Statutory Authority: 3 Delaware Code Section 1101 (3 Del.C. § 1011)
402 Forest Service Regulations
The Department proposes these amendments to the Forest Service’s Regulations pursuant to 3 Del.C. § 1011. It’s purpose in proposing these amendments is to streamline the procedures for responding to potential or existing water quality problems arising from silvicultural activities and to establish an enforcement and penalty scheme for those who fail to obtain and file the necessary permits before commencing timber harvesting activities.
The proposed amendments to the regulations will be considered at a public hearing scheduled for May 8, 2002 at 4:00 PM at the Delaware Department of Agriculture Building, conference Room No. 1. Copies of the proposed amendments to the regulations may be obtained from the State Forester’s Office. Public comments may be submitted in writing to E. Austin Short, III on or before 4:00 PM on May 8, 2002 and/or in person at the public hearing. The Delaware Department of Agriculture is located at 2320 South DuPont Highway, Dover, Delaware and the telephone number is (302) 698-4503.
Delaware’s Forestry Practices Erosion and Sediment Law
Rules and Regulations
Forest Service Regulations
I. Effective Date:
Rules and Regulations Effective Date: July 1, 1996
II. Overview of Statutory Authority:
On July 11, 1994, Governor Thomas Carper signed into law Delaware Code Title 7, Chapter 29, Title 3, Chapter 10, Subchapter VI, titled “Water Quality as relates to Silvicultural Systems and Sedimentation and Erosion Control.” For ease of discussion and as reference, the Delaware Department of Agriculture Forest Service (DDAFS DFS) will commonly call Subchapter VI the Forestry Practices Erosion & Sediment (E&S) law. This terminology will also distinguish this law from those relating to sedimentation under the regulatory authority of the Department of Natural Resources and Environmental Control (DNREC) called the Sediment and Stormwater Management Law.
The law The Forest Practices E & S law charges the Delaware Department of Agriculture's Forestry Administrator (commonly known as the State Forester) with "protection of the waters of the State by pollution from sediment deposits resulting from silvicultural activities. . . .Through the adoption of this subchapter the State of Delaware recognizes that water quality protection techniques for silvicultural practices are an integral component of properly managed forests.”
Further, the law describes components of the State Program that may be administered by the Forestry Administrator. The components which are important to these proposed rules and regulations are:
1) Develop and publish water quality protection techniques and guidelines for landowners and operators;
2) Provide technical and other assistance to landowners and operators in the proper use of the techniques and guidelines; and
3) Conduct educational programs on the use of the techniques and guidelines for landowners and operators.
Through the cooperative efforts of landowners and operators groups, State and Federal agencies, environmental interest groups, and others, the Forestry Administrator adopted and published Delaware’s Forestry Best Management Practices (BMP) Manual. This manual enumerates water quality protection techniques appropriate to silvicultural practices in Delaware and provides guidelines for their use.
The completion and availability of the BMP Manual has enabled the Forestry Administrator to continue the program set forth in the law through technical assistance and education. Furthermore, the manual provides quantitative measures by which landowners and operators can protect the waters of the State while conducting silvicultural operations.
Through distribution of the BMP Manual, technical assistance, education, rules, and regulations, the Forestry Administrator will seek to meet the charge of protection of the waters of the State and ensure properly managed forests for their multiple benefits.
1.0 Authority
These regulations are promulgated under the authority of Section 1011 of Title 3 of the Delaware Code.
2.0 Purpose
The purpose of these proposed amendments to the Forest Service’s Erosion and Sedimentation Control regulations is to streamline the process for responding to potential or existing water quality problems and to establish an enforcement scheme for dealing with operators who do not file the proper permits prior to commencing a timber harvest.
3.0 Definitions:
3.1 Forester is defined as a Forester, Senior Forester, Regional Forester, Assistant Forestry Administrator, or Forestry Administrator currently employed by the Delaware Forest Service.
3.2 Acceptable sediment control and stormwater management techniques are equivalent/synonymous to/with both erosion and sediment control measures and forestry Best Management Practices (BMP).
