CHAPTER 522

FORMERLY

SENATE BILL NO. 359

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 7, DELAWARE CODE, TO PROVIDE FOR AN ACCELERATION AND EXTENSION OF THE PROGRAM FOR CONTROL OF SOIL EROSION AND SEDIMENT DAMAGE RESULTING FROM LAND DISTURBING ACTIVITIES WITHIN THE STATE; TO PROVIDE FOR ADOPTION OF A COMPREHENSIVE STATEWIDE SOIL EROSION AND SEDIMENT CONTROL PROGRAM AND GUIDELINES AND FOR ADOPTION BY SOIL CONSERVATION DISTRICTS OF SOIL EROSION AND SEDIMENT CONTROL PROGRAMS CONSISTENT WITH SUCH STATEWIDE PROGRAM AND GUIDELINES; TO REQUIRE THE FILING AND APPROVAL OF PLANS FOR THE CONTROL OF SOIL EROSION AND SEDIMENT DAMAGE IN CONNECTION WITH LAND DISTURBING ACTIVITIES; TO PROVIDE FOR INSPECTIONS AND REPORTS; TO DECLARE CERTAIN ACTS TO BE UNLAWFUL; TO PROVIDE FOR ADMINISTRATION AND ENFORCEMENT; TO PROVIDE. FOR FINANCIAL AND OTHER ASSISTANCE TO DISTRICTS AND THE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL FOR THE PURPOSES OF THIS ACT, AND MAKING AN APPROPRIATION FOR THOSE PURPOSES; AND FOR OTHER PURPOSES.

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

Section 1. Title 7, Delaware Code, is amended by inserting a new Chapter 40 to be entitled "Erosion and Sediment Control Act" to read as follows:

"CHAPTER 40. EROSION AND SEDIMENTATION CONTROL SUBCHAPTER I. POLICY AND DEFINITIONS

§4001. Policy

The General Assembly finds that erosion continues to be a serious problem throughout the State, and that rapid shifts in land use from agricultural and rural to non-agricultural and urbanizing uses, changes in farm enterprises, operations, and ownership, construction of housing, industrial and commercial developments, streets, highways, recreation areas, schools, and universities, public utilities and facilities, and other land disturbing activities have accelerated the process of soil erosion and sediment deposition resulting in pollution of the waters of the State and damage to domestic, agricultural, industrial, recreational, fish and wildlife, and other resource uses. It is, therefore declared to be the policy of this chapter to strengthen and extend the present erosion

and sediment control activities and programs of this State for both rural and urban lands, and to establish and implement, through the Department of Natural Resources and Environmental Control, hereinafter referred to as the4Department', and' the soil conservation districts created under Chapter 39 of this Title, hereinafter referred to as 'districts', in cooperation with counties, municipalities and others local governments and subdivisions of this State, and other public and private entities, a statewide comprehensive and coordinated erosion and sediment control prdgram to conserve and protect land, water, air, and other resources of the State.

§4002. Definitions

(a) 'Land disturbing activity' means any land change which may result in soil erosion from water or wind and the movement of sediments into State waters or onto lands in the State, including, but not limited to, tilling, clearing, grading, excavating, transporting and filling of land, other than Federal lands, except that the term shall not include such minor land disturbing activities as home gardens and individual home landscaping, repairs and maintenance work.

(b) 'Person' means any State agency, individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, municipality or other political subdivision of this State, any interstate body, or any other legal entity.

(c) 'State waters' means any and all waters, public or private, on the surface of the ground, which are contained within, flow through, or border upon the State or any portion thereof.

(d) 'Erosion and sediment control plan' or 'plan' means a plan for the control of soil erosion and sediment resulting from a land disturbing activity.

(e) 'Conservation standards' or 'standards' means standards adopted by the Department or the districts pursuant to §4003 and §4004, respectively, of this chapter.

SUBCHAPTER II. DEVELOPMENT AND IMPLEMENTATION OF EROSION AND SEDIMENTATION CONTROL PROGRAM

§4003. State Erosion and Sediment Control Program

(a) The Department shall, in cooperation with appropriate State and Federal agencies and political subdivisions of the State, develop and coordinate a comprehensive State erosion and sediment control program.

