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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJune 2019


Regulatory Flexibility Act Form

Authenticated PDF Version

7 DE Admin. Code 101
House Bill 190, the Coastal Zone Conversion Permit Act of 2017 (CZCPA), amended the Coastal Zone Act of 1971 and required DNREC to revise its Regulations Governing Delaware’s Coastal Zone (7 DE Admin. Code 101). Prior to the passage of the CZCPA, all heavy industry and bulk product transfer activities not in operation on June 28, 1971 were prohibited in the coastal zone. The CZCPA allows for the permitting of these activities under certain conditions. The proposed regulations specify these conditions in accordance with the CZCPA.
This is required under 7 Del.C. Chapter 70. There is no sunset provision.
7 Del.C. Chapter 70.
Written comments may be submitted via email to lisa.vest@delaware.gov (subject line: “CZCPA Regulation Comments”) or via USPS at Lisa Vest, DNREC, 89 Kings Highway, Dover, DE 19901.
Delaware’s Coastal Zone Act (the Act) was passed in 1971 and provides to the Secretary of the Department of Natural Resources and Environmental Control and the Coastal Zone Industrial Control Board the authority to promulgate regulations to carry out the requirements contained within the Act. For numerous reasons, regulations were never adopted and implementation of Coastal Zone Act was left to an undefined and informal process that frustrated industry and environmentalist alike. That frustration further polarized the debate over the original intention of the Act and what the focus of any regulations should be.
The regulations have been amended to update them in accordance with the mandate of the Coastal Zone Conversion Permit Act of 2017 (CZCPA). Section 9 of the CZCPA mandated that the Department start a public workshop process to draft revised regulations consistent with the CZCPA no later than October 1, 2017, and that the revised regulations be promulgated by October 1, 2019. The Secretary engaged in a public stakeholder process and convened a Regulatory Advisory Committee (RAC), which provided recommendations on a number of discretionary issues. The RAC, chaired by former Justice Randy Holland, formed workgroups to focus on issues of financial assurance, offsets, economic benefit, environmental impacts, and community involvement. The RAC deliberated on the workgroup findings and prepared comprehensive recommendations to the Secretary on revisions to the Regulations Governing Delaware’s Coastal Zone. The RAC’s work and recommendations were presented at open houses and public comments were received. The Secretary’s draft regulations were also presented to the Coastal Zone Industrial Control Board for approval, as mandated by the Act. The Regulations were formally promulgated and a public hearing was held and comments received, consistent with the Administrative Procedures Act. The final version of the Regulations was published in the Register of Regulations on ______ __, 2019 and became effective on ________ __, 2019. The original purpose of the regulations continues and is enhanced through these regulations that provide for coastal zone conversion permits to return industrial sites to active use or more productive use while ensuring the protection of natural resources.
2.1 The Coastal Zone Act program, as amended by the Coastal Zone Conversion Permit Act, and these regulations are administered by the Delaware Department of Natural Resources and Environmental Control pursuant to 7 Del.C. §7005(a) and 7014(b), (e), (f), and (g).
2.2 These regulations apply to areas within the Coastal Zone as defined by 7 Del.C. Ch. 70. A map of the coastal zone appears in Appendix A of these regulations. The 14 “heavy industry use site[s]” defined in 7 Del.C. Ch. 70, §7002(g) are depicted in Appendix B of these regulations.
2.3 These regulations specify the permitting requirements for existing non-conforming uses use sites already in the coastal zone, including for heavy industry use sites subject to conversion to an alternative or additional heavy industry use or bulk product transfer facility, and for new manufacturing uses proposing to locate within Delaware’s coastal zone.
Many terms which appear in these regulations are defined in the Coastal Zone Act and the Coastal Zone Conversion Permit Act as shown in Appendix E and Appendix F. Terms not defined in the Coastal Zone Act or the Coastal Zone Conversion Permit Act shall have the following meanings:
“Administratively Complete” means a coastal zone permit application or status decision request that is signed, dated, and contains, in the opinion of the Secretary, complete, substantive responses to each question, a sufficient offset proposal, if applicable, and includes the appropriate application fee and all enclosures the applicant has referenced in the application.
Anticipated Useful Life” means the period of time that an applicant or permittee expects to operate a facility that requires a Coastal Zone conversion Permit.
Applicant” means a person who is preparing to submit or who has submitted a Coastal Zone Act or Coastal Zone Conversion Permit Act application.
Beneficiary” means the Department of Natural Resources and Environmental Control, not including individual employees.
“Board” means the State Coastal Zone Industrial Control Board.
“Bulk Product” means loose masses of cargo such as oil, grain, gas gas, and minerals, which are typically stored in the hold of a vessel. Cargoes such as automobiles, machinery, bags of salt salt, and palletized items that are individually packaged or contained are not considered bulk products in the application of this definition.
Catastrophic Incident” means any occurrence that causes an unplanned shut down or process upset that causes an unplanned release of a “hazardous substance,” as defined in the Comprehensive Environmental Response, Compensation and Liability Act Section 101(14), or hydrocarbon, whether the occurrence is natural, such as extreme weather, or resulting from human action, such as error, terrorism, vandalism, or other causes.
“Certify” means the applicant is attesting, by affirmation, that all the data and other information in the application provided is true and accurate.
