Delaware Research Report

Protecting Delaware’s Natural Heritage: Tools for Biodiversity Conservation

A publication of the Delaware Department of Natural Resources and Environmental Control pursuant to National Oceanic and Atmospheric Administration Award No. NA87OZ0229. Protecting Delaware’s Natural Heritage: Tools for Biodiversity Conservation

ELI Project #972500-04.

ISBN# 1-58576-000-5

Environmental Law Institute®, The Environmental Forum®, ELR®, and the Environmental Law Reporter® are registered trademarks of the Environmental Law Institute.

Cover photos: Ron Vickers, DNREC. Awned meadow beauty; DNREC. Bald Cypress Swamp; B. Fahey, DNHP. Northern leopard frog, Great Cypress Swamp; Ron Vickers, DNREC. Showy orchis, Brandywine Creek State Park Acknowledgements

This publication is a project of the Environmental Law Institute. Funding was provided by generous grants from the Welfare Foundation, Longwood Foundation, Surdna Foundation, Town Creek Foundation, and Geraldine R. Dodge Foundation. Funding for production of the report was generously provided by The Nature Conservancy’s Delaware Field Office, the Delaware Nature Society, and the Delaware Department of Natural Resources and Environmental Control’s Division of Fish and Wildlife and Coastal Management Program. The contents of the report are the responsibility of the Institute. Authors of the report were Jessica B. Wilkinson, Shi-Ling Hsu, Brian Rohan, David Schorr, and James McElfish, with research assistance from Jill van Berg, Elizabeth Gordon, Hank Kessler, Marc Dworin, and Rasheq Rahman. Special thanks to Jerry Vaughn who catalyzed interest in the project; Lorraine Fleming, Roger Jones Jr., Andrew T. Manus, and Michael Riska for encouraging ELI to embark upon the effort; and to the Delaware biodiversity working group — Lloyd Alexander, Gregory Breese, Lynn E. Broaddus, Lorraine M. Fleming, Roger L. Jones Jr., Robert Line, Andrew T. Manus, Kenneth M. Reynolds, Charles R. Vickers — for helping to kick the report off with characteristic Delaware enthusiasm. Although the views expressed in this report should not be attributed to particular individuals or organizations, we gratefully acknowledge the assistance of the following people who provided us with valuable information and guidance:

Joe Abele, Jennifer Atkins, Charles Baker, Robert Baldwin, Tom Barthelmeh, Ted Beauvais, Chris Bradley, Hooper Brooks, Dennis Brown, Joseph Cantalupo, Jim Chaconas, Toby Clark, Sarah Cooksey, Eli Cooper, Sloane Crawford, Alton Dahl, Paul Daly, Forbes Darby, Mark A. Davis, Jim Dobson, Kevin Donnelly, Ken Dunne, Donald A. Eggen, Peggy Emslie, Al Farling, Joe Field, Terry Fulmer, Lisa Gelvin- Innvaer, Nancy Goggin, Richard Greene, Lynn Harrison, Rusty Harvey, Chris Heckscher, Robert Henry, Lynn Herman, Terrance L. Higgins, Vasuka Hiraesave, Elizabeth Holloway, Rob Hossler, David Hugg, Pat Hurley, Herb M. Inden, Kathleen Jamison, Jon Jensen, Terry Johnson, William Jones, Tim Kaden, Desmond Kahn, Sally Kepfer, Kathy Klein, Debra von Koch, Charles Lesser, Stewart Lovell, Jennifer Lukens, Miriam Lynam, Mike Mahaffie, Al Matlack, John Maxted, James May, Rick McCorkle, Jenny McDermott, Mike McGrath, Stewart McKenzie, Bob Moore, Greg Moore, Peter Morrow, William Moyer, Larry Niles, Tom O'Connell, Tim O’Connor, James Olson, George O’Shea, Jack Perdue, Arlyn Perkey, Robert Perry, Grace Pierce-Beck, Larry Pomatto, Leah Roedel, Jim Rassman, Bruce Richards, William Ritter, Roland Roth, Charles Salkin, Wendell Scheib, John Schneider, John Schwalm, Christine B. Shelton, E. Austin Short, III, Cheryl Sipple, Richard Smith, Carl Solberg, Art Spingarn, Linda Stapleford, Chet Stachecki, Kathy Tidball, Earl Timson, Christophe Tulou, Michael Valenti, Jack Vanderryn, Junior Webb, Sue Welles, Sallie Welte, Jim White, John Wik, Lynn Williams, Steve Williams, Lisa Wool, Rodney Wyatt, and Mark Zankel. Table of Contents

SECTION I: Local Land Use Planning and Biodiversity DELAWARE’S BIOLOGICAL DIVERSITY — Considerations ...... 39 A VALUABLE RESOURCE ...... 1 Zoning and Subdivision Regulations: Implementation of the Plan ...... 39 Chapter 1: Delaware’s Biological Diversity — Counties ...... 39 Values, Trends, and the Future ...... 3 Municipalities ...... 39 Zoning Regulations and Consideration of Biodiversity. . 40 Delaware's Historic Biological Diversity ...... 3 Environmental Design Standards ...... 40 Delaware’s Natural Regions ...... 4 Protection of Wetlands, Floodplains, and Why Conserve Biological Diversity? ...... 5 Steep Slopes ...... 40 Sources of the Loss of Biological Diversity ...... 6 Protecting the Rural Landscape ...... 40 Habitat Loss and Fragmentation ...... 8 Protection of Agricultural Land ...... 41 Habitat Loss...... 8 The TDR Option ...... 41 Habitat Fragmentation...... 9 Subdivision Review ...... 41 Habitat Degradation ...... 10 State Agency Influence On Land Use – Exotic Species ...... 11 the Role of DNREC ...... 42 Current Threats: Why Delaware Needs to Act Now ...... 13 State Resource Areas ...... 42 The Loss of Native Species ...... 13 Wastewater Disposal ...... 42 The Loss of Wetland Resources ...... 13 Transportation Planning ...... 43 Tidal Wetlands ...... 14 NEPA: Minimizing Environmental Damage ...... 43 Non-Tidal Wetlands ...... 14 Tea-21 ...... 43 Diverse Forest Habitats ...... 15 Long Range Transportation Planning ...... 44 Water Quality Impairment ...... 15 Multi-Modal Transportation Planning ...... 45 Runoff, Siltation, and Erosion ...... 16 Conclusion ...... 46 Effects of Agricultural Drainage ...... 16 Recommendations ...... 46 Hopeful Trends ...... 17 Chapter 4: Laws and Regulations Related to Species and Chapter 2: Principles of Conservation ...... 23 Habitat Protection ...... 51

Goals of Biodiversity Conservation ...... 23 The Protection of Fish and Wildlife Generally ...... 51 Fundamentals of Biological Diversity Conservation ...... 24 Protecting at-Risk Species ...... 51 Protecting Animals ...... 52 Protecting Plants ...... 53 SECTION II: Enhancing the Protection of at-Risk Species ...... 53 DELAWARE’S LAW, POLICY AND MANAGEMENT: OPPORTUNITIES Protections to Control Exotic Species ...... 53 FOR THE CONSERVATION OF BIOLOGICAL DIVERSITY ...... 31 Noxious Weed Control ...... 53 Phragmites Control ...... 54 Introduction ...... 33 Plant Pest Law ...... 54 Nursery Law ...... 54 Chapter 3: Planning Mechanisms ...... 35 Seed Law ...... 55 Control of Exotic Mammals, Reptiles, and State Level Planning ...... 35 Aquatic Species ...... 55 The Delaware Planning Act and Office of State Promoting Sustainable Agriculture and Forestry ...... 55 Planning Coordination ...... 35 Controlling Pesticide Use ...... 55 Intergovernmental Coordination in Land Use Planning. . 36 Forestry Laws and Regulations ...... 56 “Shaping Delaware’s Future” ...... 36 Seed Tree Program ...... 56 Mapping to Guide Investment ...... 37 Forestry Sedimentation and Erosion Local Land Use Planning and Zoning ...... 38 Control Program ...... 56 Land Use Planning: Opportunity and Requirements. . 38 Wetland Laws and Regulations ...... 57 Tidal Wetlands Protection ...... 57 Chapter 6: Management and Research ...... 97 Non-Tidal Wetlands Protection ...... 59 The Use of Section 401 to Protect Non-Tidal Wetlands. . 59 Data Collection, Management, Monitoring, and Sharing . . 97 Comprehensive Conservation and Management Delaware Natural Heritage Program ...... 97 Planning for Delaware’s Tidal and Gap Analysis ...... 98 Non-Tidal Wetlands ...... 60 Water Quality Monitoring ...... 98 Compensatory Wetland Mitigation ...... 61 Development of a Statewide Biodiversity Inventory Compensatory Wetland Mitigation for Impacts and Assessment ...... 98 From Transportation Projects ...... 61 Managing Delaware’s Fish and Wildlife ...... 99 Delaware Mitigation Banking Policies ...... 62 Wildlife-Related Recreation ...... 99 DelDOT’s Mitigation Banking Policy ...... 62 Funding for Wildlife ...... 99 DNREC’s Mitigation Banking Policy ...... 63 Non-Game and at-Risk Species Management ...... 99 The Future of Wetlands Conservation in Delaware . . . 63 Enhancing Wildlife Diversity ...... 100 Subaqueous Lands Regulations ...... 63 Marine Restoration and Research ...... 102 Drainage Activities in Delaware ...... 64 Small Game Management ...... 103 Lessening the Impact of Drainage Activities ...... 66 Small Game Management On Public Lands ...... 104 Water Quality Regulation ...... 67 Leased Wildlife Areas ...... 104 Sedimentation and Erosion Control Requirements . . . 67 Species Management Decision-Making and Seeking Solutions for Nutrient Control ...... 68 Priority Setting ...... 104 Septic System Regulations ...... 68 Current Planning Mechanisms ...... 104 Water Quantity Regulations ...... 69 Management of Delaware’s Forests ...... 105 Coastal Zone Protection ...... 69 Forest Health and Fire Prevention ...... 106 The Federal Coastal Zone Management Act ...... 69 Funding for State Forest Management ...... 106 Consistency Provisions ...... 70 Forest Management Conclusions ...... 106 State Coastal Zone Protection Program ...... 70 Balancing the Needs of State Parks ...... 106 Marine Fisheries Law ...... 71 Management of Open Space ...... 107 Horseshoe Crab Regulations ...... 72 Funding for Stewardship ...... 107 Blue Crab Regulations ...... 72 Native Species Protection Efforts ...... 107 The Effect of Gill Nets ...... 72 Delaware Invasive Species Council ...... 107 Conclusions ...... 73 Native Species and DNREC’s Division of Parks Recommendations ...... 73 and Recreation ...... 108 Transportation Management to Protect Biodiversity . . . . . 109 Chapter 5: Protection of Open Space in Delaware . . . . 81 Rights-of-Way Management ...... 109 Highway Mitigation and Restoration Activities . . . . . 110 Delaware’s State Park System ...... 81 Wetland Restoration and Management ...... 110 Natural Areas Protection in Delaware ...... 81 Phragmites Control Efforts ...... 110 Protection Status of Delaware’s Natural Areas ...... 84 Impoundment Management ...... 111 Open Space Protection: the Land Protection Act ...... 85 Mosquito Management ...... 112 Enactment of the Land Protection Act ...... 86 Softening the Shoreline ...... 112 Delaware Open Space Council and Northern Delaware Wetlands Rehabilitation Program . . 112 Acquisition Prioritization ...... 86 North American Waterfowl Management Plan . . . . . 113 Obligations of Local Government ...... 87 The Future of Wetland Management ...... 113 Delaware’s Greenways & Trails Program ...... 88 Other Cooperative Programs ...... 113 State Wildlife Areas ...... 89 Delaware Inland Bays Estuary Program ...... 113 Agricultural Land Protection ...... 89 Delaware Estuary Program ...... 114 Eligibility and Scoring of Farmland ...... 90 Whole Basin Initiative ...... 115 Farmland Protection and Benefits for Biodiversity . . . 91 Pea Patch Island Special Area Management Plan . . . . 115 Using the Farmland Preservation Program to Conclusion ...... 116 Grow Smarter ...... 91 Recommendations ...... 116 State Funding for Acquisition ...... 92 Delaware Land and Water Conservation Chapter 7: Private Landowner Outreach, Assistance, Trust Fund, Bond Funding, and the Taxation, and Incentive Programs ...... 123 Realty Transfer Tax ...... 92 The 21st Century Fund and Growth Tax Incentive Programs Conservation ...... 123 Management Fund ...... 92 Current Use Appraisals for Lands Subject to The Future of Open Space Funding and Acquisition Conservation Easements ...... 123 in Delaware ...... 92 Land and Historic Resource Tax Credit ...... 123 Conclusion ...... 93 Parkland Tax Incentives ...... 124 Recommendations ...... 94 Agriculture Tax Incentives ...... 124 Forest Management Tax Incentives: Commercial Forest Plantations ...... 124 Redevelopment Tax Incentives ...... 125 Agricultural and Wetland Cost-Share Opportunities . . . . 125 Conservation Reserve Program ...... 125 Conservation Reserve Enhancement Program ...... 125 Wetlands Reserve Program ...... 126 Environmental Quality Incentives Program ...... 126 Status of Delaware’s Participation in Farm Bill Programs ...... 126 Forestry Incentive, Cost-Share, and Outreach Programs . . 126 Forestry Stewardship Program ...... 126 Stewardship Incentives Program ...... 126 Forestry Incentives Program ...... 127 Outreach to Private Landowners ...... 127 Wildlife Incentive Programs ...... 128 Upland Habitat Conservation ...... 128 Wildlife Habitat Incentives Program ...... 128 Phragmites Control ...... 129 Partners for Fish and Wildlife ...... 129 Partners in Flight ...... 129 Conclusion ...... 129 Recommendations ...... 130

SECTION III: STATEWIDE BIODIVERSITY CONSERVATION ...... 133

Chapter 8: Toward A Comprehensive Strategy for Delaware ...... 135

Why a Comprehensive Statewide Strategy? ...... 135 Strategic Efforts in Other States ...... 135 Defining the Focus for a Delaware Strategy ...... 136 Necessary Components of a Delaware Strategy ...... 137 Conclusion ...... 138 Key Policy Recommendations ...... 138

Appendix I: Acronyms ...... 143

Appendix II: Delaware Contacts: Federal, State, and Local ...... 145 Section I: Delaware’s Biological Diversity — A Valuable Resource

1 Chapter 1 Delaware’s Biological Diversity— Values, Trends, and the Future

elaware is a state blessed with an abundance of We have come to recognize and appreciate that the pro- natural riches. However, it is important to recog- tection of nature includes the protection of species and Dnize that many of those places that we think of as places that have been and will continue to be influenced by “natural” have been heavily affected by human activities. interactions with human beings. Biodiversity protection Even the most seemingly remote and pristine sites are likely will entail active restoration, management, and an under- to have been modified by prior agricultural use, drainage, standing of cumulative impacts and surrounding land uses. and logging practices, by the establishment of non-native Delaware’s plants, animals, and ecosystems must be con- species, and by the introduction of pollutants through sur- served and restored on public and private protected lands, face water, ground water, and atmospheric deposition.1 as well as across the working landscape. Even protected areas that maintain diverse populations of native species are often isolated from other populations and surrounded by incompatible uses. In addition, many pro- DELAWARE'S HISTORIC BIOLOGICAL DIVERSITY tected areas no longer are subject to natural patterns of disturbance, such as tidal flow, fire, or flooding.2 Prior to European settlement, the native Americans of The concept of biological diversity, or “biodiversity,” has Delaware subsisted on the abundance of shellfish, game, and been developed by scientists to give us a way of thinking fur-bearing animals provided by the peninsula’s lands and about the richness and variety of the natural world. It pro- waters.4 News of Delaware’s abundant natural resources vides a way to view the Delaware landscape and to under- reached Europe in the early 17th century, drawing settlers stand the basis for conservation and restoration of these and providing a foundation for economic productivity. natural resources. Delaware was described by Dutch merchants attempting to establish trading companies in the new world as — “fine Biological diversity is the “variety land, in which all the necessaries and comforts of life are to be enjoyed in overflowing abundance.”5 The fur trade of life and its processes.” between Europeans and native Americans led Dutch, Source: The Keystone Center. 1991. Keystone Dialogue on Swedish and English settlers to build permanent settlements Biological Diversity on Federal Lands. in the state.6 Delaware’s abundant coastal marshes, non-tidal swamps, and woodlots provided early settlers with a plentiful Biological diversity is the “variety of life and its process- supply of fish, crabs, oysters and fur-bearing animals on es.” It includes “the variety of living organisms, the genetic which they made their living. However, the equally abundant differences among them, and the communities and ecosys- supply of mosquitoes and wetlands were viewed as impedi- tems in which they occur.”3 A region once rich in native ments to economic well-being and comfort.7 Soon after their species and ecosystem types that now has only uniform arrival in the 1600s, the Dutch and Swedish settlers began landscapes with few species and little variation within building dikes to drain freshwater marshes to make way for species is biologically impoverished. Concern for biological agriculture.8 As Delaware’s wetland and upland resources diversity requires the conservation of many types of land- began to dwindle, so too did the species associated with scapes, native plant and animal species, and the protection them. By 1830, commercial development of the state’s shell- of healthy and diverse genetic stocks within species. fish and fur-bearing animal trades led to over-harvesting.9

chapter 1 3 Because of the state’s strategic position between Phila- Deleware’s Ecoregions delphia and Baltimore, Delaware’s crops had readily acces- sible markets. Once famous for its abundant peach orchards, the peach blossom was adopted as the state flower in 1895.10 With the same passion that they drained the state’s wetlands, Delaware’s expanding population cleared the land of trees in an effort to convert fertile Pennsylvania forests into farmland. Dependence on the state’s forest resources for heating and constructing homes, and clear- Piedmont Ecoregion cutting to make way for agriculture, led to widespread deforestation by the 1800s.11 Newark Wilmington Three hundred and fifty years ago, Delaware was a Fall Line land of mature hardwood forests, bald cypress and Atlantic white cedar swamps. Its lands and waters provided a rich and productive habitat for a myriad of songbirds, waterfowl, fish, reptiles and amphibians, and C&D Canal unique plants. Forested ecosystems supported wildlife and maintained the diversity of Delaware’s rivers, streams, and New Castle Delaware River wetlands. Delaware’s prosperity was built on its biological County diversity. Yet, while the state’s early inhabitants took advantage of the land’s natural riches to build an economic future, they were simultaneously compromising the base of that diversity. If Delaware citizens hope to provide future generations with healthy populations of plants, Atlantic Coastal animals, and a diverse array of native ecosystems, action Plain Ecoregion must be taken now to protect and restore the state’s nat- Dover ural heritage.

Kent County DELAWARE’S NATURAL REGIONS Maryland Delaware Bay

Situated along a transitional zone on the Atlantic coast, Delaware lies at the northernmost range for an array of species and the southernmost range for others.12 Due to its position along the Atlantic migratory flyway, and its location adjacent to a large and productive estuary and the Atlantic Ocean, Delaware is a seasonal home to a dazzling Lewes array of migratory bird species.13 Ecoregional classifications provide one commonly used Georgetown way of understanding Delaware’s natural heritage. The state is comprised of two ecoregions, defined by vegetation, topography, and soils. The two distinct ecoregions of Sussex County Delaware are:

• The Piedmont Ecoregion, which encompasses the northernmost five percent of the state, is characterized by rolling hills and deeply incised and wooded stream val- Maryland leys.14 The Piedmont region’s “stately woods,” “graceful upward slopes checked with groves,” and “sunny brooks Source: Fleming, Lorraine M. 1978. Delaware’s Outstanding meandering through valleys” were known for their “pas- Natural Areas and Their Preservation. Delaware Nature Education toral sylvan and romantic scenery.”15 Society: Hockessin, DE.

4 protecting delaware’s natural heritage • The Atlantic Coastal Plain Ecoregion is characterized by compounds extracted from plants or microorganisms, or gently undulating country, sandy soils, meandering synthetic versions or derivatives of them.22 streams, and shallow stream valleys.16 The tidal streams Delaware’s forest and forest products industry is an of the Coastal Plain are fed by swamps and tributaries, important component of the state’s economy. and then drain into the Atlantic Ocean, Delaware Bay, Approximately 5,000 acres of forest land in Delaware are inland bays and Chesapeake Bay. Ninety years ago, an harvested every year. Delaware’s forest-based industries author observed that this region is blessed with: provide jobs to 3,700 individuals with total annual wages estimated at $98 million.23 Yet, a healthy forest products a climate softened by the soft-water influences of the industry is dependent on biological diversity. For exam- bays on either hand, which insure early springs, this ple, declines in songbird populations have negative effects whole region forms a central peninsula which for all on economically important tree species. Migratory song- the purposes of agriculture and especially for its birds feed on insects that consume tree leaves and reduce finer products with reference to both their ready the health of trees. As songbird populations decrease, so production and consumption, affords greater facili- do the health and value of forests.24 Similarly, if genetic ties perhaps than those of any other equal area on diversity and diversity among tree species are lost, mar- the Continent.17 ketable timber crops become more vulnerable to disease, pest outbreak, and other factors. The “fall zone” between the Piedmont and Atlantic Healthy fisheries have been an essential part of Coastal Plain divides the state ecologically and geologically. Delaware’s economy since the state was settled. In 1995, The interface between the two ecoregions greatly increases the dockside value of commercial fish and shellfish was biodiversity in the region.18 almost $8 million.25 Delaware’s most valuable commercial Delaware is also often described in terms of its five species is the blue crab.26 In 1997, the blue crab harvest major drainage basins — the Piedmont, Delaware Bay, generated over $3.3 million.27 The vitality of Delaware’s Chesapeake Bay, Inland Bays/Atlantic Ocean, and fisheries and shellfish industry is dependent on good Delaware Estuary.19 In addition to a diversity of wetland water quality and the availability of coastal wetland habi- types, Delaware has over 2,500 miles of rivers and streams tat. As a result, the resource is inextricably linked to land and almost 3,000 acres of lakes and ponds.20 use and development patterns throughout the state. Without the careful attention and stewardship of Delaware’s citizens, governments, businesses, and conserva- • Noncommercial consumption. Delaware’s natural tion organizations, Delaware’s unique ecoregions may be resources support fishing, hunting, and production and gradually transformed into a pale, generic landscape indis- collection of natural products not sold in the market- tinct from other parts of America — impoverished in place. Millions of Delawareans participate in wildlife species, lacking in economic and ecological value, and recreation every year. Annually, about 21 percent of unappreciated by its residents. With care and resolute Delawareans fish or hunt.28 action, the biological richness and distinctiveness of these Along the inland bays, Delaware Bay and Atlantic regions can be conserved and restored for the future. Ocean, Delaware’s communities derive significant economic benefit from recreational sportfishing. Delaware residents and visitors from out-of-state fish in Delaware WHY CONSERVE BIOLOGICAL DIVERSITY? waters for species such as striped bass and flounder. In 1996, 40,000 hunters and 196,000 anglers using Delaware’s biological diversity provides the state and its Delaware lands and waters spent over $443.6 million on inhabitants with numerous economic, social, and environ- fishing and hunting trip-related expenses.29 mental benefits: • Non-consumption uses. Every year, over 192,000 • Commercial consumption. Biological diversity provides Delawareans participate in non-consumptive wildlife a multitude of natural resources used commercially for activities such as wildlife observation and photography. food, fuel, fiber, and other products.21 Enormous direct Over 34 percent of Delaware’s population takes part in economic benefits from biological diversity have already such activities annually.30 For example, wildlife enthusi- been achieved, and many more have yet to be discov- asts flock to Delaware each spring to witness a dramatic ered. For example, almost a quarter of all medical pre- event — every year in late May, over one million shore- scriptions throughout the world are either chemical birds congregate along the Delaware Bay to feast on eggs

chapter 1 5 that have been deposited by the world’s largest spawning SOURCES OF THE LOSS OF BIOLOGICAL DIVERSITY population of horseshoe crabs.31 Red knots, sanderlings, ruddy turnstones, semi-palmated sandpipers, plovers, Nationally, habitat destruction, caused by activities such as avocets, stilts and other species draw bird enthusiasts to agriculture, road-building, residential and commercial the second largest feeding stopover in the western hemi- development, logging, as well as the introduction of exotic sphere.32 It is estimated that wildlife-watching activities species, is the primary causes of biological diversity loss. generated over $63.8 million in Delaware in 1996.33 Over 95 percent of the species listed under the Endangered Species Act in the United States are threatened, at least in • Ecological services. Biological diversity provides vital part, by habitat loss or alteration. In addition, exotic ecological services such as photosynthesis, water purifi- species have contributed to the decline of 42 percent of all cation, and flood control.34 For example, soil organisms federally listed species.42 generate and maintain soils. These organisms also pro- As many as 20 percent of the world’s freshwater fishes are vide other critical functions, including nutrient cycling. “extinct or in serious decline.”43 In the 1980s alone, 31 per- Diversity is also important for controlling the vast num- cent more North America freshwater fish of special concern ber of pests that attack crops or domestic animals. Most became endangered and threatened.44 In North America, the of these pest species are herbivorous insects, and the loss of biological diversity in aquatic ecosystems is caused by diversity of predacious and parasitic insects and migrato- physical habitat alteration, the introduction of exotic species, ry songbirds that feed upon them, are the primary nat- chemical pollution, hybridization, and over-harvesting.45 ural control against pest outbreaks.35 Migratory song- Other severe threats to the nation's ecosystems include birds also play a crucial ecological role by pollinating resource exploitation, fire suppression, recreation (primari- flowers and dispersing seeds.36 ly the use of off-road vehicles), and the introduction of The maintenance of diverse, sustainable ecosystems is environmental toxins.46 Historically, over-hunting and essential for the future stability of human communities. over-fishing have contributed to the decimation of specific Healthy ecosystems tend to have many checks and bal- groups of species.47 ances, and every species plays a role in maintaining this Not surprisingly, many of these threats have also been system. The loss of diversity generally weakens natural identified as the primary forces that have affected and systems, making them more susceptible to natural and continue to affect the loss of biological diversity in artificial perturbations and increasing the chance of sys- Delaware. The most serious threats to biological diversity tem-wide collapse.37 in Delaware include:

• Ethical values. Delaware citizens have demonstrated • habitat loss and fragmentation; a strong commitment to land stewardship. They • habitat degradation; and believe that regardless of their monetary value, all • the proliferation of invasive exotic species. forms of life warrant respect and protection. Many also believe that humans have a social, spiritual, or moral responsibility to maintain ecosystems and their associ- Table 2: Imperiled Bird Species by Habitat Type ated complements of species.38 Almost 80 percent of all for Delaware Americans believe that our responsibility for protecting 50% the environment stems from our responsibility to 39 future generations. 40%

• Option values. Maintaining biological diversity preserves 30% options for future generations to gain benefits derived from biological resources. Our understanding of diversi- 20% ty's many values is incomplete. A degraded biological landscape may inadvertently eliminate options to use 10%

untapped resources for agricultural, industrial, recreation- 0% 40 al, and medicinal use in the future. Since the “future is ForestFreshwater/ Beach SaltmarshGrassland Scrub- uncertain and extinction is forever,” the best way to buffer Brackish shrub/ ourselves against unknowable future consequences is to Wetlands edge protect biological diversity today as a “safety net.”41 Source: Courtesy DNHP

6 protecting delaware’s natural heritage Farming for Wildlife: The Compatibility of Agricultural and Wildlife Values

Agriculture has traditionally been identified as a 1960s, these farming practices have yielded to a new threat to biodiversity because of its ability to frag- era of intensive row cropping (3). This decline of ment natural vegetation, contribute to water pollu- structural diversity led to corresponding declines in tion, destabilize streambanks, and cause erosion. wildlife populations, particularly those dependent However, near urban or rapidly developing areas, on grasslands (4). agricultural lands can provide wildlife populations with some needed respites from pavement and con- • Inclusion of unused areas, buffer strips, and grassed crete (1). Not only do agricultural areas provide waterways. Uncultivated areas provide nesting, wildlife with food, cover, nesting areas, and breeding brood, and winter cover for birds and other wildlife grounds, but they function as corridors connecting (5). Conservation buffers, such as riparian buffers, fil- natural areas, and as buffers between highly devel- ter strips, windbreaks, and field borders, can support oped and natural areas. As a result, preventing the an impressive array of wildlife. The creation of development of agricultural land has become a key grassed waterways prevents soil erosion and has been wildlife conservation objective. shown to have tremendous benefits to wildlife, espe- Agriculture is estimated to affect the survival of cially birds. The degree to which plots are connected 380 of the 663 species currently federally listed as by corridors to the surrounding landscape are also threatened or endangered in the U.S. (2). key factors in promoting biodiversity (3). Conservationists have found that it is not merely protecting farmland but ensuring ecologically sound • Mowing at the right time and with the right fre- farming practices that can have the greatest impacts quency. To enhance the benefits to biodiversity, farm- on biodiversity. ers should be particularly mindful of the life cycles of native bird populations when planning the timing What farming practices can best benefit wildlife? and frequency of mowings in their fields and natural The diversity and types of crops, field size, inclusion buffer areas. of buffer strips, and types of irrigation and tilling methods can make or break a farm for wildlife. With • Conservation tillage. Conservation tillage, which new types of farming practices, agricultural land is relies less on heavy farm machinery and leaves crop now better able than ever to provide suitable habitat residue and waste grain on the fields, provides biodi- for wildlife. The following factors have particularly versity benefits. During the winter, conservation significant impacts on wildlife: tillage areas provide more food and cover to wildlife populations than conventionally tilled areas. In the • Crop diversity. Traditional farmland, which summer, because conservation tillage provides more included a wide range of crops, pasture and hay suitable nesting cover for breeding populations of fields, and fallow areas, provided a high degree of birds, no-till crop fields support higher densities and structural and nutritional diversity, which resulted a greater variety of nesting birds than conventionally- in high varieties of wildlife on crop fields. Since the tilled areas (6).

References: (1) Goldstein, Ruth. Winter 1999. “Where the Wild Things Are.” American Farmland: The Magazine of the American Farmland Trust. 10-14; (2) Feather, Peter, D. Hellerstein, and LeRoy Hansen. 1999. “Economic valuation of environmental benefits and the targeting of conservation programs. The case of the CRP.” Agricultural Economic Report Number 778. United States Department of Agriculture; (3) Warner, Richard E. 1994. “Agricultural land use and grassland habitat in Illinois: future shock for Midwestern birds?” Conservation Biology. 8(1):147-156; (4) Jahn, Laurence R. 1988. “The Potential for Wildlife Habitat Improvements.” Journal of Soil and Water Conservation. 43(1):67-69; (5) Taylor, Melvin W., Carl W. Wolf, and William L. Baxter. 1978. “Land-use change and ring-necked pheasants in Nebraska.” Wildlife Society Bulletin. 6(4):226-230; (6) Best, L. B. 1985. “Conservation vs. Conventional Tillage: Wildlife Management Considerations.” In A Systems approach to conservation tillage. Chelsea, Michigan: Lewis Publishers.

chapter 1 7 Habitat Loss and Fragmentation mental laws and policies, and changing attitudes. Some of it continues unnecessarily. Habitat Loss Prior to settlement, the Delaware landscape was character- The direct loss of habitat for plants and animals has been ized by a diversity of forest types, coastal marshes and fresh- caused by a variety of human activities. Delaware’s land water swamps. However, approximately 75 percent of the and waterbodies have been converted for agricultural use forests in the Piedmont region have been cleared for agricul- and industrial, residential, and commercial development. ture, pastureland, and development.48 Although the state’s Significant habitat loss has already taken place. Much has forestland has begun to be restored, very little, if any, old been slowed in Delaware due to the emergence of environ- growth forests remain. For example, it is estimated that “all the woodlands in the Piedmont Basin are second- or third- growth forest, most with trees less than 50 to 100 years old.”49 “The extensive fragmentation At the time of European settlement, about 480,000 of habitats that ensues with acres, or 36 percent, of Delaware was freshwater and tidal wetland.50 By the mid-1980s, Delaware had lost about 54 agricultural and urban-suburban percent of the state’s original wetland acreage. Only about 223,000 acres remained by the mid-1980s.51 The majority development inevitably reduces of the state’s wetlands have been lost to stream channeliza- both plant and animal diversity. tion and ditching, as well as direct conversion to agriculture, and urban development.52 For example, fragments may be Delaware was not historically characterized by large expanses of grasslands prior to settlement. The majority of so narrow that they are entirely the state’s grassland habitats were high marshes dominated edge, thereby diminishing or by short saltmeadow cordgrass and spikegrass, and small, early successional forest openings. When the forests were eliminating all species requiring cleared for agriculture, these new environments did provide significant habitat to grassland and edge species.53 The con- forest interior.” version of farm and pastureland for development in Source: Hess, G. K., R. L. West, M. V. Barnhill III, and L. M. Fleming. 1999. Delaware has been accompanied by a corresponding loss in Birds of Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 10. species dependent on open grasslands. Between 1966 and

Habitat Fragmentation: Edge Effects

Habitat fragments differ from the original habitat in lishment of pest and predator species, which can then that fragments have a greater amount of edge per area disperse into the interior of the fragment and of habitat, and the center of each habitat fragment is adversely affect the diversity of the species within the closer to an edge. The increased amount of edge and habitat fragments(1). Researchers have found that reduced area of interior cause what is referred to as small mammalian predators, such as raccoons and “edge effects.” The fragment edge differs from the feral house cats, and egg-eating birds like crows and conditions in the interior; there are differences in blue jays, concentrate their hunting along the forest light, temperature, wind, and the incidence of fire. edge. Habitat fragmentation also increases the vul- While some edge effects benefit species like white-tail nerability of the fragments to invasion by exotic deer and bobwhite quail, other species are negatively species and native pest species(2). Each of these edge affected. Increased forest edge creates a disturbed effects can have a significant impact on the vitality environment that offers suitable habitat for the estab- and composition of the species in the fragment(1).

Source: (1) Primack, Richard B. 1993. Essentials of Conservation Biology. Sunderland, MA: Sinauer Associates, Inc. Publishers.(2) Askins, Robert. A. 1995. “Hostile Landscapes and the Decline of Migratory Songbirds.” Science. 267: 1956-1957.

8 protecting delaware’s natural heritage 1991, the acreage of Delaware’s farmland decreased 37 per- ments are often isolated from one another by a highly cent, while pasture fields declined by 85 percent.54 Since the modified landscape. While fragmentation often results 1960s, farmland and grassland birds, such as the American from a dramatic reduction in the area of the original habi- kestrel, grasshopper sparrow, vesper sparrow, field sparrow, tat, it also occurs when habitat is divided by roads, rail- eastern meadowlark, and bobwhite quail, have shown sig- roads, drainage ditches, dams, power lines, fences, or other nificant population declines.55 Farmland and grassland can barriers to the free movement and migration of plant and provide significant ecological benefits if appropriate agricul- animal species.56 tural practices are employed. However, when these lands are Habitat fragmentation can lead to the rapid loss of species fragmented, degraded, and paved, they provide little or no since it creates barriers to the normal processes of dispersal ecologically beneficial functions. and colonization. Many species of animals that dwell in a forest interior, for example, will not cross even very short dis- Habitat Fragmentation tances of open area. When species migration is limited, so is Habitat fragmentation is a significant threat to biological the dispersal of plant seeds that are carried by animals. diversity wherever human activities dominate the land- Fragmentation of habitat also reduces the foraging ability of scape. Habitat fragmentation is a process whereby large animals. Particular fragments may lack the range of food continuous areas of habitat are reduced in size and separat- types and other resources necessary to support permanent ed into discrete parcels. When habitat is destroyed, a populations of certain species.57 Two effects of fragmentation patchwork of habitat fragments is left behind. The frag- are critical - the edge effect and the island effect (See Boxes:

Habitat Fragmentation: The Island Effect

Fragmentation of habitat decreases the total habitat to species of the original habitat (e.g., because it is area and affects dispersal and immigration rates of degraded or is home to predators), species dispersal species. Ecologists liken habitat fragmentation to the success is low. The remnant patches of habitat can biogeographical model of islands, which holds that become “habitat islands”(1). "islands with large areas have more species than However, if migration between habitat fragments islands with small areas,” and “the extinction rate is high, or if the landscape between fragments can will be lower on large islands than on small ones support populations of many of the species from the because large islands have more habitat diversity and original habitat, communities in the fragments may a greater number of populations”(1). Smaller islands retain diverse populations of native plants and ani- have fewer species because they have less variety in mals(3). Thus, plant and animal populations from their environments and community types. Smaller larger habitat areas or “sources” can help to maintain islands support fewer populations per species than healthy populations within a fragment, or “sink” area do larger islands with comparable characteristics(1). that depends upon immigration to ensure species The smaller the population, the more likely it is to survival. The quality of the area between fragments go extinct because of poor genetic diversity and vul- can significantly influence the health of populations nerability to disease, catastrophe, and other within fragments(2). Therefore, it matters greatly forces(2). The smaller and more isolated a patch or what land uses and activities surround and border island, the less likely new immigrants will be able to wetlands, forests, refuges, and waterways. It also supplement diminishing populations. Therefore, means that the existence of larger, undisturbed, small islands or patches of isolated habitat are more Delaware habitats can help maintain the biological prone to extinctions(2). In a fragmented landscape, health of more fragmented areas across the landscape - when land surrounding the fragments is inhospitable such as small woodlots or isolated wetlands.

Source: (1) Primack, Richard B. 1993. Essentials of Conservation Biology. Sunderland, MA: Sinauer Associates, Inc. Publishers. (2) Askins, Robert A. 1995. "Hostile Landscapes and the Decline of Migratory Songbirds.” Science. 267: 1956-1957. (3) Wilcove, David S., Charles H. McLellan and Andrew P. Dobson. 1986. "Habitat Fragmentation in the Temperate Zone.” Conservation Biology: The Science of Scarcity and Diversity. Ed. Michael E. Soule. Sunderland, MA: Sinauer Associates, Inc. Publishers.

chapter 1 9 Habitat Fragmen-tation: Edge Effects and Habitat Fragmentation: The Island Effect). Most of Delaware’s remaining ecosystems — the forests, marshes, and forested swamps — have been highly fragmented. Much of this is due to land use changes from the growth and distribution of human populations. Between 1984 and 1992, the state’s population grew by about 14 percent, while the percentage of developed land increased by 50 percent.58 This rate and pattern of growth and habitat fragmentation has placed Delaware’s ecosystems at high risk.59

Delaware’s explosive growth and DNREC. Great egret, Pea Patch Island. changes in land use significantly contribute to fragmentation of the state’s remaining habitat. The paving of valuable ecosystems, the erosion of soils,

and the fragmentation of viable habi- STEPHEN KIRKPATRICK, tat areas cause widespread, long-term harm to Delaware’s lands and waters, decreasing their abili- ditched, diked, and impounded in the 17th century.64 ty to support viable and diverse populations of species. Continued maintenance of coastal impoundments have limited the exchange of tidal waters, nutrients, and other Habitat Degradation resources, thereby degrading Delaware’s coastal wetlands. 65 Short of the direct loss of native habitat, the degradation of In addition, mosquito control practices,66 such as parallel- aquatic and terrestrial habitat can significantly diminish grid-ditching (that affected 44,000 acres of tidal wet- natural biological diversity. Although estimates of degrada- lands),67 also contributed significantly to the degradation of tion are hard to come by, in 1978–prior to the most recent the state’s tidal wetlands. It is estimated that a greater development boom–the Delaware Nature Society deter- amount of wetland acreage within New Castle County was mined that only approximately 3.5 percent of Delaware degraded than lost outright.68 remained “in anything resembling its natural condition.”60 The elimination or minimization of natural patterns of Modification of natural stream channels and drainage disturbance can also cause severe habitat degradation. For patterns affects terrestrial ecosystems as well as aquatic example, many grassland and forest ecosystems are depen- habitat. About 90 percent of Delaware’s natural streams dent on fire to eliminate competing fire-sensitive species, and rivers have been modified, typically for agricultural non-native species, excess debris, and to encourage regen- drainage purposes.61 Over 2,000 miles of Delaware streams eration.69 Frequent fires also help remove accumulated are managed as tax ditches and another 2,000 miles of woody debris from the forest floor. When fire is sup- waterways are privately maintained drainage ditches.62 Tax pressed, “fuel” reserves build up and fires are more intense ditches in the Chesapeake basin drain approximately and destructive.70 292,000 acres.63 Because agricultural drainage ditches are Flooding is also an important ecological process. Although often cleared of vegetation and other debris to facilitate the ditching of natural rivers and streams has helped to alleviate flow of water and future ditch maintenance, riparian areas the threat of flooding from severe storm events, this practice (forested areas along streams and rivers that flood occasion- has also disrupted normal stream morphology and natural ally) have also been severely degraded. patterns of nutrient exchange, debris clearance, stormwater When wetlands are drained and water flow is redirected, attenuation, and other functions provided by the interaction wetland-dependent species are directly affected, but there of rivers with their surrounding riparian areas. are many indirect effects as well. Many of Delaware’s wet- Harvesting and extractive activities can produce unnecessary lands were severely degraded when the state’s wetlands were habitat degradation. For example, some forest practices, par-

10 protecting delaware’s natural heritage ticularly those that do not consider soil conservation or the world–have been intentionally transported by that fail to leave some standing live and dead trees, have humans for use as cultivated plants and game fish, or impaired natural habitats. Agricultural practices can also introduced inadvertently by ships and vehicles. Today, lead to excessive erosion, sediment input, and nutrient the extent of movement of human-transported species is enrichment of waterbodies. The Delaware’s inland bays unprecedented on a geographical scale, and has been have been particularly hard-hit by water quality degrada- described as “one of the great historical convulsions of tion from nutrient over-loading.71 Nutrient inputs to the the world's flora and fauna.”73 bays primarily come from manure and agricultural fertiliz- The majority of introduced species do not become ers applied to cropland, as well as improperly functioning established in their new environments. Yet, because exotics on-site waste disposal systems (or septics).72 are transplanted to areas where their natural predators do Habitat is also degraded by the direct input of pollu- not exist, they may have a substantial advantage over native tants from point sources, non-point sources, and atmos- species. Those exotic species that do establish themselves pheric deposition. Chemical contamination of habitat can can greatly influence the composition of native species directly kill plants and animals, affect reproductive and through competition for resources, direct predation, or survival rates, and cause birth defects. Most non-point source pollution in Delaware stems from sedimentation and erosion due to urbanization and nutrient loading “We have turned more and caused by agricultural activities. Sedimentation and ero- more farmland and open space sion are harmful to water quality because the sediments themselves cloud water clarity and are detrimental to into suburbs.” aquatic wildlife, and also because the sediments bring with Source: Delaware Office of State Planing Coordination. “Shaping Delaware’s Future: them nutrients and toxins that disturb the natural chemi- The Investment and Resource Management Strategy.” Dover, DE. cal and biological balance of waterways. alteration of the existing habitat such that indigenous Exotic species species can no longer survive.74 Due to physical and environmental barriers, plants and Exotic species in Delaware–both plants and animals are often restricted in their ability to migrate animals–have disrupted natural communities across the and colonize other areas. Yet, many “exotic” state. The Division of Fish and Wildlife’s Delaware Natural species–species that have evolved in different regions of Heritage Program (DNHP) has assembled a list of the non-

Identified Conservation Threats in Delaware

In 1998, the Delaware Department of Natural point and non-point source pollution, as well as Resources and Environmental Control (DNREC) water diversions; degradation of aquatic habitat identified seven factors affecting conservation of the caused by urbanization, stormwater runoff, agricul- state’s plant and animal resources. These include: tural practices, excessive sedimentation, and stream ecosystem degradation and encroachment from channelization and maintenance activities; intro- land conversion and agricultural and industrial duction of toxics into the aquatic environment chemicals; depletion of fish and wildlife caused by from historical hazardous waste handling and dis- habitat loss, land conversion, poor water quality, posal, spills, leaking storage systems, landfills, pathogens, and over-harvesting; exotic species intro- municipal and industrial wastewater treatment ductions by interstate and international transporta- plants; and habitat fragmentation due to land con- tion; water quality and quantity problems caused by version and development.

Source: DNREC. February 2, 1998. “The Vision Document for the Department of Natural Resources and Environmental Control.” Senior Management Review Draft-February 2, 1998.

chapter 1 11 native plant species that have become established in the finch, house sparrow, ring-necked pheasant, and mute swan. state. The list includes 543 species and varieties of non- There are 21 non-native fish species in Delaware, including native vascular plants. Non-native species now represent 25 rainbow, brown, and brook trout, fathead minnow, bluegill, percent of the state’s known flora.75 smallmouth and largemouth bass, and walleye.77 Many of Delaware’s exotic invasive plant species were originally planted for wildlife and decorative uses. Multiflora rose, “ Many animals are unable to autumn olive, and oriental bittersweet, some of the state’s most tenacious exotics, were originally planted for game food adapt to land-use practices which and cover. These are known to have “proliferated and aggres- have altered their natural habitats. sively displaced native plants.”78 One of the most invasive species in Delaware is phragmites This, unfortunately, is the primary (Phragmites australis), or common reed. The common reed is a grass native to North America. However, it is likely that the reason the majority of Delaware’s invasive populations now found in Delaware wetlands are a animals occur on this list.” hybrid between native European and North American species that resulted in an aggressive hybrid.79 Phragmites infests wet- Source: Heckscher, Christopher M. “Delaware’s Rare Animal Species of Conservation Concern.” DNHP, DNREC. Smyrna, DE. lands — particularly tidal wetlands in Delaware — at the expense of native wetland plant communities. Although Delaware’s tidal marshes were once predominantly diverse Some of Delaware’s more problematic non-native plant cordgrass communities,80 it is estimated that one-third — species include Norway maple, garlic mustard, Canada this- 29,500 to 39,500 acres–of the state’s tidal wetlands are now tle, hydrilla, several species of honeysuckle including dominated by a monoculture of phragmites.81 Phragmites Japanese honeysuckle, Morrow’s honeysuckle, and amur invades wetlands that have been physically disturbed by activ- honeysuckle, purple loosestrife, Japanese knotweed, and ities such as dredging, wetland impoundment, and hydrolog- English ivy.76 Delaware is also home to numerous exotic ani- ic alteration for flood-control.82 Not only does phragmites mals, including gypsy moth, black and Norway rat, and dominate marshes, thereby reducing the diversity of native nine species of birds, including European starling, house wetland plant species,83 but phragmites monocultures provide

Delaware’s Federally Endangered, Threatened, and Candidate Species

Endangered Plant Species Seabeach pigweed (Amaranthus pumilus) Canby’s dropwort (Oxypolis canbyi) Swamp pink (Helonias bullata) Chaffseed (Schwalbea americana) Small whorled pogonia (Isotria medeoloides) Knieskern's beaked-rush (Rhynchospora knieskernii) Endangered Animal Species American peregrine falcon (Falco peregrinus anatum) Threatened Animal Species Delmarva Peninsula fox squirrel Bald eagle (Haliaeetus leucocephalus) (Sciurus niger cinereus) Piping plover (Charadrius melodus) Shortnose sturgeon (Acipenser brevirostrum) Bog turtle (Clemmys muhlenbergii)

Threatened Plant Species Candidate Species Sensitive jointvetch (Aeschynomene virginica) Bog asphodel (Narthecium americanum)

Source: McAvoy, William A. March 1998. “Rare Native Plants of Delaware.” DNHP, DNREC: Smyrna, DE. Heckscher, Christopher M. “Delaware’s Rare Animal Species of Conservation Concern.” DNHP, DNREC. Smyrna, DE; Heckscher, Christopher M. DNHP, DNREC. Personal correspondence; http://www.fws.gov/r9endspp/statl-r5.html. Note: This list includes the species of endangered, threatened and candidate species that are listed by the U.S. Fish and Wildlife Service under the federal Endangered Species Act.

12 protecting delaware’s natural heritage Table 1: wetlands has decreased. It is estimated that between 1984 Delaware Species at Risk and 1992, the state lost over 38,000 acres of agricultural 90% land and over 55,800 acres of forestland–a total loss of 6 percent of Delaware’s agricultural land and 13 percent of 80% the state’s forests.89 One of the reasons for such a disproportionately large 70% Imperiled Historical or Extirpated loss of the state’s forests and agricultural land is the sprawl- 60% ing character of the growth. This growth has been made possible by the cummulative effects of many state trans- 50% portation and infrastructure decisions. Traditionally, increasing automobile use and traffic has been accommo- 40% dated by the development of more roads and highways. The resulting network of roadways has enabled sprawling 30% growth to penetrate virtually every corner of Delaware. Vehicle-miles-traveled increased 55 percent from 1980 to 20% 1990, while population grew only 11 percent.90 10% The Delaware Office of State Planning Coordination (OSPC) recognizes the threat growth poses to the state’s 0% “complex and fragile” ecological resources. The state’s envi- Freshwater Herptiles Fish (70) Birds Mammals Plants ronmental uses “are being squeezed not only by the absolute Mussels (63) (379) (43) (1618) (13) loss of land but by those holes punched in natural resource 91 Source: Courtesy DNHP and environmental areas by dispersed development.”

significantly less “habitat diversity for estuarine organisms The Loss of Native Species and wildlife” than native cordgrass communities.84 One of the There are currently 1618 vascular plant taxa native to sensitive species that is negatively affected by the conversion Delaware.92 Despite this impressive array of diversity, Delaware of native cordgrass coastal marshes to phragmites stands is the has lost “a higher percentage of its native plant species than saltmarsh sharp-tailed sparrow,85 an “uncommon species of any other state in the United States.”93 An estimated 41 per- conservation concern” in Delaware.86 cent of the state’s plant species are “rare or uncommon and are deserving of some form of protection.”94 Delaware’s native plants are under severe threat primarily due to direct CURRENT THREATS: WHY DELAWARE NEEDS loss of the state’s wetland and forest habitat.95 TO ACT NOW Delaware’s list of animal species of conservation concern includes six species of mussels; 17 species of fish, including Rapid growth–especially the suburban and rural growth that Hickory shad; 11 species of amphibians, including 7 sala- has occurred in Delaware–has a profound affect on biological manders, 3 treefrogs, and the carpenter frog; 20 reptiles, diversity. While poorly planned growth leads to the direct loss including 11 snakes and two species of turtles; 5 beetles; 21 of farmland and forestland, it also fragments and degrades species of butterflies and 59 species of dragonflies or dam- remaining forests and wetlands. Once fragmented and dis- selflies; and 6 mammals.96 It is believed that “93 species of turbed, vegetated communities become more susceptible to Delaware birds are in trouble.”97 In addition, there are 25 degradation by the establishment of invasive exotic species. species of birds, reptiles, insects, and mussels that have not Although Delaware’s population has continued to grow been identified in Delaware for over 15 years.98 since settlement, recent patterns of growth have been dra- Delaware’s forests, farms and wetlands were also once matic. Between 1984 and 1992, almost 100 square miles home to six species now extirpated from the state. These were converted to developed land–primarily residential, include the regal fritillary butterfly, ruffed grouse, and commercial, and industrial development.87 The most dra- black bear.99 One species once likely found in matic growth in the state has occurred just south of the Delaware–the passenger pigeon–is now extinct.100 Chesapeake and Delaware Canal, where between 1984 and 1992 the amount of developed land increased 222 percent.88 The Loss of Wetland Resources As the proportion of developed land in Delaware has Delaware’s wetland resources provide a variety of vital increased, the amount of land in agriculture, forests and functions. In addition to filtering water, and removing

chapter 1 13 sediments, nutrients and other compounds, coastal wet- Non-Tidal Wetlands lands provide a buffer against storms, thereby decreasing Over 70 percent of Delaware’s plant species of concern, erosion. The ability of wetlands to store water and release it and probably an equally large percentage of the state’s ani- gradually helps attenuate floods throughout the state.101 But mal species, are found in non-tidal wetlands.115 Although perhaps most importantly, Delaware’s wetlands provide freshwater wetlands are still the most abundant wetland critical habitat for myriad birds, waterfowl, fish and shell- type in Delaware, 21 percent of these wetlands have been fish, and wetland plants.102 The state’s tidal marshes contain lost since the mid 1950s.116 Agricultural drainage and chan- wild rice, cattails, sweet flag, rushes, and smartweed, all of nelization were responsible for about 82 percent of the which help sustain birds, waterfowl, and muskrats.103 freshwater wetland losses.117 Filling for residential, commercial, and industrial development has contributed to 12 per- Tidal Wetlands cent of the freshwater wetland losses.118 Delaware’s riparian Delaware’s tidal wetlands–freshwater, brackish-water, and wetlands have predominantly been lost through ditching saltwater wetlands104–represent less than 30 percent of the and the conversion of land for agriculture.119 In addition to state’s wetland resources.105 The Delaware Bay’s tidal fresh- direct wetland loss, hydrologic modifications, as well as water wetlands provide nesting habitat for more than 48 point and non-point source pollution have contributed species of birds, including the yellow warbler, wood duck, nutrients and other pollutant that have degraded the green heron, least bittern, and clapper rail.106 As remaining non-tidal wetland acreage.120 Delaware’s tidal wetlands have been lost and degraded, so too have the populations dependent on these systems. Over the centuries, Delaware residents have dammed, “Remaining state wetlands and diked, and impounded tidal creeks to create uplands other natural areas, now being for agriculture and grazing. Now, over 10,000 acres of tidal wetlands are impounded.107 These areas, cut off from rapidly developed, are in desperate tidal flow, were often filled to facilitate development.108 The primary cause of tidal wetland loss since 1938 has need of protection.” been urban development. However, wetland loss in the Source: Wildlife Management Institute. November 1986. “A Report to the Secretary inland bays has also been caused by lagoon development Delaware Department of Natural Resources and Environmental Control on the Division of Fish and Wildlife.” p. 21. for seaside resorts and shoreline bulkheading. Although the majority of the state’s tidal marshes were once dominated by cordgrass communities, much of the remaining Between 1955 and 1981, 42,000 acres of coastal and wetland acreage has been degraded by the establishment inland wetlands were lost in Delaware. During the same peri- of phragmites.109 od, pond acreage in the state increased by 2,000 acres.121 The inter-tidal flats along the Delaware Estuary and Although ponds may represent a gain in wetland acreage, inland bays are critical habitat for horseshoe crab spawn- these created systems (often designed to attract waterfowl) ing. In the spring, about 30 species of migratory shore- threaten to replace many of the valuable functions of nat- birds flock to these mudflats to feast on horseshoe crab ural wetlands.122 eggs deposited along the Bay. The vast majority of the Forested wetlands–including Atlantic white cedar shorebirds are red knots, ruddy turnstones, and sander- swamps, bald cypress swamps, and tidal and non-tidal lings,110 all of which are species of conservation concern.111 floodplain forests–dominate Delaware’s entire wetland One of the major threats to the existence of these impor- acreage.123 Delaware’s forested wetlands provide critical tant species may be the (often illegal) over-harvesting of habitat for both migratory birds and waterfowl, as well as horseshoe crabs. It is believed that between 1993 and resident species such as barred owl, American black duck, 1996 the horseshoe crab harvest increased by 410 percent and American woodcock.124 Non-tidal riparian scrub-shrub in Delaware.112 In response to the dramatic decline of wetlands also provide a myriad of important filtration and crabs–over 50 percent between 1990 and 1996113– habitat functions.125 Delaware’s forested stream corridors Delaware, New Jersey, and Maryland have enacted regula- provide breeding habitat for “broad-winged hawk, ruby- tions to reduce the harvest of this important species.114 throated hummingbird, veery, yellow-throated and war- However, because Virginia has not yet capped its horse- bling vireos, cerulean warbler, and American redstart.”126 shoe crab fishery, the harvest along the mid-Atlantic coast Delaware’s Great Cypress Swamp once comprised remains high and populations continue to decline (See 60,000 acres stretching across the Murderkill, Nanticoke, Ch. 4: Horseshoe Crab Regulations). Indian River, and upper Pocomoke River watersheds.

14 protecting delaware’s natural heritage These forests provided ample habitat for wood duck, species found within the state, only 60 are native pileated woodpecker, and for common and rare amphib- species.142 At the same time, an estimated 273 of ians and reptiles.127 Logging and draining for agriculture Delaware’s wildlife species (excluding fish and insects) are greatly reduced the quality and acreage of these majestic characterized as “forest dependent.”143 forests. Although only 11,000 acres of the Great Cypress Although the Delaware Department of Agriculture Swamp remain in Delaware, the swamp contains less than (DDA) Forest Service owns and manages over 9,000 acres 20 acres of bald cypress trees.128 A globally secure species, of forest, 81 percent of the state’s forested land is in private ownership.144 Changes in forest ownership pose a significant threat to the state’s forest resources. Although the “Cumulative impacts to non- number of non-industrial private forest landowners has tidal wetlands are more subtle increased in Delaware, the average size of woodland owned has dropped from 35 to 20 acres, and approxi- but equally important to consider mately 11,000 of Delaware’s forest owners possess less than 10 acres.145 as human threats.” Delaware’s forests are comprised of 20 different forest Source: DNREC. September 1997. “Delaware’s Non-tidal Wetlands Comprehensive types, although 41 percent of the state’s forests are domi- Conservation and Management Plan.” Division of Water Resources, DNREC. p. 49. nated by oak-hickory,146 and many others are dominated by Southern Yellow Pine Plantation, a popular timber species the bald cypress is considered rare in the state.129 but one that provides an inferior habitat to Delaware's Delaware’s remaining Atlantic white cedar swamps are native biota. The loss of a significant portion of Delaware’s now found primarily within the Nanticoke watershed. diverse forests has led to a corresponding loss of forest- Designated as a “rare and unique wetland community,”130 dependent species. Forest fragmentation and selective log- these forested wetlands are home to more than 30 state- ging have taken a particularly hefty toll on those migratory and globally-rare plants, including swamp-pink, a flower- and forest interior breeding birds that require large con- ing wetland plant that is “threatened at the national and tiguous blocks of forested habitat. These include the whip- state levels.”131 poor-will, black-and-white warbler, cerulean warbler, hood- Delaware’s Delmarva bays, also known as whale wal- ed warbler, and American redstart.147 lows or Carolina bays,132 are seasonally filled depressions Many of the Neotropical birds that have been experienc- found primarily in a band spanning from the southeast- ing regional declines are those species that are sensitive to ern portion of New Castle County to the central western forest fragmentation. The Delaware Natural Heritage portion of Kent County.133 The Delmarva bays provide Program estimates that 41 percent of Delaware’s forest- “high biological diversity and homes to rare plants and dependent birds are either rare or extirpated.148 These for- amphibians,”134 and critical habitat for the highest per- est-interior dwelling species are believed to be in decline centage of rare plant species in the state.135 However, the due to increased nest parasitism by edge species (brown- majority of the bays have been lost to conversion or headed cowbirds), increased rates of predation, loss of qual- drainage, and those that do remain have been seriously ity nesting habitat, and loss of suitable wintering habitat. degraded136 and are significantly threatened by urban Although most of the Neotropical bird species found in encroachment. As mentioned earlier, in the past 15 years Delaware occur commonly, the Division of Fish and this region of Delaware has experienced the most dramat- Wildlife is working to ensure that areas of high Neotropical ic growth in the state.137 migratory bird use are given special consideration in conservation efforts.149 In Delaware, some of the Neotropical Diverse Forest Habitats species that are of conservation concern include the sum- Approximately 31 percent,138 or 389,500 acres,139 of mer tanager, yellow-throated vireo, Kentucky warbler, Delaware is forested. However, rapid urbanization is worm-eating warbler, hooded warbler, black-and-white threatening Delaware’s diverse forest resources. Between warbler, and veery.150 1984 and 1992, nearly 35,000 acres of the state’s forests were lost to urbanization.140 In addition, non-native Water Quality Impairment species, such as mile-a-minute weed, kudzu, autumn Delaware’s water resources are vital for maintaining healthy olive, tree-of-heaven, Japanese honeysuckle, and mulitflo- populations of native aquatic and terrestrial species. ra rose “pose a very serious threat to forest growth, pro- However, a large portion of the state’s streams and rivers ductivity, and native forest species.”141 Of the 115 tree have been severely degraded. Approximately 80 percent of

chapter 1 15 Delaware’s year-round streams are considered to be moder- proven to be highly toxic to fish and to severely degrade ately or severely degraded, and only 20 percent show char- the habitat quality of rivers and streams.162 Fish consump- acteristics of natural streams. Of the 1,300 miles of inter- tion advisories (both no consumption and limited con- mittent streams in the state, 90 percent have no resem- sumption advisories) were issued in June 1999 in 15 blance at all to natural streams, while 10 percent display Delaware stream basins, primarily due to high concentra- minimal evidence of natural recovery.151 Of the perennial tions of PCBs, although dioxin, chlorinated pesticides streams, 78 percent are considered to have “poor” habitat (including DDT), mercury, and arsenic were also identi- quality, and almost all of the intermittent streams provide fied as sources of contamination.163 PCB release from sedi- almost no habitat.152 mentation could be minimized through effective erosion and sediment controls. Runoff, Siltation, and Erosion Degraded water quality in the Piedmont basin is attributed to urban development and stormwater runoff. Soil “Urban land use and the loss in northern Delaware can be alarmingly high, espe- associated impervious surfaces cially in the Piedmont Basin, where loss rates can be as high as 100 tons-per-acre-per-year if unmitigated by sedi- reduce ecological integrity ment and soil erosion control practices.153 These loss rates are 50 times the two tons-per-acre-per-year standard estab- through the erosion of stream lished by the U.S. Department of Agriculture (USDA). In banks and the deposition of the Coastal Plain region, degradation of water bodies is caused by “agricultural practices, and stream channeliza- sediment in the channel.” tion and maintenance activities.”154 Source: DNREC 1998. “State of Delaware: 1998 Watershed Assessment Report Soil loss in the southern portion of the state is not as (305(b)).” DNREC: Dover, DE. I-10. dramatic,155 but nutrient loading is an extremely serious problem.156 Excessive levels of phosphorous and nitrogen lead to nuisance plant and algae growth, low water clarity, Effects of Agricultural Drainage and lowered levels of dissolved oxygen. Chemical fertilizer Agricultural drainage practices greatly affect water quality accounts for 66 percent of all nitrogen loading and 59 per- and alter the terrestrial environment. Ditch excavation sig- cent of all phosphorous loading, while waste products from nificantly alters water flow regimes. When riparian wet- Delaware’s poultry industry, one of the largest in the lands and stream channels are disturbed, flow rates from U.S.,157 account for 25 percent of all nitrogen loading and adjacent agricultural and residential lands increase, thereby 29 percent of all phosphorous loading in the state.158 increasing non-point source loadings and contributing to Sediments running off into waterbodies also carry with water quality degradation.164 Removal of riparian vegetation them numerous substances detrimental to water quality decreases the ability of remaining vegetation to filter water and harmful to public health and wildlife. Many industrial as it flows from uplands into the aquatic environment. practices–both past and present–have introduced hazardous Ditching can also lower shallow groundwater tables, drain substances into the environment. Of the 10,450 under- adjacent wetlands,165 and impact downstream aquatic ecosys- ground storage tanks that have ever been in use or are tems, even if these areas themselves are not ditched.166 The presently in use in Delaware, there have been 2313 leaks, resulting aquatic communities, wetlands, and riparian areas 1807 of which have been closed.159 In addition, Delaware is are less biologically diverse and more susceptible to pollu- home to 17 National Priority List Superfund sites.160 The tion, disease, and genetic impoverishment. Approximately compounds found at these sites and elsewhere often leach 62 percent of the Delaware’s rivers and streams can not into soils and groundwater and are carried into Delaware's effectively support fish and wildlife, and 79 percent of the rivers and streams through sedimentation, erosion, and rivers and streams are not suitable for swimming.167 groundwater transport. Alteration of riparian areas also has a significant impact DNREC has determined that many of Delaware's rivers on both terrestrial and aquatic plant and animal communi- and streams have unacceptably high levels of polychlori- ties. When streams are channelized and cleared of adjacent nated biphenyls (PCBs), which have been released from trees and vegetation, the result is reduced shading of in- contaminated sites. PCBs are introduced into waterbodies stream habitat, altered hydrologic conditions, and by traveling with soil and sediment particles and through increased siltation. Species dependent on riparian areas rely the release of contaminated runoff.161 PCBs have been on annual flood cycles that deposit nutrients in floodplains,

16 protecting delaware’s natural heritage tural regions and chemical contamination from landfills, septic systems, and leaking underground storage tanks have been detected and are considered potential health threats.169

HOPEFUL TRENDS

Although the diversity of Delaware’s species and ecosystems is severely threatened, there is reason for optimism and hope. Some tracts of land have been set aside and are being managed for the

DNREC. Showy orchis, Brandywine Creek State Park. preservation and restoration of biological diversity. Many environmentally harmful practices of the past have been addressed

RON VICKERS, by Delaware’s agencies, legislature, and citizenry through a broad array of regula- “Environmental conservation tory approaches, incentive programs, management guidelines, and outreach and education programs. In addition, requires both sustained govern- public attitudes toward the protection of biological diversity indicate that the state's citizens value biological diversity mental action and an individual and care about its protection. land ethic. The two are mutually Although 54 percent of Delaware’s wetlands were lost between the 1780s and 1980s, passage of the federal Clean necessary and reinforcing. The Water Act and Delaware’s tidal wetlands law have significantly slowed the rate of wetland loss.170 Other pollution goal of public policy should be control programs in Delaware have begun to yield signifi- wise multiple-use land manage- cant water quality benefits. For example, the Delaware Bay estuary has witnessed water quality and ecological improvement, which effectively correlates ments in the past 30 years.171 In the 1960s, striped bass populations in the Delaware River began to decline precip- biodiversity conservation with itously from over-fishing and loss of spawning habitat. economic land-use, including However, improvements in water quality, nursery habitat, investments in municipal wastewater treatment,172 and a agriculture, forestry, recreation fishing ban initiated the slow recovery of the fishery. By 1995, the species was declared recovered by the Atlantic and other land uses.” States Marine Fisheries Commission.173 Although the sur- Source: Vaugh, Gerald F. February 1999. “The Land Economics of Aldo Leopold.” face water quality of Delaware’s rivers, streams and lakes Land Economics. 75(1): 156-159. remains poor, DNREC feels that since the state’s surface water has “remained fairly stable in spite of increasing clear obstructions in streams, and create diversity within development and population growth,” there is reason to stream habitats. remain hopeful.174 Approximately two-thirds of Delaware’s residential house- Large scale ecological restoration projects and new poli- holds receive drinking water derived from the state’s ground- cies protective of biological diversity are springing up all water aquifers. The state’s agricultural industry is dependent over Delaware in an effort to protect the state's remaining on groundwater sources as well. As a result, degradation of wetlands, waterways, and other habitats and to restore groundwater from surface contamination has severe conse- those that have been severely manipulated and degraded. quences for the entire state.168 Although overall, groundwater These projects include acquisition of land by the state’s quality is high, nitrate contamination in the state’s agricul- Open Space Program, The Nature Conservancy’s activities

chapter 1 17 in the Nanticoke River watershed and the Delaware ural heritage. Private landowners and citizen groups are Bayshores, the Delaware Nature Society’s landowner embarking on ambitious projects to protect and enhance stewardship program, the Division of Fish and Wildlife’s wildlife habitat, often with the help of state and federal phragmites control programs and experimentation with natural resource management agencies. With every one less environmentally harmful mosquito control practices, of these efforts, individuals participating in the projects the successful ecological restoration of some of the state’s are learning about Delaware’s rich native biological diver- drainage ditches by the Division of Soil and Water sity and history, the forces that threaten its continuance, Conservation, and attempts to address invasive exotic tools to protect what remains, and methods to restore species problems on a statewide scale. what has been degraded. This growing knowledge can be In addition, corporations, private landowners, and spread to other individuals and to children, who will government agencies are joining together around the then be empowered to build and carry on Delaware's tra- state with local citizen groups, land trusts, and environ- dition of respect for, and sustainable use of, the state's mental groups to protect their shared but dwindling nat- biological resources.

