# 7 Del. Admin. Code § 2201: 7 DE Admin. Code 2201. Delaware Coastal Management Program Federal Consistency Policies and Procedures

> Delaware · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/STATE_DE_ADC_T7_2201

## Section

- **Citation:** 7 Del. Admin. Code § 2201
- **Heading:** 7 DE Admin. Code 2201. Delaware Coastal Management Program Federal Consistency Policies and Procedures
- **Jurisdiction:** Delaware
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Delaware Administrative Code / Title 7 Natural Resources and Environmental Control / 2000 Division of Climate, Coastal and Energy / 7 DE Admin. Code 2201

## Text

1.0 Delaware Coastal Management Program Summary
1.1 Forward
1.1.1 The Coastal Zone Management Act (CZMA) was signed in 1972 (P.L. 92-583). It has since been amended, 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. 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 307 of the CZMA provides states with approved coastal management programs the authority to review federal activities (agency actions, licenses or permits, assistance, and Outer Continental Shelf exploration) for consistency with State coastal management policies.
1.1.4 The purpose of this 2018 Policy Document is to revise and update the 2011 Policy Document. Many of Delaware's environmental regulations have been updated to comply with the Delaware Administrative Code Drafting and Style Manual since 2011. This update reflects those changes.
1.2 Routine Program Change
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 RPCs
ply with the Delaware Administrative Code Drafting and Style Manual since 2011. This update reflects those changes.
1.2 Routine Program Change
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 RPCs. The DCMP submitted the current modifications to NOAA for review and determined this to be an administrative update.
1.3 Delaware’s Coastal Management Area
Delaware has defined its Coastal Management Area as the entire State for the purposes of the federally approved coastal management program.
1.4 Delaware Coastal Zone Act and The Delaware 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 Zone of Delaware. The State Coastal 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 Strip require a permit from the DNREC.
22 DE Reg. 407 (11/01/18)
2.0 Federal Consistency
2.1 Introduction
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)
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.
Consistency reviews enable the State to:
Plan for and manage impacts resulting from a federal project, permit or program;
Provide for analysis of the effects of federal actions;
Identify federal actions that could adversely affect coastal resources, general land use patterns, or public investment requirements; and
Provide for an examination of federal actions in the context of the goals, objectives, and policy network contained in the DCMP.
2.1.3 Consistency offers State agencies, through the DCMP within the Department of Natural Resources and Environmental Control (DNREC), 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 Applicability of Consistency Provisions. Sections 307(c) and (d) of the CZMA provide that:
2.2.1 Federal activities and development projects affecting any land or water use or natural resource of Delaware's coastal zone management area shall be conducted consistently with the DCMP to the maximum extent practicable
d of federal grants, loans, subsidies, insurance, or other forms of federal aid.
2.2 Applicability of Consistency Provisions. Sections 307(c) and (d) of the CZMA provide that:
2.2.1 Federal activities and development projects affecting any land or water use or natural resource of Delaware's coastal zone management area shall be conducted consistently with the DCMP to the maximum extent practicable.
2.2.2 No federal license or permit shall be granted until: a) the DCMP has concurred with the applicant's certification; 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 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 as overridden by the Secretary of Commerce. (See subsection 3.5); and
2.2.4 Federal agencies shall not approve proposed assistance projects to state and local governments that affect the coastal management area and are inconsistent with the DCMP, except upon an override by the Secretary of Commerce. (See subsection 3.5)
22 DE Reg. 407 (11/01/18)
3.0 Procedures for Federal Consistency Reviews
Applicants should address their Consistency Determinations or Certifications and all supporting documentation (see relevant sections below) to:
Kimberly Cole, Administrator, Delaware Coastal Management Program
All submissions should be made electronically to DNREC_FederalConsistency@state.de.us
Hard copy submission are not necessary, but can be made to:
Delaware Coastal Management Program
Delaware Department of Natural Resources and Environmental Control
100 W
rtifications and all supporting documentation (see relevant sections below) to:
Kimberly Cole, Administrator, Delaware Coastal Management Program
All submissions should be made electronically to DNREC_FederalConsistency@state.de.us
Hard copy submission are not necessary, but can be made to:
Delaware Coastal Management Program
Delaware Department of Natural Resources and Environmental Control
100 W. Water Street, Suite 7B
Dover, Delaware 19904
3.1 Federal Agency Activities and Development Projects
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 Notification
Federal agencies must provide the DCMP, at the earliest practicable time, with consistency determinations for all proposed federally conducted or supported activities directly or indirectly affecting the coastal zone management area. Such consistency determinations must be received at least 90 days before the federal activity or development project reaches a final decision stage likely to restrict the consideration of alternative approaches or measures. In a limited number of cases, federal agencies must also submit a consistency determination for ongoing activities initiated prior to approval of the DCMP. [15 CFR § 930.36]
Pursuant to 15 CFR §930.39, the consistency determination from the federal agency must contain:
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
of cases, federal agencies must also submit a consistency determination for ongoing activities initiated prior to approval of the DCMP. [15 CFR § 930.36]
Pursuant to 15 CFR §930.39, the consistency determination from the federal agency must contain:
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.
3.1.1.2 An evaluation of the relevant policies of the DCMP.
3.1.1.3 A detailed description of the proposed action, its associated facilities and their combined coastal zone effects.
3.1.1.4 Relevant data and information, including time schedules, sufficient to support the federal consistency determination.
3.1.2 State Review
Pursuant to 15 CFR §930.41, the DCMP shall inform the federal agency of its agreement or disagreement with the federal agency's consistency determination at the earliest practicable time. The response time will not exceed 60 days following receipt of federal notification unless an extension has been granted.
Upon receipt of a federal consistency determination the DCMP will notify affected network program partners. The DCMP shall be responsible for coordinating the review, compiling comments, and responding to the federal agency.
3.1.2.1 Public Notice
The State will also provide adequate public notice of the proposed federal action. The public notice process is as follows:
3.1.2.1.1 The DCMP will give at least 20 days public notice prior to response to consistency determination. In the event that a State permit is required for the same activity, the DCMP will coordinate their review with the State permitting agencies
ency.
3.1.2.1 Public Notice
The State will also provide adequate public notice of the proposed federal action. The public notice process is as follows:
3.1.2.1.1 The DCMP will give at least 20 days public notice prior to response to consistency determination. In the event that a State permit is required for the same activity, the DCMP will coordinate their review with the State permitting agencies.
3.1.2.1.2 The notice shall describe the subject matter of the determination review, including a summary of the proposed activity and an announcement of the availability of consistency determination and accompanying public information.
3.1.2.1.3 The notice shall request interested parties to comment on the proposed activity.
3.1.2.1.4 The notice shall be published in a minimum of two Delaware newspapers of general circulation.
3.1.2.1.5 Public notice may be expanded in proportion to the degree of likely public interest involved, the substantial commitment of or impact on coastal resources, the complexity or controversy of the proposal, or for other good reasons.
3.1.2.1.6 As needed, a notice shall be provided indicating the date, time, and place of any hearing to be held by the DCMP.
3.1.3 DCMP Objection to a Consistency Determination
In the event the DCMP objects to the federal agency's consistency determination, a notification will be sent to the affected federal agency and to the Director of the Office of Coastal Management (OCM), National Oceanic and Atmospheric Administration (NOAA).