Conversion Permit” means a permit issued by the Secretary under 7 Del.C. §7014 and these regulations for an alternative or additional use or bulk product transfer facility on a heavy industry use site.
CZCPA” means Coastal Zone Conversion Permit Act.
“Department” means the Delaware Department of Natural Resources and Environmental Control and its employees.
“Docking Facility” means any structures and/or equipment used to temporarily secure a vessel to a shoreline or another vessel so that materials, cargo, and/or people may be transferred between the vessel and the shore, or between two vessels together with associated land, equipment, and structures so as to allow the receiving, accumulating, safekeeping, storage, and preparation of cargoes for further shipment, shipment and administrative maintenance purposes directly related to such receiving, accumulating, safekeeping, storage, and preparation of cargoes for further shipment.
Environmental Damage” means harm to human health and the environment, including wildlife and wildlife habitat, which can result from such occurrences as pollution, releases of substances to air, land, and water, soil disturbance and erosion, alterations to drainage, filling of wetlands, habitat disturbance from light and noise, radiation, and others.
“Environmental Indicator” means a numerical parameter which provides scientifically-based information on important environmental issues, conditions, trends, influencing factors and their significance regarding ecosystem health. Indicators inherently are measurable, quantifiable, meaningful meaningful, and understandable. They are sensitive to meaningful differences and trends, collectible with reasonable cost and effort over long time periods, and provide early warning of environmental change. They are selected and used to monitor progress towards environmental goals.
Exposed” means, in the context of planning for Sea Level Rise and Coastal Storms, being in physical contact with water that inundates an area.
“Footprint” means the geographical extent of a non-conforming uses use as they it existed on June 28, 1971 1971, as depicted in Appendix B.
NRSRO” means a Nationally Recognized Statistical Rating Organization that issues credit ratings and is registered with the United States Securities and Exchange Commission.
Permit” means a permit issued under these regulations.
Permittee” means an entity that has been issued a permit under these regulations.
“Port of Wilmington” means those lands contained with within the footprint labeled as “Port of Wilmington” and shown in Appendix B of these regulations.
“Potential to Pollute” means the proposed use has the potential to cause pollution or short and long term adverse impacts on human populations, air and water quality, wetlands, flora and fauna, or to produce dangerous or onerous levels of glare, heat, noise, vibration, radiation, electromagnetic interference and obnoxious odors as determined in the applicant's Environmental Impact Statement accompanying the permit application. The Department will consider mitigating controls and risk management analysis reports from the applicant in evaluating a proposed use's potential to pollute. The Department shall consider probability of equipment failure or human error, and the existence of backup controls if such failure or error does occur, in evaluating an applicant's potential to pollute.
Pollution” means an environmental release, as defined at Title 7 §6002(19), or adverse impacts on human populations, air and water quality, land, wetlands, flora and fauna, or to produce dangerous or onerous levels of glare, heat, noise, vibration, radiation, electromagnetic interference and obnoxious odors.
Project Site” means the physical location at which a permitted facility operates, or the location where a facility that is the subject of an application will operate. A project site includes the property, facilities, equipment and infrastructure, and may comprise an entire tax parcel or parcels, or part of any tax parcel or parcels, however, its preliminary boundary shall be defined prior to the issuance of a permit, in the application for a permit, and its final boundary after a permit is granted by the Secretary, in the permit. For non-conforming uses, if a project site’s boundary is not defined in a permit, the boundary is the footprint in Appendix B of these regulations.
“Public Recycling Plant” means any recycling plant or industrial facility whose primary product is recycled materials and which is owned and operated by any city, town, county, district or other political subdivision.
“Public Sewage Treatment Plant” means any device and/or system used in conveyance, storage, treatment, disposal, recycling and reclamation of municipal sewage or industrial wastes of a liquid nature, which systems are under the jurisdiction of a city, town, county, district district, or other political subdivision.
“Recycle” means the series of activities, including collection, separation, and processing, by which products or other materials are recovered from or otherwise diverted from the solid waste stream for use in the form of raw materials other than fuel for producing heat or power combustion.
“Research and Development Activity” means those activities in which research and development substances are used in quantities that are not greater than reasonably necessary for the purposes of scientific experimentation or product or process development. The research and development substances must either be the focus of research and development itself, or be used in the research and development activity focusing on another chemical or product. Research and development includes synthesis, analysis, experimentation or research on new or existing chemicals or products. Research and development encompasses a wide range of activities which may occur in a laboratory, pilot plants or commercial plant, for testing the physical, chemical, production, or performance characteristics of a substance, conducted under the supervision of a technically qualified individual. Research and development is distinct from ongoing commercial activities which focus on building a market for a product rather than just testing its market potential. General distribution of chemical substances or products to consumers does not constitute research and development.
“Secretary” means the Secretary of the Department of Natural Resources and Environmental Control and the Secretary’s delegates or representatives.
“Vessel” means any ship, boat or other means of conveyance that can transport goods or materials on, over, or through water.
“Voluntary Improvements” means improvements, for example, in emissions reductions, habitat creation and spill prevention -- provided that each is definite and measurable and which were made by a facility without any federal or state requirement to do so.
