Register of Regulations Volume 10 Commemorative Issue Issue Date: July 1, 2006 Volume 10 -Issue 1 Pages 1 - 200 Pursuant to 29 Del.C. Chapter 11, Subchapter III, this issue of the Register contains all documents required to be published, and received, on or before June 15, 2006. IN THIS ISSUE: Regulations: Emergency Proposed Final Governor: Executive Orders General Notices Calendar of Events & Hearing Notices INFORMATION ABOUT THE DELAWARE REGISTER OF REGULATIONS DELAWARE REGISTER OF REGULATIONS The Delaware Register of Regulations is an official State publication established by authority of 69 Del. Laws, c. 107 and is published on the first of each month throughout the year. The Delaware Register will publish any regulations that are proposed to be adopted, amended or repealed and any emergency regulations promulgated. The Register will also publish some or all of the following information: • Governor’s Executive Orders • Governor’s Appointments • Agency Hearing and Meeting Notices • Other documents considered to be in the public interest. CITATION TO THE DELAWARE REGISTER The Delaware Register of Regulations is cited by volume, issue, page number and date. An example would be: 9 DE Reg. 1036-1040 (01/01/06) Refers to Volume 9, pages 1036-1040 of the Delaware Register issued on January 1, 2006. SUBSCRIPTION INFORMATION The cost of a yearly subscription (12 issues) for the Delaware Register of Regulations is $135.00. Single copies are available at a cost of $12.00 per issue, including postage. For more information contact the Division of Research at 302-744-4114 or 1-800-282-8545 in Delaware. CITIZEN PARTICIPATION IN THE REGULATORY PROCESS Delaware citizens and other interested parties may participate in the process by which administrative regulations are adopted, amended or repealed, and may initiate the process by which the validity and applicability of regulations is determined. Under 29 Del.C. §10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file notice and full text of such proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this title. The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference to the legal authority of the agency to act, and reference to any other regulations that may be impacted or affected by the proposal, and shall state the manner in which persons may present their views; if in writing, of the place to which and the final date by which such views may be submitted; or if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such public hearing shall not be scheduled less than 20 days following publication of notice of the proposal in the Register of Regulations. If a public hearing will be held on the proposal, notice of the time, date, place and a summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general circulation. The notice shall also be mailed to all persons who have made timely written requests of the agency for advance notice of its regulation-making proceedings. The opportunity for public comment shall be held open for a minimum of 30 days after the proposal is DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 INFORMATION ABOUT THE DELAWARE REGISTER OF REGULATIONS published in the Register of Regulations. At the conclusion of all hearings and after receipt, within the time allowed, of all written materials, upon all the testimonial and written evidence and information submitted, together with summaries of the evidence and information by subordinates, the agency shall determine whether a regulation should be adopted, amended or repealed and shall issue its conclusion in an order which shall include: (1) A brief summary of the evidence and information submitted; (2) A brief summary of its findings of fact with respect to the evidence and information, except where a rule of procedure is being adopted or amended; (3) A decision to adopt, amend or repeal a regulation or to take no action and the decision shall be supported by its findings on the evidence and information received; (4) The exact text and citation of such regulation adopted, amended or repealed; (5) The effective date of the order; (6) Any other findings or conclusions required by the law under which the agency has authority to act; and (7) The signature of at least a quorum of the agency members. The effective date of an order which adopts, amends or repeals a regulation shall be not less than 10 days from the date the order adopting, amending or repealing a regulation has been published in its final form in the Register of Regulations, unless such adoption, amendment or repeal qualifies as an emergency under §10119. Any person aggrieved by and claiming the unlawfulness of any regulation may bring an action in the Court for declaratory relief. No action of an agency with respect to the making or consideration of a proposed adoption, amendment or repeal of a regulation shall be subject to review until final agency action on the proposal has been taken. When any regulation is the subject of an enforcement action in the Court, the lawfulness of such regulation may be reviewed by the Court as a defense in the action. Except as provided in the preceding section, no judicial review of a regulation is available unless a complaint therefor is filed in the Court within 30 days of the day the agency order with respect to the regulation was published in the Register of Regulations. CLOSING DATES AND ISSUE DATES FOR THE DELAWARE REGISTER OF REGULATIONS ISSUE DATE CLOSING DATE CLOSING TIME August 1 July 17 4:30 p.m. September 1 August 15 4:30 p.m. October 1 September 15 4:30 p.m. November 1 October 16 4:30 p.m. December 1 November 15 4:30 p.m. DIVISION OF RESEARCH STAFF Deborah A. Porter, Interim Supervisor; Kathleen Morris, Administrative Specialist I; Georgia Roman, Unit Operations Support Specialist; Jeffrey W. Hague, Registrar of Regulations; Steve Engebretsen, Assistant Registrar; Victoria Schultes, Administrative Specialist II; Lady Johnson, Administrative Specialist I; Rochelle Yerkes, Administrative Specialist II; Ruth Ann Melson, Legislative Librarian; Debbie Puzzo, Research Analyst; Judi Abbott, Administrative Specialist I; Alice W. Stark, Senior Legislative Attorney; Deborah J. Messina, Print Shop Supervisor; Don Sellers, Printer; Teresa Porter, Printer. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 TABLE OF CONTENTS EMERGENCY DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Long Term Care Residents Protection Nursing Home Survey Process......................................................................................................... 6 PROPOSED DEPARTMENT OF AGRICULTURE Delaware Agriculture Lands Preservation Foundation 1301 Regulations Governing the Delaware Agricultural Forestlands Preservation Program ........... 9 Thoroughbred Racing Commission 1001 Thoroughbred Racing Rules and Regulations, Section 15.0, Medication Testing, Subsection ..... 15.14, Blood Gas Testing........................................................................................................... 27 DEPARTMENT OF EDUCATION Office of the Secretary 505 High School Graduation Requirements and Diplomas............................................................... 30 Professional Standards Board 1526 Standard Certificate English to Speakers of Other Languages ............................................... 34 1527 Endorsement English to Speakers of Other Languages (ESOL) Teacher ............................... ............ 38 1537 Standard Certificate Bilingual Teacher (Spanish) Secondary .................................................. ............ 39 1558 Standard Certificate Bilingual Teacher (Spanish) Primary and Middle .................................... ............ 44 1570 Standard Certificate Early Childhood Teacher Special Education ........................................... ............ 45 DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Medicaid and Medical Assistance Long Term Care Medicaid................................................................................................................ 50 Title XIX Medicaid State Plan; DSSM 20620.2, Necessary Medical Care Expenses; DSSM 20995.1, ..... Post-Eligibility Deductions .......................................................................................................... ............ 52 Diamond State Health Plan 1115 Demonstration Waiver ................................................................. ............ 55 Assisted Living Medicaid 1915(c) Waiver ......................................................................................... ............ 56 Division of Social Services 9085 Reporting Changes ................................................................................................................. 57 DEPARTMENT OF INSURANCE 504 Continuing Education for Insurance Agents, Brokers, Surplus Lines Brokers and Consultants ...... 60 610 Automobile Premium Consumer Comparison .................................................................................. ............ 62 DEPARTMENT OF LABOR Division of Employment and Training 106 Apprenticeship and Training Regulations ................................................................................. 64 DEPARTMENT OF STATE Division of Professional Regulation 1800 Board of Plumbing Examiners ................................................................................................. 65 3000 Board of Professional Counselors of Mental Health and Chemical Dependency Professionals .......... 67 3600 Board of Registration of Geologists ......................................................................................... ............ 68 5300 State Board of Massage and Bodywork ................................................................................... ............ 71 Public Service Commission Regulation Docket No. 50, Proposed Adoption of “Electric Service Reliability and Quality Standards” ....... 74 FINAL DEPARTMENT OF AGRICULTURE Delaware Forest Service 402 State Forest Regulations ........................................................................................................... 88 DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 TABLE OF CONTENTS DEPARTMENT OF EDUCATION Office of the Secretary 103 Accountability for Schools, Districts and the State .................................................................... 89 Professional Standards Board 1511 Issuance and Renewal of Continuing License ........................................................................ 97 1516 Standard Certificate.................................................................................................................. ............ 98 14 Education Standard Certificates, Various Types.............................................................. ............ ......... 100 DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Social Services 15120 Financial Eligibility; 16230.1.2 Self-Employment Income; ..... 17300.3.2.4.1 Self-Employment Income; 20210.16 Self Employment ...................................... 143 DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Division of Water Resources 7402 Shellfish Sanitation Regulations .............................................................................................. 145 DEPARTMENT OF STATE Division of Professional Regulation 700 Board of Chiropractic ................................................................................................................ 146 Public Service Commission Regulation Docket No. 56, Proposed Adoption of “Rules to Implement Renewable Energy ..... Portfolio Standards”.................................................................................................................... 151 GOVERNOR Executive Order No. 87, Establishing The State Employees’ Charitable Campaign .................................... 158 GENERAL NOTICES DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Delaware Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) Under the 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) .................................... 163 CALENDAR OF EVENTS/HEARING NOTICES Delaware River Basin Commission, Notice of Public Hearing ...................................................................... 194 Dept. of Agriculture, Notices of Public Comment Period 1301 Agricultural Forestlands Preservation....................................................................................... ............ 194 1001 Thoroughbred Racing Rules and Regulations.......................................................................... ............ 195 Department of Education Monthly Meeting ................................................................................................... 195 Dept. of Health and Social Services, Div. of Medicaid/Div. of Soc. Services., Notices of Public Comment Period Long Term Care Medicaid; Diamond State Health Plan 1115 Demonstration Waiver..................... 195 Assisted Living Medicaid 1915(c) Waiver; 9085 Reporting Changes .............................................. ............ 196 Dept. of Insurance, Notices of Public Comment Period 504 Continuing Education for Insurance Agents, Brokers, Surplus Lines Brokers and Consultants ............ 196 610 Automobile Premium Consumer Comparison ............................................................................ ............ 197 Dept. of Labor, Notice of Public Hearing 106 Apprenticeship and Training Regulations .................................................................................. ............ 197 Dept. of State, Div. of Prof. Reg./Public Service Commission, Notices of Public Hearing 1800 Plumbing Examiners; 3000 Professional Counselors; 3600 Geologists .................................. ............ 198 5300 State Board of Massage and Bodywork ................................................................................... ............ 199 Public Notice of Proposed Adoption of Electric Service Reliability and Quality Standards ............... ............ 199 DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 EMERGENCY REGULATIONS Symbol Key Arial type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text. Language which is stricken through indicates text being deleted. Emergency Regulations Under 29 Del.C. §10119 an agency may promulgate a regulatory change as an Emergency under the following conditions: § 10119. Emergency regulations. If an agency determines that an imminent peril to the public health, safety or welfare requires the adoption, amendment or repeal of a regulation with less than the notice required by §10115, the following rules shall apply: (1) The agency may proceed to act without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable; (2) The order adopting, amending or repealing a regulation shall state, in writing, the reasons for the agency's determination that such emergency action is necessary; (3) The order effecting such action may be effective for a period of not longer than 120 days and may be renewed once for a period not exceeding 60 days; (4) When such an order is issued without any of the public procedures otherwise required or authorized by this chapter, the agency shall state as part of the order that it will receive, consider and respond to petitions by any interested person for the reconsideration or revision thereof; and (5) The agency shall submit a copy of the emergency order to the Registrar for publication in the next issue of the Register of Regulations. (60 Del. Laws, c. 585, §1; 62 Del. Laws, c. 301, § 2; 71 Del. Laws, c. 48, §10.) DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF LONG TERM CARE RESIDENTS PROTECTION Statutory Authority: 16 Delaware Code, Section 1119C (16 Del.C. §1119C) PUBLIC NOTICE Nature of the Proceedings This Emergency Regulation is being promulgated to amend the Division of Long Term Care Residents Protection Regulations in order to improve the nursing home survey process. Delaware Health and Social Services (“Department”) / Division of Long Term Care Residents Protection must take this action on an emergency basis without prior notice or hearing to ensure the health, safety, and welfare of the residents of Delaware’s long term care facilities. Summary of Changes Statutory Basis 16 Del.C. §1119C Summary of Provisions 1) Effective immediately, the Division of Long Term Care Residents Protection shall maintain full compliance with CMS regulations and appendices regarding nursing home surveys as contained in 42 CFR 483.1 to 483.480 and 488.1 to 488.456. 