CHAPTER 153

FORMERLY

HOUSE BILL NO. 229

AS AMENDED BY

HOUSE AMENDMENT NOS. 1 & 2

AN ACT TO AMEND TITLE 7, TITLE 23, AND TITLE 29 OF THE DELAWARE CODE RELATING TO ARCHAEOLOGICAL RESOURCES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each house thereof concurring therein):

Section 1. Amend Chapter 54 of Title 7 of the Delaware Code by striking §§5401 and 5402 in their entireties.

Section 2. Amend Title 7 of the Delaware Code by striking Chapter 53 in its entirety and by substituting in lieu thereof the following:

“CHAPTER 53. ARCHAEOLOGICAL RESOURCES IN THE STATE

Subchapter I. General Provisions

§ 5301. Duties of the Department of State.

The duties of the Department of State relative to archaeology within the State are as follows:

(1) To sponsor, engage in and direct archaeological research in this State and to encourage and coordinate archaeological research undertaken by any archaeological society, institution, agency or association of the State;

(2) To encourage cooperation among State agencies in the preservation, protection and excavation of archaeological resources which have or may come into the custody of any other agency of this State;

(3) To protect and encourage the preservation of archaeological resources located on privately owned lands in this State;

(4) To recover and preserve archaeological resources discovered during the course of any public construction in this State, when deemed appropriate by the Director of the Division of Historical and Cultural Affairs of the Department of State, and when the discovery is not subject to federal laws or other state laws that may require an archaeological investigation be conducted;

(5) To cooperate with and assist the University of Delaware and other public institutions of this State in the preservation and protection of archaeological resources;

(6) To furnish materials and objects to the Delaware State Museum, and/or other museums in the State, suitable for demonstrating and interpreting the State’s history and heritage;

(7) To furnish exhibits and/or other materials to public and private schools of this State, and to assist in the instruction of students on the State’s history and heritage, and the discipline of archaeology;

(8) To cooperate with similar agencies and institutions of other states and the federal government for the general purpose of preserving archaeological resources of this State, and to ensure that all such activity of agencies and institutions is in the best interest of the State;

(9) To publish or otherwise disseminate information resulting from archaeological research conducted in this State;

(10) To enforce the laws regulating archaeological resources situated on state-owned or state-controlled lands, including subaqueous lands.

§ 5302. Rules, regulations and guidelines.

The Division of Historical and Cultural Affairs, with the approval of the Department of State, may formulate and adopt such rules, regulations, standards and guidelines as it deems necessary for the effective execution of its purposes under this chapter.

Subchapter II. Archaeological Resources in or on State Lands

§ 5303. Purposes.

(a) The General Assembly finds that:

(1) Archaeological resources in or on State lands are an integral and irreplaceable part of the State’s heritage;

(2) Archaeological resources are valued as non-renewable resources that provide educational, scientific, social and economic benefits for all citizens;

(3) These resources are increasingly endangered because of their commercial attractiveness and the effects of natural forces and human intervention;

(4) Existing State laws do not provide adequate protection to prevent the loss and destruction of these archaeological resources resulting from such causes; and

(5) There is a wealth of archaeological information which has been legally obtained by private individuals for non-commercial purposes and which could voluntarily be made available to professional archaeological institutions to further the educational, scientific, social and economic benefits for all citizens.

(b) The purpose of this subchapter is to secure, for the present and future benefit of the people of Delaware, the protection of archaeological resources which are in or on State lands, including subaqueous lands, to increase awareness and encourage meaningful stewardship of the State’s archaeological heritage, and to foster increased cooperation and exchange of information among governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data.

§ 5304. Definitions.

(a) ‘Abandoned shipwreck’ means any shipwreck to which title has been voluntarily given up by the owner or by the owner not taking action after a wreck incident to claim title.

(b) ‘Archaeological investigation’ means any surface collection, subsurface tests, excavation, or other activity that results in the disturbance or removal of archaeological resources.

