) any regional supplemental guidance pertaining to local conditions.
165 § 6604. Permit Required.
166 (a) Any activity in the wetlands requires a permit from the Department except the activity or activities exempted
167 by this chapter. and no permit may be granted unless the county or municipality having jurisdiction has first approved the
168 activity in question by zoning procedures provided by law.
169 (b) The Secretary shall consider the following factors prior to issuance of any permit:
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170 (1) Environmental impact, including but not limited to, likely destruction of wetlands and flora and fauna;
171 impact of the site preparation on tidal ebb and flow and the otherwise normal drainage of the area in question,
172 especially as it relates to flood control; impact of the site preparation and proposed activity on land
173 erosion; effect of site preparation and the proposed activity on the quality and quantity of tidal and nontidal waters,
174 surface, ground and subsurface water resources, the related watershed, and other resources; resources.
175 (2) Aesthetic effect, such as the impact on scenic beauty of the surrounding area;area.
176 (3) The number and type of public and private supporting facilities required and the impact of such
177 facilities on all factors listed in this subsection; subsection.
178 (4) Effect on neighboring land uses, including but not limited to, any increased water retention or flood
179 risk, public access to tidal and nontidal waters, recreational areas and effect on adjacent residential and agricultural
180 areas;
181 (5) State, county and municipal comprehensive plans for the development and/or conservation of their
182 areas of jurisdiction; and
183 (6) Economic effect, including the number of jobs created and the income which will be generated by the
184 wages and salaries of the jobs in relation to the amount of land required, and the amount of tax revenues
185 potentially accruing to the state, county and local governments.
186 (c) The applicant for a wetlands permit shall have the burden of proving whether the proposed activity is,
187 or is not, within tidal or nontidal wetlands,
188 (cd) The Secretary may require a bond in an amount and with surety and conditions sufficient to secure
189 compliance with the conditions and limitations, if any, set forth in the permit. The particular amount and the particular
190 conditions of the bond required shall be consistent with and in furtherance of the purposes of this chapter. The Secretary
191 shall state for the record, the basis for the bonding requirements imposed with each permit granted. In the event of a breach
192 of any condition of any such bond, the Attorney General may institute an action in Superior Court upon such bond and
193 prosecute the same to judgment and execution.
194 § 6605. Preexisting use.
195 Unless otherwise exempt through regulation, Any any expansion or extension of a preexisting use of wetlands
196 requires a permit. and no permit may be granted under this chapter unless the county or municipality having jurisdiction has
197 first approved the use in question by zoning procedures provided by law.
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198 §6606. Exemptions.
199 (a) Any of the following activities are exempt from any permit requirements or any other regulation under this
200 chapter: Mosquito control activities authorized by the Department; construction of directional aids to navigation; duck
201 blinds; foot bridges; the placing of boundary stakes; wildlife nesting structures; grazing of domestic animals; haying;
202 hunting; fishing and trapping.
203 (1) Farming on any lands upon which, in the prior 10 years on a rolling basis, normal activities have been
204 conducted either (i) for the farming and production of agricultural crops, or (ii) manifesting an intent to farm the
205 land for the production of agricultural crops, including but not limited to, activities such as plowing, seeding,
206 clearing, irrigation installation, haying, grazing of domestic animals and free ranging livestock or poultry,
207 cultivating, and harvesting, provided that such activity is part of an established and ongoing operation for the
208 farming and production of agricultural crops.
209 (2) Silvicultural activities permitted by the Delaware Department of Agriculture, including but not limited
210 to the harvesting of timber, the construction of roads and trails for forest management purposes, and the
211 preparation of property for reforestation;
212 (3) Conservation practices on lands that are engaged in programs through the United States Department
213 of Agriculture, United States Department of the Interior, Delaware Department of Agriculture, a Delaware
214 Conservation District, or similar natural resource conservation programs approved by the Department, for taking
215 land(s) out of production and implementing conservation practices during the contract term;
216 (4) Hunting, fishing, trapping, and duck blinds;
217 (5) Wildlife nesting structures;
218 (6) Mosquito control activities authorized by the Department;
219 (7) Construction of drainage ditches, tax ditches, swales and other drainage features created from uplands
220 to assist with drainage or stormwater management. Maintenance of constructed drainage ditches, tax ditches,
221 swales and other drainage features created from uplands to assist with drainage or stormwater management in
222 upland areas are also exempted;
223 (8) Artificial ponds and borrow pits, including stormwater management ponds unless they are constructed
224 in line with an intermittent or perennial stream or a jurisdictional wetland;
225 (9) Construction of directional aids to navigation;
226 (10) The placing of boundary stakes;
227 (11) Foot Bridges.
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228 (12) Normal residential gardening and lawn and landscape maintenance.
229 (b) Any of the following activities are conditionally exempt as set forth below:
230 (1) In nontidal wetlands that do not qualify as Exceptional Value Wetlands, any activity that would be
231 allowed under a Nationwide Permit issued by the Army Corps of Engineers and in effect in Delaware, provided
232 that a Water Quality Certification has been received from the Department where necessary.
