House Bill 101 in 2023 - Permit Expedite Bill

Concerns with HB 101:

1. Current Sediment and Stormwater Regulations require the review to be within 30 calendar days, therefore 21+ business days, whereas the proposed bill requires 10 business days.  DNREC and delegated agencies are consistently reviewing plans within the required timeframe.  If this is a known timeframe, then consultants/developers can plan accordingly.  Some delegated agencies allow consultants to modify their projects in the review queue when they have multiple submittals. This flexibility allows consultants to prioritize their individual projects without impacting other consulting firms also waiting for review.

2. The bill does not list which projects are eligible for expedited review, which means any project including large development projects that are complex in design could be expedited through the process.  Public concern that developers could “pay their way” through the process should be considered.  Many of these developments are large and the stormwater and drainage is complex.  It would be difficult to perform a thorough review in 10 days especially if coordination is needed with other agencies such as DelDOT, DNREC Drainage Section/Water Resources, DNREC Industrial Section, county/municipal government and Army Corp.  It is unclear if the State is prioritizing all growth or those that are considered “job creators”? 

3. Is the state prioritizing the preservation of any natural resources such as well head protection areas, wetland habitat, and wooded properties?   Expediting sediment and stormwater review for all projects would mean that even those with significant natural resources would be eligible for expedited review. 

4. The proposed bill does not give the delegated agency the ability to perform the review.  The bill should be written where the delegated agency has the ability to perform the review and then outsources if needed. No one is more informed on local drainage/conveyance issues than the delegated agencies.  By outsourcing, consultants performing the review would have limited if any knowledge or history of existing drainage/flooding problems.  Further, delegated agencies have a full understanding of what is being developed in the watershed and how existing and future projects are being managed.  There is coordination and knowledge that is instrumental in the success of development projects that would be lost in the review of an outside agency. 

5. Finding consultants to perform reviews, where there is no conflict of interest will be challenging.  It is likely that consultants eligible to review plans would be out of state.  These consultants would need to become familiar with Delaware Regulations.  Further, they would lack the knowledge of site conditions that include but are not limited to soil characteristics/limitations, high water table, tax ditches, drainage challenges, coordination between county/municipal government agencies, knowledge of existing/proposed development projects in the watershed and familiarity with local construction methods/procedures.

6. Expedited sediment and stormwater review will potentially result in key issues being missed and then costs being incurred by the construction industry.  Contractors implementing and bidding off of plans that may be missing pertinent construction detail will cost both contractors and developer more unplanned expenditures. 

7. Stormwater is not a stand-alone review process.  There is coordination needed between other agencies, and expediting one part of an overall process which requires multiple approvals does not automatically shorten the overall time frame where a project is able to go to construction.  Typically, multiple agencies will need to approve plans before they can initiate construction. 

8. Sussex County has the most growth in the State, where land use is rapidly changing from agriculture or woods to residential/commercial developments.  More and more, the public has become vocal on protecting natural resource areas.  Expediting the sediment and stormwater review, which has significant impact on sensitive areas, does not seem like a judicious decision for the protection of our natural resources.  Water quality needs to be made a priority to protect the Inland, Chesapeake and Delaware Bays.  There is no cost great enough to remediate areas that could be irrevocably damaged, and this includes water quality.

9. Many of the projects being proposed, specifically residential projects (300 plus acres), are extremely large and complex.  In many cases ditches are being filled, relocated or in some cases eliminated to make  development projects work.  Only the agencies most familiar with how these drainage systems work should be overseeing the sediment and stormwater review.  Their review protects existing property owners in making sure that new developments do not adversely impact neighboring properties/communities. 

Letters

DelDOT and DNREC Permitting must be treated separately

DelDOT's entrance permitting and DNREC's stormwater permitting are very different processes. They must not be lumped together in one bill.

Shifting responsibilities to Pre-approved Private Consultants! 

• • Environmental impact: If the bill prioritizes expedited permitting over environmental regulations and protections, this could lead to environmental degradation or harm to public health.