3.1.3.1 Notification of Objection. The notification shall:
3.1.3.1.1 Describe how the proposed activity is inconsistent with specific enforceable policies of the management program;
3.1.3.1.2 Identify alternative measures, where feasible, which would make the proposed action consistent; and
3.1.3.1.3 Describe the nature and necessity of additional information that may be required for making a consistency determination if the objection is based on insufficient information
be how the proposed activity is inconsistent with specific enforceable policies of the management program;
3.1.3.1.2 Identify alternative measures, where feasible, which would make the proposed action consistent; and
3.1.3.1.3 Describe the nature and necessity of additional information that may be required for making a consistency determination if the objection is based on insufficient information.
3.1.3.2 Mediation
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 OCM. Both processes are voluntary and non-binding.
3.1.4 Modification of Consistency Determination Process
The DCMP recognizes the need for flexibility in this process, such as shorter review time, special consistency agreements, and waivers in the interests of national security or overriding national interest. The DCMP, through direct negotiations with federal agencies, may agree to limit the applicability of consistency review based upon the scope, size, location or other characteristics of the proposed federal action.
3.2 Federal Licenses and Permits
Activities requiring a federal license or permit are subject to consistency when the activities, whether in or outside the coastal zone, are likely to affect any land or water use or natural resource of Delaware's coastal zone management area. Applicants for federal licenses or permits must certify to the permitting federal agency and the DCMP that the proposed project will be conducted in a manner consistent with the enforceable policies of the DCMP
ubject to consistency when the activities, whether in or outside the coastal zone, are likely to affect any land or water use or natural resource of Delaware's coastal zone management area. Applicants for federal licenses or permits must certify to the permitting federal agency and the DCMP that the proposed project will be conducted in a manner consistent with the enforceable policies of the DCMP. Proposed activities subject to this section include those requiring federal authorizations, certifications, approvals, or other forms of permission granted by any federal agency to an applicant, except OCS leases and federal agencies permit applications for federal permits which are covered separately.
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 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.
The following procedures apply to federal licenses and permits:
3.2.1 Notification
Federal agencies are required to inform applicants for listed federal licenses and permits of the applicant's responsibility for notification to the State and submission of required information and a consistency certification. The notice and consistency certification shall comply with 15 CFR §930.57 and §930.58.
Applicants should consult with the DCMP at the earliest practicable time for assistance regarding the DCMP policies applicable to the proposed project and certification requirements
he applicant's responsibility for notification to the State and submission of required information and a consistency certification. The notice and consistency certification shall comply with 15 CFR §930.57 and §930.58.
Applicants should consult with the DCMP at the earliest practicable time for assistance regarding the DCMP policies applicable to the proposed project and certification requirements.
When satisfied that the proposed activity meets the federal consistency requirements, all applicants for federal licenses or permits subject to consistency shall provide in the application to the federal licensing or permitting agency a certification that the proposed activity complies with and will be conducted in a manner consistent with the State's approved management program. The applicant's consistency certification shall be in letter format and be accompanied by the necessary data and information. The consistency certification shall contain the following statement:
"The proposed activity complies with Delaware's approved coastal management program and will be conducted in a manner consistent with such program."
At the same time an application is submitted to the federal agency for a listed federal license or permit, the applicant shall transmit a copy of the application and consistency certification to the DCMP.
3.2.2 Necessary Data and Information. The applicant shall furnish the DCMP with necessary data and information along with the consistency certification. Such information and data shall include:
3.2.2.1 A detailed description of the proposed activity and its associated facilities. This description should be adequate to permit an assessment of their probable coastal zone effects. This includes, but is not limited to, a copy of the federal permit application package, maps, diagrams, technical data, etc
mation along with the consistency certification. Such information and data shall include:
3.2.2.1 A detailed description of the proposed activity and its associated facilities. This description should be adequate to permit an assessment of their probable coastal zone effects. This includes, but is not limited to, a copy of the federal permit application package, maps, diagrams, technical data, etc.
3.2.2.2 A brief assessment relating the probable coastal zone effects of the proposed project and its associated facilities on any land or water use or natural resource of the coastal zone to the relevant enforceable policies of the Delaware Coastal Management Program.
3.2.2.3 A brief set of findings, derived from the above assessment, indicating that the proposed activity, its associated facilities, and their effects are all consistent with the provisions of the DCMP.
3.2.2.4 Upon the applicant's request, the DCMP shall provide assistance for developing the assessment and findings described in subsections 3.3.2.2 and 3.3.2.3.
3.2.3 State Review
Pursuant to 15 CFR §930.60, State review of a federal license or permit application is initiated upon receipt of a complete consistency certification and the necessary data and information as specified in 15 CFR §930.57 and §930.58.
The State will also provide adequate public notice of the proposed federal permit or license. The public notice process is as follows:
3.2.3.1 Public Notice
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 permit is required for the same activity, the DCMP will coordinate their review with the State permitting agencies.
3.2.3.1.2 The notice shall describe the subject matter of the certification review, including a summary of the proposed activity and an announcement of the availability of consistency certification and accompanying public information.
3.2.3.1.3 The notice shall request interested parties to comment on the proposed activity
, the DCMP will coordinate their review with the State permitting agencies.
3.2.3.1.2 The notice shall describe the subject matter of the certification review, including a summary of the proposed activity and an announcement of the availability of consistency certification and accompanying public information.
3.2.3.1.3 The notice shall request interested parties to comment on the proposed activity.
3.2.3.1.4 The notice shall be published in a minimum of two Delaware newspapers of general circulation.
3.2.3.1.5 Public notice may be expanded in proportion to the degree of likely public interest involved, the substantial commitment of or impact on coastal resources, the complexity or controversy of the proposal, or for other good reasons.
3.2.3.1.6 As needed, a notice shall be provided indicating the date, time, and place of any hearing to be held by the DCMP.
3.2.3.2 Review Process
Review of consistency certifications and supporting documentation will be conducted by the DCMP in coordination with networked program partners. If a 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.
Consistency certifications will be reviewed to determine whether or not:
3.2.3.2.1 Sufficient information was submitted to determine consistency.
3.2.3.2.2 The proposed activity by itself, or in combination with existing projects, would cause a violation of a Delaware statute, regulation, or enforceable policy contained in the program, or result in an adverse impact of an unacceptable nature as defined by the management program.
3.2.3.2.3 Alternative measures exist, which if adopted by the applicant, would permit the proposed activity to be conducted in a manner consistent with the DCMP
n combination with existing projects, would cause a violation of a Delaware statute, regulation, or enforceable policy contained in the program, or result in an adverse impact of an unacceptable nature as defined by the management program.
3.2.3.2.3 Alternative measures exist, which if adopted by the applicant, would permit the proposed activity to be conducted in a manner consistent with the DCMP.
3.2.4 Concurrence with a Consistency Certification
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 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.
3.2.5 Federal Action Following Delaware Concurrence with a Consistency Certification
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 permits may still be required).
3.2.6 Federal Action Following Delaware Objection to a Consistency Certification
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 OCM. The objection shall:
3.2.6.1 Describe how the proposed action is inconsistent with the enforceable policies of the management program.
3.2.6.2 Identify alternative measures, where feasible, which would make the proposed action consistent
o 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 OCM. The objection shall:
3.2.6.1 Describe how the proposed action is inconsistent with the enforceable policies of the management program.
3.2.6.2 Identify alternative measures, where feasible, which would make the proposed action consistent.
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.
