Del. Supreme Court rules stormwater regulations invalid

State environmental officials enacted emergency interim stormwater regulations Friday afternoon in the wake of the state Supreme Court decision upholding a 2015 Superior Court ruling that the agency ignored the law when it enacted new stormwater- and sediment-control regulations.

DNREC's move reinstates the contested 2014 regulations that were invalidated by Friday's Supreme Court decision.

In a prepared statement, environmental officials said neither court decision provided guidance about how the state agency should handle stormwater plans under a scenario where the 2014 regulations were invalidated.

At issue in the court case were the technical documents that described, in detail, methods property owners and developers could use to comply with the regulations.

"There is no question as of this moment the old regs are now in effect," said Richard Abbott, the attorney for the landowners and developers who challenged the new regulations.

Abbott said he believes that the court ruling invalidates the new regulations.

"We are obviously disappointed with the court's opinion and are compelled to adopt emergency regulations to maintain certainty of the process," said state Environmental Secretary David Small.

The emergency action will allow state officials to continue to review and approve plans that have been submitted and let landowners and developers stay on schedule, he said.

The pre-2014d regulations are less stringent and, many believe, less costly and onerous for land developers

Meanwhile, last year Superior Court Judge T. Henley Graves issued a stay that allowed state officials to continue to issue permits under the challenged stormwater rules while the case was awaiting Supreme Court review.

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Abbott successfully argued in state Superior Court last year that when Delaware adopted the regulations, the technical documents should have been a part of the complete, regulatory package and as such, subject to public notice, public hearings and the same procedural tests that all regulations are subject to.

The Supreme Court case stemmed from an August 2013 lawsuit, claiming that DNREC violated public notice and administration rules by failing to include about 2,000 pages of technical guidance in public hearing notices on the rules. Although state officials said the publication was unnecessary and later described the technical provisions as "advisory," both Superior Court Judge T. Henley Graves and the challengers pointed to clear mandates for compliance with the unpublicized technical documents.

Generally, the regulations make developers design stormwater drainage systems based on the average amount of water falling during typical yearly storms as well as once-a-decade and once-a-century downpours. Permits were to carry expiration dates, to keep assumptions about surrounding drainage conditions current.

Designers were obliged to consider area-wide and watershed consequences of new runoff as well – and were permitted to choose from a variety of approaches to reduce the impact. In some cases, developers can make payments to compensate for full compliance, with rates based on the volume of uncontrolled runoff.

In January, state environmental officials reconvened a Stormwater Regulation Advisory Committee with the idea of address landowner concerns and updating the contested regulations. Under the new regulations, they have issued 1,036 stormwater permits statewide. Of those, 193 required the most detailed review.

The idea was to capture stormwater and sediment on developed properties to reduce flooding, runoff and sediment going to creeks, rivers and streams.

At an earlier advisory committee meeting, Michael Riemann, representing the Homebuilders Association of Delaware, said the process was overly complicated, not user-friendly and often stood in the way of redevelopment projects.

Small said at that meeting that his agency was well aware of the concerns.

Abbott said his clients were especially upset that the state's regulatory process didn't include transparency and opportunity for public input for the technical documents.

Abbott, who has successfully challenged other DNREC regulations, suggested it's time for state lawmakers to step in and provide additional oversight of the agencies regulatory efforts.

"This is not the first time. This is not the fifth time," he said. The concern, he said, is that people are forced to go to court to challenge the environmental agency. "The obvious message is we hope to wear you down. … They are a habitual offender."

Reach Molly Murray at (302) 463-3334 or mmurray@delawareonline.com. Follow her at Twitter @MollyMurraytnj.