Delaware Department of Natural Resources & Environmental Control v. Sussex County

34 A.3d 1087, 2011 Del. LEXIS 682, 2011 WL 6840591
CourtSupreme Court of Delaware
DecidedDecember 29, 2011
DocketNo. 145, 2011
StatusPublished
Cited by18 cases

This text of 34 A.3d 1087 (Delaware Department of Natural Resources & Environmental Control v. Sussex County) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delaware Department of Natural Resources & Environmental Control v. Sussex County, 34 A.3d 1087, 2011 Del. LEXIS 682, 2011 WL 6840591 (Del. 2011).

Opinion

HOLLAND, Justice:

At issue in this case is the validity of Sections 4 and 5 of the Delaware Department of Natural Resources & Environmental Control’s (“DNREC”) “Regulations Governing the Pollution Control Strategy for the Indian River, Indian River Bay, Rehoboth Bay and Little Assawoman Bay Watersheds” (“PCS Regulations”), which were promulgated in 2008 to effect DNREC’s Pollution Control Strategy (“PCS”) for the Inland Bays watershed area.

On November 25, 2008, Sussex County filed a complaint against DNREC asserting that DNREC exceeded its constitutional and statutory authority in promulgating the PCS Regulations. On November 26, 2008, White Farm, LLC, BAR-SGR, LLC, Wayne Baker, LLC, and Baxter Farms, Inc. filed a complaint alleging essentially the same violations by DNREC. Both complaints sought the issuance of a declaratory judgment1 invalidating certain portions of the PCS Regulations.

The Superior Court held that Section 4 of the PCS Regulations, which establishes the water quality buffer, and the related stormwater control provisions of Section 5, constituted “zoning,” and thus directly conflicted with the Sussex County Zoning Ordinance. The Superior Court held those portions of the PCS Regulations were void and ordered that they be stricken.2

In this appeal, DNREC argues that the Superior Court erred as a matter of law in holding that those portions of the PCS Regulations imposing a water quality buffer constitute illegal zoning and are void. According to DNREC, the water quality buffer provisions in the PCS Regulations, codified at 7 Del. Admin. C. § 7403, do not constitute zoning because they were promulgated for pollution control purposes only. DNREC asserts that the PCS Regulations were promulgated pursuant to title 7, section 6010(a) of the Delaware Code to effectuate Chapter 60’s express policy and purpose of pollution control. DNREC also submits that the water quality buffer provisions in the PCS Regulations do not conflict with any law of this State, including the Sussex County Zoning Ordinance, which creates a zoning buffer.

We have concluded that DNREC’s “no zoning” argument is contradicted by language in those portions of the PCS Regulations that are at issue. Therefore, the judgment of the Superior Court must be affirmed.

Facts

DNREC undertook to reduce pollution in the Indian River, Indian River Bay, Rehoboth Bay and Little Assawoman Bar and their tributaries (“Inland Bays”). In contemplation of issuing appropriate regulations, DNREC received public comments from 2005 through 2008. In May 2008, DNREC announced the Pollution Control Strategy (“PCS”) for the Inland Bays [1089]*1089based on the recommendations offered by the Inland Bays Tributary Action Team.3

On June 1, 2008, DNREC published the PCS Regulations in the Delaware Register of Regulations. Approximately 400 persons attended a public hearing on June 23, 2008, many of whom were concerned about the DNREC — mandated water quality “buffers” that are at issue in this appeal. On October 14, 2008, a Hearing Officer issued a report summarizing the procedural posture of the PCS Regulations and the extensive comments taken, and discussing the authority for the issuance of the regulations. On October 15, 2008, the PCS Regulations were adopted and codified at 7 Del. Admin. C. § 7403.

All parties acknowledge that the primary focus of the litigation is on Sections 4.0 (Buffer Zone Established) and 5.0 (Sediment and Stormwater Controls). Those sections combine to effectuate buffer zones, which limit landowners’ uses of their property if the property is adjacent to an Inland Bay waterway. Water quality buffers are described as natural areas between the active land uses and wetlands, or water bodies. The buffers are managed to promote the natural removal of pollutants and to protect wetlands against encroachment or physical alterations. The PCS Regulations require the buffer zone to be 100 feet.

Standard of Review

The issue to be decided is the validity of Sections 4 and 5 of the PCS Regulations. Title 29, section 10141(e) of the Delaware Code states:

Upon review of regulatory action, the agency action shall be presumed to be valid and the complaining party shall have the burden of proving either that the action was taken in a substantially unlawful manner and that the complainant suffered prejudice thereby, or that the regulation, where required, was adopted without a reasonable basis on the record or is otherwise unlawful.4

In enacting the PCS Regulations, the DNREC Secretary, John Hughes (“Secretary”), maintained that the department’s statutory authority derives primarily from title 7, section 6010(a) of the Delaware Code.5 This section provides that “[t]he Secretary may adopt, amend, modify or repeal rules or regulations, or plans, after public hearing, to effectuate the policy and purposes of this chapter. No such rule or regulation shall extend, modify or conflict with any law of this State or the reasonable implications thereof.”6 Within his Order adopting the PCS Regulations on October 15, 2008, the Secretary also found support for the PCS Regulations in the federal Clean Water Act (“CWA”),7 and in particular Sections 305(b) and 305(d). The Secretary explicitly rejected the argument that the water quality buffers were outside DNREC’s authority because “[t]he buffer areas are required to protect the water quality of the Inland Bays, which is one of the Department’s central purposes, as delegated from the General Assembly.”

The Superior Court found that the PCS Regulations, in establishing buffer zones and in regulating the use of land, constitute zoning,8 which falls within the regula[1090]*1090tory authority of the counties, not DNREC. DNREC argues, however, that the water quality buffer provisions in the PCS Regulations do not constitute zoning because they were promulgated for pollution control purposes only (stating that the regulations create “water quality buffers”). As such, DNREC maintains, the PCS Regulations were lawfully promulgated pursuant to title 7, section 6010(a) of the Delaware Code to effectuate Chapter 60’s express policy and purpose of pollution control.

Questions of law are reviewed de novo.9 Statutory interpretation is a question of law. Accordingly, this Court does not defer to either the agency’s or the Superior Court’s interpretation of the statutes in question.10

Sussex County Zoning Authority

The power to zone is vested in the General Assembly.11 Under article II, section 25 of the Delaware Constitution of 1897, however, the General Assembly is authorized to delegate this power to the counties. Article II, section 25 of the Delaware Constitution of 1897 provides:

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34 A.3d 1087, 2011 Del. LEXIS 682, 2011 WL 6840591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delaware-department-of-natural-resources-environmental-control-v-sussex-del-2011.