233 (2) Any activity in tidal wetlands, undertaken by the Department or a federal agency, or a non-profit
234 acting on behalf of the Department or a federal agency, for a voluntary wetland habitat restoration project, that
235 would be allowed under a Nationwide Permit issued by the Army Corps of Engineers and in effect in Delaware.
236 (3) Nontidal wetlands equal to or less than a contiguous 0.50 acres in extent, on one parcel or multiple parcels,
237 shall be exempted out of any further regulation under this chapter after submission to the Department of a certification,
238 from a professional certified by the Department, that the wetlands do not qualify as Unique wetlands as defined in § 6603
239 of this title, or as high function wetlands as defined in regulations. For purposes of this exemption, any measurement of
240 high function shall be made independently of whether the parcel supports, or could support, any flora or fauna listed as
241 endangered or threatened under the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. or listed as endangered
242 pursuant to § 601 of this title. The process for professional certification, and the protocol to identify a high function
243 wetland for the specific purposes of this exemption, shall be established by the Department through regulations.
244 (4) Work performed by any state, county, municipal government or conservation district, or their
245 designated contractor, when that work occurs in nontidal wetlands in the Delaware Atlantic Coastal Plain Province
246 with a contributing drainage area of less than 800 acres.
247 (5) Maintenance, reconstruction or retrofitting work performed by or with the assistance of any state,
248 county, municipal government or conservation district when that work occurs in any nontidal wetlands. Such
249 maintenance, reconstruction or retrofitting work shall comply with the standards and specifications associated with
250 best management practices in the Delaware Erosion and Sediment Control Handbook, 1989 or as revised (68 Del.
251 Laws, c. 268, § 2).
252 (6) Any work in agricultural drainage ditches created from uplands that are designed according to
253 reasonable drainage standards, when performed by or with the assistance of any state, county, municipal
254 government or conservation district.
255 (7) Creation or maintenance of ponds constructed in uplands when those ponds are constructed or
256 maintained by or with the assistance of any state, county, municipal government or conservation district.
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257 (8) Wetland Walkways are exempt where: (i) Federal authorization is not needed, and the length is less
258 than or equal to three hundred (300) feet in non-tidal wetlands that do not qualify as Exception Value Wetlands; or
259 (ii) Federal authorization is not needed, and the length is less than or equal to one hundred and fifty (150) feet in
260 tidal wetlands that do not qualify as Exception Value Wetlands.
261 § 6607. Procedures; regulations; application fees.
262 (a) The Secretary shall administer this chapter.
263 (b) The initial regulations promulgated under this chapter shall establish the Delaware Wetland Screening Tool
264 referenced in § 6603 of this title. The Delaware Wetland Screening Tool may include: (i) screening methodologies to
265 determine the likely or predicted existence of a wetland; (ii) methodologies for confirming and/or refining that assessment
266 based on field conditions using published criteria such as Cowardin et al. 1979; (iii) criteria for the evaluation and rating of
267 wetland function, including high, moderate and low function; (iv) screening criteria to distinguish between tidal and
268 nontidal wetlands; (iv) criteria for screening for the identification of Exceptional Value Wetlands; and (v) certification and
269 oversight criteria for the use of the Delaware Wetlands Screening Tool by Department-certified professionals on behalf of
270 the public. It is intended that, to the maximum extent possible, and excepting any “Presence/Probable Absence Study,” any
271 onsite screening required could be performed in under one day and with a minimum of equipment.
272 (b) The Secretary shall inventory, as promptly as he or she is able, all wetlands within the State and prepare
273 suitable maps. Such maps shall be filed with the Secretary of State and made available for public inspection at the offices of
274 the Department. On completion of a wetlands boundary map for an area, the Secretary shall propose that wetlands within
275 the area be designated as such in accordance with the map. Wetlands designation on the maps shall be conclusive for the
276 purpose of this chapter upon adoption by the Secretary, subject to the outcome of any appeals taken under this section, and
277 subsection (e) of this section. After such designation, the 2-foot elevation above local mean high water specified in § 6603
278 of this title shall not apply to any land outside the designated area.
279 (c) The Secretary shall adopt a wetlands designation or any other regulation only after holding a public hearing in
280 accordance with § 6609 of this title.
281 (d) The Secretary shall, in furtherance of the purpose of this chapter, adopt regulations:
282 (1) Setting forth procedures, including provision for fees, which shall govern the processing of permit
283 applications and the conduct of hearings;
284 (2) Elaborating standards consistent with §6604 of this title by which each permit application will be
285 reviewed and acted upon;
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286 (3) Controlling or prohibiting activities on lands designated or proposed for designation as wetlands,
287 which regulations may vary from area to area according to the ecological value of the subject wetlands and the
288 threat to the health and welfare of the people of this State which their alteration would pose.
289 (4) Affording additional protections to Exceptional Value Wetlands, including restrictions on allowed
290 activities and development of best management practices for any allowed activity in such areas.
