Sussex County modernizes wetland buffer requirements

Historic changes affect new residential development

By Glenn Rolfe
Posted 5/18/22

GEORGETOWN — Sussex County is taking a step in its ongoing effort for development and the environment to harmoniously coexist.

On Tuesday, County Council adopted an ordinance that overhauls safeguards for critical waterways and wetlands, as development springs up near them.

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Sussex County modernizes wetland buffer requirements

Historic changes affect new residential development

Posted

GEORGETOWN — Sussex County is taking a step in its ongoing effort for development and the environment to harmoniously coexist.

On Tuesday, County Council adopted an ordinance that overhauls safeguards for critical waterways and wetlands, as development springs up near them.

The action, approved unanimously after a Planning & Zoning Commission recommendation, represents the most significant update to the county’s environmental-protection laws in more than 30 years.

“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,” Council President Michael H. Vincent said.

“I think this ordinance does that in a big way, and it will help to ensure (that) the very things that make Sussex County so special will remain that way for generations to come.”

Generally known as the “buffer ordinance,” the legislation sets new rules — including greater distances between development and nature — for protecting some critical environmental areas.

It follows a process called for under the county’s adopted comprehensive plan, which began in early 2019 and involved nearly two dozen stakeholders with expertise or interests in land use, environmental science, agriculture and public policy.

Rich Borasso, spokesman for the Sussex Alliance for Responsible Growth, was on hand for the vote. He offered mixed reviews.

“In general, in balance, it is a better ordinance that we’ve had in the past. … (But) I didn’t think it went as far as it could have gone,” he said. “I think it could have been even better.”

Tuesday’s action was the culmination of numerous workshops and public hearings conducted by the county.

Among the most significant changes, the ordinance will:

  • Double, from 50 to 100 feet, the size of buffering along and around new residential communities that adjoin tidal wetlands and waterways.
  • Add a 30-foot buffer requirement — up from none — for new developments along nontidal wetlands and intermittent streams.
  • Prohibit the clear-cutting of trees and other vegetation in buffer areas.
  • Give project designers flexibility and incentives in certain zones to “average” a buffer’s size to preserve ecological features.
  • Require site plans to show points of access to buffered waterways for maintenance work, such as removing debris and sediment that can cause flooding.
  • Establish penalties, up to $10,000 a quarter-acre per occurrence, for intrusion into and/or damage caused to buffers and forested areas.

The 37-page document also provides new and improved definitions, cleans up language and offers clarity on protections for environmentally sensitive areas, according to assistant county attorney Vince Robertson.

However, one bone of contention, Mr. Borasso said, is buffer options that will not generate an equal return.

“It still allowed for encroachment on those buffers based on the buffer options that were allowed, especially as it related to this idea of creating a buffer off-site and then that allowing the developer to reduce the buffer where the buffer is really needed. There is a point of diminishing return,” he said.

Mr. Borasso also said the old ordinance called for 50-foot buffers for perennial streams and rivers, which “wasn’t really enforced very well in the past.”

He explained that, in the new regulations, developers using those options could take that perennial stream buffer, which is 50 feet, down to 25 in exchange for creating an off-site buffer.

“The question really becomes — in terms of that buffer not being as productive where it has been reduced from 50 to 25 — was that made up for someplace else? And it really isn’t. There is really no impact where they created the off-site buffer. (But) there is certainly impact from where they reduced it from 50 to 25,” Mr. Borasso said.

“I really think the buffer option should not have been allowed, unless there is an option where there was a restoration project that a developer could contribute toward and then, in the process, potentially earn a reduction.”

Several other ordinance elements, including forested areas, are of serious concern, too, he continued.

“In some cases, there is no requirement that, in earning a reduction on a forested buffer in the subdivision, … it had to be a forested buffer that you created. It could simply be a meadow buffer. So now, you are getting a reduction in a much better buffer — forested buffers are better — in exchange (for) a less functional buffer because it’s just a meadow,” he said.

The ordinance will take effect in six months. It will apply only to new residential projects proposed and built in unincorporated Sussex County.

“There was enough consensus that we were able to move forward with something that … is better,” Mr. Borasso said. “But at the same time, I think we need to watch that, going forward, if there are opportunities to essentially eliminate a loophole or somewhere where it is being taken advantage of, then I think that there should be action taken.”

County administrator Todd Lawson thanked all involved.

“This was no easy feat, as there were numerous interests to consider and balance among environmentalists, developers and the agriculture community,” said Mr. Lawson, who led the effort along with Mr. Robertson, planning and 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.”

Councilman Vincent concurred.

“I am sure there are some people out there who are not totally happy with what we did,” he said. “But I think, at the end of the day, what we have developed here is a much better ordinance than we had when we started. And certainly, like anything else, if we find there are things that need to be tweaked, they can be tweaked in the future at any time.”

For information and to view the ordinance, visit here.