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 Delaware’s coastal area from the destructive impacts of heavy industrialization and offshore bulk product transfer facilities. The Act is intended to protect the natural environment of the coastal areas and safeguard their use primarily for recreation and tourism.
To accomplish these objectives, the Act strictly prohibits new heavy industry uses anywhere in the Zone and offshore bulk product transfer facilities in the Zone outside the Port of Wilmington or at established light manufacturing facilities that have, or may yet receive, a Coastal Zone Act Permit. These bulk product transfer facilities at light manufacturing facilities may only use them for their private usage to transfer raw materials and/or finished product for their private use. No other business may utilize these allowable bulk product transfer facilities. No new ship-to-ship transfer of bulk materials is allowed in the State’s portion of the Delaware estuary. The Act allows new light manufacturing facilities into the Zone, the expansion or extension of existing light manufacturing plants and heavy existing heavy industrial uses in the Zone by receiving a Coastal Zone Act Permit from the Secretary of the DNREC. The applicant must have the Permit prior to beginning any construction activities of the project.
Unlike most environmental laws, this program has not enjoyed a set of regulations to guide the DNREC Secretary in the administration of this program. From 1971 to 1993, there were no formal regulations. In 1993, the State Coastal Zone Industrial Control Board adopted a proposed set of regulations for this program. However, 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 the Board voted to adopt the regulations. The court agreed and these regulations were voided.
On October 31, 1997, Governor Thomas Carper instructed a select 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 Coastal Zone Regulations. On March 19, 1998, all parties did sign a memorandum that eventually lead directly to a new set of regulations based heavily on the agreed upon principles of the memorandum of understanding. In this memorandum of understanding, the two major factions both “win” a major achievement. The business community “won” by having regulations that are predictable and provide some relief from the need to acquire a new Permit each time their facility has a slight production increase or creates a new product. The environmental advocates “won” by keeping the ‘footprints’ of the existing legal heavy industrial sites developed in the 1993 regulations and by requiring every Permit to be pro-environment. This is accomplished by having an applicant establish an ‘Offset Proposal’ to negate any new pollution from their proposed project. This offset proposal must (in the opinion of the DNREC Secretary) clearly and demonstrably more than offset the applicant’s new pollution loading. Thus, there should be a net reduction of pollution emitted from regulated businesses in the Coastal Zone. Only the issue of electric power plants was to be left out of these negotiations because compromise on this issue seemed unlikely.
After two public hearings, the State Coastal Zone Industrial Control Board voted unanimously to ratify a proposed set of regulations developed by the DNREC. On May 11, 1999, the regulations became effective. These regulations, officially entitled Regulations Governing Delaware’s Coastal Zone (7 DE Admin Code 101), provide the best yet guidance to the business community, State officials and the general public as to what is expected and required of them in implementing this Act. In particular, the regulations describe what must be included in any Application for a Coastal Zone Status Decision, key definitions, ‘footprints’ of nonconforming uses, requirements for public notification, contents of all Applications for a Coastal Zone Permit (including the offset requirement) and a listing of land uses not regulated by this Act. Applicants are encouraged to discuss their proposed projects with DNREC staff well prior to filing an application for a Permit.
In an effort to assist the business community comply with these regulations, the DNREC has developed a Compendium of Possible CZA Permit Offsets. This compendium will exemplify concepts the Department feels may be acceptable as an offset in the permit application. However, any offset proposal must be commensurate to the amount of new pollution emitted to the environment from the applicant’s new project. An applicant should consider aiming his offset proposal towards improving one of the Environmental Goals of the Coastal Zone. The Department developed these goals with advice from subject matter experts in many fields of the natural sciences. The DNREC Secretary will favor a proposed offset that helps a threatened goal over an equally meaningful offset project that supports a goal that is not at risk. The regulations further outline the Secretary’s preferences in accepting offset proposals