CHAPTER 246

FORMERLY

SENATE BILL NO. 254

AN ACT TO AMEND CHAPTER 41, TITLE 7, DELAWARE CODE RELATING TO DRAINAGE OF LANDS; TAX DITCHES.

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

Section 1. Amend the title of the Chapter 41, Delaware Code, by striking the caption in its entirety and substituting in lieu thereof a new caption to read as follows:

"CHAPTER 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES"

Section 2. Amend Section 4101, Chapter 41, Title 7 of the Delaware Code, by striking the phrase "low, wet, swampy or overflowed lands or".

Section 3. Amend Section 4101, Chapter 41, Title 7 of the Delaware Code, by striking the phrase "subject to overflow" and substituting in lieu thereof ", and the management of water for resource conservation".

Section 4. Amend Section 4102, Chapter 41, Title 7 of the Delaware Code, by striking the word "drainage" and substituting in lieu thereof "tax ditch".

Section 5. Amend Section 4102, Chapter 41, Title 7 of the Delaware Code, by inserting the phrase "and management" following the word "conservation".

Section 6. Amend Section 4103(1), Chapter 41, Title 7 of the Delaware Code, by striking the phrase "draining one's lands into" and substituting in lieu thereof "participating in a cooperative system for the management of water from one's lands by".

Section 7. Amend Section 4103, Chapter 41, Title 7 of the Delaware Code, by appending the following sections to the end of the section:

" (5) 'Flooding' means the occurrence of damaging, excess surface water. The occurrence of

surface water for beneficial uses is a component of water management, not flooding.

(6) 'Water management' means the removal, storage, or application of water by intentional means, including but not limited to management methods using drains, channels, culverts, structures for water level control, and dams."

Section 8, Amend Section 4106 (a), Chapter 41, Title 7 of the Delaware Code, by inserting, following the phrase "knowledge of', the phrase "water management including" and additionally inserting , following the phrase "drainage problems", the phrase "and their impacts to natural resources".

Section 9. Amend Section 4107, Chapter 41, Title 7 of the Delaware Code, by striking the phrase "area to be drained by" and substituting in lieu thereof the phrase "boundary of".

Section 10. Amend Section 4117 (a), Chapter 41, Title 7 of the Delaware Code, by inserting , following the first occurrence of the word "flooding", the phrase "or the waters of their lands to be managed".

Section 11. Amend Section 4117 (a), Chapter 41, Title 7 of the Delaware Code, by striking the second occurrence of the phrase "to be drained or protected from flooding," and substituting in lieu thereof the word "involved".

Section 12. Amend Section 4118, Chapter 41, Title 7 of the Delaware Code, by striking the phrase "low, wet, swampy or overflowed lands or" and inserting, following the phrase "lands subject to overflow", the phrase "or in need of water management".

Section 13. Amend Section 4118, Chapter 41, Title 7 of the Delaware Code, by striking, following the phrase "Whereas the draining", the word "of' and substituting in lieu thereof the phrase "and the prevention of flooding of said lands, and/or the management of water for resource conservation on".

Section 14. Amend Section 4121, Chapter 41, Title 7 of the Delaware Cod; by striking the second sentence in its entirety and substituting therein the following:

"If the petition is in the prescribed form and has been properly executed, the board shall immediately no* the Division of Soil and Water Conservation, and by virtue of such action shall have made available to it the services of the Department of Natural Resources and Environmental Control to assist it with the investigation concerning the possible formation of the tax ditch."

Section 15. Amend Section 4123, Chapter 41, Title 7 of the Delaware Code, by striking the second sentence in its entirety.

Section 16. Amend Section 4125(a), Chapter 41, Title 7 of the Delaware Code, by striking the phrase "to be drained or protected from flooding' and substituting in lieu thereof the word "involved".

Section 17. Amend Section 4126(a), Chapter 41, Title 7 of the Delaware Code, by striking in the first sentence the phrase "to be drained or protected from flooding" and substituting in lieu thereof the phrase "that may be included in the tax ditch".

Section 18. Amend Section 4126(a), Chapter 41, Title 7 of the Delaware Code, by

inserting, prior to the second occurrence of the word "sizes", the word "approximate".

Section 19. Amend Section 4126(a), Chapter 41, Title 7 of the Delaware Code, by striking the phrase "the watershed of'.

Section 20. Amend Section 4126(a), Chapter 41, Title 7 of the Delaware Code, by striking the phrase "said watershed" and substituting in lieu thereof "the tax ditch".

Section 21. Amend Section 4126(a), Chapter 41, Title 7 of the Delaware Code, by striking the phrase "tax ditch watershed" and substituting in lieu thereof the phrase "tax ditch".

Section 22. Amend Section 4126(6), Chapter 41, Title 7 of the Delaware Code, by striking the phrase "to be drained or protected from flooding" and substituting in lieu thereof "involved".

Section 23. Amend Section 4130(3)d, Chapter 41, Title 7 of the Delaware Code, by striking the phrase "watershed or area proposed to be drained".

Section 24. Amend Section 4130(3)e, Chapter 41, Title 7 of the Delaware Code, by striking the word "watershed". Section 25. Amend Section 4131, Chapter 41, Title 7 of the Delaware Code, by striking in the first sentence the phrase "to be drained or protected from flooding" and substituting in lieu thereof the word "involved".

Section 26. Amend Section 4131, Chapter 41, Title 7 of the Delaware Code, by striking the second sentence in its entirety and substituting in lieu thereof the following:

"The notice shall be mailed by first-class mail at least 20 days prior to the hearing and shall designate the time and place thereof."

