County wins battle over DNREC over PCS regs

The Supreme Court of the State of Delaware this week affirmed the March 2011 decision of the Delaware Superior Court that ruled in favor of Sussex County in the case of Sussex County vs. the State of Delaware Department of Natural Resources and Environmental Control (DNREC), over the agency’s authority to impose its Pollution Control Strategy.

The County joined several private landowners – including White Farm LLC, BAR-SGR LLC, BAR-RAB LLC, Wayne Baker LLC and Baxter Farms LLC – in the suit, which questioned DNREC’s authority in promulgating a Pollution Control Strategy, specifically concerning land buffers and zoning throughout the Inland Bays watershed.

Then-DNREC Secretary John Hughes adopted the Pollution Control Strategy regulations in October 2008, by Secretary’s Order, after years of the department planning and writing the regulations.

The regulations contain three main components, “a requirement for performance standards for new or replacement onsite wastewater treatment and disposal systems, inclusion of criteria in sediment and stormwater plans to reduce nutrients in stormwater runoff, and a requirement that any new major land development include a riparian buffer area to reduce nitrogen and phosphorus pollution from stormwater runoff and groundwater flows into certain designated Inland Bays’ waters within the watershed.”

In his judicial conclusion in February 2011, Judge Henry T. Graves stated DNREC’s “general authority, to control development and the use of State resources to protect the environment, is insufficient to authorize DNREC to zone in the situation at hand. DNREC has exceeded its authority, and the regulations, to the extent they regulate land use and utilization in the inland bays watershed, are void.”

He declared that the provisions of the Pollution Control Strategy under Section 4, as well as “those adopting buffer requirements under Section 5,” were void and ordered they be stricken, while the remaining provisions have remained valid.

In their appeal of Graves’ findings, DNREC officials argued that the “Supreme Court erred as a matter of law.”

DNREC stated that the requirements for 100-foot buffers do not constitute zoning “because they were promulgated for pollution control purposes only.” They also stated that they do not conflict with any laws of the state, including Sussex County’s own ordinance, which requires a 50-foot buffer.

In the decision, the Supreme Court of Delaware justices wrote that “Sussex County responds that there is a direct conflict between the PCS regulations and the Sussex County zoning ordinance for at least three reasons: that allowing the regulations to stand would effectively establish the first 50 feet as the Sussex County buffer and the second 50 feet as the DNREC buffer; second, the Sussex County buffer can be entirely within an existing lot, and Section 4.5 explicitly prohibits the extension of lot lines into the buffer area; and third, the PCS regulations prohibits submission of site plans unless they comply with the regulations, whereas the Sussex County Zoning Ordinance has an established procedure for the submission, review and approval of site plans from the preliminary stage to final recording. “

The justices wrote they were persuaded by the County’s arguments and “that we have concluded that DNREC’s ‘no zoning’ argument is contradicted by language in those portions of the PCS regulations that are at issue. Therefore, the judgment of the Superior Court must be affirmed.”

DNREC Secretary Collin O’Mara said while he and other DNREC officials are disappointed in the ruling, they are committed to their mission of conserving and protecting Delaware’s water resources.

“The Sussex County Inland Bays have suffered from decades of runoff pollution that has greatly diminished our fish and shellfish populations and ravaged beneficial aquatic plant life,” he said in a statement.

“Today, more than 85 percent of Delaware’s water pollution comes from runoff sources. The most cost-effective way to clean up the bays is to ensure future developments are separated from our waterways and bays by enough vegetation to filter out pollutants from fertilizer and other sources before they reach the water.

“The Supreme Court’s decision today takes this solution off the table,” O’Mara said. “While we are disappointed by the decision, which may require DNREC to find other, more costly means of ensuring these waters remain safe for fish, wildlife and the many Delawareans who use the bays every day, we remain committed to fulfilling our statutory responsibility for the ‘conservation and protection of the water resources of the state.’”

Representatives of the Inland Bays Foundation – a newly formed non-profit that advocates and promotes the restoration of the Inland Bays watershed by conducting public outreach and education, tracking restoration efforts, encouraging scientific inquiry and sponsoring needed research – expressed their disappointment, as well.

“In light of the Delaware Supreme Court’s ruling that buffers are a zoning issue and fall under the jurisdiction of Sussex County, and considering that 50-foot buffers are inadequate to filter pollution and runoff into the inland bays, DNREC will have a difficult time, at best, meeting the federal water quality standards established by the federal Clean Water Act of 1972,” they said of the standards intended to ensure swimmable and fishable bays.

They added that the EPA must now determine whether Delaware can comply with the requirements without sufficient land-use authority at the State level to allow it to mandate adequate buffers.

Sussex County officials issued a statement on the ruling, as well: “Sussex County Council and its legal counsel, Moore & Rutt P.A., are pleased the Delaware Supreme Court has affirmed the Superior Court’s ruling concerning the authority of DNREC to regulate land buffers in the Inland Bays watershed. Once again, the courts have agreed the buffer requirements in the Pollution Control Strategy went too far and, if enacted, would have deprived local governments and their constituents of the right to make their own decisions.

“From the beginning, this case has been about who had the authority to make such critical land-use decisions. The Supreme Court’s ruling affirms that DNREC lacks the authority to engage in land use and the County has the exclusive jurisdiction over land-use decisions at the local level.”

For more information on Delaware’s Pollution Control Strategy, or to view Section 4 and 5 in their entirety, visit online.