Stormwater regs remain in place as DNREC awaits decision from Supreme Court

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DNRECThe Delaware Department of Natural Resources and Environmental Control has won a tempory victory in a battle over stormwater regulations.

DNREC Secretary David Small withdrew  emergency sediment and stormwater management regulations put into effect October 16 by the department.

This came as a result of a Superior Court stay October 27 allowing the 2013- 2014 regulations to remain in effect until the Delaware Supreme Court can rule on DNREC’s appeal of the lower court’s decision invalidating the regulations on procedural grounds.

A Sussex County Superior Judge had struck down the regulations, citing a lack of technical materials.

DNREC had adopted interim emergency regulations  claiming that throwing out the regulations would affect projects already in the works.

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“We are pleased with the court’s decision to allow the new regulations to be in effect while we move to resolve the issue long-term. We can continue to review and approve plans in a timely manner and allow landowners, developers, contractors and homeowners to maintain schedules and commitments to customers, lenders, agencies and others involved in these important projects,”  Small stated.

While the appeal to the Supreme Court proceeds, DNREC is reconvening a Regulatory Advisory Committee to consider potential changes to the regulations and technical documents and to address implementation issues that have been raised during the past 18 months since the new regulations have been in place.

“Our goal with this process is to address the concerns raised by Superior Court and adopt the technical document as regulations while also making changes to bring clarity to the sediment and stormwater requirements,” said Secretary Small. “We believe that some changes will happen quickly while others may take longer deliberation before they can be made.”

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, a DNREC release stated.

The regulations had been under fire by critics who claimed the rules were illegally imposed by DNREC. One critic, Rich Collins, now a state legislator and former head of the Positive Growth Alliance in Sussex County, praised the original Superior Court decision.

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