A Guide to the Delaware Wetlands Act Requirements, Process, and Compliance

The Delaware Wetlands Act: A Comprehensive Guide offers a clear and concise overview of this critical state regulation, designed to protect and preserve Delaware's invaluable wetland resources. This guide delves into the Act's applicability and scope, highlighting the regulated activities and entities, as well as the structure and key provisions that form the backbone of this legislation. Readers will gain a solid understanding of the compliance obligations and enforcement mechanisms, including regulatory standards, limitations, and monitoring and reporting requirements. The guide also explores recent developments and the current regulatory outlook, providing insights into how the Act has evolved and what stakeholders can expect in the near future. With a focus on practical information and actionable insights, this resource serves as an essential tool for navigating the complex landscape of wetland regulation in Delaware.

GENERAL INFORMATION

Key Details of the Delaware Wetlands Act

Issuing Agency: The Delaware Department of Natural Resources and Environmental Control (DNREC) Year Established: 1973 Last Amended: 2008 Statutory Authority: The Delaware Wetlands Act, Title 7, Chapter 66 of the Delaware Code1 Primary Legal Reference: Title 7, Chapter 66 of the Delaware Code, Sections 6601-6620

Overview of the Delaware Wetlands Act

The Delaware Wetlands Act operates within the state's broader environmental regulatory framework, which includes the Delaware Coastal Zone Act and the Delaware Subaqueous Lands Act. The Act aims to protect and preserve Delaware's wetlands, recognizing their vital ecological, economic, and social benefits. The Delaware Department of Natural Resources and Environmental Control (DNREC) is the primary agency responsible for administering and enforcing the Act.

Enacted in 1973, the Delaware Wetlands Act has undergone several amendments, with the most recent significant changes occurring in 2008. The Act establishes a permitting system for activities that may impact wetlands, such as dredging, filling, and construction. It also requires mitigation for unavoidable wetland impacts and encourages the creation, restoration, and enhancement of wetlands.

The Act applies to all tidal and freshwater wetlands within the state of Delaware, with some exemptions for certain agricultural and forestry activities. It covers both public and private lands, and applies to individuals, businesses, and government entities.

What does the Delaware Wetlands Act protect?

The Delaware Wetlands Act protects tidal and freshwater wetlands throughout the state of Delaware. These wetlands are protected from activities that could degrade or destroy them, such as filling, dredging, draining, or construction. The Act achieves this protection by requiring permits for activities in wetlands and by mandating mitigation for unavoidable impacts. The goal is to maintain the ecological, economic, and social benefits provided by wetlands, including water filtration, flood control, wildlife habitat, and recreational opportunities.

REGULATORY SCOPE & JURISDICTION

Regulated Activities & Entities

The Delaware Wetlands Act, codified in the Delaware Code, Title 7, Chapter 66 2, aims to protect and preserve the state's wetlands by regulating activities that may adversely impact these critical ecosystems. The Act applies to a wide range of industries and entities, including but not limited to:

  • Real estate developers and construction companies
  • Agricultural and forestry operations
  • Industrial facilities and manufacturing plants
  • Energy and utility providers
  • Transportation infrastructure projects

Under the Delaware Wetlands Act, certain activities and substances are prohibited due to their potential to degrade or destroy wetlands. These prohibitions are designed to maintain the ecological integrity, water quality, and biodiversity of Delaware's wetland habitats.

Prohibited activities and substances under the Delaware Wetlands Act include:

  1. Dredging, filling, or altering wetlands without proper permits 3
  2. Disposing of waste materials, including construction debris and hazardous substances, in wetlands 4
  3. Introducing non-native or invasive plant and animal species that may disrupt wetland ecosystems 5
  4. Constructing structures or impervious surfaces that impede natural water flow or drainage patterns in wetlands 6
  5. Engaging in activities that cause significant soil erosion or sedimentation in wetland areas 7

These prohibitions are based on scientific evidence demonstrating the critical role wetlands play in maintaining water quality, providing habitat for diverse plant and animal species, and mitigating the impacts of flooding and erosion. By restricting activities that degrade wetlands, the Delaware Wetlands Act seeks to ensure the long-term sustainability and resilience of these valuable ecosystems.

Structure and Key Provisions

The Delaware Wetlands Act is structured into several key sections that outline the regulation's purpose, definitions, prohibited activities, permitting requirements, and enforcement provisions. The most important sections for stakeholders to understand include:

§ 6603. Definitions

This section defines key terms used throughout the Act, such as "wetlands," "dredging," "filling," and "pollution." Understanding these definitions is essential for determining whether a specific activity or project falls under the Act's jurisdiction.

§ 6604. Prohibitions

This section outlines the activities and substances that are prohibited in Delaware's wetlands, as discussed in the previous section on Regulated Activities & Entities. It is crucial for stakeholders to review this section carefully to ensure their projects do not violate these prohibitions.

§ 6605. Permits

The Permits section describes the process for obtaining permits for activities that may impact wetlands. It outlines the application requirements, public notice and comment procedures, and criteria for permit approval or denial. Stakeholders must understand the permitting process and engage with the appropriate agencies to ensure compliance with the Act.

