DNREC plans appeal of Superior Court decision as it tweaks storm water regulations

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DNRECThe Department of Natural Resources and Environmental Control confirmed Friday it has adopted sediment and storm water management regulations for construction and other purposes, after a lower court decision that threw out the program.

The department said reverting to previous regulations would cause serious problems for state highway and other projects already in the pipeline.

According to a release, the DNREC decision,  in effect, reinstates the 2014 regulations thrown out by the  recent Superior Court decision, and adopts technical materials. The lack of such materials was cited as one of the factors in the ruling.

DNREC also announced it will appeal the lower court ruling to the Supreme Court.

Contractors and developers have claimed regulations on the stare and county level are cumbersome and can delay projects for extended periods.

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The technical materials include design and construction standards and specifications intended to assist in complying with the regulations. This action will allow development projects to move forward through the review and approval process, reducing potential impact from flooding and other events,  the  DNREC release stated.

Although some have argued that DNREC should revert to previous versions of the regulations, the Court’s opinion was silent on the matter, the DNREC  release noted.

However, many projects submitted under the 2014 regulations would not meet standards under the previous 2006 version of the regulation and would need to be redesigned. Also, prior regulations were implemented in conjunction with supporting technical materials, a practice criticized by the Court in its opinion.

More than 300 plans for a variety of projects, including public schools, highway improvements, and both commercial and residential construction, were under review when Superior Court issued its opinion October 7.

The court’s opinion invalidated the 2014 regulations, leaving what DNREC believes to be a regulatory vacuum. DNREC has also filed a motion seeking a delay in the implementation of the Court’s opinion, along with an appeal to the Delaware Supreme Court, the release stated.

“We obviously respect the court’s opinion, but without any guidance on how we should review plans, we are compelled to adopt emergency regulations to restore certainty to the process. This action enables us to continue to review and approve plans and allow landowners, developers, contractors and homeowners to maintain schedules and commitments to customers, lenders, agencies and others involved in these important projects,” stated DNREC Secretary David Small.

The interim regulations, adopted under the state’s Administrative Procedures Act,  will be in effect for 120 days and may be extended for an additional 60 days.

During the effective period of the emergency regulations, DNREC intends to adopt the regulations and technical document through a process that will include convening a regulatory advisory committee and holding a public hearing that will hear comments.

The agency also intends to propose changes to the technical document that will address some concerns raised during the past year while the storm water and sediment regulations struck down by Superior Court were in effect.

“Delaware’s sediment and storm water management regulations are a vital tool in the state’s efforts to improve water quality and protect public health, safety and property from flooding. Under federal law, Delaware is required to have a valid erosion and sedimentation program in place for all construction activities, and Delaware’s erosion and sedimentation program must have enforceable regulations in place to be valid,” the DNREC release stated.

The Superior Court ruling had earlier drawn praise from long-time Sussex County pro-growth advocate and now State Rep. Rich Collins, R-Millsboro.

Collins had formerly headed the Sussex County Positive Growth Alliance. The property rights group previously criticized state regulations and also questioned the effects of climate change and rising seawater levels. Collins said he had questioned the stormwater regulations before the revisions went into effect.

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