delware environmental institute

News Journal: Court tosses out Delaware stormwater rules

A Superior Court judge has tossed out a massive rewrite of Delaware's stormwater and erosion-control regulations, in a court decision that the winning parties predicted would become a major precedent for public rights to review and challenge government rule-making. 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. He also said the agency wrongly disputed the standing of those who sued.

The regulations, and the ruling, have widespread consequence. 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."

State officials argued that only parties actually "injured" by regulatory changes have a right to sue. Graves said the state's position would force those with a stake in rule changes to wait until they suffered actual damages before disputing the rules in court.

DNREC has been working to update rules for managing erosion, stormwater and sediment runoff for more than a decade, with repeated setbacks and delays. The efforts began after destructive and costly floods across the state in 2003 and 2004.