TITLE 7

Conservation

Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands

CHAPTER 40. EROSION AND SEDIMENTATION CONTROL


(a) Legislative findings. — The General Assembly finds that erosion and sedimentation continue to present serious problems throughout the State, and that the removal of a stable ground cover in conjunction with the decrease in the infiltration capability of soils resulting from the creation of additional impervious areas such as roads and parking lots has accelerated the process of soil erosion and sediment deposition resulting in pollution of the waters of the State. This damages domestic, agricultural, industrial, recreational, fish and wildlife and other resource uses. The General Assembly further finds that accelerated stormwater runoff increases flood flows and velocities, contributes to erosion, sedimentation, and degradation of water quality, overtaxes the carrying capacity of streams and storm sewers, greatly increases the costs of public facilities in carrying and controlling stormwater, undermines flood plain management and flood control efforts in downstream communities, reduces groundwater recharge, and threatens public health, welfare, and safety.

(b) Statement of policy. — In consideration of these legislative findings, it is declared to be the policy of this chapter to strengthen and extend the present erosion and sediment control activities and programs of this State for both rural and urban lands and to provide for control and management of stormwater runoff consistent with sound water and land use practices. These activities will reduce to the extent possible any adverse effects of stormwater runoff on the water and lands of the State. This policy, to be carried out by establishing and implementing by the Department of Natural Resources and Environmental Control, hereinafter referred to as the "Department," in cooperation with conservation districts, counties, municipalities and other local governments and subdivisions of this State, and other public and private entities, a statewide comprehensive and coordinated erosion and sediment control and stormwater management program to conserve and protect land, water, air and other resources of the State. This program shall be consistent with, and coordinated with other environmental programs implemented by the Department such as wetlands protection and groundwater protection.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.;

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

(1) "Certified construction reviewer" means an individual who has passed a departmental sponsored or approved training course and who provides on-site construction review for sediment control and stormwater management in accordance with regulations promulgated under this chapter.

(2) "Designated watershed or subwatershed" means a watershed or subwatershed proposed by a conservation district, county, municipality or state agency and approved by the Department. The Department may establish additional requirements due to existing water quantity or water quality problems. These requirements shall be implemented on an overall watershed or subwatershed master plan developed for water quality and/or water quantity protection.

(3) "Land disturbing activity" means any land change or construction activity for residential, commercial, industrial and institutional land use which may result in soil erosion from water or wind or movement of sediments or pollutants into state waters or onto lands in the State, or which may result in accelerated stormwater runoff, including, but not limited to, clearing, grading, excavating, transporting and filling of land. This paragraph does not apply to commercial forestry practices.

(4) "Person" means any state or federal agency, individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission board, public or private institution, utility, cooperative, municipality or other political subdivision of this State, any interstate body, or any other legal entity.

(5) "Responsible personnel" means any foreperson or superintendent who is in charge of on-site clearing and land disturbing activities for sediment and stormwater control associated with a construction project.

(6) "Sediment and stormwater management plan" or "plan" means a plan for the control of soil erosion, sedimentation, stormwater quantity and water quality impacts which may result from any land disturbing activity.

(7) "State waters" means any and all waters, public or private, on the surface of the earth which are contained within, flow through or border upon the State or any portion thereof.

(8) "Stormwater" means the runoff of water from the surface of the land resulting from any form of precipitation and including snow or ice melt.

(9) "Stormwater management" means:

a. For water quantity control, a system of vegetative, structural, and other measures that controls the volume and rate of stormwater runoff which may be caused by land disturbing activities or activities upon the land; and

b. For water quality control, a system of vegetative structural, and other measures that controls adverse effects on water quality that may be caused by land disturbing activities or activities upon the land.

(10) "Stormwater utility" means the establishment of an administrative organization that has been created for the purposes of funding sediment control, stormwater management or flood control planning, design, construction, maintenance, and overall resource needs by authorized and imposed charges.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 69 Del. Laws, c. 350, §§ 1, 2; 70 Del. Laws, c. 186, § 1.;

(a) After July 1, 1991, unless exempted, no person shall engage in land disturbing activities without submitting a sediment and stormwater management plan to the appropriate plan approval authority and obtaining a permit to proceed.

