CONTACT: Michael Globetti, DNREC Public Affairs, 302-739-9902
DNREC adopts interim emergency sediment and stormwater
regulations as appeal is filed with state Supreme Court
DOVER (Oct. 16, 2015) – The Department of Natural Resources and Environmental Control has adopted interim emergency sediment and stormwater management regulations – in effect reinstating the 2014 regulations invalidated by a recent Superior Court decision, and for the first time adopting supporting technical materials as regulations, consistent with the Court’s ruling. 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 impacts from flooding and protecting public health, safety and welfare.
Although some have argued that DNREC should revert to previous versions of the regulations, the Court’s opinion was silent on the matter. 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. In addition, 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 Oct.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.
“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,” said 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 prescribed by state law that will include convening a regulatory advisory committee and holding a public hearing for taking comment. The agency also intends to propose changes to the technical document that will address a number of concerns raised during the past year while the stormwater and sediment regulations struck down by Superior Court were in effect.
Delaware’s sediment and stormwater 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.
According to Delaware law, “The General Assembly further finds that accelerated stormwater runoff increases flood flows and velocities, contributes to erosion, sedimentation, and degradation of water quality, overtaxes the carrying capacity of streams and storm sewers, greatly increases the costs of public facilities in carrying and controlling stormwater, undermines flood plain management and flood control efforts in downstream communities, reduces groundwater recharge, and threatens public health, welfare, and safety.”
Vol. 45, No. 350