CHAPTER 253

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 339

AS AMENDED BY

HOUSE AMENDMENT NOS. 1 AND 2 AND

SENATE AMENDMENT NOS. 5, 6, 7, 8, 9, 19 AND 20

AN ACT TO AMEND TITLE 17 OF THE DELAWARE CODE RELATING TO THE DELAWARE RIVER AND BAY AUTHORITY REGARDING (1) RECEIPT OF PROJECT PROPOSALS FROM THE GOVERNOR; (2) REVIEW OF PROPOSED PROJECTS BY THE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL; (3) PUBLIC NOTICE AND PUBLIC HEARINGS ON MAJOR PROJECTS; (4) PRIOR LEGISLATIVE APPROVAL OF MAJOR PROJECTS; (5) PRIOR LEGISLATIVE APPROVAL OF THE CONDEMNATION OF PUBLIC LAND; AND (6) REGULATION OF INCREASES IN VOLUME DISCOUNT BRIDGE TOLL RATES; AND TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO THE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL AND PROCEDURES TO BE FOLLOWED BY THE DEPARTMENT IN REVIEWING OR APPROVING PROJECTS.

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

Section 1. Amend subchapter II, Chapter 17, Title 17 of the Delaware Code by adding Sections 1723, 1724, 1725, 1726, 1727 and 1728 as follows:

11723. Proposals for Commerce Facilities or Developments.

The Delaware River and Bay Authority shall not initiate any commerce facility or development (as defined in Article II of the Delaware-New Jersey Compact set out in §1701 of this title) to be located in the State of Delaware unless a proposal for such commerce facility or development has been first submitted to the Governor by the Delaware Development Office and then approved and submitted to the Authority by the Governor. The Delaware Development Office shall, before submitting such proposal to the Governor, notify all members of the General Assembly and the local governmental officials of the area in which the proposed project is to be located.

§1724. Project Review by Department of Natural Resources and Environmental Control

(a) Whenever the Delaware River and Bay Authority proposes or agrees to undertake a project (as defined in Article II of the Delaware-New Jersey Compact set out in Section 1701 of this title), to be located in the State of Delaware or in the Delaware River or Bay, the Authority shall submit an environmental impact statement as defined in §7002(c) of Title 7 of the Delaware Code) with respect to the project for review by the Department of Natural Resources and Environmental Control. The Department of Natural Resources and Environmental Control shall make a determination of whether said project could comply with the environmental laws and regulations of the State of Delaware and shall utilize standards and criteria as called for to Section 6036 of Title 7 to determine if said project shall be considered to be a project of State significance. Any project reviewed by the Department of Natural Resources and Environmental Control which is to be located in the Delaware River or Bay shall be deemed to be a major project. Any commerce facility OT development located in the State of Delaware shall also be deemed to be a major project.

Any project determined to be a project of state significance shall be deemed to be a major project (as defined in Article II of the Delaware New Jersey Compact set out in §1701 of this title). The Secretary of the Department of Natural Resources and Environmental Control shall convey this determination to the Executive Director of the Delaware River and Bay Authority.

(b) The Department of Natural Resources and Environmental Control shall give public notice and hold a public meeting at which the proposed project will be reviewed. The public notice shall provide a description of the nature of the project and shall be publicized in a newspaper of general circulation in each of the counties at least fifteen (15) business days prior to the scheduled meeting date. A public notice and public hearing by the Department of Natural Resources and Environmental Control at the State level shall not be required where the Department of Natural Resources and Environmental Control upon Initial review of the proposed project determines that the project is a major project or that the project will not require any permit or approval from any state agency.

(c) The Department of Natural Resources and Environmental Control project review process provided for in this Section 1724 shall be completed prior to the date of publication of the notice relating to the project provided for by Section 1725 of this title.

(d) The Department of Natural Resources and Environmental Control may undertake its obligations hereunder through its Development Advisory Service, or such other unit of the Department of Natural Resources and Environmental Control as its Secretary may designate.

(e) The provisions of this Section 1724 shall not apply to any project undertaken by the Delaware River and Bay Authority in connection with a crossing (as defined in Article II of the Delaware-New Jersey Compact set out in §1701 of this title).

§1724A. Appeal to Board.

