We can’t leave wetlands high and dry

A new state bill would protect nontidal areas that are no longer covered by federal law. The time to pass it is now.

Our tidal wetlands have been protected since the Delaware Wetlands Act was passed in 1973, largely in response to rapid development along the coast and other forces. That law, enacted soon after the Federal Clean Water Act, gave the state authority to regulate dredging, filling and construction in marshes and areas regularly flooded by tides.

The Delaware Wetlands Act did not, however, cover nontidal wetlands, also called freshwater wetlands. While Maryland and New Jersey acted in the late 1980s to strengthen wetland protection by including nontidal wetlands, Delaware left their protection to the provisions of the CWA as regulated by the U.S. Army Corps of Engineers. We are still the only state in the region without state-level safeguards for freshwater wetlands.

A new bill, the Wetlands Stewardship Act (Senate Bill 9), is designed to remedy that by creating a state permitting framework for regulation of Delaware’s nontidal wetlands, including unique and high-functioning wetlands. The bill also streamlines permitting processes by setting timelines for approvals, and it exempts agricultural, drainage and lawn maintenance practices.

It is time to enact these protections now. Delaware has lost about half of its wetlands since the colonial era, and losses continue. About half of our remaining 300,000 acres of wetlands are freshwater. Of those, about 75,000 acres of nontidal wetlands have recently been left unprotected under the CWA since the U.S Supreme Court’s 2023 decision in Sackett v. EPA.

Our freshwater wetlands need protection for two major reasons: to shield Delaware from adverse changes in federal law, and to protect what we can of remaining nontidal wetlands and the invaluable ecosystem services they provide.

Isolated or nontidal wetlands may not look like much more than a puddle in the woods, but they can be tremendously important. Our most valuable wetlands (called “exceptional value wetlands” in the bill) can be habitat for rare and endangered plant and animal species, especially some amphibians that are so specialized, they can exist nowhere else. Protecting them is consistent with a major aim of the Delaware Wildlife Action Plan: protecting habitat.

Wetlands are also among most powerful carbon storage systems on earth, which makes them a key resource for countering greenhouse gas emissions. Losing them diminishes the capacity of the land to store carbon. That runs counter to the goal of net-zero emissions stated in the Delaware Climate Action Plan. Wetlands also absorb excess rainwater, reduce flood risk and serve as a natural filter for potential pollutants in stormwater as it recharges groundwater supplies.

Though we often call these wetlands isolated, they are far more connected than is apparent, part of a large underground water network we can’t see. When the water table is high, groundwater flows into wetlands. When water levels drop, water from wetlands seeps downward. Protecting wetlands helps us protect water quality above and below ground.

The process for developing this bill was important. After a two-year collaboration of stakeholders with different views, the parties reached consensus that The Wetlands Stewardship Act would work. That’s the way public policy should happen. After at least five major attempts to pass nontidal wetlands legislation since 1988 – nearly 40 years of missed opportunity – the time to finally protect these wetlands is now.

We are grateful to Sen. Stephanie Hansen for her leadership, and to the many groups and individuals whose input has helped shape this effort. If you are interested in learning more about how wetlands work and why they are so important, contact your favorite conservation organization.