TITLE 7

Conservation

Natural Resources

CHAPTER 68. BEACH PRESERVATION


Beaches of the Atlantic Ocean and Delaware Bay shoreline of Delaware are hereby declared to be valuable natural features which furnish recreational opportunity and provide storm protection for persons and property, as well as being an important economic resource for the people of the State. Beach erosion and shoreline migration occur due to the influence of waves, currents, tides, storms and rising sea level. These natural forces have created, and will continue to alter, the beaches of the State. Development and habitation of beaches must be done with due consideration given to the natural forces impacting upon them and the dynamic nature of those natural features. The purposes of this chapter are to enhance, preserve and protect the public and private beaches of the State, to mitigate beach erosion, to create civil and criminal remedies for acts destructive of beaches, to prescribe the penalties for such acts and to vest in the Department of Natural Resources and Environmental Control ("the Department") the authority to adopt such rules and regulations it deems necessary to effectuate the purposes of this chapter.

7 Del. C. 1953, § 6801; 58 Del. Laws, c. 566, § 2; 64 Del. Laws, c. 361, § 1.;

For purposes of this chapter:

(1) A "beach" is that area from the Delaware/Maryland line at Fenwick Island to the Old Marina Canal immediately north of Pickering Beach, which extends from the mean high water line of the Atlantic Ocean and Delaware Bay landward 1,000 feet and seaward 2,500 feet, respectively.

(2) "Beach erosion" or "erosion" is the wearing away of a beach by water or the elements.

(3) "Beach preservation," "beach erosion control" or "erosion control" is the protection and control of the beach by the conduct and regulation of work and activities likely to affect the physical condition of the beach or shore, and includes, but is not limited to, erosion control, hurricane protection, coastal flood control, shoreline and offshore rehabilitation.

(4) "Building line" means a line generally paralleling the coast, seaward of which construction of any kind shall be prohibited without a permit or letter of approval from the Department. The building line shall be set forth on maps prepared by the Department with reference to a vertical datum commonly used by land surveyors, the Delaware State Plane Coordinate System and topographical surveys. Within the corporate limits of Rehoboth Beach and Bethany Beach, in commercial areas containing boardwalks and where no natural dune exists, the building line shall be along the westerly edge of the boardwalk. In those cases where the mapped building line either transects or is landward of lots that, in turn, are landward of lots with existing habitable structures, the building line will not be used to modify either location or dimension of buildings on the more landward lot. On those ocean and Delaware Bay front lots, where existing buildings are either partially or completely seaward of the building line, the Department is directed to consider beach nourishment work that has enhanced the beach and dune when determining the location and size of reconstruction of those existing buildings if they are destroyed by acts of God or other accidental events. Furthermore, in any such case, property owners shall be permitted to rebuild in the same footprint where federal or state agencies have constructed and continue to maintain a beach and dune that conforms to coastal engineering standards of storm protection.

(5) "Construction" includes any work or activity which is likely to have a material physical effect on existing coastal conditions or natural shore and inlet processes.

(6) "Department" means the Department of Natural Resources and Environmental Control.

(7) "Emergency" means any unusual incident resulting from natural or unnatural causes which endangers the health, safety or resources of the general public, including damages or erosion of any shoreline resulting from a hurricane, storm or any such natural disturbance.

(8) "Person" means any individual, partnership, corporation, association, institution, cooperative enterprise, municipality, commission, political subdivision or duly established legal entity.

(9) "Private beach" means any beach which is not a public beach as defined in this chapter.

(10) "Public beach" means any beach owned in fee simple by the federal or state government or any county, city, town or municipality, or any beach for which the State has obtained an easement or agreement for public use.

(11) "Regulated area" is the specific area within the defined beach that the Department is directed to regulate construction to preserve dunes and to reduce property damage. The regulated area shall be from the seaward edge of the beach to the landward edge of the third buildable lot in from the mean high water line.

(12) "Substantial damage" means the damage or destruction of any structure by an act of God to the extent that, in the judgment of the Department, 75% or more of the original structure, or if a building, more than 50% of the original foundation pilings, are unsuitable for incorporation into reconstruction of the structure.

7 Del. C. 1953, § 6802; 58 Del. Laws, c. 566, § 2; 64 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 380, § 1; 75 Del. Laws, c. 435, §§ 1-4.;

(a) Authority to enhance, preserve, and protect public and private beaches within the State is vested solely in the Department, except as pertains to archaeological resources on beaches, which are regulated by the Department of State, Division of Historical and Cultural Affairs pursuant to Chapter 53 of this title.