(b) To implement this program, the Department shall develop and adopt, no later than six months from the effective date of the chapter, regulations for erosion and sediment control, which regulations may be revised from time to time as may be necessary. The regulations for carrying out the program shall:

(1) be based upon relevant physical and developmental information concerning the watersheds and drainage basins of the State, including, but not limited to, data relating to land use, soils, hydrology, geology, size of land area being disturbed, proximate water bodies and their characteristics, transportation, and public facilities and services;

(2) include such survey of lands and waters as may be deemed appropriate by the Department or required by any applicable law to identify areas, including multi-jurisdictional and watershed areas, with critical erosion and sediment problems;

(3) contain conservation standards for various types of soils and land uses, which standards shall include criteria, techniques, and methods for the control of erosion and sediment;

(4) provide for escrow accounts or performance bonds, as necessary, to insure the financial responsibility of any person engaging in land disturbing activities.

(c) The program and regulations shall be made available for public inspection at the office of the Department.

§4004. District Erosion and Sediment Control Program

(a) Each district in the State shall, within one year after the adoption of the State regulations, develop, in cooperation with appropriate State and Federal agencies and political subdivisions of the State, and adopt a soil erosion and sediment control program consistent with the State program and regulations for erosion and sediment control. The district program may incorporate county or municipal programa if such programs are consistent with the State program for erosion and sediment control.

(b) Prior to adoption of a new or revised district program, the district shall notify the public of the proposed program in accordance with the provisions of Chapter 64, Title 29, Delaware Code, and conducra public hearing on the program.

(c) Upon adoption of a new or revised district program, the district shall submit the program to the Department for review and approval. If a district fails to submit a program consistent with the State program to the Department within the period specified herein, the Department shall, after such hearing or consultations as it deems appropriate with local interests in the district, develop and adopt an appropriate program to be carried out by the district.

(d) The adopted and approved district program shall be made available for public inspection at the principal office of the district.

(e) If a district fails to carry out any of its responsibilities under this chapter, the Department shall, after such hearings or consultations as it deems appropriate, carry out such responsibilities until the Department is reasonably assured the district will carry out such responsibility.

§4005. Interim Program

The Department shall adopt and implement such rules and regulations as are necessary to carry out the policies of §4001 of this chapter for that period prior to adoption and implementation of district programs pursuant to §4004 of this Chapter. The Department may rely on existing State and local programs for erosion and sediment control to the extent practicable. Provided, the interim program shall not apply to agricultural or forestry practices, or to other activities on lands of less than 20 acres.

SUBCHAPTER III. PROHIBITED LAND DISTURBING ACTIVITIES

§4006. Certain Agricultural and Forestry Practices Exempted

(a) All agricultural or forestry practices on agricultural or forestry lands shall be deemed not to be land disturbing activities and shall not be subject to the provisions of this Chapter if:

(1) they take place on lands in parcels of one acre or less; or

(2) they take place on lands with an average slope of less than six percent as measured between points on opposite or adjacent property lines of the same parcel; or

(3) the Secretary of the Department determines, based on the standards of the soil conservation district, that such practices (i) do not create an erosion or sedimentation problem affecting State waters or other land of another owner, operator or occupier, or (ii)

are not inconsistent with the policy of this Chapter.

Provided, however, only that part of the parcel of agricultural or forestry lands in productive use shall be subject to these exemptions;

(b) Any person owning, occupying, or operating private agricultural or forestry lands who has a farm conservation plan approved by the district and is implementing and maintaining such plan with respect to normal agricultural and forestry activities, or any person whose normal agricultural and forestry practices are in conformance with the conservation standards established pursuant to this chapter, shall be deemed not to be engaged in land disturbing activity prohibited by this chapter.

(c) If there is not available to any owner, operator, or occupier of private agricultural or forestry lands at least 50 percent cost-sharing assistance or adequate technical assistance for the installation of erosion and sediment control measures required in an approved farm conservation plan, or for measures to conform agricultural and forestry practices to conservation standards established pursuant to this chapter, any such owner, occupier, or operator who shall fail to install erosion and sediment control measures required in an approved farm conservation plan, or to conform his agricultural and forestry practices to such conservation standards, shall be deemed not to be engaged in land disturbing activity prohibited by this chapter.

(d) If any owner, operator or occupier of private agricultural or forestry lands is unable to pay the private share required for participation in cost-sharing assistance pursuant to subsection (c) of this section, the District may waive such requirement, and such owner, operator or occupier shall be deemed not to be engaged in land disturbing activities. In waiving such requirement, the District shall consider:

(1) the need for relief from the requirement;

(2) the extent to which soil conservation practices are or have been applied by such owner, operator or occupier to the lands in question;

(3) the expected duration of the erosion and sedimentation problem;

(4) the extent and magnitude of the lands in question; and

(5) the willingness of the owner, operator or occupier to follow sound soil conservation practices to the best of their ability. Any waiver shall be reviewed on a year-by-year basis.

