CHAPTER 212

FORMERLY

SENATE BILL NO. 222

AS AMENDED BY

SENATE AMENDMENT NO. 1

AND

HOUSE AMENDMENT NOS. 1, 2, & 3

AN ACT TO AMEND PART VII, TITLE 7 OF THE DELAWARE CODE RELATING TO CONSERVATION OF THE STATE'S NATURAL RESOURCES; ESTABLISHING A STATE SYSTEM OF NATURE PRESERVES; AND PROVIDING FOR THEIR ACQUISITION, CONTROL, USE, MANAGEMENT AND PROTECTION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Part VII, Title 7 of the Delaware Code by striking the present title of said Part VII, and substituting in lieu thereof the following:

"PART VII. NATURAL RESOURCES"

Section 2. Amend Part VII, Title 7 of the Delaware Code, by adding thereto a new chapter, designated as Chapter 73, which new Chapter shall read as follows:

"CHAPTER73. NATURAL AREAS PRESERVATION SYSTEM §7301. Statement of Policy

Because of the continuing growth of the population and the development of the economy of the State of Delaware, it is necessary and desirable that areas of unusual natural significance be set aside and preserved for the benefit of present and future generations before they have been destroyed, for once destroyed they cannot be wholly restored.

Such areas are irreplaceable as laboratories for scientific research, as reservoirs of natural materials - not all of the uses of which are now known, as habitats for plant and animal species and biotic communities whose diversity enriches the meaning and enjoyment of human life, as living museums where people may observe natural biotic and environmental systems of the earth and the interdependence of all forms of life, and as reminders of the vital dependence of the health of the human community upon the health of the natural communities of which it is an inseparable part.

It is essential to the people of the State of Delaware that they retain the opportunities to maintain close contact

with such living communities and environmental system of the earth and to benefit from the scientific, educational, esthetic, recreational and cultural values they possess. It is therefore the public policy of the State of Delaware that a registry of such areas be established and maintained by the Department of Natural Resources and Environmental Control, that such areas be acquired and preserved by the State, and that other agencies, organizations, and individuals, both public and private, be encouraged to set aside such areas for the common benefit of the people of present and future generations.

§7302. Definitions

The following words, terms and phrases, when used in the Chapter, shall have the meanings ascribed to them except where the context clearly indicates a different meaning:

(a) 'Articles of dedication' shall mean the writing by which any estate, interest, or right in an area is formally dedicated as permitted by §7307 of this Chapter.

(b) 'Council' shall mean the Delaware Natural Areas Advisory Council.

(c) 'Dedicate' and 'dedication' shall mean the transfer to the Department of Natural Resources and Environmental Control, for and on behalf of the State of Delaware, of an estate, interest, or right in an area in any manner permitted by §7306 of this Chapter.

(d) 'Department' shall mean the Department of Natural Resources and Environmental Control.

(e) 'Natural area' shall mean an area of land or water, or both land and water, whether in public or private ownership, which either retains or has re-established its natural character (although it need not be undisturbed), or has unusual flora or fauna, or has biotic, geological, scenic, or archaeological features of scientific or educational value.

(f) 'Nature preserve' shall mean a natural area, any estate, interest, or right in which has been formally dedicated under the provisions of this Chapter.

(g) 'Secretary' shall mean the Secretary of the Department of Natural Resources and Environmental Control.

(h) 'System' shall mean the nature preserve held under the provisions of this Chapter.

§7303. Statement of Purpose

In order to secure for the people of the State of Delaware of present and future generations the benefits of an enduring resource of areas having one or more of the characteristics referred to in §7302 (e) of this Chapter, the State of Delaware, acting through the Department, shall acquire and hold in trust for the benefit of the people an adequate system of nature preserves for the following uses and purposes:

(a) for scientific research in such fields as ecology, taxonomy, genetics, forestry, pharmacology, agriculture, soil science, geology, conservation, archaeology, and other subjects;

(b) for the teaching of biology, natural history, ecology, geology, conservation, and other subjects;

(c) as habitats for plant and animal species and communities and other natural objects;

(d) as reservoirs of natural materials;

(e) as places of natural interest and beauty;

(f) as living illustrations of our natural heritage wherein one may observe and experience natural biotic and environmental systems of the earth and their processes;

(g) to promote understanding and appreciation of the scientific, educational, esthetic, recreational and cultural values of such areas by the people of the State of Delaware;

(h) for the preservation and protection of nature preserves against modification or encroachment resulting from occupation, development, or other use which would destroy their natural or esthetic conditions.

