An appeal challenging the construction of Rehoboth Beach’s ocean outfall was shot down by the state’s Environmental Appeals Board Tuesday.
Suzanne Thurman of the Marine Education Research and Rehabilitation Institute challenged Department of Natural Resources and Environmental Control Secretary Shawn Garvin’s decision allowing Rehoboth to build a pipe that will discharge treated wastewater into the Atlantic Ocean.
As an individual resident, Thurman sought mitigations and protections for marine mammals — arguing they would suffer significant harm from construction.
“I’m making this case for the welfare of the ocean and its creatures,” Thurman said. “I want to speak on their behalf because they are the true stakeholders. They should be granted unquestionable standing. They will suffer the greatest harm.”
The City of Rehoboth Beach’s City Solicitor Glenn Mandalas and Deputy Attorney General William Kassab from Delaware’s Department of Justice represented Rehoboth Beach and DNREC respectively. They argued since Thurman filed an appeal as an individual resident, she would have to show she would be affected differently from the community.
“In her statement of appeal, she alleges potential harm that may [apply] to MERR…” Kassab said. “…She can’t rely on potential impacts to MERR to establish her standing as an individual.”
The board dismissed her appeal, deciding she did not have standing as an individual because she could not prove personal harm. However, one member of the six-person board voted in favor of her appeal and her standing.
Thurman said she was disappointed in the outcome.
“It’s not totally unexpected,” Thurman said. “So I’ll just continue to be ever vigilant to act as a watchdog to oversee what’s going on, ultimately with the operation of the outfall."
That includes, she said, continuing to monitor for marine strandings and water quality. She said she’ll continue the fight and will look to see if anything can be done on the federal level.
“With the construction phase wrapping up, we’ll focus all of our energies onto the operation and the effluent and what we start to see in terms of the animals,” Thurman said.
The City of Rehoboth Beach and GHD, the engineering firm they’re working with on the outfall, say while they don’t have the mitigation process often put in place to watch for marine mammals and sea turtles passing through the area, contractors have been actively watching for them.
“It wasn’t required,” said City Solicitor Mandalas on the mitigations. “But there is a level of monitoring that’s happening.”
In December, Sam Jung, GHD's resident project representative for the city, told Delaware Public Media about a dozen crew members working on the outfall are in constant view of everything around them.
“A lot of them are actually doing that watch and they’re on standby to help when machines break down,” Jung said in December. “There’s adequate eyes looking around all the time.”
However, Thurman said she received a call on Jan. 3 about a harbor seal that stranded about two blocks from Deauville Beach.
“And I don’t expect them to be seeing these things. They’re doing their job — the construction job,” Thurman said.
She said she wanted trained observers on site from the National Oceanic and Atmospheric Administration's Observer Program, but they were not included in DNREC’s executive order, and thus, would not be implemented because her appeal was shot down.
“Depending on the circumstances, there could be a work stoppage if that had been mandated, but it wasn’t. That’s why I was asking for those considerations,” Thurman said.
Although work stoppages were not part of the permits, a DNREC environmental review on the outfall permits from Jan. 26, 2017 mentioned the animals that migrate through the area as well as federally endangered piping plovers that could be roosting on the beach, and what should happen to construction if they are spotted. The report said seals migrate through Delaware waters between November and April.
“If construction activities on the beach are to conducted during the winter months, the applicant should be cognizant that seals may be encountered,” the report said. “Marine mammals are federally protected by the Marine Mammal Protection Act. As such, if a seal is observed hauled out on the beaches any time during the project period, work should stop immediately…”
Thurman filed the appeal against the state over the summer, hoping to put work stoppages in place for when seals and whales migrated through the area. She said she filed as an individual resident because "MERR couldn't bare financial responsibility."
Mandalas said the city intervened in the case in December, worried that if it passed, it would put in jeopardy the city's ability to comply with a court order mandating they discontinue discharging effluent into the Lewes-Rehoboth Canal by June 1, 2018. He acknowledged to the appeals board the respect the city has for Thurman and her work, and the unfortunate nature of the appeal.
"Typically you see these sort of appeals where it's a resident that is affected somehow," he later told Delaware Public Media. "This is sort of a different one where DNREC and the city were aligned against, quite honestly, somebody that we know and respect."
Rehoboth’s $52.5 million ocean outfall project is on track for completion by the end of April.