CHAPTER 213

FORMERLY

SENATE SUBSTITUTE NO. 1

FOR SENATE BILL NO. 217

AS AMENDED BY SENATE AMENDMENT NOS. 1 & 2

AN ACT TO AMEND TITLE 7, DELAWARE CODE, BY ADDING A NEW CHAPTER TO BE DESIGNATED AS CHAPTER 66 TO ALLOW THE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL TO REGULATE THE USE OF DELAWARE'S WETLANDS AND THEIR UPLAND BORDER TO PROVIDE PENALTIES FOR VIOLATION OF THE PROVISIONS THEREOF AND TO PROVIDE AN APPROPRIATION THERETO.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 7, Delaware Code, is hereby amended by a new chapter thereto to be designated as Chapter 66 to read as follows:

CHAPTER 66 WETLANDS

§6601. Short title

This Act shall be known and may be cited as The Wetlands Act.

§6602. Purpose

It is declared that must of the wetlands of this State have been lost or despoiled by unregulated dredging, dumping, filling and like activities and that the remaining wetlands of this State are in jeopardy of being lost or despoiled by these and other activities; that such loss or despoliation will adversely affect, if not entirely eliminate, the value of such wetlands as sources of nutrients to finfish, crustacea and shellfish of significant economic value; that such loss or despoliation will destroy such wetlands as habitats for plants and animals of significant economic and ecological value and will eliminate or substantially reduce marine commerce, recreation and aesthetic enjoyment; and that such loss or despoliation will, in most cases, disturb the natural ability of wetlands to reduce flood damage and adversely affect the public health and welfare; that such loss or despoliation will substantially reduce the capacity of such wetlands to absorb silt and will thus result in the increased silting of channels and harbor areas to the detriment of free navigation. It is hereby determined that the coastal areas of Delaware are the most critical areas for the present and future quality of life in the State and that the preservation of the coastal wetlands is crucial to the protection of the natural environment of these coastal areas. Therefore, it is declared to be the public policy of this State to preserve and protect the productive public and private wetlands and to prevent their despoliation and destruction consistent with the historic right of private ownership of lands.

§6603. Definitions

"Activity" means any dredging, draining, filling, bulkheading, construction of any kind, including but not limited to, construction of a pier, jetty, breakwater, boat ramp, or mining, drilling or excavation.

"Authorized Activity" includes any activity allowed after receipt of a permit from the Department.

"Board" means the Wetlands Appeals Board.

"Department" means the Department of Natural Resources and Environmental Control.

"Person" means any individual, group of individuals, contractor, supplier, installer, user, owner, partnership, firm, company, corporation, association, joint stock company, trust, estate, political subdivision, administrative agency, public or quasi-public corporation or body, or any other legal entity, or its legal representative, agent or assignee.

"Pre-Existing Use" means any use of land, or water, or subaqueous lands, or of a structure or any combination of these which was lawfully in existence prior to and in active use on the date of enactment of this Chapter, or any temporary or seasonal use in active use for ten (10) consecutive weeks within the last twelve (12) months previous to enactment of this Chapter.

"Secretary" means the Secretary of the Department of Natural Resources and Environmental Control.

"Wetlands" shall mean those lands above the mean low water elevation including any bank, marsh, swamp, meadow, flat or other low land subject to tidal action in the State of Delaware along the Delaware Bay and Delaware River, Indian River Bay, Rehoboth Bay, Little and Big Assawoman Bays, the coastal inland waterways, or along any inlet, estuary or tributary waterway or any portion thereof, including those areas which are now or in this century have been connected to tidal waters, whose surface is at or below an elevation of two feet above local mean high water, and upon which may grow or is capable of growing any but not necessarily all of the following plants:

