7 Del. Admin. Code § 7504-4.0

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

Section 7504-4.0 - Criteria of Permits Leases and Letters of Authorization

4.1 Evaluation Considerations. Each application shall be reviewed based on the consideration of the performance specifications, standards and other criteria listed in this section for the type of activity proposed.

4.2 An application may be denied if the activity could cause harm to the environment, either singly or in combination with other activities or existing conditions, which cannot be mitigated sufficiently.

4.3 For shoreline erosion control structures or measures and for water-dependent activities, each activity shall be reviewed on basis of need for the type of structure proposed.

4.4 For repair and replacement projects of serviceable structures, serviceability must be proven to the satisfaction of the Department. A serviceable structure includes existing structures which are intact and functioning for the original intended design purpose. For structures which are no longer intact due to a specific and catastrophic water event or activity, camera-dated photographs or aerial photography must clearly indicate the serviceability of said structure (as defined by the criteria above) within six (6) months prior to the date of application.

4.5 With regard to an evaluation of the overall public benefits from the proposed activity or structure, the following criteria may be used to determine whether or not to issue a permit, easement, lease, fee simple interest, or other instrument, with or without mitigating measures and conditions.

4.6 Public Use Impact. The Department shall consider the public interest in any proposed activity which might affect the use of subaqueous lands. These considerations include, but are not limited to, the following:

4.6.1 The value to the State or the public in retaining any interest in subaqueous lands which the applicant seeks to acquire, including the potential economic value of the interest.

4.6.2 The value to the State or the public in conveying any interest in subaqueous lands which the applicant seeks to acquire.

4.6.3 The potential effect on the public with respect to commerce, navigation, recreation, aesthetic enjoyment, natural resources, and other uses of the subaqueous lands.

4.6.4 The extent to which any disruption of the public use of such lands is temporary or permanent.

4.6.5 The extent to which the applicant's primary objectives and purposes can be realized without the use of such lands (avoidance).

4.6.6 The extent to which the applicant's primary purpose and objectives can be realized by alternatives, i.e. minimize the scope or extent of an activity or project and its adverse impact.

4.6.7 Given the inability for avoidance or alternatives, the extent to which the applicant can employ mitigation measures to offset any losses incurred by the public.

4.6.8 The extent to which the public at large would benefit from the activity or project and the extent to which it would suffer detriment.

4.6.9 The extent to which the primary purpose of a project is water-dependent.

4.7 Environmental Considerations

4.7.1 The Department shall consider the impact on the environment, including but not limited to, the following:

4.7.1.1 Any impairment of water quality, either temporary or permanent. which may reasonably be expected to cause violation of the State Surface Water Quality Standards. This impairment may include violation of criteria or degradation of existing uses.

4.7.1.2 Any effect on shellfishing, finfishing, or other recreational activities, and existing or designated water uses.

4.7.1.3 Any harm to aquatic or tidal vegetation, benthic organisms or other flora and fauna and their habitats.

4.7.1.4 Any loss of natural aquatic habitat.'

4.7.1.5 Any impairment of air quality, either temporarily or permanently, including noise, odors, and hazardous chemicals.

4.7.1.6 The extent to which the proposed project may adversely impact natural surface and groundwater hydrology and sediment transport functions.

4.7.2 For major commercial activities, or for other activities which may have a substantial environmental impact, the Department may require an environmental impact assessment. In all cases, a general assessment of potential impacts listed in 4.7 must be provided by the applicant.

4.7.3 The Department shall consider whether the activity under review could have the potential to cause any adverse environmental impacts, taken in conjunction with the existing situation and with other activities under construction or review. To assess the cumulative and secondary impacts, the Department may require the applicant to provide the following information:

4.7.3.1 Determination of cumulative effects on the aquatic ecosystem, natural surface and groundwater hydrology.

4.7.3.2 Determination of secondary effects on the aquatic ecosystem, natural surface and groundwater hydrology.

4.7.4 The Department shall consider whether any significant impacts or potential harm could be offset or mitigated by appropriate actions or changes to the proposed activity by the applicant. If so, the required mitigating measures may be included as conditions of the permit or lease.

