7 Del. Admin. Code § 7504-2.0

Current through Register Vol. 28, No. 4, October 1, 2024

Section 7504-2.0 - Administrative Principles

2.1 Jurisdiction. These Regulations are adopted pursuant to 7Del.C.§ 7212.

2.2 Scope of Regulations

2.2.1 Applicability

2.2.1.1 The extent of jurisdictional authority over public or private subaqueous lands includes any activity in a navigable stream or waterbody, which have a hydrologic connection to natural waterbodies.

2.2.1.2 These Regulations shall apply to all activities upon or affecting public and private subaqueous lands within the State of Delaware.

2.2.1.3 These Regulations shall apply to all applications received on or after the effective date of these Regulations. Applications submitted before the effective date of these Regulations shall be governed by the regulations titled "Regulations Governing the Use of Public Subaqueous Lands," adopted July 14, 1969 and revised July 30, 1985.

2.2.1.4 These Regulations shall not alter any right or obligation arising from any lease, easement, license, grant or other legally binding agreement from or between the State of Delaware and any person which is in effect prior to the effective date of these Regulations.

2.2.1.5 To the extent that any activity is commenced prior to the effective date of these Regulations, any previous regulation or law which applied to such activity prior to the effective date of these Regulations shall remain in force.

2.2.1.6 Any expansion, modification, renewal, repair, or rebuilding of any structure affecting subaqueous lands, which occurs after the effective date of these Regulations, shall be subject to these Regulations.

2.2.1.7 Any change or modification of a permitted or grandfathered activity affecting subaqueous lands, which occurs after the effective date of these Regulations, shall be subject to these Regulations.

2.2.2 Subaqueous Lands

2.2.2.1 The areas where these Regulations apply are shown on the U.S. Geological Survey 7.5 Minutes Series (Topographic) Quadrangle Charts for the various quadrangles making up the State of Delaware. Such jurisdiction shall be presumed correct subject to written rebutment by the public or the Department based on a determination made in the field, using established criteria and procedures adopted by the Department in accordance with the Regulations. These criteria shall be developed using biological and physical indicators which include, but are not limited to, the presence of a defined channel, banks, aquatic fauna and flora, and other field indicators of instream habitat.

2.2.2.2 Final determination of the location of mean high water shall be determined in the field by the Department, using biological and physical indicators. Where the bank or shore at any particular site is of such character that it is impossible or difficult to ascertain where the point of mean high water is, recourse may be had to other places on the bank or shore of the same stream, lake, etc. to determine whether a given stage of water is above or below the mean high water mark. Similarly, the ordinary high water mark along the banks of a navigable bay, lake, pond, river, stream, or other waterway shall be taken as the boundary between the subaqueous lands and the non-subaqueous lands.

2.2.2.3 These Regulations acknowledge the applicability of the Public Trust Doctrine to all navigable waters. Any applicant asserting private ownership of subaqueous lands must demonstrate said ownership.

2.3 Activities on Private Subaqueous Lands: Types of Projects Requiring a Permit

2.3.1 Owners of private subaqueous lands shall obtain a permit from the Department, pursuant to this regulation, before undertaking any activity on such lands which, as determined by the Department, may contribute to the pollution of public waters, have an adverse impact or destroy aquatic habitats, infringe upon the rights of the public use of the waterway or the public, infringe upon the rights of other private owners, or make connection with public subaqueous lands, including but not limited to, the activities specified in subsection C of this section.

2.3.2 No person shall deposit material upon, remove, or extract materials from, or construct, modify, repair, reconstruct, except as specified in subsection 1.08 (B) any structure or facility upon or over private subaqueous lands without first having obtained a permit or letter of authorization from the Department.

2.3.3 Permits or Letters of Authorization

2.3.3.1 The following types of activities in, on, over, or under private subaqueous lands require a permit or letter of authorization from the. Department:

2.3.3.1.1 Construction of a convenience structure or boat docking facility.

2.3.3.1.2 Construction of a shoreline erosion control structure or measure.

2.3.3.1.3 Dredging, filling, excavating, or extracting of materials.

2.3.3.1.4 Excavation, creation, or alteration of any channel, lagoon, turning basin, pond, embayment, or other navigable waterway on private subaqueous lands which will make connection with public subaqueous lands.

2.3.3.1.5 Dredging of existing channels, ditches, dockages, lagoons, and other navigable waterways to maintain or restore the approved depth and width (letter of authorization).

2.3.3.1.6 Excavation of land which makes connection to subaqueous lands.

2.3.3.1.7 The laying of any pipeline, electric transmission line, telephone line, or any other utility structure in, on, over, or under the beds of private subaqueous lands.

2.3.3.1.8 Installation of temporary or permanent mooring buoys or private marker buoys.

2.3.3.1.9 Establishment of an anchorage for the use of a mooring for more than two (2) boats or for appurtenant onshore services.

