UNDER ATTACK: Delaware's Coastal Zone Act

Delaware's ocean and bay fronts and adjacent wetlands were long overlooked by industrial developers. About 40 years ago, the builders of ever-larger marine vessels saw the Delaware Bay as the best deep-water port on the East Coast, attractive for major transportation activities and associated heavy industry.  Recognizing that refineries and steel mills are important, Russ Peterson (Governor, 1969 to 1973) and many allies insisted that the best use of Delaware's  land area would combine environmental preservation, recreation and compatible industrial and commercial  activities within the coastal zone, with heavy industry encouraged outside the coastal zone. 
      
The result was the landmark Coastal Zone Act (CZA) and Coastal Zone Regulation (the Reg) therein authorized, which have kept our CZ from following the Marcus Hook to Philadelphia pattern.  Numerous court suits challenged the CZA, in Delaware Courts and in the Federal Courts, but the CZA has been upheld.  Notably, the US Court of Appeals for the 3rd Circuit found in 1987 that "Section 7003 of the CZA [the absolute prohibitions provision] does not violate the dormant Commerce Clause" of the US Constitution.  Thereby, the appeals court upheld a ruling by a lower Federal court that the US Congress, thru its Coastal Zone Management Act and an approval by the Secretary of Commerce, had consented to the Delaware CZA.
      
The CZA and the Reg allow permitting new manufacturing operations but absolutely prohibit new heavy industry and bulk material transfer operations except as permitted expansions or extensions of activities already ongoing in the CZ on the June 28, 1971 effective date. The CZA and the Reg allow permitting of public sewage treatment plants under the jurisdiction of "political subdivisions" and public recycling plants owned and operated by "political subdivisions."
      
There are two key permit process requirements.  The first: all negative impacts on the CZ must be more than offset by positive impacts on the CZ.  Offsets that start long after the negative impacts, and offsets outside the CZ, are of lesser value.   And the second:  the process has two steps, the Status Decision to decide whether proposed activity is lawful and whether a permit is required, and the Permit Detailing (and  offset evaluation) Procedure.  The Reg requires that public comments be solicited at the Status Decision level. The CZA and the Reg both require a public hearing at the Permitting level.
      
Perturbations that diminish the effectiveness of the permitting process have become conspicuous.  DNREC's hierarchy is no less than an accomplice in these perturbations. Most striking are:

• The ongoing Delaware River Dredging application, circa 2000:  For whatever reason, DNREC did not process this application under the CZA even though within a 24 mile stretch of the river adjacent to New Castle County, the State Line is at the Jersey shore.

• An early 2008 application for a plant in New Castle County to blend sand, polymer fibers, synthetic rubber, wax, and either polyethylene or PVC into a mixture for use as a horse racetrack surfacing material.  This resembles mixing concrete, heavy industry according to the NAICS Guide cited in NC County's UDC.  DNREC acknowledged that the use was heavy industry but granted the permit.

• A late 2008 application for galvanizing items as large as truck trailers by dipping in tanks of molten zinc (melt point 788 degF).  DNREC judged that "The proposed use would not be a 'heavy industry use' because the proposed size and manufacturing characteristics are more like a coating or painting process . . ." and granted the permit.

• A 2010 application for an investor owned sewage treatment plant south of Route 24 in Sussex County to process and infiltrate into the surface aquifer large quantities of sewage from outside the CZ. An appeal followed DNREC's grant of the permit.  See Vic Singer's report to the NC County Planning Board on the processing of the appeal posted on the Civic League for New Castle County's Website.

• A 2010 application for an investor-owned recycling plant south of Route 24 in Sussex County. This proposal is to "Construct and operate a resource recovery facility which would recover unused protein (blood, feathers and offal) and process it into hydrolyzed feather and poultry meal and feed grade fat."  The 10/20/2010 permit hearing evidently reflected a prior Status Decision that the forbidden use is somehow permissible.  

 The obvious legal question:  How can the next applicant for a CZ Permit be denied exactly the same CZA and Reg violation previously allowed for some other permittee?

By Victor Singer