department of natural resources and environmental control

Division of Soil and Water Conservation

PROPOSED

PUBLIC NOTICE

5102 Regulation Governing Beach Protection and the Use of Beaches

These Proposed Regulations are revisions to existing regulations that have been in effect since 1983. The proposed revisions will increase the effectiveness of the Coastal Construction Program and improve its protection of the beach and dune system. They will also reduce ambiguity within the regulations and limit the amount and type of construction permitted seaward of the Building Line. Redrawing of the Building Line, incorporation of changes to the Beach Preservation Act and the addition of new construction standards for waterfront buildings will all result in less damages to structures and improvements to the natural dune and beach resource.

While this regulatory action is intended to modify currently existing regulations, it was not possible, or preferable, to show additions as underlines, or deletions as strikeouts – as is normally required. This is because the redraft of the regulations was so extensive and the new numbering so drastically different than the previous regulations, that to be comprehensible to the reader, we opted to abandon the normal strike out and underline protocol and instead provide the reader with an index of new provisions with old section numbers and a compilation of major changes to the overall regulation.

No Sunset Date

Title 7, Delaware Code, Chapter 68

None

6. Notice of Public Comment

A Public Hearing has been scheduled for December 14th at 6:00 p.m., in the DNREC Auditorium

7. Prepared By:

Maria Sadler 302-739-9921 9/26/05

5102 Regulation Governing Beach Protection and the Use of Beaches

1.1 As used in these Regulations, the following terms shall have the meanings indicated below, unless the text clearly indicates otherwise:

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

“Beach” means that portion of the shore of any body of water which extends from the mean high water mark inland one thousand feet, or to a roadway for automobiles, whichever is closer.

“Beach Access Facility” 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/or 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 process of maintaining the recreational and/or storm protection value of a beach.

“Beach Protection” means the process of preventing the decrease of recreational and/or 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.

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

“Building Line” means the line generally paralleling the coast, set forth on maps prepared by the Division with reference to the National Geodetic Vertical Datum (NGVD) and the Delaware State Plane Coordinate System, and based upon information provided by topographic survey. 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 10-foot elevation contour above NGVD;

b. Along beaches extending from the tip of Cape Henlopen to the southernmost limit of Primehook Beach - 100 feet landward of the adjusted seawardmost 7-foot elevation contour above NGVD;

c. Along beaches extending from the southernmost limit of Primehook Beach to the Old Marina Canal north of Pickering Beach - 75 feet landward of the adjusted seawardmost 7-foot elevation contour above NGVD;

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

“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.

“Complete Destruction” means the damage or destruction of any structure by any means whatsoever to the extent that, in the judgment of the Division, 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.

“Construction” means any work or activity which is likely to have a substantial physical effect on existing coastal conditions or natural shore processes. Construction as used in these Regulations shall also include reconstruction, restoration, repair, alteration and placement if said terms are not otherwise included for clarification.

“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.

“Dune Zone” means that area lying between the Building Line and elevation contours, which are used as a basis for determining the location of the Building Line. (See Building Line definition.)

“Emergency” means the existence of beach conditions unreasonably dangerous to persons or property.

“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.

“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 Current” means a longshore current generated by waves breaking at an acute angle to the shoreline, and which moves generally parallel and adjacent to the shoreline within the surf zone.

“Lowest Living Floor” 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.

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

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

“National Geodetic Vertical Datum (NGVD)” 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 legal entity including individual, firm, association, organization, partnership, business trust, corporation, company, contractor, user, operator, owner, or any State of local governmental agency (except as noted in Section 2.3) or public district or any officer or employee thereof.

“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.

“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.

“Regulation” unless stated otherwise, means 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.

“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.

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 4.0) unless and until a letter of approval or the proper permit has been issued.

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 (Title 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 August 13, 1981.

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 fifteen (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 approval project require a re-evaluation by the Division.

2.5 Construction Setback Lines - Prior Approvals

2.5.1 At those locations where dune reconstruction has been approved by permit prior to the effective date of these Regulations 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 Section 2.13 of these Regulations.

2.6 Maintenance, Repairs, and Emergency Action

2.6.1 Except as otherwise provided in Section 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 3.0 - Prohibited Activities and 4.0 - Activities Requiring a Permit or Letter of Approval from the Division).

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 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.

2.6.2.3 In the event of an extreme emergency, or warning thereof, which may involve grave and imminent danger of substantial property loss and/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 Restoration or Reconstruction After Destruction

2.7.1 If a structure located seaward of the Building Line is completely destroyed, no person shall undertake any restoration or reconstruction of the destroyed structure before the Division issues the person a permit or letter of approval pursuant to the procedures set forth in 4.0 of these Regulations.

