DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Watershed Stewardship

Shoreline and Waterway Management Section

Statutory Authority: 7 Delaware Code, Section 6803(c) (7 Del.C. §6803(c))

7 DE Admin. Code 5102

FINAL

Secretary’s Order No.: 2017-WS-0011

5102 Regulation Governing Beach Protection and the Use of Beaches

Date of Issuance: March 13, 2017

Effective Date of the Amendment: April 11, 2017

Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control ("Department" or "DNREC") pursuant to 29 Del.C. §10113(b)(4), DNREC has revised Section 5102 of Title 7 of the Delaware Administrative Code to correct the technical errors found after the final adoption of this regulation (as set forth previously in Secretary's Order No. 2016-WS-0023).

Findings of Fact

Based on Delaware law and the record as reflected in the prior Secretary's Order referenced above, I make the following findings of fact:

1. The proposed regulation is not in conflict with Delaware law; and

2. The proposed regulation is an appropriate exercise of the Department's responsibilities and authority.

Decision and Order Concerning the Regulation

NOW THEREFORE, under the above-described statutory authority, and for the reasons set forth above, the Secretary of the Delaware Department of Natural Resources and Environmental Control does hereby ORDER that the revisions to 7 DE Admin. Code §5102: Regulations Governing Beach Protection and the Use of Beaches, be adopted and promulgated as follows, to wit:

1. The Agency Heading at the beginning of these published regulations shall be corrected to change the Division's Sectional Reference from "Coastal Programs" to "Shoreline and Waterway Management Section", so that said Heading reads: "DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, DIVISION OF WATERSHED STEWARDSHIP, Shoreline and Waterway Management Section";

2. Section 2.5.1 shall be corrected to change the subsection reference found therein from "2.13" to "2.11", so that the last sentence of that section reads: "Regardless of the developmental status of the parcels affected by this Section, all construction activities shall be subject to the Building Line upon its future re-establishment pursuant to subsection 2.11 of this regulation";

3. Section 4.8.1 shall be corrected to change the word "disposition" to "deposition", so that the first sentence of that section of that section reads: "No person shall commence or conduct construction of any structure or the alteration, digging, mining, moving, removal or deposition of any substantial amount of beach or other materials landward of the Building Line and within the beach area without a letter of approval from the Division"; and

4. Section 8.2.4 shall be corrected to change the subsection reference found therein from "©" to "8.2.3, so that the section reads: "For the purposes of subsection 8.2.3 of this Section, each and every day that a permit condition or limitation is violated, an activity engaged in which is prohibited by this chapter or a regulation violated is deemed a separate offense."

The effective date of this Order is ten (10) days from the date of its publication in the Delaware Register of Regulations, in accordance with 29 Del.C. §10118(g).

David S. Small, Secretary

5102 Regulation Governing Beach Protection and the Use of Beaches

1.0 Definitions

The following words and terms, when used in this regulation, have the following meaning unless the context clearly indicates otherwise:

“Accidental Event” means a sudden, unintended, and unexpected occurrence that results in damage or loss of property.

“Act” means the Beach Preservation Act of 1972, (7 Del.C. Ch. 68).

“Act of God” means a sudden and inevitable occurrence caused by natural forces and not by the agency of man, such as a flood, earthquake, or a similar catastrophe.

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

“Beach Access Structure” means any structure, improvement or facility constructed, installed or maintained for the primary purpose of obtaining or facilitating access to and from the berm and foreshore of the beach over, on or across the primary coastal dune.

“Beach Enhancement” means the process of improving or increasing the recreational and storm protection value of a beach.

“Beach Erosion” means the wearing away of a beach by water or the elements.

“Beach Nourishment” means the process of replenishing a beach with material (usually sand) obtained from another location.

“Beach Preservation” means the protection and control of the beach by the conduct and regulation of work and activities likely to affect the physical condition of the beach or shore, and includes, but is not limited to, erosion control, hurricane protection, coastal flood control, shoreline and offshore rehabilitation.

“Beach Protection” means the process of preventing the decrease of recreational and storm protection values of a beach.

“Berm” means the nearly horizontal part of the beach between the foreshore and primary dune formed by the deposit of material by wave action.

“Breakwater” means a marine structure constructed to protect a shore area, harbor, anchorage, or basin from the undesirable effects of wave action.

“Buildable Lot” means a lot upon which construction of a structure is permissible by all State, Federal, and local codes and regulations.

“Building” means any roofed and walled structure built for permanent or semi-permanent use.

“Building Line” means a line generally paralleling the coast, seaward of which construction of any kind shall be prohibited without a permit or letter of approval from the Department. The Building Line shall be set forth on maps prepared by the Department with reference to a vertical datum commonly used by land surveyors, the Delaware State Plane Coordinate System and topographical surveys. The Building Line is located as follows:

a. Along beaches extending from the Delaware/Maryland line to the tip of Cape Henlopen - 100 feet landward of the adjusted seawardmost 9-foot elevation contour above NAVD;

b. Along beaches extending from the tip of Cape Henlopen to Rosemary Street in Prime Hook Beach - 100 feet landward of the adjusted seawardmost 6-foot elevation contour above NAVD;

c. Along beaches extending from the Rosemary Street in Prime Hook Beach to the Old Marina Canal north of Pickering Beach - 75 feet landward of the adjusted seawardmost 6-foot elevation contour above NAVD;

d. Or at the landward limits of the Beach, as defined in these Regulations, whichever is most seaward.

Within the corporate limits of Rehoboth Beach and Bethany Beach, in commercial areas containing boardwalks and where no natural dune exists, the Building Line shall be along the westerly edge of the boardwalk.

