Skip to Page Content
Delaware.gov  |  Text OnlyGovernor | General Assembly | Courts | Elected Officials | State Agencies
 Photo: Featured Delaware Photo
 
 
 Phone Numbers Mobile Help Size Print Email

Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsAugust 2013

Table of Contents Previous Next

Authenticated PDF Version

7 DE Admin. Code 5101
Re: Adoption of a Final Regulation 7 DE Admin. Code 5101 Sediment and Stormwater Regulations
This Order considers the attached Report of the Department’s presiding hearing officer, who reviewed the procedural history and the record and recommends adoption of the final regulation based upon the proposed regulation published April 1, 2013 in the Delaware Register of Regulations. This Order adopts the Report to the extent it is consistent with this Order. Consequently, this Order approves the final regulation for publication in the next Delaware Register of Regulations, but with a delayed effective date of January 1, 2014. This delayed effective date is to allow more time for the Department to provide workshops and other outreach efforts for the public.
The regulation adopted by this Order is a comprehensive change from the current regulation codified at 7 DE Admin. Code 5101. The change was the result of an extensive regulatory development process, which formally began with an August 15, 2006 Start Action Notice. The revision of Regulation 5101 was consistent with the April 2005 recommendations of the Governor’s Task Force on Surface Water Management.1 Indeed, the Department’s experts in the Division of Watershed Stewardship’s (DWS) Stormwater and Sediment Program began meetings with a Regulatory Advisory Committee, which the Department formed from interested persons from the land development, academic, governmental and environmental communities. DWS’ experts met with the RAC’s numerous subcommittees and involved approximately 235 persons from outside the Department. Thus, the proposed regulation was the culmination of years of effort by the Department’s staff and those interested in stormwater management and sediment control. This regulation will assist the state in better managing stormwater to reduce economic and environmental impacts from flooding and improving the water quality of our streams, rivers and bays.
The Department does not intend to use the TGD as a regulation that has the force and effect of law and which may be enforced as such. Instead, the TGD is an interpretive or advisory document that the Department will use to administer the regulation, and which will provide greater detail and explanation for the public. The TGD considers various types of stormwater and sediment plans that may be employed under the regulation, and shows how applicants can obtain approval through the use of an offset and other solutions to different and difficult stormwater and sediment management scenarios. The TGD was included in the record to interpret and support the highly technical aspects of the proposed regulation. The TGD describes how the Department will administer the regulation to specific types of stormwater and sediment plans. The Department, in an effort to alleviate some concerns with the TGD, provided a public notice with the opportunity for public comment on the TGD, but this public comment procedure was not required under Delaware’s Administrative Procedures Act (APA), 29 Del.C. §10101 et seq. or any other law. The Department included a public comment procedure for the TGD in the regulation to make this additive procedure binding on the Department so that the public will have the opportunity to comment formally on any changes to the TGD. The public comments received on the TGD; however, are not in this record and the TGD is not the subject of this Order, which is to approve a proposed regulation that has satisfied the formal requirement of the APA. The Department obtained a letter opinion from a Deputy Attorney General that supports the reliance on the TGD to support the regulation without requiring formal APA regulatory development treatment of the TGD.
“Adverse Impact” means a negative impact to land or waters resulting from a construction or development activity. The negative impact includes increased risk of flooding; degradation of water quality; increased sedimentation; reduced groundwater recharge; negative impacts on aquatic organisms; negative impacts on wildlife and other resources, and threatened public health.
“Agricultural Land Management Practices” means those methods and procedures generally accepted by the Conservation Districts and used in the cultivation of land in order to further crop and livestock production and conservation of related soil and water resources.
“Applicant” means a person, firm, or governmental agency who executes the necessary forms to obtain plan approval for a land disturbing activity.
“Appropriate Plan Approval Agency” means the Department, Conservation District, county, municipality, or State agency that is responsible in a jurisdiction for review and approval of sediment and stormwater management plans.
“As-Built Plans or Record Documents” means a set of engineering or site drawings that delineate the specific approved stormwater management facility as actually constructed.
“Certified Construction Reviewer” means those individuals, having passed a Departmental sponsored or approved training course, who provide on-site inspection for sediment control and stormwater management in accordance with these regulations.
“Delegation” means the acceptance of responsibility by a Conservation District, county, municipality, or State agency for the implementation of one or more elements of the statewide sediment and stormwater management program.
“Department” means the Department of Natural Resources and Environmental Control.
