TITLE 17

Highways

CHAPTER 1. GENERAL PROVISIONS

Part I. II.

GENERAL PROVISIONS MITIGATION NEEDS ANALYSIS AND PLANTING OR REFORESTATION ACTIVITIES

Subchapter VII. Projects Requiring Landscape and Reforestation Activities


It is declared that increases in forested land in the State, together with landscape features such as trees, shrubs and ground covers other than or in addition to grass, not only improve the aesthetic value of our State, but carry with them valuable benefits to the health and welfare of our citizens and our environment. It is likewise declared that the Department of Transportation is a leader in replacing forestlands that are required to be cleared for such projects and in providing travelers throughout the State with scenic vistas along its roadways while maintaining safe design and construction standards.

Therefore, this subchapter is intended to more precisely reflect a policy requiring the incorporation of landscaping and reforestation in the projects developed by the Department of Transportation for road construction and improvements in the State. This subchapter is intended to provide minimum standards for the volume of landscaping or reforestation that must take place, for how those activities must be planned, and for how much must be allocated to ensure those activities can take place. The Department of Transportation bears the responsibility for providing specific standards that are needed through regulations developed pursuant to this subchapter.

73 Del. Laws, c. 351, § 2.;

For the purposes of this subchapter:

(1) "An acre of trees" means a contiguous acre of land on which there are situated at least 50 trees or woody plants with a trunk measuring at least 4 inches in diameter at 4 feet above the ground. Partial acres and individual parcels will be added together to determine the total acreage within the project scope.

(2) "Canopy tree" means any tree or other woody plant that when fully grown will provide shade and/or shelter for the land beneath while allowing passage of people, animals and/or vehicles upon the land beneath. Canopy trees are classified in 1 of 3 categories: "lower canopy," "medium canopy," and "upper canopy." "Lower canopy trees" include all species of trees and woody plants that when fully grown reach an average height of not more than 30 feet when measured vertically in a straight line from the uppermost branches to the ground immediately below. "Medium canopy trees" include all species of trees and woody plants that when fully grown reach an average heights of not less than 30 feet nor more than 50 feet when measured vertically in a straight line from the uppermost branches to the ground immediately below. "Upper canopy trees" include all species of trees and woody plants that when fully grown reach an average height of not less than 50 feet when measured vertically in a straight line from the uppermost branches to the ground immediately below.

(3) "Construction project" means any activity undertaken, authorized or required by the Department of Transportation through which any expressway, arterial or collector road is:

a. Constructed on a new alignment; or

b. Widened by adding 1 or more through travel lanes.

(4) "Forest" means a biological community dominated by trees covering a contiguous area of land and includes any definition thereof developed by the Department of Agriculture Forest Service. A "forest" may be identified by the diversity of the tree species composing it or by its type. A "forest type" is a forest composed of associations of tree species that have similar ecological requirements.

(5) "Landscape improvements" means living trees and shrubs planted for the purpose of enhancing the aesthetic value or wildlife habitat of the land, including, but no limited to, organized or planned arrangements of living plants as well as naturally occurring or wild growth of living plants. These improvements shall be made in a manner prescribed by the Department of Transportation's landscape policies, as amended from to time. In establishing and modifying these policies, the Department of Transportation shall seek the advice of the Department of Agriculture and the Department of Natural Resources and Environmental Control and such other public or private agencies as may be deemed appropriate by the Department.

(6) "Landscaping and planting activities" means the placement of landscape improvements. Landscaping and planting activities do not include the erection of fences, structures or other nonliving barriers or borders.

(7) "Reforestation activities" means landscaping and planting activities according to advice provided by the Department of Agriculture Forest Service on lands within rights-of-way owned or controlled by the Department of Transportation on which no forest currently exists, or on which a forest exists that is less dense than recommended by the Department of Agriculture Forest Service, to a density that will reasonably ensure the establishment of a mature forest of a particular type once fully grown.

73 Del. Laws, c. 351, § 2; 77 Del. Laws, c. 361, § 1.;

Whenever the Department of Transportation undertakes any construction project in this State covered by this subchapter, it shall incorporate into the cost of such project sufficient funds to complete all landscaping, planting and/or reforestation activities required by this subchapter.

If upon the completion of all landscaping, planting and/or reforestation activities required by this subchapter, and upon the completion of any funds transfers authorized by this subchapter, there remain funds in the budget of a construction project that had been designated specifically for landscaping, planting and/or reforestation activities, the Department shall use the remaining unobligated funds to perform or pay for other landscaping, planting and/or reforestation activities in the State.

