DEPARTMENT OF AGRICULTURE
Delaware Forest Service
PROPOSED
PUBLIC NOTICE
401 Forest Service Erosion and Sedimentation Regulations
Summary
The Delaware Forest Service proposes to amend its Regulations adopted in accordance with Title 3, Chapter 10. The purpose of the proposed regulations is to clarify the limitations regarding the use of the Erosion & Sediment Control Permit, eliminate outdated references, and make minor grammatical changes. The recommended change to 2.0 deletes an outdated document number reference to the Delaware Forestry's Best Management Practices Manual. The recommended changes to 3.0 include definitions for clarity and make minor grammatical changes for consistency with other regulations. The recommended changes to 5.1, 5.5, and 5.10 expand the notice period required for silvicultural operations and the time period within which the Delaware Forest Service must decide such applications to allow the Delaware Forest Service adequate time to cross check permits with other agencies to make better decisions regarding permit approvals or denial. The remaining recommended changes to 5.0 delete outdated contact information and make minor grammatical changes for clarity and consistency with other regulations. The recommended changes to 6.1 and 6.3 clarify the limitations regarding the use of the Erosion & Sediment Control Permit. Finally, the recommended change to 7.6 clarifies the time period within which the Forest Administrator may agree to engage in an informal conference with a landowner and operator prior to referring noncompliance with a Special Order to Superior Court. Other regulations issued by the Delaware Forest Service are not affected by this proposal. The Delaware Forest Service is issuing these proposed regulations in accordance with Title 3 of the Delaware Code. This notice is issued pursuant to the requirements of Chapter 101 of Title 29 of the Delaware Code.
Comments
A copy of the proposed regulations is being published in the August 1, 2024 edition of the Delaware Register of Regulations. A copy is also on file in the office of the Delaware Department of Agriculture, Forest Service, 2320 South Dupont Highway Dover, Delaware 19901 and is available for inspection during regular office hours. Copies are also published online at the Register of Regulations website: https://regulations.delaware.gov/register/current_issue.shtml.
Interested parties may offer written comments on the proposed regulations or submit written suggestions, data, briefs or other materials to the Delaware Forest Service at the above address as to whether these proposed regulations should be adopted, rejected or modified. Pursuant to 29 Del.C. § 10118(a), public comments must be received on or before September 3, 2024. Written materials submitted will be available for inspection at the above address.
401 Forest Service Erosion and Sedimentation Regulations
These regulations are promulgated under the authority of Section 1011 of Title 3 of the Delaware Code Delaware Code.
The purpose of these amendments to the Forest Service’s Erosion and Sedimentation Control regulations this regulation is to streamline the process for responding to potential or existing water quality problems and to establish an enforcement scheme for dealing with operators who do not file the proper permits prior to commencing a timber harvest. These rules and regulations apply This regulation applies to silvicultural operations, as defined, being conducted on private, state, and federal lands within the State of Delaware, unless otherwise stated in the regulations this regulation. The intent of these rules and regulations In addition, this regulation is to ensure that silvicultural activities do not cause erosion and sedimentation to Delaware's waters. The Delaware Forest Service has determined that timber harvests and shearing and piling are the two 2 silvicultural activities that pose the greatest potential for producing erosion and sedimentation. Therefore a notification system is required for these two 2 activities. Other silvicultural activities, such as but not limited to, root raking, chemical application, installation and maintenance of firebreaks, do not require prior notification but operators are to follow best management practices (BMPs) as outlined in Delaware's Forestry BMP Manual (DE Dept. of Ag. Document #65-01-04/95/09/01) Manual.
The following words and terms, when used in this regulation, shall have the following meaning:
"Agricultural lands" means farmlands and forestlands.
"Agricultural use" means all forms of farming, including agriculture, horticulture, aquaculture, silviculture, and activities devoted to the production for sale of food and other products useful to humans which are grown, raised, or harvested on lands and waters.
“Acceptable Sediment Control and Stormwater Management Techniques” are equivalent/synonymous to/with sediment control stormwater management techniques" means both erosion and sediment control measures and forestry Best Management Practices (BMP).
