Soon after the start of my NC County Planning Board duties in 1998, I was surprised by a telephone call from DNREC inviting me to attend a Coastal Zone Industrial Control Board - - CZICB - - hearing in Lewes, at 2pm on a work day. I thanked the caller, noted that I had never before gotten such an invitation, and asked why I got one this time. The caller said it was because I was a member of the Board. My response: No Way! (actually it was a bit more strenuous than that.) So the caller read to me the provision of the Delaware Coastal Zone Act creating the Board, and including among its members the Planning Board Chairmen of Delaware’s three counties.
The CZICB meets rarely, almost always to hear and decide appeals from decisions by the Secretary of DNREC on Coastal Zone matters. It has been my practice almost from the beginning of this service to report to the Planning Board on all substantive matters that come before the CZICB. This is one such report.
The CZICB consists of nine members. Five members sat for the current matter. Two others recused themselves, and two more did not participate for other reasons. Following are relevant words from the Coastal Zone Act:
“. . . Any member of the Board with a conflict of interest in a matter in question shall disqualify
himself or herself from consideration of that matter. A majority of the total membership of the
Board less those disqualifying themselves shall constitute a quorum. A majority of the total
membership of the Board shall be necessary to make a final decision on a permit request.”
The Board’s counsel and chairman contend that a 1991 decision by the Superior Court justifies regarding a decision of four of the five sitting members as sufficient for both a quorum AND a decision, despite the quoted words from the Coastal Zone Act.
DNREC awarded a Coastal Zone permit to Tidewater Environmental Services, Inc. (TESI) to build and operate a large Sewage Treatment Plant (STP) in the Coastal Zone south of Route 24 and west of Route 1 in Sussex County. (Numerous additional permits will be needed before construction can begin, so construction isn’t imminent.) The award was appealed, on environmental grounds, to the CZICB by the Sierra Club, the Citizens Coalition Inc, the Citizens Action Foundation Inc, and Southern New Castle County Alliance Inc. TESI also appealed, on procedural grounds.
At the full start of operation, the Wandendale Sewage Treatment Plant (STP) would damage the Coastal Zone (CZ) with deposits of highly treated sewage imported from outside the CZ, with substantial residual quantities of nitrogen and phosphorus pollutants. The offsetting benefit would be the reduction of contributions of sewage with less intensive treatment to Sussex County aquifers outside the CZ. These contributions would eventually reach the CZ anyway, with pollutant concentrations reduced by dissipation, absorption, adsorption, dilution and delay along the way. (Remember that neither DNREC nor local land use regulators object to individual water supply wells as close as 100 feet from individual septic tank-drain field installations.) There has not been a showing by the Applicant or by DNREC that either the eventual or the immediate net impact on the CZ would be beneficial. The Coastal Zone Regulation (the Reg) demands a net benefit to the CZ.
The notion that every bit of production by the STP has a positive impact on the Delaware CZ is not true according to testimony by DNREC expert witness Ronald Graeber. Under my examination (Hearing Transcript pg 198 et seq), he agreed, in summary, that:
- If a dwelling unit (DU) within the CZ connects to the STP, it's a positive impact on the CZ
and on Sussex County;
- If a DU remote from the CZ and presently on septic connects to the STP, the continuing
flow from prior contributions to aquifers draining to and/or thru the CZ, albeit with dilution,
continues for years into the future as a negative impact on the CZ, and the contribution
via the STP is an additional negative impact on the CZ, so that while BOTH impacts continue
the former septic DU makes the negative impact LARGER than the contribution to the STP;
- For a new DU remote from the CZ, the extent that there's a difference between how large is
the negative impact on the CZ, and when the impact is felt in the CZ, if the DU connects to
the STP or uses a septic alternative with aquifer flow and aquifer dilution, depends on how
close the DU is to the CZ. That the STP is a benefit to Sussex County is undeniable. The
impact on the CZ depends on where the sewage originates and how long what’s not
dissipated on the way to the CZ takes to get there.
The Reg at Section 9.1.3 demands that preferences be given for offsets that are within the CZ and offsets that are felt immediately rather than in the fullness of time. DNREC failed to recognize this distinction. The Reg at Section 9.1.4 demands well-defined and measurable (i.e. quantifiable) offset proposals. DNREC failed to provide such. Both the Applicant and DNREC contended that the STP is its own offset. While this could be correct for Sussex County, it cannot be true for the CZ. Besides, if the STP is its own offset, it fails the Reg 9.1.3 requirement which demands an offset larger than the negative impact. The STP cannot be larger than itself.
Since geography and the calendar affect how much less than the total flow from new DU's outside the CZ is their impact on the CZ, it follows that when "how much less" is not credibly quantifiable, the total contribution to the CZ from new DU's must be regarded as a negative impact. And even if "how much less" were quantifiable, the IMMEDIATE negative impact would be the total flow because the flow via the septic alternative would be delayed, perhaps for many years, according to geography.
THE DAY OF DECISION
At its Sept. 24, 2010 deliberation and decision meeting, the CZICB decided that neither of two other violations of law or regulation were sufficient, standing one at a time, to warrant denial of the Coastal Zone permit. Careful reading of the meeting transcript verifies that the CZICB did not decide
whether the two other violations, considered together, were or were not sufficient. And then the CZICB formally refused to discuss whether or not the negative impact on the Coastal Zone is sufficiently offset by positive impacts, as the Regulation demands.
This final refusal formalized earlier refusals during off-the-record deliberations each time I raised the issue. I had misinterpreted that as agreement. My error became clear when my on-the -record motion to directly address the balance between positive and negative impacts failed to get a second. Immediately thereafter, the Chairman declared the meeting concluded.