291 (5) Reducing duplication with the permitting requirements of the Army Corps of Engineers. Where
292 possible, the regulations should enable joint applications or one-stop permitting in areas of jurisdictional overlap.
293 (6) Improving the State’s ability to account accurately for cumulative and individual impacts from
294 wetlands permitting actions.
295 (7) Promulgating mitigation strategies designed to facilitate no net overall loss in wetland acreage and
296 function throughout the State, and to protect Delaware’s resiliency to the impacts of climate change. Strategies to
297 be considered include a wetland mitigation bank, aquatic restoration fund, in-lieu fee program, or other vehicle
298 that provides incentives for the creation, restoration, enhancement, or protection of wetlands. Incentives shall be
299 structured to create a framework that provides a strong incentive for the preservation of Exceptional Value
300 Wetlands.
301 (8) Establishing General Permits to improve the efficiency of permitting for common and/or
302 environmentally beneficial activities with minimal environmental impact. All such General Permits shall state
303 whether they apply in nontidal wetlands, tidal wetlands, or both. General Permits to be considered include:
304 a. A General Permit that authorizes Voluntary Wetland Habitat Restoration Projects through an
305 expedited process.
306 b. A General Permit that authorizes Linear Utility Infrastructure Projects.
307 c. A General Permit that authorizes the use of pilings in nontidal wetlands in appropriate
308 circumstances. The regulations shall consider imposing restrictions where: (i) the pilings are so closely
309 spaced that sedimentation rates would be increased; (ii) the pilings themselves effectively would replace
310 the bottom of a water body; (iii) the placement of pilings or related structures would result in the adverse
311 alteration or elimination of aquatic or biologic functions; and (iv) the pilings are intended to be used for
312 structural support of a building such as a commercial or residential structure.
313 d. A General Permit that authorizes the placement of educational signage and/or the construction
314 of infrastructure for public use (e.g. viewing towers, nature trails), as determined by the Department.
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315 e. A General Permit that authorizes a Wetland Walkway for individual properties for water
316 access under designated conditions to enable one-stop State and federal permitting by means of State
317 Programmatic General Permits.
318 f. A General Permit that authorizes one community access structure per community for multi-
319 unit or multi-home communities for water access under designated conditions;
320 g. A General Permit, to be known as the “Default General Permit,” applicable to activities that
321 disturb a cumulative area of nontidal wetlands equal to or less than 0.50 acres in extent that do not qualify
322 as Exceptional Value Wetlands. This “Default General Permit” shall require mitigation measures and
323 shall only issue in the circumstances set forth in subsection (h) of this section.
324 (4) (e) Any fees collected under this chapter are hereby appropriated to the Department to carry out the purposes of
325 this chapter. The Secretary shall report through the annual budget process the receipt, proposed use and disbursement of
326 these funds.
327 (f) The Secretary will consult with the soil conservation districts, the Department of Agriculture, and, as the
328 Secretary deems appropriate, any other relevant state, local, or federal agency in the development of best management
329 practices to protect wetlands in compliance with the regulations to be adopted by the Department under this chapter.
330 (g) The Department must notify the applicant within 30 days as to whether their application as submitted is
331 administratively complete and request any information required to complete the application. The applicant has 30 days to
332 respond with the requested information. Except as set forth in subsection (h) of this section, the Department has 120 days
333 after receipt of a complete application to either issue or deny the permit, or state that an extension of time is required. Any
334 such extension shall provide an anticipated timeline for a final determination on the permit, and shall provide specific
335 reasons why an extension of time is required. Any permit denial must include specific reasons for denial including citations
336 to the lack of compliance with this chapter. The foregoing timelines do not apply to applications involving the resolution of
337 identified violations or applications which require the approval of a mitigation plan. The foregoing timelines do not apply
338 to applications involving a permit hearing.
339 (h) Where a permit application is submitted for activities that disturb a cumulative area of nontidal wetlands equal
340 to or less than 0.50 acres in extent that do not qualify as Exceptional Value Wetlands, and where the Department has not
341 issued or denied a permit within 120 days from receipt of a complete application for such activities, the Default General
342 Permit set forth in paragraph (d)(8)g. of this section shall be automatically issued in connection with the application. The
343 foregoing timeline does not apply to applications involving the resolution of identified violations or applications involving
344 a permit hearing.
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345 (i) The Department shall develop a tracking system to record and make public its response times for all permit
346 applications received.
347 (e) (j) If an on-site evaluation by the Department establishes that an error exists in a wetlands map that has been
348 adopted by the Department, the wetlands map containing the error may be corrected by the Department after the
349 Department documents, in writing, the results of the on-site evaluation, and the Department gives the public notice of any
350 proposed correction. For purposes of this subsection, the term “public notice” shall consist of having notice of the proposed
351 correction, the name of the property owner, location of the property in issue and a description of the error, published in a
352 daily newspaper of general circulation throughout the State and a newspaper of general circulation in the county in which
353 the activity is proposed. Such notice shall be published at least 20 days in advance of any correction to a map by the
354 Department. If the Department determines that it has received a meritorious objection to any proposed correction set forth
355 in a public notice, the Department shall hold a public hearing in accordance with the procedures set forth in §6609 of this
356 title. Any Department correction made to an adopted wetlands map shall be filed with the Secretary of State and made
357 available for public inspection at the offices of the Department.
