TITLE 7

Conservation

Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands

CHAPTER 39. SOIL AND WATER CONSERVATION DISTRICTS

Subchapter I. General Provisions


It is the policy of the State to provide for the preservation of the productive power of Delaware land and the optimum development and use of certain surface water resources of the State by furthering the conservation, protection, development and utilization of land and water resources, including the impoundment, and disposal of water and by preventing and controlling floodwater and sediment damages, and thereby to preserve natural resources and promote their beneficial use, control floods, prevent impairment of dams and reservoirs, assist in maintaining the navigability of rivers and harbors, preserve wildlife, provide recreation development, protect the tax base, protect public lands and highways, and protect and promote the health, safety and general welfare of the people of this State.

44 Del. Laws, c. 212, § 2; 7 Del. C. 1953, § 3901; 54 Del. Laws, c. 188, § 2; 55 Del. Laws, c. 456, § 1.;

For the purpose of this chapter, unless otherwise specifically defined, or another intention clearly appears, or the context requires a different meaning:

(1) "Board of district supervisors" or "board" means the governing body of a soil and water conservation district, elected or appointed in accordance with this chapter.

(2) "Cooperator" means a landowner for whom a district provides, or has agreed to provide, in accordance with this chapter, services, material and equipment with respect to the landowner's land within the district.

(3) "Department of Natural Resources and Environmental Control" or "Department" means the agency responsible for the administration of soil and water conservation districts in Delaware, with the powers and duties prescribed by this chapter.

(4) "Farmer" means any person holding legal title to a farm and being actively engaged in farming operations.

(5) "Landowner" or "owner of land" means and includes any person, firm or corporation who shall hold title to any land in this State.

(6) "Soil and water conservation district" or "district" means a governmental subdivision of this State, the boundaries of which coincide with county boundaries, and having the powers and duties prescribed by this chapter.

44 Del. Laws, c. 212, § 3; 7 Del. C. 1953, § 3902; 54 Del. Laws, c. 188, § 2; 57 Del. Laws, c. 711, § 1; 57 Del. Laws, c. 739, § 166.;

The 3 soil and water conservation districts heretofore created under this chapter shall hereafter be known as the Kent Conservation District, the New Castle Conservation District and the Sussex Conservation District, respectively, and the said districts shall continue to exercise all the powers and duties prescribed for districts by this chapter.

7 Del. C. 1953, § 3903; 54 Del. Laws, c. 188, § 2; 57 Del. Laws, c. 739, § 167; 59 Del. Laws, c. 561, § 1.;

The Department may invite the Secretary of Agriculture of the United States of America to appoint 1 person to serve with the Department in an advisory capacity.

7 Del. C. 1953, § 3904; 54 Del. Laws, c. 188, § 2; 57 Del. Laws, c. 739, § 168.;

(a) The Department shall:

(1) Formulate policies and general programs to be carried out by the Department and by soil and water conservation districts for the prevention of erosion, floodwater and sediment damages and for the conservation, protection, development and utilization of the State's soil and water resources, including the impoundment and disposal of water, and removal of sediment from waterways, lakes, ponds or other bodies of water;

(2) Exercise overall responsibility for administration and direction of the programs of the districts;

(3) Advise and assist any district in developing and carrying out its program for the prevention of erosion, floodwater and sediment damages, and the conservation, protection, development and utilization of soil and water resources, including the impoundment and disposal of water, and removal of sediment from waterways, lakes, ponds or other bodies of water;

(4) Cooperate with and give such other assistance, financial and otherwise, as the Department may judge to be useful to any district in the exercise of its powers and performance of its duties, including the entering into of such agreements as may be appropriate with such district, with landowners, and with other state, federal, or local agencies, subject to such conditions as the Department deems necessary to advance the purposes of this chapter;

(5) Receive and allocate or otherwise expend any funds appropriated by the General Assembly of this State, or received from any other source, for the use or benefit of the Department or of the districts;

(6) Be the administrative agency to represent this State in all matters arising from this chapter;