(e) Agricultural or forestry practices completed within eighteen months of the effective date of this chapter shall be deemed not to be land disturbing activities and shall not be subject to the provisions of this chapter.

§4007. Certain Non-Agricultural and Non-Forestry Practices Exempted

Land disturbing activities, which are not agricultural or forestry practices, completed within eighteen months of the effective date of this chapter shall be deemed not to be land disturbing activities and shall not be subject to the provisions of this chapter unless the interim program developed pursuant to §4005 so provides. Provided, only land disturbing activities on lands of at least 20 acres shall be subject to said interim program.

§4008. Prohibited Land Disturbing Activities; Erosion Control Plan Submission and Approval

(a) Except as provided in §4006 and §4007, no person may engage in any land disturbing activity until such person has submitted to the district a plan for erosion and sediment control for such land disturbing activity and such plan has been reviewed and approved by the district, except that (1) when proposed land disturbing activities are to be performed on State lands or by or on behalf of a State agency, plans for erosion and sediment control shall be submitted to the Department instead of the district for review and approval, and (2) where land disturbing activities involve lands in more than one district, plans for erosion and sediment control may, as an alternative to submission to each district concerned, be submitted to the Department for review and approval.

(b) Upon submission of an erosion and sediment control plan to a district or to the Department:

(1) The district shall review plans submitted to it and shall approve any such plan if it determines that the plan meets the conservation standards of the district, and if the person responsible for carrying out the plan certifies that the person will properly perform the erosion and sediment control measures included in the plan and will conform to the provisions of this chapter; and

(2) The Department shall review plans submitted to it and shall approve any such plan if it determines that the plan adequately considers the Department's regulations and the conservatinn standards of the district, or districts, involved and if the person responsible for carrying out the plan certifies that the person will properly perform the conservation measures included in the plan and will conform to the provisions of this chapter.

(c) When a plan submitted for approval under this section is found, upon review by a district or the Department, to be inadequate, the district or the Department, as the case may be, may require such modifications, terms, and conditions as will permit approval of the plan.

(d) An approved plan may be changed only by the district which has approved the plan or by the Department when it has approved the plan. Such change may be made where:

(1) inspection has revealed the inadequacy of the plan to accomplish the erosion and sediment control objectives of the plan, and appropriate modifications to correct the deficiencies of the plan are agreed to by the plan approving authority and the person responsible for carrying out the plan; or

(2) the person responsible for carrying out the approved plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this chapter, are agreed to by the plan approving authority and the person responsible for carrying out the plan.

§4009. Approved Plan Required for Issuance of Grading, Building, or other Permits

No agency authorized under any law or ordinance to issue grading, building, or other permits for activities involving land disturbing activities may issue any such permits unless the applicant therefor submits with his application an erosion and sediment control plan approved by the district, or by the Department where appropriate, and his certification that such plan will be followed. These requirements are in addition to all other provisions of law relating to the issuance of such permits and are not intended to otherwise affect the requirements for such permits.

SUBCHAPTER IV. ENFORCEMENT

§4010. Monitoring Reports, and Inspections

(a) With respect to approved plans for erosion and sediment control in connection with land disturbing activities which involve the issuance of a grading, building, or other permit, the permit issuing authority shall provide for periodic inspections of the land disturbing activity to insure compliance with the approved plan, and to determine whether the measures required in the plan are effective in controlling erosion and sediment resulting from the land disturbing activities. Notice of such right of inspection shall be included in the permit. If the permit issuing authority determines that the permittee has failed to comply with the plan, the authority shall immediately serve upon the permittee by registered mail to the address specified by the permittee in the permit application a notice to comply. Such notice shall set forth the measures needed to come into compliance with such plan and shall specify the time within which such measures shall be completed. If the permittee fails to comply within the time specified, the permittee shall be in violation of this chapter and subject to the penalties provided by this chapter.