1 Russell, Emily W. B. 1997. People and the Land Through Time: Linking Ecology and 20 DNREC. 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). History. Yale University Press: New Haven, CT. p. 5-18. DNREC: Dover, DE. p. I-4. Note: The majority of Delaware lakes and ponds are man 2 Carroll, C. Ronald and Gary K. Meffe. 1997. “Management to Meet conservation made; these water bodies are former millponds. From Mark Zankel. The Nature Goals: General Principles.” Principles of Conservation Biology. 2nd Edition. Sinauer Conservancy. Personal correspondence. May 1999. Associates, Inc.: Sunderland, MA. p. 351 21 Pennsylvania Biodiversity Technical Committee. 1995. A Heritage for the 21st 3 The Keystone Center. 1991. Keystone Dialogue on Biological Diversity on Federal Lands. Century: Conserving Pennsylvania's Native Biological Diversity; McNealy, Jeffrey A., et. 4 al. 1990. Conserving the World's Biological Diversity. Gland, Switzerland: IUCN, Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their World Resources Institute, Conservation International, World Wildlife Fund-US, and Preservation. Delaware Nature Education Society: Hockessin, DE p. 5; Conrad, Henry the World Bank. C. 1908. History of the State of Delaware from the Earliest Settlements to the Year 1907. 22 Published by the Author: Wilmington, DE. p. 1-2. Ehrlich, Paul R. and Edward O. Wilson. 1991. “Biodiversity Studies: Science and 5 Policy.” Science. 253: pp. 758-762. Ferris, Benjamin. A History of the Original Settlements on the Delaware, From its 23 Discovery by Hudson to the Colonization Under William Penn. To Which is Added An Delaware Department of Agriculture. 1998. Delaware’s Forests: A Vision for the Future. Account of the Ecclesiastical Affairs of the Swedish Settlers, and a History of Wilmington, DDA: Dover, DE. p. 6. from its First Settlement to the Present Time. Kennikat Press: Port Washington, NY. p. 29. 24 Marquis, R.J. and C.J. Whelan. 1994. Ecology. 75: 2007; Robinson, Scott K. 1997. 6 Bevan, Wilson Lloyd. 1929. History of Delaware: Past and Present. Volume I. Lewis “The Case of the Missing Songbirds.” Consequences. 3(1): pp. 3-15. Historical Publishing Company, Inc.: New York, NY. p. 15-16. 25 http://www.nmfs.gov/habitat/publications/habitatconections/num5.htm 7 http://inlet.geol.sc.edu/DEL/home.html 26 http://www.nmfs.gov/habitat/publications/habitatconections/num5.htm 8 DNREC. Northern Delaware Wetlands Rehabilitation Program. Brochure. DNREC: 27 http://www.st.nmfs.gov/ Dover, DE.; Pea Patch Island Heronry Special Area Management Plan Core Group. 28 U.S. Department of the Interior, Fish and Wildlife Service and U.S. Department of March 1997. Pea Patch Island Heronry Regional Special Area Management Plan: Issue Commerce, Bureau of the Census. 1996 National Survey of Fishing, Hunting, and Characterization. DNREC and National Oceanic and Atmospheric Administration: Wildlife-Associated Recreation. Dover, DE and Silver Spring, MD. p. I-1.1 29 9 U.S. Department of the Interior, Fish and Wildlife Service and U.S. Department of http://inlet.geol.sc.edu/DEL/home.html Commerce, Bureau of the Census. 1996 National Survey of Fishing, Hunting, and 10 Conrad, Henry C. 1908. History of the State of Delaware from the Earliest Settlements Wildlife-Associated Recreation. to the Year 1907. Published by the Author: Wilmington, DE. p. 2,5. 30 U.S. Department of the Interior, Fish and Wildlife Service and U.S. Department of 11 http://inlet.geol.sc.edu/DEL/home.html. Commerce, Bureau of the Census. 1996 National Survey of Fishing, Hunting, and 12 Hess, G. K., R. L. West, M. V. Barnhill III, and L. M. Fleming. 1999. Birds of Wildlife-Associated Recreation. p. 97. Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 3. 31 U.S. Fish and Wildlife Service, Delaware Bay Estuary Project. Personal correspon- 13 Hess, G. K., R. L. West, M. V. Barnhill III, and L. M. Fleming. 1999. Birds of dence. June 1, 1999. Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 3. 32 Division of Fish and Wildlife. 1998. Delaware Bay Shorebirds. Brochure. Division of 14 Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their Fish and Wildlife, DNREC: Dover, DE; U.S. Fish and Wildlife Service, Delaware Bay Preservation. Delaware Nature Education Society: Hockessin, DE p 3, Hess, G. K., R. Estuary Project. Personal correspondence. June 1, 1999. L. West, M. V. Barnhill III, and L. M. Fleming. 1999. Birds of Delaware. Univ. of 33 U.S. Department of the Interior, Fish and Wildlife Service and U.S. Department of Pittsburgh Press: Pittsburgh, PA. p. 3. Commerce, Bureau of the Census. 1996 National Survey of Fishing, Hunting, and 15 Conrad, Henry C. 1908. History of the State of Delaware from the Earliest Settlements Wildlife-Associated Recreation. to the Year 1907. Published by the Author: Wilmington, DE. p. 6-7. 34 Pennsylvania Biodiversity Technical Committee. 1995. A Heritage for the 21st 16 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Century: Conserving Pennsylvania's Native Biological Diversity; Office of Technology Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 3. Assessment of the U.S. Congress. 1987. Technologies to Maintain Biological Diversity. 17 OTA-F-330. Washington, DC. Conrad, Henry C. 1908. History of the State of Delaware from the Earliest Settlements 35 to the Year 1907. Published by the Author: Wilmington, DE. p. 4-5. Ehrlich, Paul R. and Edward O. Wilson. 1991. “Biodiversity Studies: Science and 18 Policy.” Science. 253: pp. 758-762; Robinson, Scott K. 1997. “The Case of the Missing Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Songbirds.” Consequences. 3(1): pp. 3-15. Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 3. 36 19 Robinson, Scott K. 1997. “The Case of the Missing Songbirds.” Consequences. 3(1): pp. 3-15. DNREC. Whole Basin Initiative: Piedmont Basin Preliminary Assessment Report. 37 DNREC: Dover, DE. p. 1. The Nature Conservancy Great Lakes Program. 1994. The Conservation of Biological

18 protecting delaware’s natural heritage Diversity in the Great Lakes Ecosystem: Issues and Opportunities. Chicago, IL. Coordination, Dover. p. 4-5. 38 Ehrlich, Paul R. and Edward O. Wilson. 1991. “Biodiversity Studies: Science and 59 Noss, Reed F. and Robert L. Peters. December 1995. Endangered Ecosystems: A Status Policy.” Science. 253: pp. 758-762; Pennsylvania Biodiversity Technical Committee. Report on America’s Vanishing Habitat and Wildlife. Defenders of Wildlife: Washington, 1995. A Heritage for the 21st Century: Conserving Pennsylvania's Native Biological DC. p. 77. Diversity; McNeelly, Jeffrey A., et. al. 1990. Conserving the World's Biological 60 Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their Diversity. Gland, Switzerland: IUCN, World Resources Institute, Conservation Preservation. Delaware Nature Education Society: Hockessin, DE. Foreword. International, World Wildlife Fund-US, and the World Bank. 61 39 DNREC. Nonpoint Source Pollution Program, Assessment Report. Revised May 1995, Belden & Russonello. April 1996. Human Values and Nature's Future: Americans’ DNREC, Division of Soil and Water Conservation, p. 4-15. Attitudes on Biological Diversity. Washington, DC. 62 40 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. Office of Technology Assessment of the U.S. Congress. 1987. Technologies to Maintain Univ. of Pittsburgh Press: Pittsburgh, PA. p. 7; Barthelmeh, Thomas. Division of Soil Biological Diversity. OTA-F-330. U.S. Washington, DC: Government Printing Office. and Water Conservation, DNREC. Personal correspondence. 41 McNeelly, Jeffrey A., et. al. 1990. Conserving the World's Biological Diversity. Gland, 63 Barthelmeh, Thomas. Division of Soil and Water Conservation, DNREC. Personal Switzerland: IUCN, World Resources Institute, Conservation International, World correspondence. Wildlife Fund-US, and the World Bank. 64 42 Tiner, Ralph W. and John T. Finn. 1986. Status and Recent Trends of Wetlands in Five Noss, Reed F. and Dennis D. Murphy. 1995. “Endangered Species Left Homeless in Mid-Atlantic States. U.S. Fish and Wildlife Service: Newton Corner, MA. p. 12. Sweet Home.” Conservation Biology. 9(2): pp. 229-231; Schmitz, Don C. and Daniel 65 Simberloff. Summer 1997. “Biological Invasions: A Growing Threat.” Issues in Science Pea Patch Island Heronry Special Area Management Plan Core Group. March 1997. and Technology. Vol. XIII, No. 4. National Academy of Sciences: Washington, DC. Pea Patch Island Heronry Regional Special Area Management Plan: Issue Characterization. 43 DNREC and National Oceanic and Atmospheric Administration: Dover, DE and Silver Richter, Brian D., et. al. 1997. “Threats to Imperiled Freshwater Fauna.” Conservation Spring, MD. p. 5-2. Biology. 11(5): p. 1082. 66 44 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. Richter, Brian D., et. al. 1997. “Threats to Imperiled Freshwater Fauna.” Conservation Univ. of Pittsburgh Press: Pittsburgh, PA. p. 16. Biology. 11(5): p. 1082. 67 45 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Noss, Reed F. and Dennis D. Murphy. 1995. “Endangered Species Left Homeless in Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 5. After: Whitman and Cole. 1986. Sweet Home.” Conservation Biology. 9(2): pp. 229-231.; Richter, Brian D., et. al. 1997. 68 “Threats to Imperiled Freshwater Fauna.” Conservation Biology. 11(5): p. 1082. Pea Patch Island Heronry Special Area Management Plan Core Group. March 1997. 46 Pea Patch Island Heronry Regional Special Area Management Plan: Issue Characterization. Noss, Reed F. and Robert L. Peters. December 1995. Endangered Ecosystems: A DNREC and National Oceanic and Atmospheric Administration: Dover, DE and Silver Status Report on America's Vanishing Habitat and Wildlife. Defenders of Wildlife. Spring, MD. p. 5-2. Washington, DC: pp. 45-52; Schmitz, Don C. and Daniel Simberloff. Summer 1997. 69 “Biological Invasions: A Growing Threat.” Issues in Science and Technology. Vol. XIII, Noss, Reed F. and Robert L. Peters. December 1995. Endangered Ecosystems: A Status No. 4. National Academy of Sciences. Washington, DC; Myers, Norman. 1997. “Global Report on America's Vanishing Habitat and Wildlife. Defenders of Wildlife. Washington, Biodiversity II: Losses and Threats.” Principles of Conservation Biology. 2nd Edition. DC: pp. 48-49. Sinauer Associates, Inc.: Sunderland, MA. p. 148-152. 70 Meffe, Gary K., C. Ronald Carroll and Stuart L. Pimm. 1997. “Community- and 47 Johnson, James E. 1995. “Imperiled Freshwater Fishes.” Our Living Resources: a report Ecosystem—Level Conservation.” Principles of Conservation Biology. 2nd Edition. to the nation on the distribution, abundance, and health of U.S. plants, animals, and ecosys- Sinauer Associates, Inc.: Sunderland, MA. p. 244. tems. Eds. E.T. LaRoe, G.S. Farris, C.E. Puckett, p. D. Doran, and M.J. Mac. U.S. 71 Richards, Bruce. 1999. “Delaware Inland Bays Nitrogen Overload.” Coastlines. Urban Department of the Interior, National Biological Service: p. 43; Tuggle, Benjamin N. Harbors Institute, U. Mass: Boston, MA. Issue 9.1: p. 8. 1995. “Mammals: Overview.” Our Living Resources: a report to the nation on the distribu- 72 Horsley & Whitten, Inc. Assessment of Nitrogen Loading to the Delaware Inland Bays. tion, abundance, and health of U.S. plants, animals, and ecosystems. Eds. E.T. LaRoe, G.S. Prepared for the Center for the Inland Bays: Nassau, DE; Richards, Bruce. 1999. Farris, C.E. Puckett, p. D. Doran, and M.J. Mac. U.S. Department of the Interior, “Delaware Inland Bays Nitrogen Overload.” Coastlines. Urban Harbors Institute, U. National Biological Service: p. 93 Mass: Boston, MA. Issue 9.1: p. 8. 48 DNREC. Whole Basin Initiative: Piedmont Basin Preliminary Assessment Report. 73 Primack, Richard B. 1993. Essentials of Conservation Biology. Sunderland, MA Sinauer DNREC: Dover, DE. p. 88. Associates, Inc. Publishers. 49 DNREC. Whole Basin Initiative: Piedmont Basin Preliminary Assessment Report. 74 Primack, Richard B. 1993. Essentials of Conservation Biology. Sunderland, MA Sinauer DNREC: Dover, DE. p. 88. Associates, Inc. Publishers. 50 Dahl, T.E. 1990. Wetlands BLosses in the United States, 1870s to 1980s. U.S. Fish and 75 Bennett, Karen A. and Lynn Broaddus. Division of Fish and Wildlife, DNREC. Wildlife Service Report to Congress: Washington D.C. Personal correspondence. June 1, 1999. 51 Tiner, R.W. 1987. Mid-Atlantic wetlands B A disappearing natural treasure. U.S. Fish 76 Delaware Natural Heritage Program. March 1998. Non-Native Plant Species in and Wildlife Service and U.S. Environmental Protection Agency: Washington, D.C. Delaware. DNREC: Smyrna, DE; Bennett, Karen A. and Lynn Broaddus. Division of 52 Tiner, R.W. 1987. Mid-Atlantic wetlands—A disappearing natural treasure. U.S. Fish Fish and Wildlife, DNREC. Personal correspondence. June 1, 1999. and Wildlife Service and U.S. Environmental Protection Agency: Washington, DC; 77 Delaware Natural Heritage Program. April 16, 1998. List of Exotic Animals in Hess, G. K., R. L. West, M. V. Barnhill III, and L. M. Fleming. 1999. Birds of Delaware. Division of Fish and Wildlife, DNREC: Smyrna, DE. Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 15-16. 78 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. 53 U.S. Fish and Wildlife Service, Delaware Bay Estuary Project. Personal correspon- Univ. of Pittsburgh Press: Pittsburgh, PA. p. 11. dence. June 1, 1999. 79 Broaddus, Lynn. Division of Fish and Wildlife, DNREC. Personal communication. 54 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. June 1, 1999. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 14. 80 DNREC. January 1994. Comprehensive Conservation and Management Plan for 55 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 65. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 14. 81 DNREC. January 1994. Comprehensive Conservation and Management Plan for 56 Primack, Richard B. 1993. Essentials of Conservation Biology. Sunderland, MA: Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 8. Sinauer Associates, Inc. Publishers; Robinson, Scott K. 1997. “The Case of the Missing 82 DNREC. January 1994. Comprehensive Conservation and Management Plan for Songbirds.” Consequences. 3(1): pp. 3-15. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 64; 57 Primack, Richard B. 1993. Essentials of Conservation Biology. Sunderland, MA: DNREC. January 1994. Comprehensive Conservation and Management Plan for Sinauer Associates, Inc. Publishers. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 65. 58 Shaping Delaware's Future: The 1997 Annual Assessment Report to the Cabinet Note: phragmites also invades non-disturbed marshes once established on creek edges or Committee on State Planning Issues. July 1998, Office of State Planning and the marsh/upland interface. Manus, Andrew. Division of Fish and Wildlife, DNREC.

chapter 1 19 Personal correspondence. August 18, 1999. Approximately 97 percent of the shorebirds are red knots, ruddy turnstones, sanderlings, 83 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. and semipalmated sandpiper. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 16. 110 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of 84 DNREC. January 1994. Comprehensive Conservation and Management Plan for Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 6; Division of Fish and Wildlife. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 65. Delaware Bay Shorebirds. Brochure. Division of Fish and Wildlife, DNREC: Dover, DE. 111 85 Benoit, Lori K. and Robert A. Askins. March 1999. “Impact of the Spread of Phragmites on Delaware Natural Heritage Program. April 16, 1998. List of Exotic Animals in the Distribution of Birds in Connecticut Tidal Marshes.” Wetlands. 19(1): pp. 194-208. Delaware. Division of Fish and Wildlife, DNREC: Smyrna, DE. Note: these species are 86 considered very rare in the state and are susceptible to becoming extirpated. Delaware Natural Heritage Program. April 16, 1999. List of Rare to Uncommon 112 Animals in Delaware. Division of Fish and Wildlife, DNREC: Smyrna, DE. The Nature Conservancy. April 7, 1999. Species Spotlight—Horseshoe Crab. 113 87 Shaping Delaware's Future: The 1997 Annual Assessment Report to the Cabinet The Nature Conservancy. April 7, 1999. Species Spotlight—Horseshoe Crab. Committee on State Planning Issues. July 1998, Office of State Planning and 114 Division of Fish and Wildlife. 1998. Delaware Bay Shorebirds. Brochure. Division of Coordination: Dover, DE. p. 4-5. Fish and Wildlife, DNREC: Dover, DE. 88 Shaping Delaware's Future: The 1997 Annual Assessment Report to the Cabinet 115 DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive Committee on State Planning Issues. July 1998, Office of State Planning and Conservation and Management Plan. Division of Water Resources, DNREC. p. 25-26. Coordination: Dover, DE. p. 6. 116 Tiner, Ralph W. and John T. Finn. 1986. Status and Recent Trends of Wetlands in Five 89 Shaping Delaware's Future: The 1997 Annual Assessment Report to the Cabinet Mid-Atlantic States. U.S. Fish and Wildlife Service: Newton Corner, MA. p. 13. Committee on State Planning Issues. July 1998, Office of State Planning and 117 Tiner, Ralph W. and John T. Finn. 1986. Status and Recent Trends of Wetlands in Five Coordination: Dover, DE. p. 4-5. Mid-Atlantic States. U.S. Fish and Wildlife Service: Newton Corner, MA. p. 13. 90 Statewide Long-Range Transportation Plan, Technical Report #2: Policies and Actions. 118 Tiner, Ralph W. and John T. Finn. 1986. Status and Recent Trends of Wetlands in 1997. Delaware Department of Transportation: Dover, DE. p. 19. Five Mid-Atlantic States. U.S. Fish and Wildlife Service: Newton Corner, MA. p. 13; 91 Shaping Delaware's Future: The 1997 Annual Assessment Report to the Cabinet DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive Conservation Committee on State Planning Issues. July 1998, Office of State Planning and and Management Plan. Division of Water Resources, DNREC. p. 49. Coordination: Dover, DE. p. 11. 119 Hayes, Martha. Delaware Wetland Resources. National Water Summary—Wetland 92 Delaware Natural Heritage Program. March 1998. Non-Native Plant Species in Resources. U.S. Geological Survey: p. 149. Delaware. DNREC: Smyrna, DE.; Bennett, Karen A. Division of Fish and Wildlife, 120 DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive DNREC. Personal correspondence. June 1, 1999. Conservation and Management Plan. Division of Water Resources, DNREC: p. 49. 93 DNREC 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). 121 Tiner, Ralph W. June 1987. Mid-Atlantic Wetlands: A Disappearing Natural Treasure. DNREC: Dover, DE. III 4-6. U.S. Fish and Wildlife Service: Newton Corner, MA. p. 18. 94 McAvoy, William A. March 1998. Rare Native Plants of Delaware. DNHP, DNREC: 122 Tiner, Ralph W. Jr. September 1985. Wetlands of Delaware. U.S. Fish and Wildlife Smyrna, DE. Service: Newton Corner, MA. p. 60. 95 McAvoy, William A. March 1998. Rare Native Plants of Delaware. DNHP, DNREC: 123 Hayes, Martha. Delaware Wetland Resources. National Water Summary—Wetland Smyrna, DE. Resources. U.S. Geological Survey. p. 148. 96 Heckscher, Christopher M. April 16, 1999. List of Rare and Uncommon Animals in 124 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. DNHP, DNREC. Smyrna, DE; Delaware Natural Heritage Program. March Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 6. 1998. List of Rare and Uncommon Animals in Delaware. DNREC: Smyrna, DE. 125 97 Hayes, Martha. Delaware Wetland Resources. National Water Summary—Wetland Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. Resources. U.S. Geological Survey: p. 148. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 12. 126 98 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Heckscher, Christopher M. April 16, 1999. List of Rare and Uncommon Animals in Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 6. Delaware. DNHP, DNREC. Smyrna, DE; Delaware Natural Heritage Program. March 127 1998. List of Rare and Uncommon Animals in Delaware. DNREC: Smyrna, DE. DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive 99 Conservation and Management Plan. Division of Water Resources, DNREC: p. 41. Heckscher, Christopher M. April 16, 1999. List of Rare and Uncommon Animals in 128 Delaware. DNHP, DNREC. Smyrna, DE; Delaware Natural Heritage Program. March Bowman, Peter. DNREC, Division of Fish and Wildlife, Delaware Natural Heritage 1998. List of Rare and Uncommon Animals in Delaware. DNREC: Smyrna, DE. Program. Personal correspondence. June 14, 1999. 129 100 Delaware Natural Heritage Program. April 16, 1999. List of Extirpated Animals for Bowman, Peter. DNREC, Division of Fish and Wildlife, Delaware Natural Heritage Delaware. DNREC: Smyrna, DE. Program. Personal correspondence. June 14, 1999. 130 101 Hayes, Martha. Delaware Wetland Resources. National Water Summary B Wetland DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive Resources. U.S. Geological Survey: p. 147. Conservation and Management Plan. Division of Water Resources, DNREC: p. 42. 131 102 DNREC. January 1994. Comprehensive Conservation and Management Plan for Delaware’s DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 9-10, 144. Conservation and Management Plan. Division of Water Resources, DNREC: p. 42. 132 103 Northern Delaware Wetlands Rehabilitation Program. Brochure. DNREC: Dover, DE. Condition of the Mid-Atlantic Estuaries. November 1998. U.S. Environmental 104 Protection Agency: Washington, DC EPA 600-R-96-147.iv. Hayes, Martha. Delaware Wetland Resources. National Water Summary B Wetland 133 Resources. U.S. Geological Survey. Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of 105 Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 6-7. Tiner, Ralph W. June 1987. Mid-Atlantic Wetlands: A Disappearing Natural Treasure. 134 U.S. Fish and Wildlife Service: Newton Corner, MA. p. 8. Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of 106 Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 6-7. Tiner, Ralph W. and Bill O. Wilen. 1988. “Wetlands of the Delaware River Basin.” 135 Ecology and Restoration of the Delaware River Basin. Eds S.K. Majumdar, E.W. Miller and Broaddus, Lynn. Division of Fish and Wildlife, DNREC. Personal communication. L.E. Sage. The Pennsylvania Academy of Sciences: p. 194. 136 Zankel, Mark. The Nature Conservancy. Personal correspondence. May 1999. 107 DNREC. January 1994. Comprehensive Conservation and Management Plan for 137 Shaping Delaware's Future: The 1997 Annual Assessment Report to the Cabinet Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 56. Committee on State Planning Issues. July 1998. Office of State Planning and 108 DNREC. January 1994. Comprehensive Conservation and Management Plan for Coordination: Dover, DE. p. 6. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 43. 138 Delaware Department of Agriculture. 1998. Delaware’s Forests: A Vision for the 109 DNREC. January 1994. Comprehensive Conservation and Management Plan for Future. DDA: Dover, DE. p. 4. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 33. 139 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of

20 protecting delaware’s natural heritage Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 8. 168 DNREC 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). 140 Delaware Department of Agriculture. 1997. Forest Health in Delaware. DDA: Dover, DNREC: Dover, DE. IV-1. DE. p. 1. 169 DNREC 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). 141 Delaware Department of Agriculture. 1997. Forest Health in Delaware. DDA: Dover, DNREC: Dover, DE. I-11. DE. p. 19. 170 http://www.nmfs.gov/habitat/publications/habitatconections/num5.htm 142 Short, E. Austin III. DDA Forest Service. Personal communication. January 13, 1999. 171 Hess, G. K., R. L. West, M. V. Barnhill III, and L. M. Fleming. 1999. Birds of 143 Delaware Department of Agriculture. 1998. Delaware’s Forests: A Vision for the Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 8. Future. DDA: Dover, DE. p. 9. 172 DNREC. 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). 144 Delaware Department of Agriculture. 1997. Forest Health in Delaware. DDA: Dover, DNREC: Dover, DE. I p. 10-11. DE. p. 1,7. 173 Miller, Roy W. and Craig A. Shirey. Spring 1998. “Striped bass recover in the 145 Delaware Department of Agriculture. 1997. Forest Health in Delaware. DDA: Dover, Delaware River.” The Observer. Division of Fish and Wildlife, DNREC: Dover, DE. p. 1-2. DE. p. 5. 174 DNREC 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). 146 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of DNREC: Dover, DE. I p. 10-11. Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 9. 147 Hess, G. K., R. L. West, M. V. Barnhill III, and L. M. Fleming. 1999. Birds of Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 15.; Broaddus, Lynn. Division of Fish and Wildlife, DNREC. Personal communication. 148 Broaddus, Lynn. Division of Fish and Wildlife, DNREC. Personal correspondence. 149 Heckscher, Christopher M. August 1997. Delaware’s Rare Animal Species of Conservation Concern. DHNP, DNREC: Smyrna, DE. 150 Heckscher, Christopher M. August 1997. Delaware’s Rare Animal Species of Conservation Concern. DHNP, DNREC: Smyrna, DE. 151 Maxted, John R. Division of Water Resources, DNREC. Personal communication. January 13, 1999. 152 Nonpoint Source Pollution Program, Assessment Report. Revised May 1995, DNREC, Division of Soil and Water Conservation: p. 2-8. 153 DNREC. 1997. Whole Basin Initiative: Piedmont Basin Preliminary Assessment Report. DNREC: Dover, DE. p. 68. 154 DNREC 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). DNREC: Dover, DE. pp. I-10. 155 Ritter, William. Professor of Bioengineering Sciences, University of Delaware. Personal communication. March 1, 1999. 156 Nonpoint Source Pollution Program, Assessment Report. Revised May 1995. DNREC Division of Soil and Water Conservation: p. 33. 157 Delaware growers produced 256.9 million broiler chickens in 1997, worth an estimated $529.9 million dollars. U.S. Department of Agriculture National Statistics Service website, URL: http://www.nass.usda.gov/de/MAY98RLS.htm. 158 Nonpoint Source Pollution Program, Assessment Report. Revised May 1995. DNREC Division of Soil and Water Conservation: p. 3-5. 159 Division of Water Resources. 1998 305(b) Watershed Assessment Report. DNREC, Division of Water Resources. p. IV-19. 160 Division of Water Resources. 1998 305(b) Watershed Assessment Report. DNREC, Division of Water Resources. p. IV-19. 161 Green, Richard. DNREC, Division of Water Resources. Personal correspondence. 162 Nonpoint Source Pollution Program. Revised May 1995. Assessment Report. DNREC, Division of Soil and Water Conservation. pp. 3-10. 163 DNREC. June 3, 1999. “State Revises Fish Advisories for Delaware Waters.” DNREC News. DNREC: Dover, DE. Note: In June 1999, DNREC issued revised fish consumption advisories for Delaware waterways to warn the public about the dangers of consuming contaminated fish. The advisory included an “advisory of no consumption” for the Chesapeake and Delaware (C&D) Canal, Delaware River from the state line to the C&D Canal, Little Mill Creek, and tidal portions of the Brandywine River, Christina River, White Clay Creek, and Red Clay Creek. Limited consumption advisories were issued for lower Delaware River/Bay (C&D Canal to mouth of Delaware Bay), Becks Pond, Red Lion Creek, Appoquinimink River, Saint Jones River, and non- tidal portions of the Brandywine River, White Clay Creek, and Christina River. 164 McCabe, W. Michael. May 14, 1999. Letter to Colonel Debra M. Lewis, LTC, District Engineer, U.S. Army Corps of Engineers regarding Jackson Tax Ditch. 165 McCabe, W. Michael. May 14, 1999. Letter to Colonel Debra M. Lewis, LTC, District Engineer, U.S. Army Corps of Engineers regarding Jackson Tax Ditch. 166 Zankel, Mark. The Nature Conservancy. Personal correspondence. May 1999. 167 DNREC, Division of Water Resources, 1998 305(b) Watershed Assessment Report, p. I-4.

chapter 1 21 22 protecting delaware’s natural heritage Chapter 2 Principles of Conservation

he practical goal of biological diversity conserva- species that live in a fragmented and intensely utilized tion is to “maintain in a healthy state both the landscape. Comprehensive protection does not require species and the ecological processes historically that all such lands be in public ownership. What it does T 1 native to a natural landscape.” Conservation biologists mean is that these lands must be identified and man- seek to achieve this goal in the context of an “exploding aged in a way that recognizes their unique contribution human population that has fragmented, simplified, to the state’s biological and economic health and their homogenized, and destroyed many ecosystems.”2 A simi- connection to the larger landscape. lar, alternative formulation is: “the maintenance of viable populations and natural distributions of native species Active restoration of degraded ecosystems and communities in the regional landscape.”3 Both of Because the Delaware landscape has been heavily manip- these definitions focus on the importance of functioning ulated and fragmented, biological diversity must be ecological systems that support native plants and ani- restored purposefully. Simply leaving land alone can con- mals. It is not enough simply to conserve particular tribute to biological diversity but may not restore historic species or particular parcels of land in isolation. In drainage patterns, connect fragmented protected areas, order to maximize conservation efforts, it is important restore tidal flow, or remove harmful exotic species. It will to understand some basic tenets of conservation biolo- be important to educate people, who may equate gy — principles that can be applied in the field when “nature” with whatever happens naturally, that active making decisions about the use and acquisition of land, restoration has a critical role. Restoration can stimulate siting of facilities, harvesting practices, and other eco- new market opportunities by stimulating commercial nomic activities. demand for locally grown native species. Moreover, restoration projects may allow other landscapes to be managed more intensively. GOALS OF BIODIVERSITY CONSERVATION Active participation of individuals and local communities How do we know a good biological diversity conserva- People work for what they care about, and they care tion effort when we see it? Effective public and private about what they know. Efforts to conserve and restore efforts to conserve Delaware’s biological diversity should biological diversity will not be effective if they are per- have three goals: ceived by Delawareans as someone else’s responsibility — or as a function of the government alone. The best cur- Comprehensive protection of the remaining healthy rent examples of biological diversity conservation in parts of Delaware’s ecosystems and communities Delaware are those that involve coalitions of committed Conservation of these areas will provide the base upon volunteers. As private citizens become involved in pro- which the entire state’s biological diversity can rest. The tection and restoration, they learn important informa- protection of core areas of unfragmented forest, tion about the value of biological diversity, as well as unchannelized streams, coastal marshes, bald cypress tools to protect and restore it. This knowledge can then swamps, Atlantic white cedar swamps, and other key be shared throughout communities and passed down to areas can provide sources of populations and refuges for future generations.

chapter 2 23 FUNDAMENTALS OF BIOLOGICAL DIVERSITY 3. Conserve and protect intact mature stages of habitat. Mature CONSERVATION forests and wetlands are essential for the conservation of native wildlife that does not survive well in disturbed land- How people develop and manage the land and how they scapes.10 For example, in Delaware, birds such as the cerulean protect species will determine the ultimate success of bio- warbler, brown-headed nuthatch, and red-headed wood- logical diversity conservation.4 Conservation must occur at pecker require mature forests for their breeding habitat. 11 two levels — on individual parcels of land and on a region- Unfortunately, it is estimated that “only a little over 1% of al basis. By focusing on an individual parcel of land or seg- the state’s total upland area retains its mature vegetation.”12 ment of a stream, decisions can be made that affect species success on that parcel or segment. On the other hand, a 4. Focus conservation and restoration efforts on larger habitat regional perspective is important because many species areas. Larger habitats are better than smaller areas at ensur- depend upon large areas, and because the cumulative ing the survival of species. Smaller populations are more impact of human activities across separately owned tracts of vulnerable to extinction due to environmental fluctuations, land can promote the success — or cause the failure — of demographic variation, inbreeding, and reduced gene the conservation of biological diversity. pools.13 Habitat fragmentation is a leading cause of the loss of biological diversity. Habitat fragmentation includes not It is important to understand some basic ecological princi- only reductions in contiguous habitat area, but also the ples that can be used to manage biological diversity. introduction of avenues for predation and barriers to migration — in the form of roads, railroads, power lines, 1. Maintain the viability of individual species represented in and fences. Delaware forest and wetland habitats have an ecosystem. Although the long-term goal of conservation undergone similar modifications and the state has little efforts is to establish and maintain conditions where criti- remaining unfragmented forest habitat. cal ecosystem and evolutionary processes can function, Because population size is the best predictor of extinc- such efforts must seek to ensure that individual species tion probability, reserves should be large enough to main- populations remain viable.5 Aldo Leopold, the respected tain large populations of important species, including rare, ecologist and wildlife manager, wrote in 1949, “To keep endangered, and economically important species. In every cog and wheel is the first precaution of intelligent Delaware, several species of breeding birds of conservation tinkering.”6 The mix of species in an ecosystem changes concern are area-sensitive. These include the veery, black- continually because plants and animals respond to envi- and-white warbler, worm-eating warbler, Louisiana ronmental changes in different ways.7 The ability of waterthrush, and Kentucky warbler.14 The minimum area species to deal successfully with changing ecosystem con- required for breeding for several species of concern is quite ditions requires attention to their habitat needs — for high. For example, the black-and-white warbler requires a example, animals require cover, breeding area, and food minimum of 220 hectares, the cerulean warbler requires a supplies, while plants rely on pollination, fire, and soil minimum of 700 hectares, the northern parula requires a conditions for their survival.8 To ensure the survival of minimum of 520 hectares, and the Louisiana waterthrush individual species, managers must remain mindful that requires a minimum of 350 hectares.15 population levels must remain large enough to protect Large habitat areas are also important for interior forest against extinction from random natural events (floods, species because they reduce the influence of edge effects.16 fires, droughts), and that genetic diversity must be main- For example, the Eastern towhee has been affected by tained to ensure that species are able to adapt to changing “increased brown-headed cowbird parasitism associated environmental conditions.9 with the additional forest edges created by fragmentation.”17 Development activities should make every attempt 2. Favor native plants and animals and avoid the use of to minimize habitat fragmentation by clustering develop- non-native species. Native plants and animals have great ment and minimizing the amount of land cleared. intrinsic value, as they represent the natural conditions once found in a landscape. They are uniquely adapted to 5. Minimize the distance between protected habitats and pro- their surroundings and affect ecosystem processes and the mote and maintain habitat linkages. The distance between persistence and viability of other plants and animals suitable habitats and the nature of the habitat between native to the area. Non-native, or exotic species, can areas exchanging populations will influence the persistence severely disrupt the natural conditions and species com- of species.18 Habitats in close proximity to one another are position in an area. better than widely separated habitats. For example,

24 protecting delaware’s natural heritage cypress swamp. DNREC. Bald DNREC. Bald

chapter 2 25 amphibian species richness has been shown to decrease Table 3: across the landscape as wetlands become more isolated.19 Rare Plant Species in Wetland Habitats However, distances between habitat areas can be minimized in Delaware through targeted management and planning efforts. Power 70 line, highway, and drainage ditch rights-of-way can be designed and managed to provide wildlife habitat that con- 60 nects otherwise isolated populations. Similar techniques, such as the use of culverts designed to facilitate wildlife 50 migration, can be used to minimize the barrier effect of 40 highways and roads. Connected habitats are better than isolated habitats. 30 Although populations in isolated patches may disappear due to random events and other conditions within the 20 patch, the patches are more likely to be re-colonized if populations from other patches in the landscape are able 10 to disperse.20 Wildlife corridors, such as riparian zones — vegetated strips and floodplains adjacent to rivers and Numbers of rare plant species 0 Coastal Freshwater Forested Atlantic Sea-level Interdunal streams — provide habitat for plants and animals and can Plain Marshes Swamps White Ferns Swales link populations. They may minimize local extinction and Ponds Cedar Swamps genetic isolation of wildlife populations, and may main- Source: Courtesy DNHP tain populations’ viability through dispersal.21 In fact, maintaining linkages between fragments may be at least as trees (snags) when conducting a timber harvest, allowing important to maintaining biological diversity as increasing tidal flow in impounded coastal marshes during key the size of the fragments.22 migratory seasons, or reserving seed trees for forest regeneration or mature oaks for production of acorns essential 6. Protect buffer areas surrounding sensitive ecosystem types. to wildlife when conducting more intensive harvests. Fires Protection of site-specific ecosystem types is critical for and floods raise safety and property considerations, but species that are dependent on these sites. However, the are not always detrimental. In fact, they can be beneficial habitat needs of species are rarely contained neatly within to the natural environment. the boundaries of a specific site. Creating buffer zones around sensitive areas can help to protect species that 8. Minimize human introduction of nutrients, chemicals, and depend upon adjacent lands, especially when surrounding pollutants. Introduced compounds can directly impair bio- land uses are incompatible with conservation objectives.23 logical diversity by killing terrestrial and aquatic species. Several studies have documented the necessity of establish- These substances, which originate from agricultural land ing buffers surrounding specific habitat types, such as use, intensive urbanization and suburban development, emergent and forested wetlands. One study found that in municipal landfills, leaking underground storage tanks, fail- order to protect several species of salamander, a buffer ing septic systems, golf courses, and industrial activities, can zone would have to protect an area 534 feet from the edge have drastic indirect effects on species as well. They can of the wetland.24 cause reduced reproductive and survival rates, disrupt the species composition of an area, or cause birth defects. For 7. Allow natural patterns of disturbance to continue, or at example, the input of large amounts of sediment and associ- least manage the landscape to emulate natural patterns. ated agricultural chemicals in Delaware’s rivers and streams Periodic disturbances, such as storms, floods, and fires, play has caused a drastic decline in the aquatic diversity found in an important role in maintaining patches in various stages the region. and in maintaining the plants and animals that co- evolved under the influence of these natural processes.25 9. Whenever possible, improve existing habitat or restore For example, allowing seasonal flooding where consistent degraded areas to offset the impacts of development. If uses of with other land management objectives can be beneficial lands and waters are likely to lead to losses of biological to local biological diversity. Land management techniques diversity, compensation through restoration measures within that mimic natural processes can also be important. These the same landscape can be an appropriate measure to replace may include techniques such as leaving standing dead lost habitat functions. In the case of wetlands, mitigation

26 protecting delaware’s natural heritage can help to serve the objective of “no net loss.” Government, private, and corporate landowners must Compensation for other losses or impairments can also help take into account regional threats to biological diversity and to alleviate impacts.26 Moreover, voluntary restoration efforts the sources of those threats. Different landowners have dif- can provide important habitat linkages that may strengthen ferent roles to play. Owners of small parcels of land may biological diversity sufficiently to allow more intensive devel- have fewer management options than owners of larger opment to occur elsewhere. Nevertheless, mitigation may not parcels. The way a corporate land manager views his or her adequately replace or restore all functional values of natural options may depend in part on whether the company’s land systems.27 Prior to choosing a mitigation route, proposed holdings are a major part of the company’s primary business, impacts to natural systems should be avoided or minimized or are simply lands surrounding or adjacent to its produc- as much as possible. When mitigation is used to off-set habi- tion or office facilities.35 Farmers’ views of their options may tat loss, it is critically important to monitor mitigation sites depend upon whether productivity and sufficient economic to ensure that the desired ecosystem functions are being returns can be maintained. Residential developers may need achieved. to understand the ways in which clustering development to maximize open space protection can enhance biological 10. Manage on the regional or landscape level wherever possi- diversity and provide natural amenities that are attractive to ble. Planning on a regional or landscape scale can provide home buyers. Regardless of the ownership pattern, those habitat for species that require large areas of relatively seeking to conserve biological diversity can have more signif- undisturbed land, highly specialized species, and species icant and far-reaching effects if management and land use that may be rare regionally but common locally. The abun- decisions are made in the context of the larger landscape. dance of many different suitable habitat patches over the larger landscape can help to improve species’ chances of sur- 11. Management strategies should remain adaptive. Over the vival.28 course of human land use in Delaware, management “Landscape” is defined as “a mosaic of habitat patches approaches have been adopted to address specific natural across which organisms move, settle, reproduce, and even- resource goals — water control, agricultural and forestry tually die.”29 The landscape matrix matters significantly. production, wildlife enhancement, mosquito control. Over Research has shown that no matter how carefully they are the course of time, we have come to recognize that many of protected, small nature preserves (or private conservation these traditional management practices may lead to unin- areas) may progressively lose their most distinctive species if tended consequences, or more commonly, unforeseen cumu- they are surrounded by a hostile, incompatible landscape.30 lative impacts. As a result, it is essential that effects of man- Rates of nest predation for breeding birds appear to be agement practices be continually monitored and evaluated higher in forest patches surrounded by agriculture than they to ensure that they are not harming regional, statewide, are in forests surrounded by timber harvest activities.31 Not landscape, or ecosystem conservation goals. Human man- surprisingly, the effects of fragmentation are exacerbated agement tools must remain able to adapt to changing envi- when the landscape is dominated by development. One ronmental conditions,36 scientific findings, and understand- study found that the diversity and abundance of ing about regional cumulative effects. Neotropical migrants in a forest decreased as the level of Laws and policies frequently shape the relationship adjacent development increased.32 Maintenance of diversity between land management objectives and ecological prin- from a regional perspective permits more flexibility in land- ciples. The following chapters address Delaware laws and use options than a strategy that considers a site in isola- policies that affect biological diversity and the ways that tion.33 Cooperation on a regional level may also reduce they can support the realization of an ecologically produc- costs to particular landowners.34 tive, biologically diverse future for the state and its citizens.

1 Wilcove, D. S. and F. B. Samson. 1987. “Innovative wildlife management: listening to Conservation Biology 13(2): pp. 247-255. Leopold.” Trans. N. Ameri. Wildl. and Nat. Resour. Conf. 52: pp. 327-332. 6 Leopold, Aldo. 1949. A Sand County Almanac. Reprinted 1966. Oxford University 2 Carroll, C. Ronald and Gary K. Meffe. 1997. Principles of Conservation Biology. 2nd Press, Inc.: New York. Edition. Sinauer Associates, Inc.: Sunderland, MA. p. 6-7. 7 Reid, Walter V. and Kenton R. Miller. 1989. Keeping Options Alive: The Scientific Basis 3 O'Connell, Michael A. and Reed F. Noss. 1992. “Private Land management for for Conserving Biodiversity. World Resources Institute: Washington, DC. Biodiversity Conservation.” Environmental Management. 16(4): pp. 435-450. 8 The President's Commission on Environmental Quality. 1993. Biodiversity on Private 4 Reid, Walter V. and Kenton R. Miller. 1989. Keeping Options Alive: The Scientific Basis Lands: An Initiative of the President's Commission on Environmental Quality. PCEQ: for Conserving Biodiversity. World Resources Institute: Washington, DC. Washington, DC. 5 Goldstein, Paul Z. 1999. “Functional Ecosystems and Biodiversity Buzzwords.” 9 Carroll, C. Ronald and Gary K. Meffe. 1997. Principles of Conservation Biology. 2nd

chapter 2 27 Edition. Sinauer Associates, Inc.: Sunderland, MA. p. 357. 35 The President's Commission on Environmental Quality. 1993. Biodiversity on Private 10 Ruggiero, Leonard F., Gregory D. Hayward, and John R. Squires. 1994. “Viability Lands: An Initiative of the President's Commission on Environmental Quality. PCEQ: Analysis in Biological Evaluations: Concepts of Population Viability Analysis, Biological Washington, DC. p. 8. Population, and Ecological Scale.” Conservation Biology. 8(2): pp. 364-372. 36 Carroll, C. Ronald and Gary K. Meffe. 1997. Principles of Conservation Biology. 2nd 11Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. Edition. Sinauer Associates, Inc.: Sunderland, MA. p. 357. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 15. 12 Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their Preservation. Delaware Nature Education Society: Hockessin, DE. Foreword. 13 Primack, Richard B. 1993. Essentials of Conservation Biology. Sinauer Associates, Inc. Publishers: Sunderland, MA. 14 Heckscher, Christopher M. April 16, 1999. List of Rare and Uncommon Animals in Delaware. DNHP, DNREC: Smyrna, DE. 15 Robbins, C.S., D.K. Dawson and B.A. Dowell. 1989. “Habitat are requirements of breeding forest birds of the middle Atlantic states.” Wildlife Monogr. 103: pp. 1-34. 16 Ruggiero, Leonard F., Gregory D. Hayward, and John R. Squires. 1994. “Viability Analysis in Biological Evaluations: Concepts of Population Viability Analysis, Biological Population, and Ecological Scale.” Conservation Biology. 8(2): pp. 364-372. 17 Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 15. 18 Ruggiero, Leonard F., Gregory D. Hayward, and John R. Squires. 1994. “Viability Analysis in Biological Evaluations: Concepts of Population Viability Analysis, Biological Population, and Ecological Scale.” Conservation Biology. 8(2): pp. 364-372. 19 Lehtinen, Richard M.,et. al. March 1999. “Consequences of Habitat Loss and Fragmentation for Wetlands Amphibian Assemblages.” Wetlands. 19(1): pp. 1-12. 20 Pulliam, H. Ronald and John B. Dunning. 1997. “Demographic Processes: Population Dynamics on Heterogeneous Landscapes.” Principles of Conservation Biology. 2nd Edition. Sinauer Associates, Inc.: Sunderland, MA. p. 213. 21 Ruggiero, Leonard F., Gregory D. Hayward, and John R. Squires. 1994. “Viability Analysis in Biological Evaluations: Concepts of Population Viability Analysis, Biological Population, and Ecological Scale.” Conservation Biology. 8(2): pp. 364-372. 22 Noss, Reed F. 1983. “A Regional Landscape Approach to Maintain Diversity.” BioScience. 33(11): 700-706. 23 Carroll, C. Ronald and Gary K. Meffe. 1997. Principles of Conservation Biology. 2nd Edition. Sinauer Associates, Inc.: Sunderland, MA. p. 330, 332. 24 Semlitsch, R. D. 1998. “Biological delineation of terrestrial buffer zones for pond- breeding salamanders.” Conservation Biology. 12(5): pp. 1113-1119. 25 Reid, Walter V. and Kenton R. Miller. 1989. Keeping Options Alive: The Scientific Basis for Conserving Biodiversity. World Resources Institute: Washington, DC. 26 The President's Commission on Environmental Quality. 1993. Biodiversity on Private Lands: An Initiative of the President's Commission on Environmental Quality. PECQ: Washington, DC., O'Connell, Michael A. and Reed F. Noss. 1992. “Private Land Management for Biodiversity Conservation.” Environmental Management. 16(4): pp. 435-450. 27 Pea Patch Island Heronry Special Area Management Plan Core Group. March 1997. Pea Patch Island Heronry Regional Special Area Management Plan: Issue Characterization. DNREC and National Oceanic and Atmospheric Administration: Dover, DE and Silver Spring, MD. p. 5-6. 28 Pulliam, H. Ronald and John B. Dunning. 1997. “Demographic Processes: Population Dynamics on Heterogeneous Landscapes.” Principles of Conservation Biology. 2nd Edition. Sinauer Associates, Inc.: Sunderland, MA. p. 213. 29 Pulliam, H. Ronald and John B. Dunning. 1997. “Demographic Processes: Population Dynamics on Heterogeneous Landscapes.” Principles of Conservation Biology. 2nd Edition. Sinauer Associates, Inc.: Sunderland, MA. p. 223. 30 Askins, Robert. A. 1995. “Hostile Landscapes and the Decline of Migratory Songbirds.” Science. 267: pp. 1956-1957. 31Bayne, Erin M. and Keith A Hobson. 1997. “Comparing the Effects of Landscape Fragmentation by Forestry and Agriculture on Predation of Artificial Nests.” Conservation Biology. 11(6): pp. 1418-1429. 32 Friesen, L.E., p. F.J. Eagles, and R.J. Mackay. “Effects of residential development on forest-dwelling Neotropical migrant songbirds.” Conservation Biology. 9(6): pp. 1408-1414. 33 O'Connell, Michael A. and Reed F. Noss. 1992. “Private Land Management for Biodiversity Conservation.” Environmental Management. 16(4): pp. 435-450. 34 The President's Commission on Environmental Quality. 1993. Biodiversity on Private Lands: An Initiative of the President's Commission on Environmental Quality. PCEQ: Washington, DC. pp. 8-9.

28 protecting delaware’s natural heritage chapter 2 29 30 protecting delaware’s natural heritage Section II: Delaware’s Law, Policy, and Management: Opportunities For the Conservation of Biological Diversity

31 32 protecting delaware’s natural heritage Introduction

tate laws, policies, regulations, and management decisions have major influences on both public and private actions that affect biological diversi- Sty. While many of these laws and policies are not explicitly “environmental,” they can affect biological diversity to a far greater extent than many of the familiar pollution control laws. For example, habitat loss and fragmentation are important contributors to biological diversity loss. Therefore, the laws that guide land use planning and zoning, highway siting and right-of-way management, and the taxation of rural land can significantly affect the success of any effort to conserve vital habitat. This chapter identifies the tools in Delaware’s current laws, policies, and regulations that can be used to conserve biological diversity, the limiting factors that work against biological diversity conservation, and changes that could make the tools more effective. Relevant laws and policies generally fall into five categories:

• Planning • Laws and Regulations Related to Species and Habitat Protection • Protection of Open Space • Management and Research • Private Landowner Outreach, Assistance, Taxation, and Incentive Programs

Although Delaware is the second smallest state in the nation in acreage, it is important to acknowledge that the state has no shortage of laws, policies, regulations, or individuals, units of government, organizations, and industries that individually and collectively guide decisions that affect biological diversity. How these players and tools interact to affect biodiversity is invariably complicated, irrespective of a state’s acreage. The real issue is whether individuals, organizations, and governments will take advantage of these tools to protect the plants, animals, and ecosystems that make up Delaware’s natural heritage, and if so, how they will do it.

chapter 3 33 34 protecting delaware’s natural heritage Chapter 3 Planning Mechanisms

any of the most important opportunities to con- Use of these tools is particularly important in a state as serve biological diversity involve the use of land. densely populated and as rapidly developing as Delaware. MHow habitat is lost, fragmented, and degraded, Between 1982 and 1992, only 10 years, the population or alternatively, how land is protected, is affected by the density of the state increased 15.2 percent. In the same kinds of planning tools available in Delaware and how time period, the area affected by development increased those tools are used. Planning is critical because develop- 20.6 percent.1 Although it is the second smallest state, ment decisions that affect habitat are largely irreversible; Delaware ranks seventh in population density after New once habitat is lost to development, it becomes extremely Jersey, Rhode Island, Massachusetts, Connecticut, difficult to restore the ability of habitat to support the orig- Maryland, and New York.2 Delaware’s population density inal assemblage of native species. Planning tools are neces- in 1992 was estimated to be 337.8 people per square mile. sary to help guide residential, commercial, industrial and As Delaware’s population continues to grow, it becomes infrastructure development and minimize their effects on more and more critical that care is taken to ensure that Delaware’s biological resources. development occurs in a manner that is not harmful to the Moreover, poorly-planned development has other effects state’s economy, ecosystems, or quality of life. upon Delaware’s landscape. Sprawling subdivision development often results in the loss of rural character of Delaware’s oldest agricultural communities. Transportation STATE LEVEL PLANNING infrastructure constructed to meet the demands of occu- pants of sprawling development often leads to greater traf- Nationally, as well as in Delaware, the vast majority of fic congestion and increased ground-level ozone pollution. decisions that affect the use of land are made at the local Outward sprawl also strips urban areas of their sense of level (e.g., county, municipality). However, many states community, drawing economic investment away from and regions have begun to tackle the issue of land use at inner cities and areas with existing infrastructure. the state level in an attempt to coordinate the dizzying Planning serves to identify those resources that are of the array of factors that influence land use, and consequently, greatest importance and those in the greatest danger of loss sprawl development. Because state and regional govern- or degradation. By identifying ahead of time areas most ments provide localities with funding for infrastructure conducive to development and those most important to development and other amenities, controlling how funds biological diversity, planning can ensure that development are distributed to localities can have a profound affect on occurs where it is economically sensible. Furthermore, the how development or conservation occurs. In the past two planning process brings diverse interests together, thereby decades, a number of states have enacted state land use leading to solutions that are mutually acceptable to all par- laws, or “smart growth” legislation. ties and therefore more certain and stable for the long term. The array of state and local land use planning mechanisms The Delaware Planning Act and Office of State available in Delaware offer significant opportunities for pro- Planning Coordination moting sustainable land use in the future. Their potential has The Delaware Planning Act3 established the Cabinet not been fully realized in many situations where they could Committee on State Planning Issues (CCSPI). The CCSPI offer great benefit for the state’s biological resources. is composed of the Secretaries of the Departments of

chapter 3 35 Natural Resources and Environmental Control (DNREC), strengthen the hand of those at the local level for whom Transportation (DelDOT) and Agriculture (DDA), the protecting biodiversity is a priority, by establishing a writ- Director of the Delaware Economic Development Office ten record that sets forth DNREC’s analysis of the pro- (DEDO), and other agencies designated by the Governor. 4 posed action’s impact on biological diversity. While local Members that have been added to the statutorily prescribed governments are free to act contrary to the state’s recom- group are the Secretaries of Education, Health and Social mendations, state comments can often create or support Services, Finance, and Public Safety, the state Budget political and public pressure for altering proposed projects Director, the state Housing Authority Director, and the that have negative environmental impacts. Governor’s Chief of Staff, who chairs the committee.5 In practice, the LUPA process is not as effective as it The CCSPI is charged with making recommendations could be. Insufficient resources for state and local planning on land use and transportation investments, as well as the agencies have led to the neglect of several of the Act’s statu- need for and proposed location of major works and facili- tory requirements. For example, some local jurisdictions ties.6 The CCSPI submits an annual report on its activities are not in complete compliance with the requirement to to the Governor and General Assembly, along with its rec- respond in writing to the state’s comments and make the ommendations for legislative and administrative changes.7 response available for public review.14 A firmer emphasis on The CCSPI receives staffing assistance from the Office of this procedural requirement and additional resources for State Planning Coordination (OSPC), headed by the State localities would encourage local governments to give state Planning Coordinator. OSPC is charged with representing and public comments a more prominent place in their the state and collecting and coordinating the comments of decision-making. In addition, funding should be made state agencies regarding local land use decisions under the available for technological resources such as geographic Land Use Planning Act.8 information systems (GIS) mapping that can improve the effectiveness of the planning process. Intergovernmental Coordination in Land Use Planning The LUPA process, as it currently stands, also suffers Delaware’s 1978 Land Use Planning Act (LUPA) establish- from an unfortunate interpretation of what is considered a es a process for intergovernmental coordination in land use land use planning action “of more than local concern.”15 actions. LUPA requires local jurisdictions to provide OSPC While even minor re-zoning applications pass through the with notice of any land use action of “more than local con- LUPA process of state comments, local government deci- cern.” OSPC must then notify state agencies of the propos- sions to approve major subdivisions — the impacts of al.9 The agencies are directed to forward to OSPC written which are extremely significant for the state — are not comments on the proposal, including consideration of the subject to LUPA review. These receive state review only impact of the proposed action on the physical environ- through the more limited County Advisory Committee ment, state development goals and land development poli- review process (See below: Zoning Regulations and cies.10 OSPC then transmits the coordinated comments of Consideration of Biodiversity). LUPA’s impact would be the state agencies to the local jurisdiction, which is directed strengthened if all major subdivision applications, as well to consider these comments prior to making its decision. as re-zoning applications, were required to go through the Each locality must provide a written rationale for its deci- LUPA process. sion, including a discussion of the state comments and recommendations.11 The final decision and rationale are avail- “Shaping Delaware’s Future” able for public review.12 LUPA establishes a similar proce- Delaware’s Quality of Life Act16 requires counties to pre- dure for local governments to comment on proposed state pare comprehensive development plans, and to coordinate land use decisions.13 them with state policies, the plans of their own municipal- The comment procedures of LUPA can be an effective ities, and the plans of adjacent counties. The CCSPI sub- tool for protecting biological diversity in the state. Local mits comments and recommendations concerning pro- governments interested in directing development in a man- posed county comprehensive development plans based on ner that promotes habitat and species conservation often the state land use development goals and policies adopted lack technical expertise and data on these issues. DNREC under the Delaware Planning Act. Under the Quality of and other agencies that review local proposals can provide Life Act, counties are required to address the CCSPI’s localities with the technical information they need to effec- comments in the adoption of their plans.17 The goals and tively conserve biological resources and evaluate the cumu- policy recommendations adopted by the CCSPI also must lative impact of incremental land use decisions on the larg- be addressed as part of the intergovernmental coordination er statewide picture. State agencies’ comments can also process in the comments mandated by LUPA.18

36 protecting delaware’s natural heritage opment, as well as a multi-modal transportation system. The goals adopted in “Shaping Delaware’s Future” have the potential to contribute significantly to the conservation of biodiversity in the state by making clear the state’s desire to discourage development outside of designated growth areas. These state goals have already influenced the counties’ comprehensive plans, but Delaware land use patterns have yet to show a marked change in the few years since adoption of the goals.

