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Roslyn Eckles says if a new pollution control plan is implemented, people in her Jimtown neighborhood fear they could lose their homes.
That’s because the strategy calls for homeowners, at the time they purchase a home in the watershed, to replace failing septic systems with technologically advanced ones to remove more nitrogen from wastewater. The advanced systems cost more than traditional ones, with estimates ranging from $10,000 to $21,000.
The Department of Natural Resources and Environmental Control (DNREC) held a public hearing on the latest version of the Inland Bays pollution control strategy Monday, June 23.
Hundreds of private citizens and developers convened at Georgetown’s CHEER Center and spoke out against the plan with its new septic system requirements and variable-width water quality buffers. About 16,000 homes in the watershed have septic systems, said Katherine Bunting-Howarth, director of DNREC’s Division of Water Resources.
It was standing room only by the time the hearing opened. Hearing officer Robert Haynes said the crowd of concerned citizens was the largest he had seen at a DNREC public hearing.
Citizens railed against development, criticized state environmental officials’ plan as too expensive and questioned the legality of the proposal.
Environmental officials stressed time is key in implementing the revised strategy to protect and restore the bays.
The fifth version of the pollution control strategy since February 2005 was released last month and environmentalists say the process has gone on too long.
Ed Lewandowski, executive director of the Center for the Inland Bays, said public sentiment is necessary to protecting the bays. “We must convince a majority of you on an emotional level not that DNREC is doing the right thing, but that this is the right thing to do,” he said. He displayed a clear jar of cloudy, green-tinged Inland Bays water for the audience to see and said he hoped most did not find polluted, unhealthy bays an acceptable condition.
Ron Wuslich, chairman of the Citizens Advisory Committee for the center, said a young man had asked him to tell the department and the audience at the meeting that people want Inland Bays full of fish and crabs, safe to swim in and clear to walk in. “Why do those words sound like wishful thinking?” Wuslich mused.
The pollution control strategy is aimed at cutting nutrient pollution to the Inland Bays to alleviate conditions such as clouding, toxic and nuisance algae blooms and low dissolved oxygen.
The strategy includes variable-width buffers, a provision absent from last year’s version, on new developments as a low-maintenance, reliable way to keep nitrogen from entering the Inland Bays.
It also includes the septic system regulations that Bunting-Howarth says are a compromise from earlier versions. The department now wants septic systems inspected by certified inspectors at the time of sale, she said.
Problematic systems would have to be serviced and failing ones replaced under the regulations. But homeowners say they can’t afford the additional cost of nutrient-removal technology above and beyond their standard systems.
Cost is a grave concern to many who attended the hearing, where emotions ran high and many opposed the agency more than the strategy.
Septic upgrade cost concerns
Ruth Briggs King, executive vice president of the Sussex County Association of Realtors, said her group wants to see more specifics, including who is to notify buyers of the septic-system requirements.
“We are very concerned about the cost associated with new systems,” said Briggs King.
She said the majority of Sussex Countians have low-to-moderate incomes and would require assistance with upgrades, which could add thousands of dollars to the price tag of replacement systems.
Rich Collins, executive director of the Positive Growth Alliance, sent out a letter to watershed residents saying DNREC noted a 70 percent failure rate in the high-technology systems.
Bunting-Howarth said the department found about 33 percent of the advanced systems were problematic – but that problematic does not mean failing. Problematic systems were not under maintenance contracts, she said, indicating the systems could have been due to be pumped out or in need of filter changes or similar routine maintenance.
“So we know we need operation and maintenance contracts,” she said.
But, Jimtown homeowner Eckles said the cost to upgrade a septic system would have a tremendous impact on her neighbors. “We are being asked to incur costs that will put people’s homeownership at risk,” she said.
Bunting-Howarth said requiring septic-system inspections at the time of sale is another compromise made by the department to help accommodate homeowners.
Inspections would come at a time when monies are available for repairs and upgrades, plus many mortgage companies are already requiring similar inspections, she said.
Speaking after the meeting, Sen. Gary Simpson, R-Milford, said, “People can’t afford this type of replacement and inspection.”
On Tuesday, Rep. Joe Booth, R-Georgetown, said, “From serving on the Joint Finance Committee, I can tell you we don’t have $25 million to implement this.” He said the plan needs to better define who pays.
Booth questions whether the cost of upgrading septic systems outweighs the environmental benefits.
DNREC says poorly performing septic systems contribute about 11 percent of nonpoint source nitrogen to the Inland Bays.
There are about 16,000 septic systems in the watershed.