4.7.5 Other Considerations. The Department shall also consider the following to determine whether to approve the application:

4.7.5.1 The degree to which the project represents an encroachment on or otherwise interferes with public lands, waterways or surrounding private interests.

4.7.5.2 The degree to which the project incorporates sound engineering principles and appropriate materials of construction.

4.7.5.3 The degree to which the proposed project fits in with the surrounding structures, facilities, and uses of the subaqueous lands and uplands.

4.7.5.4 Whether the proposed activity complies with the State of Delaware's Surface Water Quality Standards both during construction and during subsequent operation or maintenance.

4.7.5.5 The degree to which the proposed project may adversely affect shellfish beds or finfish activity in the area.

4.8 Requirements for all Structures

4.8.1 Structures shall be constructed in a manner that allows for continued growth and nourishment of aquatic and wetland vegetation under or near the structure wherever possible, and allows for adequate water circulation and water quality to support plants and animals.

4.8.2 Structures shall be constructed, installed, and used in a manner that minimizes pollution or the causing of harm to aquatic and tidal plants, fish and wildlife.

4.8.3 Structures shall utilize the best available materials and technologies and shall be constructed in a manner that will prevent or minimize leaching or runoff of harmful chemicals or other substances which may cause water pollution or harm to aquatic plants and wildlife.

4.8.4 Structures shall not interfere with navigation, public, or other rights.

4.9 Boat Docking Facilities

4.9.1 All new and existing marinas must comply with the requirements of the Department Marina Regulations.

4.9.2 General Siting Considerations: Siting of boat docking facilities shall be evaluated on site-specific conditions including, but not limited to, location of navigational channel, proximity of existing structures, aquatic habitats, and width and orientation of waterbody. The following criteria will be weighed and balanced when evaluating the siting of boat docking facilities.

4.9.2.1 Structures should be sheltered or protected from storm-driven currents, waves, and ice in an area with low or moderate normal currents and littoral drift.

4.9.2.2 Structures should be constructed to avoid dredging or filling, with minimal impact on aquatic vegetation and wetlands, and without dead-end or poorly flushed lagoons.

4.9.2.3 Structures should be located away from critical habitats, historic, or archaeological areas.

4.9.2.4 Structures should be located away from hazardous facilities or designated recreational swimming areas.

4.9.2.5 Where adequate depths exist for water-dependent structures, no dock, mooring, piling, or other structure or mooring area shall extend channelward more than 10 percent of the width of the waterbody at that location (from mean low water). In no case shall a structure extend more than 20 percent of the width of the waterbody, nor shall it extend seaward more than 250 feet, except under exceptional circumstances necessary to provide access for needed commerce.

4.9.2.6 Docks, mooring, pilings, or other structures should be located a minimum of ten (10) feet from a navigation channel.

4.9.2.7 Docks and piers should extend out from the shoreline far enough so as to eliminate need for dredging and filling, and provide sufficient height to allow light to penetrate to vegetation underneath and alongside.

4.9.2.8 Slips, lagoons, basins, and access channels should be no deeper than the parent waterbody (i.e. no sill), and the depth should slope upward toward the landward extent from the parent waterbody. Exception may be allowed only by individual review of the potential environmental impacts and approval granted by the Secretary of the Department.

4.9.2.9 Berms and grasslands should be made a part of the boat docking facility design wherever feasible and possible, particularly for buffer zones between the facility and any wetlands. As much of the land surface as possible should be vegetated or covered with porous materials to decrease stormwater runoff.

4.9.2.10 All convenience structures shall be set back a minimum of ten (10) feet from adjacent property lines. Exceptions may be allowed only if a written letter of no objection is obtained from the adjacent property owner, and the Department is satisfied that no navigation hazard or other adverse environmental impact may result.

4.9.2.11 New docking facilities should not extend beyond existing structures in the immediate vicinity unless absolutely necessary to obtain navigable water depths for a water-dependent activity.

