EQUITY IN AGRICULTURE: PRESERVING THE VALUE OF DELAWARE'S RURAL LANDS
Equity in Agriculture • Resources • Commentary • Myths and Misconceptions • Frequently Asked QuestionsHouse Bill 280 - A Statewide Response to Address the Challenge
It is the cumulative impact of these findings which have led to the drafting of the Delaware Sprawl Prevention Act (House Bill 280). To combat the challenge posed by this new and dangerous trend of large-scale suburban subdivisions located in rural areas, we had to look no farther than the Strategies for State Policies and Spending. Governor Minner's Executive Order 14 directs the State Agencies to fully implement the Strategies through their spending decisions, permits, and programs. One thing large subdivisions have in common is the need for wastewater disposal, which is regulated by the Department of Natural Resources and Environmental Control (DNREC). State planners and agency staff evaluated DNREC's permitting guidelines to determine how they were influencing current development patterns, and what changes were needed to bring these regulations into compliance with the Strategies.
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Many of the newly proposed large subdivisions are taking advantage of "community wastewater systems," which collect sewage from individual lots and transmit it to a central facility for treatment. Systems of this type have been used for years on a small scale in developments such as mobile home parks. Recently, however, community wastewater systems have been applied to large subdivisions containing hundreds or even thousands of units. There are even examples, such as Westminster Chase and Silver Oak Farms west of Clayton, where two or more farms have been connected to a central or regional "community wastewater system." At this scale, these facilities have more in common with municipal or regional wastewater treatment plants. According to DNREC, the size and scope of some of the recently proposed community wastewater systems rival some municipal wastewater treatment facilities in Sussex County, including those in Millsboro, Laurel, and Bridgeville.
DNREC thoroughly reviews and regulates the technical details of proposed community wastewater systems, but does not currently specify where such systems can be located. These systems have a number of drawbacks that have been highlighted in a July 2005 article in Planning Magazine. These systems require continuous maintenance, almost daily in some cases. Properly maintained these systems can function for many years, but when neglected they can fail resulting in water quality problems, public health risks, and costly repairs that can overburden those who are responsible for them. In Olympia, Washington the municipal government has taken over the maintenance of the systems, and over time has found them more costly and labor intensive to maintain than public sewer systems. In fact, over 90 percent of Olympia's sewer utility calls have been for maintenance related to these systems. (Harville, B. (2005, July). New Tech, New Trouble? Planning, pp. 39.) In the recent past, some of the older community septic systems in Delaware have failed as well. In our state, community septic systems are typically owned and maintained by homeowner's associations. The long term maintenance and viability of these systems has been a serious concern, so now private utilities regulated by the Public Service Commission are required to take responsibility. However, local or State government may ultimately be requested to take over failing systems if these companies go out of business.
A more serious concern has arisen in Tennessee, where a reliance on community wastewater systems has fueled decentralized development of the type we are now seeing in Delaware. The trend towards the use of these systems has "fueled sprawl and left county governments playing catch up as they search for ways to improve roads and build schools in these long undisturbed locales." (Harville, B. (2005, July). New Tech, New Trouble? Planning, pp. 40.) Robert Franklin, a planner with Mt. Juliet, Tennessee, explains that this pattern of development "lures investment away from urbanized areas with cheaper land prices. That allows the developer contribution towards infrastructure to decrease and the public subsidy to increase. The development community sees cheaper and lower infrastructure cost as a more profitable investment. The lagging demand for road improvements and school construction is a cost then passed on to the taxpayers." (Harville, B. (2005, July). New Tech, New Trouble? Planning, pp. 41.) The issues facing those in Tennessee are eerily similar to the land use patterns which are emerging, rapidly, here in Delaware.
Based on the experiences of other states, such as Washington and Tennessee, the Delaware Sprawl Prevention Act has been drafted to prohibit community wastewater systems in rural areas of the state as defined by local comprehensive plans and the Strategies. Community wastewater systems promote sprawl by allowing town-scale development projects to be located away from planned infrastructure and services, in the midst of rural areas. Community wastewater systems burden future residents with high maintenance costs that may, eventually, become the responsibility of the taxpayers if the systems fail and private utilities become insolvent. The Delaware Sprawl Prevention Act also affects the regulations for individual on-site wastewater systems (generally known as septic systems, or "on-site septics"). Current regulations allow one individual on-site wastewater system to be constructed on as little as a half acre of land. Although the development community has increasingly been using community wastewater systems for large scale residential development, current regulations would still allow large concentrations of half acre lots if community wastewater systems were restricted in rural areas. Large subdivisions utilizing small lots with individual on-site wastewater systems would represent inappropriate development in rural areas for the same reasons detailed for subdivisions using community wastewater systems. Large developments with individual on-site wastewater systems would create additional water quality concerns due to the density of the systems and the impact on groundwater, which is the sole source of drinking water in Kent and Sussex Counties. In addition, the use of individual on-site wastewater systems would further decentralize the maintenance responsibilities increasing the likelihood of failure of multiple systems. The Sprawl Prevention Act changes the minimum lot size requirement for an on-site system from one half acre to four acres in rural areas. Based on a review of regulations in New Castle and Kent Counties, some Maryland counties, and other areas of the country, it appears that the four acre requirement would serve to discourage large-scale residential subdivisions while allowing other residential development options and agriculturally related uses that are compatible with rural areas.
There are other notable provisions of the Delaware Sprawl Prevention Act. First, the Act does not affect subdivisions of fewer than five lots. Minor subdivisions, as permitted by local regulations, would still be allowed. Second, lands in Agricultural Preservation Districts, agricultural-commercial and agricultural-industrial uses are exempt from the Act. Community wastewater system technology may be appropriate to support agricultural economic development activities, and the Act will not impact those cases. And finally, an appeals and variance process is built into the Act to consider unusual cases of hardship that we were unable to anticipate when drafting the legislation.
The Sprawl Prevention Act is a moderate response tailored to Delaware's needs. The legislation defines growth areas and rural areas. These definitions are tied not only to the Strategies for State Policies and Spending but also to certified comprehensive plans adopted by local elected bodies. All of these documents are reviewed and updated on a five year cycle, ensuring that the regulations will always respect our collective vision for the future. The State is committed to continued collaboration with local governments to ensure that we work together to form a future that is in the best interest of Delaware's residents.
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