House Republicans and DNREC clash over stormwater management

DOVER — A number of Department of Natural Resources and Environmental Control regulations were recently overturned by a Superior Court ruling, but DNREC has re-instituted the guidelines, angering some state lawmakers.

Last month, Superior Court judge T. Henley Graves ruled against DNREC and in favor of a group of developers, stating a set of DNREC regulations did not go through the proper public process before being adopted.

The statutes, put into place by the agency in 2013 and changed a year later, required developers to receive state approval for sediment and stormwater management plans before starting construction. Several of the documents were not passed along to the public for consideration.

“As a practical matter, a party cannot draft a plan for dealing with sediment and stormwater without any reference to the technical documents and expect to obtain approval thereof,” Judge Henley wrote in his decision.

According to DNREC, it is the first time technical materials were considered regulations.

The agency re-adopted the regulations in the wake of the decision, arguing emergency controls were needed. A number of projects that were approved by the most recent regulations would not fit under the 2006 guidelines, which the state would default to if not for the emergency policy.

“We obviously respect the court’s opinion, but without any guidance on how we should review plans, we are compelled to adopt emergency regulations to restore certainty to the process,” DNREC Secretary David Small said in a statement. “This action enables us to continue to review and approve plans and allow landowners, developers, contractors and homeowners to maintain schedules and commitments to customers, lenders, agencies and others involved in these important projects.”

The emergency order would stand for 120 days and could be extended for another 60 days.

Wednesday, House Republicans filed a letter to the House Natural Resources Committee requesting a special gathering to analyze the regulations and their validity.

Because the Legislature will not reconvene until January, the eight Sussex County Republicans are seeking to settle the issue by bringing it before the committee.

The letter, written by Rep. Ruth Briggs King, R-Georgetown, is addressed to the committee chairwoman, Rep. Debra Heffernan, D-Edgemoor.

“Given the latest stormwater decisions rendered by Superior Court Judge Henley Graves, impacts to the poultry industry and ensuing confusion, we believe there is a significant need for discussion,” Rep. Ruth Briggs King wrote. “It is our obligation as legislators to act and use the tools that are prescribed for potential remedy, including potential committee action.”

Rep. Rich Collins, R-Millsboro, a part of the lawsuit, has criticized DNREC for not complying with the judge’s ruling.

“There should be no confusion,” he said in a statement. “The judge ruled that DNREC’s current stormwater and sediment management regulations were illicitly adopted. DNREC should be reverting to the last set of rules it legally promulgated.”

Reach staff writer Matt Bittle at mbittle@newszap.com

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