2) No later than June 15, 2006, the Division of Long Term Care Residents Protection shall establish a DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 EMERGENCY REGULATIONS Quality Assurance Review Team (QAR Team). The QAR Team shall consist of: • The Director of the Division • The Deputy Director of the Division • The Medical Director of the Division • The Quality Assurance Administrator of the Division • The Health Facilities Certification Administrator of the Division 3) No later than July 1, 2006, the Division of Long Term Care Residents Protection shall retain the services of a licensed physician to perform the duties of Medical Director, which shall include but not be limited to reviewing medical records, advising the Division on medical issues, testifying on the Division’s behalf at Informal Dispute Resolution hearings, and participating in the QAR Team. 4) No later than July 15, 2006, all nursing home survey reports, whether generated as a result of annual, complaint, and/or surprise inspections, which recommend a nursing, pharmaceutical, nutritional, and/or environmental citation at “G” level or above shall be reviewed and approved by the QAR team within 5 working days of receipt of such report containing a “G” level or above citation. The Team shall review each such citation for application of the appropriate regulations, for accuracy of data, for adequacy of supporting documentation, and for consistent adherence to CMS regulations. A written quarterly report shall be made to the Nursing Home Quality Assurance Commission regarding any upgrades to “G” level or above and downgrades to “G” level or below by the QAR Team, setting forth the number of such downgrades and upgrades at each facility and the reasons for each. The report shall not identify facilities by name. The first such report shall be submitted no later than June 15, 2006. Subsequent quarterly reports shall be submitted on the 15th of every September, December, March, and June. 5) No later than September 15, 2006, the Department of Health and Social Services shall reclassify a vacant position to a Nurse Supervisor for the Division of Long Term Care Residents Protection, to provide nurse supervision for the Division’s Wilmington office. Findings of Fact The Department finds that the proposed changes should be made in the best interest of the general public of the State of Delaware. The Department will receive, consider, and respond to petitions by any interested person for the reconsideration or revision thereof. THEREFORE, IT IS ORDERED, that the emergency regulation proposed to improve the nursing home survey process is adopted as an emergency order with an effective date of June 15, 2006. 6/12/06 Vincent P. Meconi, Secretary, DHSS DLTCRP Emergency Order 1) Effective immediately, the Division of Long Term Care Residents Protection shall maintain full compliance with CMS regulations and appendices regarding nursing home surveys as contained in 42 CFR 483.1 to 483.480 and 488.1 to 488.456. 2) No later than June 15, 2006, the Division of Long Term Care Residents Protection shall establish a Quality Assurance Review Team (QAR Team). The QAR Team shall consist of: • The Director of the Division • The Deputy Director of the Division • The Medical Director of the Division DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 EMERGENCY REGULATIONS • The Quality Assurance Administrator of the Division • The Health Facilities Certification Administrator of the Division 3) No later than July 1, 2006, the Division of Long Term Care Residents Protection shall retain the services of a licensed physician to perform the duties of Medical Director, which shall include but not be limited to reviewing medical records, advising the Division on medical issues, testifying on the Division’s behalf at Informal Dispute Resolution hearings, and participating in the QAR Team. 4) No later than July 15, 2006, all nursing home survey reports, whether generated as a result of annual, complaint, and/or surprise inspections, which recommend a nursing, pharmaceutical, nutritional, and/or environmental citation at “G” level or above shall be reviewed and approved by the QAR team within 5 working days of receipt of such report containing a “G” level or above citation. The Team shall review each such citation for application of the appropriate regulations, for accuracy of data, for adequacy of supporting documentation, and for consistent adherence to CMS regulations. A written quarterly report shall be made to the Nursing Home Quality Assurance Commission regarding any upgrades to “G” level or above and downgrades to “G” level or below by the QAR Team, setting forth the number of such downgrades and upgrades at each facility and the reasons for each. The report shall not identify facilities by name. The first such report shall be submitted no later than June 15, 2006. Subsequent quarterly reports shall be submitted on the 15th of every September, December, March, and June. 5) No later than September 15, 2006, the Department of Health and Social Services shall reclassify a vacant position to a Nurse Supervisor for the Division of Long Term Care Residents Protection, to provide nurse supervision for the Division’s Wilmington office. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS Symbol Key Arial type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text. Language which is stricken through indicates text being deleted. Proposed Regulations Under 29 Del.C. §10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file notice and full text of such proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this title. The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference to the legal authority of the agency to act, and reference to any other regulations that may be impacted or affected by the proposal, and shall state the manner in which persons may present their views; if in writing, of the place to which and the final date by which such views may be submitted; or if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such public hearing shall not be scheduled less than 20 days following publication of notice of the proposal in the Register of Regulations. If a public hearing will be held on the proposal, notice of the time, date, place and a summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general circulation. The notice shall also be mailed to all persons who have made timely written requests of the agency for advance notice of its regulation-making proceedings. DEPARTMENT OF AGRICULTURE DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION Statutory Authority: 3 Delaware Code, Section 904 (3 Del.C. §904(a)(13) 3 DE Admin. Code 904 NOTICE OF PUBLIC HEARING 1301 Regulations Governing the Delaware Agricultural Forestlands Preservation Program The Delaware Agricultural Lands Preservation Foundation (the "Foundation") will hold a public hearing to discuss proposed regulations relating to the administration of the Delaware Agricultural Forestland Preservation Program established pursuant to 3 Del.C. §931. The Foundation was established by the Delaware Legislature pursuant to 3 Del.C. §903. The Foundation is responsible for, among other things, adopting criteria for the establishment and maintenance of Forestland Preservation Areas and establishing criteria for the purchase of Forestland Preservation Easements. To carry out its statutory responsibilities, the Foundation has been directed to, among other things, adopt rules of practice and procedure for the acquisition of Forestland Preservation Easements, including the process and timeframe for submitting applications for the sale of Forestland Preservation Easements, the establishment of the purchase price for the easements through the use of appraisal information, the manner in which offers to sell such easements are accepted, and the basis upon which offers for sale of such easements are accepted. Pursuant to its statutory authority, the Foundation is proposing for adoption a comprehensive set of guidelines and regulations to be used for the administration of the forestlands preservation program. The proposed regulations published herein will, among other things: (a) establish eligibility criteria, (b) establish application procedures, (c) establish criteria for the purchase of Forestland Preservation Easements and methods by which the purchase price will be determined, (d) establish ranking criteria for easement applications, and (e) establish the legal forms to be used in connection with the creation of Forestland Preservation Areas and Easements. The public hearing will be on Wednesday, July 26, 2006 beginning at 10:00 a.m. and ending at 12:00 p.m. at the Foundation's office located at 2320 S. DuPont Highway, Dover, Delaware 19901. Copies of the proposed regulations are available for review by contacting: William A. Denman, Esquire Parkowski, Guerke & Swayze, P.A. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS 116 W. Water Street Dover, DE 19904 (302) 678-3262 Email: wdenman@pgslegal.com Anyone wishing to present oral comments at this hearing should contact Mr. William A. Denman at (302) 6783262 by July 25, 2006. Anyone wishing to submit written comments as a supplement to, or in lieu of oral testimony, should submit such comments by July 31, 2006 to: William A. Denman, Esquire Parkowski, Guerke & Swayze, P.A. 116 W. Water Street Dover, DE 19904 (302) 678-3262 Email: wdenman@pgslegal.com 1301 Regulations Governing the Delaware Agricultural Forestlands Preservation Program The Foundation is granted authority to establish criteria for Forestland Preservation Areas (hereinafter referred to as "Forestland Preservation Area") and the purchase of forestland preservation easements. [3 Del.C., §933] 1.0 Criteria for Forestland Preservation Area Eligibility 1.1 In order to qualify for the Agricultural Forestland Preservation Program, the lands proposed as a Forestland Preservation Area in the application must meet the following criteria: 1.1.1 the owner(s) shall hold fee simple title to all land to be placed in the Forestland Preservation Area; 1.1.2 the land must constitute a contiguous area of trees or forest and cover at least 10 acres in size and be capable of being timbered and reforested, as determined by the State Forester; 1.1.3 the land shall be zoned to allow for agricultural or open space uses and shall not be subject to any major subdivision plan; 1.1.4 the applicant(s), including all fee simple title holders, must sign a written agreement committing to the Forestland Preservation Area restrictions set forth in this Section and 3 Del.C., §934 and other adopted requirements; 1.1.5 the land must be viable and potentially productive forestlands; 1.1.6 the land must be located outside a designated Growth Zone, as that term is defined in 9 Del.C. §902(9); 1.1.7 the land must not be subject to an existing conservation or preservation easement or other restriction which prohibits development; 1.1.8 the land proposed for inclusion shall include all of the eligible forestlands located in the tax parcels subject to the application, and no eligible real property shall be carved out or otherwise excluded. One (1) location containing no more than one (1) acre of land may be designated for seasonal recreational dwelling usage provided that the property proposed for inclusion contains at least 30 acres and the use of the designated area does not adversely affect the forestlands of the property. The owner may designate up to three residential locations as permitted under 9 Del.C. §933(8)(b), provided that any seasonal recreational dwelling shall be counted against the total allowable dwelling units; 1.1.9 no more than one (1) acre of land for each 20 acres of usable forestlands, up to a maximum of 10 acres, can be used for permanent dwelling housing; 1.1.10 the land shall have a forest management plan prepared by a professional forester that addresses the landowner's forest management goals for the land. The plan shall contain, at a minimum, aerial and soil maps of the land, a description and analysis of the forest by management unit, silvicultural prescriptions for each management unit, shall be revised and updated at least once every five years, and shall be available for inspection by the State Forester's office. 1.2 For the purposes stated in this chapter, the phrase "viable and potentially productive forestlands" is defined as land that is capable of being timbered and reforested as determined by the State Forester. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS 2.0 Application Procedures 2.1 The Foundation will provide application forms (Appendix A) on which applicants who volunteer to place their lands into a Forestland Preservation Area will (shall) provide the following information: 2.1.1. name of petitioner(s) 2.1.2. mailing address(es) 2.1.3 telephone number(s) 2.1.4 property location 2.1.4.1 county 2.1.4.2 community name 2.1.4.3 tax parcel number for each parcel 2.1.5 deed or property description 2.1.6 area - total acreage of: 2.1.6.1 open space 2.1.6.2 forestlands 2.1.6.3 pasture 2.1.6.4 tidal wetlands 2.1.6.5 farm or commercial structures 2.1.6.6 residence/buildings 2.1.6.7 other 2.1.7 land use/zoning designation or designations 2.1.8 easements/rights-of-way (identify, if any) 2.1.9 mortgages/liens (identify, if any): 2.1.9.1 mortgagee or lien holder's name or names 2.1.9.2 date of mortgages or liens 2.1.10 number of dwelling units and any residential acreage designated by theowner pursuant to 9 Del.C. §933(8). 2.1.11 forest management plan (if any) 2.1.12 information regarding the occupancy of dwelling units on the property 2.1.13 the approximate location of the acreage, if any, the applicant intends to designate for seasonal recreational dwelling usage pursuant to 3 Del.C., §933(7). 2.2 The Foundation shall provide assistance to potential applicants in completing application forms when requested. 2.3 Foundation staff may conduct on-site inspections and/or phone interviews with the applicants to acquire data necessary to review the application and write a staff report. 