Delaware enacts changes to Coastal Zone Act regs

From the law firm of Saul Ewing Arnstein & Lehr

On June 28, 1971, the Delaware Coastal Zone Act (the “Act”) was signed into law in order to protect the coastal areas of Delaware from the effects of heavy industry uses and offshore bulk product transfer facilities. The protected area is the coastline of Delaware, along the Delaware River and Delaware Bays, extending from the Delaware-Pennsylvania line in a southerly direction to the Maryland line. The Act prohibited the construction of new heavy industry uses in Delaware’s Coastal Zone and generally prohibited new offshore bulk product transfer facilities outside of the Port of Wilmington. The Act regulates existing heavy industrial uses and new and existing manufacturing uses in the Coastal Zone.

On August 2, 2017, the Coastal Zone Conversion Permit Act (“CZCPA”) was enacted to permit the Delaware Department of Natural Resources and Environmental Control (“DNREC”) to issue Conversion Permits for new heavy industry uses within fourteen (14) existing heavy industry sites in Delaware’s Coastal Zone, as well as for the bulk transfer of products. DNREC was charged with the development of regulations in connection with the CZCPA which regulations became effective on October 1, 2019.

In developing regulations for the CZCPA, DNREC also made certain changes to the regulations already in effect pertaining to the Act. In that regard, DNREC made the following revisions:

The information required for permit applications under the Act is significantly more robust, requiring, among other things, data to support any analyses provided including citations to published peer review articles, models and modeling results and data sources.
The required Environmental Impact Statement accompanying an application now must:
- Be certified by a Delaware registered professional engineer or professional geologist;
- Provide, on an annual basis, the probable air, land and water pollution likely to be generated by the proposed use;
- The person certifying the Environmental Impact Statement must provide an opinion as to whether the project or activity will in any way result in any negative environmental impact on the Coastal Zone;
- Show the impact on the watershed for the proposed project rather than simply on the drainage in the area; and
- Show the effect of project site preparation and facility operation on the quality and quantity of surface and groundwater resources, including withdrawals and discharges, identification of potentially affected water supply sources and public and private wastewater treatment facilities.
An Economic Effects Analysis is now required showing the number of jobs created, their classification as part-time/full time/temporary/permanent, along with their wages and salaries and the amount of tax revenues that will accrue to state and local governments.
Any permit to be granted under the Act will now have a duration of no greater than twenty (20) years (or less at the discretion of the DNREC Secretary) – permits granted to date have no time limit.
Renewal of a permit under the Act is now subject to the same requirements as for the issuance of an initial permit.
A new process is established for modifying a permit under the Act.
- A minor modification is available for administrative changes such as corrections of spelling or grammatical errors.
- A major modification is required in order to change ownership, control or any substantive term of a permit. A major modification requires public notice and a comment period as well as a public hearing at the discretion of the DNREC Secretary. Prior to the adoption of these regulations, transfers of permits under the Act merely required the submission of a written request to the DNREC Secretary.

In addition to the changes outlined above, in order to obtain a Conversion Permit for any of the fourteen (14) designated sites or a bulk product transfer facility, there is a very robust permitting process that includes, among the other requirements already required for a permit under the Act: the submission of a Sea Level Rise and Coastal Storm Plan to prepare for the potential impacts of sea-level rise and coastal storms over the useful life of the project site; an Environmental Remediation and Stabilization Plan; the establishment and maintenance of financial assurance through an approved financial assurance instrument; and strict recordkeeping and reporting requirements following permit issuance.

The complete regulations can be found here.

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