“Bulkhead” means an upright structure or partition built parallel or nearly parallel to the shoreline, primarily to retain or prevent land from sliding and secondarily, to protect upland from beach erosion and damage from wave action. A bulkhead is generally of lighter construction than a seawall.

“Coastal Engineering Standards of Storm Protection” means level of protection for a location that consists of at least 100 feet of vegetated dune landward of the seawardmost 9-foot elevation contour above NAVD from the Delaware/Maryland line to the tip of Cape Henlopen, 100 feet landward of the seawardmost 6-foot elevation contour above NAVD from the tip of Cape Henlopen to Rosemary Street in Prime Hook Beach, and 75 feet landward of the seawardmost 6-foot elevation contour above NAVD from Rosemary Street in Prime hook Beach to the Old Marina Canal north of Pickering Beach.

“Construction” means any work or activity which is likely to have a material physical effect on existing coastal conditions or natural shore and inlet processes.

“Deck” means an open platform extending from a house or other building.

“Department” means the Department of Natural Resources and Environmental Control.

“Dike” means a wall or mound built around a low lying area to prevent flooding.

“Division” means the Division duly authorized by the Secretary as responsible for administering these Regulations.

“Dune” means a mound, hill or ridge of windblown sand, either bare or covered with vegetation, naturally or artificially accumulated.

“Emergency” means any unusual incident which endangers the health safety or resources of the general public, including damages or erosion of any shoreline resulting from a hurricane, storm or any such natural disturbance.

“Excavation” means the process of digging out material.

“Expansion” means the enlargement of a structure.

“Filling” means the process of depositing or placing material to raise the level of a certain area.

“Foreshore” means the part of the shore lying between the crest of the seaward berm (or upper limit of wave action at high tide) and the ordinary low water mark, that is ordinarily traversed by the uprush and backrush of the waves as the tides rise and fall.

“Geology” means the relationship of the earth and the materials of which it is composed, to the changes which it has undergone, is undergoing, or is likely to undergo.

“Geomorphology” means the form and general configuration of the earth's surface and the changes that take place in the evolution of land forms.

“Groin” means a shore protection structure built (usually perpendicular to the shoreline) to trap littoral drift or retard erosion of the shore.

“Hydraulics” means the effects of water or other fluids in motion.

“Improve” means to change an existing structure in order to enhance its integrity or value.

“Jetty” means a structure extending into a body of water, and designed to prevent shoaling of a channel by littoral materials, and to direct and confine the stream or tidal flow.

“Littoral” means pertaining to the shore of a sea.

“Littoral drift” means material such as sand and stones moved near the shore in the littoral zone under the influence of waves and currents.

“Lowest Living Floor” means the lowest portion of the lowest horizontal support member of the lowest enclosed space used for living purposes, which includes working, sleeping, eating, cooking, recreation, or combination thereof. A floor used only for storage shall not be considered a living floor.

“Maintenance” means any work aimed at keeping a structure in an efficient operating and usable condition. Maintenance does not mean expansion or modification of a structure. Maintenance does not mean changing the general form or extent of the structure.

“Material Physical Effect” means, including, but not limited to, any alteration to the existing characteristics of the beach or dune that could significantly, increase the danger of erosion, storm damage or flooding and includes the moving, digging, or removal of beach or the erection of any temporary or permanent structure.

“Meteorology” means the atmosphere and its phenomena especially as relating to weather.

“Modernizing” means the act of updating portions of a structure to give a new character or appearance.

“Modification” means a partial change in the form of a structure.

“North American Vertical Datum (NAVD)” means a fixed reference adopted by the U. S. Government as a standard geodetic datum for vertical elevations.

“Parcel of Real Property” means a single lot, the boundaries of which are set forth in a single deed or similar document.

“Person” means any individual, partnership, corporation, association, institution, cooperative enterprise, municipality, commission, political subdivision or duly established legal entity.

“Porch” means a roofed open or screened area adjoining an entrance to a building.

“Primary Dune” means that dune which roughly parallels the shoreline in a more or less continuous fashion and is generally the first and largest dune encountered moving landward from the shoreline.

“Private Beach” means any beach which is not a public beach as defined in these regulations.

“Public Beach” means any beach owned in fee simple title by the Federal or State government or any county, city, town or municipality; or any beach for which the State has obtained an easement or agreement for public use.

“Regulated Area” means the specific area within the defined beach that the Department is directed to regulate construction to preserve dunes and to reduce property damage. The regulated area shall be from the seaward edge of the beach as defined above to the landward edge of the third buildable lot in from the mean high water line.

“Regulation” means, unless stated otherwise, the Regulations Governing Beach Protection and the Use of Beaches, promulgated pursuant to the Beach Preservation Act of 1972 (7 Del.C. Ch. 68) and all amendments thereto.

“Repair” means the act of restoring a structure to good condition after it has been damaged. Repair does not mean expansion or modification of a structure.

“Revetment” means a facing of stone, concrete, or similar material built to protect a shore, or shore structure against erosion by wave action or currents.

“Roadway” means any improved (hot-mix bituminous concrete or Portland cement concrete) public roadway (maintained by any governmental agency for use by the general public) in existence on the effective date of these Regulations.

“Sand Fence” means a barrier made of posts, wires and boards or synthetic materials including plastic, nylon and polyester intended primarily to trap and collect wind-blown sand, but which may also be used to channel human and vehicular traffic.

“Seawall” means an upright structure separating land and water areas, primarily designed to prevent erosion and other damage to upland areas due to wave action. A seawall is generally of heavier or more massive construction than a bulkhead.

“Secretary” means the Secretary of the Department of Natural Resources and Environmental Control.

“Shoreline” means the line of intersection of a body of water with the land.

