News

March 25, 2005

None of the money collected by stormwater utilities could be used to buy flood-damaged properties if recommendations to be made by a gubernatorial taskforce become law.

Dealing with the issue of whether it is proper for government to provide an extensive degree of relief to people whose houses are destroyed or rendered inhabitable by storm-induced flooding is clearly the pivot on which setting up a comprehensive statewide mechanism for managing stormwater will turn.

"The genie is out of the bottle and they (politicians) want to put it back," said natural resources secretary John Hughes.

New Castle County government uncorked the bottle when it put up $15 million to participate with Delaware Department of Transportation in a buyout of properties in Glenville deluged by Red Clay Creek during storms in September, 2003. It followed up with a $17 million flood-mitigation package, which included $4.8 million for buyouts in Glendale and Newkirk Estates, in response to flooding in September, 2004.

More recently, County Councilman William Tansey was forced to withdraw a proposed ordinance which would have banned future county-financed buyouts after most of his colleagues declared themselves unwilling to agree to ignore the plights of constituents who might be similarly affected in the future. They did so while acknowledging that county government's pockets are nowhere deep enough to permit that to become common practice.

Largely in response to that dilemma, Hughes's Department of Natural Resources & Environmental Control launched an effort to initiate using self-supporting stormwater utilities as a way to coordinate now fragmented responsibility for managing stormwater and, not incidentally, paying for a synergistically more extensive effort than now exists. Although none of the 1,000 or so utilities which are said to be operating around the nation are set up on a statewide basis, Governor Ruth Ann Minner, recognizing that Delaware may be small enough to make that work, commissioned the Surface Water Management Taskforce to come up with recommendations for how to do so.

The panel is prepared to deliver having approved a menu of 26 recommendations at a meeting on Mar. 24. All but a few were adopted unanimously by the 24-member panel and those that weren't were approved by compelling margins. Most, if not all, of the recommendations will require legislation to implement.

Hughes made it clear that the recommendations are not intended to be a package. He repeated several times during the meeting that "these are only recommendations ... we are making on how to solve the problem" and it will be up to the governor, her staff and the General Assembly to determine which ideas to pursue.

The utilities approach is the keystone in the proposed structure. Each of the three counties and, as desired, any municipality would have one under the umbrella of a state-level Surface Water Advisory Council. The taskforce's recommendations call for the utilities to be largely autonomous while subject to oversight from the council. "Areas of responsibility between the state and local entity [sic] would need to be clearly defined and coordinated," according to the recommendation document, which does not spell out how that should be done.

As Delaforum previously reported, the utilities would have the authority to raise money to finance both proactive and reactive activities by levying a fee on properties based on their proportionate amount of impervious surface. The quantity of stormwater which runs off a property and therefore has to be managed is directly related to how much cannot be absorbed naturally into the ground.

The fee arrangement is similar to the one that is used to finance sanitary sewer service. The advantage of using that approach is that all property -- including that which is exempt from having to pay property tax -- would be covered.

The taskforce's financing recommendations provide for the utilities to grant credits against the fee as an incentive to encourage property owners to take conservation and runoff-management steps and to establish an appeals process. But they are notably silent on the role of county or other local governments when it comes to establishing the fees. The taskforce voted out a provision for fees to be set, presumably uniformly, at the state level.

Referring to a recommendation that municipalities be permitted to opt out of a county utility provided they either set up their own utility or come up with a way to finance stormwater management which meets state standards, influential state Senator Robert Venables declared, "We do not need a utility in Sussex County because we don't have floods." David Singleton, New Castle County's chief administrative officer, responded that the southernmost county does have the potential for water problems as the result of hurricanes and other storms and that the pace of development there is such that the presumed immunity, if it does exist, won't last for long.

Singleton noted that his reading of the recommendations is that they would permit county governments to establish utilities but not require that they do so. The recommendations document said that utilities "should be formed," which is legal jargon for a step slightly short of saying they 'must' be.

In any event, Singleton seized upon that recommendation's first-stated reason for forming a utility -- to be a financing vehicle -- to highlight the urgency for moving quickly. "We have 40 applications [for property buyouts] pending and no funds for them," he told the taskforce.

Describing the buyout recommendation as a proverbial "stop-before-I-kill-again" plea to enable county and other local governments to resist being pressured "in the emotions [enkindled] during a disaster" to commit large sums, Hughes pointed out that that is counterbalanced by its stating that the Assembly can legislate buyouts on a case-by-case basis. Also, he said, local governments still could do so as long as they don't tap into the utilities' revenue to finance them.

Another highly delicate issue with which the proposed recommendations deal is balancing property rights against the obvious need for utilities to take preventive or reactive measures to physically control flooding or manage stormwater. To an extent, they finesse conflict in that regard by recommending that the utilities, as public agencies, have the right to access private property in emergency situations and the authority to secure easements to do so in other situations.

Granting such easements would be required as a condition for approval of any new development. Also, any property owner or group of them requesting a project, such as clearing a stream of debris, would be required to grant an easement to permit access for future maintenance before the project would be undertaken.

The right of access would be conditioned on providing 48 hours advance notice, where practical, and full repair of any property damage that results.

Utilities, however, would not have the right of eminent domain permitting them to 'condemn' and take property from owners unwilling to negotiate a voluntary sale. That would apply in cases involving preventive projects.

Hughes noted that it is "a rare occurrence" when it is necessary for governments to go to that extreme and state Representative Roger Roy said it is not unprecedented for the Assembly to grant eminent domain to deal with a specific situation where a major public project would otherwise be blocked by a recalcitrant property owner.

"If you put eminent domain in this (stormwater legislation), you're going to lose," said David Burris, president of Kent County Levy Court.

The recommendations also endorse employing the relatively new concept of conservation design when planning future development. That calls for as extensive as possible use of natural means -- such as preservation of relatively large amounts of open space, vegetation and drainage swales -- to control stormwater runoff instead of doing so by installing retention ponds and other structural devices. New Castle County now requires using that technique for major developments.

The taskforce recommends that the Assembly provide financing to implement the state's dam-safety program. Hugh said Delaware is the only state which does not have an operative program.

2005. All rights reserved.

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Read previous Delaforum article: Proposal would split stormwater management between state and the counties
Access the Surface Water Management Taskforce Web site

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