2.8 Siting Requirements for Construction and Reconstruction of Structures

2.8.1 If a structure is to be either constructed or reconstructed following the complete destruction of the original structure, and such a structure does not have to be located seaward of the Building Line in order to achieve its intended purpose pursuant to Section 3.01 (a)(4) of these Regulations, 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 construction or reconstruction of a completely destroyed structure, said constructed or

reconstructed structure shall be physically 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 ordinances.

2.9 Other Requirements and Approvals

2.9.1 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.

2.10 General Permit Considerations

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

2.11 Sole Jurisdiction

2.11.1 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.

2.12 Building Line Format

2.12.1 The Building Line shall be shown on topographic maps at a scale of one (1) inch equals fifty (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.

2.13 Building Line Re-established

2.13.1 When, in the opinion of the Secretary, storms or other natural phenomena cause a substantial permanent change in the seaward contour used to establish the Building Line, the Division may, following public hearing, re-establish the Building Line from information provided by topographic

survey.

2.14 Re-establishment Effects on Lot Status

2.14.1 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 4.0.

2.15 Savings Clause

2.15.1 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.

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. (See 5.0 Section 5.3.2 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 3.1.1 are applicable to the parcel of land in issue.)

3.1.1.3 Whenever a deck is being constructed along with a new building, and said deck is located at or above the lowest living floor of the building, said deck is also making use of the foundation of said building and said deck shall not extend beyond the most seaward point of any lawfully constructed building or deck of a similar nature that is already existing on any immediately

adjacent parcel of real property located within the same subdivision as the parcel of real property on which the building or deck is proposed.

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 subsection, a building, patio, deck, swimming pool, carport 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.

3.1.2 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 Section 2.14 and 4.0 of the Regulations.)

3.1.3 The provisions of 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 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 Section 4.5 of the Regulations. The permit application will be processed pursuant to procedures set forth in 5.0 of the Regulations.

3.2 Modification or Expansion of Structures Seaward of the Building Line

3.2.1 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.

3.2.2 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 Section 2.4 of these Regulations, unless one or more of the following exceptions apply to the proposed modification or expansion at issue:

3.2.2.1 The provisions of 3.1.1.4 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 4.0 of these Regulations.

3.2.2.2 The modification or expansion consists of only a deck located at or above the lowest living floor of a building, and the modification or expansion makes use of the foundation of said building that existed prior to said modification or expansion. However, any deck or portion thereof, that is modified or expanded pursuant to any provision of this Section shall not extend beyond the most seaward point of any lawfully constructed building or deck of a similar nature that is already existing on any immediately adjacent parcel of real property that is located 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 this Section. See 4.0 of these Regulations.

3.3 Other Activities

3.3.1 The following activities are prohibited:

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

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

3.3.1.3 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

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

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 5.0 of the Regulations.

4.2 Permit Application; Fee

4.2.1 Any person applying for a permit pursuant to the provisions of 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 4.0 of the Regulations shall at the same time submit an application fee of $150.00 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 Sections 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 Section 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 Section 4.5.1 or 4.5.2 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 zone. 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 Section 4.8 of the Regulations.

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/or dune maintenance) to reduce such damage potential. When the Division requires such mitigating measures, the applicant, his 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 Beach Area

4.8.1 No person shall commence or conduct construction of any structure or the alteration, digging, mining, moving, removal or disposition 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 4.0. 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.

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 Section 2.10 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 Section 5.3 (b) 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 Section 3.1.1.2, the Division, in addition to what is required in Sections 2.10 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 Section 4.7 of the Regulations, the Division may establish special permit conditions, and/or 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/or (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.

6.1 Activity Pending Appeal

6.1.1 The applicant shall not commence any activity regulated under 4.0 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 twenty (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 law(s), regulation(s) or other legal authority(ies) 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 twenty (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 twenty (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 his behalf. The Secretary or his 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 his 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.

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 thirty (30) calendar days, appeal to the Superior Court as provided in 7 Del.C. §6803(g).

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 thirty (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 Any person who violates any provision of the Act, or Regulations, or violates a cease and desist order of the Secretary, shall be fined not less than $100 nor more than $5,000 or imprisoned for not more than two (2) years, or both, and, in addition, shall reimburse the Department for its

reasonable expenditures in remedying damage created.

8.3 Jurisdiction

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

9.1 Hearing

9.1.1 The Secretary, or his 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/or 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 7.0.

1.1 Purpose. The purpose of these Regulations is to enhance, protect, and preserve public and private beaches of the State, to mitigate beach erosion and to minimize storm damage through a Permit and Letter of Approval process. The beach provides the benefits of a unique recreational area, storm protection and a natural buffer between the water and upland areas. The guiding principle of these Regulations is that construction activities be limited within the beach to areas landward of the dune protection zone. These Regulations prohibit certain activities and require Permits or Letters of Approval for other activities within the beach area.