Mapping to Guide Investment OSPC has been working with state agencies, including DNREC, DelDOT, and DEDO, to develop the Investment and Resource Management Strategy Map, a strategic investment map that delineates three classes of investment areas. The three investment areas are: Urban Investment Areas, DNHP. Pink tickseed, Huckleberry Pond. in which growth is to be strongly encouraged; Transition Invest-ment Areas, in which moderate growth is contemplated; and Preservation

KEITH CLANCY, Investment Areas, in which the state’s activities are directed at pre- In 1995, the CCSPI adopted ten goals for preserving serving open space and farmland.19 This strategic investment and enhancing the quality of life in Delaware as the center- map makes clear the state’s desire to encourage growth main- piece of its “Shaping Delaware’s Future” report. These goals ly in and around existing communities and to discourage are intended to provide guidelines for land use decisions, growth elsewhere. This should give local governments an state infrastructure investment, and resource management important tool to make their plans more internally coherent, planning and programs. Among the planning goals relevant more consistent with state plans, and consistent with to biodiversity conservation are: statewide biodiversity conservation goals. The Quality of Life Act authorizes the state to withhold • Protect critical natural resources areas from ill-advised financial assistance or infrastructure improvements that development. support county land use or development actions where the • Protect the state’s water supplies, open spaces, farmlands county’s comprehensive plan, or portions of the plan, are and communities by encouraging revitalization of exist- substantially inconsistent with state development policies.20 ing water and wastewater systems and construction of This provides substantial leverage, as the state funds nearly new systems. all infrastructure extension and improvement in Delaware, • Protect important farmlands from ill-advised development. and in some cases routine maintenance. For example, DelDOT is responsible for street maintenance, including Several additional goals relate to directing state investment snow removal, throughout the entire state. As a result, local and development to existing communities and designated governments would likely follow the state’s lead in direct- growth areas and fostering more compact patterns of devel- ing development to designated growth areas if critical

chapter 3 37 funding were denied. State direction can provide the non-regulatory decisions are made. Planning also enables impetus for Delaware’s local governments to make land communities to identify those resources that are most use decisions consistent with smarter growth and con- important to the community and those that are most in servation of key biological resources. danger of loss or degradation. Also, a 1998 Bond Bill establishing the 21st Century The planning agency of each Delaware county is Growth Management Fund (and providing $69 million required to prepare a comprehensive development plan that for growth management) directs the CCSPI to provide must be updated every five years.24 The plan covers the overall guidance and coordination to ensure that invest- unincorporated portions of the county.25 The plan may also ments made by the fund are consistent with the state’s include municipalities if they request inclusion or if the land use policies.21 The CCSPI is also charged with counties deem it appropriate. However, the county’s com- approving regulations and procedures developed by DDA prehensive plan only has legal effect on municipalities if to implement the state’s purchase of easements under its they are included by request.26 Comprehensive plans must agricultural land preservation program (See Ch. 5: include a future land use plan and the specific elements Agricultural Land Protection).22 CCSPI is directed to tar- which are set out in the state’s Quality of Life Act: mobili- get farmlands that are threatened by development. The ty, water and sewer, conservation, recreation and open ability of the state to direct funding for infrastructure and space, housing, intergovernmental coordination, recom- land use planning provides a potentially significant tool mended community design, historic preservation, and eco- for biological diversity protection and conservation. This nomic development.27 State law also requires the county’s power would be greatly enhanced if Delaware agencies capital improvements plan to be consistent with the com- and organizations were to develop a comprehensive prehensive plan. Finally, the comprehensive plan must be statewide biodiversity assessment to determine where the consistent with the comprehensive plans of other jurisdic- state’s critical biological resources should be protected. tions, as well as with state regulations and policies.28 The Quality of Life Act further provides that the land use map developed as part of the comprehensive plan shall have LOCAL LAND USE PLANNING AND ZONING the “force of law.” In other words, no development (construction or reconstruction) can be permitted unless it con- Comprehensive land use planning and zoning carried out forms with the map and with ordinances enacted to imple- by local governments can be effective tools to guide the ment the other elements of the plan.29 Zoning regulations sustainable use of Delaware’s land. Land use planning must also be in accordance with the comprehensive plan.30 establishes guidelines for the kinds of land uses that are Planning at the municipal level is permitted, though not permissible in an area and provides a basis for guiding pub- mandated.31 Incorporated cities or towns may establish a lic and private development to benefit communities, the planning commission to prepare a comprehensive develop- local economy, the environment and surrounding lands. ment plan for the municipality.32 The plan must be Zoning then sets out the rules that implement the land use reviewed by the municipality at least once every five years, plan. The authority of local governments to zone is derived and must be re-adopted at least once every ten years.33 At a from state law, and land use planning and zoning must be minimum, municipal comprehensive plans must set forth a exercised in accordance with conditions imposed by the strategy for growth, development and infrastructure, and state legislature.23 Planning and zoning are valuable not must demonstrate coordination with other jurisdictions. In only for urban and suburban areas where population pres- municipalities of greater than 2,000 people, the plan must sures have already affected the use of open space and the set forth policies and planning components for open space viability of natural communities, but also are critically and protection of sensitive areas. This language, as well as important for agricultural and newly developing areas the provision for municipalities to consider “other ele- where current trends of habitat loss are less evident. ments,” provides authority for making biodiversity a fea- ture of municipal planning in Delaware.34 Land Use Planning: Opportunity and Requirements According to a 1998 amendment to Delaware’s In Delaware, comprehensive plans are developed by county municipal planning law, a municipal comprehensive and municipal governments to determine the siting and plan has the force of law, and development is permitted conditions for future economic growth while providing for only if consistent with the plan.35 Therefore, municipal the general health, safety, and welfare of the community. zoning regulations must be consistent with the compre- Comprehensive plans do not regulate activities, but instead hensive plan. 36 Municipal plans must be filed with establish the framework within which both regulatory and OSPC, and municipalities are required to report each

38 protecting delaware’s natural heritage year on plan implementation and development issues, areas in the plans is often not reflected in the zoning maps trends, and conditions.37 that determine where and how development will occur. For A problem with the separation between county and instance, New Castle County’s Central Pencader Land Use municipal planning arises from the ability of municipalities Study, included in its comprehensive development plan, to avoid county regulations by annexing county property. designates a preservation zone.44 However, the preservation Several municipalities have done this to attract developers zone is partially zoned for suburban development. In addi- by offering them the ability to avoid the sizable develop- tion, all three counties routinely allow residential development impact fees that are often required by counties. In ment in areas clearly zoned for agriculture. If land use plan- these situations, counties lose control over property and are ning in Delaware is to be an effective tool to protect beholden to the interests served by the municipalities. This against habitat loss and fragmentation, county govern- invariably results in unplanned sprawl and unnecessarily ments must develop and enforce zoning regulations that lost habitat. Municipal annexation could be curtailed by are consistent with their comprehensive plans and the state through the CCSPI’s ability to withhold funding statewide conservation goals. for transportation projects that would serve these developments (See below: State Level Planning). Zoning and Subdivision Regulations: Implementation of the Plan Local Land Use Planning and Biodiversity Zoning laws passed by local governments are the regulato- Considerations ry instruments used to implement the comprehensive Comprehensive planning in Delaware is intended, among plans adopted in those jurisdictions. Unless counties and other purposes, to “preserve, promote, and improve the pub- municipalities enact zoning and subdivision regulations lic health, safety, comfort, good order, appearance, conve- to implement the plans, and hold fast to those regulations nience…and general welfare” as well as to “conserve, develop, rather than grant variances or re-zonings upon request, utilize and protect natural resources.”38 Delaware’s local gov- the plans will not be reflected in on-the-ground conserva- ernments therefore have the authority to develop comprehen- tion and land use. sive plans that take into account biodiversity considerations. As discussed above, each county’s plan is required to Counties include several “elements,” or portions of the plan dedicat- Delaware’s county governments are permitted by statute to ed to a specific purpose. The conservation element must be regulate construction and the use of buildings and land developed in consultation with and reviewed by DDA and within the unincorporated parts of the county.45 County DNREC, “for the conservation, use and protection of nat- zoning may extend to incorporated municipalities by ural resources in the area and which results in the identifi- request of the municipal government.46 Kent County may cation of these resources.” This element must include, at a also zone for municipalities that lack their own zoning,47 minimum, the classification of natural areas, such as “wet- but it has declined to exercise this power.48 lands, wooded uplands, habitat areas, geological areas, Zoning districts and regulations are required by statute hydrological areas, floodplains, aquifer recharge areas, to be in accordance with the comprehensive development ocean beaches, soils, and slopes.”39 plan,49 and zonings or re-zonings inconsistent with the plan The county plan must also include a future land use are legally invalid.50 However, as county governments retain plan element that designates land uses, including the use of the authority to amend their comprehensive development land for conservation.40 The recreation and open space ele- plan,51 inconsistent zoning may be reconciled by amending ment,41 which includes the identification of nature pre- the plan.52 serves, is an obvious tool for habitat protection and plan- Most land development in Delaware cannot occur with- ning. The mobility element, water and sewer element, and out subdivision approval by the county.53 The subdivision recommended community design element42 can also be review process ensures that proposed development is in used to curtail sprawl development. conformity not only with the requirements of the zoning In reality, county comprehensive plans have yet, for the district, but that the development complies with the coun- most part, to fulfill their promise for planned land use in ty’s design standards as well. Delaware. The maps depicting future land use, transportation investment areas, and conservation areas usually Municipalities demonstrate little coordination. Despite a court ruling that Municipal zoning is authorized, though not mandated, by zoning inconsistent with the comprehensive plan is state law.54 As noted above, 1998 amendments to the invalid,43 the distinction between growth and preservation municipality planning law require the comprehensive plan

chapter 3 39 to be “the basis for the development of zoning invasive species and to plant native species.64 Whenever regulations.”55 This may imply that adoption of a plan is a possible, open space areas within subdivisions must be prerequisite for adoption of zoning regulations.56 If zoning connected to adjacent open areas and greenways on abut- regulations are nonetheless adopted in the absence of an ting parcels.65 Unfortunately, the impact of the UDC’s adopted comprehensive development plan, they must still standards will be limited, as a large proportion of New be “in accordance with a comprehensive plan,”57 a require- Castle County is already developed or was permitted for ment the courts have previously interpreted to mean only development prior to the adoption of the code.66 How- that the regulations must be ascribable to some rational ever, these progressive design standards are a model for scheme that seeks to achieve the public welfare.58 Delaware’s other counties to consider for protecting critical environmental resources and minimizing the negative Zoning Regulations and Consideration of Biodiversity impacts of development. Delaware law states that county zoning regulations are to be adopted “for the purpose of promoting the health, safe- Protection of Wetlands, Floodplains, and Steep Slopes ty, morals, convenience, order, prosperity or welfare of the Because Kent and Sussex counties are less developed than present and future inhabitants” of the state. The statute New Castle, zoning regulations in those counties can be more provides a list of goals that are included in this general effective in preventing habitat loss and fragmentation. Kent instruction, some of which could be beneficial, and others County’s zoning ordinance limits building on steep slopes harmful, to biodiversity protection. The list of municipal and mandates setbacks from streams, wetlands, and flood- goals for zoning regulations contains no explicit mention plains,67 although there are no vegetative or other require- of biodiversity-related values, and aesthetic considerations ments for the setback areas. Although indigenous species are alone cannot serve as a basis for zoning regulation.59 required to be used in certain buffer zones,68 the recommend- However, zoning regulations must be designed to ed plant species for landscape “bufferyards” include exotic “[reduce] the waste of excessive amounts of roads,” “[pre- species such as Norway maple and Russian olive.69 Sussex vent] excessive and wasteful scattering of population or County’s zoning ordinance establishes a 50-foot buffer zone settlement,” and “[promote] such distribution of popula- for rivers, streams, tidal waters, and tidal wetlands,70 as well as tion and such classification of land uses and distribution some protection for the primary coastal dune.71 Vegetative of land development and utilization as will tend to facili- buffers are important for protecting terrestrial plants, animals, tate and provide adequate provisions for public require- and ecosystems, as well as the health and vitality of aquatic ments…water flowage…recreation, soil fertility, [and] communities. However, when determining appropriate buffer food supply.” The county council must consider these fac- widths, it is important to consider that a 50-foot buffer that tors when enacting regulations or granting a re-zoning.60 adequately provides water filtration benefits may not provide Zoning regulations must be reasonably related to one of adequate habitat for specific species72 (See Ch. 2: the enumerated purposes in the statute,61 and the decision Fundamentals of Biological Diversity Conservation). Local must be supported by a record or a statement of its basis.62 zoning requirements can be an important supplement to Counties could use this requirement to minimize sprawl the state regulatory requirements relating to Delaware’s and protect remaining habitat. waters and wetlands discussed in the next chapter.

Environmental Design Standards Protecting the Rural Landscape Counties can make use of the authority granted them to A major obstacle to conserving biodiversity is the pattern protect biodiversity through their zoning and subdivision of development fostered by county zoning codes. In rural regulations by instituting environmental design require- areas where zoning codes encourage low-density developments for land use. New Castle County has enacted comment and large lot sizes, homes tend to be spread out across prehensive environmental standards for development as the landscape. This type of development requires large part of its recently adopted Unified Development Code investments in infrastructure, such as roads, sewer lines, (UDC). Under the new ordinance, critical natural areas, and power lines. As discussed in Chapter 1, roads and forests, wetlands, floodplains, riparian buffers, recharge other physical structures cause habitat fragmentation. areas, steep slopes, and other resources all receive some These developments also protect scant open space, provide protection from development. This protection includes limited transportation options, and are located far away minimum proportions of an area that must be left unde- from amenities such as shopping and schools. As a result, veloped, as well as regulation of land uses.63 In addition, residents are more dependent upon cars than individuals developers are required in some situations to eradicate living in compact, mixed-use developments.

40 protecting delaware’s natural heritage Traditionally, Delaware’s counties have attempted to pre- ity of the state to delegate agricultural zoning power to the serve the rural landscape by instituting minimum lot size local governments, and the state retains the right to enact requirements. New Castle County’s minimum lot size is 5 such zoning directly by statute. Further, the authority of acres for its Suburban Reserve district.73 In Kent County, county governments to zone for water supply conserva- the Agricultural Conservation and Agricultural Residential tion, soil conservation, or similar purposes may afford districts require a minimum of 10-acre lots outside of the them sufficient authority to restrict uses on lands currently designated growth overlay zone.74 Alternatively, in “village used for agriculture. developments,” the minimum lot size is 2 acres, but the development must contain 35 percent open space.75 In The TDR Option Sussex County, the minimum lot size of un-sewered areas The burden of stricter zoning in agricultural areas might be in the County’s Agricultural Residential districts is 3/4 mitigated by the establishment of transferable development acre.76 Unfortunately, these lot size requirements are not rights (TDRs). These allow landowners in areas not suit- large enough to preserve large tracts of undeveloped land. able for intense development (such as agricultural or con- Such requirements thus foster sprawl development and servation areas) to separate their development rights from encourage farmland loss and inefficient use of open space. their “bundle” of property rights, and to sell these rights to In order to preserve rural communities and open space others for use in areas better suited to sustain development. and to avoid sprawl development and its associated costs, Counties have been authorized by statute since 1995 to local governments should adopt zoning regulations that adopt regulations governing TDRs.82 To date, only New encourage high-density, mixed-use, and in-fill develop- Castle County has done so.83 Although Kent and Sussex ment. In an effort to combat sprawl and encourage these Counties are studying the issue, they have not adopted types of development, New Castle County has instituted such regulations. Landowners have not yet made use of the a variety of programs and incentives.77 However, these New Castle County TDR ordinance, partly due to reluc- measures have not been effective in curtailing sprawl and tance on the part of developers to build high-density resi- promoting higher-density, mixed-use and in-fill develop- dential projects. The creation of a robust market for devel- ment. Such incentives are indeed difficult to fine-tune. If opment rights has also been hindered by the statutory the incentives are not attractive enough, they will fail to requirement that sending and receiving areas must be locat- achieve the desired purpose; if they are too attractive, ed in the same planning district within each county.84 With they will place too much development pressure on unde- the recent passage of legislation allowing TDRs to be trans- veloped land.78 ferred among different planning districts and different jurisdictions,85 there is reason to hope that this planning Protection of Agricultural Land tool will become utilized to a much greater extent. Another possible tool for the preservation of undeveloped land is agriculture-only zoning. However, a 1982 Opinion Subdivision Review of the Attorney General suggests that local governments Subdivision review is generally treated as a somewhat may not be authorized to enact such measures.79 mechanical process in Delaware’s three counties and little Delaware’s constitution states that the General Assembly thought is given to the cumulative effects of subdivision may enact laws under which localities “may adopt zoning approval. However, there is ample authority for using this ordinances, laws or rules limiting the nature and extent of subdivision review to avoid, minimize, or mitigate the their use, as well as the use to be made of land in such dis- harmful effects on biological diversity caused by subdivi- tricts for other than agricultural purposes.”80 The legislation sion developments. For instance, language in Sussex authorizing counties to zone allows them to regulate “the County’s subdivision ordinance mandates that subdivision uses of land for trade, industry, residence, recreation, pub- approval include consideration of minimal use of wetlands lic activities, water supply conservation, soil conservation and floodplains; preservation of natural features; minimiza- or similar purposes;” no mention is made of agriculture.81 tion of tree, vegetation, and soil removal; prevention of sur- The opinion concludes that these provisions prohibit the face and groundwater pollution; minimization of erosion, counties from regulating “for agricultural purposes,” but sedimentation, changes in groundwater levels, runoff, and they may be understood simply to prohibit the localities potential for flooding; and effects on waterways.86 from limiting or regulating agricultural uses through their Subdivision planning must also take into consideration zoning ordinances, and not from limiting other uses in the impacts on critical areas, waterways, natural topography, name of preserving agriculture. In any case, it is certain and vegetation.87 New Castle County’s UDC similarly that these constitutional limitations apply only to the abil- requires that land use plans reflect sensitivity to ecological

chapter 3 41 factors such as preservation of existing vegetation from required to adopt land use regulations to protect the destruction and avoidance of erosion and siltation.88 These “unique ecological functions” of these areas.93 provisions in existing county zoning codes could be used This law has already had a significant impact on land use more aggressively by counties to limit or mitigate impacts in Delaware. As of May 1996, SRAs totaled over 250,000 from subdivision development. acres.94 Approximately 115,000 acres of SRA land have been Counties have established a mechanism for soliciting the protected by easement or acquisition, while the remainder is input of state agencies in land use decisions, such as re-zon- still unprotected.95 By law, counties are required to protect ing and major subdivision applications, even when state these areas through overlay zoning ordinances and specific OSPC review of local planning actions is not mandated. technically based environmental performance standards and Before county planning agencies act on zoning proposals, design criteria (See Ch. 5: Obligations of Local Government the regulations are reviewed by an appointed zoning advi- for Open Space Protection) in order to minimize the loss of sory committee,89 which consists of the state agencies open space and associated values.96 However, current zoning whose regulatory approval is needed before certain types of standards encourage low-density residential development on development can proceed. How-ever, the comments of the these lands, which impairs their unique ecological functions. state agencies in the county advisory committee process are Delaware’s counties need to take SRA designations more generally limited to the question of whether the applicant seriously and comply with the Land Protection Act to ensure is eligible to receive permits from the agency as required by that SRAs are adequately protected. state law (such as access permits from DelDOT and septic permits from DNREC). Wastewater Disposal Unfortunately, state agencies do not ordinarily provide, One of the state’s primary financial levers over develop- nor do local governments solicit, comments from the agen- ment is its funding of central sewer lines. State and coun- cies on the extent to which proposed subdivisions are con- ty plans strongly correlate designated growth zones with sistent with state land use policies, such as DelDOT’s the availability of central sewer systems. Unfortunately, Long-Range Transportation Plan. Nor does the review the assumption of planners that state refusal to fund sewer process seek to assess the impact of the proposed subdivi- line extensions in preservation areas will discourage devel- sion on biologically sensitive lands. This is a missed oppor- opment in these areas is probably mistaken. While the tunity for statewide coordination and information lack of central sewer systems requires that the developer exchange. DNREC and DelDOT in particular should con- install septic systems and therefore build at a lower densi- sider how this review could encourage decision-making ty than allowed in areas served by central sewers, develop- consistent with statewide conservation goals. ers and buyers seemingly prefer to build at these lower densities anyway, and the requirement for an on-site septic system, in and of itself, has proven to be only a mar- STATE AGENCY INFLUENCE ON LAND USE: ginal drawback. THE ROLE OF DNREC An additional problem, exemplified in the case of the Inland Bays areas, is that septic systems often fail, leading DNREC can influence land use decisions that affect habi- to water quality problems, at which point DNREC must tat in many ways, most obviously through its regulatory step in and fund central sewer systems in order to prevent powers, the purchase of open space, and management of further water quality degradation. This reality, combined protected areas. It can also help protect habitat for biologi- with subsidized, low-interest loans for septic system cal diversity through its role in the in the LUPA process repairs,97 means that the state ends up funding waste- and in the preparation of the state’s Investment and water disposal one way or another. The state’s intention Resource Management Strategy Map (See above: Mapping not to fund sewage infrastructure outside of designated to Guide Investment). growth areas is thus neither effective nor credible as a deterrent to sprawl development outside these areas, and State Resource Areas may actually just defer fiscal and environmental costs to a Under the Land Protection Act, DNREC has authority to later date. designate State Resource Areas (SRAs) as appropriate for DNREC could lead the state out of this conundrum by inclusion in the Open Space Program (See Ch. 5: requiring that all new development be connected to cen- Enactment of the Land Protection Act).90 Maps of these tral sewer lines. This would force new development either areas, recommended by the Open Space Council,91 are to to take place in the growth areas or else bear on its own be included in local comprehensive plans.92 Counties are the costs of sewage infrastructure extensions outside these

42 protecting delaware’s natural heritage areas, which would likely do more to discourage develop- lic and local government to be involved in decision-mak- ment than does septic system construction. Such a policy ing.102 The central tool that NEPA uses to accomplish these would have the additional effects of preventing pollution goals is the Environmental Impact Statement (EIS). When from leaking septic systems and avoiding the resultant DelDOT proposes federally supported highway construc- costs imposed on the state by the necessity of mitigating tion or improvement projects that will have a significant environmental damage and building central sewage sys- impact on the environment, DelDOT must prepare a draft tems. DNREC’s current discussions with the Wastewater EIS. In addition to detailing the expected environmental Facilities Council appear to be directed towards this end. impacts of the project, the EIS identifies several alternative plans, including a “no-action” alternative, as well as DelDOT’s “preferred alternative.” After its preparation, the TRANSPORTATION PLANNING draft EIS is reviewed by the Federal Highway Administration103 and circulated for public comment.104 Sustainable land use and transportation planning are inex- Generally, information about the availability of a draft EIS tricably linked. The location, type and capacity of trans- is posted in local newspapers, and private citizens and local portation has a major effect on where and how develop- governments concerned about the impacts of a specific ment occurs, and therefore on habitat loss, degradation, project can submit comments to DelDOT. After public and fragmentation. In addition, along with roads and high- review, DelDOT prepares the final EIS. Public comments ways come the rights-of-way that border these transporta- are included in the final EIS,105 as is an outline of the “miti- tion routes. Decisions made at the state level on how gation measures that are to be incorporated into the pro- rights-of-way are managed can promote biodiversity con- posed [project].”106 Both the alternatives and the mitigation servation (See Ch. 6: Transportation Management to measures provide opportunities to identify ways to provide Protect Biodiversity). Funding of transportation improve- for conservation or protection of biological diversity. ments is therefore a major factor affecting the sustainable use of land. TEA-21 The transportation needs of rapidly developing subur- The federal Intermodal Surface Transportation Efficiency ban housing can typically be met only by building more Act (ISTEA, pronounced “ice tea”), enacted in 1991, was roads, which may quickly become congested. The converse reauthorized in 1998 as the Transportation Equity Act is also true–the heedless construction of more roads can (TEA-21). Nationally, TEA-21 authorized $217 billion of encourage growth in areas that were not intended for devel- funding for state transportation agencies. The Act also opment. As valuable acres of open space are consumed by retained many of the reforms introduced by the 1991 legis- large-lot subdivision housing and land-intensive road con- lation, which emphasized alternatives to highway construc- struction, the ability of Delaware to meet the transportation and a process to integrate local land use planning with tion needs of its residents becomes more and more transportation planning.107 The law outlines how federal strained. Recognizing this problem, DelDOT has highway funds are distributed and how states may use embarked upon planning measures to prevent poorly them. Approved uses include the “mitigation of damages to planned growth. These measures are a start to curbing sub- wildlife, habitat, and ecosystems caused by a transportation urban and urban sprawl and relieving traffic congestion. project” and “wetlands mitigation efforts related to [trans- Delaware’s transportation plans are guided by state laws portation] projects.”108 and by a few key federal statutes such as the National Since enactment of ISTEA, Delaware’s regional planning Environmental Policy Act (NEPA),98 Clean Water Act,99 organizations have been required to engage in two types of Clean Air Act,100 and the Transportation Equity Act of transportation planning, both of which call for significant 1998, the federal legislation known as “TEA-21.”101 public involvement: 1) the preparation of 20-year Long Range Plans (LRPs), and 2) the preparation of 3-year NEPA: Minimizing Environmental Damage Transportation Improvement Programs (TIPs). LRPs out- Federal law is important to transportation because so much line a set of goals and define a transportation system that of the funding for highways and other projects comes from will meet these goals. LRPs must be prepared with public the federal government. NEPA was designed to minimize participation, including public hearings, and are revised environmental damage caused by various federal projects, every three to five years. Proposed projects must comply including transportation projects. The statute requires that with the federal Clean Air Act, and the plan must reflect information about the consequences of proposed actions only state, local, and federal financing that is realistically must be made available to the public, and enables the pub- expected to be available. TIPs contains a prioritized list of

chapter 3 43 the projects that the planning organization actually expects concerns, such as protection of key habitat, prevention of to be implemented over the next three to five years, and is habitat fragmentation, and improvement of water quality. updated every other year. Although TEA-21 authorizes federal funding assistance At the state level, DelDOT prepares a statewide LRP, a for traditional highway projects, bridges, mass transit, and state TIP, and a long-range plan for pedestrians and bicy- other purposes, it includes additional programs that are cles. Both LRPs and TIPs are required to consider projects potentially relevant to biodiversity conservation. The and strategies that will: Surface Transportation Program (STP) provides funds that may be expended for a variety of activities including miti- • support the economic vitality of metropolitan areas, gation of environmental impacts. At least 10 percent of especially by enabling global competitiveness, produc- STP funding is set aside for “transportation enhance- tivity, and efficiency; ments.” These are locally developed projects including: • protect and enhance the environment, promote energy bike and pedestrian facilities, acquisition of scenic ease- conservation, and improve the quality of life; ments or scenic sites, wildlife underpasses, rails-to-trails • enhance the integration and connectivity of the trans- projects, and environmental mitigation to address water portation system, across and between modes, for people pollution due to highway runoff or reduce vehicle-caused and freight; and wildlife mortality while maintaining habitat connectivity. • promote efficient system management and operation; The provision for wildlife and habitat protection was and emphasize preservation of the existing transporta- among several additions to the enhancement program tion system. made in the 1998 legislation. Enhancement projects may be proposed by local govern- From the perspective of biological diversity, this new ments or private organizations, including civic and conser- style of transportation planning provides an important vation groups and the projects must compete for funding opportunity. Prior to 1991, transportation planning’s only at the state level. In order to be classified as an enhance- concession to biological diversity was a longstanding ment eligible for funding, the project must either: 1) have a requirement that denied federal approval for any federally functional relationship to the transportation system (e.g. a supported transportation project utilizing publicly owned bike lane, or a wildlife underpass), 2) be in direct proximity parks, recreation areas, or wildlife and waterfowl refuges, to that system (e.g. the purchase of an easement beside a unless there was no prudent and feasible alternative, and scenic highway), or 3) have a direct impact on the system the project included “all possible planning to minimize (e.g. reduce congestion). Enhancements have been used for harm” to the unit.109 While this provision helped to prevent conservation purposes in many states, and can be used for siting of some highways directly through parks and refuges, biodiversity-related projects meeting the statutory criteria. planning now greatly extends the potential focus of con- Delaware’s estimated enhancement funding is approximate- cern to a broad array of land use and conservation issues. ly $3 million per year.110 Since 1991, the law has also required regional planning TEA-21 also introduced the Transportation and organizations and DelDOT to take into consideration state Community and System Preservation Pilot program and local land use plans, impacts on air quality and other (TCSP), which will provide up to $120 million nationally resources, and efficiencies and trade-offs in siting highways in grants over six years to state, local, and regional agencies or funding other modes of transportation. The process pro- that partner with non-profit organizations, private sector vides an opportunity for the public to encourage DelDOT interests and others to make transportation and land use to consider impacts on biological diversity and offers connections.111 This program is intended to promote com- opportunities for restoration and mitigation. In the plan- pact development and alternatives to sprawl, and may thus ning process, important participants include local govern- be supportive of Delaware land use initiatives to protect ments, advocacy groups, civic associations, conservation biological diversity and quality of life. districts, sportsmens’ organizations, and others interested in biological diversity. Indeed, the LRP is one of the few Long Range Transportation Planning forums in Delaware where issues of multi-county, regional In 1997, DelDOT completed the state’s Long Range concern can be addressed and weighed against one another Transportation Plan under ISTEA. The plan was developed publicly. Although somewhat constrained by its primary prior to completion of state’s Invest-ment and Resource focus on allocating transportation funds, the LRP provides Management Strategy Map.112 One of the goals of the plan an opportunity for Delaware’s citizens to adopt regional is “[t]o support the State’s economic well-being while approaches that can focus more directly on environmental remaining sensitive to environmental needs and issues.”113

44 protecting delaware’s natural heritage Sensitivity to the need to preserve habitat is reflected in an maintain the integrity of Preservation Areas without explicit policy in the LRP. The plan states that DelDOT accompanying zoning changes to assure that transporta- expansion projects must be directed away from environ- tion planning decisions are not overwhelmed by other mentally sensitive areas and other natural resources.114 It state and local decisions. also includes policies to reduce motor-vehicle trips, provide assistance to local government efforts to direct growth to Multi-modal transportation planning existing communities, preserve open spaces, and protect Planning for alternative modes of transportation is impor- critical natural areas.115 The key implementation issue will tant not only for improving the space-efficiency of the be whether the shorter term transportation improvement transportation infrastructure, but also for stimulating plans and the projects selected by DelDOT for construc- demand for better-planned, more centrally-located hous- tion will carry out these articulated policies. ing supported by public transportation. Furthermore, The state’s Long Range Transportation Plan establishes multi-modal planning is mandated under TEA-21. three “Investment Areas,” which are similar to the areas Section 1202 states that bicycle and pedestrian facilities identified on the state investment map: Multimodal, “shall be considered, where appropriate, in conjunction Management, and Preservation Areas. This system is with all new construction and reconstruction of trans- designed to direct major transportation improvements to portation facilities, except where bicycle and pedestrian designated growth areas and help preserve the natural use is not permitted.”117 DelDOT is a leader among state environment in undeveloped areas.116 It is uncertain, how- transportation agencies in multi-modal planning, but ever, that designation as a Preservation Area will deter more work needs to be done. Between 1980 and 1990, development in that area. The state may be hard-pressed drive-alone trips increased from 66.4 to 77.2 percent,118 to maintain the preservation designation once citizens while transit trips declined from 8.4 to 2.4 percent.119 In become upset by congested roads. It may be impossible to an effort to stem the tide of increasing drive-alone trips, DNHP. Box turtle, Great Cypress Swamp. B. FAHEY,

chapter 3 45 DelDOT now requires that each transportation project Land use planning and zoning maintain the value of address how all the modes will be accommodated. For property in a community by spreading the benefits and example, a bridge improvement must now include consid- burdens of development and by assuring that the com- eration of how to improve pedestrian and bicycle access, in mon resources of the community are preserved for all to addition to automobile passage. While on a project-by- enjoy. Planning and zoning are not anti-development project basis little is “earmarked” for bike, pedestrian and measures, but rather tools to ensure the compatibility of transit modes, the practical effect is meant to be similar. 120 growth with the surrounding environment and with state- To cement DelDOT’s commitment to bicycle, pedestrian level priorities. They provide a means of assuring that and transit planning for the future, however, Delaware undesirable effects are mitigated and that reasonable con- could enact a statute that requires DelDOT to explicitly ditions can be imposed on major activities. They also consider and report on the impacts of all transportation channel development away from critical resources and projects on bicycle, pedestrian, and transit modes. toward areas where roads, sewers, and infrastructure can Delaware has additional tools available to help plan for better support development. transportation alternatives. Delaware’s Corridor Capacity Planning is not solely a tool for Delaware’s urban and Preservation code provision121 requires DelDOT to identi- suburban areas. The development of substantial ex-urban fy corridors that need capacity protection. Money is avail- infrastructure–such as new highways or regional water able for DelDOT to preserve capacity in ways other than and sewer projects–may put previously rural areas under adding lanes. DelDOT “is required to develop long-range substantial development pressure. While these develop- plans and principles to consider the various appropriate ments often are welcome, without a well-articulated land means of meeting the transportation needs of the State.”122 use plan or zoning ordinance, their growth-stimulating As well, DelDOT “may identify transportation routes effects can be hard on local jurisdictions’ finances and on requiring corridor capacity preservation in order to: (i) their natural resources. Delaware’s planning laws provide focus development toward existing locations; (ii) reduce ample opportunities for citizens to assure that develop- the need for expansion of the transportation system; and ment activities–both public and private–do not further (iii) otherwise advance the quality of life of Delawareans degrade the state’s rich biological heritage through habitat and the development policies adopted by the Cabinet loss, degradation, and fragmentation. Committee on State Planning issues.” Local agencies are also required to develop comprehensive development plans, and “should incorporate [DelDOT’s] designation RECOMMENDATIONS of transportation routes requiring corridor capacity preservation.”123 Historically, this provision has been used • Provide more financial and staff resources to localities for modest projects, such as removing driveways from and state agencies to ensure more vigorous Land Use arterials and directing access out onto collector roads, or Planning Act review and follow-up, and bolster the arranging for adjoining lots to have shared access to a capacity of local jurisdictions to respond in writing to road. This is a tool that can be used more aggressively to the state’s comments. provide for alternative modes of transportation and to direct development away from sensitive lands. • Clarify the definition of land use planning actions of “more than local concern” to require Land Use Planning Act review for all large-scale subdivision applications. CONCLUSION • State agencies should provide, and local governments Local organizations and citizens concerned about the should solicit, comments on the extent to which zoning, loss of natural habitat have significant opportunities to re-zoning, and subdivision regulations are in agreement guide the development of local land use plans, zoning with state policies. The Department of Natural Resources regulations, and transportation plans in Delaware. The and Environmental Control should provide localities involvement of the public can be the best buffer against with biological information, including information from sprawl and the resulting habitat loss, degradation, and the Natural Heritage Data Program and on cumulative fragmentation. Additionally, the state Quality of Life impacts on natural resources, to inform local decision- goals and coordination by OSPC provide powerful making about effects from development. Continue to opportunities to protect Delaware’s most critical biologi- develop technological resources to aid in this process, cal resources. such as geographic information system mapping tools.

46 protecting delaware’s natural heritage • Develop a statewide biodiversity assessment and plan Department of Natural Resources and Environmental identifying the areas and resources in greatest need Control should meet its legal obligations under the Land of protection. Protection Act by providing the counties with detailed maps of the State Resource Areas to facilitate county • Require counties to develop zoning maps and regula- compliance with the Act. tions that are consistent with their comprehensive plans. Areas designated as growth and preservation areas in the • Develop a requirement or presumption that all new county comprehensive plans should be reflected as such developments (beyond 1-2 unit subdivisions) should be in zoning maps. required to be attached to central sewer lines unless a compelling case can be made that there is a more envi- • Amend existing county comprehensive plans to ensure ronmentally protective alternative consistent with the that they are consistent with the state’s development pri- state’s growth policies. orities. State designated growth and preservation areas are required by law to be reflected in the comprehensive • When new sewer infrastructure is constructed in previ- plans and zoning maps at the county level. ously unsewered areas to address water quality problems, establish appropriate measures to ensure that ill-con- • Local governments, with the aid of the Office of State ceived growth is not stimulated. Planning Coordination, should modify zoning and design ordinances for designated growth areas to pro- • The state should ensure that short term transportation mote or require high-density, mixed-use development. improvement projects selected by the Delaware Department of Transportation reflect the policies articu- • Kent and Sussex Counties should adopt environmental lated in the state’s Long Range Plan to direct transporta- design standards for development projects that take bio- tion development away from environmentally sensitive diversity into account. areas and other natural resources.

• Kent and Sussex Counties should use their authority to • State agencies, local governments, and local citizens enact transferable development rights ordinances. should participate in the Long Range Plan and Transportation Improvement Program planning process • Delaware should exercise its authority to deny infra- to ensure that major transportation development projects structure and development funding inconsistent with are consistent with other state growth goals, are directed state development policies, including development out- to designated growth areas, and do not encourage growth side of designated growth areas. in designated Preservation Areas.

• Modify the statutory provision in the Quality of Life • Local governments and citizens should take advantage of the Actto require, rather than merely allow, the state to deny Transportation Equity Act Enhancements program to devel- funding for infrastructure projects whenever a proposed op projects that are beneficial to wildlife and biodiversity. action is inconsistent with state development policies. • Enact a statute that requires the Delaware Department • All three Delaware counties should move quickly to of Transportation to explicitly consider and report on adopt overlay zoning ordinances and environmental the feasibility of bicycle, pedestrian, and transit facilities design standards to protect State Resource Areas. The for all transportation projects.

1 Noss, Reed F. and Robert L. Peters. December 1995. Endangered Ecosystems: A Status Report 9 Del. Code Ann. tit. 29, §§ 9211, 9214, 9216(a). on America’s Vanishing Habitat and Wildlife. Defenders of Wildlife: Washington, DC. p. 77. 10 See id. §§ 9216(a), 9216(d)(3), 9216(d)(7). 2 Famighetti, Robert, Ed. 1999. The World Almanac and Book of Facts: 1999. World 11 See id. §§ 9218, 9220(c), 9220(e). Almanac Books: Mahwah, NJ. 12 See id. § 9220(f). 3 Del. Code Ann. tit. 29, §9101 et seq. 13 See id. §§ 9225-9235. 4 See id. §9101(a). 14 Del. Code Ann. tit. 29, §§ 9220(e), 9220(f). 5 http:// www.state.de.us/planning/coord/ccspi.htm. 15 See id. § 9211. 6 Del. Code Ann. tit. 29, §9101(c). 16 Del. Code Ann. tit. 9, §§ 2651 et seq., 4951 et seq., 6951 et seq. 7 See id. §9101(e). 17 See id. §§ 2658(a), 4958(a), 6958(a). 8 See id. §9101(h).

chapter 3 47 18 Del. Code Ann. tit. 29, §§ 9216(d)(7), 9228(b)(8). Supr. 1975); Tate v. Miles, Del. Supr., 503 A.2d 187, 191 (Del. Supr. 1986). 61 19 OSPC. Sep. 1998. Shaping Delaware’s Future: Strategies for State Investment and Green v. County Planning and Zoning Commission of Sussex County, 340 A.2d 852 Resource Management. Discussion Draft. (Del. Ch.1974), aff’d sub nom. 62 20 Del. Code Ann. tit. 29 §§ 2658(b), 4958(b), 6958(b). Tate v. Miles, 503 A.2d 187, 191, (Del. Supr. 1986). 63 21 H.B. 750 § 15(a), 139th General Assembly Sess. New Castle County, Del., Code ch. 13, art. 10. 64 22 H.B. 750 § 15(b)(1). See id. §§ 10.331, 10.351, 23.240, 23.280. These provisions are most likely not enforced. 65 23 Green v. County Council of Sussex County, 508 A.2d 882, 889, (Del. Ch. 1986), See id. § 23.510G. aff’d, 516 A.2d 480 (Del.1986). 66 O’Donnell, Edward J. New Castle County Department of Land Use. Personal com- 24 Del. Code Ann. tit. 9, § 2660(a) (New Castle), § 4960(a) (Kent), § 6960(a) (Sussex). munication. 67 25 See id. §§ 1341(1), 2653(b) (New Castle), §§ 4802, 4807(a), 4953(b) (Kent), §§ Kent County, Del., art. 4, §§ 2.13-2.14. 6802, 6807(a), 6953(b) (Sussex). 68 See id. § 2.15. 26 See id. § 1341(1) (New Castle), §§ 4802, 4807(c) (Kent), §§ 6802, 6807(d) (Sussex). 69 Kent County, Del., Code art. 6 § 9. 27 See id. §§ 2651 et seq. (New Castle), §§ 4951 et seq. (Kent), §§ 6951 et seq. (Sussex). 70 Sussex County, Del., Code § 115-193. 28 See id. § 2656(b)-(e), § 4956(b)-(e), § 6956(b)-(e). 71 See id. § 115-189. 29 Del. Code Ann. tit. 9, §§ 2651(b), 2652(6), 2652(20), 2659(a)-(c), §§ 4951(b), 72 Keller, C.M.B., C.S. Robbins, and J.S. Hatfield. 1993. “Avian communities in riparian 4952(6), 4952(20), 4959(a)-(c), §§ 6951(b), 6952(6), 6952(20), 6959(a)-(c). forests of different widths in Maryland and Delaware.” Wetlands. 13 (2): 137-144. 30 See id. § 2603(a) (New Castle), §§ 6904, 6907(a) (Sussex). 73 New Castle County, Del., Code ch. 13 art. 4, Table 04.110. 31 Del. Code Ann. tit. 22 § 701. 74 Kent County, Del., Code art. 4, §§ 1.6, 2.6. 32 See id. §§ 701, 702(a). 75 See id. § 1.16. The cited figure is for village developments in Agricultural 33 See id. § 702(e). Conservation Districts. In Agricultural Residence Districts, the open space requirement is 25%. Kent County, Del., Code art. 4 § 2.16. 34 See id. § 702(b). 76 Sussex County, Del. Code § 115-25. 35 See id. § 702(d). Presumably, “development” in the municipal context means the same 77 thing as in the Quality of Life Act, e.g. § 2652(6): construction or reconstruction. e.g. 13 New Castle County, Del., Code art. 7. 78 36 Del. Code Ann. tit. 22, § 702(c). See, e.g., Arendt, Randall, et al. Rural By Design. American Planning Association. Washington, D.C., p. 229. 37 See id. § 702(f). 79 Op. Atty. Gen. No. 82-IO22, Aug. 12, 1982. 38 Del. Code Ann. tit. 9, §§ 2651, 4951, 6951. 80 Del. Const. art. II, § 25 (emphasis added). 39 Del. Code Ann. tit. 9, §§ 2656(g)(4), 4956(g)(4), 6956(g)(4). 81 Del. Code Ann. tit. 9, §§ 2601, 4901, 6902. 40 See id. §§ 2656(g)(1), 4956(g)(1), 6956(g)(1). 82 Del. Code Ann. tit. 9, §§ 2653(a)(3), 4953(a)(3), 6953(a)(3). 41 See id. §§ 2656(g)(5), 4956(g)(5), 6956(g)(5). 83 New Castle County, Del., Code ch. 13, art. 7. 42 See id. §§ 2656(g)(2), 2656(g)(3), 2656(g)(8), 4956(g)(2), 4956(g)(3), 4956(g)(8), 84 6956(g)(2), 6956(g)(3), 6956(g)(8). Del. Code Ann. tit. 9, §§ 2653(a)(3), 4953(a)(3), 6953(a)(3). 85 43 Green v. County Council of Sussex County, 508 A.2d 882, 889-91 (Del. Ch. 1986), S.B. 124, 140th General Assembly Sess. (Del. 1999). aff’d, 516 A.2d 480 (Del. 1986). 86 Sus. C. § 99-9. 44 1997 Update to New Castle County Comprehensive Development Plan. p. 14-35. 87 Sus. C. § 99-16C. 45 Del. Code Ann. tit. 9, §§ 2601-2 (New Castle), §§ 4901-2 (Kent), §§ 6902-3 (Sussex). 88 N. CAST. C. § 20.110B. 46 See id. §§ 2601, 4802, 6902. 89 In New Castle County, the Subdivision Advisory Committee (SAC); in Sussex 47 See id. § 4901. County, the Technical Advisory Committee (TAC), and in Kent County, the Development Advisory Committee (DAC). 48 Scarborough v. Mayor of Cheswold, 303 A.2d 701, 706-1, (Del. Ch. 1973); Coyle, 90 Kevin. Kent County Planning Department. Personal communication. July 16, 1998. Del. Code Ann. tit. 7, §§ 7504(11), 7507(b). 91 49 See id. §§ 2603(a), 2607(a) (New Castle), §§ 6904, 6907(a), 6911(a) (Sussex). See id. § 7506(2). 92 50 Green v. County Council of Sussex County, 508 A.2d 882, 889-91, (Del. Ch. 1986), See id. § 7507(c). aff’d, 516 A.2d 480 (Del.1986). 93 See id. § 7508. 51 Del. Code Ann. tit. 9, §§ 1344(b), 2660(b) (New Castle), § 4960(b) (Kent), § 94 Delaware Open Space Council. May 1996. Delaware’s Open Space Program. DNREC: 6960(b) (Sussex). Dover, DE. 52 New Castle County Council v. BC Development Associates, 567 A.2d 1271, 1277, 95 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal communication. (Del. Supr. 1989). September 13, 1999. 53 Del. Code Ann. tit. 9, §§ 3005, 3006 (New Castle), § 4816 (Kent). 96 See id. § 7508. 54 Del. Code Ann. tit. 22, § 301. 97 Del. Code Ann. tit. 29, § 8003. 55 Del. Code Ann. tit. 22, § 702(c). 98 42 U.S.C. § 4321-4370d. 56 Segletes, T.J. III. Delaware Legislative Council Division of Research. Personal corre- 99 33 U.S.C. § 1251-1387. See discussion of §§ 401 and 404 of the federal Clean Water spondence. August 5, 1998. Act, infra, Chapter 4. 57 Del. Code Ann. tit. 22, § 303. (emphasis added). 100 42 U.S.C. § 7401-7671q. 58 Green v. County Council of Sussex County, 508 A.2d 882, 889-90, (Del. Ch. 1986), 101 Pub. L. 105- (1998), to be codified at 49 U.S.C. aff’d, 516 A.2d 480 (Del.1986); McQuail v. Shell Oil Company, 183 A.2d 572, 578 102 Yost, N. 1989. NEPA Deskbook. Environmental Law Institute: Washington, DC. p. 5. (Del. Supr. 1962). 103 59 Or the Urban Mass Transportation Administration, whichever agency is overseeing Mayor and Council of Wilmington v. Turk, 129 A. 512, 518 (Del. Ch. 1925). the proposed plan. 23 C.F.R. § 771.107 (c). 60 Green v. County Planning and Zoning Commission of Sussex County, 340 A.2d 852, 104 23 C.F.R. § 771.123 (e). 23 C.F.R. § 771.123 (g). 856-7 (Del. Ch.1974), aff’d sub nom; Sea Colony, Inc. v. Green, 344 A.2d 386 (Del.

48 protecting delaware’s natural heritage 105 23 C.F.R. § 771.125 (a)(1). 106 23 C.F.R. § 771.125 (a)(1). 107 Transportation Efficiency Act, Pub. L. No. 102-240, 105 Stat. 1914 (1991). 108 105 Stat. 1928, § 133(b)(11). 109 49 U.S.C. § 303(c). 110 Surface Transportation Policy Project, Tea-21 User’s Guide (visited August 30, 1999) . 111 Transportation Efficiency Act, 105 Stat. ____, § 1221. 112 DelDOT Division of Planning, Transportation and Delaware’s Future: Statewide Long-Range Transportation Plan, Jan. 1997. 113 Statewide Long-Range Transportation Plan, Technical Report #2, Policies and Actions, p. 12. 114 SLRTP, Policies and Actions, p. 134. 115 SLRTP, Policies and Actions, p. 119. 116 Transportation and Delaware’s Future, pp. 22-24. 117 TEA-21 User’s Guide: Making the Most of the New Transportation Bill, 1998. Surface Transportation Policy Project, Washington, D.C. pp. 8,53. 118 Statewide Long-Range Transportation Plan, Technical Report #1: System Assessment. Delaware Department of Transportation, Dover, DE. p. 20. 119 Statewide Long-Range Transportation Plan, Technical Report #1: System Assessment. Delaware Department of Transportation, Dover, DE. p. 14. Note: this latter figure com- pares unfavorably with the nationwide average of transit mode share, which is 5.3 percent. 120 Baker, Charles, Deputy Director, Wilmington Area Planning Council, personal communication, March 8, 1999. 121 Del. Code Ann. tit. 5, § 145. 122 See id. § 145(c). 123 See id. § 145(c).

chapter 3 49 50 protecting delaware’s natural heritage Chapter 4 Laws and Regulations Related to Species and Habitat Protection

egulatory mechanisms are among the most familiar It is in the best interest of the State to preserve and enhance governmental tools. In addition to its pollution the diversity and abundance of nongame fish and wildlife, Rcontrol and prevention laws, Delaware has a and to protect the habitat and natural areas harboring number of laws that offer opportunities to conserve bio- rare and vanishing species of fish, wildlife, plants and logical diversity, minimize the impacts from invasive areas of unusual scientific significance or having unusu- species, and protect specific ecosystem types. Many of al importance to the survival of Delaware’s native fish, these laws are uniquely protective while others are in wildlife and plants in their natural environments.4 need of strengthening. This chapter examines laws protecting Delaware’s The statute governing non-game wildlife and habitat wildlife, fish, and plants; laws regulating non-native species preservation also states that rare and endangered species are that pose a threat to Delaware’s biological diversity and “a public trust in need of active, protective management economy; laws protecting wetlands and other state waters; and that it is in the broad public interest to preserve and laws protecting water quality and quantity; laws promoting enhance such species.”5 Thus, the Division of Fish and sustainable agriculture and forestry; regulations governing Wildlife has broad authority to protect the state’s biological drainage activities; and laws addressing activities and diversity—including animals that are hunted and fished, resources in the coastal zone. animals that are officially “endangered,” species that are not hunted or fished (referred to as non-game wildlife), and wildlife that is at-risk of becoming threatened. THE PROTECTION OF FISH AND WILDLIFE GENERALLY PROTECTING AT-RISK SPECIES The Division of Fish and Wildlife is authorized and directed to “protect, manage and conserve all forms of protected Although the federal Endangered Species Act6 provides wildlife” in the state.1 In order to carry out this responsibil- legal protection to plants and animals once they are listed ity, the Division was given broad authority by the legisla- by the U.S. Fish and Wildlife Service (FWS) as threatened ture to promulgate rules and regulations, acquire land, or endangered, many states have adopted their own endan- issue licenses, collect fees for licenses, collect fines and gered species statutes to complement the federal program. make arrests for violation of game and fish laws, and fix Several components of state endangered species statutes and regulate hunting and fishing seasons.2 The Division are necessary to ensure that these laws are sufficiently pro- has the authority to establish wildlife refuges and to restrict tective. These include requirements to list species (endan- hunting, trapping and/or fishing on the refuges if “in its gered species, threatened species, and species of concern), judgment [it] may be deemed best to conserve any species prohibitions on the taking of listed species, requirements to of wildlife or fish.”3 develop and implement recovery plans, consultation Delaware state law provides broad authority to the requirements, and designation and protection of critical Division to protect and restore native biodiversity habitat for listed species. The most basic components of beyond species that are hunted and fished. The legisla- state acts are listing requirements and take provisions for ture found that: threatened and endangered species.

chapter 4 51 Protecting Animals While these regulations are an important step forward for Delaware is one of 43 states that have state endangered non-game species conservation, an earlier draft of the reg- species legislation.7 Delaware’s Endangered Species Act pro- ulations had extended the prohibition against non-com- hibits the importation, transportation, possession or sale of mercial collection to any non-game wildlife.17 This lan- any endangered species of fish or wildlife. Under the Act, guage would have provided protection to non-game state endangered species are designated in one of two ways wildlife, such as bats and chipmunks, that may currently — they may be designated by the Department of Natural be collected non-commercially.18 Resources and Environmental Control’s (DNREC) Because the state’s endangered species statute does not Division of Fish and Wildlife, or, at a minimum, the FWS’s require the Division to maintain a state endangered species list of endangered species serves as Delaware’s default state list, the last list developed by the Division was issued in list of species.8 the mid-1980s and is out-of-date. The finalized fishing Delaware’s endangered species law does not include a and hunting regulations confer some protection to state specific take prohibition, but it does prohibit possession of endangered species through the prohibition of commercial listed species. The Division does have the legal authority collection and possession of non-game, endangered, and to include on the state list those species that it considers rare species, so the Division is now working with the “seriously threatened with extinction.”9 Delaware’s state Delaware Natural Heritage Program (DNHP) to update endangered species law does not provide protection for the list of state endangered species.19 Since the adopted state “threatened” species that are not on the brink of regulations also confer protection on “rare” species, the extinction, nor does it address species of concern.10 Division is developing a list of at-risk species that will be Furthermore, Delaware’s law does not include a requirement for agency consultation, recovery plan development, or critical habitat designation. In August 1999, the Division of Fish and Wildlife issued final regulations concerning freshwater fishing and hunting.11 Several provisions in these regulations pertain to non-game and endangered species. For example, the regulations establish rewards for information regarding the killing of an endangered species or “a species classified as a threatened species in accordance with the [federal] Endangered Species Act of 1973.”12 The final regulations also address the collection or sale of non-game wildlife and set out prohibitions for commercial collection or possession of “North American non-game wildlife species.”13 These species are defined as “any native wildlife, including rare and endangered species, that are not commonly trapped, killed, captured or consumed, either for sport or profit.”14 The regulations also prohibit the collection, possession, or sale of federally endangered or threatened species.15 The wildlife and fishing regulations Osprey. also restrict the non-commercial collec- 16 tion of reptiles and amphibians. DNREC.

52 protecting delaware’s natural heritage protected under the regulations and is committed to PROTECTIONS TO CONTROL EXOTIC SPECIES updating the list at regular intervals defined by the DNHP’s informed opinion. As discussed earlier, the introduction and spread of non- native species is a significant threat to native biodiversity in Protecting Plants Delaware (See Ch. 1: Exotic Species). Several Delaware Many state endangered species statutes fail to provide the laws provide protection against non-native invasive, or same degree of protection to plants as they do animals. exotic, species. The majority of these provisions are admin- However, plants are afforded protection in 32 states, istered by the Plant Industries Section of the Delaware either by their inclusion in the definition of “species,” Department of Agriculture (DDA). Although most of through separate listing requirements for plants, or these programs were designed to protect agriculture from through a separate plant endangered species law. Delaware introductions of harmful species, they also provide some is among the minority of states that provides no state-level authority for DDA to protect other lands from the harmful legal protection for endangered or threatened plants.20 effects of invasive exotic species. DDA also works in cooperation with the U.S. Enhancing the Protection of At-Risk Species Department of Agriculture (USDA) to, among other The role of state endangered species laws, as well as the things, certify plants and plant products for export, process federal Endangered Species Act, is to provide a last line of permits for the interstate movement of plant pests, inspect defense against endangerment. Listing and providing pro- fields and facilities for agricultural biotechnology permits, tection for state threatened species and species of concern and conduct post-entry quarantine inspections. In addi- can provide critical protection for species that are at- tion, DDA’s Plant Industries section manages the state’s risk but not yet endangered. Such provisions also demon- National Agricultural Pest Information System database strate the important role states can play in conserving and develops and implements bio-control programs for regional, national, and global biodiversity. State laws that invasive noxious weeds, such as purple loosestrife. address species that are in decline, but not yet endangered in the state, generally offer some protections at the state Noxious Weed Control level and provide for monitoring by state agencies. Often, Delaware’s Noxious Weed Control law requires DDA to species in decline in a specific state are not targeted for designate as “noxious weeds” those species that adversely protection under the federal Endangered Species Act if affect or threaten agricultural production.21 DDA is the species has healthy populations elsewhere. Yet, responsible for designating species of weeds considered species decline in one area can be a front-line indicator noxious, and may then promulgate rules and regulations that human-induced impacts may be taking their toll. to control and eradicate the species.22 To date, DDA has Therefore, species protections offered through state laws identified only four species of agricultural pests: Johnson can often preempt the necessity of federal listings if the grass (Sorghum halepense), burcucumber (Sicyos angula- states take action to slow the loss and successfully provide tus), giant ragweed (Ambrosia trifida), and Canada thistle mechanisms for recovery. State endangered species (Cirsium arvense).23 programs play a critical role in identifying and respond- It is unlawful to import designated species of noxious ing to at-risk species before they become problems of weeds into Delaware, to knowingly contaminate “uninfest- national significance. ed land or roadways” with these weeds, and to allow these Several provisions should be added to Delaware’s weeds to set seed or reach a certain height.24 The law endangered species law if the state hopes to provide a sig- empowers DDA to “institute programs of control and nificant level of protection to native biodiversity. The eradication,”25 allows the Department to enter into agree- statute would be strengthened by the enactment of a list- ments with the counties to carry out eradication programs, ing requirement, rather than relying upon the federal list, allows the Department and counties to offer technical and and a take prohibition, as well as the addition of require- financial assistance to landowners,26 and imposes a duty on ments for recovery plan development, consultation, and landowners to take whatever measures as may be pre- critical habitat designation. In addition, the legislature scribed by the Department to control noxious weeds, such should amend the state Endangered Species Act to include as mowing, cultivating, or chemical treatment.27 DDA plants in the definition of species, or should adopt a sepa- provides landowners with specialized spray equipment rate act to cover plants. Finally, the state would be well free-of-charge for the application of herbicides to control served to provide protection and formal designation of noxious weeds.28 The Department has the authority to fine state threatened species and species of concern. individuals who are not in compliance with the law.29

chapter 4 53 Fines for noncompliance are placed into an account to be Under quarantine restrictions, the Department shall “pre- used by the Noxious Weed Control program.30 vent the movement, shipment or transportation of agricul- The Noxious Weed law establishes a Weed Advisory tural, forest, horticultural or any other material capable of Committee to advise the Secretary of DDA on noxious carrying the plant pest under restriction” and “detain for weed control issues in Delaware.31 Finally, the law requires official inspection any person, car, vessel, truck, wagon or the Department of Transportation to cut down and spray other conveyance suspected or known to carry any material noxious weeds along its rights-of-way.32 in violation of any quarantine restriction.” 41 Although the Plant Pest Law is clear about the authority Phragmites Control provided to DDA to deal with “dangerously injurious plant Administered by DNREC, the Giant Reed Grass Control pests” not currently in Delaware, it provides less clarity Law specifically targets the control and eradication of about how to address species already present and posing a phragmites (Phragmites australis).33 Similar to the Noxious problem in the state. For example, purple loosestrife is an Weed Control law, it creates a “control and eradication” invasive exotic species that is commonly found in wetlands program and directs DNREC to conduct investigations in Delaware. Prohibiting the movement or even sale of and studies to determine the extent of infestation, as well as purple loosestrife would provide only limited protections the plant’s effect on “wildlife and the environment.”34 The against its infestation or spread, as it has been well estab- law allows DNREC to enter into agreements with counties lished in the state for some time. As a result, placing such or other political subdivisions to control and eradicate species under quarantine and following the procedures that phragmites. DNREC may work with the counties to con- are triggered from that action would have little effect on duct studies, provide technical assistance and cost-share their control. funding to landowners, and develop a program for control- The Plant Pest Law would therefore benefit from an ling or eradicating phragmites on road rights-of-way, amendment enhancing the law’s clarity on how to deal drainage ditch banks, parks, playgrounds, and other public with invasive pest species that qualify as “dangerously inju- and private lands.35 rious plant pests” that are already established in the state Although DNREC’s phragmites control program, and for which quarantines will have no effective impact. administered by the Division of Fish and Wildlife, has had DDA could then formulate regulations to guide actions some ecological successes, there has not been overwhelming once a species is deemed a pest but when quarantine is not landowner interest in the cost-share assistance provided by an effective control measure.42 the Department (See Ch. 7: Phragmites Control). DNREC could enhance the effectiveness of the program by devoting Nursery Law more resources to landowner outreach and education. Delaware’s Nurseries and Nursery Stock Law requires all growers, landscapers, florists, operators of greenhouses, Plant Pest Law chain stores or garden centers, who distribute plants, plant Under Delaware’s Plant Pests Law, DDA is responsible for products or materials, nursery stock, or horticultural prod- researching “dangerously injurious plant pests,” defined as ucts, to obtain a nursery industry license from DDA that those pests that are “destructive to the agricultural, forest or must be renewed annually.43 The Department is required to horticultural interests of this State or the State’s general conduct annual inspections of nurseries and has the right environmental quality.”36 The law gives the state broad to conduct unannounced inspections.44 Licensed nurseries authority to prevent the spread of dangerously injurious must provide the agency with a list of the plants and plant plant pests and DDA is required to “issue orders for any materials they receive45 and are prohibited from possessing control measures it deems necessary” as long as the meth- plants or plant materials “infected with dangerously injuri- ods are consistent with the state’s pesticide statute.37 The ous plant pests.”46 As a result, DDA has the ability to deter- Department has the regulatory authority to notify public mine what invasive species are imported, grown, and dis- and private landowners of the existence of dangerously tributed in the state. injurious plant pests. Landowners are then required to Pest species are not limited to those that pose a potential implement control measures outlined by the agency or are harm to agricultural crops, but are characterized more subject to a fine.38 The Plant Pest Law can also be used by broadly as “any biotic agent (any living agent capable of DDA to control insects and animal species causing prob- reproducing itself) that is known to cause damage or harm lems to plants.39 to agriculture or the environment.”47 DDA can discourage DDA may establish and enforce quarantine restrictions nurseries from distributing exotic invasive species that have in areas infested with dangerously injurious plant pests.40 not been formally designated as plant pests. For example,

54 protecting delaware’s natural heritage Delaware nurseries had been distributing and selling purple defined as Canada thistle, quackgrass, and sorghum species loosestrife that they claimed was sterile. DDA found that (including Johnson grass, perennial sweet Sudan grass, the plants could in fact hybridize and become invasive. The sorghum almum, etc.) or other seeds the Department desig- agency asked every retailer and wholesaler to voluntary nates as prohibited in the public interest. “Restricted nox- remove the plants from their inventory, which they have ious weed seeds” are the seeds of eight specific plant species since done.48 defined in the law51 or other species that the Department Delaware reauthorized the state’s Nurseries and Nursery determines to be in the public interest to restrict.52 Stock law several years ago in an effort led by the National Plant Board — an organization of state plant regulatory Control of Exotic Mammals, Reptiles, officials — on behalf of all states to standardize state nurs- and Aquatic Species ery laws. Delaware has taken a lead role in this national Two Delaware laws, both administered by the Delaware effort. DDA is currently working to coordinate the efforts Department of Agriculture, Poultry and Animal Health of a Delaware Invasive Species Council (DISC) to establish Section, address the introduction and possession of exotic a formal list of plant pests (See Ch. 6: Native Species mammals, reptiles, and aquatic species. The Law on Protection Efforts). Once the list is complete, the agency Possession of Mammals or Reptiles Exotic to Delaware pro- will be able to require nurseries to refrain from distributing hibits the possession, sale, or exhibition of any wild live the species.49 mammal not native to Delaware without a permit.53 DDA conducts inspections to ensure that animals are properly Seed Law contained and are not at risk of escape. To date, the state Delaware’s Seed Law makes it illegal to sell or transport seed has not experienced significant problems with the release that contains “noxious weed seed.” In addition, “restricted and establishment of these exotic species in the wild.54 noxious weed seeds” are illegal to sell or transport in excess The Delaware Aquaculture Act states that aquaculture of a prescribed number.50 Prohibited noxious weeds are activities shall not promote the introduction of “non- indigenous” species that could harm indigenous plant or animal species.55 The Act also establishes a Delaware Aquaculture Council,56 and empowers DDA to promulgate regulations “to enhance and control aquaculture” within the state.57 DDA is authorized under the law to search vehicles and facilities, and to detain individuals if there is probable cause to believe that a violation of the Act has occurred.58 DDA maintains a list of aquacultural producers in the state and inspects these facilities to ensure that farm-raised fish are not introduced into waters of the state. There are approximately six small private producers in Delaware, most of which raise hybrid stripped bass and tilapia. To date, farm-raised fish from private facilities have not been intentionally or uninten- tionally introduced into the state’s waters.59

PROMOTING SUSTAINABLE AGRICULTURE AND FORESTRY

Controlling Pesticide Use Delaware’s pesticide applicator regulations60 provide DDA Swamp-pink, Killens Pond State Park. A federally threatened plant. with the authority to determine pesticide application methods to ensure that the application is not harmful to biodiversity. The statute states that DDA:

may prescribe the methods to be used in application of pesticides and may restrict or prohibit use of pesticides KEITH CLANCY, DNHP. KEITH CLANCY, DNHP.

chapter 4 55 in designated areas during specified periods of time to not, DDA Forest Service requires the landowner to hand prevent damage or injury…to plants…or nearby adja- plant seedlings on the site, thus constituting the “approved cent lands…fish and other aquatic life in waters in rea- reforestation plan.”71 sonable proximity to the areas to be treated.61 To ensure compliance with the Seed Tree Program, the Department is permitted to enter properties, issue orders, Thus, the statute explicitly allows DDA to utilize the and assess penalties in conjunction with the program.72 pesticide regulation to protect fish and wildlife, provided However, in practice the program is administered in a that the regulation occurs “in reasonable proximity to the cooperative manner. Most landowners, once informed of areas to be treated.” This does place some limits on the use the Program’s requirements, realize its worth to their long- of the law, but does not preclude it from being an effective term land value and choose to comply.73 While the Seed legal mechanism to curb pesticide use for the purpose of Tree Program is not aimed at protecting biodiversity, its biodiversity protection. provisions for reforestation can help maintain biologically valuable forest habitat on private lands. Forestry Laws And Regulations The Seed Tree Program does not, however, support the Delaware’s Forestry Law guides the administration of the full complement of native biota which are dependent upon state’s forestry programs for public and private forest land.62 Delaware’s upland deciduous forests. Under the Seed Tree The Forestry Law provides DDA Forest Service with the Program, mixed age and older growth deciduous forest authority to promulgate rules and regulations to protect lands and forested wetlands are typically replaced by even- forest lands and prevent forest fires.63 Specific actions that aged coniferous plantations. The resulting loss of mixed age the Department may take are also enumerated, including and older growth forests may be detrimental to some of the the distribution of seedlings and tree seeds to create wind state’s rarest species, such as the longtail salamander, which breaks or reforest denuded lands.64 The Department may has become extremely rare in Delaware (See Ch. 6: Forest also acquire, sell, and lease forest lands, set aside unique Management Conclusions). groves or natural features, and issue permits for activities on state forest lands.65 Forestry Sedimentation and Erosion Control Program Delaware’s Forestry Practices Erosion and Sedimentation Seed Tree Program Law74 is designed to protect surface waters from the adverse Delaware’s Seed Tree Program66 was enacted to encourage effects of pollution from sediment related to silvicultural the regeneration of specific native, commercially valuable activities (harvesting of timber, construction of roads and tree species. The program applies to all forested tracts of 10 trails for forest management, and preparation of property or more acres on which loblolly pine, pond pine, shortleaf for reforestation).75 Under the law, pollution is defined as pine or yellow-poplar individually or collectively constitute “alteration of the physical, chemical or biological properties 25 percent or more of the live trees on each acre. Under the of any waters of the State resulting from sediment deposi- program, when such lands are harvested for commercial tion” that may cause harm for a variety of reasons, includ- purposes and will remain forest land following the harvest, ing “the health of animals, fish or aquatic life.”76 If the DDA landowners are required to employ “natural regeneration.”67 Forest Service finds that a forest owner or operator is con- Natural regeneration consists of reserving at least six large, ducting silvicultural activities that cause pollution, the seed-bearing trees on each acre of forested land.68 These agency may provide advice on corrective measures or issue trees need not be reserved if at least 400 seedlings exist on special orders following a hearing. DDA Forest Service can each acre following the harvest.69 As an alternative to natur- order the owner/operator to cease immediately activities al regeneration, the landowner may reforest the land in causing pollution and order the implementation of correc- accordance with an “approved reforestation plan.”70 tive measures.77 DDA Forest Service can also assess penal- In reality, large seed trees are seldom reserved on cleared ties if an owner or operator fails or refuses to follow special woodlots. These trees are among the largest, most prof- orders issued by the agency.78 itable trees in a stand, and leaving them behind would The Forestry Practices Erosion and Sediment law also reduce the overall profitability of the harvest. Furthermore, authorizes the DDA Forest Service to “develop and publish it is often not economically viable for a logger to return to sediment control and stormwater management tech- the harvest site in two years to remove only the reserved niques,” provide technical assistance, administer education seed trees. Instead, a site is usually clearcut and the DDA programs, and conduct studies to help owners/operators Forest Service inspects the site one year after the harvest to comply with the law.79 In response, the DDA Forest Service assess whether there is sufficient seedling growth. If there is has developed a Forestry Best Management Practices