3.2.6.4 Describe the applicant's right to appeal to the Secretary of Commerce.
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 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.
3.2.7 Modification of Consistency Certification Process
Pursuant to 15 CFR §930.54 the DCMP, with assistance from federal agencies, may monitor other federal license and permit activities that may reasonably be expected to affect Delaware's coastal zone management area, but are not listed in the DCMP. Delaware intends to monitor unlisted federal license and permit activities through the A-95 Process/State and Regional Clearinghouses, NEPA environmental impact statements, and routine reporting of regional resource agencies
ies, may monitor other federal license and permit activities that may reasonably be expected to affect Delaware's coastal zone management area, but are not listed in the DCMP. Delaware intends to monitor unlisted federal license and permit activities through the A-95 Process/State and Regional Clearinghouses, NEPA environmental impact statements, and routine reporting of regional resource agencies.
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 OCM, and the applicant of the DCMP's intent to review the activity for consistency pursuant to 15 CFR §930.54.
3.2.8 Applicability. Federal license and permit activities requiring federal consistency certification:
3.2.8.1 Department of Defense - Army Corps of Engineers
3.2.8.1.1 Construction of dams or ditches across navigable waters, or obstruction of navigable waters required under Section 9 and 10 of the Rivers and Harbors Act of 1899 (33 USC 401, 403).
3.2.8.1.2 Establishment of harbor lines pursuant to Section 11 of the Rivers and Harbors Act of 1899 (33 USC 4004, 405).
3.2.8.1.3 Occupation of sea wall, bulkhead, jetty, dike, levee, wharf, pier or other work built by the United States pursuant to Section 14 of the Rivers and Harbors Act of 1899 (33 USC 408).
3.2.8.1.4 Approval of plans for improvements made at private expense under USACE supervision pursuant to the Rivers and Harbors Act of 1899 (33 USC 565)
3.2.8.1.5 Discharge of fill into the waters of the United States pursuant to the Clean Water Act of 1987, Section 404.
3.2.8.1.6 All actions for which permits are required pursuant to Section 103 of the Marine Sanctuaries Act of 1972 (33 USC 1413).
3.2.8.1.7 Construction of Artificial islands and fixed structures on the Outer Continental Shelf pursuant to Section 4(f) or the Outer Continental Lands (43 USC) not otherwise covered in an OCS plan
the United States pursuant to the Clean Water Act of 1987, Section 404.
3.2.8.1.6 All actions for which permits are required pursuant to Section 103 of the Marine Sanctuaries Act of 1972 (33 USC 1413).
3.2.8.1.7 Construction of Artificial islands and fixed structures on the Outer Continental Shelf pursuant to Section 4(f) or the Outer Continental Lands (43 USC) not otherwise covered in an OCS plan.
3.2.8.1.8 Port Access Routes pursuant to 43 USC 1333(F)
3.2.8.2 Department of Transportation – U.S. Coast Guard
3.2.8.2.1 Construction or modification of bridges, causeways or pipelines over navigable water pursuant to 49 USC 1455.
3.2.8.3 Environmental Protection Agency
3.2.8.3.1 NPDES Permits and other permits for federal installations, discharges in contiguous zones and ocean waters, sludge runoff permits and agricultural waste disposal pursuant to Sections 401, 402, 403, 405, and 318 of the Clean Water Act of 1987.
3.2.8.3.2 Permits pursuant to the Resource Recovery and Conservation Act of 1976.
3.2.8.3.3 Permits pursuant to the Clean Air Act of 1990.
3.2.8.4 Federal Energy Regulatory Commission
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.
3.2.8.4.2 Licenses of outer continental shelf (OCS) construction and operations and other authorizations and exemptions by the Federal Energy Regulatory Commission under the Federal Power Act 16 U.S.C 792-823, as amended, for OCS activities including hydrokinetic energy activities
natural gas pipelines; and licenses required for non-federal hydroelectric projects and associated transmission lines.
3.2.8.4.2 Licenses of outer continental shelf (OCS) construction and operations and other authorizations and exemptions by the Federal Energy Regulatory Commission under the Federal Power Act 16 U.S.C 792-823, as amended, for OCS activities including hydrokinetic energy activities.
3.2.8.5 Nuclear Regulatory Commission
3.2.8.5.1 Licensing and certification of the construction and operation of nuclear power plants and possession and use of by-products, source and special nuclear material, pursuant to Atomic Energy Act of 1954, Title II of the Energy Reorganization Act of 1974 and the National Environmental Policy Act of 1969.
3.2.8.6 Department of Energy
3.2.8.6.1 Regulation of gas pipelines, and licensing of import or export of natural gas pursuant to the Natural Gas Act (15 USC 717) and the Energy Reorganization Act of 1974.
3.2.8.6.2 Siting Construction and operation of non-nuclear power plants.
3.2.8.7 Department of Interior – Bureau of Ocean Energy Management
3.2.8.7.1 Leases, permits, approval of outer continental shelf (OCS) exploration and development and production plans, and other authorizations by the Bureau of Ocean Energy Management, Regulation and Enforcement under the Outer Continental Shelf Lands Act (OCSLA) 43 U.S.C. 1331 et. seq., as amended, for OCS activities including oil and gas activities, alternative energy activities, and alternate uses of existing facilities.
3.2.8.8 Federal Aviation Administration
3.2.8.8.1 Airport Layout Plans (FAA Order 5050.4A, paragraph 22(8)(d))
3.3 Federal Assistance to State and Local Governments
Pursuant to 15 CFR Part 930, Subpart F, 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
8 Federal Aviation Administration
3.2.8.8.1 Airport Layout Plans (FAA Order 5050.4A, paragraph 22(8)(d))
3.3 Federal Assistance to State and Local Governments
Pursuant to 15 CFR Part 930, Subpart F, 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.
3.3.1 DCMP Consistency Provision Relative to Federal Assistance
Applications by State, county and municipal agencies for federal assistance must be reviewed by the 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.
To ensure consistency with the DCMP and conform to NOAA regulations, DCMP reviews all federal assistance applications and make the final consistency determination in consultation with the FARC and the DSCC.
In the event the DCMP objects to the applicant agency's proposal on grounds of inconsistency with the DCMP, the objection must include the reasons and supporting information for such action.
The DCMP will then notify the applicant agency and the federal agency of the State's objection
l assistance applications and make the final consistency determination in consultation with the FARC and the DSCC.
In the event the DCMP objects to the applicant agency's proposal on grounds of inconsistency with the DCMP, the objection must include the reasons and supporting information for such action.
The DCMP will then notify the applicant agency and the federal agency of the State's objection. The State's objection notification will:
3.3.1.1 Describe how the proposed project is inconsistent with specific elements of the management program.
3.3.1.2 Identify alternative measures, if any, which would make the proposed action consistent.
3.3.1.3 Describe the nature and necessity of additional information required for making a consistency determination if the objection is based on insufficient information.
3.3.1.4 Describe the applicant's right to appeal to the Secretary of Commerce.
3.3.2 Modification of Consistency Certification Process
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 Director of OCM of its intention to make such a determination.
Some federal assistance programs are 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 technical assistance projects, and other means
its intention to make such a determination.
