COMMENTARY: Strengthen, don’t gut, the Delaware Coastal Zone Act

The Delaware State News has a history of solid coverage of the Delaware Coastal Zone Act. Not the least was a detailed five-part series by Russ Peterson in which he laid out the history of the act as he experienced it.

I was aware of, but not involved in, the controversies in the late 1960s and early 70s that lead to the act. Since the early 1990s I, and my organization, have advocated about the act, and regarding individual permits sought under it. We have likely disagreed with Delaware’s “environmental community” nearly as often as we’ve disagreed with the views of the Chamber of Commerce, et al., about the Costal Zone Act.

Much of the near-50 years of Coastal Zone controversy has been rather stereotyped — business and union interests claiming damage to the economy, loss of jobs, etc., and environmental interests asserting to need to protect our natural resources and quality of life.

For the most part, the act has been chipped away at, and enforcement has been weak. The last few years have been especially disastrous, with the Markell administration shutting down meaningful enforcement, handing out Coastal Zone permits like so many peanuts, and Delaware courts willfully misinterpreting the plain language of the act to deny citizens “standing” to demand enforcement. The present governor, John Carney, ran on a platform that included weakening of the act.

The current proposed legislation, House Bill 190, would not leave much left of the act The prime sponsor, Rep. Ed. Osienski, is a retired construction union business agent.

It’s been a long 50 years, and the activists who originally fought for the act, many still active in the 90s, have now mostly retired or passed on. To most living Delawareans, the act is history, its benefits perhaps taken for granted, and the need to fight for it less than obvious.

Yet the widespread opposition to SB 190 makes clear that Delawareans as a whole continue to recognize the significance and concrete value of the act, and don’t want it weakened.

The immediate impetus for the act was an attempt by Shell Oil to build another refinery in Delaware. Given the environmental horror show of the existing Delaware City Refinery, the threat posed by another one was easy to see. The act served that immediate purpose effectively.

But the act did a lot more and how this came about is worth considering. Politics tends to be a pragmatic business, focused on short term goals and problems. Russ Peterson was a different sort of politician.

Highly educated, a product of the then-progressive political atmosphere of the U.S. Upper Midwest and a former research director for DuPont, he was comfortable with conceptual, big picture, thinking. He, and many of his supporters, were Republicans.

Later in life, when the GOP went to pot, he became a Democrat. Peterson set up a study group, staffed by a professional scientist. Their report provided the conceptual basis for the act.

Science tell us that the areas where land meets the water are among the most biologically productive, as well as being the most vulnerable to pollution and destructive forms of development. This biological productivity relies on the preservation of beaches, marshes and wetlands.

Sites along the water have also historically been sought by industrial interests seeking access to cooling water, places to dump wastes, and water-born transport. They are also, of course, sought for recreational uses such as swimming beaches, marinas, and fishing. Pressure on coastal areas has increased as the U.S. population has tended to shift from the Midwest to the East, West and Gulf coasts.

Coastal locations are a limited resource subject to many competing demands. Fifty years ago, Delaware’s political system was able to recognize these realities and act somewhat effectively with a pioneering “coastal management” law. Has our collective wisdom so deteriorated that, in the face in increasing demands, we will choose to roll back protective laws?

The words of the act are clear and simple: I’ve highlighted a few key items:

“It is hereby determined that the coastal areas of Delaware are the most critical areas for the future of the State in terms of the quality of life in the State. It is, therefore, the declared public policy of the State to control the location, extent and type of industrial development in Delaware’s coastal areas. In so doing, the State can better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism.

“Specifically, this chapter seeks to prohibit entirely the construction of new heavy industry in its coastal areas, which industry is determined to be incompatible with the protection of that natural environment in those areas. While it is the declared public policy of the State to encourage the introduction of new industry into Delaware, the protection of the environment, natural beauty and recreation potential of the State is also of great concern. In order to strike the correct balance between these 2 policies, careful planning based on a thorough understanding of Delaware’s potential and the State’s needs is required.

“Therefore, control of industrial development other than that of heavy industry in the coastal zone of Delaware through a permit system at the state level is called for. It is further determined that offshore bulk product transfer facilities represent a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative.”

Nobody has to try very hard to see that Delaware is vulnerable. On the East Coast, we receive a cumulative dose air pollutants emitted by states to the West. Most of Delaware’s ground and surface waters are polluted. As the lowest-lying state, we are uniquely vulnerable to the sea level rise caused by climate change. Key segments of the economy,such as agriculture, recreation, and tourism are sensitive to changes in weather and climate.

Delaware’s location on the Northeast Corridor, with I-95 passing through, seems to make Delaware vulnerable to imported of social problems, contributing greatly, for example, to the high levels of violence in Wilmington. A few years ago, Green Delaware noted that life expectancy in the U.S. had slipped from 24th to 49th.

Many Delawareans are struggling with our state’s lack of prosperity and economic opportunity. A state run as a safe harbor for corporate misconduct, a “Company State,” as Ralph Nader put it, faces many conflicts of interest in seeking to improve life for residents.

Of course, any 50-year-old law, no matter how wisely conceived, can benefit from review and updating. Heavy industry has faded in Delaware while sprawl development has greatly increased, resulting in increased traffic congestion and a decline in quality of life.

The entire state of Delaware is under the federal Coastal Zone Management program — a program entirely separate, administratively, from the Delaware Coastal Zone Act program and somewhat lacking in teeth. Consideration might be given to expanding the jurisdiction of the Delaware Coastal Zone act to more of the state, perhaps all of it. Many other possible upgrades are easy to think on.

An impressive collection of Delaware’s non-governmental organizations are calling on legislators to withdraw SB 190 and set up a “stakeholder” review process to look at the Coastal Zone Act.

Green Delaware supports this, with the observations that such a process should (1) not be dominated by industrial/organized labor interests with the destructive agenda revealed in SB 190,and (2) the focus should not be on weakening the act, but on strengthening it to meet the needs of present times.

Alan Muller is executive director of Green Delaware.

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