3.3 Forest management activities are herein defined as practices, techniques or activities which are designed for purpose of conserving, protecting and enhancing the land as forest land over the long-term. Forest management includes but is not limited to perpetuation of tree species; improvement of trees’ and forest growth, health and vigor; protection from fire, and insects and diseases.
3.4 Intermittent Stream with a well-defined channel is a defined as a water body which maintains a seasonal flow of water under typical climatic conditions. This does not include man-made water channels such as ditches.
3.5 Normal rainfall is an inch of liquid precipitation in a 24 hour period.
3.6 Open water body is a bay, lake, or pond where water is present throughout the year. This does not include man-made water channels such as ditches.
3.7 Perennial stream is defined as a water body with a well-defined channel which maintains a continuous flow of water throughout the year under typical climatic conditions. This does not include man-made water channels such as ditches.
3.8 Pollution is defined as the "alteration of the physical, chemical or biological properties of any waters of the State resulting from sediment deposition that will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety or welfare or the health of animals, fish or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future source as a public water supply; or unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses."
3.9 Silvicultural activity is defined as "any forest management activity, including but not limited to harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation."
3.10 Buyer is defined as “any individual or firm that regularly purchases standing trees for harvest by himself or herself or a subcontractor.”
3.11 Operator is defined as “any person that operates or exercises control over any silvicultural activity.”
3.12 Permittee is defined as “any individual or firm that has a Delaware Erosion and Sediment Law Notification Form and Permit that has been approved by the DFS.”
3.13 Working days Business days are defined as any day Monday through Friday.
4.0 Rules and Regulations Intent and Goals
The intent of the Rules and Regulations is to establish a system of notification and referral that quickly and easily provides the Forestry Administrator with the information needed to administer Delaware’s Forestry Practices E&S Law without causing undue hardship on operators and landowners. The goals of these Rules and Regulations are:
4.1 to protect the waters of the State from erosion and sedimentation resulting from silvicultural activities; and
4.2 to provide the Forestry Administrator the authority to:
4.2.1 track the use and effectiveness of Forestry BMPs,
4.2.2 develop close working relationships with forest operators and landowners through site visits,
4.2.3 permit the Delaware Department of Agriculture Forest Service to rapidly address inquiries from citizens, agencies, and other organizations concerning ongoing silvicultural operations, and
4.2.4 document the positive benefits of properly managed forests.
5.0 Regulatory Procedures
5.1 The operator Operators and buyers will provide written notification to Delaware Department of Agriculture Forest Service (DDAFS) Delaware Forest Service (DFS) at least ten (10) working days prior to the initiation of silvicultural operations greater than or equal to 43,560 square feet of area (1 acre).
2) Operators will notify the Department by completing and signing the forms (BMP-02) provided by the Delaware Department of Agriculture Forest Service (DDAFS).
5.2 Operators and buyers will notify the Department by completing and signing Delaware’s Forestry Practices Erosion and Sediment Law Notification Form and Permit, as provided by the Delaware Forest Service (DFS).
5.3 This notification form will include, but is not limited to:
5.3.1 the forest land acreage and type of silvicultural activity planned,
5.3.2 statement that land will remain under forest management,
5.3.3 signed statements stating the operators’ intent to use forestry BMPs to prevent pollution,
5.3.4 specific Forestry BMPs to be used on the site,
5.3.5 maps of the site, including location of any water bodies, streams, ponds, Streamside Management Zones, roads, stream crossings, landings, and other pertinent site specific information as appropriate, and
5.3.6 estimated start and completion dates
5.3.7 county tax parcel identification number
5.3.8 If the property is covered by the Delaware Seed Tree Law and, if so, how the owner intends to reforest the property.
5.3.9 Delaware business license of the contractor
5.4 Notification forms will be sent to the local Delaware Department of Agriculture Forest Service office for the county in which the activity is to occur. Technical assistance, forms, topographic maps, and other assistance are available at these offices as well.