  • Lack of transparency: What are the basis and guidelines for selecting the Pre-approved Private Consultants whom the developers will pay directly? Who is responsible for the oversight/audit of these consulting practices? Tougher regulations are in order.

  • Potential for corruption and Source of conflict of interest: It may open the door for corruption or undue influence in the approval process. This could undermine public trust in the permitting process.

  • Reduced public input: It may limit the ability of the public to voice their concerns and provide feedback on the projects.

Letter of Concern

The State seems to already have statutory authority to hire consultants. See 19 Del. C. ch. 36; 29 Del. C. ch. Bg; ahd 29 Del. C. ch. 101. See also, DeIDOT Professional Services Procurement Manual. If this is the case, the proposed legislative amendments do not seem to be necessary. If the State and local jurisdictions need additional manpower and payment of a qualified consultant is an issue, perhaps, some form of impact fees would be a better way to address any funding issue. If the State does not currently have adequate authority to engage consultants for these tasks, providing this authority and the authority to impose an impact fee that could be used to address a variety of needs and not just the payment of the consultant's fee would seem a better and less ethically challenging way to proceed. 

In any event, any consultant engaged, whether under existing or new authority, should be subject to Title 29, Chapter 58 of the Delaware Code or similar conflict of interest rule. The Financial Disclosure requirements of Section 5813 of this Chapter are especially important to mitigate the likelihood of improper use of a consultant on a particular matter in which he or she has a financial interest. 

The ability of a developer, as part of the intended expedited review, to directly pay a consultant to review a sediment and stormwater plan for approval that presumably had been prepared by the same or another consultant paid by the developer is especially concerning. I doubt that many would dispute that the sediment and stormwater management obligations of the State and local jurisdictions can be challenging, and the review thereof does not seem to lend itself to an expedited review process in any event. See 7 Del. Admin. Code §7201-9.0 (the General Permit Program); Nieves v. Insight Bldq Co., 2019-0464-SG (Del. Ch. Aug 04, 2020]) (stormwater management plan described as a complex compilation of engineering data and calculations: plats, graphs, and land use specifications . . . topography, stormwater easements, pipe and swale profiles, manhole flow patterns, and trench details for unpaved areas); Robinson v, Oakwood Vill., LLC, (Del. Ch. April 28, 2017 (statement of facts illustrates the complexity of the issues and importance of State and local jurisdiction involvement). Permitting these obligations to be met by a consultant being paid for by the developer, whether as part of an expedited process or not, is problematic and subject to abuse. We urge you and your colleagues to carefully consider whether transferring this particular government obligation to a consultant paid for by the developer will be in the best interest of the State and its citizens. 

Opposition - HB 101 and HB 104

Dear Senator,

As a resident of Sussex County and the Vice President of the Sussex Preservation Coalition, I wish to express my concerns with HB 101 and HB 104.

While the two synopses state that the bills will expedite the review process, we know that the PLUS Review process is not the problem. In fact, HB 104 openly states that the PLUS review has been successful in expediting the process for developers. The real impetus for these bills is to keep the public in the dark: to avoid public concern and discourse.

These bills come at a time when residents of Sussex County are finally getting involved in the approval and permitting process. Developers have gone virtually unchallenged by the public, the P&Z Commission, and the County Council, until recently. The PLUS Review has provided us with invaluable information regarding the conditions on-site of both commercial and residential projects. We have become vocal at P&Z and County Council hearings, citing comments and recommendations made by the State agencies. Because we do not have the resources to hire engineers, nor are we allowed on the properties, the PLUS Review provides information we would otherwise not be able to access.

Also, in their current state, there are real problems with the way the bills are written.

HB 101 should not lump DelDot and DNREC together. HB 101 states that consultants to be used could be preapproved by DelDOT “and/or” DNREC. These are two completely different disciplines. Also, the last two sentences of the synopsis are contradictory and puzzling, at best.

The developer will make payment directly to the consultant, yet “policies and procedures should be developed to protect against conflicts of interests in the use of private consultants.”

The second sentence validates why this bill is a recipe for disaster and will be next to impossible to reevaluate and amend due to the advantages it will give to the construction industry. This is exactly why we should not rely on private consultants who are paid directly by the developer.