56 protecting delaware’s natural heritage (BMP) Manual in cooperation with landowners and the by public awareness. The DDA Forest Service is currently forest industry.80 The Manual provides guidelines to loggers examining ways to improve its outreach to private and other forest operators to minimize adverse water quali- landowners. These two programs should be at the center of ty impacts from logging operations, logging road construc- such efforts. tion, and drainage activities. While BMPs are not mandatory in Delaware, loggers and landowners must ensure that all forest management activities, including logging, take WETLAND LAWS AND REGULATIONS care not to cause pollution that might alter the physical, chemical, or biological properties of state waters in such a Section 404 of the federal Clean Water Act establishes a way that would cause harm to animals, fish, or aquatic life. 81 program to regulate the discharge of dredged and fill mate- Where water pollution results from logging, DDA may rial into waters of the United States. This program, which order corrective measures.82 covers activities that affect wetlands, regulates activities The Forestry Practices Erosion and Sediment Law is such as fills for development, construction of dams and lev- used to correct sediment and erosion control problems; ees, and conversion of wetlands to uplands for farming and however, the DDA Forest Service has rarely invoked the forestry. Landowners, private companies, or government law’s enforcement provisions.83 The DDA Forest Service agencies considering such activities that will impact wet- does, however, have the authority to ensure that forestry lands, are required to apply for a permit from the U.S. practices do not harm fish, wildlife, and aquatic resources. Army Corps of Engineers (Corps). The U.S. Environmental Delaware’s sedimentation and erosion control BMPs set a Protection Agency (EPA), U.S. Fish and Wildlife Service threshold for presumptively adequate performance under (FWS), and National Marine Fisheries Service (NMFS) the program, thus creating an incentive for private play a consultative roll. landowners and loggers to protect water resources. A permit is issued only after the applicant demonstrates In 1999, the Delaware forestry laws were revised. The that no practicable alternative exists that is less damaging DDA Forest Service now has the authority under the to the aquatic environment. Permittees must adhere to Forestry Practices and Erosion and Sediment Law, to estab- strict “sequencing guidelines” to demonstrate that the pro- lish a notification system whereby landowners may be posed activities are necessary. The sequencing guidelines required to submit notification to the agency prior to com- state that the permit applicant must take steps to avoid mencing planned silvicultural activities.84 The DDA Forest wetland impacts where practicable; minimize potential Service intends to develop rules and regulations in 2000 to impacts to wetlands; and compensate for any remaining guide the harvesting notification program.85 This new pro- unavoidable impacts through activities to restore or create vision provides the DDA Forest Service with a unique wetlands. Certain activities, such as on-going farming, opportunity to promote sustainable logging practices on ranching, and silviculture practices, are exempt from §404 private lands. The DDA Forest Service should make devel- permitting activities.87 opment of forest management plans mandatory under the DNREC has established a joint review process with the notification process. The agency should develop a notifica- Corps. Under joint review, DNREC meets monthly with tion and management plan review process to ensure that the Corps’s Philadelphia District to review individual landowners seeking approval for a planned harvest include §404 permit decisions. Utilizing its §401 certification in their plans appropriate conservation provisions, such as authority — a provision that allows a state to deny or maintaining forested riparian buffers, wildlife corridors, attach conditions to a federal permit if the permitted and a diversity of native tree species. If harvest and man- activity will violate state water quality standards — agement plans are not sufficiently protective of water quali- DNREC reviews each project on a case-by-case basis (See ty and native plants and animals, the service should reserve below: The Use of Section 401 to Protect Non-Tidal the option of approving, denying, or modifying the condi- Wetlands).88 DNREC review is intended to ensure that the tions of a cut. Maryland has implemented a similar system, proposed projects are consistent with water quality requiring a permit for all logging activities in that state. requirements and the goals of Delaware’s Coastal Zone Permits are only issued to loggers who can prove that they Act, and that they meet mitigation requirements.89 have received training in BMPs.86 Both the Seed Tree Program and the Sedimentation and Tidal Wetlands Protection Control Program are valuable tools in maintaining long- In 1973, one year following passage of the federal Clean term forest health and water quality. However, like many Water Act, the Delaware state legislature enacted a tidal forestry programs in Delaware, their effectiveness is limited wetland statute.90 Regulations guiding administration of

chapter 4 57 1% Other Wetlands resources. Although the state’s tidal wetland statute and Ponds and Lakes regulations have effectively protected many of Delaware’s tidal wetlands from outright loss through development, the 5% threat of encroaching urban development remains a particular concern. Urban 12% DNREC’s authority to limit small construction projects 54% that may have negative cumulative impacts remains unclear. DNREC should provide clarity regarding cumula- 28% tive impacts through establishment of agency guidance. Recently, DNREC succeeded in imposing some construc- Agriculture Other tion restrictions upon property owners in a 41-lot subdivi- Development sion, in which virtually every lot owner wished to construct s walkway over a tidal wetland. Such extensive construc- Causes of Inland Vegetated Wetland Losses in Deleware tion, while incrementally benign, has a very negative Source: Tiner, R.W. 1987. Mid-Atlantic wetlands – A disappearing natural treasure. U.S. cumulative impact upon the wetland.98 Fish and Wildlife Service and U.S. Environmental Protection Agency: Washington, D.C. Protection of Delaware’s tidal wetlands would be strengthened if the state’s tidal wetland law were amended the act were passed in 1976.91 The Wetlands Act was passed to afford additional protection to wetlands designated as in response to the finding that much of Delaware’s wet- being of “exceptional recreational or ecological signifi- lands had been “lost or despoiled by unregulated dredging, cance.” A designation by DNREC of such particularly dumping, filling and like activities and that the remaining valuable wetlands could trigger a heightened set of protec- wetlands of this state are in jeopardy of being lost or tions. Delaware’s surface water quality regulations already despoiled by these and other activities.”92 Although the have an “exceptional recreational or ecological significance” state recognized the threats to all of its wetland resources, (ERES) designation for particularly significant waters. the statute protects only tidal wetlands. These are defined as: The Wetlands Act declares that “coastal areas of Delaware are the most critical areas for the present and future quality Waters which are important, unique, or sensitive from of life in the State and that the preservation of the coastal a recreational and/or ecological perspective, but which wetlands is crucial to the protection of the natural environ- may or may not have excellent water quality. Such ment of these coastal areas.”93 The statute and accompany- waters shall normally have regional significance with ing regulations control the exploitation of wetlands by pro- recreation use…or have significance or widespread hibiting “dredging, draining, filling, bulkheading, [and] riverine, riparian, or wetland natural areas.99 construction of any kind...”94 unless a permit is obtained from DNREC. In addition, as a pre-condition to the ERES designation provides additional protections and issuance of a DNREC permit, the “county or municipality monitoring requirements for waterbodies, and a separate having jurisdiction over the wetlands must have approved set of criteria for determining the impacts of discharges.100 the activity in question by zoning procedures.”95 DNREC should support an amendment to the tidal wet- During review of permit applications, DNREC is lands statute to provide ERES designation to sensitive wet- required to consider the environmental impact of the activ- lands. Such a designation would provide additional protec- ity, the aesthetic effect on the area, the number of facilities tion to the state’s wetlands and reduce legal uncertainty required and their impacts on the area, the effect on neigh- regarding DNREC’s authority in this area. boring land uses, the permit’s consistency with state or Alternatively, wetlands themselves could be designated local plans, and the economic effects of the activity.96 under the surface water quality standard regulations as Activities exempted from the permitting process include waters of “exceptional recreational or ecological signifi- DNREC-approved mosquito control activities, construc- cance.” While the definition of ERES in the regulations tion of directional aids to navigation, construction of foot suggests that the designation could be used to protect wet- bridges, and grazing of domestic animals.97 lands of particular value, DNREC has not attempted to Although direct loss of Delaware’s tidal wetlands is a gain greater protection for wetlands through ERES desig- concern for biodiversity conservation, degradation of the nation. Substantial scientific justification is typically state’s remaining tidal wetlands could pose as much of a required to make such designations.101 Protecting wetlands threat to biodiversity as the outright destruction of these through surface water quality standard regulations would

58 protecting delaware’s natural heritage also have the added advantage of providing some protec- land environment,” and to establish an interagency consul- tion for both tidal and non-tidal wetlands. The drawback is tation policy among DNREC, DDA, the Delaware that protection under the surface water quality standards Economic Development Office (DEDO), and the Delaware would protect only the water quality of wetlands, not the Department of Transportation (DelDOT).105 wetlands themselves. Although a non-tidal freshwater wetland law was intro- Although Delaware’s tidal wetland statute has signifi- duced in the General Assembly in 1993, it failed to pass pri- cantly reduced wetland losses in the state, the law could marily due to opposition from the agricultural community.106 provide additional protections to wetlands through several Since several efforts to enact a freshwater wetlands law in changes. Tidal wetland protection would be enhanced by Delaware have failed over the past 25 years, the Division of prohibiting development not only within the wetland Water Resources continues to rely sparingly upon its §401 itself, but in a 50-foot buffer zone around the wetland. certification authority as a means to negotiate with appli- Although Delaware’s counties all have ordinances that are cants to reduce impacts of projects. Additionally, DNREC aimed at protecting a buffer zone around wetlands, the never established an interagency wetland consultation policy.107 ordinances have significant exemptions that reduce their effectiveness. Stronger state regulation of wetland buffer The Use of Section 401 to Protect Non-Tidal Wetlands areas would help to protect this threatened resource, while Under §401 of the Clean Water Act, states and tribes can building on an existing regulatory framework. review and approve, condition, or deny any federal permit or license (including Corps §404 permits, Nationwide Non-Tidal Wetlands Protection Permits for wetland activities, hydropower licenses, and In 1987, a study of Delaware’s wetland regulatory program wastewater treatment plant discharge permits) that might found that “Delaware’s current Wetlands Act, while doing a result in a discharge to state waters, including wetlands. good job of protecting coastal, tidal wetlands (including States may deny, certify, or condition permits if it is some freshwater wetlands along the state’s tidal rivers) simply believed that the activity will violate state surface water does not do a very good job of addressing equally important quality standards through chemical, physical, and biologi- non-tidal wetlands. Further, the current federal wetland per- cal impacts such as inundation of habitat, habitat destruc- mit program operated by the U.S. Army Corps of Engineers tion, impacts on fish migration, or loss of aquatic species as and EPA does not effectively protect non-tidal wetlands.”102 a result of habitat alterations. Many states rely upon §401 Following the 1987 report, a report issued by the certification as their primary mechanism to protect wet- National Wetlands Policy Forum in 1988, and in response lands. For example, Wisconsin has established water quali- to concern about freshwater wetlands losses expressed by ty standards for wetlands to enhance its ability to use §401 DNREC resource managers, Delaware Governor Michael certification to protect wetlands.108 Castle established the Governor’s Freshwater Wetlands Water quality standards are standards for surface waters Roundtable in 1988. Through Executive Order,103 the developed by states to protect existing water quality and Roundtable was charged with developing and recommend- defend against degradation of water quality. Water quality ing a workable definition for freshwater wetlands; recom- standards consist of at least three elements: designated ben- mending a freshwater wetlands conservation program for eficial uses of a waterbody; the water quality criteria neces- private landowners; and reporting on the financial ramifi- sary to protect those uses; and an antidegradation policy. cations of such a program. In June 1989, the Roundtable Designated beneficial uses are usually narrative and can issued its report, “Freshwater Wetlands in Delaware: A include such uses as: public water supply, propagation of Framework for Their Conservation, Protection, and fish and wildlife, recreation (high water quality uses); agri- Management.” The report endorsed a policy goal of no- cultural water use (a medium water quality use); or indus- net-loss of wetlands and recommended that the state trial water use and navigation (low water quality uses).109 develop a freshwater wetlands program with the goal of Water quality criteria can be either numeric or narrative. eventually assuming complete administration of the fed- To date, almost all states have narrative and numeric water eral §404 program.104 quality standards to protect human health and aquatic life The 1988 Executive Order also directed the state agen- from chemical contamination and particularly toxic pollu- cies to “minimize the adverse effects to freshwater wet- tion. However, few states have adopted numeric water lands,” to “avoid undertaking or providing financial assis- quality criteria to protect biological integrity, prevent exces- tance for construction located in freshwater wetlands that sive nutrient enrichment, or protect native species.110 will substantially degrade or destroy for long or permanent For a state to use §401 to approve, condition, or deny duration the use and function of an altered area as a wet- federal permits, it must base its decision on the effect the

chapter 4 59 proposed project will have with respect to achieving and applicant to negotiate with DNREC before the permit maintaining the state water quality standards approved by becomes effective. DNREC is currently about to use §401 EPA. EPA last reviewed Delaware’s water quality standards to deny the first §404 permit to fill an inter-dunal swale in 1990. Delaware’s standards were last revised in 1993. 111 along the coast. Until Delaware formally adopts regulations Although some states chose to develop water quality stan- to guide the use of §401, the Corps will likely continue its dards specifically for wetlands, others include wetlands in policy of incorporating the state recommendations for special their general standards. Delaware includes wetlands as conditions only at the federal agency’s discretion while issuing waters of the state in its existing water quality standards and provisional permits where the Corps does not agree.120 therefore has not established separate water quality stan- Although using §401 to approve, condition, or deny dards for wetlands for §401 decisions.112 However, adopting federal §404 wetland permits provides DNREC with some water quality standards specific to wetlands would strength- leverage to protect the state’s wetlands, without a state non- en the state’s ability to review and make §401 decisions on tidal wetlands law, several types of activities that impact federal permits, as well as review state permit applications.113 wetlands will continue to occur without any state review. DNREC drafted regulations in 1994-95 to implement a For example, because landowners do not need a §404 per- full-fledged §401-based wetland review program. This mit from the Corps for certain types of exempted activities would establish formal procedures and criteria for state (such as “construction or maintenance of farm ponds or review of wetlands-related projects subject to Corps of irrigation or drainage ditches”121 and “normal farming, silvi- Engineers §404 permitting.114 Although the Clean Water culture or ranching activities such as plowing, seeding, Act does not require states to develop implementing regula- minor drainage, and harvesting”),122 DNREC does not tions, many states that rely heavily upon §401 to regulate have the opportunity to deny or condition these activities wetlands have developed regulations to support the pro- through the §401 program even when the effects on water gram.115 For example, Oregon has developed state regula- quality or stream biota are significant. As a result, without tions to guide its §401-based regulatory program.116 a state non-tidal wetland law, these vital resources will con- The draft regulations developed by DNREC would give tinue to be lost through drainage and filling activities. Delaware the ability to analyze several aspects of a proposed project, including: its impact on existing or designated Comprehensive Conservation and Management uses; physical, chemical, and biological impacts; effects on Planning for Delaware’s Tidal and Non-tidal Wetlands hydrology, circulation patterns, and water movement; sec- In 1991, the Secretary of DNREC charged the Division of ondary impacts; and cumulative effects.117 In addition, Fish and Wildlife to lead development of a comprehensive DNREC could deny certification if the agency determined tidal wetlands conservation plan. Funding for the that all feasible alternatives were not evaluated and consid- “Comprehensive Conservation and Management Plan for ered and if the agency determined that the activity “will Delaware’s Tidal Wetlands” (CCMP) was provided by the adversely impact waters of the State which constitute an National Oceanic and Atmospheric Administration outstanding and irreplaceable ecological resource.”118 through a grant program created by the Coastal Zone DNREC’s draft language states that these resources include: Management Act.123 The Division of Fish and Wildlife developed the plan with input from a DNREC Working areas that are habitat for federal or state endangered Group and three advisory and review groups.124 Issued in or threatened species and other examples of outstand- 1994, the plan was developed to “maintain or increase the ing natural community types such as those found in quantity and quality of Delaware’s tidal wetlands base” National Wildlife Refuges, National Estuarine through the protection, conservation, restoration or Research Reserves, waters of Exceptional Recreational enhancement of tidal wetlands.125 The plan outlines over and Ecological Significance (ERES) as defined in the 100 “action steps” to address wetland conservation and State water quality standards, and wetlands dentified management needs and highlights 10 “priority action pro- by the Department as possessing outstanding or irre- jects” to be adopted by DNREC.126 placeable functions and values.119 The CCMP for tidal wetlands highlights several “lingering problems” in tidal wetland regulation: 1) abuse of exemptions To date, when DNREC has tried to condition §404 per- in wetlands statutes; 2) small-scale permitted activities having mits based on §401 certification, the Corps has held that if cumulative undesirable impacts; 3) omission of tidal wetland the conditions are too stringent, the conditions constitute areas on jurisdictional wetland maps; and 4) location in the a denial of the certification. In such cases, the Corps rou- field of map-based jurisdictional boundaries. tinely issues the applicant a provisional permit, forcing the In September 1997, DNREC’s Division of Water

60 protecting delaware’s natural heritage Resources completed “Delaware’s Non-tidal Wetlands tions. However, very often, replacement wetlands do not Comprehensive Conservation and Management Plan.” succeed in replacing the functions provided by natural sys- Funded through a grant from the EPA, the non-tidal tems. For example, a study conducted by the Ohio CCMP was developed to complement the CCMP for Environmental Protection Agency assessing how well com- Delaware’s tidal wetlands.127 Originally, the objective of the pensatory mitigation was working in the state found a non-tidal CCMP was to complement a state freshwater decrease in native plant diversity, and decreased flood water regulatory program then under consideration by the state retention, water quality improvement and wildlife habitat legislature. However, the proposed Freshwater Wetlands functions as compared to natural wetlands.131 Act failed to pass the state legislature in 1993 and 1994. The non-tidal CCMP then evolved to become a technical Compensatory Wetland Mitigation for Impacts reference document for resource planning and manage- from Transportation Projects ment professionals.128 When DelDOT conducts highway construction projects that impact wetlands, it compensates for those wetland Compensatory Wetland Mitigation losses through project-specific consolidated compensatory As discussed above, when wetland impacts are authorized mitigation. When DelDOT conducts compensatory miti- under §404 of the Clean Water Act, applicants must follow gation projects, it coordinates with DNREC to try to meet sequencing guidelines and demonstrate that impacts have common wetland restoration goals. For example, if been avoided and minimized. Applicants must then com- DNREC has identified a specific site in need of restora- pensate for any remaining unavoidable impacts.129 The fed- tion, DelDOT may try to direct compensatory mitigation eral government has stated a preference for mitigation to be projects to those areas. provided on-site, in-kind. That is, when impacts to a spe- DelDOT maintains an inventory of mitigation projects cific type of wetland (forested wetland or emergent non- it has conducted. The inventory identifies the project tidal wetland) occur on a site, that same wetland type name, permit agency and date of permit approval, type and should be created, restored, or enhanced on or adjacent to acreage of wetland impacts, type and ratio of mitigation the development site.130 required, location of mitigation site, monitoring requirements, and status of the project.132 To date, the compensatory mitigation projects undertaken by DelDOT have “Habitat creation has been limited required a 1:1 mitigation to loss ratio for tidal emergent to several small wetland creation wetlands and a 2:1 replacement ratio for forested wetlands. The state has also permitted some preservation and projects associated with mitigation enhancement in addition to restoration and wetland creation projects.133 of highway, residential, or com- For example, a large mitigation effort was undertaken by mercial development. Although DelDOT for wetland impacts from the first phase of construction of State Route 1 in October 1990. This led to there are exceptions, most of the 324 acres of wetlands mitigated on nine sites which include a variety of wetland types — forested, emergent, tidal and wetlands created by these projects non-tidal.134 Mitigation for the second phase of State Route tend to be small in size, isolated 1 was approved in November 1995. This project, which impacted 24 acres of non-forested emergent wetlands and from other wetland habitats, and 68 acres of forested wetlands, was mitigated with 25.0 acres of non-forested wetlands (1:1 ratio) and forested wetlands arguably of limited value as foraging (2:1 ratio). The mitigation project included 46 acres of habitat for most wading bird species.” forested wetland creation, 128.5 acres of preservation and 140.8 acres of enhancement. DelDOT estimates that in Source: Pea Patch Island Heronry Special Area Management Plan Core Group. March total, mitigation for the project impacts led to 161 acres of 1997. “Pea Patch Island Heronry Regional Special Area Management Plan: Issue 135 Characterization.” DNREC and NOAA: Dover, DE and Silver Spring, MD. P. 5-6. restoration at seven sites. DelDOT maintains that its compensatory mitigation projects have been successful from both a legal and an eco- Wetland mitigation — restoration, enhancement, or cre- logical perspective. The Department holds that none of its ation — seeks to replace lost wetland acreage and func- mitigation projects have failed and none of the sites have

chapter 4 61 been invaded by exotic species and become monotypic alternative and that the project’s unavoidable impacts phragmites stands. Some sites have, however, become fairly to aquatic resources have been minimized to the max- montotypic cattail wetlands.136 Unfortunately, there have imum extent practicable… not been any detailed studies conducted on the state’s mitigation projects and their ecological success (i.e., the degree The agreement requires that the wetland bank must become to which wetland functions have been replaced, the estab- a “functioning wetland prior to withdrawal of credits” and lishment of native versus non-native species, and the effects requires DelDOT to perform post-construction monitoring on wildlife diversity). Forested wetland compensatory miti- and maintenance for a minimum of five years. gation sites in particular take several decades to replace lost The Wetland Banking Task Force is required to deter- functions and values. As a result, these types of mitigation mine if a bank has become a “functioning wetland bank,” projects represent a significant temporal net loss and may define reporting requirements following the mandatory never compensate for the fragmentation effects on area- five-year monitoring and maintenance period, and develop sensitive wildlife.137 success criteria for determining whether or not individual banks have achieved success. Success criteria are defined as Delaware Mitigation Banking Policies “minimum standards, in terms of hydrology, soil condition, Wetland mitigation banking involves the restoration or vegetative community, etc.”142 creation of large wetland areas away from specific project The mitigation banking agreement states that “to the sites to mitigate a number of independent wetland conver- maximum extent possible, wetland banks should be located sions. Wetlands are created, restored, enhanced, or on in the same watershed” as the anticipated wetland impacts. occasion preserved, to generate compensation credits to The agreement defines 41 watersheds in the state. allow future impacts to other wetlands sites.138 Wetland DelDOT believes that this requirement has been an mitigation banking has gained acceptance due to the belief impediment to the establishment of banks in the state since that it may provide greater benefits than on-site, project- it is highly unlikely that Delaware would be able to develop specific compensatory mitigation.139 Indeed, a recent 41 individual mitigation banks to represent each of the Delaware report stated that mitigation banking may state’s watersheds. To date, no individual banks have been “achieve larger, more ecologically beneficial projects rather approved by the Task Force.143 than small individual compensation projects which main- DelDOT is currently seeking approval from the Task tain lower ecological value and higher failure rates.”140 In Force for two mitigation banks. One proposed bank, Great order to embark on wetland mitigation banking projects, Cypress Swamp, is a wetland that had been severely degrad- state agencies must enter into an agreement with the ed due to logging, ditching, and draining. The Task Force Corps and other federal wetland agencies. has determined that once approved, the bank will be eligible to accept credits for projects with impacts to non-tidal DelDOT’s Mitigation Banking Policy forested wetlands and other non-tidal wetland impacts on a DelDOT has had a wetland mitigation banking policy case-by-case basis. The bank would serve projects in Sussex since entering into a memorandum of agreement in 1994. County, and the current conditions stipulate that priority The agreement was signed by the U.S. Army Corps of for using the bank would be to mitigate for small impact Engineers, EPA, Federal Highway Administration, projects of one acre or less.144 The Wetland Banking Task DelDOT, DNREC, NMFS, and FWS.141 Together, these Force has required DelDOT to conduct one year of moni- agencies constitute the Delaware Wetland Banking Task toring at the bank prior to credit withdrawal. Force, although DelDOT is a non-voting member. The The Nonesuch Creek bank would serve New Castle Task Force evaluates and approves by consensus proposed County north of the Chesapeake & Delaware Canal. It wetland bank sites for DelDOT use on a case-by-case basis. would accept credits for impacts to non-tidal and tidal The banking agreement states that: emergent wetland impacts. Again, the bank would show a preference for small impacts of less than one acre.145 availability of a wetland bank should not be perceived DelDOT feels that New Castle County still needs to estab- by a project proponent as a substitute for rigorous lish a forested wetland mitigation bank in order to provide alternatives analysis or as a mechanism to ensure credits for impacts to this wetland type.146 approval of a project. Prior to considering use of a DelDOT had hoped that mitigation banking could pro- wetland bank to offset project impacts, it must be vide an opportunity to restore or create wetland habitats conclusively demonstrated that the project design/ that are extirpated or threatened in the state, such as location represents the least damaging practicable Atlantic white cedar swamps and bald cypress swamps.

62 protecting delaware’s natural heritage However, federal wetland mitigation banking guidance Delaware’s wetland protection authorities are in need of stipulates a preference for in-kind replacement — replace- strengthening. Serious efforts have been made over the past ment of emergent non-tidal wetlands with emergent non- 25 years to extend additional protections to these valuable tidal wetlands rather than with forested non-tidal wetlands. resources. However, many of these efforts have met with The Department feels that this policy creates a disincentive great resistence. If Delaware is to address the need for to restore extirpated wetland types.147 However, in general, greater wetland protection, it is necessary to secure the sup- mitigation banking was established to ensure that when port of specific initiatives early on in the process and from permits are issued for wetland losses, the functions and val- a variety of interest groups. A concise set of recommenda- ues of that specific wetland type are replaced in order to tions for enhancing the existing regulatory tools for wet- achieve the national goal of no-net-loss. land conservation should include drafting of an amendment to the state tidal wetlands law to designate wetlands DNREC’s Mitigation Banking Policy of “exceptional recreational or ecological significance” and DNREC does not currently have a state law or policy guid- an amendment to the state tidal wetlands law to provide ing mitigation banking activities. DNREC developed a protection for buffer areas adjacent to tidal wetlands. Local mitigation banking agreement in cooperation with a vari- governments should adopt the appropriate tools to protect ety of federal and state agencies, but approval of the agree- critical wetland areas. The state should adopt a non-tidal ment has been held up for about one-and-a-half years due wetlands law. DNREC should approve regulations guiding to disagreement on specific aspects of the document. Since a §401 program for approving, conditioning, or denying DNREC has strong interest in establishing a bank, the §404 wetlands permits. DNREC should adopt water quali- agreement will likely be revisited in the near future. In the ty standards specific to wetlands. Finally, DelDOT should meantime, DNREC banks can be established under the provide funds to sponsor an independent research team to DelDOT mitigation banking agreement. However, assess the ecological and legal success of the state’s compen- DNREC prefers that banks be established under a agree- satory mitigation projects. ment under its own control.148 DNREC has identified potential sites for future mitigation banking projects in different regions of the state.149 SUBAQUEOUS LANDS REGULATIONS

The Future of Wetlands Conservation in Delaware Delaware’s subaqueous lands statute151 regulates the lands In 1995, DNREC turned its focus to the Whole Basin under the tidal and navigable waters of Delaware. The Initiative (See Ch. 6: Whole Basin Initiative), which statute and its implementing regulations provide an impor- requires assessment, monitoring and management of natur- tant guard against development and construction activities al resources within a basin or watershed context.150 This that have the potential to disrupt Delaware’s aquatic new priority has possibly contributed to a diminished focus ecosystems. The statute is intended to bolster the federal on implementing policy and management recommenda- Clean Water Act, by vesting state agencies in Delaware tions outlined in both the tidal and non-tidal CCMPs. The with authority to regulate activities in subaqueous lands. wetland CCMPs represent an ecosystem-driven conservation The subaqueous lands law requires a permit for proposed and management focus, while the Whole Basin Initiative activities in subaqueous lands, such as dredging, draining, represents a geographically based management agenda. or filling, and construction of boat ramps, bulkheads, rip- However, the tidal and non-tidal wetlands CCMPs offer rap, or other shoreline stabilization structures.152 One goal solid recommendations for improving existing policies and of the subaqueous lands statute has been to encourage adopting new tools for ensuring the long-term conserva- more environmentally benign means of shoreline stabilization and restoration of Delaware’s remaining wetland tion than the construction of bulkheads. In 1998, approxi- resources. The Divisions of Fish and Wildlife and Water mately 11,000 feet of eroding shoreline was stabilized; 72 Resources should develop a unified policy document — percent was stabilized using stone rip-rap, 20 percent by combining the findings of both CCMPs — to guide the vegetation, and 8 percent by bulkheads. In addition, development of future regulatory, policy, and management DNREC is continuing to promote the use of vegetation as tools, as well as voluntary incentive programs to ensure the a shoreline stabilization method.153 protection of Delaware’s wetland resources. Although both However, the statute only applies to “navigable waters,” divisions have expressed interest in such an approach, which means “a river, stream, lake, bay or inlet capable or DNREC has yet to make development of a unified wetland susceptible of having been or being used for transport of policy an agency priority. useful commerce.”154 DNREC has been considering seek-

chapter 4 63 ing an amendment of the statute eliminating the phrase “navigable water,” thereby removing the requirement that the water be capable of supporting commerce before it can be regulated.155 The statute could define “navigable waters” in terms of the Clean Water Act definition, which inter- prets the term more broadly. Delaware’s subaqueous lands law would provide substantially enhanced protections to aquatic species and water quality if the statute were amended.

DRAINAGE ACTIVITIES IN DELAWARE

It is estimated that about 90 percent of Delaware’s natural streams and rivers have been modified, usually for agricultural drainage purposes.156 These activities have significantly altered the state’s aquatic habitats, water-dependent species, and surrounding upland environments (See Ch. 1: Water Quality Impairment). Given that 80 percent of Delaware’s threatened and endangered species are DNHP. Drainage ditch. wetland-dependent, the continued destruction of wetlands from drainage ditch activity poses a landowners forming the tax ditch. Although Delaware’s tax significant threat to biological diversity in the state.157 ditch law does not address biological diversity directly, by Although agriculture affects biological diversity in many subsidizing the practice of agricultural drainage ditching164 ways, both positively and negatively, the development and and exempting the practice from numerous environmental maintenance of agricultural drainage ditches in Delaware statutes and regulations, ditching continues to impact bio- arguably has the most significant impact on the state’s logical diversity in Delaware. In more recent years, DNREC plants, animals, and ecosystems. Drainage ditches are obvi- has diligently pursued techniques, practices and policies that ously vital to agriculture, especially in a wet, low-lying state have reduced the effects of ditching on biological diversity. such as Delaware. Approximately 5,000 miles of drainage These are efforts that are well worth continuing. ditches exist in Delaware, of which 2,000 are tax ditches.158 Drainage ditches are sometimes created by simply dig- Tax ditches are quasi-corporate, quasi-public entities that ging up fresh ground to promote drainage of wet areas. are created under state statute and exercise some corporate However, they are often created by removing riparian vege- and governmental powers. The Delaware tax ditch law pro- tation from the banks and bottoms of existing streams to vides that drainage ditches can be created as public enti- increase the volume of water that can be conveyed. These ties159 with the power to levy taxes,160 incur debt161 and measures unfortunately have negative consequences for acquire property.162 Financing for construction of tax ditches water quality and biological diversity associated with in- varies, and typically includes state and federal funding163 and stream and riparian habitat. Not only are aquatic species a statutorily-specified self-taxing mechanism involving the directly harmed through the establishment and mainte-

64 protecting delaware’s natural heritage nance of ditches, but ditching significantly lowers the water In the absence of a state non-tidal wetlands law, the only quality of once natural streams. In addition, ditching con- legal check on drainage ditching is the federal Clean Water tributes to biodiversity loss through the removal of riparian Act, which still may allow a wetland to be drained under vegetation. This vegetation filters nutrients and agricultural U.S. Army Corps of Engineers regulations. Furthermore, compounds thereby reducing their concentration in the most of Delaware’s ditching activities, if they can be char- state’s water, provides habitat for many birds and other acterized as “maintenance,” are exempt from Clean Water forms of wildlife, and prevents excessive fluctuations in Act permitting requirements if they fall within a safe har- water temperature and dissolved oxygen.165 bor established by EPA by way of a guidance letter. In Perhaps the most significant way that tax ditches affect 1995, EPA conducted a survey of Delaware drainage ditch- biodiversity is through their effect on wetlands. Delaware’s es to determine, for regulatory purposes, which of the tax ditch law, along with other agricultural subsidies, state’s waterbodies met the legal definition of a “stream,” helped spur construction of drainage ditches, which has which would be subject to permitting requirements under been the primary cause of loss of Delaware’s freshwater §404 of the Clean Water Act, which met the legal defini- wetlands. Approximately 38,000 acres of freshwater wet- tion of a “ditch,” and which would be exempt from federal lands, or 21 percent of Delaware’s original wetland acreage, permitting requirements. EPA determined that for §404 were lost between the mid-1950s and mid-1980s. regulatory purposes, all of the waterways in Delaware Agricultural practices, primarily ditching, were responsible basins of less than 800 acres are to be considered ditches, for 82 percent of these losses.166 Although ditching prac- thereby exempting them from permitting requirements.167 tices have improved since the mid-1980s, new ditches are Thus, wetlands in drainage basins of less than 800 acres are still being constructed and wetlands are still being drained not protected under the §404 regulatory provisions, because DNREC generally considers many ditch recon- whether the waterway is a natural stream, wetland, or a structions to be “maintenance” activities for existing ditch- ditch. As a result, wetlands in Delaware are still occasional- es, which are exempt from most environmental reviews. ly drained without federal regulatory oversight.

Achieving Water Management, Wildlife, and Wetland Goals on Agricultural Lands

The Delaware Division of Soil and Water mowing. The channelization project has maintained Conservation has embarked upon several on-the- many of the habitat, buffer and canopy functions ground demonstration projects to educate landown- provided by the natural stream-side vegetative com- ers about drainage practices that can achieve drainage munity. The second “natural” channel involved and agricultural goals while protecting wetlands, restoration of an historic, but abandoned, drainage wildlife, and water quality. For example, at the 250- structure. The channel was shaped to replicate natur- acre Pratt Farm, DNREC has worked with the al conditions and will be planted with a mixture of landowner to construct a 2,500-foot drainage chan- vegetation that can provide wildlife and nutrient fil- nel, a 1,200-foot channel that simulates natural tration benefits. The wetland restoration project will meanders, and a wetland restoration project. The tra- restore shallow freshwater wetlands that can provide ditional drainage channel was performed with tech- water quality filtration benefits. In addition, the niques to minimize disturbance to forested areas and demonstration project will have an education compo- hedgerows. Trees and shrubs that could be avoided nent — 1,200 trees, shrubs, and other emergent wet- during channel construction were maintained and land plants will be planted by a variety of volunteers, hand mowing was used to minimize mechanical high school students, and others.

Source: Barthelmeh, Thomas. November 1998. “Final Report for FY 97 NPS–Project ‘Pratt Farm’” Memorandum to Nancy Goggin; Barthelmeh, Thomas. “Pratt Farm Water Management/Wetland Restoration Demonstration/Education Project.” Division of Soil and Water Conservation, DNREC.

chapter 4 65 Most ditching operations are also explicitly exempt DNREC could require the inclusion of more stringent from many of Delaware’s environmental laws. As men- measures in soil and water conservation plans that require tioned below (See below: Sedimentation and Erosion farmers to adopt much better management practices to Control Requirements), Delaware’s Erosion and guard against further nutrient loading. DNREC could also Sediment Control statute168 and regulations are not adopt enforceable obligations against non-point source pol- applicable to “agricultural land management practices” luters in the Total Maximum Daily Load program (See that are operating under a valid soil and water conserva- below: Sedimentation and Erosion Control Requirements). tion plan.169 Although Delaware regulates subaqueous Finally, the state’s various agencies and organizations could lands,170 this statute does not apply to the maintenance, encourage the establishment of riparian buffer zones reconstruction, or retrofitting work performed along any around drainage ditches on agricultural lands through existing non-tidal ditch, stream, or culvert, provided that incentive and cost-share programs. the maintenance activities are consistent with best man- Subsequent to a 1989 Executive Order by then- agement practices set forth in the Erosion and Sediment Governor Michael Castle,178 DNREC developed a list of Control Handbook.171 The Erosion and Sediment environmental practices that minimize the impacts of Control Handbook sets forth the engineering design drainage activities, a list that has become accepted as the specifications for structures that might be constructed in list of best management practices for drainage ditching in furtherance of agricultural activities; it generally does not Delaware. The list includes practices such as minimizing address biological or habitat concerns. clearing widths, relocating ditches around ecologically sen- Although Delaware’s water pollution law prohibits the sitive areas, performing construction on only one side, and discharge of a pollutant into the waters of the state with- saving the trees in the construction zone. This list of prac- out a permit,172 the regulations exempt from permitting tices provides a good start toward reducing the impacts of requirements discharges associated with “[e]xisting ditch- ditching on aquatic habitat and biodiversity, but additional es used for the express purposes of draining water from innovative practices should be included on the list. the surface of the land,” and “[u]ncontaminated One of the most significant ways drainage ditches can be stormwater discharge.”173 These exemptions play a critical made less harmful to biological diversity is to maintain role in the degradation of water quality in Delaware. riparian buffers. Riparian buffers are beneficial to biological Drainage ditches in Delaware, like natural streams, are diversity in several ways: they capture nutrients, sediment, subject to state water quality standards, since the water and agricultural chemicals and prevent them from ulti- quality standards apply to “all waters of the state”174 mately reaching rivers or streams; they shade streams, except for certain low-flow situations175 and special thereby protecting in-stream habitat;179 and they provide DNREC-designated “regulatory mixing zones.”176 As a habitat for riparian species. Riparian buffers planted with practical matter, however, waterbodies routinely fail these fast-growing and deep-rooted species such as poplars are standards.177 The standards might be used to compel the most effective at protecting water quality.180 Delaware farmers to adopt more environmentally benign tax ditch has recently been approved for participation in the USDA’s practices, but the exemption prevents DNREC from reg- Conservation Reserve Enhancement Program (See Ch. 7: ulating practices that contribute to water quality degra- Conservation Reserve Enhancement Program), which gives dation. DNREC should consider modifying these the state access to federal funding to assist farmers with exemptions if the state is to meet its water quality stan- costs of establishing and maintaining riparian buffers.181 dards in the future. Delaware should now aggressively make use of these federal funds to encourage farmers to construct and maintain Lessening the Impact of Drainage Activities riparian buffers adjacent to drainage ditches. The impact of Delaware’s tax ditch law has been exacerbat- Construction of riparian buffers and other conservation ed by DNREC’s own propensity to construe most ditching practices may also be aided by the tax ditch law itself. A activities as “maintenance” or “relocation” activities. The group of landowners with joint ownership interests in a negative environmental effects of agricultural tax ditches marsh known as “Thousand Acre Marsh,” ended years of could be ameliorated through several different mecha- disagreement with DNREC over their desire to use the nisms. DNREC could devote more resources to the §401 tax ditch law to manage the marsh for conservation pur- certification process to ensure that drainage activities do poses rather than drainage. A Delaware Superior Court not violate the state’s water quality standards. Agricultural held, however, that the tax ditch law, as then written, did exemptions could be removed from Delaware’s subaqueous not allow its use for purposes other than drainage. The lands statute and water pollution control regulations, and law has since been amended, and while the Thousand

66 protecting delaware’s natural heritage Acre Marsh owners have not yet resurrected their request, DNREC and the county conservation districts should use the tax ditch law now allows landowners to achieve their these soil and water conservation plans to compel farmers to conservation goals. adopt best management practices to reduce nutrient pollution. The Erosion and Sediment Control statute also provides that all landowners engaged in land-disturbing activities WATER QUALITY REGULATION must have in place an approved sediment and stormwater management plan that complies with the Erosion and Sedimentation and Erosion Control Requirements Sediment Control Handbook.188 The handbook is essential- Most of Delaware’s non-point source pollution is caused by ly a manual of technical specifications of commonly erect- either sedimentation and erosion from urbanization or ed erosion control structures. Although very sophisticated nutrient loading from agricultural activities (See Ch. 1: technically, the handbook could be improved. As currently Water Quality Impairment). written, it does not provide guidance on how to reduce Sediment and soil erosion pose problems for Delaware’s impacts to biological diversity (e.g., leave branches and waters not only because of the direct effect of the sediments snags in streams or allow streams to meander). DNREC is themselves on water quality — reducing water clarity and currently contemplating the inclusion of chemical and pol- directly harming aquatic life — but also because sediments lution control measures in the handbook.189 DNREC carry with them nutrients and chemicals that are toxic to should consider specifying practices that incorporate objec- aquatic life or disturb the natural chemical and biological tives of water quality protection, riparian buffer conserva- balance of waterways. Nutrient loading is a particular prob- tion, and general biological diversity concerns. Continuing lem in southern Delaware.182 Excessive levels of phospho- to recognize that the sedimentation problem is linked to rous and nitrogen lead to nuisance plant and algae growth, nutrient loading and water toxicity issues will be vital to low water clarity and lowered levels of dissolved oxygen in Delaware’s continued efforts to restore water quality. the state’s waterbodies. Controlling nutrient loading and sedimentation simulta- Delaware now faces legal pressure to solve its sedimenta- neously may require a great deal of interagency cooperation and nutrient loading problems. Delaware is one of tion. Apart from controlling the substances that go into many states that are subject to a consent decree that requires soils that make sedimentation and soil erosion harmful, the state to develop a list of “impaired” waterways and estab- Delaware must control the land use practices — such as lish Total Maximum Daily Load (TMDL) standards for each road building and other construction activities related to of those waterways.183 The consent decree requires Delaware sprawl development — that are the source of sedimentation to establish TMDLs for all pollutants by December 15, and soil erosion. This effort would require the coordination 2006. The consent decree also requires EPA to review of many agencies to curb development that leads to severe Delaware’s list of impaired waters and its plan for meeting sedimentation and erosion problems in the northern part TMDL standards. EPA must determine whether Delaware of the state. If Delaware is to effectively address water qual- has assembled and evaluated all existing and readily available ity problems stemming from erosion and sedimentation, chemical, physical, and biological water quality-related data both agriculture and land use practices must be addressed. for waters violating applicable water quality standards. Regulation of agricultural practices and land use policies should DNREC’s Division of Water Resources has developed a list seek to stem erosion and sedimentation and protect against the of impaired waterways and a time line for meeting TMDL conversion of agricultural lands to sprawl development. standards.184 DNREC must now begin the difficult task of DNREC must also move beyond voluntary measures determining how it will meet the TMDL standards. and regulatory incentives to effectuate policies to reduce Delaware has an Erosion and Sediment Control nutrient loading and sedimentation, particularly in light of statute185 and regulations that apply to “land-disturbing Delaware’s mandate under the TMDL consent decree. activities” of greater than 5,000 square feet. The program is Reducing non-point source pollution from agriculture will administered by DNREC’s Division of Soil and Water require inducing farmers to adopt “best management prac- Conservation. However, “agricultural land management tices.” At this point, it is unclear how this will be accom- practices”186 are exempt if a valid soil and water conserva- plished. Although DNREC may have sufficient leverage tion plan is adopted. Conservation plans are developed by with its permitting powers and with the soil and water con- the county-level soil conservation districts in conjunction servation plan development process,190 some regulatory pro- with USDA personnel and individual farmers, and typical- visions will be required. The consent decree provides politi- ly set forth some operation-specific management practices cal and legal incentives for Delaware agencies to implement that the landowner will be expected to implement.187 bold measures to reduce nutrient loading and sedimenta-

chapter 4 67 tion problems that have become a serious and long-term poultry producers’ operating permits on their proper dis- problem for Delaware’s plants, animals, and ecosystems. posal of manure.199 Virginia passed legislation that would require all farmers with 20,000 or more chickens or Seeking Solutions for Nutrient Control turkeys to implement phosphorous-based nutrient man- To reduce nutrient loading, Delaware has typically relied agement plans to store and manage manure.200 Signifi- upon an incentive-based approach rather than a regulatory cantly, the Virginia law also requires the chicken proces- approach. For example, DNREC has used a federal revolv- sors, who actually own the chickens, to help the farmers ing loan fund to provide poultry producers with subsidies with compliance.201 In light of the contribution of nutri- to encourage them to construct manure storage shelters ents from poultry production in Delaware, the commis- and purchase equipment for transferring manure to drier sion should move forward on adopting additional regula- upland areas. DNREC has loaned over $20 million dollars tory tools for controlling nutrient run-off from poultry to farmers, typically in loans of twenty to thirty thousand facilities. Among other measures, the commission should dollars each.191 seriously consider restrictions on time-of-year manure- Several other voluntary nutrient control programs have spreading to help control nutrient loading. been successful, such as federal cost-share programs that Although Delaware’s cattle and swine industries account promote conservation tillage.192 Currently, over 50 percent for much less nutrient loading than poultry, they too have of Delaware cropland is under some type of conservation the potential to contribute to harmful nutrient loading tillage.193 However, some forms of conservation tillage may problems. Animal waste regulation should thus not single exacerbate the nutrient loading problem. For example, out the poultry industry; rather, it should be more gener- some crop rotation strategies require farmers to spread ally directed at all animal wastes. The Virginia legislation, manure on fallow fields in winter when the nutrients are for example, also covers hog and cow manure.202 In light of not actively taken up by plants. This may lead to excess the need for a long-term strategy, DNREC should devote nutrient stormwater runoff.194 If nutrient reduction is a resources to identifying economically and environmentally goal, consideration should be taken when advocating spe- sound ways to dispose of poultry manure as a value-added cific conservation tillage practices. product for distribution outside of sensitive watersheds.203 In addition, nutrient enrichment of soils over time has led to nutrient saturation. These nutrients now contribute Septic System Regulations to nutrient loading by leaching into groundwater. It is esti- Poorly functioning or leaking septic tanks can contribute mated that 75 percent of nutrient loading comes from base to already severe nutrient saturation of Delaware’s soils. flow, or the flow of groundwater into a stream.195 Even if Septics are on-site sewage treatment systems that require Delaware completely eliminated nutrient production, base relatively large lot sizes to accommodate the area needed flow nutrient loading would continue to occur for 20 to 50 for effective absorption. Approximately 20 percent of years.196 Therefore, any strategies to reduce nutrient loading Delaware’s population is serviced by on-site wastewater sys- must plan many years into the future. tems, or septic tanks.204 Between 75,000 - 80,000 septic Acknowledging that voluntary measures have not tanks in the state produce an average of 300 gallons of achieved significant reductions in nutrient input to wastewater every day. Delaware’s waterbodies, the state has begun considering Delaware’s regulations governing the construction of mandatory regulations. A task force convened by Delaware septic tanks are generally very sophisticated. The construc- Governor Thomas Carper has developed a nutrient man- tion parameters are dictated by the soil present on the site, agement plan, with particular attention being paid to the rather than by one-size-fits-all prescriptive requirements. regulation of poultry production and manure handling This is necessary given the variety of Delaware’s soils and procedures. In June, 1999, Governor Carper signed into their varying ability to effectively filter nutrients associated law a nutrient management law,197 which calls for nutrient with wastewater. management regulations to be written by a 15-member Delaware’s septic tank construction regulations dictate “nutrient management commission” that includes nine rep- rather large minimum lot size requirements in areas where resentatives from the agricultural sector.198 Delawareans septic tanks can be used in-lieu of centralized sewage treat- have reason to be concerned with the nutrient management. The lot size requirement ameliorates water quality ment law, especially when comparing it to comparable problems that may occur from leaching due to multiple laws in neighboring states. Maryland has placed restric- septic tank failures. It also gives local planning agencies a tions on the amount of manure spread as fertilizer, and is tool to contain sprawl. Planners can direct development currently proposing regulations that would condition towards areas that have existing centralized sewage treat-

68 protecting delaware’s natural heritage ment lines by instituting density requirements that man- and possibly should extend the use of revolving loan funds date smaller lots (which would preclude the use of septic to certain routine maintenance activities, such as periodi- systems). On the other hand, policies such as the regula- cally pumping out tanks for disposal. Although potentially tion of sewage treatment facilities under Coastal Zone Act costly in the short-term, such a program could be cost- regulations may work in favor of large lot development effective: “[p]reventative maintenance is worth the politi- with septic tanks over compact development connected to cal effort and individual cost for public authorities to centralized sewage systems. require it, and the reluctance of local governments to take Although DNREC has a good understanding of where such action is an expensive choice in the long run, consid- septic systems are located, the agency lacks sufficient data on ering the very large costs involved in correcting situations the failure rate of the systems. A thorough evaluation of the of widespread system failure.”207 state’s septic tank failure rate would provide managers with valuable information. Such a study would enable them to evaluate the water quality effects of septic tanks, as well as WATER QUANTITY REGULATIONS the relative contribution of septic tanks to the state’s nutrient loading problems as compared to the contribution from agri- Streamflow plays a critical role in maintaining water quali- cultural activities. In addition, a study would enhance the ty, salinity balance, and habitat quality for aquatic species. state’s ability to effectively educate homeowners with regard Anadromous fish, such as striped bass, and freshwater fish, to proper septic tank operation and maintenance. Funding such as smallmouth bass, are dependent upon sufficient should be made available to DNREC to perform a compre- water flow for habitat. Low flows often cause surface water hensive study on the failure rate of septic systems and the quality violations.208 The Delaware River Basin resulting impacts on water quality. Commission (DRBC) has had the most direct responsibili- The majority of septic users are generally unaware of ty to ensure adequate flow levels, and has been fairly effec- routine septic tank maintenance procedures and operate tive at coordinating water withdrawals among the member tanks until they fail. (Septic tanks should be pumped out states of Delaware, New Jersey, Pennsylvania, and New every 3-5 years.)205 Mandatory period septic tank pumping York. The Commission has also been fairly effective at coor- is required in some parts of the country, particularly in dinating environmental regulation among the member states. areas adjacent to sensitive waterbodies.206 Delaware does Delaware has been, like the other member states of the not impose any such requirements or provide incentives to DRBC, fairly stringent in regulating and implementing landowners to maintain septic systems. Such a short-sight- water conservation measures. For example, Delaware has ed view of an expensive capital asset is encouraged by the been a leader through its requirements for ultra-low-flow subsidization of septic tank construction. plumbing and for Delaware water utilities to engage in Delaware subsidizes the construction of septic tanks by integrated resource planning.209 Streamflow has nevertheless providing homeowners with funding from the federal become a problem in some areas of the state. A joint task revolving loan fund to finance construction. EPA’s Office force recommended that a minimum flow standard for water of Wastewater Management administers a federal revolv- withdrawals of a sufficient size be instituted in the Christina ing loan fund program to provide states with funds to River Basin in Northern New Castle County, the area mak- address water-quality problems. Traditionally used to ing the most water withdrawals from rivers and streams.210 upgrade sewage treatment facilities, the state revolving Unlike the other member states of the DRBC, Delaware loan fund program has been used by states to provide low- does not have a minimum streamflow statute. Enactment interest loans to a variety of water pollution prevention of such a provision would not only benefit biological diver- projects, such as projects undertaken by farmers to control sity, but could help Delaware meet TMDL standards in the stormwater runoff and municipal projects that utilize coming decade.211 By enacting streamflow standards, alternative technologies of wastewater treatment. DNREC Delaware might also spur the local adoption and imple- has utilized funds from these programs to provide low- mentation of other water conservation measures. interest loans to homeowners to upgrade septic systems and thereby reduce nutrient loading. The current system of financing, however, provides homeowners with little COASTAL ZONE PROTECTION incentive to maintain their systems, so as to prevent them from leaching nutrients into the state’s waterbodies. The Federal Coastal Zone Management Act Delaware should consider adopting requirements for The federal Coastal Zone Management Act (CZMA), pro- landowners to adhere to regular maintenance programs, vides funding to coastal states that develop a Coastal Zone

chapter 4 69 Management Program (CZMP) that is approved by the threat of imminent development of an oil refinery adjacent National Oceanic and Atmospheric Administration (NOAA). to the ecologically sensitive Bombay Hook National Wildlife CZMPs must ensure that the state has management measures Refuge, the Coastal Zone Act contains a lofty preamble: in place to protect coastal resources and mechanisms to enforce such measures. It is hereby determined that the coastal areas of Delaware are the most critical areas for the future of Consistency Provisions the State in terms of the quality of life in the State. It CZMA also includes a provision that requires that all fed- is, therefore, the declared public policy of the State to eral activities affecting the state’s coastal zone, to be “con- control the location, extent and type of industrial sistent” with the “enforceable policies” of the state’s federal- development in Delaware’s coastal areas. In so doing, ly approved CZMP. Federal actions include federal permits the State can better protect the natural environment (such as §404 wetlands permits), federal licenses and devel- of its bay and coastal areas and safeguard their use pri- opment projects, federal assistance, and outer continental marily for recreation and tourism. Specifically, this shelf activities. States with an approved CZMP can deny chapter seeks to prohibit entirely the construction of new authorization of these federal actions on a case-by-case heavy industry in its coastal areas, which industry is basis if the state finds that a project is inconsistent with the determined to be incompatible with the protection of enforceable policies established by the state’s CZMP.212 that natural environment in those areas.219 Delaware’s Coastal Management Program (CMP) currently includes provisions to preserve woodlands and agricultural The Coastal Zone Act “absolutely” prohibits “heavy industry lands, protect fish, wildlife, and their habitat, reduce pesticide uses of any kind not in operation on June 28, 1971,”220 and and sediment loads to water bodies, discourage scattered rural forbids the issuance of permits to engage in such uses. It was residential development or sprawl, and direct public financ- anticipated that regulations would be adopted promptly to ing to development in and around existing communities.213 implement the Coastal Zone Act. However, NOAA has determined that these provisions have In spite of attempts to adopt supporting regulations, 28 no statutory or regulatory basis, and thus do not meet the years of gridlock and procedural missteps delayed their law’s definition of “enforceable policy,”214 since they are not development. In 1996 Delaware Governor Thomas Carper legally binding provisions by which the state exerts control established an advisory committee composed of representa- over private and public land and water uses and natural tives from industry, agriculture, state, local and federal gov- resources. This weakens the state’s ability to assure consistency ernment, the scientific community, and environmental orga- of federal activities with many of Delaware’s policies. nizations. The committee was charged with developing a Under the CZMA, consistency review is triggered if the Memorandum of Understanding (MOU) upon which federal action may have an effect on any land or water use of implementing regulations could be based. The MOU was natural resources of the coastal zone.215 DNREC’s Division of signed on March 19, 1998, after two years of negotiations. Soil and Water is responsible for consistency review for all After additional public input and comment, regulations were federal actions affecting the state’s coastal zone. Currently, the written, based closely on the MOU. The regulations became Division conducts approximately 100 consistency reviews a effective May 11, 1999. year. These include federal licenses and permits, outer conti- The regulations primarily target industrial point source nental shelf oil issues, direct federal actions (2-3 per year), polluters. Three classes of activity are delineated: 1) activities and federal assistance grants.216 Although consistency review that are exempt from permitting requirements; 2) activities can provide Delaware with a strong tool to ensure that feder- that are not exempt but will have no negative impact on the ally permitted activities do not impede state conservation or environmental health of the Coastal Zone, and thus only planning initiatives, the Division of Soil and Water lacks suf- require DNREC notification; and 3) activities that will have ficient staff to commit significant attention to consistency a negative impact (more than a de minimis impact) upon the review. One of the unfortunate consequences is that the environmental health of the Coastal Zone, and require a for- Division is unable to adequately track the cumulative impacts mal coastal zone permit. For the latter class of activities, a of these activities.217 loose form of environmental trading is authorized. Permitted activities must be accompanied by a companion compensa- State Coastal Zone Protection Program tion project, which must offset the impacts of the permitted Delaware’s Coastal Zone Act218 — separate from the federal activities, but not necessarily by mitigating the effects of the CZMA — directs DNREC to implement regulations to permitted activity; the companion project may improve the control coastal zone pollution. Enacted in 1971 under the environment of the coastal zone in an aspect entirely differ-

70 protecting delaware’s natural heritage ent from the way in which the permitted activity degrades it. rates. Finally, Delaware misses an important opportunity to For example, a discharge of an extra ton of an air pollutant regulate agricultural activities when it limits the Coastal may be offset by the purchase of land to be preserved as Zone Act to industrial sources, as narrowly defined in the open space. DNREC will judge the adequacy of the offset, statute. The poultry industry in Delaware is thought to be which must be “clearly and demonstrably more beneficial to the most concentrated in the U.S.225 and may threaten the the environment in the Coastal Zone than the harm done by water quality of Delaware’s waters. Many of the state’s poul- the negative environmental impacts associated with the per- try operations are so large that they are considered “point mitting activities themselves.”221 The criteria for judging the source” polluters under the federal Clean Water Act.226 adequacy of offset programs will be determined by “environ- Although Delaware already has a mechanism for developing mental indicators.” The environmental indicators are objec- a nutrient management strategy,227 addressing the coastal tive indices of environmental conditions, such as nutrient or implications of agricultural activities would be a logical pollutant concentrations in surface waters. A tentative list of extension of the Coastal Zone Act. indicators includes ambient air quality, point source pollutant loads specific to a watershed, sediment toxicity and chemistry, benthic diversity, forest fragmentation, and the MARINE FISHERIES LAW length of undisturbed wetland perimeters.222 The regulations are innovative in that they provide a DNREC’s Division of Fish and Wildlife has responsibility mechanism for cross-pollutant trading, and allow for the for administering the laws and regulations that guide com- identification of scope for trade across pollutants. This pro- mercial and recreational fishing. DNREC has jurisdiction vides industrial point source polluters with considerable over its “territorial seas,” or waters extending up to three flexibility in meeting their mitigation obligations, and at miles outward from the ocean shoreline.228 The Division of least provides the opportunity for DNREC to improve the Fish and Wildlife is also charged with administering the coastal environment in ways that might not be possible in a laws that dictate the manner in which individuals in the command-and-control regulatory environment. Although state can fish in tidal waters.229 Pursuant to this authority, the regulations are intended to ensure that the overall qual- Delaware enacts fisheries regulations consistent with fish- ity of the coastal environment improves, judgments about eries management plans adopted by the Atlantic States what is “clearly and demonstrably more beneficial” may Marine Fisheries Commission (ASMFC).230 require some creative reasoning on the part of DNREC The Delaware fisheries statute regulates fishing by spec- officials charged with judging the adequacy of offset pro- ifying the equipment that may be used by fishermen. For grams. Funding for administering the trading program may example if gill nets are used, they must be used while fish- also be problematic. A $3,000 application fee is expected to ing in “more or less a straight line,”231 and fish traps can cover the costs of enforcement and monitoring,223 but this only be used if less than 125 cubic feet in size and only if expectation may prove to be too optimistic. DNREC’s containing an escape hatch of at least 8 inches by 8 ability to complete development of the environmental indi- inches.232 In an effort to limit over-fishing, many states uti- cators is also hampered by insufficient funding. Without lize regulations on what type of fishing equipment can be the indicators, the regulations will be difficult if not impos- used to control the amount of fish that are harvested, sible to implement. rather than limiting the number of boats that are permit- Regulating certain activities can sometimes have the ted to fish. However, limiting the use of sophisticated fish- unintended consequence of encouraging other environmen- ing gear may lead to unnecessarily high levels of bycatch tally harmful activities. For example, Delaware should con- (incidental catch of non-target species along with target sider amending the Coastal Zone Act to include not only commercial species).233 industrial uses, but also commercial and residential uses as There are five species of special concern in Delaware well, particularly given Delaware’s problems containing waters — shad, striped bass, weakfish, blue crab, and sprawl. Similarly, the regulations require a permit for the horseshoe crab — although Delaware also regulates fishing construction of any new public sewage treatment plant or of seven other finfish species and four other shellfish public recycling plant.224 Controlling pollution from these species. The Atlantic sturgeon population has been deci- sources are important, but Delaware must be careful not to mated, and the taking of any Atlantic sturgeon whatsoever tilt the playing field in favor of other, more harmful alterna- is prohibited. 234 Except for the Atlantic sturgeon, all species tives. For example, regulation of public sewage treatment are either relatively healthy or on a recovery path.235 Under plants must be accompanied by sufficient attention to the a combination of commercial quotas, size limitations and proliferation of septic construction and septic system failure time-of-year restrictions, striped bass have indicated a

chapter 4 71 recovery trend. In fact, the Chesapeake Bay population of and the degradation of marine habitat for other species.246 striped bass was declared “recovered” in 1995 and reached The horseshoe crab situation thus represents an unfor- historical highs in 1998.236 Shad and weakfish populations tunate irony in Delaware’s well-intentioned attempts to also seem to be increasing.237 Blue crab populations remain stem the decline of the horseshoe crab. These efforts have relatively stable, but catch per unit of effort is down, indi- not been ineffectual — overall, among all the Atlantic cating this fishery is fully exploited.238 states, horseshoe crab harvests declined by 17 percent. However, the harvest could have been reduced by as much Horseshoe Crab Regulations as 60 percent if not for the non-cooperation of states such Horseshoe crab harvests have also declined, but their story as Virginia. is more complex. Used primarily as a bait for the lucrative eel and conch fisheries, the horseshoe crab has been har- Blue Crab Regulations vested from mid-Atlantic shores for many years. A recent Delaware’s blue crab fishery poses some problems for precipitous decline in population prompted the ASMFC to Delaware, despite the relatively healthy status of the convene a special committee in 1997 to develop a fishery species. One serious bycatch problem is the high mortality management plan for horseshoe crabs. A plan was adopted of diamondback terrapins, which enter crab pots, become in October 1998, requiring the member states to monitor trapped inside, and drown. Commercial crab pots are not landings and collect data. However, the plan did not man- allowed in tributaries or the Inland Bays where diamond- date a limit on the harvest of horseshoe crabs. Delaware, back terrapins are prevalent,247 but recreational anglers are New Jersey, and Maryland are nevertheless required to permitted to fish in these areas. DNREC is considering maintain current regulations limiting the harvest of horse- proposing regulations to require the use of turtle excluder shoe crabs.239 An ASMFC harvest cap applicable to all devices for recreational anglers in these areas.248 The blue states is anticipated in 2000.240 crab fishery may also pose a threat to some bottom- Delaware has developed regulations to limit seasonal and dwelling sponge communities in Delaware’s tidal basins area harvests of horseshoe crabs and to prohibit the harvest and shallow waters.249 Winter blue crab fishing is accom- of horseshoe crabs on state and federal lands during May plished by dredging (since blue crabs will not enter crab and June, when the crabs spawn.241 The Division of Fish pots in their inactive winter season), which has been detri- and Wildlife also requires those collecting horseshoe crabs mental to many species dependent upon Clinoa celeta, a from the beach to secure licenses. Although the Division species of sponge that resides in the waters of Delaware and issues permits to dredge for horseshoe crabs, only five per- acts much like a coral reef for small fish species. DNREC mits are issued per year. No dredging is allowed during May should consider establishing sanctuaries, areas in which or June.242 Under its horseshoe crab regulations, Maryland dredging will be prohibited, or certain time-of-year restric- achieved an 80 percent reduction in its horseshoe crab har- tions on blue crab fishing. vest, while New Jersey and Delaware have achieved reductions of 60 percent and 34 percent, respectively.243 The Effect of Gill Nets The stringent harvesting regulations imposed by the Another bycatch problem in Delaware involves the use of three states led to a dramatic increase in the price of horse- anchor gill nets (curtains of netting are attached to the sea shoe crabs. Since the restrictions were put in place, the floor that catch fish by entangling them by the gills).250 The price of crabs rose from $0.50 to $0.75 cents per crab to use of drift gill nets is regulated by Delaware but still allow- over $2 per crab.244 This has introduced opportunities for able. Fisherman are typically required to retrieve their drift fishermen in the other states that do not place limits on gill nets every two or three hours. Anchor gill nets, however, the harvest of horseshoe crabs to make a larger profit on are often only pulled up every 24 hours, leading to a high the harvest of the crabs. Fishermen in Virginia have been mortality rate. To reduce bycatch mortality, this practice is especially opportunistic, increasing their horseshoe crab banned from April 10 to September 30, but DNREC is harvest from 25,000 pounds per year to over 600,000 considering extending the ban so that it begins February 1. pounds in 1998.245 They have achieved this increased har- In return, DNREC is considering allowing the use of nets vest by trawling in interstate waters (outside the three mile reels,251 which allow anglers to use drift nets more jurisdiction of any of the three states) and by adjusting efficiently.252 DNREC should ban the use of anchor gill net their equipment to enable them to trawl for crabs, a prac- altogether, given their wastefulness, and should also extend tice that is regulated in Delaware waters. This has not only the ban to recreational as well as commercial fishing. increased the harvest of horseshoe crabs, but has also Delaware has taken bold steps and made substantial introduced other environmental problems such as bycatch progress in bringing many of its troubled fisheries and

72 protecting delaware’s natural heritage shell-fisheries back to more sustainable levels. Very large • The Delaware Department of Agriculture should com- challenges remain, however, and Delaware must remain municate with each of the state’s nurseries to determine vigilant in continuing as a leader among its Atlantic states how to stimulate the supply side of the demand equa- partners in fisheries conservation. tion for native species.

