The Delaware Department of Natural Resources and Environmental Control (DNREC) is an executive state agency with the responsibility to protect both the environment of Delaware and public health. Delaware’s General Assembly passes laws that address the protection of human health and the environment.

Some environmental laws direct the department to prepare regulations to implement the laws passed by the legislature. Environmental regulations periodically need to be updated to meet changing legal requirements, updates in scientific understanding of the environment, changes in the economic or business environment or other factors. 

An Open Regulatory Development Process

DNREC follows a regulatory development process designed to ensure that, to the extent possible, everyone who is interested in a proposed action regarding a regulation is properly notified about it, that the department follows a predictable and open process in developing, adopting, amending, and/or repealing such regulations, and that all these processes conform to legal and programmatic requirements. 

All regulatory changes begin with a Start Action Notice (SAN) which lists the type and purpose of the proposed change, the statutory basis for the action, affected stakeholders, schedules and more information. 

As part of the public review process, regulatory changes are published in the state’s Register of Regulations. The Register is published monthly and includes a Regulatory Flexibility Analysis and Impact Statement for each proposed action (unless it is exempt), as required under the Regulatory Flexibility Act.

The Flexibility Analysis considers, where applicable, lawful, feasible and desirable, specific methods of reducing the burdens of the regulation on individuals and/or small businesses.

The Impact Statement identifies individuals and/or small businesses it will affect, provides an estimate of the potential costs of compliance, and describes any less intrusive or less costly alternative methods of achieving the purpose of the regulation. 

Formal public notices announcing workshops and public hearings are also published in statewide newspapers and on the DNREC website. DNREC notices include announcements of regulatory change proposals, permit applications and other matters. You can subscribe to receive DNREC public notices by email.

You Are Part of the Process

The department encourages public review and comment on all proposed regulatory changes, both in the development process and prior to final promulgation. 

The department might hold workshops to seek input about a proposal under consideration. In some cases, the department may convene meetings of stakeholders with specific interests in the regulation to facilitate discussion and exploration of options and ideas.

This is the time during which questions can be asked about the proposal. This open discussion with members of the public, the regulated community and others interested in the proposal helps the department craft regulations that properly balance protection of the environment and public health with the needs of the regulated community. 

All members of the public are welcome to attend and participate in such workshops.

All public meetings and events of the agency, including DNREC Public Hearings, are published on the DNREC calendar of events. Meetings subject to the state open meetings law are also published on the state Public Meeting Calendar. 

The Public Hearing

Once a proposed regulation or regulatory change has reached a final “draft” stage, it is published in the Register of Regulations and goes to a formal public hearing. The hearing allows the public to review the proposal and make comments. 

The final decision on promulgating a regulation is made by the Secretary of the Department of Natural Resources and Environmental Control (DNREC), a cabinet-level position appointed by the Governor. In making this decision, the Secretary relies on a formal record compiled by an appointed Hearing Officer.

The record generally includes things such as: 

• The statutory requirements (the law that the regulation supports) 
• Public comments, including comments from the regulated community 
• The advice of experts within the department and, if needed, from outside sources 

It is important for the department to hear opinions from all those potentially affected by a proposed regulation, and from other members of the public. These opinions can be in support of the proposal or opposed to the proposal. 

A formal public hearing differs from a workshop. DNREC staff cannot answer questions at a hearing, and those who want to offer comments during the hearing must pre-register.

Following the public hearing, written public comments are accepted for at least 15 days. This length of time may be extended by the Hearing Officer. This time allows people to submit comments based upon what they learned at the hearing.

All relevant public comments, whether verbal in the public hearing or in writing before or after the hearing, have the same weight and will be considered equally by the Secretary. 

Each Public Hearing has its own web page, found at de.gov/dnrechearings, that includes the full hearing record ⁠— the hearing transcript, exhibits, all public comments, a Technical Response Memo, the Hearing Officer’s Report, and the Secretary’s Order.

Review and Decision

After the close of the public comment period, DNREC subject-matter experts review the comments and provide technical responses to those comments in a Technical Response Memorandum. This document is provided to the Hearing Officer, who makes a recommendation to the Secretary based on the complete Hearing Record. 

After review of the entire Hearing Record, the DNREC Secretary makes a decision whether to approve or deny the proposed regulatory changes. This decision, and the reasons for it, is formally announced through a Secretary’s Order published in the Delaware Register of Regulations and on the DNREC website.

Related Topics:  administrative law, environmental regulations, permitting and regulation, public comment, public hearing, public notice