Federal policy change may threaten freshwater wetlands

Regulatory rollback could reduce water quality, increase flooding
February 18, 2020

A federal policy change in freshwater wetlands regulations will directly impact Sussex County.

A rollback of the Waters of the United States rule in the federal Clean Water Act was finalized by the Trump administration last month. However, implementation of the change is facing legal challenges from environmental groups.

Chris Bason, executive director of the Delaware Center for the Inland Bays, said freshwater wetlands encompass a majority of wetlands in Sussex County. Tidal wetlands are regulated by the state, but freshwater wetlands fall under federal jurisdiction because there are no state regulations.

“This goes in the exact opposite direction of what is needed to keep people safe and restore the quality of the water,” he said. “Now more than ever, we need these wetlands for flood control. Climate change is happening so rapidly.”

Bason said the rollback removes federal jurisdiction and federal protection from these previously protected wetlands – making it easier for construction in upland freshwater wetlands or in areas of small streams that drain into larger bodies of water.

Homebuilders or developers in freshwater wetlands areas under federal jurisdiction are required to obtain a permit and demonstrate that construction impact is minimal or mitigated in another location. If the rollback is instituted, that process will no longer occur.

Bason said the impact will be felt in vast areas of freshwater, wooded wetlands all over Sussex County. Removing federal protection impacts what occurs farther downstream in watersheds, he said, and also degrades habitats for wildlife and aquatic systems.

Water quality is important, but flood control is becoming a vital issue, Bason said.

Bason said without protecting freshwater wetlands, it's difficult to meet the goals of the Clean Water Act – to maintain a balance of water quality, habitat protection and economic viability.


Wetlands are under peril

Bason said wetlands are disappearing from the Sussex County landscape. He said 60 percent of the Inland Bays wetlands – nearly all freshwater – have been lost since Europeans settled the area. Nearly 2,000 acres of wetlands were lost from early 1980 to early 1990, long before the height of the development boom in the county. According to a recent CIB report, residential development and cropland conversion are the driving forces.

But wetlands are also disappearing due to dredged spoils disposal, pond construction, spread of invasive species, pollution discharge, and creation of impoundments for water supply and wildlife management.

A wetlands and buffers working group, appointed by Sussex County Council, has offered recommendations to increase protection for wetlands in the county, including buffers along nontidal wetlands, which are not currently protected by county regulations.

The recommendations include 30-foot buffers from nontidal wetlands and 50-foot buffers from nontidal streams and rivers. In addition, the group recommended an increase in buffers along tidal wetlands from 50 feet to 100 feet.

Protection for some isolated wetlands is another issue. According to a CIB report, “The further upstream and the further disconnected the wetland is from a navigable waterway, the less it is protected by regulations. This ambiguity has resulted in a period of vulnerability for some wetlands due to an uncertainty in permitting and enforcement responsibilities. Some of Delaware’s most special and rare wetlands provide critical habitat for rare plant and animal species are considered isolated and are not protected by regulations.”


States can enact regulations

State governments have the option to adopt their own regulations to maintain the status quo or improve protection for freshwater wetlands.

Bason said states have always had the option to take over the federal wetlands program, but few states have opted to do it. “Others are now looking at it. This is not a new idea. We've had it in our Inland Bays management plan since 2012,” he said. “The federal administration is pushing for cooperative federalism, encouraging states to take over some federal programs.”

Current state regulations cover only tidal wetlands, which make up about 25 percent of the state's wetlands. Bason said earlier attempts by Delaware lawmakers to extend state protection to freshwater wetlands have not been successful.


Wetlands provide: Flood control; improved water quality; storm-impact reduction; runoff absorption from the land; barriers to waves and erosion; habitat for animals and plants; pollution protection and control; educational and research opportunities.

See more on wetlands at:



350,000 acres of wetlands in Delaware

262,500 acres of nontidal wetlands, including all freshwater wetlands

87,500 acres of tidal wetlands

50 percent of all wetlands are in Sussex County

1,900 acres of lost wetlands in Sussex County from 1980-1990


Source: Delaware Center for the Inland Bays





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