AN ACT RELATING TO WATER, UNDERWATER LANDS AND AIR USE AND CONSERVATION; PROVIDING FOR A COMPREHENSIVE COMMISSION TO REGULATE THE USE OF WATER, UNDERWATER LANDS AND AIR; REVISING AND CONSOLIDATING THE LAWS RELATING TO WATER, UNDERWATER LANDS AND AIR; PROVIDING FOR THE EXPLORATION IN, AND GRANTING OF RIGHTS IN SUBMERGED AND SUBAQUEOUS LAND; ABOLISHING THE WATER POLLUTION, AIR POLLUTION AND GEOLOGICAL COMMISSIONS AND CREATING A WATER AND AIR RESOURCES COMMISSION.
WHEREAS, the health and welfare of the people of this State require that water and air, two of our most vital natural resources, be always available in a sufficiently pure state to assure the health of the people of Delaware and the economic growth of the State; and
WHEREAS, there is now insufficient regulation and development of the use of water, underwater lands and air to protect and promote the public interest; and
WHEREAS, the regulation and development of the use of water, underwater lands and air is now under the jurisdiction of several State agencies; and
WHEREAS, there is an interrelation between the use of water, underwater lands and air; and
WHEREAS, the most efficient regulation and development of the use of water, underwater lands and air can best be accomplished by granting the primary authority for such use and development to a single State agency;
Section 1. Title 7, Delaware Code, is amended by adding thereto a new part to read:
PART VII. WATER AND AIR RESOURCES
CHAPTER 60. WATER AND AIR RESOURCES
SUBCHAPTER I. GENERALLY
§ 6001. Declaration of policy
(a) In view of the rapid growth of population, agriculture, industry, and other economic activities, the water and air resources of the State must be protected, conserved, and controlled to assure their reasonable and beneficial use in the interest of the people of the State. Therefore, it is declared to be the policy of this State that:
(1) the development, utilization, and control of all water, underwater and air resources shall be directed to make the maximum contribution to the public benefit, and
(2) the State, in the exercise of its sovereign power, acting through the Water and Air Resources Commission established under this Part, should control the development and use of the water, underwater and air resources of the State so as to effectuate full utilization, conservation, and protection of the water and air resources of the State.
(b) The General Assembly hereby makes the following findings concerning the development, utilization, and control of the water, underwater and air resources of the State:
(1) The development, utilization, and control of the water, underwater and air resources of the State are vital to the people in order to assure adequate supplies for domestic, industrial, power, agricultural, recreational and other beneficial uses.
(2) The development and utilization of water, underwater and air resources must be regulated to assure that the water, underwater and air resources of the State are employed for beneficial uses and not wasted.
(3) The regulation of the development and utilization of the water, underwater and air resources of the State is essential to protect beneficial uses and to assure adequate supplies for beneficial users.
(4) The water, underwater and air resources of the State must be protected and conserved to assure adequate supplies for public recreational purposes and for the conservation of wildlife and aquatic life.
(5) The water, underwater and air resources of the State must be protected from pollution in the interest of the health and safety of the public.
(6) The water, underwater and air resources of the State can best be utilized, conserved, and protected if utilization thereof is restricted to beneficial uses and controlled by a state agency responsible for proper development and utilization of the water, underwater and air resources of the State.
(7) Planning for the development and utilization of water, underwater and air resources is essential in view of population growth and the expanding economic activity within the State.
(c) It is the purpose of this Part to effectuate these policies by providing for:
(1) A program for the control of the utilization of the water, underwater and air resources of the State so directed as to make the maximum contribution to the interests of the people of this State;
(2) A program for the control of pollution of the water, underwater and air resources of the State to protect the public health, safety, and welfare;
(3) A program for the protection and conservation of the water, underwater and air resources of the State, for public recreational purposes, and for the conservation of wildlife and aquatic life;
(4) A program of conducting and fostering research and development in order to encourage maximum utilization of the water, underwater and air resources of the State; and
(5) A program for cooperating with federal, interstate, state, local governmental agencies and utilities in the development and utilization of water, underwater and air resources.
SUBCHAPTER H. DELAWARE WATER AND AIR
§ 6002. Delaware Water and Air Resources Commission
(a) The Delaware Air and Water Resources Commission shall consist of 7 commissioners to be appointed by the Governor. The Water Commissioner of the City of Wilmington shall be one of the Commissioners. Of the other 6 commissioners, at least 1 commissioner shall be a resident of each of the following area: (1) City of Wilmington; (2) the remainder of New Castle County; (3) Kent County; and (4) Sussex County. Registered members of either major political party shall not exceed registered members of the other major political party by more than 1. Each of the Commissioners except the Chairman shall hold office for a term of 2 years. The Chairman shall serve at the pleasure of the Governor. Initially one-half of the Commissioners shall be appointed for a 1-year term. Any vacancy, however created, shall be filled for the unexpired term only.
(b) The Governor's Alternate on the Delaware River Basin Commission and the State Geologist shall be ex-officio members of the Commission without vote.
(c) Commissioners shall be entitled to reimbursement of necessary expenses in the performance of their duties but shall receive no salary.
§ 6003. Executive officer and employees
(a) The Commission shall appoint an Executive Director who shall be a person with experience and professional training in the field of water or air resources management. The Executive Director shall recommend to the Commission for appointment such other employees, agents, attorneys, engineers and consultants as may be necessary for the proper functioning of the Commission.
(b) The Executive Director, subject to the Commission's control, shall be in charge of the day to day operations of the Commission, shall keep a record of all proceedings of the Commission and shall preserve all books, maps, documents and papers of the Commission. All other employees shall perform such duties as prescribed by the Executive Director.
§ 6004. Meetings, office quorum
The Commission shall meet at such time and places as it determines. A majority of the Commissioners shall constitute a quorum for the transaction of business, for the performance of any duty or for the exercise of any power of the Commission.
§ 6005. Reports
The Commission shall make an annual report to the Governor and General Assembly. The Governor, or the General Assembly, by resolution, may require reports or recommendations from the Commission at any time.
§ 6006. Compliance; orders; notice
Whenever the Commission determines that a person has violated any of the provisions of this Part, or any rule or regulation duly promulgated thereunder, or any order of the Commission, it shall endeavor by conference, conciliation or persuasion to obtain compliance with all requirements. If such compliance cannot be obtained, it shall give written notice to such person specifying the complaint. Such notice shall require that the matters of complaint be corrected within a reasonable period of time specified therein or that the person complained against appear before the Commission at a time and place specified in the notice and answer the charges. The notice shall be served on such person as summonses are served or by registered mail not less than 20 days before the time set for the hearing.
§ 6007. Public hearings; notice; waiver
The Commission shall hold a public hearing with respect to any permit lease, variance or grant for which application is made under this Part. Notice shall be served upon the applicant as summonses are served or by registered or certified mail not less than 20 days before the time set for the hearing. 20 days' notice shall also be published in a newspaper of general circulation throughout the State and, in addition, in a newspaper of general circulation in the county to which the application applies. If the applicant wishes to waive the right to public hearing, the published notice shall advise interested persons to file any written protests to the application within 10 days. In the absence of such protests, the Commission may in its discretion act without a public hearing.