4.0 Prohibited Uses Uses. The following uses or activities are prohibited in the Coastal Zone:
4.1 Heavy industry use of any kind not in operation on June 28, 1971.,unless such use is undertaken pursuant to a conversion permit under these regulations, however, no conversion permit shall be issued for:
4.3 Offshore gas, liquid, or solid bulk product transfer facilities which were not in operation on June 28, 1971, unless such uses are undertaken pursuant to a conversion permit granted under these regulations.
4.5 Bulk product transfer facilities and pipelines which serve as bulk transfer facilities that were not in operation on June 28, 1971, unless such uses or activities are undertaken pursuant to a conversion permit granted under these regulations.
4.6 The conversion or use of existing unregulated, exempt, or permitted docking facilities for the transfer of bulk products, unless such uses or activities are undertaken pursuant to a conversion permit granted under these regulations.
5.1 The construction and/or operation of the following types of facilities and/or and activities shall be deemed not to constitute initiation, expansion or extension of heavy industry or manufacturing uses under these regulations:
5.15.1.1 The raising of agricultural commodities or livestock.
5.25.1.2 Warehouses or other storage facilities, not including tank farms.
5.35.1.3 Tank farms of less than five acres.
5.45.1.4 Parking lots or structures, health care and day care facilities, maintenance facilities, commercial establishments not involved in manufacturing, office buildings, recreational facilities and facilities related to the management of wildlife.
5.55.1.5 Facilities used in transmitting, distributing, transforming, switching, and otherwise transporting and converting electrical energy.
5.65.1.6 Facilities used to generate electric power directly from solar energy.
5.75.1.7 The repair and maintenance of existing electrical generating facilities providing such repair or maintenance does not result in any negative environmental impacts.
5.85.1.8 Back-up emergency and stand-by source of power generation to adequately accommodate emergency industry needs when outside supply fails.
5.95.1.9 The continued repair, maintenance and use of any non-conforming bulk product transfer facility where that facility transfers the same products and materials, regardless of the amount of such products or materials, as those transferred on June 28, 1971.
5.105.1.10 Bulk product transfer operations at dock facilities owned by the Diamond State Port Corp. (DSPC) or its successors, or acquired by the DSPC or its successors at any time in the future, and which are located within the Port of Wilmington as shown in Appendix B.
5.115.1.11 Docking facilities used as bulk product transfer facilities located on privately owned lands within the Port of Wilmington which have been granted a status decision extending the bulk product transfer exemption prior to the effective date of these regulations.
5.125.1.12 Docking facilities which are not used as bulk product transfer facilities.
5.135.1.13 Any pipeline that originates outside the Coastal Zone, traverses the Coastal Zone without connecting to a manufacturing or heavy industry use and terminates outside the Coastal Zone.
5.145.1.14 Maintenance and repair of existing equipment and structures.
5.155.1.15 Replacement in-kind of existing equipment or installation of in-line spares for existing equipment.
5.165.1.16 Installation and modification of pollution control and safety equipment for nonconforming uses within their designated footprint providing such installation and modification does not result in any negative environmental impact over and above impacts associated with the present use.
5.175.1.17 Any facilities which have received, prior to the promulgation of these regulations, a status decision which provided an exemption for the activity in question.
5.185.1.18 Research and development activities within existing research and development facilities.
5.195.1.19 Any other activity which the Secretary determines, through the status decision process outlined in Section 7.0 of these regulations, is not an expansion or extension of a non-conforming use or heavy industry use.
5.205.1.20 Public Sewage Treatment Plants and associated conveyance infrastructure including piping and pump stations, subject to regulation by the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et. seq. and/or the Delaware Environmental Protection Act, 7 Del.C., Chapter 60.
6.1 The following uses or activities are permissible in the Coastal Zone by permit. Permits must be obtained prior to any land disturbing or construction activity.
6.16.1.1 The construction of pipelines or docking facilities serving as offshore bulk product transfer facilities if such facilities serve only one on-shore manufacturing or other facility. To be permissible under these regulations, the materials transferred through the pipeline or docking facilities must be used as a raw material in the manufacture of other products, or must be finished products being transported for delivery.
6.26.1.2 Any A recycling plant or sewage treatment plant not excluded by Section subsection 5.20 of the Regulations.
6.36.1.3 Any new activity, with the exception of those listed in Section 5.0 of these regulations regulations, proposed to be initiated after promulgation of these regulations, which constitutes an alternative or additional use or bulk product transfer facility on a heavy industry use site, or which is conducted by an existing heavy industry or a new or existing manufacturing facility that may result in any negative impact on the following factors as found in 7 Del.C. §7004 (b):
6.3.16.1.3.1 Environmental impact, including but not limited to, items 8.2.1 through 8.2.10 of these regulations. regulations;
6.3.26.1.3.2 Economic effect, including the number of jobs created and the income which will be generated by the wages and salaries of these jobs in relation to the amount of land required, and the amount of tax revenues potentially accruing to state and local government. government;
6.3.36.1.3.3 Aesthetic effect, such as impact on scenic beauty of the surrounding area. area;
6.3.46.1.3.4 Number and type of supporting facilities required and the impact of such facilities on all factors listed in this subsection. subsection;
6.3.56.1.3.5 Effect on neighboring Neighboring land uses including, but not limited to, effect on public access to tidal waters, effect on recreational areas and effect on adjacent residential and agricultural areas. areas; and
6.3.66.1.3.6 County and municipal comprehensive plans for the development and/or conservation of their areas of jurisdiction.
