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Supreme Court upholds ruling against state stormwater regulations

Cape Gazette of Lewes, Delaware

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DNREC reinstates rules in emergency regulations

A Supreme Court ruling tossing out the state's stormwater regulations has prompted environmental officials to reinstate those same regulations as an emergency measure.

Supreme Court Justice Collins J. Seitz Jr. on April 15 validated an October 2015 Superior Court decision that found the state Department of Natural Resources and Environmental Control violated state procedure when imposing updated stormwater regulations in 2013 and 2014 by failing to publish a 2,000-plus-page accompanying technical guidance document as part of the regulations.

Seitz's recent ruling did not include instructions on how DNREC officials should move forward with regulations. This decision comes after several plaintiffs, represented by attorney Richard Abbott, filed a lawsuit in August 2013.

"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 lenders' agencies and others involved in these important projects," DNREC Secretary David Small said in a press release.

A press release states that reverting to previous regulations from 2006 would require some projects to be redesigned to meet different requirements.

In response to the ruling, DNREC also announced April 15 that the agency has adopted emergency regulations in response to the court's ruling, essentially reinstating the 2014 regulations in question. The emergency rule also adopts technical guidance materials as regulation, which were not adopted in the formal regulatory process more than two years ago.

DNREC officials reinstated similar emergency regulations in October, when Superior Court Judge T. Henley Graves rejected to the regulations on procedural grounds.

State Rep. Richard Collins, R-Millsboro, who has been opposed to the new stormwater regulations because of the potential negative impact on development in Sussex County, said he was not surprised the Supreme Court validated the lower court's ruling.

"Once the Superior Court had ruled, the decision was so clear," he said. "We should have storm-water regulations, they should protect the environment, but they should be something that the average person can comply with."

Collins also questioned the legality of imposing emergency regulations.

"The law says in cases where a department determines there is imminent peril to the public health, safety or welfare, then they can do an emergency regulation," he said. "Now I am sorry, but there is certainly no imminent peril to the public in regards to these regulations."

After the Superior Court ruling, state officials established a Regulatory Adviroy Committee that has been reviewing and discussing changes to the regulations and technical standards, which guide compliance with those rules. A DNREC press release said the committee will continue to work with DNREC officials during the effective period of the emergency regulations, which will be in effect for 120 days.

"We remain committed to a thorough, open and rigorous review of the regulation and technical standards," Small said.

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Original Publication Date: April 19, 2016

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