Authenticated PDF Version7 DE Admin. Code 108
Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control ("Department" or "DNREC"), pursuant to 7 Del.C. §6010 and 29 Del.C. §10113(b)(4), DNREC hereby revises Section 108 of Title 7 of the Delaware Administrative Code to correct all current grammatical, clerical, and legal citation/referencing errors presently contained therein, and to make this Regulation consistent with the formatting set forth in the current edition of the Delaware Administrative Code Drafting and Style Manual.
NOW THEREFORE, under the above-described statutory authority, and for the reasons set forth above, I hereby ORDER that the revisions to 7 DE Admin. Code 108: Delaware Coastal Management Program - Federal Consistency Policies and Procedures, be adopted and promulgated.
The effective date of this Order is ten (10) days from the date of its publication in the Delaware Register of Regulations, in accordance with 29 Del.C. §10118(g).
Office of the Secretary Division of Climate, Coastal, and Energy
1.1 Background Forward
1.1.1 The Coastal Zone Management Act (CZMA) was signed in 1972 (P.L. 92-583). It has since been amended, with the most recent amendment most recently in 2005. The Act and its amendments affirmed a national interest in the effective protection and development of the coastal zone. The CZMA authorized the Federal Grant-in-aid program to be administered by the Secretary of Commerce. They in turn appointed the National Oceanic and Atmospheric Administration (NOAA) as the responsible authority for the federal CZMA.
1.1.2 In response to the CZMA of 1972, Delaware prepared a Final Environmental Impact Statement (FEIS) for the development of a coastal program and submitted it to NOAA. In 1979, the Delaware Coastal Management Program was approved by NOAA under authority of the CZMA (15 CFR Part 923). The FEIS established the Delaware Coastal Management Program (DCMP), as well as its goals and policies and became Delaware’s Program Document. This document was subsequently updated in 1999. The Department of Natural Resources and Environmental Control (DNREC) is the agency responsible for administering the State’s Coastal Management Program.
1.1.3 Section 306 307 of the CZMA provides states with approved coastal management programs the authority to review federal activities (direct agency actions, licenses or permits, assistance, and Outer Continental Shelf exploration) for consistency with State Coastal Management Policies coastal management policies.
1.1.4 The purpose of this 2009 2018 Policy Document is to revise and update the 2004 2011 Policy Document. Many of Delaware's environmental laws and regulations have been amended and/or new ones established updated to comply with the Delaware Administrative Code Drafting and Style Manual since 2004 2011. As a result, DCMP has updated and/or deleted the 2004 policies accordingly. This Routine Program Change updates and revises the DCMP Policies as well as our Federal Consistency Procedures. The result is a new working document containing policies and procedures for utilization during federal consistency reviews update reflects those changes.
Section 306 of the Coastal Zone Management Act, as amended, provides states with a means to update their coastal programs with approval from NOAA. This procedure is called a Routine Program Change (RPC). NOAA issued new guidance in July, 1996 regarding RPC’s RPCs. The DCMP has revised this Policy Document in accordance with the RPC Guidance and determined this update qualifies as an RPC submitted the current modifications to NOAA for review and determined this to be an administrative update.
Delaware has defined its Coastal Management Area as the entire state State for the purposes of the federally approved coastal management program.
The State of Delaware promulgated the Delaware Coastal Zone Act (7 Del.C. Chapter 70) in the early 1970’s. This State law allows the DNREC to regulate industry in the State Coastal Strip Zone of Delaware. The State Coastal Strip Zone is defined in the statute. It is approximately any lands and waters east of State Routes 13, 113, and 1 (north-south corridors), and an area on the north and south of the Chesapeake and Delaware Canal. Due to the similarity in names, the State Coastal Zone, as defined in 7 Del.C. Chapter 70, is referred to heretofore as the Coastal Strip in this document. The Delaware Coastal Zone Act is incorporated into the DCMP Policy Document. Industrial development activities within the Coastal Zone Strip require a permit from the DNREC.
2.1.1 The Federal Coastal Zone Management Act of 1972, as amended, (CZMA; 16 USC §§1451 1465) provides that each federal agency conducting or supporting activities, whether within or outside the coastal zone, affecting any land or water use or natural resource of the coastal zone, must do so in a manner which is, to the maximum extent practicable, consistent with Delaware's Coastal Management Program (DCMP).
2.1.2 In addition, federal permits and licenses, outer continental shelf (OCS) plans, and grants-in-aid which may affect Delaware's coastal zone management area must be consistent with the DCMP. The federal consistency provisions are intended to provide a means for improved federal-local coordination regarding important federal actions which could affect the coastal resources of Delaware.
Identify Federal federal actions that could adversely affect coastal resources, general land use patterns, or public investment requirements.; and
Provide for an examination of Federal federal actions in the context of the goals, objectives, and policy network contained in the DCMP.
2.1.3 Consistency offers Delaware's state State agencies, through the DCMP within the Department of Natural Resources and Environmental Control (DNREC), Division of Soil & Water Conservation, an opportunity for a positive voice in federal actions. It ensures that state concerns and policies will be considered by federal agencies in federal development projects, the issuance of federal licenses and permits, the approval of OCS plans and programs, and the award of federal grants, loans, subsidies, insurance, or other forms of federal aid.
2.2.2 No federal license or permit shall be granted until: a) the DCMP has concurred with the applicant's certification; or until, b) by the DCMP's failure to act, consistency is conclusively presumed; or, c) on appeal to the Secretary of Commerce, the Secretary overrides the state's objection. (See Section subsection 3.5)
2.2.3 No federal agency shall grant a license or permit for any activity described in detail in an OCS plan which affects any land or water use or natural resource in the coastal zone until the DCMP concurs with the certification of consistency made by the person submitting the OCS plan, except upon an override as overridden by the Secretary of Commerce. (See Section subsection 3.5); and
Applicants are encouraged to provide an electronic copy of the application package AND a paper copy. Applicants should send address their Consistency Determinations or Certifications and all supporting documentation (including federal application packages, maps, technical drawings, etc. see relevant sections below) to:
Federal agencies proposing activities and development projects must submit a consistency determination to the DCMP where such projects are likely to affect Delaware's coastal resources. Under federal regulations this includes all functions of a federal agency performed by it or on its behalf, including, but not limited to: federal rulemaking or plan development, planning, construction, modification, or removal of public works, facilities, or other structures, and the acquisition, utilization, or disposal of land or water resources. [15 CFR §930.31]
The following procedures apply to federal agency activities and development projects:
3.1.1.1 A brief statement indicating how the proposed action will be undertaken in a manner consistent to the maximum extent practicable with the DCMP. The term 'maximum extent practicable' [15 CFR §930.32] describes the requirement for federal activities to be fully consistent with such programs unless compliance is prohibited based upon the requirements of existing law applicable to the federal agency's operations. [15 CFR §930.32]
3.1.1.2 An evaluation of the relevant policies of the DCMP [15 CFR §930.39].
3.1.2.1.1 The DCMP will give at least 20 days public notice prior to response to consistency certification determination. In the event that a state State permit is required for the same activity, the DCMP will coordinate their review with the state State permitting agencies.
3.1.2.1.2 The notice shall describe the subject matter of the certification determination review, including a summary of the proposed activity and an announcement of the availability of consistency certification determination and accompanying public information.
In the event the DCMP disagrees with objects to the federal agency's consistency determination, a notification will be sent to the affected federal agency and to the Director of the federal Office of Ocean and Coastal Resource Management (OCRM OCM), National Oceanic and Atmospheric Administration (NOAA).
When the DCMP objects to a consistency determination, the DCMP will attempt to resolve its concerns with the federal agency. However, in the event of a serious disagreement between a federal agency and the DCMP, either party may request formal mediation through the Secretary of Commerce as provided for in 15 CFR Part 930, Subpart G, or informal negotiations through OCRM OCM. Both processes are voluntary and non-binding.
Pursuant to 15 CFR§930.53(a), the DCMP has prepared a list of those federal licenses and permits which are considered to "affect the coastal zone (See Section see subsection 3.2.8). No federal license or permit described on this list can be granted until after the applicant certifies that the proposed activity complies with and will be conducted in a manner consistent with the DCMP and the DCMP concurs.
3.2.2.4 Upon the applicant's request, the DCMP shall provide assistance for developing the assessment and findings described in items subsections 3.3.2.2 and 3.3.2.3.
3.2.3.1.1 The DCMP will give at least 30 days public notice prior to response to consistency certification. In the event that a state State permit is required for the same activity, the DCMP will coordinate their review with the state State permitting agencies.
Review of consistency certifications and supporting documentation will be conducted by the DCMP in coordination with networked program partners. If a state State permit is required for the same activity, the State permitting agency's review of the permit applications will become part of the DCMP's consistency review.
At the earliest practicable time following the close of the public comment period, the DCMP shall notify the applicant and the federal and/or state State permitting agency whether it concurs or objects to the consistency certification. Concurrence shall be in writing. If the DCMP does not respond within six months from the commencement of review, concurrence shall be conclusively presumed. If a consistency decision has not been issued within 3 months following the commencement of review, the DCMP shall notify both the federal permitting agency and applicant of the status of the matter and the basis for further delay.
If the DCMP issues a concurrence (or concurrence is conclusively presumed) with the applicants' consistency certification, the federal agency may approve the application for a federal license or permit (state State permits may still be required).
At any time during the six month review period, the DCMP may object to the consistency certification. Such objection will be contained in a written notice from the DCMP to the applicant, the federal agency, and the Director of OCRM OCM. The objection shall:
3.2.6.3 Describe the nature and necessity of additional information required for making a consistency determination if the objection is based on insufficient information. [15 CFR §930.64(d)]
Upon receipt of a State's objection, the federal agency shall not grant the federal license or permit, except where, upon appeal to the Secretary of Commerce, the Secretary overrides DCMP's objection based upon a finding that the proposed activity is either consistent with the purposes of the CZMA or is in the interest of national security [15 CFR Part 930, Subpart H]. The State's objection shall include a statement informing the applicant of a right to appeal to the Secretary of Commerce (See Section see subsection 3.5). Regardless of DCMP's consistency decision or the Secretary's decision in an appeal, the project may not commence until all necessary State permits are obtained.
Should the DCMP determine that an unlisted license or permit activity could be reasonably expected to affect the coastal zone, notification will be sent to the appropriate federal agency, the Director of OCRM OCM, and the applicant of the DCMP's intent to review the activity for consistency pursuant to 15 CFR §930.54.
3.2.8.1.4 Approval of plans for improvements made at private expense under USCOE USACE supervision pursuant to the Rivers and Harbors Act of 1899 (33 USC 565)
3.2.8.4.1 Licenses and permits ordering interconnection of electric transmission lines; issuing certificates of public convenience and necessity for interstate natural gas transmission and terminals approvals for abandonment of natural gas pipelines; and licenses required for non-federal hydroelectric projects and associated transmission lines.
