DOVER – In accordance with 29 Delaware Code, § 10407, the Department of Natural Resources and Environmental Control is conducting a review of agency regulations that have not been amended during the last four years. A listing of regulations subject to this review (PDF) can be found on DNREC’s website. The three-month review period began Aug. 4 and concludes Nov. 4.

DNREC is now seeking public comment as to whether or not the regulations subject to this review should be amended or possibly eliminated. Comments should be as specific as possible and include a reference to the relevant regulation. Public comments may be submitted in a variety of ways as listed below:

• Using the electronic comment form (comments can be submitted anonymously)
• By email to DNREC Hearing Officer Lisa Vest
• In writing, c/o Lisa Vest, Hearing Officer, DNREC, 89 Kings Highway, Dover, DE 19901

“DNREC is eager to hear from the regulated community and the citizens of Delaware regarding recommendations to streamline and improve environmental regulation in Delaware,” said DNREC Deputy Secretary Kara Coats, who is overseeing the department’s regulatory review process.

In addition to accepting written comment at any time during the review period, DNREC will hold three public hearings next month to receive verbal comments from the public. The agency’s public hearings are scheduled as follows:

• 6:00 p.m., Thursday, Sept. 15 at DNREC’s Auditorium, 89 Kings Highway SW, Dover, DE 19901
• 6:00 p.m. Monday, Sept. 19 at Sussex Central High School Auditorium, 26026 Patriot’s Way, Georgetown, DE 19947
• 6:00 p.m. Wednesday, Sept. 21, 2016, at Appoquinimink Public Library, Meeting Rooms I and II, 651 N. Broad Street #101, Middletown, DE 19709

For more information, please email Michelle Jacobs or call 302-739-9069.

Media Contact: Michelle Jacobs, DNREC Small Business Ombudsman, 302-739-9069

Vol. 46, No. 310

DOVER – Final  amendments to Delaware’s Regulations Governing Beach Protection and the Use of Beaches – that implement legislative changes to the state’s Beach Preservation Act and clarify and codify the process for construction to help preserve the state’s fragile dune and beach system – will go into effect Aug. 11. The amendments, pursuant to 7DE Admin. Code §5102, were approved July 15 in an order signed by DNREC Secretary David Small, and will be submitted to the State of Delaware’s Register of Regulations for publication Aug. 1. 

Delaware’s Beach Preservation Act was passed in 1972 as the General Assembly recognized that Delaware’s beaches were rapidly deteriorating due to a combination of natural processes and continuing encroachment. DNREC was charged through the act to enhance, preserve and protect the public and private beaches of the state and to mitigate beach erosion and minimize storm damage.

A significant amendment to the Beach Preservation Act was passed by the General Assembly in 1996, requiring DNREC to take additional steps to minimize the impacts on the beach and dunes from any construction that took place seaward of the building line established to protect coastal dunes. The methodology for achieving the objective stated in the legislation was developed by the Department as a set of procedures and guidance that became known as “The Four-Step Process.” This guidance had not been incorporated into Delaware’s beach regulations until now.

“Delaware’s beaches and dunes are among our most vulnerable natural resources, a significant driver behind our state’s economy and critical to protecting our coastal areas,” said Secretary Small. “Incorporating the Four-Step Process into the regulation, as it has existed and been applied during the past 20 years, assures consistency, transparency and certainty for the public. It also allows the development and redevelopment of these sensitive areas to occur in an orderly and equitable fashion.”

Current Regulations Governing Beach Protection and the Use of Beaches were adopted in 1983. Since then, several amendments have been made to Delaware’s Beach Preservation Act that had not yet been incorporated into the regulations, along with several procedures used over the years to guide DNREC’s mission as stated in both the Beach Preservation Act and the state regulations for beach protection and use.

Notable proposed changes include:

• Changes to the Beach Preservation Act (Del. Code Title 7, Ch. 68) define a “Regulated Area,” which requires formal approval for construction activities for the first three buildable lots landward of the Mean High Waterline. “Regulated area” is the specific area within the defined beach that DNREC is directed to regulate construction of, to preserve dunes and to reduce property damage. The regulated area shall be from the seaward edge of the beach to the landward edge of the third buildable lot in from the mean high water line. This revision expands the amount of lots required to get approval in some areas and reduces it in others. Changes to the Act mandated this change in the regulations.
• The Regulations incorporate amendments to the Beach Preservation Act (Del. Code Title 7, Ch. 68), which direct DNREC to consider the effects of beach nourishment, where maintained to engineering standards, when existing houses located seaward of the Building Line are being reconstructed after being destroyed by an “Act of God or other accidental event.”
• Placement and approval of temporary structures are directly addressed in the revised regulations. The placement of temporary structures related to an event lasting 72 hours or less will be exempt from getting approval.
• The Four-Step Process for requiring proposed structures seaward of the Building Line to minimize encroachment onto beach and dunes, which is currently Department policy, is incorporated into the revised regulations.