“Smallest Subset of Lots” means smallest identifiable group of lawfully subdivided, contiguous lots that exist within a subdivision, development or community separated by either roads or subdivision boundaries. If there are no roads or subdivision boundaries separating groups of lots, the smallest set of lots shall be seven lots.

“Structure” means any building, pipeline, dock, pier, wharf, boat ramp, groin, jetty, seawall, bulkhead, revetment, or any other piece of work artificially built.

“Subdivide” means the lawful division of any parcel of land into smaller parcels.

“Substantial Amount” means any amount, the moving, alteration, or removal of which could significantly increase danger of erosion, storm, damage or flooding.

“Substantial Change” means any alteration in the existing characteristics of the beach, as determined by the Secretary, that could significantly increase the danger of erosion, storm damage or flooding and including the moving, digging, or removal of beach material or the erection of any permanent of semi-permanent structure.

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

“Substantially Improved” means any reconstruction, rehabilitation, addition or other improvement to a structure, the total cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement.

“Temporary Structure” means any not permanent, non-habitable structure that can be easily removed from the site within a short time frame using minimal equipment and man power. Examples include, but are not limited to, signs, benches, sheds, ramps, steps or walkways.

“Update” means a change to an existing structure intended to improve its integrity or value.

20 DE Reg. 120 (08/01/16)

2.0 Permits and Letters of Approval

2.1 Purpose, Application of Current and Earlier Regulations. The primary purpose of these Regulations is to enhance, protect, and preserve public and private beaches of the State through a permit and letter of approval process. These current Regulations shall not apply to any project for which a valid letter of approval, permit, or extension of the same has been issued by the Division prior to the effective date of these Regulations. However, those provisions of the Department's regulations that governed beach protection and the use of beaches that were in effect prior to the effective date of these current Regulations shall apply to the projects, permits and letters of approval that were authorized or issued before the effective date of these Regulations.

2.2 Approval Requirement

2.2.1 No person shall commence or conduct construction for which approval is required under these Regulations (see Section 4.0) unless and until a letter of approval or the proper permit has been issued.

2.2.2 Before any person shall commence construction of any modification or expansion pursuant to the provisions of this Section, said person shall apply for and be issued a letter of approval or a permit from the Division.

2.2.3 The provisions of Section 3.0 of the Regulations have provided for certain exceptions to the general prohibition against construction seaward of the Building Line. However, prior to the commencement of any construction of any structure, or portion thereof, that is included within one or more of the exceptions set forth in said Section 3.0, the owner of the proposed structure or portion thereof shall apply to the Division for a permit pursuant to the provision set forth in subsection 4.5 of the Regulations. The permit application will be processed pursuant to procedures set forth in Section 5.0 of the Regulations.

2.3 Department Exemption

2.3.1 The Department shall be subject to all the rules and requirements of these Regulations, except that in the performance of its erosion control duties pursuant to the authority granted by the Beach Preservation Act of 1972 (7 Del.C. Ch. 68), the Department shall be exempt from the permit requirements of these Regulations. The Department shall, however, still be subject to any substantive standards and guidelines generally applicable to the construction and placement of shore protection structures and facilities.

2.4 Extensions for Letter of Approval or Permit

2.4.1 These Regulations shall not apply to any project for which a valid letter of approval, permit, or extension of same has been issued by the Division, prior to the effective date of these Regulations. After the effective date of these Regulations no extension shall be granted for a letter of approval or permit issued prior to the effective date of these Regulations. Any letter of approval or permit which was issued without specific time limits has become null and void if construction has not been initiated within one year or completed within two years from the effective date of these Regulations.

2.4.2 An extension to the time limits of a permit or letter of approval that was issued after the effective date of these Regulations may be granted by the Division. Before any such extension may be granted, the person who was issued the letter of approval or permit shall submit a written request for the extension. The written request must be received by the Division at least 15 days prior to the expiration date of the letter of approval or permit and shall contain a detailed explanation of why the extension is necessary, and the date when the project will be completed. In determining whether such an extension will be granted the Division may consider the following: (1) whether reasonable progress is being made toward completion of the project; and (2) any changes that may have occurred in state, federal and local laws, regulations, rules, requirements or administrative policy, which are contrary to aspects of the project that had been originally approved by the Division. In lieu of an extension of the time limits in a letter of approval or permit, the Division may require a person to reapply for a letter of approval or a permit if the Division determines that the facts and circumstances relating to a previously approved project require a re-evaluation by the Division.

2.4.2.1 An extension to a letter of approval or permit shall not be granted more than three times.

2.5 Construction Setback Lines - Prior Approvals

2.5.1 At those locations where dune reconstruction has been approved by permit prior to the Regulations promulgated and effective on August 13, 1981 and a construction setback line mutually agreed upon in writing between an owner/developer and the Division to be the landward toe of the reconstructed dune, that agreed upon line shall prevail over the current Building Line for the purposes of initial construction of a structure upon each affected parcel. Any subsequent additions to, or replacements of, the initially approved structure shall be subject to the Building Line as established pursuant to these Regulations and the appropriate sections thereof. Regardless of the developmental status of the parcels affected by this Section, all construction activities shall be subject to the Building Line upon its future re-establishment pursuant to subsection 2.13 2.11 of this regulation.

2.6 Maintenance, Repairs, and Emergency Action

2.6.1 Except as otherwise provided in subsections 2.6.2 and 2.6.3, any Person intending to commence any maintenance or repair work on any structure located in part or entirely seaward of the Building Line, shall apply in writing to the Division for a letter of approval or a permit. No person shall commence such maintenance or repair work until after being issued a letter of approval or a permit by the Division. (See also the provisions of Section 3.0 - Prohibited Activities and Section 4.0 - Activities Requiring a Permit or Letter of Approval).