“Designated Watershed or Subwatershed” means a watershed or subwatershed proposed by a Conservation District, county, municipality, or State agency and approved by the Department. The Department may establish additional requirements in these watersheds and subwatersheds due to existing water quantity or water quality problems. These requirements shall be implemented on an overall watershed or subwatershed master plan that is developed for water quality and/or water quantity protection.
“Detention Structure” means a permanent stormwater management structure whose primary purpose is to temporarily store stormwater runoff and release the stored runoff at controlled rates.
“Develop Land” means to change the runoff characteristics of a parcel of land in conjunction with residential, commercial, industrial, or institutional construction or alteration.
“Developer” means a person undertaking, or for whose benefit, activities covered by these regulations are commenced and/or carried out.
“Drainage Area” means that area contributing runoff to a single point measured in a horizontal plane, which is enclosed by a ridge line.
“Easement” means a grant or reservation by the owner of land for the use of such land by others for a specific purpose or purposes, and which must be included in the conveyance of land affected by such easement.
“Erosion and Sediment Control” means the control of solid material, both mineral and organic, during a land disturbing activity, to prevent its transport out of the disturbed area by means of air, water, gravity, or ice.
“Exemption” means those land development activities that are not subject to the sediment and stormwater requirements contained in these regulations.
“Grading” means excavating, filling (including hydraulic fill) or stockpiling of earth materials, or any combination thereof, including the land in its excavated or filled condition.
“Green Technology Best Management Practices (BMP's)” means those practices that achieve stormwater management objectives by applying the principles of filtration, infiltration and storage most often associated with natural vegetation and undisturbed soils while minimizing a reliance on structural components. They may also be constructed using an imported soil medium and planted with vegetation designed to promote the natural hydrologic process. These practices include, but are not limited to, vegetative filtration, riparian buffer plantings, bio-retention areas, vegetative flow conveyance, as well as recharge and surface storage in undisturbed natural areas.
“Infiltration” means the passage or movement of water through the soil profile.
“Land Disturbing Activity” means a land change or construction activity for residential, commercial, industrial, and institutional land use which may result in soil erosion from water or wind or movement of sediments or pollutants into State waters or onto lands in the State, or which may result in accelerated stormwater runoff, including, but not limited to, clearing, grading, excavating, transporting and filling of land.
“Off-site Stormwater Management” means the design and construction of a stormwater management facility that is necessary to control stormwater from more than one land disturbing activity.
“On-site Stormwater Management” means the design and construction of stormwater management practices that are required for a specific land disturbing activity.
“Person” means any State or federal agency, individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, municipality or other political subdivision of this State, any interstate body or any other legal entity.
“Redevelopment” means a land disturbance activity that alters the use of land but does not necessarily alter the pre-development runoff characteristics.
“Responsible Personnel” means a foreman or superintendent who is in charge of on-site clearing and land disturbing activities for sediment and stormwater control associated with a construction project.
“Sediment” means soils or other surficial materials transported and/or deposited by the action of wind, water, ice or gravity as a product of erosion.
“Sediment and Stormwater Management Plan” (or Detailed Plan) means a plan for the control of soil erosion, sedimentation, stormwater quantity, and water quality impacts resulting from any land disturbing activity.
“Stabilization” means the prevention of soil erosion by surface runoff or wind through the establishment of a soil cover through the implementation of vegetative or structural measures. Examples include, but are not limited to, straw mulch with temporary or permanent vegetation, wood chips, and stone or gravel ground cover.
“Standard Plan” means a set of pre-defined standards and/or specifications for minor land disturbing activities that may preclude the preparation of a detailed plan under specific conditions.
“State Waters” means any and all waters, public or private, on the surface of the earth which are contained within, flow through or border upon the State or any portion thereof.
“Stormwater” means the runoff of water from the surface of the land resulting from precipitation or snow or ice melt.
“Stormwater Management” means:
“Stormwater Utility” means an administrative organization that has been established for the purposes of funding sediment control, stormwater management or flood control planning, design, construction, maintenance, and overall resource needs by authorized and imposed charges.
“Tidewater” means water that alternately rises and falls due to the gravitational attraction of the moon and sun and is under the regulatory authority of 7 Del.C. Ch. 72. Examples of tidewaters include the Atlantic Ocean, the Delaware Bay, and the Delaware Inland Bays.
“Variance” means the modification of the minimum sediment and stormwater management requirements for specific circumstances where strict adherence of the requirements would result in unnecessary hardship and not fulfill the intent of these regulations.
