Two environmentalists have appealed a decision that allowed Rehoboth Beach to move forward with construction of a $52.5 million ocean outfall.

Suzanne Thurman, head of the Marine Education Research and Rehabilitation Institute, and Gregg Rosner, a member of the Delaware chapter of the Surfrider Foundation, have filed separate appeals of then-Delaware Department of Natural Resources and Environmental Control Secretary David Small’s decision to approve Rehoboth’s environmental impact statement for the project. Approval of the statement was required for Rehoboth to receive state funding for the project.

Thurman and Rosner are asking for a stay of construction until the secretary’s order can be modified to require compliance with the Marine Mammal Protection Act to protect seals, whales, porpoises and dolphins that are present in the area of the outfall construction site, 6,000 feet off Deauville Beach.

Thurman and Rosner are also asking for an independent, peer-reviewed study of impacts of the treated effluent to the benthic layer - the ecological region at the lowest level of the ocean. They are also asking for a financial agreement between DNREC and Rehoboth for the implementation, construction and yearly maintenance of improvements to Rehoboth’s stormwater system.

Small’s decision requires Rehoboth to conduct studies of stormwater outfalls that empty into the ocean. City engineer GHD recently concluded testing related to Rehoboth’s stormwater quality near the ocean, but no infrastructure projects have been proposed.

Thurman and Rosner argue Small’s decision is improper because it was based on erroneous information about federally protected marine mammals and does not address how the project will affect marine mammals. Both appeals request additional technological safeguards to remove heavy metals and pharmaceuticals from the treated effluent.

City Solicitor Glenn Mandalas said the city is not a formal party to the appeals, but he plans to file a motion to intervene. He said DNREC plans to file a motion to dismiss and a motion to consolidate the cases into one.

DNREC spokesman Michael Globetti said the department is not commenting on the appeals.

Thurman’s appeal will be heard at 9 a.m., Tuesday, Dec. 12, while Rosner’s will be heard at 9 a.m., Tuesday, Jan. 9. Both hearings would be held at the Richardson and Robbins building, 89 Kings Highway, Dover.

Rosner said outfall construction is impinging on migratory food sources for seals, whales and dolphins coming through the area. He acknowledged the appeals are a bit of a Hail Mary to stop the project, which is well underway with trenching for the outfall pipe now complete. He said the appeals board seldom overturns decisions, but that he believes the construction is improper and should be stopped.

Thurman said, “My primary objective was to try to reach some compromises to mitigate the detrimental impacts that the outfall construction and long-term operation will have on marine animals and the ecosystem. The DNREC secretary's order that permitted the Rehoboth outfall did not address some critical environmental impact requirements/laws.”

She said her appeal was filed in July, but the appeals board did not set the hearing until December, well after construction was to begin.