§ 6008. Conduct of hearings; oaths; compelling attendance
The applicant or person complained against, or any affected party, may appear personally or by counsel at the hearing and present any competent evidence in his behalf. In any hearing, any member or a representative designated by the Commission shall be authorized to administer oaths, examine witnesses, and issue, in the name of the Commission, notices of hearings or subpoenas requiring the testimony of witnesses and the production of books, records or other documents relevant to any matter involved in such hearing; and subpoenas shall also be issued at the request of the applicant or person complained against. In case of contumacy or refusal to obey a notice of hearing or subpoena issued under this section, the Superior Court in the county involved shall have jurisdiction, upon application of the Commission or its representative, to issue an order requiring such person to appear and testify or produce evidence, as the case may require.
§ 6009. Record; findings; orders; notice of order
A record of the proceedings of all hearings so conducted shall be taken and filed with the Commission, together with findings and conclusions. On the basis of the evidence presented, the Commission shall enter such order as, in its opinion, will best further the purposes of this Part and shall promptly give written notice to the persons affected by such order. If the hearing is held before any officer designated by the Commission, such officer shall transmit the record of the hearing, together with his findings and conclusion, to the Commission, which shall thereupon review the record and enter its order. Any affected party shall, upon request, be permitted to appear before the Commission and present its views prior to issuance of such order, where the initial hearing was conducted by a representative of the Commission.
§ 6010. Fees
The Commission may establish a fee schedule for filing applications for permits, leases or grants, and may collect from the applicant the necessary expenses of the Commission for processing the application and conducting a hearing.
§ 6011. Rules and regulations
The Commission shall be empowered to adopt reasonable rules and regulations and issue general and special orders, after 20 days' notice by publication in at least one newspaper of general circulation in the State and in each county of the State, and after public hearing conducted as set forth in Section 6007 of this title. No rule, regulation, general or special order shall take effect unless approved in writing by at least 5 members of the Commission.
§ 6012. Appeals; notice of appeal; stay; transcript
(a) Any person whose interest is substantially affected by any action of the Commission may appeal from any order or decision by filing with the secretary of the Commission a notice of appeal. The notice shall be filed within 20 days from
the date of mailing of the notice of the order or decision of the Commission and shall be signed by the appellant or his attorney. Except when immediate action is required to protect the public health, the order or decision of the Commission shall be stayed pending disposition of the appeal.
(b) Within 20 days from the receipt of the notice of appeal the Executive Director of the Commission shall prepare and forward to the appellant or his attorney a transcript of the proceedings together with a copy of the order or decision of the Commission and a copy of the notice of appeal. All documents shall be certified by the Executive Director of the Commission.
(c) Within 30 days from the filing of the notice of appeal with the Executive Director of the Commission, the appellant shall file the transcript of the proceedings and the other documents enumerated in subsection (b) of this section with the Superior Court. The Court shall thereafter have complete jurisdiction of the matter.
(d) All appeals shall be taken to the Superior Court of the county in which the circumstances causing the appeal originated.
(e) The Superior Court in which the appeal is perfected shall hear and determine the matter as a suit in law and equity.
(f) The provisions of this section shall not apply to proceedings pursuant to Chapter 64 of this title.
§ 6013. Violation and penalties; jurisdiction
(a) Whoever violates any of the provisions of this Part or neglects or fails to obey any rule or regulation or general or special order of the Commission lawfully issued shall be fined not more than $500 for each violation, failure or refusal. After notice is given that a person is in violation of the provisions of this Part, each day of continued violation shall be a separate offense. Fines collected under this section shall be paid into the General Fund of the State.
(b) The Superior Court shall have jurisdiction of offenses under this Part.
§ 6014. Unlawful disclosure of information
It shall be a misdemeanor for any member of the Commission, any officer or employee thereof, or any person performing any function or work assigned to him by the Commission, to disclose any confidential information obtained pursuant to this Part or to use any information obtained pursuant to this Part for the purposes other than the administration of the functions, responsibilities, and duties vested in the Commission by law.
§ 6015. Liberal construction
This Part, being necessary for the welfare of the State and its inhabitants, shall be liberally construed in order to effect the purpose thereof.
§ 6016. Federal aid; other funds
The Commission may cooperate with and receive moneys from the Federal Government or any industry or other source. Such moneys received are appropriated and made available for the study of water and air resources and pollution.
CHAPTER 61. REGULATION OF WATER RESOURCES
§ 6101. Purpose
It is the purpose of this chapter to plan for and regulate the water resources of the state to assure their optimum beneficial use.
§ 6102. Definitions
As used in this chapter unless the context otherwise requires—
"Domestic and agricultural use" means the use of water for ordinary household purposes, the watering of farm lands,
livestock, poultry and domestic animals, home gardens and lawns. It does not include the use of water by a municipality, water company or any other organization which supplies water, for whatever purpose, to more than 3 families, houses or farms.
"Established average minimum flow" means the average minimum daily flow occurring for 7 consecutive days within the lowest flow year of record.
"Municipal use" means the use of water by a municipality, corporation, company, institution and individual authorized to supply water, serving or authorized to serve the public primarily to promote life, safety, health, comfort and business pursuits of the inhabitants of the State.
"Surface water" means water occurring generally on the surface of the earth.
"Underground water" means any supply of water which may be developed by any type of well or spring from beneath the surface of the ground whether the water flows therefrom by natural force or is withdrawn by pumping or other mechanical devices or artificial process.
"Water facilities" means any reservoir, dam, waterway obstruction or well, except such structures as are used exclusively for the storage or distribution of treated or potable water, and mains and conduits leading to storage or treatment plants.
"Watercourse" means any lake, river, creek, cut or other natural body of water or channel.
§ 6103. Limitations on scope of chapter
The provisions of this chapter shall not apply to or change the existing law in respect to:
(1) Use of water for domestic and agricultural purposes unless such use contributes to a water emergency, proclaimed as such by the Governor.
(2) The landowner's right to place a dam across a gully on his property or across a stream that originates on his property where provision is made for continued established average minimum flow of water.
(3) The right to build and maintain a dam or construct a pond and divert water from any stream on any stream having a minimum flow of not more than one-half million gallons of water per day, and utilize up to 360 acre inches of the impounded water per year so long as such action does not affect the established average minimum flow in the stream below the dam at any time.
(4) Ponds not larger than 60,000 square feet constructed for purposes of conservation, recreation, propagation and protection of fish or wildlife, watering of stock, or fire protection.
§ 6104. Duties and powers in regulation of water resources
(a) The Commission:
(1) Shall formulate and adopt a statewide comprehensive master water plan for the immediate and long-range development and uses of the water resources of the State, after holding public hearings with respect thereto and after consulting with water users and interested public bodies;
(2) Shall advise the Delaware member of the Delaware River Basin Commission and his alternate as to the best interests of the State in the overall development of water resources of the Basin and to coordinate the plans of the Commission with those of the Delaware River Basin Commission in such a manner as to insure the best interests of the people of the state; and
(3) Shall study and investigate matters connected with water uses within the State, cooperate with the State Geologist in the study and investigation of water resources, and make recommendations thereon.
