Delaware's Department of Natural Resources and Environmental Control (DNREC) lost a court battle to enforce the state's sweeping new erosion-control and stormwater runoff regulations, which the state has been working on since major flooding hit Delaware in 2003 and 2004. The News Journal has a report (see: "Court tosses out Delaware stormwater rules," by Jeff Montgomery).
"In ruling against the Department of Natural Resources and Environmental Control, Judge T. Henley Graves said the agency provided 'illogical' justifications for failing to include a large amount of technical but critical details on the regulations in a public notice," the paper reports. "He also said the agency wrongly disputed the standing of those who sued."
If let stand, the new rules would have broad scope, the paper reported: "DNREC's program and permit requirements potentially apply to any land-disturbance, change or construction activity for residential, commercial, industrial, and institutional land development that 'may result in soil erosion from water or wind, or the movement of sediments or pollutants into state waters or onto lands in the State.'" The rule required developers to design stormwater management systems to handle ten-year and hundred-year storm events as well as ordinary annual storms, and permits would have expired over time, requiring updated measures if conditions were judged to have changed.
Opponents of the rule said that the DNREC failed to disclose technical documents that later would be part of the rule's requirements, in violation of the state's procedures for passing new regulations. State regulators view that objection as a technicality, and argue that the rule is still justified on its merits. Said DNREC Secretary David Small: "The litigation challenging Delaware’s stormwater regulations was based on procedural issues and not the merits of the requirements, which are a vitally important tool to help improve water quality and protect our citizens and property from the impacts of flooding."
But State Representative Rich Collins, who approves of Judge Graves' ruling, also pointed to what he called the negative economic impact of the broad DNREC rule. "In addition to the illegal implementation, Collins says the new regulations also caused harm to the local and state economy. One example was a youth facility that was in the works," reported news radio station Delaware 105.9 (see: "Judge Rules DNREC's Stormwater Regulations Violate State Law," by Jon Budler. "Other examples include a proposed chicken house that would cost an additional $100,000 towards stormwater compliance, and a doctor's office that needed more than half the property towards a stormwater pond. Because of the regulations implemented, those businesses were never built."
The DNREC has appealed Judge Collins' ruling to the Delaware Supreme Court, the News Journal reported (see: "Delaware seeks stay, appeal after stormwater reversal," by Jeff Montgomery). The agency also wants the judge's order stayed until the case is settled. But attorney Richard L. Abbott, who represents opponents suing to overturn the rule, said the stay was inappropriate. ""The old regulations were fine for 22 years," Abbott said. "They'll be fine for however long it takes" for courts to make a final decision.