(c) ‘Archaeological resource’ means any artifact or material remains of past human life or activities which are at least 50 years old and are of archaeological interest, including but not limited to pottery, basketry, whole or fragmentary tools, implements, containers, weapons, weapon projectiles, by-products resulting from manufacture or use of human-made or natural materials, surface or subsurface structures or portions thereof, earthworks, fortifications, ceremonial structures or objects, cooking pits, refuse pits, hearths, kilns, post molds, middens, and shipwrecks; the site, location, or context in which such artifacts or material remains are situated; and any portion or piece of any of the foregoing.

(d) ‘Department’ means the Department of State.

(e) ‘Director’ means the Director of the Division of Historical and Cultural Affairs of the Department of State.

(f) ‘Division’ means the Division of Historical and Cultural Affairs of the Department of State.

(g) ‘Embedded’ means firmly affixed in the subaqueous lands such that the use of tools of excavation is required in order to move bottom sediments to gain access to a shipwreck, its cargo and any part thereof, or to any other archaeological resource.

(h) ‘Historic shipwreck’ means a shipwreck that is listed in or eligible for listing in the National Register of Historic Places.

(i) ‘National Register of Historic Places’ means the nation’s official list of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture maintained by the United States National Park Service, Department of the Interior.

(j) ‘Of archaeological interest’ means capable of providing scientific or humanistic understandings of past human behavior, cultural adaptation, and related topics through the application of scientific or scholarly techniques such as controlled observation, contextual measurement, controlled collection, analysis, interpretation and explanation.

(k) ‘Ordinary high water mark’ means, for nontidal waters, the line at which the presence and action of water are so continuous in all ordinary years so as to leave a distinct mark on a bank either by erosion or destruction of terrestrial (nonaquatic) vegetation, or that can be determined by other physical or biological means.

(l) ‘Person’ means an individual, corporation, partnership, trust, institution, association, or any other private entity, or any officer or employee, agent, department, or instrumentality of the United States or of any state or political subdivision thereof.

(m) ‘Qualified person’ means a person meeting the United States Secretary of the Interior’s Professional Qualification Standards for Archeology (48 FR 44716; 36 CFR Part 61), as determined by the Director.

(n) ‘Secretary’ means the Secretary of State.

(o) ‘Shipwreck’ means a vessel or wreck, its cargo and other contents

(p) ‘State lands’ means any lands owned or controlled by the State of Delaware, including subaqueous lands.

(q) ‘Subaqueous lands’ means submerged lands and tidelands.

(r) ‘Submerged lands’ means:

(1) lands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of the State;

(2) lands lying below the plane of the ordinary high water mark of nontidal rivers, streams, lakes, ponds, bays and inlets within the boundaries of the State as established by law; and

(3) specific manmade lakes or ponds as designated by the Secretary of the Department of Natural Resources and Environmental Control.

(s) ‘Tidelands’ means lands lying between the line of mean high water and the line of mean low water.

(t) ‘Terrestrial lands’ means lands owned or controlled by the State lying above the line of mean low tide.

§ 5305. Authority to enhance, preserve and protect archaeological resources.

(a) The title to all archaeological resources in or on State lands, including those in or on subaqueous lands, is hereby declared to be under the exclusive domain and control of the State of Delaware. Further , as provided for under the Abandoned Shipwreck Act (Pub. L. 100-298; 43 U.S.C. 2101-2106), and Guidelines therefore (55 FR 50115, 56 FR 7875, 55 FR 51528):

(1) the State has title to all shipwrecks embedded in subaqueous lands of this State; and

(2) the State has title to every shipwreck located on the State’s subaqueous lands, if the shipwreck is listed in or determined eligible for listing in the National Register of Historic Places (16 U.S.C. 470a; 33 CFR Part 63; 36 CFR Part 60).

(b) The State’s authority to enhance, preserve and protect archaeological resources in or on State lands is vested solely in the Department.

(c) Notwithstanding the jurisdictional provisions of 7 Del. C. § 7203, the Department is the custodian of archaeological resources in or on the State's subaqueous lands, including but not limited to shipwrecks to which the State has title under § 5305(a) of this subchapter.

§ 5306. Jurisdiction and inter-agency cooperation.

(a) When an archaeological resource is located within the jurisdiction of another State agency, the Division shall coordinate the review and evaluation of permit applications issued pursuant to § 5309 of this chapter to ensure conformance with all applicable laws and regulations.