2.3.3.1.10 Anchoring or mooring a floating platform over private subaqueous lands for a period of twenty-four (24) consecutive hours or more.

2.3.3.1.11 Anchoring or mooring any vessel or platform over private subaqueous lands for a revenue generating purpose.

2.3.3.1.12 Repair and replacement of existing serviceable structures over private subaqueous lands (letter of authorization), except no permit or letter is required for repairs or structural replacements which are above the mean low tide and which do not increase any dimensions or change the use of the structure.

2.4 Use of Public Subaqueous Lands: Types of Projects Requiring Approval

2.4.1 The Secretary may convey a fee simple title or any lesser interest for a commercial or noncommercial project. Once public subaqueous lands become private subaqueous lands, they are subject to regulation as private subaqueous lands pursuant to these Regulations.

2.4.2 The following types of activities on public subaqueous lands require a lease, permit, or letter of authorization from the Department:

2.4.2.1 Construction or use of any structure on, in, under, or over public subaqueous lands, including but not limited to, any convenience structures, shoreline erosion control structure or measure, or boat docking facility.

2.4.2.2 Dredging, filling, excavating, or extracting of materials.

2.4.2.3 Continuous anchoring or mooring of a commercial vessel used in a commercial activity on or over public subaqueous lands for thirty (30) or more consecutive calendar days or for thirty (30) or more calendar days during any consecutive three (3) months.

2.4.2.4 The laying of any pipeline, electric transmission line, or telephone line in, on, over, or under the beds of public subaqueous lands.

2.4.2.5 Installation of temporary or permanent mooring buoys or private marker buoys.

2.4.2.6 Establishment of an anchorage for mooring more than two (2) boats or which serves as a permanent place for resident vessels.

2.4.2.7 Anchoring or mooring a floating platform over public subaqueous lands and for a period of twenty-four (24) consecutive hours or more.

2.4.2.8 Maintenance dredging of existing or new channels, ditches, dockages, lagoon and other waterways to maintain or restore the approach depth and width (letter of authorization).

2.4.2.9 Anchoring or mooring any vessel or platform over public subaqueous lands for revenue generating purposes.

2.4.2.10 Repair and replacement of existing serviceable structures over private subaqueous lands (letter of authorization), except no permit or letter is required for repairs or structural replacements which are above the mean low tide and which do not increase any dimensions or change the use of the structure.

2.4.2.11 New dredging activities of channels, ditches, dockages or other waterways.

2.5 Statewide Activity Approvals. The Department may adopt statewide activity approvals for certain specified activities with limiting dimensions and criteria which are considered to have minimal impacts on subaqueous lands, water quality, habitats, etc. The qualification of a project for a statewide activity approval may require no review or will invoke an abbreviated review process for a decision by the Department.

2.6 Prohibitions. Certain types of projects are deemed inappropriate for consideration and shall not be considered or approved for private or public subaqueous lands under these Regulations:

2.6.1 Houseboats. No non-motorized vessel or floating platform whose function or use is primarily that of a residence shall be authorized under these Regulations to moor, anchor, dock over or otherwise occupy subaqueous lands. 2.6 Prohibitions. Certain types of projects are deemed inappropriate for consideration and shall not be considered or approved for private or public subaqueous lands under these Regulations:

2.6.2 Gazebos. No gazebos shall be constructed on a dock, pier, wharf, or other convenience or shoreline erosion control structure which otherwise utilize subaqueous lands, whether the structure is enclosed or open.

2.6.3 Overwater Structures.Restaurants, decks, residences, or appurtenances that extend over subaqueous lands, but which are not dependent upon water access for their primary purpose, shall not be authorized by these Regulations.

2.6.4 Mooring Buoys. Installation of mooring buoys or private marker buoys, which unduly impedes or preempts public access to subaqueous lands or interfere with navigation, shall not be permitted.

2.6.5 Convenience Structures. No convenience structure shall be constructed or used in a manner which creates a safety or navigation hazard, public nuisance, or unduly restricts public use or access to subaqueous lands. Such structures shall be relocated or removed by the person who installed, replaced or owns the structure.

2.6.6 Dockominiums. No real property consisting of a pier, dock, boat slip or anchorage over public subaqueous lands shall be declared as a unit in a common interest community. The section shall not prohibit classification of such structures as common amenities of a condominium or planned community.

2.6.7 Developments.

2.6.7.1 In residential developments in which the development allows individual boat docks, the combined number of individual boat docks and centralized slips (such as in a marina) shall not exceed the total number of waterfront lots in the development. This subsection shall not apply to an application for an individual boat dock at a waterfront lot filed by the individual if an individual has purchased such lot prior to the effective date of these Regulations. In residential developments in which the development prohibits individual boat docks, the number of centralized slips shall be limited only by any applicable requirements of the State of Delaware Marina Regulations.

