When the gated community of Breakwater Beach was being proposed along Delaware’s coast in the late 1980s, then-Sussex County Councilman George Cole fought the idea of allowing multimillion-dollar lots in a wetland.
He lost that battle.
“It was 20-years-plus it sat there undeveloped, until the developer came in and said because of the value that you can get out of those lots and that locations, it’s worth spending some money to try to fight it,” Cole said. “I’m just surprised anyone would buy one.”
Today, a 50-foot-plus boardwalk cul-de-sac covers most of the isolated freshwater marsh in shade, the remaining plants seemingly scorched along the open edges. Sawed-off trees show where plant life once towered over the unique habitat type trapped between the Atlantic Ocean to the east and Del. 1 to the west and Breakwater Beach homes to the north and south.
This wooden structure will allow development despite environmental restrictions on a high-profitable piece of beach property north of Bethany Beach. (Photo: COURT FILINGS)
The undeveloped lots are marketed for $750,000 to $1.35 million each and will require new homes to be built on stilts in the marsh. But the developers technically didn’t need a permit for the impact on the wetland because they weren’t filling it in, federal officials said.
The eight lots that will tower over the wetland in Breakwater Beach, which is surrounded by a community already filled with multimillion-dollar homes, are owned by Greenville developer Louis Capano III.
Louis Capano III listens as residents critique plans to develop Brandywine Country Club two years ago. (Photo: XERXES WILSON/THE NEWS JOURNAL)
“I think it’s an abuse of the environment to build in such an area, but it’s all about the money,” said Sussex County resident David Jaegar, who also belongs to the Inland Bays Foundation.
With a letter in hand saying the project was good to go wetlands-wise, all the county had to do was approve the building permit for the new waterside “road.”
“The decision to do this was made a long time ago,” said Brenna Goggin, Director of Advocacy and External Affairs at the Delaware Nature Society. “But we have more information at our disposal than we did before. We know the economic and environmental benefits associated with wetlands. What are we going to do, if anything, to prevent this from happening again?”
That answer remains unclear. In Sussex County, a working group is further defining wetlands and waterways as well as considering additional needs for buffers. But as of now, nothing has been proposed at a state level.
Some, like Cole, have little faith that the political will exists on a local level to adopt more restrictive rules for development.
Rich Borasso, of the Sussex Alliance for Responsible Growth, believe new blood on the council means a new chance to expand protections for southern Delaware’s most vulnerable environmental features.
“It’s partly due to a change in the council chemistry, but I also think the public has become much more outspoken,” said Borasso, a Milton resident who became involved in local land-use decisions while fighting the Overbrook Town Center proposal near Milton. “What we as a group have committed to doing is holding them accountable.”
The Delaware Department of Natural Resources and Environmental Control declined to provide more information about the state’s wetlands and how they are regulated.
“I am not comfortable with staff fielding questions about the generalities of development and wetlands on the whole,” said Sussex County spokesman Chip Guy, who did not make any county officials available. “The boardwalk street … was developed and constructed in compliance with the County’s subdivision roads requirements.”
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A sign advertises the eight lots for sale on the oceanside of Del. 1 north of Bethany, where a boardwalk road and driveways were built over an unprotected wetland. (Photo: Maddy Lauria/The News Journal)
While the boardwalk structure is legal, the Delaware Center for the Inland Bays’ executive director, Christopher Bason, questioned whether it meets the intent of the Clean Water Act, the federal law that provides protections for waterways and wetlands.
“This is yet another example of an argument for the state to manage its own freshwater wetland resources and for not relying on the political whims at the federal level to determine what’s best for the citizens and visitors to Delaware,” he said.
And if the Trump administration is successful in its rollback of existing waterway protections afforded by the Waters of the United States rule, wetland impacts like this could face even less scrutiny.
“One freshwater wetland there, one freshwater wetland here might not have a significant effect on our ecosystem and economy. But in totality, if we’re not measuring the cumulative impacts on our environment and economy, we’re going to not just be shooting ourselves in the foot but blowing our whole foot off,” said state Sen. Bryan Townsend, a New Castle County Democrat who has championed clean water legislation in the past.
Some neighbors and environmentalists say what happened in Bethany is what happens when state and local officials fail to protect the most sensitive natural features in their own backyards.
Others say it’s an example of how some in Delaware value the dollar far more than protecting natural places for future generations.