Secretary’s Order 2016-WS-0023 about the amended regulations, as signed by Secretary Small, can be found on the DNREC website at: http://www.dnrec.delaware.gov/Info/Pages/SecOrders_Regulations.aspx. Paper or electronic copies of the regulations may be requested by contacting DNREC’s Division of Watershed Stewardship’s Shoreline & Waterway Management Section at (302) 739-9921.

CONTACT: Michael Globetti, DNREC Public Affairs 302-739-9902

Vol. 46, No. 262

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DOVER – On behalf of Delawareans and public health, DNREC has taken two recent actions through the federal court system and US Environmental Protection Agency  aimed at requiring “upwind states” to reduce air pollution generated within their borders that carries into and pollutes Delaware’s air, causing asthma, respiratory disease, and other public health problems for Delawareans.

The first action – a petition filed in U.S. Court of Appeals for the District of Columbia Circuit challenges an EPA final rule that granted a one-year extension to the Philadelphia-based ozone nonattainment area to comply with the 2008 national ozone standard. This area includes Delaware, Pennsylvania, Maryland and New Jersey. Delaware believes EPA should require pollution reduction programs to address the transport of emissions from one state to another, rather than granting the extension. Pennsylvania, Maryland and New Jersey requested the extension of the attainment deadline, but Delaware argued against it based on its analysis that meteorological conditions were more responsible for temporary improved air quality readings in the nonattainment zone, rather than actual reductions in air pollution.

“Delaware residents, businesses and industry have made great strides in reducing our own sources of air pollution’” said DNREC Secretary David Small. “But we cannot meet our air quality standards without sources in other states taking similar action. We are still dramatically affected by what upwind states are doing – or not doing – toward meeting air quality standards. If we are going to continue to ask Delawareans to do more, we need EPA to take steps to level the playing field between states. This action is the latest in a number that the Department has taken to seek EPA’s help.”

Delaware has complied with the requirements of the federal Clean Air Act by adopting in-state control measures for the prevention of emissions that would significantly contribute to non-attainment of the 8-hour ozone standard established by EPA. These actions have not only helped improve air quality in Delaware but have helped reduce impacts to our neighboring states that can be affected by the transport of air and contaminants. However, Delaware’s ability to achieve and maintain health-based air quality standards is severely impeded because more than 94 percent of bad ozone levels in Delaware are created by the transport of air pollutants from upwind states. DNREC’s Division of Air Quality has determined that attainment of the 8-hour ozone standards in Delaware is possible only through additional emission reductions in these upwind states that include  Maryland and Pennsylvania and other states further west and as far away as Michigan, Indiana, Ohio and Kentucky..

Predictably, the return of typical summer weather conditions of hot, humid sunny days has led to ozone exceedances in the Mid-Atlantic region, and air monitors throughout the Philadelphia non-attainment area, including Delaware, have confirmed that  air remains unhealthy by recording multiple exceedances of the ozone standard, with more exceedances likely to come over the next couple of months.

The second action taken this week by DNREC and Delaware is aimed specifically at the Brunner Island Power plant near York, Pa. Delaware filed a petition with the EPA under Section 126 of the Clean Air Act asking EPA to make a finding that emissions from the Brunner Island plant, with its three coal-fired electric generating units, significantly contributes to unhealthy ozone concentrations in Delaware.

Delaware’s petition is based on computer modeling that demonstrates that emissions from Brunner Island’s coal-fired units contribute heavily to ozone levels in Delaware that exceed the 2008 and 2015 8-hour ozone standards. EPA’s granting of the petition would require the Brunner Island facility to promptly reduce the emissions that significantly contribute to ozone exceedances in Delaware.

Brunner Island’s three coal-fired electric generating units are not currently equipped with modern nitrogen oxide (NOx) controls similar to those installed starting in 2010 at Delaware’s NRG Indian River facility near Millsboro – which have reduced the annual NOx emissions rate by upwards of 80 percent from the last remaining coal-fired electric generating unit at that facility, according to DNREC statistics. Modern NOx controls, such as selective catalytic reduction (SCR), have been in commercial service at coal-fired electric generating units for decades, and have the ability to significantly reduce NOx emissions from coal-fired combustion sources.

