A Guide to the Delaware Protected Species Program Requirements, Process, and Compliance

The Delaware Protected Species Program plays a crucial role in safeguarding the state's threatened and endangered species, ensuring that development activities do not jeopardize their survival or habitat. This guide provides a comprehensive overview of the program's structure, key provisions, and compliance obligations, enabling readers to navigate the complex regulatory landscape effectively. By understanding the regulated activities, prohibited actions, and permitting requirements, readers will be better equipped to manage projects in a manner that promotes species conservation and minimizes the risk of enforcement actions. The guide also explores recent regulatory developments and offers valuable resources for further learning, ensuring that readers stay informed about the evolving legal framework and best practices in the field.

GENERAL INFORMATION

Key Details of the Delaware Protected Species Program

• Issuing Agency: Delaware Department of Natural Resources and Environmental Control (DNREC)
• Year Established: 1972
• Last Amended: 2015
• Statutory Authority: Delaware Nongame and Endangered Species Conservation Act
• Primary Legal Reference: Title 7, Chapter 6 of the Delaware Code¹

Overview of the Delaware Protected Species Program

The Delaware Protected Species Program operates within the broader regulatory framework of the Delaware Nongame and Endangered Species Conservation Act, which was enacted in 1972 to protect and conserve the state's native wildlife species, particularly those that are rare, threatened, or endangered. The program is administered and enforced by the Delaware Department of Natural Resources and Environmental Control (DNREC) and works in conjunction with federal regulations such as the Endangered Species Act.

The primary goal of the Delaware Protected Species Program is to protect and manage the state's native wildlife species, ensuring their long-term survival and maintaining biodiversity within the state. The program achieves this through various mechanisms, including:

• Identifying and listing species as endangered or threatened based on scientific data
• Prohibiting the take, possession, transport, export, processing, sale, or offer for sale of listed species
• Developing and implementing conservation and recovery plans for listed species
• Monitoring and assessing the status of listed species and their habitats
• Promoting public awareness and education about the importance of wildlife conservation

The Delaware Protected Species Program applies to all lands and waters within the state, and all native wildlife species are potentially covered under the program, depending on their conservation status.

What does the Delaware Protected Species Program protect?

The Delaware Protected Species Program protects native wildlife species in the state, particularly those that are rare, threatened, or endangered. This includes birds, mammals, reptiles, amphibians, fish, and invertebrates. The program protects these species from various threats such as habitat loss, poaching, and other human-related activities that may harm their populations or habitats. The regulation achieves this protection by prohibiting the take, possession, transport, export, processing, sale, or offer for sale of listed species, and by developing and implementing conservation and recovery plans to help these species recover and thrive in their natural habitats.

REGULATORY SCOPE & JURISDICTION

Regulated Activities & Entities

The Delaware Protected Species Program regulates activities and entities that may impact the state's threatened and endangered species, as well as their critical habitats. This program is designed to protect and conserve these vulnerable species by controlling actions that could lead to their harm, harassment, or destruction. The program applies to a wide range of industries and activities, including:

• Construction and development projects
• Agricultural and forestry practices
• Energy production and distribution
• Transportation infrastructure
• Recreational activities

Under the Delaware Protected Species Program, the following activities are prohibited:

1. Taking, possessing, transporting, importing, exporting, processing, selling, or offering for sale any threatened or endangered species without proper authorization.
2. Damaging, destroying, or interfering with the habitat of any threatened or endangered species without proper authorization.
3. Engaging in any activity that could lead to the harassment, harm, or disturbance of threatened or endangered species, including activities that may disrupt breeding, feeding, or sheltering behaviors.

These prohibitions are essential for maintaining the integrity of Delaware's ecosystems and ensuring the survival of the state's most vulnerable species. By regulating activities that could negatively impact threatened and endangered species, the Delaware Protected Species Program plays a crucial role in preserving biodiversity and ecological balance within the state.

Structure and Key Provisions

The Delaware Protected Species Program is structured to provide comprehensive protection for the state's threatened and endangered species. The program includes several key provisions that define the scope of its authority, outline prohibited activities, and establish permitting requirements and enforcement mechanisms.

Definitions (Section 1.0)

This section provides clear definitions for essential terms used throughout the regulation, such as "threatened species," "endangered species," "take," and "critical habitat." Understanding these definitions is crucial for interpreting and complying with the program's requirements.

Prohibitions (Section 2.0)

This section outlines the specific activities that are prohibited under the Delaware Protected Species Program, as discussed in the previous section. It also provides information on the limited circumstances under which these activities may be permitted, such as for scientific research or conservation purposes.