(4) Shall approve the allocation and use of water in the State on the basis of equitable apportionment;
(5) Shall approve all new plans and designs of all impounding and water facilities of all water resources by any state, county, municipal, public or private water user within the State;
(6) May require reports from all Delaware water users as to their water facilities and past and present records of water use;
(7) Shall adopt reasonable rules and regulations for surface and underground water resources and uses in the State, issue general and special orders and do all other things necessary and convenient to carry out the foregoing powers and duties; and
(0) Shall make its rules and regulations conform to the rules and regulations promulgated under the Delaware River Basin Compact within any area of this State which is subject to regulation under the Compact, notwithstanding any other provision of this chapter.
§ 6105. Approval of water use
(a) After the effective date of this chapter, no increase in the amount of water used shall be made by a Delaware user without prior approval of the Commission.
(b) This section shall not prevent a municipal user from serving additional non-industrial subscribers, supplying the increased demands of its existing non-industrial subscribers, supplying water for emergency purposes or extending its mains or water services from which water will be supplied from existing wells, reservoirs and storage tanks.
(c) The Commission shall designate by regulation those increases which will be approved upon simple notice to the Commission, and those which will require an application followed by a public hearing as provided in Section 6007.
CHAPTER 62. AIR POLLUTION
SUBCHAPTER I. AIR POLLUTION AUTHORITY
§ 6201. Declaration of policy
It is declared to be the public policy of the State to maintain within its jurisdiction a reasonable quality of air consistent with protecting the safety, welfare, and comfort of the people of this State and to prevent the pollution of air with impurities which menace the health and welfare of the people of the State, to the end that the least possible injury shall be done to human, plant and animal life or to property.
§ 6202. Definitions
(a) As used in this chapter; "Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably interfere with the enjoyment of life and property within the jurisdiction of the State of Delaware, excluding all aspects of employer-employee relationships as to health and safety hazards.
(b) "Air contaminant" means particulate matter, dust, fumes, gas, mist, smoke, or vapor, or any combination thereof.
(c) "Air contaminant source" means any source from which there is emitted into the atmosphere any air contaminant regardless of who owns the property or facility from which the emission comes. Without limiting the generality of the foregoing, this term includes all types of commercial and industrial plants and works, heating and power plants and stations, shops and stores; buildings and other structures of all types, including single and multiple family residences, apartment houses, office buildings, public buildings, hotels, restaurants, schools, hospitals, churches, and other institutional buildings; automobiles, trucks, tractors, buses and other motor vehicles (hereinafter called "motor vehicles") ; garages; vending and service locations and stations; railroad locomotives; ships, boats
and other waterborne craft; portable fuel-burning equipment; incinerators of all types, indoor and outdoor; and refuse dumps and piles.
§ 6203. Powers
The Commission in regulating air pollution pursuant to this Chapter:
(1) Shall develop a comprehensive program for the prevention and control of all sources of pollution of the air of the State;
(0) Shall advise, consult and cooperate with other agencies of the State, political subdivision, industries, other states, the Federal government and with affected groups in furtherance of the purposes of this Chapter;
(0) Shall encourage and conduct studies, investigations and research relating to air pollution and its causes, prevention, control and abatement, as it may deem advisable and necessary;
(1) May collect and disseminate information relating to air pollution, its prevention and control;
(2) Shall promulgate rules and regulations and issue orders consistent with the purposes of this Chapter and in accordance with Section 6007 of this Part, including regulation of the installation of new equipment which will emit air contaminants.
(3) Shall consider complaints, make investigations and hold hearings;
(4) May require any person to submit plans for the removal of air contaminants;
(5) Shall encourage voluntary cooperation by the people, municipalities, counties, industries and others in restoring and preserving the purity of air within the State.
May employ personnel, including specialists and consultants, purchase materials and supplies, and enter into contracts necessary to carry out the purposes of this chapter;
(0) May enter at reasonable times upon any private or public property for the purpose of investigating conditions relating to air pollution ;
(1) Shall enforce compliance with the laws of this State relating to pollution of the air;
(2) May represent this State in any and all matters pertaining to plans, procedures or negotiations for interstate compacts in relation to air pollution control; and
(3) May select an advisory committee to study and advise upon specific problems which may arise from time to time.
In exercising the powers conferred by this section, the Commission shall give due recognition to the fact that the quantity or characteristics of air contaminants or the duration of their presence in the atmosphere, which may cause air pollution in one area of the State, may cause less air pollution or not cause any air pollution in another area of the State and the Commission shall take into consideration in this connection such factors, among others found by it to be proper and just, as existing physical conditions, zoning classifications, topography and prevailing wind direction and speeds, and also the fact that a rule or regulation and the degree of conformance therewith which may be proper as to an essentially residential area of the State may not be proper as to a highly developed industrial area of the State.
§ 6204. Administrative proceedings
If the Commission has reason to believe that a condition of air pollution exists, or that conduct in violation of the Coin-mission's rules and regulations is occurring, it shall proceed as set forth in Section 6006 of this Part.
§ 6205. Injunctive relief
If measures to prevent or correct air pollution or conduct in violation of any rule or regulation of the Commission are not taken in accordance with the final order of the Commission, then the Commission may, in addition to seeking fines under § 6009 hereof, bring in the name of the State an action for an injunction to prevent further or continued violations.
§ 6206. Summary proceedings
Whenever conditions are such as to require immediate action to protect the public health, the Commission may issue a written order to the person responsible, directing that he discontinue immediately the discharge of the harmful contaminants in the atmosphere. As promptly as possible thereafter, said person shall be given an opportunity to be heard and to present evidence concerning the effect of such discharge on the public health.
§ 6207. Local regulations
Nothing in this chapter shall preclude the right of any governing body of a city or town to adopt local laws, ordinances or regulations which are consistent with this chapter and with the rules and regulations adopted hereunder and do not call for a lesser degree of control.
SUBCHAPTER II. FORBIDDEN PRACTICES
§ 6205. Nuisances prohibited
(a) No person shall discharge into the air, solids, liquids, or gases causing such injury to human, plant or animal life, or to property, as constitutes a public nuisance.
(b) No person shall cause, erect or continue any nuisance contrary to the provisions of this chapter.
§ 6206. Proceedings to abate public nuisances created by pollution of air
Proceedings to abate public nuisances created by pollution of air may be instituted at law or in equity in the name of the State on behalf of the Commission.
§ 6207. Administrative hearings; notice; procedure; order; summary action
(a) Whenever the Commission determines that a person has violated any of the provisions of this chapter, or any order of the Commission, it shall give written notice to such person specifying the complaint. Such notice shall require that the matters of complaint be corrected within a reasonable period of time specified therein or that the person complained against appear before the Commission at a time and place specified in the notice and answer the charges. The notice shall be served on such person as summonses are served or by registered mail not less than 20 days before the time set for the hearing.