1.2 Sole Jurisdiction. Authority to enhance, preserve and protect public and private beaches within the State is vested solely in the Department.

1.3 Application of Current and Earlier Regulations. Activities currently authorized by a Permit or Letter of Approval will continue to be governed by the terms of the Permit or Letter of Approval.

As used in these Regulations, the following terms shall have the meanings indicated below:

“Act” means the Beach Preservation Act, 7 Del.C. Chapter 68 and amendments made thereto.

“Amenity” is a structure or man made element, including but not limited to swimming pools, tennis courts, patio furniture, that enhances the property's attractiveness and or increases the occupant's or user's satisfaction although the feature is not essential to the property’s use.

“Base Flood Elevation” The elevation of the 1% annual chance “One Hundred Year” flood, as determined by the Federal Emergency Management Agency for use in the National Flood Insurance Program.

“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, and along the perimeter of Rehoboth, Indian River, Little Assawoman and Assawoman Bays (excluding tributaries) which extend from the mean high water line landward 200 feet and bayward 300 feet, respectively.

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

“Beach Erosion” or ‘Erosion’ is the wearing away of a beach by water or the elementsnatural forces such as wave action and currents.

“Beach Nourishment” means the process of replenishing a beach with material (usually sand) obtained from another location by mechanical, hydraulic or other means.

“Beach Preservation” or 'beach erosion control' or 'erosion control' is 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/or storm protection values of a beach.

“Beach Zone” means the area extending seaward from the seaward toe of the primary dune (vegetation line) or bulkhead line, as shown on the Department’s Coastal Vulnerability Assessment Maps.

“Building” means any roofed and walled structure built for temporary or 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 the National Geodetic Vertical Datum, the Delaware State Plane Coordinate System, and topographic surveys. 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 a vertical structure or partition built parallel or nearly parallel to the shoreline, with return walls, designed primarily to retain or prevent land from sliding and, secondarily, to protect upland areas from beach erosion and damage from wave action. A bulkhead is generally of lighter construction thant a seawall.

“Construction” includes any work or activity which that is likely to have a substantial changematerial physical effect on existing coastal conditions or natural shore and inlet processes. Construction as used in these Regulations shall also include reconstruction, restoration, repair, alteration, replacement and placement if said terms are not otherwise included for clarification.

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

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

“Dune Crossover” means any structure or improvement constructed or installed for the primary purpose of obtaining or facilitating pedestrian or vehicular access across the primary coastal dune.

“Erosion/Wave Zone” means the area extending landward from the seaward toe of the primary dune or bulkhead line to the landward limit of storm-induced erosion as shown on the Department’s Coastal Vulnerability Assessment Maps. This zone is characterized by dune erosion, significant profile lowering, damaging waves and high velocity flows.

“Expansion” means the enlargement of a structure, or portion thereof, (see Structure definition).

“Flood Zone” means the area extending to the landward limit of stillwater flooding or to the landward limit of wave overtopping, whichever is more landward as shown on the Department’s Coastal Vulnerability Assessment Maps.

“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 constructed (usually perpendicular to the shoreline) to retard erosion of an existing beach by trapping littoral drift.

“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, 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 extension of the structure.

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

“Modification” means a 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 any land owned by one or more persons, the boundaries of which are set forth in a single deed, series of deeds, or similar document.

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

“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 the Act.

“Public Beach” means any beach owned in fee simple 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.

“Regulations” unless stated otherwise, means the Regulations Governing Beach Protection and the Use of Beaches, promulgated pursuant to the Beach Preservation Act, 7 Del.C. Chapter 68 and amendments made thereto.

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

“Revetment” means a non-vertical facing of stone, concrete, or similar material built to protect a shore, or shore structure against erosion by wave action or currents and having a specific engineered design.

“Sand Fence” means a barrier made of posts, wires and wood slats (1/2" thick or less by 1-1/2" wide or less) or synthetic materials including flexible 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 Subsets of Lots” means smallest identifiable set of lots that exist within a subdivision or community separated by either dedicated public walkways, roads, or subdivision boundaries. If there are no roads or walkways separating sections within a subdivision, then the smallest set of lots shall be limited to 7 lots.

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

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

“Substantial Damage” means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.

“Substantial Improvement” means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either before the improvement is started, or, if the structure is damaged and is being restored, before the damage occurred.

“Temporary Structure” means any portable and easily removable non-habitable building, shed, ramp, steps or walkway that can be easily removed from the site within a short time frame using minimal equipment and/or man power.

