CHAPTER 361

FORMERLY

HOUSE BILL NO. 607

AN ACT TO AMEND CHAPTER 68, TITLE 7 OF THE DELAWARE CODE RELATING TO BEACH EROSION CONTROL.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Subchapter I, Chapter 68, Title 7 of the Delaware Code by striking said Subchapter I in its entirety and substituting in lieu thereof the following:

§6801. Purposes

Beaches of the Atlantic Ocean and Delaware Bay shoreline of Delaware are hereby declared to be valuable natural features which furnish recreational opportunity and provide storm protection for persons and property, as well as being an important economic resource for the people of the State. Beach erosion and shoreline migration occur due to the influence of waves, currents, tides, storms and rising sea level. These natural forces have created, and will continue to alter, the beaches of the State. Development and habitation of beaches must be done with due consideration given to the natural forces impacting upon them and the dynamic nature of those natural features. The purposes of this chapter are to enhance, preserve, and protect the public and private beaches of the State, to mitigate beach erosion, to create civil and criminal remedies for acts destructive of beaches, 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 it deems necessary to effectuate the purposes of this Chapter.

§6802. Definitions

For purposes of this chapter:

A 'beach' is that area from the Delaware/Maryland line at Fenwick Island to the Old Marina Canal immediately north of Pickering Beach, which extends from the mean high water line of the Atlantic Ocean and Delaware Bay landward 1,000 feet and seaward 2,500 feet, respectively, and along the perimeter of Rehoboth, Indian River, Little Assawoman and Assawoman Bays (excluding tributaries) which extend from the mean high water line landward 200 feet and bayward 300 feet, respectively.

'Beach erosion' or 'erosion' is the wearing away of a beach by water or the elements.

'Beach preservation', 'beach erosion control' or 'erosion control' is the protection and control of the beach by the conduct and regulation of work and activities likely to affect the physical condition of the beach or shore, and includes, but is not limited to, erosion control, hurricane protection, coastal flood control, shoreline and offshore rehabilitation.

'Building Line' means a line generally paralleling the Coast, seaward of which construction of any kind shall be prohibited without a permit or letter of approval from the Department. The building line shall be set forth on maps prepared by the Department with reference to the National Geodetic Vertical Datum, the Delaware State Plane Coordinate System and topographic surveys.

'Construction' includes any work or activity which is likely to have a material physical effect on existing coastal conditions or natural shore and inlet processes.

'Department' means the Department of Natural Resources and Environmental Control

'Emergency' means any unusual incident resulting from natural or unnatural causes which endangers the health, safety, or resources of the general public, including damages or erosion of any shoreline resulting from a hurricane, storm, or any such natural disturbance.

'Person' means any individual, partnership, corporation, association, institution, cooperative enterprise, municipality, commission, political subdivision, or duly established legal entity.

'Private beach' means any beach which Is not a public beach as defined in this Chapter.

'Public beach' means any beach owned in fee simple by the Federal or State governments or any County, City, Town or municipality, or any beach for which the State has obtained an easement or agreement for public use.

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

Authority to enhance, preserve, and protect public and private beaches within the State shall be vested solely in the Department.

The Department shall prevent and repair damages from erosion of public beaches. To this end, the Department shall, when it deems necessary, provide, construct, re-construct, 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.

The Secretary of the Department shall promulgate rules and regulations to effectuate the purposes of this Chapter.

Any person or persons, Jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State, aggrieved by any decision of the Secretary, may appeal as provided by law to the Superior Court in and for the County in which the activity 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 on the record an shall be perfected within 30 days of the receipt of the decision of the Secretary.

The Court may affirm, reverse or modify the Secretary's decision. The Secretary'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 case to the Secretary for completion of the record.

§6804. Privately owned beaches

The authority of the Department to prevent and repair damages from erosion shall extend to privately owned beaches whenever, in the Judgment of the Governor, a dangerous condition constituting an emergency exists in a location specified by the Governor. 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. The owner shall be liable for all expenses incurred by the Department M correcting a condition of potential emergency.

§6805. Permits required

No person shall, without first having obtained a permit or letter of approval from the Department, undertake any activity:

(1) To construct, modify, repair, or reconstruct any structure or facility on any beach seaward of the building line.

(2) To alter, dig, mine, move, remove or deposit any substantial amount of beach or other materials, or cause the significant removal of vegetation, on any beach seaward of the building line which may affect the enhancement, preservation, or protection of beaches.