Some federal assistance programs are 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 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.
The DCMP reserves the right to establish a federal assistance program consistency list based on either or both of the preceding evaluations and to implement the federal assistance consistency certification process and authorities provided by 15 CFR Part 930, Subpart F.
3.4 OCS Exploration, Development and Production Activities
The federal regulations, 15 CFR Part 930, Subpart E, provides that Outer Continental Shelf (OCS) plans submitted to the U.S. Secretary of the Interior for OCS exploration, development and production, and all associated federal licenses and permits described in detail in such OCS plans, shall be subject to a federal consistency review.
3.4.1 Applicability. This requirement applies to:
3.4.1.1 License and permit activities that are described in the OCS plan, such as, permits to drill, and rights-of-use and easements for the construction and maintenance of structures, platforms, gathering and flow lines.
3.4.1.2 OCS-related licenses and permits, such as for pipeline corridors, artificial islands or other fixed structures, transport of dredged materials, and discharges or emissions subject to the Clean Water Act of 1987 or the Clean Air Act of 1990
lan, such as, permits to drill, and rights-of-use and easements for the construction and maintenance of structures, platforms, gathering and flow lines.
3.4.1.2 OCS-related licenses and permits, such as for pipeline corridors, artificial islands or other fixed structures, transport of dredged materials, and discharges or emissions subject to the Clean Water Act of 1987 or the Clean Air Act of 1990.
3.4.2 OCS Activities Subject to Consistency
A certification of consistency for each activity described in detail in the OCS plan shall be attached to the OCS plan at the time it is submitted to the Secretary of the Interior. No federal official or agency shall grant any license or permit for any activity described in detail in the OCS plan until the State has received such certification and plan together and until the State has concurred or conclusive concurrence is presumed.
OCS plan license and permit actions not described in detail in the OCS plan are subject to the provisions for federal licenses and permits.
3.4.3 Notification and Review Process
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.
When satisfied that the proposed activities described in detail in the OCS plan meet the Federal consistency requirements, the OCS lessee or operator shall declare in the consistency certification that:
"The proposed activities described in detail in this plan comply with Delaware's approved coastal management program and will be conducted in a manner consistent with such program."
Supporting information to accompany the certification shall include the comprehensive offshore, nearshore and onshore data and material required by the Department of the Interior's operating regulations governing exploration, development and production operations on OCS [30 CFR 250]
with Delaware's approved coastal management program and will be conducted in a manner consistent with such program."
Supporting information to accompany the certification shall include the comprehensive offshore, nearshore and onshore data and material required by the Department of the Interior's operating regulations governing exploration, development and production operations on OCS [30 CFR 250]. Information supplied must include an assessment of the probable coastal zone effects, and a set of findings indicating that the proposed activities, their associated facilities, and their combined effects, are all consistent with the provisions of the management program.
In order to ensure that all levels of government and the general public are aware of and have an opportunity to comment on such plans, the DCMP will provide public notice of the receipt of such plans, the procedures for comments, and the review closing date.
3.4.4 State Concurrence with Consistency Certification
At the earliest practicable time the DCMP will notify the applicant, the Secretary of the Interior, and the Director of OCM whether it concurs with or objects to the consistency certification.
Concurrence by the State agency shall be conclusively presumed in the absence of an objection within six months following commencement of State review.
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 further delay.
If the State issues a concurrence or if conclusive concurrence is presumed, the OCS lessee or operator will not be required to submit additional certifications and supporting information for State review at the time federal applications are actually filed for the federal permit activities described in detail in the OCS plan. However, the lessee or operator must supply the DCMP with copies of permit applications to allow the State to monitor the approved OCS activities
ed, the OCS lessee or operator will not be required to submit additional certifications and supporting information for State review at the time federal applications are actually filed for the federal permit activities described in detail in the OCS plan. However, the lessee or operator must supply the DCMP with copies of permit applications to allow the State to monitor the approved OCS activities.
3.4.5 State Objection to a 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 agency objection, federal agencies may not issue any of the licenses or permits for activities described in detail in the OCS plan.
3.5 Appeals and Secretarial Review Relative to Federal Consistency
The provisions of 15 CFR Part 930, Subpart H, outline procedures by which the Secretary of Commerce may override a state's objection if the Secretary finds that a federal license or permit activity, including those described in detail in an OCS plan, or a federal assistance activity, which is inconsistent with the DCMP, may be federally approved because the activity is consistent with the objectives or purposes of the federal CZMA, or is necessary in the interest of national security.
3.5.1 Secretary Ruling
In order to be "consistent with the objectives or purpose of the federal CZMA", an activity already inconsistent with the DCMP, must be found by the Secretary of Commerce to be permissible because it satisfies the following three requirements:
3.5.1.1 The activity furthers one or more of the competing national objectives or purposes contained in Sections 302 or 303 of the Act
.5.1 Secretary Ruling
In order to be "consistent with the objectives or purpose of the federal CZMA", an activity already inconsistent with the DCMP, must be found by the Secretary of Commerce to be permissible because it satisfies the following three requirements:
3.5.1.1 The activity furthers one or more of the competing national objectives or purposes contained in Sections 302 or 303 of the Act.
3.5.1.2 When performed separately or when its cumulative effects are considered, it will not cause adverse effects on the natural resources of the coastal zone substantial enough to outweigh its contribution to the national interest.
3.5.1.3 There is no reasonable alternative available which would permit the activity to be conducted in a manner consistent with the DCMP.
3.5.2 Filing Appeal
Pursuant to 15 CFR §930.125, an appellant may file a notice of appeal with the Secretary of Commerce within 30 days of the appellant's receipt of DCMP's objection to a consistency certification for a federal license or permit (including those described in an OCS plan), or a federal assistance program.
The notice of appeal shall be accompanied by a statement in support of the appellant's position, along with supporting data and information. The appellant shall send a copy of the notice of appeal and accompanying documents to the federal and state agencies involved. An application fee must accompany the appeal to the Secretary: $200 for minor appeals and $500 for major appeals, unless the Secretary, upon consideration of an applicant's request for fee waiver, determines that the applicant is unable to pay the fee. The Secretary will also collect such other fees as are necessary to recover the full costs of administering and processing the appeals.
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22 DE Reg
ccompany the appeal to the Secretary: $200 for minor appeals and $500 for major appeals, unless the Secretary, upon consideration of an applicant's request for fee waiver, determines that the applicant is unable to pay the fee. The Secretary will also collect such other fees as are necessary to recover the full costs of administering and processing the appeals.
14 DE Reg. 1390 (06/01/11)
22 DE Reg. 407 (11/01/18)
4.0 Procedures for Federal Interstate Consistency Reviews
Interstate consistency review is the process by which an activity occurring wholly in one state but with the potential to affect the coastal resources of another state, can be reviewed by the affected state for consistency with its federally approved coastal management program. Federal consistency regulations, 15 CFR Part 930, subpart I, outline this review process.
4.1 Notification and Review Process
Federal agencies, applicants or applicant agencies proposing activities listed 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 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 subsection 3.2.3 of this document.
4.2 Concurrence with an Interstate Consistency Certification
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
ument.
4.2 Concurrence with an Interstate Consistency Certification
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.
