The Delaware State Legislature has made a number of changes to the Beach Preservation Act in past decades, and the Delaware Department of Natural Resources and Environmental Control (DNREC) is now trying to put those changes into action by writing new regulations for beachfront building and use.
The Division of Watershed Stewardship’s Shoreline & Waterway Management Section held two public workshops in September to discuss proposed changes to Delaware’s Regulations Governing Beach Protection and the Use of Beaches.
The changes include both requirements from Delaware’s state legislature and changes DNREC officials said they felt were needed to protect structures built along the beach, as well as the beach and dune system itself.
The Beach Protection Act was written in 1972 and amended many times, said Michael Powell of the Division of Watershed Stewardship at a May workshop. DNREC’s regulations have not officially included changes made from 1996 to 2006. When DNREC tried to make the regulatory changes in 2005, unresolved issues prevented the regulations from officially taking place.
But DNREC has still enforced those provisions, as required by law. But the purpose of regulations is to “flesh out the law” into a fair and enforceable way.
These workshops in Bethany Beach on Sept. 26 and Milton on Sept. 25 were just an opportunity for draft regulations review, a repeat of workshops held earlier this year.
Official public hearings will likely be scheduled for later this autumn. Based on public feedback, the Secretary of DNREC could chose to adopt the proposed regulations, implementing them a few months afterward.
“These regulations apply on both public and private beaches,” Powell said. “But there are certain departmental capacities which we can do only on public beaches.”
A new housing zone
Under the proposed regulations, the existing regulated housing zone would change. In the past, the regulated zone included everything between the beach and the first road parallel to the shoreline.
For Dewey Beach, that meant the zone was up to six houses deep, east of Coastal Highway. Meanwhile, in South Bethany, that just meant the single row of houses east of Ocean Drive. Throughout the state the zone was considered either too broad, or too narrow, based on the road layout.
The proposed regulation would extend the zone to the third buildable lot west of the ocean. So Fenwick Island would now have houses west of Bunting Avenue included in DNREC’s regulatory zone.
“We would now have a permit process for these houses. They’re not affected by the building line. … It wouldn’t impact the size of a house by our regulations,” Powell said. “But say we have a major storm and sand washes back [to the third house]… We have a desire to return that sand to beach. … It gives us an opportunity to require that that material go back out to the beach.”
The Building Line affects where houses may be built
The Building Line generally coincides with back heel of the dune, but many homes were built before the line existed. There are, at present, no proposals to change the Building Line, which was first drawn around 1971. Such a change would need to undergo a public review process, and it would be based on changing natural phenomena, such as significant changes to the dune or beach.
But officials have assured the public that the Building Line will never be loosened, as DNREC “heard loud and clear that people along the Atlantic coast” would not want neighbors to be able to build closer to the sea than the existing homes.
Building a house or improvement
If existing houses seaward of the Building Line are destroyed by an act of god, people may rebuild in the same footprint, if state or federal agencies have constructed and continue to maintain a beach and dune that conforms to coastal engineering standards of storm protection.
At the September meetings, one citizen asked about that rule’s impact on private beaches that piggybacked on, but were not part of, state replenishment projects. DNREC officials promised to find and clarify an answer.
But property owners must move the house landward, behind the Building Line, when other voluntary construction is proposed, such as a substantial improvement (improvements worth more than 50 percent of the market value of the physical structure).
If the structure cannot be moved behind the Building Line during a major renovation, DNREC would follow a four-step process to minimize the house’s encroachment on the shore.
The four-step process would require houses to do the following, until they were behind the Building Line: build to the edge of the front-yard setback; build to both side-yard setbacks; reduce the structure’s living area to the average of neighboring houses; and reduce the seaward encroachment over the Building Line to the average encroachment of neighboring lots.
(When comparing to neighboring lots, that actually references the “smallest subset of lots,” which refers to the smallest identifiable group of subdivided, contiguous lots within a subdivision, separated by either roads or subdivision boundaries. For an oceanfront house, that could mean several lots north and south of it.)
Since 1996, DNREC has followed the four-step process for about 60 properties, because the Beach Protection Act required the agency to do so. However, the process would now become official policy.
“It’s making use of all the possible buildable area on a lot,” said Jennifer Luoma, a DNREC environmental scientist. “We do these on a case-by-case basis, and we work with the applicant at the time.”
But a process dictated by policy alone is prone to change and could be gone tomorrow, Powell noted. Regulations would be set down on paper.
These are some other changes and clarifications in the proposed regulations:
• Permits and letters of approval may not be extended more than three times, as this reduces public participation.
• Cantilevered decks may not be enclosed into living space, and the area under the deck must be open, to allow dunes room to move.
• In beachfront communities, some walkways may be widened to 5 or 6 feet, depending on the number of families that particular crossover serves.
• Permits aren’t required for basic, non-structural maintenance, such as repainting, shingle replacement, window cleaning and more.
• Approvals will be clarified for temporary structures, such as tents for special events.
The full presentation from the May and September meetings can be found on the DNREC website at www.dnrec.delaware.gov/swc/Shoreline/Pages/Beach-Regulatory-Advisory-Com....
To obtain a copy of the draft proposed Regulations Governing Beach Protection and the Use of Beaches, email Jennifer.Luoma@state.de.us, call (302) 739-9921 or write to Shoreline & Waterway Management Section, Division of Watershed Stewardship; 89 Kings Hwy.; Dover, DE 19901.