That is the key part of a just completed agreement between the county and Delaware Department of Transportation covering their respective roles in the process of compensating for level of service waivers provided for by the county’s Unified Development Code.

Essentially, the agreement calls for the state agency to furnish the technical expertise required to develop and monitor mitigation strategies and plans and the county to enforce them through the Unified Development Code.

Although a technical addendum still has to be completed, the agreement formally authorized and an ordinance to incorporate its enforcement provisions into the code passed, both Du Pont Co. and Astra Zeneca agreed to abide by the new requirements as a condition for obtaining recently granted level-of-service waivers to permit expansions of their facilities along Delaware Route 141. The waiver is, in effect, a license to move ahead although a development project is likely to produce greater-than-acceptable traffic congestion at some nearby intersections.

In both cases, the companies promised to take internal measures so that, after the completion of their projects, the new agreement’s basic mitigation standard of at least 15% of their workforces arriving or departing during morning and afternoon rush hours in other than vehicles with one occupant is met. Those arrivals and departures can be in car or van pools, by public transit, on foot or bicycles or the like.

Until now, such promises were just that – promises. If the goals were not achieved, there was little or nothing that could be done about it.

If County Council, as expected, approves the agreement just before or just after its August recess, the offending company can be fined, refused future building permits or subjected to "any and all the other remedies available at law or in equity."

According to Councilman Robert Weiner, chairman of Council’s land use committee, the agreement with DelDOT "puts teeth into" complying with the conditions behind granting traffic waivers. Until now, he added, they "were, in the opinion of many, simply a grant of carte blanche approval, without any encouragement for mitigation strategies."

On the other hand, the waiver process is a necessary "safety valve" to accommodate major economic development projects despite inadequate highway and other transportation capacity. "Strict application of the Unified Development Code would have prevented a dozen projects from proceeding forward, including [the] Astra Zeneca and Du Pont expansions," Weiner said.

State Representative Roger Roy, who participated in the negotiations leading to the agreement, noted that, as a practical matter, it covers only major corporate expansions and similar projects. Developers of large residential or commercial projects, for instance, would have no practical way to implement an enforceable traffic mitigation agreement.

In addition to facing penalties for not making a good faith effort to reduce congestion generated by its project, the company or developer will be required to post a bond or otherwise provide DelDOT access to an amount equivalent to one and a half times the amount of the estimated cost of traffic reduction measures. Part or all of that would be forfeit if the goals are not reached.

The company or developer also will have to pay the cost of independent annual audits to determine if the mitigation plan works. The audits are to begin six months after the expanded facilities are occupied and continue for five years after the goals have been attained.

Although annual audits would not continue past five years if everything seems to be working, DelDOT would have the authority to periodically audit the situation after that to prevent backsliding.

If, despite implementation of the agreed-upon plan, the goals are not met within a year of occupancy, more stringent contingency measures will have to be used. If not reached within three years, a new agreement will be required.

Weiner said that, through his involvement with the National Association of Counties, he is aware of considerable interest around the country in following  New Castle County's example. A DelDOT consultant found that only Montgomery County, Md., has adopted a similar one and that, Weiner said, is geared more to punishing companies than working with them to achieve improvements in traffic flow.