7.1 Any person wishing to initiate a new activity or facility may request a status decision to determine whether or not the activity or facility is a heavy industry requires a permit, is exempt from permitting, or is prohibited.
7.2 A person whose proposed activity is not exempted as specified in Section 5.0 above may request of the Secretary a status decision to determine whether or not the proposed activity requires a Coastal Zone permit under the Act or these regulations.
7.3 Status decision requests must be in writing on a form supplied by the Secretary and shall include, at a minimum, the following:
7.3.17.2.1 Name, address and contact person for the activity or facility under consideration. consideration;
7.3.27.2.2 Site Location of proposed activity marked on a map or site plan. plan;
7.3.37.2.3 A detailed description of the proposed activity under consideration. consideration;
7.3.47.2.4 An impact analysis of the proposed project on the six (6) criteria contained in Section subsection 6.3 (1-6) above.
7.47.3 Any new manufacturing facility or research and development facility proposed to be sited in the Coastal Zone shall apply for a status decision.
7.57.4 The Secretary may, if he has cause to suspect an activity within the confines of the Coastal Zone is prohibited or should receive a permit under these regulations, request of the person undertaking that activity to apply for a status decision as described in this section. Failure of the person to respond to the Secretary’s request shall subject said person to enforcement procedures as contained in the Act and/or Section 18.0 of these regulations.
7.67.5 Upon receipt of an administratively complete request for a status decision, After determining that a request for a status decision is administratively complete, the Secretary shall publish a legal notice as prescribed in Section 14.0 of these regulations advising the public of the receipt of the request and allowing 10 business days for interested persons to review the request and provide the Secretary with input on whether a permit should be required of the applicant.
7.77.6 The Secretary shall then, within an additional 15 business days, determine whether or not a permit will be required and notify of the close of the comment period in subsection 7.5, email the applicant in writing of his that determination. The Secretary shall publish that the determination as a legal notice as prescribed in Section 14.0 of these regulations.
8.0 Permitting Procedures
8.1 Permit Application Contents Contents. The applicant shall complete and submit to the Secretary three (3) identical copies of the Coastal Zone permit application in an electronic format. The application will be on a form supplied by the Secretary and will contain, at a minimum: The applicant shall provide references and data to support any analyses, citing published, peer reviewed articles, models and modeling results, and data sources, and official government regulations, reports and studies, where available and relevant. The application shall be on a form supplied by the Department and shall contain:
8.1.1 A certification by the applicant, which shall include all entities that have or will have ownership or control of the project site, that the information contained with the application is complete, accurate and truthful. truthful;
8.1.4 An Environmental Impact Statement as described in Section subsection 8.2 of these regulations. regulations;
8.1.5 A description of the economic effects of the proposed project, including the number of jobs created and the income which will be generated by the wages and salaries of these jobs and the amount of tax revenues potentially accruing to State and local government. described in subsection 8.3 of these regulations;
8.2 Environmental Impact Statement Statement. An environmental impact statement, certified by a Delaware registered professional engineer or professional geologist, must shall be submitted with the Coastal Zone permit application and must shall contain, at a minimum, an analysis of each of the following:
8.2.1 Probable air, land and water pollution likely to be generated, on an annual basis and as a singular event, by the proposed use use, under normal operating conditions as well as during mechanical malfunction and human error. In addition, the applicant shall provide a statement concerning whether, in the applicant’s certifier’s opinion, the project or activity will in any way result in any negative environmental impact on the Coastal Zone. Zone;
8.2.2 An assessment of the project’s likely potential impact on the Coastal Zone environmental goals and indicators, when and if such indicators are made publicly available. Coastal Zone environmental goals and indicators shall may be developed by the Department after promulgation of these regulations and used for assessing applications and determining the long-term environmental quality of the Coastal Zone. In the absence of goals and indicators, applicants must meet all other requirements of this section. section;
8.2.3 Likely destruction Destruction of wetlands and flora and fauna. fauna and their habitat that would result from project site construction and ongoing activity;
8.2.4 Impact of site preparation on drainage of the area in question, especially as it relates to flood control the watershed in which the proposed project is located, including any changes in topography, erosion, ground cover and displacement by structures of floodwaters;
8.2.5 Impact of site preparation and facility operations on land erosion; Effect of project site preparation and facility operation on the quality and quantity of surface and ground water resources, including withdrawals and discharges, identification of potentially affected water supply sources, and public and private wastewater treatment facilities;
8.2.6 Effect of site preparation and facility operation on the quality and quantity of surface and ground water resources, A description of the need for the use of water for processing, cooling, effluent removal, and other purposes;
8.2.7 A description of the need for the use of water for processing, cooling, effluent removal, and other purposes; The likelihood and extent of generation of glare, heat, noise, vibration, radiation, electromagnetic interference and obnoxious odors;
8.2.8 The likelihood of generation of glare, heat, noise, vibration, radiation, electromagnetic interference and/or obnoxious odors,. The effect of the proposed project on threatened and on endangered species as defined by the regulations promulgated by the State or pursuant to the Federal Endangered Species Act;
8.2.9 The effect of the proposed project on threatened or endangered species as defined by the regulations promulgated by the State or pursuant to the Federal Endangered Species Act, and, The raw materials, intermediate products, byproducts and final products and their characteristics from material safety data sheets (MSDSs), including carcinogenicity, mutagenicity and/or the potential to contribute to the generation of smog; and
8.2.10 The raw materials, intermediate products, byproducts and final products and their characteristics from material safety data sheets (MSDS’s) if available, including carcinogenicity, mutagenicity and/or the potential to contribute to the formation of smog. For conversion permit applications only, the effect of the project site’s proposed boundary on environmental remediation within the footprint of the heavy industry use site, including whether the project site boundary excludes areas known to be or potentially contaminated by past operations.