358 (f)(k) The Secretary may waive any provision of the regulations adopted pursuant to this chapter when warranted
359 under the following circumstances:
360 (1) Life-threatening emergencies.
361 (2) Actions required for public safety for which sufficient time is not available to follow the regulations.
362 (3) When imminent or catastrophic damage or loss of major infrastructure is likely if all provisions of the
363 regulations are adhered to.
364 (4) Where the authority of the Department under this chapter overlaps with another statute, including but
365 not limited to shellfish grounds (Chapter 19 of this title), beach preservation (Chapter 68 of this title) or
366 subaqueous lands (Chapter 72 of this title) provided that the following criteria are met:
367 a. If, in the opinion of the Secretary, equal environmental impact review and regulation of the
368 activity would be provided by either statute; and
369 b. Waiver of these regulations would not be contrary to the purposes of this chapter.
370 (g)(l) The Secretary may issue an after-the-fact permit, letter of authorization or waiver in those cases
371 where an activity has occurred without first obtaining the required permit, letter of authorization or waiver. The
372 determination of whether or not to issue an after-the-fact permit, letter of authorization or waiver shall be
373 consistent with the purposes and provisions of this chapter. The applicant receiving the after-the-fact permit, letter
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374 of authorization, or waiver will be responsible for paying any associated processing fee and the Secretary may
375 assess a penalty in accordance with § 6005 of this title.
376 § 6608. Permit applications.
377 (a) Any person desiring to obtain a permit required by § 6604 of this title shall submit an application in such form
378 and accompanied by such plans, specifications and other information as required by applicable regulations.
379 (b) Upon receipt of an application in proper form, the Secretary shall post on the Department’s website and
380 advertise in a daily newspaper of statewide circulation and in a newspaper of general circulation in the county in which the
381 activity is proposed, a notice containing all of the following:
382 (1) The fact that the application has been received.
383 (2) A brief description of the nature of the application.
384 (3) An electronic address where there are instructions for reading the application online. The Department
385 may provide instructions for nonelectronic review of application attachments that are too voluminous to post
386 online.
387 (c) The Secretary may hold a public hearing with respect to any application if it is deemed to be in the best public
388 interest. The Secretary shall hold a public hearing if the Secretary receives a written meritorious public hearing request
389 expressing opposition to the application within 20 days of advertisement. A public hearing request shall be deemed
390 meritorious if it exhibits a familiarity with the application, and a reasoned statement of the permit's probable impact., and a
391 demonstrated and substantial nexus between the requestor and this probable impact.
392 § 6609. Public hearings.
393 Any public hearing held by the Secretary or the Board concerning a regulation, permit application or alleged
394 violation or appeal shall be conducted as follows:
395 (1) Notification shall be served upon the applicant, alleged violator, or appellant as summonses are served
396 by registered or certified mail not less than 20 days before the time of said hearing. Not less than 20 days' notice
397 shall also be published in a daily newspaper of general circulation throughout the State and a newspaper of general
398 circulation in the county in which the activity is proposed. Such notice shall also be sent by mail simultaneously to
399 persons who have listed their names and addresses with the Secretary to be notified. Such notice shall also be sent
400 by mail simultaneously to all adjoining property owners. Notice shall outline the area concerned, activity involved,
401 and the location where the application for a permit or other pertinent material is available for inspection.
402 (2) The permit applicant, alleged violator, or appellant may appear personally or by counsel at the hearing
403 and produce any competent evidence in his or her behalf. The Secretary or his duly authorized designee or the
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404 Board or its duly authorized designee may administer oaths, examine witnesses and issue, in the name of the
405 Department or the Board, notices of hearings or subpoenae subpoenas requiring the testimony of witnesses and the
406 production of books, records or other documents relevant to any matter involved in such a hearing; and subpoenae
407 subpoenas shall also be issued at the request of the applicant or alleged violator. In case of contumacy or refusal to
408 obey a notice of hearing or subpoena under this section, the Superior Court in the county in which the hearing is
409 held shall have jurisdiction, upon application of the Secretary or the Chairperson of the Board, to issue an order
410 requiring such person to appear and testify or produce evidence as the case may require.
411 (3) A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits
412 and other documents introduced by the Secretary or other party, constitute the record.
413 The Secretary or the Secretary's duly authorized designee or the Board or its duly authorized designee shall make
414 findings of fact based on the record. The Secretary or the Board shall then enter such order as will best further the purpose
415 of this chapter, and shall state reasons. The Secretary or the Board shall promptly give written notice to the persons affected
416 by such order.
417 § 6610. Appeal to Board.
