The administration of Delaware's Wetlands Act

Abstract

Coastal wetlands are unique ecosystems characterized by vegetation adapted to varying degrees of tidal inundation. It has only been in the last two decades that biological and hydrological values of wetlands, aside from recreational, aesthetic, and commercial values, have been documented and brought to public attention. Since the late 1960s many coastal states, including Delaware, have enacted coastal wetlands regulatory statutes. ☐ The purpose of this study was to examine the administration of the Wetlands Act in Delaware and the adequacy of the decision-making process and regulatory control in light of the legislative intent of the Act. Interviews were conducted with staff members of the Department of Natural Resources and Environmental Control (DNREC) and the Office of Management, Budget, and Planning (OMBP). Annual reports, newspaper articles, permit applications, relevant legislation, regulations and transcripts of public hearings were obtained and analyzed. ☐ A history of the wetland’s movement in the United States and events that created a national consciousness and concern for wetlands as a valuable resource is documented. With special emphasis on the wetlands of Delaware, public views toward wetlands utilization and preservation are outlined chronologically. The origin of the word "wetlands" is discussed to demonstrate the unique nature of these ecosystems. ☐ The formulation of Delaware's Wetlands Act was reviewed through examination of the minutes of the Governor appointed Wetlands Action Committee. The Committee, whose members represented a broad spectrum of Delaware's public, declared that the State should have a strong policy for preservation of wetlands. The Committee did not view the policy to be so strict as to require the preservation of every square inch of wetlands. ☐ A review of the DNREC's administration of the Act since implementation in December, 1976 has elucidated several aspects of the decision-making and regulatory process that could be improved. The assessment and consideration of possible cumulative effects and deleterious aesthetic impacts of issuing permits are lacking. Guidelines within comprehensive development plans should be promulgated to establish optimum user intensities in wetlands and adjacent waterways. Research should be carried out to discern the desired density of people, structures, and boats in specific areas with regard for maintaining the recreational and biological quality of the resource. This would enable the DNREC to consider, more fully, the impacts of granting permits in developed, developing, and pristine areas. ☐ The present decision-making process has been found to be based on a subjective balancing test for determining the public interest, of granting a permit. The DNREC should establish a process using a more quantitative assessment of the costs and benefits of development in wetlands. ☐ The controversial prohibition against all filling activities in wetlands could be lifted if such a decision-making process were initiated. Filling would only be allowed upon the finding that the public interest is best served by a complete loss of a wetlands area in order to facilitate development. ☐ The decision-making process has been unnecessarily complicated by attempts to separate productive wetlands from those of "limited value." The regulation for designating areas as "limited value" should be stricken; there is no administrative advantage for DNREC in being able to make this designation. ☐ The DNREC Wetlands Office is currently understaffed. One additional full-time staff member, preferably a wetlands ecologist-field biologist, should be hired. Monitoring of environmental impacts during construction and post-construction periods could be carried out with an additional staff member. Surveillance of construction activities would insure that an applicant complies with permit restrictions and the submitted plans. ☐ The role of the Wetlands Appeals Board should be expanded to include review and discussion responsibilities concerning controversial, potentially unconstitutional, yet unappealed aspects of the Act and regulations. The Board could also serve to review the consistency and adequacy of the DNREC's decision making. ☐ A recent amendment to the Federal Water Pollution Control Act of 1972 enables the Governor of any State to take over the section 404 responsibilities of the Army Corps of Engineers concerning dredge and fill activities in wetlands. The State of Delaware should act to accept this responsibility and thereby eliminate some of the present duplicative permitting required under the present State and Federal statutes. ☐ The entire Delaware Coastal Zone Management Program, consisting of nine major coastal zone related statutes, has been reviewed and analyzed for implications for the future management of wetlands in Delaware. Suggestions have been promulgated for utilizing the new Land Use Planning Act and the Natural Areas Preservation System Act for protection of wetlands through acquisition, tax incentives, and conservation easements. This would enable the DNREC to impose development restrictions deemed unconstitutional under a regulatory statute.