() The person complained against may appear personally or by counsel at the hearing and produce any competent evidence in his behalf in answer to the alleged violation. On the basis of the evidence produced at the hearing, the Commission shall enter such order as in its opinion will best further the purposes of this chapter and shall promptly give written notice, either by service as summonses are served or by registered mail, to the persons affected by such order. If the hearing is held before any officer designated by the Commission, such officer shall transmit the record of the hearing, together with his findings and conclusion, to the Commission, which thereupon shall review the record and enter its order on the basis thereof. The order of the Commission shall become final and conclusive on all parties unless an appeal is taken therefrom as provided in this Part.
(a) Whenever conditions are such as to require immediate action to protect the public health or welfare, the Commission may take such action as it may deem advisable for summary abatement of the nuisance.
CHAPTER 63. WATER POLLUTION
§ 6301. Declaration of policy; purpose
(a) It is declared to be the public policy of the State to maintain within its jurisdiction a reasonable quality of water consistent with public health and public enjoyment thereof, the
propagation and protection of fish and wild life, including birds, mammals, and other terrestrial and aquatic life, and the industrial development of the State.
(b) It is the purpose of this chapter to safeguard the quality of state waters against pollution by (1) preventing new pollution in such waters and (2) controlling any existing pollution.
§ 6302. Definitions
As used in this chapter unless the context otherwise requires—
"Industrial waste" means any water-borne liquid, gaseous, solid, or other waste substance or a combination thereof resulting from any process of industry, manufacturing trade or business, or from the development of any agricultural or natural resource.
"Other wastes" means garbage, refuse, decayed wood, sawdust, shavings, bark, sand, lime, cinders, ashes, offal, oil, tar, dye-stuffs, acids, chemicals, and all discarded substances other than sewage or industrial waste as defined in this section, but shall not include chemicals used as necessary additives in the treatment of drinking water;
"Pollution" means noxious and deleterious substances rendering unclean the waters of the State to the extent of being harmful or inimical to the public health, or to animal or aquatic life, or to the use of such waters for domestic water supply, industrial purposes, recreation, or other legitimate and necessary uses;
"Sewage" means the water-carried human or animal wastes from septic tanks, water closets, residences, buildings, industrial establishments, or other places, together with such ground water infiltration, surface water, admixtures of industrial waste, or other wastes as may be present.
streams, creeks, estuaries, marshes, inlets, canals, the ocean within the territorial limits of the State, and all other bodies of surface or underground water, natural or artificial, inland or coastal, fresh or salt, within the jurisdiction of this State.
§ 6303. Duties and powers
The Commission, in regulating water pollution pursuant to this chapter, may—
(1) exercise general supervision over the administration and enforcement of all laws relating to the pollution of the waters of the State;
(2) study and investigate all problems connected with the pollution of the waters of the State and its control and to make reports and recommendations thereon ;
(3) conduct scientific experiments, investigations, and research to discover economical and practicable methods for the elimination, disposal, or treatment of sewage, industrial wastes, and other wastes to control pollution of the waters of the State. To this end the Commission may cooperate with any public or private agency in the conduct of such experiments, investigations, and research and may receive on behalf of the State any moneys which any such agency may contribute as its share of the cost under such cooperative arrangements;
(4) issue general orders, and adopt rules and regulations applicable throughout the State for the installation, use and operation of systems, methods, and means for controlling the pollution of the waters of the State by sewage, industrial wastes, refuse, and other wastes, after notice and hearing as provided by section 6006 of this title;
(0) issue special orders after appropriate notice and hearing, directing particular owners, municipalities, and other political entities, to secure, within a specific time, such operating results toward the control of pollution of the waters as may be reasonable and practicable of attainment;
(6) make investigations and inspections to insure compliance with any general or special orders, rules and regulations which the Commission may issue. In the exercise of this power the Commission may require the submission and approval of plans for the installation of systems and devices for handling, treating, or disposing of sewage, industrial, and other wastes; and
(7) enter into arrangements with the responsible authorities of other States, or of the Federal government, subject to approval by the Governor, relative to methods, means, and measures to be employed to control pollution of any interstate streams and other waters and to carry out such agreement by appropriate general and special orders. This power shall not be deemed to extend to the modification of any agreement with any other State concluded by direct legislative act. but, unless otherwise expressly provided, this Commission shall be the agency for the enforcement for any such legislative agreement.
§ 6304. Inspection and investigations
(a) Every municipality, other political entity, and owner of an industrial establishment shall, on request of the Commission, furnish such information reasonably necessary and pertinent required by it in the discharge of its duties under this chapter. Any member of the Commission, or any agent of the Commission duly authorized by it, may at reasonable times enter any industrial or municipal establishment for the purpose of inspecting and investigating conditions relating to the pollution of any waters of the State.
§ 6305. Injunctive relief
If measures to prevent or correct water pollution or conduct in violation of any rule or regulation of the Commission are not taken in accordance with the final order of the Commission, then the Commission may, in addition to seeking fines under § 6009 hereof, bring in the name of the State an action for an injunction to prevent further or continued violations.
§ 6306. Summary proceedings
Whenever conditions are such as to require immediate action to protect the public health, the Commission may -issue a
written order to the person responsible directing that he discontinue immediately the discharge of the harmful pollutants to the waters. As promptly as possible thereafter said person shall be given an opportunity to be heard and to present evidence concerning the effect of his discharge on the public health.
CHAPTER 64. UNDERWATER LANDS
MINERALS IN SUBMERGED LANDS
§ 6401. Definitions
As used in this subchapter unless the context requires otherwise:
"Commission" means the Delaware Water and Air Resources Commission or, if so designated pursuant to section 6440 of this title, the State geologist.
"Filled lands" includes tide and submerged lands reclaimed artificially through raising such lands above the highest probable elevation of the tides to form dry land, by placement of a fill or deposit of earth, rock, sand or other solid imperishable material.
"Lease" means a mineral lease issued pursuant to the provisions of this subchapter.
"Person" in addition to the meanings set forth in section 302, title 1, includes quasi-public corporations, political subdivisions and governmental agencies and instrumentalities.
"Submerged lands" means lands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of this State as heretofore or hereafter established.
"Structure" means any construction works, including but not limited to derricks, pipelines, lines for the transmission and distribution of electricity, telephone lines, wharves, piers, slips, warehouses and units designed to act as groins, jetties, seawalls, breakwaters or bulkheads.
"Tide lands" means lands lying between the line of mean high water and the line of mean low water.
"Gas" means all natural gas and all other fluid hydrocarbons not defined as oil in subsection (i) of this section, including condensate originally in the gaseous phase in the reservoir.
"Oil" means crude petroleum oil and all other hydrocarbons, regardless of gravity, which are produced in liquid form by ordinary production methods, but does not include liquid hydrocarbons that were originally in a gaseous phase in the reservoir.
"Mineral" means any natural inorganic substance with definite chemical and physical properties which is present in, or at the bottom of a body of water, or anywhere within the earth's crust.
§ 6402. Jurisdiction
(a) The Commission and the Governor have exclusive jurisdiction to lease for mineral exploration and exploitation all ungranted submerged tide lands owned by this State, whether within or beyond the boundaries of this State, heretofore or hereafter acquired by this State (1) by quitclaim, cession, grant, contract or otherwise, (2) by any other means.
