Small Town News

DNREC appeal: Pollution strategy is not zoning

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Agency argues water-quality buffer does not conflict with Sussex regs

State environmental officials say a Superior Court judge got it wrong when the court ruled parts of the Inland Bays pollution control strategy amount to illegal zoning regulations.

The judge said state environmental officials do not have the authority to regulate zoning. The court overturned the strate-gy's buffer regulations earlier this year.

The Department of Natural Resources and Environmental Control is appealing that decision, arguing buffers are not zoning regulations and that they are the most cost-effective way to reduce nutrient pollution entering the Inland Bays as required by law.

"We can't meet federal water-quality standards without reducing nonpoint source pollution," said DNREC Secretary Collin O'Mara. Strips of vegetation between land development and waterways filter pollution and slow runoff, scientists say.

"Delaware will continue to be in violation of the federal Clean Water Act and clean-water standards unless we figure out a cost-effective way to reduce nutrient pollution," O'Mara said.

Under the Clean Water Act, states must address point and nonpoint sources of pollution. DNREC pollution regulations aim to substantially reduce pollution running into the bays.

In its preliminary appeal brief, filed May 20, DNREC argues its buffer regulations are not zoning because they are intended only for pollution control.

"The water-quality buffer provisions in the PCS regulations do not conflict with any law of this state, including the Sussex County ordinance enacting a zoning buffer," reads the DNREC brief.

O'Mara said if Delaware does not come into compliance with federal water standards, it could lose authority delegated by the federal government to enforce the Clean Water Act. He said if the Environmental Protection Agency rescinds Delaware's delegated authority, the federal government could issue mandates on the state, in the form of additional regulations and more severe enforcement.

O'Mara said DNREC is trying to work with local communities

to find the best solution to the pollution problem.

Friend of the court

The Sierra Club filed a brief in support of the state's appeal.

The club calls on the Supreme Court, hearing an appeal of the decision from the Department of Natural Resources and Environmental Control, to reverse Superior Court's flawed reasoning.

In his decision, Superior Court Judge T. Henley Graves said DNREC doesn't have the authority to implement zoning laws and that the buffer regulation contained in the strategy was just that. The regulation called for vegetated buffers, 100 feet wide, between development and primary waterways. Buffers along secondary waterways were to be 60 feet wide.

Sussex County requires a 50-foot buffer, but in its brief, DNREC says those buffers do not protect headwaters of waterways leading into the bays.

The department says the county's buffers are not defined as water-protection measures, whereas in the pollution strategy, buffers are so defined. DNREC says pollution-control strategy buffers may be wider than county-required ones but will not prevent compliance with the county regulation.

The Sierra Club contends Delaware law shows regulatory power given through statutes is not the same as zoning by counties or municipalities. In its brief, the group says,"land use can be regulated for many reasons, only one of which is zoning, and that the state can regulate the use of land separate and apart from any zoning of the land."

The Sierra Club says Graves' ruling could set frightening policy implications; reducing regulation of land use to zoning would undercut environmental regulation and cede all land-use regulation to the counties. Reversal of the Superior Court decision on the buffer regulations would reaffirm the vitality of the state's environmental laws and

the role of DNREC to protect the environment, the brief says.

The county and a group of landowners, collectively White Farm, initially filed separate complaints against DNREC over the pollution-control strategy in 2008.

Sussex County spokesman Chip Guy said the county does not comment on pending litigation. The Inland Bays are listed as waters of exceptional recreational or ecological significance and are, by state law, supposed to be accorded more protection than other waterways, the DNREC brief reads.





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