CHAPTER 421

FORMERLY

SENATE BILL NO. 258

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLES 7, 11, AND 23 OF THE DELAWARE CODE RELATING TO ENVIRONMENTAL VIOLATIONS.

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 1, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 103 Rules and regulations; expenditures; violations and penalty.

(d) Whoever violates any rule or regulation of the Department except those pertaining to deer or wild turkeys shall be guilty of a class D environmental misdemeanor violation for each offense. Whoever violates any rule or regulation of the Department pertaining to antlerless deer shall be guilty of a class C environmental misdemeanor violation for each offense. Whoever violates any rule or regulation of the Department pertaining to antlered deer shall be guilty of a class A environmental misdemeanor for each offense. Whoever violates any rule or regulation of the Department pertaining to wild turkeys shall be guilty of a class B environmental misdemeanor for each offense.

Section 2. Amend Chapter 5, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 532 Records to be kept by licensed fur dealers; inspection; violations and penalties.

(c) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation.

§ 545 Penalty.

Whoever violates this subchapter shall be fined guilty of a class D environmental misdemeanor violation for each offense.

§ 555 Permit to collect protected wildlife, finfish, shellfish or their nests or eggs for scientific, education or propagating purposes.

(f) Whoever violates this section or any rule and regulation adopted pursuant to this section shall be guilty of a class C environmental misdemeanor violation for each offense.

Section 3. Amend Chapter 7, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 707 Hunting or shooting from motor vehicle, boats or farm machinery prohibited; penalty.

(b) Whoever violates this section in the daytime, between sunrise and sunset, shall be guilty of a class C environmental misdemeanor violation for each offense. Whoever violates this section between sunset and sunrise of any day, shall be guilty of a class B environmental misdemeanor for each offense.

§ 710 Use of silencer on gun; penalty.

Whoever uses a silencer or noise-reducing contrivance on any gun, rifle or firearm when hunting for game or fowl, shall be guilty of a class C environmental misdemeanor violation.

§ 711 Hunting with automatic-loading gun prohibited; penalty.

(b) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation.

§ 713 Fire regulations; penalty.

(c) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation for each offense in addition to any other penalty that may be imposed for any damage caused by the setting of unlawful fires of any kind whatsoever.

§ 714 Trespassing; penalty.

Whoever enters upon the lands or waters of another within this State, without first obtaining permission to do so from the owner or lessee, for the purpose of hunting, trapping or fishing, shall be guilty of a class C environmental misdemeanor violation.

§ 715 Possession of protected wildlife; prohibitions.

(d) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation for each offense. In addition to being fined and/or imprisoned, the violator shall be fined $5.00 for each game bird, game fish and game animal caught or killed illegally, purchased or offered to purchase, sold, offered for sale, bartered or exchanged, or taken or killed or found in possession in excess of the bag limit.

§ 716 Hunting, fishing or trapping without a license; penalties.

Any person required by this title to obtain a license before hunting, trapping or fishing in this State and who hunts, traps or fishes without having obtained such license shall be guilty of a class C environmental misdemeanor violation.

§ 717 Frightening or harassing migratory birds; penalties.

Any person who shall frighten or harass migratory birds while at rest on the property of another by use of a rifle, shotgun or any other weapon, shall be guilty of a class C environmental misdemeanor violation.

§ 718 Requiring wearing of hunter orange in the hunting of deer; violation and penalty.

(d) Whoever violates this section shall be guilty of a class D environmental misdemeanor violation.

§ 719 Discharge of firearms on or near public roads and public rights-of-way; penalty.

(c) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation.

§ 723 Hunting or trapping in safety zones; penalty.

(d) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation.

§ 738 Erection and removal of booby, brush or stake blinds.

No booby, brush or stake blinds shall be erected sooner than 30 days prior to the open season for the hunting of wild water fowl and all such blinds shall be removed within 30 days after the close of said season. Whoever violates this section shall be guilty of a class D environmental misdemeanor violation for each offense.

§ 751 Muskrats driven from shelter by flood or freshet.

No person shall take, kill or capture, by any means whatever, any muskrat during the time of any flood or freshet, when such flood or freshet may cause any muskrat to leave its usual and accustomed place of shelter and protection.

Whoever violates this section shall be guilty of a class D environmental misdemeanor violation for each offense.

§ 752 Hunting muskrats with dog; penalty.

(b) Whoever violates this section shall be guilty of a class D environmental misdemeanor violation for each offense.

§ 753 Muskrat nailing; destroying or damaging muskrat house, den; penalties.