“Business Days” are defined as days" means any day Monday through Friday.
“Buyer” is defined as “any means any individual or firm that regularly purchases standing trees for harvest by himself or herself or a subcontractor.” the individual or subcontractor.
“Department” is means the Delaware Department of Agriculture.
“DFS” is means the Delaware Forest Service
“DNREC” is means the Delaware Department of Natural Resources and Environmental Control.
“Forest Management Activities” are herein defined as management activities" means practices, techniques techniques, or activities which are designed for purpose of conserving, protecting protecting, and enhancing the land as forest land over the long-term. Forest management includes but is not limited to perpetuation of tree species; improvement of trees’ and forest growth, health health, and vigor; protection from fire, and insects and diseases.
“Forester” is defined as means a Forester, Senior Forester, Regional Forester, Assistant Forestry Administrator, or Forestry Administrator currently employed by the Delaware Forest Service.
“Intermittent Stream with a Well-Defined Channel” is a defined as stream with a well defined channel" means a water body which is naturally occurring, and maintains a seasonal flow of water under typical climatic conditions.
"Landowner" means any individual, combination of individuals, partnership, corporation, foundation, non-governmental agency, or association that holds the legal title to the property or land or possessing the right to contract for the cutting operation therein.
“Normal Rainfall” is rainfall” means an inch of liquid precipitation in a 24 hour period.
“Open Water Body” is water body” means a bay, lake, or pond where water is present throughout the year. This does not include man-made water channels such as ditches.
“Operator” is defined as “any means any person that operates or exercises control over any silvicultural activity.” activity.
“Perennial Stream” is defined as stream” means a water body with a well-defined channel which maintains a continuous flow of water throughout the year under typical climatic conditions. This does not include man-made water channels such as ditches.
“Permittee” is defined as “any means any individual or firm that has a Delaware Erosion and Sediment Law Notification Form and Permit that has been approved by the DFS.” DFS.
“Pollution” is defined as the "alteration means the alteration of the physical, chemical or biological properties of any waters of the State resulting from sediment deposition that will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety or welfare or the health of animals, fish or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future source as a public water supply; or unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses." uses.
“Secretary” is means the Delaware Secretary of Agriculture
“Shearing and Piling” is defined as piling” means preparing a site for reforestation by using a crawler tractor with a shear blade, commonly known as a “K-G blade” to cut off at ground level any trees or shrubs that remain after a timber harvest. This brush and debris is then piled in rows by a crawler tractor with a root raking blade. The spacing between the rows of debris is determined on site, and tree seedlings are planted between the rows.
“Silvicultural Activity” is defined as "any activity” means any forest management activity, including but not limited to harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation." reforestation.
"Streamside Management Zone” or “SMZ" means an area of 50 feet or more on both sides of the banks of perennial and intermittent streams and bodies of open water where extra precaution is used in carrying out forest practices in order to protect bank edges and water quality.
4.1 The intent of the Rules and Regulations this regulation is to establish a system of notification and referral that quickly and easily provides the Forestry Administrator with the information needed to administer Delaware’s Forestry Practices E & S Law without causing undue hardship on operators and landowners.
4.2 The goals of these Rules and Regulations this regulation are:
4.1 4.2.1 to To protect the waters of the State from erosion and sedimentation resulting from silvicultural activities; and
4.2 4.2.2 to To provide the Forestry Administrator the authority to:
4.2.1 4.2.2.1 track Track the use and effectiveness of Forestry BMPs, BMPs;
4.2.2 4.2.2.2 develop Develop close working relationships with forest operators and landowners through site visits, visits;
4.2.3 4.2.2.3 permit Permit the Delaware Forest Service to rapidly address inquiries from citizens, agencies, and other organizations concerning ongoing silvicultural operations, operations; and
4.2.4 document Document the positive benefits of properly managed forests.
5.1 Operators and buyers will provide written notification to Delaware Forest Service (DFS) at least five (5) 10 business days prior to the initiation of covered silvicultural operations greater than or equal to 43,560 square feet of area (1 acre).
