Natural Areas Advisory Council

NATURAL AREAS ADVISORY COUNCIL 31 Years of Service to Improving Delaware’s Quality Of Life “Dedicating Delaware’s Natural Areas Today For All Delawareans Tomorrow”

NATURAL AREAS ADVISORY COUNCIL MEETING September 1, 2009 Richards & Robbins Building Environmental Laboratory Conference Room Dover, DE 9:00 a.m.

ATTENDEES: John Williams Member Peter Martin Member Mike Riska Member Carl Solberg Member David Athey Member Dean Holden Member Jenifer Adkins Member

STAFF: Eileen Butler Division of Parks and Recreation Elizabeth Emerson Division of Parks and Recreation Ron Vickers Division of Parks and Recreation Matt Chesser Division of Parks and Recreation

PUBLIC: Jennifer Mihills Delaware Nature Society Andrew Martin Delaware Wild Lands James Metzger Citizen

I. Call to Order/Welcome/Introductions/Announcements Chairman Williams called the meeting to order at 9:00 a.m. A new appointment, Mr. Dean Holden, was welcomed to the Council and each member introduced themselves.

II. Minutes of the June 2, 2009 Meeting

Ms. Adkins moved to approve the minutes as written. Mr. Athey seconded the motion. The meeting minutes were unanimously approved as written.

III. Old Business

Ms. Butler updated the draft regulations and sent the document to Council members via email prior to the meeting. Ms. Butler informed the Council that “track changes” were not used on the document as previously requested by the Council. Sweeping changes made to the document would have made it difficult to follow.

Chairman Williams provided some background to Mr. Holden regarding the 1981 regulations. Chairman Williams indicated that the regulations had not been revised, were no longer applicable, and were confusing in relation as to how the Council was conducting business. The Council wanted to make the process more transparent and easy to understand by the general public. Ms. Butler indicated that there was an effort made to simplify the language in the regulations and clearly establish the process for how one goes about identifying and registering a Natural Area, and ultimately dedicating a Natural Area as a Nature Preserve.

A. Guidelines for Natural Area Selection The Guidelines were discussed in great detail at the June meeting. Many of the suggestions at the June meeting were incorporated into the current document. The biggest change in the latest version of the Guidelines has been the removal of the education and research value criteria. A fourth introductory paragraph was added to discuss the benefits of preserving Natural Areas and how research and education opportunities are supportive elements when identifying Natural Areas. Chairman Williams reviewed the law and supported the claim that research and education are more supplemental to the purpose of the law rather than a primary purpose of the law. In reading the definition of what a Natural Area is according to the law, Chairman Williams agreed with staff that the scientific or educational value modifies the biotic, geological, scenic, and archaeological features and is not a free standing feature on its own. Mr. Riska and Ms. Mihills agreed that the new paragraph is an appropriate way to address education and research values of a Natural Area.

The Delaware Nature Society had suggested changing “biological rarity” to “species rarity” and that suggestion was included in the latest version.

Definitions for geological and archaeological features were reviewed and approved by the Delaware Geological Survey and the Division of Cultural and Historical Affairs respectively. Chairman Williams had a question on criteria 4, Archaeological Features, specifically the use of the word “prehistoric.” He thought it was too limiting and we may be missing out on historic features if we only considered prehistoric features. Ms. Butler indicated that the State would be interested in including areas that could be registered on the National Register of Historic Places. Mr. Metzger indicated that there was an article in a local paper on an archaeological dig in Rehoboth that is one of the first settlements in Delaware which is an historic dig, not prehistoric, as it goes back to the mid-1600’s, called Archie’s Rest. It is regarded as an historic archeological site worthy of preservation. Ms. Mihills stated “you can have archeological significant sites that are historic that would include structures, like historic landscapes or features.” Mr. Vickers felt the original intent was never really to involve historic structures in the Natural Areas program, but to include the structures if they are there because of the natural features. He suggested speaking with the State Historic Preservation Office (SHPO) again to understand how it distinguishes between “prehistoric” vs “historic” and if SHPO has specific guidelines it uses. This document will be discussed and brought to a vote at the December meeting.

B. Regulatory changes Ms. Butler stated the new regulations have been reorganized, simplified, streamlined and additional definitions have been added. The registration process had been retained; however, the landowner’s consent is no longer needed for registration as it is now considered an internal process. The Office of Nature Preserves is responsible to let the landowner know when the Natural Areas Advisory Council is going to be considering registering a property on the Registry as stated in section 2.30.

Section 1.20 states that the Natural Areas Program is a voluntary program not meant to assert land use authority at the county or municipal level. Mr. Solberg suggested adding the State to that list.

