By Glenn Rolfe

GEORGETOWN — Two environmental watchdog groups are calling action by the Sussex County Planning & Zoning Commission “unlawful,” by allowing what they consider a “clearly lapsed” conditional-use permit for a proposed biogas facility to remain in effect.

Food & Water Watch and the Sussex Health and Environmental Network issued a letter Wednesday to both Sussex County Council — which approved CleanBay Renewables’ conditional-use request for the facility July 31, 2018 — and to the P&Z Commission — which on Sept. 9 determined by a 3-0 vote that the biogas project was “substantially underway.”

Disputing that the project is advancing, in a release from Phoebe Galt of FWW, the two environmental groups cited photo and video evidence that they say demonstrates the company’s failure to construct at the site before the Aug. 1, 2021, deadline established in Sussex County Code.

The groups are requesting that the P&Z Commission reconsider its “unlawful approval of the company’s lapsed permit,” according to the release.

In the statement, FWW attorney Emily Miller said, “Sussex County has issued an unlawful determination that CleanBay’s clearly lapsed zoning approval was still in effect, paving the way for the polluting facility to endanger local residents’ health, safety and the environment, while handing the corporation a blank check. The Sussex County Planning & Zoning Commission must notify CleanBay Renewables of their lapsed permit, putting an end to this destructive project.”

CleanBay plans to convert chicken litter into electricity at the site, south of Georgetown, reducing phosphorus pollution in water.

A preliminary site plan was approved 5-0 by the P&Z Commission on July 8, 2021. The plan includes a 2-megawatt power-generation facility for renewable electricity and nutrient recovery, plus other site improvements.

However, following review of the site and appropriate documents being provided, P&Z staff sent a letter to CleanBay on Aug. 9, stating that the conditional use had lapsed.

Since then, the applicant provided documentation for reconsideration of the staff’s findings, according to the P&Z Office.

Therefore, the P&Z Commission’s Sept. 9 agenda item was to determine if CleanBay met the criteria for “substantially underway.”

Photos displayed during the meeting — provided by P&Z staff, as well as the environmental groups — showed that a two-story abandoned structure has been removed from the site.

“Well, I’m inclined to give the applicant the benefit of the doubt based in what’s in the (applicant’s) letter,” P&Z Commission Chairman Bob Wheatley said. “We have rather broadly interpreted ‘substantially underway’ over the years. I don’t see any reason to deviate at this point. I get what they are saying, but at least this puts them on notice that they had better start doing something.”

Commission Vice Chair Kim Hoey Stevenson noted that CleanBay “just got their site plan” in July.

“The nature of the type of project it is, the approvals for these types of things — because they are new and they are different — they kind of take longer anyway,” Mr. Wheatley said.

Chip Guy, Sussex County’s public information officer, said the county is declining comment at this time, noting only that the P&Z Commission found that the CU did not lapse at its meeting Sept. 9.

Contacted this week, Mr. Wheatley said there was “just some question that some folks had raised, and so, in an abundance of caution the (P&Z) Office referred it to the commission. You can see the exhibits and see what they were talking about.”

But according to FWW and SHEN, it is imperative that Sussex County officials scrutinize these proposals seriously and not give corporate developers the “benefit of the doubt.”

The watchdog groups are requesting that the P&Z Commission reconsider its determination and inform CleanBay that its conditional-use permit “is null and void as of August 1, 2021, and that therefore no construction or use of the site under that non-existent conditional use approval is permitted.”

FWW and other organizations have also opposed plans for Bioenergy DevCo’s anaerobic digester facility, south of Seaford.

“Factory farm gas entrenches the dirtiest factory farming practices and keeps fossil fuel infrastructure on the grid,” Ms. Miller stated in the release. “By creating a monetary incentive for factory farm waste production, projects like CleanBay’s that seek to produce gas for the regional energy grid, are a nightmare in the making.”