The Public Trust Doctrine is a common-law doctrine requiring states to keep navigable and tidal water and their underlying land in trust for the common use of the public. The doctrine has been expanded to protect the public’s interest in all of a state’s natural resources, to include air, nonnavigable bodies of water and groundwater. Expansion of the doctrine has been accomplished by both legislation and constitutional amendment.
Delaware will hopefully soon join other states in recognizing the importance of protecting its environment. The Legislature is currently in the process of seeking to amend our constitution to protect Delaware’s natural resources. House Bill 220, which was voted out of committee June 14, provides in pertinent part:
The people of Delaware have an inherent and inalienable right to a clean and healthy environment ... and to the preservation of the natural, cultural, scenic and healthful qualities of the environment. The state’s natural resources are the common property of all the people, including present and future generations. The state, including all branches, agencies and political subdivisions, shall serve as trustees of the state’s natural resources and shall conserve, protect and maintain these resources for the benefit of all its people ...
This amendment is a critically needed first step to protect Delaware’s natural resources, especially in Sussex County’s Coastal Area.
A recent land-use proposal in Sussex County demonstrates why this is sorely needed. In May, Royal Farms submitted an application seeking a conditional use to build a gas station, convenience store and car wash on the corner of Angola Road and Route 24. The parcels involved are all located in an AR-1 zoning district within the Coastal Area overlay in addition to being in the Coastal Zone area. The county’s comprehensive plan recognizes the Coastal Area as extremely important to the environment and economy, as it helps to absorb floodwaters, and provide extensive habitat for native flora and fauna. Perhaps most important, the plan notes that this area has significant impact upon water quality within the adjacent bays and inlets. Located on these parcels are the area’s wellhead protection area, Sarah Run, which ultimately empties into streams that empty into Rehoboth Bay, and other groundwater sources for the area’s drinking water.
This proposed project is in close proximity to land recently purchased by Sussex County for preservation purposes. Indeed, this purchase was touted by the government as a step to protect the area’s drinking water and its sources. Notwithstanding that the proposed constitutional amendment is not yet in effect, Sussex County and the Sussex County Land Trust arguably have a fiduciary duty to protect this significant investment from the adverse environmental impact presented by this conditional-use application.
I suspect it will be obvious to most that approving a conditional-use permit to build a gas station, convenience store and car wash in a residential district in the Coastal Area and Coastal Zone is inappropriate, and contrary to the public health and interest.
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