TITLE 3

Agriculture

Department of Agriculture

CHAPTER 10. STATE FORESTRY

Subchapter VI. Water Quality as It Relates to Silvicultural Systems and Sedimentation and Erosion Control


The State Forester shall provide for the protection of the waters of the State from pollution by sediment deposits resulting from silvicultural activities as provided in § 1078 of this title. Through the adoption of this subchapter, the State recognizes that water quality protection techniques for silvicultural practices are an integral component of properly managed forests. Further, the State recognizes the positive benefits that properly managed forest systems have on the environment, water quality and quality of life in Delaware.

72 Del. Laws, c. 235, § 2.;

The following words, terms and phrases, as used in this subchapter, shall have the following meanings ascribed to them except where the context clearly indicates a different meaning:

(1) "Owner" shall mean any person that (a) owns or leases land on which silvicultural activity occurs or (b) owns timber on land which silvicultural activity occurs.

(2) "Operator" shall mean any person that operates or exercises control over any silvicultural activity.

(3) "Pollution" shall mean such alteration of the physical, chemical or biological properties of any waters of the State resulting from sediment deposition that will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety or welfare, or to the health of animals, fish or aquatic life; (b) unsuitable with reasonable treatment for use as a present or possible future source of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural or other reasonable uses.

(4) "Silvicultural activity" shall mean any forest management activity, including but not limited to the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation.

(5) "Reforestation" is the establishment of a tree crop on forest land.

72 Del. Laws, c. 235, § 2.;

If the State Forester or the State Forester's designee determines that an owner or operator is conducting or allowing the conduct of any silvicultural activity in a manner that is causing or is likely to cause pollution, the State Forester or the State Forester's designee may advise the owner or operator of corrective measures needed to prevent or cease the pollution. Failure of the State Forester or the State Forester's designee to advise an owner or operator of such corrective measures shall not impair the State Forester's authority to issue cease and desist orders.

72 Del. Laws, c. 235, § 2.;

The State Forester shall have the power to issue a cease and desist order to any person violating any provision of this subchapter or rules or regulations promulgated thereunder. Any such cease and desist order shall remain in effect until withdrawal of said order by the State Forester or until the order is superseded by an injunction, whichever occurs first.

72 Del. Laws, c. 235, § 2.;

Whenever it appears that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this subchapter or rules or regulations adopted pursuant to it, the State Forester may bring an action in the Court of Chancery to restrain or to enjoin the acts or practices and to enforce compliance with this subchapter. The Court shall not require the Department of Agriculture to post a bond.

72 Del. Laws, c. 235, § 2.;

(a) Any person whose interest is substantially affected by an action of the State Forester or the State Forester's designee may request a hearing to demonstrate compliance with this subchapter or any regulations promulgated thereunder.

(b) Such hearing shall be scheduled within 15 days of the request and shall be held by the State Forester or the State Forester's designee. The decision of the State Forester or the State Forester's designee may be appealed to Superior Court on the record within 30 days of the decision.

(c) No appeal shall operate to automatically stay any action of the State Forester.

72 Del. Laws, c. 235, § 2; 70 Del. Laws, c. 186, § 1.;

(a) Any person who violates any provision of this subchapter or associated rules and regulations shall, upon conviction, be subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 months, or both.

(b) Any person found guilty of a second or subsequent violation of any provision of this subchapter is subject to a fine not exceeding $2,000 or imprisonment not exceeding 3 months, or both. For the purposes of this subsection, a second or subsequent violation is one that has occurred within 2 years of any prior violation of this subchapter.

(c) The Justice of the Peace Court shall have original jurisdiction to hear and determine violations of this subchapter.

72 Del. Laws, c. 235, § 2.;

Any hearing required under this subchapter shall follow the Administrative Procedures Act, Chapter 101 of Title 29.

72 Del. Laws, c. 235, § 2.;

Any owner or operator who violates or fails or refuses to obey any special order, rule or regulation may be assessed a civil penalty by the State Forester. Such penalty shall not be less than $200 or more than $1,000 for each violation. Each day of a continuing violation may be deemed a separate violation for purposes of assessing penalties. The Superior Court shall have jurisdiction of the offenses brought under this subchapter. In determining the amount of the penalty, consideration shall be given to the owner's or operator's history of noncompliance, the seriousness of the violation, including any irreparable harm to the environment and any hazards to the health or safety of the public, whether the owner or operator was negligent, and the demonstrated good faith of the owner or operator in reporting and remedying the pollution. A civil penalty may be assessed by the Superior Court only after the owner or operator has been given an opportunity for a hearing as specified in § 2981 of this title. Any person who intentionally, knowingly and after written notice to comply violates or refuses to comply with any notice issued pursuant to this chapter shall be fined not less than $500 or more than $5,000 for each offense. Each day the violation continues shall constitute a separate offense. The Superior Court shall have jurisdiction of offenses brought under this subchapter.

72 Del. Laws, c. 235, § 2.;

In carrying out this chapter, the State Forester may, in cooperation with appropriate municipal, county, state and federal agencies, and with representatives from operators and owners groups:

(1) Develop and publish sediment control and storm water management techniques and guidelines for use by owners and operators;

(2) Provide technical and other assistance to owners and operators in the implementation of techniques and guidelines;

(3) Conduct and supervise educational programs for owners and operators with respect to sediment control and storm water management techniques and guidelines;

(4) Conduct studies and research and publish the results regarding the causes, effects and hazards of sediment and storm water originating from silvicultural activities;

(5) Cooperate with appropriate agencies of the United States or other states or any interstate agency with respect to silvicultural activities;

(6) Establish a means of communication, such as a newsletter, so that information regarding program development and implementation can be distributed to interested owners and operators; and

(7) Establish a notification system whereby owners and/or operators inform the Delaware Department of Agriculture Forest Service of planned silvicultural activities prior to commencing the activities.

72 Del. Laws, c. 235, § 2.;