CHAPTER 233
AN ACT TO ENABLE THE LEVY COURT OF NEW CASTLE COUNTY TO ESTABLISH A WATER SUPPLY AND FLOOD CONTROL SYSTEM IN THE WHITE CLAY CREEK WATERSHED, TO CONTROL THE USE OF EXCESS WATER THEREOF, TO AUGMENT THE SUPPLY OF WATER FOR NEW CASTLE COUNTY TO CONTROL THE USE THEREOF AND TO CHARGE FEES THEREFOR TO ISSUE BONDS TO FINANCE PROJECTS AND ACQUIREMENTS, TO ACQUIRE BY CONDEMNATION, PURCHASE, GIFT OR OTHERWISE LAND OR RIGHTS THEREIN, IN NEW CASTLE COUNTY OR IN THE COMMONWEALTH OF PENNSYLVANIA, TO LEVY TAXES THEREFOR.
Be it enacted by the General Assembly of the State of Delaware:
Section 1. Title 9, Delaware Code, is hereby amended by adding after Chapter 26 a new Chapter 27, as follows:
CHAPTER 27. WATER SUPPLY
§ 2701. Definitions
Definitions used in this chapter, unless a different meaning clearly appears from the context.
(c) "County" means New Castle County.
(d) "Water Supply System" means the plants, structures and other real and personal property, including specifically dams, wells and pipe lines, acquired, constructed or operated, or to be acquired, constructed or operated for the collection, storage and wholesale distribution of water for ultimate domestic, commercial and industrial use.
() "Water Treatment and Distribution System" means the plants, structures and other real and personal property acquired, constructed or to be acquired, constructed or operated for the treatment and retail distribution of water for domestic, commercial and industrial use.
(d) "Excess Water" means the portion of the flow of the water in White Clay Creek which exceeds the low flow of record thereof which shall be determined by the Levy Court by standard accepted hydrological methods.
(e) "Levy Court" means the Levy Court of New Castle County.
§ 2702. Powers of County
In addition to the other powers which it has, the County may, under this chapter:
(a) Plan, construct, acquire by gift, or purchase any Water Supply System in the White Clay Creek Watershed, and acquire by gift, purchase or the exercise of eminent domain lands or rights in land in connection therewith;
(b) Plan and construct White Clay Creek Water Supply System, including a dam, reservoir and other structures on White Clay Creek above Newark extending into the Commonwealth of Pennsylvania and in connection therewith to acquire by gift or purchase (for money or other considerations), or a combination thereof in the Commonwealth of Pennsylvania and by gift, purchase (for money or other considerations), eminent domain, or a combination thereof in New Castle County, lands or rights in lands;
(c) Plan for and relocate or pay for the planning and relocation of existing roads, bridges, power lines, water mains, telephone lines, sewers and other utilities located within the aforementioned Water Supply System site which relocation is required by the exercise of the powers in (a) and (b) of this section;
(d) Protect, relocate or pay for the protection or relocation of privately owned facilities such as dwellings, buildings, churches, cemeteries, private drives and private water systems and appurtenances located within or immediately adjacent to the site of such water Supply System as part of the cost of acquiring land or rights in land whenever Levy Court shall determine that such protection or relocation shall be economically justified or in the case of churches, historical buildings, and cemeteries, such relocation shall be in the public interest;
(e) Operate and maintain such Water Supply System and furnish the services and facilities available therefrom;
(f) Enter into and perform contracts deemed appropriate by the Levy Court with any public utility company or with any incorporated city or town operating a water treatment and distribution system providing for the use of water from such County Water Supply System or systems and for the payment to the County of fees for the use or for the availability of use of such water;
(g) Issue bonds to finance in whole or in part the cost of planning, acquisition, purchase, construction, reconstruction, improvement, betterment or extension of any such Water Supply System; and accept from the State of Delaware, or the Commonwealth of Pennsylvania, the Delaware River Basin Commission, the Federal Government or any authorized agency of any of the above, any incorporated town or other local governmental agency or from persons, firms, or corporations, grants, loans or contributions for the planning, construction, acquisition, reconstruction, improvement or extension of any such Water Supply System and to enter into agreements with such parties with respect to such grants, loans or contributions;