2.6.2 The provisions of Section 2.6.1 shall not apply where maintenance or repair work on a structure located in part or entirely seaward of the Building Line is undertaken pursuant to the following limitations or causes:

2.6.2.1 Where a building is involved, and the location of the finished maintenance or repair work is at or above the lowest living floor.

2.6.2.2 The maintenance consists solely of non-structural work such as repainting, replacement of shingles or siding or replacement of windows and doors and any cleaning necessary to maintain the structure.

2.6.2.3 The maintenance or repair work is to a structure, and is necessary because of damage being caused to the structure by some means other than wave action, a flood or erosion.

2.6.2.4 In the event of an extreme emergency, or warning thereof, which may involve grave and imminent danger of substantial property loss or personal injuries (e.g., an impending coastal storm), a person may perform work on a structure that is related to the protection of persons and said structure. However, before a person can commence any such emergency protection work, the person owning the structure on which such work shall be performed, or any agent thereof, shall contact the Division to request approval to perform the emergency protection work. The Division's approval or disapproval may be given to the owner, or agent thereof, either orally or in writing. After the emergency, or emergency warning period, the Division may require the removal of any emergency protection work performed pursuant to the provisions of this Section.

2.7 Other Requirements and Approvals

2.7.1 A person who is issued a permit or letter of approval by the Division pursuant to these Regulations is not exempted from obtaining any other permit or approval required by Federal, State or local laws, rules, regulations, and building and zoning ordinances.

2.8 General Permit Considerations

2.8.1 The Division, in considering applications, shall take into account the geology, geomorphology, meteorology and hydraulics of the area.

2.9 Sole Jurisdiction

2.9.1 All structures, devices and facilities for the enhancement, preservation or protection of beaches shall be under the sole jurisdiction of the Department. None of these shall be changed in any way except as provided in these Regulations.

2.10 Building Line Format

2.10.1 The Building Line shall be shown on topographic maps at a scale of one inch equals 50 feet for all shoreline areas of Delaware Bay and the Atlantic Ocean Coast from, and including, Pickering Beach to the Delaware-Maryland line at Fenwick Island, where privately owned structures, either existing or potential, may be affected by the establishment of the Building Line. The Building Line shall be shown as a series of straight lines connected together at points whose locations are identified by reference to the Delaware State Plane Coordinate System. No point shall be located more than 500 feet from an adjoining point.

2.11 Building Line Re-establishment

2.11.1 When, in the opinion of the Secretary, storms or other natural phenomena cause a substantial long term change in the seaward contour used to establish the Building Line, the Division may, following public hearing, re-establish the Building Line in its entirety or for the portions of the coast where the natural phenomena have caused substantial long term changes from information provided by topographic survey.

2.12 Re-establishment Effects on Lot Status

2.12.1 Re-establishment of the Building Line may place parcels of land, lawfully subdivided after the effective date of these Regulations, in a position of having insufficient space to construct a structure landward of the newly established Building Line. These parcels shall be subject to the appropriate permit requirements of Section 4.0 of this regulation.

2.13 Savings Clause

2.13.1 If any provision of these Regulations, or the application of such provision to any person or circumstances, is held invalid, the remainder of these Regulations, and the application of such provision to persons or circumstances other than those to which it shall have been held invalid, shall not be affected.

20 DE Reg. 120 (08/01/16)

3.0 Prohibited Activities

3.1 Construction Seaward of the Building Line

3.1.1 No person shall commence the construction of any structure, or portion thereof, seaward of the Building Line on any parcel of real property, except where one or more of the following conditions exist:

3.1.1.1 The Division has made a determination during the permit application processing stage that the size of the area of the parcel of real property located landward of the Building Line is inadequate for construction of the proposed structure or a portion thereof. However, the Division's determination as to the adequacy of the area of the parcel of land located landward of the Building Line, or as to any modification or redesign shall not conflict with any Federal, County or local laws, regulations, or planning, zoning and building ordinances.

3.1.1.2 That the dimensions and location of the structure, or portions thereof, as proposed and other design aspects of the proposed construction project, including, but not limited to, parking lots and landscaping, cannot be modified or redesigned in order to have the final structure or portion thereof located either less seaward or completely landward of the Building Line in accordance with the four-step process outlined in subsections 3.1.1.2.1 through 3.1.1.2.4 of this regulation. (See subsection 5.3.2 of this regulation for further explanation of what the Division will examine when a permit application is processed and whether or not the proposed structure, or portion thereof, may have to be modified or redesigned). However, the Division's determination as to the adequacy of the area of the parcel of land located landward of the Building Line, or as to any modification or redesign shall not conflict with any Federal, County or local laws, regulations or planning, zoning and building ordinances. (Note that this exception shall not apply if the provisions of subsection 3.1.1 of this regulation are applicable to the parcel of land in issue.) A person is not required to follow the requirements of the four-step process if they demonstrated through the submission of a sealed survey of the lot that all construction will be located entirely landward of the Building Line. In this case, the applicant must apply for a letter of approval as required by subsection 4.8 of this regulation.

3.1.1.2.1 All construction must begin at the setback line established for the landward property boundary by the county or local municipality in which the property is located. Porches, decks and entrance ways are not permitted along this wall of the building, except those which are recessed into the exterior wall of the structure or alongside the structure. Steps may extend into the setbacks as long as permissible by county and local regulations, and;

3.1.1.2.2 The structure must occupy all of the area available between the side yard setbacks, and;

3.1.1.2.3 The square footage of the footprint of the structure (living area only, not including porches or decks) shall not exceed the average square footage that exists among adjacent structures within the smallest subsets of lots, and;

3.1.1.2.4 Seaward penetration over the Building Line shall not exceed the average encroachment that exists among adjacent structures within the smallest subset of lots. Any decks constructed along with the structure must meet the requirements of subsection 3.1.1.3 of this regulation.

