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DNREC’s Coastal Zone regulations appear to please no one

Delaware Public Media

Are DNREC’s new plans to regulate the Coastal Zone too restrictive to attract new business to 14 industrial sites, or are they too lax to protect the environment there?

The department’s draft regulations appear to have riled both the business and environmental communities, judging by comments received in response to DNREC’s plan to implement a new law that opens up the sites to new industrial development.

Fourteen sets of comments received by DNREC’s July 9 deadline suggest that, despite the efforts of an 18-member Regulatory Advisory Committee representing a range of interests to propose regulations on the Coastal Zone, no one is happy.

Attorneys representing Sunoco, whose Marcus Hook terminal on the Pennsylvania border includes 45 acres in Delaware, said DNREC’s plan conflicts with the intent of the Coastal Zone Conversion Permit Act (HB190) of 2017 which amended the original Coastal Zone Act of 1971 to allow new “responsible, productive reuse” of the sites.

In fact, Sunoco’s letter said, the draft regulations impose “burdensome” requirements that are not necessary to achieve the protective aims of the new law.

“These burdens will likely stifle serious consideration by potential developers of the heavy industry sites in the coastal zone, the preponderance of which are underutilized and blighted,” the letter said.

Credit Delaware Public Media
Delaware Public Media
D2 Management joined with Sunoco in calling some of the draft Coastal Zone Conversion Permit Act regulations 'burdensome.'

The Sunoco letter, which was also written on behalf of D2, a real estate company that develops environmentally challenged properties, also slammed a part of the regulations that would limit the duration of a Coastal Zone Act permit to 20 years.

It argued that the 20-year period has no basis in the original Coastal Zone Act or the amended law, and is likely to deter companies from seeking to do business there.

“An applicant considering spending hundreds of millions, if not billions, in connection with a proposed conversion of a site within the coastal zone will think twice before committing these assets and resources if there is a risk that a renewal permit will not issue following the expiry of this twenty year period,” it said. “If the Board does nothing else, it should reject the proposed amendments” on the 20-year period.

But environmental groups accused DNREC of weakening environmental protections for the sites, restricting public comment, and ignoring an earlier requirement to set environmental standards in the Coastal Zone.

Delaware Audubon accused the department of rushing the regulations, not providing enough public transparency, and failing to propose meaningful offsets for pollution caused by any new industries that occupy the sites.

DNREC’s proposed offsets are based on previous facility closures and efficiency improvements rather than real-time pollution cuts elsewhere in Delaware, Audubon’s letter says. It opposes the current offset plan, and urged DNREC to require offsets from “genuine projects.”

Audubon said it opposed the new law, and refused to join the Regulatory Advisory Committee because it viewed that as the same flawed process that DNREC used when it allegedly failed to honor a 1998 memorandum of understanding that led to the previous regulations the following year.

“These regulations under consideration misrepresent the goals of HB 190, just as the 1999 regulations failed to incorporate the outcome of the MOU,” Audubon said. “We lack confidence in DNREC and its ability to maintain the public’s trust in executing its duties in the implementation of the Coastal Zone Act.”

DNREC’s process of forming the regulations “intentionally and willfully” excluded the “working public”, leading to numerous inaccuracies and failing to communicate the goals of the new law, Audubon said.

It said it had been given little more than a month to review the document, and was refused an extension when it asked for 30 more days.

Credit Delaware Public Media
Delaware Public Media
The Ocean Port Industries site just north of Claymont is among those eligible for development under the Coastal Zone Conversion Permit Act .

The critical tone of many comments contrasts with the consensus reached by the RAC over almost a year, suggesting that members were broadly satisfied with the shape of the regulations. In June, DNREC accepted the panel’s recommendations.

Rep. Ed Osienksi (D-Newark), lead sponsor of HB190, said in June that the committee’s recommendations indicated that a broad range of voices were heard during the RAC process. Osienski did not respond to a request for comment on the new criticisms.

The Delaware Ornithological Society was one of several critics of DNREC’s plan to require future Coastal Zone companies to submit plans for protecting their facilities from sea-level rise over 30 years. That’s too short a time frame given the uncertainties of SLR, and should be extended to 50 years, the society said.

The DOS urged DNREC to add a requirement that future Coastal Zone site occupants declare plans for any infrastructure that would impede the inland migration of coastal marshes in response to sea-level rise – a process that scientists say is an essential part of defending Delaware’s coastline from rising waters.

The society also accused DNREC of eliminating environmental goals and indicators from the new regulations. It said such indicators were an important part of the previous rules in 1999 but were never fully developed then, and that the proposed new rules formalize that position. That action is outside of the regulatory scope granted to the agency under the CZCPA, the society’s letter said.

“The birds and other wildlife of Delaware’s Coastal Zone deserve our best efforts at protection, so that they may be enjoyed by future generations of Delawareans,” the society said. “To do otherwise mars the legacy of Delaware Bay conservation that our predecessors worked so hard to protect.”

Ken Kristl, an environmental law attorney at Widener University, and a frequent critic of the new law, also attacked DNREC’s omission of environmental indicators as showing that the protection of Coastal Zone sites would be weakened under the new regulations.

“DNREC has either forgotten or wants to ignore this history selectively and simply wipe environmental goals and indicators out of the CZA permitting decision process,” Kristl wrote. “The effect of removing goals and indicators is to weaken the CZA protections by avoiding the use of a metric deemed central to the creation of the current regulations.”

View the sites open to new heavy industial development under the Coastal Zone Conversion Permit Act here.

But a representative of the business community urged DNREC to remove references to environmental indicators simply on the grounds that they are vague.

Robert Whetzel, an attorney who represented the Delaware State Chamber of Commerce on the Regulatory Advisory Committee, said the draft regulations don’t define “environmental goals and indicators” despite requiring permit applicants to say how their plans would affect those goals.

“Since it is undefined, it should not be included in the regulations, to uncertainty and vagueness in the permitting process,” Whetzel wrote.

He also urged DNREC to remove a reference to a “catastrophic incident” in a section on financial assurance, arguing that the new law doesn’t require financial assurance for such an incident, and noting that the RAC also avoided the language in its recommendations.

DNREC spokesman Michael Globetti declined to say whether officials would respond to the comments but said they will be “thoroughly vetted and reviewed” before being finalized by Oct. 1.

Jon has been reporting on environmental and other topics for Delaware Public Media since 2011. Stories range from sea-level rise and commercial composting to the rebuilding program at Prime Hook National Wildlife Refuge and the University of Delaware’s aborted data center plan.