4.9.2.12 Docking facilities should extend out from the shoreline no further than to a depth necessary for docking a boat capable of navigating the waterway.

4.9.2.13 Dredging to obtain navigable water depths in conjunction with private residential boat docking facilities should be avoided.

4.9.3 Structures shall not be constructed using creosote treated lumber.

4.9.4 For subdivided, recorded parcels of real property, applications for construction of a boat docking and/or launching facility must satisfy the minimum area requirements of a lot for residential construction, to include applicable setback and utility construction requirements (based on county, state and municipal standards), prior to consideration for approval for a subaqueous lands lease/permit. Community or common area parcels within an approved subdivision must satisfy the requirements defined by the Marina Regulations for a marina, based on the maximum number of potential users within the subdivision.

4.9.5 Properties which were legally subdivided and recorded prior to the adoption of Subaqueous Lands law (July 14, 1969) are exempted from the minimum size requirements for a docking facility as specified by 4.94 of these regulations. All structures exempted by this condition must satisfy all other siting, design, and review criteria of these Regulations.

4.9.6 Minimum frontage adjacent to subaqueous lands for a docking facility for any parcel will be forty (40) feet. Any proposed structure must satisfy all setback requirements as defined by state, federal or county regulation or guidelines.

4.9.7 Applications for the construction of a boat docking/launching facility within a recorded easement/right-of-way, linking non-waterfront properties to the shoreline, must be submitted with a written letter of no objection by the owner of the property containing said conveyance. Location and siting of the structure must satisfy all setback and frontage requirements, as defined by the Department. Applications will not be accepted for private/community structures within approved public easements or right-of-ways.

4.10 Installation and Use of Shoreline Erosion Control Measures

4.10.1 Requirements

4.10.1.1 Structural shoreline erosion control measures shall not be permitted in those areas where minimal demonstrable erosion is evident, as determined by the Department.

4.10.1.2 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. These include, but are not limited to, vegetation, revetments, and gabions. 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. When engineering feasibility and effectiveness considerations arc equal, the shoreline erosion control method utilized shall be the one with the least adverse environmental impact.

4.10.1.3 Nonstructural measures arc preferred for shoreline stabilization work in:

4.10.1.3.1 Low wave energy areas where no significant shoreline erosion occurs or wetlands occur. In this case, the allowable activity or measure should be limited to, the introduction or management of suitable vegetation.

4.10.1.3.2 Eroding areas where combinations of structural/nonstructural measures would be a practicable and effective method of erosion control. In this case, the allowable activities include:

4.10.1.3.2.1 The properly, designed and constructed regrading and contouring of the shoreline followed by planting and management of suitable vegetative stabilizing cover.

4.10.1.3.2.2 A combination of low profile stone groins and suitable vegetative stabilizing cover.

4.10.1.3.2.3 Properly designed and constructed low-profile rip-rap revetments, marsh-toe sills, or other non-vertical structures which may be used in conjunction with vegetative stabilizing cover.

4.10.1.4 Vertical-walled structures shall be allowed only where a non-vertical structure, designed to equal standards, would be ineffective to control erosion, where deleterious environmental effects associated with the construction of vertical structures would be less than the impacts on the adjacent environment during construction of a non-vertical structure, where functionally, no practical alternatives exist for certain water-dependent facilities or activities, or where generally accepted engineering practices would preclude the use of non-vertical walled structures.

4.10.1.5 All structural shoreline erosion control measures shall be designed to conform to generally accepted engineering principles. If the designed measure does not conform to accepted engineering principles, the Department may require a design to be prepared, signed, and sealed by a professional engineer registered in Delaware.

4.10.1.6 Structural erosion control measures shall address and satisfy the following elements:

4.10.1.6.1 Protection of aquatic biota, wetlands, and nearshore shallow water habitat.

4.10.1.6.2 Protection of water quality, flushing, and naturally occurring littoral drift and flow.

4.10.1.6.3 For vertical walls, protection against "toe scour" by adequately designed toe depth and, in high energy environments, rip-rap at the toe of the structure for existing tidal and wave conditions.