(b) Projects which do not alter stormwater runoff characteristics may be required to provide water quality enhancement even if the predevelopment runoff characteristics are unchanged. Criteria will be detailed in the regulations regarding level of water quality control and variance procedures.

(c) Each land developer shall certify, on the sediment and stormwater management plan submitted for approval, that all land clearing, construction, development, and drainage will be done according to the approved plan.

(d) All approved land disturbing activities shall have associated therein at least 1 individual who functions as responsible personnel.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.;

All land development subject to Chapter 40 of this title in the Mill Creek, Little Mill Creek, Red Clay Creek, White Clay Creek, Persimmon Creek and Shellpot Creek watersheds of New Castle County will, in addition to meeting all other requirements for stormwater management, be required to demonstrate successful management of any increase in stormwater runoff volume from predevelopment land use conditions. Successful management of increased stormwater volume shall include but not be limited to; recharge, infiltration and reuse where soils and site conditions are applicable. For any increase in volume that cannot be recharged, infiltrated or reused, volume management may be achieved by modifying the release rate for the increase in volume so as not to increase the flood elevation for all storms up to and including the 100-year return period.

75 Del. Laws, c. 433, § 1.;

(a) The provisions of this chapter shall not apply to agricultural land management practices unless the conservation district or the Department determines that the land requires a new or updated soil and water conservation plan, and the owner or operator of the land has refused either to apply to a conservation district for the development of such a plan, or to implement a plan developed by a conservation district.

(b) Unless a waiver is granted the construction of agricultural structures such as broiler houses, machine sheds, repair shops, and other major buildings shall require approval of a sediment and stormwater management plan, by the appropriate plan approval agency, prior to the initiation of construction.

(c) Utility projects disturbing less than 5,000 square feet of land are not subject to the provisions of this chapter.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.;

(a) The Department, conservation districts, counties or municipalities are authorized to receive from federal, state, or other public or private sources financial, technical or other assistance for use in accomplishing the purposes of this chapter. The Department may allocate, as necessary or desirable, any funds received to conservation districts, counties or municipalities for the purpose of effectuating this chapter.

(b) The conservation districts, counties and municipalities shall have authority to adopt a fee system to help fund program implementation. That fee system shall be implemented by the designated plan approval agency to fund overall program management, plan review, construction review, enforcement needs and maintenance responsibilities. In those situations where the Department becomes the designated plan approval agency, the Department may assess a plan review and inspection fee. That fee shall not exceed $80 per disturbed acre per project. There shall be no duplication of fees by the various implementing agencies for an individual land disturbing activity and the fee schedule shall be based upon the costs to the Department, conservation districts, counties or municipalities to implement and administer the program. In addition, the Department of Transportation is authorized to act as the designated plan approval agency in those situations where a public utility engages in land-disturbing activity for which a permit is required because of a project initiated by the Department of Transportation, subject to the following provisions:

(1) If the land-disturbing activity takes place on an existing right-of-way of the Department of Transportation, that Department is permitted to assess and collect a fee for this purpose which shall not exceed $125 per acre, with a $250 minimum.

(2) If the land-disturbing activity takes place adjacent to but not upon an existing right-of-way of the Department of Transportation, the fee contemplated by paragraph (b)(1) of this section is waived.

(c) Authority is also granted to the Department, conservation districts, counties or municipalities to establish a stormwater utility as an alternative to total funding under the fee system. The stormwater utility shall be developed for the designated watersheds and may fund such activities as long range watershed master planning, watershed retrofitting, and facility maintenance. This fee system shall be reasonable and equitable so that each contributor of runoff to the system, including state agencies, shall pay to the extent to which runoff is contributed. Criteria for the implementation of the stormwater utility shall be established in regulations promulgated under this chapter. The implementation of a stormwater utility will necessitate the development of a local utility ordinance prior to its implementation.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 70 Del. Laws, c. 177, § 1.;

(a) The Department shall, in cooperation with appropriate state and federal agencies, conservation districts, other governmental subdivisions of the State, and the regulated community develop a state stormwater management program. This program shall take into consideration both quantity and quality of water, and shall be integrated with, and made a part of the amended state erosion and sediment control program to create a sediment and stormwater program.