(b) The Department shall prevent and repair damages from erosion of public beaches. To this end, the Department shall, when it deems necessary, provide, construct, reconstruct and maintain groins, jetties, banks, dikes, dunes, bulkheads, seawalls, breakwaters and other facilities or make any other repairs or take any other measures along or upon any public beach or shoreline area in this State. All structures, devices and facilities existing now or in the future which are devoted to the enhancement, preservation and protection of beaches shall be under the sole jurisdiction, management and control of the Department.

(c) The Secretary of the Department shall promulgate rules and regulations to effectuate the purposes of this chapter.

(d) Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State, aggrieved by any decision of the Secretary, may appeal as provided by law to the Superior Court in and for the county in which the activity in question is wholly or principally located by filing a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Any such appeal shall be on the record and shall be perfected within 30 days of the receipt of the decision of the Secretary.

(e) The Court may affirm, reverse or modify the Secretary's decision. The Secretary's findings of fact shall not be set aside unless the Court determines that the record contains no substantial evidence that would reasonably support the findings. If the Court finds that additional evidence should be taken, the Court may remand the case to the Secretary for completion of the record.

7 Del. C. 1953, § 6803; 58 Del. Laws, c. 566, § 2; 62 Del. Laws, c. 211, § 1; 64 Del. Laws, c. 361, § 1; 75 Del. Laws, c. 153, § 11.;

The authority of the Department to prevent and repair damages from erosion shall extend to privately owned beaches whenever, in the judgment of the Governor, a dangerous condition constituting an emergency exists in a location specified by the Governor. Before taking any action with respect to a privately owned beach, the Department shall, whenever practicable, give reasonable notice to the owner thereof that a condition of potential emergency must be corrected, and wait a reasonable period of time for the owner to correct the matter. If the owner does not correct the matter, the Department shall do so. The owner shall be liable for all expenses incurred by the Department in correcting a condition of potential emergency.

64 Del. Laws, c. 361, § 1.;

(a) No person shall, without first having obtained a permit or letter of approval from the Department, undertake any activity:

(1) To construct, modify, or reconstruct any structure or facility on any beach seaward of the building line.

(2) To alter, dig, mine, move, remove or deposit any substantial amount of beach or other materials, or cause the significant removal of vegetation, on any beach seaward of the building line which may affect the enhancement, preservation or protection of beaches.

(b) No dune buggy, truck, automobile, motorized bicycle, mechanized vehicle or machine shall be operated on any beach owned in fee simple by the State except in areas designated for such use and then only in accordance with rules and regulations promulgated by the Department. Vehicles utilized for emergency or health and safety measures are excepted from this subsection.

(c) Construction activities landward of the building line on any beach, including construction of any structure or the alteration, digging, mining, moving, removal or deposition of any substantial amount of beach or other materials, shall be permitted only under a letter of approval from the Department.

(d) The Department shall grant or deny a permit or letter of approval required by subsections (a) and (c) of this section in accordance with duly promulgated regulations. If any structure proposed to be built seaward of the building line could reasonably be reduced in size or otherwise altered in order to eliminate or diminish the amount of encroachment over the building line, the Department shall require such reduction or alteration as a condition of granting the permit or letter of approval. Notwithstanding any provision of this section or regulations adopted by the Department, no property owner shall be prevented within the regulated area from repairing, modifying, modernizing, updating, or improving their existing structure, or, by performing such actions, be required to relocate or reduce in size so long as these repairs, modifications, or improvements are within the existing structure's foot print.

64 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 398, § 1; 75 Del. Laws, c. 435, §§ 5, 6; 76 Del. Laws, c. 236, § 1.;

The Secretary of the Department shall have the power to issue a cease and desist order to any person violating this chapter or rule or regulation promulgated pursuant thereto. Any such cease and desist order shall expire (1) after 30 days from the date of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when the order is superseded by injunction, whichever occurs first.

7 Del. C. 1953, § 6804; 58 Del. Laws, c. 566, § 2; 64 Del. Laws, c. 361, § 1.;

(a) Whoever, without authority from the Department, alters, moves or carries away any substantial amount of beach material (including, but not limited to, sand or pebbles), or alters, damages or destroys any groin, jetty, bank, dike, dune, bulkhead, seawall, breakwater or any other facility, improvement or structure installed or maintained by the Department for the enhancement, preservation or protection of the beach, shall be liable for a civil penalty imposed by the Court of Common Pleas of not less than $200 nor more than $5,000 for each completed violation. If the violation has been completed and there is a substantial likelihood that it will recur or if it is a continuing violation, the Department may also seek a permanent or preliminary injunction or temporary restraining order in the Court of Chancery.

