Delaware’s wetlands at risk as Trump administration seeks to remove protections

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Delaware’s “whale wallows,” also known as Delmarva Bays, provide homes for rare and endangered frogs, salamanders, plants and birds.

But these ephemeral wetlands that appear each spring could disappear as the Trump administration proposes to rescind Clean Water Act protections for certain waterways in an effort to expand landowner rights.

Other types of permanent freshwater wetlands are scattered throughout coastal Delaware, providing critical habitat and buffering flood waters in the state. These are also at risk of being impacted by development.

The Environmental Protection Agency on Nov. 17 announced proposed changes to the definition of “waters of the United States,” or WOTUS, that would limit the types of waterways protected under the landmark law.

The change would codify a 2023 U.S. Supreme Court decision that removed federal protections for wetlands that are either seasonal or aren’t connected to streams, lakes, rivers and oceans. The case was brought forth by Michael and Chantell Sackett, an Idaho couple who sought to build a house near a lake.

Specifically, the revisions establish that protected waterways must be “navigable,” or have a continuous water connection.

In Delaware, that leaves freshwater wetlands, many of which are on private land, vulnerable to development, said Steve Gold, a professor of law at Rutgers Law School. Property owners are more likely to fill in a wetland before selling their land, because wetlands degrade overall property values.

“If somebody owns a piece of swampland that is not connected by surface water to some nearby river or lake, then under federal law, as it’s now being interpreted, the owner of that swamp would be able to do anything they wanted to that without getting a federal permit,” Gold said.

Builders, developers and farming organizations praised the move. In a statement, Associated Builders and Contractors said the move would alleviate delays and provide a “clear definition of WOTUS.”

But environmentalists say the move could impact critical habitats, and increase the risk of flooding in areas like coastal Delaware, which are vulnerable to sea level rise and increasingly intense storms caused by climate change.

The move would be a significant blow to Delaware, where more than half of wetlands are nontidal, meaning freshwater is found inland.

“The vast majority of Delaware’s freshwater wetlands would be unprotected as a result of this change in the law,” said Christophe Tulou, executive director of the Delaware Center for the Inland Bays.

“Without the federal protection, those wetlands can simply be filled in at anyone’s discretion at any time for whatever purpose,” said Christophe Tulou, executive director of the Delaware Center for the Inland Bays.

Delaware’s limited protections for wetlands

Delaware law protects saltwater wetlands, as well as freshwater wetlands that are greater than 400 acres. However, the state has relied on federal regulations to manage freshwater wetlands of fewer acreage. Located near inland areas without tidal influxes of saltwater, they can be found in several forms, like depressions, rivers and swamps.

As a result of the Sackett decision, about 75,000 acres of Delaware’s wetlands were taken out of consideration for protection by the federal government. It wasn’t the first time nontidal wetlands in the state faced challenges. In fact, federal regulations for wetland protections have been declining for the past 20 years.

“It’s kind of become a political hot potato and it’s changed between administrations and also through various judicial interpretations as well,” said Sarah Everhart, director of the Environmental and Natural Resources Law Clinic at Widener Delaware Law School.

Delaware is the only state in the region without broad protections for these waterways. Both Pennsylvania and New Jersey have state laws that provide protections that supersede federal regulations.

Delaware’s attempts to protect wetlands

Since 1988, there have been six failed legislative attempts to protect these resources in Delaware.

Over the past year, Delaware state Sen. Stephanie Hansen, D-Middletown, has organized discussions with stakeholders to help draft legislation to protect freshwater wetlands.

Hansen attempted to pass similar legislation last year, but was met with concerns from developers and farmers who feared an unfair and bureaucratic permitting process.

The lawmaker’s amended bill would create a tiered permitting system that also aims to protect nontidal wetlands. Wetlands that are critical for threatened and endangered species, for instance, would require permits with greater restrictions.

“Federal regulations set the floor, not the ceiling when it comes to the protection of freshwat