“Wave/Overwash Zone” means the area extending from the landward limit of the Erosion/Wave Zone to a point indicated by calculations and/or historic overwash penetration as shown on the Department’s Coastal Vulnerability Assessment Maps. This zone is characterized by one or more of the following: damaging waves, high velocity flows and deposition of overwash sediments.

3.1 General Rules

The Department shall consider and review all Permit and Letter of Approval applications and they shall be approved or denied in accordance with the Act and these Regulations. No Permit or Letter of Approval shall be issued for any activity prohibited by any provision of the Act or these Regulations.

3.2 Application Fees

Any person applying for a Permit or Letter of Approval pursuant to these Regulations must apply to the Department on an application form provided by the Department and shall, at the same time, submit the required application fee.

3.3 Mitigating Measures

Applications for Permits and Letters of Approval shall incorporate all reasonable means and methods to avoid or minimize any adverse impacts of the proposed activity. These measures shall be implemented at the applicant's expense and may include actions that will (1) avoid or minimize any adverse impacts of the proposal; (2) restore the affected environment; or (3) compensate for the adverse impacts by replacing or providing substitute resources.

In rendering its decision on requests for Permits and Letters of Approval pursuant to these Regulations, the Department shall makede a determination regarding the potential adverse effects of the proposed structure or activity. If, in the opinion of the Department, the potential for damage to the beach [seaward of the building line] is increased as a result of the proposed structure or activity, the Department may require the applicant to take measures (including, but not limited to beach nourishment, dune construction, and/or dune maintenance) to reduce such damage potential. When the Department requires such mitigating measures, the permit applicant shall be required to maintain these measures for the life of the structure or activity. Failure to comply with the mitigating measures required by the Department shall be cause for removal of the structure or termination of the activity and restoration of the beach.

3.4 Procedures for Processing Permit Applications

Upon receipt of a Permit application in proper form, the Department shall post a public notice stating: a) that the application has been received; b) a brief description of the nature of the application; and c) that Public comments will be received for fifteen (15) days by the Department regarding the application.

The Department shall also mail notice to immediately adjacent property owners listed in the Permit application, and make the application available for public inspectionat the Department's Dover office. A decision shall not be rendered on any Permit application until at least twenty (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.

3.5 Specific Information to be Considered by the Department

Whenever the Department is deciding whether to issue a Permit or Letter of Approval or is determining if the Department 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 these Regulations, the Department may take into account the geology, geomorphology, meteorology, and hydraulics of the area in addition to any other relevant information including, but not limited, to the following:

3.5.1 Any comments received by the Department;

3.5.2 The Act and the Regulations;

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

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

3.5.5 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;

3.5.6 Any design modifications which may mitigate the impact of the proposed

construction;

3.5.7 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;

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

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

3.5.10 Any design alternatives or amendments to the original design submitted to the Department by the owner of the proposed structure or portion thereof; and

3.5.11 Any other factors or information that the Department determines to be relevant to the subject matter of the Permit.

3.6 Department Decision.

The Department shall make a decision on the application that may include terms and conditions that it determines will best implement the purposes of the Act and these Regulations. The Department shall give written notice with reasons for the decision to the applicant.

Upon receipt of an application for a Permit or Letter of Approval, the Department shall consider the effect of the proposed activity on beach enhancement, preservation and protection. The Department may undertake any investigation or activity it deems necessary to carry out the purposes of the Act. If the Department determines 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 6.0. The Department may require modification of any proposed structure or activity in order to: prevent increased erosion damage to the property at issue, nearby parcels of property, or public lands; reduce public expenditures for beach protection; or prevent or reduce storm debris damage.

3.7 Department Exemptions

The Department shall not be subject to the Permit or Letter of Approval requirements of the Act and these Regulations in the performance of its erosion control duties. The Department will, however, be guided by substantive standards generally applicable to the construction and placement of shore protection structures and facilities.

3.8 Savings Clause

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

3.9. Other Requirements and Approvals

A person who is issued a Permit or Letter of Approval by the Department 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.

The Department's objective is to confine all construction to the area completely landward of the Building Line. The Building Line is intended to separate the area acceptable for construction and the area which is not.

4.1 Location of Building Line

The Building Line shall be shown on topographic maps prepared by the Department with reference to the North American Vertical Datum (NAVD), and the Delaware State Plane Coordinate System for all shoreline areas of Delaware Bay and the Atlantic Ocean coast of Delaware from and including, Pickering Beach to the Delaware-Maryland line at Fenwick Island. 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 five hundred (500) feet from an adjoining point. The Building Line designated on the maps shall be conclusive for the purpose of the Act.