5.2 Operators and buyers will notify the Department by completing and signing Delaware’s Forestry Practices Erosion and Sediment Law Notification Form and Permit, as provided by the Delaware Forest Service (DFS). No covered silvicultural activity will start prior to the date that an Erosion & Sediment Control Permit is approved.
5.3 This notification form will include, but is not limited to:
5.3.1 the The forest land acreage and type of covered silvicultural activity planned, planned;
5.3.2 statement Statement that land will remain under forest management, management;
5.3.3 signed Signed statements stating the operators’ intent to use forestry BMPs to prevent pollution, pollution;
5.3.4 specific Specific Forestry BMPs to be used on the site, site;
5.3.5 maps Maps of the site, including location of any water bodies, streams, ponds, Streamside Management Zones, roads, stream crossings, landings, and other pertinent site specific information as appropriate, and appropriate;
5.3.6 estimated Estimated start and completion dates dates;
5.3.7 county County tax parcel identification number number; and
5.3.8 If Whether the property is covered by the Delaware Seed Tree Law and, if so, how the owner intends to reforest the property.
5.4 Notification forms will be sent to the local Delaware Forest Service office for the county in which the activity is to occur. Technical assistance, forms, topographic maps, and other assistance are available at these offices as well.
5.4.1 Kent County:
Forestry Administrator
Delaware Department of Agriculture Forest Service
2320 South Dupont Highway
Dover, DE 19901
(302) 698-4500 In-state 1-800-282-8685
FAX (302) 697-6245
Kent County Forester
Taber State Forest
1953 Burrsville Road
Harrington, DE 19952
(302) 349-0938
FAX (302) 349-0937
5.4.2 Sussex County:
Southern Regional Forester
Redden State Forest
18074 Redden Forest Drive
Georgetown, DE 19947
(302) 856-2893
FAX (302) 856-5039
5.4.3 New Castle County:
Northern Regional Forester
Blackbird State Forest
502 Blackbird Forest Road
Smyrna, DE 19977
(302) 653-6505
FAX (302) 653-2869
5.5 The Delaware Forest Service will approve, approve with modifications, or deny all applications within three (3) working 10 business days of their receipt. In cases where denial of the application is issued, the Delaware Forest Service will provide technical assistance to the landowner, buyer and/or buyer, or operator to develop modification(s) modifications necessary to bring the application into compliance.
5.6 The operator on the site is responsible for following BMPs as indicated on the Erosion and Sediment Law Notification Form and Permit until a forester has made a final inspection of the site and issued a final inspection report on form BMP-02 BMP Site Inspection Form.
5.7 A copy of the approved Erosion and Sediment Law Notification Form and Permit shall be kept on the site at all times during the harvest operation, operation and shown on demand to any forester or DNREC Environmental Protection Officer.
5.8 The permittee/operator shall, following the approval of the Delaware's Forestry Practices Erosion and Sediment Law Notification Form and Permit, provide the DFS with the following notifications of intent:
5.8.1 starting Starting a permitted harvest operation — not less than two (2) 2 days prior to desired start date.
5.8.2 completion Completion of the harvest operation — not less than one (1) 1 day prior to completion.
5.8.3 returning Returning to a site if the operator has vacated the site for weather-related or similar reasons — not less than one (1) 1 day prior to return.
5.9 Special Consideration - Streamside Management Zones:
5.9.1 All open water bodies, perennial streams, intermittent streams with a well-defined channel, and streams that have been hydrologically modified by dredging or straightening, and have no established maintenance right-of-way, shall 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 (Title 3, Chapter 10, Subchapter V 3 Del.C. Ch. 10, Subchapter V) and is located on slopes of less than three (3) percent 3%.
5.9.2 A Streamside Management Zone shall not be required on any water bodies not specified in Section subsection 5.9.1 as long as Best Management Practices are followed to prevent the movement of sediment and debris into the ditch. The alteration of any berm or bank, structure, or control inlet culvert in or adjacent to tax ditches, as defined by Delaware Code Delaware Code Title 7, Chapter 41, is prohibited unless written approval from both the appropriate tax ditch managers and the Department of Natural Resources and Environmental Control (DNREC), Division of Soil and Water Conservation, Drainage Section is obtained. The use of a tax ditch right-of-way, as defined by Delaware Code Title 7, Chapter 41, as a skid trail is prohibited.