2.4 In conjunction with the application, all fee simple owners shall sign a Forestland Preservation Area Agreement (Appendix B) which serves as a declaration in recordable form and acknowledgment of the policies and restrictions that must be followed, and all benefits realized in a Forestland Preservation Area. 3.0 Application Review Procedures The Foundation, subject to the review and approval of the State Forester, has the authority to approve applications establishing Forestland Preservation Areas and to purchase forestland preservation easements. [3 Del.C., §931] 3.1 The Foundation staff and the State Forester will review applications and determine whether or not the minimum eligibility requirements under Section 1.1 have been met. 3.2 If the minimum eligibility requirements have not been met, the applicant will be notified by letter from the Foundation indicating that the application does not qualify for further review, and the reasons for ineligibility. 3.3 If an applicant excludes a portion of property otherwise includable in a proposed Forestland Preservation Area, the Foundation shall deny the application; provided however that the applicant shall have the right to designate a location for seasonal recreation dwelling usage and residential usage, as allowed by law. 3.4 Subject to Section 3.3 above, if the lands proposed as a Forestland Preservation Area in the application meet minimum eligibility criteria, then the Foundation staff will submit to the Foundation and the State Forester applications and criteria checklists describing and summarizing the criteria as established in this chapter. 3.5 If the applicant disagrees with the staff evaluation of the proposed Forestland Preservation Area, then the applicant may contact the Foundation staff to discuss the application review. The Foundation staff will meet with the DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS landowner to discuss the review within thirty (30) days from receiving such telephone call or letter. 3.6 If the issue is not resolved to the applicant's satisfaction, the applicant may request an administrative review with the Foundation by submitting a letter to the Foundation within fourteen days (14) of the applicant's last meeting with Foundation staff. This letter must include reasons and documentation to justify the applicant's claim(s). 3.7 Within seven (7) working days from the receipt of the landowner's letter, the Foundation will schedule a meeting and notify the applicant by certified letter of the date, time, and place of the meeting, at least seven (7) days in advance. 3.8 At the administrative review meeting, the applicant(s) shall present information or documentation as to how the proposed Forestland Preservation Area satisfies the eligibility criteria. 3.9 The Foundation will render a decision within thirty (30) days from the administrative review meeting and notify the applicant in writing of its decision. 4.0 Creation of a Forestland Preservation Area 4.1 To establish a Forestland Preservation Area, the application must be approved by the Foundation and the State Forester. [3 Del.C., §932 (a)] 4.2 After review by the Foundation and State Forester, the application is subject to a review period of thirty (30) days in which the Secretary of Agriculture may reject the application. The application shall be deemed officially approved at the end of the review period if it is not rejected by the Secretary of Agriculture. [3 Del.C., §919 and 938] 4.3 The property legally becomes a Forestland Preservation Area when the applicant and Foundation Chairperson (or designee) have signed the Forestland Preservation Area Agreement and no rejection has been exercised by the Secretary of Agriculture, or the Secretary of Agriculture has specifically approved the application. 4.4 Copies of the Forestland Preservation Area Agreement shall be filed with the County Planning and Zoning and Tax Assessor's Offices and recorded in the Office of the Recorder of Deeds. The Foundation shall require from these Offices proof of recording and/or receipt of the Forestland Preservation Area Agreement. 4.5 The Foundation shall endeavor to provide written notification of the date of establishment of the Forestland Preservation Area and provide a copy of the Forestland Preservation Area Agreement to the applicant, however, the failure of the Foundation to satisfy any formality following execution of a Forestland Preservation Area Agreement shall not affect the validity of the Forestland Preservation Area Agreement. 5.0 Forestland Preservation Area Restrictions 5.1 Any rezoning or major subdivision of real property included in a Forestland Preservation Area is prohibited. [3 Del.C., §934 (a)(1)] 5.2 The submission of applications for preliminary rezoning or approval of subdivision plans for any property within a Forestland Preservation Area to a county or municipality shall be considered evidence of the intent to rezone or subdivide and no action shall be taken by any county or municipality on any such application until the expiration of the Forestland Preservation Area Agreement. 5.3 During the term of the Forestland Preservation Area Agreement, activities on the property shall be limited to forestry production, forestry operations, forestry management and control, wildlife habitat management, and activities related to the foregoing. [9 Del.C., §934(a)(2)] 5.4 Forestry management, control and related activities allowed on Forestland Preservation Areas are as follows: 5.4.1 Hunting, trapping and fishing, provided such activities are limited to private non-commercial activities that do not adversely affect the forestland use of the property, and provided further that leasing of the property for such non-commercial activities shall be allowed. 5.4.2 Easements, licenses and other property interests for utility, telecommunications, and access uses are allowed subject to the requirements set forth in 9 Del.C. §909(a)(5)(f). 5.4.3 The use of portable non-permanent forest planting, harvesting and processing equipment. 5.4.4 Conservation, educational and research activities related to forestlands. 5.4.5 Ditching for drainage necessary to enhance or preserve forestlands. 5.4.6 The grazing of livestock, excluding housing or shelters, subject to prior approval by the State Forester. 5.4.7 Timbering and reforestation. 5.4.8 Noncommercial private recreational uses such as hiking, horseback riding, and primitive camping, provided such activities do not adversely affect the forestland use of the property. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS 5.4.9 Activities involving best forestland management practices. 5.5 No more than 1 acre of land for each 20 acres of usable land in a Forestland Preservation Area, subject to a maximum of 10 acres, shall be allowed for permanent dwelling housing. The seasonal recreational dwelling usage designated pursuant to 9 Del.C. §933(7) shall be counted against the total allowable permanent dwelling housing acreage. With respect to acreage allowed for dwelling housing there shall be a limit of 3 dwelling houses for residential use placed on the allowable acreage at 3 locations designated by the owner. This limit shall include any pre-existing dwelling housing and/or the seasonal dwelling usage designated pursuant to 9 Del.C. §933(7). If however there exists 3 dwelling houses on the real property at the time of approval of the new Forestland Preservation Area, the allowable total number of dwelling housing and the allowable acreage shall be allocated to the existing dwelling houses and no additional dwelling houses, including seasonal dwelling usage, shall be allowed. The aforesaid dwelling housing allowances are subject to any applicable zoning laws and regulations, and the approval of said allowances by the Foundation shall not be considered a representation by the Foundation that said allowances comply with any applicable zoning laws and regulations. 5.6 Excavation or filling, borrow pits, extraction, processing and removal of sand, gravel, loam, rock or other minerals is prohibited unless such action is currently required by or ancillary to forestry management, control and related activities allowed on forestland preservation areas. 5.7 Activities that would be detrimental to drainage, flood control, water conservation, erosion control or soil conservation are prohibited. 5.8 Any other activity that might negatively affect the continued use of the land as forestlands is prohibited. 5.9 No conversion of forestland to cropland, pasture-land, open space or other types of land use shall be allowed. 5.10 No permanent commercial or industrial structures shall be located on the property. 5.11 No disposal, burial, storage, or stock piling of junk, vehicles, equipment, liquid or solid waste or other liquid or solid materials shall be allowed, except that wastewater spray irrigation shall be allowed utilizing best available treatment technology with storage and treatment facilities located on lands outside the Forestland Preservation Area. 5.12 The Forestland Preservation Area Agreement and Forestland Preservation Area requirements and benefits shall be binding on the heirs, successors and assigns of property owners within a Forestland Preservation Area. A property owner intending to transfer all or a portion of the property in a Forestland Preservation Area shall provide written notice to the Foundation at least (10) days in advance of the date of transfer of the property, and shall notify the purchaser or transferee that the property is subject to Forestland Preservation Area restrictions. Any transfer of real property in a Forestland Preservation Area shall be preceded by the execution by the transferor and the transferee of an Acknowledgment in the form on Appendix C and in recordable form acknowledging the restrictions applicable to the property and the agreement by the transferee to be bound by said restrictions. 5.13 Pursuant to 3 Del.C., §934 (d), all restrictions shall be covenants which run with and bind the lands in the Forestland Preservation Area for a minimum of ten (10) years, beginning when the Forestland Preservation Area Agreement takes effect as specified in the Forestland Preservation Area Agreement. 6.0 Continuation of a Forestland Preservation Area 6.1 All properties are to remain in a Forestland Preservation Area for at least ten (10) years. 6.2 If a landowner wishes to withdraw from, or terminate a Forestland Preservation Area, then the Foundation must receive a written notice of intent to withdraw no less than six (6) months prior to the ten (10) year anniversary date of initial establishment of the Forestland Preservation Area. [3 Del.C. §934 (d)] 6.3 If the Foundation does not receive a written notification of the landowner's intent to withdraw from the Forestland Preservation Area at least six (6) months prior to the ten (10) year anniversary date of that Forestland Preservation Area, then the land shall remain in the Forestland Preservation Area for an additional five-year period unless and until written notice of intent to withdraw shall be given at least six months prior to the end of each additional five-year period. 7.0. Inspection of Forestland Preservation Area The Foundation and State Forester shall have the authority to enter upon lands located within a Forestland Preservation Area as may be necessary to perform surveys, appraisals, and investigations to accomplish its mission; consistent with applicable statutes and these regulations. [3 Del.C., §939] 7.1 The Foundation or its designee, including the State Forester, reserves the right to inspect restricted land and enforce agreements. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS 7.2 If any violations of the terms and the conditions of the Forestland Preservation Area Agreement occur, the Foundation may institute proceedings in the appropriate court to enforce the terms and seek appropriate relief. [3 Del.C., §939] 8.0 Purchase of Forestlands Preservation Easements [3 Del.C., §936] 8.1 The intent of this section is to provide a framework for the acquisition of Forestland Preservation Easements (hereinafter referred to as "Forestland Preservation Easements") to protect in perpetuity those lands of the state most suitable for long-term utilization of forestland resources while preserving invaluable wildlife and habitat protections and open space benefits to the citizens of the State of Delaware. 8.2 The Foundation will place greatest emphasis on acquiring Forestland Preservation Easements in areas where significant forestlands can be maintained for long-term forestry production. 8.3 Based on the long-range goal set forth in Section 8.2, the Foundation will only consider properties outside of state designated growth areas in the acquisition of Forestland Preservation Easements. 8.4 In the criteria established for the prioritization of Forestland Preservation Easements, the Foundation will also give weight to the Forest Land Evaluation (LE) score for the subject parcel and the location of the subject parcel in relation to State Resource Areas (SRAs) and state-designated Natural Areas. 9.0 Schedule for Acquisition of Forestland Preservation Easements 9.1 Recognizing that voluntary applications by Forestland Preservation Area landowners may exceed available funds for the procurement of Forestland Preservation Easements, it is necessary to establish a procedure for pooling, reviewing, prioritizing, and funding applications for permanent Forestland Preservation Easements. 9.2 Application and funding cycles will take place on schedules established by the Foundation. 9.3 Applications for the purchase of Forestland Preservation Easements in Rounds of Purchases shall be subject to deadlines established by the Foundation. 9.4 For each Round of Forestland Preservation Easement Purchases the Foundation shall rank the applications in the Round in accordance with the criteria set forth herein. 9.5 Upon completion, the appraisals shall be provided to the landowners, and the procedures set forth herein involving offers for the sale of preservation easements shall be initiated. 9.6 After receipt and the completion of review of offers for the sale of preservation easements, the Foundation shall review the offers and announce the selections. 9.7 Following the selection of properties for acquisition of Forestland Preservation Easements, the Foundation shall arrange for surveys of the properties to be conducted, and proceed to settlement under the terms of option agreements, subject to the availability of funding and satisfaction of regulatory, financial or other restrictions or limitations. 9.8 The Foundation is under no obligation to purchase a Forestland Preservation Easement which is offered for sale. 10.0 Matching Contributions To The Program 10.1 The Foundation may establish a reserve of available funds for the matching of federal, county, state, local, or private funds for the preservation of forestlands. 11.0 Eligibility Criteria For Forestland Preservation Easements The criteria for eligibility of acquisition of a Forestland Preservation Easement shall be the same as the criteria for Forestland Preservation Area eligibility. In addition, offered preservation easement lands shall be in an established Forestland Preservation Area and in compliance with Forestland Preservation Area requirements to be eligible; provided however that the Foundation shall have the authority to acquire Forestland Preservation Easements located within an existing Agricultural Preservation District heretofore approved by the Foundation. The Foundation shall have the right, in its sole discretion, to acquire a Forestland Preservation Easement on only a part of the property included within the Forestland Preservation Area Agreement or Agricultural Preservation District, as the case may be. 12.0 Application Procedures 12.1 A separate application shall be required for each forestland tract offered for Forestland Preservation Easement purchase. The Foundation shall not be obligated to process any incomplete application. 