Ruling on storm-water regulations: Sussex GOP House members call for special committee meeting

DOVER – State Representative Ruth Briggs King – on behalf of her Republican House colleagues representing Sussex County – is requesting the Chairwoman of the House Natural Resources Committee to convene a special public meeting to discuss the latest court ruling as it relates to storm-water regulations in Delaware, particularly in Sussex County.

RUTH Briggs King, new mug cc

Rep. Ruth Briggs King

The letter – signed by Rep. Briggs King (R-Georgetown) on behalf of Reps. Danny Short (R-Seaford), Rich Collins (R-Millsboro), Steve Smyk (R-Milton), Ron Gray (R-Selbyville), Tim Dukes (R-Laurel), Dave Wilson (R-Lincoln) and Harvey Kenton (R-Milford) – was sent Wednesday to House Natural Resources Committee Chairwoman Rep. Debra Heffernan (D-Bellefonte, Claymont, Edgemoor).

The correspondence referenced a provision in the Delaware Code (Title 29, Chapter 9, Section 910a) relating to Consideration for agency rules during legislative interim:

“Where an agency adopts a new rule or regulation, or makes a substantive change or amendment to its rules or regulations at any time during the legislative interim between July 1 and the 2nd Tuesday in January, and the chairperson of a standing committee of either house believes in good faith that such rule, regulation, amendment or change impacts upon or is within the subject-matter jurisdiction of such standing committee, the chairperson may schedule a meeting of the committee to consider such rule, regulation, amendment or change.”

In the letter, Rep. Briggs King states “Given the latest storm-water decisions rendered by Superior Court Judge (T.) Henley Graves, impacts to the poultry industry, and ensuing confusion, we believe there is a significant need for discussion.  It is our obligation as legislators to act and use the tools that are prescribed for potential remedy, including potential committee action.”

Sussex County Post/Glenn Rolfe Republican Rich Collins, shown here waving to the Return Day crowd two days after his victory in November's General Election, will be officially sworn in in January as the 41st District Representative.

Rep. Rich Collins

Rep. Collins, who organized the successful lawsuit against DNREC prior to his being elected to the House of Representatives and was among those requesting the committee meeting on this issue, said, “This is likely to be portrayed as a partisan political issue, but it is about geography.”

“The problems associated with DNREC’s storm-water and sediment regulations have initially impacted Sussex County residents harder than those living elsewhere, but they will ultimately affect economic development and farming interests throughout Delaware.  This request is about ensuring that a state agency not only be responsive to the concerns of the people it serves, but is also acting within the confines of the law,” Rep. Collins added. “These are prudent concerns that are deserving of the committee’s nonpartisan, objective examination.”

On Oct. 7, 2015, Judge Graves ruled against DNREC in a lawsuit filed by a group of developers and contractors over the environmental agency’s regulations to control erosion, sediment and storm-water runoff from construction sites.

DNREC adopted the rules in 2013, and revised them last year, mandating that developers and engineers receive state approval of a sediment and storm-water management plan prior to starting a construction project.  Those state rules were adopted under the Administrative Procedures Act (APA) – a law requiring state agencies to publish proposed regulations and provide an opportunity for public feedback.

However, a set of technical documents that detailed how the regulations needed to be followed, and which included its own mandates, was not adopted through the APA process.  The plaintiffs successfully argued that the technical documents contained regulatory language and should have been subject to the APA.

Recently, DNREC Secretary Dave Small issued emergency regulations reinstating the rules and technical documents invalidated by Judge Graves.

The agency has also filed a motion to stay the Superior Court ruling pending an appeal to the Delaware Supreme Court.

The Sussex County Post delivers news from Georgetown and southern Delaware. Follow @SussexPost on Twitter.

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