DNREC responds on Pepper Creek

Developers in Dagsboro are hoping to narrow rights-of-way along Pepper Creek, from as wide as 250 feet on either side of the creek, down to something more like 25 feet.
The easement was never intended to remain at 250 feet forever, developers have argued.

If it had been the state’s intent to place those lands into a permanent easement, there would have been compensatory issues, suggested attorney Dennis Schrader. (He represents developers for the big, 430-unit General’s Green project.)

According to Schrader, the broad easement was probably put in place so that the state could spread dredge spoils material over broad swaths of farm field. “But once they spread it, I don’t think anyone intended the government to be there forever,” he said. “This is Sussex County, after all.”

But Department of Natural Resources and Environmental Control’s (DNREC’s) Frank Piorko, program administrator for Drainage, recommended against snap judgments that some arbitrary number, like 25 feet, would provide sufficient room for proper maintenance.

In some places, the tax ditches are classified as federal wetlands, and then there is the possibility that Delaware might have mapped additional, adjacent, state-regulated wetlands, he pointed out.

The Army Corps of Engineers wouldn’t permit the use of state wetlands as a spoils site, and so might require state set-asides further upland, Piorko explained. And Pepper Creek fielded a lot of sediment, and had a history as a maintenance-intensive area, he added.

“We’ve been working with most of (the developers), and we can accommodate them 99 percent of the time,” Piorko noted. “But that being said, if the tax-ditch managers come back and tell us, ‘We really need this right-of-way,’ I’m not going to sign the court order taking it away from them.”

Dagsboro Planning and Zoning (P&Z) Commission Member Clay Hall had questioned the absence of any reference to the easement on property owner’s deeds, but as Piorko explained, that wasn’t remarkable.

Tax ditch rights-of-way have been around for 50 or 60 years, he said, but there wouldn’t be any notation at the Recorder of Deeds’ office because the order authorizing tax-ditch creation (and maintenance arrangements) always came out of Superior Court.

All actions taken in Superior Court are recorded by the Prothonotary’s Office — not by the Recorder of Deeds, he noted. Piorko said the state was trying to find a simple way to identify tax ditches and tax ditch rights-of-way on deeds, but they still had a ways to go.

There are 2,000 miles of tax ditch in Delaware, he said, and 30,000 landowners with adjacent property.

As Schrader had noted at the P&Z meeting on Feb. 1, Pepper Creek’s tax-ditch system stretches for 42 miles. He said his clients hadn’t been surprised that there was an easement — they just hadn’t expected it would be 250 feet wide.

If tax ditch rights-of-way span 500 feet (250 per side) throughout all 42 of those miles, that would leave nearly 4 square miles — more than 2,500 acres — under the easement.

Historically, people asked the state for tax ditches because they wanted to drain swampland and plant crops. But the state has since recognized that loss of wetlands as a bad thing.

According to a 2001 University of Delaware Center for Energy and Environmental Policy (CEEP) study, “Since tax ditches are often straight (without any meanders) and deep, they are capable of allowing nutrient runoff to percolate both downstream and into ground water aquifers. This is of particular concern to Southern Delaware, since all of its drinking water supply comes from ground water sources.”

The CEEP study suggested that the state was looking into solutions, like adding vegetative buffer zones or “‘Rosgen’ methodologies of stream restoration (such as placing meanders in streams or in this case ditches) to mitigate some of the detrimental environmental impacts due to ditching.”