8.38.5 Application Review Process
8.3.18.5.1 The Secretary shall consider information supplied in the application and make permitting decisions consistent with the purpose of the Act as specified in 7 Del.C. §7001. Greater weight shall be accorded to assessments that utilize objective, verifiable and up-to-date sources of data than to assessments that do not utilize objective, verifiable and up-to-date sources of data. The Department reserves the right to request further relevant information after receipt of an application and prior to the application being deemed administratively complete. The Secretary shall notify the applicant by certified mail email when the application is deemed administratively complete.
8.3.28.5.2 In assessing an application, the Secretary shall consider how the proposed project will affect the six criteria cited in the Act, including project’s direct and cumulative environmental impacts, economic effects, aesthetic effects, number and type of supporting facilities and their anticipated impacts on these criteria, effect on neighboring land uses, and compatibility with county and municipal comprehensive plans. In addition, for conversion permits only, the Secretary shall also consider the proposed project’s Sea Level Rise and Coastal Storms Plan, Environmental Remediation and Stabilization Plan and Financial Assurance, and the degree to which the project site boundary is compatible with the uses, remediation efforts and environmental goals for the heavy industry use site and Coastal Zone.
8.3.48.5.3 Prior to public hearing, the Secretary shall provide a written assessment of the project’s likely impact on the six criteria listed in Section subsection 8.1 above and make available the preliminary determination of the sufficiency of the offset project as required in Section 9.0 of these regulations. The Secretary’s report will be provided to the applicant and interested citizens posted on the Department’s website prior to the public hearing and made a part of the record.
8.3.58.5.4 Upon receipt of an administratively complete application and completion After the determination that an application is administratively complete and the completion of the Secretary’s assessment as required in Section 8.3.4 subsection 8.5.3 above, the Secretary shall issue a public notice as prescribed in Section 14.0 of these regulations and hold a public hearing in accordance with hearing procedures described in Section O 14.0 of these regulations.
8.3.68.5.5 Within 90 days of receipt of an administratively complete application, not counting the day the application became administratively complete, the Secretary shall reply to the request for a Coastal Zone act permit either granting the permit, denying the permit or granting the permit but permit, with special conditions, or denying the permit. The Secretary shall state the reasons for his that decision.
8.3.78.5.7 The permit decision shall be sent to the applicant by certified mail email and shall be noticed as prescribed in Section 14.0 of these regulations. If no appeal is received within the 14-day appeal period following the date of publication of the legal notice, the decision becomes final and no appeal will be accepted.
9.0 Offset Proposals Offsets
9.1.1 Any application for a Coastal Zone permit for an activity or facility that will result in any negative environmental impact shall contain an offset proposal for a project that benefits Delaware. Offset proposals must projects shall more than offset the negative environmental impacts associated with the proposed project or activity requiring a permit, including on an annual basis, if applicable. It is the responsibility of the The applicant to choose shall propose an offset project that is clearly and demonstrably more beneficial to the environment in the Coastal Zone Delaware than the harm done by the negative environmental impacts associated with the permitting activities themselves proposed project.
9.1.2 All applicants, applicants are required to more than offset the negative impacts of the project or activity that is the subject of the application for a Coastal Zone permit. Applicants who have undertaken past voluntary improvements may be required to provide less of an offset than applicants without a similar record of past achievements.
9.1.3 The Secretary shall give preference to offset projects that are within the Coastal Zone, that occur in the same environmental medium as the source of degradation of the environment, that occur at the same site as the proposed activity requiring a permit and that occur simultaneously with the implementation of the proposed activity needing an offset. An applicant shall propose an offset project that countervails the negative environmental impacts of the conversion project, matching its location, pollutant released, if applicable, environmental medium and timing as closely as practicable.
9.1.4 Offset proposals should shall be well-defined and contain measurable goals or accomplishments which can be audited verified by a third-party or the Department.
9.1.5 Within 30 days of receipt of an application, the Secretary shall make a preliminary determination as to whether the proposed offset commitment is sufficient. If the offset commitment is deemed not to be sufficient, the applicant will be informed that his application is not administratively complete and the Secretary shall request another offset proposal. If negative environmental impacts involve the release of a pollutant, the applicant shall attempt to offset the release by eliminating or obtaining credits for the release of the same pollutant, if practicable. If it is not practicable to eliminate or obtain a credit for the release of the same pollutant, the applicant may propose the elimination of a different pollutant that affects humans, wildlife or the environment in a way that is similar to the effects of the pollutant that will be released by the project.