(b) With respect to approved plans for erosion and sediment control in connection with all land disturbing activities, except agricultural and forestry operations, where no grading, building or other permit is issued, the district, or the Department in connection with plans approved by it, may require of the person responsible for carrying out the plan such monitoring and reports, and may make such on-site inspections after notice to the resident owner, occupier, or operator, as are deemed necessary to determine whether the soil erosion and sediment control measures required by the approved plan are Ming properly performed, and whether such measures are effective in controlling soil erosion and sediment resulting from the land disturbing activity. Such resident owner, occupier, or operator shall be given an opportunity to accompany the inspectors. If it is determined that there is failure to comply with the approved plan, the district, or the Department where appropriate, shall serve upon the person who is responsible for carrying out the approved plan a notice to comply, setting forth the measures needed to be taken and specifying the time in which such measures shall be completed. Such notice shall be by registered mail to the person responsible for carrying out the plan at the address specified by the person in the certification at the time of obtaining the approved plan. Upon failure of such person to comply within the specified period, the person will be deemed to be in violation of this chapter and subject to the penalties provided by this chapter.

(c) With respect to agricultural and forestry operations not exempted under Subsection (a), (b), (d), or (e) p4006 of this chapter, the district shall have authority to make onsite inspections to determine if the approved farm conservation plan is being followed, or where there is no such plan, to determine if the agricultural and forestry practices are being carried out in conformance with conservation standards established pursuant to this chapter. On-site inspections may be made after notice to the resident owner, operator, or occupier of the land involved, and such shall be given an opportunity to accompany the inspector. Inspectors shall not carry firearms during such inspections. If such inspections reveal that an owner, operator, or occupier of agricultural or forestry lands is not complying with the approved farm conservation plan or is not carrying out his agricultural and forestry practices in conformance with conservation standards established pursuant to this chapter, such owner, operator, or occupier shall be notified by registered mail addressed to the person at the person's usual abode or customary place of business of the measures needed for compliance. Such notice shall require that such resident owner, occupier, or operator shall commence such measures within six months from the date of the notice and shall complete the same within twelve months of such date. Upon failure to comply with such notice, the owner, occupier, or operator will be deemed in violation of this chapter and subject to the penalties provided by this chapter.

§4011. Cooperation with Federal Agencies

The districts and the Department are authorized to cooperate and enter into agreements with any Federal agency in connection with plans for erosion and sediment control with respect to land disturbing activities on lands which are under the jurisdiction of such Federal agency.

§4012. Financial and Other Assistance

The Department and the districts are authorized to receive from Federal, State, or other public or private sources financial, technical, or other assistance for use in accomplishing the purposes of this chapter. The Department may allocate, as necessary or desirable, any funds received for the'purpose of effectuating this chapter to districts or other political subdivisions of the State.

§4013. Appropriation

The General Assembly shall annually appropriate to the Department a sum not in excess of $50,000 to carry out the purposes of this chapter.

§4014. Penalties

(a) Any person who violates any provision of this chapter shall be subject to a civil penalty of not more than $2,500. Each day the violation continues shall be grounds for a separate penalty.

(b) Superior Court shall have exclusive original jurisdiction over violations under this chapter. Provided, however, that the jurisdiction of courts to hear violations of other laws or ordinances relating to erosion and sedimentation control shall not be impaired by this section.

§4015. Injunctions

The Court of Chancery shall have jurisdiction to enjoin violations of this chapter. The appropriate permit issuing authority, the district, the Department, or any aggrieved person who suffers damage or is likely to suffer damage because of a violation or threatened violation of this chapter may apply to the Chancery Court for injunctive relief. Among any other appropriate forms of relief, the Chancery Court may direct the violator to restore the affected land or water area to its original condition.

§4016. Cease and Desist Orders

The Attorney General shall have the power to issue a cease and desist order to any person violating any provision of this chapter by ordering such person to cease and desist from such violation. Provided, that any cease and desist order issued pursuant to this section shall expire (1) after thirty days of its issuance, or (2) upon withdrawal of said order by the Attorney General, or (3) when the order is superseded by an injunction, whichever occurs first.

§4017. No Preemption

Nothing in this chapter shall be construed to prevent political subdivisions of this State from adopting and implementing more stringent standards for erosion and sedimentation control than provided by this chapter. In such case, the standards of the political subdivision shall prevail, provided the level of erosion and sedimentation control applied exceeds that required by this Chapter or regulations adopted pursuant thereto. This section shall not apply to lands owned or leased by the State of Delaware."

Section 2. If any provision of this chapter is held to be unconstitutional or otherwise invalid, such unconstitutionality or invalidity shall not affect the remaining provisions of this chapter.

Section 3. All laws or ordinances inconsistent with any provision of this chapter are superseded to the extent of the inconsistency.

Section 4. This Act shall become effective immediately upon the Governor's signature.

Approved July 12, 1978.