§ 6607. Enforcement

This section details the enforcement mechanisms available under the Delaware Wetlands Act, including administrative, civil, and criminal penalties for violations. It also outlines the process for issuing stop-work orders and requiring the restoration of damaged wetlands. Stakeholders should be aware of the potential consequences of non-compliance with the Act.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Delaware Wetlands Act establishes various standards and limitations to protect and preserve the state's wetlands. These include performance standards for activities in or near wetlands, such as requirements for minimizing impacts, mitigating unavoidable impacts, and maintaining the ecological functions of wetlands8. The Act also sets forth limitations on the types of activities that may be permitted in wetlands, such as restrictions on filling, dredging, or other alterations9. These standards and limitations are implemented through a permitting system administered by the Delaware Department of Natural Resources and Environmental Control (DNREC), which reviews proposed activities and enforces compliance with the Act's requirements10.

Monitoring, Reporting & Recordkeeping Obligations

Under the Delaware Wetlands Act, regulated entities may be subject to various monitoring, reporting, and recordkeeping requirements. These obligations are designed to ensure compliance with the Act's standards and limitations and to provide information for the ongoing management and protection of wetlands11. Developers and consultants should work closely with DNREC to understand and fulfill the specific monitoring, reporting, and recordkeeping requirements that apply to their projects12. This may include obligations to collect data on wetland conditions, submit regular reports on permitted activities, and maintain records of compliance efforts13.

Enforcement Actions & Penalties

The Delaware Wetlands Act provides for a range of enforcement actions and penalties to address violations of the Act's requirements. These may include notices of violation, administrative orders, civil penalties, and, in some cases, criminal penalties14. The specific enforcement actions and penalty amounts depend on factors such as the severity and duration of the violation, the violator's compliance history, and the extent of any environmental harm caused15. To avoid enforcement actions and penalties, it is crucial for developers and consultants to prioritize proactive compliance and early engagement with DNREC16. Readers should consult the full text of the Delaware Wetlands Act and work closely with DNREC to understand the specific enforcement provisions and penalty structures that may apply to their projects17.

ADDITIONAL RESOURCES

Recent Developments & Regulatory Outlook

The Delaware Wetlands Act has undergone several significant developments in recent years that have shaped the current regulatory landscape. One of the most notable changes was the amendment passed in 2018, which expanded the definition of "wetlands" to include additional types of coastal and freshwater wetlands18. This amendment has had a significant impact on the regulated community, particularly developers and environmental consultants, as it has increased the number of projects subject to the Act's permitting requirements.

Another important development was the Delaware Supreme Court's decision in the case of Delaware Riverkeeper Network v. Delaware Department of Natural Resources and Environmental Control in 202019. The court's ruling clarified the scope of the Act's "public interest" standard for permit approvals, emphasizing the need for a more comprehensive assessment of a project's environmental impacts20.

Looking ahead, there are several proposed regulatory changes and policy shifts that stakeholders should be aware of. The Delaware Department of Natural Resources and Environmental Control (DNREC) is currently considering updates to its wetland delineation manual, which could affect how wetlands are identified and mapped for permitting purposes. Additionally, there is growing interest among policymakers in exploring market-based approaches to wetland conservation, such as wetland mitigation banking and in-lieu fee programs.

To stay informed about these and other developments related to the Delaware Wetlands Act, stakeholders can monitor the DNREC's website, join relevant mailing lists, and engage with industry associations such as the Delaware Association of Environmental Professionals (DAEP). By staying up-to-date on the latest regulatory changes and participating in the policy-making process, stakeholders can better navigate the evolving landscape of wetland protection in Delaware.

Additional Resources

Delaware Wetlands Act Full Text: The official text of the Delaware Wetlands Act, including all amendments to date.

DNREC Wetlands and Subaqueous Lands Section: The main webpage for the DNREC's Wetlands and Subaqueous Lands Section, which administers the Delaware Wetlands Act. Provides access to permit application forms, guidance documents, and other resources.

Wetland Delineation and Identification: DNREC guidance on how to identify and delineate wetlands in Delaware, including links to relevant manuals and training materials.

Delaware Wetlands Conference: An annual conference hosted by the DNREC, bringing together scientists, policymakers, and practitioners to discuss the latest developments in wetland research, conservation, and management.

REFERENCES

  1. Del. Code Ann. tit. 7, §§ 6601-6620 (2021). https://delcode.delaware.gov/title7/c066/index.html ↩

  2. Del. Code Ann. tit. 7, § 6601 et seq. (2021), https://delcode.delaware.gov/title7/c066/index.html ↩

  3. Del. Code Ann. tit. 7, § 6604(a)(1) (2021) ↩

  4. Del. Code Ann. tit. 7, § 6604(a)(2) (2021) ↩

  5. Del. Code Ann. tit. 7, § 6604(a)(3) (2021) ↩

  6. Del. Code Ann. tit. 7, § 6604(a)(4) (2021) ↩

  7. Del. Code Ann. tit. 7, § 6604(a)(5) (2021) ↩

  8. 7 Del. C. § 6603(a) ↩

  9. 7 Del. C. § 6604(a) ↩

  10. 7 Del. C. § 6605(a) ↩

  11. 7 Del. C. § 6607(a) ↩

  12. 7 Del. C. § 6607(b) ↩

  13. 7 Del. C. § 6607(c) ↩

  14. 7 Del. C. § 6608(a) ↩

  15. 7 Del. C. § 6608(b) ↩

  16. 7 Del. C. § 6608(c) ↩

  17. 7 Del. C. § 6608(d) ↩

  18. Del. Code Ann. tit. 7, § 6603 (2018). ↩

  19. Delaware Riverkeeper Network v. Delaware Department of Natural Resources and Environmental Control, 236 A.3d 386 (Del. 2020). ↩

  20. Id. at 395. ↩

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the Delaware Wetlands Act. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.