By Tracy Slack
The Sierra Club Delaware chapter applauds the outstanding efforts that have led to the drafting of Senate Bill 9, known as the Wetlands Stewardship Act, with primary sponsor Senator Stephanie Hansen. We are delighted to see SB 9 was recently referred out of committee to the full Senate. But just why does this legislation matter, and what makes it especially important at this moment in our history?
We who live, work, and recreate in Delaware have a vitally interdependent partnership with water. With the lowest average elevation of any state, wetlands (both saline and fresh) comprise some 25% of our land area. Furthermore, it is a constantly changing equation. On the one hand, freshwater wetlands have been filled and channeled for the last three centuries to support development and growth, while, on the other hand, predicted sea level rise over the coming decades promises to impact up to 10% of our state’s coastal regions and communities.
Maintaining wetlands of all kinds is one of the most important services our government is required to provide. Drinking water, agriculture, natural habitat, flood risk mitigation … all of these critical needs depend upon comprehensive wetlands stewardship. Water knows no man-made boundaries; it is the ultimate shared resource. A droplet of fresh water today may percolate (or evaporate and then fall as rain) into a tidal zone and become saline tomorrow.
In recent decades, responsibility for the stewardship and management of our wetlands has been shared by the state/federal partnership of DNREC’s Wetlands and Waterways Section and the EPA, tasked with enforcing the landmark 1972 Clean Water Act. The EPA’s role has been critical because, unlike other East Coast states, Delaware lacks any state-level protections for freshwater wetlands. We have depended heavily on the EPA for the freshwater components of our vital “water partnership.”
Our state government has tried to extend water resources protection to include nontidal wetlands on several occasions, but each time without success. Then-Governor Michael Castle, through his 1988 executive order, exhorted state agencies to seek ways of minimizing adverse wetlands impacts when evaluating development projects, and sought to codify key terminology and develop recommendations for further action.
Legislation was proposed in each of the 1992, 2002, 2005, and 2013 legislative sessions, all with the same aim – all with the same awareness that freshwater wetlands are just as necessary to our state’s survival and prosperity as coastal wetlands. Only Senate Bill 78 from the 2013 legislative session made it into law, and it created a new Wetlands Advisory Committee to recommend next steps. But while that Committee’s incentive-based proposals gained bipartisan support, no consensus emerged for a regulatory framework. Delaware was forced to encourage freshwater wetlands stewardship, but there remained a lack of explicit state protections for developers and others to do the right thing, despite the will of the Committee to require it. Besides, there was always the EPA looking after most of these same waterways, so who needed more redundant state/federal regulations? Right? Wrong!
Fast forward to May 25th, 2023, a day that will live in environmental infamy. On that tragic day, the Supreme Court ruled against the EPA in what became known as “the Sackett decision” by narrowing the definition of wetlands that the EPA, and the U.S. Army Corp of Engineers would henceforth be permitted to regulate. With the stroke of a pen, some 59 million acres of wetlands nationwide (and about 75,000 acres of nontidal wetlands in Delaware alone) lost federal protection. Today, the EPA of 2026 is no longer our trusted partner in this stewardship. EPA Director Zeldin makes it clear that he is recasting the EPA mission from Environmental Protection to Exploitation and Plunder.
Our state faces an unprecedented challenge; it needs to rebuild comprehensive wetlands protection to its former scope and robustness. And there is no help for our nontidal wetlands unless the state takes action.
Delaware Senate Bill 9 is the critically important answer to that challenge. It rebalances the scales to ensure that the stewardship of our waterways once again recognizes the equal value of both tidal and nontidal wetlands to our residents, our farmers, our businesses, and to our indescribable wealth of native species. The careful and determined efforts to forge true collaboration with those important stakeholders who seek responsible development, agricultural access, and relief from unduly burdensome permitting processes have been inspiring to witness. That same diversity of stakeholders will have a seat at the table to iron out the regulatory path forward that turns SB 9 into a working model.
We all wish for Delaware’s success and prosperity, and we all live downstream. Encourage your state legislators to pass SB 9 into law and join us in raising a glass of clean water in celebration when it does.