Public weighs in on Sussex buffer ordinance

A working group assigned to review the county's current wetlands buffers and drainage ordinance, and make recommendations for a new one presented its findings to Sussex County Council two years ago.

The public is finally getting a chance to comment on a revamped ordinance, with the first public hearing taking place during the Nov. 4 Sussex County Planning and Zoning Commission meeting.

At the end of the hearing, the commission voted to leave the public record open for two weeks, until Thursday, Nov. 18, to accept written comments.

County council has scheduled a public hearing on the ordinance at 1:30 p.m., Tuesday, Dec. 7, in the county administration building, 2 The Circle, Georgetown.

Assistant county attorney Vince Robertson said the need to update the ordinance was reflected in the 2018 comprehensive plan, and a working group of stakeholders met for 1-1/2 years to iron out recommendations. Many of the regulations date back several decades.

He said the ordinance does not apply to vacant lands or farmland. Among the major changes are a new requirement for a 30-foot minimum buffer from nontidal wetlands and an increase from a 50-foot buffer to a 100-foot buffer for tidal wetlands.

Concerns over selective cutting

Ed Launay, a professional wetlands scientist and member of the working group, said he supports the ordinance, but one section pertaining to selective cutting or clearing within a buffer should be removed.

He said the ordinance states that all existing trees within a buffer should be preserved and maintained in their natural state.

However, the ordinance also allows for selective cutting of invasive species, and trees and shrubs smaller than 3 inches in diameter.

“In my professional opinion, the provision for selective cutting within a resource buffer severely diminishes the function of values of a proposed resource buffer. The wording allows for potential removal of essentially every other large tree in a forested stand. It's nearly essentially equal to having no buffer at all,” Launay said. “All references to selective cutting should be removed from the ordinance.”

He said the county's current ordinance allows for clear-cutting of trees within a buffer. “I thought the goal of the new ordinance was to prevent that. With selective cutting, we'll be back to the same old thing again,” he said.

Launay said the options section of the ordinance will require some additional clarification, and he plans to work with county staff to improve the section. “We need to look at incentives to protect forests before development occurs,” he said.

For example, he said, buffer widths could be reduced if a property owner or developer demonstrated that a forest was protected five years prior to development.

More to protect forests

Rich Borrasso, spokesman for Sussex Alliance for Responsible Growth, who was a member of the working group, said the ordinance is one of the most critical conservation decisions in Sussex County history. “It's not a property rights issue, but one of striking a balance between private and public need,” he said.

Borrasso said 3,000 acres of marshland have been lost around the Inland Bays, and nearly half of all the county's original wetlands have been lost.

“What is existing now is inadequate for protection. I'm in agreement with the working group's findings,” he said.

He agreed with Launay's recommendation to remove selective cutting from the ordinance. “It's a contradiction of the buffer standards. It's vague and open for interpretation by developers, and then what happens when an HOA takes over maintenance? It must be removed,” he said.

He also agreed with Launay that more work needs to be done to protect forests, and that incentives to protect forested buffers are not enough.

“If the county is serious about [preventing] vast destruction of forests and trees, there must be a separate study with solutions that encompass tree conservation throughout all of Sussex County, and not just for resource buffers,” he said.

Forests provide best buffers

Chris Bason, director of the Delaware Center for the Inland Bays and a member of the working group, offered several modifications to the ordinance. “Kent County, New Castle County, New Jersey and Maryland do a much better job protecting buffer resources than what is being proposed today,” he said.

He said wetland buffers are a critical part of the center's conservation and management plan as it strives to reduce nutrients in the waterways of the Inland Bays.

Bason said there has been success in reducing the number of point-source nutrient pollution contributors, but very little success in reducing non-point sources, where nutrients come off the land. “We are actually backsliding on the water quality on Delmarva and in Sussex County,” he said.

Two-thirds of the center’s waterways monitoring stations do not meet standards set for the maximum limits of phosphorus and nitrogen for a healthy ecosystem. “Buffers are a solution for better water quality,” he said.

He said two of the four proposed buffer widths fall within the center's recommendations, but at the minimum width. The center recommends buffers of 80 to 500 feet for tidal waterways (ordinance is 100 feet); 50 to 100 feet for nontidal wetlands (ordinance is 50 feet); 35 to 150 feet for small perennial streams (ordinance is 30 feet) and 80 to 150 feet for larger streams (ordinance is 50 feet).

He said the center supports removal of the options section in the ordinance. “You should not be able to reduce buffer widths in exchange for something else,” he said. “There should be no option to decrease the width of a buffer.”

Most important, he said, is the protection of forested areas as the preferred buffer, as they remove 36 percent more nitrogen than grassed buffers. He said forested buffers take up 11 to 36 pounds of nitrogen and 2 to 5 pounds of phosphorus per acre, per year.

Bason said county officials should consider eliminating non-forest buffer standards and require all buffers to be forested or contain natural shrubs.

Bason said selective cutting should only be allowed to provide viewscapes along tidal waters, wetlands and freshwater ponds where views are commonly desired, and the cutting should be limited to no more than 20 percent of the length of a buffer.

Preston Schell, president of Ocean Atlantic Companies, said the ordinance is long overdue. “Now, all developers will be playing on the same field and treated equally,” he said, adding he agreed with recommendations presented by Bason.

Schell said tree clearing and cutting in buffers is more of a homeowner's issue than a developer's issue. He said in his company's Coastal Club community off Beaver Dam Road, even though it's prohibited, some homeowners who live adjacent to buffers trim and even cut trees down. “And sometimes even in the dark of the night,” he said.

The proposed buffer ordinance includes:

• Property lot lines are no longer 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.