(b) Any agency whose activities may affect state-owned shipwrecks shall consult with the Division, provide the Division the opportunity to review and comment on the proposed activity, and take into account the effects of the activity on such resources. This review will not substitute for consultation under Section 106 of the National Historic Preservation Act or Section 307 of the Coastal Zone Management Act, if applicable.

(c) The Division may enter into agreements with State land managing agencies for the purposes of enhancing, preserving, protecting and promoting good stewardship of archaeological resources located in or on State lands managed by those agencies.

(d) All State land managing agencies shall cooperate with the Division in implementing the provisions of this chapter.

(e) All State and local law enforcement agencies and officers are hereby empowered to, and shall assist the Division in carrying out its duties under this chapter.

§ 5307. Restriction or closure of public access.

(a) The Division may temporarily restrict or close public access to any archaeological resource and its surrounding location or context in or on State lands, including subaqueous lands , and including public beaches notwithstanding the jurisdictional provisions of § 6803 of this title, whenever:

(1) in the judgment of the Director a condition constituting an imminent threat to an archaeological resource exists, which may cause harm to the qualities that make the resource of archaeological interest. Such threats may be due to the effects of natural forces or human intervention;

(2) the Director finds that an archaeological investigation is needed to determine if a resource is of archaeological interest; and/or

(3) the Director has issued a permit for archaeological investigation of an archaeological resource under § 5309 of this chapter, or the Division is conducting an archaeological investigation of an archaeological resource .

(b) The Director shall consult with the State land managing agency with jurisdiction over the lands in or on which the archaeological resource is located to define: the area to be restricted or closed; the anticipated period of the restriction or closure; how the restriction or closure will be posted to provide public notice ; how the restriction or closure will be monitored or enforced; and, if the restriction or closure occurs pursuant to subsection (a)(1) of this section, the steps that the Director and the other State land managing agency must take to alleviate the threat to the archaeological resource.

(c) The period of a restriction or closure under this section may not exceed 90 days , unless occurring pursuant to subsection (a)(3) of this section, in which case the period of the restriction or closure is the term of the permit. The Director may, with the approval of the Secretary of State, extend a period of restriction or closure.

(1) The Director shall first consult with the State land managing agency in or on which the archaeological resource is located, as to the need for extending the period; and

(2) When occurring pursuant to subsection (a)(1) of this section, the Director shall hold a public hearing; the Director shall take into account the comm ents provided at the public hearing, and within 15 days notify local governments and the public of his or her decision on whether or not to extend the restriction or closure of access . The Director shall publish that decision in a daily newspaper of statewide circulation and in a newspaper of general circulation in the county in which the restriction or closure will occur.

(d) The Director may, with the approval of the Secretary of State, indefinitely restrict access to and recovery of certain shipwrecks to which the State holds title or terrestrial sites in or on State lands that have particular archaeological and/or environmental values.

(e) The Director may permit public access to certain shipwrecks to which the State holds title with appropriate restrictions to protect their archaeological and/or environmental values.

(f) Any person whose interest is substantially affected may appeal a decision of the Division made pursuant to this subsection regarding access to an archaeological resource. The appeal must be made to the Secretary, and filed with the Secretary within 60 days from the issuance of the Division's decision. The appeal must be conducted in accordance with the Administrative Procedures Act, 29 Del. C. § 10101 et seq. If an appellant exhausts all administrative remedies, the appellant is entitled to judicial review in accordance with Subchapter V of the Administrative Procedures Act.

§ 5308. Permit required.

No person may excavate, collect, salvage, recover, remove, damage, or otherwise alter or deface any archaeological resource or its surrounding location or context, located in or on State lands, including subaqueous lands, without first having obtained a permit from the Division.

§ 5309. Permit application.

(a) Any qualified person may apply to the Division for a permit to conduct archaeological investigations on State lands. The application must contain information that the Division considers necessary, including information concerning the time, scope, location, specific purpose of the proposed work, and proposed disposition of recovered materials and associated records.

