Cape Gazette
Judge throws out buffer regulations
Graves: DNREC can’t make zoning regsEnvironmental officials overstepped their bounds issuing regulations requiring buffers between new development and waterways in the Inland Bays watershed, a Superior Court judge has found. The ruling overturns the buffer requirement in the Pollution Control Strategy for the Inland Bays, a document that was 10 years in the making.
In a ruling issued Friday, Feb. 25, Judge T. Henley Graves struck down a measure requiring vegetated buffers along Inland Bays waterways.
Sussex County and four private landowners sued the Department of Natural Resources and Environmental Control over the 2008 Inland Bays Pollution Control Strategy, charging the department was usurping county authority over land-use decisions.
In his decision, Graves wrote, “The ultimate question is whether Delaware’s General Assembly has granted DNREC the authority to implement regulations which create zoning laws regarding the land in the referenced watersheds.” He ruled it does not.
DNREC spokesman Michael Globetti said, “DNREC adopted these regulations, which apply only to new development, as a cost-effective way to improve water quality in the Inland Bays.” Nitrogen and phosphorus in waterways can cause overgrowth of algae and other plants, leading to unhealthy conditions for fish and shellfish, he said.
“We disagree with the court’s opinion and will be reviewing our options,” Globetti said.
Rich Collins, director of the Positive Growth Alliance, one of the groups that sued, said based on a simple reading of the law, it was obvious DNREC was breaking the law by overriding existing county zoning laws. He said based on Graves’ decision, DNREC has no grounds for appeal.
Chris Bason, deputy director of the Center for the Inland Bays, said the ruling is disappointing because buffers are very effective at reducing nutrient pollution, and they can also protect against flooding.
“We encourage DNREC to make up for this loss of pollution removal by actively enforcing the provisions of the Pollution Control Strategy that remain in effect. And, we are hopeful that the county recognizes its obligations to the cleanup plan for the bays by adopting a more comprehensive water-quality buffer ordinance,” Bason said.
Chip Guy, public information officer for the county, said in a statement, “The Superior Court ruled that the Delaware General Assembly has granted the primary land-use authority to the counties and municipalities, not state agencies.”
“The court’s decision affirms what was the central argument in this case – that local land-use decision rest with local governments,” the county’s statement said. Collins said, “I think the record is starting to be established that DNREC has been a bit abusive to landowners,” he said.
Buffers are zoning
Graves ruled zoning actions in the Inland Bays Pollution Control Strategy have no statutory authorization and come in direct conflict with Sussex County zoning ordinances.
The county requires 50-foot-wide buffers between development and waterways; DNREC’s strategy would have required 100-foot-wide buffers along primary waterways and 60-foot-wide buffers along secondary waterways. Under the strategy, if developers implemented other pollution-control measures, the width of the required buffers could be reduced by half.
The county argued that DNREC’s buffer strategy usurped county authority, extended that agency’s reach to waterways not previously regulated and changed building requirements.
Graves said the strategy established buffer zones and regulated land use, which amounts to zoning. The county has no inherent zoning authority on its own, Graves wrote, but the General Assembly does, and it has delegated zoning authority to counties and municipalities.
The Legislature could give DNREC the power to regulate land use in the bays’ watershed, but it hasn’t, he wrote.
Graves also wrote that in order to enact certain environmental zoning laws, DNREC must go through the county and its comprehensive land-use plan.
Clean Water Act
The secretary’s order issued by former DNREC Secretary John Hughes used the section of Delaware code that created the department to establish authority to promulgate the regulations.
Graves says nothing in that section gives the DNREC secretary power to issue regulations addressing how land is used in the Inland Bays watershed.
Hughes’ order also cited Delaware’s statutory authority to enforce the federal Clean Water Act; Graves writes, “I conclude no federal statute or regulation gives DNREC the power it exercised here.”
The decision states, “This court does not doubt DNREC’s good intentions in this case. It is clear DNREC is concerned about the future of this state’s resources and wishes to preserve those resources for future generations. However, DNREC’s expertise and good intentions do not give it power it does not otherwise have.”
Rehoboth Beach resident John Austin said, “I believe the decision will have very serious consequences that may not be to the liking of the development interests behind the challenge.” He said DNREC and Sussex County still must attain the pollution limits set for the Inland Bays.
“The responsibility rests with Sussex County now to show in its comprehensive plan how it will comply with these regulations,” Austin said.
Austin said without buffers, pollution reductions will have to come from costly increased water-treatment measures, zoning changes and potential permit and building moratoria in watersheds with too much nutrient pollution.
But, Collins said his group is certain the environment can be protected without a DNREC buffer requirement. He said the county already requires buffers, and there is little development happening now.
Bason said the strategy was a five-part plan designed to reduce pollution of the Inland Bays by certain amounts. He said buffers would have significantly reduced pollution; the center expects it will be difficult to meet clean-water goals without them.
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