418 Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental
419 Appeals Board within 20 days after the Secretary has announced the decision receipt of the Secretary's decision, or
420 publication of the decision including, without limitation, online publication on the Department's website, whichever is
421 soonest.
422 § 6612. Appeal from Board's decision.
423 (a) Any person or persons, jointly or severally affected by any decision or nondecision of the Board, or any
424 taxpayer, or any officer, department, board or bureau of the State, may appeal to the Superior Court in and for the county in
425 which the use in question is wholly or principally located by filing a petition, duly verified, setting forth that such decision
426 is illegal, in whole or in part, specifying the grounds of the illegality. Any such appeal shall be perfected within 30 days of
427 the decision of the Board.
428 (b) The Court may affirm, reverse or modify the Board's decision. The Board's findings of fact shall not be set
429 aside unless the Court determines that the record contains no substantial evidence that would reasonably support the
430 findings. If the Court finds that additional evidence should be taken, the Court may remand the cause to the Board for
431 completion of the record.
432 § 6613. Taking without just compensation.
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433 If the Superior Court finds that the action appealed from constitutes a taking without just compensation, it shall
434 invalidate the order and grant appropriate relief, unless the Secretary at this stage, consents to the reversal or modification
435 of his or her decision. However, the Secretary may, through negotiation or condemnation proceedings under Chapter 61 of
436 Title 10, acquire the fee simple or any lesser interest, including but not limited to, a perpetual negative easement or other
437 interest which assures that the affected land shall not thereafter be altered, dredged, dumped upon, filled or otherwise
438 altered subject to any reasonable reservations to the landowner as the Secretary may have stipulated to prior to assessment
439 of damages. A decision of the Superior Court that the action appealed from constitutes a taking without just compensation
440 shall not become effective for 2 years of the date of decision and shall not become effective at all if within that period the
441 Secretary has initiated action to acquire fee simple or any lesser interest in the wetlands in question. A finding of the
442 Superior Court that the denial of a permit or the restrictions imposed by a granted permit constitutes a taking without just
443 compensation shall not affect any land other than that of the petitioning landowner. If the Secretary has not initiated action
444 to acquire fee simple or any lesser interest in the wetlands in question within 2 years from the date of a final court ruling,
445 the permit must be granted as applied.
446 § 6614. Cease and desist orders.
447 The Secretary shall have the power to issue an order to any person violating any rule, regulation or order or permit
448 condition or provision of this chapter to cease and desist from such violation. Any cease and desist order issued pursuant to
449 this section shall expire (1) after 30 days of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when
450 the order is suspended by an injunction, whichever occurs first.
451 § 6615. Injunction.
452 Action for injunctive relief may be brought by the Secretary to prevent a violation of this chapter or a permit
453 condition. The Court of Chancery may, at its discretion, require bond in the appropriate amount.
454 § 6616. Right of entry.
455 The Secretary or the Secretary's duly authorized designee, in regulating any activity over which he or she has
456 jurisdiction pursuant to this chapter, may enter, at reasonable times, upon any private or public property for the purpose of
457 determining whether a violation exists of a statute or regulation enforceable by him or her, upon giving written notice, and
458 after presenting official identification to the owner, occupant, custodian or agent of said property.
459 § 6617. Penalties.
460 (a) Whoever violates this chapter or any rule or regulation duly promulgated thereunder, or any condition of a
461 permit issued pursuant to § 6604 of this title, or any order of the Secretary, shall be subject to enforcement in accordance
462 with § 6005 or § 6013, or both, of this title.
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463 (b)-(d) [Repealed.]
464 § 6618. Inconsistent laws superseded; all other laws unimpaired.
465 All laws or ordinances inconsistent with any provision of this chapter are hereby superseded to the extent of the
466 inconsistency; provided, that present and future zoning powers of all counties and municipalities, to the extent that said
467 powers are not inconsistent with this chapter, shall not hereby be impaired; and provided, that a permit granted under this
468 chapter shall not authorize an activity in contravention of county or municipal zoning regulations. As wetlands are of great
469 value to the State and incentivizing the preservation of wetlands is an important goal of the State, a permit granted under
470 this chapter is intended to provide the applicant with the basis to qualify for a local or State land development incentive
471 program.
472 § 6619. Liberal construction.
473 This chapter, being necessary for the welfare of the State and its inhabitants, shall be liberally construed in order to
474 preserve the wetlands of the State.
475 § 6620. Federal aid; other funds.
476 The Department may cooperate with and receive moneys from the federal government, state or local government
477 or any industry or other source. Such moneys received are appropriated and made available for the study and preservation
478 of the wetlands.
479 § 6621. Creation of the Wetlands Regulatory Advisory Committee.
480 (a) There is hereby established the Wetlands Regulatory Advisory Committee (“Committee”).
481 (b) The Committee shall assist the Department in developing the initial regulations required under this chapter,
482 shall review the first 3 years of implementation of the initial regulations, shall report on that review as set forth in this
483 section, and shall provide guidance in other matters related to the work under this chapter as requested by the Secretary.