(7) Keep a full and accurate record of all its proceedings and of all its resolutions, regulations and orders issued or adopted;

(8) Make an annual audit of all its accounts of receipts and disbursements;

(9) Formulate and establish rules and procedures for conducting elections of district supervisors, and for conducting all other local referendums which may from time to time become necessary in order to give landowners an opportunity to reach majority conclusions with respect to the programs of the district;

(10) Make such other rules and regulations as it deems necessary to carry out the purposes of this chapter;

(11) Make and execute contracts and other instruments, necessary or convenient to the exercise of its powers, with any federal, state or local agency, or with any person; and

(12) Adopt rules and regulations for surface water impoundment; upon request by any landowner within the drainage area involved, make hydrological and engineering studies to determine pertinent factors, including, but not limited to, the projected supply of available water, the past use of said water and the contemplated water use, and on the basis of said factors to permit impoundment, subject to the jurisdiction and authority of the Secretary and the Department of Natural Resources and Environmental Control to disapprove said permit within 30 days of submission to them of the completed plans and permit by the Department. No action by the Department shall establish any new permanent water rights nor substantially impair any existing rights to beneficial use of water.

(b) In addition to the above powers, and any other powers granted in other sections of this chapter, the Department may:

(1) Appoint such employees as it requires, within the limits of available funds, and determine their qualifications, duties and compensation;

(2) Call upon the Attorney General of the State for such legal services as it requires;

(3) Conduct surveys, investigations and research relating to erosion, floodwater and sediment damages, and to the conservation, protection, development and utilization of land and water resources, including impoundment and disposal of water, and removal of sediment from waterways, lakes, ponds or other bodies of water, and the prevention and control measures and works of improvement needed; publish the results of such surveys, investigations and research; disseminate information concerning such preventive and control measures and works of improvement; except, that any agricultural research shall be in cooperation with the Delaware Agricultural Experiment Station;

(4) Develop comprehensive plans for, and carry out, preventive and control measures and works of improvement for the prevention of erosion, floodwater and sediment damages and for the conservation, protection, development and utilization of land and water resources, including the impoundment and disposal of water, and removal of sediment from waterways, lakes, ponds or other bodies of water;

(5) Obtain or accept the cooperation and financial, technical or material assistance of the United States or any of its agencies, and of this State or any of its agencies or subdivisions, or from any other source, for use in carrying out the functions of the Department under this chapter;

(6) Obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise or otherwise any property, real or personal, or rights or interests therein; maintain, administer and improve any properties acquired; receive income from such properties and expend such income in carrying out the purposes and provisions of this chapter; and sell, lease, or otherwise dispose of any of its real or personal property or interests therein, in furtherance of the purposes and provisions of this chapter, including conveyances, with or without consideration, of lands or interests therein to soil and water conservation districts for use in carrying out their authorized purposes;

(7) Construct, improve, operate and maintain such structures as may be necessary or convenient for the performance of any of the functions authorized in this chapter, and also, with the prior approval and agreement of the State Highway Department, which under § 131 of Title 17 has responsibility for the absolute care, management and control of public roads, causeways, highways and bridges in the State, construct, improve, protect or repair public roads, causeways, highways or bridges in those cases where other works of improvement authorized in this chapter affect such roads, causeways, highways or bridges;

(8) Cooperate, or enter into agreements with, and within the limits of available appropriations or other funds, furnish financial or other aid to any agency, governmental or otherwise, or any landowner, in the carrying out of operations authorized by this chapter, subject to such conditions as the Department may deem necessary to advance the purposes of this chapter;

(9) Appoint district supervisors in certain cases as in this chapter provided;

(10) Accept from tax ditches of the State in accordance with § 4161(10) of this title:

a. The responsibility for certain specified responsibilities for maintenance of the tax ditch;

b. All rights-of-way assigned by court order to the tax ditch for construction and maintenance operations;

c. Any and all powers possessed by the tax ditch, or the managers thereof, related to obstruction of, or damage to said tax ditch, or to the addition of territory to a tax ditch, or to the alteration of a tax ditch;