3.2.8.7 Department of Interior – Bureau of Ocean Energy Management, Regulation and Enforcement
Pursuant to 15 CFR Part 930, Subpart F, state State and local governments submitting applications for federal assistance affecting Delaware's coastal zone management area shall certify that the projects are consistent with the policies of the DCMP. Federal assistance means assistance provided under a Federal program to an applicant agency through grant or contractual arrangements, loans, subsidies, guarantees, insurance, or other forms of financial aid. An applicant agency means any unit of state or local government that submits an application for federal assistance.
Applications by state State, county and municipal agencies for federal assistance must be reviewed by the state State Federal Aid Review Committee (FARC). Additionally, all applications from governmental entities which receive State funds must be reviewed and approved by the Delaware State Clearinghouse Committee (DSCC), a legislatively mandated review body whose membership includes representatives of the executive and legislative branches of State government. The DSCC may veto applications and prevent their further consideration by a federal agency. Other reviews are also required at the regional level for projects in New Castle County.
The DCMP will monitor federal assistance projects and programs through the State Clearinghouse review process and other means. If the monitoring indicates that significant impacts on the State's coastal resources have occurred or could occur from federal assistance projects, a formal consistency review and determination pursuant to the federal regulations will be requested. In such cases, the DCMP will notify the applicant agency, involved federal agencies, and the OCRM Director of OCM of its intention to make such a determination.
Some federal assistance programs are not neither subject to OMB Circular A-95 nor to the review process required by the Delaware State Clearinghouse Committee. In these cases the DCMP will monitor program activity through the Federal Register, informal and formal federal agency contact, newsletters, State-local state-local technical assistance projects, and other means. Where it is determined that such programs could have a significant impact, the DCMP will review the federal program and, if appropriate, request that such federal program be subject to the A-95/Clearinghouse review and approval process. A formal consistency certification may subsequently be required.
Any person submitting to the U.S. Secretary of the Interior any OCS plan must furnish the DCMP with a copy of the OCS plan certification.
At the earliest practicable time the DCMP will notify the applicant, the Secretary of the Interior, and the Director of OCRM OCM whether it concurs with or objects to the consistency certification.
In the event the State objects to the OCS plan certification, it will accompany its objection with reasons and supporting information concerning each activity which the State finds to be inconsistent with the management program. The State's objection will include a statement informing the person of a right of appeal to the Secretary of Commerce on the grounds described below. Following receipt of a State state agency objection, federal agencies may not issue any of the licenses or permits for activities described in detail in the OCS plan.
3.5.1.1 The activity furthers one or more of the competing national objectives or purposes contained in sections Sections 302 or 303 of the Act.
4.1.1 Federal agencies, applicants or applicant agencies proposing activities listed above in subsection 4.4 within the specified boundaries must notify the DCMP of the proposed activity. Notification shall comply with 15 CFR §930.57 and §930.58 as described in section subsections 3.2.1 and 3.2.2 of this document. The DCMP has 30 days from receipt of the applicant’s consistency certification and necessary data and information to notify the applicant if the action will be reviewed for consistency with Delaware’s coastal management policies, as described in section subsection 3.2.3 of this document.
4.2.1 At the earliest practicable time, the DCMP shall notify the applicant and federal and/or state permitting agency whether it concurs or objects to the consistency certification. Concurrence shall be in writing. If the DCMP does not respond within six months from the commencement of review, concurrence shall be conclusively presumed. If a consistency determination has not been issued within 3 months following the commencement of review, the DCMP shall notify both the federal permitting agency and the applicant of the status of the matter and the basis for further delay.
4.4.1.1 The DCMP has determined that there are identified three categories of federal activities that warrant consideration through the provisions of interstate consistency: Dredging and Dredged Material Disposal, Offshore Alternative Energy Development, and Introduction of Non-native Shellfish. The following table provides more detail and identifies the locations of the activities subject to review:
4.4.1.1.1.1.1 Applies to activities in New Jersey occurring below the high tide line of the Delaware River from the Commodore Barry Bridge south to the Delaware state State line; and/or below the high tide line of the Delaware River and Bay from Artificial Island to Cape May
4.4.1.1.1.1.2 Applies to activities in Pennsylvania occurring below the high tide line of the Delaware River from the Commodore Barry Bridge south to Delaware state State line.
4.4.1.1.1.2.1 Applies to activities in New Jersey below the high tide line of the Delaware River from the Commodore Barry Bridge south to the Delaware state State line; below the high tide line of the Delaware River and Bay from Artificial Island to Cape May, NJ; and/or confined upland disposal facilities with the capacity to handle at least 50,000 cubic yards of dredged material that discharge directly into Delaware River or Bay.
4.4.1.1.1.2.2 Applies to activities in Pennsylvania occurring below the high tide line of the Delaware River from the Commodore Barry Bridge south to Delaware state State line; and/or confined upland disposal facilities with the capacity to handle at least 50,000 cubic yards of dredged material that discharge directly into Delaware River.
5.1.1 The productive public and private wetlands in the state State shall be preserved and protected to prevent their despoliation and destruction consistent with the historic right of private ownership of lands. [7 Del.C. §6602]
5.1.2 Activities in or adjacent to wetlands shall be conducted so as to minimize wetlands destruction or degradation, to preserve the natural and beneficial values of wetlands, and to protect the public interest therein. [7 Del.C. §§6602, 6603(a)(2), 6119, 4001]
5.1.3 Each state State agency shall minimize the adverse effects to freshwater wetlands and conserve and enhance the environmental values and functions of freshwater wetlands in carrying out the agency's responsibilities. [Delaware Executive Order 56, May 26, 1988]
5.1.4 Each state State agency, to the extent permitted by law, shall avoid undertaking or providing financial assistance for construction located in freshwater wetlands which will substantially degrade or destroy for long or permanent duration the use and function of an altered area as a wetland environment, unless the head of the agency, through consultation with the DNREC, files written findings with DNREC that;:
5.1.4.2 That the The request is consistent with the procedures and provisions of the following paragraph. In making this finding the head of the agency and DNREC may take into account social, economic, environmental and other pertinent factors. [Delaware Executive Order 56, May 26, 1988]
5.1.5 Any requests for new authorizations, appropriations, or grants of state State operating or capital funds, or for state State loan assistance or guarantees shall indicate, based on best available information, if an action to be proposed will be located in or will adversely affect freshwater wetlands, whether the proposed action is in accord with Delaware Executive Order Number 56. [Delaware Executive Order 56, May 26, 1998]
5.1.6 When State-owned freshwater wetlands are proposed for lease, easement, right-of-way or disposal to non-state non-State public or private parties, the State agency shall:
5.1.7 Wetlands to be managed by the Department of Natural Resources and Environmental Control DNREC are those lands above the mean low water elevation any bank, marsh, swamp, meadow, flat or other low land subject to tidal action in the State, including those areas which are now or in this century have been connected to tidal waters, whose surface is at or below an elevation of 2 feet above local mean high water, and upon which may grow or is capable of growing obligate or facultative wetland vegetation and those lands not currently used for agricultural purposes containing 400 acres or more of contiguous nontidal swamp, bog, muck or marsh exclusive of narrow stream valleys where fresh water stands most, if not all, of the time due to high water table, which contribute significantly to ground water recharge, and which would require intensive artificial drainage using equipment such as production of agricultural crops. [7 Del.C. §6603(h)]
5.1.8 The conservation and protection of non-tidal wetlands shall be given consideration in development of land acquisition plans and comprehensive land use development plans. [Delaware Executive Order 43, August 15, 1996; Delaware Executive Order 56, May 26, 1988; 22 Del.C. Ch. 7; 9 Del.C. §§2656, 4956, 6956]
5.1.9 Activities which may adversely affect wetlands shall require state State approval pursuant to the policy statements below. The CMP, however, requires no such approval for the following activities: construction of foot bridges, duck blinds, wildlife nesting structures, boundary markers, or aids to navigation that do not prevent the ebb and flow of the tide; mosquito control activities authorized by the DNREC; and hunting, fishing, haying, trapping, and grazing of domestic animals. [7 Del.C. §§6604, 6606; 7 DE Admin. Code 7502 § subsection 6.1.4]
5.1.10 In order to assure that any activity in the wetlands is appropriate, state State approval shall be required prior to the initiation of such activities, except no such approval shall be required for the activities identified in policy statement number 5.1.9. The following factors shall be considered prior to such approval: the environmental impact of the proposed use; the number and type of supporting facilities required and their impact; the effect of the activity on neighboring land uses; the appropriate state State and local comprehensive plans for the general area; the economic impact of the activity in terms of jobs, taxes generated, and land area required; and the aesthetic impact of the proposed activity. Alternative methods of construction shall also be considered prior to permit approval. [Authority - [7 Del.C. §6604 7 DE Admin. Code 7502]
5.1.12.5 Building bulkheads on wetlands higher in elevation than the surface of the natural land. Navigational aids that do not prevent the ebb and flow of the tide may be higher. [7 DE Admin. Code 7502 §7 Section 7.0]
5.2.1 The public and private beaches of the State shall be preserved, protected, and enhanced to mitigate beach erosion and to prevent their destruction and despoliation. [7 Del.C. §§6801, 6803, 6810]
5.2.3 Beaches are the areas from the Delaware/Maryland line at Fenwick Island to the Old Marina Canal north of Pickering Beach, which extends extend from the Mean High Water line of the Atlantic Ocean and Delaware Bay seaward 2,500 feet, and landward 1,000 feet. [7 Del.C. §6802(1)]
5.2.5 Construction activities landward of the building line on any beach, including construction of any structure or the alteration, digging, mining, moving, removal or deposition of any substantial amount of beach or other materials, shall be permitted only under a letter of approval from the Department of Natural Resources and Environmental Control DNREC. [7 Del.C. §6805(c)]
5.2.7 By definition, the Building Line means a line generally paralleling the coast, set forth on maps prepared by the Division of Soil and Water Conservation DNREC with reference to the National Geodetic Vertical Datum (NGVD) and the Delaware State Plane Coordinate System, and based upon information provided by topographic surveys. The Building Line is located as follows:
5.2.7.4 at At the landward limits of the beach, as defined in the Regulations Governing Beach Protection and the Use of Beaches dated December 27, 1983, whichever is most seaward. [Delaware Regulations Governing Beach Protection and the Use of Beaches, Part 1 - Definitions, revised December 27, 1983 7 DE Admin. Code 5102 Section 1.0]
5.2.8 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 DNREC issues the person a permit or letter of approval pursuant to the Regulations Governing Beach Protection and the Use of Beaches. [Delaware Regulations Governing Beach Protection and the Use of Beaches, Section 2.07, revised December 27, 1983 7 DE Admin. Code 5102 subsection 3.3.1]
