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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.
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