4.2 Building Line Re-Established

When the Secretary determines that storms or other natural phenomena have caused a substantial permanent change in the seaward contour used to establish the Building Line, the Department may, re-establish the Building Line from information provided by topographic survey. That Building Line shall be established using the following formula:

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

4.2.2 Along beaches extending from the tip of Cape Henlopen to Rosemary Street at the southern most limit of Primehook Beach - 100 feet landward of the adjusted seaward most 6-foot elevation contour above NAVD;

4.2.3 Along beaches extending from Rosemary Street at the southernmost limit of Primehook Beach to the Old Marina Canal north of Pickering Beach - 75 feet landward of the adjusted seaward most 6-foot elevation contour above NAVD.

4.3 Mapped Areas without existing Building Line

When an applicant proposes to develop a parcel of real property which does not currently have a Building Line established, that line shall be established for the new development using the formula outlined in Section 4.2 above. All construction in these areas must be located landward of the Building Line.

5.0 Activities Entirely Landward of the Building Line

No person shall commence or conduct construction, modification, repair, expansion, reconstruction, relocation or maintenance of any structure entirely landward of the Building Line in the area defined as beach or conduct the alternation, digging, mining, moving, removal or deposition of any substantial amount of beach materials, or the significant removal of vegetation unless and until a Permit or Letter of Approval has been issued.

5.1 Letter of Approval Requirements for Construction Activities Entirely Landward of the Building Line

Before any Letter of Approval is issued by the Department for the construction of any structure, or portion thereof, in the area defined as beach and landward of the Building Line, the person applying for the Letter of Approval must provide the Department with written documentation and plans indicating that the proposed structure, or portion thereof, will be constructed in accordance with the Act and these Regulations.

5.2 Application Determination

Upon receipt of an application for a Letter of Approval proposing construction in the area defined as beach but entirely landward of the Building Line, the Department shall consider the effect of the proposed activity on beach enhancement, preservation and protection. The Department may undertake any investigation or activity it deems necessary to carry out the purpose of the Act. If the Department determines the proposed activity may have a substantial effect on beach enhancement, preservation or protection, the applicant shall be directed to follow the procedures for obtaining a Permit in Section 6.0.

5.3 Maintenance, Repair and Relocation of Habitable Structures

Any person intending to commence any maintenance or repair work on a structure or planning to relocate a structure located landward of the Building Line in the area defined as beach, shall apply in writing to the Department for a Letter of Approval, except as specified in Section 5.4. No person shall commence maintenance or repair work until after being issued a Letter of Approval by the Department.

5.4 Maintenance and Repair Not Requiring a Permit or Letter of Approval

A Letter of Approval is not required when maintenance or repair work is undertaken on a lawfully constructed structure located landward of the Building Line in the area defined as beach and;

5.4.1 The location of the maintenance or repair work is at or above the lowest living floor and within the perimeter of the existing lawfully constructed structure and;

5.4.2 The maintenance or repair work 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.

No person shall commence or conduct construction, modification, repair, expansion, reconstruction, relocation or maintenance of any structure seaward of the Building Line in the area defined as beach or conduct the alteration, digging, mining, moving, removal or deposition of any substantial amount of beach materials, or the significant removal of vegetation unless and until a Permit or Letter of Approval has been issued.

6.1 Permit Requirements

6.1.1 Construction Seaward of the Building Line. Before any Permit is issued by the Department for the construction of any structure, or portion thereof, seaward of the Building Line, the person applying for the Permit must provide the Department with written documentation and plans indicating that the proposed structure, or portion thereof, will be constructed in accordance with the Act and these Regulations.

6.1.2 Construction of any structure or portion thereof, seaward of the Building Line on any parcel of real property is prohibited unless, the Department has made a determination during the permit application review process that:

6.1.2.1 A structure can be built on the proposed parcel without posing an unacceptable risk to human health or the environment, or the beach resource or the physical safety of the property owner or others, and

6.1.2.2 The size of the area of the parcel of real property located landward of the building line is inadequate for construction of proposed structure or portion thereof; and

6.1.2.3 The dimensions and location of the structure, or portion thereof, and other design aspects of the proposed construction project, including but not limited to, entrance ways, 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 sections 6.1.2.3.1 through 6.1.2.3.4. A person is not required to follow the requirements of the four-step process if they demonstrate 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 Section 5.0.

6.1.2.3.1 All construction must begin at the setback line established for the landward property boundary by the county or town 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 setbacks as long as permissible by county and local regulations, and;

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

6.1.2.3.3 The square footage of the foot print of the structure (living area only, not including open porches and decks) shall not exceed the average square footage that exists among adjacent structures within the smallest subset of lots, and;

6.1.2.3.4 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 Section 6.1.8.