4.3 Objection to an Interstate Consistency Certification
4.3.1 The intent of Interstate consistency review is to foster early coordination between states and federal agencies and to establish a consistent review process. Through this process, the DCMP seeks formal notification of listed activities within the specified boundaries; to be provided the opportunity to review such projects; and to have any issues or concerns addressed through the consultation process.
4.3.2 In the event the DCMP objects to the consistency certification, it will accompany its objection with reasons and supporting information concerning each activity which the DCMP finds to be inconsistent with the management program. The objection will include a statement informing the applicant of the right of appeal to the Secretary of Commerce. Following receipt of a State agency objection, federal agencies may not issue any of the licenses or permits associated with the proposed activity.
4.4 Applicability
4.4.1 Activities Subject to Interstate Consistency Review:
4.4.1.1 The DCMP has 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
ses or permits associated with the proposed activity.
4.4 Applicability
4.4.1 Activities Subject to Interstate Consistency Review:
4.4.1.1 The DCMP has 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 Dredging and Dredged Material Disposal
4.4.1.1.1.1 Dredging, filling, mining, and excavation of 50,000 or more cubic yards, excluding beach nourishment projects
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 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 line.
4.4.1.1.1.2 Subsurface discharge of dredged and fill materials, relocation or redistribution of sediments of 50,000 or more cubic yards, excluding beach nourishment projects
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 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
tivities in New Jersey below the high tide line of the Delaware River from the Commodore Barry Bridge south to the Delaware 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 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.
4.4.2 Offshore Alternative Energy Development
4.4.2.1 Alternative Energy Development (i.e. siting, placement, construction and/ or decommissioning of wind, wave, and tidal energy capture technologies, excluding metrological towers and buoys)
4.4.2.1.1 Applies to activities in New Jersey occurring within the Delaware River and Bay from Artificial Island to Cape May and State ocean waters from 0-3nmi, extending from Hereford Inlet south to the tip of Cape May.
4.4.2.1.2 Applies to activities in Maryland occurring within State ocean waters from 0-3 nmi.
4.4.3 Introduction of Non-native Shellfish
4.4.3.1 Introduction of Non-native Shellfish involving placement of new substrate or manipulating existing substrate
4.4.3.1.1 Applies to activities in New Jersey occurring within Delaware River and Bay from Artificial Island to Cape May
4.5.3.1.2 Applies to activities in Maryland occurring within the Chesapeake Bay
4.5.3.1.3 Applies to activities in Virginia occurring within the Chesapeake Bay
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Shellfish involving placement of new substrate or manipulating existing substrate
4.4.3.1.1 Applies to activities in New Jersey occurring within Delaware River and Bay from Artificial Island to Cape May
4.5.3.1.2 Applies to activities in Maryland occurring within the Chesapeake Bay
4.5.3.1.3 Applies to activities in Virginia occurring within the Chesapeake Bay
14 DE Reg. 1390 (06/01/11)
22 DE Reg. 407 (11/01/18)
5.0 Delaware Coastal Management Program Policies
5.1 Wetlands Management
5.1.1 The productive public and private wetlands in the 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 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 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:
5.1.4.1 There is no reasonable alternative to such construction, and that the proposed action includes all practicable measures to minimize undesirable impacts to freshwater wetlands which may result from such use, or
5.1.4.2 The request is consistent with the procedures and provisions of the following paragraph
e agency, through consultation with the DNREC, files written findings with DNREC that:
5.1.4.1 There is no reasonable alternative to such construction, and that the proposed action includes all practicable measures to minimize undesirable impacts to freshwater wetlands which may result from such use, or
5.1.4.2 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 operating or capital funds, or for 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 public or private parties, the State agency shall:
5.1.6.1 Attach restrictions appropriate to Delaware Executive Order Number 56 to the uses of properties by the grantee or purchaser and any successor, except where prohibited by law; or
5.1.6.2 Withhold such properties from disposal. [Delaware Executive Order 56, May 26, 1998]
5.1.7 Wetlands to be managed by the 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 exclusiv
ose 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 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 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
C; 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 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 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. [7 Del.C. §6604 7 DE Admin. Code 7502 ]
5.1.11 The cumulative impact of individual projects shall be considered when evaluating the environmental impacts of a proposed activity in wetlands. [Delaware Executive Order 43, August 15, 1996]
5.1.12 No permit will be issued to:
5.1.12.1 Dredge any channel through the wetlands deeper than the existing depth or the control channel depth specified by the Corps of Engineers at the point of connection to the adjacent navigable waterway to which the dredge channel is directly connected. A lesser depth may be specified by the Secretary of the DNREC in furtherance of the purposes of the Act.
5.1.12.2 Dredge any channel through the wetlands that has only one outlet to navigable water through which the normal daily tide ebbs and flows unless the channel is equipped, by aerators or other means, to maintain the Water Quality Standards for Streams that are issued by the DNREC
connected. A lesser depth may be specified by the Secretary of the DNREC in furtherance of the purposes of the Act.
5.1.12.2 Dredge any channel through the wetlands that has only one outlet to navigable water through which the normal daily tide ebbs and flows unless the channel is equipped, by aerators or other means, to maintain the Water Quality Standards for Streams that are issued by the DNREC.
5.1.12.3 Dredge channels through wetlands with sides more nearly vertical than a slope that rises one foot vertically for each three feet of horizontal distance except where conditions of soil composition prevent slope stabilization, so that bulkheading must be used.
5.1.12.4 Utilize wetlands for any activity unless it:
5.1.12.4.1 Requires water access for the central purpose of the activity; and
5.1.12.4.2 Has no alternative on adjoining non-wetland property of the owner.
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 Section 7.0 ]
5.2 Beach Management
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]
5.2.2 Publicly owned beaches and shorelines shall be managed and maintained to assure adequate and continued public access to these areas within the carrying capacity of the resource. [ 7 Del.C. §4701(c) ]
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 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
ained to assure adequate and continued public access to these areas within the carrying capacity of the resource. [ 7 Del.C. §4701(c) ]
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 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) ]
5.2.4 No person shall, without first having obtained a permit or letter of approval from the Department, undertake any activity:
5.2.4.1 To construct, modify, repair or reconstruct any structures or facility on any beach seaward of the building line.