(11) Carry out specified responsibilities for maintenance of those tax ditches that choose to turn over such rights to the Department;

(12) Exercise all rights, under law, to utilize and protect the rights-of-way transferred to the Department by tax ditches for maintenance purposes, including those rights pertaining to obstruction of, or damage to, a tax ditch in § 4186 of this title, except that such rights-of-way may be used by the Department or its agents for maintenance purposes only; and

(13) Cooperate with other agencies and departments of the State, federal agencies, or any other landowners for use of the state dredge at the cost of the state agency and/or department, federal agency or the landowners requesting use of the state dredge. Cost for the use of the state dredge shall be limited to actual project costs incurred by the Department plus an amount equal to 10 percent of the actual project costs incurred for overhead expenses.

7 Del. C. 1953, § 3906; 54 Del. Laws, c. 188, § 2; 55 Del. Laws, c. 456, §§ 2-6; 55 Del. Laws, c. 460; 57 Del. Laws, c. 739, §§ 169, 170; 59 Del. Laws, c. 166; 60 Del. Laws, c. 183, §§ 1-4; 67 Del. Laws, c. 306, § 1.;

(a) There shall be a board of supervisors for each district, each board to consist of 4 elected supervisors, an optional supervisor who, in Kent County shall be a member of the Levy Court, in Sussex County shall be a member of County Council, and in New Castle County, shall be the County Executive or the County Executive's designated representative, and 2 optional supervisors who shall not be farmers and who may be appointed by the Secretary of the Department of Natural Resources and Environmental Control upon the request of the district involved. The vote and authority of each supervisor shall be equal. The county agricultural agent shall serve as secretary to the board but shall have no vote.

(b) The elected members of the Kent and Sussex districts shall be farmers residing in those respective counties. In New Castle County, 2 of the elected supervisors shall be farmers residing in the southern portion of the County, and the remaining 2 who shall not be farmers, shall reside in the northern portion of the County, according to a division established by the Secretary of the Department of Natural Resources and Environmental Control.

(c) The term of office of each elected supervisor shall be 4 years. The term of office of a supervisor appointed by the Secretary of the Department of Natural Resources and Environmental Control shall be 3 years. An optional supervisor appointed by the Kent County Levy Court and the Sussex County Council shall hold office during the pleasure of that body so long as that optional supervisor remains a member of the appointing body. The Secretary of the Department of Natural Resources and Environmental Control may fill the vacancy of any elected supervisor, or supervisor appointed by the Secretary of the Department of Natural Resources and Environmental Control occurring otherwise than by expiration of term, by appointment of a qualified individual to serve the remainder of the unexpired term.

44 Del. Laws, c. 212, § 6; 7 Del. C. 1953, § 3907; 54 Del. Laws, c. 188, § 2; 55 Del. Laws, c. 462, § 1; 57 Del. Laws, c. 739, § 171; 65 Del. Laws, c. 362, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 95, §§ 1, 2.;

The board of district supervisors annually shall designate by election 1 of its members to be its chairperson, and shall designate future chairpersons by the same means. A majority of the board shall constitute a quorum, but the concurrence of a majority of the entire board on any matter within its duties shall be required for its determination, except as the board may invest any of its supervisors with power to determine specified matters or to perform routine duties. The board shall be authorized, in its discretion, to reimburse supervisors for their expenses, including travel expenses, necessarily incurred in the discharge of their duties as members of the board.

Any district supervisor may be removed from office by the Department of Natural Resources and Environmental Control, upon notice and hearing, for neglect of duty or misconduct, but for no other reason.