73 Del. Laws, c. 351, § 2.;

If upon the completion of all landscaping, planting and/or reforestation activities required by this subchapter, and upon the completion of any funds transfers authorized by this subchapter, there remain funds in the budget of a construction project that had been designated specifically for landscaping, planting and/or reforestation activities, the Department shall use the remaining unobligated funds to perform or pay for other landscaping, planting and/or reforestation activities in the State.

73 Del. Laws, c. 351, § 2.;

Whenever the Department of Transportation undertakes any construction project in this State, it shall make every reasonable effort to preserve large, mature trees. Additionally, it shall make every reasonable effort to remove, cut or clear only the minimum number of trees and shrubs that are necessary to complete the project and remain consistent with safe design practices.

73 Del. Laws, c. 351, § 2.;

(a) The Department of Transportation shall complete all landscaping, planting and reforestation activities required by this subchapter, or cause the same to be completed, and shall complete all funds transfers authorized by this subchapter within 1 year of the expiration of any guarantee or warranty period.

(b) Wherever practicable, the Department of Transportation shall modify or alter construction projects and plans to include landscaping, planting or reforestation activities within median areas and along roadside affected thereby. This includes but is not limited to modifications resulting in the increased use of earthen berms or, if necessary, metal or cement roadside barriers without compromising safety.

73 Del. Laws, c. 351, § 2.;

(a) Any other provision of law not withstanding, all lands, and all rights therein, on which landscaping, planting or reforestation activities take place pursuant to this subchapter shall remain in the possession and control of the Department of Transportation for the duration of the construction project and shall remain so thereafter until such time as the Department of Transportation determines that such lands no longer meet its existing or projected needs. At such time, the Department of Transportation may transfer any or all of said lands to any agency, instrumentality or political subdivision of the State for the purposes of preserving them for the public good.

(b) At no time may the Department of Transportation, or any other agency, instrumentality or political subdivision of the State transfer any right in or to lands on which reforestation activities take place that would in any way change the nature of the lands from forestland or that would permit development of any kind on said lands other than for the purposes of establishing or expanding a local, state or federal park, natural area, or preserve.

(c) The Department of Transportation may perform maintenance activities such as pruning or the selective removal of diseased or dead trees as it deems necessary for the safe operation of the transportation system.

73 Del. Laws, c. 351, § 2.;

(a) The Department of Transportation shall promulgate such rules and regulations as it deems necessary for implementing this subchapter.

(b) All policies, standards and general specification relating to landscaping, planting and reforestation activities, as well as the planting and placement of trees, shrubs, groundcover, sod and grass, must appear within the Department of Transportation's design standards and/or regulations and must be developed in conjunction with the Department of Agriculture and the Department of Natural Resources and Environmental Control or such other public or private agencies as may be deemed appropriate by the Department.

(c) All rules and regulations promulgated pursuant to this section shall meet the requirements of the Administrative Procedures Act (Chapter 101 of Title 29).

73 Del. Laws, c. 351, § 2.;

(a) Before the Department of Transportation removes, cuts or clears any landscape improvement, tree or forest from the site of a construction project, it shall conduct an analysis, or cause the same to be conducted, to determine the total area of landscape improvements, individual trees up to 50, or if more than 50, the total acres of trees that will be removed, cut or cleared in order to complete the project.

(b) Whenever the Department of Transportation constructs or widens any major arterial, interstate connector, minor arterial, collector road or proposed road in an urbanized area of this State, the Department shall incorporate in the plans therefore provision for all costs incurred in replacing, wherever possible, shade trees to be removed in order to execute the plan. Replacement shade trees shall be a minimum height of 16 feet, balled and burlapped nursery-grown stock, and all planting work shall be done in accordance with § 728 of the Delaware Department of Transportation Standard Specifications (January 1, 1974, or latest revised edition). The place of planting trees shall be in compliance with federal law and regulations relating to the distance such trees must be planted from the edge of the roadway.

(c) If the Department of Transportation determines that it will not remove, cut or clear any trees in order to complete the construction project, it shall incorporate into the construction plans landscape improvements to improve the rights of way within the project area only, in accordance with the Department's standards as set forth herein.

(d) If the Department of Transportation determines that it will remove, cut or clear landscape improvements of 10 or fewer trees in order to complete the construction project, it shall incorporate into the construction plans requirements for landscape mitigation through the performance of landscaping and planting activities to improve the rights-of-way within the project area at a ratio of at least 1 new tree or shrub for every tree or shrub removed.