5.9.3 The minimum width for an SMZ is 50 feet, measured in lineal feet perpendicular from the edge (top of the bank or channel) on either side of a qualifying water body as defined in subsection 5.9.1. Listed below in this subsection are the minimum SMZ widths based on slope. Slope shall be defined as average slope of 100 contiguous feet measured on a horizontal plane perpendicular to the water body. All slope measurements shall begin at the crest of the water body, thus measurements adjacent to channelized streams will begin at top of the channel. SMZ width is measured in linear feet perpendicular from the perimeter of the water body. For tidal waters, the high water line should be used as the perimeter. The SMZ must be plainly designated with surveyors ribbon or durable paint before before submitting the permit application.
Minimum Streamside Management Zone Width
Percent Slope
0-10% 11- 20% 21- 45%
Horizontal distance 50 feet 75 feet 100 feet
5.9.4 Within a Streamside Management Zone, at least sixty (60) 60 square feet of basal area per acre of trees well distributed throughout the area shall be retained, or at least sixty (60) percent 60% of the forestry. These trees should be equally divided among diameter classes. The landowner may desire to leave up to eighty (80) percent 80% of the crown cover to provide shading for streams.
5.9.5 Felling trees across a perennial or intermittent stream, or hydrologically modified channel, and dragging any part of the tree over or through the stream channel is not permitted. Any occurrence shall result in the operator making immediate repairs to the waterway bank. All trees will be felled away from the SMZ to avoid depositing logging debris in the SMZ.
5.9.6 The remainder of the specifications for Streamside Management Zones is found in Delaware’s Forestry Best Management Practices Manual, September 1995, Document Control No. 65-01-04/95/09/01. Copies of this manual and current topographic maps are available at all Delaware Forest Service offices. Delaware’s Forestry Best Management Practices Manual, September 1995, Document Control No. 65-01-04/95/09/01. Copies of this manual and current topographic maps are available at all Delaware Forest Service offices.
5.10 Special Consideration - Multiple Silvicultural Practices:
5.10.1 If more than one 1 silvicultural activity is covered by an approved Forestry Practices E & S permit, the landowner will notify the local Delaware Forest Service office at least five (5) working 10 business days prior to the initiation of the subsequent operation. For example, if an E & S permit is approved for the harvesting operation and shearing and piling, the local DFS office must be notified five (5) 10 business days before starting the shearing and piling operation.
5.11 Special Consideration - Adverse Weather Conditions:
5.11.1 The notification form, which becomes the E&S permit once approved, requires projected start and completion dates. Should environmental conditions create circumstances which either delay or accelerate the projected start or completion of operations, the operator or landowner will verbally notify the local DDAFS office. One example of such a circumstance is excessive rain causing saturated soils during forest harvest operations; as a result to comply with BMPs, operations are terminated with plans to resume the operations in the drier summer months.
6.1 Timber harvesting is the primary silvicultural activity which enables landowners to initiate change in the land use from forest land to another land use, such as agricultural cropland, residential development, and industrial or commercial development. Delaware’s Forestry Practices E & S rules and regulations are designed for silvicultural activities where the land is to remain under forested land use or agricultural use for a minimum of 10 years.
6.2 However, should the landowner choose to change the land use from forested lands to another land use, the new land treatment activity would no longer fall within the jurisdiction of the Delaware Forest Service. Land clearing activities are regulated under the Department of Natural Resources and Environmental Control’s (DNREC) Sediment and Stormwater Management law. For conversion to agricultural cropland use, the designated agencies are the local Conservation Districts in each county. For conversion to other non-forest uses, the DNREC Division of Soil and Water Conservation, Sediment and Stormwater Section has regulatory authority. Thus, the owner or operator will be required to receive approval from the appropriate agency prior to initiating any activity on the site.