5.2.4.2 To alter, dig, mine, move, remove or deposit any substantial amount of beach or other materials, or cause the significant removal of vegetation, on any beach seaward of the building line which may affect the enhancement, preservation or protection of beaches. [ 7 Del.C. §6805(a) ]
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 DNREC. [ 7 Del.C. §6805(c) ]
5.2.6 The Department shall grant or deny a permit or letter of approval required by Policies 5.2.4 and 5.2.5 in accordance with duly promulgated regulations. If any structure proposed to be built in whole or in part seaward of the building line could reasonably be reduced in size or otherwise altered in order to eliminate or diminish the amount of encroachment over the building line, the Department shall require such reduction or alteration as a condition of granting the permit or letter of approval. [ 7 Del.C
ordance with duly promulgated regulations. If any structure proposed to be built in whole or in part seaward of the building line could reasonably be reduced in size or otherwise altered in order to eliminate or diminish the amount of encroachment over the building line, the Department shall require such reduction or alteration as a condition of granting the permit or letter of approval. [ 7 Del.C. §6805(d) ]
5.2.7 By definition, the Building Line means a line generally paralleling the coast, set forth on maps prepared by the 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:
5.2.7.1 Along beaches extending from the Delaware/Maryland line to the tip of Cape Henlopen - 100 feet landward of the adjusted seawardmost 10-foot elevation contour above NGVD;
5.2.7.2 Along beaches extending from the tip of Cape Henlopen to the southernmost limit of Primehook Beach - 100 feet landward of the adjusted seawardmost 7-foot elevation contour above NGVD;
5.2.7.3 Along beaches extending from the southernmost limit of Primehook Beach to the Old Marina Canal north of Pickering Beach - 75 feet landward of the adjusted seawardmost 7-foot elevation contour above NGVD; or
5.2.7.4 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. [ 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 DNREC issues the person a permit or letter of approval pursuant to the Regulations Governing Beach Protection and the Use of Beaches. [ 7 DE Admin
7, 1983, whichever is most seaward. [ 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 DNREC issues the person a permit or letter of approval pursuant to the Regulations Governing Beach Protection and the Use of Beaches. [ 7 DE Admin. Code 5102 subsection 3.3.1]
5.2.9 All structures, devices and facilities existing now or in the future which are devoted to the enhancement, preservation and protection of beaches shall be managed by the Department of Natural Resources and Environmental Control. [ 7 Del.C. §6803(b) ]
5.2.10 No person shall commence or conduct, without a permit therefore from the 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 DNREC, including the proper installation of sand fence and the planting and fertilization of stabilizing vegetation, shall not require a permit. [ 7 DE Admin. Code 5102 subsection 4.3.1]
5.2.11 No person shall commence or conduct without a permit therefore from the DNREC, construction seaward of the Building Line, of any pipeline, dock, pier, wharf, ramp or other harbor work. [ 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
her harbor work. [ 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 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, and local laws, rules, regulations, and zoning and building ordinances. [ 7 DE Admin. Code 5102 subsection 3.4.1]
5.2.13 The following activities are prohibited:
5.2.13.1 The operation of any motorized vehicle or machine on, over or across the primary dune on any State-owned beach except at those locations specified by the Department for such use;
5.2.13.2 Pedestrian traffic on, over or across the primary dune on any State-owned beach except at those locations specified by the Department for such use;
5.2.13.3 The alteration, moving or removal of any facility, improvement or structure installed or maintained by the DNREC for enhancement, preservation or protection of any beach; and
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. [ 7 DE Admin
epartment for such use;
5.2.13.3 The alteration, moving or removal of any facility, improvement or structure installed or maintained by the DNREC for enhancement, preservation or protection of any beach; and
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. [ 7 DE Admin. Code 5102 subsection 3.7.1]
5.2.14 State Action to reduce shoreline recession on private beaches may be taken, but only under the following conditions:
5.2.14.1 Where dangerous conditions exist on any privately owned beach which constitute an emergency;
5.2.14.2 In those instances where owners of private beaches allow free public use of such beaches in return for the assistance; or
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 ]
5.2.15 To the maximum extent possible the following system of priorities shall be utilized for the expenditure of limited beach preservation funds:
5.2.15.1 First priority shall be given to those beaches which suffer substantial and chronic erosion due to the presence of public navigation works;
5.2.15.2 Second priority shall be given to those intensely used, publicly owned beaches undergoing critical erosion. This category will be subdivided further according to the degree of public use, ease of access, rate of erosion, value of the area to the economy, and possible beneficial effects protection efforts may have on downdrift Delaware beaches
ue to the presence of public navigation works;
5.2.15.2 Second priority shall be given to those intensely used, publicly owned beaches undergoing critical erosion. This category will be subdivided further according to the degree of public use, ease of access, rate of erosion, value of the area to the economy, and possible beneficial effects protection efforts may have on downdrift Delaware beaches. Protection of private beachfront structures will not be an overriding consideration;
5.2.15.3 Third priority shall be given to all remaining publicly owned recreational beaches;
5.2.15.4 Fourth priority shall be given to intensely used, publicly accessible private beaches;
5.2.15.5 Fifth priority shall be given to sparsely used, publicly accessible beaches; and
5.2.15.6 The last priority shall be given to privately owned, restricted beaches. In fact, all beach protection funds and State disaster-related reconstruction aid shall be restricted unless and until the beaches are opened to public use. [Delaware Executive Order 43, August 15, 1996]
5.2.16 All bonds issued for beach preservation projects shall not be issued for a period longer than the expected useful life of the work being financed. [Delaware Executive Order 43, August 15, 1996]
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. [ 7 DE Admin
uatic 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. [ 7 DE Admin. Code 7504 subsection 4.10.1.1]
5.3 Coastal Waters Management
5.3.1 General
5.3.1.1 The development and utilization of the land and water resources of the 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 shall be protected from pollution which may threaten the safety and health of the general public. [ 7 Del.C. §§6001 (a)(5), (c)(2) ]
5.3.1.3 The coastal water resources of the 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. [ 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 which must be maintained and protected through application of appropriate criteria
public health and public recreation purposes, the propagation and protection of fish and aquatic life, and other beneficial uses of the water. [ 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 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). [ 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. [ 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
ity as measured or predicted using appropriate assessment protocols. [ 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 while allowing for full protection of existing uses. [ 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. [ 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. [ 7 DE Admin. Code 7401 subsection 5.4]
5.3.1.10 All surface waters of the State shall be free from substances that are attributable to wastes of industrial, municipal, agricultural or other human-induced origin. Examples include but are not limited to the following:
5.3.1.10.1 Floating debris, oil, grease, scum, foam, or other materials on the water surface that may create a nuisance condition, or that may in any water interfere with attainment and maintenance of designated uses of the water.
5.3.1.10.2 Settlable solids, sediments, sludge deposits, or suspended particles that may coat or cover submerged surfaces and create a nuisance condition, or that may in any way interfere with attainment and maintenance of designated uses of the water
er surface that may create a nuisance condition, or that may in any water interfere with attainment and maintenance of designated uses of the water.
5.3.1.10.2 Settlable solids, sediments, sludge deposits, or suspended particles that may coat or cover submerged surfaces and create a nuisance condition, or that may in any way interfere with attainment and maintenance of designated uses of the water.
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. [ 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. [ 7 DE Admin
e 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. [ 7 DE Admin. Code 7401 subsections 6.2 and 6.4]
5.3.1.12 Streams with a designated use of public water supply shall provide waters of acceptable quality for use for drinking, culinary or food processing purposes after application of approved treatment equivalent to coagulation, filtration, and disinfection (with additional treatment as necessary to remove naturally occurring impurities). Water shall be free from substances (except natural impurities) that, alone or in combination with other substrates, result in:
5.3.1.12.1 Unacceptable levels of taste or odor in the treated water;
5.3.1.12.2 Significant disruption of the treatment processes at the treatment facility; or
5.3.1.12.3 Concentrations of toxic substances in the treated water that may be harmful to human health. [ 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. [ 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. [ 7 DE Admin
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. [ 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 or its shoreline shall be prohibited. [ 7 Del.C. §§6203, 6202(7)(5)(9) ]
5.3.1.16 At a minimum, any discharge of liquid waste - sewage, industrial waste or other waste to State waters shall be subject to effluent limitations, discharge requirements and any alternate effluent control strategy that reflect a practicable level of pollutant removal technology. For the purposes of this section, a practicable level of pollutant removal technology is defined as the application of "best" treatment technology, control measures and practices, including pollution prevention, available to prevent, manage, reduce or remove pollutants taking into account the cost of applying such technology, control measures or practices in relation to the effluent reduction benefits to be achieved, the age of equipment and facilities involved, the process(es) employed, the engineering aspects of applying the various types of control, process changes, pollution prevention measures, non-water quality impacts (e.g. energy requirements) and other factors deemed appropriate
st of applying such technology, control measures or practices in relation to the effluent reduction benefits to be achieved, the age of equipment and facilities involved, the process(es) employed, the engineering aspects of applying the various types of control, process changes, pollution prevention measures, non-water quality impacts (e.g. energy requirements) and other factors deemed appropriate. For the parameters, BOD5 (5-day biochemical oxygen demand) and suspended solids, the degree of removal reflecting an application of a practicable level of pollutant removal technology shall be at least 85% of the BOD5 and suspended solids contained in the influent to the treatment works or prior to application of the removal technology, control measures or practices. For discharges of sewage to State waters, a practicable level of pollutant removal technology shall be secondary treatment and disinfection.
