TITLE 7

Conservation

Natural Resources

CHAPTER 72. SUBAQUEOUS LANDS


Subaqueous lands within the boundaries of Delaware constitute an important resource of the State and require protection against uses or changes which may impair the public interest in the use of tidal or nontidal waters. The purposes of this chapter are to empower the Secretary to deal with or to dispose of interest in public subaqueous lands and to place reasonable limits on the use and development of private subaqueous lands, in order to protect the public interest by employing orderly procedures for granting interests in public subaqueous land and for issuing permits for uses of or changes in private subaqueous lands. To this end, this chapter empowers the Secretary to adopt rules and regulations to effectuate the purposes of the chapter, to apply to the courts for aid in enforcing this statute and the rules and regulations adopted pursuant hereto, and to convey interests in subaqueous lands belonging to the State.

65 Del. Laws, c. 508, § 2; 68 Del. Laws, c. 76, § 1; 72 Del. Laws, c. 474, § 3.;

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

(b) "Maintenance" means the actions required to return a channel, bridge, culvert, stormwater basin or water control structure to its full operational condition or to prevent a decline in its utility. These actions shall not change the purpose, scope or capacity of the channel, bridge, culvert, stormwater basin or water control structure.

(c) "Ordinary high water mark" means, for nontidal waters, the line at which the presence and action of water are so continuous in all ordinary years so as to leave a distinct mark on a bank either by erosion or destruction of terrestrial (nonaquatic) vegetation, or that can be determined by other physical or biological means.

(d) "Reconstruction" means the rebuilding of a channel, bridge, culvert, stormwater basin or water control structure that requires significant renovation or repair of their major structural features. This rebuilding shall be characterized by a replacement or major restorative effort similar to the degree required in the original design and construction of the channel, bridge, culvert, stormwater basin or water control structure. This rebuilding shall not change the purpose, scope or capacity of the channel, bridge, culvert, stormwater basin or water control structure.

(e) "Retrofitting" means a change in design, construction or materials to an existing bridge, culvert, stormwater basin or water control structure in order to incorporate later improvements or to reflect new standards, criteria or needs not considered in the original design and construction.

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

(g) "Subaqueous lands" means submerged lands and tidelands.

(h) "Submerged lands" means:

(1) Lands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of the State;

(2) Lands lying below the plane of the ordinary high water mark of nontidal rivers, streams, lakes, ponds, bays and inlets within the boundaries of the State as established by law; and

(3) Specific manmade lakes or ponds as designated by the Secretary.

(i) "Tidelands" means lands lying between the line of mean high water and the line of mean low water.

65 Del. Laws, c. 508, § 2; 68 Del. Laws, c. 76, § 2; 68 Del. Laws, c. 268, § 1; 72 Del. Laws, c. 474, § 1.;

(a) The Secretary shall have jurisdiction over any project involving ungranted subaqueous lands owned by the State, and shall have jurisdiction and authority to convey a fee simple of lesser interest or to grant an easement with respect to all projects involving these lands. All jurisdiction and authority remaining in the State as to subaqueous lands for which leases have been made or may be made is invested in the Secretary.

(b) Owners of private subaqueous lands must obtain a permit from the Department before making any use of such lands which may contribute to the pollution of public waters, infringe upon the rights of the public, infringe upon the rights of other private owners or make connection with public subaqueous lands.

65 Del. Laws, c. 508, § 2; 68 Del. Laws, c. 76, § 3.;

The Department may eject from any subaqueous lands owned by the State any person, firm or corporation trespassing upon any such lands, including the fixed mooring of floating structures, through appropriate action in the courts of this State.

65 Del. Laws, c. 508, § 2.;

(a) No person shall deposit material upon or remove or extract materials from, or construct, modify, repair or reconstruct, or occupy any structure or facility upon submerged lands or tidelands without first having obtained a permit, lease or letter of approval from the Department. Such permit, lease or letter of approval, if granted, may include reasonable conditions required in the judgment of the Department to protect the interests of the public. The Department may adopt regulations setting fees for such permits. If it is determined that granting the permit, lease or approval will result in loss to the public of a substantial resource, the permittee may be required to take measures which will offset or mitigate the loss. This section shall not apply to any repairs or structural replacements which are above the mean low tide and which do not increase any dimensions or change the use of the structure.