6.1.3 Other Structures

Construction proposed seaward of the Building Line shall be free of non-essential portions of the dwelling unless they are raised above Base Flood Elevation, are within the perimeter of the building and supported by the building foundation. Non-essential portions of the dwelling include, but are not limited to, showers, decks, patios, benches, garages, carports, vehicle ramps, basement areas, retaining walls, landscaping structures, birdhouses, fences (other than sand fence or lattice), steps, solid driveways and parking areas, swimming pools, propane tanks, flag poles, and other non-living space portions of the dwelling.

6.1.4 Maintenance, Repair and Relocation of Structures

Any person intending to commence any maintenance or repair work on any structure seaward of the Building Line in the area defined as beach, shall apply in writing to the Department for a Permit or a Letter of Approval, except as specified in Section 6.1.6. No person shall commence maintenance or repair work until after being issued a Permit or a Letter of Approval by the Department.

6.1.4.1 If the proposed maintenance or repair is to an amenity located seaward of the Building Line, below the first living floor and below Base Flood Elevation, the Department shall require elevation of the amenity to a level at or above Base Flood Elevation and relocation of the structure as far landward as possible to facilitate growth of the dune and to prevent loss of the amenity during storm events. A Permit or Letter of Approval from the Department is required for this maintenance or repair work.

6.1.4.2 In the event the proposed maintenance or repair work involves raising or removing a structure from its foundation and the structure is located seaward or partially seaward of the Building Line, the Department shall require relocation of the structure completely landward of the Building Line or as far landward on the lot as possible.

6.1.4.3 In the event the proposed maintenance or repair work involves a substantial improvement and the structure is located seaward or partially seaward of the Building Line, the Department shall require relocation of the structure completely landward of the Building Line or as far landward on the lot as possible.

6.1.5. Restoration or Reconstruction after Substantial Damage or Removal, Siting Requirements

6.1.5.1 If a structure in the area defined as beach is substantially damaged or removed from its foundation, no person shall undertake any restoration or reconstruction of the substantially damaged or removed structure before the Department issues the person a Permit or Letter of Approval.

6.1.5.2 If a structure is to be either constructed or reconstructed following substantial damage or removal of the original structure, the structure must be located entirely landward of the Building Line or as far landward on the lot as possible. Siting requirements for reconstruction of the substantially damaged or removed structure will be determined based on the requirements of Sections 5.0 and 6.0.

6.1.6 Maintenance and Repair Not Requiring a Permit or Letter of Approval

A Permit or Letter of Approval is not required when maintenance or repair work is undertaken on a lawfully constructed structure located in the area defined as beach and,

6.1.6.1 The location of the maintenance or repair work is at or above the lowest living floor and is within the perimeter of the existing lawfully constructed structure and.

6.1.6.2 The maintenance or repair work includes 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.

6.1.7 Modification or Expansion of Structures

6.1.7.1 Modification or expansion of an existing structure, or portion thereof, seaward of the Building Line, including those structures or portions thereof, that were constructed prior to the Act and the Regulations is prohibited unless one or more of the following apply to the proposed modification or expansion and a Permit or Letter of Approval has been issued by the Department:

6.1.7.1.1 The modification or expansion consists of only a deck located at or above the lowest living floor of a building, or above the Base Flood Elevation, and the modification or expansion makes use of the foundation of the building, (e.g., by cantilevering or knee brace) that existed prior to the modification or expansion. However, any deck or portion thereof, that is modified or expanded pursuant to any provision of this Section shall not extend beyond a point that is the average distance seaward of the Building Line of existing lawfully constructed buildings or decks of a similar nature that already exist on the parcel of real property located within the smallest subset of lots, within the same subdivision. Excavation or alteration of the existing dune or vegetation is prohibited to accommodate the construction of the deck. The area underneath the deck shall remain open and free of obstruction.

6.1.7.1.2 The modification or expansion of an existing structure is limited to the area contained within the existing walls of the structure and is limited to the area at or above the lowest living floor.

6.1.8 Decks

Whenever a deck is proposed for construction along with a new building structure, and the deck is proposed to be located at or above the lowest living floor of the structurebuilding, or above Base Flood Elevation, and the deck is proposing to make use of the foundation of the structure (e.g. by cantilevering or knee brace) the deck shall not extend beyond a point that is the average distance seaward of the Building Line of existing lawfully constructed bstructures uildings or decks that already exist on the parcels of real property located within the smallest subset of lots, within the same subdivision as the parcel of real property on which the structure building or deck is proposed. The area underneath the deck below Base Flood Elevation shall remain open and free of all obstructions.

6.1.9 Seasonal Structures

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 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 off-season and in the case of the threat of a coastal storm.

