Judge grants stay for new stormwater regulations
A Superior Court ruling overturning state stormwater regulations has won praise from some developers and legislators, but state officials say the decision could threaten a decade of work to improve water quality statewide.
For now, the same judge who threw out the regulations also stayed the guidelines, ruling that the stormwater regulations and 2,000-plus pages of accompanying technical guidance remain in force until the Delaware Supreme Court rules on a pending appeal by the state.
The next steps
Deputy Attorney General Ralph Durstein said Oct. 27 that briefings will be filed in coming months, and he expects the Supreme Court to deliberate and make a decision on the state's appeal in the spring.
As for the plaintiffs, attorney Richard Abbott said they can appeal the stay; they can try to expedite a Supreme Court appeal decision; or they can file a new lawsuit challenging DNREC's emergency regulations.
On Nov. 4, Rep. Ruth Briggs King, R-Georgetown, and seven other legislators requested the House Natural Resources Committee hold a special public meeting to discuss the latest court ruling on the regulations.
On Oct. 7, Judge T. Henley Graves rejected the stormwater regulations imposed in 2013 and 2014, ruling that the state Department of Natural Resources and Environmental Control violated state procedure by failing to publish the Technical Guidance Document as part of the regulations, and therefore did not provide an opportunity for public feedback. Graves' decisions come after several plaintiffs, represented by attorney Richard Abbott, filed a lawsuit in August 2013.
“We are obviously disappointed by Judge Graves' decision,” DNREC Secretary David Small said in a press release. “The litigation challenging Delaware's stormwater regulations was based on procedural issues and not the merits of the requirements, which are a vitally important tool to help improve water quality and protect our citizens and property from the impacts of flooding.”
In response to Graves' ruling, which some have called precedent-setting, DNREC appealed to Delaware Supreme Court and imposed emergency regulations, essentially reinstating the law and technical documents.
Although he rejected the regulations, Graves said Oct. 27 that reverting to old regulations when a Supreme Court appeal is pending would cause more harm than good.
“The harm is in jerking the people around,” Graves said.
DNREC officials withdrew its interim emergency regulations Nov. 6 as a result of the Oct. 27 stay. The agency also is reconvening a Regulatory Advisory Committee to consider changes to the regulations and technical documents, as well as to review challenges with implementation that have arisen in the past 18 months.
“Our goal with this process is to address the concerns raised by Superior Court and adopt the technical document as regulations while also making changes to bring clarity to the sediment and stormwater requirements,” Small said in a press release.
Economics of stormwater management
When Tom Ford, a professional land surveyor and president of Land Design Inc. in Ocean View, first heard about the new stormwater regulations that took effect in January 2014, he predicted they would mark the beginning of the end of development.
“The economic impact is so significant that a decision to not build has begun to prevail," he wrote in a September 2014 email to the Cape Gazette. "If this trend continues there is no ability to reach any ecological goals intended by the regulations."
The cost of noncompliance
When properties cannot comply with stormwater regulations onsite, there are a number of options, including a fee-in-lieu.
The fee-in-lieu is calculated by multiplying $18 per cubic foot – 7.5 gallons – of estimated water runoff for a particular site that cannot be managed by accepted management techniques.
The fee-in-lieu is a partial cost for development; it is often combined with other practices to handle all of one site's runoff potential. Standard designs should not have to pay any fee-in-lieu for stormwater management, according to the Sussex Conservation District.
However, some engineers want to pay the fee-in-lieu right off the bat and avoid the design challenges of some sites.
“Folks maybe have been stuck in traditional ways of managing stormwater, and we're trying to expand those types of practices,” DNREC's Randell Greer said earlier this year. “It's not like we're inventing new things here. Everything in our book is being done in other places successfully – Florida, for example.”
If a fee-in-lieu is necessary, it must be paid prior to construction of each phase of the project, according to the technical documents.
The regulations consider infiltration as a best practice for stormwater management, taking advantage of the natural process of rainwater percolating down into the soil. But Ford argued that when infiltration is impossible because of a seasonal high water table or other issue, the alternatives can be very costly.
When a combination of management practices is insufficient to treat all estimated runoff, developers are required to pay a fee-in-lieu before any permits are granted.
“Wooded sites, small commercial sites and sites with high seasonal water tables will be very expensive to develop, and punitive fees may be incurred if infiltration requirements of the stormwater can't be fully met,” Ford said in a Nov. 4 email. “Our stance is that if we can meet the pollution control strategies for nutrient reductions and provide for no adverse impact on downstream sites, then that should constitute a satisfactory handling of the stormwater on a site.”
In the case of Mariner's Bethel Church in Ocean View, which sought professional guidance from Land Design for stormwater management for a proposed youth center, that price could reach more than $200,000, Ford said.
“You talk to the regulatory world, and everything seems to be fine, and there are lots of options,” he said. “Get out into the real world and try to implement the practices, and there's very few tools in the tool bag for Sussex County.”
Ken Christenbury, president at Axiom Engineering in Georgetown, agreed.
He said engineers and developers are favoring projects in areas where a high seasonal water table is not an issue.
“The best place in the county to develop under these regulations is the Cape Region,” he said. “The Route 1 corridor has very sandy soils and a deep water table. Those are ideal soils to develop under these regulations.”
Christenbury said he expects development pressure in Sussex County to flood the Cape Region as builders are hindered by the new regulations in other parts of the county.
“I'm favoring projects in that area because they're going to be easier to get done,” he said.
Christenbury also predicted that the value of raw land in the majority of Sussex County will plummet as values go up in the Cape Region, because the regulations and the resulting fee-in-lieu will make areas with any design challenges less desirable.
A new environmental approach
Randell Greer, who works for DNREC's sediment and stormwater management program, said in an interview earlier this year that developers like Ford may be misunderstanding the regulations.
“The example is perfect for the two biggest misconceptions about the regulations,” Greer said.
He said there is no requirement to use infiltration, and while the fee-in-lieu is an option when a developer cannot or will not comply onsite, there are options for offsets, including retrofitting another location in the watershed that does not have the site constraints found at the Mariner's Bethel Church property.
“The regulations were structured around giving folks options for compliance,” he said. Submerged gravel wetlands, rainwater harvesting, green roofs, rain gardens, bioretention areas at the bottom of rain spouts and a combination of smaller practices are just a few options for parcels struggling with infiltration capabilities, he said.
Christenbury argued that smaller practices such as harvesting rainwater for reuse may manage some runoff, but they provide minimal credits that do not offset the cost of the fee-in-lieu.
Greer said the regulations are intended to curb pollution from runoff from typical rain events, and update previous regulations that mainly focused on sediment as a pollutant.
“When it comes to infiltration practices and surface recharge, the soil is probably one of the best treatment measures you can have for water quality,” he said. “Not only does is offset the impacts from the increased runoff itself, but the soil provides a lot of water quality cleansing, so the pollutant loads go down.”
Agricultural lands, lots less than 5,000 square feet and commercial forest operations are exempt from the stormwater and sediment regulations.
For those projects that are subject to the regulations, compliance may be tricky.
“The regulations are in flux,” Ford said. “We are working on projects that will be reviewed under the new regs, and I can tell you, it is significantly more engineering and construction work, takes up more land and will be more expensive with negligible gain in benefits.”