This bill needs to be soundly rejected.

HB 104 is poorly written and opens the barn door for those searching for loopholes, though one need not go far. The bill states that projects located “at least partially in Investments Levels 1 or 2” are exempt. The words “at least partially” need to be replaced with the word “exclusively.” As with HB 101, this proposal will not expedite the application process.

It will, however, keep information provided by the PLUS agencies from the public. Again, limiting information for, and discourse from, the public.

One other thing about the PLUS Review. It has served the public well in notifying us of projects in the works. It gives us time to gather information in preparation for the hearing—the public’s only shot at adding its comments to the record.

You also need to know that the PLUS Review has also provided the public, the P&Z Commissioners, and County Council with history and facts about the site. Without the PLUS Review, and the comments, those who are charged with protecting the health, safety, and welfare of the county are rendered uninformed. Relying solely on engineers hired by the applicant is reckless.

I submit that both bills need to be killed, or at the very least, revised.

Thank you,

Jill Hicks

ChatGPT Chimes in:

Q: Delaware state has a House Bill 101 to expedite permitting process. What could be wrong with this bill?

A: As an AI language model, I cannot provide my personal opinion on the matter, but I can give you some general information on what potential concerns or criticisms could be raised regarding a bill that aims to expedite permitting processes in Delaware.

Here are some possible points of contention:

1. Lack of transparency: If the bill does not provide enough information on the permitting process, it may lead to a lack of transparency. This could be concerning for those who want to know more about the projects and how they are being approved.

2. Reduced public input: If the bill shortens the time period for public input on projects, it may limit the ability of the public to voice their concerns and provide feedback on the projects.

3. Environmental impact: If the bill prioritizes expedited permitting over environmental regulations and protections, it may have negative environmental impacts. This could lead to environmental degradation or harm to public health.

4. Potential for corruption: If the bill allows for a faster permitting process, it may open the door for corruption or undue influence in the approval process. This could undermine public trust in the permitting process.

5. Rushed decision-making: If the bill forces decision-makers to rush through the permitting process, it may lead to errors or oversights that could have negative consequences for the projects or the public.

It is important to note that these are just potential concerns, and whether they apply to Delaware's House Bill 104 specifically would depend on the details of the bill itself.

House Economic Development/Banking/Insurance & Commerce

(This committee will vote first before sending it to the full House vote; 6 of 13 members are sponsors of HB 101.)

(* The 6 in Red are sponsors of HB 101; The 2 Bolded ones represent Sussex County.)

Chair: RD 29 William Bush <William.Bush@delaware.gov >

Vice-Chair(s): RD 28 William J. Carson <William.Carson@delaware.gov >

Members:

RD 23 Paul S. Baumbach<Paul.Baumbach@delaware.gov >

RD 3 Sherry Dorsey Walker<Sherry.DorseyWalker@delaware.gov >

RD 12 Krista Griffith<Krista.Griffith@delaware.gov >

RD 7 Larry Lambert<Larry.Lambert@delaware.gov >

RD 10 Sean Matthews<Sean.Matthews@delaware.gov >

RD 26 Madinah Wilson-Anton<Madinah.Wilson-Anton@delaware.gov >

RD 38 Ronald E. Gray<Ronald.Gray@delaware.gov >

RD 9 Kevin S Hensley<Kevin.Hensley@delaware.gov >

RD 39 Daniel B. Short<Daniel.Short@delaware.gov >

RD 22 Michael F. Smith<Michael.F.Smith@delaware.gov >

RD 11 Jeffrey N. Spiegelman<Jeff.Spiegelman@delaware.gov >

Emails of House of Representatives:

(*The ones highlighted in RED are the sponsors of HB 104. The BOLD ones represent Sussex County.)

