CHAPTER 508

FORMERLY

HOUSE BILL NO. 581

AS AMENDED BY HOUSE AMENDMENT NO. 1 AND SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 61. TITLE 7 OF THE DELAWARE CODE RELATING TO UNDERWATER LANDS AND TO CREATE CHAPTER 72 RELATING TO SUBAQUEOUS LANDS.

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 Chapter 61, Title 7 of the Delaware Code by changing its title to "Minerals in Submerged Lands", removing all reference to subchapters and repealing Sections 6151 through 6159 inclusive. Sections 6161. 6162 and 6163 are renumbered as Sections 6141, 6142 and 6143 respectively.

Section 2. Amend Title 7 of the Delaware Code by adding thereto a new Chapter, designated as Chapter 72, Subaqueous Lands. which shall read as follows:

"§7201. Purposes.

Subaqueous lands within the boundaries of Delaware constitute an important resource of the State and require protection against uses or changes which may impair the public interest in the use of tidal or navigable waters. The purposes of this Chapter are to empower the Secretary and, for commercial projects, the Governor, to deal with or to dispose of interest in public subaqueous lands and to place reasonable limits on the use and development of private subaqueous lands, in order to protect the public interest by employing orderly procedures for granting interests in public subaqueous land and for issuing permits for uses of or changes in private subaqueous lands. To this end, this Chapter empowers the Secretary to adopt rules and regulations to effectuate the purposes of the Chapter, to apply to the Courts for aid in enforcing this statute and the rules and regulations adopted pursuant hereto, and to convey interests in subaqueous lands belonging to the State.

§7202. Definitions.

(1) 'Commercial project' means any docking facility other than a single-boat pier or dock intended to serve a single family dwelling;

(2) 'Department' means the Department of Natural Resources and Environmental Control:

(3) 'Governor' means the Governor of the State of Delaware;

(4) 'Navigable water' means a river, stream, take, bay or Inlet capable or susceptible of having been or being used for transport of useful commerce;

(5) 'Secretary' means the Secretary of the Department of Natural Resources and Environmental Control;

(6) 'Subaqueous lands' means submerged lands and tidelands;

(7) 'Submerged lands' means lands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of this State, together with the beds of navigable rivers. streams, lakes, bays and inlets within the boundaries of the State as established by law;

(8) 'Tidelands' means lands lying between the line of mean high water and the line of mean low water.

§7203. Jurisdiction.

The Secretary shall have jurisdiction for any noncommercial project involving ungranted lands by the State, or for conveying a fee simple or lesser interest or the granting of easements for noncommercial projects in these lands. The Governor and Secretary together shall have jurisdiction for commercial projects over all ungranted subaqueous lands owned by the State, and for conveying a fee simple or lesser interest, or the granting of easements for commercial projects in these lands. All jurisdiction and authority remaining in the State as to subaqueous lands for which leases have been made or may be made is vested in the Secretary and it is vested for all commercial projects in the Secretary and the Governor together.

Owners of private subaqueous lands must obtain a permit from the Department before making any use of such lands which may contribute to the pollution of public waters, infringe upon the rights of the public. infringe upon the rights of other private owners, or make connection with public subaqueous lands.

§7204. Ejectment of trespassers.

The Department may eject from any subaqueous lands owned by the State any person, firm or corporation trespassing upon any such lands, including the fixed mooring of floating structures, through appropriate action in the courts of this State.

§7205. Permits required.

No person shall deposit material upon or remove or extract materials from, or construct, modify, repair or reconstruct, or occupy any structure or facility upon submerged lands or tidelands without first having obtained a permit, lease or letter of approval from the Department. Such permit, lease or letter of approval, if granted, may include reasonable conditions required in the judgment of the Department to protect the interests of the public. The Department may adopt regulations setting fees for such permits. If it is determined that granting the permit, lease or approval will result in loss to the public of a substantial resource, the permittee may be required to take measures which will offset or mitigate the loss. This section shall not apply to any repairs or structural replacements which are above the mean low tide and which do not increase any dimensions or change the use of the structure.

§7206. Easements and transfers of title.

(a) Pursuant to this Chapter, the Secretary and the Governor shall have exclusive joint jurisdiction over commercial projects to convey a fee simple or lesser interest or to grant easements with respect to subaqueous lands belonging to the State. The Secretary shall have exclusive jurisdiction over noncommercial projects, pursuant to this Chapter, to convey a fee simple or lesser interest or to grant easements with respect to subaqueous lands belonging to the State. All jurisdiction and authority to convey a fee simple or lesser merest or to grant easements over subaqueous lands as to which grants have been made or may be made is vested in the Secretary and the Governor together. All leases for shellfish grounds shall be made pursuant to Chapter 19 of this Title.

(b) All members of the General Assembly shall be given 2 weeks notice of intent to convey any interest in subaqueous lands.

§7207. Application.

(a) Each applicant for a lease, permit or grant, pursuant to this Chapter, shall file with the Secretary a request stating in detail the type of lease, permit or grant desired, showing the location of the area and containing specifications for any proposed construction.