12.2 The Foundation shall develop, and make available to landowners or other interested parties, an DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS application form which requires the following information: 12.2.1 Name, address, telephone number and signature of the owner of the forestlands. 12.2.2 County, municipality or hundred, and Forestland Preservation Area in which the forestlands are located. 12.2.3 Total acreage of the forestlands and the number of acres of that tract proposed for Forestland Preservation Easement purchase. 12.2.4 Street/Road location of the forestlands, and directions from the nearest State route. 12.2.5 Deed reference - book, volume and page. 12.2.6 County tax map records, including tax parcel number, or account number of each parcel. 12.2.7 A copy of the forest management plan prepared by a professional forester shall be submitted with the application. 12.2.8 Name, address and telephone number of the person to be contacted to view the forestlands tract. 12.2.9 The approximate location of the acreage, if any, the applicant intends to designate for seasonal dwelling or residential use pursuant to 3 Del.C., §933(8)(b). 12.3 A form of Application is attached hereto as Appendix D. 13.0 Review and Evaluation of Forestlands Preservation Easement Application 13.1 The Foundation shall review the application to determine if it is complete and meets the minimum criteria set forth herein. 13.2 If the application is complete and the minimum criteria are met, a representative of the Foundation shall view the forestlands. 13.3 The Foundation shall for each Round of Preservation Easement Purchases evaluate applications which meet the minimum criteria and rank the applications in accordance with the criteria of Section 14. Notwithstanding the ranking procedure set forth in Section 14, the Foundation shall be entitled to have all eligible properties appraised and considered for purchase of Forestland Preservation Easements. 14.0 Ranking Criteria for Forestland Preservation Easement Applications 14.1 A system for ranking Preservation Easement applications is established to assist the Foundation in reaching a final decision. 14.2 Four categories will be utilized to rank the Preservation Easement applications during the Foundation's review period with a maximum score of 220 points. The four categories, each of which is discussed below, are forest productivity, size of discount, proximity to State Resource Area, and proximity to a state designated Natural Areas. In the event of a tie score, the property with the higher Forest Land Evaluation (LE) will receive the higher ranking. If the tie score is not resolved by the Forest LE scores, then the parcel with the greater acreage will receive the higher ranking. 14.3 Forest Productivity - Forest Land Evaluation Score -100 Points. In order to follow a rational, statewide plan for the acquisition of development rights on forestlands, the Foundation will give weight to applications for sale of Preservation Easements based on the land's capacity to produce timber. A property's Forest LE score will be used to reflect this capacity. Forest LE scores range from 0 to 100 with 100 reflecting the best soils for timber production. Land with multiple soil types with differing LE scores will be categorized based on a weighted area average of the various LE scores. 14.4 Forestland Preservation Easement Discount - 100 Points. The Foundation will also consider applications for sale of Forest Preservation Easements based on the ability to purchase easements at a discounted cost or donation. Weight will be given to the owner's willingness to receive a discounted payment from the appraised value of the Forestland Preservation Easement. One point will be awarded for each percentage of discount provided by the owner from the appraised value of the Forestland Preservation Easement. 14.5 Other factors - 20 Points. Other criteria the Foundation will consider in the ranking of applications for sale of Forest Preservation easements will include the property's natural resource values, in addition to timber, and its location relative to lands designated as high priority for protection by the State. Ten (10) points will be awarded if the property is located within a State Resource Area (SRA) as DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS defined in 7 Del.C. §7507. A property shall be considered within a SRA if at least half of the property's area is located within the SRA. Ten (10) points will be awarded if the property is located within a state-designated Natural Area as defined in 7 Del.C. Ch. 73. A property shall be considered within a Natural Area if at least half of the property's area is located within the Natural Area. 15.0 Appraisals [3 Del.C., §916] 15.1 An offer to purchase a Forestland Preservation Easement shall be based upon one or more appraisal reports which estimate the full market value of the forestlands under its agricultural zoning designation and the forest- only value of the forestlands tract. Any appraisal obtained by the Foundation shall remain the property of the Foundation and may not be used by the property owner for tax purposes. 15.2 Subject to Section 15.7 hereof, an appraisal to the extent possible shall be based primarily on an analysis of comparable sales. 15.3 The value of buildings or other improvements on the forestlands shall be excluded in determining the Forestland Preservation Easement value. The value of the buildings or other improvements shall appear separately in the appraisal. Excluded from the value of the Forestland Preservation Easement shall be the acreage designated for residential use or seasonable dwelling use. 15.4 The appraiser shall be: 15.4.1 An independent, licensed real estate appraiser who is qualified to appraise a property for easement purchase. An appraiser shall be selected on the basis of experience, expertise and professional designation, and 15.4.2 A member of an organization which subscribes to the "Uniform Standards of Professional Appraisal Practice" published by the Appraisal Standards Board of the Appraisal Foundation, and shall follow their ethical and professional standards. 15.5 The appraiser shall supply a narrative report which contains the following information and (must be) is in the following format: 15.5.1 Introduction 15.5.1.1 Professional qualifications of the appraiser 15.5.1.2 Letter of transmittal or appraiser certificate 15.5.1.3 Table of contents 15.5.1.4 Summary of salient facts and conclusions 15.5.1.5 Purpose of the appraisal 15.5.1.6 Easement value definition as provided in 3 Del.C. §916(a) 15.5.2 Description of property 15.5.2.1 Area or neighborhood description 15.5.2.2 Description of appraised property 15.5.2.2.1 Legal description 15.5.2.2.2 Property data and zoning 15.5.2.2.3 Description of improvements 15.5.2.2.4 Photos and sketches (if available) of subject property 15.5.2.2.5 Tax map of subject property. In instances where the county does not have tax maps available, the sketch map required below shall include the boundary lines and acreage of properties adjoining the subject property and the names of all adjoining property owners 15.5.2.2.6 Location map 15.5.2.2.7 Development constraints. The appraiser shall report whether the farmland tract has public or private land use restrictions, is within a flood plain, or has other physical attributes which limit its developmental capability 15.5.3 Analyses and conclusions 15.5.3.1 Analysis of highest and best development use 15.5.3.2 Full market valuation 15.5.3.2.1 Comparable sales data 15.5.3.2.2 Adjustment grid 15.5.3.2.3 Location map of comparable sales 15.5.3.2.4 Market value estimate DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS 15.6 The appraiser shall provide at least one original and three copies of each report to the Foundation. The original of each report and all copies shall be bound with rigid covers. 15.7 The forest-only valuation shall be based on the property's capacity to produce timber through the soil type(s) located on the property. The State Forester shall calculate annual timber production rates for each soil type and determine a five-year, rolling average of timber sale prices for the state. These values will produce an average annual income per acre for the property. This income value will then be capitalized to produce the forest-only valuation using a five-year, rolling average rate of return. 15.8 The Forestland Preservation Easement value is then calculated using the full market valuation appraisal and the forest-only valuation. 16.0 Comparable Sales Data 16.1 The appraiser shall supply information concerning comparable sales as follows: 16.1.1 At least four comparable sales shall be used for an appraisal. If the appraiser cannot obtain sufficient comparable sales data within the same general area as the subject farmland tract, the appraiser may use comparable sales from other areas within the county, state or outside the state, after consultation with the Foundation. The use of comparable sales which require adjustment of 50 percent or more is permitted only with the approval of the Foundation. 16.1.2 Pertinent data for each comparable sale used in the preparation of the appraisal shall be stated in the appraisal report, including date of sale, purchase price, road frontage in feet, soil series, an estimate of the range of slope and other relevant information. The appraisal shall include an analysis comparing the pertinent data for each comparable sale to the subject farmland tract. 16.1.3 The location of each comparable sale used in the appraisal report shall be shown accurately on the comparable sales map and sufficiently identified and described so as to be located easily. 17.0 Agricultural Lands Preservation Easement Value and Purchase Price 17.1 The value of a Forestland Preservation Easement in perpetuity shall be the difference between the full market value and the forest-only value contained in the appraisal report. 17.2 The price paid by the Foundation for the purchase of a Forestland Preservation Easement may not exceed, but may be less than, the value of the Forestland Preservation Easement. [3 Del.C. §916(a)] 17.3 If an applicant is not satisfied with the appraisal provided by the Foundation, the applicant shall be entitled to have an independent appraisal performed at the applicant's expense by a qualified appraiser as specified in Section 15.4. The alternative appraisal shall be prepared in the same format as the Foundation's appraisal and shall be submitted to the Foundation within forty-five (45) days of the applicant's date of receipt of the appraisal provided by the Foundation. The forty-five (45) day period may be extended by the Foundation, provided the time extension does not delay the time frame established by the Foundation for making selection and acquisition decisions. 17.4 The review of the alternative appraisals by the Foundation shall be based on written submissions under such procedures as specified by the Foundation. 17.5 The maximum adjusted Preservation Easement value which the Foundation may accept is the difference between the adjusted forest-only value and the adjusted full market value, determined as follows: 17.5.1 The adjusted forest-only value shall equal the sum of: 17.5.1.1 The forest-only value determined by the applicant's appraiser, and 17.5.1.2 Up to one-half of the positive difference between the forest-only value determined by the Foundation's appraiser and his/her values which exceed those determined by the applicant's appraiser. 17.5.2 The adjusted full market value shall equal the sum of: 17.5.2.1 The full market value determined by the Foundation's appraiser, and 17.5.2.2 Up to one-half of the positive difference between the full market value determined by the applicant's appraiser and his/her values which exceed those determined by the Foundation's appraiser. 18.0 Offer of Purchase by the Foundation 18.1 The priority for making purchases of Forestland Preservation Easements shall be those properties with the highest score as described in Section 14. 18.2 Notwithstanding the priority and non-priority requirements set forth in this Section, the Foundation (1) DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS shall be entitled to accept donations of preservation easements under such terms and conditions that may be imposed in the donations, provided the preservation easements contain the restrictions imposed under 3 Del.C., Ch. 9 and (2) the Foundation shall be entitled to participate in programs which make monies available for the purchase of preservation easements, subject to the requirements of such programs, provided the preservation easements contain the restrictions imposed under 3 Del.C., Ch. 9. 19.0 The Forestlands Preservation Easement 19.1 The owners of the subject forestlands shall execute a document conveying the Forestland Preservation Easement which document shall be in the form of Appendix E or such other form which contains conditions contained in Option Agreements executed by landowners. 19.2 The document shall be in recordable form and contain: 19.2.1 A legal description setting forth the metes and bounds of the forestlands subject to the Forestland Preservation Easement and the seasonal dwelling or residential acreage, if any, designated by the owner pursuant to 9 Del.C. §933(8)(b). 19.2.2 At least one course and distance referencing a fixed marker or monument of a type commonly placed in the field by a surveyor. 19.2.3 The legal description shall not contain a closure error greater than one foot per 200 linear feet in the survey. 19.2.4 The forestlands on which a Forestland Preservation Easement is to be purchased must be surveyed and the survey shall show any residential acreage designated by the owner pursuant to 9 Del.C. §933(8)(b). 