5.2.10 No person shall commence or conduct, without a permit therefore from the Division of Soil & Water Conservation DNREC, 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 DNREC, including the proper installation of sand fence and the planting and fertilization of stabilizing vegetation, shall not require a permit. [Delaware Regulations Governing Beach Protection and the Use of Beaches, Section 4.03, revised December 27, 1983 7 DE Admin. Code 5102 subsection 4.3.1]
5.2.11 No person shall commence or conduct without a permit therefore from the Division of Soil and Water Conservation DNREC, construction seaward of the Building Line, of any pipeline, dock, pier, wharf, ramp or other harbor work. [Delaware Regulations Governing Beach Protection and the Use of Beaches, Section 4.04, revised December 27, 1983 7 DE Admin. Code 5102 subsection 4.4.1]
5.2.12 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, then such a structure shall be required to be located entirely landward of the Building Line. However, if the Division of Soil and Water Conservation DNREC 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 federal, state, and local laws, rules, regulations, and zoning and building ordinances. [Delaware Regulations Governing Beach Protection and the Use of Beaches, Section 2.08, revised December 27, 1983 7 DE Admin. Code 5102 subsection 3.4.1]
5.2.13.4 The damaging, destruction or removal of any trees, shrubbery, beach grass or other vegetation growing on any State-owned or maintained beach seaward of the Building Line. [Delaware Regulations Governing Beach Protection and the Use of Beaches, Section 2.08, revised December 27, 1983 7 DE Admin. Code 5102 subsection 3.7.1]
5.2.14.3 Whenever two thirds or more of the property owners in the project area along the private beach have petitioned the Department to undertake the work. [7 Del.C. §§6801, 6804, 6810]
5.2.17 Efforts shall be made to utilize shoreline erosion control methods that best provide for the conservation of aquatic nearshore habitat, maintain water quality, and avoid other adverse environmental effects. Non-structural erosion control methods are preferred. However, structural erosion control measures may be allowed where it can be shown, through a review of site conditions and generally accepted engineering standards, that nonstructural measures would be ineffective in controlling erosion. [Delaware Regulations Governing the Use of Subaqueous Lands, Section 3.04, amended September 2, 1992 7 DE Admin. Code 7504 subsection 4.10.1.1]
5.3 Coastal Waters Management
5.3.1.1 The development and utilization of the land and water resources of the state State shall be regulated to ensure that water resources are employed for beneficial uses and not wasted, to protect beneficial uses of water resources, and to assure adequate water resources for the future. [7 Del.C. §6001 (a)(2)(3)]
5.3.1.2 The water resources of the state State shall be protected from pollution which may threaten the safety and health of the general public. [7 Del.C. §§6001 (a)(5), 6001 (c)(2)]
5.3.1.3 The coastal water resources of the state State shall be protected and conserved to assure continued availability for public recreational purposes and for the conservation of aquatic life and wildlife. [7 Del.C. §6001(a)(4)]
5.3.1.4 It is the policy of the DNREC to maintain within its jurisdiction surface waters of the State of satisfactory quality consistent with public health and public recreation purposes, the propagation and protection of fish and aquatic life, and other beneficial uses of the water. [DNREC Regulations, Delaware Surface Water Quality Standards, Section 1.1, amended July 11, 2004 7 DE Admin. Code 7401 subsection 1.1]
5.3.1.5 The designated uses applicable to the various stream basins represent the categories of beneficial use of waters of the state State which must be maintained and protected through application of appropriate criteria. Such uses shall include public water supply; industrial water supply; primary contact recreation involving any waterbased form of recreation, the practice of which has a high probability for total body immersion or ingestion of water such as swimming and water skiing; secondary contact recreation involving a water-based form of recreation, the practice of which has a low probability for total body immersion or ingestion of water such as wading, boating and fishing; maintenance, protection and propagation of fish, shellfish, aquatic life and wildlife preservation; agricultural water supply; and waters of exceptional recreational or ecological significance (ERES waters). [Delaware Surface Water Quality Standards, Sections 2 and 3, amended July 11, 2004 7 DE Admin. Code 7401 Sections 2.0 and 3.0]
5.3.1.6 Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected. Degradation of water quality in such a manner that results in reduced number, quality, or river or stream mileage of existing uses shall be prohibited. Degradation shall be defined for the purposes of this section as a statistically significant reduction, accounting for natural variations, in biological, chemical, or habitat quality as measured or predicted using appropriate assessment protocols. [Delaware Surface Water Quality Standards, Section 5.1 amended July 11, 2004 7 DE Admin. Code 7401 subsection 5.1]
5.3.1.7 Where the quality of the waters exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that water quality shall be maintained and protected. In the case of E.R.E.S. waters, existing quality shall be maintained or enhanced. Limited degradation may be allowed if the DNREC finds, after review, that allowing lower water quality would result in a substantial net environmental or public health benefit and does not impede existing uses in the area in which the waters are located In while allowing for full protection of existing uses. [Delaware Surface Water Quality Standards, Sections 2 and 5.2, amended July 11, 2004 7 DE Admin. Code 7401 subsections 5.2 and 5.6]
5.3.1.8 Where high quality waters constitute an outstanding national resource, such as waters of national parks and wildlife refuges, existing quality shall be maintained and protected. [Delaware Surface Water Quality Standards, Section 5.3, amended July 11, 2004 7 DE Admin. Code 7401 subsection 5.3]
5.3.1.9 In those cases where potential water quality impairment associated with a thermal discharge is involved, the antidegradation policy and implementing method shall be consistent with Section 316 of the Water Quality Act of 1987. [Delaware Surface Water Quality Standards, Section 5.4, amended July 11, 2004 7 DE Admin. Code 7401 subsection 5.4]
5.3.1.10.3 Any pollutants, including those of a thermal, toxic, corrosive, bacteriological, radiological, or other nature that may interfere with attainment and maintenance of designated uses of the water, may impart undesirable odors, tastes, or colors to the water or to aquatic life found therein, may endanger public health, or may result in dominance of nuisance species. [Delaware Surface Water Quality Standards, Section 4.1, amended July 11, 2004 7 DE Admin. Code 7401 subsection 4.1]
5.3.1.11 Regulatory mixing zones shall not impinge upon areas of special importance, including but not limited to drinking water supply intakes, nursery areas for aquatic life or waterfowl, approved or conditional shellfish areas or heavily utilized primary contact recreation areas. Zones shall not be located in such a manner as to interfere with passage of fishes or other organisms. Shorehugging plumes should be avoided to the maximum extent practicable. In areas where multiple discharges are located in proximity, overlapping discharge plumes may occur. In such instances, the thermal mixing zone, which is not to exceed 25% of the cross-sectional area of the receiving water as measured from the point of discharge to the opposite shore, may be reduced to preclude acute toxicity in the overlap areas, or to ensure an adequate zone of passage for fish. [Delaware Surface Water Quality Standards, Section 6.2, amended July 11, 2004 7 DE Admin. Code 7401 subsections 6.2 and 6.4]
5.3.1.12.3 Concentrations of toxic substances in the treated water that may be harmful to human health. [State of Delaware Surface Water Quality Standards, Section 4.2, amended July 11, 2004 7 DE Admin. Code 7401 subsection 4.2]
5.3.1.13 Designated exceptional recreational or ecological significance (ERES) waters shall be accorded a level of protection and monitoring in excess of that provided most other waters of the State. These waters are recognized as special natural assets of the State, and must be protected and enhanced for the benefit of present and future generations of Delawareans. [Delaware Surface Water Quality Standards, Section 5.6.1.1, amended July 11, 2004 7 DE Admin. Code 7401 subsection 5.6.1.1]
5.3.1.14 ERES waters shall be restored, to the maximum extent practicable, to their natural condition. To this end, the DNREC shall, through adoption of a pollution control strategy for each ERES stream basin, take appropriate action to cause the systematic control, reduction, or removal of existing pollution sources, and the diversion of new pollution sources, away from ERES waters. [Delaware Surface Water Quality Standards, Section 5.6.1.2, amended July 11, 2004 7 DE Admin. Code 7401 subsection 5.6.1.2]
5.3.1.15 The discharge of oil from a vessel, truck, pipeline, storage, tank or tank car which causes or poses a threat of making a film on, emulsion in or sludge beneath the waters of the state State or its shoreline shall be prohibited. [7 Del.C. §§6203, 6202(7)(5)(9)]
5.3.1.16.4 No person shall cause or permit any discharge of liquid waste to a stream, tidal or non-tidal, except liquid waste which has received at least secondary treatment, filtration, and disinfection. This subsection shall not govern discharge into the Delaware River, the Delaware Bay or the Atlantic Ocean, which shall be governed by subsection 5.3.1.16.1. For existing facilities, filtration may not be required if the existing facility has demonstrated the ability to continuously meet secondary treatment levels. [Delaware Regulations Governing the Control of Water Pollution, Section 7.01 and 7.02 amended February 11, 2006 7 DE Admin. Code 7201 subsections 7.1 and 7.2]
5.3.1.17 In the event that Delaware Surface Water Quality Standards are not achieved through application of the technology based requirements, additional effluent limitations and treatment requirements shall be imposed to assure compliance with the Surface Water Quality Standards. Such additional effluent limitations and treatment requirements must control all pollutants or pollutant parameters which the DNREC determines are or may be discharged at a level which will cause, have the reasonable potential to cause or significantly contribute to an excursion of any numerical or narrative water quality criterion contained within Delaware's Surface Water Quality Standards. The need for additional effluent limitations and treatment requirements shall be based upon the results of chemical and/or biological tests in conjunction with studies or analyses designed to assess the potential of the discharge to cause or contribute to in-stream excursions of Delaware's Surface Water Quality Standards. [Delaware Surface Water Quality Standards, Section 8.01, amended July 11, 2004 7 DE Admin. Code 7201 subsection 8.1]
5.3.1.18 Where conflicts develop between stated surface water uses, stream criteria, or discharge criteria, designated uses for each segment shall be paramount in determining the required stream criteria, which, in turn, shall be the basis of specific discharge limits or other necessary controls. [Delaware Surface Water Quality Standards, Section 1.2, amended July 11, 2004 7 DE Admin. Code 7401 subsection 1.2]
5.3.1.19.1 In a way which may cause or contribute to the discharge of an air contaminant;
5.3.1.19.2 In a way which may cause or contribute to the discharge of a pollutant into any surface or ground water;
5.3.1.19.3 In a way which may cause or contribute to withdrawal of ground water or surface water or both;
5.3.1.19.4 In a way which may cause or contribute to the collection, transportation, storage, processing or disposal of solid wastes, regardless of the geographic origin or source of such solid wastes;
5.3.1.19.5 To construct, maintain or operate a pipeline system including any appurtenances such as a storage tank or pump station;
5.3.1.19.6 To construct any water facility; or
5.3.1.19.7 To plan or construct any highway corridor which may cause or contribute to the discharge of an air contaminant or discharge of pollutants into any surface or ground water. [7 Del.C. § 6003(a)]
5.3.1.20.1 Which may cause or contribute to the discharge of an air contaminant;
5.3.1.20.2 Which may cause or contribute to the discharge of a pollutant into any surface or groundwater;
5.3.1.20.3 Which is intended to prevent or control the emission of air contaminants into the atmosphere or pollutants into surface or groundwaters;
5.3.1.20.4 Which is intended to withdraw ground water or surface water for treatment and supply; or
5.3.1.21 Regulatory variances for the activities identified in the preceding policy statement may be granted pursuant to 7 Del.C. §6011 if all of the following conditions exist in the opinion of the Secretary of the Delaware Department of Natural Resources and Environmental Control:
5.3.1.21.1 Good faith efforts have been made to comply with these policies;