NOx is a precursor pollutant to the formation of ambient ozone. Ozone is formed when chemicals in the air such as NOx and volatile organic compounds react together in hot sunny conditions. Under Section 126 of the Clean Air Act, the EPA must make the requested finding or deny DNREC’s petition within 60 days after receipt.

Background on ozone The EPA established a short-term ozone standard (8-hour National Ambient Air Quality Standard) to address the potential health impact of short-term exposure to high levels of ozone. Short term exposure to ozone can cause rapid, shallow breathing and related airway irritation, coughing, wheezing, shortness of breath, and exacerbation of asthma, particularly in sensitive individuals and asthmatic children. Short term exposure to ozone also suppresses the immune system, decreasing the effectiveness of bodily defenses against bacterial infections. Research studies indicate that markers of cell damage increase with ozone exposure. Some studies suggest that there is a link between ozone exposure and premature death of adults and infant death. Other studies indicate a link between ozone and premature birth and adverse birth outcome, cardiovascular defects, and adverse changes in lung structure development in children. Children, the elderly, those with chronic lung disease, and asthmatics are especially susceptible to the pulmonary effects of ozone exposure. Additionally, studies have shown that ozone can adversely affects trees and vegetation, can cause reduced crop yields, and can contribute to the “nitrification” of bodies of water.

The formation of atmospheric ozone is a particular problem in the eastern United States and to Delaware because of its strategic Mid-Atlantic location during warm summer months when atmospheric conditions are the most conducive to ozone formation. The summer months also tend to coincide with periods of high electric consumption and the required electric generation to meet the electric demand. High levels of NOx emissions associated with the generation of electricity using fossil fuels contribute to the formation of ozone. In fact, the annual period comprising May 1 through September 30 is referred to as the “ozone season.”

CONTACT: Michael Globetti, DNREC Public Affairs, 302-739-9902

Vol. 46, No. 250

DOVER – Governor Jack Markell today signed Senate Bill 253 that provides additional options and flexibility to developers, contractors and landowners for meeting standards that protect Delaware’s water quality and reduce flooding impacts under the state’s sediment and stormwater management program.

The legislation is the result of a collaborative effort between the Department of Natural Resources and Environmental Control, state legislators, representatives of the development community, and members of DNREC’s Regulatory Advisory Committee (RAC), which has been working to improve upon Delaware’s sediment and stormwater regulations that were adopted in 2014.

“Managing stormwater is a critical component in meeting our water quality goals and for assuring that people and property are protected from flooding in Delaware,” said DNREC Secretary David Small. “We also have learned over the past two years of implementing the regulations that there are a number of challenges in meeting these standards. This legislation continues to put a priority on protection of our water resources through additional, more efficient best management practices (BMPs), with the goal of lowering the cost of compliance for developers, contractors and landowners. We appreciate the cooperation from all of the stakeholders, the DNREC team and the General Assembly in reaching agreement on the legislation.”

The new legislation clarifies that the emergency sediment and stormwater regulations that are used currently will remain in force until comprehensive regulations are adopted. SB 253, sponsored by Senator Gerald Hocker (R-20th District) and Representative Tim Dukes (R-Laurel), allows for an alternative standard to be used in meeting requirements to manage the volume of stormwater runoff from a site and will enable the approval process for permits to be expedited.

Sen. Hocker said of the bill, “We knew we had major problems. Projects were being delayed and the costs associated with engineering for the projects were out of control. I met with representatives from DNREC along with homebuilders, engineers, and members of the farming community. We were able to come up with a compromise we feel everyone can work with, without compromising the environment.”

Rep. Dukes said that SB 253 rose above politics in becoming law. “This compromise measure is the result of how government should work with the people it serves. By enacting this legislation, we are recognizing that the 2014 stormwater regulations were too burdensome on the public,” he said. “Legislators, land owners, poultry farmers and developers came together at the table with DNREC, and worked cooperatively to reduce the regulatory burden while continuing to protect the environment. I am proud to be part of this effort and to have been the sponsor of this important measure in the House.”

What resulted from collaborative interests who addressed the state’s stormwater management issues was a bill that:

• Allows the use of additional BMPs that are determined to be functionally equivalent to existing BMPs under existing emergency regulations;
• Provides that DNREC develop standard plans to comply with the regulation for agricultural structures, including poultry houses that disturb less than 10 acres;
• Includes an exemption for stormwater management for residential projects under an acre, which is consistent with federal requirements;
• Allows applicants seeking approval of stormwater management plans to continue to utilize standards established in the current emergency regulations until new regulations are adopted;
• Extends the timeframes for an approved plan and redelegation of program elements from three to five years;
• Requires proposed regulations to comply with the Regulatory Flexibility Act, and
• Waives the timelines of the Administrative Procedures Act so that emergency regulations can remain in effect while the Regulatory Advisory Committee continues to develop changes to the regulations and supporting technical documents.