20.0 Title Quality The Forestland Preservation Easement conveyed to the Foundation shall be unencumbered except for standard exceptions and be capable of being insured as such by an established and recognized title insurance company doing business in the State of Delaware. Any title defects, liens, survey discrepancies, boundary line disputes, or similar title issues shall be resolved by the property owner, at his or her sole expense. If subsequent to the purchase of a Preservation Easement it is determined that the amount of acreage is less than as reflected on the survey used by the Foundation for purposes of calculating the purchase price for the Preservation Easement, the property owner shall be required to refund to the Foundation any excess funds paid in reliance upon the inaccurate survey. APPENDIX A LETTERHEAD OF FOUNDATION Return to: The Delaware Agricultural Lands Preservation Foundation FILE# _______________________ 2320 S. duPont Highway, Dover, DE 19901 Phone (302) 698-4530, or Toll Free in DE Only (800) 282-8685 Please Type or Print: Name of Petitioner(s)______________________________________________________________________ (All Fee Simple Owners of Record) Mailing Address Telephone: (H)_________________ (W) ________________________(CELL) ___________________________ Email Address ___________________________________________ FAX NO:__________________________ Forest Location (County)_______________________Total Acreage of Forest ____________________________ Adjoining Roads _______________________________________________________________________________ DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS County Tax Parcel Number(s) __________________________________________________________________ Zoning Designation __________________________ (Call County Planning for zoning designation) Type of Land Use: Forestlands Acres Open Space __________ Acres Cropland Acres Pasture Land _________ Acres # Of Farm Structures ______ Tidal Wetlands ________ Acres Residence _________ Acres Other (specify) ________ Acres # Of Dwelling Units: ______ # Seasonal Dwelling Units _____ # Seasonal Dwelling Acres _____ Occupant's Name(s) & Relationship Historic Significance of Forest (if any) _________________________________________________________ Easements/Rights-of-Way (if any) _____________________________________________________________ Is there a forest management plan for the property prepared by a professional forester? Yes _________No ____________ If yes, what is the date of the plan ______________________Name of forester ________________________ Is any portion of the property currently subject to subdivision? Yes ____ No ____ Mortgage or Lien Holders: ____________________________________________________________________ INSTRUCTIONS The following supplement is designed to assist in filling out the application for establishing your property as a Forestland Preservation Area: 1. Names of Petitioners: The application(s) must be signed by all fee simple owners of the parcel(s) being placed in a Forestland Preservation Area. If there is more than one property proposed to be in an Area where: a) parcels are not contiguous, and/or b) parcels are in differing forms of title, Then each parcel must have a separate application. All applications to create one Area should be returned to the Foundation together. 2. Mailing Address: The address that you want used for correspondence pertaining to this application. 3. Adjoining Roads: Because some people have a post office box number for a mailing address, it is necessary for the Foundation to know the exact road number(s) on which the parcel is located. Please list your main road (i.e., RT. 18) and any roads that adjoin your property. 4. # of Dwelling and Seasonal Dwelling Units: This is the number of houses on the parcel(s) which can be occupied. Please specify the names of the occupants and their relationship to the owners listed on the application. If any of the Dwelling Units are for seasonal use only, please specify. 5. County Tax Parcel Number(s): If you are unsure of your parcel number, please attach a copy of your most recent tax bill. 6. Zoning designation: In order to qualify for a Forestland Preservation Area, your land must be zoned for agricultural purposes (i.e., SR, S, SE, AC, AR, or AR-1). If you are not sure about your zoning designation, contact your County Planning Office. Kent: 744-2471, New Castle: 395-5400, Sussex: 855-7878. 7. Type of Land Use: The number of acres that is in each land use listed on the application. Your DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS farmland assessment application may serve as a good reference for this information. PLEASE RETAIN A COPY OF THE AREA APPLICATION FORM FOR YOUR RECORDS AND RETURN THE ORIGINAL FORMS OF EACH OF THESE TO THE FOUNDATION. APPENDIX B Tax Map No. _____ Prepared By: Delaware Agricultural Lands Preservation Foundation 2320 S. DuPont Highway, Dover, DE 19901 Return To: Parkowski, Guerke & Swayze, PA 116 W. Water Street, Dover, DE 19904 DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION FORESTLAND PRESERVATION AREA AGREEMENT This Forestland Preservation Area Agreement, in the nature of a declaration of a Restriction on the Use of Land for the purpose of preserving productive Forestlands, is made this day of _____, _____ by and between ____, ____ heirs and assigns, (hereafter individually and collectively referred to as "GRANTOR"), of the County of ____, Delaware, and the DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION, its successors, nominees or assigns, a body politic and corporate constituting a public instrumentality of the State, created and organized under the laws of the State of Delaware, with its offices at 2320 S. DuPont Highway, Dover, Delaware 19901 (hereinafter "GRANTEE"). RECITALS: A. GRANTOR is the owner in fee of lands consisting of Forestlands (as that term is defined in 3 Del.C. §902(6) and as shown on Exhibit "A" (hereinafter referred to as the "Property"), which Grantor desires to be included in a Forestland Preservation Area. The Property is located in ____ County, Delaware, and is more fully described in whole or in part in a Deed recorded in the Office of the Recorder of Deeds in and for ____ County, Delaware in Deed Book ____, Page ____, and being County Parcel No. ____. The Property consists of ____ acres on which ____ acres are classified as Forestlands. B. The public and the economy benefits from the protection and conservation of Forestlands, including the protection of scenic areas for public visual enjoyment from the public right of way. The conservation and protection of Forestlands as a valued natural and ecological resource provides needed space for clean air as well as for aesthetic purposes, and the public will benefit from the conservation, protection, development and improvement of Forestlands for the production of timber. C. GRANTEE has declared that the preservation of prime Forestlands is vital to the public interest of the State, the region, and the nation through its economic, environmental, and productive benefits. D. GRANTOR desires and intends that the Forestlands of the Property be preserved, protected, and maintained, and in consideration of those benefits conferred under 3 Del.C. §935, the Grantor is willing to enter into this Agreement. E. GRANTEE is entitled to enforce this Forestland Preservation Area Agreement and to preserve and protect for ten years from the effective date of this Agreement, or any extension period, the Property subject to the restrictions imposed under this Agreement. RESTRICTIONS: NOW THEREFORE, in consideration of the foregoing and as required by 3 Del.C. §934, the undersigned GRANTOR agrees to the following restrictions which shall apply to the Property: 1. No rezoning or major subdivision of the Property, or any portion thereof, shall be allowed. 2. Activities conducted on the Property shall be limited to forestry production, forestry operations, forestry management and control, wildlife habitat management, and related activities, as defined in 3 Del.C. §934. Grantor shall manage the Parcel in accordance with a forest management plan prepared by a professional forester that addresses DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS the Grantor's forest management goals for the Parcel. The plan shall contain, at a minimum, aerial and soil maps of the Property, a description and analysis of the forest by management unit, and silvicultural prescriptions for each management unit. The plan shall be made available for inspection by the State Forester's office and the plan shall be revised and updated at a minimum every five years. 3. If the Property contains at least thirty (30) acres, one (1) location containing no more than one (1) acre of land may be designated for seasonal recreational dwelling usage provided the use of the designated area does not adversely affect the forestland use of the Property. Residential use of the Property shall be limited to usage of no more than one (1) acre of land for each twenty (20) acres of usable land on the Property, with a maximum of ten (10) acres of land being used for dwelling housing on the Property. The establishment or existence of any seasonal housing will be counted against the total allowable permanent housing acreage. The Property consists of _________ acres, of which acres are usable for forestry and related uses. With respect to the acreage allowed for dwelling housing, there shall be a limit of three (3) dwelling houses for residential use placed on the allowable acreage at three (3) locations to be designated by the Grantor, unless there exists three (3) or more dwelling houses on the Parcel as of the date hereof, in which case the allowable acreage shall be allocated to the existing dwelling houses and no additional dwelling houses shall be allowed. There are currently ____ dwelling houses located on the Property, and only _____ additional dwelling houses shall be allowed.; 4. No conversion of the Forestlands to cropland, pasture land, open space or other types of land uses shall be allowed. 5. No permanent commercial or industrial structures shall be located on the Property. 6. No mining, commercial or extractive uses shall be conducted on the Property. 7. No disposal, burial, storage, or stock piling of junk, vehicles, equipment, liquid waste, solid waste or other liquid or solid materials, except that wastewater spray irrigation shall be allowed utilizing best available treatment technology with storage and treatment facilities located on lands other than Forestland preservation areas. 8. The allowability of a general use, conditional use, special use or other use under any zoning law or ordinance shall not have any effect on the restrictions imposed on the Property under this Agreement. 9. This Agreement shall become effective as of the date the necessary approvals have been rendered and the Secretary of Agriculture has either failed to exercise or waived the right of rejection allowed within the thirty (30) day period following Foundation action on the Forestland Area Application. At the time of recording of the Agreement the Foundation shall certify the date of creation of the Forestland Area or extension thereto, and such date shall serve as the effective date of this Agreement. 10. This Agreement shall remain in effect for a minimum period of ten (10) years from the effective date. Unless GRANTOR provides written notification to the Foundation of intent to withdraw the Property from the Forestland Area at least six (6) months prior to expiration date of this Agreement or any extension thereto, this Agreement shall continue for additional five (5) year periods. 11. This Agreement shall be considered a covenant which runs with and binds the Property and the terms and conditions shall be subject to specific performance, and other action allowed under 3 Del.C. §939. GRANTOR agrees to abide by the provisions of 3 Del.C. Chapter 9 and the duly adopted regulations thereunder as such provisions relate to the Property. 12. By executing this Agreement the GRANTOR verifies that individually or collectively GRANTOR holds a fee simple interest in the Property and is entitled to enter into this Agreement. GRANTOR further verifies that the information contained in the Forestland Area Application is true and correct. 13. The Agreement shall be binding on the heirs, successors and assigns of GRANTOR. Prior to any transfer of any interest in the Property during the term of this Agreement, GRANTOR shall provide advance written notification of this Agreement and the restrictions contained herein to the party acquiring such interest and a copy of such written notification shall be provided to the Foundation. SIGNATURES APPEAR ON FOLLOWING PAGES IN WITNESS WHEREOF, the parties have set their hands and seals this_________ day of A.D. 20___. WITNESS: _____________________________ ________________________(SEAL) DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS _____________________________ ________________________(SEAL) STATE OF ______________) SS:________________ COUNTY OF ____________) ON THIS, the _________ day of ___________________, 20__, before me, the undersigned Notary Public for the State and County aforesaid, personally appeared ____, known to me (or satisfactorily proven) to be the person or persons whose names are subscribed to the within instrument and acknowledged that ____ executed the same for purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal. Notary Public NOTARY NAME - TYPED OR PRINTED My Commission Expires: ________________ I, THE UNDERSIGNED, being the Chairman of the Delaware Agricultural Lands Preservation Foundation or authorized assignee of the Delaware Agricultural Lands Preservation Foundation, hereby execute this Forestland Preservation Area Agreement on behalf of the Foundation, and certify that the Forestland Preservation Area or extension of existing Forestland Area has been established as of, 20__. IN WITNESS WHEREOF, I have set my hand and seal this __________day of _______________, 20__. WITNESS: _____________________ _____________________________________(SEAL) Chairman, Delaware Agricultural Lands Preservation Foundation or Authorized Designee STATE OF _____________) SS: _________________ COUNTY OF ___________) ON THIS, the _____ day of ___________, 20___, before me, the undersigned Notary Public for the County and State aforesaid, personally appeared, ____________________, known to me (or satisfactorily proven) to be the person or persons whose names are subscribed to the within instrument and acknowledged that he/she/they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal. Notary Public NOTARY NAME - TYPED OR PRINTED My Commission Expires: _______________ CERTIFICATION: The Property subject to this Forestland Preservation Area Agreement was accepted into a Forestland Preservation Area on ______________ which is the effective date of this Agreement. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS APPENDIX C TAX MAP NO.: ______________ DALPF Project I.D.#: _________ Parkowski, Guerke & Swayze, P.A. P.O. Box 598Dover, Delaware 19903 DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION ACKNOWLEDGMENT PURSUANT TO 3 Del.C. §934(c) WHEREAS, ____, ("Transferor(s)") are the owner(s) of forestlands comprised of ____ acres located at ____, Delaware, said lands lying in ____ County, and described in and subject to a Forestland Preservation Agreement (the "Agreement"), dated ____, of record in the Office of the Recorder of Deeds in and for ____ County, State of Delaware in Deed Book ____, Page ____; and WHEREAS, Transferor(s) is/are about to transfer (____ acres of) subject lands to ____, ("Transferee(s)") as shown on a subdivision plot dated ____, performed by ____, and about to be recorded in the Office of the Recorder of Deeds in and for ____ County, State of Delaware. NOW, THEREFORE, in accordance with the requirements of 3 Del.C. §934(c), Transferor(s) and Transferee(s) acknowledge their understanding of the acreage allowed for dwelling housing, and the restrictions which apply to the real property about to be conveyed, and that said lands are subject to the referenced Agreement, the provisions of 3 Del.C. ch. 9 and the regulations adopted pursuant thereto. Transferor(s) and Transferee(s) agree to be bound by same. Transferee(s) shall be allowed ____ acres of dwelling housing. Transferor(s) will retain ____ acres of said lands, of which ____ acres are currently used for dwelling housing. Transferor(s) shall be allowed ____ additional acre(s) for dwelling housing. Transferor(s) shall have the right to designate _____________ locations for residential use and Transferee(s) shall have the right to designate ____________ locations for residential use. IN WITNESS WHEREOF, the Transferor(s) and Transferee(s) have executed this Acknowledgment this _________ day of ___________________, 20____. Transferor(s): ___________(SEAL) Witness ___________(SEAL) Witness Transferee(s): ___________(SEAL) Witness ___________(SEAL) Witness STATE OF DELAWARE) : SS COUNTY OF __________ BE IT REMEMBERED that on this day of ________________, A.D. 20____, personally came before me, the Subscriber, a Notary Public for the State and County aforesaid, ____, and ____, parties to this Indenture, known to me personally to be such, and they acknowledged this Indenture to be their act and deed. GIVEN under my Hand and Seal of office the day and year aforesaid. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS Notary Public Signature Notary Name - Printed or Typed My Commission Expires: __________________ APPENDIX D DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION FORESTLAND PRESERVATION EASEMENT APPLICATION Please Type or Print I/We ("Owner(s)"), of certain forestlands that have been established by recorded agreement as a Forestland Preservation Area in County, Delaware, apply to the Delaware Agricultural Lands Preservation Foundation ("Foundation") to sell a Forestland Preservation Easement ("Easement"). The Forestland Preservation Easement sale to the Foundation is offered in consideration of not less than: 1) $ for the entire forest; or 2) $ ________ per acre; or 3) an amount to be determined by appraisal and acceptable to the Owner and the Foundation $ The forestlands to be subject to the Easement total ________________ acres and consist of (check one): _____ the entire property covered by and described in the Forestland Preservation Area Agreement. _____ the property outlined on the Forestland Preservation Area map attached hereto (highlight the land proposed for a Forestland Preservation Easement). Attach drawing showing the approximate location and acreage, if any, Applicant intends to designate for seasonal dwelling or residential use. Tax Parcel Number(s): __________________________________________________________________________ Deed Reference(s): ___________________________________________________________________________ Leases/Timber Agreements:_____________________________________________________________________ Street/Road Location: __________________________________________________________________________ Mortgages or Liens on the Property:_______________________________________________________________ Easements/Right-of-Way (identify, if any): __________________________________________________________ # of Dwelling Units:______________ Date of Forest Management Plan:_________________________________ Applicant(s): Corporate or Business Name: _______________________________________________________ Federal I.D. Number (if applicant is a corporation or business): _________________________________________ Name: ______________________________________________________________________________________ Address: ____________________________________________________________________________________ Telephone Number: (H)______________ (W) ________________(Cell) __________________________________ Email Address: _______________________________________________________________________________ LAND TYPE AND USE Forestlands:___________________ acres Residence/Buildings________________ acres Seasonal Dwelling: _______________acres Farm Structures: _________________ acres DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS Tillable Cropland: ___________________ acres Open Space: ___________________ acres Pasture:___________________ acres Other (Specify): ___________________ acres 1. MINERAL/TIMBER RIGHTS: Does a party or parties other than yourself own or lease mineral or timber rights on this property? Yes _____ No _____ If yes, secure signatures and addresses of such parties: I/We submit this application, true and complete, to convey a Forestlands Preservation Easement to the Delaware Agricultural Lands Preservation Foundation, and declare that good title is provided to the premises, free of encumbrances such as liens, mortgages, options, rights of others in extraction or mineral rights, timber rights, land use restrictions, adverse ownership interests, and other encumbrances which would adversely impact the State of Delaware's interest in the farmland tract. I/We understand that any false information may be cause for rejection of application. ______________ Landowner Signature Social Security # Date Landowner Signature Social Security # Date Landowner Signature Social Security # Date Landowner Signature Social Security # Date Landowner Signature Social Security # Date FOR OFFICE USE ONLY File #: ____________________District Name:____________________ Date Received:____________________ APPENDIX E Tax Map No(s).: Prepared By: Delaware Agricultural Lands Preservation Foundation 2320 S. DuPont Highway Dover, DE 19901 Return To: Parkowski, Guerke & Swayze, P.A. 116 W. Water Street Dover, DE 19904 FORESTLAND PRESERVATION EASEMENT STATE OF DELAWARE FORESTLANDS PRESERVATION PROGRAM THIS PRESERVATION EASEMENT, made, granted, assigned and conveyed this _______ day of ____________________, A.D. 200_, by __________, whose address is ________ and who are hereinafter referred to as "Grantor", and the DELAWARE AGRICULTURAL LANDS PRESERVATION FOUNDATION, a body politic and corporate constituting a public instrumentality of the State of Delaware, and which is hereinafter referred to as "Grantee" and/or "Foundation." DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS WHEREAS, Grantor is fee simple title holder of certain lands situated in ________ Hundred, Kent County, Delaware, being of record in Deed Book ___, Page ___ at the Office of the Recorder of Deeds, in and for ____ County, at _____, Delaware, hereinafter referred to as the "Parcel" and more particularly described in Exhibit "A" (annexed hereto); and as shown on a plot entitled "Delaware Agricultural Lands Preservation Foundation -Lands of _______" as prepared by _______, dated _______ and recorded in the aforesaid Office of the Recorder of Deeds in Plot Book _______, Page _______ (hereinafter the "Plot"). WHEREAS, the General Assembly of the State of Delaware has declared that the preservation of the State's farmlands and forestlands is considered essential to maintaining forestry as a viable industry and as an important contributor to Delaware's economy; and WHEREAS, the General Assembly of the State of Delaware has recognized that a need exists to create sufficient economic incentives and benefits to encourage landowners to voluntarily place viable forestlands under protective restrictions through the creation of and participation in forestland preservation areas and sale and/or donation of development rights; WHEREAS, the Grantor desires to grant and convey to the Foundation a forestlands preservation easement as provided in Chapter 9, Title 3 of the Delaware Code Annotated. NOW, THEREFORE, the Grantor, for and in consideration of the sum of ______________ DOLLARS ($______.__), the receipt and sufficiency of which are hereby acknowledged, and in consideration of the benefits conferred under 3 Del.C. Ch. 9, hereby grants and conveys to the Foundation, its successors and assigns, a forestlands preservation easement on and over the Parcel, and covenants and promises that the Parcel will be owned, used and conveyed subject to, and not in violation of, the following restrictions: 1. No rezoning or major subdivision of the Parcel shall be allowed. 2. Activities conducted on the Parcel shall be limited to forestry production, forestry operations, forestry management and control, wildlife habitat management, and related activities, as defined in 3 Del.C. §934. 3. The allowability of a general use, conditional use, special use or other use under any zoning law or ordinance shall not have any effect on the restrictions imposed on the Parcel under this easement. 4. No conversion of the forestlands to cropland, pastureland, open space or other types of land uses shall be allowed. 5. No permanent commercial or industrial structures shall be located on the Parcel. 6. No mining, commercial or extractive uses unrelated to forestry operations shall be conducted on the Parcel. 7. Residential use of the Parcel shall be limited to usage of no more than one (1) acre of land for each twenty (20) acres of usable land on the Parcel, with a maximum of ten (10) acres of land being used for dwelling housing on the Parcel. The Parcel consists of ______ acres, of which acres are usable for forestry and related uses. With respect to the acreage allowed for dwelling housing, there shall be a limit of three (3) dwelling houses for residential use placed on the allowable acreage at the three (3) locations designated on the Plot as "Residential Acreage", unless there exists three (3) or more dwelling houses on the Parcel as of the date hereof, in which case the allowable acreage shall be allocated to the existing dwelling houses and no additional dwelling houses shall be allowed. There are currently ____ dwelling houses located on the Property, and only _____ additional dwelling houses shall be allowed. 8. This easement shall be deemed a covenant which runs with and binds the Parcel permanently and in perpetuity, the terms and conditions of which shall be subject to specific performance and other action allowed under 3 Del.C. §920 and §939. This easement shall be binding upon the heirs, executors, administrators, successors and assigns of the Grantor. This easement may be managed, administered and enforced by the Grantee or the State of Delaware. 9. The provisions of Title 3, Chapter 9 of the Delaware Code Annotated and duly adopted regulations thereunder as such provisions relate to the Parcel shall govern this easement. 10. Grantor shall manage the Parcel in accordance with a forest management plan prepared by a professional forester that addresses the Grantor's forest management goals for the Parcel. The plan shall contain, at a minimum, aerial and soil maps of the Parcel, a description and analysis of the forest by management unit, and silvicultural prescriptions for each management unit. The plan shall be made available for inspection by the State DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS Forester's office and the plan shall be revised and updated at a minimum every five years. 11. Notwithstanding anything stated herein to the contrary, the rights afforded Grantee under this Preservation Easement may only be assigned by Grantee to a "qualified organization" within the meaning of Section 170(b)(1)(A)(v), 170(c)(1), 170(h)(3)(A) and 170(h) of the Internal Revenue Code or the comparable provision in any subsequent revision of the Code and only with assurances that the purposes of this Preservation Easement, as described herein, will be maintained in perpetuity by such Assignee. If any such Assignee shall be dissolved or shall abandon this Preservation Easement or the rights and duties of enforcement herein set forth, the Preservation Easement and the rights of enforcement shall revert to the Grantee, and if the Grantee shall be dissolved and if the terms of the dissolution fail to provide a successor, then the State of Delaware, or its successors or assigns, shall appoint an appropriate successor as Grantee, and any such successor shall be a "qualified organization" within the meaning of Section 170(h) of the Internal Revenue Code or the comparable provision in any subsequent revision of the Code. No assignment may be made by the Grantee of its rights under this Preservation Easement unless the Grantee, as a condition of such Assignment, requires the Assignee to carry out the conservation purposes of this Preservation Easement, as described herein. Grantee agrees to hold this Preservation Easement exclusively for conservation purposes as defined in Section 170(h)(4)(A) of the Internal Revenue Code. 12. The Preservation Easement granted hereunder shall be perpetual. IN WITNESS WHEREOF, the said _________________ have hereunto set their hands and seals the day and year first above written. SIGNED AND DELIVERED IN THE PRESENCE OF: ____________________________ ______________________________(SEAL) Witness STATE OF DELAWARE) ) SS. COUNTY OF _____________ BE IT REMEMBERED that on this _____ day of _____________, A.D. 200_, personally came before me, the Subscriber, a Notary Public for the State and County aforesaid, _____, parties to this Indenture, known to me personally to be such, and they acknowledged this Indenture to be their act and deed. GIVEN under my hand and seal of office the day and year aforesaid. Notary Public Signature Notary Name - Typed or Printed My Commission Expires:______ THOROUGHBRED RACING COMMISSION Statutory Authority: 3 Delaware Code, Section 10005; 29 Delaware Code Section 4815(b)(3)c (3 Del.C. §10005; 29 Del.C. §4815(b)(3)c) 3 DE Admin. Code 1001 PUBLIC NOTICE The Delaware Thoroughbred Racing Commission, pursuant to 3 Del.C. §10005, proposes to amend rule 15.14.1 to permit the imposition of penalties if a horse does not report for testing. The Commission will hold a public hearing on the proposed rule change on July 18, 2006. Written comments should be sent to John F. Wayne, Executive Director, Delaware Thoroughbred Racing Commission, 777 Delaware Park Boulevard, Wilmington, DE 19804. The proposed rule change is as follows: DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS 1001 Thoroughbred Racing Rules and Regulations (Break in Continuity of Sections) 15.0 Medication; Testing Procedures (Break in Continuity of Sections) 15.14 Blood Gas Testing 15.14.1 The Commission may use a testing machine that measures carbon dioxide levels in pre-race samples using a Base Excess testing protocol. A trainer whose horse is selected for blood gas testing and fails to report for the test will be penalized as if there was a positive test result. 15.14.2 Under this protocol, the prohibitive Base Excess concentrations are as follows: Base Excess level of 10.0 mmol/l (mEq/l) or higher for non-furosemide (Salix) treated horses and Base Excess (BE) level of 12.0 mmol/l (mEq/l) or higher for furosemide (Salix) treated horse. The level of uncertainty will be included before it is considered a violation of these Rules. The level of uncertainty is 0.4 mmol/l (mEq/l) and a positive test report must include this level of uncertainty. A horse must show a Base Excess (BE) level of 10.4 mmol/l (mEq/l) or higher for non- furosemide (Salix) treated horse and Base Excess (BE) level of 12.4 mmol/l (mEq/l) or higher for furosemide (Salix) treated horse, in order for a violation to be reported under this Rule. 15.14.3 A licensee has the right, pursuant to the quarantine procedure outlined at 15.15, or by such other procedures as may be established from time to time by the Commission, to attempt to prove that a horse has a naturally high carbon dioxide level in excess of the above-mentioned levels. 15.15 Quarantine Procedure for Carbon Dioxide Positive Tests (Prerace Or Postrace) 15.15.1 Detention/Quarantine of Horses: The owner or trainer must request use of the quarantine procedure by sending written notice to the Stewards within forty-eight (48) hours of notification of the positive carbon dioxide test report. The owner or trainer will then be permitted, totally at his/her own expense, to make the necessary scheduling arrangements with the Stewards and the Commission Veterinarian. The horse in question will be quarantined on the grounds for periodic blood gas testing by the DTRC (up to three days) at the trainer's expense. All caretaker activities for the horse in question will be the responsibility of the horse's trainer. 