() Make payments of taxes or in lieu of taxes levied by townships, counties, or other governmental bodies upon land and improvements owned in the Commonwealth of Pennsylvania, and enter into agreements with respect to said taxes or payments;
() Control and distribute within New Castle County the Excess Water collected or stored in any reservoir on White Clay Creek forming a part of any such County Water Supply System by releasing it into any stream, river, pond, lake, or water treatment and distribution system and prohibit or permit the use of Excess Water for such uses, in such amounts, and subject to such rules, regulations and fees as the Levy Court may from time to time determine, provided, however, that the County at no time shall prevent the free flow in White Clay Creek of any and all water which is not Excess Water unless the right to appropriate, divert or use such non-Excess Water shall have been previously legally acquired from the parties entitled thereto by the County. The fees may be based upon such use or uses or upon any combination thereof and the Levy Court may enter into contracts with municipalities, public water distributing utilities and industries with respect to said rights and fees;
(j) Sell any land acquired under this Chapter which the Levy Court shall at any time determine to be surplus to its needs. Such sale shall be in accordance with existing Chapter of this Code whether said land is located in the State of Delaware or in the Commonwealth of Pennsylvania, except that land acquired for the relocation of utilities, facilities or improvements may be conveyed upon such terms, in such way and manner and subject to such conditions and restrictions, if any, as the County may deem fit, to the appropriate governmental agency or persons, firms or corporations;
(k) Exercise full control of and make rules and regulations for access to and use of lands included as part of any Water Supply System.
§ 2703. Bonds, Authorization, Amount, Terms, Sale and Interest Rate
(a) The planning, acquisition, purchase, construction, reconstruction, improvement, betterment or extension of any Water Supply system to be used in connection with the White Clay Creek Watershed, including costs of land, rights in lands and relocation of utilities and other improvements may be authorized under this Chapter and bonds to provide funds for such purposes, may be authorized to be issued under this Chapter by resolution of the Levy Court.
(b) The Levy Court in determining the costs of acquiring or constructing any such Water Supply System may include all costs and estimated costs of the issuance of the bonds, all planning, engineering, inspection, fiscal and legal expenses, and interest or estimated interest upon the bonds or other money borrowed pursuant to this Chapter during the planning and construction period and for six months after completion.
(c) The bonds shall bear interest at such rates, may be in one or more series or issues, may bear such dates, may mature at such time, not exceeding forty years from their respective dates of issue, may be payable in such medium of payment, at such place or places, may carry such registration privileges, may be subject to such terms of redemption, may be executed in such manner, may contain such terms, covenants and conditions, and may be in such form either coupon or registered as the resolution or subsequent resolutions provide.
(d) The bonds shall be sold at public sale upon sealed proposals after at least ten days' notice published at least once in a newspaper published in the City of Wilmington in the State of Delaware. Any of the bonds may be sold at private sale to the United States of America or any agency, instrumentality or corporation thereof at not less than par.
(e) Pending the preparation of the definitive bonds, interim receipts or certificates in such forms and with such provisions as the Levy Court determines may be issued to the purchasers of bonds sold pursuant to this Chapter.
(f) The rate of interest may be determined in advance of sale or the bonds may be offered for sale at a rate of interest to be fixed by the successful bidder for such bonds.
(g) The Levy Court may advance funds for planning, engineering, acquisition of land, etc., from other funds of the County to be reimbursed from time to time by sale of water supply bonds.
§ 2704. Authorized Signatures on Bonds, Validity of Issuance
(a) Bonds bearing the signatures of officers in office on the date of the signing thereof shall be valid and binding obligations notwithstanding that before delivery thereof and payment therefor any or all of the persons whose signatures appear thereon have ceased to be officers of the County.