The current emergency regulations were adopted on April 15 to provide certainty for the development community and to allow projects to continue through DNREC’s approval process without a gap in sediment and stormwater regulations following a court decision citing a procedural flaw in the adoption of the 2014 regulations. Under the state’s Administrative Procedures Act, emergency regulations are only allowed to be in place for up to 180 days. However, with SB 253 having become law by the Governor’s signature, DNREC will not publish the interim regulations that were to appear in the July Register of Regulations. The Department will now be utilizing the emergency regulations, along with the new provisions in SB 253, to review and approve stormwater management plans, pending promulgation of comprehensive new regulations currently being developed by the RAC and DNREC.

CONTACT: Michael Globetti, DNREC Public Affairs, 302-739-9064

Vol. 46, No. 229

DOVER – The Department of Natural Resources and Environmental Control has adopted interim emergency sediment and stormwater management regulations – in effect reinstating the 2014 regulations invalidated today by Delaware’s Supreme Court, with the high court’s opinion upholding a Superior Court decision issued last fall. DNREC’s action today also adopts supporting technical materials as interim regulations, consistent with the Court’s ruling.

The technical materials for Delaware’s sediment and stormwater regulations include design and construction standards and specifications intended to assist in complying with the regulations. This action by DNREC will allow development projects to move forward through the review and approval process, which was established for reducing potential impacts from flooding and protecting public health, safety and welfare.

Neither of the two courts’ opinions provided specific guidance on how DNREC should review plans in the absence of a regulatory standard. Following the Superior Court’s decision last fall, DNREC adopted the 2014 regulations and technical documents through emergency action, until a stay was issued by the Superior Court. DNREC is following the same path today in order to allow projects currently under review to continue toward approval.

“We are obviously disappointed with the Court’s opinion, and are compelled to adopt emergency regulations to maintain certainty of the process, enabling us to continue to review and approve plans and allow landowners, developers, contractors and homeowners to maintain schedules and commitments to customers, lenders, agencies and others involved in these important projects,” said DNREC Secretary David Small. “Engineers, system designers and developers have repeatedly expressed their desire to see flexible standards that can be amended quickly if newer, cheaper and more efficient best practices are identified. Unfortunately this ruling will prevent those changes from happening more quickly, as they will have to go through the regulatory process, which may take many months to complete.”

Although some have argued that DNREC should revert to previous versions of the regulations, the Supreme Court’s opinion was silent on the matter, as was the earlier ruling by Superior Court. However, many projects submitted under the 2014 regulations would not meet standards under the previous 2006 version of the regulation and would need to be redesigned. In addition, prior regulations were implemented in conjunction with supporting technical materials, a practice criticized by the Superior Court in its original opinion last October.

The interim regulations, adopted under the state’s Administrative Procedures Act, will be in effect for 120 days and may be extended for an additional 60 days. During the effective period of the emergency regulations, DNREC will continue to work with the Regulatory Advisory Committee, which DNREC convened late last year, on changes to the sediment and stormwater regulations and technical standards. Any changes will be subject to public hearing under the state’s Administrative Procedures Act.

“We remain committed to a thorough, open and rigorous review of the regulation and technical standards,” said Secretary Small. “We have already made good progress with the Committee in identifying measures that can bring additional flexibility to stormwater management and I remain optimistic that, working together, we can find solutions that protect our precious water resources and at the same time address the concerns of other agencies, local government and the development community.”

Delaware’s sediment and stormwater management regulations are a vital tool in the state’s efforts to improve water quality and protect public health, safety and property from flooding. Under federal law, Delaware is required to have a valid erosion and sedimentation program in place for all construction activities, and Delaware’s erosion and sedimentation program must have enforceable regulations in place to be valid.

The Delaware stormwater management program was adopted in response to specific policy findings enacted into law;:“The General Assembly further finds that accelerated stormwater runoff increases flood flows and velocities, contributes to erosion, sedimentation, and degradation of water quality, overtaxes the carrying capacity of streams and storm sewers, greatly increases the costs of public facilities in carrying and controlling stormwater, undermines flood plain management and flood control efforts in downstream communities, reduces groundwater recharge, and threatens public health, welfare, and safety.”

The order adopting interim stormwater and sediment regulations can be found on the DNREC website at dnrec.delaware.gov/Info/Pages/SecOrders_Regulations.aspx

Media Contact: Michael Globetti, DNREC Public Affairs, 302-739-9902

Vol. 46, No. 131