No dune buggy, truck, automobile, motorized bicycle, mechanized vehicle or machine shall be operated on any beach owned in fee simple by the State except in areas designated for such use and then only in accordance with rules and regulations promulgated by the Department. Vehicles utilized for emergency or health and safety measures are excepted from this subsection.

Construction activities landward of the building line on any beach, including construction of any structure or the alteration, digging, mining, moving, removal or deposition of any substantial amount of beach or other materials shall be permitted only under a letter of approval from the Department.

the Department shall grant or deny permit or letter of approval required by subsections (a) and (c) of this section in accordance with duly promulgated regulations.

§6806 Cease and desist orders

The Secretary of the Department shall have the power to issue a cease and desist order to any person violating any provision of this chapter rule or regulation promulgated pursuant thereto. Any such cease and desist order shall expire (1) after 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 Injunction, whichever occurs first

§6807. Penalties

Whover, without authority from the Department, alters, moves, or carries away any substantial amount of beach material (including, but not limited to, sand or pebbles), or alters, damages, or destroys any groin, jetty, bank, dike, dune, bulkhead, seawall, breakwater or any other facility, improvement, or structure installed or maintained by the Department for the enhancement, preservation, or protection of the beach, shall be liable for a civil penalty imposed by the Court of Common Pleas of not less than $200 nor more than $5,000 for each completed violation. If the violation has been completed and there is a substantial likelihood that it will recur or if it is a continuing violation, the Department may also seek a permanent or preliminary Injunction or temporary restraining order in the Court of Chancery.

Any coastal structure erected, or excavation created, In violation of this chapter is hereby declared to be a public nuisance, and such structure shall be forthwith removed or such excavation refilled after written notice by the Department directing such removal or filling. In the event the structure Is not removed or the excavation refilled as directed within a reasonable time, the Department may remove such structure or fill such excavation at its own expense, The person who erected the structure or created the excavation declared to be a public nuisance shall be liable for all expenses incurred by the Department in removing the structure or filling the excavation. The Secretary shall submit a detailed billing for the costs involved in abating the public nuisance to the person responsible. In the event that said billing is not paid by the person responsible within thirty days, the Department may file suit in the appropriate court seeking to compel payment.

(e) Any person who (1) violates any condition or limitation in a permit Issued pursuant to this chapter, (2) engages in any activity prohibited by this chapter, or (3) violates any regulation duly promulgated according to this chapter, shall upon conviction be fined not less than $200 nor more than $5,000, or imprisoned for not more than 2 years, or both, and in addition, shall reimburse the Department for its reasonable expenditures in remedying damage created.

For the purposes of §6807(c), each and every day that a permit condition or limitation is violated, an activity engaged in which is prohibited by this chapter, or a regulation violated, is deemed a separate offense.

Any expenses or civil penalties collected by the Department under this section are hereby appropriated to the Department to carry out the purposes of this Chapter.

§6808. Beach preservation fund

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'.

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

The balance of the Fund shall be at least $1,000,000 at the beginning of each fiscal year after July 22, 1972. Such sums as are necessary to restore the Beach Preservation Fund to a balance of at least $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 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, Title 29 of this code. For purposes of Identification, the bonds issued pursuant to such authorization may be known, styled, or referred to as 'beach preservation bonds'.

§6809. Federal aid; other funds

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

§6810. Eminent domain

The Secretary may, through negotiation or condemnation proceedings under Chapter 61 of Title 10, acquire the fee simple or any lesser interests in land whenever two-thirds or more of the property owners of property included in the project area along a private beach, as defined by the Department, have agreed to allow the Department to undertake any or all necessary works to protect, and enhance the beaches; and allow free public access to the beach; provided, however, that the agreeing property owners own at least two-thirds of the property included in the project area.

The Secretary may include the costs of obtaining any such fee simple or lesser interests including but not limited to attorney's fees, appraisal costs, surveying charges, title search, and land acquisition costs in the total project costs.

§6811. Inconsistent laws or ordinances superseded

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

§6812. Short title

This Chapter may be known, styled or referred to as the 'Beach Preservation Act'."

Section 2. Amend Subchapter II. Conservation and Preservations Easements, Chapter 68, Title 7 of the Delaware Code by redesignating the entire Subchapter as "Chapter 69", Title 7 of the Delaware Code and renumbering the existing sections accordingly.

Section 3. Amend Title 7 of the Delaware Code by adding a new Section 6906, as follows:

§6906. Short title

This Chapter may be known, styled or referred to as the 'Conservation and Preservation Easement Act of 1978'."

Approved July 17, 1984.