5.4.1 Kent County:
Forestry Administrator
Delaware Department of Agriculture Forest Service
2320 South Dupont Highway
Dover, DE 19901
(302) 698-4500 In-state 1-800-282-8685
FAX (302) 697-6245
Kent County Forester
Taber State Forest
1953 Burrsville Road
Harrington, DE 19952
(302) 349-0938
FAX (302) 349-0937
5.4.2 Sussex County:
Southern Regional Forester
Redden State Forest
RD 4, Box 354 Sussex County Route 565
18074 Redden Forest Drive
Georgetown, DE 19947
(302) 856-2893
FAX (302) 856-5039
5.4.3 New Castle County:
Northern Regional Forester
Blackbird State Forest
502 Blackbird Forest Road
Smyrna, DE 19977
(302) 653-6505
FAX (302) 653-2869
5.5 The Delaware Department of Agriculture Forest Service will approve, approve with modifications, or deny all applications within five (5) working days of their receipt. In cases where denial of the application is issued, the Delaware Department of Agriculture Forest Service will provide technical assistance to the landowner, buyer and/or operator to develop modification(s) necessary to bring the application into compliance.
5.6 The operator on the site is responsible for following BMPs as indicated on the Erosion and Sediment Law Notification Form and Permit, during the silvicultural operations, until a forester has made a final inspection of the site and issued a final inspection report on form BMP-02.
5.7 A copy of the approved Erosion and Sediment Law Notification Form and Permit shall be kept on the site at all times during the harvest operation, and shown on demand to any forester or DNREC Environmental Protection Officer.
5.8 The permittee/operator shall provide the DFS with the following notifications of intent:
5.8.1 starting a permitted harvest operation — not less than two (2) days prior to desired start date.
5.8.2 completion of the harvest operation — not less than one (1) day prior to completion.
5.8.3 returning to a site if the operator has vacated the site for weather-related or similar reasons — not less than one (1) day prior to return.
5.9 Special Consideration - Streamside Management Zones:
5.9.1 All open water bodies, perennial streams, intermittent streams with a well-defined channel, and streams that have been hydrologically modified by dredging or straightening shall have a Streamside Management Zone (SMZ), unless the property or a portion of the property is covered by an approved Delaware Seed Tree Law application (Title 7, Chapter 29, Title 3, Chapter 10, Subchapter V) and is located on slopes of less than five (5) three (3) percent.
5.9.2 A Streamside Management Zone shall not be required along ditches, since these systems usually receive periodic maintenance, as long as Best Management Practices are followed to prevent the movement of sediment and debris into the ditch. The alteration of any berm or bank, structure, or control inlet culvert in or adjacent to tax ditches, as defined by Delaware Code Title 7, Chapter 41, is prohibited unless written approval from both the appropriate tax ditch managers and the Department of Natural Resources and Environmental Control (DNREC), Division of Soil and Water Conservation, Drainage Section is obtained.
5.9.3 The minimum width for a SMZ is 50 feet from each side of qualifying streams. Listed below are the minimum SMZ widths based on slope. Slope shall be defined as average slope of 100 contiguous feet measured on a horizontal plane perpendicular to the water body. All slope measurements shall begin at the crest of the water body, thus measurements adjacent to channelized streams will begin at top of the channel. SMZ width is measured in linear feet perpendicular from the perimeter of the water body. For tidal waters, the high water line should be used as the perimeter. The SMZ must be plainly designated with surveyors ribbon or durable paint before submitting the permit application.
Minimum Streamside Management Zone Width
Percent Slope
0-10% 11-20% 21-45%
Horizontal distance 50 feet 75 feet 100 feet
5.9.4 Within a Streamside Management Zone, at least sixty (60) square feet of basal area per acre of trees well distributed throughout the area shall be retained, or at least sixty (60) percent of the overstory. These trees should be equally divided among diameter classes. The landowner may desire to leave up to eighty (80) percent of the crown cover to provide shading for streams.
5.9.5 Felling trees across a waterway and dragging any part of the tree over or through the waterway channel is not permitted. Any occurrence shall result in the operator making immediate repairs to the waterway bank, and reporting the incident to the DFS for an inspection. All trees will be felled away from the SMZ to avoid depositing logging debris in the SMZ.
5.9.6 The remainder of the specifications for Streamside Management Zones is found in Delaware’s Forestry Best Management Practices Manual, September 1995, Document Control No. 65-01-04/95/09/01. Copies of this manual and current topographic maps are available at all Department of Agriculture Forest Service offices.