(a) Any person, as that term is defined in g6002 of Title 7, whose interest is substantially affected by the determination of the Department of Natural Resources and Environmental Control that a proposed project Is or is not a project of State significance may appeal to the Environmental Appeals Board (the "Board") within 20 days after the Secretary of the Department of Natural Resources and Environmental Control has conveyed the determination to the Executive Director of the Delaware River and Bay Authority.

(b) Whenever a determination of the Department of Natural Resources and Environmental Control concerning a proposed project is appealed, the Board shall hold a public hearing in accordance with §6006 of Title 7.

(c) if the determination of the Department of Natural Resources and Environmental Control is overruled by the Board, then the Board shall state its reasons for its decision.

(d) No decision of the Board shall be valid unless signed by a minimum of 5 members.

(e) No appeal she)/ operate to stay automatically the effect of any determination by the Department of Natural Resources and Environmental Control, but upon application. and for good cause, the Secretary of the Department of Natural Resources and Environmental Control or the Court of Chancery may stay the action pending disposition of the appeal.

§17248. Appeal from Board's decision.

(a) Any person, as defined In §6002 of Title 7, or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State, or the Delaware River and Bay Authority, may appeal to the Superior Court in and for the county in which the proposed project In question is wholly or principally located by filing a petition, duly verified, setting forth that such decision of the Board is illegal in whole or in part, specifying the grounds of the illegality. Any such appeal Shall be perfected within 20 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 case to the Board for completion of the record.

(c) No appeal shall operate to stay automatically the effect of any determination by the Department of Natural Resources and Environmental Control, but upon application, and for good cause, the Board or the Court of Chancery may stay the action pending disposition of the appeal.

§1725. Notice and Public Hearing,

(a) Whenever the Delaware River and Bay Authority proposes to undertake a major project (as defined in Article II of the Delaware-New Jersey Compact set out in §1701 of this title) to be located in the State of Delaware or in the Delaware River or Bay, the Authority shall provide public notice of the proposed major project as follows:

(1) The notice shall describe the nature of the project including a brief synopsis of the project, a statement of whether the project requires the condemnation of public lands and a reference to the legal basis for the Authority's proposed activities;

(2) The notice shall state the manner in which members of the public may

(3) present their views in writing, including the address to which such writing should be addressed and the final date by which such writings may be submitted;

(4) The notice shall state the date, time and place where the public hearing, if requested in accordance with subparagraph (b) hereof, shall be held;

(5) The notice shall be provided at least thirty (30) days prior to the scheduled date of any public hearing requested in accordance with subparagraph (b) hereof; and

(6) The notice shall be publicized in a newspaper of general circulation in each of the counties.

(b) If requested by the Governor or any member of the General Assembly, or if a meritorious request for a hearing is submitted by any person, within fourteen (14) days of the date of publication of the notice, the Authority shall 'hold a public hearing on any major project, in order to receive information, factual evidence and public reaction subject to the following provisions:

(1) The hearing, if requested, shall be held at least fifteen (15) days prior to the date of any vote by the Commissioners relating to the major project.

(2) At the public hearing all interested persons shall be given a fair and reasonable opportunity to be heard, subject to the power of a majority of the Commissioners present to exercise such control over the conduct of the hearing, including, without limitation, the setting of equitable time limitations, as may be in the public interest.

(3) A public hearing request shall be deemed meritorious if it exhibits a familiarity with the proposed major project and a reasoned statement of the major project's probable impact.

§1726. Legislative Approval of Major Projects.

The Delaware River and Bay Authority shall not undertake any major project (as defined in Article I/ of the Delaware-New Jersey Compact set out in §1701 of this title), to be located in the State of Delaware or in the Delaware River or Bay, without having first secured legislative authorization and approval of each specific major project or part thereof pursuant to an Act of the General Assembly, passed with the concurrence of three-fourths of all the members elected to each Nouse. Upon the request of any member of the General Assembly, the Delaware River and Bay Authority shall provide copies of all written reports or studies prepared or obtained by the Authority and any written comments submitted by members of the public with respect to the major project. In addition to such state legislative approval, any agreement or agreements entered into (pursuant to Article XVII of the Delaware-New Jersey Compact set out in §1701 of this Title) between the Delaware River and Bay Authority and the city, town, municipality or other political subdivision in which any project, other than a crossing, is to be located must (i) be in accordance with and subject to any and all land use laws including, but not limited to, zoning codes and subdivision and land development regulations for the respective political subdivisions, and any other local laws, resolutions, ordinances or rules and regulations which may apply; and (ii) be approved by the local government, and such approval shall be according to the laws, regulations, standards, and practices of such municipality or county government.