9.1.6 Where an offset project in itself requires one or more permits from a program or programs within DNREC, the Secretary shall issue the Coastal Zone Permit only after all applicable permit applications for offsetting projects have been received and deemed administratively complete by DNREC. An applicant may propose an offset project that affects a different environmental medium from that which will receive negative impacts only if it demonstrates to the satisfaction of the Department that it was unable to achieve an offset in the same environmental medium.
9.2 Offset Proposal Contents Contents. The applicant may provide whatever materials or evidence deemed appropriate evidence, in addition to the requirements of subsections 9.2.1 through 9.2.9, that are appropriate in order to furnish the Secretary with the information necessary for him to determine the adequacy of the offset proposal. The applicant must provide, at a minimum, the following information:
9.2.1 A qualitative and quantitative description of how the offset project will more than offset the negative impacts from of the proposed project as provided by the applicant pursuant to Section 8.2.1 of these regulations project, including on an annual basis, if applicable.
9.2.2 How the offset project will be carried out and in what period of time permittee plans to perform or complete the offset, including a schedule for completion.
9.2.3 What the environmental benefits will be and when they will be achieved the permittee proposes to ensure their delivery.
9.2.4 How the offset will impact the attainment of the Department’s environmental goals for the Coastal Zone and the any environmental indicators used to assess long-term environmental quality within the zone.
9.2.6 What scientific evidence there is Scientific evidence, including, but not limited to peer reviewed studies, models, or state, local or federal government publications concerning the efficacy of the offset project in producing its intended results.
9.2.7 How the applicant proposes to quantitatively and qualitatively measure the success or failure of the offset project will be measured in the short term and long term.
10.1 An applicant may withdraw his a request for a status decision or Coastal Zone permit at any time by submitting a written request, signed by the original applicant or applicants, to the Secretary. The Secretary shall provide public notice of the applicant’s withdrawal of an administratively complete request and the Secretary’s action on the request for withdrawal. In the case of such withdrawal there shall be no refund of the application fee paid. Once publicly noticed, the decision is final and cannot be reversed by the applicant or the Secretary.
10.2 Once public notice announcing a public hearing is advertised according to Section 14.0 of these regulations, no revisions to any application will be permitted beyond those allowed in Section subsection 10.3 below. In the event an applicant finds cause to make substantive revisions to an application after publication of the notice, the applicant will be required to submit a new application, including an additional application fee, an offset project and any other required application submissions as specified under Section 8.0 of these regulations.
All correspondence, permit applications, offset proposals and any other supporting materials submitted by applicants or materials prepared by DNREC the Department are subject to Delaware’s Freedom of Information Act (29 Del.C. Ch. 100) and the Department’s FOIA policy.
14.1.1 The receipt of a an administratively complete request for status decision.
14.1.414.1.3 The receipt of an application for a Coastal Zone Permit permit, renewal or major permit modification.
14.1.514.1.4 The scheduling of all public hearings.
14.1.614.1.5 The decision on all permit applications, renewals and major permit modifications.
14.1.714.1.6 The withdrawal of an administratively complete application by the applicant.
14.3 The Secretary shall also maintain a direct mail notification program whereby interested citizens may subscribe, free of charge, to a service where copies of all legal notices will be mailed directly to citizens emailed. The Secretary shall advertise this service on an annual basis and renew subscriptions from interested citizens as requested. Failure of the Secretary to mail email notices in a timely and accurate fashion shall not be cause for appeal of any action or decision of the Secretary.
16.1.3 Applicants must file notice of appeal with the Board within 14 days following announcement by the Secretary of his that decision. The day after the date of the announcement shall be considered the beginning date of the 14-day appeal period.
16.2.2 The Board shall publish a notice of the hearing as prescribed in 29 Del.C. Ch. 101, Section 10122 at least 20 days prior to the hearing.
16.3.1 Any person aggrieved by a final order of the Board as provided for in 29 Del.C. §10128, may appeal the Board’s decision to Superior Court in accordance with 29 Del.C. §10142. The Secretary may also appeal any decision of the Board as any other appellant.
18.1 In cases of non-compliance with these regulations or the provisions of 7 Del.C. Ch. 70, the Secretary may suspend or revoke any permit issued pursuant to these regulations or exercise other enforcement authorities provided for in the Act 7 Del.C. Ch. 70.
18.2 If an applicant fails to carry out any offset project in accordance with the schedule outlined in their permit, the Secretary may take any enforcement action he deems appropriate, including revocation of the Coastal Zone permit. The Attorney General shall have the power to issue a cease and desist order to any person violating any provision of this chapter. Provided that any cease and desist order issued pursuant to this section shall expire (1) after 30 days of its issuance, or (2) upon withdrawal of said order by the Attorney General, or (3) when the order is superseded by an injunction, whichever occurs first.
19.1 If, at any time, provisions within these regulations relating to Sections Section 5.0 and 9.0 are invalidated by a court of law, the entire regulation shall become null and void with the exception of the footprints for non-conforming uses shown in Appendix B and the public notice provisions of Section 14.0 15.0 of these regulations.
19.2 If, at any time, provisions other than those relating to requirements in Sections Section 5.0 and I are invalidated by a court of law, then only those particular provisions will become null and void and all other provisions will remain operational.
