EPA explains push for environmental regs

What’s it worth to the citizens of Sussex County to have a clean Inland Bays watershed? To never again have to smell the rotting sea lettuce floating in the polluted, nutrient-overladen waters — to swim, to eat the fish and clams, without fear of detriment to health?

The state’s Department of Natural Resources and Environmental Control (DNREC), and many private citizens agree — cleaning up local waterways should continue to be a top priority.

County government presently requires a 50-foot buffer around wetlands areas, and has moved thousands of citizens onto central sewer systems — but there’s still a long way to go, according to DNREC Secretary John Hughes.

And as he has stated as preface to various public workshops relating to the department’s pending Pollution Control Strategy (PCS) regulations, DNREC is making changes under the force of law.

At the Environmental Protection Agency (EPA), Evelyn McKnight, water quality section explained what Delaware, and other states in the EPA’s Region III (Mid-Atlantic), needed to do.

“The EPA was sued by a group of environmental groups, and so we entered into an agreement with them to meet these Total Maximum Daily Loads (TMDLs),” McKnight said.

The EPA established a schedule, in cooperation with each of the individual mid-Atlantic states, for taking action to meet these TMDLs. The states have a one-year grace period after their deadlines pass, and after that, EPA officials will put some thing in place themselves, McKnight explained.

DNREC worked up just how much total nitrogen and phosphorus was too much for Sussex watershed, for the Indian River and Rehoboth Bays in 1998, and just this year, for the Little Assawoman Bay and Indian River tributaries.

So, Delaware has cleared the first “force of law” issue.

Through the formulation of the TMDL documents, DNREC had established (1) just how polluted the waters were and (2) just how much pollution reduction it would take to clean them up. EPA officials couldn’t very well issue discharge permits to large, single-source polluters in conflict with the TMDL findings, and they couldn’t very well just shut them down, either (imagine telling town officials they had to shut down their central sewer system — it’s not that easy).

Therefore, the second force of law issue became TMDL enforcement on point source polluters. DNREC has already taken most of those easy targets below their TMDLs, and is working with the rest of them.

And, as noted in the PCS, the agricultural community has already made significant improvements, on a voluntary basis. (Agriculture isn’t the main focus in the PCS, but there will be a mandatory requirement that all farms have Nutrient Management Plans by 2007).

However, there’s still the much larger, and far more difficult to pinpoint and address, non-point source pollution. Non-point source pollution isn’t just harder to tackle from a technical angle — there are plenty of political problems at well.

In addition, there’s little force of law behind non-point source cleanup (at least in Sussex County — McKnight said stormwater runoff from urban areas in New Castle County fell under a point source-type mandate).

At least as far as the lawsuit that led to the TMDLs in the first place, that is — McKnight said the Inland Bays were governed by a national estuary program as well, which mandated a comprehensive management plan (with cleanup as an obvious element).

And, there’s a monetary incentive in tackling the non-point sources — grant funding for Best Management Practice technologies targeting further pollution reduction, beyond anything gained through permit requirements and regulations.

“Obviously, the next step is to move ahead, and figure out how to achieve these TMDL goals — if you want to reach a successful endpoint,” McKnight pointed out.

She commended Delaware’s PCS document, as developed through a lot of hard work and the involvement of many stakeholders, with “as much science behind the plan as possible.”

However, certain elements have raised hackles in the professional planning, and individual property rights, camps.

At the heart of the draft PCS, “When a property’s use changes from a nonagricultural use, project design shall (do this and that) such that nutrient loads are reduced by (the prescribed percentages) for the waterbody.”

Locally, Tom Ford (LandDesign, Ocean View) tried to make DNREC’s requirements work for a hypothetical development showing 72 units on 84 acres. Sticking to the letter of the regulations, he said an inability to sufficiently reduce phosphorus would hold the developer to just 14 units instead.

That’s one house every six acres. County zoning currently permits two units per acre.

DNREC officials said there would be some flexibility — for instance, if the developer put in “all practicable Best Management Practices” and still couldn’t make the TMDL goals. However, Ford said it would be hard to pitch any project to developers, without some idea of what could or couldn’t be built.

However, Hughes took another viewpoint. A lifelong Sussex native, he remembered the absolute nadir, in the late 1970s and early 1980s, at which point pollution had very nearly turned local waters into a “sterile cesspool.”

Arguably, that kind of environmental degradation would make allowable density a secondary issue — and according to Hughes, despite progress, there still isn’t a single waterway in the state that has achieved the minimum standards.

“We came so close — so close to losing it all,” he said. “We’ve improved the environment since then, and I think we’re on an upward slope. This isn’t a taking.”

As Ford noted, that was just the section of the PCS he’d been looking at — colleagues had tackled other topics of concern. DNREC officials have taken those recommendations under advisement, and Hughes complimented them on their involvement.

He expressed a hope that guidance from that quarter would continue to come in a cooperative, rather than combative spirit. Noting Ford’s example, he agreed the department couldn’t do that to people.

“Sure, we have to make sure this makes sense — but we have to meet our goals, too,” Hughes added. Not one waterway in the state has yet achieved minimum standards, he said — “All of our waterways are still in non-attainment.”