(b) The validity of the bonds shall not be dependent on, nor affected by the validity or regularity of any proceedings relating to the planning, acquisition, purchase, construction, reconstruction, improvement, betterment or extension of the Water Supply System for which the bonds are issued. The resolution authorizing the bonds may provide that the bonds shall contain a recital that they are issued pursuant to this chapter, which recital shall be conclusive evidence of their validity and of the regularity of their issuance.
§ 2705. Payment of Bonds; Faith and Credit of County; Tax Levy
The faith and credit of the County are pledged to the payment of any bonds issued under this Chapter. The Levy Court shall, annually, appropriate to the payment of such bonds and the interest thereon the amounts required to pay such bonds and interest as the same becomes due and payable. Notwithstanding the provisions of any other law, the Levy Court may levy an ad valorem tax, without limitation as to the rate or amount upon all property taxable by the County to raise the monies necessary to meet any such appropriation.
§ 2706. Power to Make Charges; Liability of Users
(a) The Levy Court may establish and from time to time revise fees. The fees may be based upon the right to use a specified amount of water, or upon its actual use or upon any combination thereof. It shall be the policy in determining fees to be charged or provided for in contracts entered into under this Chapter to collect sufficient moneys to pay the principal and interest of all bonds issued hereunder plus the cost of operation, maintenance and administration of the Water Supply System. Upon retirement of all bonds the rates shall be revised consistent with the reduced costs. The fees charged shall be fees which shall be determined by the Levy Court to be equitable, giving full consideration to values, such as lands or other rights granted to the County.
(b) The Levy Court may enter into long-term contracts for the rights to use such water. Such contracts may provide equitable means for the voluntary sale of such rights and, in the case of rights for which the contractor does not have plant facilities to use, their involuntary sale upon order of the Levy Court to release such rights to parties prepared to use them.
(c) The Levy Court may, in contracting for such rights, establish emergency priorities in the use of such water.
(d) The Levy Court may establish discounts for prompt payment of fees and penalties not to exceed 1% a month for late payment. The Levy Court shall provide that failure to pay such fees within a period not to exceed one year from the due date shall result in cancellation of the contract. Unpaid fees shall constitute liens against the property of the contractor as of the date of cancellation of the contract. The Levy Court may collect such fees by civil suit on the contract or by sale of the property for the lien.
(e) The fees established under this Chapter shall not be subject to approval of the Public Service Commission.
§2707. Condemnation Under Right of Eminent Domain
The Levy Court may acquire real and personal property or rights therein by condemnation as provided in 53 Delaware Code, Title 10, Chapter 61, for property located in the County, in the exercise of the powers provided under this Chapter.
The Levy Court may contract with the Delaware River Basin Commission, agencies of the Commonwealth of Pennsylvania and local Pennsylvania governmental units having such powers, to acquire by condemnation real and personal properties or rights therein as may be required under this Chapter in the Commonwealth of Pennsylvania for the purposes of this Chapter, and may compensate the Commission, Commonwealth, or local unit for the cost of acquisition.
§ 2708. Title of Property
(a) Property in the State of Delaware acquired by the County for the purpose of this Chapter shall be held in the name of the "State of Delaware for the use of New Castle County".
(b) Property outside of the State of Delaware acquired by the County for the purposes of this Chapter shall be held in the name of "The Levy Court of New Castle County".
§ 2709. Penalties; Enforcement
(a) Violation of any rules and regulations established under this Chapter shall be a misdemeanor punishable by a fine of not less than $25 nor more than $100 for each such violation. Each day of a continuing violation shall be a separate offense.
(b) In addition to the above remedy, the County may apply to the Court of Chancery for injunctive relief to prevent continuation of such violations.
(c) In the case of violation of contracts or agreements under this Chapter, the County may sue for civil damages and also apply for temporary or permanent injunctions to halt violations.
§ 2710. Repealer
This act hereby repeals any acts or sections of acts inconsistent with this Chapter.
§ 2711. Authority of Delaware River Basin Commission
Nothing herein shall be construed to reduce the power and authority of the Delaware River Basin Commission.
Approved January 11, 1964.
NOTE: This act was codified as Chapter 28, Title 9, Delaware Code. The sections thus became § 2801-2811.