Advocates say rule to protect waterways in Sussex doesn't go far enough

A lot under construction in 2021 in eastern Sussex County. 

By Andrew Sharp

Note: This article has been updated to reflect that the county has passed the ordinance.

Under pressure from homebuilders, officials in Delaware’s fastest-growing county have approved new regulations for construction near wetlands and streams that, in some crucial instances, would provide less protection than the county’s existing 34-year-old code.

Evidence has been mounting for years that Sussex County’s waters are becoming increasingly polluted with nitrogen and phosphorus, two nutrients that can trigger harmful algae blooms and lead to fish kills. In response, some officials in Delaware’s southernmost county began to blame one of its most powerful interest groups: the building industry.

Sussex leaders turned their attention to the county’s “buffer” ordinance. Enacted in 1988, the regulation dictates how closely new homes can be built next to streams and wetlands, but it is widely considered to be among the weakest rules of its kind in the Mid-Atlantic.

The changes approved by the County Council at its May 17 meeting expand the width of the buffer in most cases. But the changes also include weakening several of the protections recommended by the council’s own expert panel.

“Our argument is the improvements could be even better,” said Richard Borrasso of the Sussex Alliance for Responsible Growth.

The western half of the county drains westward into the Chesapeake Bay, via the headwaters of the Nanticoke River. The eastern half, where new subdivisions have been popping up at a faster rate, drains eastward into the Delaware River and the Atlantic Ocean, by way of the “inland bays” between Rehoboth and Bethany beaches.

According to the 2020 Census, the county’s population has swollen by 20% since 2010, surpassing 237,000 residents. The major draws include proximity to ocean beaches, low taxes and a largely hands-off approach toward regulating new developments.

The previous buffer law rarely impeded developers’ plans. From 2010 to 2017, Sussex County permitted the third-highest number of homes of any U.S. county with areas at high risk of future coastal flooding, according to a report compiled by Climate Central and Zillow. The county added 1,233 homes in the zone during that period.

After years of nearly unbridled new housing construction, the council appointed a panel of environmental advocates, land-policy experts and business representatives to draft a new buffer ordinance.

The result was a consensus document in which all sides gave ground to win other concessions, said Danielle Swallow, one of the panelists and the coastal hazards specialist with Delaware Sea Grant.

“There’s a perspective that buffers reduce the density of development … because [they are] tying up land that could be developed,” she said. “But the flip side of that coin is buffers actually protect property values and lives because they’re providing a tremendous role in flood management and reducing pollutants going into waterways.”  

During the two years after the panel submitted its recommendations, county planners and council members suggested their own changes.

The new buffer rules are “a step in the right direction,” Swallow said, but the protections still fall short of what neighboring counties and states have on the books.

An analysis conducted by the Delaware Center for the Inland Bays showed that the county’s previous buffer policies were the most lenient in the region.

Most notably, Sussex enforced a 50-foot no-build zone next to tidal waters and wetlands. The buffer is 100 feet in Delaware’s other two counties, 100–200 feet in Maryland and 300 feet in New Jersey, the nonprofit found.

The center urged county leaders to set the new width somewhere between 80 and 500 feet from tidal waters and wetlands. The newly adopted regulation falls just within that range, extending the development-free strip up to 100 feet, potentially doubling its width.

But there is wiggle room.

Under the measure, the closest 50 feet, designated as Zone A, must remain untouched. But in the outer 50 feet, designated as Zone B, developers have broad flexibility to expand or narrow the buffer’s width. They can shrink the buffer in Zone B down to nothing as long as it’s wider elsewhere, supplying the same amount of square footage as a constant 50-foot buffer would have.

In non-tidal areas, developers have even more latitude to reduce buffer widths under the new code. The legislation lays out several alternatives. Under one scenario, a developer can reduce the total buffer next to a freshwater stream from 50 feet to just over 30 feet by creating a conservation easement — a legal vow not to build on the property — along the same waterway just outside the development’s boundaries.  

The ordinance gives developers so much negotiating power that they can build closer to certain freshwater streams than what even the previous regulations allowed. It sanctions development within as little as 25 feet from the water. The previous version enveloped those waterways in a nonnegotiable 50-foot shield.

“They claim that to be an enhancement, but it’s essentially reducing a perennial stream buffer compared to what it is today,” Borrasso said, adding that the wiggle room is about property value. “The only reason you’d be allowing any reduction in that buffer is to allow developers to build closer to the resource so they can charge more for the lots.”

Borrasso argues that the county has no reason to offer the protection of off-site buffers as a bargaining chip. Those buffers would need to be protected anyway if the surrounding area were to be developed, he said.

At a County Council hearing in April, one elected official questioned the potential for loopholes in the nontidal stream language. “My impression was that in no case should buffers be less than 50 feet,” said Councilman John Rieley, who also serves as a board member with the Sussex County Land Trust.

Hans Medlarz, the county’s top engineer, attempted to downplay the loophole’s significance, describing the type of waterway that would be affected by it as a “very rare animal” in the county. Many of Sussex’s freshwater streams are bordered by wetlands, affording them additional protections. Others are constructed “tax ditches,” publicly owned drainage systems whose margins are guarded by a maintenance right of way.

“It would truly affect a minimum number of [development] applications,” Medlarz said.

As Borrasso sees it, tidal and nontidal wetlands are equally important ecologically and should receive equal protection from the county. But under the new regulation, tidal wetlands are eligible for a buffer measuring as much as 100 feet in width; their nontidal counterparts would only receive up to 30 feet.

Nearly three-quarters of the county’s total wetland acreage are nontidal, so the vast majority of Sussex’s wet areas stand to receive less protection.

Environmentalists also hoped the county would strengthen its definition of a buffer. The new language allows the space to consist of “natural forests” or “non-forest meadows.” The meadow category can include “old field areas” potentially dotted with invasive trees and bushes. Environmental advocates say developers should be required to protect forests or, if forests aren’t present in the buffers, to plant trees.

The new buffer rules are set to go into effect in November.

Jeremy Cox is a Bay Journal staff writer based in Maryland. You can reach him at jcox@bayjournal.com. Bay Journal Media is a nonprofit that reports on environmental news and issues in the Chesapeake Bay watershed. You can find more of their work here.