Delaware lawmakers are advancing legislation that would expand the state’s wetlands protection program to cover nontidal wetlands — areas that have fallen outside of federal oversight in recent years.
Senate Bill 9, with its adopted amendments, would amend Title 7 of the Delaware Code to establish a comprehensive state nontidal wetlands program. The move is designed to fill regulatory gaps created by shifts in federal Clean Water Act jurisdiction and to bring more consistency to the wetland permitting process in Delaware.
The bill introduces a range of new definitions into state law, including terms for “Exceptional Value Wetlands” — those that are unique or high-functioning, support endangered or threatened plant and animal species, are located within public water supply Source Water Protection Areas, or sit within designated natural areas. It also defines “unique wetlands” as specific types categorized by the Department of Natural Resources and Environmental Control (DNREC), such as Coastal Plain seasonal ponds, inner-dune depression meadows, peatland fens, Piedmont stream valley wetlands, bald cypress swamps, Atlantic white cedar swamps, and black ash seepage swamps.
A new “Delaware Wetland Screening Tool” would be developed through regulation to help determine whether a given area qualifies as a wetland under the law. The updated definition of “wetlands” would be broadened to encompass all tidal and nontidal wetlands across the state, with further clarification to come through DNREC regulations.
The legislation spells out a number of activities that would be exempt from permit requirements. These include farming — provided the land has been farmed or intended for farming within the past 10 years on a rolling basis — as well as silvicultural activities approved by the Department of Agriculture, hunting, fishing, trapping, duck blinds, mosquito control efforts authorized by DNREC, construction of certain drainage features, and routine residential lawn and garden maintenance.
Certain activities would be conditionally exempt, including work that would qualify under a nationwide permit from the U.S. Army Corps of Engineers, disturbances to nontidal wetlands of half an acre or less under specific conditions, and maintenance or reconstruction work carried out by or with the help of state, county, or municipal governments or conservation districts.
The bill also directs DNREC’s Secretary to adopt new regulations providing extra protections for Exceptional Value Wetlands, reducing overlap with federal Army Corps of Engineers permitting requirements, and establishing strategies aimed at achieving no overall net loss in wetland acreage and function. The regulations would also be required to address the state’s resilience to climate change impacts.
A new 23-member Wetlands Regulatory Advisory Committee would be created under the legislation. The committee would include representatives from county government, the Delaware Farm Bureau, conservation districts, environmental advocacy organizations, an environmental justice group, 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 certified private wetlands consultant, and academics specializing in wetlands science, agricultural economics, and forestry or soil conservation.
The committee would be tasked with helping DNREC develop the program’s initial regulations, evaluating state and federal permitting processes, and ultimately delivering a final report with recommendations for legislative or regulatory improvements.
As part of the bill, an existing chapter of state law — Chapter 66A of Title 7 — that previously established a separate Wetlands Advisory Committee would be repealed.
Different sections of the bill would take effect at different times. Some provisions become active upon enactment, others 60 days after enactment, and the remaining provisions would not take effect until DNREC adopts its initial regulations under the new program.