5.3.1.21.2 The cost of compliance is disproportionately high with respect to the benefits which would be bestowed by compliance, or the necessary technology is unavailable;
5.3.1.21.3 Available alternative operating procedures or interim control measures are being or will be used to reduce adverse impacts; and
5.3.1.21.4 The activities are necessary to the national security or to the lives, health, or welfare of the occupants of Delaware. [7 Del.C. §6011(b)]
5.3.1.22 No permit for the activities identified above shall be granted unless the activities are consistent with county and municipal zoning regulations. [7 Del.C. §6003(c)(1)]
5.3.1.23.1 Sewer;
5.3.1.23.2 Any liquid waste collection or conveyance facilities such as waste water pump stations and force mains;
5.3.1.23.3 Liquid waste treatment facilities;
5.3.1.23.4 Any surface impoundment for liquid waste or
5.3.1.23.5 Any bulk storage, bulk transfer or pipeline facility. [Delaware Regulations Governing the Control of Water Pollution, Sections, 2.21, 2.22 2.49, 2.64, 2.97 and 4.02, amended February 11, 2006 7 DE Admin. Code 7201 Section 2.0 and subsection 4.2]
5.3.1.24 No person shall construct, install, modify, rehabilitate, or replace an on-site wastewater treatment and disposal system or construct or place any dwelling, building, mobile home, manufactured home or other structure capable of discharging wastewater on-site unless such person has a valid license and permit issued by the DNREC. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.020000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.31.1]
5.3.1.25 No person shall cause or permit to be discharged, thrown, or dumped into any waters or any drainage ditch in the State any garbage, refuse, dead animal, poultry, trash, carton, bottle, container, box, lumber, timber, paper, or light material or other solid waste. [Delaware Regulations Governing the Control of Water Pollution, Section 3.02(f), amended February 11, 2006 7 DE Admin. Code 7201 subsection 3.2.6]
5.3.1.26.1 Engage in the drilling, boring, coring, driving, digging, construction, installation, removal, or repair of a water well or water test well, except as or under the supervision of a licensed water well contractor;
5.3.1.26.4 No permits or licenses shall be issued for these activities unless the DNREC finds that the applicant is prepared and willing to conduct such activities in a manner which is consistent with the CMP policies. [7 Del.C. §6023; Delaware Executive Order 43, August 15, 1996]
5.3.1.28 No permits shall be issued for the discharge of any radiological, chemical or biological warfare agents or high-level radioactive wastes into State waters. [Delaware Regulations Governing the Control of Water Pollution, Section 3.02(h)(1), amended February 11, 2006 7 DE Admin. Code 7201 subsection 3.2.8.1]
5.3.1.30 Water delivered to every consumer by any public water supplier shall be so protected by natural means, by proper constructions or by treatment so as maintain or increase water quality above the level determined to be safe and not to negatively impact users of water from such systems, either directly or indirectly. [Delaware Regulations Governing Public Drinking Water Systems. Systems, Section 3.3, Amended December 1, 2005 16 DE Admin. Code 4462 subsection 3.3]
5.3.1.32.5 Qualifying commercial forest harvesting operations. [Delaware Sediment and Stormwater Regulations, Section subsection 3.1 amended April 11, 2005]
5.3.1.33.4 The proposed project is for agricultural structures in locations included in current soil and water conservation plans that have been approved by the appropriate Conservation District. [Delaware Sediment and Stormwater Regulations, Section subsection 3.2.1, amended April 11, 2005]
5.3.1.34 All sediment and stormwater management plans shall be designed to implement water quality control measures to minimize, to the maximum extent possible, degradation of downstream water quality and habitat. Unless a particular activity is exempt, no person may disturb land without an approved sediment and stormwater management plan. [Delaware Sediment and Stormwater Regulations, Section subsection10.2.2, amended April 11, 2005]
5.3.1.35.3 Watersheds, other than Designated Watersheds or Subwatersheds subwatersheds that have well documented water quantity problems may have more stringent or modified design criteria that are responsive to the specific needs of that watershed. Modified criteria for that watershed must receive Departmental approval, and all projects reviewed and approved by the appropriate plan approval agency shall meet or exceed the modified criteria. Proposed modification of criteria for a watershed shall be subject to public review and comment prior to implementation. [Delaware Sediment and Stormwater Regulations, Section subsection 10.3.4, amended April 11, 2005]
5.3.1.36.1 In general, the preferred option for water quality protection shall be those practices collectively referred to as “Green Technology BMP’s”. Other practices shall be considered only after preferred practices have been eliminated for engineering or hardship reasons as approved by the appropriate plan approval agency.
5.3.1.36.5 Water quality practices may also be acceptable to the Department and/or the plan approval agency if they are designed to reduce pollutant loading from a specific post-development source. [Delaware Sediment and Stormwater Regulations, Section subsection 10.3.5(1)(2)(3)(4)(5), amended April 11, 2005]
5.3.2.1.1 Owners/operators may agree to pool resources for a single pumpout dump station with Departmental approval based on criteria of number and class of vessels, marina locations, cost per pumpout use, and ultimate method of sewage treatment and disposal (i.e. septic system or waste water treatment facility).
5.3.2.1.2 The owner/operator of any boat docking facility that is located in whole or in part on tidal waters of the State, and that provides dockage for a live-aboard vessel(s) with a Type III marine sanitation device(s), shall install and maintain at all times, in a fully operable condition, an approved dedicated pumpout facility at each live-aboard vessel slip for the purpose of removing sewage from the live-aboard vessel on a continuous or automatic, intermittent basis to a DNREC approved sewage disposal system.
5.3.2.1.3 Any discharge, by any means, of untreated or inadequately treated vessel sewage into or upon the waters of any marina, boat docking facility or tidal water of the State of Delaware is prohibited.
5.3.2.1.4 All vessels while on waters of the State of Delaware shall comply with 33 USC 1322, as amended February 4, 1987. [7 Del.C. §6035 (a) and -(b)(1, 2, 3, & 4), Adopted June 23, 1992]
5.3.2.2 No person shall construct, install, modify, rehabilitate, or replace a marina unless such person has a valid marina permit issued by the DNREC [Delaware Marina Regulations, Section I (B)(5)(a), revised February 22, 1993 7 DE Admin. Code 7501 subsection 2.5.1]
5.3.2.3.1.2 Alternatives that do not involve the use of state State waters for storage of boats have less adverse impact on the aquatic environment, and
5.3.2.3.1.3 Alternatives that do not involve the use of state State waters for storage of boats are available.
5.3.2.3.2 Marinas shall be designed to maximize flushing so as to prevent the possible accumulation of contaminants that could result in a violation of the Delaware Surface Water Quality Standards, and to meet the policy objectives as set forth above. [Delaware Marina Regulations, Section II (C)(1) (D)(2)(a)(E)(1)(a), revised February 22, 1993 7 DE Admin. Code 7501 subsections 11.2.1, 11.2.1.1, 11.2.1.2, 11.2.3.4, 11.3.2.1 and 11.4.1.1]
5.3.2.4 It is the policy of the State to preserve and protect public and private wetlands and to prevent their despoliation and destruction consistent with the historic right of private ownership of lands. Therefore, the Department shall strictly regulate the location of marinas in wetlands. Marinas shall be limited to those sites where short and long-term adverse impacts to the biological, chemical, and physical integrity of wetlands and their functions have been avoided, and that unavoidable impacts have been minimized and can be compensated for. Before disturbance of wetlands shall be permitted, the applicant shall demonstrate that all practicable alternatives to avoiding wetland impacts have been thoroughly examined and the results of such examinations shall be provided to the DNREC. In all cases, the applicant shall demonstrate that the purchase of additional property to avoid the wetland impacts is impracticable. [Delaware Marina Regulations, Section II (D)(4)(b), revised February 22, 1993 7 DE Admin. Code 7501 subsections 11.3.4.2 and 11.3.4.3]
5.3.2.5.3 Impacts on the public's ability to harvest and consume edible shellfish species based upon the shellfish growing area classification proposed by the Delaware Division of Public Health for the marina or marina alteration under consideration. [Delaware Marina Regulations, Section II(D)(5), revised February 22, 1993 7 DE Admin. Code 7501 subsection 11.3.5]
5.3.2.6 Marinas shall not be permitted in areas that will result in the destruction of submerged aquatic vegetation beds without corresponding compensation measures as approved by the DNREC. [Delaware Marina Regulations, Section II (D)(6)(a), revised February 22, 1993 7 DE Admin. Code 7501 subsection 11.3.10.3.2]
5.3.2.7 Dredging shall be limited to the minimum dimensions necessary for the project and shall avoid sensitive areas such as wetlands, shellfish resources, and submerged aquatic vegetation. Delaware Surface Water Quality Standards must not be violated because of dredging operations, excluding whatever temporary and minimal turbidity is unavoidable when using sound dredging practices. Marinas shall only be located in areas which, in the determination of the Department, offer safe and convenient access to waters of navigable depth. Such locations tend to present maximum opportunities for flushing, with less danger of sedimentation than very shallow sites. Safe and convenient access will be determined on a case-by-case basis. Factors such as existing water depths, distance to existing channels and their depths, and tidal and wave action will be considered. [Delaware Marina Regulations, Section II (E)(2)(a)(4)(a), revised February 22, 1993 7 DE Admin. Code 7501 subsections 11.4.2.1 and 11.4.4.1]
5.3.2.8 Benthic resources are protected because of their importance in the food chain and their value as commercial and recreational food sources. The status of a benthic community must be assessed by the applicant using frequency, diversity, and abundance measures approved by the DNREC. The DNREC may modify this methodology as experience is gained in applying certain techniques in Delaware waters. The DNREC may require monitoring of the benthos as a permit condition. [Delaware Marina Regulations, Section II (D)(7) revised February 22, 1993 7 DE Admin. Code 7501 subsection 11.3.7]
5.3.2.9 Construction of marinas shall not be permitted at sites that are recognized by the DNREC as critical habitats. "Critical Habitat" includes areas classified by the DNREC and serving an essential role in the maintenance of sensitive species. Areas may include unique aquatic or terrestrial ecosystems that support rare endangered or threatened plants and animals. Rare, endangered or threatened species are defined by both state and/or federal listings. [Delaware Marina Regulations, Section II(D) revised February 22, 1993; Delaware Regulations Governing the Use of Subaqueous Lands Definitions (9) amended, September 2, 1992. 7 DE Admin. Code 7501 subsection 11.3.8 and 7 DE Admin. Code 7504 Section 1.0]
5.4.4 The location, extent and type of industrial development in the coastal strip that will result in the degradation of the Delaware's bays and coastal areas shall be controlled [7 Del.C. §7001; Kreshtool v. Delmarva Power & Light Co., Delaware Super., 310 A. 2d 649(1973)]
5.4.5 The development and use of offshore oil, gas, and other mineral resources of the state State shall be managed to make the maximum contribution to the public benefit and so as to balance their utilization, conservation, and protection [Delaware Oil, Gas and Mineral Exploration Regulations, 2.1. September, 1971]
5.4.6 New heavy industrial uses shall be prohibited in the coastal strip. Such uses are ones characteristically involving more than 20 acres, and characteristically employing smokestacks, tanks, distillation or reaction columns, chemical processing equipment or waste-treatment lagoons. Heavy industrial uses shall not only be defined by their physical characteristics, however, but also by their potential to pollute in the event of human error or equipment failure. Examples of heavy industry are oil refineries, basic steel manufacturing plants, basic cellulosic pulp-paper mills, and chemical plants such as petrochemical complexes. For purposes of this policy, public sewage treatment or recycling plants shall not be deemed heavy industrial uses. [7 Del.C. §§7002(e), 7003; Kreshtool v. Delmarva Power & Light Co., Delaware Super., 310 A. 2d 649(1973)]
5.4.8.2 Economic effect, including the number of jobs created and the income which will be generated by the wages and salaries of these jobs in relation to the amount of land required, and the amount of tax revenues potentially accruing to state State and local government.