(b) The Secretary shall annually prepare a schedule of fees for permits issued pursuant to this section and submit the same as part of the Department's annual operating budget proposal.

(c) The Secretary may waive any provision of the regulations adopted pursuant to this chapter when warranted under the following circumstances:

(1) Life-threatening emergencies.

(2) Actions required for public safety for which sufficient time is not available to follow the regulations.

(3) When imminent or catastrophic damage or loss of major infrastructure is likely if all provisions of the regulations are adhered to.

(4) Where the authority of the Department under this chapter overlaps with another statute, including but not limited to shellfish grounds (Chapter 19 of this title), wetlands (Chapter 66 of this title) or beach preservation (Chapter 68 of this title) provided that the following criteria are met:

a. If, in the opinion of the Secretary, equal environmental impact review and regulation of the activity would be provided by either statute; and

b. Waiver of these regulations would not be contrary to the purposes of this chapter.

(d) The Secretary may issue an after-the-fact permit, lease, letter of approval or waiver in those cases where an activity has occurred without first obtaining the required permit, lease, letter of approval or waiver. The determination of whether or not to issue an after-the-fact permit, lease, letter of approval or waiver shall be consistent with the purposes and provisions of this chapter. The applicant receiving the after-the-fact permit, lease, letter of approval, or waiver will be responsible for paying any associated processing fee and lease fee and the Secretary may assess a penalty in accordance with § 6005 of this title.

65 Del. Laws, c. 508, § 2; 68 Del. Laws, c. 86, § 9; 78 Del. Laws, c. 183, § 3; 79 Del. Laws, c. 147, § 3.;

(a) Pursuant to this chapter, the Secretary shall have exclusive jurisdiction and authority over all projects to convey a fee simple or lesser interest or to grant easements with respect to subaqueous lands belonging to the State. All jurisdiction and authority to convey a fee simple or lesser interest or to grant easements over subaqueous lands as to which grants have been made or may be made is vested in the Secretary. All leases for shellfish grounds shall be made pursuant to Chapter 19 of this title.

(b) All members of the General Assembly shall be given 2 weeks' notice of intent to convey any interest in subaqueous lands.

65 Del. Laws, c. 508, § 2; 68 Del. Laws, c. 76, § 4.;

(a) Each applicant for a lease, permit or grant, pursuant to this chapter, shall file with the Secretary a request stating in detail the type of lease, permit or grant desired, showing the location of the area and containing specifications for any proposed construction.

(b) The Secretary may require such additional information as will enable him or her to consider the application properly. He or she may require an environmental assessment to be provided if he or she determines that the proposed use or activity may have a substantial adverse effect upon the environment.

(c) The Secretary may request of any state agency a report or recommendation concerning any application before the Department.

(d) Upon receipt of an application in proper form, the Secretary shall advertise in a daily newspaper of statewide circulation and in a newspaper of general circulation in the county in which the activity is proposed:

(1) The fact that the application has been received;

(2) A brief description of the nature of the application; and

(3) A statement that a public hearing may be requested by any interested person who offers a meritorious objection to the application.

(e) If the Secretary decides that an objection is not meritorious, he or she shall then provide a written response so stating his or her reasons.

65 Del. Laws, c. 508, § 2; 70 Del. Laws, c. 186, § 1.;

(a) A public hearing shall be held:

(1) If a grant or lease for a period of time in excess of 20 years is sought; or

(2) If the Secretary determines that a public hearing is in the public interest; or

(3) If a written meritorious objection to the application is received within 20 days of the advertisement of the public notice for the application. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and provides a reasoned statement of the action's probable impact.

(b) Notice of the public hearing shall be sent to the applicant, to immediately adjacent property owners and to any interested person who requests it, and such notice shall be published in the same manner as the application.

(c) The Secretary shall make a written statement of reasons to be placed with the application if a public hearing is not held.

65 Del. Laws, c. 508, § 2; 69 Del. Laws, c. 50, § 1; 72 Del. Laws, c. 474, § 2.;

(a) The published notice shall contain a general description of the location of the property and a statement of the nature of the lease, permit or grant sought to be acquired.