6.1.10 Pedestrian Access Structures and Dune Maintenance

Before any person commences the construction or placement of a pedestrian dune crossover, or any portion thereof, the person must have a Letter of Approval.

6.1.10.1 A person is not required to obtain a Permit or Letter of Approval if they are conducting ordinary dune maintenance, as determined by the Department, including the installation of sand fence and the planting of and fertilization of stabilizing vegetation. Mechanical movement of sand requires a Permit or Letter of Approval from the Department.

6.1.11 Erosion Control or Shore Protection Structures

The use of walls to protect properties from ocean forces is discouraged. Maintenance of an adequately wide beach and dune system is preferred. Construction of any structure or facility having the primary function of beach erosion control, shore protection, or property protection including, but not limited to groins, jetties, seawalls, revetments, dikes, bulkheads, or any pipeline, dock, pier, wharf, ramp or other harbor work may be permitted if it is demonstrated that all other means of beach erosion control, shoreline protection or beach enhancement will not be effective.

If a bulkhead, revetment or other protective structure is damaged during a storm a permit must be obtained from the Department to make repairs. If less than 50 % of the original structure is sound and functional and suitable for incorporation into reconstruction of the structure, the alternatives to replacing the structure shall be considered in the permit review process.

6.1.12 Beach Nourishment

Beach nourishment requires the issuance of a Permit from the Department to assure proper design.

7.0 Prohibited Activities

7.1 No person shall:

7.1.1 Operate any type of motorized vehicle or machine on or across the primary dune on any beach except at locations approved or permitted by the Department;

7.1.2 Transport or store any type of boat across or on the primary dune on any beach except at locations approved or permitted by the Department;

7.1.3 Walk on or over or across the primary dune of any state-owned beach except at locations approved or permitted by the Department;

7.1.4 Alter, move or remove any structure, facility or improvement installed or maintained by the Department; or

7.1.5 Damage, destroy or remove any tree, shrubbery, beach grass or other vegetation growing on any State owned or maintained beach.

7.2 Construction of any structure or portion thereof, seaward of the Building Line in a subdivision created after the [effective date of these Regulations] is prohibited.

7.3 Construction of any structure, or portion thereof, on any lot or parcel of real property that is located entirely seaward of the Building Line that was not owned by the applicant on the [effective date of these Regulations] is prohibited.

7.4 Construction of any structure, or portion thereof, on any lot or parcel of real property that is located entirely seaward of the building line is prohibited when the lot or parcel in question was created by subdivision of a larger parcel into smaller parcels or lots after August 13, 1981.

8.0 Construction Standards

“Previous storms have repeatedly shown the vulnerability of certain types of construction, particularly older, at-grade or inadequately elevated buildings close to the shoreline....Recent coastal siting and construction standards, through improved, still leave coastal development vulnerable to damage or destruction during severe storms. The potential consequences of not further improving coastal siting and construction standards are great loss of residential and commercial property, business interruption and job loss, and of course, the threat to human life itself.¹

Recognizing the above, the Department conducted a Coastal Hazard Vulnerability Study to 1) better define the nature and extent of the coastal hazards along Delaware's Atlantic Ocean and Delaware bay shorelines, 2) to map coastal hazard zones reflecting present day shoreline conditions, 3) to map future (30-year) hazard zone locations along the Atlantic Ocean and Delaware Bay shorelines, and 4) to supplement existing building codes and regulations with standards specifically tailored to the identified hazard zones. Hazard zones that reflect local coastal morphology and anticipated storm effects expected during northeasters and hurricanes, including the 100-yr flood event (1% annual chance of occurring) and a Category 3 hurricane, were identified and mapped using April 1997, digital aerial orthophotographs. These zones which include the Beach Zone, the Erosion/Wave Zone, the Wave/Overwash Zone, the Flood Zone, and the projection of those future hazard zones into the future, are shown on base maps. In order to minimize future storm damage along Delaware's coastline, the Department recommends and/or requires construction standards in each of these zones. Recommended standards will be published separately in a supplemental document titled Delaware's Recommended Coastal Construction Standards. At a minimum, the Department will require the following construction standards in the Beach, Erosion/Wave Zone and the Wave Overwash Zone. Determination of the zone a property is located in will be made by reviewing the Department’s Coastal Vulnerability Assessment Maps mentioned above. If any portion of the structure is located in the Beach Zone or Erosion Zone then the entire structure must meet the requirements for the applicable zone.

8.1 Construction in the Beach Zone and Erosion Zone and In Locations Seaward of the Building Line

8.1.1 Foundations

All new buildings shall be constructed on a piling foundation, designed (by a registered professional engineer or architect licensed in the State of Delaware) and constructed to prevent floating, collapse or lateral displacement of the building during design flood conditions. Foundation design shall consider the effects of all flood, wave, wind and other loads anticipated during design flood conditions, and shall also consider the effects of the storm-induced erosion and long term erosion.