(b) Any coastal structure erected, or excavation created, in violation of this chapter is hereby declared to be a public nuisance, and such structure shall be forthwith removed or such excavation refilled after written notice by the Department directing such removal or filling. In the event the structure is not removed or the excavation refilled as directed within a reasonable time, the Department may remove such structure or fill such excavation at its own expense. The person who erected the structure or created the excavation declared to be a public nuisance shall be liable for all expenses incurred by the Department in removing the structure or filling the excavation. The Secretary shall submit a detailed billing for the costs involved in abating the public nuisance to the person responsible. In the event that said billing is not paid by the person responsible within 30 days, the Department may file suit in the appropriate court seeking to compel payment.

(c) Any person who:

(1) Violates any condition or limitation in a permit issued pursuant to this chapter;

(2) Engages in any activity prohibited by this chapter; or

(3) Violates any regulation duly promulgated according to this chapter,

shall upon conviction be fined not less than $200 nor more than $5,000, or imprisoned for not more than 2 years, or both, and in addition, shall reimburse the Department for its reasonable expenditures in remedying damage created.

(d) For the purposes of subsection (c) of this section, each and every day that a permit condition or limitation is violated, an activity engaged in which is prohibited by this chapter or a regulation violated is deemed a separate offense.

(e) Any expenses or civil penalties collected by the Department under this section are hereby appropriated to the Department to carry out the purposes of this chapter.

7 Del. C. 1953, § 6805; 58 Del. Laws, c. 566, § 2; 64 Del. Laws, c. 361, § 1.;

(a) A special fund is created in the State Treasury to be known as the "Beach Preservation Fund," hereafter referred to in this chapter as "the Fund."

(b) The Fund may be used as necessary to effectuate the purposes of this chapter.

(c) The balance of the Fund shall be at least $1,000,000 at the beginning of each fiscal year after July 22, 1972. Such sums as are necessary to restore the Beach Preservation Fund to a balance of at least $1,000,000 shall be appropriated annually from the General Fund or borrowed annually after fiscal year 1973 by the issuance of bonds or bond anticipation notes upon the full faith and credit of the State as may be authorized within the annual capital improvement program. Such bonds and notes shall be issued in accordance with Chapter 74 of Title 29. For purposes of identification, the bonds issued pursuant to such authorization may be known, styled or referred to as "beach preservation bonds."

7 Del. C. 1953, § 6806; 58 Del. Laws, c. 566, § 2; 64 Del. Laws, c. 361, § 1.;

The Department may cooperate with and receive moneys from the federal government or any industry or other source. Such moneys received are hereby appropriated and made available for study and action directed at beach preservation.

7 Del. C. 1953, § 6807; 58 Del. Laws, c. 566, § 2; 64 Del. Laws, c. 361, § 1.;

(a) The Secretary may, through negotiation or condemnation proceedings under Chapter 61 of Title 10, acquire the fee simple or any lesser interests in land whenever 2/3 or more of the property owners of property included in the project area along a private beach, as defined by the Department, have agreed to allow the Department to undertake any or all necessary works to protect, and enhance the beaches, and allow free public access to the beach; provided, however, that the agreeing property owners own at least two-thirds of the property included in the project area.

(b) The Secretary may include the costs of obtaining any such fee simple or lesser interests including but not limited to attorney's fees, appraisal costs, surveying charges, title search and land acquisition costs in the total project costs.

(c) Notwithstanding the provisions of subsection (a) of this section, the Secretary may undertake any or all necessary works to restore private beaches as designated by the Department, whenever 2/3 or more of the property owners in the project area along the private beach have petitioned the Department to undertake the work. The public will maintain rights on the beach landward to the dune vegetation line or the structure line, whichever is further seaward, in the area of any publicly financed project for the purposes of navigation, fishing, swimming and sunbathing. Privately financed projects may be included in a public project when the Department determines that their inclusion will enhance the public project.

59 Del. Laws, c. 254, § 1; 64 Del. Laws, c. 361, § 1; 68 Del. Laws, c. 280, § 1.;

All laws or ordinances inconsistent with this chapter are hereby superseded to the extent of the inconsistency.

7 Del. C. 1953, § 6808; 58 Del. Laws, c. 566, § 2; 64 Del. Laws, c. 361, § 1.;

This chapter may be known, styled or referred to as the "Beach Preservation Act."

7 Del. C. 1953, § 6809; 58 Del. Laws, c. 566, § 10; 64 Del. Laws, c. 361, § 1.;