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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsNovember 2014

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7 DE Admin. Code 5101
The Department’s Division of Watershed Stewardship (Division), through experts in its Sediment and Stormwater Program, prepared a proposed amendment to Regulation 5101, which the Department had published in the September 1, 2014 issue of the Delaware Register of Regulations. Legal notices also were published in the News Journal and Delaware State News. The notices also provided the opportunity for public comment, including at a September 25, 2014 public hearing. The time period for written public comment ended on October 10, 2014. In an October 13, 2014, Hearing Officer’s Report, the Department’s presiding hearing officer reviewed the record and recommended approval of the proposed amendment.
The letter from the Department’s counsel in the litigation before Superior Court in Baker v DNREC, CA No. S13C-08-026 THG is the Department’s legal position that the proposed amendment seeks to implement in language changes to Regulation 5101 to remove any ambiguity and satisfy the appeal, if possible, through such changes.
1.3.1 On the effective date of these regulations and after January 1, 2014, unless a particular activity is exempted by these regulations, a person shall not disturb land without an approved Sediment and Stormwater Management Plan from the Department or Delegated Agency. A Sediment and Stormwater Management Plan shall not be approved for a property unless it is consistent with the following items:
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.
1.3.2.1 Plans approved to comply with previous regulations where construction has not commenced on the effective date of these regulations January 1, 2014 may have the plan approval extended under the requirements of the previous regulations in subsequent three-year approval periods. Any plan approved to comply with previous regulations must commence construction no later than six years following the effective date of these regulations December 31, 2019. A plan approved to comply with previous regulations where construction has not commenced within six years following the effective date of these regulations by December 31, 2019 shall expire and a new plan in compliance with these regulations shall be submitted to the Department or Delegated Agency for review and approval before commencement of construction.
1.5.3.2 Owing to special conditions or an unusual situation, a literal interpretation of these Regulations or the technical documents will result in hardship to the owner of the property in question.
1.7.3 Procedures for determining offset requirements shall options may be developed by the Department and published in the technical document supplement to these regulations.
1.13 The Department is responsible for the implementation and supervision of the sediment and stormwater program which is established by 7 Del.C. Ch. 40. The program shall be administered pursuant to these regulations. The Department may also develop and maintain a Technical Document to serve as a guide for the regulated community and Delegated Agencies in complying with Chapter 40 and these regulations.
1.14 All activities subject to these regulations shall comply with the design criteria and meet the minimum standards developed and published by the Department and shall follow Department policy, procedures and guidelines as set forth in accompanying technical documents. Revisions or updates to any of these documents shall be adopted following public notice requirements in accordance with 7 Del.C. §6004.
2.0 Definitions
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.
Functional Equivalency means alternative measures that are consistent with the policies, procedures, technical specifications, and advisory provisions found in the Technical Document, and which satisfy these Regulations.
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.
3.5.6 Administratively complete sediment and stormwater management plans, as determined by Department policy, that have been submitted for review and ultimate approval before the effective date of these regulations January 1, 2014 shall be subject to the regulations in effect at the time that the plan was first submitted to the Department or Delegated Agency. Unless administratively extended by the Department, a plan undergoing the review process on the effective date of these regulations January 1, 2014 but is not approved within eighteen months of the effective date of these regulations January 1, 2014 shall be subject to these regulations.
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.
3.11 Post Construction Verification Documents
3.11.1 Post construction verification documents shall be submitted to the Department or Delegated Agency within 60 calendar days of completion for stormwater management systems. The post construction verification documents shall compare the designed and constructed elements of the stormwater management system, meet the criteria for post construction verification documents in the Department or Delegated Agency checklist, and bear the seal of a Licensed Professional in the State of Delaware. A final construction review and approval by the Department or Delegated Agency is required before a financial guarantee shall be released, and before a Notice of Completion may be issued.
4.1 All construction site stormwater management Imps shall conform to the design criteria and meet the minimum standards and specifications contained in the Delaware Erosion and Sediment Control Handbook, and approved supplements. Revisions or updates to any of these documents shall be adopted in compliance with public notice requirements in accordance with 7 Del.C. §6004. The Technical Document may be utilized as a reference for the design and preparation of construction site stormwater management plans. Alternative measures that provide functional equivalency may be considered on a case-by-case basis in accordance with Section 1.14 of these Regulations.
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.
4.5.3 The Department or Delegated Agency shall have the discretion to may require additional soil testing and reapplication of permanent or temporary stabilization in accordance with the specification provided specifications in the Delaware Erosion and Sediment Control Handbook, or alternative measures that provide functional equivalency.
5.1 All items under this section, including design and construction of stormwater management systems, shall conform to the design criteria and meet the minimum standards and specifications established by Department policy, procedures and guidelines as set forth in accompanying technical documents. Revisions or updates to any of these documents shall be adopted in compliance with public notice requirements in accordance with 7 Del.C. §6004. The Technical Document may be utilized as a reference for the design and preparation of post construction stormwater management plans. Alternative measures that provide functional equivalency may be considered on a case-by-case basis in accordance with Section 1.14 of these Regulations.
5.6.2 In the case of Brownfield development of a contaminated site or Brownfield, a remediation plan approved by the Department may meet the stormwater management goals and the intent of these regulations with prior consent and subsequent approval by the Department.
6.1.2 The Owner shall may refer to the specifications contained in the Handbook or take functionally equivalent measures to install and maintain construction site stormwater management BMPs in accordance with the standards and specifications contained in the Delaware Erosion and Sediment Control Handbook, and approved supplements the approved plan.
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.
Last Updated: December 31 1969 19:00:00.
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