Citizens’ groups sound off

Out in the community, members of the Positive Growth Alliance (PGA) and Citizens for a Better Sussex (CBS) have been firing salvos at one another over DNREC’s efforts.

PGA’s Rich Collins recently sent out a letter warning property owners of alleged regulatory takings associated with the institution of the PCS.

He targeted proposed requirements for a 100-foot wetland buffer, stating “you should be aware that DNREC has proposed a regulation that could cause hundreds, even thousands of parcels to lose most of their economic value.”

Bill and Joan Deaver answered (writing as private citizens, but Deaver is the president of the CBS). They called Collins’ letter “a threat to the community’s health and wellbeing and anyone who is part of the PGA should be ashamed of this attempt to mislead and frighten the public with exaggerations and mistruths about our DNREC’s (PCS).”

(Joan Deaver is the president of the CBS group, but they wrote this letter as private citizens.)

CBS’s Judson Bennett said he’d been a member of the PGA at one time, but eventually left in disgust. He said the PGA had become nothing more than a “special interest lobby” for developers and real estate brokers.

Collins rather suggested he worked for individual rights — and he said he believed working to ensure prosperity, opportunity and economic growth was the best way to improve the average person’s quality of life.

“We want to give individuals the greatest chance of getting in on the American Dream, and if that vision benefits developers — well, they’re Americans, too,” Collins said. However, he said PGA members came from all walks of life.

Bennett called Collins’ viewpoint shortsighted. “I feel what the PGA fails to do is recognize the scientific evidence,” he said. The Inland Bays were still rather sickly, and if DNREC science said 100-foot buffers would keep the nitrogen and phosphorus out of streams, then 100-foot buffers were called for, he said.

He compared any regulatory takings that might accompany the PCS with the impositions of standard zoning restrictions.

“People are entitled to their property rights, and the ability to turn a profit on their land,” Bennett said. “And I don’t blame the developers — but people not necessarily entitled to the most profitable use.”

However, Collins suggested the buffer would amount to nearly total “takings,” for many property owners (who hadn’t yet subdivided their land — recorded lots are protected in the PCS).

“To DNREC’s credit, they have responded to our concerns — but their plan is so complex that it’s hard to determine what works and what doesn’t work,” he said. “Also — the original version showed such poor judgment that we have to be skeptical about any subsequent drafts.”

While primarily targeting Collins’ “disgraceful letter,” the Deavers’ also reserved a portion of blame for DNREC, alleging state officials had “watered down” the proposed regulations under pressure from the PGA (and the PGA was still pushing for concessions).

“One only has to use their nose to realize that the beautiful Rehoboth Bay stinks with unwanted, rotting growth coming from the excessive phosphates and nitrogen in the water,” the letter continued.

Deaver said they’d been in the marina business back in Annapolis, and people there were facing the same problems. She credited DNREC for creating a very workable set of regulations, based on sound data and good science. “It’s well past time we got these things done,” she added.

Collins’ letter also attacked new septic system technology that would be required under the PCS, as expensive and untested — Deaver said she considered his objections “beyond the pale.”

Collins notes costs for new nitrogen removal technologies between $10,000 and $20,000. Figures cited in the PCS appendices are actually between $6,900 and $12,900 per advanced treatment system, plus $9,900 in average installation costs.

As the appendix also notes, “It is the intention of this strategy that homeowners will upgrade to an advanced treatment system at the time of their system’s failure.”

DNREC looked at the difference in price between old and new technologies (plus added costs associated with a proposed compliance inspection program, etc.).

Collins’ estimates hold, but those dollar amounts would typically be spread out over a 20-year finance period (average life for a septic system).

However, Deaver suggested any septic at all was a precarious situation in low-lying Sussex, exacerbated by a lack of education.

She said she’d seen people dumping gray water (from the dishwasher, washing machine) onto their lawns, and one neighbor had seemed completely baffled when Deaver asked her how often she had her septic pumped (not once, in 13 years).

“I’m not an environmentalist, but just from personal experience, I know we need a total make-over in septic regulations,” Deaver stated.

The PCS will institute a mandatory pump-out every 3 years.

Buffers and expensive septic aside, Collins had deeper issues. “The overall concept has never changed — that is, to transfer control of that land from the property owner and local elected officials to DNREC’s bureaucratic folks in Dover,” he said.

From Bennett’s perspective, “The PGA just doesn’t want to make any adjustments at all, in the way we handle land use.

“We’re changing this area to the point that, before long, it’s no longer going to be a great place to live,” he said. “If we overdevelop, we’re going to kill the golden goose.

If the solution was to reduce densities to one home per four acres (as recommended in Gov. Ruth Ann Minner’s recent Delaware Sprawl Prevention Act), so be it, Bennett said. He suspected there would still be a market, for people who wanted to build estate-sized homes on a nice, open piece of land.

“We need to do something to protect the Inland Bays, or we’re eventually going to reach a point when everything’s paved over, we can’t eat the fish and we all have to drink bottled water, he said.