Why Should Delaware Care?
Roughly a quarter of Delaware’s land mass is made up of wetlands – marshy ecosystems saturated with water that improve water quality, prevent floods and store carbon. But not all wetland types are afforded the same legal protections. Environmental rule changes at the federal level are prompting state lawmakers to find local solutions to protect some of the most vulnerable — and valuable — wetlands left behind.
As the Trump administration continues efforts to roll back environmental regulations, a gap in policies at the state level could leave some of Delaware’s most vulnerable wetland habitats protected only by the owners of the land where they are found.
State Sen. Stephanie Hansen (D-Middletown) is hoping to change that.
For months, the chair of the Senate’s Environment, Energy & Transportation Committee has been workshopping a bill that would create a new regulatory committee tasked with developing a program within the Delaware Department of Natural Resources and Environmental Control (DNREC) that would oversee the state’s nontidal wetlands – the kinds of marshy ecosystems found across the state that are not connected to rivers or bays but can still help improve water quality and prevent floods.
“This is a bill that’s going to set the bones of a wetlands program for the state of Delaware,” Hansen said.
The idea, she added, is to combine the state’s existing tidal wetlands program — for marshes that do connect with rivers or bays — with a yet-to-be-created non-tidal program.
While it will be up to a regulatory advisory committee to actually create the new program, the idea is that it would govern how non-tidal wetlands are identified and protected if, say, a development were being proposed for the same spot.
These marshy areas can be home to some of the rarest state species, like the Eastern tiger salamander in northern Delaware, but also can be found on the fringes of some of the state’s southern farmlands.
But Hansen’s proposal could fall squarely in the midst of a decades-long struggle between environmentalists and private land owners.
Generational Delaware farmers like Jay Baxter understand what is at stake. The father of four said some of his best times are spent with his boys exploring the outdoors. But he also worries about state regulators overstepping future farming and property rights. Farmers and developers alike have raised alarms about giving DNREC too much additional regulatory discretion.
And since marshy spaces are widespread in a coastal state like Delaware, figuring out exactly how to appropriately regulate — and even how to accurately identify and rank — certain types of wetlands means contending with those competing land use interests.
Why do wetlands matter?
Not only do wetlands provide habitats to unique plants and animals, but they also can act as sponges during storms to absorb floodwaters and filter pollutants. That has become increasingly important as more and more of the state, particularly in Sussex County, sees increased development and greater flood risks due to increased impervious surfaces, climate change and rising sea levels.
But Sussex County has historically fought more stringent protections along its waterways. In 2008, the county sued state regulators who tried to set buffers along Inland Bays waterways as part of a pollution control strategy. The county prevailed in court, with the Delaware Supreme Court ruling it was up to the county to develop land-use policies.
At the federal level, the Trump administration has nixed efforts by Democratic predecessors to apply more protections to “Waters of the United States” under the Clean Water Act. The public comment period for the newly proposed rule, which would exclude protections for many of America’s seasonal and nontidal wetlands, closed in early January.
This also is not the first time Hansen has introduced a freshwater wetlands program bill. In 2024, she introduced Senate Bill 290 to regulate non-tidal wetlands, but it did not make it out of committee.
That bill’s fiscal note ranged from about $1.5 million to $3 million annually to create, grow and administer a program that would have processed an estimated 700 permit applications each year.
Securing funding may not be the only hurdle this new bill would face. During stakeholder group meetings about the issue, local farmers and developers have continued to raise concerns about future regulatory restraints that could apply to how they have already been using the land for years.
“Work needs to be done to make it something palatable,” said Baxter, who grows a variety of vegetables, including corn and soy, and chickens.
He pointed to historic drainage pathways as being a potential sticking point in the proposed legislation. Such areas, which fill with water in storms but may otherwise be dry, were a major sticking point for critics of the federal WOTUS rule.
“This is very important to future generations of agriculture in the state of Delaware,” Baxter said after a late January meeting. “We must have proper drainage. The rules as they stand don’t allow us to maintain drainage.”
Delaware’s wetland gaps
In Delaware, state-level protections are already afforded to tidal marshes — those connected to tidally influenced bodies of water like rivers or the Delaware Bay — as well as large freshwater wetlands with over 400 contiguous acres, which largely only applies to the Great Cypress Swamp stretching across Delaware’s southernmost border into Maryland.
County-level protections can be more stringent. Both Kent and New Castle counties have mandatory buffers for all waterways and wetlands.
In Sussex, there’s a maximum 100-foot buffer required for developers building along tidal waterways. Delaware is also alone in the mid-Atlantic region when it comes to its lack of state-level protections. Maryland, New Jersey, Virginia and even Pennsylvania all have varying levels of non-tidal wetland programs.
Meanwhile, most of Delaware’s wetlands are on private land; only about 20% are owned by the state or federal government, according to DNREC.
“The analogy is we’re standing out in the middle of the woods naked as it relates to our protection of non-tidal wetlands here in Delaware,” said Christophe Tulou, executive director of the Delaware Center for the Inland Bays, which advocates for the protection of the Rehoboth, Indian River and Little Assawoman bays in Sussex County.
Tulou said efforts to protect Delaware’s freshwater wetlands date back decades, even before he formerly served as DNREC secretary in the 1990s.
“This is not new,” he said. “And the reason it’s not new is because people have known for a long, long time that freshwater wetlands are hugely important.”
Editor’s Note: An earlier version of this story used an outdated figured for Sussex County’s required waterway buffers. It was extended to 100 feet in 2022.
Transparency Notice
Maddy Lauria previously worked for the Delaware Center for the Inland Bays from 2020 to 2021. She is currently an independent journalist based in Dover.