5.3.1.16.1 No person shall cause or permit any discharge of liquid waste to the Delaware River, the Delaware Bay, or Atlantic Ocean except liquid waste which has received at least secondary treatment and disinfection.
5.3.1.16.2 No person shall cause or permit discharge of liquid waste to a lake or a pond or any tributary thereof, except liquid waste which has received at least secondary treatment, filtration, nutrient removal and disinfection.
5.3.1.16.3 No person shall cause or permit any discharge of liquid waste to the Little Assawoman Bay, Indian River Bay, or to Rehoboth Bay, including any tributaries to those waterbodies, except liquid waste which has received at least secondary treatment, filtration, and disinfection.
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
eatment, filtration, and disinfection.
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. [ 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. [ 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. [ 7 DE Admin
ns of Delaware's Surface Water Quality Standards. [ 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. [ 7 DE Admin. Code 7401 subsection 1.2]
5.3.1.19 No person shall, without first having obtained a permit from the Delaware Department of Natural Resources, undertake any activity:
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
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 No person shall, without first having obtained a permit from the Delaware Department of Natural Resources and Environmental Control, construct, install, replace, modify or use any equipment or device or other article:
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
5.3.1.20.5 for disposal of solid waste. [ 7 Del.C. §6003(b) ]
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
ely 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 No person or entity shall commence construction, replacement, or operation of any of the following without first having obtained a permit from DNREC:
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. [ 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. [ 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. [ 7 DE Admin
unless such person has a valid license and permit issued by the DNREC. [ 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. [ 7 DE Admin. Code 7201 subsection 3.2.6]
5.3.1.26 No person or entity shall:
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;
5.3.1.26.2 Construct, repair, install or replace any part of a septic tank system except by or under the supervision of a licensed septic tank installer; or
5.3.1.26.3 Operate any liquid waste treatment system without a licensed liquid waste treatment plant operator.
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]
5.3.1.27 The person who has caused the contamination of a person's drinking water supply by contaminant other than bacteria, viruses, nitrate or pesticides may be required to provide, at no cost to each person who has had his drinking water supply contaminated, an interim water supply that is of a quality and quantity to meet said person's needs as shall be determined by the Secretary of DNREC, in addition to the dates on which the interim water supply shall commence and be terminated. [ 7 Del.C. §6037 ]
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. [ 7 DE Admin
hat is of a quality and quantity to meet said person's needs as shall be determined by the Secretary of DNREC, in addition to the dates on which the interim water supply shall commence and be terminated. [ 7 Del.C. §6037 ]
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. [ 7 DE Admin. Code 7201 subsection 3.2.8.1]
5.3.1.29 No person shall cast, put, place, discharge in or permit or suffer to be cast, put, placed, discharged in or to escape into any running stream of water within the limits of this State, from which stream the inhabitants of any borough, town or city within this State are supplied wholly or in part with water for and as drink or beverage, any dye-stuffs, drugs, chemicals or other substance or matter of any kind whatsoever whereby the water so supplied as and for a drink or beverage is made and becomes noxious to the health or disagreeable to the senses of smell or taste. [ 16 Del.C. §1301 ]
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. [ 16 DE Admin. Code 4462 subsection 3.3]
5.3.1.31 After July 1, 1991, unless a particular activity is exempted by these regulations, a person may not disturb land without an approved sediment and stormwater management plan from the appropriate plan approval agency
ity above the level determined to be safe and not to negatively impact users of water from such systems, either directly or indirectly. [ 16 DE Admin. Code 4462 subsection 3.3]
5.3.1.31 After July 1, 1991, unless a particular activity is exempted by these regulations, a person may not disturb land without an approved sediment and stormwater management plan from the appropriate plan approval agency. [Delaware Sediment and Stormwater Regulations, Section 8(1), amended April 11, 2005]
5.3.1.32 The following activities are exempt from both sediment control and stormwater management requirements:
5.3.1.32.1 Agricultural land management practices, unless the local Conservation District or the DNREC determines that the land requires a new or updated soil and water conservation plan, and the owner or operator of the land has refused either to apply to a Conservation District for the development of such a plan, or to implement a plan developed by a Conservation District;
5.3.1.32.2 Developments or construction that disturbs less than 5,000 square feet.
5.3.1.32.3 Land development activities which are regulated under specific State or federal laws which provide for managing sediment control and stormwater runoff, such as specific permits required under the National Pollutant Discharge Elimination System (NPDES) when discharges are a combination of stormwater and industrial or domestic wastewater.
5.3.1.32.4 Projects which are emergency in nature that are necessary to protect life or property such as bridges, culvert, or pipe repairs and above ground or underground electric and gas utilities or public utility restoration; and
5.3.1.32.5 Qualifying commercial forest harvesting operations
ion System (NPDES) when discharges are a combination of stormwater and industrial or domestic wastewater.
5.3.1.32.4 Projects which are emergency in nature that are necessary to protect life or property such as bridges, culvert, or pipe repairs and above ground or underground electric and gas utilities or public utility restoration; and
5.3.1.32.5 Qualifying commercial forest harvesting operations. [Delaware Sediment and Stormwater Regulations, subsection 3.1 amended April 11, 2005]
5.3.1.33 A project may be eligible for a waiver of stormwater management for both quantitative and qualitative control if the applicant can demonstrate that:
5.3.1.33.1 The proposed project will return the disturbed area to a pre-development runoff condition and the pre-development land use is unchanged at the conclusion of the project; or
5.3.1.33.2 The proposed project consists of a linear disturbance of less than ten (10) feet in width; or
5.3.1.33.3 The project is for an individual residential detached unit or agricultural structure, and the total disturbed area of the site is less than one acre; or
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, 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, subsection10.2.2, amended April 11, 2005]
5.3.1.35 Water quantity control is an integral component of overall stormwater management. Control of peak discharges will, to some extent, prevent increases in flooding
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, subsection10.2.2, amended April 11, 2005]
5.3.1.35 Water quantity control is an integral component of overall stormwater management. Control of peak discharges will, to some extent, prevent increases in flooding. The following design criteria for peak flow control are established for water quantity control purposes, unless a waiver is granted based on a case-by-case basis:
5.3.1.35.1 Projects in New Castle County that are located north of the Chesapeake and Delaware Canal shall not exceed the post-development peak discharge for the 2, 10, and 100 year frequency storm events at the pre-development peak discharge rates for the 2, 10, and 100 year frequency storm events.