(b) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation for each muskrat house, nest, den, lair or refuge, dug into, torn down, removed, interfered with, destroyed or damaged in any way.

§ 754 Trespassing on property of another to kill muskrats; violations and penalties.

(a) Whoever enters into or upon, or trespasses upon the ways, marshes, lands or premises of another within this State, without first obtaining the consent of the owner or lessee thereof, for the purpose of taking, trapping, capturing or killing any muskrat in any manner whatsoever, shall be guilty of a class C environmental misdemeanor violation.

§ 755 Taking muskrat on public road or highway; penalties.

(b) Whoever violates this section shall be guilty of a class D environmental misdemeanor violation for each offense.

§ 756 Diving or box trap; penalty.

(b) Whoever violates this section shall be guilty of a class D environmental misdemeanor violation for each offense.

§ 757 Trapping muskrats or other fur-bearing animals adjacent to Broadkiln Creek without consent of landowner; penalty.

(b) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation for each offense.

§ 781 Taking or destroying terrapin eggs; penalty.

Whoever takes or destroys any terrapin eggs found, or collected, on or near the shore of any bay, river or stream in this State, where the water is salt, or upon any salt marsh, or beach, shall be guilty of a class D environmental misdemeanor violation. Anyone having possession of such eggs shall be deemed to have taken them there, unless that person proves the contrary.

§ 783 Terrapin taken or caught in Indian River or Rehoboth Bay — Use of dredges to take terrapin; penalty.

Whoever uses any dredge for the purpose of catching or taking terrapin in the Indian River or Rehoboth Bay, or waters adjacent thereto, shall be guilty of a class D environmental misdemeanor violation for each offense.

§ 790 Digging out or killing female fox or her young whelps; penalty.

(b) Whoever violates this section shall be guilty of a class C environmental misdemeanor violation for every female fox or whelp so dug or taken out of any den, or killed or caused to be killed.

§ 792 Legal limit on bullfrogs; penalty.

No person shall take or kill more than 24 bullfrogs in any 1 day or night, or have the same in that person's possession for more than 5 days after the close of the season for killing excepting when they are had in possession alive for scientific or propagating purposes. Whoever violates this section shall be guilty of a class D environmental misdemeanor violation.

Section 4. Amend Chapter 9, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 913 Sale, trade and/or barter of food fish.

(g) Any person who violates subsection (a), (b), (c), (d) or (f) of this section shall be fined not less than $500 for each violation guilty of a Class C environmental violation.

(h) Any person who violates subsection (e) of this section shall be fined not less than $25 for each violation guilty of a Class D environmental violation. Each food fish purchased, traded or bartered for shall constitute a separate violation.

§ 919 Menhaden fishing; penalties.

(i) Whoever violates this section shall be fined $2,500 for the first offense, and $5,000 for each offense thereafter guilty of a Class A environmental misdemeanor.

§ 926 Extracting oil or making fertilizer from food and game fish; penalty.

(b) Any person who violates this section shall be fined not less than $500 nor more than $1,000, plus the payment of costs, and for any subsequent violation of this section the person shall be fined $2,500, plus payment of costs guilty of a class B environmental misdemeanor.

§ 936 Enforcement; penalties; seizure and forfeiture of illegally used property; injunctions; false statements.

(1) If there has been a violation of any provisions in §§ 910, 917, 918, 920, 921, 922, 923, 924, 925, and/or 928 of this title or any regulation promulgated by the Department or permit issued by the Division relating to fishing equipment or methods of fishing, each violator thereof shall be fined not less than $50 nor more than $200 for each violation, plus the payment of all costs guilty of a Class D environmental violation. For any second violation of any provisions in §§ 910, 917, 918, 920, 921, 922, 923, 924, 925 and/or 928 of this title or any regulation promulgated by the Department or permit issued by the Division relating to fishing equipment or methods of fishing, each violator thereof shall be fined not less than $200 nor more than $1,000, plus the payment of all costs guilty of a Class C environmental violation. For any subsequent violation of any provisions in §§ 910, 917, 918, 920, 921, 922, 923, 924, 925 and/or 928 of this title or any regulation promulgated by the Department or permit issued by the Division relating to fishing equipment or methods of fishing, each violator thereof shall be fined not less than $500 nor more than $1,500 plus the payment of all costs guilty of a Class B environmental misdemeanor;