Mr. Martin suggested replacing the word “registration,” he felt that it carried connotations which would upset people. He would rather see the word “list” or “listing.” Mr. Martin stated that “I register for a class, I register to vote, but you can’t have somebody else register you, if somebody can nominate a property for registration, I could see people getting upset about that.” Mr. Chesser said that the statute would have to be amended to change the term “registration,” which is unlikely to happen. Mr. Martin stated that it is “important that everyone has a firm understanding that formal dedication is a voluntary process, and anything up to that point is not a regulation it’s not a binding agreement with the property owner, so it doesn’t affect you as a property owner.”

Chairman Williams had a question on the draft regulations in section 1.30 subsection 2 Conservation Values, where deed restrictions and management practices are discussed. Ms. Butler informed him that the management practices document provides “boiler plate language that indicate what activities can and cannot take place on the property for the purposes of protecting the conservation values on a specific piece of property. One would cherry pick those practices that most suit the protection needs for the specific conservation values of the property.”

Mr. Martin thinks some confusion comes from the document jumping back and forth between two separate and distinct things, a Natural Area and a Nature Preserve Dedication. He suggested separating out the two, one section for Natural Areas and one for Dedications. Chairman Williams did notice some items were out of order. He asked if Mr. Martin was suggesting the document have two sections of definitions. Mr. Martin indicated he thought it would make it easier. Ms. Mihills suggested putting the definitions at the end of the sections that way one could review the process of how a Natural Area is identified, preserved and dedicated rather then get hung up on the definitions. Ms. Butler asked if there was a regulatory requirement to list the definitions in the front of the document. Mr. Chesser informed her that it is typically preferred but not necessary. After a lengthy and detailed discussion about definitions, Ms. Butler told the Council that staff would work out the changes and would incorporate Council’s comments and the Council would have an opportunity to review the draft regulations at the December meeting. Chairman Williams asked if the Guidelines and regulations get approved together. Ms. Butler told him that the Guidelines document establishes an internal process to identify Natural Areas that does not need the approval of the public, and therefore, does not need a public hearing; however, they are available for review by the public but not for comment.

IV. Natural Areas Inventory Ms. Butler informed Council that after the Guidelines are formally adopted and approved by the Secretary; staff plans to review the current Natural Areas Registry. She pointed out that the draft regulations establish the current Natural Areas map as the State Registry of Natural Areas. The mapped areas will be reviewed over time it to see if they should remain on the Registry according to the new Guidelines. Mr. Vickers pointed out that in the future the agenda should read Natural Areas Registry as opposed to Natural Areas Inventory.

V. Nature Preserve Dedications Cape Henlopen State Park Ms. Butler provided the Council with an update on the Cape Henlopen State Park Nature Preserve Dedication. The Department is working on the Articles of Dedication to dedicate 2,200 acres of land in Cape Henlopen State Park as a Nature Preserve. Internal discussions are being held to determine if the entire 2,200 acres should be dedicated all together or dedicate only the areas that are ready to be dedicated with management plans in place. Ms. Butler hopes to have it ready for Council to vote on at the December meeting.

VI. Nature Preserve Management Issues Fork Branch Nature Preserve Ms. Butler has been working with Ashburn Homes who is developing Farthing Woods, a 7-acre development adjacent to Fork Branch Nature Preserve in Kent County. The development is located on the south side of Denny’s Road near the Glen Meadows subdivision. Some of the wetlands that cross over from the Nature Preserve will be added to the State’s Nature Preserve lands.

VII. New Business No new business to report.

VIII. Public Comment and Synopsis Reports From Other Councils, Stakeholders, and Partners Chairman Williams attended the State Parks and Recreation Council meeting at the Indian River Marina at the Center for Inland Bays.

Mr Athey attended the Clean Water Advisory Council meeting. Andy Manus has created a subcommittee to “explore the possibility of using forest land conservation easements to deal with waste water treatment issues and non-point source pollution.” Ms. Butler asked that Mr. Athey keep the Council abreast of the subcommittee’s actions. Ms. Adkins suggested that Mr. Manus may be looking at using waste water funds for acquisitions of forestland as a way of protecting water resources.

Ms. Mihills informed the Council that the Delaware Nature Society is closing on an easement in the Brandywine Valley - adding another 13 acres under conservation easement. By the end of September they should be receiving the gift of the Isaac Green property, approximately 60 acres along Johnson’s Branch near the Milford Millponds Nature Preserve and would like to dedicate the property as part of the Nature Preserve in the future.

IX. Next Meeting COUNCIL MEETINGS HAVE BEEN CHANGED TO TUESDAYS FOR THE REMAINDER OF 2009. The next meeting will be held on December 1, 2009 at 9:00 a.m., in the Office of the Secretary Conference Room, Richards and Robbins Building, Dover.

X. Adjournment

Ms. Adkins made a motion to adjourn the meeting. Mr. Athey seconded the motion. The meeting adjourned at 10:45 a.m.