3.1.1.3 Whenever a deck or porch is being constructed along with a new building, and said deck or porch is located at or above the lowest living floor of the building, said deck or porch is also making use of the foundation of said building (i.e. cantilevering) and said deck or porch shall not extend beyond the most seaward point that is the average distance seaward of the Building Line of any lawfully constructed building, deck or porch of a similar nature that is already existing on parcels of real property located within the smallest subset of lots, within the same subdivision as the parcel of real property on which the building, or deck or porch is proposed. Future enclosure of the cantilevered deck or porch is prohibited and the area underneath the deck shall remain open and free of all obstructions.

3.1.1.4 The Division has made a written determination that the proposed structure, or a portion thereof, must be located seaward of the Building Line on a parcel of land in order that the intended purpose of the structure, or a portion thereof, will be achieved. The provisions of this Section and subsection may apply to the following types of structures: pipelines, docks, piers, wharves, boat ramps, and other harbor structures, as well as other types of structures that have the purpose of protecting the beach or shore, preventing beach erosion, and carrying out the purposes of the Act and the Regulations. However, for purposes of this Section and subsections, a building, patio, deck, swimming pool, carport, driveway or similar type of structure shall not be considered by the Division as being the type of structure that must be located seaward of the Building Line on a parcel of land in order to achieve the intended purpose of the structure. The Division may require that these latter types of structures, or portions thereof, be constructed landward of the Building Line, or not constructed at all.

3.1.1.5 If a structure is completely removed from its foundation for replacement of said foundation, and 75% or more of the original structure remains intact, and such a structure does not have to be located seaward of the Building Line in order to achieve its intended purpose pursuant to subsection 3.1.1.4 of this regulation, then such a structure shall be required to be located entirely landward of the Building Line or shall be located as far landward as possible on the parcel of real property in question, taking into consideration all Federal, State and local laws, rules, regulations and zoning and building ordinance. Under these circumstances subsection 3.1.1.2 of this regulation (the 4-step process) would not apply.

3.1.1.6 In those cases where the mapped Building Line either transects or is landward of lots that, in turn, are landward of lots with existing habitable structures, the Building Line will not be used to modify either location or dimension of buildings on the more landward lot.

3.1.2 Except as provided in subsections 3.1.1.3 and 3.1.1.4 of these Regulations, no person shall construct any structure, or portion thereof, on any parcel of real property, or portion thereof, that is located seaward of the Building Line whenever the following facts and circumstances exist:

3.1.2.1 The parcel of real property, or a portion thereof, on which a proposed structure, or portion thereof, would be constructed, was subdivided from a large parcel of real property after August 13, 1981. In addition, at the time said parcel of real property, or portion thereof, was subdivided from a larger parcel of real property, construction of a structure, or portion thereof, would not have been approved by the Division because the size of the area landward of the Building Line on the smaller subdivided parcel of real property was inadequate. (See subsection 2.12 and Section 4.0 of the Regulations.)

3.2 Modification or Expansion of Structures Seaward of the Building Line

3.2.1 A person is prohibited from modifying or expanding any structure, or portion thereof, seaward of the Building Line, including those structures, or portions thereof, that were (1) constructed prior to the effective date of these Regulations, or (2) were constructed pursuant to the provisions of subsection 2.4 of this Regulation, unless one or more of the following exceptions apply to the proposed modification or expansion at issue:

3.2.1.1 The provisions of subsection 3.1.1.4 of the Regulations should be applied to the proposed modification or expansion because the intended purpose of the structure, or portion thereof, that is to be modified or expanded must be achieved. A permit shall be required for work under this Section. See Section 4.0 of these Regulations.

3.2.1.2 The modification or expansion consists of only a deck or porch located at or above the lowest living floor of a building, and the modification or expansion makes use of the foundation of said building (i.e. cantilevering) that existed prior to said modification or expansion. However, any deck or porch or portion thereof, that is modified or expanded pursuant to any provision of this Section shall not extend beyond the average distance seaward of the Building Line of any existing lawfully constructed buildings or decks or porches of a similar nature that is already existing on parcels of real property that are located within the smallest subset of lots, within the same subdivision as the parcel of real property on which the modification or expansion is proposed. A letter of approval shall be required for work under the Section. See Section 4.0 of these Regulations.

3.3 Restoration or Reconstruction of Structures Seaward of the Building Line

3.3.1 If a structure located seaward of the Building Line is substantially damaged, no person shall undertake any restoration or reconstruction of the damaged structure before the Division issues the person a permit or letter of approval pursuant to the procedures set forth in Section 4.0 of this regulation.

3.4 Siting Requirements for Construction and Reconstruction of Structures

3.4.1 If a structure is to be either repaired or reconstructed following substantial damage or is to be substantially improved, and such a structure does not have to be located seaward of the Building Line in order to achieve its intended purpose pursuant to subsection 3.1.1.4 of this regulation, then such a structure shall be required to be located entirely landward of the Building Line. However, if the Division determines that there is inadequate space available entirely landward of the Building Line for the repair or reconstruction of a substantially damaged or substantially improved structure, said repaired or reconstructed structure shall be physically located as far landward as possible on the parcel of real property in question, taking in to consideration all Federal, State and local laws, rules, regulations and zoning and building ordinance. (See subsection 3.1.1 of this regulation.)

3.5 Footprint Requirement:

3.5.1 No property owner shall be prevented within the regulated area from repairing, modifying, modernizing, updating, or improving their existing structure, or by performing such actions, be required to relocate or reduce in size so long as these repairs, modifications, or improvements are within the existing structure’s footprint.

