TITLE 7

Conservation

Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands

CHAPTER 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES

Subchapter I. General Provisions


It is declared that the drainage and the prevention of flooding of lands and the management of water for resource conservation shall be considered a public benefit and conducive to the public health, safety and welfare.

48 Del. Laws, c. 151, § 1; 7 Del. C. 1953, § 4101; 50 Del. Laws, c. 276, § 1; 70 Del. Laws, c. 246, §§ 2, 3.;

It is the purpose of this chapter in carrying out the policy declared in § 4101 of this title to provide a basis for a uniform system for establishing, financing, administering, maintaining and dissolving tax ditch organizations in the State under the supervision of the Department of Natural Resources and Environmental Control to the end that the conservation and management of the soil, water, wildlife, forest and other resources of the State may be accomplished in a workable and practicable manner.

48 Del. Laws, c. 151, § 2; 7 Del. C. 1953, § 4102; 57 Del. Laws, c. 739, § 180; 70 Del. Laws, c. 246, §§ 4, 5.;

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

(1) "Benefits" include, but shall not be limited to, the privilege of participating in a cooperative system for the management of water from one's lands by a tax ditch formed under this chapter.

(2) "Drainage" means water management, by drainage areas or watersheds, to safely remove or control both excess, surface flood waters and damaging, excess subsurface waters.

(3) "Landowner" or "owner" means that person or group of persons in whom the entire title to a certain tract of land is vested.

(4) "Taxable" means any person entitled to vote under this chapter.

(5) "Flooding" means the occurrence of damaging, excess surface water. The occurrence of surface water for beneficial uses is a component of water management, not flooding.

(6) "Water management" means the removal, storage, or application of water by intentional means, including but not limited to management methods using drains, channels, culverts, structures for water level control and dams.

48 Del. Laws, c. 151, § 3; 7 Del. C. 1953, § 4103; 50 Del. Laws, c. 276, § 2; 70 Del. Laws, c. 246, §§ 6, 7.;

(a) Any landowner or owners in an area served by a drainage organization established prior to June 1, 1951, under any other law of this State, or any landowner or owners who desire their lands to be drained or protected from flooding may, at any time, petition for the establishment of a tax ditch under this chapter.

(b) In those cases, when an existing drainage organization becomes a tax ditch under this chapter, the present assets or liabilities of said existing drainage organization may be transferred to the tax ditch provided that such assets or liabilities are declared by the tax ditch commissioners in their report, and that the transfer of such assets or liabilities is approved by the affected taxables either by a referendum held by board of ditch commissioners pursuant to § 4132 of this title or by a signed statement pursuant to § 4135 of this title.

(c) Article 2, Chapter 65, and Article 1, Chapter 105, of the 1935 Revised Code of Delaware shall remain in effect and shall apply to drainage organizations established thereunder prior to June 1, 1951, unless such drainage organizations reform or reorganize under this chapter.

48 Del. Laws, c. 151, §§ 7, 69, 75; 7 Del. C. 1953, § 4104; 50 Del. Laws, c. 276, § 3; 56 Del. Laws, c. 312, § 1.;

(a) Once a tax ditch has been constructed, any right-of-way for the construction and major maintenance of the tax ditch — provided such has been created pursuant to this chapter — and including tax ditches where rights-of-way were previously defined as "adequate" or "sufficient" — unless previously modified by a change to the court order, shall have the maximum extent defined as follows:

(1) Tax ditches with a designed 0'-4' bottom width — 80' from top of bank and to include the cross-section of the ditch; or the existing construction right-of-way, whichever is less.

(2) Tax ditches with a designed 4'-10' bottom width — 120' from top of bank and to include the cross-section of the ditch; or the existing construction right-of-way whichever is less.

(3) Tax ditches with a designed bottom width greater than 10' — existing construction and major maintenance right-of-way as filed in the original court order.

(b) No change to the minor maintenance right-of-way is necessary provided such has been otherwise created pursuant to this chapter.

(c) The reference point for all tax ditch rights-of-way that are established or modified as a result of 76 Del. Laws, c. 389 or future actions is the nearest top of ditch bank. The "top of ditch bank" is the point where the side slope of the ditch intersects the existing grade of the adjacent land. For ditch sections that have been piped, the point of references shall be the centerline of the pipe.

(d) An additional deferment of the timeline for the recordation process for certifying rights-of-way as set forth in amendments contained in § 4195(b) of this title and as extended by SCR No. 27 of the 144th General Assembly shall be granted until January 13, 2009.

(e) For purposes of this chapter:

(1) "Construction and major maintenance right-of-way" means the right-of-way created by this chapter for the purpose of construction/reconstruction of the tax ditch, to allow for the piling of debris and to allow spoil to be leveled as part of the construction operations and major maintenance activities including "dipping out" and/or disposal of spoils.

(2) "Minor maintenance right-of-way" means the right-of-way created under this chapter for the purpose of maintenance activities that include but are not limited to inspection, mowing, use of specialized equipment for vegetative management (i.e. herbicide applications), removal of debris and obstructions, pipe repairs and installation of crossings for access.

76 Del. Laws, c. 389, § 1.;