5.10 Special Consideration - Multiple Silvicultural Practices:
5.10.1 If more than one silvicultural activity is covered by an approved Forestry Practices E&S permit, the landowner will notify the local Delaware Department of Agriculture Forest Service office at least five (5) working days prior to the initiation of the subsequent operation. For example, if an E& S permit is approved for the harvesting operation and site preparation, please notify the local DDAFS office five (5) days before starting the site preparation operation.
5.11 Special Consideration - Adverse Weather Conditions:
5.11.1 The notification form, which becomes the E&S permit once approved, requires projected start and completion dates. Should environmental conditions create circumstances which either delay or accelerate the projected start or completion of operations, the operator or landowner will verbally notify the local DDAFS office. One example of such a circumstance is excessive rain causing saturated soils during forest harvest operations; as a result to comply with BMPs, operations are terminated with plans to resume the operations in the drier summer months.
6.0 Land Use
6.1 Timber harvesting is the primary silvicultural activity which enables landowners to initiate change in the land use from forest land to another land use, such as agricultural cropland, residential development, and industrial or commercial development. Delaware’s Forestry Practices E&S rules and regulations are designed for silvicultural activities where the land is to remain under forested land use.
6.2 However, should the landowner choose to change the land use, the new land treatment activity would no longer fall within the jurisdiction of the Delaware Department of Agriculture Forest Service. Land clearing activities are regulated under the Department of Natural Resources and Environmental Contol’s (DNREC) Sediment and Stormwater Management law. For conversion to agricultural cropland use, the designated agencies are the local Conservation Districts in each county. For conversion to other non-forest uses, the DNREC Division of Soil and Water Conservation, Sediment and Stormwater Section has regulatory authority. Thus, the owner or operator will be required to receive approval from the appropriate agency prior to initiating any activity on the site.
6.3 Therefore, as enumerated above, a land use intent declaration is required to receive approval under this law. However, in cases where the land use is to change, the DDA Delaware Forest Service, in accordance with a Memorandum of Understanding with DNREC Division of Soil and Water Conservation, will notify in writing the appropriate agency(ies) of the landowner’s intention and provide a copy of this correspondence to the landowner.
6.4 These rules and regulations as well as those of the Stormwater and Sediment law relate to erosion and sedimentation control. Any local, county, state, or federal laws which regulate land use changes, such as wetlands conversion, should be investigated thoroughly prior to initiating conversion of forest land to other uses.
7.0 Procedures and Penalties
7.1 To establish an inspection procedure which reinforces and compliments the regulatory authorities contained within Subchapter VI, the Delaware Department of Agriculture Forest Service (DDAFS) has established the following framework.
7.1.1 Informal field visits
2) Informal conference
7.1.2 Formal hearing
7.1.3 Superior Court.
7.2 If at any time during the enforcement process any water quality problem is corrected, all proceedings will be terminated, and a letter will be provided to the landowner and operator reflecting compliance with the law.
7.3 Informal Field Visits
7.3.1 The DDAFS field person Forester will visit a tract, perform a BMP inspection, and complete a BMP inspection form, a copy of which will be provided to the operator and landowner. During the course of this inspection, the field person will determine the status of the effectiveness of BMPs in protecting water quality and record this determination on the inspection form.
7.3.2 If, during a routine inspection of a harvest operation, it is discovered that the operator on the site does not have an approved harvest permit for the operation, the Forester will, at his or her discretion, issue a verbal or written warning to the operator. The Forester will immediately assist the operator in completing a permit form to bring the operation into compliance with the E & S rules and regulations. If failure to have an approved permit is a second offense, the Forester can, at his or her discretion, halt all harvesting operations until a permit has been completed and approved. If more than two offenses of this nature within a 12 month period, are on record for the operator/buyer, a fine, not to exceed $2,000.00 may be levied as specified in Title 3, Chapter 10, Subchapter VI, Paragraph 1077.
7.3.3 On the BMP inspection form, three categories of water quality classifications will be used: 1) no Water Quality (WQ) problem; 2) potential WQ problem; and 3) severe WQ problem. A potential WQ problem is defined as a typical problem that would cause excessive sedimentation and erosion during a normal rainfall. Examples may include undersized culverts and improper log road or deck stabilization on highly erodible soils. A severe WQ problem is defined as any silvicultural activity which is causing sediment deposition or will immediately create serious sediment deposition in a rainfall event.
