When a subdivision with stormwater facilities goes through Sussex County, the paperwork includes more than a site plan. Before a building permit is issued, the applicant has to sign a binding inspection and maintenance agreement for those facilities. It is recorded in the county land records, and it binds every owner who comes after.
When the developer turns the community over, the pond goes with the common area, and so does the agreement. The board that takes over rarely gets a briefing on it.
What the agreement asks of the owner
Under Sussex County Code Chapter 90, the recorded agreement and the deed restrictions behind it require the facility to be maintained to conservation district standards. They also give DNREC and the Sussex Conservation District the right to come on site and look. In practice, that means the owner, usually the community association, is responsible for:
- Keeping the facility working as it was designed and approved: the forebay, the riser and outlet, the embankment, the emergency spillway and the plantings
- Inspecting it on a schedule and keeping a record that can be produced when someone asks
- Correcting deficiencies once they’re found, rather than carrying them from year to year
The obligation runs with the land, so it doesn’t lapse when the board changes or the management company does.
How boards usually find out
Rarely from the document itself. More often it surfaces as:
- A maintenance notice from the district or the county
- A reserve study that flags the pond as an unfunded liability
- A pond that turns green in July and comes up at the annual meeting
- New board members asking for records that were never kept
By then a small problem has usually had a few seasons to grow. A forebay that should have been cleaned out has filled in, and the sediment has started moving into the main pond, where it costs far more to remove.
What a board can do this year
- Find the agreement. Your management company or the county land records will have it, along with the approved plan the pond is held to.
- Get the facility inspected against that plan, with a written, photo-documented report you can put in the minutes.
- Budget the corrections in order of what it costs to wait, starting with the inexpensive ones before they become expensive ones.
- Put the pond on a schedule, so the next inspection record already exists before anyone asks for it.
Two resources are worth knowing about. Delaware offers a $5 Permanent Stormwater Facility Maintenance Course aimed at facility owners, which is a good use of an afternoon for any board member. And the Sussex Conservation District’s CCAP cost-share program can reimburse up to 75% of eligible project costs, up to $7,500 per project, for homeowners, HOAs and residential communities, subject to funding and eligibility.
Where we come in
We walk the facility with the approved plan and the recorded agreement in hand, and we write up what we find in plain language for the board: what’s working, what isn’t, what it costs and what can wait. If you want the bigger picture first, our compliance page sets out who owes what in Delaware and Maryland.