DOVER, Del. - The Delaware Environmental Appeals Board unanimously voted to send the state's coastal consistency review of the U.S. Wind offshore wind project back to the DNREC.
The decision followed hours of testimony and legal arguments over whether DNREC adequately reviewed the potential effects of the offshore wind project on Delaware's coastline, including scenic views, recreation, fishing and public lands.
The board voted to send the matter back to DNREC, requiring the department to issue a new public notice, ensure U.S. Wind's application complies with the Delaware Coastal Management Program and follow all applicable provisions of the program, including issuing amended conditional concurrences if necessary.
Appeal challenges scope of environmental review
The appeal was brought by Edward Bintz, who was represented by attorney Jane Brady.
Brady argued that U.S. Wind's application focused primarily on the installation of transmission cables beneath the shoreline and Indian River Bay while failing to adequately evaluate the broader effects of offshore wind turbines on Delaware's coastal communities.
She said the review should have considered the entire project, including the turbines and their potential effects on scenic views, tourism, recreational activities and public lands. Brady also argued that DNREC began reviewing the project before receiving all the information required under state and federal regulations.
According to Brady, U.S. Wind's own visual impact assessment identified major effects on popular Sussex County beaches, including Bethany Beach, but those effects were not adequately addressed in the state's consistency review.
She further questioned why the record provided to the board did not include a detailed explanation of how DNREC evaluated the project's potential impacts or responded to public concerns.
Brady asked the board to set aside the state's conditional concurrences and require a new review based on a complete application.
DNREC defends its review process
Deputy Attorney General Devra Scott defended DNREC's review, arguing that the department complied with federal and state requirements and appropriately considered the project's potential coastal effects.
Jennifer Holmes, coastal regulatory programs manager for Delaware's Coastal Management Program, testified that she oversaw the federal consistency review.
Holmes explained that federal regulations distinguish between administrative completeness and the quality of information submitted.
Under those requirements, she said, an application can be considered administratively complete once the necessary documents are submitted, even if the department later requests additional information.
Holmes testified that DNREC considered the project's construction and operations plan, environmental assessments, public comments and information provided by other agencies.
She disputed the claim that the turbines were excluded from the review, explaining that the construction and operations plan included the offshore turbines, substations, transmission cables and onshore connections.
Holmes also described several changes made during the review process.
According to her testimony, DNREC worked with U.S. Wind to establish a minimum cable burial depth of 6 feet beneath Indian River Bay, reduce proposed dredging and protect sand sources used for beach replenishment. Holmes said the amount of proposed dredging decreased from an early estimate of approximately 1 million cubic yards to 74,000 cubic yards. She also testified that U.S. Wind agreed to avoid existing and future sand borrow sites with a buffer of approximately 400 meters.
Regarding the visual effects of the turbines, Holmes said the department considered commitments involving neutral paint colors, limits on turbine dimensions and aircraft detection lighting designed to reduce nighttime lighting.
Questions raised about public access to information
A central issue during the hearing was whether the public had sufficient access to information about the project's environmental effects.
Brady argued that the public notices did not adequately describe the full scope of the proposed project and that information obtained after the public comment period was not made available for further review.
Holmes testified that DNREC provided a 45-day public comment period, exceeding the program's typical 30-day period. She also said the department considered public comments, including those submitted by Bintz, and sought additional information from U.S. Wind in response to some of those concerns.
However, Holmes acknowledged during questioning that internal records documenting the department's discussions and evaluations were not included in the materials before the board. She explained that the federal consistency process does not require the same technical response memorandum typically prepared for certain permit proceedings involving public hearings.
Board hears arguments over authority to reconsider review
DNREC also renewed its argument that the Environmental Appeals Board lacked the authority to provide the remedy Bintz was seeking.
Scott argued that the state's federal consistency concurrence was part of a broader federal permitting process and that the board could not require federal agencies to reopen or reverse decisions already made.
Brady disagreed, arguing that the appeal challenged the actions of Delaware's environmental department rather than the federal government's approval process.
She maintained that the board had the responsibility to review whether DNREC followed Delaware's laws and regulations, regardless of how federal agencies might respond.
Following an hours long executive session, the board returned and unanimously approved a motion to remand the matter.
What happens next for U.S. Wind?
Under the board's motion, DNREC must take three actions:
1. Issue a new public notice complying with Delaware Administrative Code requirements, including a summary of the proposed activity and an announcement that the consistency certification and accompanying public information are available.
2. Ensure that U.S. Wind's application complies with the applicable submission requirements of the Delaware Coastal Management Program.
3. Comply with all other applicable provisions of the program, including issuing amended conditional concurrences if necessary.