• The Delaware Department of Agriculture should con- CONCLUSIONS tinue to work with the Delaware Invasive Species Council to establish a formal list of plant pests. The Delaware Delaware has a wide variety of regulatory tools that provide Department of Agriculture should use the list to restrict significant protection to biological diversity. However, there distribution of those species by nurseries in the state. is ample opportunity for many of these laws — such as state tidal wetland laws, sediment control regulations, §401 certi- • Amend the state tidal wetlands law to provide protection fication, fisheries regulations, the state endangered wildlife for buffer areas adjacent to tidal wetlands. The law should law, and the plant pest law — to be strengthened through also be amended to require local governments to adopt the the adoption of new regulations or amendment of existing appropriate tools to protect critical wetlands and buffers. laws. In addition, there are several regulatory areas — such as non-tidal wetland protection, ditch construction and • Amend the state tidal wetlands law to designate wetlands maintenance, endangered plant protection, threatened plant of “exceptional recreational or ecological significance” or and animal protection, and manure management regulation use the surface water quality standard regulations to give — where Delaware should consider new tools to ensure the certain wetlands this designation, thereby providing them protection of the state’s valuable natural heritage. with a greater level of protection against degradation.

• Enact a non-tidal wetland law to provide sufficient pro- RECOMMENDATIONS tection for habitats and waters of the state not sufficiently protected by the federal §404 program. Such a pro- • Revise the state Endangered Species Act to extend program should be accompanied by additional appropria- tection to threatened species and species of concern. tions to the Department of Natural Resources and Environmental Control’s Division of Water Resources to • Extend protection to Delaware plants that are endan- effectively administer the law. gered, threatened, and species of concern. Either include plants in the legal definition of “species” or enact a sepa- • The Department of Natural Resources and rate plant protection law. Environmental Control should adopt water quality criteria specific to wetlands to strengthen the state’s ability • Revise the state Endangered Species Act to include a to make decisions on state permit applications. This prohibition on the taking of a listed species, a listing should include designation of uses for all wetlands, requirement, a requirement for consultation with adoption of narrative criteria and appropriate numeric Department of Natural Resources and Environmental criteria for wetlands, adoption of narrative biological cri- Control on actions that may impair habitat or species teria for wetlands, and application of the state’s anti- viability, a requirement for recovery plan development, degradation policy to wetlands. and critical habitat designation. • The Department of Natural Resources and Environmental • Regularly update the list of “rare” species that are afford- Control should adopt and implement regulations guided protection under the state’s freshwater fishing and ing its §401 program for approving, conditioning, or hunting regulations. denying federal §404 wetlands permits.

• Amend the Plant Pest law to provide guidance on how • Both Coastal Zone Management Act consistency review the law can be used to deal with invasive pest species and §401 water quality certification should be consolidated that are already established in the state. The Delaware in one division of the Department of Natural Resources Department of Agriculture should then formulate regu- and Environmental Control. Combining these two pro- lations to guide actions once a species is deemed a pest grams would improve the ability of the state to evaluate the but when quarantine is not an effective control measure. impact of federal permits on Delaware’s aquatic resources.

chapter 4 73 • Repeal agricultural exemptions in various laws, such as • The Delaware Department of Transportation and other the Erosion and Sediment Control law, so that ditching agencies should review compensatory mitigation projects and other harmful agricultural practices are not exempt on their permit and ecological success. For example, from environmental review and permitting requirements state agencies should require the establishment of native under the federal Clean Water Act, state tidal wetlands wetland species, ensure the in-kind replacement of wet- law, and other state laws. land types, and require the replacement not only of wetland acreage, but also of wetland functions. • The Delaware Department of Agriculture Forest Service should develop rules and regulations to implement its • Amend the subaqueous lands law to eliminate the new authority to require landowners to submit notifica- requirement of navigability. This would remove the con- tion to the agency prior to commencing planned silvi- straint created by the requirement that the waterbody cultural activities. The agency should make development must be capable of supporting commerce before it can of forest management plans mandatory under the notifi- be protected through the law. cation process; develop a notification and management plan review process to ensure that landowners seeking • Adopt regulatory and cost-share incentive programs to approval for a planned harvest include in their plans encourage the construction and maintenance of buffers appropriate conservation provisions; and should reserve and habitat corridors along drainage ditches. the right to approve, condition, or deny proposed harvests if appropriate conservation measures are not • Encourage the U.S. Environmental Protection Agency included in harvest or management plans. to reconsider its determination that all of Delaware’s waterways in basins of less than 800 acres are to be con- • The Department of Natural Resources and Environ- sidered a “ditch” for §404 regulatory purposes, thereby mental Control should establish a panel of wetland exempting them from permitting requirements. experts to define geographically “outstanding and irreplaceable ecological resources” for §401 implementation. • Tighten soil and water conservation plans under the Delaware erosion and sediment control statute so that • The Divisions of Fish and Wildlife and Water Resources agricultural practices are required to implement better should develop a unified policy document—combining management practices. the findings of both Comprehensive Conservation and Management Plans—to guide the development of future • Develop and implement time-of-year restrictions on regulatory, policy, and management tools, as well as vol- manure spreading to ensure that excessive nutrient runoff untary incentive programs to ensure the protection of does not occur when plants are not utilizing nutrients. Delaware’s wetland resources. • Amend the Delaware Coastal Zone Act to include resi- • The Department of Natural Resources and Environ- dential and commercial development, and also agricul- mental Control should make development of a unified tural activities. wetland policy an agency priority. • Develop a nutrient applicator license or certification • The Department of Natural Resources and Environ- program. mental Control should ensure strict implementation of wetland mitigation policies, ensuring that • Enact a minimum streamflow statute and promulgate rigorous alternatives analysis is conducted. If mitiga- regulations. tion banks are utilized to compensate for permitted losses, banks should support functioning wetlands • Require the use of turtle excluder devices for all crab prior to the withdrawal of credits, success criteria pots in areas where diamondback terrapins are known should take biological diversity into account, and long- to exist. term management responsibility should be secured. Similar standards should be developed for other com- • Prohibit dredging for shell-fish in certain areas or specif- pensatory mitigation approaches, including on-site and ic times of the year to protect shell-fish, horseshoe crabs, in-lieu mitigation. nesting migratory birds, and migratory fish.

74 protecting delaware’s natural heritage 40 Del. Code Ann. tit. 3, § 1105 (a). 1 Del. Code Ann. tit. 7, § 102. (emphasis added); “Protected wildlife” means all game 41 See id. § 1102 (b) - (c). and nongame wildlife. Del. Code Ann. tit. 7, § 101. 42 Eggen, Donald A. Delaware Department of Agriculture, Plant Industry Section. 2 Del. Code Ann. tit. 7, § 102-103. Personal communication. 3 Del. Code Ann. tit. 7, § 103. (emphasis added.) 43 Del. Code Ann. tit. 3, § 1302 (a) B (c). 4 See id. § 201. (emphasis added.) 44 See id. § 1303 (a) B (b). 5 Del. Code Ann. tit. 7, § 201. 45 See id. § 1302 (d)(5). (emphasis added.) Note: the law states that nurseries must pro- 6 16 U.S.C. § 1531, et. seq. vide a list of: “the names, addresses, and plants, plant material, etc. received from all sup- 7 pliers, producers, growers, etc. providing plants or nursery stock to the business.” Center for Wildlife Law and Defenders of Wildlife. July 1996. Saving Biodiversity: A 46 Status Report on State Laws, Policies and Programs. Defenders of Wildlife: Washington, DC. Del. Code Ann. tit. 3, § 1304 (a). 8 Del. Code Ann. tit. 7, § 601, et. seq. “Infected” is defined as a plant that has been determined by the Department to be conta- 9 minated with an infections, transmissible or contagious pest or so exposed to the afore- Del. Code Ann. tit. 7, § 601. mentioned that contamination can reasonably be expected to exist. This includes disease 10 See id. § 601, et. seq. conditions, regardless of their mode of transmission or any disorder of plants which 11 Delaware Register of Regulations. Sunday, August 1, 1999. Vol. 3, Issue 2. p. 293-311. manifest symptoms which, after investigation are determined by a federal or state pest prevention agency, to be characteristics of an infections, transmissible, or contagious dis- 12 Delaware Register of Regulations. Sunday, August 1, 1999. Vol. 3, Issue 2. p. 305. ease. See Del. Code Ann. tit. 3, § 1301 (19). WR-9 (a)(2). 47 Del. Code Ann. tit. 3, § 1301 (31). 13 Delaware Register of Regulations. Sunday, August 1, 1999. Vol. 3, Issue 2. p. 308. 48 WR-15, Section 1. Harrison, Lynn, Department of Agriculture, Plant Industry Section. Personal communication. 14 Delaware Register of Regulations. Sunday, August 1, 1999. Vol. 3, Issue 2. p. 294. 49 WR-1 (18). Harrison, Lynn, Department of Agriculture, Plant Industry Section. Personal communication. 15 Delaware Register of Regulations. Sunday, August 1, 1999. Vol. 3, Issue 2. p. 293. 50 WR-1 (9). Del. Code Ann. tit. 3, § 1504. 51 16 Delaware Register of Regulations. Sunday, August 1, 1999. Vol. 3, Issue 2. p. 308- See id. § 1501 (7)(b)(1-8). “Restricted noxious weed seeds” are defined as the seeds of 309. WR-15. dodder (Cuscuta), bindweed (Convolvulus arvensis), wild onion and wild garlic (Allium spp. ), corn cockle (Agrostemma githago), horse nettle (Solanum Carolinense), cheat or 17 Delaware Register of Regulations. Sunday, August 1, 1999. Vol. 3, Issue 2. p. 308. chess (Bromus secalinus), annual bluegrass (Poa Annua), and giant foxtail (Setari faberi). WR-15, Section 2 (c). 52 See id. § 1501 (7)(a)(1-3) B (7)(b)(1-8) 18 Gelvin-Innvaer, Lisa. Division of Fish and Wildlife, DNREC. Personal communication. 53 Del. Code Ann. tit. 3, § 7201, et. seq. 19 DNHP is a program within the Division of Fish and Wildlife that conducts biological 54 surveys throughout Delaware to locate populations of rare or unique plant and animal Moore, Robert. DDA, Poultry and Animal Health Section. Personal communication. species, identify and describe significant natural communities, and locate plants and animals August 2, 1999. of state concern (See Ch. 6: Data Collection, Management, Monitoring, and Sharing). 55 Del. Code Ann. tit. 3, § 401 et. seq. See specifically § 406. 20 Center for Wildlife Law and Defenders of Wildlife. July 1996. Saving Biodiversity: A 56 See id. § 405. Status Report on State Laws, Policies and Programs. Defenders of Wildlife: Washington, DC. 57 See id. § 407. 21 Del. Code Ann. tit. 3, § 2401, et. seq. See specifically § 2402. 58 See id. § 407. 22 See id. § 2402 (b)-(c). 59 Moore, Robert. DDA, Poultry and Animal Health Section. Personal communication. 23 http://www.state.de.us/deptagri/pi/noxswds.htm August 2, 1999. 24 Del. Code Ann. tit. 3, § 2404. 60 Del. Code Ann. tit. 3, 25 See id. § 2402. 61 Del. Code Ann. tit. 3, § 1203(b). 26 See id. § 2403. 62 Del. Code Ann. tit. 3, § 1001 et seq. 27 See id. § 2404. 63 See id. § 1011. 28 http://www.state.de.us/deptagri/pi/noxswds.htm 64 See id. § 1006. 29 Del. Code Ann. tit. 3, § 2405. 65 See id. § 1008. Note that this section sets a $30 limit on any permit issuance fee, a 30 http://www.state.de.us/deptagri/pi/noxswds.htm limit that by decision of the Delaware Supreme Court cannot be increased without legislative amendment by the General Assembly, In the Opinion of the Justices, 575 A 2d. 31 Del. Code Ann. tit. 3, § 2402. 1186 (Del. Supr.1990). 32 See id. § 2408. 66 Del. Code Ann. tit. 3, §§ 1051-1061. 33 Del. Code Ann. tit. 7, § 3801. 67 See id. § 1054. 34 See id. § 3802 (a). 68 See id. § 1054 (a). 35 See id. § 3802 - 3803. 69 See id. § 1054 (c). 36 Del. Code Ann. tit. 3, § 1102 (a). (emphasis added.) 70 See id. § 1055. 37 See id. § 1102 (b). Other methods may be used. See § 1102 (i). 71 Short, E. Austin III. DDA Forest Service. Personal communication. 38 See id. § 1102 ( c); “Department may conspicuously mark all plants known or suspect- 72 Del. Code Ann. tit. 3, §§ 1057-1061. ed to be infected or infested with the plant pest. The Department shall notify the per- 73 son(s), owner(s) or the tenant(s) in possession of the premises in question of the existence Short, E. Austin III. DDA Forest Service. Personal communication. of the dangerously injurious plant pest and of the prescribed control measures. The 74 Del. Code Ann. tit. 3, §§ 1071-1080. aforementioned person(s) must, within the prescribed time limit, implement the condi- 75 See id. § 1072(4). tions of the Department’s control order or be subject to civil penalties as stated in this 76 chapter.” See id. § 1072(3). (emphasis added.) 77 39 Eggen, Donald A. Delaware Department of Agriculture, Plant Industry Section. See id. § 1074. Personal correspondence. May 19, 1999. 78 See id. § 1079.

chapter 4 75 79 See id. § 1080. Counsel. Personal communication. 117 80 http://www.state.de.us/deptagri/dfs/watrshed.htm. State of Delaware, Department of Natural Resources and Environmental Control. Regulations Governing the Control of Water Pollution. Proposed Revisions, Hearing Draft. 81 Short, E. Austin III. DDA Forest Service. Personal communication. See Del. Code 14.20 (d) Ann. tit. 3, Subch. VI. 118 State of Delaware, Department of Natural Resources and Environmental Control. 82 Del. Code Ann. tit. 3, §§ 1074-1075. Regulations Governing the Control of Water Pollution. Proposed Revisions, Hearing 83 Short, Austin. DDA Forest Service. Personal correspondence. August 17, 1999. Draft. 14.20 (e) and 14.20 (f) 84 Del. Code Ann. tit. 3, §§ 1080(7). 119State of Delaware, Department of Natural Resources and Environmental Control. 85 Short, Austin. DDA Forest Service. Personal correspondence. August 17, 1999. Regulations Governing the Control of Water Pollution. Proposed Revisions, Hearing Draft. 14.20 (f) 86 Purdue, Jack. Maryland Forest Service. Personal communication. July 27, 1999. 120 DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive 87 http://www.epa.gov/OWOW/wetlands/wet10.html. Conservation and Management Plan. Division of Water Resources, DNREC: p. 26. 88 33 U.S.C. § 1341. 121 33 U.S.C. § 1344(f)(1)(C), ELR Stat. FWPCA § 404(f)(1)(C); Strand, Peggy. 89 Moyer, William. Division of Water, DNREC. Personal communication; DNREC. Wetlands Deskbook. Environmental Law Institute: Washington, DC. p. 27 September 199), Delaware’s Non-tidal Wetlands Comprehensive Conservation and 122 33 U.S.C. § 1344(f)(1)(A), ELR Stat. FWPCA § 404(f)(1)(A); Strand, Peggy. Management Plan. Division of Water Resources, DNREC: p. 26; Wetlands Deskbook. Environmental Law Institute: Washington, DC. p. 27 http://www.epa.gov/watrhome/facts/fact20.html. Revised March 26, 1999. 123 16 U.S.C. § 1455. 90 Del. Code Ann. tit. 7, §§ 6601, et. seq. 124 DNREC. January 1994. Comprehensive Conservation and Management Plan for 91 Hardisky, Michael A. and Vytautas Klemas. 1979. Tidal Wetlands Maps Revision, Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. pp. 31- 1979. College of Marine Studies, University of Delaware: Newark, DE. 32. 92 Delaware Division of Water Resources. 1994. Wetlands Regulations. Adopted 125 DNREC. January 1994. Comprehensive Conservation and Management Plan for December 23, 1997, Revised November 3, 1994. DNREC: Dover, DE. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 26. 93 Del. Code Ann. tit. 7, § 6602. 126 DNREC. January 1994. Comprehensive Conservation and Management Plan for 94 See id. § 6603(a). Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 13. 95 See id. § 6604(a). 127 DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive 96 See id. § 6604(b). Conservation and Management Plan. Division of Water Resources, DNREC. 128 97 See id. § 6606; Wetlands Regulation 1.04. Emslie, Margaret W. Division of Water Resources, DNREC. Personal correspondence; Emslie, Margaret W. Division of Water Resources, DNREC. Correspondence to 98 Moyer, William. Division of Water Resources, DNREC. Personal communication. Ms Alva Brunner, U.S. EPA Region III. September 30, 1997. 99 Delaware Surface Water Quality regulations, section 2. 129 http://www.epa.gov/OWOW/wetlands/wet10.html. 100 Delaware Surface Water Quality regulations, section 11.5(a). 130 Environmental Law Institute. 1993. Wetland Mitigation Banking. Environmental 101 Greene, Richard, Division of Water Resources, DNREC. Personal communication. Law Institute: Washington, DC. p. 1. 102 Futrell, J. William. 1987. “Comments.” The Delaware Conservationist. DNREC: 131 Fennessy, Siobhan. June 1997. A Functional Assessment of Mitigation Wetlands in Dover, DE. Ohio: Comparisons with Natural Systems. Ohio Environmental Protection Agency: 103 Exec. Order No. 56. May 26, 1988. Freshwater Wetlands. Signed by Governor Columbus, OH. Michael N. Castle. 132 DelDOT. November 1998. DelDOT Wetland Mitigation Inventory. 104 Governor’s Freshwater Wetlands Roundtable. June 1989. Freshwater Wetlands in 133 DelDOT. November 1998. DelDOT Wetland Mitigation Inventory. Delaware: A Framework for Their Conservation, Protection and Management. Report of 134 DelDOT. November 1998. DelDOT Wetland Mitigation Inventory. the Governor’s Freshwater Wetlands Roundtable: Dover, DE. 135 DelDOT. November 1998. DelDOT Wetland Mitigation Inventory. 105 Exec. Order No. 56. May 26, 1988. Freshwater Wetlands. Signed by Governor 136 Michael N. Castle. U.S. Environmental Protection Agency, Region III. Personal communication. 137 106 Moyer, Bill. DNREC, Water Resources Division. Personal communication. McCorkle, Rick. U.S. Fish and Wildlife Service. Personal correspondence. June 8, 1999. 138 107 Moyer, William. Division of Water Resources, DNREC. Personal correspondence. Environmental Law Institute. 1993. Wetland Mitigation Banking. Environmental May 25, 1999. Law Institute: Washington, DC. p. 3. 139 108 http://www.epa.gov/watrhome/facts/fac21.html. Revised March 26, 1999. Environmental Law Institute. 1993. Wetland Mitigation Banking. Environmental Law Institute: Washington, DC. p. 3. 109U.S. Environmental Protection Agency. June 1998. Water Quality Criteria and 140 Standards Plan B Priorities for the Future. Office of Water, U.S. EPA: Washington, DC. Pea Patch Island Heronry Special Area Management Plan Core Group. March 1997. EPA 822-R-98-003. p. 5. Pea Patch Island Heronry Regional Special Area Management Plan: Issue Characterization. DNREC and National Oceanic and Atmospheric Administration: Dover, DE and Silver 110 U.S. Environmental Protection Agency. June 1998. Water Quality Criteria and Spring, MD. pp. 5-6. Standards Plan—Priorities for the Future. Office of Water, U.S. EPA: Washington, DC. 141 EPA 822-R-98-003. p. 6. Wetland Banking Agreement For Delaware Department of Transportation Projects. Last authorizing date October 19, 1994. 111 MacKnight, Eveyln. U.S. Environmental Protection Agency, Region III. Personal 142 communication. Wetland Banking Agreement For Delaware Department of Transportation Projects. Last authorizing date October 19, 1994. 112 MacKnight, Eveyln. U.S. Environmental Protection Agency, Region III. Personal 143 communication. Fulmer, Therese M., Delaware Department of Transportation, Environmental Studies. Personal communication. 113 DNREC. September 1997. Delaware’s Non-tidal Wetlands Comprehensive 144 Conservation and Management Plan. Division of Water Resources, DNREC. p. 15. Delaware Department of Transportation. DelDOT Wetland Banking: General Conditions for Use of Wetland Compensatory Banks. 114 State of Delaware, Department of Natural Resources and Environmental Control. 145 Regulations Governing the Control of Water Pollution. Proposed Revisions, Hearing Draft; Delaware Department of Transportation. DelDOT Wetland Banking: General Moyer, William. Division of Water Resources, DNREC. Personal communication. Conditions for Use of Wetland Compensatory Banks. 146 115 Moyer, William. Division of Water Resources, DNREC. Personal communication. Fulmer, Therese M., Delaware Department of Transportation, Environmental Studies. Personal communication. 116 Gravallese, David. U.S. Environmental Protection Agency, Office of General

76 protecting delaware’s natural heritage 147 Fulmer, Therese M., Delaware Department of Transportation, Environmental induced increase of mean temp over 82°F and no human-induced increase at any time Studies. Personal communication. over 86°; and average of 5.5 mg/L between June and September and never less than 4.0 mg/L, Delaware Surface Water Quality Standards, regulation 11) were exceeded in 86% 148 Pomatto, Larry. Division of Water Resources, DNREC. Personal communication. and 73% of the surveying days for unshaded streams, respectively, and very rarely for April 27, 1999. shaded sites (See Maxted, J.R., E.L. Dickey, and G.M. Mitchell. November 1995. The 149 Moyer, William. Division of Water, DNREC Personal communication. Water Quality Effects of Channelization in the Coastal Plain Streams of Delaware. Division 150 Williams, Steve. DNREC. Personal communication. June 9, 1999. of Water Resources, DNREC). Unfortunately, unshaded sites account for as much as 80% of the 2600 miles of non-tidal stream mileage in Delaware (Maxted, John R., 151 Del. Code Ann. tit. 7, §§ 7201 et seq. Division of Water Resources, DNREC. Personal communication. January 13, 1999. 152 Division of Water Resources. 1999. “1998 Annual Report, Delaware Water 178 Exec. Order No. 56. May 26, 1988. Freshwater Wetlands. Signed by Governor Resources Division.” DNREC: Dover, DE. Michael N. Castle. 153 Chacones, Jim, Division of Water Resources, DNREC. Personal communication. 179 When a stream (or waterway) is unshaded, 72 percent of the time it is in violation of August 23, 1999. surface water quality standards. See Maxted, J.R., E.L. Dickey, and G.M. Mitchell. 154 See id. § 7202(b). November 1995. The Water Quality Effects of Channelization in the Coastal Plain Streams 155 Memorandum from Sergio Huerta, Director, Division of Water Resources, DNREC of Delaware. Division of Water Resources, DNREC. to John A.Hughes, Director, Division of Soil and Water Conservation, DNREC re 180 Most experts seem to agree that 30-foot-wide riparian buffers could sufficiently trap MOA—Amendments to Chapter 72, January 22, 1999. nutrients. Ritter, William. University of Delaware. Personal communication. March 1, 156 DNREC. Revised May 1995. Nonpoint Source Pollution Program: Assessment Report. 1999. Note: However, such narrow buffers typically do not provide sufficient habitat Division of Soil and Water Conservation, DNREC: Dover, DE. pp. 4-15. for most avian species. See, e.g., Keller, C.M.B., C.S. Robbins, and J.S. Hatfield, Avian Communities in Riparian Forests of Different Widths in Maryland and Delaware, 13 157 Schneider, John. Division of Water Resources, DNREC. Personal communication. Wetlands 137 (1993). 158 Smith, Richard. Division of Soil and Water Conservation, DNREC. Personal com- 181 Donnelly, Kevin. Division of Soil and Water Conservation, DNREC. Personal communication. March 16, 1999. munication. March 10, 1999. 159 Del. Code Ann. tit. 7, § 4161. 182 Nonpoint Source Pollution Program. Revised May 1995. Assessment Report 160 Del. Code Ann. tit. 7, § 4161(1). DNREC, Division of Soil and Water Conservation. p. 3. 161 See id. § 4161(4). 183 33 U.S.C. § 1313(d). 162 See id. § 4161(5). 184 Consent Decree. American Littoral Society and Sierra Club v. U.S. Environmental 163 Federal funds are no longer used for construction. Smith, Richard. Division of Soil Protection Agency; Carol M. Browner, Administrator; U.S. Environmental Protection and Water Conservation, DNREC. Personal correspondence. March 8, 1999. Agency, Region III; and W. Michael McCabe, Regional Administrator. C.A. No. 96-591, U.S. District Court, D. Del., p. 10, paragraph 5. 164 Del. Code Ann. tit. 7, § 4194 provides that “[a]n appropriation to the Department 185 of Natural Resources and Environmental Control for purposes of planning, designing Del. Code Ann. tit. 7, §§ 4001 et seq. and construction of tax ditches/public group ditches shall be included in the annual 186 See id. § 4004(a). appropriation bill (budget bill) of the General Assembly.” Not only do tax ditches bene- 187 Donnelly, Kevin. Division of Soil and Water Conservation, DNREC. Personal com- fit from direct subsidies from state and county sources (as discussed above), but the tax munication. April 7, 1999. ditch law bestows upon tax ditches governmental powers such as the power to tax, the 188 power of eminent domain and the right to “[c]all upon the Division of Soil and Water Delaware Sediment and Stormwater Regulations, Section 15.1. Conservation for assistance with administrative and operations problems of the tax 189 1998. Draft Coastal Nonpoint Pollution Control Program under Section 6217 of the ditch.” Del. Code Ann. tit. 7, § 4161(9). These powers clearly confer upon them advan- Coastal Zone Management Act. DNREC: pp. 1-27. tages that most private business enterprises do not enjoy. 190 DNREC. Personal communication. 165 Maxted, J.R., E.L. Dickey, and G.M. Mitchell. 1994. Delaware Section 305(b) 191 Schneider, John. Division of Water Resources, DNREC. Personal communication. Report: Habitat Quality of Delaware Nontidal Streams. Appendix D. DNREC: Dover, February 22, 1999. DE; Maxted, J.R., E.L. Dickey, and G.M. Mitchell. November 1995. The Water Quality 192 Effects of Channelization in the Coastal Plain Streams of Delaware. DNREC, Division of Nonpoint Source Pollution Program. Revised May 1995. Assessment Report. Water Resources: Dover, DE; Broaddus, Lynn. Division of Fish and Wildlife, DNREC. DNREC, Division of Soil and Water Conservation. pp. 3-13. Personal communication. 193 Findings for the Delaware Coastal Nonpoint Program, DNREC, p. 3. 166 Tiner, R.W. and J. R. Finn. 1986. Status and Recent Trends of Wetlands in Five Mid- 194 Ritter, William. University of Delaware. Personal communication. March 1, 1999. Atlantic States. U.S. Fish and Wildlife Service and U.S. Environmental Protection 195 Ritter, William. University of Delaware. Personal communication. March 1, 1999. Agency: Washington, D.C. p. 13. 196 Ritter, William. University of Delaware. Personal communication. March 1, 1999; 167 Guidance letter from Richard Pepino, Chief, Environmental Assessment Branch, Nonpoint Source Pollution Program. Revised May 1995. Assessment Report. DNREC, Region III, EPA to Frank Cianfrani, Chief, Regulatory Branch, U.S. Army Corps of Division of Soil and Water Conservation. pp. 3-8. Engineers, Philadelphia District, May 11, 1995. The EPA official serving on the panel that 197 made this determination found that of the 80 sites they surveyed, the vast majority of the Del. Code Ann. tit. 3, § 2201 et seq. non-natural waterways (ditches) occurred in basins that were less than 800 acres in size. 198 Del. Code Ann. tit. 3, § 2222(a)(1). 168 Del. Code Ann. tit. 7, §§ 4001 et seq. 199 Goodman, p. S. March 19, 1999. “Maryland Plans to Shift Pollution Liability.” 169 See id. § 4004(a)). Washington Post. p. B9; Ritter, William. University of Delaware. Personal communication. March 1, 1999. “Ironically, manure isn't even very good for one of the state's 170 See id. biggest crops, soybeans.” 171 Del. Code Ann. tit. 7, § 7217. 200 Blankenship, K. March 1999. “VA to require phosphorous-based nutrient plans for 172 See id. § 6003. poultry growers.” Bay Journal, The Chesapeake Bay Newspaper. 9(1):1. 173 Regulations Governing the Control of Water Pollution, regulation 13. 201 Blankenship, K. March 1999. “VA to require phosphorous-based nutrient plans for 174 Delaware Surface Water Quality Standards, regulation 9. There has been some ambiguity poultry growers.” Bay Journal, The Chesapeake Bay Newspaper. 9(1):1; VA. Code §62.1- in the past, however, as to whether “waters of the state” included drainage ditches. 44.17: 1.1. 202 175 Delaware Surface Water Quality Standards, regulation 8. Blankenship, K. March 1999. “VA to require phosphorous-based nutrient plans for poultry growers.” Bay Journal, The Chesapeake Bay Newspaper. 9(1):1. 176 Delaware Surface Water Quality Standards, regulation 6. 203 Ritter, William. University of Delaware. Personal communication. March 1, 1999. 177 In a 1995 DNREC study of ten sample sites of non-tidal streams in Delaware, tem- 204 perature and dissolved oxygen standards (5° above “natural conditions,” no human- Division of Water Resources. 1998 305(b) Watershed Assessment Report. DNREC,

chapter 4 77 Division of Water Resources. p. I -11. Marine Fisheries Commission. Personal communication. March 4, 1999. 205 Arendt, Randall. 1994. Rural by Design: “Maintaining Small Town Character.” 240 Division of Fish and Wildlife, DNREC. Personal correspondence. June 3, 1999. American Planning Association: Chicago, IL. p. 209-213. 241 Shellfish Regulations, S-51, S-56.; Division of Fish and Wildlife, DNREC. Personal 206 Arendt, Randall. 1994. Rural by Design: “Maintaining Small Town Character.” correspondence. June 3, 1999. American Planning Association: Chicago, IL. p. 209-213. 242 Division of Fish and Wildlife, DNREC. Personal correspondence. June 3, 1999. 207 Arendt, Randall. 1994. Rural by Design: “Maintaining Small Town Character.” 243 O'Connell, Tom. Fisheries Service, Maryland Department of Natural Resources. American Planning Association: Chicago, IL. p. 209. Personal communication. March 5, 1999. 208 Delaware Surface Water Quality Standards, Regulation 9. 244 O'Connell, Tom. Fisheries Service, Maryland Department of Natural Resources. 209 Lovell, Stewart. Division of Water Resources, DNREC. Personal communication. Personal communication. March 5, 1999. February 22, 1999. 245 O'Connell, Tom. Fisheries Service, Maryland Department of Natural Resources. 210 DNREC. January 31, 1997. Report of the Joint Task Force, Instream Flow Needs Personal communication. March 5, 1999. Analysis for Northern New Castle County, Delaware. DNREC. 246 O'Connell, Tom. Fisheries Service, Maryland Department of Natural Resources. 211 Lovell, Stewart. Division of Water Resources, DNREC. Personal communication. Personal communication. March 5, 1999. February 22, 1999. 247 Division of Fish and Wildlife, DNREC. Personal correspondence. June 3, 1999. 212 16 U.S.C. §§ 1456 (c)(1)(A),(d). 248 Kahn, Desmond. Division of Fish and Wildlife, DNREC. Personal communication. 213 Delaware Coastal Management Program, Comprehensive Update and Routine April 1, 1999. Program Implementation. §§ 5.C.1., 5.C.3., 5.D.2. 249 Kahn, Desmond. Division of Fish and Wildlife, DNREC. Personal communication. 214 16 U.S.C. § 1453(6a). April 1, 1999. 215 See id. § 1456(d). 250 http://www.cmcocean.org/ 216 Lukens, Jennifer. Division of Soil & Water Conservation, DNREC. Personal com- 251 The Delaware Finfishing statute prohibits the use of net reels by excluding them from munication. the list of permitted fishing technologies. Del. Code Ann. tit. 7, § 910. 217 Lukens, Jennifer. Division of Soil & Water Conservation, DNREC. Personal communication. 252 Division of Fish and Wildlife, DNREC. Personal correspondence. June 3, 1999. 218 Del. Code Ann. tit. 7, §§ 7001 et seq. 219 Del. Code Ann. tit. 7, §§ 7001. (emphasis added.) 220 See id. § 7003. 221 Draft Coastal Zone regulations, § I.1.a 222 Summary Document, Technical Workshop, Delaware Coastal Zone Environmental Goals and Indicators, January 29, 1999, Appendix C, pp. 2a and 2b. 223 Brown, Dennis. Office of the Secretary, DNREC. Personal communication. February 18, 1999. 224 Draft Coastal Zone regulations, § F.2. 225 Ritter, William. University of Delaware. Personal communication. March 1, 1999. 226 See 40 C.F.R. part 412. 227 The Governor's Task Force on Nutrient Management recently succeeded persuading the legislature to pass legislation to form a nutrient management commission to write nutrient management regulations. H.B. 250, signed by Governor Thomas Carper on June 17, 1999, codified at Del. Code Ann. tit. 3, § 2201 et seq. 228 16 U.S.C. § 1856(a), incorporating by reference, inter alia, the 1982 United Nations Convention on the Law of the Sea. 229 16 U.S.C. § 1856(a)(3). 230 Del. Code Ann. tit. 7, Finfishing in Tidal Waters; Tidal Finfishing regulations.; Division of Fish and Wildlife, DNREC. Personal correspondence. June 3, 1999. Note: the Atlantic States Marine Fisheries Commission was formed in 1942 as a cooperative agreement among all of the Atlantic Coast states (from Maine to Florida). The ASMFC enacts policy on a majority vote basis, and if a state fails to abide by the requirements of the ASMFC (such as mandatory reporting regulations), the Secretary of Commerce then has the authority to intercede and assume responsibility for regulation of fisheries of that state. 16 U.S.C. § 1856(b). Delaware is a member state of the ASMFC. 231 Del. Code Ann. tit. 7, § 9810(14). 232 See id. § 9810(13). 233 Lesser, Charles. Division of Fish and Wildlife, DNREC. Personal communication. 234 Delaware Tidal Finfish Regulation 12. 235 Field, John, Assistant Director of the Interstate Management Program, Atlantic States Marine Fisheries Commission. Personal communication. March 4, 1999. 236 Field, John, Assistant Director of the Interstate Management Program, Atlantic States Marine Fisheries Commission. Personal communication. March 4, 1999. 237 Field, John, Assistant Director of the Interstate Management Program, Atlantic States Marine Fisheries Commission. Personal communication. March 4, 1999. 238 Division of Fish and Wildlife, DNREC. Personal correspondence. June 3, 1999. 239 Field, John, Assistant Director of the Interstate Management Program, Atlantic States

78 protecting delaware’s natural heritage chapter 4 79 80 protecting delaware’s natural heritage Chapter 5 Protection of Open Space in Delaware

ublic acquisition of key lands and waters is an impor- for public land acquisition and Delaware’s public has tant part of any strategy to provide long-term protec- shown a strong commitment to supporting state funding Ption of biological diversity. Nationally, the 1990 state for open space protection. average of the percent of land held publicly was 19 percent. At that time, public holdings in Delaware accounted for only 9 percent of the state (including land held by federal, DELAWARE’S STATE PARK SYSTEM state, county, and private conservation organizations). Delaware ranks near the bottom in the percentage of state The state parks law6 sets forth the basic structure of the acreage in federal ownership, with only 2.3 percent federal- Delaware State Parks system. It empowers DNREC to ly owned.1 One goal of the state’s Open Space Program “select and acquire” areas “to be utilized chiefly for recre- (See below: Open Space Protection) was to raise Delaware’s ation, and to develop and maintain such areas.”7 The law protected land base to the 19 percent national average.2 goes on to set forth DNREC’s powers and duties relating Since 1990, Delaware’s Open Space Program and private to the parks system, such as establishing regulations, setting conservation organizations have effectively increased the fees, and granting easements. The law specifically requires percentage of publicly held lands to about 13 percent. This DNREC to “plan, develop and maintain all areas entrusted figure includes lands enrolled in the agricultural preserva- to its administration as to preserve in every reasonable tion program.3 degree the scenic, historic, scientific, prehistoric and Delaware’s public lands are owned and managed by sev- wildlife values of such areas.”8 eral different agencies. The Department of Agriculture’s While Delaware’s park system contains some of the most (DDA) Forest Service manages Delaware’s three state important natural areas in the state, and the law requires forests, currently comprising approximately 10,880 acres. 4 DNREC to maintain the wildlife value of the parks, for Additionally, the Delaware Department of Natural practical reasons biodiversity issues have not yet figured Resources and Environmental Control (DNREC) manages prominently in DNREC’s park administration. The chal- substantial open spaces. Its Division of Parks and lenge and opportunity DNREC faces in incorporating bio- Recreation manages over 22,000 acres of state parks, nature diversity conservation into its park planning is discussed preserves, and land in conservation easements, while its further in Chapter 6. Division of Fish and Wildlife owns and manages twelve major wildlife areas comprising over 47,000 acres5 (See Box: Protected Lands in Delaware). NATURAL AREAS PROTECTION IN DELAWARE Finally, several private conservation organizations own land in Delaware for conservation purposes (See boxes In 1978, the Delaware Nature Education Society (now the throughout chapter). Voluntary conservation is the hall- Delaware Nature Society, or DNS) published “Delaware’s mark of a society that cares about biological diversity. Outstanding Natural Areas and Their Preservation.” The Throughout the state’s history, Delawareans have demon- book was published in “response to continued erosion of the strated a profound appreciation for the state’s biological state’s natural areas.”9 This seminal publication was the cul- resources, as well as a commitment to protecting them. mination of a project, begun in 1973, to conduct a statewide Delaware is blessed with a wide variety of funding sources inventory of Delaware’s “remaining areas worthy of preserva-

chapter 5 81 tion.”10 An advisory committee of statewide experts was con- Following completion of the second inventory of natural vened to design a study to define natural areas, develop crite- areas (the first was conducted of New Castle County and ria for assessing such areas, and conduct field surveys to published in 1975 and the second study, “Critical Natural assign numerical ratings for these criteria. The areas were Areas in Kent and Sussex Counties,” was published in then ranked and additional field studies were conducted to 1976)11 a two-day symposium was held, bringing together delineate boundaries. The field investigations took into interested parties from Delaware and nearby states.12 account the vegetative communities, but not animals. Attendees reached clear consensus that “a natural areas

Protected Lands in Delaware

Division of Fish and Wildlife Wildlife Areas 47,996 Additional lands leased for management purposes 7,000 Total 54,996

Division of Parks and Recreation Parks 19,408 Nature Preserves 1,318 Total 20,726

Delaware State Forest Lands Blackbird State Forest 4,340 Taber State Forest 1,174 Redden State Forest 5,367 Total 10,881

U.S. Fish and Wildlife Service Refuges Bombay Hook National Wildlife Refuge 15,978 Prime Hook National Wildlife Refuge 9,725 Total 25,703

Other Delaware Nature Society 753 Delaware Wild Lands, Inc. 35,000* The Nature Conservancy 5,735 Nature Preserves (held by private landowners and other agenicies) 429 Total 41,917

Sources: • Manus, Andrew. Division of Fish and Wildlife, DNREC. Personal correspondence • Short, E. Austin III. DDA Forest Service. Personal correspondence. August 17, 1999. • Delaware Nature Society. “1998 Annual Report.” • Daly, Paul. Refuge Manager, Bombay Hook National Wildlife Refuge. • O’Shea, George. Refuge Manager, Prime Hook National Wildlife Refuge • Harvey, Rusty. Delaware Wild Lands, Inc. Personal communication. • Line, Robert and Ron Vickers. Division of Parks and Recreation, DNREC. Personal correspondence

*Approximately 14,000 acres have been transferred to state agencies and other entities.

82 protecting delaware’s natural heritage preservation policy should be formulated immediately, that unique areas expressly for their biological, geological, or the program should be administered by an existing govern- aesthetic values, as distinct from a state parks system, ment agency, and that comprehensive legislation should be which primarily provides recreational opportunities. enacted by the Delaware General Assembly to designate the Delaware’s nature preserve system was designed to pro- agency and provide necessary authority, enforcement pow- vide habitat for plants, animals, and natural communities, ers, and funding.”13 to maintain reservoirs of “natural materials,” and to pro- Ushered through by a DNS-established Committee, tect “places of natural interest and beauty.”15 The Natural model legislation establishing a Delaware system of nature Areas Preservation System law states that “it is necessary preserves was drafted and introduced in 1977, and in 1978 and desirable that areas of unusual natural significance be Delaware’s Natural Areas Preservation System law 14 was set aside.” The law directs DNREC to acquire and hold enacted by the state legislature. Delaware became one of nature preserves for this purpose.16 It also gives DNREC the first states in the nation to enact a law protecting the authority to formulate policies for nature preserves,

Delaware Nature Society

Founded in 1964, the Delaware Nature Society Delaware Canal and later expanded to include stream seeks to foster “understanding, appreciation, and corridors. enjoyment of the natural world” through education, land protection, and advocacy. DNS maintains two Stream Watch and Soil Watch nature centers, Ashland and Abbott’s Mill Nature DNS administers two conservation and education Centers, runs a wide variety of educational pro- programs that help to promote biodiversity and grams, and focuses the majority of its conservation water quality improvement. The Stream Watch pro- activities in northern New Castle County and near- gram is a grassroots volunteer waterway monitoring by Pennsylvania. DNS also manages four nature program co-sponsored by DNS and DNREC that preserves — Burrows Run Preserve, Flint Woods provides training to volunteers for stream adoption Preserve, the Marvel Saltmarsh Preserve, and Cedar and surveying. Stream Watch is a partnership with Bog Preserve — for “biodiversity, research, and edu- five public agencies and is supported by a private cational programs.” In total, DNS owns and man- foundation. A companion program, Soil Watch is ages 753 acres of natural areas, all of which have administered by DNS in partnership with DNREC been acquired through donation. DNS works in and local industries. Through the Soil Watch pro- cooperation with a variety of partners to protect gram, participants receive training on how to test these sites. For example, at the Abbott’s Mill Nature Delaware’s streams for excess sedimentation, which Center, DNS works in cooperation with Conectiv, a has an adverse impact on water quality and aquatic utility company that owns a right-of-way intersect- biodiversity. ing the property. Stream Corridor Greenways Landowner Stewardship Program In 1990, DNS began a stream corridor greenway In 1988, DNS established a landowner Stewardship protection program to improve water quality and Program. Landowners enrolled in the program now protect animal migration corridors. A series of green- voluntarily protect over 5,000 acres and 79 miles of way corridors have been delineated and land owner- stream corridors. DNS works with landowners to ships identified along designated waterways in improve stewardship of their properties by providing Northern Delaware. Riparian landowners are encour- technical support and helping them develop and aged to place a conservation easement on their prop- implement appropriate management practices. The erty to ensure permanent protection and become program initially focused on landowners in state-desig- stewards of the greenway corridor by managing their nated Natural Areas north of the Chesapeake & lands in an environmentally sensitive manner.

chapter 5 83 advocate for the establishment of preserves, and conduct that total acreage, a little over half, 54,735 acres, are cur- interpretive programs within the preserves.17 Finally, the rently under some form of protection.22 Prior to establish- law established a Natural Areas Advisory Council18 and ment of the Open Space acquisition program, discussed requires DNREC to compile a registry of natural areas of below, only 45,165 acres on the Natural Areas Inventory “unusual significance.”19 had been protected. Since 1990, the Open Space Program has brought over 9,570 acres of land on the Inventory Protection Status of Delaware’s Natural Areas under protection.23 The original Natural Areas Inventory (NAI) was based on Delaware’s natural areas are protected through a number the 101 Natural Areas first identified in the DNS publica- of mechanisms and are owned by a variety of agencies and tion in the late 1970s. In 1988, the NAI was revised with organizations. Only 2,245 acres (less than 4.3 percent) of public input, resulting in the list in use today.20 This list, the state’s protected natural areas are within the state’s now included in the Natural Areas Law, reduced the num- DNREC-administered Nature Preserves Program. All of ber of proposed natural areas to 67, but increased the total these Preserves have Memoranda of Understanding acreage targeted for protection. At present, the total area (MOU) or conservation easements in place, as well as man- targeted for protection encompasses over 99,730 acres.21 Of agement plans to ensure their protection. Although most of

The Nature Conservancy, Delaware Field Office

The Nature Conservancy is a international, nonprofit “Last Great Places” identified by TNC in Delaware organization dedicated to conserving biological diver- include: sity. The Conservancy’s mission is to project plants, animals, and natural communities that represent the • The Delaware Bayshores – Spanning the south- diversity of life on Earth by protecting the lands and ernmost counties of New Jersey and extending across waters they need to survive. The Conservancy works the bay into Delaware, the 1,552-square mile in partnership with landowners, corporations and Delaware Bayshores encompasses some of the most governments to achieve their conservation goals. crucial habitat on the East Coast. Each spring, mil- TNC maintains an on-the-ground presence in more lions of migratory shorebirds descend on its pristine than 300 communities throughout the United States. sandy beaches and tidal mudflats during their annual Since its inception in 1951, TNC has protected more migration. In the fall, thousands of migrating raptors, than 10 million acres in the United States, creating waterfowl and wading birds also pass through the the largest system of private nature sanctuaries in the Delaware Bay resting and foraging in the area’s vast world. The Delaware Chapter was established in tidal and freshwater marshes. All told, the Bayshore’s 1989, since which time it has protected over 11,000 matrix of habitats — sandy shoreline, marshland, acres in Delaware. The Conservancy currently owns coastal plain ponds, lowland swamps and forests — and manages 5,700 acres at eight preserves. TNC, in support over 125 rare species, 19 of which are feder- cooperation with Natural Heritage programs and ally listed endangered species. conservation partners, is defining places to conserve in order to protect the full range of biological diversi- • The Nanticoke River – The Nanticoke River is a ty in the United States and internationally. This major tributary of the Chesapeake Bay. The Nanticoke “Blueprint for Saving Our Last Great Places” guides watershed is home to more than 260 rare plants and TNC’s conservation efforts in Delaware. The “Last animals, more than any other location on the Great Places” support outstanding examples of Delmarva Peninsula. Much of the watershed remains Delaware’s most biologically rich and distinctive in exceptional condition, with large stands of unbro- habitats, including Atlantic white cedar swamp ken forests, freshwater intertidal wetlands, coastal plain forests, Delmarva Bays, and tidal marshlands. ponds, xeric dunes and Atlantic white cedar swamps.

84 protecting delaware’s natural heritage these Nature Preserves are publicly owned, some preserves for rare and endangered species, cultural resources, mill are also in private ownership.24 ponds, freshwater wetlands, and stream valley corridors.”31 Natural areas in the registry can only receive nature pre- In order to select the resource areas, the Greenspace serve status through a dedication process elaborated in the Committee used three criteria. The sites were required to: law.25 Once dedicated as state nature preserves, these sites contain multiple outstanding resources of statewide are afforded the highest level of protection of any publicly importance; contain a single exceptional ecological, botan- owned land in the state.26 The only way a nature preserve’s ical, geographic, historic or geologic attribute of state, designation can be removed is through a finding by national, or international importance; or provide public DNREC of the existence of an imperative and unavoidable access to outdoor recreational opportunities.32 The public necessity for public use and with the approval of the Committee provided the public with the opportunity to governor, after consultation with the Natural Areas review the identified resource areas. As a result of the pub- Advisory Council, and by an act of the General Assembly.27 lic involvement, one resource area — Red Clay Creek — Of the Natural Areas currently under state protection, was added to the list of sites.33 those not within the Nature Preserves system have been In 1989, the Greenspace Committee published its protected by a wide array of agencies, organizations, and report, “Greenspace for Delaware’s Future.” The report DNREC divisions. For example, about 36 percent of the highlighted the 19 resource areas and issued several recom- Division of Fish and Wildlife’s property (or 17,340 acres) is mendations for protecting these biologically and culturally on the NAI; 45 percent of the Division of Parks and important places. At the time the resource areas were iden- Recreation’s property (or 8,171 acres) is on the NAI; and tified, the Delaware’s Natural Heritage Program (See Ch. 6: 89.6 acres of NAI property is owned by the DDA Forest Delaware Natural Heritage Program) was still in its infancy, Service. The U.S. Fish and Wildlife Service (FWS) has having been established in 1987 as a joint effort between approximately 8,250 acres of NAI land within its wildlife DNREC and TNC.34 Therefore, the sites were not selected refuges, The Nature Conservancy (TNC) (See box below) based on the data now available through this program on has approximately 2,308 acres, and Delaware Wild Lands, the distribution of at-risk plants, animals, and ecosystems. Inc. (See box below) owns approximately 17,000 acres of The resource areas are primarily in-holdings and lands NAI lands. Approximately 190 acres of NAI property are adjacent to existing protected lands, such as federal, state, currently privately owned and under a conservation ease- local, and private conservation lands. Resource areas were ment. Finally, a variety of county and municipal parks also designed to protect lands with significant natural and departments, villages, and land conservation organizations cultural resource areas, riparian corridors, and habitat corri- own outright or hold conservation easements on another dors between protected lands.35 1,360 acres of NAI property.28 The report recommended the adoption of several tools and policies to ensure long-term protection of these sensitive lands. The recommendations included: OPEN SPACE PROTECTION: THE LAND PROTECTION ACT • establishment of an aggressive land acquisition program at the state level; In 1988, the Governor’s Environment and Infrastructure • expansion of a statewide conservation easement program Cabinet Council formed the Greenspace for Delaware’s as a joint effort between state government and private Future Committee (Greenspace Committee) to define a non-profit organizations; long-range strategy to permanently protect the state’s • establishment of a Purchase of Development Rights important greenspaces.29 Comprised of a broad range of (PDR) program to protect natural and cultural resources; environmental managers and resource professionals, the • development of overlay zones to protect groundwater Committee identified 19 geographic areas comprising recharge and discharge areas, unique natural areas, steep approximately 210,000 acres (18 percent of the state’s total slopes, and floodplains; and land base) to be targeted for protection. These State • examination of the state tax code to formulate tax Resource Areas (SRAs) are those sites that the Committee options to encourage landowners to donate their lands determined to be “highly important to the state’s natural or sell development rights. and cultural heritage and biological diversity.”30 In addition, the Committee identified several “stand alone” sites The “Greenspace for Delaware’s Future” report was sup- that were considered a high priority for protection because ported by a variety of organizations, agencies, and individ- they include “state-recognized unique natural areas, habitat uals in the state concerned with the loss of open space and

chapter 5 85 Delaware Wild Lands, Inc.

Formed in 1961, Delaware Wild Lands, Inc. was the have been acquired as gifts or through fee-simple state’s first private land conservancy. To date, the acquisition. Delaware Wild Lands holds no conser- organization has preserved approximately 35,000 vation easements. It does, however, grant hunting acres in the state and maintains ownership of 21,000 leases on its properties and rent out some of the acres. Some of the acquired lands have been trans- agricultural lands. Many of the organization’s prop- ferred to DNREC or to private organizations with erties have been acquired through cooperative pro- similar goals. Approximately 11,000 acres of jects with other organizations. For example, Delaware Wild Lands’ property is located in Sussex Delaware Wild Lands worked with TNC, Ducks County in what remains of the Cypress Swamp. The Unlimited, and DNREC to acquire the Milford organization also owns 900 acres in the “little bays” Neck property. area of Rehoboth. The balance of Delaware Wild Delaware Wild Lands employs a land manager Lands’ properties is mostly coastal sites and associat- who develops management plans for the organiza- ed upland buffers, in Kent and Sussex Counties. tion’s properties. The plans are designed to ensure Delaware Wild Lands maintains its property as that the properties, many of which have been private holdings, although access can be arranged impacted by human use, are managed to improve by contacting the organization. The properties habitat for plants and animals

biological diversity. Using the Greenspace report as a breadth of authority, and the fact that this authority is framework, over 300 conservation and civic organizations granted to three state agencies, the Act also authorizes that supported efforts to draft legislation establishing a land any interest in real property may be acquired. The Act protection law that would secure funding to protect the defines “interest in real property” to include “any right in identified resource areas.36 real property” including “fee simple, easement, remainder, future interest, lease, license or covenant of any sort, option Enactment of the Land Protection Act or contractual interest or right concerning the use of or In 1990, the Delaware Land Protection Act37 was passed to power to transfer property.”40 address open space protection. It authorizes DNREC, DDA, and the Department of State38 to acquire open space Delaware Open Space Council and Acquisition expressly to: Prioritization To facilitate the broad and explicit acquisition mandate set • protect and conserve all forms of natural and cultural forth in the Land Protection Act, DNREC is required to resources; create maps depicting SRAs.41 These maps are to be updat- • protect and conserve the biological diversity of plants ed in consultation with county governments every five and animals and their habitats; years.42 The law also created a Delaware Open Space • protect existing or planned parks, forests, wildlife areas, Council, whose role is to review, advise and make recom- nature preserves or other recreation, conservation or cul- mendations on key aspects of the acquisition effort.43 tural sites by controlling the use of contiguous or nearby The Open Space Program has identified more than lands; and 250,000 acres of SRAs.44 As of September 1999, only • allow for water quality conservation.39 115,000 acres of SRA land had been protected by easement or acquisition (See Ch. 3: State Agency Influence on Land The state’s mandate to acquire property for its biological Use).45 The Open Space Council and DNREC should value is much broader and explicit under the Land ensure that political pressures do not distort the objectives Protection Act than under either the Natural Areas of the program with respect to acquisition of the designat- Preservation System or State Parks laws. In addition to this ed SRAs and stand alone sites. Open space funds should

86 protecting delaware’s natural heritage The Brandywine Conservancy

In 1967, the Brandywine Conservancy was founded Conservancy currently holds 15 conservation ease- to protect the Brandywine Valley in southeastern ments that lie either totally or partially within Pennsylvania and northern Delaware. The Delaware, protecting approximately 170 acres. The Conservancy’s Environmental Management Center Center’s Land Stewardship Program works with pri- works to acquire conservation easements and admin- vate landowners to develop plans for protecting, man- isters a variety of environmental programs. The aging, and improving their properties.

not be used to acquire parcels linked to the economic those areas “listed in the state natural areas inventory.”51 development priorities of the state, but rather should be The UDC also specifies precise percentages of steep slopes guided by the program’s intent and the requirements of the of different grades, young and mature forests, drainage Land Protection Act, which emphasize biological diversity, ways (i.e. intermittent streams), and other natural resources contiguous parcels, and water quality. that must be preserved as open space.52 Developers are required to submit to the county a plan outlining how they Obligations of Local Government will meet the set-aside standards. Implementation of the Land Protection Act requirements This new and very specific set of standards has advan- for Delaware counties could significantly advance biodiver- tages and disadvantages. On one hand, the standards give sity conservation in the state. The law requires each county developers a clear understanding of what will be required to protect the ecological, historical, and archaeological of them. Also, compliance assessment (including DNREC functions within the SRAs through overlay zoning ordi- review and comment) is clearcut due to the specificity of nances that establish frontage, building height, setback and the standards. On the other hand, the UDC may not pro- site design requirements that “minimize the loss of open vide adequate open space set-asides in every instance. space and associated values of state resource area lands,”46 Moreover, due to the specificity and non-discretionary and through adoption of technically based environmental nature of the set-aside requirements, developers may resist performance standards and design criteria.47 further suggestions for site-specific open space set-asides. Counties are required to adopt such measures within 18 Kent and Sussex Counties have yet to follow suit. In months of receiving the resource maps from the 1996, Kent amended its zoning ordinance to describe the Department. Counties that fail to do so are ineligible for amounts of open space, frontages, and setbacks that are state assistance grants in this area.48 While the law also required for major subdivision developments occurring mentions density bonuses, credits, allowances and other within the Agricultural Conservation and Agricultural incentives, the law only requires counties to “evaluate and Residential zoning districts.53 Precise requirements vary consider enactment” of such measures.49 based on the zoning district. However, the ordinance does Of the state’s three counties, New Castle has most effec- not contain percentages of open space that must be pre- tively met these obligations. In 1991, it enacted a Critical served in other zoning districts. Nor does it contain perfor- Natural Areas (CNA) ordinance. The ordinance required mance standards for the specific SRAs. The Kent County developers to submit a report to the county if lands they ordinance should be modified to include performance stan- proposed for development fell within a designated CNA. dards for SRAs and to apply the open space set-asides to all Under the ordinance, DNREC has review and comment zoning districts. authority regarding these plans, while ultimate approval The Sussex zoning ordinance contains little guidance authority remains with the county.50 In 1997, New Castle regarding open space protection.54 The ordinance states adopted its Unified Development Code (UDC), which that the purposes of Agricultural Residential Districts (AR- supplements the CNA ordinance with specific performance 1 and AR-2) include protection of watersheds, water standards for the amount of open space set-asides required resources, forest areas, and scenic values.55 Parks, forests, for any development. The code further defines CNA’s as and wildlife reservations are permitted uses in the zones,

chapter 5 87 but there are no provisions describing how to achieve open In some instances, Delaware counties have clearly space preservation within the districts.56 The sole mention lacked the political will and resources to fully implement of open space requirements for these districts is a require- the requirements of the Land Protection Act. For example, ment of 3/4 acre minimum lot sizes within these districts the Kent County Parks and Recreation Department has if they are not connected to a sewer system.57 Other dis- received funding from the state Land and Water tricts, such as Medium Density Residential, General Conservation Trust Fund (LWCTF) to develop a model Residential, High Density Residential, and General overlay ordinance in conjunction with the Kent County Business Districts, contain this same lot-size provision for Silver Lake Watershed Greenway Plan. The proposed ordi- areas not connected to a sewer system, but similarly con- nance is envisioned to “incorporate riparian buffer tain no other open space preservation requirements. As resource protection, stream side management zones, with New Castle County, DNREC has authority to review wildlife habitat preservation, enhancement of the existing development plans in Kent and Sussex Counties. flood plain ordinance…enhanced wetlands protection, Thus, the three counties have distinctly different cir- and other performance-based requirements [in compliance cumstances regarding their open space preservation with the Land Protection Act].”59 However, the county’s efforts, as well as their compliance with the Land local government has not provided the matching funds Protection Act. Kent, though not in compliance, does necessary to release the funding. Kent County should pro- have some open space requirements, and in some vide the local parks department with the matching funds instances is achieving improved results through enlight- necessary to allow the county to comply with the Land ened application. Sussex is not in compliance, and does Protection Act’s legal requirements. not appear to be taking any steps to incorporate open DNREC, for its part, is required to create maps depict- space preservation into its development patterns. New ing SRAs from which counties are to develop overlays to Castle, although it has made the greatest effort of the protect the SRAs shown on the maps.60 The maps of SRAs three counties in open space preservation, is also not in that DNREC has provided to date are sometimes of insuf- compliance. As described above, CNAs are defined in the ficient detail or accuracy to be of use to localities. DNREC New Castle UDC as those areas “listed in the state natural should continue to improve the accuracy of the SRA maps areas inventory,” rather than as State Resource Areas provided to the counties, and work with the counties to defined in the Land Protection Act. While there is some help them fulfill their legal obligations under the Land overlap between parcels identified as State Resource Areas Protection Act. and sites in the Natural Areas Inventory, the overlap is not complete.58 As a result, New Castle County is not in com- Delaware’s Greenways & Trails Program pliance with the Land Protection Act, which requires that Delaware’s Greenways & Trails Program was established in counties enact overlay zoning ordinances for SRAs, rather 1995 to provide connections among the state’s parks, than areas in the state NAI. In the meantime, SRAs wildlife areas, and other open spaces. The program is fund- remain subject to strong development pressure and are in ed through the Delaware LWCTF and administered by need of enhanced protection. DNREC’s Division of Parks and Recreation. Greenway Considering the inconsistencies among the counties, links are meant to provide habitat for wildlife migration and that none of the state’s three counties are complying and recreational opportunities for the state’s citizens. with legal requirements, DNREC and the Office of State Greenways can be either publicly or privately owned. Planning Coordination (OSPC) should work closely with The Greenways legislation also established a Council on the counties to achieve optimal open space preservation Greenways and Trails, which acts in an advisory capacity to throughout the state. State officials could convene plan- the Secretary of DNREC, and encourages local communities, ners from the counties to learn from each others’ experi- counties, and state agencies to create greenway links to serve ence, and in doing so begin a process that could result in environmental and recreational needs of Delaware citizens. greater set-asides with more consistent inter-county stan- The Greenways Program makes annual grants to dards. State officials could consider not only requiring the municipal, county, and state agencies, as well as local park counties’ participation in some type of process, but also districts, for greenway and trail acquisition and develop- requiring them to agree to a schedule by which their ordi- ment. The program provides state-sponsored projects nances would be revised to achieve compliance with the with up to 100 percent of project funding. Local park law. A thorough evaluation of density bonuses, credits, districts are eligible to receive up to 75 percent, and other allowances and other incentives should be included in applicants are eligible for 50 percent matching funds. The whatever inter-county process may be undertaken. program encourages partnerships between government

88 protecting delaware’s natural heritage Coastal Heritage Greenway

The Coastal Heritage Greenway is the most com- Penn, Woodland Beach Wildlife Area, Lower St. prehensive endeavor within the state’s Greenway Jones River, Milford Neck Focus Areas, and Cape Program. A corridor of open space along more Henlopen. A 27-stop Coastal Heritage Greenway than 90 miles of Delaware's coast, the Coastal Auto Tour was published to highlight some of the Heritage Greenway spans the area between Fox rich natural, cultural and historic resources along Point State Park and the state line at Fenwick Delaware's coast, and several interpretive trail Island. Focus areas along the Coastal Heritage guides describe the rich cultural and natural history Greenway include: Fox Point, New Castle, Port of sites along the coast.

agencies, non-profit organizations, and others. The spon- sources of funding for these acquisition projects are the soring agencies are required to dedicate projects that pro- Federal Wildlife Restoration Fund, Federal Sport Fish vide public outdoor recreation opportunities in perpetu- Restoration Fund (See Ch. 6: Funding For Wildlife), and ity and also must assume responsibility for continuing the North American Coastal Wetland Grant funds. The operation and maintenance. division has also leveraged environmental settlement funds Program funding is available for acquisition of open to purchase lands adjacent to wildlife areas. In the case of a space for greenway corridor preservation, greenway plan- settlement with Public Service Electric and Gas Co. (See ning, trail planning and design, new trail construction, Ch. 6: Phragmites Control Efforts), funds were provided trail extension construction, development of trailheads by the utility as compensation for damage caused to fish- and associated facilities, road crossing improvements for eries in Delaware Estuary. These funds were used to pur- trails, and foot bridges. Greenway and trail grant applica- chase upland buffers to tidal wetlands. The division also tions are evaluated and ranked by the Council on receives donations of property from private individuals, Greenways and Trails. The review process is designed to non-government organizations, and corporations. All of evaluate the quality of the application and select projects these sources of funding to purchase property are leveraged that are of the most benefit to Delaware’s citizens. through partnership to maximize the purchasing power of For example, the East Link of the Northern Delaware limited funds.61 Greenway spans 10 miles of northern New Castle County from Fox Point State Park on the Delaware River to Brandywine Creek State Park. This urban trail con- AGRICULTURAL LAND PROTECTION nects with Wilmington Walkways and links together residential communities, schools, businesses, parks, and cul- Delaware’s Agricultural Lands Preservation Act was estab- tural sites. Eventually, the Northern Delaware Greenway lished due to the General Assembly finding that “valuable and will stretch across New Castle County connecting with irreplaceable farmlands and forestlands are being lost due to greenways in Middle Run Natural Area and White Clay nonagricultural development pressures.”62 Under the Act, Creek State Park near Newark. Fox Point State Park is agricultural land in Delaware can be enrolled in an the northern end of the Coastal Heritage Greenway. Agricultural Preservation District, making it exempt from property, school, and realty transfer taxes.63 Enrolling farmland in a district therefore provides incentives for owners of STATE WILDLIFE AREAS farmland to retain ownership and resist sale for development. Land enrolled in Agricultural Preservation Districts is not Although the majority of the Division of Fish and allowed to be rezoned or to undergo a major subdivision, Wildlife’s land acquisition is accomplished through the and activities on the property are limited to agricultural and Open Space Program, the division has been successful in related uses. Lands placed in a district must remain enrolled securing additional funding for acquisition. The primary for at least 10 years; if the owner does not notify the

chapter 5 89 Working in Partnership to Protect a Valuable Delaware Resource

The Nanticoke River, one of the Chesapeake Bay’s Recognizing the value of this unique Delaware most productive tributaries, begins its journey in resource, in 1989, The Nature Conservancy’s southern Delaware. It flows southwest through Delaware and Maryland/DC chapters, Chesapeake Maryland’s Eastern Shore before emptying into Bay Foundation, U.S. Fish and Wildlife Service, Tangier Sound and the Chesapeake Bay. The Blackwater National Wildlife Refuge, DNREC’s Nanticoke drains a 528,000-acre watershed, an area Division of Fish and Wildlife, the Nanticoke River that is home to a greater concentration of rare plants Watershed Conservancy, Maryland Department of and animals than anywhere else in the state, includ- Natural Resources, and the Nanticoke Watershed ing more than 260 rare plants and animals, bald Alliance joined forces to protect 50,000 acres eagles, Delmarva fox squirrel, as well as numerous throughout the watershed. The project will focus on species of waterfowl. In addition, the Nanticoke’s protecting four habitat types — freshwater intertidal abundance of striped bass, oysters, and blue crabs wetlands, coastal plain ponds, dunes, and Atlantic supports a valuable commercial fishery. white cedar swamps. Three key sites in the watershed Over 50 percent of the wetlands in the Nanticoke will receive particular attention from TNC: watershed have been lost over the past 50 years. In Middleford North, the confluence of the Nanticoke addition, extensive stream channelization and dredg- River and Broad Creek, and the confluence of the ing have disrupted aquatic habitats. Excessive nutri- Nanticoke and Marshyhope Creek. ent loading and sedimentation from surrounding Together, this diverse partnership hopes to land uses, such as agriculture, also have degraded secure the funds necessary to ensure that this valu- water quality. able resource continues to provide Delawareans However, the Nanticoke remains in exceptional with a wide array of benefits while ensuring that condition. Much of its watershed is undeveloped and critical habitat for the state’s rare plants and ani- large stands of unfragmented forests line the river. mals is protected.