(b) All jurisdiction and authority to lease for mineral exploration or exploitation remaining in the State over submerged lands as to which grants have been or may be made is vested in the Commission and the Governor.
(c) The Commission shall administer and control all lands described in subsection (a) of this section, and may lease such lands and tide lands and dispose of oil, gas, sulphur and other minerals under such lands and tide lands in the manner prescribed by this subchapter.
(d) Notwithstanding any other provisions of this subchapter, the Commission may not permit any interference, other
than temporary interference, with the surface of the Atlantic shore. It may, however, grant easements for mineral exploration and exploitation underlying that part of the surface of the Atlantic shore owned by the state at such times and at such places as the Commission finds necessary to permit the extraction and transportation of oil, gas, sulphur or other minerals from state, federal or private lands; and in addition the Commission may issue oil and gas leases underlying the Atlantic shore under the same terms and conditions as provided in this subchapter.
(e) The Commission shall have no authority to lease lands administered by the Board of Game and Fish Commissioners.
§ 6403. Surveys
(a) The Commission, upon application by any person, may permit geological, geophysical and seismic surveys, including the taking of cores and other samples, on the tide and submerged lands of this state. However:
(1) Such permits shall be non-exclusive and shall not give any preferential rights to any oil, gas and sulphur or other mineral lease.
(2) The Commission may grant permission for the taking of cores and other samples.
(3) After consultation with those agencies of the state having an interest in the possible effects of the leasing, the Commission shall include such rules and regulations in the permit as it deems necessary to protect the fish, game, wildlife and natural resources of the state.
(b) Each application under this section shall contain the following information:
(1) A description of the areas where the applicant proposes to conduct a survey.
(2) The name and address of the applicant.
(3) Such other relevant information as the Commission requires.
§ 6404. Permits for surveys
(a) Upon compliance of an applicant with section 6403 of this title, the Commission may issue to the applicant a permit to conduct a geological, geophysical and seismic survey, including the taking of cores and other samples, in areas of the tide and submerged lands of this state described on the permit. The Commission may prohibit such surveys on any area if it determines that a lease, if applied for, should not be granted as to such areas. The commission shall include in a permit conditions and payment proper to safeguard the interests of the state.
(b) Permits issued under this section shall not exceed 2 years, and may be renewed for like periods upon application to the commission and upon showing due compliance with applicable laws and regulations.
(c) The Commission shall require the permittee to provide the Board of Game and Fish Commissions and the Delaware Commission of Shell Fisheries with complete information with respect to the area or areas of proposed operations, type of exploration and a schedule showing the period or periods during which such explorations will be conducted. Such information shall be treated as confidential unless released by the permittee.
§ 6405. Filing of records of drilling; confidential nature of records
(a) Records of drilling conducted by a permittee under section 6404 of this title shall be retained by the permittee and be made available to the Commission and the State Geologist upon their request. Any such records which the permittee is required to make available to the Commission or the State Geologist shall be for the confidential use of the Commission and the State Geologist and shall not be open to inspection by any other person or agency without the written consent of the permittee.
(b) The Commission may require, as a condition to the issuance of any lease under this subchapter, that the lessee make available to the Commission or the State Geologist upon request, all factual and physical exploration results, logs and records resulting from the operations under the lease. Any such factual or physical exploration results, logs or records which the lessee is required to make available to the Commission or. the State Geologist shall not be open to inspection by any other person or agency without the written consent of the lessee.
§ 6406. Unlawful disclosure of information; jurisdiction of court penalties
(a) It shall be a misdemeanor for any member of the Commission, any officer or employee thereof, or any person performing any function or work assigned to him by the Commission, to disclose to any person who is not a member, officer, employee of the Commission or to any person who is not performing any function or work assigned to him by the Commission, any information obtained from the inspection of such factual or physical exploration results, logs or records, or to use such information for purposes other than the administration of the functions, responsibilities, and duties vested in the Commission by law, except upon the written consent of the permittee or lessee making such information available to the Commission.
() Upon conviction the court shall impose such penalty as the Court deems advisable.
(a) The Superior Court shall have jurisdiction over offenses under this section.
§ 6407. Public hearings; adjustments
(a) Before offering tide and submerged lands for leasing under this subchapter, or whenever any person files a written application with the Commission requesting that lands be offered for leasing under this subchapter, accompanying the same with the required fee, the Commission shall hold a public hearing as provided in this section.
(b) Before granting a lease or inviting bids on any tide and submerged lands, the Commission shall cause written notice describing the area under consideration and other pertinent information to be transmitted to:
(1) State Highway Department
(2) State Planning Office
(3) Board of Game and Fish Commission
(4) Delaware Commission of Shell Fisheries
(5) State Board of Health
(6) State Park Commission
(7) State Geologist
(8) The applicant, if any, requesting the hearing
(9) Prospective applicants or bidders, by publication thereof in two or more publications of general circulation in the oil and gas industry; and
(10) The public, by publication thereof once each week for not less than two weeks in a newspaper of general circulation throughout the State and in addition in a newspaper of general circulation in the county in which the lands lie or the county or counties contiguous to the area under consideration for bidding.
(c) The notice shall set forth the place of hearing and shall set its time at not less than 20 days following date of the last newspaper publication.
(d) The Commission may appoint one of its officers or employees to conduct hearings authorized under this section. An officer or employee of each interested state agency, board or commission named in subsection (b) of this section may question any witnesses appearing before the Commission or
its representative, and any interested person may offer evidence and otherwise be heard.
§ 6408. Determination of feasibility of lease
After the public hearing the Commission shall determine whether an invitation for bidding to lease the area under consideration would be in the public interest. In such determination the Commission shall consider whether a lease or leases of the area under consideration would:
(1) be detrimental to the health, safety, or welfare of persons residing in, owning real property, or working in the neighborhood of such areas;
(2) interfere with the residential or recreation areas to an extent that would render such areas unfit for recreational or residential uses or unfit for park purposes;
(3) destroy. impair or interfere with the esthetic and scenic values of the Delaware coast, or other affected area;
(4) create any air, water or other pollution;
(5) substantially endanger marine life or wildlife;
(6) substantially interfere with commerce or navigation; and
(7) protect state lands from drainage of oil, gas or other minerals or objectionable substances. -
§ 6409. Maximum area
The maximum area which shall be included in any single lease to any person shall be 6 square miles or 3,840 acres.
§ 6410. Form of lease
(a) The form of lease shall contain, in addition to other provisions deemed necessary and desirable by the Commission
after consultation with interested agencies, boards and commissions, the provisions of sections 6411 to 6417 of this title.
(b) The form of a permit shall contain, in addition to other provisions deemed necessary and desirable by the Commission after consultation with interested agencies, boards and commissions, the provisions of section 6423 of this title.
§ 6411. Exclusive right to drill and remove minerals
The lease shall grant the exclusive right to drill for and produce all oil, gas, sulphur and other mineral deposits in the leased land and be for a primary term of 10 years and for so long thereafter as oil, gas, sulphur or other minerals are produced in paying quantities from the leased land, or lessee is diligently conducting producing, drilling, deepening, repairing, redrilling or other necessary lease or well maintenance operations on the leased land, or is excused from conducting such operations under the terms of the lease.