(b) If the advertisement is also used to provide notice of a public hearing, it shall also give the time, date and place of the hearing, which shall occur not less than 20 days following the publication of the advertisement.

65 Del. Laws, c. 508, § 2.;

Any person whose interest is substantially affected by any action of the Secretary or of the Department taken pursuant to this chapter, may appeal to the Environmental Appeals Board as established by § 6007 of this title within 20 days after the announcement of the decision. Such appeal shall be governed by §§ 6008 and 6009 of this title. There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving state-owned subaqueous lands.

65 Del. Laws, c. 508, § 2; 68 Del. Laws, c. 76, § 5.;

(a) All costs for the proceedings under this chapter shall be assessed against the applicant.

(b) The Secretary may require a deposit at the time of the application or at any other time to insure the payment of the costs.

(c) All costs and deposits and all fees collected under this chapter are hereby appropriated to the Department to carry out the purposes of this chapter.

65 Del. Laws, c. 508, § 2.;

The Secretary may after public hearing, adopt, amend, modify or repeal rules or regulations to effectuate the policy and purposes of this chapter. The Secretary may delegate his or her powers or duties under this chapter, except the power to convey or to lease or grant easements in subaqueous lands.

65 Del. Laws, c. 508, § 2; 70 Del. Laws, c. 186, § 1.;

This chapter shall not change the law of this State relating to existing property, riparian or other rights of this State or other persons in submerged, tidelands or filled lands.

65 Del. Laws, c. 508, § 2.;

(a) Whoever violates this chapter or any rule or regulation duly promulgated thereunder, or any condition of a permit issued pursuant to § 7205 of this title, or any order of the Secretary, shall be subject to enforcement under § 6005 of this title.

(b)-(d) [Repealed.]

65 Del. Laws, c. 508, § 2; 79 Del. Laws, c. 147, § 3.;

The Secretary shall have the power to issue an order to any person violating any rule or regulation or permit condition or lease condition or provision of this chapter to cease and desist from such violation. Any cease and desist order issued pursuant to this section shall expire:

(1) After 30 days of its issuance;

(2) Upon withdrawal of said order by the Secretary; or

(3) When the order is superseded by an injunction, whichever occurs first.

65 Del. Laws, c. 508, § 2.;

No person shall obstruct, hinder, delay or interfere with, by force or otherwise, the performance by Department personnel of any duty under this chapter, or any rule or regulation or order or permit or decision, promulgated or issued thereunder.

65 Del. Laws, c. 508, § 2.;

(a) This chapter shall not apply to any work performed by any state, county, municipal government or conservation district, or their designated contractor, when that work occurs in nontidal submerged lands in the Delaware Atlantic Coastal Plain Province with a contributing drainage area of less than 800 acres.

(b) This chapter shall not apply to maintenance, reconstruction or retrofitting work performed by or with the assistance of any state, county, municipal government or conservation district when that work occurs in any nontidal submerged lands. Such maintenance, reconstruction or retrofitting work shall comply with the standards and specifications associated with best management practices in the Delaware Erosion and Sediment Control Handbook, 1989 or as revised (68 Del. Laws, c. 268, § 2).

(c) This chapter shall not apply to any work in agricultural drainage ditches created from nonsubaqueous lands that are designed according to reasonable drainage standards, when performed by or with the assistance of any state, county, municipal government or conservation district.

(d) This chapter shall not apply to ponds constructed in uplands when those ponds are constructed by or with the assistance of any state, county, municipal government or conservation district.

(e) This chapter shall not apply to stormwater ponds that are permitted in accordance with Chapter 40 of this title or to farm ponds or other ponds whose only source of hydrology is groundwater.

(f) The lease provisions of this chapter shall not apply to any wastewater conveyance or treatment works system owned or operated by the State or any county or municipal government with the State.

(g) This chapter shall not apply to subaqueous archaeological resources and unmarked human burials and human skeletal remains, which are regulated by the Department of State, Division of Historical and Cultural Affairs pursuant to Chapters 53 and 54 of this title.

68 Del. Laws, c. 268, § 2; 72 Del. Laws, c. 474, § 4; 75 Del. Laws, c. 153, § 12.;