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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsApril 2017

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7 DE Admin. Code 5102
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).
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:
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:
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.
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.
2.6.1 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). 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 through 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.
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.
4.8.1 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.
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.
Last Updated: December 31 1969 19:00:00.
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