(b) In carrying out this chapter, the Department shall have the authority to:

(1) Provide technical and other assistance to districts, counties, municipalities and state agencies in implementing this chapter;

(2) Develop and publish, as regulation components, minimum standards, guidelines and criteria for delegation of sediment and stormwater program components, and model sediment and stormwater ordinances for use by districts, counties and municipalities;

(3) Review the implementation of all components of the statewide sediment and stormwater program that have been delegated to either the conservation districts, counties, municipalities or other state agencies in reviews to be accomplished at least once every 3 years;

(4) Require that appropriate sediment and stormwater management provisions be included in all new erosion and sediment control plans developed pursuant to this chapter;

(5) Cooperate with appropriate agencies of the United States or other states or any interstate agency with respect to sediment control and stormwater management;

(6) Conduct studies and research regarding the causes, effects and hazards of stormwater and methods to control stormwater runoff;

(7) Conduct and supervise educational programs with respect to sediment control and stormwater management;

(8) Require the submission to the Department of records and periodic reports by conservation districts, tax ditch organization, county and municipal agencies as may be necessary to carry out this chapter;

(9) Review and approve designated watersheds for the purpose of this chapter;

(10) Establish a maximum life of 3 years for the validation of approved plans. The regulations shall specify variances which expand this time limitation in specific situation; and

(11) Establish a means of communication, such as a newsletter, so that information regarding program development and implementation can be distributed to interested individuals.

(c) The Department shall develop such regulations in conjunction with and with substantial concurrence of a regulatory advisory committee, appointed by the Secretary, which shall include representatives of the regulated community and others affected by this chapter. The recommendations of this committee shall be presented at all public workshops and hearings related to the adoption of the regulations implementing this chapter. Prior to final promulgation of regulations under this chapter, the Secretary shall explain, in writing, any differences between the advisory committee recommendations and the final regulations. The regulations may include, but are not limited to, the following items:

(1) Criteria for the delegation of program elements;

(2) Types of activities that require a sediment and stormwater management permit;

(3) Waivers, exemptions and variances;

(4) Sediment and stormwater plan approval fees and performance bonds;

(5) Criteria for distribution of funds collected by sediment and stormwater plan approval fees;

(6) Criteria for implementation of a stormwater runoff utility;

(7) Specific design criteria and minimum standards and specifications;

(8) Permit application and approval requirements;

(9) Criteria for approval of designated watersheds;

(10) Criteria regarding attendance and completion of departmental sponsored or approved training courses in sediment and stormwater control that will be required of certified construction reviewers and responsible personnel;

(11) Construction review; and

(12) Maintenance requirements for sediment control during construction and stormwater management structures after construction is completed.

(d) The Department may adopt, amend, modify or repeal rules or regulations after public hearing to effectuate the policy and purposes of this chapter. The conduct of all hearings conducted pursuant to this chapter and the promulgation process shall be in accordance with the relevant provisions of Chapter 60 of this title.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.;

(a) Pursuant to regulations promulgated by the Department, each conservation district, county, municipality or state agency may adopt, and submit to the Department for approval, 1 or more components of a sediment and stormwater program for the area within its jurisdiction.

(b) Requests for delegation of program elements shall be submitted within 6 months of the promulgation of state regulations, and by January 1 of subsequent years if delegation is desired at a future date. The Secretary shall grant or deny such a request on or before April 1 of the year for which delegation is sought.

(c) Delegation, once applied for, shall become effective on July 1 and shall not exceed 3 years, at which time delegation renewal is required.

(d) A district, county, municipality or state agency may develop the program in cooperation with any other governmental subdivisions.