“It’s an example of Sussex County not being willing to step up to the plate and say yes, wetlands are important,” Cole said. “Politicians have never had the guts to do it because the lobbyists have kept them away from it.”
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For Bason, the Breakwater Beach boardwalk “sets a really negative precedent.”
“Delaware has severe water quality problems. We have severe flooding problems,” Bason said. “And we should be protecting wetlands because they help [with both].”
For Goggin, seeing the boardwalk already built and one home rising above its wetland stilts is a serious cause for concern.
“I have a hard time believing that in 2019, after we have watched Superstorm Sandy and Hurricane Harvey and the other storms that we have seen, that we would allow people to intentionally be put in harm’s way,” she said. “That wetland serves as a barrier. Now you’ve made other homeowners more vulnerable.”
According to the state, coastal tourism driven by the ocean and bays supports nearly 40,000 jobs. A 2012 University of Delaware study found that the ecosystem services from wetlands and other habitats in the Inland Bays are worth $2 billion.
Bill Stewart, an avid conservationist and past president of the Delmarva Ornithological Society, said that while this particular example is not a large impact, it could have a ripple effect on biodiversity, water quality and other coastal processes.
“Any time people try and manipulate laws, certainly environmental laws, to personally profit with no regard to how everything is so vitally linked together is always unbelievably irritating to me,” he said.
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“Most developers that I’ve had any dealings with understand that wetlands are significant and that they need to pay attention to them and what they can do with them,” said Joe Conaway, a former Sussex County administrator who is now a land use consultant. “I guess somebody had the brilliant idea that if you can put a bridge over wetlands, then you can put a large bridge like this over them as well.”
State Rep. Ronald Gray, who represents a portion of eastern Sussex County south of the Indian River Bridge, said he sees the bridge as an expensive, isolated feat.
“From a developer’s perspective, it’s a pretty creative response to get money back on the investment made,” he said. “On the environmental side, it strikes as suspect how you can do this.”
Throughout Delaware, wetlands connected to tidal influences or nontidal wetlands that are larger than 400 contiguous acres are protected. In New Castle County, some nontidal and freshwater wetlands are protected.
Everything else falls to the jurisdiction of the U.S. Army Corps of Engineers Philadelphia District.
“What I like, what I dislike, comes secondary to my legal authority,” Corps Chief Edward Bonner has said. “From my perspective, [the developer] didn’t have any approval. He didn’t need any.”
That also means that the rules the Corps relies on for these regulations are at the whims of federal elected officials.
“We don’t have jurisdiction in our own state on our own land to protect these wetlands or prevent residents from making themselves more vulnerable to storms and flooding,” Goggin said.
In 2015, the Obama administration issued a rule aimed at clarifying confusing language about what waterways get federal protections.
President Donald Trump issued an executive order in early 2017 asking the EPA and the Corps to rewrite that Waters of the United States rule, which has been mired in legal battles for years. They published their version, which USA Today reported could mean even more significant rollbacks in waterway protections, late last year.
Opponents of the Obama rule worried it would allow Washington to have a say over puddles and potholes. Opponents of Trump’s version say it could jeopardize the safety of drinking water for more than 100 million Americans.
Not all wetlands are equally resilient to sea level rise Molly Murray/ The News Journal
At the time, Delaware Sen. Tom Carper, the top Democrat on the Environment and Public Works Committee, said the rollback could send the country back to a time when waterways like the Cuyahoga River in Ohio were so polluted that it literally caught on fire.
The proposed rule would eliminate federal protections for tidally isolated wetlands like the one at Breakwater Beach now sparingly receive, Carper said in a press release earlier this year.
“So, there would be no permits for industrial facilities that discharge wastewater into these places; no permits for draining, dredging or filling these wetlands; indeed, no restrictions whatsoever on what happens to these resources, which believe me, are connected to the waters in your states,” Carper said in the release.
Townsend, the New Castle County Democrat, said he wants to learn more about this issue.
“A federal administration that rejects science is not a federal administration worthy of our trust to get these issues right,” he said. “The basis of so much of our economy is water. … A diverse biosphere is critical to our entire way of life, critical to our entire future. And we’ve got to do a better job of acknowledging and honoring that as we develop our economy.”
This article originally appeared in The News Journal on May 4, 2019. You can read it here.