In order to give recognition to natural areas, the Department shall establish and maintain a registry of natural areas of unusual significance, but no area so registered shall be a nature preserve unless and until it shall have been dedicated as provided for in §7306 of this Chapter.

§7304. Designation of Office of Nature Preserves

There is hereby designated within the Department an Office of Nature Preserves, which shall administer for the Department the provisions of this Chapter.

§7305. Provision for Expert Advice and Assistance

(a) There is hereby Created a Delaware Natural Areas Advisory Council to advise the Secretary of the Department on the administration of nature perserves and the preservation of natural areas.

(b) The Council shall have eight members. The Secretary of the Department of Natural Resources and Environmental Control shall be an ex officio member of the Council, with a voice in its deliberations, but without the power to vote. The other members shall be appointed by the Governor of the State of Delaware, with the advice and consent of the Senate, shall be persons who have been active or have demonstrated an interest in preserving natural areas, and shall include members of public and private educational organizations, conservation organizations, industry leaders active in environmental matters, sport hunting organizations, and sport fishing organizations and shall not include more than four persons who belong to the same political party.

(c) The Department shall furnish clerical, technical, legal, and other services required by the Council in the performance of its official duties.

(d) Members of the Council shall receive no compensation but may be reimbursed for their actual and necessary expenses incurred in the performance of their official duties. The Council shall hold at least one regular meeting in each quarter of each calendar year and shall keep a record of its proceedings, which shall be open to the public for inspection.

(e) The Council shall:

(1) review and make recommendations on the Department's criteria for acquisition and dedication of nature preserves;

(2) review and make recommendations regarding inventories and registries of natural areas and nature preserves;

(3) review and make recommendations on departmental plans for the selection of particular natural areas for State acquisition;

(4) advise the Secretary on policies, rules, and regulations governing the management, protection, and use of nature preserves;

(5) recommend the extent and type of visitation and use to be permitted within each nature preserve;

(6) advise and consult with the Secretary and Departmental employees on preservation matters;

(7) advise and consult regarding any change from dedicated status of a nature preserve.

(8) within 10 days of receiving plans from the department for the selection of particular natural areas for State acquisition, issue written notice to adjacent landowners that such areas are being considered for State acquisition.

§7306. The Dedication Process

(a) The Department is authorized and empowered, for and on behalf of the State of Delaware, to acquire nature preserves by gift, devise, purchase, exchange, or any other method of acquiring real property or any estate, interest or right therein provided that such acquisition shall not be made through the exercise of the power of eminent domain, and further provided that any interest owned by the State or by any subdivision thereof may be dedicated only by voluntary act of the agency having jurisdiction thereof. The Department may acquire the fee simple interest in an area or any one or more lesser estates, interests, and rights therein, including (without limitaton upon the generality of the foregoing by reason of specification) a leasehold estate, an easement either appurtenant or in gross and either granting the State specified rights of use or denying to the grantor specified rights of use or both, a license, a covenant, and other contractual rights. A nature preserve may be acquired voluntarily for such consideration as the Department deems advisable or without consideration.

(b) The Secretary of the Department, upon the advice and concurrence of the Council, shall accept natural areas by articles of dedication or gift. A nature preserve is established when articles of dedication have been filed by or at the direction of the owner of land, or a governmental agency having ownership or control thereof, in the office of the County Recorder of the county in which the land is located.

(c) Articles of dedication shall be executed by the owner of the land in the same manner and with the same effect as a conveyance of an interest in land and shall be irrevocable except as provided in this section. The County Recorder may not accept articles of dedication for recording unless they contain terms restricting the use of the land which adequately provide for its preservation and protection against modification or encroachment resulting from occupation, development, or other use which would destroy its natural or esthetic conditions for one or more of the uses and purposes set forth in this section.

(d) Articles of dedication may contain provisions for the management, custody, and transfer of land, provisions defining the rights of the owner or operating agency and the Department, and such other provisions as may be necessary or advisable to carry out the uses and purposes for which the land is dedicated. They may contain conditions under which the owner and the Department may agree to rescind the articles.