(2) If there has been a violation of any section of this chapter or any regulation promulgated by the Department or permit issued by the Division other than a provision of §§ 910, 913, 917, 918, 920, 921, 922, 923, 924, 925, 926, 927 and/or 928 of this title or regulation promulgated by the Department or permit issued by the Division relating to fishing equipment or method of fishing, each violator thereof shall be fined not less than $25 nor more than $100, plus the payment of all costs guilty of a Class D environmental violation. For any subsequent violation of any provision of any section of this chapter or any regulation promulgated by the Department or permit issued by the Division, other than a provision of §§ 910, 913, 917, 918, 920, 921, 922, 923, 924, 925, 926, 927 and/or 928 of this title and/or any regulation promulgated by the Department or permit issued by the Division relating to fishing equipment or method of fishing within 2 years of any previous violation thereof, each violator shall be fined not less than $100 nor more than $500, plus the payment of all costs. For each violation of any section of this chapter, any regulation promulgated by the Department pursuant thereto, or any permit issued by the Division which involves the illegal taking of a striped bass in the tidal waters of this State, there shall be imposed a fine of not less than $100 nor more than $500 guilty of a Class C environmental violation. Each striped bass illegally taken shall constitute a separate violation;

(d) Any person, organization, group, business, corporation, partnership or any other type of entity that knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under any provision of this chapter, any permit or any regulation promulgated or issued under this chapter shall be fined not less than $1,000, plus the payment of all costs, and may be imprisoned for up to 30 days or may be fined and imprisoned. shall be guilty of a class A misdemeanor. The Superior Court Justice of the Peace Courts shall have jurisdiction over offenses under this subsection. No fine imposed under this subsection shall be suspended.

Section 5. Amend Chapter 11, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 1129 Offenses; penalty.

The following acts shall be offenses under this subchapter punishable by a fine of $20 as a Class D environmental violation for each such act:

Section 6. Amend Chapter 13, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 1304 Environmental misdemeanors, sentence and fines Environmental misdemeanors, environmental violations, sentences and fines.

(a) Violations of Chapters 1, 5, 6 and 7 and 1, 5, 6, 7, 9, 18, 19, 21, 23, 24, 25, 26, 27, and 28 of subchapter I of Chapter 11 of this title or Department orders, rules or regulations promulgated to implement provisions of these chapters are designated as environmental misdemeanors and violations.

(b) Notwithstanding the classification of misdemeanors in § 4202(a) of Title 11, environmental misdemeanors are classified for the purpose of sentencing into 4 categories Environmental misdemeanors and environmental violations are classified for purposes of sentencing into the following four categories:

(1) Class A environmental misdemeanors;

(2) Class B environmental misdemeanors;

(3) Class C environmental misdemeanors violations;

(4) Class D environmental misdemeanors violations.

(c) Any violation of Chapters 1, 5, 6 or 7 or of subchapter I of Chapter 11 of this title for which there is no prescribed penalty shall be a class C environmental misdemeanor violation.

(f) Any person convicted of a class C environmental misdemeanor violation shall be fined not less than $50 $100, nor more than $250, plus the costs of prosecution and court costs, or such person shall be imprisoned for up to 10 days, or such person shall be both fined and imprisoned according to the foregoing limitations. Any person convicted of a class C environmental misdemeanor violation within 5 years of a prior conviction for a class C or greater environmental misdemeanor violation shall be fined not less than $100, nor more than $500, plus the costs of prosecution and court costs, or such person shall be imprisoned for up to 20 days, or such person shall be both fined and imprisoned according to the foregoing limitations.

(g) Any person convicted of a class D environmental misdemeanor violation shall be fined not less than $25 $50, nor more than $100, plus the costs of prosecution and court costs, or such person shall be imprisoned for up to 5 days, or such person shall be both fined and imprisoned according to the foregoing limitations. Any person convicted of a class D environmental misdemeanor violation within 5 years of a prior conviction for a class D or greater environmental misdemeanor violation shall be fined not less than $50 $100, nor more than $200 $500, plus the costs of prosecution and court costs, or such person shall be imprisoned for up to 10 days, or such person shall be both fined and imprisoned according to the foregoing limitations.

(h) Any fine imposed for any environmental misdemeanor shall not be suspended to any amount less than the minimum prescribed fine.

(i) Any conviction of a Class C or Class D Environmental Violation, for a first offense, shall not be reported on criminal history records kept by DELJIS or the State of Delaware. This provision shall not apply to a subsequent conviction of a Class C or Class D environmental violation within five years, and any such subsequent conviction shall be reported. DNREC is authorized to retain records on Environmental Violations in whatever form the Secretary deems necessary in order to ensure that the second offense and higher penalties are pursued when appropriate, and the Justice of the Peace Courts are instructed to take judicial notice of DNREC's records for this purpose.

