DNREC revises pollution regulations

Department of Natural Resources and Environmental Control (DNREC) personnel hosted another public workshop in Dewey Beach on May 17, once again explaining pending pollution control regulations, and recent revisions thereto.

The department is working on a comprehensive Pollution Control Strategy (PCS), with the goal of cleaning up the local Inland Bays. There have been fish kills, proliferations of nuisance macroalgae (sea lettuce) and toxic algal blooms, caused by surface runoff and groundwater polluted with excess nitrogen and phosphorus.

As DNREC Secretary John Hughes pointed out, the state is under the federal (Environmental Protection Agency) gun to address these problems. “We’re making these changes under the force of law,” he said. “We don’t have a lot of choice — but even if we did we’d still be working to clean up the Inland Bays.”

DNREC established Total Maximum Daily Loads (TMDLs) for nitrogen and phosphorus in the Indian River and Rehoboth Bays a few years back, and last year, for the Little Assawoman Bay.

Hughes introduced DNREC’s Dr. Kathy Bunting-Howarth “and friend” (she’s expecting) for a presentation on progress to date, and future goals the department hopes to achieve with the proposed PCS regulations.

To date, they’ve eliminated most of the major point sources (municipal wastewater treatment facilities, and failing community systems, primarily).

However, nonpoint sources (individual septic and other wastewater systems, farms) remain the major source of the pollution, she said.

“Point sources are easy to identify and monitor,” Bunting-Howarth noted. “Nonpoint sources are more difficult to get your hands on.”

DNREC is hoping to get the vast majority of agricultural lands to adopt nutrient management plans by 2007, but she said that was the only mandatory regulation addressed in the PCS.

Bunting-Howarth said the agricultural community had already taken great strides — manure relocation, introduction of phytase in feed (reduces phosphorus in manure), cover crops, etc. Those voluntary changes provided the most bang for the buck, she said — reducing nutrients from urban land use, stormwater and wastewater treatment was the real challenge, and more expensive.

Agriculture already noted, and point sources mainly addressed, the remaining brunt of the PCS regulations will affect property owners and developers.

According to DNREC’s Jennifer Campagnini, they’d introduced a protocol to determine just how development affected nutrient loading as a pilot program with the state’s Preliminary Land Use Service (PLUS) late last year.

In addition, she said there were quite a few professional developers and planners working on the protocol now, trying to “break” it.

The outside perspective has resulted in recommended modifications to the first draft, and Hughes said the department had recognized every one of those nearly 20 changes had been necessary.

“I’ve seen agencies that hold workshops, and it seems like they’re listening, but then they go back to the office and come out with same thing,” he said. “Well, we’re listening, and if we come up against the hard rock of ‘This doesn’t seem to make much sense,’ we’re going to make changes.’”

Some in attendance suggested the changes were taking DNREC away from its goals — for instance, buffers are no longer required around “ephemeral streams.”

(Elsewhere, the regulations have increased wetland buffers to 100 feet, with some flexibility — for instance, if that made a lot unbuildable, the buffers would only have to conform to the setbacks.)

Ocean View planner Tom Ford said he hadn’t really taken a close look at the buffers, but as far as the protocol to measure a development’s impact, there were still too many maybes.

Ford said the first time he’d ever seen the protocol was in February, and he suggested DNREC could have done more in the way of involving developers and land planners before this stage in the game.

“We’re definitely in concert as far as their vision, but the methodologies they plan to use to get there — they’re not even close to being ready,” he stated.

He noted a general tendency to judge developers as anti-environment, but said his objection was to a protocol he felt wasn’t well thought out — and yet, far-reaching.

“If this goes into enactment, it will have a very significant impact on just about every landowner in Sussex County — the little guy as well as the big guy,” he said.

According to Ford, some environmentalists continued to paint development as run roughshod, but it wasn’t like that anymore. “Those days are gone,” he said. “Development today is far superior.”

Ford plugged a hypothetical development, 72 units on 84 acres (three or four acres of forested wetlands on the site) into the protocol. He couldn’t get the phosphorus reduction to work — the regulations would have taken him down to just 14 units.

DNREC’s Lyle Jones said there was clarification in the PCS — if the developer implemented all practicable Best Management Practices (in this case, some additional phosphorus-reducing equipment), he said Ford’s hypothetical plan for 72 units would probably be approved.

Ford said he’d been told DNREC officials could exercise discretion, sort of like granting a variance. However, he said he wasn’t comfortable with that, and probably no potential developer would be willing to invest and move forward on a plan without a clear idea regarding its chances.

“Discretion doesn’t work,” he said. “They have to give me something quantifiable.”

Jones stressed the protocol was just a tool, not a definitive measuring stick.

“We know septic is going to discharge phosphorus, but we don’t know how soluble it’s going to be,” he pointed out. “Once it’s discharged, it could be absorbed, it could migrate to the bays — or it could just stay there on the site.”

He also said there were some developers and planners involved at the outset when the Tributary Action Teams (TATs) formed up in 1998, but they’d all drifted away since then.

Jones said the department was still shooting for a public hearing on the new regulations this fall, after which the PCS will make its way to Hughes’ desk for enactment.