“Waiver” means the relinquishment from sediment and stormwater management requirements by the appropriate plan approval authority for a specific development on a case-by-case review basis.
“Water Quality” means those characteristics of stormwater runoff from a land disturbing activity that relate to the chemical, physical, biological, or radiological integrity of water.
“Water Quantity” means those characteristics of stormwater runoff that relate to the rate and volume of the stormwater runoff to downstream areas resulting from land disturbing activities.
“Watershed” means the total or partial drainage area contributing stormwater runoff to a single point.
4.1 The Department is responsible for the implementation and supervision of the sediment and stormwater program which is established by 7 Del.C. Ch. 40. This responsibility shall include, but not be limited to, the authority to:
7.3 The authority for the creation of the stormwater utility and the imposition of charges to finance sediment and stormwater activities is conferred in 7 Del.C. Ch. 40. The application of a stormwater utility by means of a local ordinance shall not be deemed a limitation or repeal of any other powers granted by State statute.
8.1.1 7 Del.C. Ch. 40, relating to erosion and sediment control and stormwater management, and;
1.3.1.2 7 Del.C. Ch. 40, relating to erosion and sediment control and stormwater management;
1.3.1.3 7 Del.C. Ch. 60, relating to the development, utilization, and control of the land, water, underwater and air resources of the State, and;
1.3.1.4 Regulations Governing the Control of Water Pollution, Section 9.1.02, known as Special Conditions for Stormwater Discharges Associated with Construction Activities.
2.0 The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise:
Adequate conveyancemeans any system having sufficient capacity to transport the runoff generated during the Resource Protection Event, Conveyance Event, and Flooding Event; functions and discharges in a non-erosive manner; and does not adversely impact any offsite properties, conveyance system, stormwater facility, or State Waters.
Adverse impactmeans a negative impact resulting from a construction or development activity. The negative impact may include, but is not limited to, increased risk of flooding; degradation of water quality; increased sedimentation; reduced groundwater recharge; negative impacts on aquatic habitat; or threatened public health and safety.
Agricultural land management practicesmeans those methods and procedures generally accepted by the Conservation Districts and used in the cultivation of land in order to further crop and livestock production and conservation of related soil and water resources.
Agricultural structure means a structure on a farm used solely for agricultural purposes in which the use is exclusively in connection with the production, harvesting, storage, drying, or raising of agricultural commodities, including the raising of livestock. Structures used for human habitation, public use, or a place of employment where agricultural products are processed, treated, or packaged are not considered agriculture structures for the purposes of these regulations.
Applicant means a person who has requested approval of a Sediment and Stormwater Management Plan through submittal of an application in accordance with these regulations or who has requested permission to conduct any activity subject to these regulations.
Best Available Technology (BAT) means a level of technology based on the very best (state of the art) sediment and stormwater control and treatment measures that have been developed or are capable of being developed and that are economically achievable.
Best Management Practices (BMPs)means schedules of activities, prohibition of practices, maintenance procedures, and other management practices or measures to prevent or reduce the discharge of pollutants. BMPs include the following, among other practices and measures: structural and non-structural controls; treatment requirements; operating procedures and practices to control site runoff.
Biosolids means solid or semi-solid material obtained from treated wastewater or animal manure.
Brownfieldmeans any vacant, abandoned or underutilized real property the development or redevelopment of which may be hindered by the reasonably held belief that the real property may be environmentally contaminated.
Certified Construction Reviewer” or “CCRmeans those individuals, having passed a Departmental sponsored or approved training course and holding current certification, which provide on-site construction review for sediment control and stormwater management in accordance with these regulations.
Conservation planmeans a customized document that outlines the use and best management practices of the natural resources on a parcel of land.
Conveyance Eventmeans the runoff event produced by a storm having an annual probability of occurrence of 10%.
Conveyance Event Volume (Cv) means the volume of runoff generated by the Conveyance Event that is not otherwise reduced for the Resource Protection Event.
Dedicationmeans transferring ownership of a stormwater management system to a delegated agency, public utility, municipality, stormwater utility, or private entity, along with all associated easements, escrow funds, and maintenance responsibilities.
Delegated Agencymeans the Conservation District, county, municipality, or State agency that has accepted responsibility in a jurisdiction for implementation of one or more elements of the Sediment and Stormwater Program within that jurisdiction.
Delegationmeans the acceptance of responsibility by a Conservation District, county, municipality, or State agency for the implementation of the Sediment and Stormwater Program.
