Delaware lawmakers advance measure to protect state’s wetlands

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Delaware lawmakers have advanced legislation that aims to protect nontidal wetlands, also referred to as freshwater wetlands, in the state.

The move, more than three decades in the making, comes after President Donald Trump’s administration last year proposed to rescind Clean Water Act protections for certain waterways in favor of landowner rights.

The legislation, sponsored by state Sen. Stephanie Hansen, D-Middletown, would create a tiered permitting system for development based on how critical a nontidal wetland is.

Members of the General Assembly’s Environment, Energy & Transportation committee on Wednesday unanimously advanced the measure. The legislation, which has bipartisan support, now awaits a vote in the Senate.

There have been six failed legislative attempts to protect nontidal wetlands in Delaware since the late ‘80s. The latest move, previously met with skepticism from developers and farmers, now has support from both environmentalists and landowners.

“This is the first step to completing a journey that was started back in 1988, that has been tried many times and has never succeeded. But we are going to succeed this time,” Hansen said.

Hansen introduced similar legislation in 2024, after a U.S. Supreme Court decision in 2023 removed federal protections for wetlands that are either seasonal or aren’t connected to streams, lakes, rivers and oceans.

The U.S. Environmental Protection Agency has since proposed changes to the definition of “waters of the United States,” or WOTUS, which would codify the Supreme Court decision.

The move was a blow to Delaware, where more than half of wetlands are nontidal, meaning freshwater is found inland. Located near inland areas without tidal influxes of saltwater, nontidal wetlands can be found in several forms, like depressions, rivers and swamps.

Builders, developers and farming organizations said the federal decision would alleviate permitting and construction delays, and make the definition of WOTUS more clear and predictable.

However, environmentalists argued it would impact critical habitats that endangered species rely on, and increase the risk of flooding in areas like coastal Delaware, which are vulnerable to sea level rise and storms worsened by climate change.

Hansen’s original effort to protect nontidal wetlands hit pushback from farmers who feared the bill would prevent them from draining their fields, and developers who voiced concerns that the permitting process would be unfair and bureaucratic.

Hansen has since led stakeholder meetings with environmentalists, farmers and developers to help amend and reintroduce the legislation. The Democrat said she believes the latest bill balances environmental protections with landowner rights.

“There is something to hate in this bill for everyone, but there is also a common understanding that this is an important thing that we are doing together and it’s a necessary important thing that we’re doing together,” Hansen said during the legislative committee hearing.

The bill would provide certain permit exemptions, including for farming activities that have been ongoing for the past 10 years, federal and state conservation practices and the construction of drain ditches.

Wetlands that are equal to or less than one contiguous half acre, and aren’t “unique” or “high functioning,” would also be exempt under certain conditions.

Delaware is the only state in the Mid-Atlantic region without a state-level nontidal wetland regulatory program. While the state protects saltwater wetlands, as well as freshwater wetlands that are larger than 400 acres, it has relied on federal regulations to manage freshwater wetlands of fewer acreage.

Environmentalists in Delaware stressed the importance of protecting nontidal wetlands as federal regulations declined over the past 20 years. Between 2007 and 2017, Delaware lost 3,011 acres of wetlands, most of which were nontidal.

These ecosystems provide homes for rare and endangered frogs, salamanders, plants and birds. Often called “nature’s kidneys,” they also help to filter water and mitigate against flooding.

Christophe Tulou, executive director at the Center for the Inland Bays, said Hansen’s legislation could save the state time and money on infrastructure to mitigate the impacts of flooding.

“Like a sponge wiping up the mess on our kitchen counter, wetlands soak up excess water after storms, thus helping prevent flooding,” he said. “They also pick up the sediment and pollutants that the rainfall might otherwise carry into our ditches, streams, rivers, ponds and bays.”

Developers who opposed Hansen’s previous legislation now say they support the measure. During Wednesday’s committee hearing, Michael Riemann of the Homebuilders Association of Delaware said the bill avoids bureaucratic “one-size-fits-all” permitting practices, sets enforceable timelines and is inclusive of all stakeholders.

“We are generally skeptical of adding new layers of regulation, particularly around wetlands. That’s been our position for decades,” he said. “This bill is much more than just creating a new freshwater wetland program. Yes, it does that. And yes, there’s some skepticism around that. But it also addresses real problems around permitting that our members deal with every single day.”

Though the Delaware Farm Bureau has not affirmed its support for the bill, the organization said it’s happy that farmers’ rights were considered during the drafting of the legislation.

“Recognizing existing farming and conservation practices, and providing clear exemptions for ongoing agricultural activities, is essential for maintaining operational certainty and ensuring that working lands continue to function properly,” said Sydnie Grossnickle, the organization’s government affairs coordinator.