Delaware Audubon Reaches Legal Settlement with Delaware for Land Preservation Act

Settlement requires the development and adoption of standards and criteria for state-funded land protection

Delaware Audubon Society has reached a legal settlement with the Delaware Department of Natural Resources and Environmental Control (DNREC) and the Delaware Open Space Council (OSC) for legal action on the Land Protection Act.

On February 16, 2015, Audubon initiated a Writ of Mandamus in Delaware Superior Court to compel DNREC and OSC to take actions needed for them to comply with the Land Protection Act.

Enacted in 1990, the Land Protection Act established the Open Space Council to oversee the protection of State Resource Areas (SRA) according to a set of standards and criteria for land protection in Delaware. State Resource Area maps were to be updated to guide future land purchases using state Open Space funds.

Audubon took legal action in response to our concern over DNREC's continued disregard of the requirements under the Land Protection Act. Due to the State's noncompliance with the law, Delaware was operating under an outdated 1990s plan that did not reflect the state's land protection needs.

"This settlement represents a significant step forward for the Delaware Land Protection Act by creating binding obligations on DNREC and the Open Space Council to generate the criteria and State Resource Areas mandated by the Act," said Kenneth Kristl, an Associate Professor of Law and Director of the Environmental and Natural Resources Law Clinic at Widener University. "As lead counsel for Delaware Audubon in the litigation that culminated in this important settlement, I was happy to facilitate the development of the process embodied in this settlement so that Delaware can move towards achieving the worthy land preservation goals the General Assembly envisioned at the time of the Act's passage."

Actions agreed upon require DNREC and the Open Space Council to:

  • Adopt standards and criteria pursuant to the requirements of the Delaware Land Protection Act within six months.
  • Following the development of the standards and criteria, hold a public workshop in each county of the state and then a formal public hearing to collect citizen comments.
  • Within 5 months of the designation of standards and criteria, DNREC and the Open Space Council must designate State Resource Areas and adopt State Resource Area Maps to guide land protection efforts under the program.
  • Hold at least one public workshop and a public hearing on the proposed State Resource Area Maps to collect citizen input, prior to their adoption.

"We are pleased that DNREC and the Open Space Council have agreed to take the necessary actions to update Delaware's land protection program within the proposed timeline. Delaware will be able to address our state's current needs to protect water quality, wetlands, forests, and air quality. Because of this settlement, the state will be able to leverage landowner stewardship through land protection incentives," said Delaware Audubon President David Carter.

"The settlement provides a needed opportunity to protect our birds from the impacts of climate change, by allowing the targeted protection of key habitats known to be threatened" said Delaware Audubon Conservation Chair Dr. Amy Roe. "In 2014, National Audubon released its groundbreaking study on the serious threat climate change poses for birds, with 314 species threatened by global warming. Through analysis of long term data, it documents how birds are already being impacted and will be more seriously impacted in the future unless we take action now."

Key to the success of this effort is public involvement. Standards and criteria have been developed and have been shared with the public through workshops in Kent and Sussex Counties. The New Castle County workshop will be held at 5 pm on September 29, 2015 at the Brandywine Hundred Library. A public hearing will be announced by DNREC at least 21 days in advance of the hearing as required by the settlement. Delaware Audubon urges all citizens of the state to attend the workshops and hearing and provide input on important priorities for land protection in Delaware.