15.15.2 Procedure: The owner or trainer will be responsible for providing the DTRC with a minimum check for $1,500.00 to cover the costs for the quarantine. A professionally trained Track Security Officer must be with the horse at all times, and the Security Officer must be knowledgeable about the importance of monitoring all activity pertaining to the quarantined horse. 15.15.3 The quarantine of a horse is subject to the following mandatory requirements: 15.15.3.1 The owner or trainer will be required to deposit sufficient funds with the DTRC Stewards to cover the costs of the quarantine of the horse. The minimum quarantine cost will be $1,500, and this figure may be higher if additional special circumstances are required for a particular horse. None of these procedures will be initiated until the Commission has in its possession a certified check or other method of payment acceptable to the Commission. The owner or trainer is responsible for all costs for the quarantine, including but not limited to, the costs of: stall bedding, daily cleaning of the stall, feed and hay, stall rent, hourly guard salary, portable toilet rental, veterinary charge, courier or shipping charges to the laboratory, laboratory analysis costs. Unused funds will be returned to the trainer. 15.15.3.2 The expected period of the quarantine will be seventy-two hours. 15.15.3.3 The owner or trainer is required to execute a reasonable liability waiver form if requested to do so by the track for the quarantine of the horse on track grounds. 15.15.3.4 The owner or trainer is obligated to reimburse the track if the racing association is required to purchase additional insurance to cover risks from the quarantine of the trainer's horse. The owner or trainer is also responsible for any additional costs required by the track to pad or otherwise specially equip the quarantine stall. 15.15.3.5 All activity of the quarantined horse is observed, documented, and recorded by security officers for the track and the DTRC. 15.15.3.6 The Commission will be responsible for arranging for and providing for bedding, feed, water, and daily cleaning of the stall, all of which are at the owner's expense. Feed for the horse will be DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS purchased by DTRC officials as specified by the owner or trainer. Samples of the feed will be retained by the DTRC designated official. 15.15.3.7 Each bale of hay/straw will be intact and uncut for inspection of contraband. Four small samples of hay are to be taken from the bale of hay used to feed the animal (one from each end of the bale of hay and two from the middle of the bale of hay). These samples with the ingredient tags from the bag of feed used by the horse will be retained by the DTRC designated official. 15.15.3.8 Every trainer, groom, or caretaker is subject to continuous observation and may be searched when with the horse for contraband. 15.15.3.9 Horses may be trained, but if leg paints or salves are used, they must be new and in unopened containers, and the track Security Officer must monitor the preparation of the horse. 15.15.3.10 A Security Officer must observe the horse during training and ensure that it does not leave the track except to return to the quarantine stall. 15.15.3.11 A sick horse must only be determined ill by the Commission’s Veterinarian and the quarantine of the horse will be terminated. Any bills incurred for the quarantine of the horse prior to the illness and termination of the detention will be prorated. 15.15.3.12 Stalls for the quarantine of horses are designated by the Stewards of the DTRC, in cooperation with the racetrack. 15.15.3.13 Trainers can restrict water based on previous pre-race preparation schedules. 15.15.3.14 Trainers are expected to train their horse in the same manner as the horse was trained on previous racing events. The horse will be equipped with all the items that it would normally carry, taken to the paddock, and handled in a manner similar to previous racing events. 15.15.3.15 Blood samples will be taken from the quarantined horse by the Commission Veterinarian, as he or she deems appropriate and necessary during the quarantine period. A blood sample should be taken when the horse first enters the quarantine stall and again at the pre-arranged time between sixty (60) and seventy-two (72) hours. At the discretion of the Commission, another sample may be taken between the initial sample and the sample taken at the cessation of the quarantine period. Blood samples will only be taken from the horse that is at rest for a period of time approved by the Commission Veterinarian. The owner or trainer or his/her representative must be present and witness the collection of the blood samples. Blood samples will be shipped promptly to the Commission's designated testing laboratory, pursuant to the Commission's standard chain-of-custody procedures. 15.15.3.16 At the conclusion of the quarantine period, the party requesting the quarantine will be provided timely notice of the test results from the DTRC. The trainer may present such evidence at a hearing before the Stewards if he or she attempts to prove that the horse has a naturally high carbon dioxide level. 1 DE Reg. 508 (11/1/97) 1 DE Reg. 1184 (2/1/98) 3 DE Reg. 754 (12/1/99) 4 DE Reg. 179 (7/1/00) 4 DE Reg. 1131 (1/1/01) 4 DE Reg. 1821 (5/1/01) 6 DE Reg. 641 (11/1/02) 6 DE Reg. 1205 (3/1/03) 7 DE Reg. 766 (12/1/03) 7 DE Reg. 1540 (5/1/04) 8 DE Reg. 1699 (6/1/05) DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS DEPARTMENT OF EDUCATION OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(d) (14 Del.C. §122(d)) 14 DE Admin. Code 505 PUBLIC NOTICE 505 High School Graduation Requirements and Diplomas A. Type of Regulatory Action Required Amendment to Existing Regulation B. Synopsis of Subject Matter of the Regulation The Secretary of Education intends to amend 14 DE Admin. Code 505 High School Graduation Requirements and Diplomas. The amendments reflect the recommendations from the report of the High School Graduation Requirements Committee. The Committee was formed under the auspices of the P-20 Council following an analysis of Delaware’s graduation requirements by Achieve, Inc., a national educational nonprofit organization created by the nation’s governors and business leaders. Achieve, Inc., has conducted research indicating that high school students across the country are not being adequately prepared for success in college and in the workforce. The amendments include increasing the requirement of three (3) credits in mathematics to four (4) credits beginning with the graduating class of 2011 and requiring each student to have an Individualized Learning Plan (ILP). The Computer Literacy requirement will be removed from the high school requirements for the graduation class of 2011 and will become a component of the middle school curriculum. Beginning with the class of 2013 two (2) credits in a world language will be required for graduation. C. Impact Criteria 1. Will the amended regulation help improve student achievement as measured against state achievement standards? The amended regulation will help improve student achievement as measured against state achievement standards by increasing the required courses and increasing the rigor required in order to receive a high school diploma. 2. Will the amended regulation help ensure that all students receive an equitable education? The amended regulation will help ensure that all students receive an equitable education since all of the high school graduation requirements apply to all students except students with IEPs. 3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? The amended regulation will continue to help ensure that all students’ health and safety are adequately protected through a continuation of the health and physical education requirements for graduation. 4. Will the amended regulation help to ensure that all students’ legal rights are respected? The amended regulation addresses graduation requirements not students’ legal rights. 5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local board and school level? The amended regulation will preserve the necessary authority and flexibility of decision making at the local board and school level. 6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels? The amended regulation will not place any unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels. 7. Will the decision making authority and accountability for addressing the subject to be regulated be placed in the same entity? The decision making authority and accountability for addressing the subject to be regulated will remain in the same entity. 8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies? The amended regulation will be consistent with and an incentive to the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies. 9. Is there a less burdensome method for addressing the purpose of the regulation? There is no less DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS burdensome method for addressing the purpose of the regulation. 10. What is the cost to the State and to the local school boards of compliance with the regulation? There may be cost factors involved in adding additional teachers and counselors to facilitate adding additional course work and managing the Individual Learning Plans (ILPs) required by the amendments. 505 High School Graduation Requirements and Diplomas 1.0 Credit Requirements 1.1 No public school student shall be granted a State of Delaware Diploma unless such student shall have successfully completed a minimum of twenty two credits in order to graduate including: 4 credits in English Language Arts, 3 credits in mathematics, 3 credits in science, 3 credits in social studies, 1 credit in physical education, 1/2 credit in health, 1 credit in computer literacy, 3 credits in a career pathway, and 3 1/2 credits in elective courses. 1.2 Definitions: “Career Pathway” means a planned program of sequenced or specialized courses designed to develop knowledge and skills in a particular career or academic area. “Credit” means a minimum of 135 hours of actual classroom instruction or a demonstration of competency. “Credit for Computer Literacy” means credit granted toward graduation at any point when the student can demonstrate competency in the required skill areas either through an integrated approach, a specific course, or a demonstration of accumulated knowledge over the student’s educational career. 1.3 Local school boards and charter schools charter school boards may establish requirements over and above the minimum number of credits required by the State Department of Education. 1.0 Definitions: "Career Pathway" means a planned program of at least 3 credits in sequenced or specialized courses designed to develop knowledge and skills in a particular career or academic area. "Credit" means the acquisition of skills and knowledge at a satisfactory level as determined by the district and charter school boards through 135 hours (a Carnegie Unit) of actual classroom instruction or through locally approved options contained in Section 8.0. "Credit for Computer Literacy" means credit granted toward graduation at any point when the student can demonstrate competency in the required skill areas either through an integrated approach, a specific course, or a demonstration of accumulated knowledge over the student's educational career. "Department" means the Delaware Department of Education. "English Language Arts" means those components of reading, writing and oral communication that are included in the State Content Standards for high school English Language Arts as required in 14 DE Admin. Code 501. "Health Education" means those components that are included in the State Content Standards for high school health education as required in 14 DE Admin. Code 501. "High School" means grades 9 through 12. "Individual Learning Plan (ILP)" means a plan for a student to reach the goal of high school graduation inclusive of at least one year of post high school activity. This plan also serves as a guide for the student's choice of courses including any support services necessary for the student to graduate from high school. "Instructional Support Team" means those educators, counselors and specialists or other personnel whose responsibility it is to monitor student progress in consultation with students and their parent(s), guardian(s) or Relative Caregiver and to recommend and arrange support services. "Mathematics" means those components of number sense, algebra, geometry, statistics and probability combined with problem solving, reasoning, communicating, and making connections that are included in the State Content Standards for high school mathematics as required in 14 DE Admin. Code 501 either through integrated courses or in courses titles such as Algebra I, Algebra II, Geometry, Trigonometry. Pre-Calculus, Calculus, Discrete Mathematics, Statistics, and Probability. "Physical Education" means those components that are included in the State Content Standards for high school physical education as required in 14 DE Admin. Code 501. "Science" means those components of the nature of science which include inquiry, materials and their properties, energy and its effects, Earth in space, Earth's dynamic systems, life processes, diversity and continuity of living things, and ecology that are included in the State Content Standards for high school science as required in 14 DE DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS Admin. Code 501 either through integrated courses or in course titles such as Earth Science, Biology and Chemistry- Physics. "Social Studies" means those components of civics, economics, geography, and history that are included the State Content Standards for high school social studies as required in 14 DE Admin. Code 501 either through integrated courses or in course titles such as United States History, World History, Geography, Economics, and Civics. "Support Services" means those academic interventions such as tutoring; extra time before school, in school, or after school; summer school, a fifth year of high school or any other strategy to provide student academic assistance. "World Languages" RESERVED 2.0 Current Graduation Requirements A public school student shall be granted a State of Delaware Diploma when such student has successfully completed a minimum of twenty two credits in order to graduate including: 4 credits in English Language Arts, 3 credits in mathematics, 3 credits in science, 3 credits in social studies, 1 credit in physical education, 1/2 credit in health, 1 credit in computer literacy, 3 credits in a Career Pathway, and 3 1/2 credits in elective courses. 3.0 Graduation Requirements Beginning with the Class of 2011 (Freshman Class of 2007-2008) 3.1 Beginning with the graduating class of 2011, a public school student shall be granted a State of Delaware Diploma when such student has successfully completed a minimum of twenty two (22) credits in order to graduate including: four (4) credits in English Language Arts, four (4) credits in Mathematics; three (3) credits in Science, three (3) credits in Social Studies, one (1) credit in physical education, one half (1/2) credit in health education, three (3) credits in a Career Pathway, and three and one half (3 ½) credits in elective courses. 