Source: Jones, Roger. 1999. “Nanticoke River, Delaware and Maryland.” Project description. TNC: Dover, DE.

Delaware Agricultural Lands Preservation Foundation’s which provided $45 million for farmland preservation in (DALPF) of intent to withdraw the lands from the district fiscal years 1996 through 2000.68 The recently established at least six months before the expiration of the period, the Growth Management Fund allocated another $20 million lands are automatically enrolled for additional five-year for fiscal years 1999 through 2001.69 State expenditures for periods until the owner provides timely notice.64 the program must be matched by outside funding at a 4:1 Under the Agricultural Lands Preservation Act, land in state/non-state ratio, a requirement that is met by the dis- designated Agricultural Preservation Districts also is eligi- counted prices at which the sales take place.70 ble for Delaware’s purchase of development rights (PDR) program. Under the PDR program, farmland owners may Eligibility and Scoring of Farmland apply to sell to the state the development rights to their To be eligible for enrollment in an Agricultural land. When development rights are purchased by the Preservation District, farmland must consist of at least 200 state, land in Agricultural Preservation Districts is perma- acres. Smaller parcels of farmland may be included in a dis- nently protected from development.65 In return, the trict if they are within three miles of an existing district.71 landowner receives compensation for the value of the Eligibility is limited further to land eligible under the development rights.66 Farmland Assessment Act (See Ch. 7: Agriculture Tax Funding for the PDR program has come from the 21st Incentives). Land must be zoned for agriculture, may not Century Fund (See below: The 21st Century Fund),67 be part of an existing subdivision plan, and must receive a

90 protecting delaware’s natural heritage certain minimum Land Evaluation and Site Assessment ture has a greater potential to provide habitat for wildlife score.72 Applications for inclusion in a district must include and provide water quality benefits than can land developed all the eligible land in the parcel.73 This prevents owners for residential or commercial use (See Box Ch. 1: Farming from developing less agriculturally productive portions of For Wildlife). their land while reaping the benefits of enrolling select However, the program does not require or encourage parcels of farmland in a Preservation District. owners in Agricultural Preservation Districts to manage Eligible lands are assigned a Land Evaluation and Site their farmland in an environmentally sensitive manner Assessment score based on the farmland’s viability and pro- (e.g., installing bufferstrips along streams and ditches, ductivity. Other factors considered for eligibility include maintaining windbreaks, utilizing no-till farming). the percentage in agricultural use, its priority in the state Delaware should consider several options for encouraging agricultural lands preservation strategy, the likelihood of environmentally beneficial practices on enrolled farmland. conversion to a non-agricultural use, the potential for Delaware could enact a law to give tax credits to farm- expansion of the district, whether it is adjacent to open land owners who adopt beneficial practices. In 1997, a law space or areas of historic or ecological significance, and was proposed that would have granted a partial income tax consistency with the county’s comprehensive plan.74 credit for costs incurred by a district landowner in conjunc- Though the explicit purpose of the Agricultural Lands tion with an approved agricultural conservation manage- Preservation Act is to protect farming,75 some weight is ment plan.87 Eligible costs could include forest and wetland given by the statute to the benefits of open space and other, management, habitat improvement, surface water runoff undefined, socio-economic benefits.76 In addition, a 1981 management, establishment of bufferstrips, exotic species executive order identifies among the goals of agricultural control, and manure composting and management.88 protection the preservation of natural and ecological Although such a law would require monitoring of conser- values.77 Natural areas and proximity to open space are vation management plan implementation, it would provide given low weights, and other characteristics possibly benefi- an incentive to enhance the value of farmland for biodiver- cial to biodiversity given a zero value.78 Giving increased sity conservation. weight to biodiversity-related values in the evaluation and DDA also could coordinate with the U.S. Department scoring process could help direct the program’s funds to of Agriculture and the U.S. Fish and Wildlife Service to preserving the land most beneficial to the public. give additional preference to landowners in Agricultural When land is enrolled in an Agricultural Preservation Preservation Districts for enrollment in easement and District, the tax benefits and protections of the program cost-share programs through existing Farm Bill and are extended to non-agricultural areas of the farm, such as wildlife enhancement programs, such as the Conservation wetlands and forests, which provide valuable habitat and Reserve Program, Conservation Reserve Enhancement other positive environmental benefits.79 This is significant, Program, Wildlife Habitat Incentives Program, and as 83 percent of the privately owned wetlands in Delaware Partners for Fish and Wildlife (See Ch. 7). This would are located on farmland.80 Under the current scoring sys- give district landowners an added incentive to maximize tem, wetlands are not included in the Land Evaluation the conservation benefits of their property (e.g., restoring score.81 As a result, the presence of wetlands on a farm does wetlands, establishing bufferstrips along streams, retiring not decrease the average score of the parcel.82 Although marginal farmland). DALPF has been under pressure to exclude “unproductive” farmland from the program, such as farms that include Using the Farmland Preservation Program to wetlands and forests, DALPF has defended the current Grow Smarter scoring system.83 The preservation of farmland benefits the public in many Applications are reviewed by DALPF, an appointed ways, including slowing the spread of suburban sprawl statewide body,84 the Farmland Preservation Advisory into undeveloped areas. However, if the farmland preser- Board for that county,85 and the Planning and Zoning vation program were better targeted, it could provide Commission of the county. The district is established if any more public benefit — conserving open space and guid- two of these three bodies approve the application.86 ing growth — for the public dollars spent on agricultural preservation easements. Farmland Protection and Benefits for Biodiversity The most recent bond bill stated this intent. It charged Delaware’s Agricultural Lands Preservation Act offers the Cabinet Committee on State Planning Issues (CCSPI) potential biodiversity benefits by protecting land subject to (See Ch. 3: The Delaware Planning Act and Office of State an easement from non-agricultural uses. Land in agricul- Planning Coordination) to provide guidance and coordina-

chapter 5 91 tion to ensure that investments made by the Growth In 1991, approximately $15 million in state bonds were Management Fund are consistent with the state’s land use sold, netting $14 million that was deposited in the policies.89 The guidance provided by the CCSPI shows a Delaware LWCT Fund for open space protection. Of the preference for protecting farmland threatened by develop- $14 million, $12 million was made available for open ment90 by “hardening” the boundaries around growth areas. space acquisition and $2 million was added to the princi- Under Delaware’s PDR program, up to 75 percent of the pal of the LWCT to generate interest for greenway pro- funding for purchasing development rights can now be tar- jects. In 1993, another bond offering netted an additional geted towards farmland within three miles of an “Urban $14.7 million. Of this amount, $13.7 was made available Investment Area,” or an area designated by the Office of for acquisition projects and $1 million was added to the State Planning and Coordination for growth (See Ch. 3: principal of the LWCT to generate funding for local pro- Mapping to Guide Investment). By purchasing the devel- jects.91 The bonds were financed through the Realty opment rights for farms that are subject to high develop- Transfer Tax Act.92 In 1995 — a year of budget surplus for ment pressures, the CCSPI hopes to create buffer zones the state — the LWCT Fund received a direct legislative around growth areas to impede sprawl. appropriation of $20 million for open space acquisition. The Cabinet Committee could also help achieve the In 1998, the General Assembly raised the Trust Fund goals of the “Shaping Delaware’s Future” (See Ch. 3: cap to $60 million and amended the Realty Transfer Tax Shaping Delaware’s Future) by directing farmland preserva- Act.93 Now, $10 million of the Transfer Tax goes toward tion funds to be used to protect land in environmentally land preservation: $7 million annually to the LWCT sensitive areas from development. Such a geographic Fund for principal and $3 million annually for open space approach was used by the DALPF, in cooperation with the acquisition until the Fund’s endowment account reaches Center for the Inland Bays, to preserve habitat and water $60 million. quality in the Inland Bays watershed under a grant from the EPA in 1996. Used more widely, a habitat-centered The 21st Century Fund and Growth Management Fund approach could significantly increase the benefit derived The 21st Century Fund has provided additional funding from the farmland preservation program. for open space protection. This fund, created in 1995 with proceeds from a court case between Delaware and New York, 94 allocated almost $160 million to land use related STATE FUNDING FOR ACQUISITION programs between fiscal years 1996 and 1999. The fund provided $40 million for open space acquisition, $40 mil- The primary sources of funding for open space protection lion for preservation of agricultural lands through pur- have been the sale of bonds (financed by a realty transfer chase of development rights, and $15 million for a state tax), state appropriations, court settlements, and interest parks endowment.95 The 21st Century Fund also provided on investments. The following is a description of some of funding for housing development, water and wastewater the innovative mechanisms Delaware has employed to raise infrastructure, and community redevelopment. In fiscal funds for open space conservation. year 2000, the 21st Century Fund will allocate $10 million for open space protection, plus an additional $5 mil- Delaware Land and Water Conservation Trust Fund, lion earmarked for acquisition of a tract of forestland in Bond Funding, and the Realty Transfer Tax Sussex County.96 The Delaware Land and Water Conservation Trust Fund Through the newly established Growth Management was established in June 1986 as an outdoor recreation Fund, which will supplant the 21st Century Fund as a matching grant program administered by DNREC’s source of Delaware funding, a further $18 million was allo- Division of Parks and Recreation. Amounts credited to the cated to the LWCT Fund in 1999, and an additional $23 Trust’s principal must remain intact with only Trust-gener- million will be allocated to the LWCT in 2000, all funds ated interest being used for acquisition and development going to open space acquisition projects.97 projects. As part of the 21st Century Fund initiative (See below: The 21st Century Fund), 50 percent of the annual- The Future of Open Space Funding and Acquisition ly earned Trust Fund interest is made available for grants In Delaware to support greenway and trail projects. The remaining 50 The net result of this massive infusion of capital into the percent is used to fund local park acquisition and develop- Open Space Program has not only meant extensive acquisi- ment projects. Proceeds from bond sales are added to prin- tions in the state, but also the creation of a substantial cipal or used for acquisition. endowment. In July 1999, the principal in the LWCT

92 protecting delaware’s natural heritage Fund was approximately $38.4 million. With continuing Areas Advisory Council does not itself have any budget or allocations under the amended Realty Transfer Tax Act, the acquisition authority, and merely provides an advisory LWCT endowment account is projected to reach $60 mil- role.104 State parks and nature preserves are also expanded lion by fiscal year 2002.98 through the acquisition of conservation easements.105 At this time it is not clear whether there will be further Currently, all of the funding for DNREC’s open space allocations to the Open Space Program beyond 2001, or acquisitions — whether for a park, nature preserve, whether it will be required to operate only with proceeds wildlife area, or other open space — comes through the from its endowment. Because the state is currently Open Space Program. The Open Space Council, attempting to lower its debt, a new bond issue seems although only an advisory body, has a significant amount unlikely. If the state’s cash flow remains strong, the endow- of authority regarding acquisitions.106 To date, the land ment cap on the LWCT Fund could be increased, acquisition recommendations the Council has forwarded although this proposal is not currently under considera- to the DNREC Secretary have been accepted without tion.99 In 1995, a broad-based citizen coalition, the Open change. The central challenge for the Open Space Space, Park & Farmland Preservation Coalition, was Program is the lack of a secure, long-term source of fund- formed to secure funding for open space and farmland ing. Currently, DNREC must identify annual sources of preservation. This coalition of 328 organizations, repre- funding to ensure that the Open Space Program’s land senting local governments and conservation, farmland, acquisition projects continue.107 and civic organizations, meets regularly to ensure that Delaware continues to have a secure source of funding for open space protection.100 CONCLUSION Delaware’s Open Space Program does not provide matching funds to non-profit organizations or local gov- Delaware has a wide variety of land protection pro- ernments to protect open space in the state. Such an grams. Through direct acquisition, PDRs, conservation approach could help leverage private sources of funding to easements, and other mechanisms, the state has many protect open space of particular biological value. For exam- opportunities to conserve land critical for the protection ple, New Jersey’s Green Acres Program, created in 1961, of biological diversity. However, there are many oppor- provides low interest loans and grants to municipal and tunities for Delaware to enhance the effectiveness of county governments for acquisition if they have an open these programs. Many of the programs were designed space tax and have developed an open space plan. New before the Delaware Natural Heritage Program was Jersey’s program also provides matching grants to non-prof- established or fully matured. They should now take it organizations to acquire land for conservation purpos- more direct advantage of this resource, as well as other es.101 If Delaware chooses to develop a program providing sources of biological information in the state to priori- open space acquisition matching funds to localities and tize acquisition. non-profit organizations, the funds should be made avail- Delawareans clearly have demonstrated a commit- able only for projects that are consistent with the state’s ment to conservation efforts and a recognition of the open space protection objectives. Such areas could include state’s unique natural heritage. Conservation and delineated State Resource Areas or specific places of biolog- restoration of Delaware’s biological diversity is not just ical interest as identified by the Delaware Natural Heritage a good idea. It is becoming a reality, thanks to the hard Program (DNHP). work of many individuals, organizations, government Just as the acquisition mandates under the state’s Parks agencies, educational institutions, and private compa- Law, Natural Areas Law, and Land Protection Act vary nies. Through individual initiative, cooperation with greatly, the financing of the respective laws is also very dif- non-profit organizations, and corporations, and federal ferent. At present, there are neither plans nor appropria- and state agencies, biological diversity restoration and tions to acquire further state parks under the State Parks conservation efforts can have regional and statewide law. The Natural Areas Program, begun in 1978 under the benefits. These benefits can have an even greater Natural Areas Preservation System law, is authorized to impact if efforts are coordinated through a statewide acquire land, but it very rarely performs this function.102 strategy. Chapter 8 discusses the benefits of a coordi- Rather, the program makes recommendations for the nated statewide strategy and offers some recommenda- establishment of nature preserves, receives dedications of tions for how the state’s existing laws, regulations and preserves from other state entities, and oversees the man- policies can be strengthened to better protect biologi- agement of some 2,000 acres of preserves.103 The Natural cal diversity.

chapter 5 93 RECOMMENDATIONS

• The Department of Natural Resources and Environ- and conservation organizations to acquire open space mental Control should consult the Delaware Natural in areas consistent with the state’s conservation goals. Heritage Program when updating the State Resource Areas in future years to ensure that at-risk plants, ani- • Secure a stable source of annual funding for the Open Space mals, and ecosystems are included in the state’s acquisi- Program and Agricultural Lands Preservation Program. tion strategy. • Revise the scoring system of the Agricultural Lands • The Department of Natural Resources and Environ- Preservation Act to give increased weight to wetlands mental Control should move quickly to meet its legal and forests, and place greater value on proximity to open obligations under the Land Protection Act by providing space, windbreaks, bufferstrips, and other natural ameni- counties with detailed maps of the State Resource Areas ties on agricultural lands. (SRAs). Based on these maps, all three Delaware counties should comply with the Land Protection Act by • Amend the Agricultural Preservation Program to provide adopting overlay zoning ordinances and environmental enrolled landowners with tax credits for implementing design standards to protect SRAs. agricultural conservation management plans.

• The Department of Natural Resources and Environ- • The Delaware Department of Agriculture, U.S. mental Control should work with the state’s Cabinet Department of Agriculture, and U.S. Fish and Wildlife Committee on State Planning Issues to determine how Service should coordinate to give additional preference to best to encourage Kent and Sussex Counties to protect landowners enrolled in Agricultural Preservation Districts the State Resource Areas through the adoption of overlay to encourage them to apply for cost-share funding through zoning ordinances. existing Farm Bill and wildlife enhancement programs. This would give enrolled landowners an added incentive to • Revise the Land Protection Act to create a matching maximize the conservation benefits of their property (e.g., grant program within the Open Space Program. restoring wetlands, protecting forestland, establishing Matching funds could be allocated to local governments bufferstrips along streams, retiring marginal farmland).

1 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. 17 Del. Code Ann. tit. 7, § 7307. May 1999. 18 See id. § 7305. 2 Line, Robert and Ron Vickers. Division of Parks and Recreation, DNREC. Personal 19 See id. § 7303. correspondence. June 9, 1999. 20 3 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. Vickers, Ron and Rob Line. Division of Parks and Recreation, DNREC. Personal com- May 1999. munication. March 3, 1999. 21 4 Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. Short, E. Austin III. DDA Forest Service. Personal correspondence. August 17, 1999. April 13, 1999. 5 Delaware Department of Agriculture. 1997. Forest Health in Delaware. DDA: Dover, DE. p. 9. 22 Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. 6 Del. Code Ann. tit. 7, § 4701, et. seq. April 13, 1999. 7 See id. § 4701(a)(1). 23 Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. 8 Del. Code Ann. tit. 7, § 4701(c). April 13, 1999. 24 9 Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. Preservation. Delaware Nature Education Society: Hockessin, DE. p. 6. April 13, 1999. 25 10 Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their See id. § 7306. Preservation. Delaware Nature Education Society: Hockessin, DE. p. 6. 26 Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. 11 Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their April 13, 1999. Preservation. Delaware Nature Education Society: Hockessin, DE. p. 6. 27 Del. Code Ann. tit. 7, § 7308. 12 Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their 28 Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. Preservation. Delaware Nature Education Society: Hockessin, DE. p. 8. April 13, 1999. 13 Fleming, Lorraine M. 1978. Delaware’s Outstanding Natural Areas and Their 29 DNREC. Greenspace for Delaware’s Future. DNREC: Dover, DE. Preservation. Delaware Nature Education Society: Hockessin, DE. pp. 8-9. 30 DNREC. Greenspace for Delaware’s Future. DNREC: Dover, DE. p. 9. 14 Del. Code Ann. tit. 7, § 7301, et. seq. 31 DNREC. Greenspace for Delaware’s Future. DNREC: Dover, DE. p. 4. (emphasis added.) 15 Del. Code Ann. tit. 7, § 7303(3), (4) and (5). 32 DNREC. Greenspace for Delaware’s Future. DNREC: Dover, DE. p. 9. 16 See id. § 7303. 33 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal communication.

94 protecting delaware’s natural heritage 34 McAvoy, William A. March 1998. Rare Native Plants of Delaware. DNHP, DNREC: 76 See id. §§ 908(b)(5), 908(b)(7). Smyrna, DE. 77 Exec. Order No. 101, § 1b. (Apr. 4, 1981); http://farm.fic.niu.edu/tempstats/stdelaware.html. 35 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. 78 DALPF, Policies, Procedures, By-Laws, 20, 45-6. May 1999. 79 36 DALPF, Wetlands and Farm Preservation, June 13, 1997. Delaware Open Space Council. May 1996. Delaware’s Open Space Program. DNREC: 80 Dover, DE. p. 5. McGrath, Michael. Delaware Department of Agriculture. Personal communication. 37 August 6, 1998. Del. Code Ann. tit. 7, § 7501, et. seq. 81 38 DALPF, Policies, Procedures, By-Laws, 19; McKenzie, Stewart. Delaware Department Specifically, it authorizes DNREC’s Divisions of Parks & Recreation and Fish & of Agriculture. Personal communication. September 13, 1999. Wildlife, the Department of Agriculture’s Division of Resource Management, and the 82 Department of State’s Division of Historical and Cultural Affairs to acquire open space. McKenzie, Stewart. Delaware Department of Agriculture. Personal communication. 39 September 13, 1999. Del. Code Ann. tit. 7, § 7503. (emphasis added.) 83 40 DALPF, Wetlands and Farm Preservation. Del. Code Ann. tit. 7, § 7504. 84 41 See id. § 903. See id. § 7507. 85 42 See id. § 906. See id. § 7507; Note: It is estimated that 40 percent of the lands in the Open Space 86 Program are also on the Natural Areas Inventory. See id. § 907. 87 43 Del. Code Ann. tit. 7, § 7506. Delaware Agricultural Land Conservation Incentives Act of 1997. 88 44 Delaware Open Space Council. May 1996. Delaware’s Open Space Program. DNREC: Delaware Agricultural Land Conservation Incentives Act of 1997, § 4(b). Dover, DE. 89 H.B. 750, 139th General Assembly Sess. § 15(a). 45 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal communication. 90 See id. § 15(b)(1). September 13, 1999. 91 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. 46 Del. Code Ann. tit. 7, § 7508(a)(1). May 1999. 47 See id. § 7508(a)(2)) 92 Del. Code Ann. tit. 30, § 5401, et. seq. 48 See id. § 7508. 93 House Bill no. 757, June 25, 1998. 49 See id. § 7508. 94 State of Delaware v. State of New York, 507 U.S. 490 (Del. 1993), a case involving a 50 Line, Robert. Division of Parks and Recreation, DNREC. Personal communication. dispute over which state was entitled to $360 million in unclaimed securities distributions. February 17, 1999. 95 $12 million was allocated to the LWCT Fund in fiscal year 1996 (of which $6 million 51 New Castle County, Del., Code ch. 13, art. 33, Div. 33.300. was available for acquisition projects and $6 million was added to the LWCT principal 52 for local and greenway projects), $14 million in 1997, $7 million in 1998, and $7 mil- See id. Table 10.010. lion in 1999. 53 Kent County’s Zoning Ordinance, as amended by Ordinance 96-06, February 27, 1996. 96 von Koch, Debra. Director of Bond Finance. Personal correspondence. July 27, 1999. 54 Sussex County, Del., Code § 115. 97 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. 55 See id. § 115-19 May 1999. 56 See id. § 115-20 98 von Koch, Debra. Director of Bond Finance. Personal communication. July 27, 1999. 57 See id. § 115-25 99 von Koch, Debra. Director of Bond Finance. Personal communication. March 17, 1999. 58 Line, Robert. Division of Parks and Recreation, DNREC. Personal communication. 100 Fleming, Lorraine. Delaware Nature Society. Personal correspondence. May 5, 1999. 101 http://www.state.nj.us/dep/greenacres 59 Solberg, Carl J. Kent County Parks & Recreation. May 30, 1998. Letter to Kyle 102 Line, Robert. Division of Parks and Recreation, DNREC. Personal communication. Gulbronson, Division of Parks and Recreation, DNREC. February 10, 1999. 60 Del. Code Ann. tit. 7, § 7507. 103 Line, Robert. Division of Parks and Recreation, DNREC. Personal communication. 61 Manus, Andrew. Division of Fish and Wildlife, DNREC. Personal correspondence. February 10, 1999. August 18, 1999. 104 Line, Robert. Division of Parks and Recreation, DNREC. Personal communication. 62 Del. Code Ann. tit. 3, § 901. February 10, 1999. 63 See id. § 911. 105 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. 64 See id. § 909. May 1999. 106 65 Del. Code Ann. tit. 3, § 913(a). Note: an owner can request to repurchase the easement Line, Robert. Division of Parks and Recreation, DNREC. Personal communication. based on a new appraisal of the development rights only after 25 years, and the February 10, 1999; This situation is one of practical effect, rather than statutory man- Foundation must conduct an inquiry to determine the feasibility of profitable farming on date. Under § 7506 of the Delaware Protection Act, the Open Space Council merely rec- the land before deciding whether to allow termination of the easement. See id. § 917. ommends the acquisition of certain parcels; the ultimate decision making authority rests 66 with the Secretary of DNREC. However, the Secretary has never overridden or failed to See id. § 914(b)(3). act upon an Open Space Council recommendation. Vickers, Ron. Division of Parks and 67 Del. Code Ann. tit. 29, § 6102A(d). Recreation, DNREC. Personal communication. January 7, 1999. 68 von Koch, Debra. Director of Bond Finance. Personal communication. July 27, 1999. 107 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. 69 H.B. 750, 139th General Assembly Sess. § 15(b). May 1999. 70 Del. Code Ann. tit. 29, § 6102A(d)(2)b. 71 Del. Code Ann. tit. 3, § 907. 72 See id. § 908(a); Guidelines Used for the Delaware Agricultural Lands Preservation Program, § 1. 73 See id. § 908(a)(5). 74 See id. § 908(b). 75 Del. Code Ann. tit. 3, § 901.

chapter 5 95 96 protecting delaware’s natural heritage Chapter 6 Management and Research

elaware laws establish the framework for environ- communities, and locate plants and animals of state con- mental protection. Agency regulations provide the cern.2 The data are entered into a computer- and map- Dguidelines under which the laws are implemented. based storage system that is updated regularly. The Natural However, management practices, reflecting long-standing Heritage Database is the state’s most comprehensive, cen- conventional wisdom, state-of-the-art research, and best tralized source of information on rare plants, animals, and professional judgement, are often the main determinant of natural communities. how laws and regulations play out on-the-ground to affect Natural Heritage data can be used to inform land use biological diversity — positively or negatively. Management planning efforts, prioritize sites for conservation and pro- practices also reflect how agencies have interpreted their tection, and assist land managers. The Natural Heritage laws and regulations over the course of years of administer- Program is also a very useful tool for federal, state, and ing programs. Oftentimes, there is ample reason to exam- local decision-makers, as it provides science-based informa- ine the cumulative effects of these varied management deci- tion for environmental review of proposed project impacts. sions on biodiversity. The Division of Fish and Wildlife’s DNHP is part of an international network of heritage programs that all utilize the same data collection methodology. DATA COLLECTION, MANAGEMENT, MONITOR- DNHP publishes several regularly updated reports, as ING, AND SHARING well as project-specific studies. Every two years, DNHP updates its rare native plants list. The list is broken down Delaware has many sources of scientific data that land into two sections: the priority rare species list (that con- managers draw upon in their decision-making. Those that tains species that are extremely rare in the state and in follow specifically address biodiversity conservation. need of immediate protection efforts) and the watchlist (that includes species that are not currently of conserva- Delaware Natural Heritage Program tion concern in the state, but still worthy of inventory or The Delaware Natural Heritage Program (DNHP) was monitoring).3 DNHP’s list of rare animal species of con- established in 1987 as a joint effort between the servation concern, last published in April 1999, is also Department of Natural Resources and Environmental updated bi-annually. The species of concern report cata- Control (DNREC) and The Nature Conservancy (TNC). logs the native vertebrates and invertebrates in the state DNHP was originally housed within the Division of Parks that are in need of protection.4 and Recreation because of that division’s interest in heritage The Division of Fish and Wildlife’s DNHP is one of issues and because it contained complementary programs, DNREC’s most valuable resources specifically devoted to namely, the Natural Areas Program and a rare plants pro- research and information exchange on biodiversity.5 gram. In 1995, DNHP was moved to the Division of Fish However, several problems undermine the program’s poten- and Wildlife to associate it more closely with the state’s tial effectiveness. non-game and endangered species program.1 In most states, natural heritage programs are adminis- DNHP conducts biological surveys throughout tered and funded by state natural resource agencies. In Delaware to locate populations of rare or unique plant and Delaware, The Nature Conservancy currently operates the animal species, identify and describe significant natural DNHP under contract with DNREC’s Division of Fish

chapter 6 97 and Wildlife.6 The program is funded through an annual state’s Whole Basin Initiative (See below: Whole Basin appropriation from the Delaware General Assembly and Initiative).13 Under the initiative, the state’s water quality competitive grants.7 In addition to the program’s outside monitoring program collects water quality data at status as a contractor, the program is housed in a building approximately 80 fixed monitoring sites around the separate from the rest of DNREC.8 These factors present state. Since the early 1990s, DNREC has used these significant communication challenges. data to identify priority watersheds. These priority A practical result of more fully integrating DNHP into watersheds then receive additional monitoring to assess DNREC would be that natural heritage data would be the “magnitude, extent, and sources and causes of the more closely consulted during agency decision-making, degradation of Delaware’s aquatic ecosystems.”14 such as land acquisition priority-setting in the Open Space Through this program, the state has identified five pri- Program and management priority-setting in the land ority basins: Appoquinimink River, Christina River, managing divisions. Indian River Bay/Rehoboth Bay/Little Assawoman Bay, As an integral part of DNREC, the DNHP’s informa- Murderkill River, and the Nanticoke River.15 tion and databases could also more effectively be commu- DNREC’s water quality monitoring program has placed nicated to land managers, developers, and other land use increasing emphasis on biological monitoring. The agency decision-makers. is currently working to develop criteria for assessing the impact of water quality and habitat modifications on Gap Analysis aquatic biological communities. To this end, the state is Gap Analysis is a state-level effort to manage biological diver- focusing initially on non-tidal streams (which are most sity pro-actively. It is coordinated by the U.S. Geological directly impacted by non-point source water pollution) and Survey’s Biological Resource Division, in conjunction with the Inland Bays.16 universities and state and federal agencies. Gap is a geographic information system (GIS)-based mapping project that over- Development of a Statewide Biodiversity Inventory lays computer data on of vegetation type and species distribu- and Assessment tion, with data on land ownership. The resulting maps can The biological assessment tools mentioned above can help then help scientists identify “gaps” in the protection of bio- guide land management, acquisition, and land use plan- logical diversity at state, regional, and national levels. ning decisions in the state.17 However, Delaware has not Gap Analysis addresses species distribution, habitat developed a statewide biodiversity inventory and assess- issues, management activities, and institutional arrangement model that can help guide resource agencies, local ments. Once completed, this information should be uti- governments, and non-profit organizations in determining lized, in conjunction with natural heritage data and other how best to conserve biological diversity in the state. science-based biological information, to guide the broad Several states, including Indiana, New Jersey, array of state and private acquisition, management, and Massachusetts, and Oregon, have developed or are develop- regulatory decision-making in Delaware. Gap is spearhead- ing new assessment tools that utilize data from sources such ed by the U.S. Fish and Wildlife Service (FWS) in as Gap Analysis and Natural Heritage Programs, to Delaware. The first phase of the Gap project is scheduled enhance the knowledge base and guide on-the-ground con- for completion in late 1999.9 servation decision-making. Delaware decision-makers should explore the option of drawing together these rich Water Quality Monitoring sources of biological data and intellectual capacity in an Delaware’s Surface Water Quality Monitoring Program col- effort to develop a statewide biodiversity assessment lects and maintains a variety of data concerning the state’s methodology. The methodology could be designed to iden- water quality and the biological health of the state’s water- tify biologically critical areas in order to guide incentive bodies.10 In addition, the program issues a variety of reports programs, management resources, acquisition funding, and on the status of water quality in Delaware, some of which restoration activities. are required by the federal Clean Water Act. For example, However, it is critical that such biological data are pro- the Clean Water Act requires states to submit water quality vided to policy-makers at the state and local level in a for- reports to Congress every two years (commonly known as mat that they can use and interpret. If existing and innova- 305(b) reports).11 Delaware’s most recent 305(b) report was tive science-based biodiversity assessment programs are not completed in April 1998.12 providing information in an appropriate format to those Delaware now organizes the 305(b) report according to whose decisions affect biodiversity, valuable data will fail to the five Whole Basin Management Units designated by the have significant on-the-ground effects.

98 protecting delaware’s natural heritage MANAGING DELAWARE’S FISH AND WILDLIFE on hunting- and fishing-related equipment (See Box: Funding for Wildlife Conservation). These funding pro- The Division of Fish and Wildlife is charged with protect- grams have specific restrictions on how the money can be ing, managing, and conserving “all forms of protected spent, thereby tipping the scales toward wildlife and habi- wildlife” in Delaware.18 In addition, state law provides tat management related to hunting. Meanwhile little direct broad authority to the division to protect and restore native financial support is available for the management of fish biodiversity beyond species that are hunted and fished: and wildlife species that are not hunted or fished. In fiscal year 1998, the Division of Wildlife’s revenues It is in the best interest of the State to preserve and totaled $14.1 million. Of these funds, $9.2 million were enhance the diversity and abundance of nongame fish dedicated to fisheries and wildlife, $1.5 million to mosqui- and wildlife, and to protect the habitat and natural to control, $2.3 million to enforcement, and $723,000 to areas harboring rare and vanishing species of fish, dog control. In comparison, the total budget for Delaware’s wildlife, plants and areas of unusual scientific signifi- Non-game Program in 1998 was approximately $44,00024 cance or having unusual importance to the survival of and DNHP’s budget was $215,000.25 Delaware’s native fish, wildlife and plants in their nat- In 1998, the division received $940,200 from the sale of ural environments.19 hunting, fishing and shellfish licenses. An additional $4.75 million came from boating and dog licenses, land The Division manages 12 major wildlife areas totaling leases/rentals, enforcement settlements, and hunter educa- over 49,500 acres. In addition, the division leases approxi- tion programs. The Federal Wildlife Restoration Fund mately 6,500 acres from the Glatfelter Pulp Wood ($1.9 million), Federal Sport Fish Restoration Fund ($2.13 Company and the Chesapeake Forest Products Company million), boating safety program ($365,000), and endan- for public recreation (for small game, deer and turkey gered species grants ($13,000) provided Delaware with hunting, bird watching, and nature study). In total, the approximately $4.42 million.26 Division of Fish and Wildlife manages over four percent of Approximately 75.8 percent of the division’s budget the state’s land area. Although the division manages these comes from sources independent of general state financing, properties primarily for hunting and fishing, the state’s primarily revenue derived from license sales and two wildlife areas also provide many opportunities for non-con- Federal Aid programs.27 Funds from these sources signifi- sumptive wildlife activities, such as bird watching, wildlife cantly affect biological diversity conservation in several viewing, and nature photography.20 ways. Money from licenses and the Federal Aid programs must be used for enhancing hunting and fishing-related Wildlife-Related Recreation wildlife species and their associated habitat. These pro- A bi-annual survey conducted by FWS on fishing, hunting grams, in turn, activate a constituency for the Division that and wildlife-associated recreation, reveals a wealth of infor- is oriented toward game species. mation about wildlife-related activities in the state, as well Federal legislation currently pending in Congress would as how these activities affect state and local level decision- provide a significant amount of new funding to state wildlife making. The survey showed that 41 percent of Delaware’s agencies for wildlife conservation (including non-game population participated in wildlife-related recreation in wildlife), recreation, and education (See Box: Funding for 1996.21 An estimated 21 percent of Delawareans hunted or Wildlife Conservation). Delaware currently estimates that if fished22 and 34 percent of the population participated in it were to pass, this new funding source could provide the wildlife-watching or — non-hunting and fishing related state with $2.5-3 million annually.28 Such funding would activities.23 Wildlife watching includes other “non-con- significantly help to reconcile the funding inequalities for sumptive” activities, such as photography and birding. non-game wildlife and at-risk species management in Delaware. However, with or without this new source of Funding For Wildlife funds, DNREC should move forward on identifying funds As with all government agencies, the priorities and man- for non-game and at-risk species management. Increased agement decisions of DNREC’s Division of Fish and funding for these programs would more accurately reflect Wildlife are influenced and limited by its statutory mis- citizen interest in non-consumptive wildlife use. sion, sources of funding, constituent priorities, and the professional judgment of the agency. The primary sources Non-game and at-risk Species Management of funding for the division are revenues from hunting and The state’s Non-game Wildlife and Habitat Preservation fishing licenses and two federal programs that place a tax law acknowledges the disparity in the focus and funding

chapter 6 99 between activities related to hunting and fishing and ties. In several recent budgets, the Division of Fish and those related to non-game conservation: Wildlife has recommended the conversion. However, it has not been considered a priority by the Office of the Historically fish and wildlife conservation pro- Secretary and therefore has not been included in the grams have focused on the more recreationally and agency’s budget submission. As a result, the Division of commercially important species and consequently, Fish and Wildlife’s Non-game Program coordinator contin- such programs have been financed largely by hunt- ues to be supported by the tax-return check-off.34 ing and fishing license revenues and by the federal Since establishment of the check-off program, other assistance based on excise taxes on certain hunting agencies and organizations have been added to the form, and fishing equipment. These traditional financing causing Division of Wildlife revenues from this source to mechanisms are neither adequate nor fully appropri- decline. In 1997, the check-off generated only $35,000. In ate to meet the needs of all fish and wildlife.29 recent years, DNREC has committed virtually no resources to advertise the check-off program and its importance to This disparity has long been acknowledged. Indeed, a non-game wildlife protection. The single Non-game 14-year old study evaluating the Division of Fish and Program coordinator position is supported in part and sup- Wildlife determined that, especially given Delaware’s plemented with grants, donations, and special projects,35 location and importance for migratory species, addition- and the Division of Parks and Recreation has not received al sources of funding should be identified for the Non- any funds from the program since 1994-95.36 game Program. The report states that “[a]s currently Currently, the Division of Fish and Wildlife’s Non-game funded, the Non-game Program is seriously handi- Program receives no routine funding from general rev- capped. Personnel can do little more than survey and enues. Additionally, the one full-time staff person in the monitor non-game species…[m]ore funds need to be Non-game Program is housed off-site along with the generated for purchase of critical non-game habitats. Delaware Natural Heritage Program. Although many states Funds also are needed to implement specific non-game use innovative funding sources — such as revenue from management practices on public lands.”30 Little has income tax check-off programs, special automobile license changed to provide more funding for non-game manage- plates, and lottery proceeds — to supplement core funding ment and habitat restoration. for at-risk species and non-game programs, these sources Currently, one of the chief sources of funding for the are clearly limited and not sufficiently reliable to ensure Non-game Program is donation by taxpayers through a vol- continuity of program activities.37 untary income tax return check-off. Under this program, the Division of Revenue provides a space on the Delaware Enhancing Wildlife Diversity income tax return form allowing individuals to voluntarily DNREC should consider consolidating the Non-game designate contributions to a “Nongame Fish and Wildlife, Program and Natural Heritage Program into one program: Nongame Habitat and Natural Areas Preservation Fund.”31 the Wildlife Diversity Program. This would ensure that at- The fund, which cannot receive state appropriations, can risk species, non-game species, and habitat conservation, be used to protect non-game fish and wildlife and their protection and research are considered of equal importance habitat, as well as natural areas of significance.32 to species that are hunted and fished. Establishment of a When first established in 1983, the tax-return check-off Wildlife Diversity Program would be consistent with the generated $86,000.33 In 1984, the check-off funds were legal mandate of the Division, which states that the divi- divided to support two DNREC positions: the Non-game sion must protect and manage “all forms of protected Program coordinator in the Division of Fish and Wildlife wildlife”38 and reinforces that it is in the interest of the state and the Natural Areas Program coordinator in the Division to “preserve and enhance the diversity and abundance of of Parks and Recreation. Remaining funds were used for non-game fish and wildlife, and to protect the habitat and project-related activities. In 1988, DNREC secured general natural areas harboring rare and vanishing species of fish, funds from the state legislature to support the Natural wildlife, plants and areas.”39 Areas Program coordinator, taking that position off tax The International Association of Fish and Wildlife refund check-off revenues. This was done with the under- Agencies recommends in its “Model Program” framework standing that during the next budget cycle, the Division of (See Box: The Model Wildlife Diversity Program), that Fish and Wildlife would have its Non-game Program coor- wildlife diversity program staff be placed “with other dinator converted to general funds, thus allowing the tax agency staff (especially game and sportfish staff),” and check-off funds to be used directly in conservation activi- states that “[p]roximity leads to cultural and programmatic

100 protecting delaware’s natural heritage integration.”40 These proposed changes will be particular- tives will be affected by its “legal authorities, administra- ly important if federal funding for wildlife diversity tive structure, agency culture, customer needs and expec- becomes available in the next few years (See Box: Funding tations, wildlife resource needs and capabilities and fund- for Wildlife Conservation). ing or other constraints.”41 Below are a few recommenda- Ultimately, the Division of Fish and Wildlife’s deci- tions that would help to ensure that the Natural Heritage sions on how to embrace wildlife diversity program objec- Program, Non-game Program, and other at-risk species

Funding for Wildlife Conservation

Funding for the majority of state wildlife agencies‚ alone — states must use the funds primarily for activities comes from two federally administered pro- gamespecies-related activities. As a result, state grams: the Federal Aid in Sport Fish Restoration Act wildlife agencies around the country have been strug- and the Federal Aid in Wildlife Restoration Act, gling to develop innovative mechanisms for funding jointly known as the Federal Aid programs. non-game species management activities. In The Federal Aid in Wildlife Restoration Act, response, a federal legislative proposal,“Teaming (known as Pittman-Robertson, or P-R) was approved With Wildlife (TWW),” has drawn the wide support by Congress in 1937. The Act provides funding to of over 3,000 organizations and businesses nation- states for the restoration and improvement of wildlife wide. TWW would expand the existing federal aid habitat, wildlife management and research, hunter programs by applying an excise tax on non-consump- training, and the development and operation of pub- tive wildlife gear, such as binoculars and sleeping lic target ranges. The program levies an excise tax on bags. The funds would be returned to the states to sporting arms, ammunition, archery equipment, and support non-game wildlife conservation, education, handguns. The funds are directed to the U.S. and recreation. Treasury and then allocated to the states based on a Although Congress recognizes the need for fund- formula that takes into account a state’s area and pop- ing these programs, several bills have been introduced ulation of licensed hunters. The program requires on Capitol Hill that would address the funding needs states to provide 25 percent of the project funds. At articulated in TWW through an alternative funding least 62 percent of the P-R funds must be used by source. One bill introduced in early 1999, the called states to buy and manage wildlife management areas Conservation and Reinvestment Act (CARA), is and 26 percent for wildlife-related research. being considered by Congress. Funds for CARA The Federal Aid in Sport Fish Restoration Act, would come from revenue collected from oil and gas (often called Dingell-Johnson,D-J, or “Wallop- leases beyond the Outer Continental Shelf (OCS). Breaux,” after recent amendments) was established in The House and Senate proposals would send OCS 1950 to provide funds to the states for management revenues back to the states to fund several programs, of fishery resources, conservation, and restoration. including a Wildlife Conservation and Restoration The program is funded through an excise tax on fish- program, that would fund state-level wildlife conser- ing rods, reels, creels, lures, flies and artificial baits. vation and related recreation and education, essen- The funds are allocated in the same manner as P-R tially the goals of Teaming with Wildlife. and states are similarly required to match the federal Although CARA would provide states with much- funds at a 25:75 ratio. P-R requires states to spend at needed non-game funding, the source of funds is not least 12.5 percent on development and maintenance grounded by the “user pays” principal of P-R and of boating access facilities and up to 10 percent on D-J. One of the positive aspects of TWW is that it aquatic resources education programs. would create a voice and a constituency for wildlife Although the Federal Aid programs bring millions enthusiasts who support non-consumptive enjoyment of dollars to the states for much needed fish and of the outdoors. wildlife activities — $4 million to Delaware in 1998 For more information visit: http://fa.r9.fws.gov/ and http://www.teaming.com.

chapter 6 101 management issues are integrated into the activities and However, the division receives little support for its marine programs of the division. restoration and research. Such funds are needed to meet the DNREC should also consider elevating the Wildlife requirements of the Atlantic States Marine Fisheries Diversity Program to the section level within the Division of Commission (ASMFC), which requires all coastal states to Fish and Wildlife (the same level as the Wildlife Section, develop fisheries management plans, as well as the require- Fisheries Section, Mosquito Control Section, and ments of the National Marine Fisheries Service’s (NMFS) Enforcement Section), reporting directly to the division essential fisheries habitat project planning activities. director. This would help ensure that the Wildlife Diversity Implementation of ASMFC and NMFS’s marine restora- Program is “equal in stature (importance and value) to the tion and research requirements cost the division approxi- agency’s game and sportfish programs” and that the program mately $500,000, which currently is not covered by general receives “internal and external program advocacy, identity, appropriations, federal funding, or a user pays arrangement. and presence equal to game and sportfish programs.”42 In In order to administer its marine restoration and addition, it would more accurately reflect the priorities of the research responsibilities, DNREC should work to secure state tax-payers as a whole. Alternatively, a Wildlife Diversity additional sources of funding. There are several options for Program should be integrated within the Wildlife Section meeting this need: (along with Wildlife Management and Wildlife Research Programs) in such a way as to ensure its prominence on a • Secure an increase in general fund appropriations. level equal to wildlife and fisheries programs. The Wildlife Diversity Program should be funded by • Dedicate the entire amount of revenues from marine general funds. Currently, there is no predictable long-term boat registration to the division. The division administers secured funding base for wildlife diversity programming a marine boat registration program that generated within the Division of Fish and Wildlife or DNREC.43 $862,200 in revenues in 1998. These funds support the Adequate funding should be provided to support the pro- division’s marine enforcement and marine access devel- gram’s administrative infrastructure, as well as programmat- opment work. However, the first $283,000 raised from ic planning, inventory and monitoring programs, research, marine boat registration goes to the state’s general rev- data management, natural resource management and pro- enue. These funds could be returned to the division to tection, and public outreach efforts.44 Establishment of a support marine fisheries research and habitat enhance- Wildlife Diversity Program should be accompanied by a ment projects. revision of the current Nongame Wildlife and Habitat Preservation Programs statute.45 • Establish a marine fishing license. Develop a “user pays” DNREC should ensure that the Wildlife Diversity equivalent for marine fishing by establishing a marine Program has an adequate public outreach program to edu- fishing license for recreational fishing. cate internal and external interested parties about the program’s mission, goals, and functions. The outreach efforts • Secure unclaimed motor boat fuel taxes. Under should be accompanied by efforts to promote active public Delaware state law, the Delaware Department of involvement in the program.46 One possible way to bolster Transportation (DelDOT) administers a state fuel tax public outreach and involvement would be to establish a that levies a 23 cent per gallon tax on gasoline.47 The Wildlife Diversity Advisory Committee to focus on long- funds go to the state Transportation Trust Fund which is term policy planning and visioning. Creating a voice for used for roadway construction. Since the tax is designed this constituency through establishment of an Advisory specifically as a “user pays” scenario for highway users, Committee would help to ensure that the agency’s priori- individuals who purchase gasoline for non-highway use, ties reflect the concerns of this constituency, as well as the such as “tractors, motorboats, airplanes or aircrafts, or traditional game constituency. Another option would be to any other purpose except in [licensed] motor vehicles,”48 add another position to the existing Game and Fish are eligible for a tax refund. Therefore, farmers and Advisory Council. boaters who purchase gasoline for their vehicles can submit a tax refund form to receive their reimbursement.49 Marine Restoration and Research The Federal Highway Administration estimates that The Division of Fish and Wildlife receives substantial in Delaware, $6.9 million was spent on gasoline for funding from federal programs and licenses for activities marine uses (boats). This generates almost $1.6 million related to hunting and freshwater fishing. These “user pays” in fuel tax revenue for the state Transportation Trust scenarios lead to programs that are fairly self-sustaining. Fund. However, DelDOT estimates that in fiscal year

102 protecting delaware’s natural heritage 1998 only $112,000 of the motor fuel tax was reclaimed small/upland game program has dedicated most of its by boaters.50 This would leave almost $1.5 million in attention to declining populations of bobwhite quail. In unclaimed motor fuel taxes from boats. Several state 1998, the division published a guide for farmers and pri- agencies with responsibility for fisheries management vate rural landowners on bobwhite quail management. have been able to secure unclaimed motor boat fuel Titled “Delaware’s Bobwhite Quail: Habitat Evaluation taxes to support their marine activities. For example, the and Wildlife Diversity,” the guide outlines the habitat Texas Department of Parks and Wildlife receives requirements for this species and highlights habitat approximately $15 million per year in unclaimed motor improvement practices on forestland, agricultural lands, boat fuel tax refunds.51 rights-of-way, and other lands to improve bobwhite quail DNREC is working with DelDOT to examine both a habitat. Because bobwhite quail is primarily an edge method to determine the amount of unclaimed motor species, the majority of the practices recommended in the fuel taxes from boats and a mechanism by which these guide promote early to mid-successional habitat. For funds might be transferred and dedicated for marine example, the improvement practices outlined in the report research and restoration.52 These funds would be used to recommend the establishment and maintenance of “soft” meet the Federal Aid in Sport Fish Restoration Program field edges by clear cutting, selection cutting, or thinning matching requirements. In support of this initiative, of forestland; strip discing field edges and abandoned agri- DelDOT’s Motor Fuels Tax Administration and DNREC cultural lands; and management of Delaware’s drainage are conducting a survey to determine actual fuel tax col- ditches to provide wildlife habitat for this species.54 lections from marinas. The information will be used by To date, the bobwhite quail efforts primarily have con- DelDOT to help identify actual collections as a basis for centrated on conducting population surveys, analyzing determining the feasibility of transferring the funds.53 harvest data, and drafting a bobwhite quail habitat guide. The division’s efforts to enhance this species have not Small Game Management been successful though, as quail numbers continue to In 1997, the Division of Fish and Wildlife developed a decline.55 Unlike deer, which is also an edge species, bob- new small game and upland game program. To date, the white quail are sensitive to development pressures. In

The Model Wildlife Diversity Program

In September 1999, the International Association of grams should incorporate non-game wildlife, threat- Fish and Wildlife Agencies (the national association ened and endangered wildlife, and the state’s natural that represents all state wildlife agencies) approved a heritage program. It states that the program should “Functional Model for Enhancement of Wildlife con- be “equal in stature (importance and value) to the servation, Education, and Recreation Program” as a agency’s game and sportfish programs” and should be recommended framework for establishing wildlife established “in a manner that ensures internal and diversity programs in state wildlife agencies. The external program advocacy, identity, and presence model was developed to help these agencies address equal to game and sportfish programs.” In addition, the functional and organizational issues related to the model emphasizes the importance of physically establishing a wildlife diversity program. locating program staff with game and sportfish staff to Establishment of such programs will be of increased encourage “cultural and programmatic integration.” importance if new sources of funding for non-game The model suggests that adequate resources be allocat- wildlife conservation become available. ed for the wildlife diversity program for planning, Many of the recommendations outlined in the model data management, inventory and monitoring, are consistent with recommendations made in this research, natural resource management and protec- report. The model suggests that wildlife diversity pro- tion, and public outreach.

Source: International Association of Fish and Wildlife Agencies (IAFWA) Wildlife Diversity Committee. September 18, 1999. “A Functional Model for Enhancement of Wildlife conservation, Education, and Recreation Program.” Version 10.1.

chapter 6 103 addition, outright loss of habitat, hunting pressure, species recommended by USDA in Delaware include predator impacts, pollution, and disease may be adversely exotics. USDA should consider consulting with DNREC impacting the quail population in Delaware. The number botanists to ensure the use of native species in its recom- of bobwhite quail has been so severely reduced that popu- mended seed mixtures.60 lations are isolated in small habitat patches. If current quail population trends continue, the species may be Leased Wildlife Areas unable to sustain harvesting by hunting. The Division of Wildlife leases approximately 3,500 acres The division’s small/upland game program, although of agricultural lands to private farmers (about half of the still in its infancy, may benefit from a renewed focus on tillable acreage on the division’s land). Regional wildlife habitat and landscape conservation and working in part- managers work with landowners to ensure that activities on nership with the United States Department of the leased property are beneficial to wildlife.61 For example, Agriculture (USDA) and Delaware Department of agricultural leases “specify crops to be planted and crops to Agriculture (DDA) to promote federal Farm Bill pro- be left unharvested to benefit wildlife.”62 Locations of grams available in the state (See Ch.7: Agricultural And buffer strips as described above are specified or they are Wetland Cost-share Opportunities). leased.63 In addition, the division cooperates with the state’s farmland preservation program to encourage small Small Game Management on Public Lands landowners to enter into Agricultural Preservation The small/upland game management program has Districts, making them eligible for tax breaks (See Ch. 7: focused a large portion of its management activities on Agricultural Preservation Districts). the division’s agricultural lands to promote early successional species. Several hundred acres in the division’s Species Management Decision-Making and Priority wildlife areas have been enrolled in the federal govern- Setting ment’s Conservation Reserve Program (CRP) (See Ch.7: Throughout its history, the Division of Fish and Wildlife Conservation Reserve Program) and are planted in warm has been very open to outside analysis. A variety of surveys season grasses. For example, approximately 300 acres of and management reports have been conducted with the agricultural lands acquired by the division that had natu- division’s support.64 In addition, the division has responded rally reverted to trees were treated with herbicides and very favorably to recommendations in these reports and has reclaimed by mechanical means to establish early succes- proven to be an agency amenable to change. The division sional habitat for bobwhite quail and other declining should seriously consider improving its management of the grassland bird species, such as savannah sparrow and state’s fish, wildlife, and their associated habitat in two Eastern meadowlark.56 areas — planning and management of species of fish and In total, approximately 3,800 acres of Delaware farm- wildlife that are not hunted or fished, and management of land have been enrolled in CRP, and another 200 in the at-risk species of conservation concern. Wildlife Habitat Incentives Program (WHIP) and Environmental Quality Incentives Program (EQIP). An Current Planning Mechanisms additional 6,000 acres have been targeted for enrollment Although not stipulated by law, the division has stated that in the Conservation Reserve Enhancement Program “an individualized management plan must be utilized for (CREP), a cost-share program that was approved in each [wildlife] area in order to best utilize its resources.” 65 Delaware in June 1999 (See Ch. 7: Conservation Reserve However, management plans have been completed for only Enhancement Program).57 Most of the activities approved about two-thirds of the state’s wildlife areas. This is due to under the Farm Bill programs have led to the establish- a backlog created by the recent and rapid acreage additions ment of warm season grass buffers about 50 feet wide to the wildlife area system in the state. Open space acquisi- around agricultural fields adjacent to forested woodlands, tions have diverted staff and budgets to managing new drainage ditches, and small streams. Grassed waterways areas, rather than developing plans for existing areas.66 and riparian buffers, as well as some wetland restoration, Although DNREC’s Vision Document67 will be used to have also been included. Warm season grass buffers take guide decision-making within the Division of Fish and about three years to mature, after which time they pro- Wildlife, the primary mechanism for developing objectives vide valuable habitat for a diversity of birds, mammals, and setting management goals to guide the division’s activi- amphibians, and reptiles.58 The species mixtures used to ties now occurs through the annual budget development create these buffers are specified by USDA’s Natural process.68 The fiscal year 1999 budget for the division states Resources Conservation Service (NRCS).59 Many of the several objectives that affect biological diversity. These

104 protecting delaware’s natural heritage include a commitment to continue implementation of pro- The DDA Forest Service owns and manages over 10,000 tection, recovery, and management plans for endangered acres of forest land at Blackbird State Forest, Redden State and threatened species, and species of special concern. The Forest, and Taber State Forest. The state forests are man- budget also states that the division is committed to com- aged for multiple uses, including timber production, plete one comprehensive Wildlife Area Management Plan wildlife habitat enhancement, recreation, and water quali- each year to guide habitat and species management mea- ty.73 The DDA Forest Service has the authority to set aside sures, habitat restoration, and observational opportunities. land within the state forests that is considered “unusual or Although the budget development process provides a good historic groves of trees or natural features particularly wor- opportunity for the division to reflect upon its past accom- thy of permanent preservation.”74 Although the DDA plishments and plan for the future, it does not provide the Forest Service may also permit recreation on these lands, it division, its field employees, or the public with adequate has direct authority under the state law to protect forest information about its priorities or how they are determined. land deemed valuable for its biological characteristics. DNREC should allocate sufficient funds to the division Each state forest has a management plan that outlines for an adequate public outreach program to educate its the goals and objectives of the forest. The plans are revised internal and external constituents about the division’s mis- every five years and are developed in accordance with the sion, goals, and functions. The outreach efforts should be accompanied by efforts to promote active public involvement in the program. To date, education and outreach activities have been accomplished through the dedication and professional commitment of staff. The division’s recent viewing guide, “Delaware Bay Shorebirds,”69 was produced to address the very con- tentious shore bird/horseshoe crab management issue. The publication was produced without dedicated information and education staff, but rather through securing private sources of funding and devoting staff time beyond required tasks.

MANAGEMENT OF DELAWARE’S FORESTS

Delaware’s state forestry programs are managed under Delaware Forestry Law.70 The law’s various provisions affect privately as well as publicly owned forests. The law grants to the DDA Forest Service the power to acquire lands for the estab- Pitch pine forest, Cape Helopen State Park. lishment of “state forests, state forest parks, experimental stations and demonstration areas.”71 However, these variously designated areas are fully integrated into the state forest system, and the designations may be 72 changed in the future. KEITH CLANCY, DNHP.

chapter 6 105 DDA Forest Service’s multiple use objectives. Very few of sweetgum, maple, and yellow-poplar. The DDA Forest parcels within the state forests have been set aside for their Service plans to conduct low intensity prescribed burns in natural features or for conservation purposes. However, a the forest to encourage natural regeneration of oak species. 500 acre parcel at Redden State Forest is utilized as a Prescribed burns have also been used in the southern state wildlife/hunting sanctuary. The area contains the forest’s forests to reduce the amount of woody debris, or “fuel” main buildings, educational facilities, and several trails.75 that has accumulated in the forests.86 Seven sensitive Carolina or Delmarva bays also have been set aside at Blackbird State Forest.76 These parcels have Funding for State Forest Management been officially designated as nature preserves.77 The State Forestry Fund was established to provide funds The dominant harvesting technique for timber produc- for use “in connection with state forests.”87 The fund tion at Redden State Forest in tracts which consist predom- receives monies from timber sales in the state forests, crop inantly of pine is small clearcuts.78 Selection harvests are land leases from agricultural lands located within the state also conducted on hardwood stands.79 Approximately 30- forests, and to a lesser extent, tree seedling sales, firewood 50 acres per year are harvested at Redden State Forest, or permits, and facility rentals.88 The fund may also receive one percent of the total forest acreage.80 Harvested tracts at income from fines and penalties, as well as appropriations Redden are replanted exclusively with loblolly pine. During from the state General Assembly and the federal govern- the first few years of regeneration, the sites are treated with ment.89 While the law is vague as to expenditure of these herbicides to prevent the natural regeneration of hardwood funds,90 the DDA Forest Service uses this money primarily species.81 In the past four years, only 30 acres have been for salaries and supplies supporting forestry programs.91 harvested at Blackbird State Forest. Regeneration at Blackbird is allowed to occur naturally to encourage mixed Forest Management Conclusions hardwood composition.82 Although the DDA Forest Service does not intensely manage state forests for timber production, the agency does Forest Health and Fire Prevention favor forest replanting with loblolly pine monocultures and The DDA Forest Service’s activities related to forest man- harvesting on a short rotation schedule in the southern agement and forest health are reviewed by the Governor’s state forests. In addition, through the Commercial Forest Forestry Advisory Council. The Council is appointed by Plantation Program (See Ch. 7: Forest Management the Governor for three-year terms. The Council encourages Incentives), 80 percent of the reforested acres are replanted the DDA Forest Service to devote resources to monitoring with loblolly pine.92 With the high rate of forest conversion and practices to improve forest health.83 to development, Delaware should seriously consider the The DDA Forest Service’s Forest Health program works consequences of the existing programs that favor reforesta- to ensure that the state’s rural and urban forests remain tion with one species of pine. This practice may make the healthy. With assistance from the U.S. Forest Service, the state’s forested acreage more susceptible to disease and nat- DDA Forest Service conducts annual inventories of forest- ural disturbance, and may fail to provide diverse forest ed areas to assess forest health, conducts annual aerial sur- habitats for the state’s forest-dependent species. veys to monitor defoliation from gypsy moths and other forest pests, and provides landowners and local communities with assistance for forest health problems.84 BALANCING THE NEEDS OF STATE PARKS The DDA Forest Service’s Wildland Fire Prevention and Suppression Program works to prevent and suppress fires. Historically, the primary focus of the Division of Parks and The state estimates that approximately one million acres of Recreation has been the recreational aspect of its holdings. public and private lands (including 90,000 acres of marshes The division’s primary budgetary emphasis has been on and 530,000 acres of agricultural lands) are susceptible to managing lands for people rather than protecting and fire.85 Fire suppression can have negative consequences for restoring biological diversity.93 About 75 percent of the forest health and species diversity. When fires are sup- parks’ operational budget is provided by park passes, user pressed, forest debris accumulates on the forest floor and fees, and concession fees.94 These funds cover the basic when a fire does ignite, it is more intense and destructive. operations of the parks, including enforcement, main- In addition, fire suppression can cause forest species com- tenance, lifeguards, custodial services, and environ- position to change. For example, fire suppression in mental education and interpretation.95 While the focus Blackbird State Forest has caused species composition to on operational needs satisfies the desires of park users, change from the historic oak/hickory composition to a mix it has left precious few resources for parks administra-

106 protecting delaware’s natural heritage tors to effectively manage and restore holdings to max- Funding for Stewardship imize biodiversity. The question of management of state lands is difficult to At present, a statewide comprehensive outdoor recreation resolve because open space management is both labor inten- plan emphasizes the recreational and operational aspects of sive and time consuming, while offering little political gain. park lands.96 Similarly, the Master Plans for each state park Delaware must recognize that additional funds are necessary (which often date to the 1970s) tend to be “use” oriented, for management and restoration to maximize biodiversity. focusing on active recreation, passive use, and park facilities. Delaware agencies are already hampered in their ability to These plans are currently being updated, creating an oppor- develop management and restoration plans on the new lands tunity to look more closely at biodiversity and open space while maintaining on-going activities on existing protected management issues in the future. Perhaps even more rele- areas. Without additional funds, these agencies will be vant, the division is currently developing operational plans increasingly unable to meet their management obligations. for each of its parks. These plans, focusing on nuts and DNREC should establish a source of “stewardship” bolts park operation and management, are the optimal funding to provide the agency’s divisions with adequate place to integrate biodiversity conservation into park man- resources to manage the new lands being acquired through agement and maintenance practices.97 By incorporating new the Open Space Program. Funding could be allocated to concepts into its on-going planning process, the division the land management agencies acquiring land through the may begin to develop a base of support for greater funding program based on acreage acquired, restoration and man- for biodiversity enhancement. agement needs, or through a competitive grant process. 102 In many state natural resource agencies, there is a divi- These funds could be used to conduct field studies, devel- sion of nature preserves separate from the division of op management plans, and administer a variety of land parks and recreation. In these states, the nature preserve management projects.103 With these funds, the department sections generally have staff devoted to issues such as rare could hire adequate personnel to address such issues as for- and threatened plant protection, monitoring, restoration, est health, conservation easement monitoring, and invasive and exotic species control. In Delaware, the programs are and exotic species problems.104 combined within the Division of Parks and Recreation. A lack of management funds and resources for biodiversity protection and restoration in Delaware’s Division of Parks NATIVE SPECIES PROTECTION EFFORTS and Recreation often means that not only are the state’s parks in need of greater conservation attention, but so Delaware Invasive Species Council too are the nature preserves. The Delaware Invasive Species Council (DISC) began meeting informally in mid-1998 and was formally established in January 1999. This coalition of state and federal MANAGEMENT OF OPEN SPACE agencies, organizations, academic institutions, and others was organized to identify policies and practices that might Between 1990, when the Open Space Program was estab- help reduce threats caused by invasive species in Delaware. lished, and 1996, 13,175 acres of land were protected In addition to those listed on the “Organizational through fee simple purchase, bargain sales, donations, and Membership” list (See Box: Delaware Invasive Species conservation easements.98 The Open Space Program’s man- Council), many groups attend regular meetings, including date is solely for acquisition of property interests; its funds the Delaware Association of Nurserymen. In its early are not used for managing or restoring lands to maximize stages of establishment, the council is seeking to become biodiversity on newly acquired properties.99 As a result, many an independent non-profit organization.105 One of the of the agencies that have acquired new properties under the committee’s first projects will be to develop a list of program are struggling to develop management and restora- Delaware’s invasive plants and animals that can then be tion plans for the lands. For example, as new wildlife areas used to guide policy-making and public and private land have been added to the Division of Fish and Wildlife’s prop- management decision-making. erties, the division has been focusing on managing these new areas, rather than on developing management plans for exist- The mission statement of the group is to: ing areas.100 Acquisition of new properties has encouraged • Promote a public awareness of problems caused by non- the Division of Parks and Recreation to focus on issues such native invasive species; as forest health since many of the recently acquired lands are • Facilitate the communication and exchange of informa- more degraded than existing protected areas.101 tion on non-native invasive species and their control;

chapter 6 107 • Promote the use of locally native species; Native Species and DNREC’s Division of Parks and • Encourage support for research, management, and Recreation funding for non-native invasive species prevention and In 1994, the Division of Parks and Recreation, in coopera- control; and tion with the Delaware Natural Heritage Program, devel- • Serve as an advisory panel for various interests con- oped a Native Plants Policy.106 The policy, now formally cerned with non-native invasive species, review man- adopted, will be phased in over the next five years.107 The agement problems and activities associated with such policy directs the division to use native plant species for species, and provide updated information for specific any new plantings or replantings on lands managed by the management needs. division.108 The policy not only encourages the use of locally native species, but also discourages the use of “non- On February 3, 1999 President Clinton signed an Exec- native, exotic or ornamental species.”109 It provides lists of utive Order designed to “prevent the introduction of native plant species that are acceptable for each of the state invasive species and provide for their control and to min- parks, as well as a list of highly invasive exotic species that imize the economic, ecological, and human health should be avoided. The exotic species list includes Norway impacts that invasive species cause.” The order estab- maple, autumn and Russian olive, English ivy, three species lished a federal Invasive Species Council. The council of honeysuckle, mulitflora rose, and purple loosestrife. In was charged to develop, a “National Invasive Species addition, the policy document includes a list of possible Management Plan” within 18 months of issuance of the sources for native plants in Delaware, and in the surround- order through a public process. The plan will “detail and ing New Jersey, Pennsylvania, and Maryland region.110 New recommend performance-oriented goals and objectives Castle County has a similar policy.111 and specific measures of success for Federal agency To date, the division has had some difficulty locating efforts concerning invasive species.” sources of local native species. Delaware, unlike most The Delaware Invasive Species Council hopes to com- states, does not have a state nursery to supply state agen- plete a state management plan identifying species of con- cies and citizens with plants, shrubs, and trees.112 cern in the state, as well as those species not currently in However, the demand for native species for DelDOT’s the state that are considered a potential threat, in sufficient wetland mitigation projects has increased to some degree time to submit it to the federal agencies charged with the supply of native plants from local gene pools.113 developing the national plan. The federal plan will also be Because supply is a problem, the division’s Native Plants used to guide the Delaware Council’s research and fund- Policy states that plants to be used on division lands raising agenda. should be obtained from local sources when possible,

Delaware Invasive Species Council Organization Membership

• Delaware Center for the Inland Bays • Mt. Cuba Center for the Study of Piedmont Flora • Delaware Department of Agriculture • Senator Biden’s Office DDA Forest Service • The Nature Conservancy, Delaware Field Office Plant Industries Section • U.S. Department of Agriculture • Delaware Department of Natural Resources and Agricultural Research Service Environmental Control Animal and Plant Health Inspection Service Division of Fish and Wildlife • U.S. Fish and Wildlife Service Division of Parks and Recreation • University of Delaware • Delaware Governor’s Council on Agriculture College of Agriculture & Natural Resources • Delaware Nature Society Graduate College of Marine Studies • Delaware Noxious Weed Council • Village of Arden • Hagley Museum & Library • Wilmington College

108 protecting delaware’s natural heritage but that drawing from sources within the northeast and at the University of Delaware to extirpate non-native mid-Atlantic region is sufficient. species and replant native species at 17 roadside loca- The policy is designed to guide the use of plants in land- tions.117 There are many opportunities and models for scaping at the division’s park facilities, rather than guide DelDOT to enhance its existing native species program. removal of exotic species throughout parks.114 However, the For example, in Michigan, the Department of policy can provide many tangential benefits. It can help to Transportation and Department of Natural Resources educate park staff, other state and local agencies, and the have collaborated to identify 85 special “plant protected general public about problems associated with exotic areas” that are to be managed for biological diversity as species and the benefits of using native species. The policy well as safety and accessibility.118 can also help encourage local nurseries to grow and sell a DelDOT’s mowing policy was developed in 1984, and greater diversity of native species. Such a policy may even does not explicitly reflect biological diversity concerns. The spur a larger effort to remove exotic species that have invaded parks throughout the state. Although the Native Plants Policy is an excellent model for “Native species represent the other state agencies and divisions to follow, the list of nurs- natural vegetative communities eries with native plant supplies is rather outdated. Creating a system for annual or bi-annual review of the list of native of our landscape and are critical species, list of exotics to be avoided, and list of nurseries supplying native species would be beneficial. Regular updates in maintaining the biological would also reinforce the notion that the problems associated diversity and natural heritage of with exotic species are constantly evolving. The Division of Parks and Recreation’s Native Plants Policy should be consid- our State ... not only can native ered by the other state agencies that own and manage land, in addition to the agencies that may not hold public lands other plants be aesthetically pleasing, than those where their buildings are located. All of these state they are also important for educat- agencies make landscaping decisions that can affect native biodiversity on a local, state, and regional level. Encouraging ing the public about their the use of native species at all state facilities will provide a multitude of educational benefits as well as help invigorate ecological value.” 115 the native plant supply market. Source: Division of Parks and Recreation. “Native Plants Policy.” Division of Parks and Recreation, DNREC: Dover, DE.