§ 1306 Failure of officer or Fish and Wildlife Agent to do duty; penalty.

Whoever, being an official, officer or Fish and Wildlife Agent, fails to perform any act, duty or obligation enjoined upon the person by this part, shall be fined not less than $50 nor more than $100 and costs for each offense guilty of a class D environmental violation.

§ 1310 Illegal possession of Atlantic sailfish, blue marlin, white marlin and striped marlin; penalties.

(c) Any person, who violates any provision of this section shall be fined not more than $1,000 for each offense, or be imprisoned for not more than 30 days for each offense charged with a class B environmental misdemeanor.

(d) The Superior Court Justice of the Peace Courts shall have jurisdiction of offenses under this section.

Section 7. Amend Chapter 18, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 1808 Penalty.

Any person who violates any of the provisions of this chapter shall be fined not less than $25 nor more than $500 guilty of a Class C environmental violation. Justices of the Peace Courts shall have jurisdiction over offenses under this chapter.

Section 8. Amend Chapter 19, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 1910 Monthly report; failure to submit.

Except in the case of shellfish aquaculture in Delaware's Inland Bays, any person issued a commercial shellfishing license or permit by the Department shall file monthly reports of his or her catch by area, effort, species, and weight or number on forms provided by the Department. A commercial shellfishing license or permit holder who does not file said monthly report by 4:30 p.m. of the last working day of the month following the month for which the report is due may for the first failure to file be given a warning, for the second failure to file may have his or her commercial shellfishing license or permit suspended by the Secretary for a period of up to 30 days or until such time as the report is filed, whichever occurs sooner, and for a third or subsequent failure to file may have his or her commercial shellfishing license or permit revoked by the Secretary until such time when all reporting requirements are fulfilled in a manner acceptable to the Secretary shall be guilty of a Class D environmental violation.

§ 1912 Definitions.

(a) Any person who violates any of the provisions of Chapters 19, 21, 23, 24, 25 and 28 of this title, except §§ 1910, 1911, 2306, 2506, 2509 of this title, or any rules or regulations adopted pursuant thereto except those adopted under the auspices of Chapter 20 of this title, shall be fined $25 for the first offense and $100 for each offense thereafter guilty of a Class D environmental violation. Magistrates Justice of the Peace Courts shall have jurisdiction over all offenses under this section.

Section 9. Amend Chapter 23, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 2306 Marking of commercial crab pots and vessels; penalties.

(b) It shall be unlawful for any person to lift any commercial crab pot from a vessel other than the one corresponding with the color code on that crab pot buoy. Any commercial crab pot which is not marked as specified in this section may be confiscated by the Department. Any person guilty of taking crabs from a commercial crab pot from a vessel other than the one corresponding with the color code of that pot buoy shall be fined $100 guilty of a Class C environmental violation.

Section 10. Amend Chapter 25, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 2506 Marking of commercial lobster pots and vessels.

The buoys of all lobster pots placed for commercial purposes shall be marked with the color code and number that is assigned to each commercial lobster pot licensee. All buoys must be of a positive flotation material. The lobstering vessel specified on the license shall display the color code assigned to the licensee on a panel measuring at least 2 feet by 2 feet. Said panel must be fully visible from either side of said vessel. It shall be unlawful for any person to lift any commercial lobster pot from a vessel other than the 1 corresponding to the color code on that pot buoy. Any pot attached to a buoy, which is not marked as specified in the regulation, may be confiscated by the Department. Any person guilty of removing lobsters from any commercial lobster pot from a vessel other than the 1 corresponding to the color code on that pot buoy shall be fined $100 guilty of a Class C environmental violation.

§ 2509 Unloading locations.

It shall be unlawful for any person to unload lobsters taken from the waters or shellfish grounds within the jurisdiction of the State at any port or unloading facilities located outside the geographic boundaries of the State. Any person violating this subsection will be guilty of a Class C environmental violation.

Section 11. Amend Chapter 26, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 2605 Penalty.

Any person who violates this chapter shall be fined not less than $100 nor more than $1,000 for a first offense. For each subsequent conviction, a person shall be fined not less than $500 nor more than $2,000. guilty of a Class C environmental violation for the first offense. For each subsequent conviction, a person shall be guilty of a Class B environmental misdemeanor.

Section 12. Amend Chapter 27, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 2705 Penalties.