1.1 These regulations are built around two linked goals as developed by Governor Carper’s Coastal Zone Regulatory Advisory Committee. This committee met in late 1996, through 1997 and culminated their work in early 1998 with signing of the Memorandum of Understanding that formed the basis for these regulations. These regulations are designed to ensure environmental improvement in the Coastal Zone while at the same time providing industry with the needed flexibility to remain competitive in a global marketplace. The original Regulations Governing Delaware’s Coastal Zone (Regulations) were promulgated in 1999 to implement the 1971 Coastal Zone Act (CZA). This guidance was developed to support the application of those regulations. The Coastal Zone Conversion Permit Act (CZCPA) of 2017 required the Department to revise the Regulations, which was done with the recommendations of a Regulatory Advisory Committee (RAC) that deliberated from September 2018 through April 2019. This guidance document was also revised to reflect changes in the authorizing legislation and the revised regulations.
1.41.2 The following guidance is made available to interested citizens and applicants to better understand how these regulations will be interpreted and implemented by the Department. This guidance is, however, not a regulation and does not have the force of law. In the event of a conflict between this guidance and the regulations, the regulations will prevail.
2.1 When a business wants to conduct an activity that may be one of the activities exempted from the permitting process as outlined in Section 5.0, but the business is unsure of its determination, then the company Any entity that is conducting or is planning to conduct activities in the Coastal Zone may choose to seek a status decision from the Secretary rather than proceeding with filing a Coastal Zone permit application to determine whether they are required to obtain a permit under 7 Del.C. Chapter 70. According to 7 Del.C. Chapter 70, except for the fourteen heavy industry use sites, manufacturing sites that were not in active use on June 28, 1971 are allowed in the coastal zone by permit only. Also, the conversion of a heavy industry use site to an alternative or additional heavy industry use or to a bulk product transfer facility is allowed only by a conversion permit. Conversion permits are subject to special requirements as provided for in the statute an as described in the regulations. Any other use that is allowed by permit must obtain a coastal zone permit. Therefore, there are two types of coastal zone permits: one is a standard coastal zone permit and the other is a conversion permit. The status decision form contains questions that will help determine which, if any, of these permits will be required.
3.0 Environmental Goals and Indicators Revisions under the Coastal Zone Conversion Permit Act
3.1 DNREC will develop within 12 months of the ratification of the Coastal Zone Act MOU, a set of Coastal Zone environmental goals and appropriate environmental indicators which will highlight the most significant environmental challenges to the Coastal Zone. The indicators will serve several important purposes. First, they will assist DNREC in developing a more accurate picture of the environmental quality of the Coastal Zone, and measuring trends in this quality over time. Second, they will assist DNREC and project applicants by providing a means for evaluating the potential impacts of proposed changes in facility operations and proposed offsets on the Coastal Zone environment. The Coastal Zone Conversion Permit Act (CZCPA) of 2017 made sweeping changes to the Coastal Zone Act (CZA). Most importantly, whereas abandoned sites under the 1999 regulations were precluded from future heavy industry uses, the CZCPA allowed for their reuse with the advent of a conversion permit. In addition, new heavy industry uses are allowed to be added to existing (or operating) heavy industry use sites. However, the requirements for obtaining and maintaining a permit are much more rigorous than they are for a standard CZA permit. For example, conversion permit applications must contain evidence of compliance with the Hazardous Substance Cleanup Act, a plan for preparing the site for sea level rise and coastal storms, as well as evidence of financial assurance.
3.3 DNREC will periodically review and reissue the Coastal Zone environmental indicators (perhaps bi-annually). As conditions in the Coastal Zone change, and scientific methods for tracking and analyzing these changes evolve, it may be necessary to add or change some indicators, or drop others. It may also be necessary to reprioritize them as some parameters of environmental health improve and others decline. DNREC's periodic review of the indicators will allow for these kinds of adjustments to be made. In addition to the revisions to the regulations as required by the CZCPA, the Department has also taken the opportunity to update some of the program’s administrative aspects. For example, the application process used to entail the submission of multiple hard copies, but the revised process provides for the submission of applications in electronic format.
3.4 DNREC's process for developing and prioritizing the indicators will include opportunities for formal public review and comment. To ensure that the public has opportunities to provide input into the development and any subsequent revision of the environmental indicators, the Advisory Committee recommended that DNREC establish an Environmental Indicator Technical Advisory Committee (EITAC). In 1999 the Department and its advisors intended to use environmental indicators, yet to be developed, to guide the identification and evaluation of environmental offsets. However, after the Environmental Indicator Technical Advisory Committee deliberated, the members concluded that the resources needed to launch and operate an indicators program would exceed those available to the Department. The General Assembly was silent on the issue of indicators in the CZCPA. The majority of references to indicators have therefore been removed from this guidance, although some provisions remain in the regulations and this guidance in case the resources become available and the Secretary chooses to resume developing the program in the future.
4.1 Any negative environmental impact associated with a proposed project will have to must be more than offset, thus assuring continuing improvement in the Coastal Zone environment. The Secretary will only grant Coastal Zone permits in those cases where the overall environmental impacts of the total application, both positive and negative, assure improvement in the quality of the environment in the Coastal Zone.
