Experts called in to discuss Lewes source water protection

Environmental experts have been called in to help Lewes better understand the impact of a proposed source water protection ordinance.

A joint workshop of the planning commission and mayor and city council will be held at 4 p.m., Monday, March 29. A. Scott Andres, a senior scientist and hydrogeologist with Delaware Geological Survey, and Steve Smailer, professional geologist and program administrator of DNREC’s Division of Water Resources, will provide their expertise on source water issues and offer guidance on state policy.

In recent months, city officials have been working to update its source water protection ordinance after it was discovered the city had not been enforcing its requirements for more than a decade. Since the discovery, many residents have found the existing ordinance to be overburdensome for property owners.

At its Feb. 8 meeting, city officials, without a vote, decided to strictly enforce the existing ordinance, which allows a maximum of 20 percent lot coverage on properties within an excellent recharge area defined by the state. Applicants can increase lot coverage to 50 percent with an environmental impact assessment report that shows post-development water recharge will be no less than pre-development recharge. Some residents have described the assessment as too costly.

The excellent recharge area comprises a large section of Lewes Beach, from Cape Henlopen State Park north past Savannah Road and about halfway to Roosevelt Inlet. 

Since the ordinance was adopted in 2008, more than 60 homes were built between the Lewes-Rehoboth Canal and the Delaware Bay that exceed the limit of 20 percent impervious surface on a property. 

The proposed ordinance would allow up to 50 percent lot coverage without any additional requirements. Applicants could increase maximum lot coverage to 60 percent with implementation of at least three runoff reduction practices, such as a green roof, rain barrels, rain gardens or pervious pavement.

The city’s existing ordinance was adopted by mayor and city council to comply with a state mandate that requires all jurisdictions with 2,000 or more residents to adopt an ordinance that addresses excellent recharge areas. The goal is to promote long-term protection of the public drinking water supply.

City Solicitor Glenn Mandalas said the state does not dictate how a municipality should handle the issue, but it published a manual that provides guidance, including sample ordinances.

Mandalas said the city incorporated pieces of sample ordinances into the ordinance that’s now on the books.

Mandalas noted that there is a very real possibility the city will be sued no matter what they adopt.

Commissioner Kay Carnahan suggested the city take a step back.

“I don’t propose the city ignore [the ordinance]. I propose the city say the original ordinance doesn’t really fit our situation,” she said. “I’d rather have the power of the mayor and city council work with the state to give us some breathing room to show we will come up with something that is suitable and effective and livable.”

She said it’s distressing that there are many upset residents who are threatening litigation when the city doesn’t really like the ordinance to begin with.

“I would rather see the city fight on behalf of its citizens than fight with its citizens,” she said.

The planning commission agreed to table a vote on the proposed ordinance until after the workshop with environmental experts. The commission has scheduled a special meeting Thursday, April 1.

Unhappy residents

Lewes Beach resident and business owner Rick Quill says the source water protection ordinance significantly impacts all properties within the overlay, particularly non-residential parcels. Quill owns the commercially zoned vacant lot at the corner of Savannah Road and Cape Henlopen Drive, across from Dairy Queen.

In the city’s general commercial and marine commercial zones, property owners are currently permitted maximum lot coverage of 95 percent.

If the city enforces the existing source water protection ordinance, it limits Quill to 20 percent lot coverage with the option to go to 50 percent with a costly environmental assessment. The proposed ordinance allows a maximum of 60 percent lot coverage with the added runoff reduction practices.

Both versions, he said, significantly devalue his and his neighbors’ properties. Other general commercial properties affected include Dairy Queen, Hazzard Electric and Two Dips ice cream shop. Marine commercial properties affected include American Legion Post 17, Harvest Tide Steakhouse, Beacon Motel and its ground-floor shops, the Daily Market shopping center and two townhouse complexes.

Quill argues that the source water protection ordinance goes against the city’s 2015 comprehensive plan, which encourages business opportunities on the beach side of the canal. He said the city screwed up when it allowed townhouses to be built at the corner of Savannah and Angler and the corner of Savannah and Massachusetts, two properties zoned marine-commercial that took advantage of a special exception in code. Council voted in 2017 to remove the special exception.

The ordinance would also lower the permitted lot coverage for residential properties within the overlay zone. R-3 zoning, which covers most of Lewes Beach’s residential area, currently allows maximum lot coverage of 65 percent.

Quill also questions why the city swapped terminology in the draft ordinance. Whereas the existing ordinance aims to “protect drinking water supply,” its intention in the proposed ordinance is to protect “water resources and the quality and quantity of groundwater.”

Former Councilman Dennis Reardon, a Lewes Beach resident, questioned the effectiveness of requiring runoff reduction, saying most of Lewes Beach is already sand.

Janelle Cornwell, the city’s planning and development officer, said the purpose of runoff reduction practices is to enhance water quality before it goes back into the ground. It also slows the impact of saltwater intrusion, she said.

Lewes Beach resident Cole Flickinger argued the water table is already very shallow.

“If you go out in your yard and dig a hole two feet in the ground, you’re going to encounter water,” he said. “I just don’t know how much water we’re going to be able to put back in the ground because the ground is already saturated.”

When the city voted to enforce the existing ordinance at its Feb. 8 meeting, it allowed several pending applications to move ahead despite not meeting code requirements. Every resident who’s submitted an application since that meeting has been told they must meet code requirements or wait until the city passes the proposed ordinance, which will come no earlier than mayor and city council’s regular meeting in May.

At a March 11 public hearing, many of the affected residents voiced their displeasure over being caught in the middle, with some saying they had already signed contracts with companies for work, and having to wait would cost them money.

A copy of the proposed source water protection ordinance can be found on the planning commission’s March 17 agenda at lewes.civicweb.net. A link to the March 29 workshop can be found on the agenda on the website. The city has indicated that public comments and questions must be submitted in advance.