(e) Initial consideration regarding delegation of program elements shall be given to the conservation districts, since the conservation districts, having unique capabilities and areawide responsibilities, are in an ideal position to coordinate and implement local sediment and stormwater programs.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.;

(a) Prior to July 1, 1991, requirements for sediment control shall be as provided in existing erosion and sediment control regulations promulgated September 26, 1980. Also, until July 1, 1991, any state or locally developed regulation or criterion for stormwater management shall remain in effect at the discretion of the implementing authority.

(b) Projects approved prior to July 1, 1991, but which are under construction after July 1, 1991, shall be subject to the penalty provisions contained in § 4015 of this title.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.;

(a) If, at any time, the Department finds that a conservation district, county, municipality or state agency has failed to implement program elements that the Department has delegated, the Department shall provide written notice of violation to the conservation district, county, municipality or state agency.

(b) Within 60 days of receipt of the notice of violation, the conservation district, county, municipality or state agency shall report to the Department the action which it has taken to comply with the requirements set forth in the violation notice.

(c) If after 120 days of receipt of the notice of violation, the conservation district, county, municipality or state agency has failed to comply satisfactorily with requirements set forth in the notice of violation, the Department may suspend or revoke the delegated authority.

(d) If at any time, a program element delegation is being considered for suspension or revocation, an opportunity for a hearing before the Secretary or the Secretary's designee shall be provided prior to such suspension or revocation.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1; 70 Del. Laws, c. 186, § 1.;

After July 1, 1991, a state or federal agency may not undertake any land clearing, soil movement, or construction activity unless the agency has submitted a sediment and stormwater management plan to the Department and received its approval. The only variation to this requirement shall be when delegation of the plan approval process has been granted by the Department to a specific state or federal agency.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.;

(a) Watersheds or subwatersheds approved as designated watersheds or subwatersheds by the Department shall have the regulatory requirements clearly specified through a watershed approach to nonpoint pollution control or flood control. The watershed approach shall result in a specific plan, developed or approved by the Department, for the designated watershed or subwatershed that contains the following information:

(1) Stormwater quantity or quality problem identification;

(2) The overall needs of the watershed, not just the additional impacts of new development activities;

(3) Alternative approaches to address the existing and future problems;

(4) A defined approach which includes the overall costs and benefits;

(5) A schedule for implementation;

(6) Funding sources and amounts; and

(7) A public hearing process prior to departmental approval.

(b) Upon approval of the designated watershed or subwatershed plan, all projects undertaken in that watershed or subwatershed shall have stormwater requirements placed upon them that are consistent with the designated watershed or subwatershed plan.

67 Del. Laws, c. 234, § 1.;

(a) With respect to approved sediment and stormwater plans, the agency responsible for construction review during and after construction completion shall ensure that periodic reviews are undertaken, implementation is accomplished in accordance with the approved plans, and the required measures are functioning in an effective manner. Notice of such right of construction review shall be included in the sediment and stormwater management plan certification. The agency responsible for construction review may, in addition to local enforcement options, refer a site violation to the Department for additional action.

(b) Referral of a site violation to the Department may initiate a departmental construction review of the site to verify site conditions. That construction review may result in the following actions:

(1) Notification through appropriate means to the person engaged in a land disturbing activity and the contractor to comply with the approved plan within a specified time frame.

(2) Notification of plan inadequacy, with a time frame for the person engaged in a land disturbing activity to submit a revised sediment and stormwater plan to the appropriate plan approval agency and to receive its approval with respect thereto.

(c) Failure of the person engaged in the land disturbing activity or the contractor to comply with departmental requirements may result in the following actions in addition to other penalties as provided in this chapter.

(1) The Department shall have the power to issue a cease and desist order to any person violating any provision of this chapter by ordering such person to cease and desist from any site work activity other than those actions necessary to achieve compliance with any administrative order.

(2) The Department may request that the appropriate plan approval agency refrain from issuing any further building or grading permits to the person having outstanding violations until those violations have been remedied.

