Petition alleges Association of Coastal Towns violated FOIA

A petition filed with the Delaware Department of Justice April 25 alleges the Association of Coastal Towns has engaged in violations of the Freedom of Information Act.

ACT comprises Bethany, South Bethany, Dewey, Henlopen Acres, Rehoboth, Lewes and Fenwick Island; Lewes and Fenwick Island are not named in the petition. 

The petition filed by South Bethany property owner Edward E. Bintz states that ACT failed to comply with FOIA and denied the public a role in its decision-making on matters of public interest related to US Wind’s offshore wind project. The petition details a list of alleged violations and requests that ACT be mandated to implement five remediation measures.

Correspondence from Deputy Attorney General Dorey L. Cole sent April 29 to Bethany Beach Mayor Rosemary Hardiman, the current ACT president, states that the Delaware Department of Justice has reviewed the petition.

The petition includes allegations dating back two years regarding emails and meetings with US Wind and negotiations over a community benefits package later offered to coastal towns.

DOJ determined that claims alleging violations that occurred before Oct. 26, 2023 will not be considered, Cole wrote, as DOJ FOIA procedure rules state that FOIA petitions must be filed within six months of alleged violative misconduct.

In his letter, Cole said the DOJ will consider claims that ACT holds regular non-public meetings without required public notice and participation, including on Dec. 5 and Dec. 20, 2023; that ACT did not maintain required minutes for those two December meetings; that ACT’s US Wind Committee met without public notice; and that ACT failed to maintain a web portal for receiving FOIA requests, to implement a FOIA request policy, and to designate a FOIA coordinator.

Cole requested ACT provide a response to the claims by May 7. Hardiman said by email May 9 that the Attorney General’s Office extended the response deadline to Friday, May 10.

ACT has followed the advice of legal counsel regarding FOIA since its inception, Hardiman wrote.

“That advice is that ACT is not subject to FOIA,” she said. “This is not unusual. There are other organizations in Delaware which are comprised of municipal officials who regularly meet to discuss a variety of issues and, when needed, may vote on an issue or initiative to determine if there is a consensus in order to report back to their representative jurisdictions for approval and/or funding in an open and public forum bound by FOIA.”

Such organizations include the Sussex County Association of Towns and the Delaware League of Local Governments, Hardiman stated.

Regarding US Wind’s proposed community benefit agreement, Hardiman said each participating ACT municipality considered the proposal the same way they would any other agreement or contract.

“That is, they submitted the proposal to their respective councils or commissions at open meetings for consideration and deliberation, all of which were subject to and followed the provisions of FOIA,” she said. “Those public meetings in each of the municipalities were well attended and all attendees who wished to comment were provided an opportunity to do so.”

Hardiman said she would wait for the Attorney General’s opinion on the matter before making any further comment.

Background

US Wind has leased rights to an 80,000-acre area off the coast of Ocean City, Md., for offshore wind projects that call for the installation of 76 turbines, four offshore substations, a meteorological tower and up to four offshore export cable corridors. 

In late 2023, the Bureau of Ocean Energy Management issued a draft Environmental Impact Statement assessing potential impacts from developing the lease area, and US Wind’s plans to mitigate or avoid those impacts. BOEM is expected to approve or disapprove plans by the fourth quarter of 2024. 

Also in late 2023, US Wind presented a community benefits package to South Bethany, Bethany Beach, Dewey, Rehoboth and Henlopen Acres that proposes paying each town $100,000 annually for 20 years, for a total of $2 million, provided they will not use any discretionary authority to obstruct or delay the wind project.

In January, Dewey Beach commissioners tabled a vote on accepting the benefits package until after BOEM issues its decision on US Wind’s plans. 

Also in January, Henlopen Acres and Rehoboth Beach leaders discussed the offer without making a decision. Municipal records show that South Bethany and Bethany leaders held discussions on the offer in January and did not hold a vote.

Lewes officials have not decided whether to accept the agreement, and Fenwick Island has declined to participate.