Eelgrass (Zoxtera marina), Wedgeon Grass (Ruppia maritima), Sago Pondweed (Potamogeton pectinatus), Saltmarsh cordgrass (Spartina Alterniflora), Saltmarsh Grass (Spartina cynosuroides), Saltmarsh Hay (Spartina Patens), Spike Grass (Distichlis spicata), Black Grass (Juncos gerardii), Switch Grass (Panicum virgatum), Three Square Rush (Scirpus americanus), Sea Lavendar (Limomium carolinianum), Seaside Goldenrod (Solidago sempervirens), Sea Blite (Suaeda maritima), Sea Blite (Suaeda linearis), Perennial Glasswort (Salicornia virginica), Dwarf Glasswort (Salicornia bigelovii), Samphire (Salicornia europaea), Marsh Aster (Aster tenuifolius), Salt-marsh Fleabane (Pluchea purpurascens var. succulenta), Mock Bishop's Weed (Ptilimnium capillaceum), Seaside Plantain (Plantage oliganthos), Orach (Atriplex patula var. hastata), March Elder (Iva frutescens var. oraria), Goundsel Bush (Baccharis halmifolia), Bladder Wrach (Fucus vesiculosis), Swamp Rose Mallow, Seaside Hollyhock or Marsh Mallow (Hibiscus palustris), Torrey Rush (Scirpus torreyi), Narrow-leaved Cattail (Typha angustifolia), and Broad-leaved Cattail (T. latif Ha) and those lands not currently used for agricultural purposes containing four hundred (400) acres or more of contiguous non-tidal swamp, bog, muck, or marsh exclusive of narrow stream valleys where fresh water stands most, if not all, of the time due to high water table, which contribute significantly to groundwater recharge, and which would require intensive artificial drainage using equipment such as pumping stations, drain fields or ditches for the production of agricultural crops.

§6601. Permit required

(a) Any activity in the wetlands requires a permit from the Department except the activity or activities exempted by this Chapter and no permit may be granted unless the county or municipality having jurisdiction has first approved the activity in question by zoning procedures provided by law.

(b) The Secretary shall consider the following factors prior to issuance of any permit : (1) Environmental Impact, including but not limited to, likely destruction of wetlands and flora and fauna; impact of the site preparation on tidal ebb and flow and the otherwise normal drainage of the area in question, especially as it relates to flood control; impact of the site preparation and proposed activity on land erosion; effect of site preparation and proposed activity on the quality and quantity of tidal waters, surface, ground and subsurface water resources and other resources. (2) Aesthetic effect, such as the impact on scenic beauty of the surrounding area. (3) The number and type of public and private supporting facilities required and the impact of such facilities on all factors listed in this subsection. (4) Effect on neighboring land uses, including but not limited to, public access to tidal waters, recreational areas and effect on adjacent residential and agricultural areas. (5) State, county and municipal comprehensive plans for the development and/or conservation of their areas of jurisdiction. (6) Economic effect, including the number of jobs created and the income which will be generated by the wages and salaries of the jobs in relation to the amount of land required, and the amount of tax revenues potentially accruing to the state, county and local governments.

() The Secretary may require a bond in an amount and with surety and conditions sufficient to secure compliance with the conditions and limitations, if any, set forth in the permit. The particular amount and the particular conditions of the bond required shall be consistent with and in furtherance of the purposes of this Act. The Secretary shall state for the record, the basis for the bonding requirements imposed with each permit granted. In the event of a breach of any condition of any such bond, the Attorney General may institute an action in Superior Court upon such bond and prosecute the same to judgment and execution.

§6605. Pre-existing use

Any expansion or extension of a pre-existing use requires a permit and no permit may be granted under this Chapter unless the County or municipality having jurisdiction has first approved the use in question by zoning procedures provided by law.

§6606. Exemptions

Any of the following activities are exempt from permit requirements: mosquito control activities authorized by the Department, construction of directional aids to navigation, duck blinds, foot bridges, the placing of boundary stakes, wildlife nesting structures, grazing of domestic animals, haying, hunting, fishing and trapping.

§6607. Procedures, regulations and application fees

(a) The Secretary shall administer this Chapter.

(b) The Secretary shall inventory, as promptly as he is able, all wetlands within the State and prepare suitable maps. Such maps shall be filed with the Secretary of State and made available for public inspection at the offices of the Department. On completion of a wetlands boundary map for an area, the Secretary shall propose that wetlands within the area be designated as such in accordance with the map. Wetlands designation on the maps shall be conclusive for the purpose of this Chapter upon adoption by the Secretary, subject to the outcome of any appeals taken under this Section. After such designation, the two foot elevation above local mean high water specified in §6603 of this Chapter shall not apply to any land outside the designated area.

() The Secretary shall adopt a wetlands designation or any other regulation only after holding a public hearing in accordance with §6609.

(a) The Secretary shall, in furtherance of the purpose of this Chapter, adopt regulations

(i) setting forth procedures, including provision for fees, which shall govern the processing of permit applications and the conduct of hearings;

(ii) elaborating standards consistent with Section 6604 by which each permit application will be reviewed and acted upon;

() controlling or prohibiting activities on lands designated or proposed for designation as wetlands, which regulations may vary from area to area according to the ecological value of the subject wetlands and the threat to the health and welfare of the people of this State which their alteration would pose.

§6608. Permit applications

(a) Any person desiring to obtain a permit required by §6604 of this Chapter shall submit an application in such form and accompanied by such plans, specifications and other information as required by applicable regulations.