TRANSPORTATION MANAGEMENT TO PROTECT policy provides for unlimited mowing on highway medians, BIODIVERSITY a maximum of three mows per season on other high- and medium-volume roads, and two mows per season on low- Rights-of-way Management volume roads.119 The last mow is to take place by September Virtually all of Delaware’s 3,868 miles of state and county 15.120 Since mowing is usually carried out by DelDOT con- roads have some right-of-way along both sides. These tractors, adopting explicit mowing policies that protect bio- rights-of-way are maintained for a variety of goals, includ- logical diversity would be particularly beneficial. Minnesota ing motorist safety. How these rights-of-way are vegetated has a limited mowing practice that is timed to take into thus has a significant impact on biological diversity in the consideration the nesting season of grassland bird species. state. Maximizing the extent to which native plant species The state also mows only the first eight feet from the road edge. are utilized and timing rights-of-way mowing to account Minnesota has found that this policy has not only benefitted for species habitat concerns would be beneficial to biologi- biological diversity, but has reduced its mowing costs by 70 per- cal diversity, aid native birds and other species, and best cent; vegetation management costs were reduced 43 percent in replicate the natural ecosystems of Delaware. the first year.121 Ohio’s limited mowing practices have resulted in DelDOT does not have official policies regarding road- an estimated 5 to 10 percent increase in the population of side vegetation management, but requires contractors that ground-nesting birds from 1990 levels. Ohio has also saved an plant on rights-of-way to choose from a list of mostly estimated $200 per mile in mowing costs.122 DelDOT, which native species.116 DelDOT has embarked upon a pilot pro- spends $1.4 million annually on mowing,123 should consider ject in conjunction with the Department of Horticulture adopting revised mowing practices to reflect species concerns.

chapter 6 109 Highway Mitigation and Restoration Activities Division of Fish and Wildlife. Together with some proper- In practice (but not policy), DelDOT routinely seeks to ties owned by the Division of Parks and Recreation, purchase native Delaware wetland species for mitigation Delaware Wild Lands, Inc., and The Nature Conservancy, projects. When bids are sent out to nurseries to purchase approximately 80 percent of Delaware’s coastline, including plants, DelDOT asks potential suppliers to indicate the Delaware Bay and the Atlantic Ocean, is protected. As whether or not its supply is of specific genetic origin. a result, the management practices of FWS and the DelDOT sometimes identifies in the contract specific sites Division of Fish and Wildlife have a profound impact on where seed must be collected. With bottomland hardwood the health of Delaware’s tidal wetlands.127 species, DelDOT often specifies the range where species During the mid-1980s, the Division of Fish and Wild- can be collected. To date, DelDOT has found that locating life instituted a new approach to marsh management — native plant types is difficult for some wetland restoration Integrated Marsh Management (IMM). This program was projects. This has been particularly true for specific forested initiated to address historic single-goal marsh wetland restoration projects, such as Atlantic white cedar, managementpractices. Many of these practices, such as since few of these wetlands remain in Delaware. However, those to provide flood control or favor a particular species Delaware’s demand for Atlantic white cedar led the valuable for hunting or fishing, may have been harmful to Weyerhaeuser Corporation, which did not have a local some fish and wildlife resources.128 IMM was adopted by source of the species, to propagate these trees from the Division of Fish and Wildlife to ensure that marsh Delaware cuttings and develop a new methodology for management goals encompass: propagating the species.124 DelDOT’s attempts to identify a private nursery to grow native wetland species for restora- environmentally-compatible mosquito control; water- tion projects have met with some difficulty. Although there fowl habitat enhancement, including selective cre- are many wetland nurseries in the state, many are reluctant ation or restoration of marsh ponds and optimum to enter into a contract to propagate less common emer- management of existing impoundments; Phragmites gent wetland plant species.125 control; habitat conservation for fish spawning and In an effort to maintain the ecological integrity of its nursery areas; abitat management for muskrat pro- forested compensatory mitigation sites, DelDOT plans to duction and deer utilization; and integration of goals conduct “stage planting” on 400-500 acres of mitigation of the non-game and endangered species program.129 wetlands. Under this project, DelDOT has set aside some funding to support phased planting at forested wetland mit- Although this wide array of management goals presents igation sites over a 15-20 year period. The department has many challenges, significant wildlife gains have been experienced problems with non-native mid-story species in achieved. However, due to significant impacts from many forested wetlands. DelDOT believes that when wetlands past management practices, Delaware may have a long way that were farmed 30 to 40 years ago are allowed to reforest to go before historic ecosystem components and functions naturally, the understory becomes dominated by shade-tol- are restored. erant non-native species. These include such species as Japanese stilt grass, Japanese honeysuckle, Japanese Phragmites Control Efforts knotweed, and garlic mustard, that are problem species in As discussed earlier, it is estimated that one-third of many of the state’s forested wetlands. In an effort to help Delaware’s tidal wetlands — 29,500 to 39,500 acres — establish native species, DelDOT plans to plant forested have been impacted by phragmites (Phragmites australis) wetlands in phases to allow shade intolerant mid- and infestation.130 An invasive species (most likely an exotic under-story species to establish and provide more vertical hybrid of a native and old world species), phragmites tends diversity in forested wetland mitigation sites.126 However, to become established in wetlands that have been impacted maintaining these sites to promote native species will by a human disturbance, such as impounding and dredg- require on-going monitoring and active management to ing.131 Some relatively undisturbed marshes have also expe- ensure that non-native species do not become a problem. rienced extensive phragmites growth.132 When phragmites spreads and dominates a tidal marsh, it displaces native cordgrasses as well as those species of plants and animals WETLAND RESTORATION AND MANAGEMENT that depend on short-grass marshes.133 The Division of Fish and Wildlife has worked since the The primary public agencies that own and manage 1950s to develop a method for controlling phragmites with Delaware’s tidal wetland resources are FWS and DNREC’s minimal negative environmental impacts. In the early

110 protecting delaware’s natural heritage 1950s the division began experimenting with a variety of The Division of Parks and Recreation also treated techniques including flooding, mowing, burning, and approximately 1,000 acres of phragmites on state parkland chemical control.134 During the 1970s and mid-1980s, from 1993 - 1998.142 Technical assistance and partial fund- treatment tests were conducted in conjunction with the ing for this treatment was provided by the Division of Fish Monsanto Company.135 In 1982, the division began spray- and Wildlife.143 ing phragmites on test plots with Rodeo, an organophosphorous (glyphosate-based) compound. Through years of Impoundment Management experimentation, the division has concluded that the most Between 1938 and 1973, Delaware underwent a period of effective phragmites control technique is to spray phrag- significant wetland loss — 9 percent of the state’s tidal wet- mites infested sites with Rodeo in two consecutive late lands were lost during this time. An estimated 3,910 acres, summer broadcast applications and burn the site between or 47.4 percent of the total loss, was attributed to tidal herbicide applications. Burning the plots has helped wetland impoundments. From 1954 to 1971, an additional remove dead phragmites stalks, reduce litter mat, release 7,548 acres of coastal tidal wetlands were lost to impound- soil nutrients, reduce gas exchange to surviving root stocks, ment.144 During the mid- to late-1980s, one major and stimulate the rapid revegetation of desirable species in impoundment project was completed — a 4,000 acre tract the existing seed bank. Burning has not reduced non- of tidal wetlands was impounded at Prime Hook National phragmites plant establishment.136 The division found that Wildlife Refuge in an attempt to achieve several manage- two years following the treatment, phragmites density was ment objectives, including phragmites control.145 reduced 58-99 percent. Wetland plant diversity increased Delaware’s tidal wetlands have been systematically significantly in the two-year period as well. In the brackish impounded to achieve specific management goals, includ- sites, 12 species were identified, and in the freshwater ing agricultural and pastureland reclamation, flood preven- impoundment sites, 29 species were identified.137 tion, waterfowl attraction, and mosquito control. It is now In 1994, Public Service Electric and Gas Co. (PSE&G) estimated that 11-13 percent of the state’s tidal wetlands entered into an agreement, the Estuary Enhancement — over 10,000 acres at 41 sites — are managed impound- Program, as part of a permit from the New Jersey ments.146 Including smaller impoundments under 20 acres Department of Environmental Protection for the compa- on private property, the total acreage of tidal wetlands ny’s Salem Nuclear Generating Station. PSE&G agreed to impounded in Delaware is approximately 12,000 acres.147 restore or conserve 22,000 acres of wetlands and upland These impoundments are controlled by water control buffers in New Jersey and Delaware. The activities covered structures, levees, or dikes that restrict tidal flow. If cut off by the agreement include: restoration of diked salt hay from tidal exchange with the Delaware Bay, these produc- farms or phragmites-dominated wetlands to naturally func- tive coastal marshes cease to perform many of their valu- tioning saltwater/brackish marshes; acquisition of upland able functions, such as nutrient exchange and spawning buffers to ensure long-term protection of sensitive areas habitat for marine species whose movement is severely adjacent to coastal wetlands; installation of fish ladders to restricted by impoundments. permit fish migration to previously inaccessible spawning At many of the state’s 12 major wildlife areas, the and nursery areas; and initiation of a comprehensive bio- Division of Fish and Wildlife maintains impounded wet- logical monitoring program for the Delaware Estuary.138 lands and shallow water ponds. These areas require “main- Funding from the PSE&G settlement provided the tenance of earthen dikes and excavation/clean outs to Division of Fish and Wildlife with over $286,000 that was maintain integrity of wetland systems.” In addition, water used to treat 4,685 acres of phragmites on state wildlife control structures in place at the sites must be maintained areas in 1998.139 In total, the division spent over $338,000 to allow “manipulation of impounded areas facilitating veg- to spray over 6,400 acres of phragmites in 1998. etative growth beneficial for wildlife.”148 From 1986-98, the division treated over 29,000 acres of Today, the division’s impoundment management policies phragmites on state wildlife areas and provided cost-share no longer focus solely on single-purpose management assistance to private landowners to treat over 19,000 acres goals, but recognize the need to provide tidal exchange. on private land (See Ch. 7: Phragmites Control).140 Prior However, significant resources and labor must be commit- to using PSE&G settlement funds, the division relied on ted to monitoring and controlling water levels. Although general fund money, proceeds from hunting permits, and impoundments are now managed for fish and wildlife pur- special grants from non-profit organizations and the feder- poses, and joint wildlife/mosquito control has successfully al government to treat phragmites on both public and pri- enhanced waterfowl, wading bird, and shorebird popula- vate property.141 tions in Delaware’s coastal wetlands, “the creation of

chapter 6 111 impoundments in salt marshes can detrimentally alter which most often occurs in areas where other land manage- habitat for some original marsh species, including both ment objectives do not permit OMWM’s use, environmen- game and non-game species.”149 tally-acceptable insecticides are used.153 The Division of Fish and Wildlife should continue to monitor and study impoundment management practices to Softening the Shoreline ensure that habitat for a variety of species — both those The construction of erosion control structures along that are commercially and recreationally valuable and those Delaware’s coastline can help to protect development along that are at-risk — is considered in any impoundment man- the shoreline from threats posed by storms and floods. agement strategy. However, the use of structural solutions, or shoreline “hardening,” can also lead to significant wetland losses. For Mosquito Management example, the establishment of bulkheads (vertical walled As long as Delaware has been recognized for its abundance structures) impedes the movement of nutrients and aquatic of natural resources, so too has it been recognized for its organisms between open water and tidal wetlands, leading abundance of mosquitoes. In addition to being a threat to to the loss of tidal habitat. Wood bulkheads are treated the state’s economic development, mosquitoes have been a with preservatives toxic to marine life. In addition, bulk- threat to human health. In the 1930s, parallel-grid-ditching heads often cause increased erosion of adjacent shorelines was the primary management strategy for reducing mosqui- by redistributing wave energy.154 toes in Delaware. From 1932 to 1938, the Civilian In an effort to reduce the use of structural solutions to Conservation Corps constructed extensive parallel-grid- shoreline erosion, DNREC instructs landowners that ditches across the state. The practice entails the creation of although bulkheads are effective in areas of high vulnerabil- ditches 10-inches wide, 24-inches deep, and approximately ity, rip-rap and other non-structural alternatives may be 150-feet apart in tidal wetlands. The ditches drain surface preferable. These alternatives cause less disturbance and water and allow mosquito larvae predators access to mos- loss of adjacent shallow water habitats. The creation of quito breeding pools. Over a period of 60 years, it is marshes along the fringe of the shoreline can prove to be an believed that this technique affected 38 percent of the state’s effective, less expensive option for the control of shoreline tidal marshes, either through direct ditching, or subsequent erosion. These coastal marshes act as a buffer from wave ditch maintenance in the early 1950s and mid-1960s.150 energy to lessen the effects of erosion, reduce the amount As insecticides became more readily available, the appli- of pollutants entering the water by filtering upland runoff cation of what are termed “first generation insecticides” was and trapping sediment and nutrients, and enhance fisheries used to control mosquito populations in the state. Today and near-shore habitat.155 the Division of Fish and Wildlife has responsibility for the DNREC should consider developing a program to pro- state’s mosquito control program. The mosquito control vide landowners with cost-share and technical assistance technique now preferred is a source reduction method to establish, where practical, coastal marshes planted with called Open Marsh Water Management (OMWM). While native species as an alternative to shoreline hardening parallel-grid-ditching and insecticide application treated with bulkheads. large areas of marshes, OMWM entails selective treatment of areas that are known to be saltmarsh mosquito-breeding Northern Delaware Wetlands Rehabilitation Program sites. By creating ponds and ditching in specific mosquito- Initiated in 1992, the Northern Delaware Wetlands breeding areas, prime saltmarsh mosquito egg deposition Rehabilitation Program (NDWRP) was designed to restore sites are eliminated and fish species that feed upon mosqui- approximately 10,000 acres of degraded wetlands at 31 to larvae have access to the sites where eggs are deposited. sites along the Christina and Delaware Rivers in New It is estimated that approximately 16 percent of Delaware’s Castle County. The program — housed within DNREC’s tidal wetlands are important mosquito breeding habitats, Division of Fish and Wildlife, Mosquito Control Section enough to warrant OMWM treatment. It is believed that — specifically aims to involve civic and business leaders, OMWM “yields effective mosquito control, enhances fish scientists, resource managers, and property owners to and wildlife habitat, and does not inhibit tidal exchange achieve the program goals.156 Initial funding for this processes.”151 The hope is that by using the OMWM tech- restoration program was provided by the National Oceanic nique, the use of chemical insecticides can be reduced by at and Atmospheric Administration, through Delaware’s least 80 percent and that environmental alteration for mos- Coastal Management Program. Subsequent funding has quito control can be minimized.152 When OMWM systems been obtained from DNREC’s Division of Fish and are unable to satisfactorily control saltmarsh mosquitoes, Wildlife, environmental fines, settlement funds, natural

112 protecting delaware’s natural heritage resource damage assessments, private and federal grants, migratory shorebirds and bald eagle nests, provided migra- and other federal, state, and local agencies.157 tion corridors for Neotropical migrants, and preserved the NDWRP seeks to improve water quality, increase fish last remaining substantial wetlands in Delaware important to and wildlife populations, increase biological diversity and the American black duck, a species of special concern.161 improve habitat, protect threatened and endangered species, In collaboration with other national migratory bird ini- control nuisance plants, control mosquitoes and flooding, tiatives,162 NAWMP will likely continue to be a key program reduce shoreline erosion, and improve recreational and edu- for restoring Delaware’s wetlands. By working together in cational opportunities. Many of Delaware’s wetlands have Delaware, these programs will ensure that partnerships will been significantly degraded by hydrologic alterations. One be regionally based, biologically driven, and landscape-ori- of the first objectives of the wetland restoration program is ented to deliver a full spectrum of bird conservation.163 to restore and enhance natural hydrology by installing auto- mated water control structures to reestablish partial tidal The Future of Wetland Management flow between the impounded marshes and rivers. Although many of Delaware’s wetland management prac- The program also attempts to control non-point source tices caused habitat degradation and wetland losses in the pollution and increase wildlife populations by establishing past, new techniques have been developed that achieve food and cover for wildlife, installing waterfowl and song- multiple objectives, protect and restore degraded wetlands, bird nesting structures, and adjusting water levels to accom- and provide critical habitat for native plants and animals. modate the seasonal needs of a diversity of species.158 Several of these new techniques, such as Open Marsh To date, NDWRP has completed restoration on over Water Management and phragmites and mosquito control 1,830 acres at six sites: Augustine Creek Wetland Complex, efforts, should be continuously monitored to evaluate the Broad Dyke Marsh, Dragon Run Marsh, Gambacorta overall and cumulative effect of these practices on the Marsh, and DuPont North and Port of Wilmington state’s wetland resources and the plants and animals that Wetlands. Restoration activities are currently underway on rely upon these critical ecosystems for habitat. an additional 1,697 acres, including portions of the Old Wilmington Marsh, Hamburg Cover, Lang Farm Wildlife Area, and Grassdale wetlands.159 The Dragon Run Creek OTHER COOPERATIVE PROGRAMS Impoundment, northwest of Delaware City, provides habitat to more than 35 plant and 200 bird species, as well as Delaware Inland Bays Estuary Program game species such as largemouth bass and chain pickerel, The Inland Bays Estuary Program was established under and mammals such as beaver, otter, and mink.160 The U.S. Environmental Protection Agency’s (EPA) National Estuary Program in 1988,164 and the Delaware North American Waterfowl Management Plan Center for the Inland Bays was established as a non-profit The international North American Waterfowl Management organization in 1994.165 Delaware’s inland bays are located Plan (NAWMP) is designed to “protect, enhance and along the Atlantic shore of Delaware and consist of three restore” critical wetlands and upland areas that provide interconnected embayments: Indian River Bay, Rehoboth habitat for migratory waterfowl. It seeks to initiate a long- Bay, and Little Assawoman Bay. The bays are home to sev- term solution to land use problems by coordinating the eral species of federally threatened and endangered plants action of federal, state, and local governments, businesses, and animals, including bald eagle, piping plover, Delmarva conservation organizations, and individual citizens. fox squirrel, and the flowering plant, swamp pink. The 30- In the mid-1990s, The Nature Conservancy, Delaware square miles of coastal bays have been severely degraded by Wild Lands, Inc. and the Delaware Division of Fish and nutrient enrichment and several water quality problems, Wildlife entered into two NAWMP projects to protect over including harmful algal blooms and red and brown tides.166 5,000 acres of tidal wetlands, beach front, and surrounding These bays have only limited connection to the Atlantic buffers in the Milford Neck and Nanticoke River areas of Ocean and as a result, water is exchanged with the Atlantic Delaware. The two projects were jointly funded at almost only every 80 to 100 days. The main source of freshwater $2.5 million. While the program seeks to restore pre-1970s to the system is groundwater discharging to the bays.167 As waterfowl populations, NAWMP restoration projects signifi- discussed earlier (See Ch. 1: Water Quality Impairment), cantly benefit habitat for other game and non-game migrato- excessive nutrient loading is having a severe impact on ry birds, shorebirds, rare and endangered species of plants Delaware’s waters. A recent study found that although and animals, and all other wetland dependent species. nitrogen inputs to Rehoboth Bay are below the bay’s carry- Acquisitions in Delaware have protected staging areas for ing capacity, the input of nitrogen to Indian River Bay and

chapter 6 113 Little Assawoman Bay are significantly above — about two ple, low dissolved oxygen levels limit the health of several and a half times — the bays’ estimated carrying capacity. 168 marine species, and the populations of estuarine-dependent The Center for the Inland Bays is currently working with a species, such as summer flounder and weakfish, have been variety of partners to restore submerged vascular plants, declining due to bycatch outside the estuary, over-fishing, primarily eelgrass (Zostera marina), to the bays. Eelgrass impingement and entrainment, and lack of coordinated provides aquatic habitat and filters excessive nutrients from management. Fish consumption advisories continue in the water column, thereby improving water clarity. Delaware, Pennsylvania, and New Jersey due to elevated levels of toxic compounds found in the estuary’s sediments, Delaware Estuary Program water column, and in tissues of organisms dependent on In 1988, the Delaware Estuary was nominated for inclu- the estuary.171 sion in EPA’s National Estuary Program. The program is a In the early stages of developing the CCMP, a task force three-state cooperative effort with Delaware, New Jersey, was charged with identifying the important species within and Pennsylvania. The program was charged with working the estuary, including those that are harvested, endangered with participants from federal, state, and local govern- and threatened, migratory, and of ecological importance. ments, as well as non-governmental organizations, to pre- The list of 350 identified species was analyzed to determine pare a Comprehensive Conservation and Management which species or assemblages of species are critical to the Plan (CCMP) to “protect, restore, and monitor the health health of the ecosystem. The program’s Habitat and Living of the [Delaware Bay] ecosystem.”169 In 1995, the Resources Implementation Team is developing a map based Partnership for the Delaware Estuary was formed to pro- on the habitat requirements for critical species — e.g., mote and coordinate implementation of the CCMP.170 horseshoe crabs and herons — to guide conservation activi- The Delaware Estuary has experienced significant ties. The first draft of the map will be completed in mid- to improvements in water quality in the past several decades. late-1999. Once the map is complete, the Implementation However, many problems continue to limit the ability of Team will conduct a pilot workshop and outreach effort in the estuary to regain its former ecological health. For exam- Delaware. The workshop will bring together individuals

Northern Delaware Wetlands Rehabilitation Program

The Augustine Creek Wetland Complex is located tative cover. Although the plant and animal diversi- along the Delaware River approximately one mile ty of the marsh is currently low, through installation south of Port Penn, Delaware. The area was once a of water control structures, implementation of a 964-acre freshwater marsh vegetated with native tidal water management plan, channel and pond mainte- freshwater wetland species, such as wild rice, arrow- nance, and phragmites control, Augustine Marsh head, millet, and river bulrush, that provided habitat can once again provide critical habitat for many for a diversity of wildlife. However, decades of species dependent on water exchange between the impoundment by dikes and poor water management river and the Delaware Bay. Fish species expected to practices led to the establishment of dense monotypic benefit from the restoration efforts include striped stands of phragmites. bass, white perch, blueback herring, alewife, blue When restoration on the site began, over 43 per- crab, and American eel. In addition, it is believed cent of the wetland complex was dominated by that efforts to restore water quality and foraging monotypic phragmites stands, that provide little habitat will benefit a variety of fish and wildlife value to most fish and wildlife species. Low species species, including the federally listed endangered diversity was also attributable to restricted tidal shortnose sturgeon and the federally threatened and flow, shallow water, silty substrate, and lack of vege- state endangered bald eagle.

Source: Hossler, Robert. October 1995. “The Augustine Creek Wetland Complex Rehabilitation Project: Environmental Assessment.” Revised August 1997. DNREC, Division of Fish and Wildlife: Dover, DE. pp. 4-5, 37,43.

114 protecting delaware’s natural heritage from local, state, and federal government, the private sec- effort to facilitate communication between these valuable tor, environmental groups and others to solicit feedback on data sources. the how the map can be used to guide public and private Although the majority of the DNREC divisions partici- conservation activities.172 pated in the first assessment, there is some indication that participation may be waning. The Division of Fish and Whole Basin Initiative Wildlife recently indicated that, primarily due to overex- In 1995, DNREC adopted a Whole Basin Initiative in an tended staff (and the fact that staff work on projects linked effort to address the management of cross-cutting issues “directly to specific funding sources with little to no discre- affecting Delaware’s environmental resources. Coordinated tionary time available”), and the amount of time the by the Office of the Secretary, the strategy uses Delaware’s process is taking, the division has chosen not to serve on four drainage basins — the Piedmont, Chesapeake Bay, the Delaware Estuary Whole Basin Management Team. Delaware Bay/Estuary, and Inland Bays/Atlantic Ocean The division does, however, intend to participate in the — as the geographic units of analysis. In each basin, the Delaware Estuary project once the team is “ready to move Initiative will conduct a planning process to identify key toward the implementation of projects that will result in players and issues, complete a preliminary assessment, improved resource management in the Estuary.”174 conduct intensive basin monitoring, address public participation issues, conduct a comprehensive analysis, evaluate Pea Patch Island Special Area Management Plan management options, develop a resource protection strate- Under the federal Coastal Zone Management Act (CZMA) gy, and implement the finalized basin plan. DNREC’s of 1972, coastal states (the entire state of Delaware is with- divisions of Air and Waste Management, Fish and in the coastal zone management area) are encouraged to Wildlife, Parks and Recreation, Soil and Water develop comprehensive plans, called Special Area Conservation, and Water Resources will use a basin by Management Plans (SAMP). SAMPs are designed to guide basin approach to assess, monitor, and protect the health public and private uses of coastal resources. This is to be of Delaware’s environment.173 achieved in a manner that balances natural resource protec- In July 1997, the initiative completed the first of five tion with “reasonable” coastal-dependent economic growth assessments, the “Piedmont Basin Preliminary Assessment in specific geographic areas.175 Report.” Development of the report was a demonstration In 1997, DNREC and NOAA began developing a of inter-divisional cooperation and intense data collection SAMP for the Pea Patch Island Heronry. The project was and analysis. The preliminary report is a superb synthesis based largely upon research conducted by the Manomet of complex information. Observatory for DNREC, which began in 1993.176 A “Core Although the Whole Basin Initiative does not have an Group” of federal, state and local resource agencies and independent source of funding, there have been several stakeholders assessed the status and health of Pea Patch successful spin-off projects. For example, an innovative Island’s wading birds and outlined priorities for protection nutrient mapping project has been conducted in associa- and management.177 In July 1998, the Core Group released tion with the Chesapeake Basin Assessment, the second the final SAMP to guide protection and restoration of the basin assessment. DNREC inventoried septic systems in heronry and its associated resources. The Implementation the basin and analyzed their development over time. In Team is now charged with ensuring the “coordination, 1992, 69,000 septic systems were located in the basin. By communication, planning, funding, strategy implementa- 1997, there were 81,000 — a 15 percent increase. Based tion and monitoring of the Pea Patch Island Heronry on the state’s current growth rate, the analysis is an indica- Region SAMP.”178 tion that Delaware’s population is moving to more rural Protection of nesting habitat for the wading birds on Pea areas. These data will hopefully be used to overlay soil suit- Patch Island is clearly vital to the survival of these species. ability, to predict septic failures, and in conjunction with However, it is estimated that the heron, egret, and ibis species Total Maximum Daily Loads (See Ch. 4: Sedimentation that utilize Pea Patch Island depend on shallow wetland habi- and Erosion Control Requirements), to predict nutrient tats in a 30-mile radius around the Island itself — extending loading from septic systems. from northern Delaware to southeastern New Jersey.179 If In addition to a lack of funding, the initiative has grap- Delaware wishes to provide long-term protection of wading pled with data coordination difficulties. For example, 25 birds, it must address the protection, restoration, and wise individuals within DNREC are working on separate geo- management of existing foraging and nesting habitat to graphic information system (GIS) data mapping projects. support the heronry, as well as the protection and restoration However, a GIS coordinator has recently been hired in an of surrounding habitats that may support future heronries.

chapter 6 115 CONCLUSION • The Department of Natural Resources and Environ- mental Control should commit resources to advertise the Many of the management practices and policies utilized by tax check-off program and its importance to non-game Delaware’s agencies reflect the ability of these agencies to wildlife protection. Donated check-off funds should be adapt to changing priorities of the public, as well as the used for high profile restoration activities. changing management needs of the state’s biological communities. However, there is ample reason for these manage- • Delaware’s land management, economic development, ment practices to be monitored and assessed to assure that transportation, and other agencies should integrate current practices reflect biological needs. In addition, the Natural Heritage data, Gap Analysis, and state water funding and resource needs of many of the existing pro- quality monitoring data into agency decision-making. grams — such as the Non-game Program, Delaware Natural This decision-making should include long-range plan- Heritage Program, Natural Areas Program, and the Division ning, development of acquisition strategies, targeting of of Fish and Wildlife’s marine research and restoration pro- cost-share and incentive programs, and making manage- gram — warrant greater attention. Finally, Delaware has a ment decisions on state-owned land. number of sources of scientific data on the state’s terrestrial and aquatic biological resources. Delaware’s natural resource • Secure additional sources of funding for the Division of professionals should ensure that these resources are better Fish and Wildlife’s marine restoration and marine integrated into management decision-making. research responsibilities from increased general fund appropriations, by dedicating the entire amount of revenues from marine boat registration, by establishing a RECOMMENDATIONS marine fishing license, or through an agreement between the Department of Natural Resources and Environ- • Develop a statewide biodiversity inventory and assess- mental Control and the Delaware Department of ment model — drawing from existing sources of bio- Transportation to secure unclaimed motor boat fuel logical data, such as the Delaware Natural Heritage taxes for marine activities. Program and Gap Analysis Project — to identify biologically critical areas to target incentive programs, • The Division of Fish and Wildlife should ensure that management resources, acquisition funding, and wildlife management practices are conducted in a holistic restoration activities. Provide this biological informa- manner. These practices should promote the objectives of tion to decision-makers in a format that can help guide ecosystem management, rather than favor specific game on-the-ground decision-making. species over native species that are not fished or hunted. Additional resources should be devoted to monitoring • Create a Wildlife Diversity Program within the Division and evaluation of such wildlife management practices. of Fish and Wildlife to improve the visibility of, and commitment to, conservation of all wildlife. Within • Develop management plans that consider biodiversity the new program, consolidate the Non-game Program conservation and restoration for each of the state’s pro- and Delaware Natural Heritage Program. Establish the tected conservation lands — wildlife areas, parks, and program at the section level or integrate it into the forests. Require regular updates to reflect new trends in division in such a manner as to ensure that it receives wildlife and recreational use, include regular updates on attention equal to that of the wildlife and fisheries sec- exotic species, ensure that each agency’s constituents are tions. Seek general funds to cover the program’s staff being served, and ensure that management activities and project budgets. (e.g., mosquitoes and impoundment management, phragmites control, shoreline hardening, silviculture, and • Establish a Wildlife Diversity Advisory Board appointed native species restoration) reflect current scientific under- by the Secretary of the Department of Natural Resources standing and do not adversely affect species diversity. and Environmental Control to provide a voice for the state’s wildlife users who do not hunt or fish. • The Division of Fish and Wildlife should secure funding Alternatively, the Department of Natural Resources and for the Delaware Natural Heritage Program to conduct Environmental Control should ensure adequate repre- one survey per year of the state’s wildlife areas and nature sentation by non-game wildlife advocates on the divi- preserves to monitor ecological health of these unique sion’s Game and Fish Advisory Council. areas and provide a benchmark for the rest of the state.

116 protecting delaware’s natural heritage • Seek appropriations to create a stewardship fund within policy. This initiative should include those agencies that The Department of Natural Resources and Environmental may not hold public lands other than those where their Control to ensure that lands acquired under the Open buildings are located. Space Program receive adequate funds for restoration and management. Stewardship funds should be allocated • Improve and formalize the Delaware Department of to those agencies acquiring lands through the Open Transportation’s (DelDOT) roadside vegetation manage- Space Program on an acreage basis or through a compet- ment policies. Expand the application of DelDOT’s cur- itive grant program. rent pilot project of planting native plant species. Formalize DelDOT’s policies on mowing and planting • Secure high-level state agency and private landowner native species by legislation or regulation. Require commitments to support and implement the policies DelDOT contractors to plant native species and limit developed by the Delaware Invasive Species Council. mowing during critical nesting and migration seasons, or during flowering and seed-set times for key native • Update the Division of Parks and Recreation’s Native plant species. Plants Policy annually or bi-annually to ensure that the list of native species, list of exotics to be avoided, and list • The Department of Natural Resources and Environ- of nurseries supplying native species remains current. mental Control should develop a program to provide landowners with cost-share and technical assistance to • Delaware state agencies should adopt a native plant poli- establish coastal marshes, planted with native species, as cy modeled on the Division of Parks and Recreation’s an alternative to shoreline hardening with bulkheads.

1 Vickers, Ron. DNREC, Division of Parks and Recreation. Personal correspondence. of Dead-End Canals of the Delaware and Maryland Coastal Bays.” Estuaries. 20(2): pp. May 1999. 319-327. 2 McAvoy, William A. March 1998. Rare Native Plants of Delaware. DNHP, DNREC: 17 Jones, Roger. The Nature Conservancy. Personal correspondence. June 15, 1999. Smyrna, DE. 18 Del. Code Ann. tit. 7, § 101, ch. 1. 3 McAvoy, William A. March 1998. Rare Native Plants of Delaware. DNHP, DNREC: 19 Del. Code Ann. tit. 7, § 201 (emphasis added). Smyrna, DE. 20 4 Division of Fish & Wildlife. June 18, 1998. Project Statement: Habitat Development Heckscher, Christopher M. April 16, 1999. List of Rare and Uncommon Animals in Program. DNREC: Dover, DE. Delaware. DNHP, DNREC: Smyrna, DE.; Delaware Natural Heritage Program. March 21 1998. List of Rare and Uncommon Animals in Delaware. DNREC: Smyrna, DE. U.S. Department of the Interior, Fish and Wildlife Service and U.S. Department of 5 Commerce, Bureau of the Census. 1996 National Survey of Fishing, Hunting, and Jones, Roger. The Nature Conservancy. Personal correspondence. June 15, 1999. Wildlife-Associated Recreation. p. 97. 6 Jones, Roger. The Nature Conservancy. Personal correspondence. June 15, 1999. 22 U.S. Department of the Interior, Fish and Wildlife Service and U.S. Department of 7 Broaddus, Lynn. Delaware Natural Heritage Program, DNREC. Personal communica- Commerce, Bureau of the Census. 1996 National Survey of Fishing, Hunting, and tion. January 11, 1999; Jones, Roger. The Nature Conservancy. Personal correspon- Wildlife-Associated Recreation. p. 97, 102. Note: 15 percent fished only, 2 percent hunted dence. June 15, 1999. only, and 4 percent hunted and fished. Numbers do not add to total because of multiple 8 Jones, Roger. The Nature Conservancy. Personal communication. January 11, 1999. response. The study also found that 108,00 individuals participated in wildlife-watching 9 activities in Delaware in 1996, while there were 196,000 anglers and 40,000 hunters. p. McCorkle, Rick. U.S. Fish and Wildlife Service. Personal communication. January 12, 103, 113. 1999; Scott and Jennings. 1998. “Large Area Mapping of Biodiversity,” reprinted from 23 Annals of the Missouri Botanical Garden. 85(1): p. 37. U.S. Department of the Interior, Fish and Wildlife Service and U.S. Department of 10 Commerce, Bureau of the Census. 1996 National Survey of Fishing, Hunting, and In addition to collecting information on chemical parameters of the state’s waters, Wildlife-Associated Recreation. p. 97. DNREC analyzes fish tissue, and occasionally sediment, for the presence of chemical 24 contaminants. Greene, Richard. DNREC, Division of Water Resources. Personal corre- Herman, Lynn. Division of Fish and Wildlife. Personal communication. April 23, spondence. June 2, 1999. 1999; Note: this includes $35,000 from the tax return check-off program, $4-5,000 11 from a grant from the U.S. Fish and Wildlife Service for endangered species restoration, 33 U.S.C. § 1315 (b) and $3-4,000 for osprey work. 12 DNREC. April 1, 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). 25 Broaddus, Lynn. Division of Fish and Wildlife. Personal communication. August 24, 1999. DNREC: Dover, DE. 26 13 Herman, Lynn. Division of Fish and Wildlife. Personal communication. April 23, 1999. DNREC. April 1, 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). 27 DNREC: Dover, DE. I-1. Izaak Walton League of America. 1999. Passing the Buck: A Comparison of State Fish 14 and Wildlife Agency Funding and the Economic Value of Wildlife-Associated Recreation. DNREC. April 1, 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). Izaak Walton League of America: Gaithersburg, MD. DNREC: Dover, DE. I-3. 28 15 Manus, Andrew and Lloyd Alexander, Division of Fish and Wildlife, DNREC. DNREC. April 1, 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). Personal communication. DNREC: Dover, DE. I-4. 29 16 Del. Code Ann. tit. 7, § 201 (emphasis added). DNREC. April 1, 1998. State of Delaware: 1998 Watershed Assessment Report (305(b)). 30 DNREC: Dover, DE. II-1-2; See also: U.S. EPA. September 1996. Assessment of the Wildlife Management Institute. November 1986. A Report to the Secretary Delaware Ecological Condition of the Delaware and Maryland Coastal Bays. U.S. EPA: Washington, Department of Natural Resources and Environmental Control on the Division of Fish and DC. EPA/620/R-96/004; and Maxted, J.R., et al. June 1997. “The Ecological Condition Wildlife. p. 21.

chapter 6 117 31 Del. Code Ann. tit. 7, § 203. Program. DNREC: Dover, DE. 63 32 See id. § 204(c); “The General Assembly shall make no appropriation into said Fund, Manus, Andrew. Division of Fish and Wildlife DNREC. Personal correspondence. but individuals may, from time to time, make contributions or bequests to the Fund.” August 18, 1999. 64 33 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. Wildlife Management Institute. November 1986. A Report to the Secretary Delaware May 1999. Department of Natural Resources and Environmental Control on the Division of Fish and Wildlife. Delaware Assessment Team. August 4, 1994. Letter to Andrew Manus regarding 34 Manus, Andrew. Division of Fish and Wildlife, DNREC. Personal correspondence. management Assistance Team assessment of the Delaware Division of Fish and Wildlife. August 18, 1999. 65 Division of Fish & Wildlife. June 18, 1998. Project Statement: Habitat Development 35 Manus, Andrew and Lloyd Alexander. Division of Fish and Wildlife, DNREC. Program. DNREC: Dover, DE. Personal communication. 66 Manus, Andrew and Lloyd Alexander. DNREC, Division of Fish and Wildlife. 36 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. Personal communication. May 1999. 67 DNREC. February 2, 1998. The Vision Document for the Department of Natural 37 Izaak Walton League of America. 1999. Passing the Buck: A Comparison of State Fish Resources and Environmental Control. Senior Management Review Draft. and Wildlife Agency Funding and the Economic Value of Wildlife-Associated Recreation. 68 Izaak Walton League of America: Gaithersburg, MD. p. 8. Note: this report states that Alexander, H. Lloyd. Division of Fish and Wildlife, DNREC. Personal communication. these sources of funding are “unreliable, provide a very limited amount of annual fund- 69 Division of Fish and Wildlife. 1998. Delaware Bay Shorebirds. Brochure/poster. ing, and conveniently obscure the fundamental issue: Is the state investing an appropriate DNREC, Division of Fish and Wildlife: Dover, DE. amount of its own money in fish and wildlife management?” 70 Del. Code Ann. tit. 3, § 1001. et seq. 38 Del. Code Ann. tit. 7, § 101. 71 See id. § 1008. 39 Del. Code Ann. tit. 7, § 201. 72 Short, E. Austin III. Delaware Department of Agriculture. Personal communication. 40 International Association of Fish and Wildlife Agencies (IAFWA) Wildlife Diversity December 14, 1998. Committee. September 18, 1999. “A Functional Model for Enhancement of Wildlife 73 http://www.state.de.us/deptagri/dfs/stforst.htm. conservation, Education, and Recreation Program.” Version 10.1. 74 41 Del. Code Ann. tit. 3, § 1008(4). International Association of Fish and Wildlife Agencies (IAFWA) Wildlife Diversity 75 Committee. September 18, 1999. “A Functional Model for Enhancement of Wildlife Webb, Junior. DDA Forest Service. Personal communication. July 26, 1999. conservation, Education, and Recreation Program.” Version 10.1. 76 Dobson, James. DDA Forest Service. Personal communication. July 27, 1999. 42 International Association of Fish and Wildlife Agencies (IAFWA) Wildlife Diversity 77 Short, E. Austin III. DDA Forest Service. Personal correspondence. August 17, 1999. Committee. September 18, 1999. “A Functional Model for Enhancement of Wildlife 78 Short, E. Austin III. DDA Forest Service. Personal correspondence. August 17, 1999. conservation, Education, and Recreation Program.” Version 10.1. 79 43 Webb, Junior. DDA Forest Service. Personal communication. July 26, 1999; Manus, Andrew. Division of Fish and Wildlife, DNREC. Personal correspondence. Schwalm, John. DDA Forest Service. Personal communication. July 26, 1999. July 21, 1999. 80 44 Webb, Junior. DDA Forest Service. Personal communication. July 26, 1999. International Association of Fish and Wildlife Agencies (IAFWA) Wildlife Diversity 81 Committee. September 18, 1999. “A Functional Model for Enhancement of Wildlife Webb, Junior. DDA Forest Service. Personal communication. July 26, 1999. conservation, Education, and Recreation Program.” Version 10.1. 82 Dobson, James. DDA Forest Service. Personal communication. July 27, 1999. 45 Del. Code Ann. tit. 7, § 201 et seq. 83 Delaware Department of Agriculture. 1997. Forest Health in Delaware. DDA: Dover, 46 International Association of Fish and Wildlife Agencies (IAFWA) Wildlife Diversity DE. p. 26. Committee. September 18, 1999. “A Functional Model for Enhancement of Wildlife 84 http://www.state.de.us/deptagri/dfs/frsthlth.htm conservation, Education, and Recreation Program.” Version 10.1. 85 http://www.state.de.us/deptagri/dfs/fire.htm. 47 Del. Code Ann. tit. 30, § 5110. 86 Dobson, James. DDA Forest Service. Personal communication. July 27, 1999. 48 Del. Code Ann. tit. 30, § 5120. 87 Del. Code Ann. tit. 3, § 1002. 49 See id. § 5120 (b)-(e) 88 Short, Austin. Delaware Department of Agriculture. Personal correspondence. May 28, 1999. 50 Sipple, Cheryl. Motor Fuel Tax Administration, DelDOT. Personal communication. 89 Del. Code Ann. tit. 3, § 1002. April 20, 1999. 90 Del. Code Ann. tit. 3, § 1008. 51 Scott, Ron. Izaak Walton League of America. Personal correspondence. April 20, 1999. 91 Short, Austin. Delaware Department of Agriculture. Personal communication. 52 Manus, Andrew. Division of Fish and Wildlife, DNREC. Personal communication. January 5, 1999. March 3, 1999; Herman, Lynn. Division of Fish and Wildlife, DNREC. Personal com- 92 Schwalm, John. DDA Forest Service. Personal communication. July 26, 1999. munication. April 23, 1999. 93 53 Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. Herman, Lynn. Division of Fish and Wildlife, DNREC. Personal correspondence. May 1999. April 15, 1999. 94 54 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. Whitman, William R. February 1998. Delaware Bobwhite Quail: Evaluation of May 1999. Habitat and Wildlife Diversity. Division of Fish and Wildlife, DNREC: Dover, DE. 95 55 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. Moore, Eugene G. Division of Fish and Wildlife, DNREC. Personal correspondence. May 1999. 56 Moore, Eugene G. Division of Fish and Wildlife, DNREC. Personal correspondence. 96Line, Robert. Division of Parks and Recreation, DNREC. Personal communication. 57 USDA. Backgrounder: Delaware Conservation Reserve Enhancement Program. News January 7, 1999. Release. USDA: Washington, DC. 97 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal communication. 58 Whitman, William R. Division of Fish and Wildlife, DNREC. Personal correspondence. January 7, 1999. 59 Whitman, William R. Division of Fish and Wildlife, DNREC. Personal correspondence. 98 Delaware Open Space Council. May 1996. Delaware’s Open Space Program: A Five 60 Broaddus, Lynn. Division of Fish and Wildlife, DNREC. Personal communication; Line, Year Report. DNREC: Dover, DE. Rob. Division of Parks and Recreation, DNREC. Personal correspondence. May 1999. 99 von Koch, Debra. Director of Bond Financing. Personal communication. March 17, 1999. 61 Manus, Andrew and Lloyd Alexander. Division of Fish and Wildlife DNREC. 100 Alexander, Lloyd. Division of Fish and Wildlife, DNREC. Personal communication. Personal communication. March 3, 1999. 62 Division of Fish & Wildlife. June 18, 1998. Project Statement: Habitat Development 101 Salkin, Charles. Division of Parks and Recreation, DNREC. Personal communica-

118 protecting delaware’s natural heritage tion. March 3, 1999. 134 Jones, William L. and Wayne Charles Lehman. 1986. “Phragmites Control with Aerial 102 Jones, Roger. The Nature Conservancy. Personal communication. January 11, 1999. Application of Gylphosate in Delaware.” Trans. NE Section. Wildlife Society. V. 43: pp. 15-24. 103 Salkin, Charles. Division of Parks and Recreation, DNREC. Personal communica- 135 Jones, William L. The Herbicide Glyphosate for Phragmites, Purple Loosestrife and tion. March 3, 1999. Cattail Control. Division of Fish and Wildlife, DNREC: Dover, DE. 104 Salkin, Charles. Division of Parks and Recreation, DNREC. Personal communica- 136 Jones, William L. and Wayne Charles Lehman. 1986. “Phragmites Control with tion. March 3, 1999. Aerial Application of Gylphosate in Delaware.” Trans. NE Section. Wildlife Society. V. 105 Eggen, Donald A. Delaware Department of Agriculture, Plant Industry Section. 43: p. 23; Smith, G.J. 1993. Toxicology and Pesticide Use in Relation to Wildlife: Personal communication. Organophosphorous and Carbonate Compounds. CRC Press, Inc.: Boca Raton, FL. p. 171. 137 106 Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. Jones, W.L. and W.C. Lehman. 1986. Phragmites control and revegetation following June 9, 1999. aerial applications of glyphosate in Delaware. pp. 184-199 in W.R. Whitman and W.H. 107 Meredith, eds. Waterfowl and wetland symposium. Proceedings of a symposium on Salkin, Charles. Division of Parks and Recreation, DNREC. Personal communication. waterfowl and wetlands management in the coastal zone of the Atlantic flyway. Del. 108 Division of Parks and Recreation. Native Plants Policy. Division of Parks and Coastal Management Program, DNREC: Dover, DE. Recreation, DNREC: Dover, DE. 138 Pea Patch Island Heronry Special Area Management Plan Core Group. March 1997. 109 Division of Parks and Recreation. Native Plants Policy. Division of Parks and Pea Patch Island Heronry Regional Special Area Management Plan: Issue Characterization. Recreation, DNREC: Dover, DE. DNREC and National Oceanic and Atmospheric Administration: Dover, DE and Silver 110 Division of Parks and Recreation. Native Plants Policy. Division of Parks and Spring, MD. p. 5-4 B 5-5. Recreation, DNREC: Dover, DE. 139 Jones, William. Division of Fish and Wildlife, DNREC. Personal communication; 111 New Castle County, Del., Code ch. 13, Appendix 3. Note: Actual ground acreage is less since some of these applications represent repeat 112 treatments. Salkin, Charles. Division of Parks and Recreation, DNREC. Personal communication. 140 113 Jones, William. Division of Fish and Wildlife, DNREC. Personal communication; Salkin, Charles. Division of Parks and Recreation, DNREC. Personal communication. Note: Actual ground acreage is less since some of these applications represent repeat 114 Salkin, Charles. Division of Parks and Recreation, DNREC. Personal communication. treatments. 115 Note: The Delaware Natural Heritage Program has developed an electronic check list 141 Jones, William. Division of Fish and Wildlife, DNREC. Personal communication. of all plant species found in Delaware. The list indicates whether or not the species are 142 Vickers, Ron. Division of Parks and Recreation, DNREC. Personal correspondence. native. The Division of Fish and Wildlife is exploring opportunities to provide this list to May 1999. the public through a publication or through the Internet. This would provide public and 143 private land managers with a valuable tool. Manus, Andrew. Division of Fish and Wildlife, DNREC. Personal correspondence. 116 August 18, 1999. Hiraesave, Vasuke. DelDOT. Personal communication. March 15, 1999. 144 117 DNREC. January 1994. Comprehensive Conservation and Management Plan for Transcript of pre-bid meeting. March 3, 1999. Contract 99-570-10 (Roadside Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 44. Vegetation Project. DelDOT: Dover, DE. 145 118 DNREC. January 1994. Comprehensive Conservation and Management Plan for Shuen, David. Michigan Department of Transportation. Personal communication. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 46. February 17, 1999. 146 119 DNREC. January 1994. Comprehensive Conservation and Management Plan for Delaware’s DelDOT. 1984. Mowing Policies. Mowing Services Division, DelDOT: Dover, DE. Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 9-10, 144. 120 DelDOT. 1984. Mowing Policies. Mowing Services Division, DelDOT: Dover, DE. 147 DNREC. January 1994. Comprehensive Conservation and Management Plan for 121 Graber, Ken. Minnesota Department of Transportation. Personal correspondence. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 56. February 26, 1999. 148 Division of Fish & Wildlife. June 18, 1998. Project Statement: Habitat Development 122 Brown, Deborah. Ohio Department of Transportation. Personal correspondence. Program. DNREC: Dover, DE. 123 Federal Highway Administration. 1998. Roadsides: A Federal Highway Administration 149 DNREC. January 1994. Comprehensive Conservation and Management Plan for Newsletter for Roadsides Decision-Makers. 5(3):6. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 56-57. 124 Fulmer, Therese M., Delaware Department of Transportation, Environmental 150 DNREC. January 1994. Comprehensive Conservation and Management Plan for Studies. Personal communication. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 54. 125 Dunn, Ken. Delaware Department of Transportation. Personal communication. 151 DNREC. January 1994. Comprehensive Conservation and Management Plan for 126 Dunn, Ken. Delaware Department of Transportation. Personal communication. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 54. 152 127 Manus, Andrew. DNREC, Division of Fish and Wildlife. Personal correspondence. Meredith, William, David E. Saveikis, and Chester J. Stachecki. 1985. “Guidelines for July 21, 1999. ‘Open Marsh Water Management’ in Delaware’s Salt Marshes—Objectives, System Designs, and Installation Procedures.” Wetlands. V. 5: pp. 119-133. 128 DNREC. January 1994. Comprehensive Conservation and Management Plan for 153 Delaware’s Tidal Wetlands. DNREC: Dover, DE. p. 30. DNREC. January 1994. Comprehensive Conservation and Management Plan for Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. pp. 8-9. 129 DNREC. January 1994. Comprehensive Conservation and Management Plan for Manus, Andrew. Division of Fish and Wildlife, DNREC. Personal correspondence. Delaware’s Tidal Wetlands. DNREC: Dover, DE. p. 30. August 18, 1999. 130 DNREC. January 1994. Comprehensive Conservation and Management Plan for 154 http://www.dnrec.state.de.us/erodeb.htm Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 8, 64. 155 http://www.dnrec.state.de.us/erodeb.htm; DNREC. A Vegetative Alternative to Shore 131 DNREC. January 1994. Comprehensive Conservation and Management Plan for Erosion Control. Brochure. Wetlands Section, DNREC: Dover, DE. Delaware’s Tidal Wetlands. Division of Fish and Wildlife, DNREC: Dover, DE. p. 64; 156 Hess, G. K., R. L. West, M. V. Barnhill III, and L. M. Fleming. 1999. Birds of Northern Delaware Wetlands Rehabilitation Program. Brochure. DNREC: Dover, DE. Delaware. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 16. Wetland sites proposed for rehabilitation under the Northern Delaware Wetlands Rehabilitation Program. DNREC internal document. 132 Division of Fish and Wildlife, DNREC. Personal correspondence. June 3, 1999. 157 Northern Delaware Wetlands Rehabilitation Program. Brochure. DNREC: Dover, DE. 133 Benoit, Lori K. and Robert A. Askins. 1999. “Impact of the Spread of Phragmites on 158 the Distribution of Birds in Connecticut Tidal Marshes.” Wetlands. 19(1): pp. 194-208; Northern Delaware Wetlands Rehabilitation Program. Brochure. DNREC: Dover, DE. Hess, G.K., R.L. West, M.V. Barnhill III, and L.M. Fleming. 1999. Birds of Delaware. 159 Manus, Andrew. Division of Fish and Wildlife, DNREC. Personal correspondence. Univ. of Pittsburgh Press: Pittsburgh, PA. p. 16.; DNREC. January 1994. August 18, 1999. Comprehensive Conservation and Management Plan for Delaware’s Tidal Wetlands. 160 Northern Delaware Wetlands Rehabilitation Program. Brochure. DNREC: Dover, DE. Division of Fish and Wildlife, DNREC: Dover, DE. p. 65.

chapter 6 119 161 Whitman, William R. Division of Fish and Wildlife, DNREC. Personal correspondence. 162 For example, Partners in Flight, Western Hemisphere Research Reserve Network, North American Colonial Waterbird Conservation Plan. 163 Whitman, William R. Division of Fish and Wildlife, DNREC. Personal correspondence. 164 A Comprehensive Conservation and Management Plan for Delaware’s Inland Bays. June 1995. p. 1. 165 http://www.udel.edu/CIB/about.htm 166 www.epa.gov/owow/estuaries/dib.htm 167 Richards, Bruce. 1999. “Delaware Inland Bays Nitrogen Overload.” Coastlines. Urban Harbors Institute, U. Mass: Boston, MA. Issue 9.1: p. 8.; Horsley & Whitten, Inc. Assessment of Nitrogen Loading to the Delaware Inland Bays. Prepared for the Center for the Inland Bays: Nassau, DE. 168 Richards, Bruce. 1999. “Delaware Inland Bays Nitrogen Overload.” Coastlines. Urban Harbors Institute, U. Mass: Boston, MA. Issue 9.1: p. 8.’ Horsley & Whitten, Inc. Assessment of Nitrogen Loading to the Delaware Inland Bays. Prepared for the Center for the Inland Bays: Nassau, DE 169 Dove, L.E., and R.M. Nyman, eds. 1995. Living Resources of the Delaware Estuary. The Delaware Estuary Program. p. xv. 170 http://www.delep. org/partner.htm. 171 Delaware Estuary Program. September 1995. Comprehensive Conservation and Management Plan for the Delaware Estuary. pp. 13-14.; www.epa.gov/owow/estuaries/de.thm. 172 Scheib, Wendell. Delaware Estuary Program. Personal communication. August 2, 1999. 173 DNREC. Piedmont Basin: Preliminary Assessment Report. DNREC: Dover, DE. 174 Manus, Andrew. T. February 8, 1999. Subject: Participation of Division Employees on Delaware Estuary WBM Team. Memorandum to Steve Williams, WBM Coordinator. Division of Fish and Wildlife, DNREC: Dover, DE. 175 Pea Patch Island Heronry Regional Special Area Management Plan Core Group. July 1998. The Pea Patch Island Heronry Region: Special Area Management Plan. DNREC: Dover, DE. p. 3-4; Pea Patch Island Heronry Special Area Management Plan Core Group. March 1997. Pea Patch Island Heronry Regional Special Area Management Plan: Issue Characterization. DNREC and National Oceanic and Atmospheric Administration: Dover, DE and Silver Spring, MD; 16 U.S.C.A. § 1453 (17). 176 Line, Robert. Division of Parks and Recreation, DNREC. Personal correspondence. June 9, 1999. 177 Pea Patch Island Heronry Special Area Management Plan Core Group. March 1997. Pea Patch Island Heronry Regional Special Area Management Plan: Issue Characterization. DNREC and National Oceanic and Atmospheric Administration: Dover, DE and Silver Spring, MD. p. I-1. 178 Pea Patch Island Heronry Regional Special Area Management Plan Core Group. July 1998. The Pea Patch Island Heronry Region: Special Area Management Plan. DNREC: Dover, DE. p. 6-7. 179 Pea Patch Island Heronry Special Area Management Plan Core Group. March 1997. Pea Patch Island Heronry Regional Special Area Management Plan: Issue Characterization. DNREC and National Oceanic and Atmospheric Administration: Dover, DE and Silver Spring, MD. p. I-2.