(b) The Division shall issue a permit pursuant to an application under subsection (a) of this section if the Division finds that:

(1) The applicant is qualified to carry out the permitted activity;

(2) The proposed activity is undertaken for the purpose of furthering archaeological knowledge in the public interest;

(3) The archaeological resources which are excavated or removed from State lands, including subaqueous lands, will remain the property of the State of Delaware. Those resources and copies of associated archaeological records and data will be preserved by a qualified university, museum, or other scientific or educational institution, except as may be provided for under a shipwreck management program established pursuant to § 5316 of this chapter;

(4) The activity pursuant to the permit is not inconsistent with any management plan applicable to the State lands concerned; and

(5) The proposed activity will not interfere with archaeological investigations being conducted or planned by the Division.

(c) A permit may contain any terms, conditions, or limitations which the Division considers necessary to achieve the intent of the chapter in the best interest of the State. A permit must identify the person responsible for carrying out the archaeological investigation. The Division may set reasonable permit fees that approximate and reasonably reflect the costs necessary to defray the expenses of the Division for its services. Any fees collected by the Division under this section are hereby appropriated to the Division to carry out the purposes of this chapter.

(d) The Division may renew a permit upon or prior to expiration, upon such terms as the applicant and the Division may mutually agree. Holders of permits are responsible for obtaining permission of any federal agencies having jurisdiction, including but not limited to the United States Coast Guard, the United States Department of the Navy and the United States Army Corps of Engineers, and of State agencies having jurisdiction, including but not limited to the Department of Natural Resources and Environmental Control, prior to conducting any archaeological investigation on subaqueous or terrestrial state lands.

(e) The Division may suspend a permit issued under this chapter upon the determination that the permit holder has violated any provision of § 5312(a), (b), (c) or (d) of this chapter. The Division may revoke a permit upon the assessment of a civil penalty under § 5312(e) of this chapter against the permit holder, or upon the permit holder’s conviction under § 5312(f) of this chapter. The Division may suspend or revoke a permit if the permit holder has not substantially commenced or is not diligently pursuing the archaeological investigation.

(f) Any permit applicant or permit holder may appeal the denial, suspension, or revocation of a permit by the Division. An appeal must be made to the Secretary and filed with the Secretary within 60 days from the issuance of the Division's decision. The appeal must be conducted in accordance with the Administrative Procedures Act, 29 Del. C. § 10101 et seq. If an appellant exhausts all administrative remedies, the appellant is entitled to judicial review in accordance with Subchapter V of the Administrative Procedures Act.

§ 5310. Qualified repositories.

The University of Delaware and the Division of Historical and Cultural Affairs are designated as properly qualified repositories within the meaning of this chapter.

§ 5311. Repository of artifacts or material remains.

All artifacts or material remains found in or on State lands, including subaqueous lands, and related records resulting from research, surveys and excavation conducted under a permit must be deposited for permanent preservation in either the University of Delaware Department of Anthropology or the Division of Historical and Cultural Affairs, or in a qualified repository approved by the Director, except as may be provided for under a shipwreck management program established pursuant to § 5316 of this chapter .

§ 5312. Prohibited acts, criminal and civil penalties.

(a) A person may not excavate, collect, salvage, recover, remove, damage, or otherwise alter or deface any archaeological resource, or its surrounding location or context, located on State lands, including subaqueous lands, unless such activity is pursuant to a permit issued under § 5309 of this chapter.

(b) A person may not sell, transfer, exchange, transport, purchase, receive or offer to sell, transfer, exchange, transport, purchase or receive any archaeological resource as defined in § 5303 of this chapter, unless the Division specifically allows for such activity under a permit issued pursuant to § 5309 of this chapter and/or as may be provided for under a shipwreck management program established pursuant to § 5316 of this chapter.

(c) A person may not possess, use, or employ on lands owned or controlled by the State, including subaqueous lands, tools or devices designed, modified or commonly used for the excavation, collection, salvage, recovery or removal of archaeological resources or otherwise designed or modified for activities prohibited by this chapter, excluding individuals permitted or authorized to possess such tools and devices in accordance with the requirements of this chapter.

(d) A person may not knowingly make a false statement, representation or certification in any application for permits granted under this chapter.