(b) Upon receipt of an application in proper form, the Secretary shall advertise in a daily newspaper of statewide circulation and in a newspaper of general circulation in the County in which the activity is proposed (i) the fact that the application has been received and (ii) a brief description of the nature of the application. The Secretary may hold a public hearing with respect to any application if it is deemed to be in the best public interest. The Secretary shall hold a public hearing if he receives a written meritorious objection within twenty (20) days of advertisement. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact.

§6609. Public hearings

Any public hearing held by the Secretary or the Board concerning a regulation, permit applications or alleged violation or appeal shall be conducted as follows:

(a) Notification shall be served upon the applicant, alleged violator, or appellant as summonses are served by registered or certified mail not less than twenty (20) days before the time of said hearing. Not less than twenty (20) days notice shall also be published in a daily newspaper of general circulation throughout the state and a newspaper of general circulation in the county in which the activity is proposed. Such notice shall also be sent by mail simultaneously to persons who have listed their names and addresses with the Secretary to be notified. Such notice shall also be sent by mail simultaneously to all adjoining property owners. Notice shall outline the area concerned, activity involved, and the location where the application for a permit or other pertinent material is available for inspection.

(b) The permit applicant, alleged violator, or appellant may appear personally or by counsel at the hearing and produce any competent evidence in his behalf. The Secretary or his duly authorized designee or the Board or its duly authorized designee may administer oaths, examine witnesses and issue, in the name of the Department or the Board, notices of hearings or subpoenae requiring the testimony of witnesses and the production of books, records, or other documents relevant to any matter involved in such a hearing; and subpoenae shall also be issued at the request of the applicant or alleged violator. In case of contumacy or refusal to obey a notice of hearing or subpoena under this section, the Superior Court in the county in which the hearing is held shall have jurisdiction, upon application of the Secretary or the Chairman of the Board, to issue an order requiring such person to appear and testify or produce evidence as the case may require.

(c) A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents introduced by the Secretary or other party, constitute the record. The Secretary or his duly authorized designee or the Board or its duly authorized designee shall make findings of fact based on the record. The Secretary or the Board shall then enter such order as will best further the purpose of this Chapter, and shall state reasons. The Secretary or the Board shall promptly give written notice to the persons affected by such order.

§6610. Wetlands Appeals Board created; composition, quorum; conflict of interest

(a) There is hereby created a Wetlands Appeals Board which shall consist of seven (7) voting Delaware residents, appointed by the Governor with the advice and consent of the Senate. The Chairman shall be appointed by the Governor and serve at his pleasure. Of the remaining six (6), one (1) shall be engaged in farming, one (1) shall be engaged in a recreational activity, one (1) shall be engaged in contracting and/or developing land and one (1) shall be engaged in conservation efforts. Of those six members, two (2) members shall also represent each of the three counties. The term of two (2) appointed members shall be for one (1) year, two (2) for two years and two (2) for three (3) years. Thereafter, all regular members shall be appointed for three (3) year terms. Registered members of either major political party shall not exceed registered members of the other major political party by more than one (1). The members shall have broad based interest in the well-being of the total environment and the economic welfare of the State.

(b) Vacancies in Board membership shall be filled by the Governor for the remainder of the unexpired term.

(c) A simple majority of the Board shall constitute a quorum. A simple majority of the Board shall be required for overriding the decision of the Secretary.

(d) Any member of the Board with a personal or private interest in a matter in question shall disqualify himself from any consideration of that matter.

(e) Each Board member shall be compensated for such reasonable expense as travel and meals for each meeting and hearing attended.

§6611. Appeal

(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Wetlands Appeals Board within twenty (20) days after the Secretary has announced the decision. The Board may affirm or reverse the decision of the Secretary.

(b) Whenever a decision of the Secretary concerning a permit is appealed, the Board shall hold a public hearing in accordance with §6609.

(c) If the Secretary is overruled by the Board, then the Board shall state its reasons.

(d) Any decision of the Board shall be signed by a minimum of five (5) members.

(e) There shall be no appeal against the Secretary's denial of a use of any State-owned land.

(f) If the Board fails to act on any appeal within ninety (90) days following receipt of the appeal, the decision of the Secretary shall be taken to have been affirmed for purposes of this Act.

§6612. Appeal from Board's decision

(a) Any person or persons, jointly or severally affected by any decision or non-decision of the Board, or any taxpayer, or any officer, department, board or bureau of the State, may appeal to the Superior Court in and for the county in which the use in question is wholly or principally located by filing a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Any such appeal shall be perfected within thirty (30) days of the decision of the Board.