Departmentmeans the Department of Natural Resources and Environmental Control.
Designated Watershed or Subwatershed means a watershed or subwatershed proposed by a conservation district, county, municipality, or State agency and approved by the Department. The Department may establish additional requirements due to existing water quantity or water quality problems. These requirements shall be implemented on an overall watershed or subwatershed master plan developed for water quality or water quantity protection.
Detailed planmeans a plan developed by a Licensed Professional in the State of Delaware which does not meet standard plan criteria.
Drainage areameans that area contributing runoff to a single point measured in a horizontal plane, which is enclosed by a ridge line.
Easementmeans a grant or reservation by the Owner of land for the use of land by others for a specific purpose or purposes, and which must be included in the conveyance of land affected by the easement.
Effective imperviousness”, for the purposes of these Regulations, means the equivalent percentage of a site’s impervious area that directly contributes stormwater runoff during the Resource Protection Event after all runoff reduction practices have been implemented.
Erosion and sediment controlmeans the control of solid material, both mineral and organic, during a land disturbing activity, to prevent its transport out of the disturbed area by means of wind, water, gravity, or ice.
Final stabilization means that:
Financial guarantee means a bond, security, letter of credit, etc. provided by the Owner to serve as a payment source should the Owner fail to meet the obligations and requirements of the approved Sediment and Stormwater Management Plan.
Flooding Eventmeans the runoff event produced by a storm having an annual probability of occurrence of 1.0%.
Flooding Event Volume (Fv) means the volume of runoff generated by the Flooding Event that is not otherwise reduced for the Resource Protection Event and the Conveyance Event.
Impervious surface means a surface which either prevents or retards the entry of water into the soil.
Infiltrationmeans the passage or movement of water into the soil profile.
Land disturbing activity means a land change or construction activity for residential, commercial, industrial, and institutional land development which may result in soil erosion from water or wind, or the movement of sediments or pollutants into state waters or onto lands in the State; or which may result in accelerated stormwater runoff, including, but not limited to, clearing, grading, excavating, transporting and filling of land.
Licensed Professional in the State of Delawaremeans a design professional licensed under 24 Del.C. Ch. 2, 24 Del.C. Ch. 27, or 24 Del.C. Ch. 28.
Maintenance means the work of keeping stormwater management systems including access routes and appurtenances (grade surfaces, walls, drains, dams and structures, vegetation and other protective devices) in a safe and functioning condition as the system was designed. Routine or minor maintenance includes grass mowing and trimming, debris removal, minor sediment removal, filling eroded areas and animal burrows, and removal of trees and shrubs on embankments. Non-routine or major maintenance includes structural repair, major sediment removal and major erosion repair, and invasive aquatic vegetation removal.
Maximum Extent Practicable means, for the purpose of these Regulations, using stormwater management measures, techniques and methods that are available and capable of being implemented while taking into consideration cost, available technology, and project site constraints.
Notice of Completionmeans a document issued by the Department or Delegated Agency at the end of project construction when all items and conditions of the approved Sediment and Stormwater Management Plan have been satisfied, post construction verification documents demonstrate that the stormwater management systems have been constructed in accordance with the approved Sediment and Stormwater Management Plan, and final stabilization of disturbed areas on the site has been achieved.
Offset means an alternate to strict adherence to the regulations including, but not limited to trading, banking, fee-in-lieu, or other similar program that serves as compensation when the requirements of these regulations cannot be reasonably met on an individual project basis.
Operation and Maintenance Plan means the plan which identifies required maintenance for stormwater management systems.
Owner means a person who has a legal interest in lands of this State, or who has an equitable interest in lands of this State, except when a person holds an interest in those lands as a security interest, unless through foreclosure or other action the holder has taken possession of those lands, and who undertakes, or for whose benefit, activities subject to these regulations are commenced or carried out on those lands, or the person responsible for maintenance of stormwater management systems constructed to comply with these regulations on those lands.
Performance-based approach means a stormwater quantity management technique that utilizes an analytical process to determine compliance.
Personmeans a State or federal agency, individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, municipality or other political subdivision of this State, an interstate body or any other legal entity.
Permanent stabilization means the establishment of perennial vegetation by application of soil amendments, seed, and mulch in accordance with methods accepted by the Department on disturbed areas that have reached final grade in order to stabilize the soil, prevent erosion, and reduce sediment and runoff to downstream or offsite areas.