§ 6412. Royalty
The Commission shall specify in the notice described by section 6407 of this title and in the lease the rate of royalty paid under such lease which royalty shall not be less than 121/2 percent of gross production, or the value thereof, produced and saved from the leased lands and not used by lessee for operations thereon or for injection therein. Such royalty shall, at the Commission's option, be paid in kind or in value, and be computed after an allowance for the actual cost of oil treatment or dehydration of not to exceed 5 cents per barrel or royalty oil so treated or dehydrated.
§ 6413. Lien on production
The State shall have a lien upon all production for unpaid royalties.
§ 6414. Rental for leased land
The Commission shall specify a rental payable annually in advance of not less than 25 cents for each acre of land subject
to the lease at the rental date. After production has been established, rent paid shall be deducted from any royalty due under the terms of a lease during the year for which such rent has been paid.
§ 6415. Bonds
Sufficient bonding or insurance requirements, as determined by the Commission shall be specified to secure to the State performance and the faithful compliance by the lessee with the terms of the lease, and further to secure adjacent landowners and the public generally as to all proper claims for damages arising from operations thereunder.
§ 6416. Ceasing of production
In the event production on the leasehold shall cease at any time or from time to time, after the expiration of the primary term of the lease, the lease shall nevertheless continue in full force and effect if the lessee shall, within 6 months after the cessation of production or within such longer period of time as the Commission may authorize, commence and thereafter prosecute with reasonable diligence drilling, deepening, repairing, redrilling or other operations for the restoration of production of oil, gas, sulphur or other minerals from the leased lands.
§ 6417. Slant and adjacent drilling
Unless otherwise determined by the Commission, each well drilled pursuant to the terms of the lease may be drilled or slant drilled to and into the subsurface of the tide or submerged lands covered by the lease from upland or littoral drill sites owned or controlled by the state or owned by or available to the lessee, or from drill sites located upon any filled lands heretofore or hereafter filled, whether contiguous or noncontiguous to the littoral lands or uplands, or from any pier heretofore or hereafter constructed, owned by or available to the lessee and available for such purpose, or from platforms or other fixed or floating fixtures in, on or over the submerged lands covered by the lease or otherwise available to the lessee.
§ 6418. Restoration of visible lands to original condition
Upon any partial or total termination, surrender or forfeiture of its permit or lease, the Commission may require that the permittee or lessee, within a reasonable time, restore that 'portion of the premises that is visible at extreme low tide, to substantially its original condition.
§ 6419. Pollution and contamination prohibited
(a) Avoidable pollution or avoidable contamination of the ocean and of the waters covering submerged lands, avoidable pollution or avoidable contamination of the beaches or land underlying the ocean or waters covering submerged lands, or any substantial impairment of and interference with the enjoyment and use thereof, including but not limited to bathing, boating, fishing, fish and wildlife production, and navigation, shall be prohibited, and the lessee shall exercise a high degree of care to provide that no oil, tar, residuary product of oil or any refuse of any kind from any well or works shall be permitted to be deposited on or pass into the waters of the ocean, any bay or inlet thereof, or any other waters covering submerged lands; provided, however, that this section does not apply to the deposit on, or passing into, such water or waters not containing any hydrocarbons or vegetable or animal matter.
(b) For the purposes of this section, "avoidable pollution" or "avoidable contamination" means pollution or contamination arising from :
(1) the acts or omissions of the lessee or its officers, employees or agents, or
(2) events that could have been prevented by the lessee or its officers, employees or agents through the exercise of a high degree of care.
§ 6420. Extension of lease where permits required
If the lessee, as disclosed by information submitted with his bid, purposes to drill one or more wells from filled lands,
whether contiguous or noncontiguous to the littoral lands or uplands, or from any pier or from platforms or other fixed or floating structures to be constructed for such purpose, and if permission from any federal or state agency is legally required in order to construct any such filled lands or structures, the lessee shall be allowed a reasonable time following the execution of the lease within which to secure the necessary permission from such federal and state agencies as shall be legally required, and, upon the securing of such permission, a further reasonable time, determined with regard to the nature of the filled lands or structure or structures to be constructed, within which to commence operations for the drilling of such well or wells, and if necessary, the drilling term provided for in section 6421 of this title shall be extended by the Commission to the date to which the time to commence operations for the drilling of such well or wells has been extended.
§ 6421. Commencing of operations for drilling
Subject to the lessee's right to surrender, the lessee shall commence operations for the drilling of a well within 5 years from date of the lease and commence production within 3 years of discovery of oil, gas, sulphur or other minerals in paying quantities, unless the Commission shall have, for cause, granted an extension of time for such act. In addition, the lease shall have such exploratory, drilling and producing requirements as the Commission deems necessary to encourage the exercise of due diligence on the part of the lessee.
§ 6422. Nonconflicting uses
The State reserves the right to permit reasonable non-conflicting use (including seismic surveys but excluding core hole drilling of lands under lease) so long as (1) such uses do not unreasonably impair or interfere with operations of the lessee and (2) requirement is made that the permittee indemnify the lessee against any damage caused by such use.
§ 6423. Assignability of lease
No permit, easement or lease, or any portion thereof shall be assignable without the prior written consent of the Commission.
§ 6424. Protection against drainage
The lessee shall at all times proceed with due diligence to protect the leasehold from drainage by wells on lands not owned by the state.
§ 6425. Surrender by lessee
The lessee may at any time file with the Commission a written surrender of all rights under the lease or any portion thereof or any separate or distinct zone or geological horizon or any portion thereof. Such surrender shall be effective as of the date of its filing subject to the continuing obligation of the lessee to pay all rentals and royalties theretofore accrued and to place all wells on the lands or in the zone or horizons surrendered in condition for suspension or abandonment in accordance with the applicable lease terms, regulations and law. Thereupon the lessee shall be released from all obligations under such lease with respect to the lands, zones or horizons surrendered, but no such surrender shall release such lessee from any liability for breach of any monetary obligation of the lease with respect to which such lessee is in default at the time of the filing of such surrender.
§ 6426. Cancellation of lease; judicial proceedings
The Commission shall reserve and may exercise the authority to cancel any lease upon which oil, gas, sulphur or other minerals have not been discovered in paying quantities, upon failure of the lessee after 30 days' written notice and demand for performance, to exercise due diligence and care in the prosecution of the prospecting of development or work in accordance with the terms of the lease. After discovery of oil, gas, sulphur or other minerals in paying quantities on lands subject to any lease, such lease may be forfeited and cancelled only by appropriate judicial proceedings upon failure of the lessee after 90 days' written notice and demand for performance, to comply with any of the provisions of the lease or of laws or regulations applicable thereto and in force at the date of the invitation for bids in pursuance of which the lease was awarded; provided, however, that in the event of any such cancellation, the lessee shall have the right to retain under such lease any and all drilling or producing wells as to which no default exists, together with a parcel of land surrounding each such well and such rights of way through the leased lands as may be reasonably necessary to enable such lessee to drill and operate such retained well or wells. In the event of the cancellation of any lease, the lessee shall have a reasonable time within which to remove all property, equipment, and facilities owned or used by the lessee in connection with operations under the lease.