Section 27, Amend Section 4131, Chapter 41, Title 7 of the Delaware Code, by inserting in the last sentence, following the word "hearing" the word "date".

Section 28, Amend Section 4132, Chapter 41, Title 7 of the Delaware Code, by striking in the third sentence the phrase "to a fixed future date".

Section 29. Amend Section 4132, Chapter 41, Title 7 of the Delaware Code, by inserting after the third sentence the following:

"The hearing may be adjourned to a fixed future date with no additional notification required or adjourned to an unspecified future date for which the notification and display procedures of § 4131 of this title will again apply."

Section 30. Amend Section 4133, Chapter 41, Title 7 of the Delaware Code, by striking in the first sentence the phrase "to be drained or prevented from flooding" and substituting in lieu thereof the word "involved".

Section 31. Amend Section 4133(3), Chapter 41, Title 7 of the Delaware Code, by striking the phrase "provided with a direct drainage outlet into" and substituting in lieu thereof the phrase "directly or indirectly affected by".

Section 32. Amend Section 4136(c), Chapter 41, Title 7 of the Delaware Code, by striking in the first sentence the phrase "to be drained or prevented from flooding" and substituting in lieu thereof the word "involved".

Section 33. Amend Section 4136(c), Chapter 41, Title 7 of the Delaware Code, by inserting after the first sentence the following:

"Notice of the final hearing shall also be given to landowners involved by first class mail. This notice shall be mailed not less than 15 days before the time of the hearing."

Section 34. Amend Section 4137, Chapter 41, Title 7 of the Delaware Code, by striking the first sentence and substituting in lieu thereof the following:

"At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file his objection in writing to the report of the board of ditch commissioners."

Section 35. Amend Section 4137, Chapter 41, Title 7 of the Delaware Code, by inserting following the second sentence the following:

"Damages to any one landowner shall not be grounds for denying the petition, but may be used to adjust the assessment base of that property or the damages to be paid to that landowner and shall be considered as part of the total cost of the proposed tax ditch."

Section 36. Amend Section 4137, Chapter 41, Title 7 of the Delaware Code, by striking in the last sentence the word "filed" and substituting in lieu thereof the word "presented".

Section 37. Amend Section 4142, Chapter 41, Title 7 of the Delaware Code, by striking the phrase "to be drained" and substituting in lieu thereof the word "involved".

Section 38. Amend Section 4152(b), Chapter 41, Title 7 of the Delaware Code, by striking in its entirety and re-label the next subsection "(c)" to "(b)".

Section 39. Amend Section 4156(c), Chapter 41, Title 7 of the Delaware Code, by striking in its entirety and substituting therein the following:

"(c) In the event that any tax ditch officer dies, resigns, ceases to be one of the taxables, or is removed from office, the remaining ditch officers shall within 60 days, appoint a taxable to serve the remainder of the term of such officer. However, except in the case of death or removal froni office, each tax ditch officer shall continue to serve until his successor has been appointed."

Section 40. Amend Section 4159, Chapter 41, Title 7 of the Delaware Code, by striking in the first sentence the phrase ", which shall be held in January".

Section 41. Amend Section 4161(2), Chapter 41, Title 7 of the Delaware Code, by inserting after the word "ditch" the phrase ", and suits against the tax ditch shall be governed by 10 DEL. C. Chapter 40, Subchapter I".

Section 42. Amend Section 4167, Chapter 41, Title 7 of the Delaware Code, by adding to the end thereof the following sentence:

"The tax ditch shall indemnify the ditch managers or other officers in accordance with 10 DEL. C. § 4003 for all tort claims."

Section 43. Amend Section 4186, Chapter 41, Title 7 of the Delaware Code, by striking each occurrence of the words "drainage system" and substituting therein the words "tax ditch".

Section 44. Amend Section 4187, Chapter 41, Title 7 of the Delaware Code, by striking "area to be drained" substituting therein "tax ditch".

Section 45. Amend Section 4188(b), Chapter 41, Title 7 of the Delaware Code, by striking in the first sentence the phrase "landowner drains, directly or indirectly into any part of a tax ditch, land which is not within the drainage area of the tax ditch as established in the ditch order and which was not assessed as part of the tax ditch, or which was not assessed to the prong or part of the tax ditch into which said land is drained" and substitute in lieu thereof "landowner, directly or indirectly, alters his lands to utilize any part of a tax ditch to benefit land which is not within the original boundary of the tax ditch as established in the ditch order and which was not assessed as part of the tax ditch, or which was not assessed to the prong or part of the tax ditch utilized by the alteration"

Section 46. Amend Section 4189, Chapter 41, Title 7 of the Delaware Code, by striking in the first sentence the number "1" and substituting in lieu thereof the word "one".

Section 47. Amend Section 4189(1), Chapter 41, Title 7 of the Delaware Code, by striking in the second sentence "4" and substituting in lieu thereof "3".

Section 48. Amend Section 4189(1), Chapter 41, Title 7 of the Delaware Code, by inserting in the third sentence the word "and" after "proper county," and following the word "ditch" strike the phrase "and file 1 copy with the Department of Natural Resources and Environmental Control".

Section 49. Amend Section 4189(2), Chapter 41, Title 7 of the Delaware Code, by striking in the first sentence "4" and substituting in lieu thereof "3".

Section 50. Amend Section 4189(2), Chapter 41, Title 7 of the Delaware Code, by inserting in the second sentence the word "and" after "proper county" and following the word "ditch," strike the phrase "and file I copy with the Department of Natural Resources and Environmental Control".

Approved July 18, 1995