Land owners allege DNREC staff trespassed to gain info

An allegation that state environmental officials trespassed on private lands to gain information that could be useful in deciding which properties should be protected as public lands has surfaced amid the debate over revisions to the state open space law.

The details about the alleged trespass are sketchy, but state Environmental Secretary David Small acknowledged that, in the early days of Delaware's Natural Heritage Program, private conservation partners and state environmental agency employees may have gone onto privately owned land without landowner permission. The heritage program assesses lands for plants and animals and has been a tool in discovering rare remaining communities of some little seen plants in Delaware. Most often, state biologists work with landowners to protect critical habitats. Delaware has almost no state rules that limit what landowners can do but sometimes federal laws such as the Endangered Species Act limit private property rights.

The issue surfaced Wednesday during a House Sunset Committee meeting.

"I guess there is some concern there have been some employees of DNREC that have been on property without landowner's permission," said Rep. Tim Dukes, R-Laurel. "They created a huge lack of distrust with landowners."

Small said he became aware of the problem several months ago and immediately took steps to make sure it never happens again.

"My interest is in having a record somewhere that we had landowner permission" to go on private land, he said. That paper trail wasn't a requirement in the past.

Meanwhile, Small said, new technology such as aerial photography gives officials in all state agencies greater tools in assessing land – from assessing shifts in land use to finding rare habitats such as Atlantic White Cedar swamps and other rare wetlands – while never setting foot there.

That information is incorporated into a database named the Delaware Ecological Network.

That immediately raised skepticism among some property owners and interest groups who questioned how the state would use the data.

Robert Tunnell, whose Tunnell Co. owns hundreds of acres of land in Sussex County, said he was unhappy that state officials might use information gathered during the permit application for his sewer system for other purposes.

This debate surfaced Wednesday when the House Sunset Committee considered and ultimately tabled House Bill 262, to update the State Land Preservation Act that was adopted 26 years ago..

The tabling process will allow the committee to come up with revisions to the original proposed bill, said Rep. Gerald Brady, D-Wilmington, who chairs the committee.

Brady said he believes there is a distinction between the Open Space legislation and the trespass allegations and the two should not be intertwined.

Meanwhile, proposed substitute legislation could gut a provision in the state's 2-decade-old open space preservation law that requires the state to map the most critical areas to target for future conservation efforts.

The move could compromise a settlement agreement between the state and Delaware Audubon. The conservation organization argued last year, in court filings, that the state needed to be accountable for open space purchases and be protected from political influence that might force them to spend limited land acquisition dollars on land with lesser ecological, recreational or historic value. The concern is that one property may rise to the top as a pet project of someone with power and influence.

Audubon pressed the state and Open Space Council to follow provisions in the state's Land Protection Act. The council was required to develop standards and criteria to determine which lands were most worthy of protection. The state environmental agency was required to map state resource areas, based upon the council's standards and criteria.

Draft maps were rolled out earlier this month at the Open Space Council meeting. They show broad areas of conservation interest and don't take a parcel by parcel approach to land protection.

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David Carter, chairman of Delaware Audubon, said he was blindsided by this latest move to get rid of the state resource area requirement in the act. Carter said he thought that his organization, the state and the council were moving toward a resolution of the lawsuit settlement.

"The only one who may be more distrustful of DNREC right now than private property rights advocates is me," he said.

On Friday, a substitute bill for House Bill 262, surfaced. It has not been introduced. It removes the long-standing requirement that the state environmental agency develop state resource area maps.

These maps are supposed to show the places in the state with the highest conservation, recreational or historic values and were a core of the original state land preservation act. State environmental officials were on the losing side of a legal challenge of the maps a decade ago but the court never ruled on the validity of the maps. Instead, the central issue was the process that the state agency went through to develop the maps. Since then, there have been no maps save for the ones developed two decades ago.

State environmental Secretary David Small told the state Joint Sunset Committee last week that the decision to pull the map requirement from the legislation came as a result of concerns that were raised by private land owners at workshops hosted last year by the state Open Space Council.

Small told the Sunset Committee that the criteria developed by the Open Space Council, criteria that were also required by the law to rank open space properties before purchase, would be enough to guide future land acquisitions.

"We believe that we can do that without the legally required mapping program," he told the Sunset Committee. "We think we can run the program without the maps."

Open Space Council Chairman John Schroeder said he was caught off guard by the substitute legislation.

Schroeder said it was the Open Space Council's intent to only ask state lawmakers to remove the requirement that the State Resource Area maps be included in each of the three county land use plans. The idea was that the maps would be used within the state environmental agency as guides to future purchases. But the council and state environmental officials have repeated tried to reassure property owners that participation in the open space program is voluntary.

The substitute bill, he said, is not the work of the Open Space Council.

"The issue of trespassing on private property is not an issue of this legislation," Schroeder said. "If there is an issue … That's irrelevant to this bill."

Property rights advocates argued during workshops hosted by the council that the maps devalue land and could make it impossible to sell.

And that was an argument echoed Wednesday by Bob Wheatley with the Delaware Association of Realtors.

Several landowners said they were concerned about how the state would use the data they have available and said without guidelines the use of data is too vague.

Carter said that with decreasing state money for open space purchases and land management, there is an even greater need to protect larger swaths of land and make interconnections.

And, he said, "what this should become is a positive for landowners. If you're lucky enough to own land in one of these areas it becomes an additional tool for estate planning."

  Reach Molly Murray at (302) 463-3334 or mmurray@delawareonline.com. Follow her on Twitter @MollyMurraytnj​.