Delaware court ruling leads to emergency environmental rules

DOVER — The Department of Natural Resources and Environmental Control has adopted interim emergency regulations dealing with sediment and stormwater management after a recent Superior Court decision invalidated the agency’s 2014 regulations.

More than 300 plans for a variety of projects — including public schools, highway improvements and both commercial and residential construction — were under review when Superior Court issued its opinion Oct. 7. By

David Small

David Small

invalidating the 2014 regulations, the court, in DNREC’s opinion, created a regulatory vacuum.

DNREC also has filed a motion seeking a delay in the implementation of the court’s opinion, along with an appeal to the Delaware Supreme Court.

The interim emergency regulations, announced Friday, will in effect reinstate the 2014 regulations. DNREC also will for the first time adopt supporting technical materials as regulations, consistent with the court’s ruling. The technical materials include design and construction standards and specifications intended to assist in complying with the regulations.

This action will allow development projects to move forward through the review and approval process, according to the DNREC press release.

The court was silent on whether DNREC should revert to previous versions of the regulations. However, many projects submitted under the 2014 regulations would not meet standards under the previous 2006 version and would need to be redesigned.

In addition, prior regulations were implemented in conjunction with supporting technical materials, a practice criticized by the Court in its opinion.

“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. 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,” said DNREC Secretary David Small.

The interim regulations, adopted under the state’s Administrative Procedures Act, will be in effect for 120 days and may be extended for an additional 60 days.

During the effective period of the emergency regulations, DNREC intends to adopt the regulations and technical document through a process prescribed by state law that will include convening a regulatory advisory committee and holding a public hearing for taking comment. The agency also intends to propose changes to the technical document that will address a number of concerns raised during the past year while the stormwater and sediment regulations struck down by Superior Court were in effect.

Under federal law, Delaware is required to have a valid erosion and sedimentation program in place for all construction activities, and Delaware’s erosion and sedimentation program must have enforceable regulations in place to be valid.

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