• RD 1 <Nnamdi.Chukwuocha@delaware.gov >

• RD 2 <StephanieT.Bolden@delaware.gov >

• RD 3 <Sherry.DorseyWalker@delaware.gov >

• RD 4 <Jeff.Hilovsky@delaware.gov>

• RD 5 <Kendra.Johnson@delaware.gov >

• RD 6 <Debra.Heffernan@delaware.gov >

• RD 7 <Larry.Lambert@delaware.gov >

• RD 8 <Rae.Moore@delaware.gov >

• RD 9 <Kevin.Hensley@delaware.gov >

• RD 10 <Sean.Matthews@delaware.gov >

• RD 11 <Jeff.Spiegelman@delaware.gov >

• RD 12 <Krista.Griffith@delaware.gov >

• RD 13 <deshanna.neal@delaware.gov >

• Rd 14 Speaker <Peter.Schwartzkopf@delaware.gov >

• RD 15 Majority Leader <Valerie.Longhurst@delaware.gov >

• RD 16 <FranklinD.Cooke@delaware.gov >

• RD 17 Maj. Whip <Melissa.MinorBrown@delaware.gov >

• RD 18 <sophie.phillips@delaware.gov>

• RD 19 <Kimberly.Williams@delaware.gov >

• RD 20 <stell.parkerselby@delaware.gov>

• RD 21 Minority Leader <Michael.Ramone@delaware.gov >

• RD 22 <Michael.F.Smith@delaware.gov >

• RD 23 <Paul.Baumbach@delaware.gov >

• RD 24 <Edward.Osienski@delaware.gov >

• RD 25 <cyndie.romer@delaware.gov >

• RD 26 <Madinah.Wilson-Anton@delaware.gov >

• RD 27 <Eric.Morrison@delaware.gov >

• RD 28 <William.Carson@delaware.gov >

• RD 29 <William.Bush@delaware.gov >

• RD 30 <Shannon.Morris@delaware.gov >

• RD 31 <Sean.Lynn@delaware.gov >

• RD 32 <kerrievelyn.harris@delaware.gov>

• RD 33 <Charles.Postles@delaware.gov >

• RD 34 Min Whip <Lyndon.Yearick@delaware.gov >

• RD 35 <Jesse.Vanderwende@delaware.gov >

• RD 36 <Bryan.Shupe@delaware.gov >

• RD 37 <Ruth.BriggsKing@delaware.gov >

• RD 38 <Ronald.Gray@delaware.gov >

• RD 39 <Daniel.Short@delaware.gov >

• RD 40 <Timothy.Dukes@delaware.gov >

• RD 41 <Rich.Collins@delaware.gov >

Email Addresses of State Senate 

(* The ones in Red are sponsors; The Bolded ones represent Sussex County.)

• SD 1 <Sarah.McBride@delaware.gov>

• SD 2 <Darius.Brown@delaware.gov >

• SD 3 Maj. Whip <Elizabeth.Lockman@delaware.gov >

• SD 4 <Laura.Sturgeon@delaware.gov >

• SD 5 <Kyle.Gay@delaware.gov >

• SD 6 <russell.huxtable@delaware.gov>

• SD 7 <Spiros.Mantzavinos@delaware.gov >

• SD 8 Pres. Pro Temp <David.Sokola@delaware.gov >

• SD 9 <John.Walsh@delaware.gov >

• SD 10 <Stephanie.Hansen@delaware.gov >

• SD 11 Maj Leader <Bryan.Townsend@delaware.gov >

• SD 12 IS <Nicole.Poore@delaware.gov >

• SD 13 <Marie.Pinkney@delaware.gov >

• SD 14 <Kyra.Hoffner@delaware.gov>

• Sd 15 <Dave.Lawson@delaware.gov >

• SD 16 <eric.buckson@delaware.gov>

• SD 17 <Trey.Paradee@delaware.gov >

• SD 18 <David.L.Wilson@delaware.gov >

• SD 19 Min Whip <Brian.Pettyjohn@delaware.gov >

• SD 20 Min Leader <Gerald.Hocker@delaware.gov >

• SD 21 <Bryant.Richardson@delaware.gov >

Media Contact

newsroom@capegazette.com - Cape Gazette

darin.mccann@coastalpoint.com - Coastal Point

 newsroom@iniusa.org  - Delaware State News