Delaware Supreme Court upholds judge’s nixing of stormwater regulations

DOVER — Delaware’s Supreme Court has rejected an appeal by state environmental officials seeking to overturn a judge’s invalidation of sediment and stormwater regulations adopted over the past two years.

The court issued a two-paragraph order Friday upholding the ruling after hearing arguments Wednesday.

Sussex County Superior Court Judge T. Henley Graves had ruled last year that the regulations were invalid because they required adherence to technical documents that were not subject to public hearings or comment.

A statement released by the Department of Natural Resources and Environmental Control following the high court’s ruling Friday said it has aqdopted “interim emergency sediment and stormwater management regulations – in effect reinstating the 2014 regulations invalidated (Friday) by Delaware’s Supreme Court, with the high court’s opinion upholding a Superior Court decision issued last fall.

“DNREC’s action today also adopts supporting technical materials as interim regulations, consistent with the Court’s ruling.”

Ralph Durstein III, a lawyer for the Department of Natural Resources and Environmental Control, had told the Supreme Court on Wednesday the regulations setting compliance standards were properly adopted, and that the supporting technical materials are separate guidelines for reaching compliance that did not need to be formally adopted. “The regulations say just what goals you have to achieve,” he said.

But plaintiffs’ attorney Richard Abbott, as well as members of the three-judge panel, noted that the technical support materials frequently use the word “shall” in describing courses of action to be taken. “How is it an advisory document?” asked Justice James T. Vaughn Jr.

Abbott said landowners, developers and contractors are required to comply precisely with the technical documents or their “functional equivalent … That’s the bible,” he said.

The DNREC statement said neither of the two courts’ opinions provided specific guidance on how the department should review plans in the absence of a regulatory standard.

Following the Superior Court’s decision last fall, DNREC adopted the 2014 regulations and technical documents through emergency action, until a stay was issued by the Superior Court. DNREC is following the same path today in order to allow projects currently under review to continue toward approval.

“We are obviously disappointed with the Court’s opinion, and are compelled to adopt emergency regulations to maintain certainty of the process, enabling 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.

“Engineers, system designers and developers have repeatedly expressed their desire to see flexible standards that can be amended quickly if newer, cheaper and more efficient best practices are identified. Unfortunately this ruling will prevent those changes from happening more quickly, as they will have to go through the regulatory process, which may take many months to complete.”

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