Sussex council passes updated buffers ordinance

After nearly three years of meetings, hearings and discussions, Sussex County Council has approved an amended wetland buffers and drainage ordinance.

At its May 17 meeting, council unanimously adopted the ordinance that overhauls the county’s environmental safeguards for critical waterways and wetland areas. The action represents the most significant update to the county’s environmental protection laws in more than 30 years.

The ordinance includes 11 amendments to the original draft as recommended by the public, staff and Sussex County Planning & Zoning Commission. Helping to write the draft was a working group of nearly two dozen stakeholders with expertise or interests in various disciplines, including land use, environmental science, agriculture and public policy.

The ordinance sets new rules – including greater distances between development and natural resources – for protecting and preserving some of the county’s most critical environmental areas.

“This has been a big lift and I’m sure some people are not totally happy,” said Council President Mike Vincent. “But at the end of the day, this is a much better ordinance than we had when we started.”

Vincent added that tweaks to the ordinance could be made by council in the future if needed.

“This has been in the works for quite a while now, and it’s something we have heard about repeatedly from many people in the community – that we need to do more, as the county develops, to protect our waterways and habitats,” Vincent said. “I think this ordinance does that in a big way, and it will help to ensure the very things that make Sussex County so special will remain that way for generations to come.”

Among the most significant changes, the ordinance will:

• Double, from 50 feet to 100 feet, the size of buffering along and around new residential communities that adjoin tidal wetlands and waterways such as rivers, bays and streams

• Add a 30-foot buffer requirement – up from none currently – for new developments along non-tidal wetlands and intermittent streams

• Give project designers flexibility and incentives in certain zones to average a buffer’s size in order to preserve worthwhile ecological features

• Allow buffer averaging if a forested area is preserved for at least five years prior to an application for a residential subdivision, conditional use or residential planned community

• Divide buffers into two categories. Zone A is the area closest to a wetland or waterway; Zone B is the area beyond Zone A. Buffer averaging can only occur in Zone B and must be adjacent to the existing resource, and it can’t be used along tidal wetlands or waterways

• Require signage or markers to delineate buffer zones

• Prohibit clear-cutting of trees and other vegetation in buffer areas, leaving them largely in their natural state

• Require site plans to show points of access to buffered waterways for maintenance work such as removing debris and sediment that can cause blockages and lead to flooding

• Establish penalties up to $10,000 a quarter-acre per occurrence for intrusion into and/or damage caused to buffers and forested areas

• Provide that destroyed trees must be replaced at a 3-to-1 ratio and must be at least 2 inches in diameter.

• Allow no building permits to be issued until a mitigation plan is approved by the planning & zoning director.

The 37-page document also provides new and improved definitions, cleans up language to close loopholes, and offers more clarity on the county’s protections for environmentally sensitive areas, said assistant county attorney Vince Robertson.

The ordinance will take effect in six months, and will apply only to new residential projects proposed and built within the county’s jurisdiction of unincorporated Sussex County. Agricultural lands are exempt from the ordinance.

County Administrator Todd Lawson thanked those who led the effort, including Robertson, Planning & Zoning Director Jamie Whitehouse, county engineer Hans Medlarz and other staff. “In the end, I think the compromise we reached will help keep Sussex County the wonderful, natural place we all cherish and love,” he said.

For more information and to view a copy of the adopted ordinance, go to sussexcountyde.gov/ordinances.

More work needed

Sussex Alliance for Responsible Growth spokesman Rich Borrasso said the ordinance is stronger than the previous one, but it still has shortcomings. “The county still has the loosest regulations to protect wetlands and waterways than any other jurisdiction in Delaware and neighboring states,” he said.

Borrasso, who served on the working group, said wider buffers of 100 feet for tidal wetlands and waterways, and a new 30-foot buffer required for non-tidal resources are steps in the right direction. In addition, eliminating options for buffer alterations along tidal resources is important.

However, he said, council should have eliminated all options in the ordinance, including buffer averaging.

“What is concerning is that the latest revision would allow for both buffer averaging and buffer options within the same subdivision, green lighting developers to potentially double dip. Many, including me, believe the buffer options are an effort to appease the development community,” he said.

Borrasso said a reduced buffer would allow the placement of building sites closer to the waterways, and generate premium-priced lots and greater profit and increased return on investment for the developer. “This no doubt would benefit the developer, but it compromises the intended purpose and function of the buffer. Is it the county’s responsibility to ensure a greater rate of return for the developer? Buffer options are a false equivalent and should have been denied for all tidal and non-tidal wetlands, streams and rivers,” he said.

He said 77 percent of the remaining wetlands and waterways are non-tidal.

He said developers will have the option to preserve a buffer, using an easement, in an off-site area in exchange for revisions to a subdivision's buffer. Borrasso said the problem is that developers who remove wooded areas are not required to reforest the off-site area and it could be maintained as a meadow. “Wooded areas are the best buffers and offer the most protection,” he said.