5.4.8.6 County and municipal comprehensive plans for the development and/or conservation of their areas of jurisdiction. [7 Del.C. §7004(b)]
5.4.9 New offshore gas, liquid, or solid bulk product transfer facilities shall be prohibited in the coastal strip. Such facilities are docks or port facilities, whether artificial islands or attached to shore by any means, for the transfer of bulk quantities of any substance from vessel to onshore facility or vice versa. However, a docking facility or pier for a single industrial or manufacturing facility and docking facilities located in the City of Wilmington for the Port of Wilmington shall not be prohibited. [7 Del.C. §§7002(f), 7003; Inf. Attorney General Opinion No. 65, October 22, 1974]
5.4.10 Offshore pipelines which transfer bulk quantities of gas, oil, or other liquids to terminals within the coastal strip shall be prohibited. Such pipelines generally shall be allowed if they transit the coastal strip and environmental safeguards are observed. However, if such pipelines represent a significant danger of pollution to the coastal strip or generate pressure for construction of industrial plants in the coastal strip, they shall be prohibited. [Authority - 7 Delaware Code 7 Del.C. §§7001, 7002, 7003; Inf. Attorney General Opinion No. 77-33, July 6, 1977]
5.4.11 A permit may be issued for geological, geophysical and seismic surveys, including the taking of cores and other samples, or the tide and submerged lands of this State. Such permits shall be nonexclusive and shall not give any preferential rights to any oil, gas and sulfur or other mineral lease. After consultation with those agencies of the State having an interest in the possible effects of the leasing, such rules and regulations deemed necessary to protect the fish, game, wildlife and natural resources of the State shall be included in the permit. Survey activities on any area determined to be an area where a lease should not be granted may be prohibited. The permit shall include conditions and payment proper to safeguard the interests of the State. [7 Del.C. §§6103, 6104]
5.4.12 No operations or activities shall be commenced on the drilling, deepening or plugging back of any offshore oil or gas wells located on underwater lands of Delaware without the permission of the state State, and unless the activities are conducted in a manner which do not result in the degradation of the State’s natural resources. [Delaware Oil, Gas and Mineral Exploration Regulations Numbers I-V, September 1971]
5.4.13 Easements for mineral exploration and exploitation underlying that part of the surface of the Atlantic shore owned by the state shall be permitted at such times and places as necessary to permit the extraction and transportation of oil, gas, sulfur or other minerals from state State, federal or private lands, but permanent interference with the surface of the Atlantic shore shall be prohibited. [7 Del.C. §6102(d), 6118, 6119(a)]
5.4.14 Before offering tide and submerged lands for leasing for possible mineral development, or whenever any person files a written application with the Secretary of DNREC requesting that lands be offered for leasing, accompanying the same with the required fee, a public hearing shall be held. After the public hearing, it will be determined whether an invitation for bidding to lease the area under consideration would be in the public interest. Consideration shall be made as to whether a lease or leases of the area under consideration would:
5.4.14.7 Protect state State lands from drainage of oil, gas or other minerals or objectionable substances [7 Del.C. §§6107, 6108]
5.4.16.2 Events that could have been prevented by the lessee or its officers, employees or agents through the exercise of a high degree of care. [7 Del.C. §6119(b)]
5.4.19 The extent of jurisdictional authority over public or private subaqueous lands includes any activity in a navigable stream or waterbody, which have a hydrologic connection to natural waterbodies. "Activity" includes, but is not limited to, any human induced action, such as dredging, draining, filling, grading, bulkheading, mining, drilling, extraction of materials or excavation, or construction of any kind, including, but not limited to, construction of a boat ramp or slip, breakwater, residences, bridge, bulkhead, culvert, dam, derrick, deck, groin, jetty, lagoon, gabion, rip-rap, launching facility, marina, mooring facility, pier, seawall, walkway, or wharf. [Delaware Regulations Governing the Use of Subaqueous Lands, Section 1.02(A)(1) and Definition #1, amended September 2, 1992 7 DE Admin. Code 7504 Section 1.0 and subsection 2.2.1.1]
5.4.20.12 Repair and replacement of existing serviceable structures over private subaqueous lands, except no permit or letter is required for repairs or structural replacements which are above the mean low tide and which do not increase any dimensions or change the use of the structure. [Delaware Regulations Governing the Use of Subaqueous Lands, Section 1.03(C), amended September 2, 1992 7 DE Admin. Code 7504 subsection 2.3.3.1]
5.4.21.11 New dredging activities of channels, ditches, dockage, or other waterways [Delaware Regulations Governing the Use of Subaqueous Lands, Section 1.04(B), amended September 2, 1992 7 DE Admin. Code 7504 subsection 2.4.2]
5.4.22.1 The value to the State or the public in retaining any interest in subaqueous lands which the applicant seeks to acquire, including the potential economic value of the interest.
5.4.22.2 The value to the State or the public in conveying any interest in subaqueous lands which the applicant seeks to acquire.
5.4.22.3 The potential effect on the public with respect to commerce, navigation, recreation, aesthetic enjoyment, natural resources and other uses of the subaqueous lands.
5.4.22.4 The extent to which any disruption of the public use of such lands is temporary or permanent.
5.4.22.5 The extent to which the applicant's primary objectives and purposes can be realized without the use of such lands (avoidance).
5.4.22.6 The extent to which the applicant's primary purpose and objectives can be realized by alternatives, i.e. minimize the scope or extent of an activity or project and its adverse impact.
5.4.22.7 Given the inability for avoidance or alternatives, the extent to which the applicant can employ mitigation measures to offset any losses incurred by the public.
5.4.22.8 The extent to which the public at large would benefit from the activity or project and the extent to which it would suffer detriment.
5.4.22.9 The extent to which the primary purpose of a project is water-dependent. [Delaware Regulations Governing the Use of Subaqueous Lands, Section 3.01(A), amended September 2, 1992 7 DE Admin. Code 7504 subsection 4.6]
5.4.23.6 The extent to which the proposed project may adversely impact natural surface and groundwater hydrology and sediment transport functions. [Delaware Regulations Governing the Use of Subaqueous Lands, Section 3.01(B), amended September 2, 1992 7 DE Admin. Code 7504 subsection 4.7.1]
5.4.24.5 The degree to which the proposed project may adversely affect shellfish beds or finfish activity in the area. [Delaware Regulations Governing the Use of Subaqueous Lands, Section 3.01(C), amended September 2, 1992 7 DE Admin. Code 7504 subsection 4.7.5]
5.4.25.8 The dredging operation must be suspended if water quality conditions deteriorate in the vicinity of dredging or spoil disposal site. Minimum water quality standards may be included as an element of the permit and shall be monitored by the applicant. Violation of these conditions shall be cause for immediate suspension of activity and notification of the DNREC. Dredging shall not be resumed until water quality conditions have improved and the DNREC has authorized the resumption. [Delaware Regulations Governing the Use of Subaqueous Lands, Section 3.05(C), amended September 2, 1992 7 DE Admin. Code 7504 subsection 4.11.3]
5.4.26.3 Dredging channels, lagoons or canals deeper than the existing controlling depth of the connecting or controlling waterway. Dredging. channels, cleaning marinas or other subaqueous areas by using propeller wash from boats [Delaware Regulations Governing the Use of Subaqueous Lands, Section 3.05(D), amended September 2, 1992 7 DE Admin. Code 7504 subsection 4.11.6]
5.5.1 State “public lands” public lands shall be protected to preserve the scenic, historic, scientific, prehistoric and wildlife values of such areas. [7 Del.C. Chapters 45 and 47; Delaware Executive Order 42 and 43, August 15, 1996]
5.5.2 The integrity of State “public lands” public lands” shall be protected from encroachment. [7 Del.C. Chapters 45 and 47; Delaware Executive Order 42 and 43, August 15, 1996]
5.5.3 All private development on “public lands” public lands, except that authorized by DNREC for public use, shall be prohibited. [7 Del.C. Chapters 45 and 47; Delaware Executive Order 42 and 43, August 15, 1996]
5.5.4 The “public lands” public lands shall be surveyed and remain appropriately marked with the location and coordinates tied to the state plane coordinate system and recorded with the office of the recorder of deeds for the county in which the lands lies. Detailed drawings, survey work sheets and field notes, perimeter descriptions, and other pertinent property records shall be likewise recorded. [7 Del.C. Chapters 45 and 47; Delaware Executive Order 42 and 43, August 15, 1996]
5.5.5 These lands shall be managed for public recreation purposes and for the conservation and preservation of their natural resources and beauty. A management priority shall be the maintenance of public access to the beach and ocean where such access can be accommodated without serious damage to the primary resources. The Department may lease certain portions for highway and utility purposes as it deems advisable and for the public good. Management of these lands shall be consistent with the State Comprehensive Outdoor Recreation Plan (SCORP) and in accordance with sound master planning activities. [7 Del.C. Chapters 45 and 47; Delaware Executive Order 42 and 43, August 15, 1996]
5.6.1.1.1 For scientific research in such fields as ecology, taxonomy, genetics, forestry, pharmacology agriculture, soil science, geology, conservation, archaeology, and other subjects;
5.6.1.1.2 teaching of biology, natural history, ecology, geology, conservation, and other subjects;
5.6.1.1.4 As reservoirs of natural materials;
5.6.1.1.5 As places of natural interest and beauty;
5.6.1.1.6 As living illustrations of our natural heritage wherein one may observe and experience natural biotic and environmental systems of the earth and their processes;
5.6.1.1.7 To promote understanding and appreciation of the scientific, educational, aesthetic, recreational and cultural values of such areas by the people of the State of Delaware; or
5.6.1.1.8 For the preservation and protection of natural areas against modification or encroachment resulting from occupation, development, or other use which would destroy their natural or aesthetic conditions.