3.6 Effect of Beach Nourishment

3.6.1 When considering the reconstruction of buildings on lots fronting the Ocean or Delaware Bay that are either partially or completely seaward of the Building Line that have sustained substantial damage through acts of God or other accidental events, the Division will consider the effect of beach nourishment work that has enhanced the beach and dune in such areas. Furthermore, in any such case, where Federal or State agencies have constructed and continue to maintain a beach and dune that conforms to coastal engineering standards of storm protection (as defined in these regulations) property owners shall be permitted to rebuild a structure, in a location which has this level of protection, in the same footprint.

3.7 Other Prohibited Activities

3.7.1 The following activities are prohibited:

3.7.1.1 The operation of any motorized vehicle or machine on, over or across the primary dune on any State-owned or maintained beach except at those locations specified by the Department for such use (see current State Parks Rules and Regulations for additional rules);

3.7.1.2 Transportation or storage of any type of boat across or on the primary dune on any State-owned or maintained beach except at locations approved or permitted by the Department;

3.7.1.3 Pedestrian traffic on, over or across the primary dune on any State-owned or maintained beach except at those locations specified by the Department for such use;

3.7.1.4 The alteration, moving or removal of any facility, improvement or structure installed or maintained by the Department for enhancement, preservation or protection of any beach; and

3.7.1.5 The damaging, destruction or removal of any trees, shrubbery, beach grass or other vegetation growing on any State-owned or maintained beach seaward of the Building Line.

3.8 Temporary Structures:

3.8.1 The placement of seasonal or otherwise temporary structures seaward of the Building Line and seaward of the dune on the dry beach may be allowed for a period of up to a year or such lesser period as specified with a Letter of Approval from the Department. It must be demonstrated by the applicant that the design and deployment of the temporary structure can be done so that the structure can be easily removed or otherwise relocated landward of the Building Line in a short time frame. Temporary structures must be removed from the site during the time frame established in the letter of approval and in the case of the threat of a coastal storm.

3.8.1.1 If the temporary structures, such as, but not limited to, tents, wedding alters, chairs or tables, are being placed on the beach for an event that will last only 72 hours or less, the requirement to obtain a letter of approval is waived. However, the provisions of subsection 3.7.1.5 of this regulation still apply.

20 DE Reg. 120 (08/01/16)

4.0 Activities Requiring a Permit or Letter of Approval

4.1 General Rule

4.1.1 No permit shall be issued for any activity prohibited by any provision of the Regulations. Procedures for processing applications are set forth in Section 5.0 of the Regulations.

4.2 Permit Application; Fee

4.2.1 Any person applying for a permit pursuant to the provisions of Section 4.0 of the Regulations must apply to the Division on an application form provided by the Division. Any person submitting a permit application form to the Division pursuant to the provisions of Section 4.0 of the Regulations shall at the same time submit an application fee of $150 for each permit application.

4.3 Construction of Beach Erosion Control or Shore Protection Structures or Facilities Seaward of the Building Line

4.3.1 No person shall commence or conduct, without a permit therefor from the Division, construction of any structure or facility on any beach seaward of the Building Line, the primary function of which is beach erosion control or shore protection including, but not limited to, groins, jetties, seawalls, revetments, dikes, bulkheads, and beach nourishment; except that ordinary dune maintenance, as determined by the Division, including the proper installation of sand fence and the planting and fertilization of stabilizing vegetation, shall not require a permit.

4.4 Construction of Pipelines or Harbor Works Seaward of the Building Line

4.4.1 No person shall commence or conduct without a permit therefor from the Division, construction seaward of the Building Line, or any pipeline, dock, pier, wharf, ramp or other harbor work.

4.5 Construction of a Structure Seaward of the Building Line; Permits; Exception for Beach Access Structures

4.5.1 Except as provided pursuant to the provisions of subsections 4.3, 4.4, or 4.5.3 of the Regulations, before any person commences the construction of any structure, or portion thereof, that would be located seaward of the Building Line, said person must have been issued a permit for the construction by the Division.

4.5.2 Before any permit is issued by the Division pursuant to subsection 4.5.1 of the Regulations for the construction of any structure, or portion thereof, seaward of the Building Line, the person applying for the permit must provide the Division with written documentation that the proposed structure, or portion thereof, will be constructed in accordance with Division requirements relating to location and design criteria, which are intended to prevent or minimize any damage to the beach, and also all the provisions of the Act and the Regulations.

4.5.3 A person is not required to follow the requirements of subsection 4.5.1 or 4.5.2 of the Regulations if a person intends to construct a structure, or portion thereof, that is going to be used only for the purpose of providing pedestrian access to and from the berm and foreshore across the dune. However, before any person commences the construction for such a beach access structure, or any portion thereof, that would be located seaward of the Building Line, said person must have been issued a letter of approval for the construction by the Division. A person may receive said letter of approval after applying to the Division on an application form that shall be made available by the Division. The Division shall process said application form pursuant to the procedures set forth in the provisions of subsection 4.8 of the Regulations.

4.5.3.1 For the purposes of best protection of the dunes, and to meet the needs of larger beach communities, pedestrian dune crossovers may be constructed to certain widths. The total number of residences that are served by each crossover will be determined by the Division by dividing the number of possible single family dwellings within a subdivision on non-ocean front or bay front lots by the number of community pedestrian dune crossovers within that subdivision.

4.5.3.1.1 Crossovers serving one or two single family residences shall not be wider than four feet.

4.5.3.1.2 Community crossovers that serve anywhere between three to nine single family residences shall not be wider than five feet.