5.3.1.35.2 Projects in New Castle County that are located south of the Chesapeake and Delaware Canal, Kent County, and Sussex County shall not exceed the post-development peak discharge for the 2 and 10 year frequency storm events at the pre-development peak discharge rates for the 2 and 10 year frequency storm events.
5.3.1.35.3 Watersheds, other than Designated Watersheds or 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, subsection 10.3.4, amended April 11, 2005]
5.3.1.36 Water quality control is also an integral component of stormwater management. Control of water quality on-site will prevent further degradation of downstream water quality
riteria. Proposed modification of criteria for a watershed shall be subject to public review and comment prior to implementation. [Delaware Sediment and Stormwater Regulations, subsection 10.3.4, amended April 11, 2005]
5.3.1.36 Water quality control is also an integral component of stormwater management. Control of water quality on-site will prevent further degradation of downstream water quality. The following design criteria are established for water quality protection unless a waiver or variance is granted on a case-by-case basis.
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.
5.3.1.36.2 Water quality be designed to manage the rate and volume of flow from the 2.0” NRCS Type II rainfall event, up to a maximum of 1.0” and
5.3.1.36.3 Alternative stormwater quality practices may be acceptable to the Department and/or the plan approval agency if the removal efficiency for suspended solids meets or exceeds 80% as demonstrated by scientifically independent evaluation and monitoring performance data,
5.3.1.36.4 The Department and/or plan approval agency may require other acceptable stormwater practices if a receiving waterbody has been identified as impaired or designated with a specific pollutant reduction target.
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
Department and/or plan approval agency may require other acceptable stormwater practices if a receiving waterbody has been identified as impaired or designated with a specific pollutant reduction target.
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, subsection 10.3.5(1)(2)(3)(4)(5), amended April 11, 2005]
5.3.2 Marinas
5.3.2.1 Marina owners/operators for marinas that are located in whole or in part on tidal waters of the State, and that provide dockage for vessels with a portable toilet(s) or Type III marine sanitation device(s) (MSD), shall provide convenient access, as determined by the DNREC, to an approved, fully operable and well maintained pumpout facility(ies) and/or dump station(s) for the removal of sewage from said vessels to a DNREC approved sewage disposal system.
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
acility 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) (b)(1, 2, 3, & 4) ]
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 [ 7 DE Admin. Code 7501 subsection 2.5.1]
5.3.2.3 It is the policy of DNREC to prevent degradation of the surface and groundwaters of the State which might result from any pollutant source, so that all existing water designated uses are maintained and protected. Marinas shall be permitted only if they do not cause a violation of established Delaware water quality regulations either within the marina, or in adjacent ambient waters which mix or are contacted by waters from the marina. To achieve this goal:
5.3.2.3.1 These regulations set forth rebuttable presumptions that:
5.3.2.3.1.1 Land-based alternatives for non-water dependent activities are available.
5.3.2.3.1.2 Alternatives that do not involve the use of 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 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. [ 7 DE Admin
n the aquatic environment, and
5.3.2.3.1.3 Alternatives that do not involve the use of 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. [ 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. [ 7 DE Admin. Code 7501 subsections 11.3.4.2 and 11.3.4.3]
5.3.2.5 Measures must be taken to first avoid, and then minimize unavoidable impacts to shellfish resources
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. [ 7 DE Admin. Code 7501 subsections 11.3.4.2 and 11.3.4.3]
5.3.2.5 Measures must be taken to first avoid, and then minimize unavoidable impacts to shellfish resources. The following impacts of marina facilities on shellfish resources will be considered:
5.3.2.5.1 Impacts on the organisms themselves, including their ability to survive, grow and propagate, without regard to potential use by humans;
5.3.2.5.2 Impacts that do not adhere to strict environmental safeguards for water quality; and
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. [ 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. [ 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
ity 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. [ 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. [ 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. [ 7 DE Admin. Code 7501 subsection 11.3.8 and 7 DE Admin. Code 7504 Section 1.0]
5.4 Subaqueous Lands and Coastal Strip Management
5.4.1 The “coastal zone", referred to in these policies as the “coastal strip”, is defined as all that area of the State, whether land, water or subaqueous land between the territorial limits of Delaware in the Delaware River, Delaware Bay and Atlantic Ocean, and a line formed by certain Delaware highways and roads. [ 7 Del.C
Code 7504 Section 1.0]
5.4 Subaqueous Lands and Coastal Strip Management
5.4.1 The “coastal zone", referred to in these policies as the “coastal strip”, is defined as all that area of the State, whether land, water or subaqueous land between the territorial limits of Delaware in the Delaware River, Delaware Bay and Atlantic Ocean, and a line formed by certain Delaware highways and roads. [ 7 Del.C. §7002 ]
5.4.2 The natural environment of the coastal strip shall be protected from the impacts of heavy industry and oil pollution for the purpose of recreation, tourism, fishing, crabbing, and gathering other marine life useful in food production. [ 7 Del.C. §§7001, 6201 ]
5.4.3 The need for protection of the natural environment in the coastal strip shall be balanced with the need for new industry in the State's coastal areas [ 7 Del.C. §7001 ]
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 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
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)]
5.4.7 New manufacturing uses or the expansion of existing manufacturing uses shall be allowed in the coastal strip by permit only, although in no case shall new manufacturing uses be allowed in wetlands or where inconsistent with local zoning regulations. Manufacturing uses are ones which mechanically or chemically transform substances into new products, and characteristically employ power-driven machines and materials handling equipment. Manufacturing uses typically include establishments engaged in assembling components of manufactured products, provided the new products are not fixed improvements. [ 7 Del.C. §7002(d)(e), 7004(a) ]
5.4.8 The following factors shall be considered in passing on requests for permission to construct or operate a manufacturing use in the coastal strip:
5.4.8.1 Environmental impact, including but not limited to, probable air and water pollution likely to be generated by the proposed use under normal operating conditions, as well as during mechanical malfunction and human error; likely destruction of wetlands and flora and fauna; impact of site preparation on drainage of the area in question, especially as it relates to flood control; impact of site preparation and facility operations on land erosion; eff
probable air and water pollution likely to be generated by the proposed use under normal operating conditions, as well as during mechanical malfunction and human error; likely destruction of wetlands and flora and fauna; impact of site preparation on drainage of the area in question, especially as it relates to flood control; impact of site preparation and facility operations on land erosion; effect of site preparation and facility operations on the quality and quantity of surface, and subsurface water resources, such as the use of water for processing, cooling, effluent removal, and other purposes; in addition, but not limited to, the likelihood of generation of glare, heat, noise, vibration, radiation, electromagnetic interference and obnoxious odors.
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 and local government.
5.4.8.3 Aesthetic effect, such as impact on scenic beauty of the surrounding area.
5.4.8.4 Number and type of supporting facilities required and the impact of such facilities on all factors listed in this subsection.
5.4.8.5 Effect on neighboring land uses including, but not limited to, effect on public access to tidal waters, effect on recreational areas, and effect on adjacent residential and agricultural areas.
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
ent 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/STATE_DE_ADC_T7_2201. Check the current official text before relying on it. Not legal advice.