§1727. Legislative Approval of the Condemnation of Lands Devoted to Public Use.

The Delaware River and Bay Authority shall not exercise its power of eminent domain to condemn any property, devoted to a public use, of the State of Delaware, or any municipality, county, local government, agency, public authority or commission thereof, or any one or more of them, for any purpose other than a crossing without having first secured legislative authorization and approval of each specific condemnation of property by Act of the General Assembly.

§1728. Volume Discount Bridge Toll Rates.

The Delaware River and Bay Authority shall not increase any rate of bridge toll charged as a volume discount rate from the rate in effect on the earlier of the effective date of the legislation amending the Delaware•New Jersey Compact as adopted by

(i) the 135th Delaware General Assembly or (II) the New Jersey Legislature, for a period of ten years following such date, if the increase would cause such volume discount rate to exceed twenty-five (25%) of the basic toll rate charged by the Authority for individual bridge crossings by passenger automobiles, provided that the Authority may raise such volume discount rate in excess of this twenty-five percent (25%) limitation to the extent that such increase Is determined by the Authority to be reasonably necessary for the protection of the Authority's bondholders in accordance with Article XI of the Delaware-New Jersey Compact."

Section II. Amend subchapter II, Chapter 60, Title 7 of the Delaware Code by adding Section 6036 providing as follows:

"6036. Projects of State Significance.

The Department shall adopt objective standards and criteria to identify "projects of state significance" which standards and criteria shall be used by the Department in evaluating projects in the State of Delaware requiring the review or approval of the Department. The process to be followed by the Department In the adoption of said objective standards and criteria shall include the following:

(a) In making the determination of whether any proposed project is a project of state significance, the Department shall consider, without limitation, the following factors:

(1) Environmental impact, including, without limitation, probable air, land and water pollution likely to be generated by the proposed use under normal operating conditions and as the result of mechanical malfunction and human error; likely destruction of wetlands and flora and fauna; impact and effect of site preparation and facility operations on land erosion, drainage of the area in question, especially as it relates to flood control, and the quality and quantity of surface and ground water resources, such as the use of water for processing, cooling, effluent removal and other purposes; and the likelihood of generation of glare, heat, noise, vibration, radiation, electromagnetic interference and obnoxious odors.

(2) Economic effect, Including, without limitation, the number of jobs created and the income which will be generated by the wages and salaries of these jobs in relation to the amount of land required, and the amount of tax revenues potentially accruing to State and local government.

(3) Effect on neighboring land uses including, without limitation, effect on public access to all State surface waters, effect on recreational areas and effect on adjacent residential and agricultural areas.

(b) The Secretary shall further elaborate on the definition of "heavy Industry" in accordance with Section 7005(c) of Title 7. The Secretary shall delineate "heavy industry of State significance" as part of this process, which shall be a sub-category of projects of State significance. Heavy industry uses of any kind, Including heavy industry of State significance, not in operation on June 2B, 197) shall be prohibited in the coastal zone and no permits may be issued therefor.

(c) All agencies of State government shall assist the Department in developing objective standards and criteria to Identify projects of State significance and shall provide such information as the Department requests. The Department shall develop regulations specifying the objective standards and criteria which are to be used to identify projects of State significance and shall make such regulations available for public review no later than nine months after the effective date of this legislation. The Department shall hold a public hearing on said regulations and shall announce such hearing by publication in a newspaper of general circulation in each county of the State. The Department shall adopt regulations specifying the objective standards and criteria for identifying projects of State significance, with exception of heavy industry of State significance, no later than thirteen months after the effective date of this legislation. The Department shall submit to the State Coastal Zone Industrial Control Board standards and criteria for identifying heavy industry of State significance for adoption no later than eleven months after the effective date of this legislation. The State Coastal Zone Industrial Control Board shall adopt said standards and criteria no later than thirteen months after the effective date of this legislation."

Section III. This Act shall become effective upon the approval by the Congress of the United States of the Act entitled AN ACT TO AMEND SECTION 1701, TITLE 17 OF THE DELAWARE CODE, THE DELAWARE-NEW JERSEY COMPACT CREATING THE DELAWARE RIVER AND BAY AUTHORITY", which is commonly known as House Substitute No. 1 for House Bill No. 338 of the 135th General Assembly of the State of Delaware.

Approved June 28, 1990.