CHAPTER 566

FORMERLY SENATE SUBSTITUTE

NO. 1 FOR SENATE BILL NO. 732

AN ACT TO AMEND TITLES 17 AND 7, DELAWARE CODE, TO TRANSFER BEACH EROSION CONTROL FROM THE DEPARTMENT OF HIGHWAYS AND TRANSPORTATION TO THE DEPARTMENT OF NATURAL RESOUCES AND ENVIRONMENTAL CONTROL; TO PROVIDE PENALTIES FOR DAMAGING OF BEACHES AND TO AUTHORIZE THE SECRETARY OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL TO ISSUE CEASE AND DESIST ORDERS TO PREVENT SUCH DAMAGE; TO AUTHORIZE THE ISSUANCE OF BONDS TO FINANCE A REVOLVING FUND TO COMBAT BEACH EROSION AND PLEDGING THE FULL FAITH AND CREDIT OF THE STATE THEREFOR; AND TO MAKE A SUPPLEMENTAL APPROPRIATION.

Be it enacted by the General Assembly of the State of Delaware (three-fourths of all the members elected to each branch thereof concurring therein):

Section 1. Title 17, Delaware Code, is amended by striking section 142 and 143 thereof in their entirety.

Section 2. Title 7, Delaware Code, is amended by adding thereto a new chapter 68 to read as follows:

CHAPTER 68. BEACH EROSION CONTROL

§ 6801. Purposes

The purposes of this chapter are to enhance, preserve, and protect the public and private beaches of the State of Delaware, to prevent beach erosion, to make certain acts destructive of beaches punishable as crimes, to prescribe the penalties for such acts, and to vest in the Department of Natural Resources and Environmental Control ("The Department") the authority to adopt such rules and regulations as it deems necessary to effectuate the purposes of this chapter.

§ 6802. Definitions

For purposes of this chapter:

(a) A "Beach" is that portion of the shore of any body of water which extends from the mean high water mark inland one thousand feet, or to a roadway for automobiles, whichever is closer.

(b) "Beach Erosion" or "Erosion" is the wearing away of a beach by water or the elements.

(c) An "Emergency" is the existence of beach conditions unreasonably dangerous to persons or property.

§ 6803. Authority to enhance, preserve, and protect beaches

(a) Authority to enhance, preserve, and protect public and private beaches within the State of Delaware shall be vested solely in the Department of Natural Resources and Environmental Control.

() The Department shall prevent and repair damage from erosion of public beaches. To this end, the Department shall, when it deems it necessary, provide, construct, reconstruct, and maintain groins, jetties, banks, dikes, dunes, bulkheads, seawalls, breakwaters, and other facilities or make any other repairs or take any other measures along or upon any public beach or shoreline area in this State. All structures, devices, and facilities existing now or in the future which are devoted to the enhancement, preservation, and protection of beaches shall be under the sole jurisdiction, management, and control of the Department.

(a) No substantial change in the existing characteristics of any beach shall be made without prior written approval of the Department.

(b) No dune buggy, truck, automobile, motorized bicycle, mechanized vehicle or machine shall be operated on any public beach except in accordance with rules and regulations promulgated by the Department.

() The Secretary of the Department shall, as soon as

practicable, promulgate rules and regulations to effectuate the purposes of this chapter.

(f) The authority of the Department shall extend to privately owned beaches whenever, in,. the judgment of the Governor, such dangerous conditions exist in a location specified by the Governor as to constitute an emergency. Before taking any action with respect to a privately owned beach, the Department shall, whenever practicable, give reasonable notice to the owner thereof that a condition of potential emergency must be corrected, and wait a reasonable period of time for the owner to correct the matter. If the owner does not correct the matter, the Department shall do so.

§ 6804. Cease and desist orders

The, Secretary of Natural Resources and Environmental Control ("The Secretary") shall have the power to issue a cease and desist order to any person violating any provision of this chapter or rule or regulation promulgated pursuant thereto. Any such cease and desist order shall expire (1) after thirty (30) days from the date of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when the order is superseded by an injunction, whichever occurs first.

§ 6805. Penalties

(a) Whoever, without authority from the Department, alters, moves, or carries away any substantial amount of beach material (including but not limited to sand or pebbles), groin, jetty, bank, dike, dune, bulkhead, seawall, breakwater, or any other facility, improvement or structure installed or maintained by the Department for enhancement, preservation, or protection of a beach, or violates any regulation duly promulgated pursuant to this Act, or violates a cease and desist order of the Secretary, shall be fined not less than $100 nor more than $5,000 or imprisoned for not more than two (2) years, or both, and, in addition, shall reimburse the Department for its reasonable expenditures in remedying damage created. The maximum penalties hereunder shall be imposed for a wilful or malicious violation.

