The Delaware Supreme Court will hear arguments next week in a case that could determine whether the state or counties have the power to regulate some aspects of land use.
The three-year-old legal battle now stands as an appeal from a Sussex County Superior Court ruling that struck down part of the state's pollution-control strategy for the Inland Bays. Oral arguments are scheduled for Wednesday.
Judge T. Henley Graves earlier this year found in favor of Sussex County and a group of landowners challenging the regulations on waterway buffers. The Department of Natural Resources and Environmental Control took the matter to the high court.
DNREC argues in court documents that Graves' "sweeping decision ... has consequences that cannot be foreseen," with impacts on other regulations as well. The agency argues the regulations creating wider buffers near waterways are not zoning rules, but pollution rules.
"There are two policies involved here, environmental control and zoning; one cannot resolve the dispute by calling environmental control zoning," its attorneys wrote in court papers. "DNREC does not dispute that the county has zoning authority."
The state also points out the buffers will not affect existing land use, but only apply when the land use changes.
The Sierra Club also submitted a friend-of-the-court brief supporting DNREC's position.
The agency has said the rules were intended to control runoff of pollutants that can feed excessive algae growth and harm fish and shellfish.
The county has required 50-foot buffers along tidal waters since 1991. But the state's plan, unveiled in October 2008, wants buffers ranging from 30 feet to 100 feet along creeks, streams and rivers that flow into the Rehoboth, Indian River and Little Assawoman bays. The bays suffer from poor water quality and pollution problems. New Castle and Kent counties have 100-foot buffers, the state says.
Waterway or riparian buffers are important for several reasons -- they improve water quality, help with flood control and provide wildlife habitat, said Chris Bason, acting executive director of the Center for the Inland Bays, a nonprofit group.
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