Delaware legislators vote to change restrictive stormwater regulations

(photo courtesy of Chesapeake Bay Program Flickr page)

(photo courtesy of Chesapeake Bay Program Flickr page)

Delaware representatives voted in favor of legislation that would change restrictive stormwater regulations. 

Delaware legislators are aiming to create alternatives to the current stormwater management regulations mandated for businesses and developers.

State Rep. Danny Short, R-Seaford, says the Delaware Department of Natural Resources and Environmental Control’s stormwater regulations are so restrictive that businesses and developers are leaving projects and losing thousands of dollars.

On Thursday, the House passed almost unanimously his Joint Resolution 11, which creates a process for a review of alternatives, and also would make the final stormwater regulations and technical requirements subject to a public hearing process. The legislation must go to the Senate before it can be signed into law. 

“I think it’s not something to gloat about,” Short said of the favorable vote. “It’s something that logically needs to be done and it’s caused the discussion to be very truthful and deliberate between the parties interested in this subject on both sides, and that’s a good result.”  

In 2013, DNREC enacted 14 stormwater regulations after a committee studied flooding and stormwater issues in the state and determined it needed to manage high volumes of water on site, protect water quality and manage stormwater.

The regulations were put on everything from housing subdivisions to commercial development to parking lots in order to manage a certain amount of rainfall and runoff from the site after it’s developed.

The regulation requires developers to capture the rain that falls on their project, and treat the quality and quantity of that water up to 2.7 inches.

However, problems occurred in areas with poor soils, high water tables or other water features that made it difficult to design a system to accommodate all the stormwater runoff on the site. Engineers said design was either practically impossible, or the stormwater systems needed to meet the regulations were astronomically expensive.

If developers cannot comply with the regulations they can pay a fee in lieu of meeting the regulations. The fee could be as much as $250,000 depending on the size of the site.

“Agriculture was severely impacted, it made chicken houses almost unaffordable for them to continue to build new ones or start a business, it affects community development because it made the stormwater design expensive, it made the construction of facilities expensive and you almost always failed to comply and the only way to comply was pay these massive fess to the state,” said Frank Kea, principal of Solutions Integrated Planning Engineering and Management of Georgetown, which provides civil engineering, landscape and architecture for developers, and designs stormwater management.

So business owners, developers—and even private individuals building a single family home—have had to decide if they could afford such an undertaking. Many said they quit the project completely.

Short said the regulations have affected the economy, especially in Sussex County, which has been faced with the most problems.

“Sussex County in particular has an enormous opportunity for development, and we need to do some of that because we’re still struggling economically,” he said. “We want to be able to remove some of the regulations that hinders development and make it more reasonable for folks, both businesses and people who want to build homes.”

Tunnel Companies, a real estate development company that manages various communities, was one of those businesses that pulled out of its project.

“The regulations in place now have dramatically affected how we can improve and maintain our communities,” said Robert Tunnel III, a partner with the company.

Tunnel Companies had plans to build a multi-modal pathway in one of its communities so people could walk or bike, rather than use the road. Tunnel said the cost went from $2,500 to more than $40,000 to comply with the regulations. On top of that, he said compliance with the regulations was nearly impossible. The fee, in lieu of adhering to the requirements, would have been about $28,000, Tunnel said.

“We didn’t feel we could justify paying $28,000 for a fee in lieu for something I don’t think we should have,” he said. “There was a lot of added costs, a lot of added process and bureaucracy in the process.”

DNREC Secretary David Small said a number of projects couldn’t be designed to accommodate all the water, so a lot of developers wrote checks to the department.

He said prior to adopting regulations DNREC asked engineers what the cost of compliance should be. The cost of the fee is based on the volume of water a facility is not able to infiltrate, Small said.

The state Superior Court and the state Supreme Court ruled DNREC’s current regulations are unenforceable because they were created in violation of the Administrative Procedures Act.

DNREC adopted emergency regulations in response to the court decision that invalidated the existing regulations because it needed a prevailing standard to assess projects and keep them moving forward toward approval.

“Our objective was to make sure projects could continue to move in the system while being able to continue conversations in the Regulatory Advisory Committee,” Small said.

Short’s legislation allows the Regulatory Advisory Committee, which DNREC already works with, to solve these complex issues, reach a consensus and adopt regulations.

“The legislation says, ‘DNREC, you have to sit down with these folks if you want a derivative of compromise that’s reasonable, not outlandish because you think it’s the right thing to do,’” he said.

 “We understand the issue of stormwater runoff creating problems, but we can’t make it so unreasonable folks can’t develop their land or build a single family home.”

Short said historically DNREC hasn’t been open to suggested alternatives to the current regulations.

“They’re not open to this. They have it the way they want to do it and I can respect with their science. The problem is they’re not in the business like the people we’re talking about that have come together,” he said. “They get paid every two weeks no matter what happens to the economy unless the state has to lay people off.”

However, Small said DNREC is willing to discuss alternatives, and supports the legislation.

“We think there are number of important mechanisms that will allow us to move forward and protect water quality and manage volumes so we’re not creating additional flooding problems,” he said. “We do think the legislation does give us flexibility while maintaining the program.”

Short said he believes his legislation will pass in the Senate, which on Thursday passed a companion bill sponsored by Gerald Hocker, R-Ocean View.

“We’re hoping we’ll get to a good result and not only have clean water but have a clean bill that allows people have an understanding of where we are,” he said. 

Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

It will take 126,000 members this year for great news and programs to thrive. Help us get to 100% of the goal.