Property rights
Other speakers said the regulations represent an intrusion into private property rights. Some said DNREC officials testing septic systems on private property was tantamount to trespassing, while others said buffers constitute a taking of developable land.
Rep. Gerald Hocker, R-Ocean View, said his constituents do not trust the department and Monday’s hearing was demonstrative of the public’s feelings toward DNREC.
“People are upset with the powers DNREC has and want it controlled. The meeting Monday showed that and sent that message. The legislators there saw that message as well,” Hocker said.
Dave Jacobs moved to the area from New York. “The Fourth Amendment is the right to be secure in property and papers. Are we that close to a police state?” he asked, questioning how DNREC could come onto private property to test septic systems.
Real estate appraiser Curt Brown said, “This buffer zone is a taking of your property rights by people who are not authorized to do so.”
Bunting-Howarth said DNREC sends courtesy letters to people before going to test their septic systems and sees the program as a good opportunity to educate the public.
“We have been cognizant of the importance of property rights to the people of Delaware for the nine years we have worked on this. That’s why we have approached it this way,” she said.
She explained that buffers are required on developing properties, not ones that are already developed.
There are also clauses in the regulations to allow waivers from the septic-system regulations for financial hardship or health reasons, she said.
“We all have a right to clean water,” she said.
Overdevelopment cited
Many residents said too much development and poorly planned development are the causes of the problems in the Inland Bays. But not every critic of development was a fan of the regulations.
John Timmons, a soil scientist who said he grew up in the watershed, said those who approve developments should carefully consider soil composition. Soil type and the height of the water table can make a difference in how quickly pollution reaches water, he said.
“It is almost impossible for a farmer to do anything with a wetland. It seems odd that a developer can use them,” Timmons said, noting that in his 14-year absence from the area, many wetlands disappeared under developments.
Steve Callanen, representing the Sierra Club, Lower Delaware chapter, said a lot of speakers railed against development as a basic cause of problems in the bays.
“If you’re concerned about development, the basic thing you need to be concerned about is land use. Sussex County Council has ultimate control,” said Callanen, one of the few speakers who came to DNREC’s defense at the hearing, saying DNREC does not make land-use decisions.
What’s next?
Public comments will be taken until 4:30 p.m., Monday, June 30. Comments can be sent to John Schneider at john.schneider@state.de.us.
Then the hearing officer will examine the record and make a recommendation to DNREC Secretary John Hughes, who will decide whether the regulations should be adopted.
Local legislators already have their opinions on the regulations. Booth said the public hearing showed DNREC needs to educate the public. Coming out of the hearing, he said he heard a near-unanimous opinion that people do not want DNREC representatives on their property and have a significant amount of concern over the cost.
He said over the years the pollution control strategies have changed considerably. “I don’t think we’re there yet, but we’re close,” Booth said. Simpson, however, said the plan needs to be taken back to the drawing board.
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Does DNREC have the authority to promulgate the regulations?
Now that state environmental officials have a version of the Inland Bays Pollution Control Strategy ready to be examined and possibly approved by DNREC Secretary John Hughes, questions are arising over the department’s legal authority.
Katherine Bunting-Howarth, director of the Division of Water Resources, said, “We’ve asked that question, and it is our opinion that we do.” She said the department has consulted the Office of the Attorney General and received confirmation that it has the authority to promulgate the regulations.
On Wednesday, June 25, the House of Representatives passed a concurrent resolution requesting the department carefully study proposed regulations to see if they might come in conflict with state laws granting counties authority to establish zoning.
The request in the resolution applies to buffer regulations as well. Reps. Joe Booth, R-Georgetown, and Rep. Gerald Hocker, R-Ocean View, chairman of the house energy and natural resources committee, co-sponsored the resolution.
Booth said following the public hearing, “I think DNREC is exceeding its authority.” He said Ron Smith, attorney for the majority caucus in the House of Representatives, had been questioned on the matter and agreed the department is exceeding its legal authority. Jody Hudson said, “DNREC is not authorized to make rules, so they shouldn’t be doing it.”
Hocker said the majority of opinions from the public hearing were against the regulations and for the secretary of DNREC to sign them would be to ignore the public.
Rich Collins, executive director of the Positive Growth Alliance, also said environmental officials are outside their authority.
DNREC officials maintain that their efforts are legal. Hughes also cited the Office of the Attorney General when he spoke at an informational meeting on the regulations in May.
He said at that meeting it would be shameful if the regulations were not put in place this time.
Bunting-Howarth said litigation over the regulations is a concern because her department wants to see the regulations implemented sooner rather than later.
She said the department will continue to work with the Department of Justice and the deputy attorney general to make sure it has the best legal opinions available.
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