4.3 DNREC will develop within 12 months of the ratification of the Coastal Zone Act MOU, a set of Coastal Zone environmental goals and appropriate environmental indicators which will highlight the most significant environmental challenges to the Coastal Zone. These indicators will be "prioritized" in accordance with their significance to achieving the Coastal Zone environmental goals. These prioritized indicators will provide Coastal Zone permit applicants a good idea of which types of future offset investments will yield the greatest environmental benefit and will allow a determination of which investments are most cost-effective. These indicators should also provide the rational basis for permit decisions that involve offset proposals. The regulations require that all owners and operators of a site certify the accuracy and veracity of a permit application. The certifiers will become the permittees and the owners and operators will be held responsible for compliance.
4.5 Financial assurance is required of all conversion permittees. The amount of financial assurance required depends on several factors. First, the “Financial Assurance Amount” must include the cost of any remediation required of the permitted site under the Hazardous Substance Cleanup Act, and any other applicable state or federal environmental laws, less the amount of financial assurance that the permittee may already have for that site under an applicable state or federal remediation program. A second element of the Financial Assurance Amount is the capital costs associated with the approved Sea Level Rise and Coastal Storms Plan. The applicant must assess these costs and provide in the permit application a detailed calculation of the costs and any qualified, existing financial assurance that already covers the project site. The form of the financial assurance may be a Fully Funded Trust Fund, a Letter of Credit, an Insurance Policy, a Surety Bond or a combination of two or more of those instruments. Because the purveyors of those instruments typically do not provide coverage until a permit is granted, the application must contain evidence of the commitment to provide financial assurance, which will be effective upon permit issuance. The Secretary may consider forms of Financial Assurance other than the four listed above, however, under those circumstances the Department would potentially seek external expertise in reviewing the application and will require the permittee to bear the cost of such external assistance. The Secretary also has the discretion to reject financial assurance proposals that do not conform to the standard forms that are described in the regulations, in accordance with the Department’s resources and the Secretary’s discretion.
5.1 Although offsets within the Coastal Zone, in the same environmental medium and at the same site are preferred, there will be circumstances when offsets outside the Coastal Zone, in other media, or at another site within the zone provide greater environmental benefit or otherwise make sense, and will be considered by the Secretary. The RAC recommended that the Department administer the environmental offsets in such a way as to counter the environmental impacts of a heavy industry use by matching the location and type of environmental impact as much as possible. As a result, a permit applicant must attempt to identify offset projects that are as geographically close as possible to the impact, we well as projects that are in the same environmental medium. Offset projects proposed for locations off of the nonconforming use site in a different environmental medium will be considered only if the applicant can show that it was not practicable to identify a project on the nonconforming use site in the same medium. Where environmental impacts of a project may affect neighboring communities, the Department encourages applicants to engage in meaningful dialogue with those communities in developing potential offset proposals.
5.2 While it is the applicant's responsibility to fully describe an offset proposal in the Environmental Impact Statement, it is the Secretary's responsibility to carefully assess whether the applicant's offset proposal will more than offset negative impacts of the project, and thus ensure environmental improvement in the Coastal Zone. The CZCPA specifically required that ongoing environmental impacts be offset on an annual basis. Although some environmental impacts may be ongoing, others may manifest themselves in a singular event. The Department will require offsets that correspond to the nature of either ongoing or discrete impacts accordingly. Applicants are required to submit a proposed schedule for completing offset projects and the Department will enforce deadlines for completion in the permit.
5.4 The Secretary shall consider likely cumulative impacts of proposed activities on the environment and the relevant environmental indicators. The Secretary shall also give consideration to the potential for negative cumulative impacts in situations where cross-media offsets are proposed.
6.4 The MOU negotiated by the Advisory Committee goes to some length to define the area that is the Port of Wilmington, some of which area is actually owned by the Diamond State Port Corporation. Regardless of the definition of the Port, it is nonetheless the equivalent of a “footprint” as that term is used to define other areas of industrial activity within the Zone. Therefore the definition of the Port as negotiated in the MOU is not repeated within the definitions section of these regulations but is rather transformed into a map or footprint similar to the other non-conforming industrial uses found in Appendix B of the regulation.
6.5 The current boundary of the Port of Wilmington is the area beginning at the intersection of the right of way of US Route I-495 and the southern shore of the Christina River; thence southward along said I-495 right of way until the said I-495 right-of-way intersects the Reading Railroad Delaware River Extension; thence southeast along the said Reading Railroad Delaware River Extension to its point of intersection with the Conrail Railroad New Castle cutoff; thence southward along the Conrail Railroad New Castle cutoff until it intersects the right of way of U.S. Route I-295; thence eastward along said I-295 right of way until the said I-295 right of way intersects the western shore of the Delaware River; thence northward along the western shore of the Delaware River as it exists now to the confluence of the Christina and Delaware Rivers; thence westward along the southern shore of the Christina River to the beginning point of the intersection of the said I-495 right of way and the Southern shore of the Christina River.
7.0 Coastal Zone Report Reports
7.1.2 Information on the general trends in the environmental indicators, in the form of narrative text as well as charts and graphs that will be easily understandable to a lay reader;
Last Updated: December 31 1969 19:00:00.
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