Supreme Court upholds Artesian construction permit
Delaware Supreme Court recently upheld a decision stating that Artesian Wastewater Management did not have to seek a new permit when it contracted with Allen Harim on Artesian’s Sussex Regional Recharge Facility in Milton.
The Dec. 15 decision seemingly brings to a close a process that first began in 2013, and started winding its way through the litigation process in 2017.
Artesian had first been granted a permit for the Sussex Regional Recharge Facility, a 1,700-plus-acre network of spray irrigation fields starting at the intersection of Route 16 and Route 30 and lining Route 30 between Milton and Lincoln. Artesian had originally planned for the facility to service the Elizabethtown development, which would have been built on the site. When that project did not get built, Artesian cast about for a new client and entered into business with Allen Harim to spray wastewater treated at Allen Harim’s Harbeson plant.
Artesian’s first construction permit for the facility was approved in 2013, under Delaware Department of Natural Resources and Environmental Control regulations passed in 1999. In 2014, DNREC revised its regulations and adopted new testing requirements.
When Artesian and Allen Harim struck their deal in 2017, Artesian filed an amendment to its existing permit with several changes, including increasing the treatment capacity from 1 million gallons a day to 1.5 to 2 million gallons a day, building one 90-million-gallon storage lagoon instead of two 62-million-gallon ponds, and increasing the spray area from 608 acres to 762 acres out of the 1,700 acres of agricultural land Artesian has leased for spray irrigation.
DNREC approved Artesian’s 2017 permit amendment, which was quickly appealed by citizens group Keep Our Wells Clean, which argued that the changes were substantial enough that Artesian should have been forced to seek a new permit, with increased testing required as per the 2014 regulations.
Keep Our Wells Clean appealed DNREC’s decision to the state Environmental Appeals Board, which held two hearings, in May 2018 and March 2019, before affirming Artesian’s permit. Keep Our Wells Clean appealed to Delaware Superior Court, which upheld the board’s decision. That decision was appealed to Delaware Supreme Court, which held oral arguments Oct. 7 in front of a three-justice panel including Chief Justice Collins Seitz, and justices Gary Traynor and James Vaughn Jr.
Seitz, writing for the panel, said, “Practically speaking, the EAB and the Superior Court correctly described what Artesian wanted to accomplish through the 2017 permit application; to revise the 2013 permit construction plans to address the change in effluent source from untreated household discharge to treated food processing wastewater.
“In the context of an application to change an existing permit, it makes sense that DNREC would not require start-from-scratch environmental and engineering reports as long as the application stayed within the boundaries of the existing permit.”
Anthony Scarpa, one of the founders of Keep Our Wells Clean, said,”We are disappointed but not surprised. It's always difficult for the average citizen of Delaware to go up against DNREC and one of the largest utility companies in the state.”
He said the group intends to challenge Artesian and Allen Harim’s operating permits for the facility.