4.10.1.6.4 Adequate flow and circulation necessary to support the functional value of adjacent wetlands or aquatic habitat.

4.10.1.6.5 Materials and methods of construction shall be sufficient to withstand the stresses to which they will be subjected, from wind, waves, tides, currents, ice, and debris.

4.10.1.6.7 Avoidance or minimization of increased erosion of adjacent or downdrift shorelines.

4.10.2 Additional Requirements

4.10.2.1 Erosion control measures shall be installed and used only for the purposes of shoreline stabilization; any structure which serves or could serve to increase the property of an applicant shall be regulated by the provisions of 4.11 below.

4.10.2.2 Bulkheads must be aligned, where possible, with any adjacent bulkheads and shall be designed to prevent the possibility of trapping floating debris or impairing water circulation.

4.10.2.3 Each shoreline erosion control structure shall be designed to the extent possible to minimize adverse environmental impacts. If the Department determines that the granting of a permit for a shoreline erosion control structure will result in loss to the public of a substantial resource, the permittee may be required to take measures which will offset or mitigate the loss.

4.10.2.4 No permanent structure (building, house, patio, porch, deck, or other such structure) shall be constructed on a bulkhead or any portion of the anchoring system or any adjacent area that would interfere with future repair and/or replacement of the bulkhead.

4.11 Activities lnvolving Dredging, Filling, Excavating or Extracting Materials

4.11.1 Objectives. Projects shall be designed to meet the following objectives:

4.11.1.1 Conform to the pertinent objectives, classification system, environmental considerations, and criteria of the "Inland Bays Dredging Study, Volumes I and II," dated April 1986, as adopted by the Department on July 18, 1986.

4.11.1.2 Maintain the navigability of channels.

4.11.1.3 Maintain or improve the environmental quality of the State's water resources, subaqueous lands and wetlands.

4.11.2 General Evaluation Consideration. The Department shall consider the following additional factors in reviewing a dredging, filling, excavating, or extracting application:

4.11.2.1 Any environmental impacts at and surrounding the dredging site(s).

4.11.2.2 Any environmental effects of the disposal of the dredged materials at and surrounding the disposal or fill site(s), before or after mitigation, during and following the disposal of fill activities and particularly impacts on water quality as described below in 4.11.3.

4.11.2.3 Any economic and noneconomic benefits of the project compared to the costs of the project, both direct and secondary.

4.11.2.4 Consistency of the project with regional growth and local land use plans.

4.11.3 Water Quality on Dredging Projects. The applicant may be required to submit information to the Department to facilitate its evaluation of water quality impacts, as may be required to ensure compliance with State Surface Water Quality Standards. The following concerns for protecting water quality shall be specifically considered by the Department in evaluating applications for dredging projects:

4.11.3.1 All dredging is to be conducted in a manner consistent with sound conservation and water pollution control practices. Spoil and fill areas are to be properly diked to contain the dredged material and prevent its entrance into any surface water. Specific requirements for spoils retention may be specified by the Department in the approval, permit or license.

4.11.3.2 All material excavated shall be transported, deposited, confined, and graded to drain within the disposal areas approved by the Department. Any material that is deposited elsewhere than in approved areas shall be removed by the applicant and deposited where directed at the applicant's expense, and any required mitigation shall also be at the applicant's expense.

4.11.3.3 Materials excavated by hydraulic dredge shall be transported by pipeline directly to the approved disposal area. All pipelines shall be kept in good condition at all times and any leaks or breaks shall be immediately repaired.

4.11.3.4 Materials excavated and not deposited directly into an approved disposal area shall be placed in scows or other vessels and transported to either an approved enclosed basin, dumped, and then rehandled by hydraulic dredge to an approved disposal area, or to a mooring where scows or other vessels shall be unloaded by pumping directly to an approved disposal area.

4.11.3.5 When scows or other vessels are unloading without dumping, they shall have their contents pumped directly into an approved disposal area by a means sufficient to preclude any loss of material into the body of water.