(b) Justices of the Peace shall have original jurisdiction to hear and determine violations of this section.

§ 6806. Beach preservation fund

(a) A special fund is created in the State Treasury to be known as the "Beach Preservation Fund", hereafter referred to in this chapter as "The Fund".

(b) The Fund may be used as necessary to effectuate the purposes of this chapter.

(c) The balance of the Fund shall be at least $1,000,000 at the beginning of each fiscal year after the effective date hereof. Such sums as are necessary to restore the Beach Preservation Fund to a balance of $1,000,000 shall be appropriated annually from the General Fund or borrowed annually after fiscal year 1973 by the issuance of bonds or bond anticipation notes upon the full faith and credit of the State of Delaware as may be authorized within the annual Capital Improvement Program. Such bonds and notes shall be issued in accordance with the provisions of Chapter 74 of Title 29 of this Code. For purpose of identification, the bonds issued pursuant to such authorization may be known, styled, or referred to as "Beach Preservation Bonds of 1972."

§ 6807. Federal aid; other funds

The Department may cooperate with and receive moneys from the Federal government or any industry or other source. Such moneys received are hereby appropriated and made available for study and action directed at beach preservation.

§ 6808. Inconsistent laws superseded; all other laws unimpaired; certain uses are not authorized

All laws or ordinances inconsistent with any provision of this

chapter are hereby superseded to the extent of the inconsistency.

§ 6809. Severability

If any provision of this chapter, or of any rule, regulation, or order promulgated thereunder, or the application of any such provision, regulation, or order to any person or circumstances shall be held invalid, the remainder of this chapter or any regulations or order promulgated pursuant thereto or the application of such provision, regulations, or order to persons or circumstances other

than those to which it is held invalid, shall not be affected thereby.

Section 3. The following are transferred to the Department of Natural Resources and Environmental Control to effectuate the purposes of this Act:

All funds allocated to the Department of Highways and Transportation for purposes of beach preservation by Volume 55, Chapter 167; Volume 56, Chapter 469; Volume 57, Chapter 299; Volume 58, Chapter 347, and not disbursed before the effective date hereof, along with personnel, equipment, records and resources of whatever kind allocated to or utilized for beach preservation by the Department of Highways and Transportation.

Section 4. The sum of $62,270 is hereby appropriated to the Department of Natural Resources and Environmental Control for fiscal year 1973, to effectuate the purposes of this Act. This is a supplementary appropriation and funds hereby appropriated shall be paid out of General Fund moneys not otherwise appropriated. Funds hereby appropriated remaining unexpended shall revert to the General Fund on June 30, 1973.

Section 5. There is hereby appropriated to the Beach Preservation Fund the sum of $1,000,000 or so much thereof as shall be received from the sale of bonds and notes thereafter authorized.

Section 6. The funds appropriated in section 5 of this act may be used as necessary to effectuate the purposes of Title 7, Delaware Code, Chapter 68. So much of the funds appropriated by this Act as shall be (1) necessary and (2) reimbursable from the United States Army Corps of Engineers, but not more than $600,000, shall be used immediately to dredge the Indian River Inlet and to fill the beach north of the inlet jetty to protect the inlet bridge and Route 14.

Section 7. The said sum of $1,000,000 shall be borrowed by the issuance of bonds and bond anticipation notes upon the full faith and credit of the State of Delaware. Such bonds and notes shall be issued in accordance with the provisions of Chapter 74, Title 29, Delaware Code, and Chapter 75, Title 29, Delaware Code, where applicable. For purposes of identification, the bonds

issued pursuant to this authorization act may be known, styled or referred to as "Beach Preservation Bond of 1972".

Section 8. There is appropriated from the General Fund of the State of Delaware such sums as may be necessary for the expenses incident to the issuance of the bonds and notes herein authorized, and such further sums as may be necessary to pay any interest which becomes due on such bonds and notes during the current fiscal year and such further sums as may be necessary for the payment of the expenses incident to the issuance of bonds and notes and for the interest and payment of said notes shall be signed by the Secretary of State by and with the approval of the issuing officers. Any moneys received from the premium and accrued interest on the sale of said bonds shall be deposited to the credit of the General Fund.

Section 9. The budget appropriation bill which shall be enacted and approved by the General Assembly for the fiscal year next following the effective date of this Act and for each subsequent fiscal year shall contain under the debt service item provisions for the payment of interest and principal maturities of the bonds (or notes which are not to be funded by the issuance of bonds) issued under the authority of this Act, and such of the revenues of the State of Delaware as are not prohibited by constitutional provisions or committed by preceding statutes for other purposes are hereby pledged for the redemption and cancellation of said bonds and payment of interest thereon.

Section 10. This Act may be known, styled or referred to as the "Beach Preservation Act of 1972".

Approved July 22, 1972.