4.5.3.1.3 Community crossovers that serve 10 or more single family residences shall not be wider than six feet.

4.5.3.1.4 Crossovers serving persons with special needs will be evaluated on a case by case basis.

4.6 Other Activities Seaward of the Building Line

4.6.1 No person shall commence or conduct any of the following activities on any beach without a permit therefor from the Division: the alteration, digging, mining, moving, removal or deposition of any substantial amount of beach or other materials, or the significant removal of vegetation on any beach seaward of the Building Line which may affect enhancement, preservation or protection of beaches.

4.7 Mitigating Measures

4.7.1 In rendering its decision on requests for permits and letters of approval pursuant to these Regulations, the Division shall make a determination regarding the potential adverse effects of the proposed structure or activity. If, in the opinion of the Division the potential for damage to the beach seaward of the Building Line is increased as a result of the proposed structure or activity, the Division may require the applicant to take mitigating measures (including, but not limited to beach nourishment, dune construction, and dune maintenance) to reduce such damage potential. When the Division requires such mitigating measures, the applicant, their successors, heirs and assigns, shall be required to maintain these measures for the life of the structure or activity. Failure to comply with the mitigating measures prescribed by the Division shall be cause for removal of the structure or termination of the activity and restoration of the beach, as nearly as possible, to its original condition at the expense of those persons owning the structure or conducting the activity, or for the Division to take the necessary actions to bring the owner into compliance and to place a lien on such property for all reasonable costs and expenses incurred by the Division, whichever action the Division deems most appropriate.

4.8 Construction Activities Landward of the Building Line and Within the Regulated Area

4.8.1 No person shall commence or conduct construction of any structure or the alteration, digging, mining, moving, removal or disposition deposition of any substantial amount of beach or other materials landward of the Building Line and within the beach area without a letter of approval from the Division. To obtain the written approval, the applicant shall furnish to the Division a completed application on forms available from the Division.

4.8.2 Upon receipt of an application for approval, the Division shall consider the effect of the proposed project on beach enhancement, preservation and protection. The Division may undertake any investigation or activity it deems necessary to carry out the purposes of this Act. If the Division determines such a project may have a substantial effect on beach enhancement, preservation and protection, the applicant shall be directed to follow the procedures for obtaining a permit applicable under Section 4.0 of the Regulations. The Division shall make a decision on the application that may include terms and conditions which it determines will best implement the purposes of the Act and these Regulations. The Division shall give written notice with reasons for the decision to the applicant.

20 DE Reg. 120 (08/01/16)

5.0 Procedures for Processing Permit Applications

5.1 The Division

5.1.1 Applications shall be considered and permits issued or denied by the Division in accordance with the purposes and intent of the Act and these Regulations.

5.2 Notice

5.2.1 Upon receipt of a permit application in proper form, the Division shall advertise in a daily newspaper of state-wide circulation and in a newspaper of general circulation in the county in which the activity is proposed:

5.2.1.1 That the application has been received;

5.2.1.2 A brief description of the nature of the application; and

5.2.1.3 That comments will be received for 15 calendar days by the Division regarding the application.

5.2.2 The Division shall also mail notice of the above to all adjacent property-owners as listed in the permit application, and make the application available for public inspection at the Dover office of the Division. A decision shall not be rendered on any permit application until at least 20 calendar days after notice has been published and mailed to adjacent property owners, and the application has been made available for public inspection, in accordance with this Section.

5.3 Specific Information to be Examined by the Division; Investigatory Authority of the Division and Its Agents; Authority of Division to Require Special Conditions or Modifications

5.3.1 In addition to the general categories of information that are provided for pursuant to subsection 2.8 of the Regulations whenever the Division is deciding to issue a Permit pursuant to the Regulations, the Division shall take into consideration any relevant information relating to the following:

5.3.1.1 Any comments received by the Division;

5.3.1.2 The effect of the proposed construction on shoreline recession, beach erosion, flooding, and potential damage to the parcel of real property that is the subject of the permit application, and potential damage to any other parcel of real property, public lands, or personal property;

5.3.1.3 The feasibility of alternative protection from storm damage that may be available;

5.3.1.4 The historical average rate of shoreline change for the general area nearby and including the parcel of real property that is the subject of the permit application;

5.3.1.5 The design modifications which may mitigate the impact of the proposed construction on the part of the beach that is located seaward of the Building Line (see subsection 5.3.2 below for further information); and

5.3.1.6 Any other factors or information that the Division determines to be relevant to the subject matter of the permit and carrying out the purposes and intent of the Regulations and the Act.

5.3.2 In determining if the Division shall require that the dimensions or location of a proposed structure, or portion thereof, or other design aspects are to be modified or redesigned pursuant to the provisions of subsection 3.1.1.2 of the Regulations, the Division, in addition to what is required in subsections 2.8 and 5.3.1, shall balance the actual and potential hardships or benefits that may be experienced by the person owning the structure or portion thereof against the actual and potential hardships or benefits that the State, the public and adjacent landowners may experience. The Division while carrying out the balancing test may take into consideration the following factors:

5.3.2.1 The purposes and provisions of the Act and the Regulations;

5.3.2.2 The likelihood and amount of actual, or potential for, expenditures of federal and state revenues for maintaining, repairing or restoring the parcel of real property prior to construction, after construction and after any natural disaster (e.g. storm);

5.3.2.3 The protection of the State, the public and any adjacent landowners from actual and potential financial and property loss;

5.3.2.4 The actual and potential financial or personal losses to the owner of the structure or portion thereof;

5.3.2.5 The feasibility of any modification or redesign required by the Division, keep in mind any increased or decreased costs, in achieving the purpose and function of the structure or portion thereof as originally planned;

5.3.2.6 Any design alternatives or amendments to the original designs submitted to the Division by the owner of the proposed structure or portion thereof; and

5.3.2.7 Any other factor the Division determines to be relevant.

5.3.3 The Division or Department, and any agents thereof, may do any of the following acts while attempting to carry out the purposes and intent of the Regulations and the Act, or while processing an application for a permit or request for a letter of approval:

5.3.3.1 Make on-site inspections of any type of structure, or portion thereof, or any real property regulated by the provisions of the Regulations or the Act.