7 Del. C. 1953, § 3908; 54 Del. Laws, c. 188, § 2; 57 Del. Laws, c. 739, § 172; 70 Del. Laws, c. 186, § 1.;

A soil and water conservation district organized under this chapter shall constitute a governmental subdivision of this State, and such district, and the board of supervisors thereof, shall have authority to exercise the following powers, in addition to others granted in other sections of this chapter, subject to the responsibility of the Department of Natural Resources and Environmental Control for the administration and direction of the programs of the districts:

(1) To develop comprehensive plans for, and carry out, preventive and control measures and works of improvement for the prevention of erosion, floodwater and sediment damages, and the conservation, development and utilization of land and water resources, including the disposal of water and removal of sediment from waterways, lakes, ponds or other bodies of water, within the district;

(2) To conduct, in cooperation with the Department of Natural Resources and Environmental Control surveys, investigations and research relating to the prevention of erosion, floodwater and sediment damages, and the conservation, protection, development and utilization of land and water resources, including the disposal of water, and removal of sediment from waterways, lakes, ponds or other bodies of water;

(3) To cooperate or enter into agreements with, and, within the limits of appropriations or other funds duly made available to it by law, to provide aid to any agency, governmental or otherwise, or any landowner within the district, in carrying out the program of the district, subject to such conditions as the board may deem necessary to carry out the purposes of this chapter;

(4)(a) To make available, on such terms as the board shall prescribe, to any landowners within the district, through existing agencies if agreements with them seem feasible, or by such other means as the board shall prescribe, such services, materials and equipment as will assist such landowners to carry on operations for any of the purposes of this chapter;

(b) To make available on request, and on such terms as the Board shall prescribe, to any cooperator who is a resident of the State and who owns land in a neighboring state, services, materials and equipment for the benefit of such cooperator's land in the neighboring state;

(5) To construct, improve, operate and maintain such structures as may be necessary or convenient for the performance of any of the operations authorized in this chapter;

(6) To obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise or otherwise, any property, real or personal, or rights or interests therein; to maintain, administer and improve any properties acquired; to receive income from such properties and expend such income in carrying out the purposes and provisions of this chapter; and to sell, lease or otherwise dispose of any of its real or personal property or interests therein, in furtherance of the purposes of the district;

(7) To accept the cooperation of, and financial, technical and material assistance from, the United States or any of its agencies, or from this State or any of its agencies or subdivisions, or from any other source, for use in carrying out the purposes of the district;

(8) To sue and be sued in the name of the district; to make and execute contracts and other legal instruments, necessary or convenient to the exercise of its powers, with any federal, state or local agency, or with any person; and to receive and expend funds; and

(9) To promote the conservation, protection, development and utilization of land and water resources through various informational and educational activities as the Board may deem necessary in the furtherance of its duties under this chapter.

7 Del. C. 1953, § 3909; 54 Del. Laws, c. 188, § 1; 57 Del. Laws, c. 711, § 2; 57 Del. Laws, c. 739, § 173; 60 Del. Laws, c. 183, §§ 5, 6; 61 Del. Laws, c. 18, § 1.;

Any 2 or more soil and water conservation districts organized under this chapter may cooperate with one another or with the State or any agency or subdivision thereof in the exercise of all powers conferred upon such districts or any or all duties prescribed for such districts by this chapter.

44 Del. Laws, c. 212, § 9; 7 Del. C. 1953, § 3910; 54 Del. Laws, c. 188, § 1.;

The Secretary and the Department of Natural Resources and Environmental Control shall have paramount jurisdiction over water use in this State. In case of any conflict between this chapter and Part VII of this title, relating to water and air resources, Part VII shall prevail.

7 Del. C. 1953, § 3911; 55 Del. Laws, c. 442, § 8; 57 Del. Laws, c. 739, § 174.;

Any owner of land within the drainage area of the watershed or tax ditch involved, aggrieved by the Department's action, may appeal to the Superior Court within 30 days after the date of the hearing. The sole grounds for reversal by the Court, sitting without a jury, shall be:

(1) Abuse of the Department's discretion;

(2) infringement of constitutional rights; or

(3) the impairment of vested rights of the complainant.

In the event of such appeal, the Department shall be represented by the Attorney General of the State.

7 Del. C. 1953, § 3912; 55 Del. Laws, c. 456, § 7; 57 Del. Laws, c. 739, § 175.;