61 Del. Laws, c. 522, § 1; 66 Del. Laws, c. 202, § 1; 67 Del. Laws, c. 234, § 1.;

(a) Based on criteria established by the Department through regulation and any additional criteria established by the agency implementing the plan review and construction elements of the sediment and stormwater program, the person engaged in a land disturbing activity may be required to provide for construction review by a certified construction reviewer.

(b) Individuals functioning as certified construction reviewers must attend and pass a departmental sponsored or approved construction review training course. The Department will establish, through regulation, the length of time for which the certification will last and procedure for renewal. The construction reviewers shall also function under the direction of a registered professional engineer licensed to practice engineering in the State.

(c) The responsibility of the certified construction reviewer will be to ensure the adequacy of construction pursuant to the approved sediment and stormwater management plan.

(d) The certified construction reviewer shall be responsible for the following items:

(1) Provision of a construction review of active construction sites on at least a weekly basis, as determined on a case-by-case basis by the plan review and construction review agencies, or as required by regulations promulgated pursuant to this chapter;

(2) Within 5 calendar days, informing the person engaged in the land disturbing activity, and the contractor, by a written construction review report of any violations of the approved plan or inadequacies of the plan. The plan approval agency shall be informed, if the approved plan is inadequate, within 5 working days. In addition, the appropriate construction review agency shall receive copies of all construction review reports; and

(3) Referral of the project to the Department for appropriate enforcement action if the person engaged in the land disturbing activity fails to address the items contained in the written construction review report. Verbal notice shall be made to the Department within 2 working days and written notice shall be provided to the Department within 5 working days.

(e) If the Secretary or the Secretary's designee determines that a certified construction reviewer is not providing adequate site control or is not referring problem situations to the Department, the Secretary or the Secretary's designee may suspend or revoke the certification of the construction reviewer.

(f) In any situation where a certified construction reviewer's approval is being suspended or revoked, an opportunity for hearing before the Secretary or the Secretary's designee shall be provided. During any suspension or revocation, the certified construction reviewer shall not be allowed to provide construction reviews pursuant to this chapter.

(g) The failure to assign a departmental approved certified construction reviewer to a land disturbing activity, when required by the approved plan, will place that project in violation of this chapter and result in appropriate administrative and/or enforcement action.

67 Del. Laws, c. 234, § 1; 70 Del. Laws, c. 186, § 1.;

After July 1, 1991, any applicant seeking sediment and stormwater plan approval shall certify to the appropriate approval agency that all responsible personnel involved in the construction project will have a certificate of attendance at a departmentally sponsored or approved training course for the control of sediment and stormwater before initiation of any land disturbing activity. The certificate of attendance shall be valid until the Department notifies the individual or announces in local newspapers that recertification is required due to a change in course content.

67 Del. Laws, c. 234, § 1.;

(a) Any person who violates any rule, regulation, order, condition imposed in an approved plan or other provision of this chapter shall be fined not less than $200 or more than $2,000 for each offense. Each day that the violation continues shall constitute a separate offense. The Justice of the Peace Courts shall have jurisdiction of offenses brought under this subsection.

(b) Any person who intentionally, knowingly, and after written notice to comply, violates or refuses to comply with any notice issued pursuant to § 4012 of this title shall be fined not less than $500 or more than $10,000 for each offense. Each day the violation continues shall constitute a separate offense. The Superior Court shall have jurisdiction of offenses brought under this subsection.

61 Del. Laws, c. 522, § 1; 66 Del. Laws, c. 196, §§ 1, 2; 67 Del. Laws, c. 234, § 1; 69 Del. Laws, c. 349, § 1.;

The Court of Chancery shall have jurisdiction to enjoin violations of this chapter. The appropriate program element authority, the Department or any aggrieved person who suffers damage or is likely to suffer damage because of a violation or threatened violation of this chapter may apply to the Chancery Court for injunctive relief. Among any other appropriate forms of relief, the Chancery Court may direct the violator to restore the affected land or water impacted area to its original condition.

61 Del. Laws, c. 522, § 1; 67 Del. Laws, c. 234, § 1.;