CHAPTER 389

FORMERLY

HOUSE BILL NO. 452

AS AMENDED BY

HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO TAX DITCHES.

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

Section 1. Amend Subchapter 1, Chapter 41, Title 7, Delaware Code by adding a new Section to read as follows:

Ҥ 4105. Limitation of easement or right-of-way.

(a) Once a tax ditch has been constructed, any right-of-way for the construction and major maintenance of the tax ditch – provided such has been created pursuant to this Chapter – and including tax ditches where rights-of-way were previously defined as ‘adequate’ or ‘sufficient’ – unless previously modified by a change to the Court Order, shall have the maximum extent defined as follows:

(1) Tax ditches with a designed 0’-4’ bottom width – 80’ from top of bank and to include the cross-section of the ditch; or the existing construction right-of-way, whichever is less.

(2) Tax ditches with a designed 4’-10’ bottom width – 120’ from top of bank and to include the cross-section of the ditch; or the existing construction right-of-way whichever is less.

(3) Tax ditches with a designed bottom width greater than 10’ – existing construction and major maintenance right-of-way as filed in the original Court Order.

(b) No change to the minor maintenance right-of-way is necessary provided such has been otherwise created pursuant to this Chapter.

(c) The reference point for all tax ditch rights-of-way that are established or modified as a result of this legislation or future actions is the nearest top of ditch bank. The ‘Top of Ditch Bank’ is the point where the side slope of the ditch intersects the existing grade of the adjacent land. For ditch sections that have been piped, the point of references shall be the centerline of the pipe.

(d) An additional deferment of the timeline for the recordation process for certifying rights-of-way as set forth in amendments contained in § 4195(b), Title 7, Delaware Code and as extended by SCR No. 27 of the 144th General Assembly shall be granted until 180 days after the effective date of this law, which shall be upon enactment.

(e) For purposes of this Chapter:

(1) ‘Construction and major maintenance right-of-way’ means the right-of-way created by this Chapter for the purpose of construction/reconstruction of the tax ditch, to allow for the piling of debris and to allow spoil to be leveled as part of the construction operations and major maintenance activities including ‘dipping out’ and/or disposal of spoils.

(2) ‘Minor maintenance right-of-way” means the right-of-way created under this Chapter for the purpose of maintenance activities that include but are not limited to inspection, mowing, use of specialized equipment for vegetative management (i.e. herbicide applications), removal of debris and obstructions, pipe repairs and installation of crossings for access.”.

Section 2. Amend § 4186, Chapter 41, Title 7, Delaware Code by adding the following new paragraph “(d)”:

“(d) As of the effective date of this Act, if a permanent structure, whether existing or approved for construction, including but not limited to any residential, agricultural, or commercial structure, or any associated permanent accessory structure or septic system, driveway or parking area associated therewith still are found to be within a tax ditch right-of-way; that structure is exempt from the provisions of this Chapter as a ‘Legal Non-Conforming Use’.”.

Section 3. Amend § 4189(2), Chapter 41, Title 7, Delaware Code by designating the existing paragraph as paragraph “2(a)” and by adding a new paragraph “(b)” to read as follows:

“2(b) The Division of Soil and Water Conservation shall be responsible for assuring that any change to a Court Order to a tax ditch or right-of-way pursuant to this chapter shall be recorded in the Prothonotary’s Office. The landowner of any property upon which a change to a Court Order has been made to any tax ditch or right-of-way pursuant to this chapter shall be responsible for assuring that such change is filed with the Recorder of Deeds in the county or counties where the parcel subject to the right-of-way is located.”.

Approved July 17, 2008