(b) The Secretary may require such additional information as will enable him to consider the application properly. He may require an environmental assessment to be provided if he determines that the proposed use or activity may have a substantial adverse effect upon the environment.

(c) The Secretary may request of any State agency a report or recommendation concerning any application before the Department.

(d) 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:

(1) the fact that the application has been received;

(2) a brief description of the nature of the application; and

(3) a statement that a public hearing may be requested by any interested person who offers a meritorious objection to the application.

(4) If the Secretary decides that an objection is not meritorious, he shall then provide a written response so stating his reasons.

§7208. Hearing.

(a) A public hearing shall be held:

(1) If a permit, grant or lease for a period of time in excess of 10 years is sought; or

(2) If the Secretary determines that a public hearing is in the public interest; or

(3) if a written meritorious objection to the application is received within 20 days of the advertisement of the public notice for the application. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and provides a reasoned statement of the action's probable impact.

(b) Notice of the public hearing shall be sent to the applicant, to immediately adjacent property owners and to any interest person who requests it, and such notice shall be published in the same manner as the application.

(c) The Secretary shall make a written statement of reasons to be placed with the application if a public hearing is not held.

§7209. Public notice.

(a) The published notice shall contain a general description of the location of the property and a statement of the nature of the lease, permit or grant sought to be acquired.

(b) If the advertisement is also used to provide notice of a public hearing, it shall also give the time, date and place of the hearing, which shall occur not less than 20 days following the publication of the advertisement.

§7210. Appeals to Environmental Appeals Board.

Any person whose interest is substantially affected by any action of the Secretary or of the Department taken pursuant to this Chapter, may appeal to the Environmental Appeals Board as established by Title 7 of the Delaware Code, Section 6007 within 20 days after the announcement of the decision. Such appeal shall be governed by the provisions of Title 7 of the Delaware Code, Sections 6008 and 6009. There shall be no appeal of a decision by the Secretary or the Governor to deny a permit on any matter involving State- owned subaqueous lands.

§7211. Costs, deposits and fees.

(a) All costs for the proceedings under this Chapter shall be assessed against the applicant.

(b) The Secretary may require a deposit at the time of the application or at any other time to insure the payment of the costs.

(c) All costs and deposits and all fees collected under this Chapter are hereby appropriated to the Department to carry out the purposes of this Chapter.

§7212. Rules; delegation.

The Secretary may after public hearing, adopt, amend, modify or repeal rules or regulations to effectuate the policy and purposes of this Chapter. The Secretary may delegate his powers or duties under this Chapter, except the power to convey or to lease or grant easements in subaqueous lands.

§7213. Existing rights.

This Chapter shall not change the law of this State relating to existing property, riparian or other rights of this State or other persons in submerged, tideland or filled lands.

§7214. Violations; enforcement, civil and criminal penalties.

(a) The Secretary shall enforce this Chapter.

(b) Whoever violates this Chapter, or any rule, regulation or condition of a lease or permit issued pursuant to authority granted in this Chapter, or an order of the Secretary, shall be punishable as follows:

(I) If the violation has been completed, by a civil penalty of not less than $1,000 nor more than $10,000 for each completed violation. Each day of continued violation shall be considered as a separate violation. The Superior Court shall have jurisdiction of a violation in which a civil penalty is sought.

(2) If the violation is continuing or threatening to begin, the Secretary may, in addition to seeking a monetary penalty as provided in paragraph (I) of this Subsection, seek a temporary restraining order, a temporary injunction or permanent injunction in the Court of Chancery.

(c) Whoever violates this Chapter, or any rule or regulation promulgated thereunder, or any rule or regulation in effect at the time of the enactment of this Chapter or any lease or permit condition, or any order of the Secretary. shall be punishable by a criminal penalty of not less than $50 nor more than $500 for each violation. Each day of violation shall be considered as a separate violation. The Courts of the Justice of the Peace shall have jurisdiction of offenses under this Subsection.

(d) Any person who knowingly makes any false statement, representation or certification in any application, record. report, plan or other document filed or required to be maintained under this Chapter, or under any lease or permit, rule, regulation or order issued under this Chapter, or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required to be maintained under this Chapter, shall, upon conviction, be punished by a fine of not less than $S00 nor more than $5.000, or by imprisonment for not more than 6 months, or both. The Superior Court shall have Jurisdiction of offenses under this Subsection.

§7215. Cease and desist order.

The Secretary shall have the power to issue an order to any person violating any rule or regulation or permit condition or lease condition or provision of this Chapter, to cease and desist from such violation. Any cease and desist order issued pursuant to this Section shall expire:

(1) after 30 days of its Issuance;

(2) upon withdrawal of said order by the Secretary; or

(3) when the order is superseded by an injunction, whichever occurs first. §7216. Interference with Department personnel.

No person shall obstruct, hinder, delay or interfere with, by force or otherwise, the performance by Department personnel of any duty under this Chapter, or any rule or regulation or order or permit or decision, promulgated or issued thereunder."

Approved July 9, 1986.