4.11.3.6 In approved disposal areas, the applicant may construct any temporary structures or use any, means necessary to control the dredge effluent, except borrowing from the outer slopes of existing embankments and/or hydraulic placing of perimeter embankments. For bermed disposal sites, a minimum freeboard of two (2) feet, measured vertically from the retained materials and water to the top of the adjacent confining embankment, shall be maintained at all times.

4.11.3.7 The applicant shall not obstruct drainage or tidal flushing on existent wetlands or upland areas adjacent thereto. The applicant shall leave free, clear, and unobstructed outfalls of sewers, drainage ditches, and other similar structures affected by the disposal operations. The dredged materials shall be distributed within the disposal area in a reasonably uniform manner to permit full drainage without ponding during and after fill operations.

4.11.3.8 The dredging operation must be suspended if water quality conditions deteriorate in the vicinity of dredging or the spoil disposal site. Minimum water quality standards may be included as an clement of the permit and shall be monitored by the applicant. Violation of these conditions shall be cause for immediate suspension of activity and notification of the Department. Dredging shall not be resumed until water quality conditions have improved and the Department has authorized the resumption.

4.11.4 Prohibited Dredging Project. The following types of dredging projects are prohibited.

4.11.4.1 Dredging of biologically productive areas, such as nursery areas, shellfish beds, and submerged aquatic vegetation, if such dredging will have a significant or lasting impact on the biological productivity of the area.

4.11.4.2 Dredging of new dead-end lagoons, new basins and new channels, which have a length to width ratio greater than 3:1 and for which the applicant cannot prove, by clear and convincing evidence, that such dredging would not violate State Surface Water Quality Standards. This subsection shall not apply to marina projects governed by the Marina Regulations.

4.11.4.3 Dredging channels, lagoons, or canals deeper than the existing controlling depth of the connecting or controlling waterway, unless otherwise approved under 4.9.2.8 of these Regulations.

4.11.4.4 Dredging channels, cleaning marinas, or other subaqueous areas by using propeller wash from boats.

4.11.5 Removal of Public Subaqueous Lands. No person shall remove any material from public subaqueous lands without Department approval and receipt by the Department of full payment of the fee for the amount of material estimated to be removed. The Department reserves the right to determine the amount of material to be removed in dredging and/or filling projects.

4.12 Creation of Lands

4.12.1 Creation. No person shall fill, reclaim, or alter public subaqueous lands without the Department approval and receipt by the Department of full payment of a lease fee for the estimated area of land created or affected. The land created shall remain State property and may be leased to the applicant under terms and conditions to be set by the Department, unless otherwise conveyed as noted below in paragraph B. Lease fees may be waived for shoreline erosion control projects which have demonstrated water quality or habitat benefits associated with their use.

4.12.2 Sale of Created Lands. The Secretary may convey a fee simple title or any other interest in public lands created by filling, reclamation, or alteration of public subaqueous lands, in whole or in part, in lieu of leasing said lands pursuant to the provisions of Paragraph A above, as a precondition of granting a permit for such project. The sale price shall be determined by the Department on the basis of the fair market value after filling, reclamation, or alteration.

4.12.3 Secretary Approval of the Sale or Lease of Created Lands. The Secretary reserves the right to deny any application for the lease or sale of created lands pursuant to 4.12.1 and 4.12.2 above if he deems such lease or sale-not to be in the public interest.

4.13 Installation and Use of Pipeline and Other Conduits

4.13.1 Types of Projects: No person shall install or use a pipeline or other conduit, on or in subaqueous lands, without a lease or permit from the Department. Approval of the Department is required for pipeline including, but not limited to:

4.13.1.1 Telephone lines.

4.13.1.2 Lines for the transmission of electricity.

4.13.1.3 Pipelines for the transport of any liquid or gas.

4.13.1.4 Any other type of conduits or utility.

4.13.2 Construction and Materials. The construction methods and materials for pipelines and other conduits shall, at a minimum, be in accordance with the applicable state and federal regulations governing the installation and operation of pipelines, and shall conform to generally accepted engineering practices for said activities.

7 Del. Admin. Code § 7504-4.0