7.3.4 If no WQ problem exists, the landowner and operator are notified on site, if possible, and in writing within five (5) working business days following the inspection.
(d) If a potential WQ problem exists on an initial field visit, the field person will note the problem on the BMP inspection form, give a verbal recommendation to the operator and landowner, and a time frame of up to five (5) working days to correct the problem. The field person will notify his/her immediate supervisor of the existence of a potential WQ problem.
(e) When the time frame specified in the recommendation for a potential WQ problem has elapsed, the field person will return for a second visit and if the problem remains with no extenuating circumstances such as bad weather, a Notice of Required Action (NORA) will be issued to both the operator and the landowner. The NORA will provide written recommendations and a time frame of no more than three (3) working days to correct the problem. If an agent is involved, he/she will be notified of the problem, along with the operator and landowner. Photographs will be taken at the disturbance site.
(f) Where a severe WQ problem exists, the initial field visit becomes the equivalent of a second visit as described above in (e), and a NORA is issued to the operator and landowner. The field person will photograph the disturbance site. The field person will return at the end of the designated time frame listed on the NORA, and, if the problem remains, an informal conference, as described below, will be scheduled.
7.3.5 If a potential WQ problem exists on an initial field visit, the Forester will note the problem on the BMP inspection form, including written directions to alleviate the potential problem, to the operator and landowner, and a time limitation of up to five (5) business days to correct the problem. The Forester will notify his/her immediate supervisor of the existence of a potential WQ problem. When the time limitation specified in the recommendation for a potential WQ problem has elapsed, the Forester will return for a second visit. If the problem persists with no extenuating circumstances such as bad weather, all operations will be halted until specified corrective actions have been made to the satisfaction of the Forester.
7.3.6 If a severe WQ problem exists, such as skidding logs across a stream or ditch with no bridge, the Forester will cause all operations to cease immediately, issue a written warning containing instructions how to immediately correct the problem.
7.3.7 In the event that an operator vacates a harvest site and WQ problems have not been corrected or resolved, the following actions may be taken at the discretion of the Forestry Administrator. 1) No further E & S permits will be issued for that permittee (operator), nor may that operator legally operate under any existing DFS E & S permits, until all corrections have been made to the satisfaction of the DFS. 2) A fine, not to exceed $2,000.00 may be levied as specified in Title 3, Chapter 10, Subchapter VI, Paragraph 1077.
2. Informal Conference
(a) At the conclusion of the three days specified in the NORA, a field person will again inspect the tract. If the problem remains, an informal fact-finding conference will be scheduled in a DDAFS office convenient to both parties within seven (7) working days of the last field visit. The conversation will be recorded to ensure accurate reporting. Following the informal conference, DDAFS and the parties will agree on a recommended course of action and time frame for remedying the site. This agreement will be formalized in a Special Order by Consent signed by the landowner and operator.
7.4 Formal Hearing
7.4.1 If the parties cannot agree or the Special Order by Consent is not complied with as determined by DDAFS, a formal public hearing If the parties cannot agree to corrective actions as determined by DFS, a formal hearing will be convened and conducted in accordance with Title 29 Chapter 101 of the Delaware Code, the Administrative Procedures Act (APA).
7.4.2 Twenty (20) days prior to the hearing, formal notice will be given to the parties and such notice will contain the following information:
7.4.2.1 A description of the subject matter of the proceedings;
7.4.2.2 Notice of the opportunity to proceed with informal fact-finding procedures (a second informal conference) and of the date by which this election must be made;
7.4.2.3 The date, time, and place the formal hearing will be held if informal fact-finding is not elected;
7.4.2.4 Citation to the law or regulation giving the DDAFS DFS the authority to act;
7.4.2.5 Notice to parties of their right to present evidence, to be represented by counsel, and to appear personally or by other representative, and
7.4.2.6 Notice to the parties of the agency’s obligation to reach its decision based upon the evidence received.
7.4.3 The hearing may be conducted by the Forestry Administrator the Secretary of Agriculture or his or her designee.
7.4.4 Any party may request a pre-hearing conference, to discuss, among other things, issues in dispute, documents to be relied upon, witnesses to be called, and any procedural matters.