5.6.1.1.9 Nature preserves may be acquired by gift, devise, purchase, exchange or any other method of acquiring real property or any estate, interest or right therein and/or voluntary agreements by property grantor. [7 Del.C. §§7303, 7302(6), and 7306]
5.6.1.2 Suitable lands, in part or in their entirety, within the jurisdiction of any and all units, departments, agencies, and instrumentalities of the state State, including counties, municipalities, schools, colleges and universities, should be dedicated as nature preserves for preservation purposes. [7 Del.C. §7311]
5.6.1.4.5 This policy shall not apply, however, to natural areas dedicated as nature preserves if the terms of such dedication provide otherwise. [7 Del.C. §§7305(e)(4), 7307(4)(8), 7308, 7309, 7310]
5.6.1.5 Aid should be provided in the establishment, restoration, and preservation of natural areas within the state State and elsewhere than in the nature preserve system [7 Del.C. §§7307(8)]
5.6.2.1.5 For the purpose of this section, the Indian River Watershed, Indian Bay Watershed, Rehoboth Bay Watershed, and Little Assawoman Bay Watershed shall be collectively known as the “Inland Bays Watersheds”. [Delaware Regulations Governing The Pollution Control Strategy For The Indian River, Indian River Bay, Rehoboth Bay And Little Assawoman Bay Watersheds, effective November 11, 2008 7 DE Admin. Code 7403]
5.7.1.2 All state State agencies shall participate in and comply with the requirements of the Federal Flood Insurance Program. [Delaware Executive Order 48, February 27, 1978; Delaware Executive Order 43, August 15, 1996]
5.7.1.3.2 the The administration of grant or loan programs involving such construction by other governmental entities or private parties;
5.7.1.4 All state State agencies, in cooperation with the Delaware Department of Natural Resources and Environmental Control, shall conduct a survey of their holdings and identify those structures and sites which are flood prone. An inventory shall be maintained by such agencies and updated as of June 30 of each year, indicating: such structures, sites, and uses thereof; the replacement or current economic value of the structures, their contents, and sites; and records of flood-related damage incurred by the structures, contents or sites. [Delaware Executive Order 48, February 27, 1978; Delaware Executive Order 43, August 15, 1996]
5.7.1.5 Actions which may affect state State or local flood hazard areas management shall be monitored and by whatever action is deemed appropriate, encourage or require such actions which are inconsistent with such management to be modified in a manner that will make them consistent. [Delaware Executive Order 43, August 15, 1996]
5.7.2.1 Local units of government in the state State shall be encouraged to participate in the Federal Flood Insurance Program. [Delaware Executive Order 43, August 15, 1996]
5.9.1 Woodlands
5.9.1.1 Unwarranted destruction or damage to woodlands shall be prevented. Public and private interests must recognize that woodlands have economic, recreational, wildlife, water supply and scenic values. State actions shall avoid the unnecessary damage or destruction of woodlands. [3 Del.C. Ch 9 Subch V, Ch 10 Subch IV; Delaware Executive Order 42 and 43, August 15, 1996]
5.9.1.2 The pine and yellow-poplar forest resources of the State shall be preserved and protected from depletion as a result of harvesting activities. [3 Del.C. §1051]
5.9.1.3 No person shall commence a cutting operation unless seed trees have been reserved pursuant to the natural regeneration method or pursuant to an alternate management plan approved by the State Forester or his designee. This policy shall not apply to cutting operations of timber from land being cleared for reservoirs, military installations, agriculture, residential, ditch and utility right-of-ways, industrial sites, railroads or to cutting operations undertaken pursuant to a contract executed prior to January 1, 1989. [3 Del.C. §1053 (a)(b)]
5.9.2.1 Waters of the State shall be protected from sediment pollution resulting from silviculture activities. [3 Del.C. §1071, 1073]
5.9.2.2 Special orders can be issued if the Forestry Administrator, or Forestry Administrator’s designee, finds that any owner or operator is conducting any silvicultural activity in a manner which is causing or is likely to cause alteration of physical, chemical or biological properties of any state State water, resulting from sediment deposition presenting an imminent and substantial danger to
5.9.2.2.3 Recreational, commercial, industrial, agricultural or other reasonable uses. [3 Del.C. §1073]
5.9.2.3 All open water bodies, perennial streams, intermittent streams with a well-defined channel, and streams that have been hydrologically modified by dredging or straightening shall have a Streamside Management Zone (SMZ), unless the property or a portion of the property is covered by an approved Delaware Seed Tree Law application and is located on slopes of less than three (3) percent. The minimum width for a SMZ is 50 feet from each side of qualifying streams. Within a SMZ, at least sixty (60) square feet of basal area per acre of trees well distributed throughout the area shall be retained, or at least sixty (60) percent of the overstory. [Delaware’s Forestry Erosion and Sediment Regulations, section 5.9, effective July 1, 1996 3 DE Admin. Code 401 subsections 5.9.1, 5.9.3, 5.9.4]
5.9.3.1 Agricultural practices shall be conducted in a manner which reduces pesticides and sediment loads to estuaries, bays, and other waterbodies. [3 Del.C. §1203(b); Delaware Forestry Erosion and Sediment Regulations, effective July 1, 1996]
5.9.3.2 All public and private entities whose actions may substantially affect agricultural lands in Delaware, or the agricultural productivity of such lands, shall consider the need to preserve and protect such lands prior to taking such actions, and should preserve and protect agricultural lands whenever practicable. State agencies shall protect and preserve agricultural lands to the maximum extent practical. [3 Del.C. Ch 9; Delaware Executive Order 42, August 15, 1996]
5.9.3.3 “Scattered” development should be limited through the consideration of alternative locations in growth zones, the availability of public services such as sewer and water systems, police and fire facilities, and and costs for resulting infrastructure needs when planning for future growth and development. [9 Del.C. Ch 26 Subch II, Ch 49 Subch II, Ch 69 Subch II; Delaware Executive Order No. 43, August 15, 1996]
5.10.1.3 Permits for archaeological survey and excavation of archaeological resources or artifacts on lands owned or controlled by this State may be granted to any properly qualified person to conduct such investigations for the furthering of archaeological knowledge for public interest. Archeological resources which are excavated or removed from state State lands, including subaqueous lands, will remain the property of the State of Delaware and will be preserved by a qualified university, museum, or other scientific or educational institution. The permit may contain any terms, conditions, or limitations deemed necessary to protect he the integrity of the archeological resource and may be suspended if its provisions have been violated. [7 Del.C. §5309]
5.10.1.4 All activities that may impact historic and cultural areas shall be coordinated, to the maximum extent possible, with the Delaware Division of Historical and Cultural Affairs. [7 Del.C. §5301; Delaware Executive Order 42, August 15, 1996]
5.11 Living Resources
5.11.1.1.2.7 Presence of unique geologic or wetland features [7 DE Admin. Code 7502 § subsection 12.2]
5.11.2.1 All forms of protected wildlife shall be managed and protected from negative impacts.[7 Del.C. §102(a)]
5.11.2.2 State shellfish resourcs shall be protected from further impairment and improved when possible [7 Del.C. §1902 (a)(1)(2)(5)]
5.11.2.3 Mosquito and other pest controls shall use techniques such as open marsh water management, which reduce the application of chemicals and which substitute biological controls. [Delaware Mosquito Control Spray Policy, revised January 10, 2008 February 26, 2018, Delaware Executive Order 43, August 15, 1996]
5.12.1 Leases for the extraction and production of minerals determined to be in the public’s interest must not create any air, water or other pollution, endanger marine life or wildlife, and must protect state State lands from drainage of oil, gas, or other minerals or objectionable substances. [7 Del.C. §6108]
5.13 State Owned Coastal Recreation and Conservation
5.13.1 State owned lands whose natural condition or present state of use would maintain important recreational areas and wildlife habitat, or would maintain or enhance the conservation of natural, cultural or historic resources shall be managed, preserved, and protected, for conservation and recreational use. [7 Del.C. §§7301, 7504(6), 5305; 7 Del.C. Ch 45]
5.13.2 Open spaces shall be preserved through the acquisition of interests or rights in real property, or donation of lands, for public recreation and conservation of natural resources promotes biological diversity, public health, prosperity and general welfare [7 Del.C. §7502]
5.14 Public Trust Doctrine
5.14.2 Unless otherwise proven, the Public Trust Doctrine is applicable to those properties between the high and low water marks. [Bickel v. Polk, Delaware Supr. 5 Harr. 325 (1851); State of Delaware Regulations Governing the Use of Subaqueous Lands, Section 1.02(B), amended September 2, 1992 7 DE Admin. Code 7504 subsection 2.2.2.3]
5.15.1.3 Deepwater ports on the Delaware side of the Delaware River and Bay are prohibited by the Coastal Management Program. Such ports are also prohibited within Delaware's three mile jurisdiction along the Atlantic Ocean. [7 Del.C. §§7001, and 7003]
5.15.1.4 The DCMP supports a port offshore the Atlantic Coast, provided such activities do not result in the degradation of Delaware’s natural resources including locating far enough offshore to minimize oil spill threats to the coast and to obviate dredging requirements; stringent construction and operation safeguards; a demonstrated reduction of tanker traffic and lightering in the bay; and assurances that state State financial interests are protected in the case that an oil spill should occur. [7 Del.C. Ch 62; 7 Del.C. §7004; 29 Del.C. §8003]
5.15.1.9 The CMP permits facilities used in generating, transmitting, distributing, transforming, switching, and otherwise transporting and converting electrical energy and facilities used to generate electric power directly from solar energy provided the activity is conducted in a manner that minimizes negative impacts to the fullest extent possible. [7 Del.C. §§7002(e), 7004; Kreshtool v. Delmarva Power & Light Co., Delaware Super., 310 A. 2d 649(1973)]
5.15.1.10 The Coastal Management Program also permits nuclear power generation facilities but recommends alternative fuels when feasible because of safety concerns and the unresolved problems of nuclear waste transfer, storage and disposal. [16 Del.C. §§7414, 7417; A.G. Opinion dated April 3, 1974]
5.16.2.3 The construction of public housing (under the state housing development fund State Housing Development Fund) is encouraged:
5.17 Recreation and Tourism
5.19.1.1 The DCMP supports the expansion and development of the Port of Wilmington [7 Del.C. Ch. 70]
5.20.2.1 Sources which will emit to the atmosphere equal to or greater than 0.2 pound of air contaminant(s), in the aggregate, in any one day [7 DE Admin. Code §§1102, 1125, 1130]
5.20.2.2 Sources which will emit to the atmosphere particulate matter from fuel burning or industrial process equipment, construction and materials handling, or grain handling operations. [7 DE Admin. Code §§1104, 1105, 1106, 1118]
5.20.2.3 Sources which will incinerate either noninfectious or infectious waste [7 DE Admin. Code §§1107, 1129]
5.20.2.4 Sources which will emit to the atmosphere sulfur dioxide/compound emissions from fuel burning equipment or industrial operations; [7 DE Admin. Code §§1108, 1109, 1110]
5.20.2.5 Sources which will emit to the atmosphere carbon monoxide emissions from industrial process operations; [7 DE Admin. Code §1111]
5.20.2.8 Sources which will emit to the atmosphere visible emissions (opacity) [7 DE Admin. Code §1114]
5.20.2.9 Sources which will emit to the atmosphere odorous air contaminants; [7 DE Admin. Code §1119]
5.20.2.11 Sources which will burn waste oil. No Person shall burn waste oil in fuel burning equipment or in an incinerator without first obtaining a permit. [7 DE Admin. Code §1122]
5.20.2.12 Sources which will emit to the atmosphere volatile organic compounds [7 DE Admin. Code §1124]
5.20.3 Where it is established that the Delaware air regulations are inadequate to attain or maintain any applicable air quality standard, additional control measures shall be imposed to assure air quality is maintained. [7 DE Admin. Code §§1101, 1103]