(e) Whoever violates or counsels, procures, solicits, or employs another to violate (1) any prohibition contained in this chapter, (2) any condition or limitation in a permit issued pursuant to this chapter, or (3) any rule or regulation promulgated under this chapter shall, upon conviction, be sentenced to pay a fine of not less than $1000 but not exceeding $10,000, or to imprisonment of up to 30 days, or both. Each day of excavation, alteration, destruction, injury or other violation is considered a separate offense and is punishable as such. Unauthorized tools or devices seized from violators of subsection (c) of this section may be ordered forfeited to the State without compensation. Further, restitution may be ordered to compensate the State for the cost of remedying or remediating any violation of this chapter. The Superior Court has jurisdiction of offenses under this chapter.

(f) Whoever violates or counsels, procures, solicits, or employs another person to violate (1) any prohibition contained in this chapter, (2) any condition or limitation in a permit issued pursuant to this chapter, or (3) any rule or regulation promulgated hereunder shall be assessed a civil penalty of not less than $1000 but not exceeding $10,000. The Superior Court shall have jurisdiction of a violation in which a civil penalty is sought.

(g) Any expenses or civil penalties collected by the Division under this section may be allocated to the Division, subject to the approval of the Department, to carry out the purposes of this chapter.

§ 5313. Exemptions.

(a) The provisions of § 5308, § 5309, and § 5312(c) of this chapter do not apply to activities of State agencies which are:

(1) already subject to federal laws or regulations relating to archaeological resources , or

(2) not intended as archaeological activities, such as, but not limited to, surveying, environmental remediation, soil testing, construction, or property maintenance. State agencies are encouraged to advise the Division of any archaeological resources found during the course of such activities, pursuant to the letter or spirit of § 5306 of this chapter.

(b) This chapter does not apply to public use areas on lands along the Atlantic coast from Cape Henlopen south to the State line, situated between the mean low water line and the base of the primary dune, unless otherwise restricted or closed by the Director under the authority of § 5307 of this Chapter.

§ 5314. Confidentiality.

If the Director has reason to believe that disclosure of the exact location or nature of an archaeological resource would lead to vandalism, pilferage, damage, or otherwise pose a risk of harm to the resource or to the site at which the resource is located, regardless of ownership of the property, the Director may:

(1) elect not to disclose such information to the public;

(2) provide the public with only general information about the resource and/or its location, when notifying the public of a restriction or closure of access to a State archaeological resource under § 5307 of this chapter, or under provisions applicable to shipwrecks to which the State has title.

§ 5315. Cooperation with private individuals.

(a) The Division shall take any action necessary and consistent with the purposes of the chapter to foster and improve the communication, cooperation, and exchange of information between the Division and:

(1) private individuals having collections of archaeological resources and data which were obtained through legal means;

(2) professional archaeologists and associations of professional archaeologists concerned with the archaeological resources of Delaware and of the United States.

(b) In order to protect and preserve archaeological resources which are found on privately owned lands in this State, it is a declaration and statement of legislative intent that archaeological excavations on privately owned lands are discouraged, except in accordance with and pursuant to the spirit and policy of this chapter; and persons having knowledge of the location of archaeological resources in Delaware are encouraged to communicate such information to the Director or to the Chairperson of the Department of Anthropology of the University of Delaware.

§ 5316. Shipwreck Management Program.

The Division may establish a Shipwreck Management Program, in cooperation with other state and federal agencies experienced in the management of subaqueous lands and resources, to encourage the identification, protection, and, where appropriate, the recovery and disposition of abandoned shipwrecks embedded in or located on state-owned or state-controlled subaqueous lands. The Division is authorized to establish a professional staff for the purpose of implementing the Program.”.

Section 3. Amend Chapter 54, Title 7 of the Delaware Code by renaming “Chapter 54, Archaeological Activities” to read:

“Chapter 54. Unmarked Human Burials and Human Skeletal Remains”.

Section 4. Amend Chapter 54, Title 7 of the Delaware Code by striking “Subchapter I. General Provisions” and “Subchapter II. Archaeological Activities”; by redesignating §§5403 through 5411 as §5401 through 5409 respectively; and by deleting all references to Subchapters I and II.