2.6.7.2 The construction of boat launching ramps may be authorized within residential developments for the use of any resident within the development regardless of whether or not residents with waterfront property have, or may apply for, individual boat docks.

2.6.7.3 No resident of a development which prohibits individual boat docks shall permanently beach, moor, or anchor any vessel at any location in the development other than the development's approved marina.

2.6.7.4 No individual boat dock application shall be accepted prior to the legal subdivision and sale of individual lots on, or adjacent to, the proposed structure.

2.7 Other Projects. No other project which may potentially impact the public interest in the use of tidal or navigable waters, contribute to water pollution, infringe upon the rights of the public, infringe on the rights of private owners, or make connection with public subaqueous lands, shall be undertaken on public or private subaqueous lands unless approval has been obtained from the Department.

2.8 Exemptions

2.7.1 Anchoring. A waterfront property owner, other than one within a development which provides a marina or anchorage for residents' use, may anchor or moor, not more than two (2) personally owned vessels in the waters adjacent to and within the perpendicular seaward extension of the property boundaries of the waterfront property, provided that the preemptive mooring area does not extend more than ten percent of the width of the waterbody at high tide, is not in a navigational channel, and does not pose a navigational hazard.

2.8.2 Written Notification of Exempted Repairs and Replacements. Repairs or structural replacements which are above the mean low tide and which do not increase any dimensions or change the use of the structure are exempt from the permit or letter of authorization requirements contained herein. The user shall notify the Department in writing in advance of utilization of the exemption. For purposes of this subsection, the notice shall include the location of the structure, a description of the use of the structure, and provide its dimensions.

2.8.3 Shellfishing. The use of shellfish grounds for shellfishing and the authorized use, deployment, and marking of fishing equipment and gear, is regulated under the authority of 7Del.C.Ch. 9, 11, 18, 19, 21, 23, 24, 25 and 27.

2.8.4 Drainage Ditches. Artificially created channels excavated from non-subaqueous lands and designed according to reasonable drainage standards do not require approval under these Regulations.

2.9 Waivers. The Department may waive any provision of these regulations when warranted under the following circumstances:

2.9.1 Life-threatening emergencies.

2.9.2 Actions are required for public safety for which sufficient time is not available to follow the Regulations.

2.9.3 Where the authority of the Department under 7Del.C.Ch. 72 overlaps with another statute, including but not limited to Shellfish Grounds, 7Del.C.Ch. 19; Beach Preservation, 7Del.C.Ch. 68; or Wetlands, 7Del.C.Ch. 66, provided that the following criteria are met:

2.9.3.1 If, in the opinion of the Secretary, equal environmental impact review and regulation of the activity would be provided by either statute; and

2.9.3.2 Waiver of these regulations would not be contrary to the purposes of 7Del.C.Ch. 72.

2.9.4 For facilities or activities which require a permit pursuant to the Department Marina Regulations, the Department will waive the provisions of Sections 3.O1.B and 3.O1.C of these Regulations.

2.9.5 The failure of the Department to enforce any of the provisions of these Regulations, however, shall not constitute a waiver by the Department of any such provisions.

2.10 Revocation. The Secretary may revoke any lease or permit for failure to comply with these Regulations or the terms and conditions of the lease or permit. The Secretary may, upon expiration or cancellation of a lease, direct the lessee to remove all structures and equipment from the leased area within 180 days. If the lessee fails to remove the structures and equipment thereon within the 180 day period, the Department shall, at its option and after 10 days from receipt of written notice by certified mail to the lessee, have the structures and equipment removed at the expense of the lessee.

2.11 Penalties. Violations of these regulations shall be punishable in accordance with 7Del.C.§ 7214.

2.12 Other Regulatory Agencies. Compliance with these Regulations does not relieve any person from complying with the laws, rules, regulations, and requirements imposed on the same lands, uses, structures, facilities or other appurtenances by local, State and Federal government agencies or other divisions within the Department.

2.13 Public Information. All material submitted in connection with any application shall be deemed public records subject to disclosure subject to 29Del.C.Ch. 100 unless designated by the applicant and accepted by the Department as covered by one or more of the exceptions enumerated in 29 Del.C.§ 10002(d).

2.14 Severability. If any part of these Regulations or the application of any part thereof are held invalid or unconstitutional, the application of such part to other persons or circumstances, and the remainder of these Regulations, shall not be affected thereby and shall be deemed valid and effective.

2.15 Appeals. Any person whose interest is substantially affected by any action of the Secretary taken pursuant to these Regulations may appeal to the Environmental Appeals Board as per 7Del.C.§ 7210. There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving State-owned subaqueous lands.

2.16 Effective Date of These Regulations. These Regulations shall take effect upon final adoption.

7 Del. Admin. Code § 7504-2.0