WHEREAS, freshwater wetlands are among the State's most valuable natural resources because they reduce flood damage to homes, businesses, and cropland, reduce nutrients and sediment loads and protect critical habitats for plant and animal species; and

WHEREAS, the State of Delaware enacted the Wetlands Act in 1973 for the express purpose of protecting all tidal wetlands of the State and those non-tidal or freshwater wetlands containing 400 acres or more of contiguous non-tidal swamp, bog, muck or marsh; and

WHEREAS, the federal government administers a regulatory program pursuant to the Clean Water Act for protecting wetlands in Delaware; and

WHEREAS, on January 9, 2001, the U.S. Supreme Court ruled the federal government had exceeded its statutory authority resulting in the removal of protection of isolated freshwater wetlands that provide habitat for unique and state or globally rare plant and animal species; and

WHEREAS, protection of these isolated wetlands will be consistent with the current public policy of this State to preserve and protect the productive public and private wetlands and to prevent their despoliation and destruction consistent with the historic right of private ownership of lands.

NOW, THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 2. Amend § 6603(h), Title 7 of the Delaware Code by deleting the word "and" found between "(T. latifolia)" and the phrase "those lands not" and inserting in lieu thereof ";".

Section 3. Amend § 6603(h), Title 7 of the Delaware Code by deleting the period "." at the end of the sentence and inserting in lieu thereof the following:

Section 4. Amend § 6603, Title 7 of the Delaware Code by inserting new paragraphs to read as follows:

1. is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal conditions does support, a prevalence of vegetation or aquatic life typically adapted for life in saturated soil conditions; and
2. cannot or will not be regulated by the U.S. Army Corps of Engineers. Nonfederal, isolated wetlands, provided they meet the requirements of this Subsection, may be classified by the Secretary into two major types based on their ecological functions and value:

1. Class 1 nonfederal isolated wetlands are those that either alone or in combination with other nearby ecologically significant lands represent unique ecological communities providing exceptional wetland functions and values necessary to support habitat for federally or state listed endangered plant and animal species, and which have unique geologic and hydrologic characteristics. Wetland types most commonly found in this class include, but are not limited to, Delmarva bays, dune swale wetlands, Atlantic white cedar swamps, and bald cypress swamps.
2. Class 2 nonfederal isolated wetlands are those that provide wetland functions, provide diverse habitat for many species and in some cases, support rare and unique species. Class 2 is characterized by vegetation type as forested, shrubby or herbaceous/emergent, and by hydrology being either temporarily or seasonally saturated, semi-permanent or intermittently flooded.

1. 'Practicable' means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.
2. 'Wetland conservation buffer' means such acreage including uplands that, based upon a determination by the Department and designated in accordance with procedures of this Chapter, is of significant importance to protecting the functions of a Class 1 wetland with which it is associated.".
3. 'Minor drainage' means activities performed by, or with the assistance of, the Department of Natural Resources and Environmental Control, the Conservation Districts, or their agents involving excavation and discharge of dredged or fill material in Class 2 wetlands and/or wetland conservation buffers incidental to connecting upland drainage facilities to receiving waters, adequate to effect the removal of excess soil moisture from upland agricultural croplands; performed in accordance with Best Management practices adopted by the Delaware Department of Natural Resources and Environmental Control.

Section 5. Amend § 6606, Title 7 of the Delaware Code by inserting at the end of existing paragraph:

1. Outdoor recreation activities which result in insignificant freshwater wetland impacts including, but not limited to, hunting, wildlife nesting structures, fishing, trapping, bird-watching, hiking, primitive camping, and dog training.
2. Continued activities related to the production of agricultural products as part of an established, ongoing farming operation involving: plowing, tilling, planting, cultivation, and harvesting: non-structural dependent livestock production; and the repair or maintenance of established, serviceable drainage and water storage systems. Tillable lands included in a State or federally approved conservation or set-aside program or otherwise determined to be 'farmed wetlands' by the USDA Natural Resources Conservation Service shall retain the agricultural exemptions contained herein until they are no longer part of an established, ongoing farming operation.
3. Prior converted croplands as determined by the USDA Natural Resources Conservation Service as wetlands which were both manipulated (drained or otherwise physically altered to remove excess water from the land) and cropped before December 23, 1985, to the extent that they no longer exhibit important wetlands values. Such lands are not subject to the jurisdiction of this Chapter unless production of agricultural products is abandoned and wetland characteristics become re-established. An area will be considered abandoned if for five consecutive years there has been no cropping, management, or maintenance activities related to agricultural production.
4. Silvicultural activities in Class 2 wetlands and wetland conservation buffers performed in accordance with silvicultural Best Management Practices adopted by the Delaware Department of Agriculture involving harvesting of forest products; reforestation practices including, but not limited to, bedding and planting; cultivation; the construction, repair, or maintenance of permanent and temporary logging roads; provided the activity is performed in accordance with a forestry management plan approved by the Forestry Administrator of the State Department of Agriculture, and the activity does not remove the area from the jurisdiction of this Chapter (exclusive of logging roads).
5. Educational or scientific research activities and devices which result in insignificant impacts to nonfederal isolated wetlands to include nature trails not involving the placement of structures or fill material.
6. Repair or maintenance of grassed highway rights-of-way or roadside ditches, repair or maintenance of established or authorized underground and above ground utilities and rights-of-way.

Section 6. Amend § 6607(d), Title 7 of the Delaware Code by deleting the period "." at the end of paragraph (3) and inserting in lieu thereof a semicolon ";".

Section 7. Amend § 6607(d), Title 7 of the Delaware Code by renumbering paragraph (4) as paragraph (6) and inserting new paragraphs as follows:

Section 8. Amend § 6607(e), Title 7 of the Delaware Code by inserting at the end of existing paragraph:

Section 9. Amend Chapter 66, Title 7 of the Delaware Code by adding a new section designated as § 6621, which new section shall read as follows:

In implementing this Chapter, the Secretary shall coordinate the State wetlands program with any federal, State and local programs relevant to the protection, development, or management of wetlands. The Secretary shall attempt to minimize or eliminate any duplication and overlap of the State program set forth in this Chapter with other federal and State wetlands or other resource protection and management programs to include but not limited to: development of coordinated permit application and processing procedures; educational and technical assistance; and incentive programs, with financial or other incentives for private landowners, to encourage conservation of wetlands and associated conservation buffers within their ownership, including but not limited to, the consideration of conservation easement programs, tax relief programs, cost sharing for enhancement and restoration, and encouragement of compatible uses.".