§ 6427. Lease shall conform to all laws, rules and regulations
It shall be a continuing condition of such lease that the lessee shall conform to all applicable laws of the state and all duly promulgated rules and regulations pursuant thereto in effect at the date of the invitation for bids in pursuance of which the lease was awarded. Periodic mutual negotiations between lessee and lessor may be carried out to make conditions, rules and regulations current as warranted by changes in environment or operational methods.
§ 6428. Notice of offer to lease; bid award; fee
(a) The Commission may offer to lease tide and submerged lands by publication of a notice of its intention to do so, once each week for not less than 2 weeks in 2 or more newspapers of general circulation in this state, one of which is pub-lashed or has general circulation in the county in which the lands lie or the county contiguous thereto. The notice shall describe the lands so offered, and shall specify the rate of royalty and the rental, the manner in which bids may be filed with the Commission, the amount of the deposit that must accompany each bid, and the time and place for filing bids, which time shall not be less than 30 days after the date of last publication of such notice. Further, the notice shall state that the lease will be awarded to the bidder offering the highest cash bonus, that the form of lease, conditions for bidding and bid form may be obtained from the Commission upon request, and that the lease is subject to prior approval by the United States Defense Department.
(b) Each bid shall be enclosed in a sealed envelope, shall be on the form provided by the Commission and shall be accompanied by duplicate lease forms executed by the bidder, and by a certified or cashier's check or checks payable to the State of Delaware in the amount fixed by the Commission which sum shall be deposited as evidence of good faith and, except in the case of the successful bidder, shall be returned to the bidder promptly. If the successful bidder fails to pay the balance of the cash bonus bid and the annual rental for the first year within 15 days after the award of the lease, or fails to post any bond required by the lease or the regulations in effect at the date of the invitation for bids within the time prescribed, the amount of the deposit shall be forfeited to the state.
(c) At the time and place specified in the notice the Commission shall publicly open the sealed bids and shall within 30 days reject all bids or award the lease for each parcel to a responsible bidder who, in addition to complying with all of the conditions for bidding, offers the highest cash bonus. The Commission may reject any or all bids.
(d) Following the award of the lease, the payment by the successful bidder of the balance of the cash bonus, the annual rental for the first year, and the fees specified in this section, and the posting of any required bonds, the Commission and the Governor shall execute the lease in duplicate on behalf of the state and transmit one counterpart thereof to the lessee. The lease shall become effective as of the date of such execution.
(e) The Commission shall prescribe a reasonable fee to cover the procedures under this section, which shall be paid by the successful bidder.
§ 6429. Execution of lease
All leases and other instruments required in carrying out this chapter shall be executed by the Commission and the Governor. All bonds, contracts and other instruments required by this subchapter for the protection of the interests of this state and its political subdivisions, persons and property therein shall be executed and delivered to the Commission.
§ 6430. Proceeds to general fund
The proceeds from all leases under this subchapter, including rents and royalties, after payment of the necessary expenses incurred by the Commission in carrying out this subchapter, shall be turned over to the State Treasurer and deposited by him in the General Fund of the State.
§ 6431. Discrimination between bidders, prohibited requirements
In leasing tide and submerged lands, the Commission may not discriminate between bidders by requiring drilling from:
(1) upland or littoral drill sites;
(2) sites on filled land, whether contiguous or noncontiguous to the littoral lands or uplands; or
(3) any pier, platform or other fixed or floating structure in on or over tide and submerged lands with respect to which this state or any other owner thereof has consented to use.
§ 6432. Fill
Under a lease entered into by the Commission pursuant to this subchapter, the fill constituting filled lands may be retained in place or protected by bulkheads, seawalls, revetments or similar enclosures and may be placed at any location approved by the Commission in consultation with interested agencies, boards and commissions.
§ 6433. Interests leasable
Any interests in lands, or lands in fee simple, acquired by the Commission by purchase, donation, lease, condemnation or otherwise, may be made available to any lessee of the state for the purposes contained in this subchapter and upon such terms and conditions as may be determined by the Commission.
§ 6434. Joint exploration
For the purpose of properly conserving the natural resources of any single oil, gas or other mineral, pool or field lessees under this subchapter and their representatives may unite with each other jointly or separately, or jointly or separately with others owning or operating lands not belonging to the state, in collectively adopting and operating under a cooperative or unit plan of development or operation of the pool or field, whenever it is determined by the Commission to be necessary or advisable in the public interest. The Commission may, with the consent of the holders of the leases involved, establish, alter, change and revoke any drilling and production requirements of such leases, and make such regulations with reference to such leases, with like consent on the part of the lessees, in connection with the institution and operation of any such cooperative or unit plan, as the Commission deems necessary or proper to secure the proper protection of the interests of the state.
§ 6435. Sulphur
The provisions of this subchapter shall apply equally to the exploration and leasing of tide and submerged lands for the production of sulphur, save and except that the royalty for sulphur produced under this subchapter shall be not less than $1 per long ton.
§ 6436. Jurisdiction over waters affecting health and safety
Nothing in this subchapter deprives this state or any agency or instrumentality thereof of its jurisdiction over matters affecting the public health and safety, including but not limited to the control of air and water pollution.
§ 6437. No permit or lease in violation of any law or regulation
No permit or lease shall be granted to any person then in violation of any laws or regulations applicable to this subchapter.
§ 6438. Rules, resolutions, orders
In addition to and not in lieu of any other powers granted under this subchapter, the Commission may promulgate reasonable rules. regulations and orders necessary to regulate geological, geophysical and seismic surveys on, and operations to remove oil, gas, sulphur and other minerals from the tide and submerged lands of this state under this subchapter.
§ 6439. Federal approval
All leases and permits granted pursuant to this subchapter shall be subject to prior approval by the Department of Defense of the United States and shall be subject to any restriction or limitation imposed by the Department of Defense.
§ 6440. Delegation of authority
The Delaware Water and Air Resources Commission may, from time to time, delegate the State Geologist with his consent, to act in its behalf under this subchapter. When so designated, the State Geologist shall have all the duties and powers of the Delaware Water and Air Resources Commission under this subchapter.
SUBCHAPTER II. SUBAQUEOUS LANDS
§ 6451. Jurisdiction; assistance of other agencies
(a) Except as otherwise provided in this subchapter, the Delaware Water and Air Resources Commission and the Governor shall have exclusive jurisdiction, pursuant to this subchapter to convey a fee simple or lesser interest, to lease or grant permits or easements in or over any parts of the public lands of the State lying beneath the waters of the State (including the beach or shore to the mean high water level), and no use of such lands shall be undertaken except pursuant to a permit or grant.
(b) All jurisdiction and authority to convey a fee simple or lesser interest or to lease or grant permits or easements remaining in the state over subaqueous lands as to which grants have been or may be made is vested in the Commission and the Governor.
(c) The Commission may request any State agency for a report or recommendation concerning any application before it.
§ 6452. Application
(a) Each applicant for a lease, permit or grant, pursuant to this subchapter, shall file with the Commission, a request stating in detail the type of lease, permit or grant desired, showing the location of the area and containing specifications for any proposed construction.