Pile foundations tips shall be driven to a minimum depth of -1i.0 ft. NAVD.

8.1.2 Floor Elevation Requirements

All new buildings and new construction shall be elevated such that the bottom of the lowest structural member is at or above the Base Flood Elevation.

8.1.3 Enclosures

The areas below Base Flood Elevation shall be unenclosed or enclosed only with light weight open wood lattice or screening. Storage areas and areas for building access with wood floors must be elevated above Base Flood Elevation and supported by the existing pile foundation.

8.1.4 Ground Level Surfaces

Seaward of the Building Line all constructed ground level surfaces (e.g. parking areas and driveways) shall be permeable materials consisting of fill, crushedursed shell, gravel or driveway stone (1/2" or smaller in circumference). Concrete, concrete pavers, asphalt or other solid surfaces are prohibited.

8.1.5 Utilities

Wiring, plumbing, duct work and other utility components shall be located above Base Flood Elevation. All utility connections servicing the elevated building must be attached to the landward side of foundation piles when possible

8.1.6 Decks

Decks constructed in a location seaward of the Building Line must make usesure of the foundation of the building (e.g. by cantilevering or knee brace), must meet the requirements of Section 6.1.83.019a0936.1.8) of these Regulations and shall be designed by a professional engineer or architect.

8.1.7 Access stairs for buildings or decks

Stairs for accessing buildings or decks shall be supported by the existing foundation of the structure. Stairs for accessing decks shall be located within the footprint of the deck or shall be located landward of the deck. The steps shall descend in a landward direction. Access due to special medical needs will be addressed on a case by case basis.

8.1.8 Retaining Walls

Due to the potential for the redirection of floodwaters onto other properties or into structures as a result of wave reflection off of the vertical wall, the construction of retaining walls are not permitted in these zones or in areas located seaward of the Building Line.

8.1.9 Pedestrian Dune Crossovers

Crossover widths will be set in the application process and will vary depending upon the amount of pedestrian use. The break down will be as follows:

8.1.9.1 Crossovers serving one or two family residences

8.1.9.2 Crossovers serving 3-9 single family residences

8.1.9.3 Crossovers serving 10 or more single family residences

In new subdivisions, adjacent property owners are required to share crossovers in order to minimize damage to the dunes. Older subdivisions will be required to share crossovers whenever possible and practicable. Crossovers for persons with special needs will be evaluated on a case by case basis.

8.2 Construction in the Wave/Overwash Zone and Landward of the Building Line.

8.2.1 Foundations

All new buildings shall be constructed on a piling foundation, designed (by a professional engineer or architect licensed in the State of Delaware) and constructed to prevent floatation, collapse or lateral displacement of the building during design flood conditions. Foundation design shall consider the effects of all flood, wave, wind and other loads anticipated during design conditions, and shall consider the effects of storm-induced erosion and long term erosion.

Foundation pilings for structures within this zone shall be at least 10.0 ft. below the lowest original grade at the building site, or deeper as dictated by design calculations.

8.2.2 Floor Elevation Requirements

All new buildings must be elevated such that the bottom of the lowest horizontal structural member is atr or above Base Flood Elevation.

8.2.3 Enclosures

The area below Base Flood Elevation shall be unenclosed or enclosed only with light weight open wood lattice, screening or breakaway walls. Enclosed areas shall be used only for parking, building access or storage and shall not be used a habitable space. Breakaway walls shall include openings that allow the automatic entry and exit of flood waters.

8.2.4 Ground Level Surfaces

Landward of the Building Line all constructed ground level surfaces (e.g., parking areas and driveways) shall be designed to break free of the piling foundation under design flood and erosion conditions.

8.2.5 Utilities

Wiring, plumbing, duct work and other utility components shall be located at or above Base Flood Elevation. All utility connections servicing the elevated buildings must be attached to the landward side of foundation piles when possible.

8.2.6 Porches and Decks

Foundation for porches and decks constructed in a location landward of the Building Line shall meet the same foundation requirements as the elevated building.

9.0 Appeal from the Department’s Decision

9.1 Right of Appeal

Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of state, aggrieved by any decision of the Secretary, may appeal to the Superior Court as provided in 7 Del.C. §6803(d).

10.1 Cease and Desist Orders

The Secretary shall have the power to issue a cease and desist order to any person who violates the Act or Regulations. Any such cease and desist order shall expire (1) after thirty (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.

10.2 Penalties

Any person who violates any provision of the Act, or Regulations, or violates a cease and desist order of the Secretary, shall be liable for penalties pursuant to 7 Del.C. §6807.