Why Buffer Zones Will Most Likely Not be a DNREC Tool for Dealing with Sea Level Rise

June 30, 2013
by Stephanie L. Hansen

Flood.jpgWith the sustained focus on sea level rise, and DNREC's sustained interest in finding ways to address it, the question arises as to just how far DNREC can go. A glimpse into the recent past provides some guidance, at least with respect to the creation of buffer zones.

In 2011, Sussex County and several private landowners sued DNREC challenging the lawfulness of DNREC's new Pollution Control Strategy Regulations (the "Regulations"). The Regulations imposed various additional requirements on new developments, including modernized performance standards for wastewater treatment systems, heightened criteria to reduce nutrients in stormwater runoff, and most importantly and controversially, a doubling of the required riparian buffer zone from the County's 50-foot requirement to DNREC's 100-foot requirement landward from State-regulated wetlands and the high water line of all other primary water features. The purpose of the increased buffer zone was to prohibit development within the buffer zone and to allow the land to act as a natural filter to filter out nitrogen and phosphorus pollution before it entered the inland bays.

However, the Delaware Superior Court struck down those portions of the Regulations imposing the buffer zone as an attempt by DNREC to exercise zoning authority over the inland bays watersheds, authority which it ruled DNREC did not possess. Sussex County v. DNREC, 2011 Del. Super. LEXIS 131. DNREC appealed to the Delaware Supreme Court arguing that the imposition of the buffer zone did not constitute zoning because the buffer zone provisions were promulgated for pollution control purposes only. The Court disagreed and stated that the purpose behind the Regulations, no matter how well intentioned, could not cloak DNREC with actual zoning authority and, yes, the imposition of a buffer zone was, in fact, zoning. DNREC v. Sussex County, 34 A.3d 1087 (Del. 2011). Quoting a standard law school treatise, the Court said that zoning is defined as "the division of land into distinct districts and the regulation of certain uses and developments within those districts. It is the process that a community employs to legally control the use which may be made of property and the physical configuration of development upon tracts of land located within its jurisdiction. Generally, zoning ordinances provide control over land use within a neighborhood and are part of a comprehensive plan for community development." 83 Am. Jur. 2d, Zoning and Planning, Section 3 (2011).

The power to zone land lies with the General Assembly, but the General Assembly can (and did) delegate that power to the counties and the municipalities in Delaware. That is not to say that DNREC has no zoning authority whatsoever, though. Superior Court acknowledged that, in the past, the General Assembly has delegated zoning authority to DNREC through the Beach Preservation Act (granting DNREC exclusive power to regulate public and private beaches) and the Coastal Zone Act (granting DNREC exclusive power to control the location, extent and type of industrial development in Delaware's coastal areas). However, the General Assembly has not granted DNREC general zoning power and did not grant DNREC specific zoning power over the inland bays watersheds. As a result, in order to enact laws regarding zoning in the inland bays watersheds, DNREC must go through Sussex County.

So where does this leave us on the question of DNREC's authority to regulate land use in areas sensitive to sea level rise? Well, establishing a buffer zone is probably out unless the particular County is onboard. But buffer zones are only one tool in the toolbox for dealing with sea level rise and, particularly if the area in question is encompassed under the Beach Preservation Act or the Coastal Zone Act, there may be a few more options for DNREC to explore.