DNREC is again adopting interim emergency sediment and stormwater regulations in response to a Delaware Supreme Court decision Friday.
The state Supreme Court upheld last fall’s Superior Court ruling - which threw out laws requiring developers to craft a stormwater runoff plan before starting construction on a site. The state’s environmental agency appealed that decision, which found that DNREC violated state law two years ago by adopting new stormwater regulations without explaining how to comply with them in advance of implementation.
Richard Abbott is the plantiff’s attorney. He says DNREC would have been within the law if it had incorporated technical documents that outlined requirements for developers to obtain permits. But since it didn’t, he says what the agency did was illegal. He also argues the standards imposed on developers were too rigorous.
“You could enact environmental regulations that could shut down business and enterprises in the entire state of Delaware. And you could argue that means we’ll have perfectly clean air and perfectly clean water. But of course we’ll have no jobs and nobody will be able to use their private property. So not every environmental protection initiative is a good one,” said Abbott.
Such rules regarding stormwater runoff would pose delays especially for those looking to build large scale poultry operations. Developers say there isn’t a straightforward way to calculate the amount of runoff generated by chicken houses - and feel DNREC didn’t give them time to raise those concerns when it passed the stormwater rules initially.
These temporary regulations will reinstate the 2014 regulations that were invalidated by the Superior Court. The rules will be in effect for 120 days and could be extended for another 60 days.
Neither the ruling on Friday or the one in September provided any specific guidance on how DNREC should proceed.
DNREC Secretary David Small says he’s disappointed with the state Supreme Court’s decision, but is looking for ways to move forward.
We are working with a regulatory advisory committee to look at potential changes and create additional flexibility within the regulations and allow people more alternative ways to be able to reach compliance So we’re hoping all of that input will feed into the regulatory process and we can make changes," said Small.