5.21.1.1 The allocation and use of waters in the State shall be approved on the basis of equitable apportionment and in such a manner as to provide an adequate quantity and quality of water for the current and future needs of the people of Delaware. [DE Regulations Governing the Allocation of Water, Section 1.01, effective March 1, 1987; 7 DE Admin. Code 7303 Sections 1.0, 2.0, 3.0; 7 Del.C. §6010(F)] [Delaware Regulations Governing the Allocation of Water, Section 1.01, effective March 1, 1987 7 Del.C. §6010(F)]
5.21.1.2.5 Substantial impact on the flow of perennial streams below those rates specified for surface waters in the preceding section. [Delaware Regulations Governing the Allocation of Water, Section 3.04, effective March 1, 1987 7 DE Admin. Code 7303 subsection 3.4]
5.21.1.3.6 Provide other ecological, recreational, aesthetic, and private benefits which are dependent upon surface water flows. [Delaware Regulations Governing the Allocation of Water, Section 3.03, effective March 1, 1987 7 DE Admin. Code 7303 subsection 3.3]
5.21.2.1 A well, defined as "any excavation that is drilled, cored, bored, washed, driven, dug, jetted, or otherwise constructed when the intended use of such excavation is for the location, testing, acquisition, use, for extracting water from, or the artificial recharge of subsurface fluids, and where the depth is greater than the diameter or width; not to include geotechnical test; soil, telephone, and construction piling borings; fence posts, test pits, or horizontal closed loop heatpump circulation systems constructed within twenty (20) feet of the ground surface”; including any well installed for the purpose of obtaining geologic or hydrologic information shall receive the prior approval of the DNREC in the form of a well permit. [Delaware Regulations Governing the Construction and Use of Water Wells, Sections 1.02 (D) and 2.61, revised April 1, 1997 7 DE Admin. Code 7301 subsection 1.2.4, Section 2.0]
5.21.2.2 The geology, hydrology and hydraulics of the area of interest, population density and water use, character of surface and subsurface, water quality, depletion rate of the water resources, sources of contamination, and other facts as may be relevant to the protection of the water resources and water supply shall be taken into account when considering applications and granting permits. [Delaware Regulations Governing the Construction and Use of Water Wells, Section 3.10(B), revised April 1, 1997 7 DE Admin. Code 7301 subsection 3.10.2]
5.21.2.3 The DNREC may place special conditions on the well permit such as, but not limited to, a requirement for double casing, special grouting requirements, special use restrictions, depth restrictions, notification of installation date, and special material requirements to protect the water resources, water supply, and the public health, safety and welfare [Delaware Regulations Governing the Construction and Use of Water Wells, Section 3.10 (C), revised April 1, 1997 7 DE Admin. Code 7301 subsection 3.10.3]
5.21.2.4 Where an approved public water supply system is legally and reasonably available to the area to be served, the DNREC shall deny an application for a well permit for a potable water well. [Delaware Regulations Governing the Construction and Use of Water Wells, Section 3.10 (D), revised April 1, 1997 7 DE Admin. Code 7301 subsection 3.10.4]
5.21.2.5 When proposed wells, with the exception of monitor, observation and recovery wells, are to be located within the jurisdiction or service area of a municipality serving public water the applicant shall submit a written statement of approval from said municipality with the well permit application [Delaware Regulations Governing the Construction and Use of Water Wells, Section 3.10 (E), revised April 1, 1997 7 DE Admin. Code 7301 subsection 3.10.5]
5.21.2.6 The DNREC may require as a permit condition that certain tests be done such as, but not limited to, the performance of a geophysical log on the well, the determination of water quality parameters, and the taking of formation samples [Delaware Regulations Governing the Construction and Use of Water Wells, Section 3.10 (F), revised April 1, 1997 7 DE Admin. Code 7301 subsection 3.10.6]
5.21.3.1 Any underground injection, except as authorized by permit issued under the Underground Injection Control (UIC) program or otherwise authorized herein, is prohibited. The construction of any well required to have a permit is prohibited until the permit is issued. [Delaware Regulations Governing Underground Injection Control, Section 122.23(a), effective August 15, 1983 7 DE Admin. Code 7102 subsection 1.23.1]
5.21.3.2 The construction, use, operation or modification of any Class II, III, or IV well as defined in the Regulations Governing Underground Injection Control is hereby expressly prohibited and no permit may be issued for any such activity. [Delaware Regulations Governing Underground Injection Control, Section 122.23(b), effective August 15, 1983 7 DE Admin. Code 7102 subsection 1.23.2]
5.21.3.3 No owner or operator shall construct, operate, maintain, convert, plug, abandon, or conduct and other another injection activity in a manner that allows the movement of fluid containing any contaminant into underground sources of drinking water, if the presence of that contaminant may cause a violation of any primary drinking water regulation under 40 CFR part 142 or may otherwise adversely affect the health of persons. The applicant for a permit shall have the burden of showing that the requirements of this paragraph are met [Delaware Regulations Governing Underground Injection Control, Section 122.24(a), effective August 15, 1983 7 DE Admin. Code 7102 subsection 1.24.1]
5.21.4.1 State, county county, and local governments and private water suppliers is are encouraged to develop a comprehensive water supply management program including the reallocation of water resources, the protection of aquifer recharge areas, and, where necessary, the abrogation of allocations to marginal users provided compensation is provided.
5.22.1.1 On-site sewage disposal system design and installation shall be dependent upon site and soil conditions and shall use the best available technology. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, revised January 31, 1995 amended April 11, 2005 7 DE Admin. Code 7101]
5.22.1.2.3 Maintaining, repairing, and/or replacing the system as necessary to assure proper operation of the system. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.01000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.1]
5.22.1.3 No person shall construct, install, modify, rehabilitate, or replace an on-site system or construct or place any dwelling, building, mobile home, modular home or other structure capable of discharging wastewater on-site unless such person has a valid permit issued by the DNREC. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.02000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.31]
5.22.1.4 No permit may be issued by the DNREC under the Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems unless the county or municipality having land use jurisdiction has first approved the activity through zoning procedures provided by law. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.03000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.2]
5.22.1.5 At the sole discretion of the DNREC, if the proposed operation of a system would cause pollution of public waters or create a public health hazard, system installation or use shall not be authorized [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.08000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.7]
5.22.1.7 No person shall dispose of wastewater at any location not authorized by the DNREC under applicable laws and regulations for such disposal. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.10000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.9]
5.22.1.8 Discharge of untreated or partially treated wastewater or septic tank effluent directly or indirectly onto the ground surface or into surface waters of the State, unless authorized by a permit issued by the DNREC, constitutes a public health hazard and is prohibited. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.11000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.10]
5.22.1.9 No cooling water, air conditioning water, ground water, oil, water softener brine or roof drainage shall be discharged into any wastewater system. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.12000, revised January 31, 1995 amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.31.4]
5.22.1.10 Each system shall have adequate capacity to properly treat and dispose of the maximum projected daily wastewater flow. The quantity of wastewater shall be determined from the Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems or other information the DNREC determines to be valid that may show different flows [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.14000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.31.2, Exhibit D]
5.22.1.11 A permit to install a new wastewater system can be issued only if each site has received an approved site evaluation and is free of encumbrances (e.g., easements, deed restrictions, etc.), which could prevent the proper installation or operation of the system. [Delaware Regulations Governing the Design, Installation and Operation of On-Site Wastewater Treatment and Disposal Systems, Section 3.15000, amended April 11, 2005 7 DE Admin. Code 7101 subsection 3.31.5]
5.22.2.1 A valid permit shall be obtained for construction and operation of waste collection, treatment, and disposal systems and facilities used for the purposes of land treatment of wastes. Land treatment system planning, design and operation must be conducted in a manner that shall protect Delaware’s public health and environmental quality. [Delaware Guidance and Regulations Governing the Land Treatment of Wastes, Part I, Section 500, amended October 15, 1999 7 DE Admin. Code 7103 Section 5.0]
5.22.2.2.7 The need for monitoring and record keeping to determine if the facility is being operated in conformance with its design and if its design is adequate to protect the environment and the public health. [Delaware Guidance and Regulations Governing the Land Treatment of Wastes, Part II(B), Section 203(3)(a), amended October 15, 1999 7 DE Admin. Code 7103 subsection 56.11]
5.22.2.3.5 To dispose of non-hazardous sludges in an efficient manner while reducing its impact on State resources. [Delaware Guidance and Regulations Governing the Land Treatment of Wastes, Part I, Section 300, amended October 15, 1999 7 DE Admin. Code 7103 Section 3.0]
5.22.3.2 It is the intent of the DNREC to require that solid waste handling and disposal be conducted in a manner and under conditions which will eliminate the dangerous and deleterious effects of improper solid waste handling and disposal upon the environment and upon human health, safety, and welfare. [Delaware Regulations Governing Solid Waste, Section 1, amended August 21, 2004 7 DE Admin. Code 1301 Section 1.0]
5.22.3.3 Sanitary and industrial landfill facilities, including those that dispose dry waste, shall be located only in areas where the potential for degradation of the quality of air, land and water is minimal. [Delaware Regulations Governing Solid Waste, Sections 5.1.1 and 6.1.1, amended August 21, 2004 7 DE Admin. Code 1301 subsections 5.1.1, 6.1.1]
5.22.3.4 All sanitary and industrial landfill facilities, including those that dispose dry waste, shall be constructed in a manner that adheres to strict environmental safeguards. [Delaware Regulations Governing Solid Waste, Sections 5.1.2 and 6.1.2, amended August 21, 2004 7 DE Admin. Code 1301 subsections 5.1.2, 6.1.2]
5.22.3.5.2 In an area that may cause or contribute to the degradation of any state State or federal wetland (unless the owner can demonstrate to the Department that there is no impact to any regulated wetlands on site or any impact will be mitigated).
5.22.3.5.4 Within one mile of any state State or federal wildlife refuge, wildlife area, or park, unless specifically exempted from this requirement by the Department.
5.22.3.5.10 In areas where valuable aquifers would be threatened by contaminant releases (unless viable alternatives have been dismissed and stringent design measures have been incorporated to minimize the possibility and magnitude of releases). [Delaware Regulations Governing Solid Waste, Sections 5. 1.2 and 6.1.2, amended August 21, 2004; 7 DE Admin. Code 1301 subsection 5.1.4; 7 Del.C. Ch. 60, Subch. VI]
5.22.3.6.2 In an area that may cause or contribute to the degradation of any state State or federal wetland (unless the owner can demonstrate to the Department that there is no impact to regulated wetlands on site or any impact will be mitigated).
5.22.3.6.3 Within one mile of any state State or federal wildlife refuge, wildlife area, or park, unless specifically exempted from this requirement by the DNREC.