Permitting Requirements (Section 3.0)

The Delaware Protected Species Program includes provisions for obtaining permits to engage in activities that would otherwise be prohibited. This section outlines the permitting process, including application requirements, review criteria, and permit conditions. It is essential for entities seeking to engage in regulated activities to understand and follow these permitting requirements.

Enforcement Provisions (Section 4.0)

To ensure compliance with the program's requirements, the Delaware Protected Species Program includes enforcement provisions. This section outlines the penalties for violating the program's prohibitions, which may include fines, permit revocation, and other legal consequences. It also describes the process for reporting violations and the agency's authority to investigate and prosecute offenders.

When working on a project that may be subject to the Delaware Protected Species Program, it is crucial to consult the full text of the regulation and engage with the relevant agencies for project-specific guidance. The program's structure and key provisions provide a framework for understanding the regulation, but the specific application of these requirements may vary depending on the nature and location of the project.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Delaware Protected Species Program establishes various standards and limitations to protect and conserve the state's threatened and endangered species. These may include habitat protection measures, restrictions on land use and development activities, and requirements for mitigation or conservation efforts.² The program is implemented and enforced by the Delaware Department of Natural Resources and Environmental Control (DNREC), which works in collaboration with other state and federal agencies. Developers and consultants must engage with DNREC early in the project planning process to understand and comply with the specific standards and limitations that apply to their projects.

Monitoring, Reporting & Recordkeeping Obligations

Under the Delaware Protected Species Program, regulated entities may be subject to various monitoring, reporting, and recordkeeping requirements. These obligations are designed to ensure compliance with the program's standards and limitations and to track the status and conservation of protected species.³ The specific requirements may vary depending on the nature and location of the project, as well as the species involved. Developers and consultants should work closely with DNREC and other relevant agencies to understand and fulfill the monitoring, reporting, and recordkeeping obligations that apply to their specific projects.

Enforcement Actions & Penalties

The Delaware Protected Species Program is enforced by DNREC and other relevant state agencies. Violations of the program's requirements may result in various enforcement actions, including notices of violation, administrative orders, and civil or criminal penalties.⁴ The severity of the enforcement action and the amount of any penalties will depend on factors such as the nature and extent of the violation, the potential harm to protected species, and the violator's compliance history. To avoid enforcement actions and ensure the success of their projects, developers and consultants should prioritize proactive compliance and early engagement with DNREC and other relevant agencies. It is essential to consult the full text of the Delaware Protected Species Program regulations and work closely with the agencies to understand the specific enforcement provisions and penalty structures that may apply to a given project.⁵

ADDITIONAL RESOURCES

Recent Developments & Regulatory Outlook

The Delaware Protected Species Program has undergone several significant developments in recent years that have shaped the current regulatory landscape. In 2015, the Delaware Department of Natural Resources and Environmental Control (DNREC) adopted amendments to the Delaware Wildlife Action Plan, which serves as a guiding document for the state's wildlife conservation efforts, including the Protected Species Program ⁶. These amendments focused on updating the list of Species of Greatest Conservation Need (SGCN) and incorporating new scientific data and methodologies for assessing and prioritizing conservation actions.

Another notable development was the passage of Senate Bill 266 in 2016, which revised the Delaware Code relating to threatened and endangered species. The bill clarified the definitions of key terms, such as "take" and "harass," and provided additional enforcement mechanisms for the DNREC to protect listed species. It also established a new scientific advisory committee to provide guidance on the listing and delisting of species.

Looking ahead, the DNREC is currently in the process of updating its regulations governing the permitting process for activities that may impact protected species. The proposed amendments aim to streamline the permitting process, provide clearer guidance for applicants, and ensure better alignment with federal regulations under the Endangered Species Act. Stakeholders can stay informed about these developments by monitoring the DNREC's website, subscribing to their email updates, and participating in public comment periods when the proposed amendments are released.

Additionally, the DNREC is working on a comprehensive update to the Delaware Wildlife Action Plan, which is expected to be completed in 2025. This update will incorporate new scientific data, assess the effectiveness of current conservation strategies, and set new priorities for the next decade. Environmental consultants and developers should be aware of these upcoming changes and be prepared to adjust their practices accordingly.

Additional Resources

Delaware Wildlife Action Plan: The comprehensive plan that guides Delaware's wildlife conservation efforts, including the Protected Species Program. The current version was adopted in 2015, with updates planned for 2025.

[U.S. Fish and Wildlife Service - Endangered Species Act]: The federal Endangered Species Act, which provides the framework for the protection of endangered and threatened species in the United States. Delaware's Protected Species Program is designed to complement and support the federal law.

[Delaware Chapter of The Wildlife Society]: A professional organization for wildlife biologists and managers in Delaware, offering educational resources, networking opportunities, and policy updates related to wildlife conservation and management.