Environmental groups challenge Sussex decision on biogas permit

Environmental groups challenge Sussex decision on biogas permit
A parcel of land near Georgetown that is slated as the site of a biogas facility for chicken litter. 

Environmental advocates are challenging Sussex County officials over a new business they say has not done enough work on its project to meet permit requirements.

In 2018, Sussex County officials approved CleanBay Renewables’ plan to build a biogas facility in Georgetown, where the company plans to convert chicken litter from Delmarva poultry plants into electricity. The approval required a conditional use permit to create the “electrical generation and nutrient recovery facility” on the land that’s zoned for agricultural/residential use.

Conditional use permits are tied to a three-year lifespan, opponents argue, one that expired on Aug. 1, 2021. The only way to keep the permit valid, according to county code, is for “construction or use” to be “substantially underway” during that three-year period. But it was county staff themselves who initially said CleanBay had not made enough progress on the project.

After a staff review of the site and appropriate documents, on Aug. 9, 2021, Sussex County Planning and Zoning Staff sent a letter stating the conditional use permit had lapsed. Photos they took show farm fields largely untouched.

CleanBay argued otherwise, saying that they had begun work on the right-of-way and parking areas, and provided photos as proof. The company also noted in a letter that the COVID-19 pandemic had led to delays in the site planning process.

“I’m inclined to give the applicant the benefit of the doubt based on what’s in the letter,” said P&Z Chairman Robert Wheatley. “We have rather broadly interpreted ‘substantially underway’ over the years and I don’t see a reason to deviate at this point. At least this puts them on notice that they better start doing something.”

In response, Food & Water Watch and Sussex Health and Environmental Network sent a letter to county officials alleging that decision was illegal, and asking them to reconsider.

“County code says the conditional use shall be null and void if those things aren’t done,” said Food & Water Watch Delaware spokesman Greg Layton, pointing to county code that lays out examples of what “substantially underway” includes on a project site, such as grading of roads and preparations for stormwater management. “We don’t think this is within their discretion to give.”

Sussex County spokesman Chip Guy said the county has “no response beyond what members of the Commission offered in their public discussion.” When asked if they were planning to respond to the letter, he said, “The County has addressed it. … There is no further information.”

Representatives from CleanBay did not respond to a request for comment.

Layton said if the County reconsidered, it would delay CleanBay’s project and force it to reapply. But it’s likely the application would be approved again, he said.

“We would like the opportunity to have the public weigh in and discuss more thoroughly,” he said.

CleanBay is planning another similar project in Maryland, while BioEnergy Devco is building a facility near Seaford. Layton’s group and other environmental advocates have been critical of these biogas facilities, which they argue pose their own significant environmental and health risks and potentially create an incentive to produce more waste.

Back in 2018, CleanBay Renewables testified during a public meeting that the goal is to recycle a product in high supply — chicken litter and manure — and convert it into electricity. By doing so, companies argue that they will also decrease phosphorus pollution that would otherwise reach nearby water bodies like the Chesapeake Bay. Nutrients like phosphorus can cause unhealthy waters by driving algae blooms that can lead to dirty waterways and fish kills.

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