(e) The Department may make or accept amendments of any articles of dedication upon terms and conditions that will not destroy the natural or esthetic condition of a preserve. If the fee simple interest in the area is not held by the State, no amendments shall be made without the written consent of the owner. Each amendment shall be recorded in the same manner as the articles of dedication.

§7307. Additional Powers and Duties of Department

In furtherance of the purposes of this Chapter and in implementation of the powers and duties elsewhere provided in this Chapter, the Department shall have the following additional powers and duties:

(a) to formulate policies for the selection, acquisition, use, management, and protection of nature preserves;

(b) to formulate policies for the selection of areas suitable for registration under the provisions of this Chapter:

(c) to formulate policies for the dedication of areas as nature preserves;

(d) to determine, supervise and control the management of nature preserves and to make, publish, and amend from time to time rules and regulations necessary or advisable for the use and protection of nature preserves;

(e) to encourage and recommend the dedication of areas as nature preserves;

(f) to make surveys and maintain registries and records of unique natural areas within the State;

(g) to carry on interpretive programs and publish and disseminate information pertaining to nature preserves and other areas within the State; and

(h) to promote and assist in the establishment, restoration and protection of, and advise in the management of, natural areas and other areas of educational or scientific value and otherwise

to foster and aid in the establishment, restoration and preservation of natural conditions within the State elsewhere than in the system.

§7308. Protection Against any Change in Status from that of Dedicated Nature Preserve

Nature preserves dedicated under §7306 of this Chapter are to be held in trust, for the uses and purposes set forth for the

benefit of the people of the State of present and future generations. They shall be managed and protected in the manner approved, by

and subject to the rules and regulations established by the Department. They shall not be taken for any other use except another public use after a finding by the Department of the existence of an imperative and unavoidable public necessity for such other public use and with the approval of the Governor after consultation with the Advisory Council, and by Act of the Legislature not less than six months from the date of the Governor's approval. Except as may otherwise be provided by the articles of dedication, the Department may grant, upon such terms and conditions as it may determine, an estate, interest or right in, or dispose of, a nature preserve, but only after a finding by the Department of the existence of an imperative and unavoidable

public necessity for such grant of disposition, and with the approval of the Governor after consultation with the Advisory Council, and by Act of the Legislature not less than six months from the date of the Governor's approval.

§7309. Public Participation

Before the Department makes any finding of the existence of an imperative and unavoidable public necessity, or grants any estate, interest or right in a nature preserve or disposes of a nature preserve or of any estate, interest or right therein, as provided in §7308, it shall give notice of such proposed action and an opportunity for any person to be heard at a public hearing in the county in which the preserve is located. The public hearing shall be pubished at least once in newspapers with a Statewide circulation and general circulation in the county in which the nature preserve is located. The notice shall set forth the substance of the proposed action and describe, with or without legal description, the nature preserve affected, and shall specify a place and time not less than thirty days after such publication for a public hearing before the Department on such proposed action. All persons desiring to be heard shall have a reasonable opportunity to be heard prior to action by the Department on such proposal.

§7310. Enforcement

Enforcement of this Chapter, including enforcement of the articles of dedication, shall be the responsibility of the Department.

§7311. Transfer of Natural Areas

All units, departments, agencies, and instrumentalities of the State, including (without limitation upon the generality of the foregoing by reason of specification) counties, municipalities, schools, colleges and universities, are empowered and urged to dedicate as nature preserves suitable areas or portions of areas within their jurisdiction.

§7312. Additional Protection Unimpaired

Nothing contained in this Chapter shall be construed as interfering with the purposes stated in the establishment of or pertaining to any State or local park, preserve, wildlife refuge or other area or the proper management and development thereof, except that any agency administering an area dedicated as a nature preserve under the provisions of this Chapter shall be responsible for preserving the character of the area in accordance with the articles of dedication and the applicable rules and regulations with respect thereto established by the Department from time to time. Neither the dedication of an area as a nature preserve nor any action taken by the Department under any of the provisions of this Chapter shall void or replace any protective status under law which the area would have were it not a nature preserve, and the protective provisions of this Chapter shall be supplemental thereto."

Section 3. If any provison of this Act or the application thereof to any circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Section 4. All laws and parts of laws in conflict herewith, insofar as such conflicts exist, are hereby repealed.

Approved February 10, 1978.