5.22.3.6.5 Within the wellhead protection area of a public water supply well or well field. [State of Delaware Regulations Governing Solid Waste, Sections 6.1.3, amended August 21, 2004; 7 DE Admin. Code 1301 subsection 6.1.3; 7 Del.C. Ch. 60, Subch VI and Ch 66]
5.22.3.7 An impermeable liner shall be provided at all sanitary and industrial landfills to restrict the migration of leachate from the landfill and to prevent contamination of the underlying ground water [Delaware Regulations Governing Solid Waste, Sections 5.3.1 and 6.3.1, amended August 21, 2004 7 DE Admin. Code 1301 subsections 5.3.1.1, 6.3.1.1]
5.22.3.8 All sanitary and industrial landfills, including those that dispose dry waste, shall be designed and constructed to include a leachate collection system, a leachate treatment and disposal system, and a leachate monitoring system [Delaware Regulations Governing Solid Waste, Sections 5.4.1 and 6.4.1, amended August 21, 2004 7 DE Admin. Code 1301 subsections 5.4.1.1, 6.4.1.1]
5.22.3.9 Resource recovery facilities shall be located only in areas where the potential for degradation of the quality of air, land, and water is minimal. [Delaware Regulations Governing Solid Waste, Section 9.2.1, amended August 21, 2004 7 DE Admin. Code 1301 subsection 9.2.1]
5.22.3.10.3 Within 1,000 feet of any state State or federal wildlife refuge, wildlife area, or park; or
5.22.3.10.4 So as to be in conflict with any locally adopted land use plan or zoning requirement [Delaware Regulations Governing Solid Waste, Sections 9.2.2, amended August 21, 2004 7 DE Admin. Code 1301 subsection 9.2.2]
5.22.3.11 In addition, any facility that processes municipal solid waste shall not be located within 10,000 feet of any airport currently used by turbojet aircraft or 5,000 feet of any airport runway currently used by piston-type aircraft, unless a waiver is granted by the Federal Aviation Administration. [Delaware Regulations Governing Solid Waste, Sections 9.2.2, amended August 21, 2004 7 DE Admin. Code 1301 subsection 9.2.2.4]
5.22.3.12 Transfer stations shall be located only in areas where the potential for degradation of the quality of air, land, and water is minimal. [Delaware Regulations Governing Solid Waste, Sections 10.2.1, amended August 21, 2004 7 DE Admin. Code 1301 subsection 10.2.1]
5.22.3.13 Transfer stations shall be located adjacent to access roads capable of withstanding anticipated load limits. [Delaware Regulations Governing Solid Waste, Sections 10.2.2, amended August 21, 2004 7 DE Admin. Code 1301 subsection 10.2.2]
5.22.3.14.3 So as to be in conflict with any locally adopted land use plan or zoning requirement [Delaware Regulations Governing Solid Waste, Sections 10.2.3, amended August 21, 2004 7 DE Admin. Code 1301 subsection 10.2.3]
5.22.3.15 All transfer stations shall be designed and constructed to include a leachate collection and disposal system that will prevent leachate (including wastewater generated during normal operation such as washout and cleaning of equipment, trucks, and floors) from contaminating the soil, surface water, or groundwater. [Delaware Regulations Governing Solid Waste, Sections 10.4.1, amended August 21, 2004 7 DE Admin. Code 1301 subsection 10.4.1]
5.22.4.2 “Hazardous Wastes” means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed [7 Del.C. §6302(7)(8).]
5.22.4.4 No person shall generate, store, transport, treat or dispose of hazardous wastes in this State without reporting such activity to the DNREC [7 Del.C. §6304(a)(b); Delaware Regulations Governing the Location of Hazardous Waste Storage, Treatment, and Disposal Facilities, revised October 22, 1996]
5.22.4.5.10 Areas where groundwater under natural conditions could come into contact with the waste;
5.22.4.5.12 Areas within 500 feet of a fault that has experienced movement within the last 35,000 years (capable fault). [Delaware Regulations Governing the Location of Hazardous Waste Storage, Treatment, and Disposal Facilities, Sections 1and 3.1, revised October 22, 1996 7 DE Admin. Code 1370 Section 2.0 and subsection 3.1]
5.22.4.6.9 Wellhead protection areas. [Delaware Regulations Governing the Location of Hazardous Waste Storage, Treatment, and Disposal Facilities, Section 4.1.1, revised October 22, 1996 7 DE Admin. Code 1370 subsection 4.1]
5.22.4.7.3 Units that have permits by rule and/or approval from the Department to operate under an emergency administrative order. [Delaware Regulations Governing the Location of Hazardous Waste Storage, Treatment, and Disposal Facilities, Section 6.1 revised October 22, 1996 7 DE Admin. Code 1370 subsection 6.1]
5.22.5.3 Opportunities and incentives should be provided to encourage the remedy of contaminated facilities to yield economic revitalization and redevelopment within the state State. [7 Del.C. §9102(c)]
5.22.5.4.6 Any person who is responsible in any other manner for a release or imminent threat of release. [7 Del.C. §9105]
5.22.5.6 Where a release or imminent threat of release of hazardous substances requires a response action, potentially responsible parties that have been as noticed by the Department, shall conduct such response action as expeditiously as possible. Any approval by the Department of a response action shall occur through a settlement agreements deemed appropriate by the Department, with most actions requiring Departmental oversight. Similarly, actions conducted as part of the Voluntary Cleanup Program shall also be carried out in a manner approved by DNREC. [Delaware Regulations Governing Hazardous Substance Cleanup, Sections 6.3, 8.2, 13.1, 13.3, amended February, 2002 7 DE Admin. Code 1375 subsections 1.2, 1.5; Sections 2.0, 4.0]
5.22.6.1 The installation, operation, retrofitting and abandonment of underground storage tanks shall be strictly controlled and monitored to prevent leaks, and/or detect them at the earliest possible stage minimize further degradation of groundwater.” [Delaware Regulations Governing Underground Storage Tank Systems, Part A Section 1.1.2, revised January 11, 2008 7 DE Admin. Code 1351 Part A subsection 1.1.2]
5.22.6.2.7 Storage tank situated in an underground area (such as basement, cellar, mineworking drift, shaft or tunnel) if the storage tank is situated upon or above the surface of the floor. [Delaware Regulations Governing Underground Storage Tank Systems, Part A, Sect. 2, revised January 11, 2008; 7 DE Admin. Code 1351 Part A Section 2.0; 7 Del.C. §7402(20)(26)]
5.22.6.3.5 Any mixture of the foregoing subsections 5.22.6.3.1 through 5.22.6.3.4. [Delaware Regulations Governing Underground Storage Tank Systems, Part A, Section 2, revised January 11, 2008 7 DE Admin. Code 1351 Part A Section 2.0]
5.22.6.4.2 UST systems containing heating oils of 1,100 gallons or less used for consumptive purposes on the premises where stored.
5.22.6.4.8 However, reports for these systems must still be submitted for test failures, release investigations, remedial actions and site closures. [Delaware Regulations Governing Underground Storage Tank Systems, Part A, Section 1.2 January 11, 2008 7 DE Admin. Code 1351 Part A subsection 1.2]
5.22.6.5.3 Is constructed or lined with material that is compatible with the stored substance [Delaware Regulations Governing Underground Storage Tank Systems, Part A, Section 1.3 revised January 11, 2008 7 DE Admin. Code 1351 Part A subsection 1.3]
5.22.6.6 Any person that owns or operates an underground storage tank system must register each underground storage tank system with the Department of Natural Resources and Environmental Control. [Delaware Regulations Governing Underground Storage Tank Systems, Part A, Section 4.1.1, revised January 11, 2008 7 DE Admin. Code 1351 Part A subsection 4.1.1]
5.22.6.7 Prior to the installation of any underground storage tank system a site survey must be initiated by the facility owner and operator. The pre-installation site survey must be conducted to determine the locations of nearby buildings, underground utilities and sewer lines. Private/public drinking water wells, rivers, streams, lakes, canals, and other environmentally sensitive locations shall be recorded and incorporated into the design of the underground storage tank system facility. [Delaware Regulations Governing Underground Storage Tank Systems, Part B, Section 1.2.1 and 1.2.2, revised January 11, 2008 7 DE Admin. Code 1351 Part B subsections 1.2.1, 1.2.2]
5.22.6.8.4 The method shall be capable of detecting the leak rate or quantity specified for precision tank testing, automatic tank gauging, line leak detectors, and line tightness testing methods specified in this section with a probability of detection of at least 0.95 and a probability of false alarm no greater than 0.05. [Delaware Regulations Governing Underground Storage Tank Systems, Part B Section 1.9, Part C Section 1.9 and Part D Section 1.9 revised January 11, 2008 7 DE Admin. Code 1351 Part B subsection 1.9, Part C subsection 1.9, Part D subsection 1.9]
5.22.6.9.3 The permanent removal or closure in place requirements including applicable hydrogeologic investigation and remedial action requirements. [Delaware Regulations Governing Underground Storage Tank Systems, Part B, Section 2.34.2, revised January 11, 2008 7 DE Admin. Code 1351 Part B subsection 2.34.2]
5.22.6.10 The Department reserves the right to require secondary containment or equivalent protection for underground storage tank system installations where aquifers underlying the UST facility are determined to need such protection, or where groundwater below the UST facility is within a well head protection area, or where groundwater is susceptible to contamination in order to protect the safety, health, welfare and/or environment of the State. [Delaware Regulations Governing Underground Storage Tank Systems, Part B, Section 1.4.1, revised January 11, 2008 7 DE Admin. Code 1351 Part B subsection 1.4.1]
5.22.6.11 Owners and Operators shall ensure that all UST Systems storing heating oil (>1,100 gallons), regulated substances, hazardous substances, shall be designed, constructed, installed and operated in accordance with manufacturer's specifications, and accepted engineering practices and procedures; and in a manner which will prevent releases of regulated Substances to the ground waters, surface waters or soils of the State due to corrosion, structural failure, spills and overfills for the operational life of the underground storage tank system. [Delaware Regulations Governing Underground Storage Tank Systems, Part B, Section 1.1, Part C, Section 1.1 and Part D, section 1. 1 revised January 11, 2008 7 DE Admin. Code 1351 Part B subsection 1.1, Part C subsection 1.1, and Part D subsection 1.1]
5.22.6.12 Owners and Operators of UST Systems shall demonstrate financial responsibility for taking corrective action and for compensating third parties for Bodily Injury and Property Damage caused by Accidental Releases from the operation of UST Systems. [Delaware Regulations Governing Underground Storage Tank Systems, Part F, Section 1.3.1, revised January 11, 2008 7 DE Admin. Code 1351 Part F subsection 1.3]
5.22.6.13 “Hazardous Substances UST System” means an underground storage tank system that contains a hazardous substance defined in Section 101(14) of the CERCLA (but not including any substance regulated as a hazardous waste under RCRA Subtitle C) or any mixture of such substances and petroleum, and which is not a petroleum UST system. [Delaware Regulations Governing Underground Storage Tank Systems, Part A, Section 2 - Definitions, revised January 11, 2008 7 DE Admin. Code 1351 Part A Section 2.0]