484 (c) The Committee shall consider nationally recognized best practices and standards, as well as actions that
485 surrounding states have implemented concerning incentive programs, policies, and assumption of regulatory roles. The
486 Committee shall also evaluate the permitting processes for activities regulated by state and federal agencies with the goals
487 of reducing duplication, providing efficient 1-stop permitting, expediting voluntary wetland habitat project permits, and
488 improving the State’s ability to account accurately for cumulative and individual impacts.
489 (d) The Wetlands Regulatory Advisory Committee shall be composed of 25 members as follows:
490 (1) The County Administrator or County Executive, or the County Administrator’s or County Executive’s
491 designee, from each county.
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492 (2) Three members from the Delaware Farm Bureau, including 1 from each county. The Delaware Farm
493 Bureau shall propose at least 2 candidates from each county to the Governor for membership on the Committee,
494 and the members shall be appointed by the Governor.
495 (3) One member who represents the Conservation Districts and whose job requires expertise in
496 stormwater management, appointed by the Governor.
497 (4) Eight members from the environmental advocacy community. Each of the following organizations
498 shall propose candidates to the Governor for membership on the Committee, and the Governor shall appoint 1
499 member from each organization:
500 a. Delaware Center for Inland Bays.
501 b. The Delaware Chapter of the Sierra Club.
502 c. The Delaware Nature Society.
503 d. The Delaware Ornithological Society.
504 e. The Delaware Wild Lands.
505 f. Ducks Unlimited.
506 g. The Nature Conservancy.
507 h. An additional environmental advocacy organization to be identified by the Governor.
508 (5) One member from an environmental justice organization, to be identified and appointed by the
509 Governor.
510 (6) One member from the Home Builders Association of Delaware. The Home Builders Association of
511 Delaware shall propose candidates to the Governor for membership on the Committee, and the member shall be
512 appointed by the Governor.
513 (7) One member from the Delaware Association of Realtors. The Delaware Association of Realtors shall
514 propose candidates to the Governor for membership on the Committee, and the member shall be appointed by the
515 Governor.
516 (8) One member from the American Council of Engineering Companies of Delaware. The American
517 Council of Engineering Companies of Delaware shall propose candidates to the Governor for membership on the
518 committee, and the member shall be appointed by the Governor.
519 (9) One member from the Delmarva Chicken Association. The Delmarva Chicken Association shall
520 propose candidates to the Governor for membership on the committee, and the member shall be appointed by the
521 Governor.
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522 (10) One member from a general business group, to be identified and appointed by the Governor.
523 (11) One member who is a private wetlands consultant, certified by the Society of Wetlands Scientists,
524 with at least 15 years of experience working in the State, appointed by the Governor.
525 (12) Three members from higher education institutions, including 1 faculty member with a specialization
526 in wetlands science, 1 faculty member with a specialization in agricultural economics, and 1 faculty member from
527 the University of Delaware Cooperative Extension with knowledge of forestry or soil conservation, appointed by
528 the Governor.
529 (e) The Committee shall have two Co-Chairs, elected by the Committee at its first meeting.
530 (f) Each committee member appointed by the Governor shall serve for a term of 3 years and shall be eligible for re-
531 appointment for terms of 3 years. An appointment to replace a member whose position becomes vacant prior to the
532 expiration of the member’s term shall be filled only for the remainder of that term. Members shall continue to serve after the
533 expiration of their terms until they resign, are reappointed, or are replaced. Members named by an organization can be
534 replaced at any time at the election of the organization.
535 (g) Members of the Committee shall serve without compensation.
536 (h) The Co-Chairs of the Committee may establish such subcommittees of the Committee as the Co-Chairs
537 determine would provide assistance to the Committee in meeting its responsibilities. Any subcommittee shall be chaired by
538 a Committee member.
539 (i) A quorum of the Committee is a majority of the Committee’s members. A vacant position is not counted for
540 quorum purposes.
541 (j) Official action by the Committee, including making findings and recommendations, requires the approval of a
542 majority, plus one additional member, of the Committee members at a meeting where a quorum is present.
543 (k) Any member missing two consecutive meetings without good cause shall be eligible for replacement, at the
544 discretion of the Co-Chairs.
545 (l) The Committee may adopt rules necessary for its operation. If the Committee does not adopt rules or if the
546 adopted rules do not govern a given situation, Robert’s Rules of Order governs.
547 (m) The Committee may invite individuals with relevant expertise to participate in Committee discussions.
548 (n) The Committee shall organize and hold its first meeting by August 1, 2026. The Department shall; (i) identify
549 the time and place of the initial meeting; (ii) provide staff to administer the Committee, and (iii) support the Committee
550 regarding both regulatory and technical matters. The Committee must submit regulations for approval by the Secretary by
551 August 1, 2027.
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552 (o) Upon promulgation of the initial regulations required by this chapter, the Committee shall review the
553 Department’s implementation of those regulations and the overall operation of the wetlands program for a three-year period,
554 and shall, within one year after this period, provide a final report making recommendations for legislative or regulatory
555 improvements to the wetlands program. This final report shall be provided to the Governor, President Pro Tempore of the
556 Senate, and the Speaker of the House of Representatives for distribution to the members of the General Assembly, with a copy
557 to the Director and the Legislative Librarian of the Division of Research of Legislative Council, and the Delaware Public
558 Archives.
559 § 6622. Promulgation of Initial Regulations.