(b) The Commission may require such additional information as will enable it to properly consider the application.
§ 6453. Hearing
(a) A public hearing shall be held:
(1) if a permit, grant or lease for a period of time in excess of 10 years is sought; or
(2) if the Commission determines that a public hearing is in the public interest; or
(3) if a written objection to the application is timely filed.
(b) Notice of the public hearing shall be sent to the applicant, and to the state agencies listed in subsection § 6407 (b) of this title.
§ 6454. Public notice
(a) The published notice shall contain a general description of the location of the property, which may, but need. not be by metes and bounds, and a statement of the interest sought to be acquired.
(b) If the advertisement is notice of a public hearing it shall also give the time, date and place of the hearing.
§ 6455. Investigative board; appointment; composition; assistants
(a) The Commission may, if it deems it necessary, appoint an investigate board to investigate any application. Each board shall consist of 3 members who shall serve at the pleasure of the Commission. The members of such board shall have no interest in or connection with a prospective lease or grant. No more than 2 members of each such board shall be of the same political party. A vacancy in the board may be filled at any time.
(b) The members of the board shall be reimbursed for their expenses incurred in the performance of their duties and may receive such compensation, not in excess of $25 per day, as the Commission may determine.
(c) The board may retain such assistants as it deems desirable to properly discharge its duties.
(d) In the event that the Commission appoints an investigative board, the board may hold the public hearing in lieu of the Commission.
(e) In all cases where an investigative board is appointed the board shall make a recommendation to the Commission of its findings and recommendations.
§ 6456. Costs; deposit
(a) All costs for the proceedings under this chapter shall be assessed against the applicant.
() The Commission may require a deposit at the time of the application or at any other time to insure the payment of the cost.
§ 6457. Rules; delegation
The Commission may promulgate rules for the processing of applications pursuant to this subchapter and may delegate
to the Executive Director of the Commission its duties hereunder except the duty to hold a hearing or to make a recommendation to the Governor.
§ 6458. Recommendations of the Commission; action by the Governor
(a) After a public hearing, if one is held, or if no public hearing is held, after a review of the application and facts, the Commission shall recommend to the Governor that the application be denied, or be granted on such terms and conditions as the Commission deems just.
(b) No lease, permit, deed or other grant shall be executed by the Governor unless it conforms to the recommendations of the Commission but the Governor may refuse to execute any lease, permit, deed or grant in his sole discretion.
(c) The permit or grant shall be executed by the Governor if he so approves.
§ 6459. Subaqueous lands subject to Shell Fisheries Commission
(a) If any part of the subaqueous land which may be the subject of any transaction authorized by this subchapter is covered by a lease granted by the Delaware Commission of Shell Fisheries pursuant to chapter 19 of this title, then any lease, permit or grant of subaqueous lands made pursuant to this subchapter shall be subject to the unexpired term of such outstanding lease.
(b) Nothing contained in this subchapter shall authorize the Commission and the Governor to grant any lease, permit, easement or other interest for oyster purposes and this subsection does not repeal or affect any of the powers or jurisdiction of the Delaware Commission of Shell Fisheries except so far as is necessary to give effect to the full enjoyment and use by the grantee or lessee, of the lease or grant made pursuant to this subsection.
SUBCHAPTER III. SAVINGS
§ 6461. Existing rights
This chapter shall not change the law of this state relating to existing property, riparian or other rights of this state or
other persons in submerged, tide land or filled lands.
Section 2. Chapter 10, title 23, Delaware Code, is redesignated as chapter 66, title 7, Delaware Code.
Section 3. Nothing herein contained shall be construed to limit in any way the provisions of the Delaware River Basin Compact and in case of any conflict between this Act and that Compact, the provisions of the Compact shall prevail.
Section 4. Chapter 3 and 7 and 9, title 23, Delaware Code, are repealed.
Section 5. § 5501, title 7, Delaware Code, is repealed.
Section 6. § 5503, title 7, Delaware Code, is amended to read:
§ 5503. Management of Delaware Geological Survey
The University of Delaware shall have general charge of the survey and shall direct its operations.
Section 7. § 5506, title 7, Delaware Code, is amended by striking out the words "The State Geological Commission" where they appear therein and inserting in lieu thereof the words "The State Geologist or the Acting State Geologist".
Section 8. Chapter 39, title 7, Delaware Code, is amended by adding thereto a new section to read:
§ 3911. Primary jurisdiction of Water and Air Resources Commission
The Water and Air Resources Commission shall have paramount jurisdiction over water use in this state. In case of any conflict between the provisions of this chapter and the provisions of Part VII, title 7, Delaware Code, relating to water and air resources, the provisions of Part VII, title 7, Delaware Code, shall prevail.
Section 9. §1506, title 16, Delaware Code, is amended to read:
§ 1506. Plans for construction or alterations
All plans for the construction or alteration of sewerage or water supply system shall be submitted in duplicate to the Water and Air Resources Commission for its approval before construction shall be started upon same. The Water and Air Resources Commission shall promptly forward one copy of the plans to the State Board of Health for approval. The Water and Air Resources Commission shall not grant its approval of the plans if the State Board of Health disapproves the plans within 30 days, and cites its reason for disapproval.
Section 10. Amend § 1706, and § 1413, title 16, Delaware Code, by striking out the words "State Board of Health" where they appear therein and inserting in lieu thereof the words "Water and Air Resources Commission."
Section 11. Acts occurring before the effective date of this Act and the rights, duties and interests flowing from them shall be governed by the law in existence at the time this act becomes law. The provisions of this act do not apply to violations of the law or to causes of action or judgements arising therefrom prior to the effective date of this Act. Prosecutions for such offenses and violations shall be governed by the prior law which is continued in effect for that purpose as if this Act is not in force. All violations, offenses, prosecutions, and criminal appeals under prior law are saved and preserved. All civil causes of action based upon or under prior law arising out of occurrences prior to the effective date of this Act and judgements thereon or appeals therefrom are saved and preserved.
Section 12. The provisions of this act shall become effective on July 1, 1966.
Section 13. All documents, papers, records, equipment or other assets belonging to the Delaware Geological Commission are transferred to the State Geologist. All papers, documents, records, equipment, or other assets belonging to the Water Pollution Commission or the Air Pollution Authority, are transferred to the Water and Air Resources Commission created herein.
Section 14. Section 4520, title 7, Delaware Code, is repealed. Any application commenced pursuant to this repeal and pending on the effective date of this act, shall not abate but shall be processed in accordance with the law as it existed prior to this act.
Section 15. All appropriations made to the Water Pollution Commission or the Air Pollution Authority of the State of Delaware for the fiscal year beginning on July 1, 1966 are transferred to the Delaware Air and Water Resources Commission created herein.
Section 16. Chapter 16, title 16, Delaware Code, is repealed.
Approved July 1, 1966.
Note: The redesignation provided for in Section 2 of this act has been accomplished by the recodification of Chapter 10, title 23, Delaware Code, as chapter 65, title 7, Delaware Code, not as chapter 66, title 7, Delaware Code.