(e) If the Department of Transportation determines that it will remove more than 10 but fewer than 50 trees in order to complete the construction project, regardless of the number of acres on which those tree are situated, it shall incorporate into the construction plans requirements for landscaping and planting activities in Part II of this subchapter that will result in the planting of at least 2 trees for every tree to be removed, cut or cleared in order to complete the construction project.

(f) If the Department of Transportation determines that it will remove 50 or more trees in order to complete the construction project, it shall incorporate into the construction plans requirements for activities that will result in the reforestation of at least 1 acre of land for every acre of trees to be removed, cut or cleared in order to complete the construction project. The ratio of land on which reforestation activities occur to land from which 50 or more trees have been removed, cut or cleared shall apply equally to complete acres as well as fractions thereof.

(g) The Department of Transportation shall itself undertake the reforestation activities required pursuant to this section or shall cause the same to be undertaken.

73 Del. Laws, c. 351, § 2; 77 Del. Laws, c. 361, §§ 2, 3.;

(a) If the Department of Transportation is unable to meet the minimum requirements for landscaping and planting activities set forth in Part II within the rights-of-way of the construction project with which the landscaping and planting activities are associated, it must first complete the balance of those landscaping and planting activities within other:

(1) State-owned rights-of-way which are along the same road and geographically closest to the construction project requiring landscaping and planting activities and thereafter moving outward in all directions until it has met the minimum requirements for landscaping and planting activities set forth in this part; or

(2) Within conservation easements approved and maintained by the Department of Natural Resources and Environmental Control that are within the same or an adjacent watershed.

(b) If, thereafter, the Department of Transportation remains unable to meet the minimum requirements for landscaping and planting activities set forth above within any rights-of-way it owns or controls in the State, it shall determine the number of acres of landscaping and planting activities it has been unable to mitigate and:

(1) Perform landscaping and planting activities in the State (or cause the same to be performed) at locations recommended by the Department of Agriculture Forest Service or the Department of Natural Resources and Environmental Control; or

(2) If the Department of Agriculture or the Department of Natural Resources and Environmental Control are unable to identify any locations in the State for the performance of landscaping and planting activities, transfer to either the Department of Agriculture Forest Service or the Department of Natural Resources and Environmental Control an amount equal to the dollar value per square yard necessary to plant seedlings in the area it has been unable to mitigate to be used by either Department for conducting landscaping and planting activities in the State under programs administered by those Departments.

73 Del. Laws, c. 351, § 2; 77 Del. Laws, c. 361, § 4.;

(a) All landscaping and planting activities undertaken as part of the Department of Transportation's obligation to mitigate the removal, cutting or clearing of landscape improvements pursuant to this part must be conducted pursuant to a landscape plan prepared by the Delaware licensed and registered landscape design professional or by the Delaware Department of Transportation, and must be conducted:

(1) To promote transplant survival;

(2) In compliance with federal law and regulation;

(3) In compliance with any Department of Transportation design specifications relating to obstructions in the right-of-way, and the distance that landscape improvements must be planted from the travel lanes of the roadway for safety purposes and corresponding to any policies related to context sensitive design;

(4) In compliance with the Department of Transportation's landscape and reforestation policies developed in conjunction with the Department of Agriculture and the Department of Natural Resources and Environmental Control or other such public or private agencies as the Department of Transportation may deem appropriate; and

(5) To be maintainable with resources available to the Department at the time of planting, to include any permanent agreements entered into relating to maintenance.

(b) A landscape plan prepared by a Delaware-licensed and registered landscape design professional or by the Delaware Department of Transportation for use in completing the minimum landscaping and planting activities required by this part may include whatever components the Department of Transportation determines are necessary or appropriate for the area in which the activities will take place, but must at a minimum:

(1) Screen, while maintaining transportation safety standards, at least 50 percent of the frontage of industrial properties and the back sides of nonagricultural, commercial properties;

(2) Use an appropriate combination of trees, shrubs, groundcovers, and grass or sod, both within median areas and along all roads, for aesthetic and screen purposes; and

(3) Select from upper, medium and lower canopy trees, both within median areas and along all roads where space is safely available, that:

a. Are no less than 1 inch in diameter, as measured 6 inches above the established ground level when planted;

b. Are planted in sufficient quantities to achieve an aesthetically pleasing view and/or, if outside the right-of-way, wildlife habitat when fully grown.

(c) All landscaping and screening shall be in conformance with any context sensitive design and vegetative policies that are in effect at the time of the project.

(d) No landscape improvement determined to be an invasive species shall ever be knowingly planted, authorized or required by the Department of Transportation.

73 Del. Laws, c. 351, § 2; 77 Del. Laws, c. 361, §§ 5-8.;