6.3 Therefore, as enumerated above, a land use intent declaration the Land Use Declaration of Intent Form is required to receive approval under this law. However, in cases where the land use is to change, the Delaware Forest Service, in accordance with a Memorandum of Understanding with DNREC Division of Soil and Water Conservation, will notify in writing the appropriate agency(ies) agency of the landowner’s intention and provide a copy of this correspondence to the landowner.
6.4 These rules and regulations This regulation as well as those of the Stormwater and Sediment law relate to erosion and sedimentation control. Any local, county, state, or federal laws which regulate land use changes, such as wetlands conversion, should be investigated thoroughly prior to initiating conversion of forest land to other uses.
7.1 To establish an inspection procedure which reinforces and compliments the regulatory authorities contained within Subchapter VI, the Delaware Forest Service has established the following framework. framework:
7.1.1 Informal field visits visits.
7.1.2 Formal hearing hearing.
7.1.3 Superior Court.
7.2 If at any time during the enforcement process any water quality problem is corrected, all proceedings will be terminated, and a letter will be provided to the landowner and operator reflecting compliance with the law.
7.3 Informal Field Visits
7.3.1 The Forester will visit a tract, perform a BMP inspection, and complete a BMP inspection form, a copy of which will be provided to the operator and landowner. During the course of this inspection, the field person will determine the status of the effectiveness of BMPs in protecting water quality and record this determination on the inspection form.
7.3.2 If, during a routine inspection of a harvest operation, it is discovered that the operator on the site does not have an approved harvest permit for the operation, the Forester will, at his or her the Forester's discretion, issue a verbal or written warning to the operator. The Forester will immediately assist the operator in completing a permit form to bring the operation into compliance with the E & S rules and regulations. If failure to have an approved permit is a second offense, the Forester can, at his or her the Forester's discretion, halt all harvesting operations until a permit has been completed and approved. If more than two 2 offenses of this nature within a 12 month period, are on record for the operator/buyer, a fine, not to exceed $2,000.00 $2,000 may be levied as specified in Title 3, Chapter 10, Subchapter VI, Paragraph 1077 3 Del.C. §1077.
7.3.3 On the BMP inspection form, three categories of water quality classifications will be used: 1) no Water Quality (WQ) problem; 2) potential WQ problem; and 3) severe WQ problem No Water Quality (WQ) problem; potential WQ problem; and severe WQ problem. A potential WQ problem is defined as a typical problem that would cause excessive sedimentation and erosion during a normal rainfall. Examples may include undersized culverts and improper log road or deck stabilization on highly erodible soils. A severe WQ problem is defined as any silvicultural activity which is causing sediment deposition or will immediately create serious sediment deposition in a rainfall event.
7.3.4 If no WQ problem exists, the landowner and operator are notified on site, if possible, and in writing within three (3) 3 business days following the inspection.
7.3.5 If a potential WQ problem exists on an initial field visit, the Forester will note the problem on the BMP inspection form, including written directions to alleviate the potential problem, to the operator and landowner, and a time limitation of up to five (5) 5 business days to correct the problem. The Forester will notify his/her immediate supervisor of the existence of a potential WQ problem. When the time limitation specified in the recommendation for a potential WQ problem has elapsed, the Forester will return for a second visit. If the problem persists with no extenuating circumstances such as bad weather, all operations will be halted until specified corrective actions have been made to the satisfaction of the Forester.
7.3.6 If a severe WQ problem exists, such as skidding logs across a stream or ditch with no bridge, the Forester will cause all operations to cease immediately, issue a written warning containing instructions how to immediately correct the problem.
7.3.7 In the event that an operator vacates a harvest site and WQ problems have not been corrected or resolved, the following actions may be taken at the discretion of the Forestry Administrator. 1) No further E & S permits will be issued for that permittee (operator), nor may that operator legally operate under any existing DFS E & S permits, until all corrections have been made to the satisfaction of the DFS. 2) A fine, not to exceed $2,000.00 $2,000 may be levied as specified in Title 3, Chapter 10, Subchapter VI, Paragraph 1077 3 Del.C. §1077.