560 (a) The Committee, working staff provided by the Department, shall review and approve the initial regulations
561 before they are submitted to the Secretary. If the Secretary concludes that initial regulations, or any portion of such
562 regulations, are inconsistent with Delaware law, the Secretary shall provide a reason and remand the regulations to
563 Department staff and the Committee for revision. However, if the Secretary concludes that the initial regulations developed
564 by the Committee, and approved by a majority plus one of the Committee, are consistent with Delaware law, then the
565 Secretary shall thereafter promulgate the initial regulations as proposed by the Committee under the procedures of Chapter
566 101 of Title 29.
567 (b) The Committee shall consider nationally recognized best practices and standards, as well as actions that
568 surrounding states have implemented in the way of incentive programs, policies, and assumption of regulatory roles. The
569 Committee shall also evaluate the permitting processes for activities regulated by state and federal agencies with the goals
570 of reducing duplication, providing efficient 1-stop permitting, expediting voluntary wetland habitat project permits, and
571 improving the State’s ability to account accurately for cumulative and individual impacts.
572 (c) The Department shall have no authority to promulgate regulations under this Chapter until the initial
573 regulations have been approved by the Committee and thereafter approved by the Secretary and promulgated under the
574 procedures of Chapter 101 of Title 29. If no version of the initial regulations are approved by the Committee and submitted
575 to the Secretary before August 1, 2027, the Department shall thereafter have full authority to promulgate initial regulations
576 under the procedures of Title 29, Chapter 101.
577 (d) Any subsequent regulations, including any amendments to the initial regulations, shall be promulgated under
578 the procedures of Title 29, Chapter 101 without need of approval by the Committee, although the Secretary must solicit
579 input in any subsequent regulations from the Committee. The Committee must provide any input it might have within a
580 sixty-day period after solicitation from the Secretary.
581 Section 2. Delete Chapter 66A, Title 7 of the Delaware Code, Nontidal Wetland Standards, in its entirety.
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582 Section 3. Amend Chapter 72, Title 7 of the Delaware Code by making deletions as shown by strike through and
583 insertions as shown by underline as follows:
584 § 7203. Jurisdiction.
585 (a) The Secretary shall have jurisdiction over any project involving ungranted subaqueous lands owned by the
586 State, and shall have jurisdiction and authority to convey a fee simple of lesser interest or to grant an easement with respect
587 to all projects involving these lands. All jurisdiction and authority remaining in the State as to subaqueous lands for which
588 leases have been made or may be made is invested in the Secretary.
589 (b) Owners of private subaqueous lands must obtain a permit from the Department before making any use of such
590 lands which may contribute to the pollution of public waters, infringe upon the rights of the public, infringe upon the rights
591 of other private owners or make connection with public subaqueous lands.
592 (c) All activities in private nontidal subaqueous lands authorized under a Nationwide Permit issued by the United
593 States Army Corps of Engineers and in effect in Delaware are exempt from this chapter; provided that a Water Quality
594 Certification has been received from the Department where necessary.
595 Section 4. Sections 6621 and 6622 of Section 1 of this Act, and the entirety of Section 2 of this Act, become
596 effective upon passage of this Act. The entirety of Section 3 of this Act becomes effective sixty days after passage of this
597 Act. All remaining provisions of this Act become effective upon the adoption of initial regulations by the Department of
598 Natural Resources and Environmental Control.
SYNOPSIS
This Act institutes a State nontidal wetlands program to include additional wetlands that are no longer regulated at
the federal level. The State wetlands program will cover both tidal and nontidal wetlands, and in that manner fill in gaps in
federal jurisdiction under the Clean Water Act and mitigate the uncertainty surrounding the limits to federal jurisdiction and
improve efficiencies in the wetland permitting processes.
Section 1 of the Act makes a number of changes to Chapter 66 of Title 7 of the Delaware Code:
Section 1 adds definitions to § 6603 of Title 7, including for "aquatic habitat functions and services"; "Community
Water Access Structure"; "Delaware Wetland Screening Tool," which is a screening tool o be developed in regulations to
determine whether an area has the potential to qualify as a wetland; "Exceptional Value Wetlands", which are wetlands that
are unique or high functioning, that support flora or fauna that are endangered or threatened, that are located in public water
supply Source Water Protection Areas, or located within designated natural areas; "foot bridge"; "linear utility
infrastructure projects"; "mitigation"; "normal residential gardening and lawn and landscape maintenance"; "pilings";
"unique wetlands," meaning wetlands that are categorized by the Department of Natural Resources and Environmental
Control (DNREC) as Coastal Plain seasonal ponds, inner-dune depression meadows, peatland fens, Piedmont stream valley
wetlands, bald cypress swamps, Atlantic white cedar swamps, or black ash seepage swamps; "voluntary wetland habitat
restoration project"; and "wetland walkway". In addition, the definition of "wetlands" is revised to include all tidal and
nontidal wetlands in the State, and will be further clarified in regulations adopted by DNREC.