Post construction verification documents means a set of surveyed plans reflecting the as-built condition of stormwater management measures and may also include supporting computations and specifications as required by the Department or the Delegated Agency.
Redevelopment, including brownfield development, means a construction, alteration or improvement, including but not limited to the demolition or building of structures, filling, grading, paving, or excavating, where existing land use is residential, commercial, industrial, or institutional. Ordinary maintenance activities, remodeling of existing buildings, resurfacing of paved areas, and exterior changes or improvements are typically not considered redevelopment activities for the purposes of these regulations.
Resource Protection Event means the runoff event produced by a storm having an annual probability of occurrence of 99%.
Resource Protection Event Volume (RPv) means the annualized volume of runoff generated by the Resource Protection Event.
Responsible personnel means a foreman or superintendent who is in charge of on-site clearing and land disturbing activities for sediment and stormwater control associated with a construction project.
Runoff reduction practices means stormwater best management practices that reduce total runoff volume from a developed site through canopy interception, surface recharge, evaporation, rainfall harvesting, engineered infiltration, or evapotranspiration and may include practices that delay the delivery of stormwater to a surface discharge.
Sediment means soils or other surficial materials transported or deposited by the action of wind, water, ice or gravity as a product of erosion.
Sediment and Stormwater Management Plan means a plan for the control of soil erosion, sedimentation, stormwater quantity, and water quality impacts resulting from a land disturbing activity, through both the construction and post construction phases of development.
Standard plan means a set of pre-defined standards or specifications for minor land disturbing activities that may preclude the need for the preparation of a detailed plan under specific conditions.
Standards-based approach means a stormwater quantity management technique that utilizes a pre-determined discharge rate to determine compliance.
State waters means any and all waters, public or private, on the surface of the earth which are contained within, flow through or border upon the State or any portion thereof.
Stormwater means the runoff of water from the surface of the land resulting from precipitation, or snow or ice melt.
Stormwater management means:
Stormwater management system means vegetative, structural, and other facilities or measures, singularly or in combination, that provide stormwater management.
Stormwater utility means an administrative organization that has been established for the purposes of funding sediment control, stormwater management or flood control planning, design, construction, maintenance, and overall resource needs by authorized and imposed charges.
Temporary stabilization means planting quick-growing vegetation and applying anchored straw mulch or other means to stabilize the soil and prevent erosion of a disturbed area until permanent vegetation or other stabilization measures can be established.
Tidal watersmeans any water that alternately rises and falls in a predictable and measurable rhythm or cycle due to the gravitational attraction of the moon and sun and is under the regulatory authority of 7 Del.C. Ch. 72.
Transfer means to convey responsibility for maintenance of a stormwater management system to a new Owner.
Variancemeans a permitted deviation from an established rule or regulation, or plan, or standard or procedure.
Water quality means those characteristics of stormwater runoff from a land disturbing activity that relate to the chemical, physical, biological, or radiological integrity of water.
Water quantity means those characteristics of stormwater runoff that relate to the rate, volume and duration of flow to downstream areas resulting from land disturbing activities.
Watershedmeans the drainage area contributing stormwater runoff to a single point.
Watershed plan means a comprehensive study of the activities and sources that contribute to water quality or water quantity problems and identifies the location of those problem areas within a specific watershed boundary. It also serves as a framework for how, where and what stormwater management tools will be applied to address those water quality or water quantity problems.
3.7.3 The inclusion of an activity into the standard plan classification does not exclude that activity from the requirements of 7 Del.C. Ch. 40. Rather, the standard plan precludes that activity from the necessity of a detailed plan review for a qualifying project.
4.3 Best available technology (BAT) shall be employed to manage turbid discharges in accordance with requirements of 7 Del.C. Ch. 60, Regulations Governing the Control of Water Pollution, Section 9.1.02, known as Special Conditions for Stormwater Discharges Associated with Construction Activities, and Department policies, procedures, and guidance.
7.1 Stormwater management systems constructed to comply with 7 Del.C. Ch. 40 and these regulations shall be maintained in accordance with the provisions of this section.
10.4 The authority for the creation of the stormwater utility and the imposition of charges to finance sediment and stormwater activities is conferred in 7 Del.C. Ch. 40. The implementation of a stormwater utility by means of a local ordinance shall not be deemed a limitation or repeal of any other powers granted by State statute.

1

Last Updated: December 31 1969 19:00:00.
site map   |   about this site   |    contact us   |    translate   |    delaware.gov