7.4 Formal Hearing
7.4.1 If the parties cannot agree to corrective actions as determined by DFS, a formal hearing will be convened and conducted in accordance with Title 29 Chapter 101 of the Delaware Code, the Administrative Procedures Act (APA). All silvicultural operations on the site will cease until the results of the hearing are known.
7.4.2 Twenty (20) days prior to the hearing, formal notice will be given to the parties and such notice will contain the following information:
7.4.2.1 A description of the subject matter of the proceedings;
7.4.2.2 Notice of the opportunity to proceed with informal fact-finding procedures (a second informal conference) and of the date by which this election must be made;
7.4.2.3 The date, time, and place the formal hearing will be held if informal fact-finding is not elected;
7.4.2.4 Citation to the law or regulation giving the DFS the authority to act;
7.4.2.5 Notice to parties of their right to present evidence, to be represented by counsel, and to appear personally or by other representative, representative; and
7.4.2.6 Notice to the parties of the agency’s obligation to reach its decision based upon the evidence received.
7.4.3 The hearing may be conducted by the Secretary of Agriculture or his or her the Secretary’s designee.
7.4.4 Any party may request a pre-hearing conference, to discuss, among other things, issues in dispute, documents to be relied upon, witnesses to be called, and any procedural matters.
7.4.5 The proceedings shall be recorded to ensure accuracy. A recorded transcript will be taken by a court stenographer upon request and this procedure will be paid for by the requesting party. All testimony shall be taken under oath as administered by the hearing officer. The names and addresses of all interested parties present shall be noted on the official record of the hearing.
7.4.6 Any party may present any competent evidence in its behalf and request subpoenas for testimony or production of documents and other tangible evidence. Non-parties shall not present evidence.
7.4.7 Strict rules of evidence shall not apply. All evidence having probative value commonly accepted by a reasonably prudent person in the conduct of his or her their affairs shall be admitted. Objections to the admission or the exclusion of evidence shall be brief and shall state the ground for objection. Evidence which is plainly irrelevant, immaterial, insubstantial, cumulative, or unduly repetitive may be excluded.
7.4.8 The parties may be represented by counsel. The hearing shall open with a brief statement from each party of what such party intends to establish at the hearing.
7.4.9 Following opening statements, each party shall have an opportunity to produce evidence in support of such party’s position. The owner/operator shall produce evidence first followed by DFS. After initial testimony and cross-examination by the parties, any witness may be examined by the hearing officer. Following the presentation of the main case, the owner/operator shall have an opportunity to produce rebuttal evidence, subject to cross-examination. Following the presentation of the rebuttal evidence, DFS shall have an opportunity to present surrebuttal evidence, subject to cross-examination.
7.4.10 If no procedure is specifically prescribed by these Rules this regulation, the hearing officer may proceed in a manner not inconsistent with these Rules this regulation.
7.4.11 At the conclusion of the hearing, the Secretary of Agriculture or designee may issue a Special Order Special Order within twenty (20) 20 days from the date of the hearing. The Special Order shall describe evidence on which the Order was based. Upon issuance of a Special Order, the landowner and operator will implement specified corrective measures within a specified period of time.
7.5 Penalties Penalties.
7.5.1 Any owner or operator who violates, fails, or refuses to obey any Special Order may be assessed a civil penalty by the Forestry Administrator. Such penalty shall not be less than $200 or more than $2,000 for each violation. Each day of a continuing violation may be deemed a separate violation for purposes of assessing penalties.
7.6 Superior Court
7.6.1 If the Special Order has not been complied with, the Forestry Administrator may file a complaint in the Superior Court which has jurisdiction over all offenses under this statute. However, within three (3) working 3 business days of the inspection and prior to the filing of a complaint with the Superior Court, the Forestry Administrator may, at his or her the Forester's discretion, agree to engage in an informal conference process with the landowner and operator to discuss and resolve violations of the Special Order.
7.6.2 Any person who intentionally, knowingly, and after written notice to comply violates or refuses to comply with any notice issued by the DFS shall be fined not less than $500 or more than $10,000 for each offense. Such penalty may only be assessed after owner or operator has had the opportunity for a hearing as specified herein. Each day the violation continues shall constitute a separate offense.