3.1.1 Students shall complete mathematics course work that includes no less than the equivalent of the traditional requirements of Geometry, Algebra I and Algebra II courses. 3.1.2 Scientific investigations related to the State Science Standards shall be included in all three science course requirements. 3.1.3 During the senior year students shall maintain a credit load each semester that earns them at least a majority of credits that could be taken that semester including one (1) of the four credits required in Mathematics. 3.1.3.1 Senior year credits shall include regular high school course offerings, the options available in 8.0 or a combination of both. 3.1.3.1.1 Options for the senior year in 3.1.3.1 that the districts and charter schools provide shall be submitted to the Department with a copy to the office of the State Board of Education for review. 4.0 Monitoring Student Progress 4.1 Beginning with the 2007-2008 school year each district or charter school board, as applicable, shall require each middle school to develop an Individual Learning Plan (ILP) for all eighth grade students. ILP's shall be developed by the guidance counselor, the student, the student's parent(s), guardian(s) or Relative Caregiver, and at least one core content teacher. For the 2007-2008 school year only each district or charter school board, as applicable, shall also require each high school to develop an Individual Learning Plan (ILP) for all ninth grade students. 4.2 Beginning with the 2007- 2008 school year each high school shall establish Instructional Support Teams to monitor student progress in consultation with students and their parent(s), guardian(s) or Relative Caregiver to recommend and arrange support services. 4.2.1 Each marking period student progress on the ILP shall be monitored by Instructional Support Teams. Students not making satisfactory progress in the courses required for graduation in English Language Arts, Mathematics, Science or Social Studies shall receive support services. 4.2.2. Students who have failed courses required for graduation in English Language Arts, Mathematics, Science or Social Studies at the end of any high school year may have their ILP revised to include appropriate support services. A fifth year of high school may be an option for inclusion in the student's ILP. Changes in a student's ILP shall require consultation with the student and with the student's parent(s), guardian(s) or Relative Caregiver, if appropriate. DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS 5.0 Credit Requirements Beginning with the Graduation Class of 2013 (Freshman Class of 2009-2010) Beginning with the graduating class of 2013, a public school student shall be granted a State of Delaware Diploma when such student has successfully completed a minimum of twenty four (24) credits in order to graduate including: four (4) credits in English Language Arts, four (4) credits in Mathematics, three (3) credits in Science, three (3) credits in Social Studies, two (2) credits in a World Language, one (1) credit in physical education, one half (1/2) credit in health education, three (3) credits in a Career Pathway, and three and one half (3 ½) credits in elective courses. 5.1 World Language (RESERVED) 6.0 Career Pathway Districts and charter school boards shall establish policies concerning the purpose and content of their Career Pathways. 7.0 Additional Credit Requirements District and charter school boards may establish additional credit requirements for graduation above the minimum number of credits required by the Department. 2.08.0 Options for Awarding Credit Toward High School Graduation 2.81 Local school boards and charter school boards of directors District and charter school boards are authorized to award credit toward high school graduation for the following activities, on the condition that the activities incorporate any applicable state content standards. Before awarding credit for any of the following activities, the local school board or districts and charter school boards of directors shall have adopted a policy approving the activity for credit and establishing any specific conditions for the award of credit for the activity. Such policy shall be applicable to each school within the district or governed by the charter school board of directors.or each charter high school. 2.8.1.1 Courses taken at or through an accredited community college, two or four year college. 2.8.1.2 Voluntary community service as defined in 14 Del.C. §§8901A, and 8902A. 2.8.1.3 Supervised work experience in the school and the community which meets the educational objectives or special career interest of the individual student. 2.8.1.4 Independent study. 2.8.1.5 Correspondence Courses. 2.8.1.6 Distance learning courses. These courses may be delivered by the teacher to the learner in real time, online or by video. 2.8.1.7 High school courses taken while in the middle school in conjunction with an articulated agreement between the district middle school and the district high school(s). Such credit shall also transfer to a high school in another district or to a charter school. 2.8.1.8 Course credit transferred from another high school. 2.8.1.9 Course credit earned through summer or evening school classes, as a member of the military service or as part of the James H. Groves Adult High School. 2.8.1.10 Tutoring programs taught by a teacher certified in the subject being taught. 2.8.1.11 Course credit awarded by agencies or instrumentalities of the state other than public schools which provide educational services to students. A description of the program provided to the student, grades given, and the number of clock hours of instruction or a demonstration of competency must be provided to the school district or charter school prior to receipt of credit. 3.09.0High School Diplomas and the Certificate of Performance 39.1 A State sanctioned diploma shall be granted to students who meet the state and local district or charter school requirements for graduation pursuant to regulation 14 Del.C. §152 (a) (b) (c) and (d). 39.2 A State sanctioned cCertificate of pPerformance will shall be granted to students who meet the requirements of 14 Del.C. §152 (e). 39.3 Diplomas from one school year shall not be issued after December 31 of the next school year. 39.4 Duplicate diplomas or certificates of performance will not be issued, but legitimate requests for validation of the diploma or the certificate of performance will be satisfied through a letter of certification. Requests for diploma information from graduates of Delaware high schools should be directed to the high school the student was attending at the time of graduation. If the school does not have the records then the student should contact the DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS Department of Education in Dover for a notarized letter of certification that contains the name of the applicant, the name of the school, the date of graduation, and the diploma registry number (if available). 39.5 State High School Diploma for World War II veterans pursuant to 14 Del.C. §159 (a) (b) (c)) 39.5.1 “World War II Veteran” means any veteran who performed wartime service between December 7, 1941 and December 31, 1946. If the veteran was in the service on December 31, 1946, continuous service before July 16, 1947 is considered World War II. 39.5.2 The Department of Education shall provide a high school diploma to any World War II veteran who: 39.5.2.1 Left a Delaware high school prior to graduation in order to serve in the armed forces of the United States. 39.5.2.2 Did not receive a high school diploma, or received a G.E.D., as a consequence of such service and, 39.5.2.3 Was discharged from the armed forces under honorable circumstances. 39.5.3 The diploma may also be awarded posthumously if the deceased veteran meets the qualifications in 39.5.2.1 through 39.5.2.3. 39.5.4 Applications for this high school diploma shall be made on forms designated by the Delaware Department of Education and the Delaware Commission of Veterans Affairs and shall have a copy of the candidate’s honorable discharge papers attached to the application. 4 DE Reg. 995 (12/1/00) 5 DE Reg. 625 (9/1/01) 7 DE Reg. 1344 (4/1/04) PROFESSIONAL STANDARDS BOARD Statutory Authority: 14 Delaware Code, Section 1220(a) (14 Del.C. §1220(a)) 14 DE Admin. Code 1526 PUBLIC NOTICE Educational Impact Analysis Pursuant To 14 Del.C. Section 122(D) 1526 Standard Certificate English to Speakers of Other Languages A. Type of Regulatory Action Requested Amendment to Existing Regulation B. Synopsis of Subject Matter of Regulation The Professional Standards Board, acting in cooperation and collaboration with the Department of Education, seeks the consent of the State Board of Education to amend 14 DE Admin. Code 1526 Standard Certificate English to Speakers of Other Languages. The regulation concerns the requirements for certification of educational personnel, pursuant to 14 Del.C. §1220(a). It is necessary to amend this regulation to align it with changes in statute. The passage of PRAXIS™ II, a test of content knowledge, is now required, where applicable and available, in addition to academic preparation for the issuance of a Standard Certificate. Definitions were added, and course requirements were revised to reflect current practice in the Education of English Language Learners. C. Impact Criteria 1. Will the amended regulation help improve student achievement as measured against state achievement standards? The amended regulation addresses student achievement by establishing standards for the issuance of a standard certificate to educators who have acquired the prescribed knowledge, skill and/or education to practice in a particular area, to teach a particular subject or to instruct a particular category of students to help ensure that students are instructed by educators who are highly qualified. 2. Will the amended regulation help ensure that all students receive an equitable education? The DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS amended regulation helps to ensure that all teachers employed to teach students meet high standards and have acquired the prescribed knowledge, skill and/or education to practice in a particular area, to teach a particular subject or to instruct a particular category of students. 3. Will the amended regulation help to ensure that all students' health and safety are adequately protected? The amended regulation addresses educator certification, not students’ health and safety. 4. Will the amended regulation help to ensure that all students' legal rights are respected? The amended regulation addresses educator certification, not students’ legal rights. 5. Will the amended regulation preserve the necessary authority and flexibility of decision makers at the local board and school level? The amended regulation will preserve the necessary authority and flexibility of decision makers at the local board and school level. 6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels? The amended regulation will not place unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels. 7. Will decision making authority and accountability for addressing the subject to be regulated be placed in the same entity? The decision-making authority and accountability for addressing the subject to be regulated rests with the Professional Standards Board, in collaboration with the Department of Education, and with the consent of the State Board of Education. 8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies? The amended regulation will be consistent with, and not an impediment to, the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies. 9. Is there a less burdensome method for addressing the purpose of the amended regulation? 14 Del.C. requires that we promulgate this regulation. 10. What is the cost to the state and to the local school boards of compliance with the amended regulation? There is no additional cost to local school boards for compliance with the regulation. 1526 Standard Certificate English to Speakers of Other Languages (ESOL) Teachers 1.0 Content This regulation shall apply to the requirements for a Standard Certificate, pursuant to 14 Del.C. §1220(a), for English to Speakers of Other Languages Teachers (required for grades K to 12). 7 DE Reg. 775 (12/1/03) 2.0 Definitions 2.1 The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise: “Certification” means the issuance of a certificate, which may occur regardless of a recipient's assignment or employment status. “Department” means the Delaware Department of Education. “Educator” means a person licensed and certified by the State under 14 Del.C. §1202 to engage in the practice of instruction, administration or other related professional support services in Delaware public schools, including charter schools, pursuant to rules and regulations promulgated by the Standards Board approved by the State Board. The term ‘educator’ does not include substitute teachers. “Examination of Content Knowledge” means a standardized test which measures knowledge in a specific content area, such as PRAXIS™ II. “Fifteen (15) Credits or Their Equivalent in Professional Development” means college credits or an equivalent number of hours, with one (1) credit equating fifteen (15) hours, taken either as part of a degree program or in addition to it, from a regionally accredited college or university of a professional development provided approved by the employing school district or charter school. “Immorality” means conduct which is inconsistent with the rules and principles of morality expected of an educator and may reasonably be found to impair an educator’s effectiveness by reason of his or her unfitness. “License” means a credential which authorizes the holder to engage in the practice for which the DELAWARE REGISTER OF REGULATIONS, VOL. 10, ISSUE 1, SATURDAY, JULY 1, 2006 PROPOSED REGULATIONS license is issued. “Major or Its Equivalent” means a minimum of thirty (30) semester hours of course work in a particular content area. “NASDTEC” means The National Association of State Directors of Teacher Education and Certification. The organization represents professional standards boards, commissions and departments of education in all 50 states, the District of Columbia, the Department of Defense Dependent Schools, the U.S. Territories, New Zealand, and British Columbia, which are responsible for the preparation, licensure, and discipline of educational personnel. “NCATE” means The National Council for Accreditation of Teacher Education, a national accrediting body for schools, colleges, and departments of education authorized by the U.S. Department of Education. “Standard Certificate” means a credential issued to certify that an educator has the prescribed knowledge, skill, or education to practice in a particular area, teach a particular subject, or teach a category of students. “Standards Board” means the Professional Standards Board established pursuant to 14 Del.C. §1201. “State Board” means the State Board of Education of the State pursuant to 14 Del.C. §104. “Valid and Current License or Certificate from Another State”