Then-Governor Russell Peterson signed the Delaware Coastal Zone Act (7 Del.C., Chapter 70) into law on June 28, 1971. The Governor and General Assembly of 1971 recognized that the coastal areas of Delaware are the most critical areas for the future of the State in terms of quality of life. The law is designed to protect the natural environment of Delaware’s coastal areas from the destructive impacts of heavy industrialization and offshore bulk product transfer and safeguard their use primarily for recreation and tourism.
The Coastal Zone Act allows manufacturing through a Coastal Zone permit. The Coastal Zone Conversion Permit Act (2017) allows additional or alternative heavy industry uses on 14 grandfathered sites which were in operation when the Coastal Zone Act was passed in 1971.
From 1971 to 1999, there were no formal regulations to guide the permitting process. In 1993, the Coastal Zone Industrial Control Board adopted a proposed set of regulations, but subsequent lawsuits charged that there had been a violation of the Administrative Procedures Act in that the Board had not given proper public notice of its meeting when it voted to adopt the regulations. The court agreed and these regulations were voided.
On October 31, 1997, then-Governor Thomas Carper created a Regulatory Advisory Committee from a group of Delaware business representatives and environmental advocates to develop a memorandum of understanding, signed by all participants, which would describe concepts to be included in a new set of Regulations Governing Delaware’s Coastal Zone. The business community benefits from the regulations because they give more reliable expectations and guidance when applying for a new permit. The environmental advocates benefit from the regulations because all permit applications must include an offset proposal which clearly and demonstrably more than offsets any negative environmental impacts expected from the new activity, thus contributing to a net reduction in pollution emitted from regulated businesses in the Coastal Zone over time. After two public hearings, the Coastal Zone Industrial Control Board voted unanimously to ratify a proposed set of regulations developed by DNREC.
The Regulations Governing Delaware’s Coastal Zone (7 DE Admin. Code 101) became effective on May 11, 1999. They provide guidance to the business community, State officials, and the general public as to what is expected and required in reviewing applications for Coastal Zone permits. Applicants are also encouraged to discuss their proposed projects with DNREC staff well prior to filing an application for a permit.
In 2017, the General Assembly amended the Coastal Zone Act with the Coastal Zone Conversion Permit Act to allow additional or alternative heavy industry development at 14 grandfathered sites in the Coastal Zone. This Act encourages economic development and remediation of these sites, some of which are currently inactive or underutilized. This Act also directed DNREC to promulgate amended regulations to include requirements for conversion permits by October 1, 2019.
DNREC held public workshops and put together a Regulatory Advisory Committee, composed of various stakeholder groups, to provide recommendations to the Secretary on what to include in the regulations. Committee members were selected via nomination and then finalization by the Secretary to represent a diversity of interests and views, including Delaware business representatives, environmental advocates, affected communities, government planners, and public health. The Committee was also informed by technical workgroups of experts in the areas of Environmental Impacts, Economic Effects, Offsets, and Financial Assurance. The workgroups presented a set of options and a process flow for determining offsets to environmental impacts, economic effect metrics, and an in-depth exploration of the range of financial assurance instruments and their appropriateness for different risks.
DNREC and the Regulatory Advisory Committee engaged with the public throughout the regulatory development process as well. Community meetings and open houses allowed opportunities for members of the public to voice any comments. After reviewing public comments, the Committee drafted a final report of recommendations for regulations. This report guided DNREC in drafting proposed regulations, which were published in the June 2019 edition of the Delaware Register of Regulations. A public hearing was held on June 24, 2019 with a comment period that extended through July 9, 2019. DNREC reviewed the comments from the hearing and made necessary revisions to the proposed regulations.
The amended proposed regulations were approved by the Coastal Zone Industrial Control Board on August 26, 2019 and the final regulations were published in the September 2019 edition of the Delaware Register of Regulations. The new regulations became effective September 11, 2019.