7.4.5 The proceedings shall be recorded to ensure accuracy. A recorded transcript will be taken by a court stenographer upon request and this procedure will be paid for by the requesting party. All testimony shall be taken under oath as administered by the hearing officer. The names and addresses of all interested parties present shall be noted on the official record of the hearing.
7.4.6 Any party may present any competent evidence in its behalf and request subpoenas for testimony or production of documents and other tangible evidence. Non-parties shall not present evidence.
7.4.7 Strict rules of evidence shall not apply. All evidence having probative value commonly accepted by a reasonably prudent person in the conduct of his or her affairs shall be admitted. Objections to the admission or the exclusion of evidence shall be brief and shall state the ground for objection. Evidence which is plainly irrelevant, immaterial, insubstantial, cumulative, or unduly repetitive may be excluded.
7.4.8 The parties may be represented by counsel. The hearing shall open with a brief statement from each party of what such party intends to establish at the hearing.
7.4.9 Following opening statements, each party shall have an opportunity to produce evidence in support of such party’s position. The owner/operator shall produce evidence first followed by DDAFS. After initial testimony and cross-examination by the parties, any witness may be examined by the hearing officer. Following the presentation of the main case, the owner/operator shall have an opportunity to produce rebuttal evidence, subject to cross-examination. Following the presentation of the rebuttal evidence, DDAFS shall have an opportunity to present surrebuttal evidence, subject to cross-examination.
7.4.10 If no procedure is specifically prescribed by these Rules, the hearing officer may proceed in a manner not inconsistent with these Rules.
7.4.11 At the conclusion of the hearing, the Forestry Administrator the Secretary of Agriculture or designee may issue a Special Order within twenty (20) days from the date of the hearing. The Special Order shall describe evidence on which the Order was based. Upon issuance of a Special Order, the landowner and operator may be required to cease immediately all or part of the silvicultural activities on the site and to implement specified corrective measures within a stated period of time. The Special Order will be issued not less than five (5) days after service on the parties. Upon issuance of a Special Order, the landowner and operator will implement specified corrective measures within a specified period of time.
7.5 Penalties
7.5.1 Any owner or operator who violates, fails, or refuses to obey any Special Order may be assessed a civil penalty by the Forestry Administrator. Such penalty shall not be less than $200 or more than $2,000 for each violation. Each day of a continuing violation may be deemed a separate violation for purposes of assessing penalties.
7.6 Superior Court
7.6.1 If the Special Order has not been complied with, the Forestry Administrator may file a complaint in the Superior Court which has jurisdiction over all offenses under this statute. However, within three (3) working days of the inspection and prior to the filing of a complaint with the Superior Court, the Forestry Administrator may, in his at his or her discretion, agree to engage in an informal conference process with the landowner and operator to discuss and resolve violations of the Special Order.
7.6.2 Any person who intentionally, knowingly, and after written notice to comply violates or refuses to comply with any notice issued by the DDAFS DFS shall be fined not less than $500 or more than $10,000 for each offense. Such penalty may only be assessed after owner or operator has had the opportunity for a hearing as specified herein. Each day the violation continues shall constitute a separate offense.
6. Emergency Special Orders
(a) If at the time of the initial visit, an Emergency Special Order is warranted, the field person will notify their immediate supervisor or the Regional Forester of the issuance of an Emergency Special Order. Pursuant to the Emergency Special Order, landowner/operator may be required to stop all work on all or part of the tract and to take specific corrective action within a set time. An example of a practice which warrants an Emergency Special Order would be skidding across a perennial stream without a stream crossing.
(b) The commencement of proceedings by the DDAFS for the issuance of a Special Order does not affect the Forestry Administrator’s authority to issue an Emergency Special Order.
(c) The Forestry Administrator shall provide opportunity for a hearing, upon written request of any owner or operator affected by the Emergency Special Order, to affirm, modify, amend, or cancel such order. Such hearing shall proceed as described above. Violations of an Emergency Special Order shall be treated as a violation of a Special Order as described above.