Section 1 also amends § 6604 of Title 7 to provide that an applicant for a wetlands permit has the burden of
proving whether a proposed activity is within tidal or nontidal wetlands.
In addition, Section 1 amends § 660 of Title 7, concerning activities that are exempt from permit requirements
under Chapter 66 of Title 7. Under the Act, the following activities are exempt: farming, provided certain requirements are
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met, including that farming or an intent to farm has been conducted on the land in the prior 10 years on a rolling basis;
silvicultural activities permitted by the Department of Agriculture; conservation practices on lands that are engaged in
programs through certain federal or state governmental agencies; hunting, fishing, trapping, and duck blinds; wildlife
nesting structures; mosquito control activities authorized by the DNREC; construction of certain drainage ditches, tax
ditches, swales, and other drainage features; artificial ponds and borrow pits; construction of directional aids to navigation;
placing of boundary stakes; foot bridges; normal residential gardening and lawn and landscape maintenance. In addition,
other activities are conditionally exempt: certain activities that would be allowed under a nationwide permit issued by the
United States Army Corps of Engineers; nontidal wetlands equal to or less than a contiguous 0.50 acres, provided certain
criteria are met; work performed by a state, county, or municipal government or conservation district, or such an entity's
designated contractor, on nontidal wetlands in the Delaware Atlantic Coastal Plains Province with a contributing drainage
area of less than 800 acres; maintenance, reconstruction, or retrofitting work performed by or with the assistance of any
state, county, or municipal government or conservation district in nontidal wetlands; certain work in agricultural drainage
ditches; the creation or maintenance of certain ponds constructed in uplands; and wetland walkways, under certain
conditions.
Section 1 also amends § 6607 of Title 7, concerning the procedures, regulations, and application fees associated
with permit applications. The Act provides that initial regulations promulgated under Chapter 66 will establish the
Delaware Wetland Screening Tool. Further, in addition to the regulations the Secretary of DNREC is already directed to
adopt, the Secretary is instructed to adopt regulations affording additional protections to Exceptional Value Wetlands;
reducing duplication with the permitting requirements of the U.S. Army Corps of Engineers; improving the State's ability to
account for impacts from wetlands permitting actions; promulgating mitigation strategies to facilitate no overall net loss in
wetland acreage and function and to protect the State's resilience to the impacts of climate change; and establishing general
permits for common and environmentally beneficial activities with minimal environmental impact. Section 1 further
amends § 6607 concerning the timeline for DNREC issuing a decision regarding a permit application
Section 1 creates a new § 6621, establishing the Wetlands Regulatory Advisory Committee. The Committee is
directed to assist DNREC in developing the initial regulations required under Chapter 66 of Title 7 and to evaluate the
permitting processes for activities regulated by state and federal agencies. The Committee is to be made up of 23 members,
including the County Administrator or County Executive, or the County Administrator's or County Executive's designee;
representatives from the Delaware Farm Bureau, the conservation districts, various environmental advocacy groups, an
environmental justice organization, the Home Builders Association of Delaware, the Delaware Association of Realtors, the
American Council of Engineering Companies of Delaware, the Delmarva Chicken Association, a general business group, a
private wetlands consultant certified by the Society of Wetlands Scientists, and members from higher education institutions
with specialization in wetlands science, agricultural economics, and with knowledge of forestry or soil conservation. The
Committee is directed to review DNREC's implementation of the initial regulations required by Chapter 66 and provide a
final report recommending legislative or regulatory improvements.
Section 2 of the Act deletes Chapter 66A of Title 7 of the Delaware Code, "Nontidal Wetland Standards," which
had created a Wetlands Advisory Committee to assist the Secretary of the Department of Natural Resources and
Environmental Control in developing wetland protection priorities for the State and identifying a comprehensive approach
for improving nontidal wetland conservation, restoration, and education to recommend to the General Assembly, and to
evaluate the permitting process for activities regulated by state and federal agencies.
Section 3 of the Act provides that activities in private nontidal subaqueous lands authorized under a nationwide
permit issued by the U.S. Army Corps of Engineers and in effect in the state are exempt from any requirements under
Chapter 72 of Titel 7 of the Delaware Code, if a water quality certification has been received from the Department of
Natural Resources and Environmental Control, where necessary.
Section 4 of the Act provides that §§ 6621 and 6622 of Section 1 of the Act, and Section 2 of the Act, are effective
upon enactment; Section 3 of the Act is effective 60 days after enactment; and the remaining provisions of the Act are
effective upon the adoption of initial regulations by the Department of Natural Resources and Environmental Control.
Author: Hansen, Stephanie L. (SD)
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0961530033Every fact on this page links to its source, starting with the official bill record.