120 protecting delaware’s natural heritage chapter 6 121 122 protecting delaware’s natural heritage Chapter 7 Private Landowner Outreach, Assistance, Taxation, and Incentive Programs

tate tax policies and state and federal incentive pro- conservation land receives a property tax break. Donations grams can have a profound effect on land use and of easements to the state and conservation organizations Smanagement decisions on private lands. Incentive and could be encouraged by enacting a law providing for the cost-share programs can guide landowners to institute automatic re-valuation of conservation land according to management practices on their agricultural lands, wetlands, its protected uses. Alternatively, Delaware’s agricultural val- and forests that contribute to biological diversity conserva- uation law, discussed below, could be expanded to include tion. These types of programs are particularly important in in its scope undeveloped land not producing any income states such as Delaware, where a large portion of the land from farming or forestry activities. base is in private ownership. Land and Historic Resource Tax Credit In August 1999, the Delaware House of Representatives TAX INCENTIVE PROGRAMS FOR CONSERVATION and Delaware Senate each unanimously passed the Delaware Land and Historic Resources Protection Taxes on real estate can strongly influence land use and the Incentives Act.2 The stated goal of the Act is to “encour- conversion of property from one use to another. Thus, tax- age private landowners to be stewards of lands which are ation can be an important tool for conserving Delaware’s important habitat or designated natural areas or which wetlands, forests, stream corridors, and other critical sites. contain significant resources, …to complement existing Some tax programs seek to provide incentives to landown- land conservation acquisition programs, …[and] pro- ers to place their land, or portions of their land, in a con- vide private landowners with incentives to encourage the servation easement. Conservation easements are the most protection of private lands for open space, natural common and affordable acquisition tool to protect sensi- resources, biodiversity conservation, outdoor recreation tive lands. A conservation easement is a legal conveyance of and historic preservation programs.”3 The Act provides a a property interest between a landowner and a qualified state income tax credit for 40 percent of fair market land trust or government agency. The easement can be per- value of permanent gifts of land or interests in land to petual or for a specific term. The landowner retains title to public agencies or qualified private non-profit charitable the property, including the right to carry on any uses not organizations, “for the purpose of open space, natural covered by the easement, while the holder of the easement resource, and/or biodiversity conservation or historic has the power to enforce the terms of the easement to pre- preservation.”4 In order to be eligible for the tax credit, vent any incompatible uses. lands must meet the requirements of the Delaware Land Protection Act (See Ch. 5: Enactment of the Land Current Use Appraisals for Lands Subject to Protection Act), consist of habitat for rare biological and Conservation Easements natural features (based on information provided by the The owner of land subject to a conservation easement may Delaware Natural Heritage Program, or DNHP), or request a reappraisal of the land in light of its diminished protect Delaware’s important historic resources. The value, and may thereby lower the amount of property, maximum tax credit that may be declared by a taxpayer estate and gift taxes assessed.1 In contrast to farm and forest in a year is $50,000.5 The total program cost is capped land, there is no automatic mechanism in place by which at $1 million per year over ten years.6

chapter 7 123 Parkland Tax Incentives land must be at least 10 acres and carry sufficient forest Parkland owned by a non-profit organization is exempt from growth as to give reasonable assurance that a stand of mer- taxation under state law.7 This exemption is conditional on chantable timber will develop. Nurseries, orchards or the property’s being used for recreational purposes and its forests planted for ornamental purposes are not eligible for being open, without charge, to the public or the members of enrollment in the program.15 The law was designed to the organization or the local community.8 Conservation provide an incentive for private forest owners to manage organizations that can meet these requirements can take their lands as commercial forest plantations for the produc- advantage of this law to make effective use of their resources tion of wood products.16 Commercial forest landowners in conserving lands valuable for biodiversity. who participate in the program must have a forest management plan that has been approved by the State Forester.17 Agriculture Tax Incentives Approximately 35,000 acres of privately owned forestland Under the Farmland Assessment Act,9 owners of land are enrolled in the program.18 actively devoted to agriculture, horticulture, or forestry Insofar as management for commercial wood product may apply to have their land valued for property tax pur- production is compatible with the protection of native poses according to the land’s value for that use, rather species, this law can be used to encourage behavior that than according to the land’s most profitable use.10 If the helps conserve biodiversity. However, the law was not land changes to a non-agricultural/forestry use, the owner intended to provide incentives to forest landowners for is liable for roll-back taxes on the full value of the land protecting or restoring biodiversity on their property and for the lesser of either the years since 1990 or the 10 pre- the forest management plans it requires do not generally vious years. include provisions for protecting biodiversity.19 Because the Properties eligible for the tax break must be over 10 majority of the participating landowners seek to maximize acres and must produce sales of agricultural, horticultur- the economic return of their woodlots, the forest manage- al, or forestry products and/or agricultural program pay- ment plans in southern Delaware tend to favor short-rota- ments equal to at least $1,000 per year.11 While tracts of tions and replanting with loblolly pine.20 In northern land managed partially for conservation could meet the Delaware, many parcels enrolled in the program are man- $1,000 income requirement, the requirement that aged for hardwood species.21 Approximately 25-30 percent income must be derived from agricultural, horticultural, of landowners enrolled in the program convert their wood- or forestry products sales would exclude lands managed lots from mixed stands of hardwoods and pines to loblolly solely for conservation. Changing the law to remove this pine. As a result, although reforestation is accomplished requirement would thus be consistent with two of the through the program, forests with a diversity of species are law’s three stated purposes: conserving the state’s natural being replanted with loblolly pine monocultures, particu- resources and providing for the welfare and happiness of larly in southern Delaware.22 the inhabitants of the state.12 The Commercial Forest Plantation Law also states that Expanding eligibility for the farmland assessment pro- landowners enrolled in the program “may fell and use any gram would have far-reaching consequences because of the dead or injured timber.”23 Elimination of standing dead connection between this program and the state’s agricultur- trees, or snags, does not contribute to biodiversity conser- al preservation and purchase of development rights pro- vation. Dead tree litter and standing dead snags provide grams (See Ch. 5: Agricultural Land Protection). Under valuable habitat for a variety of birds, insects, woodland the state’s Agricultural Lands Preservation Act, farmland mammals, and amphibians. eligible under the Farmland Assessment Act (that meets Delaware’s Commercial Forest Plantation Act could pro- additional requirements) can be enrolled in an Agricultural vide increased biodiversity benefits. For example, the DDA Preservation District. Property enrolled in a district is Forest Service could amend the law to allow forest owners exempt from property, school, and realty transfer taxes.13 to enroll property managed for wildlife and species diversity in the program (while grandfathering in those landown- Forest Management Tax Incentives: Commercial Forest ers already enrolled). Alternatively, the DDA Forest Service Plantations could incorporate conservation measures in the forest man- Under Delaware’s Commercial Forest Plantation Act, agement plans, such as provisions to encourage landowners administered by the Delaware Department of Agriculture to utilize selective harvesting techniques, maintain old (DDA) Forest Service, land defined as a commercial forest growth and large trees, retain snags and woody debris, plant plantation is entitled to a 30-year exemption from county a diversity of species, increase the rotation period, and man- property taxes.14 In order to qualify for this exemption, age to promote an uneven-aged forest and vertical diversity.

124 protecting delaware’s natural heritage However, since the Commercial Forest Plantation Act approved practices. Landowners may also be reimbursed was intended to promote the production of commercial for up to 25 percent of the cost of restoring wetlands.32 wood products, Delaware might alternatively consider A variety of conservation uses are recognized are recog- establishing a new program to provide property tax exemp- nized under this program, including many that are benefi- tions for private forest lands managed specifically for biodi- cial to wildlife, such as planting agricultural fields with versity. Such a program could be designed to encourage grassland species and trees. Results from a multi-year study forest landowners to conserve, rather than harvest, the of CRP in the mid-west show that grassland birds have valuable tree species on their property.24 Given that 41 per- more nests and greater nesting success in fields enrolled in cent of Delaware’s rare or extirpated species that are forest CRP than in comparable row-crop fields.33 These results dependent are considered imperiled,25 and given the water suggest a substantial benefit to biological diversity from and air quality benefits provided by forestland,26 providing this program. incentives for private woodlot owners to maximize their property’s contribution to biodiversity would be valuable. Conservation Reserve Enhancement Program Established by the 1996 Farm Bill, the Conservation Redevelopment Tax Incentives Reserve Enhancement Program (CREP) allows states to Tax incentives can help direct development to existing leverage CRP funds by establishing a CREP in their communities and away from undeveloped lands that may state. By providing a state contribution to the program, serve important functions for biological diversity. One such states can use CREP to target a specific geographic program is the city of Dover’s Downtown Redevelopment area, such as a watershed or river, or specific resource law.27 New construction or renovation in the city’s down- types, such as wetlands or streams that provide habitat town area is encouraged by setting a maximum of $1,000 for endangered species. CREPs can give states the flexi- for building permit fees and waiving property taxes on bility to offer landowners longer easement terms. To improvements for ten years. In addition, multistory mixed- date, eight states — Delaware, Illinois, Maryland, use projects qualify for an impact fee waiver.28 This local Minnesota, New York, North Carolina, Oregon, and ordinance has so far directed $16 million worth of develop- Washington — have applied for and have had CREP ment projects into Dover’s downtown area;29 similar laws in programs approved. Maryland and Minnesota have jurisdictions across the state could help channel develop- used CREP to offer landowners permanent easements. ment into already-developed areas and away from undevel- Illinois and Minnesota have emphasized the use of oped open space. native species in projects.34 In August 1998, Delaware submitted to USDA a request to establish a CREP. On June 2, 1999, USDA AGRICULTURAL AND WETLAND COST-SHARE announced approval of the program. The Delaware OPPORTUNITIES CREP was designed to reduce nutrient and sediment loading to impaired streams, restore designated uses of Under the federal 1996 Farm Bill,30 the U.S. Department surface waters, improve water quality necessary to sup- of Agriculture (USDA) developed several conservation pro- port wildlife, increase upland wildlife habitat, and create grams. The programs are defined nationally, but carried out wildlife corridors. Delaware’s program will focus on pro- by state offices of USDA’s Natural Resources Conservation tecting up to 6,000 acres (1,200 miles) adjoining Service (NRCS) and Farm Service Agency. impaired streams or drainage ditches in the watersheds of the Chesapeake Bay, Delaware Bay, and the Inland Conservation Reserve Program Bays basin area. The program will provide landowners The Conservation Reserve Program (CRP) is administered with cost-share funds, incentive funds, or rental pay- by the Farm Services Agency. Under CRP, agricultural ments for taking cropland or marginal pastureland out landowners can apply to enroll their highly erodible and of production and enrolling it in a 10 to 15 year con- environmentally sensitive lands in the program. In return, tract.35 The Delaware CREP will pay farmers to plant landowners enter into 10 to 15-year contracts with USDA, hardwood trees, grassed filter strips, and riparian forest under which they agree to convert highly erodible cropland buffers, provide wildlife habitat, and restore wetlands.36 or other environmentally sensitive acreage to vegetative The 1999 Bond Bill (See Ch. 5: State Funding For cover, native grasses, wildlife plantings, trees, filterstrips, or Acquisition) appropriated up to $1.6 million of the $20 riparian buffers.31 Landowners participating in CRP can million appropriated for farmland preservation in fiscal receive up to 50 percent of the costs of establishing the years 1999-2001 to meet the state match for the CREP.37

chapter 7 125 Wetlands Reserve Program Status of Delaware’s Participation in Farm Bill Programs The Wetland Reserve Program (WRP), administered by In Delaware, currently about 2,000 acres of farmland have NRCS, provides landowners with financial incentives to been enrolled in CRP. EQIP sign-up is currently under enhance wetlands in exchange for retiring marginal agricul- way, and NRCS is hoping to spend $600,000-900,000 on tural land. Landowners who choose to participate in WRP the program per year. WRP participation in Delaware is may sell a conservation easement (either a permanent ease- virtually non-existent. Currently, there are only three pro- ment or a 30-year easement) or enter into a cost-share jects totaling 54 acres. Currently, EQIP is the only Farm restoration agreement with USDA to restore and protect Bill program in Delaware that has reached maximum wetlands. Under the program, eligible landowners volun- enrollment and is exceeding demand.43 Nonetheless, NRCS tarily limit future use of the land, yet retain private owner- and Delaware’s natural resource agencies should enhance ship. Indeed, landowners often lease their WRP land for their efforts to promote these voluntary conservation pro- hunting, fishing, or other undeveloped recreational activi- grams in the state. ties, and under specific agreements may continue to cut In addition, NRCS has found that Delaware landowners hay, graze livestock, or harvest wood products if the activi- have been slow to warm to these conservation programs. ties are fully consistent with the protection and enhance- Although CRP has been available since 1986, participation ment of the wetland.38 has been slow to catch on. One possible reason for low par- Landowners enrolled in WRP must restore their land for ticipation may be that a large number of Delaware farms wildlife benefits. Lands eligible for enrollment include are operated by non-owners or individuals that rent the farmed wetlands; prior converted cropland; farmed wetland land. For example, in the area surrounding the inland bays, pasture; farmland that has become a wetland as a result of it is estimated that 80-90 percent of the farmland is tenant flooding; riparian areas that link protected wetlands; lands farmed; about 200-300 landowners lease their land to adjacent to protected wetlands that contribute significantly about 20 farmers.44 This leads to a high rate of turnover to wetland functions and values; and previously restored among those farming the land. As a result, unless a farmer wetlands under CRP.39 WRP provides landowners with 75 will have control over a property for 10 years or more, s/he to 100 percent cost-sharing for permanent easements, 50 cannot participate in CRP.45 to 75 percent for 30-year easements, and 50 to 75 percent for restoration cost-share agreements. Cost-sharing helps landowners cover restoration costs.40 FORESTRY INCENTIVE, COST-SHARE, AND OUT- REACH PROGRAMS Environmental Quality Incentives Program The Environmental Quality Incentives Program (EQIP), The DDA Forest Service administers several cost-share pro- administered by NRCS, provides technical, financial, and grams for landowners. educational assistance in designated priority areas. Nationally, half of these priority areas are targeted to live- Forestry Stewardship Program stock-related natural resource concerns and the remainder Through the Forestry Stewardship Program (FSP), funded to other significant conservation priorities. In each state, by the USDA Forest Service, the DDA Forest Service pro- priority areas are defined (in cooperation with a state-level vides technical assistance to landowners voluntarily seeking process that involves a wide variety of federal and state to enhance wildlife habitat, establish windbreaks, enhance partners, including local conservation districts) to address recreational opportunities, protect soil and water quality, specific watersheds or regions, or to address specific envi- increase wood production, and fulfill other multiple use ronmental issues, such as soil erosion, water quality, objectives.46 wildlife habitat, and wetlands.41 Under the program, landowners enter into 5 to 10- Stewardship Incentives Program year contracts with USDA and in return receive incentive In conjunction with the technical advice provided through payments up to 75 percent cost-sharing for conservation the FSP, the Stewardship Incentives Program, also funded practices, such as the installation of grassed waterways, by the USDA Forest Service, provides money to landown- filter strips, or manure management facilities. The pro- ers to cover costs incurred actually implementing improve- gram will fund land management practices such as nutri- ments to their land. This money is available on a cost-share ent management, manure management, integrated pest basis up to $10,000 per landowner, and requires that the management, irrigation water management, and wildlife landowner have an approved forest management plan.47 habitat management.42 The availability of this amount of money tends not to be a

126 protecting delaware’s natural heritage determining factor for landowners contemplating improve- ducted based on a professional forest management plan. ments that will increase timber production, as timber pro- New provisions in the state’s Forestry Practices Erosion duction is itself a revenue generating activity. However, for and Sediment law give the DDA Forest Service the modifications designed to enhance habitat or other non- authority to establish a notification system whereby revenue generating activities, such funds may be a signifi- landowners may be required to submit notification to the cant determinant.48 agency prior to commencing planned silvicultural activi- Unfortunately, this program received no Congressional ties (See Ch. 4: Forestry Sedimentation and Erosion appropriation in fiscal year 1999.49 While the program Control Program).53 This new provision will provide the remains authorized and may receive new funding in the agency with an opportunity to encourage landowners to future, a long term curtailment of this program would seri- develop forest management plans that maximize econom- ously limit wildlife enhancement projects on Delaware’s ic return and promote sustainable forestry.54 private forest lands. At present, the DDA Forest Service is Delaware may want to consider additional measures to continuing the program with remaining funds from fiscal promote sustainable forestry practices within the state’s pri- year 1998.50 vate timber stands. The Commercial Forest Plantation Law, Delaware Seed Tree Law, and Forestry Practices Erosion Forestry Incentives Program and Sediment (E&S) law (See Ch. 4: Forestry Laws and This program, funded through USDA’s NRCS, provides Regulations) could be enhanced to provide greater biodi- cost-share funds (up to 65 percent of costs) to landowners versity benefits on private lands throughout the state. For for tree planting, timber stand improvement, and other example, although most timber harvests in the state meet activities designed to boost timber yields on non-industrial the requirements of the Seed Tree and E&S laws, these laws private forest lands.51 do not address the management of a variety of important As with the agricultural incentive programs discussed species, such as red and white oak.55 The DDA Forest above, Delaware’s natural resource agencies should coordi- Service also could build on the Commercial Forest nate efforts to enhance landowner participation in volun- Plantation Law to create greater incentives for landowners tary conservation programs. to develop management plans and interact with the agency prior to selling their timber rights. Outreach to Private Landowners Voluntary programs can also improve forestry practices Through all of its programs, the DDA Forest Service seeks within the state. For example, New York has instituted a to serve as a resource to private landowners, providing “Cooperating Timber Harvest Program.” In this voluntary technical advice in sound forestry management and assist- program, loggers agree to conduct their business in accor- ing in the preparation of forest management plans. dance with BMPs and other standards. Participating log- However, many landowners are unfamiliar with the bene- gers are subject to state inspection and are included in a fits and opportunities available to help them manage their state-maintained list of recommended loggers. This list is forest lands, such as technical assistance from the DDA provided to landowners who contact the state seeking Forest Service or other professional foresters. Many information about logging firms.56 landowners also are not aware of the full economic and Currently, Delaware is working in cooperation with a wildlife value of their woodlots, the proper forest manage- similar program in Maryland. Under the “Master Logger” ment procedures to ensure sustainable forest management, program, loggers are provided with educational opportuni- or the possible options to sell their timber. This lack of ties to increase their knowledge regarding forest manage- awareness is often due to the fact that many landowners ment, safety, and business operations. Once loggers partici- will only sell timber from their property once or twice dur- pate in three training modules and enroll in continuing ing their lifetime, due to long intervals between timber har- educational programs, they achieve “Master Logger” status. vests (often 25 to 40 years) and the decreasing size of forest While there is no direct financial incentive linked to the ownership (i.e., most landowners own less than 40 acres.) designation, it is a source of pride within the industry. Thus, some timber harvests do not follow professional for- Moreover, some mills that seek to demonstrate that their est management advice, which can result in degraded forest wood was harvested in accordance with the American resources.52 Forest and Paper Association’s Sustainable Forest Initiative The DDA Forest Service continues to explore various prefer wood from Master Loggers.57 While field verification methods to increase landowner awareness of the need for is a key to the success of this type of program, in Delaware and benefits of professional forest management. The such a system could help alleviate the problem of out-of- agency’s ultimate goal is to have all timber harvests con- state loggers exploiting Delaware landowners.

chapter 7 127 Another possible approach is the creation of a brokerage for timber rights, administered either by the DDA Forest Service or a private enti- ty such as a state land trust. A timber brokerage program could be specifically designed for smaller landowners selling their timber rights for the first time and could be either voluntary or mandatory. Landowners would sell their timber rights to a brokerage which would then offer those rights for bid to loggers. Only loggers of good reputation, who agree to perform the cut in accordance with DDA Forest Service requirements, would be granted the harvest rights. Such a system would not only screen out undesirable logging operations, B. FAHEY, DNHP. Northern leopard frog, Great Cypress Swamp. but also would level the negotiating positions between landowners and can enroll because of funding limitations.58 loggers, thus assuring landowners a fair price–omething Although the program was created to provide nesting they do not always receive at present when approached and brood rearing areas for small game, primarily Northern directly by loggers. This system could be self-supporting, bobwhite quail, other early successional and ground nest- collecting a commission on transactions completed. ing species may benefit from the program. These include sparrows, meadowlarks, and wild turkey. The program has also indirectly helped increase interest in CRP and other WILDLIFE INCENTIVE PROGRAMS Farm Bill programs. When working with landowners to develop a wildlife management plan, division staff can rec- Upland Habitat Conservation ommend additional cost-share programs such as CRP. The The Division of Fish and Wildlife undertakes a variety of division encourages landowners to plant warm season upland habitat management projects that are loosely con- grasses, and if instead landowners choose to allow their sidered part of its small game program. One activity is the property to revert to grassland naturally, the division pro- Wildlife Habitat Incentive Program for private landown- vides landowners with technical assistance on how to stim- ers. Under this program the division pays landowners to ulate native species and remove nuisance species (especially retire agricultural land and pays landowners with a mini- those covered under the state’s Noxious Weed Act).59 mum of 20 acres $70 per acre to retire up to five acres of their land. Landowners must either establish warm season Wildlife Habitat Incentives Program grasses or allow the property to revert to grassland natural- Under the Wildlife Habitat Incentives Program (WHIP), ly. In return, landowners enter into a five-year contract NRCS provides landowners with up to 75 percent cost- with the division. share funds to develop habitat for upland and wetland Funded entirely through general appropriations, for wildlife, endangered species, fisheries, and other wildlife. the past five years the division has received $28,000 Landowners work with NRCS to develop a 5 to 10-year annually to fund the program. The program, now in its wildlife habitat development plan in consultation with the fifth year, has led to the restoration of approximately 350 local conservation district. The plan describes the landown- acres of early successional habitat on private lands. In er’s goals for improving wildlife habitat, includes a list of 1999, the division will be faced with a decision about practices and a schedule for installing them, and details the whether to use appropriated funds to re-enroll properties steps necessary to maintain the habitat for the life of the already in the program, or enter into new contracts with agreement. The plan may or may not be part of a larger additional landowners. Although there has been interest conservation plan that addresses other resource needs, such in the program, the division has more applicants than it as water quality and soil erosion.60

128 protecting delaware’s natural heritage Phragmites Control Common Birds Common,’ but many of the efforts are also Since 1986, the Division of Fish and Wildlife has adminis- aimed at maintaining healthy populations of less common tered a cost-share program for private landowners to con- species. Through these partnerships, Partners in Flight has trol phragmites. The program provides landowners with been able to raise awareness of the value of migratory birds technical assistance and 50 percent cost-share on helicopter and the need for their protection.66 application of herbicide.61 Coordinated by the U.S. Fish and Wildlife Service’s From 1986-98, the Division treated over 29,500 acres Delaware Bay Estuary Project, the Delaware Partners in of phragmites on state wildlife areas and provided cost- Flight State Working Group, which is concerned with the share assistance to private landowners (through WHIP conservation of migratory, non-game land-birds, is current- and other programs) to treat over 19,000 acres.62 Although ly developing guidelines for managing forests to conserve this program has had significant ecological success, the forest-dependent subset of these species. Input and landowners have been reluctant to take advantage of the review of the guidelines will be sought from the DDA cost-share funds. The Division of Fish and Wildlife should Forest Service and the Division of Fish and Wildlife in an seek to make the program more attractive to landowners effort to avoid conflicts in management philosophy, but and work more aggressively to distribute information these guidelines will focus on the conservation of forest- about the benefits of this voluntary restoration program. dependent birds, other wildlife, and native plant communi- Prior to receiving Public Service Electric and Gas ties (e.g., maintenance of old growth and large trees, reten- Company settlement funds for phragmites control, the tion of snags and woody debris, and management to pro- division relied upon general funds remaining from the pri- mote uneven-aged forests with a mosaic of old growth and vate landowner cost-share program, proceeds from the sale younger growth forest).67 of state Duck Stamps, and special grants from non-profit organizations and the federal government to treat state wildlife areas.63 CONCLUSION

Partners for Fish and Wildlife Delaware offers many tax and voluntary incentive pro- The U.S. Fish and Wildlife Service provides funding and grams that encourage open space, farmland, wildlife habi- technical assistance to private landowners for the restora- tat, and forestland conservation on private lands. Several of tion of native wildlife habitat through its Partners for Fish these programs also provide private landowners with incen- and Wildlife Program. Partners is a cooperative habitat tives and cost-share assistance to implement conservation restoration program involving a diversity of federal, state, practices on their properties. However, many of these pro- and private partners. Examples of habitat restoration programs — including the federally funded but state-managed jects eligible for funding under this program include wet- Farm Bill programs, state and federal private forestry pro- land restoration, riparian forest restoration, streambank grams, and phragmites control program — are underuti- stabilization, in-stream habitat restoration, and reforesta- lized by landowners. The agencies and organizations tion.64 In Delaware, the U.S. Fish and Wildlife Service has administering these programs should devote additional worked in partnership with NRCS, DNREC, Ducks resources to private landowner outreach. There is ample Unlimited, Delaware Wild Lands, The Nature opportunity for these agencies to work with non-profit Conservancy, and others to restore fish and wildlife habi- conservation, forestry, and farm organizations to promote tat on over 1,000 acres. The projects completed in and advertise their programs. Delaware include tidal marsh restoration, tidal marsh In addition, there are several areas where Delaware’s tax- enhancement (e.g., plugging mosquito ditches), freshwa- ation programs can be better tailored to promote open ter wetland restoration, stream buffer restoration, and space and critical habitat conservation. For example, the reforestation.65 state should adopt a program that provides a tax credit to private landowners who donate land or conservation ease- Partners In Flight ments to the state or non-profit organizations. The agricul- Partners in Flight is a consortium of hundreds of private tural valuation law should be expanded to include wet- organizations, natural resource agencies, private businesses, lands, forestland, and other parcels managed for conserva- landowners, foundations, universities, and individual citi- tion purposes. Finally, the state’s Agricultural Preservation zens dedicated to maintaining healthy bird populations in Program should provide the same incentives to land subject the United States and throughout the Western to conservation easements as those in Agricultural Hemisphere. The program is dedicated to ‘Keeping Preservation Districts.

chapter 7 129 RECOMMENDATIONS

• Advertise and promote Farm Bill programs to increase • Adopt redevelopment tax incentives across the state to participation in the programs that enhance the wildlife, encourage in-fill and redevelopment in existing devel- wetland, forest and water quality benefits provided by oped areas. agricultural lands. • The Delaware Department of Agriculture Forest Service • The Division of Fish and Wildlife should advertise should adopt a Master Logger program to encourage and promote the phragmites cost-share assistance pro- landowners to work with loggers who seek to harvest gram to increase participation. Encourage landowners forests sustainably. to visit model restoration sites to demonstrate the wildlife and environmental benefits of the program. • The Natural Resources Conservation Service, Depart- ment of Natural Resources and Environmental Control, • Amend Delaware’s Farmland Assessment Act to allow Delaware Department of Agriculture, and other state lands managed for conservation purposes to be eligible and local natural resource agencies should coordinate for property assessment at current use, as are lands that efforts to promote voluntary private land conservation sell agricultural, horticultural, or forestry products. programs that benefit biodiversity.

1 DNREC Div. of Parks and Recreation. The Landowner’s Options: A Guide to Voluntary 30 16 U.S.C. § 3801-3862. Land Protection in Delaware. (rev. Oct. 1992), pp. 6-7. 31 U.S. Department of Agriculture. January 1997. U.S. Department of Agriculture's 2 H.B. 413, passed August 3, 1999, signed by Governor Thomas Carper on August 5, Natural Resources Programs: Financial, Technical and Educational Assistance for 1999 codified at Del. Code Ann. tit. 30, § 1801 et seq. Landowners. Fact sheet. U.S. Department of Agriculture: Washington, DC. 3 H.B. 413, section 1; Del. Code Ann. tit. 30, §§ 1802(d)-(f). 32 U.S. Department of Agriculture. February 1997. Conservation Reserve Program. Fact 4 H.B. 413, section 1; Del. Code Ann. tit. 30, § 1804. sheet. U.S. Department of Agriculture: Washington, DC. 33 5 H.B. 413, section 1; Del. Code Ann. tit. 30, § 1804(b). Robel, R.J. April 15, 1994. Preliminary Report: Grassland Bird Production in Conservation 6 Reserve Program Fields. NC-203. Kansas State University: Manhattan, KS. H.B. 413, section 1; Del. Code Ann. tit. 30, § 1806(d). 34 7 http://www.fsa.usda.gov/dafp/cepd/crep/fact_sheet.htm Del. Code Ann. tit. 9, §§ 8110(a)(1), 8110(b). 35 8 USDA. Backgrounder: Delaware Conservation Reserve Enhancement Program. News See id. § 8110(a)(2). Release. USDA: Washington, DC. 9 See id. § 8328 ff. 36 USDA. June 2, 1999. Glickman Announces $10 Million Program to Clean up Delaware 10 See id. § 8329. Waters. News Release. USDA: Washington, DC. 11 See id. §§ 8333-8334. 37 H.B. 750, § 15(b)(2). 139th General Assembly Sess. 12 See id. § 8328(1). 38 http://www.nhq.nrcs.usda.gov/OPA/FB96OPA/WRPfact.html 13 Del. Code Ann. tit. 3, § 911. 39 http://www.nhq.nrcs.usda.gov/OPA/FB96OPA/WRPfact.html 14 Del. Code Ann. tit. 3, § 2601(b). 40 http://www.nhq.nrcs.usda.gov/OPA/FB96OPA/Sum96FB.html 15 See id. § 2601. 41 http://www.nhq.nrcs.usda.gov/OPA/FB96OPA/eqipfact.html 16 Short, E. Austin III. DDA Forest Service. Personal correspondence. May 27, 1999. 42 http://www.nhq.nrcs.usda.gov/OPA/FB96OPA/eqipfact.html 17 Del. Code Ann. tit. 3, §. 2603. 43 Kepfer, Sally. Natural Resources Conservation Service. Personal communication. 18 Schwalm, John. DDA Forest Service. Personal communication. July 26, 1999. 44 Goggin, Nancy. DNREC. Personal communication. April 21, 1999. 19 Short, E. Austin III. DDA Forest Service. Personal correspondence. May 27, 1999. 45 Kepfer, Sally. Natural Resources Conservation Service. Personal communication. 20 Schwalm, John. DDA Forest Service. Personal communication. July 26, 1999. 46 Short, E. Austin III. DDA Forest Service. Personal communication. January 5, 1999; 21 Short, E. Austin III. DDA Forest Service. Personal correspondence. August 17, 1999. Short, E. Austin III. DDA Forest Service. Personal correspondence. May 27, 1999. 47 22 Schwalm, John. DDA Forest Service. Personal communication. July 26, 1999. Forest Service Annual Report. p. 13. 48 23 Del. Code Ann. tit. 3, § 2606. Short, E. Austin III. DDA Forest Service. Personal communication. January 14, 1999. 49 24 Short, E. Austin III. DDA Forest Service. Personal correspondence. May 27, 1999; Short, E. Austin III. DDA Forest Service. Personal communication. January 14, 1999. U.S. Fish and Wildlife Service, Delaware Bay Estuary Project. Personal correspondence. 50 Short, E. Austin III. DDA Forest Service. Personal communication. January 14, 1999. June 1, 1999. 51 Delaware Department of Agriculture. 1997. Forest Health in Delaware. DDA: Dover, 25 Broaddus, Lynn. Division of Fish and Wildlife, DNREC. Personal correspondence. DE. p. 25; http://www.nhq.nrcs.usda.gov/OPA/FB96OPA/FIPfact.html. 26 U.S. Fish and Wildlife Service, Delaware Bay Estuary Project. Personal correspon- 52 Short, E. Austin III. DDA Forest Service. Personal correspondence. May 27, 1999. dence. June 1, 1999. 53 Del. Code Ann. tit. 3, §§ 1080(7). 27 Dover Code App. C, arts. I-VII. 54 Short, E. Austin III. DDA Forest Service. Personal correspondence. May 27, 1999. 28 Dover Code App. C, art. IV. 55 Short, E. Austin III. DDA Forest Service. Personal correspondence. May 27, 1999. 29 DePrima, Anthony. Dover Dept. of Planning. Personal communication. 56 Crawford, Sloane. Division of Lands and Forests, New York Department of

130 protecting delaware’s natural heritage Environmental Conservation. Personal communication. February 11, 1999. 57 Purdue, Jack. Maryland Forest Service. Personal communication. July 27, 1999. 58 Moore, Eugene G. Division of Fish and Wildlife, DNREC. Personal correspondence. 59 Moore, Eugene G. Division of Fish and Wildlife, DNREC. Personal communication. 60 http://www.nhq.nrcs.usda.gov/OPA/FB96OPA/WhipFact.html 61 Del. Code Ann. tit. 7, § 3803; Jones, William. DNREC, Division of Fish and Wildlife. Personal communication. 62 Jones, William. DNREC, Division of Fish and Wildlife. Personal communication. Note: Actual ground acreage is less since some of these applications represent repeat treatments. 63 Jones, William. DNREC, Division of Fish and Wildlife. Personal communication. 64 McCorkle, Richard. U.S. Fish and Wildlife Service. Personal correspondence. June 8, 1999. 65 McCorkle, Richard. U.S. Fish and Wildlife Service. Personal correspondence. July 21, 1999. 66 http:// www.fws.gov 67 U.S. Fish and Wildlife Service, Delaware Bay Estuary Project. Personal correspondence. June 1, 1999.

chapter 7 131 132 protecting delaware’s natural heritage Section III: Statewide Biodiversity Conservation

133 134 protecting delaware’s natural heritage Section III: Statewide Biodiversity Conservation

133 134 protecting delaware’s natural heritage Chapter 8 Toward a Comprehensive Strategy For Delaware

WHY A COMPREHENSIVE STATEWIDE STRATEGY? Third, people and organizations primarily identify themselves geographically in terms of state loyalty. his report has described existing opportunities in A statewide approach will also require careful coordination Delaware’s laws, policies, programs, and practices with neighboring states to avoid spillover effects or duplica- Tthat can be used to conserve and restore the state’s tive initiatives. Coordination will be needed to conserve biological diversity. Although many public and private shared geographic resources–such as the Delaware River, conservation efforts are underway, many of the available Delaware Bay, Delmarva Peninsula, and Chesapeake Bay. policy and legal tools are being used to make progress only Delaware is ready to take on the challenge of a compre- in a piecemeal fashion. To meet the goals of comprehen- hensive biodiversity strategy. Delaware citizens have sive protection, restoration, and active local participation, demonstrated enthusiasm for conservation of the state’s Delaware needs a strategy that will address short-comings biological diversity and appreciation for the unique charac- in existing tools, improve coordination between state ter of the state’s resources. This enthusiasm is reflected in agencies and other groups, integrate disparate on-going numerous settings where Delaware citizens, state agencies, projects, and support future public and private initiatives. non-profit organizations, and private interests have worked A comprehensive statewide strategy would develop a to protect the state’s unique resources. plan around which public agencies and private interests Delaware also has the technical and practical capacity could rally to guide biodiversity conservation and restora- needed to prepare a successful strategy. Its state, federal, tion in Delaware. It would build on current successes and and local agencies, conservation organizations, and univer- identify urgent needs. More importantly, it would weave a sities have a wealth of technical expertise, a dedication to web connecting projects and programs, legal tools, biolog- protecting the state's environment, and the desire to see ical inventory and assessment tools, and people. A com- Delaware’s biological diversity conserved and restored in a prehensive strategy is the best vehicle for local groups, comprehensive manner. individuals, and government to unite their efforts. It would place seemingly small, incremental improvements in biological diversity conservation within a broad vision STRATEGIC EFFORTS IN OTHER STATES for Delaware. The most practical scale for a comprehensive biological Delaware is facing the challenge of conserving biological diversity strategy is at the state level. Although state diversity at a time when many other states are undertaking boundaries are drawn without regard to ecological bound- initiatives to achieve similar goals.2 Different approaches aries, using statewide programs has three advantages for have been tested. Some state natural resource agencies, protecting biological diversity.1 First, most biological data such as those in Illinois, Minnesota, and Wisconsin, have have been collected and organized by state-level institu- incorporated biological diversity conservation goals into tions such as universities and state agencies. Second, existing or reorganized management and regulatory pro- applicable laws tend to be uniform on a statewide scale. grams.3 Ohio has prepared a plan for incorporating biodi- For example, planning and zoning laws are structured to versity into the state Department of Natural Resources’ meet Delaware’s enabling acts, and many national pollu- operating and management directive.4 In Kentucky, tion control laws are implemented through state programs. Oklahoma, and Pennsylvania, state-led multi-agency coali-

chapter 8 135 tions that include non- governmental organizations and academia have collaborated to develop statewide strategies for conservation of biological diversity.5 In several other states, including Indiana and Oregon, non-profit conservation organizations have organized statewide collaborative projects that involve government agencies, acade- micians, citizen groups, and the private sector in defining and achieving a statewide set of goals DNREC. Awned meadowbeauty. for biodiversity conservation.6 A few state legisla- tures, including those in

California, New York, RON VICKERS, and Michigan, have even mandated planning for biological diversity.7 In other There are many opportunities for Delaware agencies, states, including Maine and Massachusetts, coalitions of organizations, local governments, corporations, and citi- state and federal agencies and non-profit organizations zens to develop a statewide strategy for protecting biodi- have prepared and published assessments of their state’s versity that will address these effects. Recommendations biological resources.8 covered in preceding chapters offer suggestions for how Some strategic work has also coalesced around multi- existing laws, policies, and practices can be used or altered state resources. Multi-state biological diversity strategies to better protect Delaware’s biological diversity. Several of offer useful lessons in the application of science to manage- these key recommendations are highlighted below. Many ment, and in the effective coordination of public and pri- of these recommendations also suggest new tools that vate resources.9 Delaware should consider to ensure that its remaining Delaware should not lag behind these states in its com- biodiversity is protected and restored. In the past, mitment to biological diversity. Indeed, it can readily Delaware’s most successful biodiversity conservation become a regional or national leader if action is taken soon. laws–the Natural Areas Preservation System law and Land Protection Act—were passed with broad-based public support. A coordinated strategy can help interested par- DEFINING THE FOCUS FOR A DELAWARE STRATEGY ties in the state determine which tools are appropriate for Delaware’s future. If biological diversity is ever to be meaningfully conserved Delaware agencies and organizations can coordinate and restored, its protection must be integrated into the fab- efforts to identify the policy changes that will help most ric of state laws, policies, and institutions.10 Scientists significantly. Alternatively, organizations can look to the attribute the loss of biodiversity in the United States to suggestions made in this report to guide their policy agen- habitat loss and fragmentation, habitat degradation, and das. In either case, efforts to protect and restore biodiversi- exotic species invasions. As discussed earlier (See Ch. 1), ty should seek appropriate policy and legislative changes. these same forces are at work in Delaware, leading to the For without this policy component, vital habitat will con- loss and degradation of the state’s remaining biological her- tinue to be lost, fragmented, and degraded. itage. Most of the land management practices and individ- Delaware also should take this opportunity to enhance ual decisions that contribute to these threats are profoundly biodiversity research, inventory, and assessment tools. affected by state laws, regulations, and policies. Indeed, through a variety of Delaware state initiatives, pri-

136 protecting delaware’s natural heritage vate efforts, and academic programs, the state has been state-owned lands. But, even if Delaware succeeds in man- long at work assessing its biological needs. However, it is aging all of its state and federal lands with an eye toward essential that biological inventory and assessment be pro- biological diversity, the activities on only a fraction of the vided to decision-makers in an appropriate format. These land base will be addressed. In addition, not all of the lands efforts should be continued and enhanced. under public ownership are managed with biodiversity Delaware should take a bold step and begin to deal com- conservation and restoration as a priority.11 Private lands are prehensively with the scientific, legal, policy, and institu- a critical part of the puzzle. However, different legal tools tional tools that can be utilized to diminish habitat loss, and approaches are needed for these lands. fragmentation, and degradation, and the proliferation of invasive exotic species. While there is sufficient authority Ensure broad-based involvement. Early on in the process, under many existing Delaware laws to protect and restore include a significant number of appropriate interest groups. biological diversity, a legislative mandate, resolution, or For biodiversity strategies to significantly alter detrimental Governor’s executive order to conduct strategic planning practices on private as well as public lands, a broad coali- and to pursue these approaches would be quite helpful. tion of Delaware agencies and organizations whose deci- Creation of an advisory council would help elevate biologi- sions affect biological diversity must be brought to the cal diversity conservation and restoration in Delaware to table. If not included in development of any plan from the the level of importance that it is already beginning to com- start, these groups may present formidable opposition to a mand in other states. plan once it is developed. However, legislation, while desirable, is not a prerequisite to action. The Governor, the General Assembly, Foster leadership at high levels early in the process. Broad Delaware’s state agencies, Delaware’s many conservation involvement and strong leadership can help insulate bio- organizations, businesses, local governments, and private diversity initiatives from political upheavals, as well as individuals have the capacity to act–particularly if a bureaucratic and corporate intransigence. State biodiver- statewide commitment to biological diversity is made. sity strategies developed unilaterally by state agencies are often at the whim of the political process. Political turnover can produce changes in political vision and will. NECESSARY COMPONENTS OF A DELAWARE Support from partners in the business community, non- STRATEGY profit organizations, and commodity interests can provide state environmental, agricultural, transportation, If a state biodiversity strategy is to make significant and development agencies with the encouragement nec- inroads into biodiversity conservation and move beyond essary to withstand political change and overcome planning to on-the-ground implementation, several ele- bureaucratic obstacles. ments are necessary. A statewide strategy to achieve comprehensive conservation of biological diversity should Define goals clearly. If state biodiversity initiatives include include the following: a public participation component, it is worthwhile to spend time up front to educate the public, define goals • Address private as well as public land management issues clearly, and restate them often. Misunderstandings and • Ensure broad-based involvement intentional misinformation about the goals of state biodi- • Foster leadership at high levels early in the process versity initiatives can inflame concerns over private proper- • Define goals clearly ty rights. It may be particularly valuable to engage local • Look beyond acquisition strategies leaders to convey the goals of a specific project in their • Develop a unified biodiversity assessment and provide region. If asked to participate in a project, local stakehold- biological data to decision-makers in an appropriate format ers are more likely to feel a sense of ownership in such an • Support programs that encourage conservation on pri- effort. Remain mindful that biodiversity is a quality of life vate lands issue. Delaware is undergoing tremendous growth. This • Address the effects of Delaware’s laws, policies, and insti- growth is occurring in ways that are harmful to biodiversi- tutions on biological diversity ty. Unplanned growth also has a negative fiscal and quality of life consequence for Delaware’s residents. Any strategy Address private as well as public land management issues. for biodiversity conservation must be closely tied to efforts Many existing state biodiversity plans have been developed to direct growth in a manner that does not harm to guide land acquisition and management practices on Delaware’s economic, human, and natural capital.

chapter 8 137 Focus biodiversity initiatives more broadly than on the and begin addressing the direct and indirect ways the state’s development of an acquisition strategy. Land acquisition laws, policies, and institutions create incentives that pro- alone cannot stem the loss of species. Even with Delaware’s mote biodiversity loss. Analysis of the state laws and poli- strong public land acquisition programs, it is highly unlike- cies affecting biodiversity is a critical complement to land ly that there will ever be sufficient funds to acquire the acquisition and easement strategies. Development of a poli- acreage necessary to protect and restore all species of inter- cy strategy must occur in a manner that does not attribute est and concern. Even if such acquisition were possible, blame to individuals or organizations. There are many rea- such an approach could unnecessarily constrain many pri- sons that laws, policies and practices have evolved into vate and productive activities than can encourage and their present day form. Delaware may be a small state, but enhance biodiversity on private lands. the factors that have contributed to biodiversity loss in the past are complicated. The need now is to reevaluate Develop a unified biodiversity assessment and provide bio- whether current needs can be met through laws that are logical data to decision-makers in an appropriate format. more beneficial to biodiversity and that eliminate unin- Delaware has many sources of scientific data that land tended, adverse effects. managers draw upon in their decision-making, including the Delaware Natural Heritage Program, Gap Analysis, and water quality monitoring program. These tools could be CONCLUSION used to develop a model for identifying and prioritizing conservation and restoration, as well as acquisition. Many There is ample authority for and interest in the develop- new and emerging state biodiversity efforts — such as those ment of a statewide strategy to conserve and restore biolog- in Indiana, New Jersey, Massachusetts, and Oregon — are ical diversity in Delaware. Delaware must look to its future developing new assessment tools to enhance the knowledge by developing a statewide strategy that acknowledges that base and guide on-the-ground conservation decision-making. biodiversity conservation is the common heritage and However, it is critical that biological data be provided to responsibility of all the state’s citizens. Now is the time to policy-makers at the state and local levels in a format that define whether or not the state’s future will reflect the bio- they can use and interpret. If existing and innovative sci- logical abundance that once characterized the state and ence-based biodiversity assessment programs are not pro- drew people from around the world to enjoy that bounty. viding information in an appropriate format to those whose decisions affect biodiversity, valuable data will fail to have significant on-the-ground effects. KEY POLICY RECOMMENDATIONS

Seek science-based solutions that are win-wins for private Below are a number of key policy recommendations taken landowners and the resource. Landowners must be presented from preceding chapters (see Chapters 3-7 for more with an array of options and incentives for protecting and detailed information). Many of these recommendations restoring biodiversity on their land. This should include suggest ways biodiversity conservation and restoration can some of the opportunities discussed in previous chapters, be enhanced through adopting new laws, reinterpreting such as cost-share programs, tax incentives for placing sen- existing laws, fine-tuning management practices, and work- sitive habitat in conservation easements, the ability to sell ing cooperatively to market innovative tax incentive and development rights, technical assistance and training, and voluntary cost-share programs already available in the state. other non-regulatory programs. Delaware agencies and Which of these challenges Delaware chooses to embrace is organizations should work together to help inform for the dedicated citizens and natural resource professionals landowners about the array of opportunities available to of the state to decide. them. These groups should also work with landowners to help them identify the options most appropriate to meet 1. Delaware should exercise its authority to deny infra- their needs. structure and development funding inconsistent with state development policies, including development Develop a biodiversity conservation strategy that specifically outside of designated growth areas. The Quality of Life addresses the effects of existing laws, regulations, and policies Act should be modified to require (rather than merely on biological diversity. Since many of the sources of biodi- allow) the state to deny funding for infrastructure pro- versity loss result from decisions made at the state and local jects whenever a proposed action is inconsistent with level, Delaware must look beyond acquisition as a solution state development policies. (Ch. 3)

138 protecting delaware’s natural heritage 2. Amend existing county comprehensive plans to 8. Adopt water quality criteria specific to wetlands. ensure that they are consistent with the state’s devel- Adopt and implement regulations guiding Delaware’s opment priorities. State designated growth and §401 program for approving, conditioning, or denying preservation areas are required by law to be reflected federal §404 wetlands permits. (Ch. 4) in the comprehensive plans at the county level. Require counties to develop zoning maps that are in 9. Amend the subaqueous lands law to eliminate the accord with their comprehensive plans. Areas desig- requirement of navigability. (Ch. 4) nated as growth and preservation areas in the county comprehensive plans should be reflected as such in 10. Improve nutrient management practices in the animal the zoning maps. (Ch. 3) industry through the adoption of appropriately stringent nutrient management regulations, such as time- 3. The Department of Natural Resources and of-year restrictions on manure spreading. Develop a Environmental Control should move quickly to meet nutrient applicator license or certification program. its legal obligations under the Land Protection Act by (Ch. 4) providing counties with detailed maps of State Resource Areas (SRAs). Based on these maps, all three 11. Elimintate exemptions for agricultural practices that are Delaware counties should comply with the Land detrimental to water quality and biological resources, Protection Act by adopting overlay zoning ordinances and provide appropriate incentives for improving exist- and environmental design standards to protect SRAs. ing conditions. Repeal agricultural exemptions in the (Ch. 3 & Ch. 5) Erosion and Sediment Control law and encourage the U.S. Environmental Protection Agency to reconsider 4. Enhance the effectiveness of the state Endangered its determination that waterways in basins of less than Species Act. Revise the Act to include a prohibition 800 acres are considered ditches. This would eliminate on the taking of a listed species, a requirement for list- the exemption of ditching activities from environmen- ing of species, a requirement for consultation with the tal review and permitting requirements under the fed- Department of Natural Resources and Environmental eral Clean Water Act, state tidal wetland law, and other Control on actions that may impair habitat or species state laws. Adopt regulatory and cost-share incentive viability, a requirement for recovery plan develop- programs to encourage the construction and mainte- ment, and a provision for critical habitat designation. nance of buffers and habitat corridors along drainage Extend protection to Delaware plants that are endan- ditches. (Ch. 4) gered, threatened, and species of concern either by including plants in the legal definition of “species” or 12. The Delaware Department of Agriculture Forest by enacting a separate plant protection law. Revise the Service should develop rules and regulations to imple- Act to extend protections to threatened species and ment its new authority to require landowners to sub- species of concern in the state. (Ch. 4) mit notification to the agency prior to commencing planned silvicultural activities. The agency should 5. Regularly update the list of “rare” species that are make development of forest management plans afforded protection under the state’s freshwater fishing mandatory under the notification process; develop a and hunting regulations. (Ch. 4) notification and management plan review process to ensure that landowners seeking approval for a planned 6. Amend the state tidal wetlands law to provide protec- harvest include in their plans appropriate conservation tion for buffer areas adjacent to tidal wetlands. The provisions; and should reserve the right to approve, law should also be amended to require local govern- condition, or deny proposed harvests if appropriate ments to adopt the appropriate tools to protect critical conservation measures are not included in harvest or wetlands and buffers. (Ch. 4) management plans. (Ch. 4)

7. Enact a non-tidal wetland law to provide sufficient 13. Require strict implementation of wetland mitigation protection for habitats and waters of the state not suf- policies, ensuring that rigorous alternatives analysis is ficiently protected by the federal §404 program. conducted. If mitigation banks are utilized to compen- Secure sufficient appropriations for effective adminis- sate for permitted losses, banks should support func- tration of the law. (Ch. 4) tioning wetlands prior to the withdrawal of credits,

chapter 8 139 success criteria should take biological diversity into grate it into the division in such a manner to ensure that account,and long-term management responsibility it receives attention equal to that of the wildlife and should be secured. Similar standards should be devel- fisheries sections. Secure a stable source of funding for oped for other compensatory mitigation approaches, the program and use donated tax check-off funds for including on-site mitigation. Commission a study to high profile restoration and research activities. (Ch. 6) review the permit and ecological success of existing compensatory mitigation projects. (Ch. 4) 19. Develop a statewide biodiversity inventory and assessment model — drawing from existing sources of bio- 14. Secure a stable annual source of funding for the Open logical data, such as the Delaware Natural Heritage Space Program and the Agricultural Lands Preservation Program and Gap Analysis Project — to identify bio- Program. (Ch. 5) logically critical areas at which to target incentive programs, management resources, acquisition funding, 15. Revise the Land Protection Act to create a matching cost-share and incentive programs, long-range plan- grant program within the Open Space Program. ning, and restoration activities. Provide this biological Matching funds could be allocated to local govern- information to Delaware’s land management, eco- ments and conservation organizations to acquire open nomic development, and transportation agencies, space in areas consistent with the state’s conservation local governments, and conservation organizations in goals. (Ch. 5) a format that can help guide on-the-ground decision- making. (Ch. 6) 16. Revise the scoring system of the Agricultural Lands Preservation Act to give increased weight to wetlands, 20. Develop management plans for each of Delaware’s forests, proximity to open space, windbreaks, buffer- public land holdings that address biodiversity conser- strips, and other natural amenities on agricultural vation and restoration goals. Require regular updates lands. (Ch. 5) to reflect new trends in wildlife and recreational use, include regular updates on exotic species, ensure that 17. Amend the Agricultural Preservation Program to pro- each agency’s constituents are being served, and ensure vide greater incentives to district landowners to that management activities reflect current scientific engage in environmentally beneficial practices. Provide understanding and do not adversely affect species enrolled landowners with tax credits for implementing diversity. (Ch. 6) agricultural conservation management plans. The Delaware Department of Agriculture, U.S. Department 21. Amend Delaware’s Farmland Assessment Act to allow of Agriculture, and the U.S. Fish and Wildlife Service lands managed for conservation purposes to be eligible for should coordinate to give additional preference to property assessment at current use, as are lands that sell landowners enrolled in Agricultural Preservation agricultural, horticultural, or forestry products. (Ch. 7) Districts to encourage them to apply for cost-share funding through existing Farm Bill and wildlife 22. The U.S. Department of Agriculture’s Natural Re- enhancement programs. (Ch. 5) sources Conservation Service, Delaware Department of Natural Resources and Environmental Control, 18. Within the Division of Fish and Wildlife, consolidate Delaware Department of Agriculture, and other state the Non-game Program and Delaware Natural Heritage and local natural resource agencies should coordinate Program in a Wildlife Diversity Program. Establish the efforts to promote voluntary private land conservation Wildlife Diversity Program at the section level or inte- programs that benefit biodiversity. (Ch. 7)

1 Hoose, Phillip. 1981. Tools for the Preservation of Natural Diversity Through Land Setting Natural Resource Management Priorities. Strategic Plan; Wisconsin Department of Protection. Island Press: Covelo, CA. pp. 7-8. Natural Resources. 1995. Wisconsin's Biodiversity as a Management Issue. 2 Bennett, Jessica. 1998. “State Biodiversity Planning.” The Environmental Forum. 15(4). 4 Ohio Department of Natural Resources. June 1998. Biological Diversity Strategic Plan Environmental Law Institute: Washington, DC. and Implementation Plan. ODNR: Columbus, OH. 3 Illinois Department of Natural Resources, Office of Realty and Environmental 5 Commonwealth of Kentucky. October 1995. Kentucky Alive! A report of the Kentucky Planning. August 1997. Ecosystem Planning/Conservation 2000 Programs: Ecosystems Biodiversity Task Force. Ed. Diana J. Taylor. Frankfort, KY; Oklahoma Biodiversity Task Program. Illinois Department of Natural Resources; Anderson, Brian D. 1997. C2000 Force. 1996. Oklahoma's Biodiversity Plan: A Shared Vision for Conserving Our Natural Update. Illinois Department of Natural Resources; Minnesota Department of Natural Heritage. Ed. Norman and L. Murray. Oklahoma Department of Wildlife Conservation: Resources. July 1997. Directions for Natural Resources: An Ecosystem-Based Framework for Oklahoma City, OK; Pennsylvania Biodiversity Technical Committee. 1995. A Heritage

140 protecting delaware’s natural heritage for the 21st Century: Conserving Pennsylvania's Native Biological Diversity. Pennsylvania Fish & Boat Commission: Harrisburg, PA. 6 Indiana Biodiversity Initiative. 1997. Mission Statement and Technical Team Initiatives; Environmental Law Institute. 1995. Indiana’s Biological Diversity: Strategies and Tools for Conservation. ELI: Washington, DC; Oregon Biodiversity Project. September 1996. Oregon Biodiversity Project: A cooperative effort to develop a statewide biodiversity management strategy. Defenders of Wildlife: Lake Oswego, OR. 7 Cal. Fish & Game Code § 2800, et seq.; N.Y. Education Law § 235; Mich. Comp. Laws § 299.232, et seq. 8 Gawler, S.C., et al. 1996. Biological Diversity in Maine: An Assessment of Status and Trends in the Terrestrial and Freshwater Landscape. Maine Natural Areas Program, Department of Conservation: Augusta, ME; Barbour, Henry, et. al. 1998. Our Irreplaceable Heritage: Protecting Biodiversity in Massachusetts. Natural Heritage & Endangered Species Program, Mass. Division of Fisheries and Wildlife and The Massachusetts Chapter of the Nature Conservancy. 9 National Wildlife Federation. 1993. Saving All the Pieces: Protecting Biodiversity in the Lake Superior Region; The Nature Conservancy. 1994. The Conservation of Biological Diversity in the Great Lakes Ecosystem: Issues and Opportunities. For example, see: Chicago Wilderness. 1997. “An Atlas of Biodiversity.” Chicago Region Biodiversity Council: Chicago, IL. 10 Wilkinson, Jessica Bennett. Spring 1999. “The State Role in Biodiversity Conservation.” Issues in Science and Technology. XV(3): pp. 71-77. 11 Heisel, Edward J. 1998. “Biodiversity and Federal Land Ownership: Mapping A Strategy for the Future.” Ecology Law Quarterly. 25: pp. 242,245.

chapter 8 141 142 protecting delaware’s natural heritage Appendix 1 Acronyms

AR Agricultural Residential ISTEA Intermodal Surface Transportation ASMFC Atlantic States Marine Fisheries Commission Efficiency Act BMP Best Management Practices LESA Land Evaluation and Site Assessment C&D Chesapeake and Delaware LRP Long Range Plans CARA Conservation and Reinvestment Act LUPA Land Use Planning Act CCMP Comprehensive Conservation and LWCT Land and Water Conservation Trust Fund Management Plan MOU Memorandum of Understanding CCSPI Cabinet Committee on State Planning Issues NAI Natural Areas Inventory CNA Critical Natural Areas NAWMP North American Waterfowl CREP Conservation Reserve Enhancement Program Management Plan CRP Conservation Reserve Program NDWRP Northern Delaware Wetlands CZARA Coastal Zone Act Rehabilitation Program Reauthorization Amendments NEPA National Environmental Protection Act CZMA Coastal Zone Management Act NMFS National Marine Fisheries Service CZMP Coastal Zone Management Program NOAA National Oceanic and D-J Federal Aid in Sport Fish Restoration Act Atmospheric Administration (Dingell-Johnson) NRCS Natural Resources Conservation Service DAC Development Advisory Committee OCS Outer Continental Shelf DALPF Delaware Agricultural Lands OMWM Open Marsh Water Management Preservation Foundation OSPC Office of State Planning and Coordination DDA Delaware Department of Agriculture P-R Federal Aid in Wildlife Restoration Act DDT Dichloro-diphenyl-trichloro-ethane (Pittman-Robertson) DEDO Delaware Economic Development Office PCBs Polychlorinated Biphenyls DelDOT Delaware Department of Transportation PDR Purchase of Development Rights DISC Delaware Invasive Species Council PSE&G Public Service Electric and Gas Company DNS Delaware Nature Society SAC Subdivision Advisory Committee DNHP Delaware Natural Heritage Program SAMP Special Area Management Plan DNREC Department of Natural Resources SRA State Resource Area and Environmental Control STP Surface Transportation Program DRBC Delaware River Basin Commission TAC Technical Advisory Committee EIS Environmental Impact Statement TCSP Transportation and Community and System EPA United States Environmental Preservation Pilot Program Protection Agency TDR Transferable Development Rights EQIP Environmental Quality Incentives Program TEA-21 Transportation Equity Act ERES Exceptional Recreational or TIP Transportation Improvement Programs Ecological Significance TMD Total Maximum Daily Load FWS United States Fish and Wildlife Service TNC The Nature Conservancy GIS Geographic Information Service TWW Teaming With Wildlife IAFWA International Association of Fish and UDC Unified Development Code Wildlife Agencies USDA United States Department of Agriculture IMM Integrated Marsh Management WDP Wildlife Diversity Program IRMSM Investment and Resource WHIP Wildlife Habitat Incentives Program Management Strategy Map WRP Wetland Reserve Program

appenidix 1 143 144 protecting delaware’s natural heritage Appendix II Delaware Contacts: Federal, State, and Local

FEDERAL AGENCIES Natural Resources Conservation Service (NRCS) Delaware State Office Atlantic State Marine Fisheries Commission 1203 College Park Drive, Suite 101 1444 Eye St. NW Dover, DE 19904 Washington, DC 20005 (302) 678-4160 (202) 289-6400 http://www.nrcs.usda.gov/ http://www.dnrec.state.de.us/ U.S. Environmental Protection Agency Federal Highway Administration Region III 40 7th Street, SW 841 Chestnut Street Washington, DC 20590 Philadelphia, PA 19107 (202) 366-0537 (215) 597-9336 http://www.fhwa.dot.gov/ http://www.epa.gov/region3/

National Oceanic and Atmospheric Administration U.S. Fish & Wildlife Service National Marine Fisheries Service Bombay Hook NWR NOAA Fisheries Headquarters 2591 Whitehall Neck Road 1315 East-West Highway SSMC3 Smyrna, DE 19977 Silver Spring, MD 20910 (302) 653-9345 http://www.nmfs.gov/ http://www.fws.gov/r5fws/de/bmh.htm

U.S. Army Corps of Engineers Delaware Bay Estuary Project Baltimore District 2610 Whitehall Neck Road 10 S. Howard Street Smyrna, DE 19977 Baltimore, MD 21201 (302) 653-9152 (410) 962-7608 http://www.fws.gov/r5fws/de/dbep.htm http://www.nab.usace.army.mil/index.html Headquarters Northeast Region U.S. Department of Agriculture 300 Westgate Center Drive Farm Services Agency (FSA) Hadley, MA 010359589 Delaware State Office (413) 253-8200 1201 College Park Drive, Suite 101 http://www.fws.gov/r5fws/ Dover, DE 19904-8713 (302) 678-2657 Prime Hook NWR http://www.fsa.usda.gov/ Route 3, P.O. Box 195 Milton, DE 19968 (302) 684-8419 http://www.fws.gov/r5fws/de/pmh.htm

appenidix 11 145 U.S. Geologic Survey State Forests Biological Resource Division Sussex County John W. Powell Federal Building Redden Forest Manager 12201 Sunrise Valley Drive R.D. 4 Box 354 Reston, VA 20192 Georgetown, DE 19947 (703) 648-4050 (302) 856-2893 http://www.usgs.gov/ Kent County Kent County Forester STATE AGENCIES 2320 S. DuPont Hwy Dover, DE 19901 Attorney General’s Office (800) 282-8685 (DE Only) Sykes Building (302) 739-4811 45 The Green Dover, DE 19901 New Castle County (302) 739-4211 Blackbird Forest Manager 502 Blackbird Forest Road Delaware Agricultural Lands Preservation Foundation Smyrna, DE 19977 (DALPF) (302) 653-6505 2320 S. Dupont Highway Dover, DE 19901 Forest Landowner Assistance (302) 739-4811 Southern Regional Forester R.D. 4 Box 354 Delaware Department of Agriculture (DDA) Georgetown, DE 19947 2320 South Dupont Highway (302) 856-2893 Dover, DE 19901 (302) 739-4811 Kent County Forester http://www.state.de.us/deptagri/index.htm 2320 S. DuPont Hwy Dover, DE 19901 Plant Industries (800) 282-8685 (DE Only) 2320 South Dupont Highway (302) 739-4811 Dover, DE 19901 (302) 739-4811 New Castle County Forester http://www.state.de.us/deptagri/pi/plantind.htm 502 Blackbird Forest Road Smyrna, DE 19977 DDA Forest Service (302) 653-2868 Forest Service 2320 South Dupont Highway Watershed Protection Program Dover, DE 19901 BMP Forester (302) 739-4811 2320 S. DuPont Highway http://www.state.de.us/deptagri/dfs/forest.htm Dover, DE 19901 (800) 282-8685 (DE Only) Forest Health Specialist (302) 739-4811 2320 S. DuPont Highway Dover, DE 19901 (302) 739-4811

146 protecting delaware’s natural heritage Delaware Department of Natural Resources & Non-Point Source Pollution Program Environmental Control (DNREC) 89 Kings Highway Dover, DE 19901 Delaware Coastal Management Program (302) 739-2048 89 Kings Highway Dover, DE 19901 Public Information, Volunteer Services & (302) 739-3451 Environmental Education 89 Kings Highway Division of Air and Waste Management Dover, DE 19901 89 Kings Highway (302) 739-4506 Dover, DE 19901 (302) 739-4764 Office of State Planning and Coordination Suite 7, 3rd Floor Division of Fish and Wildlife Thomas Collins Bldg. 89 Kings Highway 540 S. DuPont Hwy. Dover, DE 19901 Dover, DE 19901 (302) 739-3441 (302) 739-3090 http://www.state.de.us/planning/index.htm Delaware Natural Heritage Office 4876 Hay Point Landing Rd. Public Service Commission Smyrna, DE 19977 P.O. Box 457 (302) 653-2880 Dover, DE 19903 http://www.dnrec.state.de.us/fw/fherit2.htm (302) 739-4247

Division of Parks & Recreation 89 Kings Highway LOCAL CONTACTS Dover, DE 19901 (302) 739-5285 Local Planning Contacts Kent County Department of Parks and Recreation Division of Soil & Water Conservation Robert W. O'Brien Building 89 Kings Highway 414 Federal Street Dover, DE 19901 Dover, DE 19901 (302) 739-4411 (302) 736-2090

Greenway and Trail Program Kent County Department of Planning 89 Kings Highway Robert W. O'Brien Building Dover, DE 19901 414 Federal Street (302) 739-5285 Dover, DE 19901 (302) 736-2020 Land and Water Conservation Trust Fund 89 Kings Highway New Castle County Government Center Dover, DE 19901 Department of Land Use (302) 739-5285 87 Reads Way Corporate Commons Open Space Program/Council New Castle, DE 19720 89 Kings Highway (302) 395-5454 Dover, DE 19901 (302) 739-3423 Sussex County Department of Planning and Zoning P.O. Box 417 Division of Water Resources Georgetown, DE 19947 89 Kings Highway (302) 855-7878 Dover, DE 19901 (302) 739-4590

appenidix 11 147 District Conservationists Delaware Wild Lands, Inc. Kent District Conservationist P.O. Box 505 Dover Field Service Center Odessa, DE 19730 3500 S. DuPont Highway (302) 378-2736 Dover, DE 19901 (302) 697-2600 Nanticoke Watershed Alliance (NWA) P.O. Box 79 New Castle District Conservationist Tyaskin, MD 21865-0079 New Castle Field Service Center (410) 873-2101 6 Peoples Plaza http://www.nanticokeriver.org/index.html Newark, DE 19702 (302) 832-3100 Partnership for the Delaware Estuary 1009 Philadelphia Pike Sussex District Conservationist Wilmington, DE 19809 Georgetown Field Service Center (800) 445-4935 408 N. DuPont Highway http://www.delep.org/partner.htm Georgetown, DE 19947 (302) 856-3990 Sierra Club, Delaware Chapter 402 Coldspring Run Newark, DE 19711 NON-GOVERNMENTAL ORGANIZATIONS (302) 477-1111 http://members.dca.net/sierrade/ Brandywine Conservancy Environmental Management Center The Nature Conservancy P.O. Box 141 Delaware Chapter Chadds Ford, PA 19317 260 Chapman Road, Suite 201-D (610) 388-2700 Newark, DE 19703 (302) 369-4144 Delaware Audubon Society http://www.tnc.org/ P.O. Box 1713 Wilmington, DE 19899 (302) 428-3959 MUSEUMS AND UNIVERSITIES http://www.delawareaudubon.org/ Hagley Museum and Library Delaware Center for the Inland Bays PO Box 3630 P.O. Box 297 Wilmington, DE 198070630 Nassau, DE 19969 (302) 658-2400 (302) 645-7325 http://www.hagley.lib.de.us/index.htm http://www.udel.edu/CIB/about.htm University of Delaware Delaware Nature Society Newark, DE 19716 P.O. Box 700 (302) 831-2000 Hockessin, DE 19707 http://www.udel.edu/ (302) 239-2334 http://www.dca.net/naturesociety/ College of Agriculture and Natural Resources Newark, DE 197171303 (302) 831-2501 http://bluehen.ags.udel.edu/

148 protecting delaware’s natural heritage Graduate College of Marine Studies Robinson Hall Newark, DE 197163501 (302) 831-2841 http://www.ocean.udel.edu/

Delaware Sea Grant Program 700 Pillottown Rd. Marine Studies Complex Lewes, DE 19958 (302) 645-4250 http://www.ocean.udel.edu/

Widener University Widener University Environmental and Natural Resources Law Clinic 4601 Concord Pike P.O. Box 7474 Wilmington, DE 19803-0474

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