County wins contentious suit over Pollution Control Strategy

Date Published: 
March 4, 2011

The Delaware Superior Court this week 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 ruling was handed down Friday, Feb. 25, by Judge T. Henley Graves.

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.

In his decision, Graves wrote, “The counties and municipalities are considered agencies of the State, Hayward v. Gaston, supra, and consequently are not in any way subordinate to another State agency in the zoning arena. Of course, the General Assembly has the power to grant agencies such as DNREC powers to regulate land use and utilization, and it has done so.”

He referenced DNREC’s exclusive power to regulate public and private beaches “pursuant to the Beach Preservation Act,” as one area in which DNREC has such power. He also stated that, “if it desires, the General Assembly can give DNREC the power to regulate the use and utilization of land in the Inland Bays watersheds. It has not done so.”

Sussex County Council members, in response to the ruling, issued a collective statement, stating, “Sussex County Council and its legal counsel, Moore & Rutt P.A., are pleased that the Delaware Superior Court has ruled in the County’s favor concerning the authority of DNREC to regulate land buffers surrounding the Inland Bays. The court found that the DNREC regulations known as the Pollution Control Strategies were an attempt to usurp the local authority to zone land. The Superior Court ruled that the Delaware General Assembly has granted the primary land-use authority to the counties and municipalities, not State agencies.”

“The court’s decision affirms what was the central argument in this case – that local land use decisions rest with local governments. Thanks to the court’s ruling, that will continue to be the case in Sussex County and throughout the state of Delaware.”

DNREC officials disagreed with the ruling, stating, “DNREC adopted these regulations, which apply only to new development, as a cost-effective way to improve water quality in the Inland Bays. Run-off of nitrogen and phosphorous can cause an overabundance of algae and other plant life in our waterways, which leads to poor conditions for fish and shellfish. We disagree with the Court’s opinion and will be reviewing our options.”

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 conclusion, 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,” are void and ordered they be stricken, while the remaining provisions stay valid.

In an end note, he also stated, “This Court does not doubt DNREC’s good intentions in this case. It is clear DNREC is concerned about the future of this State’s resources and wishes to preserve those resources for future generations. However, DNREC’s expertise and good intentions do not give it power it does not otherwise have.”

Chris Bason, deputy director of the Center for the Inland Bays – whose Inland Bays Tributary Action Team was formed in 1998 and was the first in Delaware – added thoughts from the Center going forward after the ruling.

“The Center is disappointed in the ruling because buffers are very effective at filtering pollution from the water, and they can also protect property from flooding and erosion,” he said. “We encourage DNREC to make up for this loss of pollution removal by actively enforcing the provisions of the Pollution Control Strategy that remain in effect. And we are hopeful that the County recognizes its obligations to the cleanup plan for the Bays by adopting a more comprehensive water quality buffer ordinance.”

For more information on Delaware’s Pollution Control Strategy, or to view Section 4 and 5 in their entirety, visit http://www.dnrec.state.de.us/water2000/Sections/Watershed/ws/ib_pcs.htm online. For more information on Tributary Action Teams, visit http://www.dnrec.state.de.us/water2000/Sections/Watershed/ws/tat_index.h....