Section 5. Amend §5401(1) (Purpose) by inserting the phrase “, including subaqueous lands,” between “State” and “except”; and by striking the phrase “except on federal land” and by substituting in lieu thereof the phrase “but excluding those found anywhere on federal land”.

Section 6. Amend §5409 (Penalties.) by changing the descriptive section heading from “Penalties.” to “Criminal penalties.”.

Section 7. Amend §5406(c) (Consultation, analysis and disposition.), Title 7 of the Delaware Code by striking “§5404(4)” where it appears in subsection (c) and by substituting in lieu thereof “§5402(4)”.

Section 8. Amend §5408(c) (Exceptions), Title 7 of the Delaware Code by striking “§5409(1)” where it appears in subsection (c) and by substituting in lieu thereof “§5407(1)”.

Section 9. Amend §5409 (Criminal penalties.), Title 7 of the Delaware Code by striking “§5409” and by substituting in lieu thereof “§5407”; and by striking the word “subchapter” at the end of §5409 and by substituting in lieu thereof the word “chapter”.

Section 10. Amend Chapter 54, Title 7 of the Delaware Code by adding thereto a new section to read:

Ҥ5410. Rules, regulations, standards, and guidelines.

The Division of Historical and Cultural Affairs may, with the approval of the Dept. of State, formulate and adopt such rules, regulations, standards, and guidelines as it considers necessary for the effective execution of its purposes under this chapter.”.

Section 11. Amend §6803(a), Title 7 of the Delaware Code by striking subsection (a) in its entirety and by substituting in lieu thereof the following:

“(a) Authority to enhance, preserve, and protect public and private beaches within the State is vested solely in the Department, except as pertains to archaeological resources on beaches, which are regulated by the Department of State, Division of Historical and Cultural Affairs pursuant to Chapter 53 of this title.”.

Section 12. Amend §7217, Title 7 of the Delaware Code by adding thereto a new subsection to read:

“(g) This chapter shall not apply to subaqueous archaeological resources and unmarked human burials and human skeletal remains, which are regulated by the Department of State, Division of Historical and Cultural Affairs pursuant to Chapters 53 and 54 of this title.”.

Section 13. Amend §1303, Title 23 of the Delaware Code by adding thereto a new subsection to read:

“(f) This section shall not apply to archaeological resources, including but not limited to shipwrecks embedded in or located on the State’s subaqueous lands, which are regulated by the Department of State, Division of Historical and Cultural Affairs pursuant to Chapter 53 of Title 7.”.

Section 14. Amend Subchapter II, Chapter 5, Title 29 of the Delaware Code by substituting the phrase “Sites, Objects and Archaeological Resources” for “Sites and Objects” where it appears in the descriptive heading of Subchapter II and in §551 of Chapter 5; the phrase “sites, objects or archaeological resources” for “sites or objects” where it appears in §552(b) of Chapter 5; and the phrase “site, object or archeological resource” for “site or object” where it appears in §554(d) of Chapter 5.

Section 15. Amend §551, Title 29 of the Delaware Code by inserting the phrase “, including archaeological resources in or on subaqueous lands pursuant to Chapter 53 of Title 7” between “this State” and “the Department”.

Section 16. Amend §8705, Title 29 of the Delaware Code by striking §8705(a) in its entirety and by substituting in lieu thereof the following:

Ҥ 8705. Division of Historical and Cultural Affairs.

(a) The Division of Historical and Cultural Affairs is established and shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:

(1) The Department of State pursuant to Subchapter II of Chapter 5 of this title relating to Historical Buildings, Sites, Objects and Archaeological Resources, and the State Museum pursuant to Subchapter III of Chapter 5 of this title; and pursuant to Chapter 53 of Title 7, relating to archaeological resources and activities in the State;

(2) The Lewes Memorial Commission;

(3) The Delaware Day Commission;

(4) The Portrait Commission;

(5) The Delaware Archaeological Board; and

(6) The Governor pursuant to Chapter 53 of Title 7 relating to granting permits to survey and excavate archaeological resources in the State.”.

Section 17. If any provision of this Act or the application thereof to any person or circumstance is held invalid, and invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 12, 2005