(b) The Court may affirm, reverse or modify the Board's decision. The Board's findings of fact shall not be set aside unless the Court determines that the record contains no substantial evidence that would reasonably support the findings. If the Court finds that additional evidence should be taken, the Court may remand the cause to the Board for completion of the record.

§6613. Taking without just compensation

If the Superior Court finds that the action appealed from constitutes a taking without just compensation, it shall invalidate the order and grant appropriate relief, unless the Secretary at this stage, consents to the reversal or modification of his decision. However, the Secretary may, through negotiation or condemnation proceedings under 10 Del. C., Chapter 61, acquire the fee simple or any lesser interest, including but not limited to, a perpetual negative easement or other interest which assures that the affected land shall not thereafter be altered, dredged, dumped upon, filled or otherwise altered subject to any reasonable reservations to the land owner as the Secretary may have stipulated to prior to assessment of damages. A decision of the Superior Court that the action appealed from constitutes a taking without just compensation shall not become effective for two (2) years of the date of decision and-shall not become effective at all if within that period the Secretary has initiated action to acquire fee simple or any lesser interest in the wetlands in question. A finding of the Superior Court that the denial of a permit or the restrictions imposed by a granted permit constitutes a taking without just compensation shall not affect any land other than that of the petitioning land owner. If the Secretary has not initiated action to acquire fee simple or any lesser interest in the wetlands in question within two (2) years from the date of a final court ruling, the permit must be granted as applied.

§6614. Cease and desist orders

The Secretary shall have the power to issue an order to any person violating any rule, regulation or order or permit condition or provision of this Chapter to cease and desist from such violation. Provided, that any cease and desist order issued pursuant to this Section shall expire (1) after thirty (30) days of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when the order is suspended by an injunction, whichever occurs first.

§6615. Injunction

Action for injunctive relief may be brought by the Secretary to prevent a violation of this Act or a permit condition. The Court of Chancery may, at its discretion, require bond in the appropriate amount.

§6616. Right of entry

The Secretary or his duly authorized designee, in regulating any activity over which he has jurisdiction pursuant to this Chapter, may enter, at reasonable times, upon any private or public property for the purpose of determining whether a violation exists of a statute or regulation enforceable by him, upon giving written notice, and after presenting official identification to the owner, occupant, custodian or agent of said property.

§6617. Penalties

(a) Any person who violates any rule, regulation, order, permit condition or provision of this Chapter shall be fined not less than five hundred ($500) dollars or more than ten thousand ($10,000) dollars for each offense. Continuance of an activity prohibited by this Chapter during any part of a day shall constitute a separate offense. Any person found guilty of violating any cease and desist order of the Secretary shall be fined for each offense, starting from the date of receipt of the order. The Superior Court shall have jurisdiction of offenses under this part.

(b) In addition to any fines imposed under subsection (a), a person who effects or permits any activity in wetlands in violation of this Chapter may be liable to the State for the cost of restoration of the affected wetland to its condition prior to such violation insofar as that is technically feasible. The Attorney General of the State, upon complaint of the Secretary, shall institute a civil action to recover such damages.

§6618. Inconsistent laws superseded; all other laws unimpaired

All laws or ordinances inconsistent with any provision of this Chapter are hereby superseded to the extent of the inconsistency. Provided, that present and future zoning powers of all counties and municipalities, to the extent that said powers are not inconsistent with this Chapter, shall not hereby be impaired; and provided that a permit granted under this Chapter shall not authorize an activity in contravention of county or municipal zoning regulations.

§6619. Liberal construction

This Chapter, being necessary for the welfare of the State and its inhabitants, shall be liberally construed in order to preserve the wetlands of the State.

§6620. Federal Aid; other funds

The Department may cooperate with and receive monies from the Federal government, state or local government or any industry or other source. Such monies received are appropriated and made available for the study and preservation of the wetlands.

§6621. Severability

If any provision of this Chapter or the application of any provision of this Chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances and the remainder of this Chapter shall not be affected thereby.

§6622. Appropriations

(a) A sum of one hundred thousand dollars ($100,000) is hereby appropriated to the Department to perform the requirements of §6607 (b), which include surveying for disputed wetland boundaries, staff processing and clerical help.

() A sum of two thousand dollars ($2,000) is hereby appropriated to the Department to pay the expenses of the Board members.

(a) A sum of thirty-five thousand dollars ($35,000) is hereby appropriated to the Department to carry out the provisions of this Chapter.

Approved July 17, 1978.