The complexity of a proposed new wetland buffers and drainage ordinance came to light during a Jan. 11 Sussex County Council public hearing. Many who testified during the nearly five-hour hearing said there is no reason to make it complicated.

And the hearing is not over. Council voted to continue the public hearing during its Tuesday, Feb. 22 meeting to allow time for more public comment by those who have not testified.

Several former working group members and members of the public suggested council should delete Section 10G of the ordinance allowing developers to take advantage of buffer options.

The section was added by county staff after a council-appointed working group was disbanded. The working group of stakeholders met nine times between February and August 2019 to develop a new draft ordinance, which was presented Sept. 10, 2019, to county council.

Under the section, developers would have several options which could result in buffer widths narrower than what is required under the old ordinance.

“Could a buffer be less than what is in code now?” asked District 4 Councilman Doug Hudson.

“In certain circumstances, the answer is yes,” replied county engineer Hans Medlarz.

The incentives in Section 10G are designed to offer developers more flexibility, including conservation easements for off-site property preservation in the same watershed, and to provide more options to developers who preserve existing forests as buffers.

Vince Robertson, assistant county attorney, presented the final draft to council and outlined amendments approved by the planning and zoning commission, which has recommended approval of the ordinance.

Among those amendments are a requirement to indicate walking trails, and what materials will be used, on a subdivision's final site plan, removal of the selective cutting option in buffers but still allowing control of invasive species, and clarifications stating that isolated wetlands are not considered nontidal wetlands, and agricultural ditches are not subject to the ordinance.

Robertson outlined some of the most significant changes to the old ordinance, including wider and new buffers, a more defined list of what can be placed in a buffer, a requirement for a resource maintenance plan, incentives to preserve existing woodlands, and removal of building lot lines in buffers.

Remove the options

Chris Bason, director of the Delaware Center for the Inland Bays and a member of the working group, commended county officials for updating the ordinance. He said the new buffer widths and many of the other regulations included in the ordinance will provide more protection for the county's wetlands and waterways.

However, he said, there should be no options available to reduce the width of buffers. In addition, he said, because wooded areas are the best buffers, forests should always be retained, and new forests should be required to be planted where they don't exist in buffers.

He said Section 10G should be eliminated from the ordinance. “The options would actually allow for no buffers along tidal waterways in some cases. It's not worth trying to fix this section,” Bason said.

Bason said, in comparison, even with the proposed amended ordinance, Sussex County's buffer regulations would not match other jurisdictions, including New Castle and Kent counties, New Jersey, and critical areas in Maryland. For example, he said, those jurisdictions all require forested buffers or revegetated forested buffers along wetlands and waterways. The Sussex ordinance allows for meadow, grassland buffers as well as forested buffers.

He said taking all proposed buffer widths into account, the average minimum buffer width in Sussex County would be 53 feet, compared to 116 feet in the other jurisdictions.

Bason said the ordinance would allow developers to retain an existing forest in a buffer and receive a 50 percent buffer-width reduction and a reduction in a development's perimeter buffer. And retaining a forest connected to but not within a buffer also allows for a 50 percent buffer-width reduction.

“I'm trying to understand the need for resource buffer options,” said Sussex Alliance for Responsible Growth spokesman Rich Borrasso of Milton, another working group member. “It's a solution looking for a problem,” he said.

Borrasso said SARG supports the following: removal of Section G; requiring reforesting of all meadow buffers and/or prior forest buffers that have been deforested in the past five years prior to the date of an application; approval of the wetland buffers working group recommended water-resource buffer widths with an exception to allow buffer averaging; establishing criteria for posted signs delineating the upland boundary of buffers that clearly state no clearing or disturbance permitted; and establishing a schedule of financial penalties for cutting and/or removal of trees or shrubs within a buffer, filling or hard-surface construction, and all other violations of non-permitted uses.

Borrasso also said if county officials are serious about preserving forests, a separate study is needed for tree conservation throughout the county.

Carol Stevens of Lewes agreed with the removal of Section 10G. “It's wide open to interpretation, with loopholes,” she said. In addition, she said, the working group should be reconvened to clean up the proposal.

However, environmental scientist Ed Launay, another working group member, said he supported Section 10G with some changes he has proposed to county staff.

He said regulations pertaining to off-site easement areas and conservation easements need more clarification, including what is prohibited and penalties for violations, who is the designated steward of an easement and what role the county has in the easements.

He said it needs to be made clear that farming activities are prohibited in buffers.

Launay said one of the key goals of the new ordinance is to discourage major alterations to land, including forest clear-cutting, before an application is filed. He said adding larger buffer widths for development where major changes to a parcel occur before an application could dissuade that practice.

In addition, Launay said, the working group's recommendations did not include walking trails in Zone A areas of buffers, and that option should be deleted from the ordinance.

What's in the ordinance?

Buffer widths have been increased, and areas not previously protected have been added.

Changes include an increase from 50 feet to 100 feet for tidal water and wetlands buffers, and 30 feet for nontidal wetlands and streams. The county currently does not require buffers along nontidal waters and wetlands.

Under the proposal, a buffer is divided in half – Zone A, the area closest to the resource with the most protection, and Zone B. A list is provided for what activities and construction are permitted in each zone.

For example, sewage disposal plants, landfills and waste storage, and amenities such as pools and clubhouses would not be permitted in either zone. Anything not listed in the ordinance is prohibited.

Buffer averaging would be permitted, allowing a developer or landowner to reduce buffer width in one area if an increase in buffer width is provided in another area. Averaging would be permitted only in Zone B.

The proposed ordinance includes:

• Property lot lines would no longer be permitted as part of a buffer

• Tidal waters and tidal wetlands: 100 feet

• Perennial nontidal rivers and streams: 50 feet

• Nontidal wetlands: 30 feet

• Intermittent streams: 30 feet

• Tax ditches: no buffers required

• Resource buffer management plans in community covenants

• Incentives to allow developers more flexibility in design

• Preservation of established native forests and non-forested meadows to eliminate clear-cutting.

A better definition of buffers and their function is included in the new ordinance – to enhance water quality, provide habitats, and provide flood mitigation and improved drainage.

Enforcement and penalties

Jeff Seemans, a retired Milton landscape architect who was a planner in New Castle County, said the ordinance lacks enforcement and penalties.

He said provisions could be made requiring the delineation of buffers with highly visible signs, and fines could be added with a dollar amount for each square foot of violations of tree clearing, fill-in and construction of hard surfaces within buffers. “It needs to be high enough to get somebody's attention,” he said, adding that fines in Maryland range up to $10,000 with mitigation at a 4-1 ratio for any disturbance in buffers.

In addition, he said, when a new ordinance is adopted, it should go into effect immediately. “If not, there will be a flood of applications, resulting in more lost trees,” he said.

THE NUMBERS

• On average, 51 percent of forested land on parcels was cleared in developments approved from 2017-19.

• From 2010 to 2017, Sussex County had the third-highest number of homes built in a 10-year flood risk zone of any ocean coastal county in the United States.

• 2021 was a record year for fish kills in the Inland Bays, with 15 recorded resulting in the loss of about 2 million fish, mostly menhaden, due to low dissolved oxygen in waterways.

Source: Delaware Center for the Inland Bays

Read the ordinance at: tinyurl.com/2p9fdrfv.