Wetlands and Subaqueous Lands Permits

Authorization from the DNREC Wetlands and Waterways Section is required for activities in tidal wetlands or in tidal and non-tidal waters in the State of Delaware. The Section issues various types of authorizations depending upon the location and type of activity proposed.

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Matt Jones

The Section oversees permitting and related regulatory activities that include Wetlands and Subaqueous Lands Permits, Water Quality Certifications, Statewide Activity Approvals, Subaqueous Lands Leases, Marina Permits and Jurisdictional Determinations and Map Changes.

Wetlands and Subaqueous Lands Permits

Any person or organization seeking a permit, lease or other authorization from the Department must complete the Wetlands and Subaqueous Lands Permit Application Form and any appropriate appendices from the list below.

In addition to the application form and appropriate appendices, applicants must submit a map showing the location and boundaries of the proposed project, a scaled plan and section view drawings of the proposed project, a certified copy of the deed, a property survey, the application fee, and any other supporting information required by the Department.

Water Quality Certification

The US Clean Water Act requires states to certify that the discharge of dredged or fill material into waters of the United States, including wetlands, that is authorized by the federal government, will not violate the State Water Quality Standards. A project-specific application for Water Quality Certification is generally required for all projects requiring an individual permit from the U.S. Army Corps of Engineers, as well as for certain projects that qualify for a Corps Nationwide Permit but are located in environmentally sensitive areas.

Applicants can use the Wetlands and Subaqueous Lands Permit Application Form for projects that require this type of Water Quality Certification review. Contact the Wetlands and Waterways Section, at 302-739-9943, for assistance.

Statewide Activity Approvals (SAAs)

These authorizations have an abbreviated processing procedure and can be used to for various activities which have been determined to have minimal adverse impacts, including many projects in privately owned tidal, artificial lagoons, shoreline stabilization projects which utilize vegetation, the repair and/or replacement of docks and piers and certain other activities.

Repair Statewide Activity Approval

This authorization applies to repair work on qualifying docks, piers, boat ramps, pilings, bulkheads and other similar structures. In order to be eligible for this authorization the existing structure must be serviceable and it must be replaced in the exact footprint of the current structure.

Lagoon Statewide Activity Approval

This authorization applies to certain activities in qualifying lagoons in Delaware.

Living Shoreline Stabilization Statewide Activity Approval

This authorization authorizes the construction of shoreline stabilization projects that preserve, enhance and/or restore valuable ecological functions in tidal and non-tidal subaqueous lands jurisdiction.

Subaqueous Lands Lease

A lease (renewable on a 10-year term) is required for the placement of any structure (dock, pier, pipeline, shoreline stabilization, etc.) or any fill placed in underwater lands channelward of the mean low water line. Projects that involve fill below the mean low water line are also subject to an annual lease fee.

All tidal underwater lands within the State of Delaware below the mean low water line, except those underwater lands specifically granted by the State to a private owner, are considered to be Public Subaqueous Lands held in trust by the State of Delaware for all Delaware citizens.

Jurisdictional Determination and Map Changes

Use the Jurisdictional Determination and Map Change Request Form to request a stream Jurisdictional Determination, a Mean High Water Determination or a Wetland Map Change.

The Permitting Process

Once an application is received, it is assigned to a Wetlands and Waterways Section scientist who will review the application and visit the project site.

Public notice is required for most projects. This consists of advertising a basic project description in the newspaper and on the DNREC website and waiting for a period of twenty days to receive public comments or requests for public hearings. Statewide Activity Approvals, Jurisdictional Determinations, and Letters of Authorization do not require a public notice period and thus have an abbreviated processing time.

Once the 20-day comment period has passed, the project is given a final review by the staff scientist. This will include public comments and concerns the Department may have. For Subaqueous Lands Permits and Water Quality Certifications, a final permit decision is made and if the project is approved, the Permit and/or Certification is prepared and issued.

For projects requiring a Subaqueous Lands Lease, the lease is first sent to the applicant to be signed and notarized and is then returned to the Department for the Cabinet Secretary’s signature. Once the final lease document is signed by all of the parties, it must be recorded at the Recorder of Deeds Office in the appropriate county in order to be considered valid.

The processing time required to issue authorizations that require public notice is approximately 60 to 90 days. For projects that do not require a public notice, the processing time is generally from one to four weeks.

Major new marinas or marina alterations have a more complicated process requiring two separate public notice periods. Such projects typically require four to six months to process.

Projects for which a public hearing is requested will also require a longer processing time.