5.3.3.2 Communicate with any party to discuss any matter relating to the Regulations or the Act.

5.3.3.3 Undertake formal or informal investigations or activities as are necessary to carry out the propose and intent of the Regulations and the Act.

5.3.4 In addition to the provisions of subsection 4.7 of this Regulation, the Division may establish special permit conditions, and require modification of any proposed structure or activity in order to (1) prevent increased erosion damage to the parcel of real property in issue, nearby parcels or real property, or public lands, and (2) reduce public expenditures for beach protection.

5.4 Decision

5.4.1 The Division shall make a decision on the application which it determines will best implement the purposes of the Act and these Regulations. The Division shall give written notice with reasons to the applicant, to adjacent property owners as listed in the permit application and to other persons who have requested that they be notified of the decision on that application.

20 DE Reg. 120 (08/01/16)

6.0 Appeal From the Division's Decision

6.1 Activity Pending Appeal

6.1.1 The applicant shall not commence any activity regulated under Section 4.0 of the Regulations until such time as a final determination has been rendered on the matter and the appeal period has expired without an appeal having been taken, or, if appealed, the appeal process has been exhausted.

6.2 Procedures

6.2.1 Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the state, aggrieved by any decision of the Division, many appeal to the Secretary by giving written notice of appeal to the Secretary, and to the applicant if other than the appellant. Such notice shall be by certified or registered mail within 20 calendar days of the Division's decision, and shall specify: (1) the interest of the appellant; (2) the basis of the appeal; and (3) the specific laws, regulations or other legal authorities alleged to have been violated by the Division's decision. A public hearing may be held on any such appeal, upon request, whenever the Secretary deems the hearing request meritorious. A request for a public hearing shall be deemed meritorious when the appeal is not frivolous and the notice of appeal exhibits a reasonable familiarity with the Division's decision. The public hearing shall be conducted as follows:

6.2.1.1 For any hearing on an application, notification shall be served upon the applicant as summonses are served or by registered or certified mail not less than 20 calendar days before the time of said hearing. Notice shall also be published in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State not less than 20 calendar days before the time of said hearing.

6.2.1.2 The appellant may appear personally or be represented by counsel at the hearing and produce any competent evidence in their behalf. The Secretary or the Secretary’s authorized designee may administer oaths, examine witnesses, and issue, in the name of the Department, notices of hearings or subpoenas requiring the testimony of witnesses and production of books, records or other documents relevant to any matter involved in such hearing.

6.2.1.3 A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents introduced by the Secretary or other parties, constitute the record. The Secretary or the Secretary’s authorized designee shall make findings of fact based on the record. The Secretary shall then enter an order that will best further the purposes of the Act and these Regulations, and the order shall include reasons. The Secretary shall promptly give written notice of the order to parties who participated in the hearing.

20 DE Reg. 120 (08/01/16)

7.0 Appeal From the Secretary's Decision

7.1 Appeal Procedure

7.1.1 Any person or persons, jointly or severally, or any taxpayer, or other officer, department, board or bureau of the State, aggrieved by a final order of the Secretary may, within 30 calendar days, appeal to the Superior Court as provided in 7 Del.C. §6803(g).

20 DE Reg. 120 (08/01/16)

8.0 Cease and Desist Orders, Violations and Penalties

8.1 Cease and Desist Orders

8.1.1 The Secretary shall have the power to issue a cease and desist order to any person who violates any provision of the Act or Regulations. Any such cease and desist order shall expire (1) after 30 days from the date of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when the order is superseded by an injunction, whichever occurs first.

8.2 Violations and Penalties

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

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

8.2.3 Any person who:

8.2.3.1 Violates any condition or limitation in a permit issued pursuant to this chapter;

8.2.3.2 Engages in any activity prohibited by this chapter; or

8.2.3.3 Violates any regulation duly promulgated according to this chapter,

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

8.2.4 For the purposes of subsection © 8.2.3 of this Section, each and every day that a permit condition or limitation is violated, an activity engaged in which is prohibited by this chapter or a regulation violated is deemed a separate offense.

8.2.5 Any expenses or civil penalties collected by the Department under this Section are hereby appropriated to the Department to carry out the purposes of this chapter.

8.3 Jurisdiction

8.3.1 Justices of the Peace shall have original jurisdiction to hear and determine violations under this Section.

20 DE Reg. 120 (08/01/16)

9.0 Procedures for Adoption of Changes to the Regulations

9.1 Hearing

9.1.1 The Secretary, or the Secretary’s authorized designee, shall hold a public hearing on any changes to the Regulations that he shall propose for adoption. For a hearing on the proposed changes to the Regulations, notification shall be published in a newspaper of general circulation in each county of the State and in a daily newspaper of general circulation throughout the State. Such notification shall include (1) a brief description of the proposed changes to the Regulations, (2) the time and place of the hearing, and (3) the time and place where copies of the proposed changes may be examined and obtained. Such notice shall also be sent to any person who has requested notification from the Department by providing their name and mailing address.

9.2 Decision

9.2.1 Following the public hearing, the Secretary may adopt, with or without modifications, the proposed changes to the Regulations. This adoption shall be a final order for purposes of Section 7.0 of the Regulations.

10 DE Reg. 870 (11/01/06)

20 DE Reg. 120 (08/01/16)

20 DE Reg. 818 (04/01/17) (Final)