(b) Any person convicted of a violation of any provision of this chapter or any regulation promulgated by the Department pursuant thereto, shall be fined not less than $100 nor more than $1,000 for each violation, plus payment of all costs guilty of a Class B environmental misdemeanor. Each individual horseshoe crab taken in violation of any provision of this chapter or regulation promulgated by the Department pursuant thereto shall constitute a separate violation.

Section 13. Amend Chapter 42, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 4202 Classification of misdemeanors.

(b) Any offense defined by statute which is not specifically designated a felony, a class A misdemeanor, a class B misdemeanor or a violation shall be an unclassified misdemeanor or an environmental misdemeanor or environmental violation.

Section 14. Amend Chapter 21, Title 23 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 2102 Penalty.

Whoever violates this subchapter shall be fined not less than $10 nor more than $100 guilty of a Class D environmental violation.

§ 2125 Penalties; jurisdiction.

(a) Whoever violates any of the provisions of this chapter, except §§ 2113(e), 2116(b), (c), (d), (e) and (f), or any regulation promulgated thereunder, shall for the first offense be fined not less than $25 nor more than $50. For each subsequent like offense occurring within 12 months of a prior conviction, the person shall be fined not less than $50 nor more than $100 shall for the first offense be guilty of a Class D environmental violation. For each subsequent like offense occurring within 12 months of a prior conviction, the person will be guilty of a Class C environmental violation.

(b) Whoever violates § 2113(e) of this title shall be fined not less than $50 nor more than $100 guilty of a Class D environmental violation.

(c) Whoever violates §§ 2116(b) or (c) of this title shall for the first offense be fined not less than $25 nor more than $115. For each subsequent like offense occurring within 3 years of a prior conviction, the person shall be fined not less than $50 nor more than $230, or be imprisoned not less than 10 nor more than 30 days, or both be guilty of a Class D environmental violation.

(d) Whoever violates § 2116(d) of this title shall for the first offense be fined not less than $100 nor more than $300, or be imprisoned not less than 10 nor more than 30 days, or both. The period of imprisonment for a first offense may be suspended be guilty of a Class C environmental violation. For each subsequent like offense occurring within 3 years of a prior conviction, the person shall be fined not less than $300 nor more than $1,000, or be imprisoned not less than 30 nor more than 60 days, or both guilty of a Class B environmental misdemeanor. No person sentenced under this subsection as a repeat offender shall receive a suspended sentence.

(f) Violations of Chapters 21, 22 and 23 of this Title or Department orders, rules or regulations promulgated to implement provisions of these chapters are designated as environmental misdemeanors and violations punishable pursuant to the sentencing categories set forth in §1304 of Title 7 of the Delaware Code.

Section 15. Amend Chapter 22, Title 23 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through by redesignating accordingly:

§ 2202 Child safety on recreational boats.

(b) A violation of Whoever violates subsection (a) of this section shall be an offense punishable by a fine of no more than $25 for each violation guilty of a Class D environmental violation. The failure to provide a flotation device for more than 1 child in the same recreational boat at the same time, as required by this section, shall be treated as separate offenses.

§ 2215 Enforcement; penalties.

(c) Whoever violates any of the provisions of this subchapter or any regulation promulgated thereunder, shall for the first offense be fined not less than $25 nor more than $50 guilty of a Class D environmental violation. For each subsequent like offense occurring within 12 months of a prior conviction, the person shall be fined not less than $50 nor more than $100 guilty of a Class C environmental violation.

§ 2225 Penalties; jurisdiction.

(a) Whoever violates § 2221(a) of this title shall for the first offense be fined not less than $50 nor more than $200 guilty of a Class D environmental violation. For each subsequent like offense, the person shall be fined not less than $100 nor more than $500 or imprisoned for a term not to exceed 6 months, or both guilty of a Class C environmental violation.

(b) Whoever violates § 2221(c) of this title shall for the first offense be fined not less than $25 nor more than $115 guilty of a Class D environmental violation. For each subsequent like offense, the person shall be fined not less than $50 nor more than $230, or be imprisoned not less than 10 nor more than 30 days, or both guilty of a Class C environmental violation.

Section 16. The Delaware Code as amended by the enactment of this law shall apply to all such offenses committed, or alleged to have been committed, on or after the date of the enactment by the amendments. The Delaware Code provisions as they were in effect prior to the date of the amendments enacted today shall govern all offenses committed, or alleged to have been committed, before the date of the enactment of these amendments. Offenses which are committed or which were alleged to have been committed, during the course of conduct covering a time period both before and after the date of enactment of these amendments shall be governed by the Delaware Code as its provisions were in effect on the date prior to the enactment of these amendments.

Approved September 02, 2014