Environmental Law

Delaware State Board?s Failure to Uphold Coastal Zone Act Program

By Walter James

This is a guest post from Alexis Bonari.  You may contact her directly at alexisbonari@gmail.com.

When the Department of Natural Resources and Environmental Control (DNREC) Secretary Collin O?Mara issued a permit for a water treatment facility that included six mitigation conditions with no schedule, environmental groups sought legal action. The environmental mitigation requirements addressed serious issues in vague terms, leading environmental activists to become concerned about Delaware?s Coastal Zone. Now, those concerns have grown even larger, as the state appeal board has upheld the permit, denying the violation of the Coastal Zone Act.

The Facility

With its permit upheld by the appeal board, Tidewater Environmental Services (TES) is moving forward with its initiative to build a regional wastewater treatment and disposal facility in Delaware?s Coastal Zone. TES is the first applicant to seek a Coastal Zone permit for a privately owned sewage plant and intends to serve customers who live outside of the Zone, causing environmental groups to wonder why the facility should be located within the Coastal Zone. Spray irrigation and rapid-infiltration basin technology are the intended methods of wastewater treatment and disposal. The main environmental concerns raised by TES?s construction plan include nitrogen pollution and the depositing of unfamiliar nutrients in the Inland Bays, both of which are phenomena caused by rapid-infiltration basin systems.

Conditions of the Permit

According to the Secretary?s Order prepared by O?Mara, the following conditions were to be satisfied in order for the permit to be obtained by TES:

• Cut design capacity to just under half (1.45 rather than 3 million gpd). This condition is meant to prevent groundwater damage, but with no schedule or further details, it?s an ineffective attempt to comply with the DNREC?s assessment.
• Submission of plan to reduce environmental footprint of facility and plan for reforestation (130% replacement of mature forest loss). Essentially, this permit allows TES to cut down trees in the Coastal Zone as long as they?re replaced and increased by 30% to compensate for the damage. Again, there?s no schedule to specify when (if ever) this should be accomplished.
• Fulfillment of Natural Heritage report?s recommendations for protecting wildlife and natural resources from potential facility harm. Construction and operation procedures are obviously a concern here, but the lack of schedule and specific requirements makes this condition unhelpful.
• Submission of operating plan using spray irrigation as preferred discharge method to the greatest extent practicable. This condition is full of ?preferred? methods, such as irrigating agricultural areas over wooded ones, but there?s no way to hold TES accountable.
• Relocation of rapid-infiltration basin. Without a specific location determined, TES is supposed to simply consult with the DNREC to find a more suitable place for the facility (but this will still be within the Coastal Zone).
• Submission of surface water assessment report in compliance with Total Maximum Daily Loads for surrounding watersheds.

Further Action

Environmental groups represented by the Widener University School of Law Environmental Law Center?s director are preparing to take their case to court, maintaining that Secretary O?Mara violated the Coastal Zone Act.

Photo: Public Domain
URL: http://farm5.static.flickr.com/4048/4391512649_16f62b0556.jpg

Full post as published by Environmental Crimes Blog on October 03, 2010 (boomark / email).